University of California Irvine, School of Law; Georgetown University Law Center
July 25, 2011
Law and Contemporary Problems, Vol. 74, pp. 1-30, 2011
UC Irvine School of Law Research Paper No. 2011-31
Georgetown Public Law Research Paper No. 11-111
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.