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International Encyclopedia of the Social Sciences

International Encyclopedia of the Social Sciences

West's Encyclopedia of American Law

Adjudication
International Encyclopedia of the Social Sciences
COPYRIGHT 2008 Thomson Gale

Adjudication
I. Domestic AdjudicationDavid Fellman

BIBLIOGRAPHY

II. International AdjudicationC. Wilfred Jenks

BIBLIOGRAPHY

The articles under this heading deal with the role and processes of national and
international judicial institutions. Further discussion of the relations between judicial
and other political institutions is found under Judicial processand Judiciary. For more
general themes see under International lawand Law.

I DOMESTIC ADJUDICATION
Adjudication is a method of settling controversies or disputes. Characteristically, it
gives assurances that the parties involved will be able to participate by presenting
proofs and reasoned argument. The function of adjudication is normally regarded as
belonging to the law courts; although not all adjudication takes place in the courts,
and not everything the courts do can be called adjudication.

Society has many methods available for the resolution of disputes. In a democratic
system of government, many important issues are resolved by the people through
voting. Individuals and groups often settle their disputes by negotiation and
contractual agreement. Parents adjudicate disputes among their children. Legislative
bodies occasionally exercise adjudicatory functions when they sit as courts of
impeachment, and, in a larger sense, legislation is concerned with the resolution of
controversies all the time. Many disputes are resolved through arbitration, as in the
fields of labor relations, commerce, and, occasionally, in international relations. A
vast amount of adjudication takes place in the regulatory administrative agencies. In
the American system of government, such agencies handle far more adjudication, in
sheer bulk, than do the courts. For example, the number of hearings in appeals cases
held by the U.S. Veterans Administration Board of Veteran Appeals exceeds the total
number of civil cases disposed of by all the federal district courts [seeAdministration,
article onthe administrative process].

Functions of the courts

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Although adjudication is characteristically a judicial function, courts are often

involved in other types of activity. They perform managerial functions, for example,
when administering bankruptcy laws, or probating wills, or supervising the
enforcement of antitrust decrees. Such matters as the naturalization of aliens and the
handling of divorces and other domestic relations questions involve mainly
administrative responsibilities. In the United States, state judges often have the power
of appointment to certain public offices or exercise licensing functions. State courts
are obliged to assume whatever functions are assigned to them by the state
constitutions. The federal courts, on the other hand, are authorized by article III of the
United States constitution to hear “cases” or “controversies,” and this directive has
been construed strictly by the Supreme Court to exclude other than adjudicative
functions.

The disputes that courts resolve through adjudication arise between private parties,
between private parties and public officials, and between public officials or public
bodies. Characteristically, the disputes are adjudicated according to some general
principle, or rule of law, and with settled and distinctive procedures that involve the
presentation of proofs and reasoned arguments by the parties. Participation by the
parties in this fashion is insured by formal rules embedded in an institutional
framework, and the objective is to attain a result that will meet the test of reason. The
judge to whom reasoned argument is made must be impartial, that is to say, free of
bias or corruption, if there is to be any confidence in his decision. The issues that are
tried by the judges in civil cases are claims of right resting upon some general
principle, or rule of law; and in criminal cases the issues involve accusations of fault
that also rest upon general rules.

Normally, courts lack the power to take the initiative; they must wait for parties to
bring controversies to them, and thus their role is essentially passive. Since the judge
must be impartial, it is preferable to leave the initiation of litigation to the interested
parties. In an ultimate sense, courts even lack the power to enforce their decrees, for
when a powerful group intransigently refuses to obey a judicial decree, the courts
must depend upon the executive branch of the government for the muscle of
enforcement. In addition, the courts depend upon the legislature for financial support
and for most organizational matters.

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Adjudication by courts involves several different functions: the establishment of the

facts in controversy, the definition and interpretation of relevant rules of law, and the
fashioning, if necessary, of rules of law. The establishment of the facts is controlled
by the complex rules of evidence, which often vary among different jurisdictions in
respect to such matters as the style of pleading or the admission of various types of
evidence, such as hearsay. In the Anglo-American system of “accusatorial” justice,
the facts in criminal cases are brought out through the presentation of evidence and
through cross-examination by opposing counsel. In civil law countries, where the
methods of “inquisitorial” justice prevail, the determination of the essential facts is
largely in the hands of the presiding judge.

The discovery of the relevant rule of law that will control the resolution of the dispute
is not always a simple or automatic process. Many statutes are ambiguous and permit
judges to exercise a wide latitude of judgment. They must look into such matters as
legislative intent, available precedents, and the reasonable meaning of words. Rules of
construction may vary a great deal. Thus, courts tend to construe social legislation
broadly, whereas it is customary to construe penal statutes strictly, since human
liberty is involved. Nor are judges indifferent, in construing statutes, to the practical
consequences that will flow from one interpretation or another.

