The best interest of the child standard has been widely criticized by scholars for its vagueness and indeterminacy, and yet for forty years it has been the prevailing legal rule for resolving custody disputes. This article confirms the deficiencies of the standard, focusing particularly on the daunting verifiability problems courts face in evaluating claims. Yet, despite the substantial risk of erroneous or arbitrary custody decisions, the best interest standard remains firmly entrenched, with the apparent approval of policymakers and courts. We explain this puzzle as the product of two interrelated factors. First, a protracted gender war has embroiled advocates for mothers or fathers for decades, thereby creating a political economy deadlock. The main front in the gender war has been the legislative battle over joint custody, with fathers’ advocates promoting, and mothers’ groups opposing a joint custody presumption. But the struggle has also played out in the efforts of mothers’ groups to make domestic violence a key factor in custody disputes and the responsive effort by fathers’ advocates to elevate the importance of parental alienation. These efforts have brought apparent determinacy to important categories of cases and may have reduced dissatisfaction with the best interest standard but with costs that have not been recognized. Second, courts and policy makers mistakenly believe that psychologists and other mental health professionals have the expertise to obtain accurate family information and to evaluate and compare the competing claims. Courts routinely ask these professionals to guide them in making custody decisions- an unusual role for experts in legal proceedings. But mental health experts do not have the skill or knowledge to perform these functions; acting without the constraints generally applied to experts, they routinely go beyond the limits of science and of their own expertise in advising courts about custody. Their participation thus masks the deficiencies of the best interest standard and contributes to its perpetuation. Exposing the illusion that psychological experts can overcome the problems inherent in best interest determinations is an important step toward reform and better custody decisionmaking. Desirable reforms include adoption of the ALI approximation standard, restrictions on the admissibility of psychological evidence, and encouragement of private ordering for resolving most custody disputes.
{"title":"Gender Politics and Child Custody: The Puzzling Persistence of the Best Interest Standard","authors":"Elizabeth S. Scott, R. Emery","doi":"10.7916/D88W3D0K","DOIUrl":"https://doi.org/10.7916/D88W3D0K","url":null,"abstract":"The best interest of the child standard has been widely criticized by scholars for its vagueness and indeterminacy, and yet for forty years it has been the prevailing legal rule for resolving custody disputes. This article confirms the deficiencies of the standard, focusing particularly on the daunting verifiability problems courts face in evaluating claims. Yet, despite the substantial risk of erroneous or arbitrary custody decisions, the best interest standard remains firmly entrenched, with the apparent approval of policymakers and courts. We explain this puzzle as the product of two interrelated factors. First, a protracted gender war has embroiled advocates for mothers or fathers for decades, thereby creating a political economy deadlock. The main front in the gender war has been the legislative battle over joint custody, with fathers’ advocates promoting, and mothers’ groups opposing a joint custody presumption. But the struggle has also played out in the efforts of mothers’ groups to make domestic violence a key factor in custody disputes and the responsive effort by fathers’ advocates to elevate the importance of parental alienation. These efforts have brought apparent determinacy to important categories of cases and may have reduced dissatisfaction with the best interest standard but with costs that have not been recognized. Second, courts and policy makers mistakenly believe that psychologists and other mental health professionals have the expertise to obtain accurate family information and to evaluate and compare the competing claims. Courts routinely ask these professionals to guide them in making custody decisions- an unusual role for experts in legal proceedings. But mental health experts do not have the skill or knowledge to perform these functions; acting without the constraints generally applied to experts, they routinely go beyond the limits of science and of their own expertise in advising courts about custody. Their participation thus masks the deficiencies of the best interest standard and contributes to its perpetuation. Exposing the illusion that psychological experts can overcome the problems inherent in best interest determinations is an important step toward reform and better custody decisionmaking. Desirable reforms include adoption of the ALI approximation standard, restrictions on the admissibility of psychological evidence, and encouragement of private ordering for resolving most custody disputes.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"28 1","pages":"69-108"},"PeriodicalIF":0.0,"publicationDate":"2013-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86236788","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article, part one in a series of two, offers an argument against the proposition that binding judicial review is inconsistent with democracy. The first section considers three versions of this countermajoritarian complaint, and concludes that the only potentially defensible version is the “respect complaint,” associated with the popular constitutionalists, according to which constitutional courts impermissibly override popular legal judgments. The second section offers an argument against the respect complaint, centered on the notion that courts express rather than override popular legal judgments. The third section draws on the second to argue that “weak judicial review systems,” in which legislatures may override constitutional rulings, function the same way as “strong judicial review systems,” such as the U.S, because the courts in each system can wield power over legislatures only to the extent they can generally recruit popular support. Since, empirically, the extent to which legislatures defer to constitutional courts varies widely in weak judicial review systems, the Article concludes that the question of the relationship between judicial review and democracy is really a fine-grained problem of institutional design, not the simple binary choice to have or not have what critics of the U.S. system have misguidedly named “judicial supremacy.”
