Invoked by the U.S. Supreme Court in diverse cases, the maxim nemo iudex in sua causa—no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. Despite its undoubted appeal, however, the maxim is a misleading half-truth. Sometimes rulemakers in public law do and should design institutions with a view to the principle of impartiality underlying nemo iudex. In other cases, however, they do not and should not. In many settings, public law makes officials or institutions the judges of their own prerogatives, power, or legal authority. Officials or institutions may award their own compensation, for example, or adjudicate and punish violations of rules they themselves have created. Some violations are inevitable; when there is no impartial official or institution in the picture, someone will have to be judge in his own case. In other situations, even where it would be feasible to respect the nemo iudex principle, the costs of doing so will exceed the benefits.
The upshot is that it is never sufficient to argue that a proposed institution, or a proposed interpretation of ambiguous constitutional rules or practices, would violate the nemo iudex principle. One must go on to ask whether the conflict is avoidable or unavoidable—and, if it is avoidable, whether it would be good or bad overall to avoid it.
One major class of rejoinders to the nemo iudex principle arises when the alternative decisionmaker is said to be equally biased. In the strongest versions of this argument, the claim is that for structural reasons there can be no impartial decisionmaker in the relevant domain, so that any allocation of decisionmaking authority must necessarily violate nemo iudex. “Unless we envisage a literally endless chain of appeals,” writes Jeremy Waldron in the setting of constitutional judicial review, “there will always be some person or institution whose decision is final. And of that person or institution, we can always say that because it has the last word, its members are ipso facto ruling on the acceptability of their own view.” In other settings, however, the unavoidability argument is not conceptual, but institutional. Although it may be possible, in the abstract, to allocate decisionmaking authority to an impartial institution, the incentives of the relevant political actors ensure either that no such institution will actually come into being or that impartiality will prove unsustainable in the long run.
An example involves legislative districting. The current system—in which legislators often determine the shape and composition of their own districts—represents a large-scale violation of nemo iudex. Accordingly, a popular position holds that districting should be entrusted to independent commissions. Against this argument, proponents of legislative districting often suggest that impartial districting is infeasible because it is not incentive compatible. As the districting commission must itself be created by the political system it is set up to regulate, the political actors who establish it will predictably rig its powers, procedures, and composition.
Perhaps the largest compromise of the nemo iudex principle to be found in public law is the combination of functions in administrative agencies, many of which in some way or another combine the powers of rulemaking, investigation, prosecution, and adjudication. Such agencies, in other words, may decide cases that they themselves have investigated and decided to bring, under rules that they themselves have made. Libertarian and originalist critics of the administrative state thus routinely complain that agencies act as judges in their own cause.
In the face of similar objections, James Landis argued that separating prosecutorial and adjudicative functions by lodging adjudicative power in courts alone would merely risk a different form of bias. Landis argues in effect that the insulation of the judiciary from current politics itself creates room for the operation of judges’ ideological biases—biases often formed in an earlier era—as opposed to impartial legality; hence there is no impartial institution in the picture, and the combination of functions in agencies cannot be rejected simply on the ground that it creates a risk of biased decisionmaking. Rather, one must compare the biases of all relevant institutional alternatives.
Costs and Tradeoffs
In many cases, the benefits of an impartial decisionmaker trade off against, and may be outweighed by, competing considerations. Though these tradeoffs are hardly amenable to precise analysis, rule designers cannot simply throw up their hands in the face of conceptual and empirical difficulties. A rule must be chosen, and rule designers will sometimes have substantial reasons to conclude that nemo iudex should give way.
A nearly trivial point is that the nemo iudex principle’s application is routinely constrained by cost. Where two parties are in conflict, appointing a third, impartial arbiter takes time and money. One of the reasons that officials and citizens cannot instantly obtain an impartial judicial opinion on the legal validity of their actions is that resource constraints create a queue for the use of the courts. The delay that is part and parcel of litigation arises, in part, simply because it is not feasible to create a cadre of judges of the size that would be necessary to process all cases swiftly.
Another standard tradeoff involves a conflict between the values of impartiality and expertise. As discussed earlier, in many jurisdictions legislative districting creates an institutional conflict of interest that may produce gerrymanders. One of the main defenses of the current regime is that legislative redistricting is desirable because legislators possess crucial information about relevant constituencies and their distinctive problems—information that is perhaps held in a largely tacit or experiential form, and thus cannot be easily transmitted to nonlegislative redistricting bodies. Whatever the optimal design of redistricting institutions in a given political environment, it is fatally simplistic to condemn legislative redistricting on the grounds that it violates the nemo iudex principle.
In other settings, rule designers qualify or violate nemo iudex in order to ensure the independence or autonomy of institutions. In these settings, a given institution is made judge in its own cause because allocating decisionmaking authority to a different institution creates a risk that the second institution will leverage its authority to control the first in ways that will be undesirable from a larger systemic perspective. The network of constitutional rules governing legislative salaries illustrates these tradeoffs. The Constitution authorized Congress to pay its own members a salary out of the national treasury, a choice that violates the nemo iudex principle. The Framers decided against other possibilities, such as allowing state legislatures to decide on compensation, however, because of concerns about Congressional independence. “Those who pay are the masters of those who are paid,” observed Alexander Hamilton.