Judicial lawmaking

Anglo-American common law, built up over centuries of experience on the basis of

stare decisis, or following precedents, was developed by the judges in the course of
deciding numberless cases. When an American court exercises the power of judicial
review and declares a statute to be contrary to the constitution, it is obviously
legislating. Thus, the Supreme Court made a legislative judgment, that is to say, it
fashioned a new rule of law, when in Brown v. Board of Education of Topeka (347
U.S. 483, 1954) it decided that the equal protection clause of the fourteenth
amendment forbade racial discrimination by force of state law in the public schools.
The courts of other countries, for example, West Germany, Italy, France, Australia,
and Canada, have similar judicial review powers. Furthermore, courts must
occasionally decide what is usually known as the unprovided case, that is, a case for
which there seems to be no established, or known, rule of law. In such instances, the
courts will not shrink from deciding the case and will find a way of deducing some
rule from existing rules or from a consideration of the facts of life and their social
ends and purposes. Similarly, courts will find a way to deal with hardship cases,
although often at the cost of legal uncertainty.

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Whether judges actually make law, or merely discover and apply the law, is the
subject of an old and lively controversy in Anglo-American jurisprudence. According
to one point of view, courts do not make law but merely find and declare what the law
is. Coke taught that the common law of England was the common custom of the realm,
and Lord Hale took the position that judicial decisions were not law but only
“evidences” of the common law. Based on these views, Sir William Blackstone
maintained in his Commentaries on the Laws of England (1765–1769) that judicial
decisions are not the common law, but only “the principal and most authoritative
evidence that can be given, of the existence of such a custom as shall form a part of
the common law.” He insisted that judges do not decide cases on the basis of private
views; they are “not delegated to pronounce a new law, but to maintain and expound
the old one” (Com., I, 69 in the 1811 edition).

This declaratory theory concerning the nature of the judge’s function has been
rejected by the great weight of modern jurisprudential opinion. Jeremy Bentham
argued that every judicial decision is lawmaking, even if the judge is merely
following precedents, since even then his course of decision is one that he chooses to
follow. John Austin believed that judges make law, and he ridiculed Blackstone for
accepting “the childish fiction employed by our judges, that judiciary or common law
is not made by them, but is a miraculous something made by nobody, existing, I
suppose, from eternity, and merely declared from time to time by the judges” ([1861]
1873, II, §655). Sir Henry Maine also took this position. In The Nature and Sources of
the Law ([1909] 1921, p. 283), John Chipman Gray argued that the “true view … is
that the Law is what the judges declare”; and that statutes, precedents, the opinions of
learned experts, custom, and morality are merely sources of law. This was the view of
Oliver Wendell Holmes, who once said that “the prophecies of what the courts will do
in fact, and nothing more pretentious, are what I mean . . . by the law” ([1897] 1952, p.
173). At a much later date, however, Justice Holmes declared: “I recognize without
hesitation that judges do and must legislate, but they can do so only interstitially; they
are confined from molar to molecular motions” (Southern Pacific Co. v. Jensen, 244
U.S. 205, 221, 1917). ’President Theodore Roosevelt flatly asserted, in a message to
Congress on December 8, 1908 (43 Cong. Rec., part I, p. 21), that “the chief
lawmakers in our country may be, and often are, the judges, because they are the final
seat of authority. Every time they interpret contract, property, vested rights, due
process of law, liberty, they necessarily enact into law parts of a system of social
philosophy; and as such interpretation is fundamental, they give direction to all
law-making.” Justice Cardozo maintained in The Nature of the Judicial Process
([1921] 1960, pp. 26–28) that it is not true that judges only give effect to law, but that
the judge makes law in an evolutionary, rather than a revolutionary, manner and has
limited powers of innovation, considering “the bulk and pressure of the rules that
hedge him on every side”.

While the declaratory theory has been rejected philosophically, there is plenty of
evidence that it still; commands considerable support. English and American judges
still assert that judges do not make law. When a new question is decided by a court,
the judge will usually try to establish analogies with existing precedents, statutes, or
constitutional provisions. He is apt to be very reluctant to admit to very much
innovation. Similarly, when courts are authorized to exercise discretion, judges will
often describe it as “judicial” discretion, meaning to suggest that they are not merely
following a personal sense of right.

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The assertion of the notion that judges do not make law may well have practical
consequences. What, for example, is the effect of an overruled decision? If judges do
not make law, but only discover and declare it, then it seems to follow that the newly
announced rule of law was always the proper rule, thus giving a retrospective effect to
the last decision. Similarly, a judicial decision declaring an act to be criminal, which
was not so regarded in the light of decisions prevailing at the time it occurred, is not
regarded as ex post facto, unlike a comparable statutory change, since judges only
find or declare the law but do not make it. On the other hand, a judicial decision that
affects the validity of a contract previously made is regarded as impairing the
obligation of the contract, but this can be so only on the theory that judges do make
law. It follows that the debate as to whether or not judges make law is not altogether
academic in nature, and in many circumstances the theory prevails that gives the best
result.

