The Opioid Litigation yields important insights for federalism and for remedies in complex multi-party and multi-prong cases. This sprawling set of cases underscores that essentialized ideas of a set of fixed “state” and “federal” interests do not capture the diverse and often conflicting goals of states and subunits or of the national government. Likewise, this litigation serves as a reminder of the need to reframe assumptions about the role courts ought to play when considering settlements aiming for “global peace.” Large-scale litigation is often thought to be a two-step process entailing a first decision to aggregate and a second step of either a trial or a settlement. But these forms of lawsuits do not end there. Law needs to clarify that a third step is needed because, even when interests are sufficiently homogenous to warrant aggregation at a litigation’s inception and conclusion, differences can emerge thereafter when implementing remedies. Judges should use their authority to ensure that aggregated plaintiffs continue to have access to courts during all three phases of large-scale litigation. Recognition is needed that resolutions are partial because, after liability issues have been resolved, additional information often emerges about the individuals and entities to whom remedies are supposed to flow, and readjustments may be needed in the structure and allocation of relief.
{"title":"Partial 'Global Peace': Federalism and the Long Tail of Remedies in Opioid Litigation","authors":"J. Resnik","doi":"10.2139/ssrn.3826638","DOIUrl":"https://doi.org/10.2139/ssrn.3826638","url":null,"abstract":"The Opioid Litigation yields important insights for federalism and for remedies in complex multi-party and multi-prong cases. This sprawling set of cases underscores that essentialized ideas of a set of fixed “state” and “federal” interests do not capture the diverse and often conflicting goals of states and subunits or of the national government. Likewise, this litigation serves as a reminder of the need to reframe assumptions about the role courts ought to play when considering settlements aiming for “global peace.” Large-scale litigation is often thought to be a two-step process entailing a first decision to aggregate and a second step of either a trial or a settlement. But these forms of lawsuits do not end there. Law needs to clarify that a third step is needed because, even when interests are sufficiently homogenous to warrant aggregation at a litigation’s inception and conclusion, differences can emerge thereafter when implementing remedies. Judges should use their authority to ensure that aggregated plaintiffs continue to have access to courts during all three phases of large-scale litigation. Recognition is needed that resolutions are partial because, after liability issues have been resolved, additional information often emerges about the individuals and entities to whom remedies are supposed to flow, and readjustments may be needed in the structure and allocation of relief.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128291108","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}
CIC Services did not want to give the IRS certain information required by Notice 2016-66. It and another entity instead sued in federal district court, asking the court to: (1) declare Notice 2016-66 invalid and (2) permanently enjoin the Service from enforcing the Notice. The district court dismissed the suit, finding it barred by the Anti-Injunction Act (AIA), 26 U.S.C. §7421(a), and the Declaratory Judgment Act (DJA), 28 U.S.C. §2201(a). A split Sixth Circuit panel affirmed. A closely divided Sixth Circuit denied a petition for rehearing en banc. The Supreme Court granted cert. CIC Services and its amici argue for a radical departure from the Supreme Court's settled reading of the AIA. They say the AIA’ bars only those suits brought by persons against whom the government is proceeding directly to assess or collect a tax. They say this suit seeks only to restrain the collection of information and therefore an injunction here would not restraint the assessment or collection of any tax. This brief explains why CIC Services' argument is wrong. The argument misreads history, ignores the causal relationship between information reporting and assessment, and misappropriates language in the Tax Injunction Act (TIA) to the AIA. This brief argues that the AIA bars suits that threaten the system of assessments and collections and not just suits involving a particular dispute about a particular tax. The brief supports its argument by: (1) analyzing all the earliest cases to interpret the AIA; (2) analyzing the impact of historical changes in tax administration; and (3) analyzing the crucial role of information reporting in the current system of assessment.
