Persuasion: A Model of Majoritarianism as Adjudication

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