This Article sets forth an interpretive theory of adjudicative lawmaking according to which, under certain conditions, such lawmaking ensures constructive participation through interest representation and thus is not inherently nondemocratic. The author contends that the idea of ‘judicial activism,‘ courts deciding issues better left to political processes or substituting the personal ‘values‘ of judges for law, is based on the incorrect assumptions that courts are unconstrained and nonrepresentative. Instead, when adjudication operates in an archetypal way, it produces law in a manner similar to the parliamentary legislation process. Courts making law are constrained by the process of participatory decisionmaking--the production of judicial decisions through voluntary, self-directed debate among litigants. Moreover, adjudicative lawmaking occurs through the operation of interest representation--the binding of subsequent parties by precedent only to the extent that they are similarly situated to the original parties. The conditions necessary for adjudicative lawmaking to function democratically are that litigants participate to a significant degree in the production of binding decisions, that precedential decisions bind only future parties who are similarly situated to the parties to the original action, and that the conduct of the original litigants meet at least a threshold standard of adequacy. The author examines adjudicative lawmaking from the perspective of proceduralist and functionalist democratic justificatory theories and then demonstrates, using case law and current controversies, that a threat to adjudicative legitimacy arises when the potential binding effects of a decision extend beyond its particular facts. The author concludes that in our concern over judicial decisionmaking, we should monitor the decisionmaking processes used by courts to ensure that adjudication follows or simulates common law processes, thus rendering it democratically legitimate.
Adjudication as Representation, 97 Colum. L. Rev. 312 (1997)