{"title":"Amicus Brief In Supreme Court Docket 19-930 (CIC Services v. IRS) On Anti-Injunction Act History and Application","authors":"B. Camp","doi":"10.2139/ssrn.3672481","DOIUrl":"https://doi.org/10.2139/ssrn.3672481","url":null,"abstract":"CIC Services did not want to give the IRS certain information required by Notice 2016-66. It and another entity instead sued in federal district court, asking the court to: \u0000 \u0000(1) declare Notice 2016-66 invalid and \u0000 \u0000(2) permanently enjoin the Service from enforcing the Notice. \u0000 \u0000The district court dismissed the suit, finding it barred by the Anti-Injunction Act (AIA), 26 U.S.C. §7421(a), and the Declaratory Judgment Act (DJA), 28 U.S.C. §2201(a). A split Sixth Circuit panel affirmed. A closely divided Sixth Circuit denied a petition for rehearing en banc. The Supreme Court granted cert. \u0000 \u0000CIC Services and its amici argue for a radical departure from the Supreme Court's settled reading of the AIA. They say the AIA’ bars only those suits brought by persons against whom the government is proceeding directly to assess or collect a tax. They say this suit seeks only to restrain the collection of information and therefore an injunction here would not restraint the assessment or collection of any tax. \u0000 \u0000This brief explains why CIC Services' argument is wrong. The argument misreads history, ignores the causal relationship between information reporting and assessment, and misappropriates language in the Tax Injunction Act (TIA) to the AIA. \u0000 \u0000This brief argues that the AIA bars suits that threaten the system of assessments and collections and not just suits involving a particular dispute about a particular tax. The brief supports its argument by: \u0000 \u0000(1) analyzing all the earliest cases to interpret the AIA; \u0000 \u0000(2) analyzing the impact of historical changes in tax administration; and \u0000 \u0000(3) analyzing the crucial role of information reporting in the current system of assessment.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131123106","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}
Ryan C. Black, Ryan J. Owens, Justin Wedeking, Patrick C. Wohlfarth
Psychological scholarship on personality is uniting with political science to redefine existing theories. This is clearly the case with research on judicial behavior and the U.S. Supreme Court. But if this new approach is to survive and thrive, it must employ measures equal to the task. We show how the Supreme Court Individual Personality Estimates (SCIPEs), which seek to estimate justices’ personalities by examining their concurring opinions, suffer from a number of critical deficits. Scholars should not employ them. We briefly discuss what kinds of improved personality measures scholars should use instead.
{"title":"The Multiple Hazards of Using Concurring Opinions to Estimate Personality Traits of U.S. Supreme Court Justices","authors":"Ryan C. Black, Ryan J. Owens, Justin Wedeking, Patrick C. Wohlfarth","doi":"10.2139/ssrn.3362785","DOIUrl":"https://doi.org/10.2139/ssrn.3362785","url":null,"abstract":"Psychological scholarship on personality is uniting with political science to redefine existing theories. This is clearly the case with research on judicial behavior and the U.S. Supreme Court. But if this new approach is to survive and thrive, it must employ measures equal to the task. We show how the Supreme Court Individual Personality Estimates (SCIPEs), which seek to estimate justices’ personalities by examining their concurring opinions, suffer from a number of critical deficits. Scholars should not employ them. We briefly discuss what kinds of improved personality measures scholars should use instead.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126354584","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}
Proponents of judicial elections emphasize existing First Amendment jurisprudence as well as the similarities linking publicly-elected state judges and other publicly-elected state officials. Opponents emphasize judicial campaign contributions’ corrosive effects, including their potential to unduly influence judicial outcomes. Using a comprehensive data set of 2,345 business-related cases decided by state supreme courts across all 50 states between 2010-12, judicial election critics, including Professor Joanna Shepherd, emphasize the potential for bias and find that campaign contributions from business sources to state supreme court justice candidates corresponded with justices’ pro-business votes. While Shepherd’s main findings largely withstand replication efforts, additional (and alternative) analyses introduce new findings that present complicating wrinkles to Shepherd’s strong normative claims. Findings from this study illustrate that efforts to influence judicial outcomes are not the exclusive domain of business interests. That is, judicial campaign contributions from non- (and “anti-“) business interests increase the probability of justices’ votes favoring non-business interests. As a result, critiques of judicial elections cannot properly rely exclusively on the influence of business interests. Moreover, both business and non-business interests can successfully influence judicial outcomes through campaign contributions point in different (and possibly conflicting) normative directions. On the one hand, even if one agrees that the judicial branch qualitatively differs from the political and executive branches in terms of assessing campaign contributions’ proper role, that the potential to influence judicial outcomes is available to potentially any interest group (willing to invest campaign contributions) complicates critiques of judicial elections. On the other hand, the same empirical finding also plausibly strengthens critiques of judicial elections, especially for those who view the judicial domain as distinct from other political domains.