Sources of law

Where does the judge find the law for his case? What are his sources? Sometimes, of
course, the answer is clear and obvious: the judge may find a plain and unequivocal
rule to follow in a statute or in a constitution. But statutes and constitutions are often
highly ambiguous, and in such cases the judge must fashion rules of law through a
process of interpretation. Furthermore, there are vast areas of human activity that are
untouched by statute or formal constitutional documents. Clearly, the process of
decision by a judge involves the subtle interplay of many influences. He will consider
the precedents, if such are available, or reason by analogy from previous decisions.
He will take into account the customs of the community, considerations of social
welfare, ideals of justice and morality, the usages of the trades, markets, and
professions, and the course of historical experience. On some points, “a page of
history,” Justice Holmes declared, “is worth a volume of logic” (New York Trust Co.
v. Eisner, 256 U.S. 345, 349, 1921). Back of the precedents and basic juridical
conceptions, Justice Cardozo said, “are the habits of life, the institutions of society”
([1921] 1960, p. 19). Basically, Justice Holmes maintained, “the secret root from
which the law draws all the juices of life” is a conviction as to what is expedient for
the community; every important principle developed by litigation “is in fact and at
bottom the result of more or less definitely understood views of public policy” ([1881]
1963, p. 35). Similarly, Justice Cardozo thought that the greatest single force behind
the law is “the power of social justice.” He asserted that “the final cause of law is the
welfare of society” (p. 66). But Justice Cardozo also recognized that “deep below
consciousness are other forces, the likes and the dislikes, the predilections and the
prejudices, the complex of instincts and emotions and habits and convictions, which
make the man, whether he be litigant or judge” (p. 167). Furthermore, he emphasized
that everyone has an underlying philosophy of life, “which gives coherence and
direction to thought and action. Judges cannot escape that current any more than other
mortals” (p. 12).

In short, judges are influenced by many forces: the customs of the community,
prevailing ethical principles, the dictates of logic, the push of history, and
considerations of utility and expediency. They are also influenced by professional
factors: the habits of mind of lawyers, the criticisms of a learned profession, and the
nature of law, such as its concern for uniformity, impartiality, logical consistency, and
stability.

The role of precedents

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The place of precedents in the adjudicatory scheme of things involves a number of

important considerations. Normally, judges feel obliged to follow precedents. Clearly,
stare decisis gives to the law needed elements of certainty and predictability. It adds
reliability to the administration of law and offers assurances of equality and
uniformity of treatment to litigants. It also preserves the values inherent in the judicial
experience of the past. Furthermore, as Sir Frederick Pollock once pointed out, where
a line of decisions has been accepted as law for a long time, and has been acted on by
many persons, reversal of the rule, even though it may have been originally founded
on a mistake, “might well produce an amount of inconvenience greater than any
advantage that could be expected from the restoration or establishment of a rule more
correct in itself” (Pollock [1896] 1918, p. 327).

Sir William Holdsworth has explained that the modern theory of stare decisis began
to develop at the end of the fifteenth century, when changes in the system of pleading
shifted attention from oral debate in court to the formulation of decisions on the basis
of written pleadings studied by the judge before the case came to court (1934, p. 180).
The rule that judges are bound to follow precedents has always had a high place in
English law and practice. Accordingly, precedents are strictly followed in Britain, and
the House of Lords will not overrule previous decisions.

On the other hand, a more flexible attitude toward stare decisis prevails in the United
States. “Whether it shall be followed or departed from,” the Supreme Court once
observed, “is a question entirely within the discretion of the court, which is again
called upon to consider a question once decided.” And it said to the lower court where
the decision was being reviewed: “The Circuit Court of Appeals was obviously not
bound to follow its own prior decision” (Hertz v. Woodman, 218 U.S. 205, 212, 1910).
Justice Holmes declared that “it is revolting to have no better reason for a rule of law
than that so it was laid down in the time of Henry iv. It is still more revolting if the
grounds upon which it was laid down have vanished long since, and the rule simply
persists from blind imitation of the past” ([1897] 1952, p. 187).
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Of course, a U.S. Supreme Court decision on a federal question is binding upon all
federal and state courts, but American legal doctrine has been fully sensitive to social,
political, and economic change; and the Supreme Court has never regarded itself as
being rigidly bound by its own decisions, particularly in the field of constitutional law,
where large policy questions are likely to be dominant considerations. Thus, in a
considerable number of great constitutional law cases, the Supreme Court has
consciously rejected former precedents. (See, for example, The Legal Tender Cases,
79 U.S. 457, 1870; Brown v. Board of Education of Topeka, 347 U.S. 483–496,
1954.)

Adherence to precedent is, however, the rule in the other American courts. To be sure,
only the reasoning bearing directly upon judgment carries weight, and judges do not
feel bound to follow mere dictum. But precedents not only command respect; they
also have a tendency to extend themselves along lines of logical development. They
develop continuities, permit prediction, and by helping to insure fair and equal
treatment they tend to create restraints upon arbitrariness. Since a judge must follow
relevant precedents, for which good reasons have been advanced, he is obliged to give
new and persuasive reasons to justify a different outcome.

