Keeping Justice Happy: Supreme Court Nominee Kagan's Work on the Clinton 'ADR' Executive Order (Web)

It’s unclear exactly what she did, but there’s little question based on the release of documents today by the Clinton Library in Little Rock, Ark., that U.S. Supreme Court nominee Elena Kagan was at the heart of a White House initiative to boost ADR use in the federal government.

Kagan’s files, which are being released in stages in advance of Senate confirmation hearings this summer, show that she was a point person on Executive Order 12988, a February 1996 document on civil justice reform

At the time, Kagan was an associate counsel to President Bill Clinton.

It appears from the file, here, that Kagan prepared the press release on the executive order, which mandated use of ADR techniques in the executive branch agencies.  The press release notes that the order  “reaffirms significant civil justice reform measures adopted by other administrations, and underscores the importance of using a wide range of alternative dispute resolution techniques (mediation, early neutral evaluations, arbitra.tion) to :resolve government disputes outside of the courtroom.”

Executive Order 12988 can be found here. [A reference to the CPR Institute's Corporate Policy Statements on Alternatives to ADR can be found on page 44 of the pdf file at the link, in a Justice Department document urging ADR use that was sent to Kagan for background.]

The real driver behind the president’s order was U.S. Attorney General Janet Reno, who directed her then-new Justice Department Office of Dispute Resolution to form the Interagency ADR Working Group.

In her press release cover letter on the day the order was issued to Deputy White House Press Secretary MaryEllen Glynn, Kagan notes, “Could you give this to the appropriate person to release? The counsel's office would like to keep DOJ happy on this one.”

The Interagency ADR Working Group is still active, as is Justice’s Dispute Resolution office, and has made considerable inroads in many agencies on using ADR processes.  See www.adr.org.   The data on the executive branch agencies’ ADR use–which are a rare quantification of business conflict resolution  result–have appeared in two reports, one to President Clinton in 2000, and one to President George W. Bush in and 2007.  The reports can be found here.

--By Russ Bleemer, Editor, Alternatives

CPR Intern Diana Gesualdi provided research for this article.