Notice-and-Comment Judicial Decisionmaking

Michael Abramowicz & Thomas B. Colby

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In this Article, we propose that courts should make draft opinions available to the public for comment (typically by posting them on the Internet) before issuing them in final form.  This proposal is not as wacky as it might first sound. A variant, in which draft opinions are distributed to the parties before oral argument, is already practiced in some California and Arizona courts. That approach allows input only from the parties, however, and it may not always be feasible for litigants to offer a sufficiently developed critique of a tentative opinion in response to questions at oral argument. We propose that the general public be invited to comment in writing on draft opinions. The practice would thus be similar to one routinely employed by another branch of government: notice-and-comment rulemaking by administrative agencies.

Judicial opinions do, after all, make law; they articulate legal rules that are controlling not only on future courts, but also on other branches of government. Judicial opinions also operate as rules of conduct for the public at large, to be followed by individuals and entities seeking to comply with the law.  In Justice William Brennan’s words, “While individual cases turn upon the controversies between parties, or involve particular prosecutions, court rulings impose official and practical consequences upon members of society at large.”1 That is to say, judicial opinions functionally make law.

But in many ways, the judicial process is not a particularly good method of making law. Judges make broad, generally applicable rules in the course of resolving narrow, often quirky disputes between individual parties. And the judges make those broad rules based typically only on input from the parties, who may have an idiosyncratic view of the issues, or who may be affected by the resolution of the issues only in peculiar ways, or who simply may not be represented by particularly able counsel.

This presents interrelated fairness and functional concerns. As for the fairness concerns, third parties are bound by the decision in an appellate case in which they had no opportunity to participate. Indeed, they may not even have known about the case at all. Yet once the opinion is issued, it is binding on them; it is too late for them to complain about it or challenge it. In a real sense, every appellate case is a de facto class action, insofar as it determines the rights and responsibilities of many persons or entities who are not named parties in the case. Yet those “absent class members” frequently are not adequately represented by the parties, nor do they have a right to notice and the opportunity to be heard, or to “opt out” of the litigation so as to avoid being bound by it. They are stuck with it; they had no say in the shaping of the rules that now bind them.

As for the functional concerns, determining the rights of the many on the basis of a lawsuit between the few can produce bad results. For one thing, if one or both of the parties’ lawyers happen to be not particularly competent, or are venturing beyond their area of expertise, then they may not give the court the best information and assistance in formulating the proper rule. Especially if one lawyer is much better than the other, the court may get a skewed sense of what the law really is and what the best decision should be.

And it is not just bad lawyering that can produce bad rules. Sometimes it is good, clever lawyering that does so. Excellent attorneys serving their clients well are often inclined to ignore or downplay information about the negative effects of a particular rule on other parties.

By the same token, establishing broad rules in narrow contexts can lead to rules that appear to make perfect sense as applied to the facts at bar, but are broad enough to cover other dissimilar situations in which they make much less sense.  “Hard cases,” as Holmes said, “make bad law.”2 Psychological research shows that people form their first impressions of an issue based on the context in which they first confront it (in the case of judges, from the facts of the case at bar), and they have an ingrained tendency to overestimate the extent to which those circumstances are representative of the issue. Thus, judges often mistakenly place too much emphasis on the particular facts of the instant case and end up formulating a suboptimal general rule.

Finally, and relatedly, our current litigation process is a problematic means of making law because judges frequently make mistakes, or include ill-advised statements, in opinions. Sometimes, that is the result of bad lawyering—of the parties not steering the court in the right direction. Other times, it stems from the fact that judges often reach beyond the facts, authorities, or arguments presented in the briefs. Studies have shown that typically a full half or more of the cases relied upon by appellate courts in their opinions were never cited by the parties. And courts will sometimes even decide a case on the basis of an entire legal issue never raised or addressed by the parties at all.

When they go off on their own, or when they receive substandard briefs, judges may misconstrue precedents, or fail to cite controlling authorities, or use loose language that has broad implications for other situations that they did not even think about, thus imposing unforeseen negative consequences. Of course, there are existing mechanisms in our legal system—such as amicus briefs and rehearing petitions—that seek to ameliorate these concerns.  But they are only partially successful.

Amicus briefs help to address the concerns of third parties, but in the general mine of cases, there are serious limits to the informational value of amicus briefs, particularly their ability to inform the court of adverse consequences of its preferred course of action. The fact that the public has a chance to participate as amici curiae is of limited value because (1) amicus participation is costly and generally available only to well-funded and organized interests, and (2) amicus briefs—just like the parties’ briefs—must be filed in advance of the court’s drafting its opinion. Because the court may end up resolving the case in unanticipated ways, or employing unanticipated language, it can catch affected third parties by surprise. One often cannot know how (or even if) one will be affected by a judicial opinion until it is published—at which point, under our current system, it is too late to object.

