The forms and limits of democratic adjudication1
Building on the analysis in Chapter 5, this chapter addresses, from the perspective of a dispute-resolution account of law, four categories of current issues involving the structure and role of adjudication within a democratic system. It contends that concerns for the authority of democratic adjudication undermine calls for pragmatic, results-oriented judging. It suggests that judges should be cautious in seeking to actively manage adjudication, viewing settlements and “alternative dispute resolution” with some skepticism, avoiding premature assessments of the merits, but carefully overseeing factual discovery to ensure its fairness. It argues that public-law litigation is essential to the authoritative functioning of democracy, provided sufficient attention is paid to issues of participation and representation. And it advocates a presumption in favor of “judicial minimalism”—a preference for narrow decisions over broad judicially created rules.
Keywords: dispute resolution, adjudication, judicial pragmatism, legal pragmatism, managerial judging, settlement, alternative dispute resolution, judicial discovery, public-law litigation, judicial minimalism
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