{"title":"The Countermajoritarian Complaint","authors":"Paul Gowder","doi":"10.2139/SSRN.2273848","DOIUrl":"https://doi.org/10.2139/SSRN.2273848","url":null,"abstract":"This Article, part one in a series of two, offers an argument against the proposition that binding judicial review is inconsistent with democracy. The first section considers three versions of this countermajoritarian complaint, and concludes that the only potentially defensible version is the “respect complaint,” associated with the popular constitutionalists, according to which constitutional courts impermissibly override popular legal judgments. The second section offers an argument against the respect complaint, centered on the notion that courts express rather than override popular legal judgments. The third section draws on the second to argue that “weak judicial review systems,” in which legislatures may override constitutional rulings, function the same way as “strong judicial review systems,” such as the U.S, because the courts in each system can wield power over legislatures only to the extent they can generally recruit popular support. Since, empirically, the extent to which legislatures defer to constitutional courts varies widely in weak judicial review systems, the Article concludes that the question of the relationship between judicial review and democracy is really a fine-grained problem of institutional design, not the simple binary choice to have or not have what critics of the U.S. system have misguidedly named “judicial supremacy.”","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"11 1","pages":"7-33"},"PeriodicalIF":0.0,"publicationDate":"2013-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77066313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years contract management has changed the contractual practice dramatically. More and more, the negotiation, implementation, and review of contracts are carried out with standardized procedures based on information technology. This not only creates new opportunities to organize business but also new opportunities for the legislator to regulate contracts. In addition to the direct determination of the rights and duties of the parties via contract law, he might now regulate the way contracts are managed. First examples of such regulations have already been adopted. The paper describes the advantages and disadvantages of such regulations. On the one hand, they might substitute mandatory contract rules and hence increase freedom of contract between the parties. On the other hand, they can increase the bureaucracy within firms and thus decrease the parties’ freedom.
{"title":"Contract-Management Duties as a New Regulatory Device","authors":"Lorenz Kaehler","doi":"10.2139/SSRN.2285689","DOIUrl":"https://doi.org/10.2139/SSRN.2285689","url":null,"abstract":"In recent years contract management has changed the contractual practice dramatically. More and more, the negotiation, implementation, and review of contracts are carried out with standardized procedures based on information technology. This not only creates new opportunities to organize business but also new opportunities for the legislator to regulate contracts. In addition to the direct determination of the rights and duties of the parties via contract law, he might now regulate the way contracts are managed. First examples of such regulations have already been adopted. The paper describes the advantages and disadvantages of such regulations. On the one hand, they might substitute mandatory contract rules and hence increase freedom of contract between the parties. On the other hand, they can increase the bureaucracy within firms and thus decrease the parties’ freedom.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"52 1","pages":"89-103"},"PeriodicalIF":0.0,"publicationDate":"2013-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82259684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article follows in the heels of an article entitled The Limited Diagnosticity of Criminal Trials. That article applied a body of experimental psychological research to examine how well juries and judges perform the diagnostic function of distinguishing between factual guilt and innocence. It concluded that fact finders encounter numerous difficulties in drawing correct inferences from the evidence presented at trial. This article examines a number of mechanisms that are said to promote the accuracy of the fact finding task: cross-examination, jury instructions, jurors’ assurances of impartiality, the prosecution’s heightened burdens of proof, jury deliberation, and judicial review by appellate or post-conviction courts. This examination concludes that to a limited extent, these mechanisms do indeed enhance diagnosticity, but they often turn out to be ineffective, and even detrimental to the process. It follows that the truth evincing potential of criminal trials is not as strong as generally believed.
