Gillian Hadfield (USC Law) and I just gave a paper at the annual meetings of the American Sociological Association called "Democracy, Courts and the Information Order." The paper brings together Gillian's work on the 9/11 victims' compensation fund (VCF) and my work on the information norms that govern social relationships.
What does the latter mean? Imagine, for a moment, that you get fired one day. You head home at the usual time, though, and greet your partner as usual, have a drink and a nice dinner and watch some T.V. Then, around 10 p.m. you say, "Oh, by the way, I got fired today." Your partner is furious: "how could you just sit there for the last three hours and not say anything?" "What difference would it make? It's not like you can get me my job back. I just wanted to enjoy a nice dinner with you." And you are right. But so is your partner. Anyone who understands what a spouse is will tell you: spouses have implicit expectations about the sorts of information that they share with one another and when. Sitting on the fact that you got fired for several hours is simply unacceptable. The argument that inevitably follows the above event will, in part, be a debate about what kind of information obligations are implicit in any spousal relationship -- not just yours.
And all the rest of our social relationships come with socially defined and constantly negotiated "notification norms" too. All day long we get feedback on where we stand in our various relationships through what kinds of information we are given and what kinds of messages come along with it ("I shouldn't be telling you but..." or "You're the only one I've told" or "Just don't let him know you heard it from me."). In particular, when we experience relationships as equal, there are symmetric expectations. We don't have to swap identical information, but a friend who keeps an ear out for information related to, say, my hobbies, would expect that I would pass along similar information (although perhaps on some other avocation). When the expectations and performances are not symmetric, we recognize that our relationship is not an equal one. The boss, then, might tell the secretary that she will be out of the office for a few hours but the secretary needs to explain why she needs to take an extra hour for lunch. The parent can ask the teenager where he is going for the evening and when he will be home, but the teen cannot demand the same information of the parent.
In the 9/11 VCF data (and in many other cases -- plentiful enough that examples are in the news almost every week -- some (1, 2, 3) have been written up on this blog), victims' families expressed a high level of ambivalence about accepting a cash payout but giving up their right to go to court. Over and over again one hears "It's not about the money -- I just want to find out what happened -- I just want to be able to ask why this happened."
In the paper we argue that the conventional interpretations of such statements (dismissing them as disingenuous or as "merely" emotional) misses the mark. They point, we claim, to an important function of courts in democratic societies that can be lost if the focus is exclusively on the financial damages. We argue that private law (that is, civil suits between persons as opposed to either criminal cases or cases between the state and individuals or corporations) courts serve a democratic function in society insofar as they provide an arena in which formal equality is experienced through the implementation of information norms that characterize equal relationships. Though in everyday life the more powerful routinely say to the less powerful "I don't have to tell you," in court they may not. As soon as a suit is filed -- importantly NOT only when there has been a judgment of wrongdoing -- the parties to the suit are transformed into abstract actors who get to ask, and are compelled to answer, questions relevant to the legal issue that underlies the case. We contend that the existence of an arena in which empirically unequal actors can experience the formal equality they are promised in a democracy (where all are equal before the law) is a critical component of a democratic society.