Since even in English law it is recognized that some exceptions to the rule of stare
decisis exist, we may conclude that the authority of a decision is not attached to the
words used but to the principle necessary for the decision; it is only the ratio
decidendi that really matters.

Hearings

The essence of adjudication is a hearing at which parties present proofs and reasoned
argument. The sort of facts that are the object of inquiry at a hearing are facts about
specific parties. In contrast, legislative facts are general facts relating to broad
questions of policy and law affecting the general population or very large segments of
it.

Legal necessity

No hearing is necessary, as a matter of legal right, for the determination of legislative

facts, whether by a legislature or by an administrative agency, since legislators,
administrators, and their staffs may have their own adequate knowledge concerning
the facts. On the other hand, since parties are in the best position to know the facts of
their particular situations, the determination of adjudicative facts requires a hearing.
The hearing may be conducted either by a court or by an administrative agency,
depending upon whether the proceeding involves mainly private or public interests.

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The place of the hearing in adjudication is reflected in the holding of a New York
court: “The act of an administrative or ministerial officer does not become judicial
simply because it is necessary to use discretion and judgment in its performance. It
becomes judicial only when there is opportunity to be heard, evidence presented and a
weighing of the evidence and a decision thereon” (People ex. rel. Argus Co. v. Hugo,
101 Misc. 481, 168 N.Y.S. 25, 27 Sup. Ct. Albany Co. 1917).

The difference between adjudicative and legislative facts is reflected in two famous
decisions of the Supreme Court of the United States dealing with taxation. In
Londoner v. City and County of Denver (210 U.S. 373, 386, 1908), the Court ruled
that when a state board of equalization raises the property assessment of a single
taxpayer, he has a right to a hearing, and merely allowing him to file written
objections will not suffice. The Court said that “a hearing in its very essence demands
that he who is entitled to it shall have the right to support his allegations by argument
however brief, and, if need be, by proof, however informal,” since the facts are
adjudicative in nature. On the other hand, the same Court held that a hearing was not
necessary where a city increases the valuation of all taxable property within its
borders, since this is a general policy decision based on general information and ideas
(Bi-Metalic Investment Co. v. State Board of Equalization of Colorado, 239 U.S.
441–446, 1915). In other words, the facts were legislative in character.

But even where the facts to be determined are adjudicative, a legal right to a hearing
is not always recognized. Thus, a hearing may be dispensed with, at least for a period
of time, where emergency action is necessary, or where inspection, or testing, or
examination are suitable substitutes for hearings, as in the case of the inspection of an
airplane. In addition, a hearing is often denied in cases involving certain types of
privilege. Thus, the Supreme Court has ruled that an entering alien has no right to a
trial-like hearing on the issue of whether his admission would be prejudicial to the
best interests of the United States, since at best his entry is a matter of privilege and
not of right (U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 1950; Shaughnessy v.
U.S. ex rel. Mazei, 345 U.S. 206, 1953). Similarly, state courts generally hold that
licenses to operate liquor stores, dance halls, pool halls, theaters, and the like, where
the public interest in safety and morality is apt to be very great, may be revoked
without notice of hearing, on the basis of the privilege doctrine.

On the other hand, the revocation of professional licenses, such as those of doctors
and lawyers, must as a matter of law be preceded by a hearing following due notice.

Adjudication by administrative agencies tends to resemble adjudication by the courts.

There are differences, of course, particularly in respect to the rules of evidence and in
the degree of formality, but the resemblances are great; and as the administrative
agencies mature, they tend to approximate more and more the procedures of the courts,
partly as a result of legislation and partly as a result of pressures from the legal
profession. Adjudication by arbitration is still another matter. Here the source of the
power of the arbiter is generally the consent of the litigants, whereas the judge derives
his power from government. Adjudication by a court has the advantage that the judge
is less tempted to compromise, and his decision may be more acceptable because he
seems to apply general rules he did not make and because he is surrounded by a
powerful mystique. On the other hand, the arbitrator may exert greater effort than the
judge in order to secure acceptance of the award, and the arbitrator is less bound by
technical rules of procedure. In addition, he is often guided by the actual terms in the
agreement to arbitrate.

Types of hearings

There are, in the courts, two different types of hearings. One takes the form of a trial,
where evidence is presented, witnesses are cross-examined, and the tribunal makes its
determination on the record. The other type of hearing essentially involves the
presentation of arguments, as in appellate courts. The trial is designed to resolve fact
issues, to assign facts to legal categories, and to apply rules of law to the facts. A
hearing involving only argument is designed to resolve issues of law, policy, or
discretion. Although a judge must limit his findings to the facts in the trial record,
judges inevitably take judicial notice of some facts of general public knowledge; and
they may make some decisions, not bearing on the immediate issues of the trial, on
the basis of knowledge derived out of court, as in the collection of information
bearing on the problem of the sentence (Williams v. New York, 337 U.S. 241, 1949).

