Melvin Aron Eisenberg,
Participation, Responsiveness, and the Consultative Process: An Essay for Lon Fuller, 92
Harv. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/2034
In this essay, Professor Eisenberg identifies three norms of the adjudicative process put forth by Professor Fuller in The Forms and Limits of Adjudication--attention by the decision-maker, explanation of the decision, and responsiveness of the decision to the parties' proofs and arguments. Professor Eisenberg argues that there is a form of social ordering which, like adjudication, is characterized by assured participation, but which does not require that the decision be responsive to the parties' proofs and arguments. He explores some of the current and potential applications of this form of social ordering, which he terms the Consultative Process. He goes on to conclude that even in adjudication the norm of responsiveness to the proofs and arguments of the parties may vary according to the nature of the problem presented and the various interests to be accommodated in the solution of that problem.