Impartiality may also trade off against institutional activity levels. Where constitutional rules assign decisionmaking authority to self-interested or biased actors, the benefit may be that those actors will have greater motivation to act because they have a stake in doing so. A fallacy lurking behind the stock arguments for the nemo iudex principle is that biased action (somehow defined) is necessarily socially undesirable action. On the contrary, self-interested or biased motivation may be the spur to undertake action that happens to be socially desirable from some external perspective.
An example involves the debate over presidential self-pardons. For critics of the possibility of presidential self-pardons, nemo iudex is a deep principle of the constitutional structure, which should be read into specific provisions where possible. The critics accordingly claim that the facially unqualified language of Article II’s Pardon Clause—“The President . . . shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”—should be read as containing an implied prohibition against presidential self-pardons.
One of the main responses to this critique invokes the countervailing risk that a structural prohibition on presidential self-pardons may rule out self-pardons that would be desirable from a social point of view. The problem with the simplistic invocation of nemo iudex in this setting is that presidential self-pardons need not be entirely self-interested. This is, in effect, an invisible hand possibility theorem applied to presidential self-pardoning: the self-regarding incentives of presidents may align with the public good. A structural constraint on presidential self-pardons, on the other hand, might produce too few pardons, sacrificing social welfare on the altar of impartiality.
The Calculus of Political Risks: Rules of Thumb
If nemo iudex is a misleading half-truth, what follows? At a minimum, chanting “nemo iudex” should never be a sufficient argument; one must always go on to consider whether impartial decisionmaking is feasible and desirable in the relevant domain. Though it may not be possible to decide how to strike the balance between competing political considerations in the abstract, it may be possible to suggest some pragmatic rules of thumb for coping with the tradeoffs and identifying, in a rough-and-ready way, conditions under which nemo iudex should be either discarded or honored, and how, if at all, it should be implemented.
Rule designers will rarely face an all-out choice between impartiality, as such, and some competing value, as such. Rather they will have to adopt rules and institutions in a political context in which some other rules and institutions are already settled, and in which some protections against official self-dealing or biased decisionmaking are often built in. Where that is so, the problem facing rule designers is marginalist: the question is not whether impartiality as such is desirable; instead, the question is whether, given some extant set of institutional checks or precautions against official self-dealing, it is desirable to add further precautions. If each additional precaution produces diminishing marginal benefits and increasing costs to other values, precautions should be added just up to the point at which the marginal benefit equals the marginal cost.
As a corollary of the marginalist approach, rule designers will ordinarily do best by optimizing across all relevant values in a given domain, rather than by maximizing any one of them. On the assumption that pursuit of any one value has diminishing marginal benefits, it will usually be best to have some of each, rather than all of one and none of the other(s). This is not a conceptual claim, but a seat-of-the-pants empirical judgment about the shape of the marginal cost and benefit curves that institutional designers usually face.
In many cases, rule designers can also promote values that trade off against nemo iudex while simultaneously adjusting some other margin of institutional design to safeguard against the risks of self-dealing. Where there is a choice of alternative means by which to promote impartiality or suppress self-dealing, the nemo iudex approach—barring the decisionmaker from making decisions in which he has an interest—need not be the best solution, all things considered.
One illustration involves the authority of the houses of Congress to “judge” the qualifications of their members and to expel members. The Philadelphia Convention was concerned about the risk that cameral authority over qualifications would be abused by majority legislative factions in order to expel or otherwise oppress members of minority legislative factions—a type of group self-dealing by legislative majorities that James Madison classed as a violation of nemo iudex in Federalist No. 10. At the Convention, Madison moved that expulsion require a two-thirds vote of the chamber, an amendment unanimously adopted by the Convention with one state divided. Thus, the risk of self-dealing was addressed not by shifting decisionmaking authority to another official or institution, but by adjusting a different margin of institutional design—the voting rule for legislative expulsions (an adjustment to the threshold necessary for a biased decision).
The point generalizes. Nemo iudex arguments often assume, implicitly, that identifying a problem (the risk of self-dealing) necessarily implies a particular solution (transferring decisionmaking authority away from the biased decisionmaker). But in some institutional settings, other types of precautions or remedies are also available, and the rule should adopt the solution that produces the greatest net benefits, not necessarily the solution that strictly minimizes the risk of self-dealing.
Copyright © 2012 The Yale Law Journal Company, Inc.
Adrian Vermeule is the John H. Watson, Jr. Professor of Law at Harvard Law School.
For helpful comments, thanks to Richard Fallon, John Goldberg, John Manning, Martha Minow, Jonathan Rose, Peter Schuck, Steve Shavell, David Strauss, Mark Tushnet, and participants in the Harvard Public Law Workshop and the Harvard Law School Conference on Political Risk and Public Law. Thanks to Samantha Goldstein for excellent research assistance.
This Legal Workshop article is based on Adrian Vermeule, Contra Nemo Iudex in Sua Causa: The Limits of Impartiality, Yale L.J. (forthcoming 2012).
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