THE SMALL CLAIMS COURT AND THE ADVERSARY PROCESS MORE PROBLEMS OF FUNCTION AND FORM

Abstract

This article recognizes the small claims court as the product of North American society’s deliberations on the problem of civil justice in relation to legal claims of limited monetary value. It examines historical and philosophical underpinnings and critical reviews of this problem, focusing on the attempt to adapt the institution to the needs of those governed by it and to keep pace with social change. It surveys the extent of societal adaptation that has already occurred and examines procedural models available for adjudicating small claims disputes, to determine which is best suited to achieve civil justice. It emphasizes the adversary process, the inquisitorial process and procedural trends in other forums in an attempt to offer theoretical justification for preferring the adversarial process for resolving conflict by way of adjudication. Finally, it determines the requirements and considerations that must be attended to in restructuring small claims courts according to the adversarial format, and calls for deeper consideration of these issues when choosing any action plan for reform.