About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

59 N.Y.U. L. Rev. 443 (1984)
The Formalization of Informal Law: Arbitration before the American Revolution

handle is hein.journals/nylr59 and id is 457 raw text is: NEW YORK UNIVERSITY LAW REVIEW VOLUME 59 JUNE 1984 NuvmB 3 THE FORMALIZATION OF INFORMAL LAW: ARBITRATION BEFORE THE AMERICAN REVOLUTION BRUCE H. MANN* In colonial times arbitration played an important role in reso cing disputes, muds more co than it does today. The reason, Professor Mann suggests, ies in the communal nature of colonial society, in the spirit of cooperation and trust that nccsarily dwracttrked relations among those who settled the New World. In this Article, he aplore the link between community and arbitration as it existed in Connecticut during thesevententh and eighteenth centuries. lcfilnds thatsocial and economic changes in this period transformed arbitration from a neighbody process into one that was more coercive and law-like. In the mtd-160Os, when Connecticut was a society of small, insular towns whose residents depended cntirdy on one another for their physical and spiritual well-being, arbitration was a purely voluntary proccs. The partes oral agreement to submit their dispute to arbitration and to perform the award granted was unen- forceable, but enforcement was not an issue for neiglhoors who could rely on cods otherir good faith. By the turn of the century, however, population growth and Increased migration had weakened community ties between disputants and the voluntary nature of arbitration began to Jade. Professor Mann traces this development through the erolution of submLiion forms, the manner in which parties submitted their dispute to arbitration. Oral forms were succeded by written ones-first deeds, then conditioned bonds and promissory notes-designed to gice the partiesgreater assurance that the loser would comply with the award. By the end of thecentury, submissions and awards had become legally enforceable, and what was once an Informal procen had assumed many of the technical featurs of a legal proceeding. Arbitration had also ceased to be a source of equitable relief. Money damages had become the primary form of award, Professor Mann observes, because disputes, like the rdations between disputants, were lea comprehensive and thus capable of resolution without broad, personalized remedies. Zephaniah Swift, a Connecticut jurist of the early republic, de- scribed arbitration as an amicable and neighbourly mode of settling personal controversies.' Arbitrators, he wrote, are not tied down to the same strictness, formality and precision as courts of law. While *Associate Professor of Law, Washington University, St. Louis. A.B., A.M., 1972, Brown University; J.D., M. Phil., 1975, Ph.D., 1977, Yale University. I am grateful to Barbara A. Black, John H. Langbein, Aviam Softer, and Elizabeth Warren for their exhaustive, and sometimes exhausting, criticisms of various drafts. I am sure they would wish to be absolved of responsibility for points on which we still differ. Robert Claus, former State Archivist of Connecticut, greatly facilitated my research. An earlier version of the Article was presented at the annual meeting of the Law and Society Association in Toronto on June 6, 1982. A Legal History Fellowship from the American Bar Foundation aided completion of the Article. 1 2 Z. Swift, A System of the Laws of the State of Connecticut 7 (Windham, Conn. 1798). 443 Imaged with the Permission of N.Y.U. Law Review

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most