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A Continental Distinction in the Common LawA Historical and Comparative Perspective on English Public Law$
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J.W.F. Allison

Print publication date: 2000

Print ISBN-13: 9780198298656

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780198298656.001.0001

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The Limits of Adversarial Adjudication

The Limits of Adversarial Adjudication

Chapter:
(p.190) 9 The Limits of Adversarial Adjudication
Source:
A Continental Distinction in the Common Law
Author(s):

J. W. F. Allison

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198298656.003.0009

Inquisitorial or investigative judicial procedures are the procedural requirement in this book's model (or ideal type) of a working distinction between public and private law. This chapter elaborates on that requirement through a constructive critique of Lon Fuller's published and unpublished work on the limits to adjudication which he understood in its Anglo–American adversarial form. It explains the usually wide ramifications of administrative disputes as polycentric in Fuller's analysis of adjudication and thus usually beyond its limits. In view of the incompleteness and recognised shortcomings of his work, evident in his correspondence with Walter Gellhorn and Frank Newman amongst others, and the insufficiency of his other forms of social ordering instead of adjudication the chapter elaborates on Fuller's analysis to advocate adjudication's re-conception as organization by collaborative expert investigation, suited to dealing with administrative disputes and developing public law.

Keywords:   model, ideal type, critique, adjudication, adversarial, inquisitorial, Fuller, Newman, Gellhorn, forms of social ordering

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