Adversary proceedings

The rule prevailing in most American courts is that adjudication must involve a real
controversy between adversary parties. An American Bar Association report has
noted that “in whatever form adjudication may appear, the experienced judge or
arbitrator desires and actively seeks to obtain an adversary presentation of the issues.
Only when he has had the benefit of intelligent and vigorous advocacy on both sides
can he feel fully confident of his decision”(Report 1958, p. 1161). This means that
courts will not give advisory opinions (United States v. Evans, 213 U.S. 297, 1909),
although state courts are obliged to do so if their state constitutions so provide.
Furthermore, it should be noted that courts often give judgment for plaintiffs by
default, where the defendant makes no appearance and offers no defense. This often
happens in cases involving the collection of small retail debts, or the recovery of
goods sold on conditional sales contracts, or the recovery of unpaid rents. These are
not truly adversary proceedings, although that is the result of the defendant’s choice.
Here the court is used to help in making collections by coercing defendants who make
no defense and generally have no defense, either in fact or in law.

In addition, since courts deal only with real controversies between adverse parties,
they decline to hear cases where the issues are moot, or premature, or too speculative
and abstract to be ruled upon intelligently, or where the suit is collusive in character.
Test cases are not necessarily improper, provided real issues are asserted by adverse
parties; and American courts are willing to give declaratory judgments, since they
include every element of a traditional case except for the appendage of a coercive
decree (Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 1933).
The judge who presides over an adjudication should be properly qualified, and he
should be impartial, which, among other things, means that he should have no direct,
pecuniary interest in the outcome (Tumey v. Ohio, 273 U.S. 510, 1927). Although it is
not always possible, as a general proposition it is desirable for the judge to rest his
decision on the grounds argued by the parties. If the decision is completely outside the
framework of argument and proofs presented by the parties, then their participation in
the decision loses its meaning. This is least likely to occur where the relevant rules of
law are fairly certain and well settled. There are some devices that help to achieve
desirable results in this respect, such as oral argument, reargument, and the tentative
decree accompanied by an order to show cause why it should not be made final.
Furthermore, while a decision need not necessarily be accompanied by a statement of
supporting reasons, reasoned opinions, generally speaking, are desirable and to be
preferred, since they reassure the parties that their views were given attention.

Rules of procedure

While adjudication in courts is conducted according to rather complex and technical

rules of procedure, the tendency in modern courts is toward simplicity and directness
and away from technicality. Speaking of the Federal Rules of Civil Procedure, the
Supreme Court said in Conley v. Gibson (355 U.S. 41, 48, 1957): “The Federal Rules
reject the approach that pleading is a game of skill in which one misstep by counsel
may be decisive to the outcome and accept the principle that the purpose of pleading
is to facilitate a proper decision on the merits.” Indeed, Rule 1 of the Federal Rules of
Civil Procedure provides that the rules are to be construed “to secure the just, speedy,
and inexpensive determination of every action.”

Karl N. Llewellyn, in The Common Law Tradition (1960), listed a considerable

number of factors that exert a steadying influence upon courts: law-conditioned
judges, legal doctrine, known doctrinal techniques, the responsibility for justice, the
tradition of the single right answer, opinion writing, review on a record made below,
limited issues sharpened and phrased in advance, adversary argument by counsel,
group decision making, judicial security and honesty, a known bench, general period
style, and professional judicial office. The last he regarded as the most important of
all. “The place to begin,” he wrote, “is with the fact that the men of our appellate
bench are human beings. I have never understood why the cynics talk and think as if
this were not so. For it is so. And one of the more obvious and obstinate facts about
human beings is that they operate in and respond to traditions, and especially to such
traditions as are offered to them by the crafts … they follow” (p. 53).

The limits of adjudication

Adjudication has its appropriate limits. It is not suited for the handling of problems that involve very
many parties in a fluid state of affairs. Such problems are best settled in some other way. For example,
problems involved in the allocation of economic resources are generally dealt with by methods other
than adjudication, as in the case of the processes of collective bargaining or legislation. Courts are not
equipped to exercise licensing functions, as in the awarding of transportation certificates or the
allocation of radio and television wave lengths; nor are they equipped to undertake the affirmative
direction of complex economic affairs, although they do get involved, on occasion, in connection with
such matters as bankruptcy administration and the probate of wills. Adjudication is limited to the
declaring of rights and duties and does not extend to situations and problems, such as the operation
of the railroads, where analysis in terms of rights and duties is inadequate.

Adjudication is often subjected to many criticisms. It is said that the law is too uncertain, that the
rules of evidence are too complex, that procedures seem mysterious to laymen, that legal rules are
too intricate, that litigation is too expensive and too slow, that the courts are chronically congested,
that newspaper publicity corrupts judicial processes, and that in criminal cases defendants are treated
either too harshly or too leniently. While there is some truth in all these criticisms, at least at some
times and in some places, nevertheless it can hardly be denied that there is a great deal of popular
confidence in the judiciary as being honest, impartial, and objective. The predominance of case law as
the main form of law has influenced legal education and has tended to emphasize the pragmatic
qualities of the law. Judicial review has tended to focus attention upon underlying ethical, social, and
economic values. The growth of administrative tribunals has given a broader scope and usefulness to
the processes of adjudication.

