Many lawyers and academics lament that trial court judges spend too much time working alone in their chambers and not enough time interacting with parties and counsel. Some link this phenomenon to the rise of judicial case management. This article questions the assumption that judges must disappear from the public view in order to actively manage their cases. To the contrary, the best case management practices reconnect trial judges with lawyers and the litigants they represent, making them more visible not less. This article profiles several case management practices that, when employed properly, enhance both the visibility of the judge and the effectiveness of the pretrial process.
{"title":"The Reappearing Judge","authors":"Steven S. Gensler, L. Rosenthal","doi":"10.17161/1808.20232","DOIUrl":"https://doi.org/10.17161/1808.20232","url":null,"abstract":"Many lawyers and academics lament that trial court judges spend too much time working alone in their chambers and not enough time interacting with parties and counsel. Some link this phenomenon to the rise of judicial case management. This article questions the assumption that judges must disappear from the public view in order to actively manage their cases. To the contrary, the best case management practices reconnect trial judges with lawyers and the litigants they represent, making them more visible not less. This article profiles several case management practices that, when employed properly, enhance both the visibility of the judge and the effectiveness of the pretrial process.","PeriodicalId":281675,"journal":{"name":"LSN: Public Opinion & the Judiciary (Topic)","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126209794","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing. This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.
{"title":"Standing as Channeling in the Administrative Age","authors":"Drury D. Stevenson, S. Eckhart","doi":"10.2139/SSRN.2035108","DOIUrl":"https://doi.org/10.2139/SSRN.2035108","url":null,"abstract":"For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing. This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.","PeriodicalId":281675,"journal":{"name":"LSN: Public Opinion & the Judiciary (Topic)","volume":"204 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121526623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Tenured public officials such as judges are often thought to be indifferent to the concerns of the electorate and, as a result, potentially lacking in discipline but unlikely to pander to public opinion. We investigate this proposition empirically using data on promotion decisions taken by senior English judges between 1985 and 2005. Throughout this period the popular view was one of ill-disciplined elitism: senior judges were alleged to be favouring candidates from elite backgrounds over their equally capable non-elite counterparts. We find no evidence of such illdiscipline; most of the unconditional difference in promotion prospects between the two groups can simply be explained by differences in promotion-relevant characteristics. However, exploiting an unexpected proposal to remove control over promotions from the judiciary, we do find evidence of pandering. When faced by the prospect of losing autonomy, senior judges began to favour non-elite candidates, as well as candidates who were unconnected to members of the promotion committee. Our finding that tenured public officials can display both the upsides and downsides of electoral accountability has implications for the literature on political agency, as well as recent constitutional reforms.
{"title":"Pandering Judges","authors":"Jordi Blanes i Vidal, C. Leaver","doi":"10.2139/ssrn.1121257","DOIUrl":"https://doi.org/10.2139/ssrn.1121257","url":null,"abstract":"Tenured public officials such as judges are often thought to be indifferent to the concerns of the electorate and, as a result, potentially lacking in discipline but unlikely to pander to public opinion. We investigate this proposition empirically using data on promotion decisions taken by senior English judges between 1985 and 2005. Throughout this period the popular view was one of ill-disciplined elitism: senior judges were alleged to be favouring candidates from elite backgrounds over their equally capable non-elite counterparts. We find no evidence of such illdiscipline; most of the unconditional difference in promotion prospects between the two groups can simply be explained by differences in promotion-relevant characteristics. However, exploiting an unexpected proposal to remove control over promotions from the judiciary, we do find evidence of pandering. When faced by the prospect of losing autonomy, senior judges began to favour non-elite candidates, as well as candidates who were unconnected to members of the promotion committee. Our finding that tenured public officials can display both the upsides and downsides of electoral accountability has implications for the literature on political agency, as well as recent constitutional reforms.","PeriodicalId":281675,"journal":{"name":"LSN: Public Opinion & the Judiciary (Topic)","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124663115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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