Saturday, January 23, 2010

Judge Made Law

The Trouble with Cases

Frederick Schauer & Richard Zeckhauser
Harvard Working Paper, August 2009

Abstract: For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate asks whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we step into this debate, but not to come down on one side or another, all things considered. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely to make necessarily general policy on the basis of unwarranted assumptions about the
typic ality of one or a few high-salience cases or events. Two cornerstone concepts of behavioral decision – the availability heuristic and related problems of representativeness – explain this bias. This problem is virtually inevitable in regulation by litigation, yet it is commonly found as well in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the net advantages of regulation by ex ante rule-making against those of regulation by litigation, society must recognize that any regulatory form is less effective insofar as it is unable to transcend the distorting effect of high-salience
unrepresentative examples.

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Judicial Duty and the Supreme Court’s Cult of Celebrity

Craig Lerner & Nelson Lund
George Washington Law Review, forthcoming

Abstract: Judging from recent confirmation hearings, there is now a consensus that
Supreme Court Justices should be humble servants of the law, highly respectful toward precedent and without personal agendas of any kind. Few informed observers expect this to happen. After describing some of the institutional factors that operate to discourage adherence to the traditional ideal of judicial duty, this article proposes four statutory reforms that could help the Justices stick a little closer to the promises they are expected to make, and do make, at their confirmation hearings. First, Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully. Second, Congress should require the Court to hear at least one case certified from a circuit court (or one diversity case) for every federal question case they choose from their discretionary docket. This would reduce the temptation to assemble a docket consisting largely of interesting or high-profile cases, and encourage the Justices to grapple with more of the important but unglamorous issues vexing the lower courts. Third, Congress should forbid law clerks to draft judicial opinions, and move them to the office of the Court’s Librarian, where they would do legal research for the Court rather than for individual Justices. Truly humble and old-fashioned judges should study the precedents themselves, discuss the law with their colleagues (rather than with their handpicked votaries), and write their own opinions. Fourth, Congress should require Justices to serve part of their time on lower federal courts, as they did for the first century of the republic’s existence. Restoring “circuit riding” would give the Justices some on-going experience with playing the role of a modest judge whose decisions are subject to appellate review and who is often required to interpret and apply muddled Supreme Court opinions. If serving as a Supreme Court Justice were to become a full-time, non-delegable job with fewer opportunities for personal aggrandizement, the Justices would behave more like judges than legal celebrities, Presidents would have more incentive to appoint genuinely able people, and fewer Justices would insist on staying in the saddle past the time when they can even mount the horse.


(Nod to Kevin L)

4 comments:

Anonymous said...

is that gw lr article a joke? is celebrity really a prob?

it would seem that having congress legislate how decisions are written is just a bad idea -e.g. who would enforce the law against justices? would it make any difference anyway?

conclusion, if there really is a justice seeking celebrity (scalia), laws trying to make them more humble aren't going to do much, and likely make it worse.

--anonyman

buy nintendo dsi r4 said...

A phrase used to indicate judicial decisions which construe away the meaning of statutes, or find meanings in them the legislature never intended. It is perhaps more commonly used as meaning, simply, the law established by judicial precedent and decisions. Laws having their source in judicial decisions as opposed to laws having their source in statutes or administrative regulations.

prison rodeo said...

I humbly offer the following:

Legal Duty and the Law School's Cult of Celebrity

Abstract: Judging from recent hiring seasons, there is now a consensus that law professor should be humble servants of the law, highly respectful toward legal education and without personal agendas of any kind. Few informed observers expect this to happen. After describing some of the institutional factors that operate to discourage adherence to the traditional ideal of professorial duty, this article proposes four professional and pedagogical reforms that could help professors stick a little closer to the promises they are expected to make, and do make, at their interviews. First, law schools should require that all law review articles, including critiques and book reviews, be published anonymously. This should lead to fewer self-indulgent treatises, more coherent and judicious arguments, and more reason for future professors and students to treat the resulting analyses respectfully. Second, law schools should require professors to take part in at least one actual case in a real, live court for every long-winded footnote-festival they author. This would reduce the temptation to assemble a vitae consisting largely of interesting or high-profile theories, and encourage professors to grapple with more of the important but unglamorous issues vexing the lower courts. Third, the ABA should forbid law students from editing law reviews, instead implementing a system of single-submission and blind peer review. Truly humble and old-fashioned law profs should build upon existing work, subject their writing to the scrutiny of their colleagues (rather than that of their handpicked votaries), and let the chits fall where they may. Fourth, law schools should require faculty to serve part of their time teaching undergraduates, as they did for the first eight centuries of the university's existence. Restoring "undergraduate education" would give law professors some on-going experience with playing the role of a modest educator whose pedagogical approaches are subject to external scrutiny and who is often required to prepare impressionable twenty-two-year-olds for the soul-devouring wasteland of law school. If serving as a law professor were to become a full-time, non-delegable job with fewer opportunities for personal aggrandizement, law profs would behave more like educators than legal celebrities, law deans would have more incentive to hire genuinely able people, and fewer law professors would insist on staying in the saddle past the time when they can even mount the horse.

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