{"title":"The Complicated Business of State Supreme Court Elections: An Empirical Perspective","authors":"Michael Heise","doi":"10.2139/ssrn.2819757","DOIUrl":"https://doi.org/10.2139/ssrn.2819757","url":null,"abstract":"Proponents of judicial elections emphasize existing First Amendment jurisprudence as well as the similarities linking publicly-elected state judges and other publicly-elected state officials. Opponents emphasize judicial campaign contributions’ corrosive effects, including their potential to unduly influence judicial outcomes. Using a comprehensive data set of 2,345 business-related cases decided by state supreme courts across all 50 states between 2010-12, judicial election critics, including Professor Joanna Shepherd, emphasize the potential for bias and find that campaign contributions from business sources to state supreme court justice candidates corresponded with justices’ pro-business votes. While Shepherd’s main findings largely withstand replication efforts, additional (and alternative) analyses introduce new findings that present complicating wrinkles to Shepherd’s strong normative claims. Findings from this study illustrate that efforts to influence judicial outcomes are not the exclusive domain of business interests. That is, judicial campaign contributions from non- (and “anti-“) business interests increase the probability of justices’ votes favoring non-business interests. As a result, critiques of judicial elections cannot properly rely exclusively on the influence of business interests. Moreover, both business and non-business interests can successfully influence judicial outcomes through campaign contributions point in different (and possibly conflicting) normative directions. On the one hand, even if one agrees that the judicial branch qualitatively differs from the political and executive branches in terms of assessing campaign contributions’ proper role, that the potential to influence judicial outcomes is available to potentially any interest group (willing to invest campaign contributions) complicates critiques of judicial elections. On the other hand, the same empirical finding also plausibly strengthens critiques of judicial elections, especially for those who view the judicial domain as distinct from other political domains.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115664745","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}
This article proposes a sociological critique of theories of political constitutionalism, which distinguish sharply between political and judicial constitutionalism and express hostility towards constitutions allowing extensive judicial control of legislation. It argues that such theories are usually undermined by a sociologically deficient account of politics. As an alternative, this article proposes a theory of politics based in a model of systemic inclusion. Using this perspective, it claims that constitutions with a strong judicial emphasis, especially where judicial functions are supported by international norms, have served, in many societies, as an effective precondition for the emergence and persistence of a relatively secure, differentiated political domain. These claims are exemplified through analysis of recent constitution‐making experiments in Russia, Kenya and Bolivia.
{"title":"The Mutation of International Law in Contemporary Constitutions: Thinking Sociologically About Political Constitutionalism","authors":"C. Thornhill","doi":"10.1111/1468-2230.12177","DOIUrl":"https://doi.org/10.1111/1468-2230.12177","url":null,"abstract":"This article proposes a sociological critique of theories of political constitutionalism, which distinguish sharply between political and judicial constitutionalism and express hostility towards constitutions allowing extensive judicial control of legislation. It argues that such theories are usually undermined by a sociologically deficient account of politics. As an alternative, this article proposes a theory of politics based in a model of systemic inclusion. Using this perspective, it claims that constitutions with a strong judicial emphasis, especially where judicial functions are supported by international norms, have served, in many societies, as an effective precondition for the emergence and persistence of a relatively secure, differentiated political domain. These claims are exemplified through analysis of recent constitution‐making experiments in Russia, Kenya and Bolivia.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"172 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124188294","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}
Faced with increasingly complex cases, the International Court of Justice has come under criticism for failing to appoint neutral experts to assist the Court under Article 50 of its Statute. After examining the limited use of court-appointed experts by the ICJ and its predecessor, the Permanent Court of International Justice, this article argues that increased recourse to expert knowledge under Article 50 would result in a delegation of the judicial function to unaccountable experts. Acknowledging the demands of technically complex cases, the article evaluates three different methods adopted by other international tribunals, under the auspices of the WTO, ECJ, UNCC, WIPO, UNCLOS and PRIME Finance. Considering the institutional specificities of the ICJ, the article concludes by advocating the adoption of a new form of pre-trial procedure involving co-operation with specialist international organisations: this could be accomplished under an amended version of the Rules, which would limit provision for expert consultation to that necessary to determine the facts pertinent to the selection and application of the rules of law necessary for the Court to perform its function in the case at hand.
