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Eloquence and ReasonCreating a First Amendment Culture$
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Robert L. Tsai

Print publication date: 2008

Print ISBN-13: 9780300117233

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300117233.001.0001

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Adjudication as Facilitation

Adjudication as Facilitation

(p.140) 6 Adjudication as Facilitation
Eloquence and Reason

Robert L. Tsai

Yale University Press

This chapter defends the cultural model of adjudication displayed in the formation of First Amendment law. This facilitative model, in which regularized judicial participation offers an alternative to the intermittent enforcement model, reorients a jurist's attention toward a different order of responsibilities: the mediation of cultural conflict, the development and management of political grammar, the cultivation of civic ideals, and the rhetorical empowerment of others. This model of constitutional interaction is compatible with the Framers' own writings on the task of judging. It also better integrates their ideas on adjudicative power with their expectations for a democratic ethos that ensures respect for fundamental rights.

Keywords:   cultural model, adjudication, facilitative model, judicial participation, jurist, constitutional interaction, Framers, adjudicative power, democratic ethos

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