Noun

1. The formal issuing of a judgment or decision by a judge after all of the evidence has been
reviewed, and after both lawyers have made their arguments in court.

Origin

1685-95 Late Latin (adjūdicātiōn)

What is Adjudication?
Adjudication is the process by which a formal judgment or decision is made, after the
adjudicator has heard all of the arguments in the matter, and has reviewed all of the
relevant exhibits. For example, an adjudication is made upon the conclusion of a trial.

During a trial, both sides present the evidence they have available to support their
case. They also argue the reasons why their client should prevail. Once the trial is
over and all of the evidence has been submitted and arguments heard, the judge then
collects all of this information together and makes a decision based on the facts
presented.

Adjudicator

An adjudicator is what it sounds like: a person who has the authority to issue an adjudication. An
adjudicator can be anyone from a judge presiding over a court of law, to an arbitrator who was
officially appointed to settle a dispute out of court. An adjudicator can even be a judge in the Olympic
games. Essentially, the duties of the job are to preside over and judge a dispute or competition. The
adjudicator simplifies things by determining which party in a disagreement is, in fact, in the right.

Deferred Adjudication

A deferred adjudication example can be any of the following things:

An adjournment in contemplation of dismissal (ACOD)

Probation before judgment (PBJ)

Deferred entry of judgment (DEJ)

What all of these things have in common is that they are potential forms of a plea deal that may be
offered to a defendant in a criminal matter. With a deferred adjudication, the defendant must carry
out what is required of him by the court by a certain date, and in return he can plead either “guilty”
or “no contest” to the charges against him. Such requirements can include:

Probation

Community service

Drug or alcohol rehab

Despite completing these requirements and receiving a deferred adjudication, the case may not be
completely erased from the defendant’s permanent record. However, by completing the
requirements as ordered, he may be able to prevent the conviction from being recorded. He may
even be able to help his case get dismissed and/or expunged.

Some cases remain a part of the public record, even if they are dismissed. And some cases, while not
part of the public record, can be accessed by law enforcement later on, or by government officials
when completing a background check for a job candidacy. With a deferred adjudication, however, a
defendant may be able to have the case completely erased, which means that his name won’t even
turn up in these limited circumstances.

Withhold of Adjudication

A withhold of adjudication has been misinterpreted as a conviction when it is not that at all. For
example, adjudication is typically withheld by a judge if the defendant does not have any prior
convictions on his record. If the adjudication is withheld, that means the defendant is ordered to pay
sanctions, but the judge does not officially convict the defendant of the crime(s) he is being charged
with.

In some cases, the judge will issue a withhold even if the defendant does have prior convictions on his
record. Here, the charges against the defendant are not dropped because only the State Attorney’s
office can drop the charges. Instead, the case officially ends without a conviction.

This is beneficial to the defendant because he does not have to admit that he was ever convicted of a
felony on his job application because it’s true – he never was. He is also permitted to own a firearm,
and he still has access to his civil rights, like the ability to vote, the ability to serve on a jury, and the
ability to appear as a witness in another case.

Adjudication vs. Arbitration

When a dispute arises, some people prefer arbitration – settling a matter outside of court, with an
arbiter presiding – over bringing the matter to court, while others would rather do the opposite. Each
process, of course, has its own positives and negatives. Consider the following elements of
adjudication vs. arbitration that parties weigh when determining how a dispute should be handled.

Time

Arbitration typically provides a much quicker resolution than going through the court system. This is,
in part, because the courts are so overwhelmed with cases that each meeting before the court can be
months away from the last one. In addition, if arbitration turns into a legal proceeding, there is a
limited right to appeal. While this speeds up the process, it also means that there are fewer
opportunities to challenge whatever decision is made in the end.

Cost
It used to be that arbitration was far less expensive than taking the matter to court. It is still less
expensive, yes, but much of the expenses involved in a court case revolve around discovery – a
process of information gathering that has been gaining support in arbitration as well. It makes sense,
too. If you are limited in what you can appeal in a decision after arbitration, then you should be sure
that any and all evidence is brought to the forefront to support your case before that final decision is
made.

Expertise

Arbitration can be significantly more beneficial than the judicial process because when you hire an
arbiter, you are able to choose someone with specific knowledge of the industry in dispute. A judge is
appointed to a case randomly, and may not be equipped with expertise the necessary to make a fully
formed decision on the matters at hand. This is also part of the reason why appeals in arbitration are
limited. An arbiter knows the industry that he’s presiding over well enough that when he makes a
final decision, he is rarely in the wrong.

When it comes to employment, especially for contractor roles, many companies have
job applicants acknowledge that they agree to participate in arbitration if things go
south. This way, the company can push for a speedy resolution without expending
what can potentially be thousands of dollars in attorney fees and court costs.