By the same token, rehearing petitions can be used to inform the court of problems with its written opinion.  But the rehearing mechanism provides no opportunity for affected third parties to object; only the parties can petition for rehearing. And in any event, cases in which rehearing makes a difference are few and far between. In our legal system, rehearing simply is not granted except in truly extraordinary circumstances. It appears that judges become psychologically invested in their final opinions and are extremely resistant to making changes. To amend an opinion after it has become final—after the judges have fully committed to it in public without reservation—may appear to be a little too close to a public confession of ignorance or sloppiness for the judges’ comfort. Once they have gone on record with their views, judges appear to convince themselves that their initial opinion was correct, and therefore rationalize away any contrary evidence or argument raised in a petition for rehearing—evidence or argument that might actually have led them to a different result (or at least a different rationale) had they been aware of it and forced to grapple with it at a time when their minds were still open and they had not yet made a final public commitment to a particular outcome.

Notice and comment would allow the parties to inform the court of mistakes or omissions in its opinion—after the opinion has been written, but before it is issued in final form. When the parties draft their briefs, they do their best to predict what the court is going to think, and then try to address what they imagine will be the court’s concerns.  But it is hard to read the judges’ minds, and the judges will often go off in directions that even the best lawyers never anticipated.  If the court misconstrues facts on which the parties had not focused, or decides issues that the parties had not briefed, or relies on authorities that the parties had not confronted, notice and comment gives the parties the meaningful opportunity that they currently lack to review the opinion carefully, to raise objections, and to try to steer the court in the right direction.

As importantly, notice and comment also provides a low-cost opportunity for nonparties who could be affected by the opinion to call information or unanticipated consequences to the court’s attention: to inform the judges of how the opinion might have a negative impact in other situations that they may not have recognized; to help the judges to rephrase overly broad or vague statements and avoid unnecessary and potentially harmful dicta; to challenge dubious conclusions; to inform the court of overlooked authorities; and the like.

Under a notice-and-comment system, interest groups and other organizations could peruse tentative opinions to look for language that might be problematic to them.  They might even set up automatic searches of online databases to flag tentative opinions that might be of interest. Law professors and lawyers could identify and discuss important tentative opinions at conferences and through online discussions on blogs or listservs.  Bar association sections could circulate potentially important tentative opinions to their members.  The Solicitor General’s office could systematically review tentative opinions to see whether they impact the federal government’s interest.  And then all of these groups could file comments, passing their expertise and concerns on to the court while there is still time to do something about it.

Notice and comment could thus help to legitimate the judicial system in the eyes of the public. Studies have shown that the public’s perception of the legitimacy of judicial decisions turns on whether affected parties have an adequate opportunity to participate in the proceeding and whether the public believes that the court “gets the kind of information it needs to make informed decisions.”3 In addition, public perceptions of legitimacy turn in part on whether those who are affected feel that they have an adequate opportunity to correct errors made by the court.4 A notice-and-comment system would give parties and the public their only opportunity to respond to the specific reasoning and language that judges have tentatively selected.

It could also help to constrain judges to follow the rule of law. As one judge has put it, “You can’t stand there as somebody is taking the opinion apart, and rightly so, and then send out the same opinion. If the criticism is valid, it forces us to address it.”5 A notice-and-comment requirement can force or at least encourage a judge to confront more directly overlooked arguments or weaknesses in the opinion.

It might be argued that by the time that judges issue a tentative opinion that they open to public comment, they are so cognitively committed to it that they will latch onto any imaginable strategy for defending their original arguments, which in turn suggests that the public comments would come too late to have a genuine constraining effect. In most contexts, sometimes including the administrative one, making a change in response to a comment carries a connotation of embarrassment—an admission of error—and gives the impression of a weak mind.  Judicial reputation may, however, be different. To a substantial degree, the ideal judicial reputation is one of “impartiality and open-mindedness.”6 A judge’s decision to make changes on rehearing—after having made a public and final commitment to a particular position as the “correct” one—might make the judge appear weak and incompetent. But a judge’s willingness to amend a tentative opinion on the basis of informative comments might well be seen as a sign of genuine impartiality and as proof that the judge’s decisions are driven by the facts and the law, not by preconceptions and political commitments. Indeed, those courts that have experimented with releasing tentative opinions (to the parties) even earlier in the process—before oral argument—have found that judges are generally quite willing to make changes despite having expressed a tentative preference for a particular approach.

