Over the past 20 years, America has created a superior system of second-hand justice: arbitration, mediation, and other increasingly creative forms of privatised justice have replaced the elusive American trial. In the best of all possible worlds, disputes would be settled by sage judges and conscientious juries. But in a world where only 2 per cent of lawsuits ever get to trial, second-hand justice from an arbitrator is better than none at all. Lawsuits these days are increasingly DIY; courts hardly get a look in.

But now both ends of the capitalist spectrum - from some of the biggest businesses to the lowliest consumers - are complaining that privatisation has gone too far. Congress and the Supreme Court are debating the question: is it time to bring back the judges?