Related Legal Terms and Issues

 Defendant – A party against whom a lawsuit has been filed in civil court, or who has been
accused of, or charged with, a crime or offense.
 Expungement – The act of blotting out, erasing, or wiping out a record.
 Sanctions – A penalty which is threatened as the result of a failure to obey the rules or the
law, depending on the situation.
 Trial – A formal presentation of evidence before a judge and jury for the purpose of
determining guilt or innocence in a criminal case, or to make a determination in a civil
matter.

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 Enforcement of decision
Enforcement of decision for the process is allowed, if the dispute is not referred to another
means of DR method for determination.

 Speedy resolution
Speedy resolution of adjudication is better than evidentiary process, such as litigation and
arbitration. The adjudicator prepares his/her decision within a shorter period. The parties are
required to undertake less preparation for the process.

 Special knowledge for dispute

Specialised knowledge for the dispute is one of the claims in adopting the process, as the
adjudicator engaged is technically knowledgeable and experienced. The process is more
appropriate for resolving disputes with technical issues.
  Cost minimization
Cost minimization of adjudication is better than evidentiary processes. It requires less
preparation and demonstrative proof by the parties and little use of expert witnesses, legal
representation, and evidence.

 Extent of disputed costs

Extent of dispute costs, whether substantial or not, appears suitable for the adjudication
process.

 Preservation of business relationship

Preservation of business relationship is one of the claims made by adjudication. Being of a
non-adversarial nature, the process creates less hostility between parties and less harm to
their business relationships.

 Confidentiality
Confidentiality of adjudication is generally assured, since the process is conducted in the
presence of the parties and the adjudicator only. Damage to the reputations and
relationships with other businesses may be avoided.

 Judicial intervention
Judicial intervention appears less in the process. No appeal mechanism is set for adjudication,
because of the temporary nature of its decision.

 Public hearing and publicity

Public hearing and publicity do not exist in adjudication, as mentioned above. Only the
adjudicator and the parties are allowed to attend meetings.

 Power imbalance / cultural difference

Addressing a power imbalance and cultural difference is not one of the main objects in
adjudication. Due to its non-adversarial nature, the process may help in dealing with the
issue.

What is Adjudication?
Adjudication generally refers to processes of decision making that involve a neutral third party with
the authority to determine a binding resolution through some form of judgment or award. [1]
Adjudication is carried out in various forms, but most commonly occurs in the court system. It can
also take place outside the court system in the form of alternative dispute resolution processes such
as arbitration, private judging, and mini-trials (see ADR). However, court-based adjudication is usually
significantly more formal than arbitration and other ADR processes. The development of the field of
alternative dispute resolution has led many people to use the term adjudication to refer specifically to
litigation or conflicts addressed in court. [2] Therefore, court-based adjudication will be the main
focus of this essay.

Adjudication is an involuntary, adversarial process. This means arguments are presented to prove one
side right and one side wrong, resulting in win-lose outcomes. In civil cases, one side/person that
believes he or she has been wronged (plaintiff) files legal charges against another (defendant). In
other words, somebody sues someone they have a legal problem with. Once this occurs, both parties
are obligated by law to participate in court-based proceedings. If the case goes to trial, each side then
presents reasoned arguments and evidence to support their claims. Once that presentation of
evidence and arguments is completed, a judge or jury then makes a decision. Appeals may be filed in
an attempt to get a higher court to reverse the decision. If no appeal is filed, the decision is binding on
both parties.[3]

Disadvantages of Court-Based Adjudication

The alternative dispute resolution movement of the1970s and 1980s was based
primarily on promoting alternatives to litigation and court-based resolution
procedures. ADR advocates argued that alternative processes such as mediation and
arbitration were more effective and constructive, among other reasons, than
litigation.[4] Though the debate over which form of justice is "better" is still ongoing,
adjudication definitely does have some negative qualities or disadvantages. Some of
the main criticisms of court-based adjudication include:[5]

 Court-based adjudication is prohibitively expensive in terms of monetary cost making it

impossible for some parties to take their complaints to a court of law.
 Control of the process is removed from the client/disputant and delegated to the lawyer and
the court.
 The decision makers lack expertise in the area of the dispute. In most courts the judges are
generalists and practically every jury is too.
 Court dockets are often overbooked, causing significant delays before a case is heard. In the
meantime, the unresolved issues can cause serious problems for the disputants.
 Litigation requires that people's problems be translated into legal issues, yet the court's
decision about those issues does not always respond to the real nature of the underlying
problem. For example, issues might be framed in terms of money, where the real issue is one
of trust and respect...emotional issues not dealt with in an adversarial process.
 In addition, courts are constrained by the law as to what solutions they can offer. When the
underlying issues are not addressed, the decision may produce a short-term settlement, but
not a long-term resolution. (See meaning of resolution).
 Adjudication results in win-lose outcomes, leaving little chance the parties will develop a
collaborative or integrative solution to the problem, unless the case is settled out of court
before the trial.
 Litigation often drives parties apart because of its adversarial, positional nature, while
effective resolution often requires that they come closer together. This polarization of the
disputants is also often accompanied by emotional distress.
 People enmeshed in litigation experience indirect costs beyond the legal fees. For example,
disruption to the functioning of one's business or progression of one's career can be just as
damaging.

