Document Type


Publication Date

Fall 2001


This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a "majoritarian difficulty": the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend that the majoritarian difficulty can be mitigated or resolved by understanding majority decisions as the products of meaningful participation, through persuasion, by both the winning and the losing parties. Finally, I use the model to explain two central claims of contemporary deliberative democratic theory: that a deliberative conception of politics is superior to a purely aggregative conception, and that public deliberation must proceed according to reasons that are acceptable to all the participants.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.