Soft Adjudication

Abstract

We are told we have entered a “post-truth” age characterized by “alternative facts.” This Article explores the potential for legal culture to serve as a resource for countering this troubling development in political culture. It does so by identifying and exploring the phenomenon of soft adjudication: the practice of making formal, but non-binding, findings about past events. Soft adjudication is in some ways similar to ordinary adjudication. Like courts, soft adjudicators pass judgment on an event; they gather evidence and receive submissions from interested parties; and they serve as neutral arbiters. But the decisions of soft adjudicators differ in one crucial respect: they lack the power to create or enforce obligations. They cannot punish wrongdoers or force them to pay compensation. Instead, their decisions seek to tell the truth about the past, typically examining traumatic events like police killings, institutional abuse, political scandals, and mass atrocities. Examples of soft adjudicators include special inquiry commissions, administrative agencies, ombudsman systems and inspectors-general, and truth commissions.

The Article calls attention to soft adjudication’s distinctive strengths. For critics, the inability to create or enforce obligations renders soft adjudication futile or, at best, a regrettable second-best response to wrongdoing and failures. In fact, soft adjudication is powerful precisely because it cannot tell people what to do. Because they do not purport to impose obligations, soft adjudicators can seek the truth about an event relatively unconstrained by the procedural restraints of civil and criminal litigation. In doing so, they help to achieve accountability for wrongdoing, affirm the dignity of victims, and aid societies in learning from past mistakes. Bringing together a wide range of examples, the Article examines choices and constraints in the design of soft adjudication institutions.