Some conflicts cannot be resolved in court, because there is no court with clear
jurisdiction that is accepted by all the parties involved. This happens most often in
international conflicts when one or more parties refuse to honor the authority of any
international court (such as the International Criminal Court or the International Court
of Justice).

Advantages of Adjudication/Litigation
Though adjudication is an adversarial process, it can produce some clear benefits over
other options for dispute resolution (i.e. ADR). Proponents of adjudication argue that
the process produces more fair and consistent decisions than alternative dispute
resolution processes. In fact, ADR has been criticized as providing "second-class
justice." This allegation is based on the fact that processes like mediation have not
been institutionalized and there are no set standards of practice or rules of law upon
which they are based. On the other hand, adjudication or litigation is grounded in the
public judicial system and has a vast array of rules and regulations. There are several
advantages that adjudication advocates cite when promoting this dispute settlement
process:

 Adjudication produces an imposed, final decision that the parties are obligated to respect.
An alternative process, such as mediation, produces only voluntary agreements that can
easily fail.
 The outcomes of litigation are, without exception, binding and enforceable. Although
arbitration decisions can be binding and enforceable (with the backing of the judicial system)
this only occurs when the participating parties agree to such parameters. A party who has
not agreed to arbitrate cannot be forced to do so, or be bound by the outcome of arbitration
between other parties. With court-based adjudication, however, participation is involuntary
and all outcomes are binding and enforceable. This can be a true advantage in situations
where there is a serious lack of trust and/or respect between the parties.
 The use of court-based adjudication or litigation allows for decisions to be appealed. The
option to appeal confers multiple benefits. For example in monetary settlements, the
winning party is often willing to re-negotiate the settlement before it goes to appeal so as to
avoid full reversal and retrial. Appeals also allow the reversal of incorrect decisions.
Sometimes mistakes are made or evidence that was clearly prejudicial was allowed, thus
tarnishing what otherwise may have been a just outcome.[6]
 Public adjudication offers procedural safeguards that ensure parties due process under the
law. Among such safeguards are cross-examination, limitations on hearsay and other rules of
evidence, pre-hearing mandatory sharing of information between sides, and other statutory
and constitutional protections that fall under the umbrella of due process. Procedural
stipulations such as these help ensure that adjudicated outcomes will be fair.
 Litigated decisions are authoritative and based on precedent.
 Court-based decisions are, in theory, based on principles of the law (established norms) that
have been previously validated. This makes for consistency in how similar cases are decided
over time and better predictability regarding the range of possible outcomes.
 Court-based adjudication is institutionalized, meaning that a party with a complaint needs no
one's permission to bring a lawsuit against another party. In addition, since the courts are
funded by the government and do not rely on customer satisfaction (as do some ADR
providers), they can issue decisions that may be disliked by the parties, without fear of
reprisal in any form.
 Judges, the ultimate adjudicative decision makers, are chosen through a variety of publicly
known procedures that ensure they are qualified for the job.
 In addition, there are cases where settlement of a short-term dispute is all that is needed or
possible. (Here "settlement" is being compared to resolution which is deeper and more
lasting.) If there is no need for or no possibility of a future relationship between the parties, a
settlement of their dispute is adequate. If relationships are going to be a long-term issue,
however, resolution is preferable, when possible. When not, dispute settlement may well be
better than continued fighting, and arbitration is a way to obtain such a settlement.[7]
[1] Douglas Yarn, The Dictionary of Conflict Resolution (San Francisco: Jossey-Bass
Publishers, 1999), 5.
[2] Heidi and Guy Burgess, Encyclopedia of Conflict Resolution (Denver:
ABC-CLIO, 1997), 2. NOTE: This excerpt of the Burgess' book includes a helpful
discussion of the key differences between court-based adjudication and alternative
dispute resolution processes.
[3] Ibid.
[4] Stephen B. Golderg, Frank E.A. Sander and Nancy H. Rogers, Dispute Resolution:
Negotiation, Mediation, and Other Processes, 2nd Edition (Boston: Little, Brown and
Company, 1992), 6-8.
[5] The following bullet points were distilled from the discussion of disadvantages of
litigation in: Edward A. Dauer, Manual of Dispute Resolution: ADR Law and Practice
(Colorado Springs: McGraw Hill, Inc., 1994), 4-3-4-12.

[6] For discussion of how appeal procedures can be incorporated into private ADR
see: Edward A. Dauer, Manual of Dispute Resolution: ADR Law and Practice
(Colorado Springs: McGraw Hill, Inc., 1994), 4-16.

[7] The following bullet points were distilled from the discussion of advantages of
litigation in: Edward A. Dauer, Manual of Dispute Resolution: ADR Law and Practice
(Colorado Springs: McGraw Hill, Inc., 1994), 4-12-4-20.

Use the following to cite this article:

Spangler, Brad. "Adjudication." Beyond Intractability. Eds. Guy Burgess and Heidi
Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted:
July 2003 <http://www.beyondintractability.org/essay/adjudication>