{"title":"The Use of Court-Appointed Experts by the International Court of Justice","authors":"Daniel M. Peat","doi":"10.1093/BYBIL/BRU024","DOIUrl":"https://doi.org/10.1093/BYBIL/BRU024","url":null,"abstract":"Faced with increasingly complex cases, the International Court of Justice has come under criticism for failing to appoint neutral experts to assist the Court under Article 50 of its Statute. After examining the limited use of court-appointed experts by the ICJ and its predecessor, the Permanent Court of International Justice, this article argues that increased recourse to expert knowledge under Article 50 would result in a delegation of the judicial function to unaccountable experts. Acknowledging the demands of technically complex cases, the article evaluates three different methods adopted by other international tribunals, under the auspices of the WTO, ECJ, UNCC, WIPO, UNCLOS and PRIME Finance. Considering the institutional specificities of the ICJ, the article concludes by advocating the adoption of a new form of pre-trial procedure involving co-operation with specialist international organisations: this could be accomplished under an amended version of the Rules, which would limit provision for expert consultation to that necessary to determine the facts pertinent to the selection and application of the rules of law necessary for the Court to perform its function in the case at hand.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114826418","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}
In this comprehensive empirical analysis of judicial campaign finance, we find a predictive relationship between contributions to judges and judicial decisions favorable to contributors, but we also conclude that the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger partisan foundations of modern judicial elections. The Republican and Democratic Parties broker the connections between contributors and their candidates, and we argue in our work that parties, not elections, seem to be the key to money’s influence on judges.We identify broad liberal and conservative political coalitions, allied roughly with the Democratic and Republican Parties, whose collective contributions exercise systematic ideological influence on judges who receive their money. Although the Supreme Court recognized the potential for judicial bias in cases involving major campaign contributors, we find that campaign finance predicts judicial decisions not simply in the most extreme cases, but systematically along partisan lines across the range of cases. We argue, based on our findings, that parties play an indispensable, but so far underrecognized role in connecting campaign contributions and judges.Just as importantly, however, we identify a striking partisan asymmetry in judicial campaign finance between the major parties. While Republican judges respond only to campaign finance contributions from conservative sources and do not appear to be influenced by those from liberal sources, Democratic judges are influenced by campaign support from both liberal and conservative sources and thus are uniquely cross pressured from opposite directions. Our analysis, as a result, shows that the influence of campaign finance helps reinforce Republican conservatism and destabilize Democratic liberalism in judicial decision making, netting out in a conservative direction between the two parties.
{"title":"The Partisan Foundations of Judicial Campaign Finance","authors":"Michael S. Kang, Joanna M. Shepherd","doi":"10.2139/ssrn.2129583","DOIUrl":"https://doi.org/10.2139/ssrn.2129583","url":null,"abstract":"In this comprehensive empirical analysis of judicial campaign finance, we find a predictive relationship between contributions to judges and judicial decisions favorable to contributors, but we also conclude that the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger partisan foundations of modern judicial elections. The Republican and Democratic Parties broker the connections between contributors and their candidates, and we argue in our work that parties, not elections, seem to be the key to money’s influence on judges.We identify broad liberal and conservative political coalitions, allied roughly with the Democratic and Republican Parties, whose collective contributions exercise systematic ideological influence on judges who receive their money. Although the Supreme Court recognized the potential for judicial bias in cases involving major campaign contributors, we find that campaign finance predicts judicial decisions not simply in the most extreme cases, but systematically along partisan lines across the range of cases. We argue, based on our findings, that parties play an indispensable, but so far underrecognized role in connecting campaign contributions and judges.Just as importantly, however, we identify a striking partisan asymmetry in judicial campaign finance between the major parties. While Republican judges respond only to campaign finance contributions from conservative sources and do not appear to be influenced by those from liberal sources, Democratic judges are influenced by campaign support from both liberal and conservative sources and thus are uniquely cross pressured from opposite directions. Our analysis, as a result, shows that the influence of campaign finance helps reinforce Republican conservatism and destabilize Democratic liberalism in judicial decision making, netting out in a conservative direction between the two parties.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116763453","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}
Pub Date : 2011-03-04DOI: 10.1111/j.1468-2230.2011.00845.x
L. Barmes, K. Malleson
The gate-keeping role played by the legal profession in the judicial appointments process gives rise to the translation of entrenched group-based identity hierarchies from legal practice into the judiciary. The relationship between the composition of the legal profession and the judiciary has been almost completely unaffected by recent reforms designed to increase diversity in the composition of the judiciary. This article identifies legal and institutional defects which help to explain the failure to disrupt the reproduction of these patterns of appointment. We identify two particular defects which we call soft target radicalism and regulatory bind as important factors inhibiting change. We conclude that if the legal profession is to retain its gate-keeping role, equality law which directly regulates legal practice should be strengthened and the regulatory binds in which the Judicial Appointments Commission and other public entities are caught should be loosened.