{"title":"More Problems with Criminal Trials: The Limited Effectiveness of Legal Mechanisms","authors":"Dan Simon","doi":"10.2139/SSRN.2106934","DOIUrl":"https://doi.org/10.2139/SSRN.2106934","url":null,"abstract":"This article follows in the heels of an article entitled The Limited Diagnosticity of Criminal Trials. That article applied a body of experimental psychological research to examine how well juries and judges perform the diagnostic function of distinguishing between factual guilt and innocence. It concluded that fact finders encounter numerous difficulties in drawing correct inferences from the evidence presented at trial. This article examines a number of mechanisms that are said to promote the accuracy of the fact finding task: cross-examination, jury instructions, jurors’ assurances of impartiality, the prosecution’s heightened burdens of proof, jury deliberation, and judicial review by appellate or post-conviction courts. This examination concludes that to a limited extent, these mechanisms do indeed enhance diagnosticity, but they often turn out to be ineffective, and even detrimental to the process. It follows that the truth evincing potential of criminal trials is not as strong as generally believed.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"26 1","pages":"167-209"},"PeriodicalIF":0.0,"publicationDate":"2012-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89666529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Between 1980 and today, the US federal system has struggled to deal with the challenges of sentencing the relatively small number of defendants I shall loosely call “high-end” white collar offenders. After briefly sketching out this story, I explore the lessons, with particular attention to the interaction between institutional and procedural structures and theoretical white collar sanctioning goals. While the precise nature of these institutional and procedural structures is jurisdiction specific, I hope to highlight the need to consider such structures when devising an optimal (or, even second-best) sentencing regime.
{"title":"Federal White Collar Sentencing in the United States – A Work in Progress","authors":"D. Richman","doi":"10.2139/SSRN.1999102","DOIUrl":"https://doi.org/10.2139/SSRN.1999102","url":null,"abstract":"Between 1980 and today, the US federal system has struggled to deal with the challenges of sentencing the relatively small number of defendants I shall loosely call “high-end” white collar offenders. After briefly sketching out this story, I explore the lessons, with particular attention to the interaction between institutional and procedural structures and theoretical white collar sanctioning goals. While the precise nature of these institutional and procedural structures is jurisdiction specific, I hope to highlight the need to consider such structures when devising an optimal (or, even second-best) sentencing regime.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"11 1","pages":"53-73"},"PeriodicalIF":0.0,"publicationDate":"2012-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84523084","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is often assumed that sentencing guidelines are important to ensure fair and equal sentencing in criminal cases. Against this background, it needs explanations why criminal justice systems such as the German criminal justice system can achieve fairly moderate and equal outcomes without guidelines. The article examines factors within the legal system (such as the education and self-understanding of judges, legal education) which might contribute to a fairly moderate and equal sentencing system in the absences of sentencing guidelines.
{"title":"Moderate and Non-Arbitrary Sentencing Without Guidelines – The German Experience","authors":"Tatjana Hörnle","doi":"10.2139/SSRN.2041979","DOIUrl":"https://doi.org/10.2139/SSRN.2041979","url":null,"abstract":"It is often assumed that sentencing guidelines are important to ensure fair and equal sentencing in criminal cases. Against this background, it needs explanations why criminal justice systems such as the German criminal justice system can achieve fairly moderate and equal outcomes without guidelines. The article examines factors within the legal system (such as the education and self-understanding of judges, legal education) which might contribute to a fairly moderate and equal sentencing system in the absences of sentencing guidelines.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"33 1","pages":"189-210"},"PeriodicalIF":0.0,"publicationDate":"2011-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87026704","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Because insurance is necessary for decent access to health care, credible studies estimate that eliminating the Affordable Care Act or its individual mandate could cause thousands of avoidable deaths a year. That is sobering, but far more chilling is the loss of life that might result from the constitutional precedent that a negative ACA ruling would set. If the challengers’ chief argument is accepted, it creates the frightening prospect that the federal government may be unable to respond effectively to a catastrophic public health emergency that threatens millions of lives, if effective response requires mandating citizen behaviors unconditioned on any engagement in commerce. Credible scenarios for natural disasters and flu pandemics might require just such federal actions, in the form of mandatory vaccination, evacuation, screening, treatment, or even mundane sanitary measures – and the Commerce Clause is the only source for such power when military defense is not involved. State and local governments are the primary source of authority for such measures, but recent disasters and near-misses demonstrate the real possibility that their responses may prove inadequate. Thus, rather than fretting over what slippery-slope vegetables the government might force people to purchase if the mandate were upheld, courts should be much more concerned about the insurmountable barriers that a nullifying precedent would set for effective federal response to realistic catastrophes.
