NCJ Number
54938
Journal
Harvard Law Review Volume: 92 Issue: 2 Dated: (DECEMBER 1978) Pages: 353-409
Date Published
1978
Length
57 pages
Annotation
TYPES OF AND LIMITS ON ADJUDICATION ARE ADDRESSED WITHIN A BROAD FRAMEWORK THAT ENCOMPASSES SOCIAL ORDERING, RATIONALITY, AND THE RULE OF LAW.
Abstract
ADJUDICATION IS CUSTOMARILY THOUGHT OF AS A MEANS OF SETTLING DISPUTES OR CONTROVERSIES. MORE FUNDAMENTALLY, HOWEVER, ADJUDICATION IS A FORM OF SOCIAL ORDERING THROUGH WHICH RELATIONS BETWEEN INDIVIDUALS ARE GOVERNED AND REGULATED. IT IS NECESSARY TO CONCEPTUALIZE ADJUDICATION IN RELATION TO OTHER FORMS OF SOCIAL ORDERING (ORGANIZATION BY COMMON AIMS AND ORGANIZATION BY RECIPROCITY). PARTICIPANTS WORK TOWARD ACHIEVING THE SAME THINGS OR ENDS IN ORGANIZATION BY COMMON AIMS, WHILE PARTICIPANTS WHO WANT DIFFERENT THINGS ARE INVOLVED IN ORGANIZATION BY RECIPROCITY. THE CHARACTERISTIC FEATURE OF SOCIAL ORDERING IN THE FORM OF ADJUDICATION, CONTRACTS, AND ELECTIONS IS THE MANNER IN WHICH AFFECTED PARTIES PARTICIPATE IN DECISIONS REACHED. MODES OF PARTICIPATION ARE NEGOTIATION FOR CONTRACTS, VOTING FOR ELECTIONS, AND PRESENTATION OF PROOF AND REASONED ARGUMENTS FOR ADJUDICATION. AS A DEVICE THAT GIVES FORMAL AND INSTITUTIONAL EXPRESSION TO THE INFLUENCE OF REASONED ARGUMENTS IN HUMAN AFFAIRS, ADJUDICATION ASSUMES A BURDEN OF RATIONALITY NOT INHERENT IN ANY OTHER FORM OF SOCIAL ORDERING. WHERE ADJUDICATION APPEARS TO OPERATE MEANINGFULLY WITHOUT SUPPORT OF THE RULE OF LAW (FORMALLY DECLARED OR ACCEPTED IN ADVANCE), IT DOES SO BECAUSE IT DRAWS ITS INTELLECTUAL BASE FROM ORGANIZATION BY COMMON AIMS AND ORGANIZATION BY RECIPROCITY FORMS OF SOCIAL ORDERING. ADJUDICATION'S MOST NOTABLE SUCCESS IN THE FIELD IS WHERE THE ACCEPTED OBJECTIVE IS TO DEVELOP A REGIME OF RECIPROCITY. IN AN ANALYSIS OF VARIOUS TYPES OF ADJUDICATION, THE FOLLOWING ARE CONSIDERED: WHETHER ADVERSARY PRESENTATION IS NECESSARY IN ADJUDICATION; WHETHER ARBITERS CAN ACT ON THEIR OWN MOTIONS IN THE INITIATION OF A CASE; WHETHER A DECISION MUST BE ACCOMPANIED BY A STATEMENT OF REASONS FOR IT; WHETHER ARBITERS CAN REST THEIR DECISIONS ON GROUNDS NOT ARGUED BY PARTIES; QUALIFICATIONS AND DISQUALIFICATIONS OF ARBITERS; WHETHER DECISIONS MUST BE RETROSPECTIVE; MOOT CASES AND DECLARATORY JUDGMENTS; AND HOW ADJUDICATION IS AFFECTED BY THE SOURCE OF AN ARBITER'S POWER. LIMITS OF ADJUDICATION ARE EXAMINED IN TERMS OF POLYCENTRIC TASKS, WHETHER THE PROPER REALM OF ADJUDICATION IS LIMITED TO THE DECLARATION OF RIGHTS AND DUTIES, AND WHETHER IT IS THE PROPER REALM OF ADJUDICATION TO SAY THAT COURTS CANNOT UNDERTAKE AN AFFIRMATIVE DIRECTION OF AFFAIRS. MIXED, PARASITIC ON CONTRACT, AND PERVERTED (E.G., JUDGMENT PREFIXED BY COLLUSION) FORMS OF SOCIAL ORDER INVOLVING ADJUDICATION ARE EXPLORED. (DEP)