{"title":"The Legal Profession as Gatekeeper to the Judiciary: Design Faults in Measures to Enhance Diversity","authors":"L. Barmes, K. Malleson","doi":"10.1111/j.1468-2230.2011.00845.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2011.00845.x","url":null,"abstract":"The gate-keeping role played by the legal profession in the judicial appointments process gives rise to the translation of entrenched group-based identity hierarchies from legal practice into the judiciary. The relationship between the composition of the legal profession and the judiciary has been almost completely unaffected by recent reforms designed to increase diversity in the composition of the judiciary. This article identifies legal and institutional defects which help to explain the failure to disrupt the reproduction of these patterns of appointment. We identify two particular defects which we call soft target radicalism and regulatory bind as important factors inhibiting change. We conclude that if the legal profession is to retain its gate-keeping role, equality law which directly regulates legal practice should be strengthened and the regulatory binds in which the Judicial Appointments Commission and other public entities are caught should be loosened.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127762768","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}
Many countries struggle to maintain an affordable and sustainable legal aid system. This paper describes an interactive consultation process that was organized to develop proposals for increasing access to justice while limiting costs for governments as well as for users of the legal system. During the process, some strategies were identified that are unlikely to be effective in increasing access to justice and limiting costs. The more promising strategies tend to focus on improving the entire supply chain of fair solutions for legal needs, from legal advice to settlement negotiations and court interventions. These strategies can indeed lead to savings on the legal aid budget and can improve access to justice at the same time. However, the ensuing policies are not easy to implement, because they require a form of coordination that is new for the legal sector.
{"title":"Sustainable Legal Aid and Access to Justice: A Supply Chain Approach","authors":"M. Barendrecht, Peter Van den Biggelaar","doi":"10.2139/ssrn.1387716","DOIUrl":"https://doi.org/10.2139/ssrn.1387716","url":null,"abstract":"Many countries struggle to maintain an affordable and sustainable legal aid system. This paper describes an interactive consultation process that was organized to develop proposals for increasing access to justice while limiting costs for governments as well as for users of the legal system. During the process, some strategies were identified that are unlikely to be effective in increasing access to justice and limiting costs. The more promising strategies tend to focus on improving the entire supply chain of fair solutions for legal needs, from legal advice to settlement negotiations and court interventions. These strategies can indeed lead to savings on the legal aid budget and can improve access to justice at the same time. However, the ensuing policies are not easy to implement, because they require a form of coordination that is new for the legal sector.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"34 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125612042","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}
The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are "arbitrary" or "capricious." In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a "hard look" at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are "arbitrary." This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.
{"title":"The Real World of Arbitrariness Review","authors":"T. Miles, C. Sunstein","doi":"10.2139/ssrn.1089076","DOIUrl":"https://doi.org/10.2139/ssrn.1089076","url":null,"abstract":"The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are \"arbitrary\" or \"capricious.\" In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a \"hard look\" at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are \"arbitrary.\" This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.","PeriodicalId":412430,"journal":{"name":"LSN: The Judiciary & Judicial Process (Topic)","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126206305","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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