由于保险是获得体面医疗服务的必要条件，可信的研究估计，取消《平价医疗法案》(Affordable care Act)或其个人授权，每年可能会导致数千例本可避免的死亡。这是发人深省的，但更令人不寒而栗的是，否决ACA的裁决可能会开创宪法先例，造成生命损失。如果挑战者的主要论点被接受，就会产生一种可怕的前景:如果有效的应对措施要求公民的行为不以任何商业参与为条件，那么联邦政府可能无法有效应对威胁数百万人生命的灾难性公共卫生紧急情况。对于自然灾害和流感大流行的可信情况，可能就需要这样的联邦行动，以强制接种疫苗、疏散、筛查、治疗，甚至是世俗的卫生措施的形式——当不涉及军事防御时，《商业条款》是这种权力的唯一来源。州政府和地方政府是这些措施的主要权威来源，但最近的灾难和险些发生的事故表明，他们的反应可能是不够的。因此，与其担心政府会强迫人们购买什么样的“滑坡蔬菜”，法院更应该关心的是，一个无效的先例将为联邦政府对现实灾难的有效反应设置不可逾越的障碍。
{"title":"Constitutional Mortality: Precedential Effects of Striking the Individual Mandate","authors":"M. Hall","doi":"10.2139/ssrn.1959612","DOIUrl":"https://doi.org/10.2139/ssrn.1959612","url":null,"abstract":"Because insurance is necessary for decent access to health care, credible studies estimate that eliminating the Affordable Care Act or its individual mandate could cause thousands of avoidable deaths a year. That is sobering, but far more chilling is the loss of life that might result from the constitutional precedent that a negative ACA ruling would set. If the challengers’ chief argument is accepted, it creates the frightening prospect that the federal government may be unable to respond effectively to a catastrophic public health emergency that threatens millions of lives, if effective response requires mandating citizen behaviors unconditioned on any engagement in commerce. Credible scenarios for natural disasters and flu pandemics might require just such federal actions, in the form of mandatory vaccination, evacuation, screening, treatment, or even mundane sanitary measures – and the Commerce Clause is the only source for such power when military defense is not involved. State and local governments are the primary source of authority for such measures, but recent disasters and near-misses demonstrate the real possibility that their responses may prove inadequate. Thus, rather than fretting over what slippery-slope vegetables the government might force people to purchase if the mandate were upheld, courts should be much more concerned about the insurmountable barriers that a nullifying precedent would set for effective federal response to realistic catastrophes.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"93 1","pages":"107-113"},"PeriodicalIF":0.0,"publicationDate":"2011-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80884716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Conservation easements have proliferated across the United States. These private agreements have profound impacts on local land use and are supported by general subsidies from the public, but are generally not connected in any way to local land use plans or zoning ordinances. This article proposes that conservation easements be treated like any other land use and incorporated into land use planning processes. Conservation easements should be allowed of right in some areas, and prohibited in others.
{"title":"Zoning for Conservation Easements","authors":"J. Richardson, Amanda Bernard","doi":"10.2139/SSRN.2195214","DOIUrl":"https://doi.org/10.2139/SSRN.2195214","url":null,"abstract":"Conservation easements have proliferated across the United States. These private agreements have profound impacts on local land use and are supported by general subsidies from the public, but are generally not connected in any way to local land use plans or zoning ordinances. This article proposes that conservation easements be treated like any other land use and incorporated into land use planning processes. Conservation easements should be allowed of right in some areas, and prohibited in others.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"11 1","pages":"83-108"},"PeriodicalIF":0.0,"publicationDate":"2011-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81143264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2011-09-26DOI: 10.1163/9789004227095_005
Peer C. Zumbansen
Transnational law, since its iteration by Philip Jessup in the 1950s, has inspired a league of scholars to investigate into the scope, doctrine, sources and practice of border-crossing legal regulation. This paper reviews much of this preceding scholarly work and attempts to contextualize it in debates around global governance and global constitutionalism. These debates are no longer confined to international lawyers or political scientists. Together with anthropologists, sociologists, geographers and legal philosophers and legal theorists, these scholars have been significantly widening the scope of their investigation. The current, multi - and interdisciplinary research into the prospects of political sovereignty, democratic governance and legal regulation on a global scale suggests a further continuation of such intellectual bricolage and collaboration. The here presented paper builds on a larger research project into the methodology of transnational law and suggests that we ought to revisit legal sociological insights into the emergence of legal pluralism to make sense of today’s co-evolution of ‘formal’ and ‘informal’, ‘public’ and ‘private’ laws – and social norms.
