California -- as usual -- is trying something slightly different. Section 638 of the California Code of Civil Procedure is allowing litigants in that state to "rent" a judge.
The process, in effect, creates sort of a "court outside the court." The disputing parties are permitted to choose a mutually acceptable referee for their case. Most often, the referee has been a retired judge. This judge then tries the case outside of court, but in accordance with all the procedures of a public trial.
So far most of the litigants "renting" a judge have been corporations. Some divorce cases have also been handled by this technique.
The advantages of the "rent a judge" method include:
* The chance to pick a judge with some expertise. Different judges have different specialties, and the random assignments made by the public courts don't always serve the interests of the case.
* Speed. Cases being tried by private judges can begin as soon as the litigants want, and proceed at any pace they like. (In the Los Angeles Superior Court there is now a four-to-five-year backlog of cases.)
* Privacy. Only the judgment need be reported back to the public court. This is of enormous value to corporate clients who don't want the details of their business affairs being typed into the public record.
* The right to appeal. Binding arbitration does not include the right.
According to Eric Green, a professor at Boston University's School of Law, practically every state in the union has an arbitration statue that would permit private judging. "The only thing unique about California is utilization," Mr. Green comments, "not existence."
"The idea has not w idely spread yet," but, he predicts, "it will."