{"title":"Defining the Space of Transnational Law: Legal Theory, Global Governance and Legal Pluralism","authors":"Peer C. Zumbansen","doi":"10.1163/9789004227095_005","DOIUrl":"https://doi.org/10.1163/9789004227095_005","url":null,"abstract":"Transnational law, since its iteration by Philip Jessup in the 1950s, has inspired a league of scholars to investigate into the scope, doctrine, sources and practice of border-crossing legal regulation. This paper reviews much of this preceding scholarly work and attempts to contextualize it in debates around global governance and global constitutionalism. These debates are no longer confined to international lawyers or political scientists. Together with anthropologists, sociologists, geographers and legal philosophers and legal theorists, these scholars have been significantly widening the scope of their investigation. The current, multi - and interdisciplinary research into the prospects of political sovereignty, democratic governance and legal regulation on a global scale suggests a further continuation of such intellectual bricolage and collaboration. The here presented paper builds on a larger research project into the methodology of transnational law and suggests that we ought to revisit legal sociological insights into the emergence of legal pluralism to make sense of today’s co-evolution of ‘formal’ and ‘informal’, ‘public’ and ‘private’ laws – and social norms.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"70 1","pages":"53-86"},"PeriodicalIF":0.0,"publicationDate":"2011-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90108786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2011-07-25DOI: 10.4324/9781315248592-18
Carrie Menkel‐Meadow
This essay explores how application of deliberative democracy and conflict resolution theories expose how the town hall meetings conducted on debates about recent American healthcare reform were poorly managed. The article suggests that for truly deliberative democracy to work, theory and practice must take account of three forms of discourse: rational-principled, bargaining-trading (utilitarian) and affective, emotional and value-based discourses. The article explores deliberative democracy and conflict resolution theory (e.g., Habermas, Hampshire), contrasts these to more nuanced analyses of what is possible in political deliberation processes (Elster, Sen, and Fishkin, among others) and describes how the town hall meetings were poorly executed in practice. Suggestions are offered for both theoretical issues (how are professional process experts, e.g. facilitators of consensus building fora to be justified in democratic theory) and practical variations on process themes, in the hopes that well structured and variable processes might still be designed and utilized for facilitating productive participation in the polity and more "consensus-seeking," and better and more flexible policy outcomes, even in highly contested political issues.
{"title":"Scaling Up Deliberative Democracy as Dispute Resolution in Healthcare Reform: A Work in Progress","authors":"Carrie Menkel‐Meadow","doi":"10.4324/9781315248592-18","DOIUrl":"https://doi.org/10.4324/9781315248592-18","url":null,"abstract":"This essay explores how application of deliberative democracy and conflict resolution theories expose how the town hall meetings conducted on debates about recent American healthcare reform were poorly managed. The article suggests that for truly deliberative democracy to work, theory and practice must take account of three forms of discourse: rational-principled, bargaining-trading (utilitarian) and affective, emotional and value-based discourses. The article explores deliberative democracy and conflict resolution theory (e.g., Habermas, Hampshire), contrasts these to more nuanced analyses of what is possible in political deliberation processes (Elster, Sen, and Fishkin, among others) and describes how the town hall meetings were poorly executed in practice. Suggestions are offered for both theoretical issues (how are professional process experts, e.g. facilitators of consensus building fora to be justified in democratic theory) and practical variations on process themes, in the hopes that well structured and variable processes might still be designed and utilized for facilitating productive participation in the polity and more \"consensus-seeking,\" and better and more flexible policy outcomes, even in highly contested political issues.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"2014 1","pages":"1-30"},"PeriodicalIF":0.0,"publicationDate":"2011-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73380251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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