The most obvious costs of a system of notice and comment stem from the time devoted to the new system, including both the cost of the effort itself and the cost associated with potentially delayed decisionmaking. The additional expense, however, is likely to increase settlement in the short run. In the long run, a notice-and-comment system may well reduce aggregate costs by reducing the volume of subsequent litigation. The process seems likely to help courts tie up loose ends that they otherwise would need to address later in costly fallout litigation.

It is possible, however, that whatever litigation savings accrue from adoption of notice and comment do not compensate entirely for the time that commenters and judges will devote to the notice-and-comment process. A judge devoting more time to comments, for example, might spend less time on other aspects of each case. If this trade-off does exist, we suspect that the notice-and-comment process would still be worthwhile. One can debate how much time a judge ideally would spend crafting an initial opinion and how much time he would spend considering objections presented by the public. But the current approach, setting the latter at close to zero, does not achieve a sensible balance.

Much the same argument can be applied to litigants’ time. We would be willing to accept, for example, a reduction in the maximum brief length of one thousand words if those one thousand words (or even a smaller number) could be used instead for comments. The principle of declining marginal returns suggests that it makes sense to reallocate some litigant effort from the front end to the back end. And while our system can complement oral argument, if forced to choose, notice and comment is likely to be less time consuming for the parties and more informative for the judges.

A judicial notice-and-comment system could be considerably cheaper in the judicial context than in the administrative one. Agency officials have an affirmative obligation to respond in detail to important comments, and the courts enforce this obligation through judicial review. In theory, one could imagine that a judicial decision similarly would be vacated whenever a judge failed to address significant arguments made by a commenter. The costs of such a system, however, would be extraordinarily high. We would rely on judges’ reputational concerns to encourage genuine consideration of comments. In jurisdictions that already have programs of judicial performance evaluation, perhaps a random sample of opinions could be selected to determine whether judges sufficiently considered submissions.

Ideally, the notice-and-comment system would include a filtering process that would winnow down submissions to the most important comments. One approach would be to allow the public to rate submissions on a website. An adequate mechanism of this sort would need to include at least two features: First, there would need to be financial incentives for accurately rating comments, presumably with governmental subsidies. Second, robust mechanisms for preventing manipulation by those submitting ratings would be required.

Perhaps someday such a system could be developed. In the meantime, it is easy to imagine simple, low-tech filtering mechanisms that could be incorporated into a rollout of even a simple version of a notice-and-comment system. Each party and amicus, for example, might be permitted to submit a brief comment, strictly limited in length, perhaps even to just a couple of pages, at the end of the public comment period. This would highlight a set of comments to which a court would be expected to give particular attention. In addition (or alternatively), courts might require that parties or members of the public seeking to comment must do so through an attorney, who, in addition to being bound by strict length limitations, is required (subject to sanction under Rule 11 of the Federal Rules of Civil Procedure or its state equivalent) to sign a statement indicating that the comment is germane, important, supported by the law or the record, and not duplicative of other comments already submitted.

We recognize that the propriety of judicial lawmaking remains a subject of considerable dispute, and we suspect that our proposal might be seen to take sides in the debate, and to do so in a way that calls unseemly attention to the controversial resemblance between the modern judiciary and the explicitly regulatory arms of government. But our proposal need not be taken to embrace judicial lawmaking. Notice and comment makes sense even if one believes, as is often the case, that legal authorities do dictate a “correct” answer, and that judges should do nothing more than apply the law to particular disputes. If a judge’s job is simply to call balls and strikes, then notice and comment provides slow-motion instant replay. That is to say, the comments submitted to courts will often be of a very different nature from the comments submitted to administrative agencies. In the judicial context, the value of notice-and-comment does not lie only in its ability to inform decisionmakers of the policy implications of their proposed rulings. It lies also in its ability to inform judges of relevant cases, regulations, statutes, facts in the record, and the like, so as to help ensure that judges decide cases in accordance with the governing legal authorities—to help ensure, that is, that judges properly follow (rather than make) the law.

In any event, even those who rail against so-called “judicial activism” now generally accept that judges sometimes make law. That reality can be celebrated, or it can be lamented. (Again, we take no position here.) But it cannot be denied.  The decisionmaking process of our adversarial legal system arose in a bygone era when courts were understood only to resolve disputes by application of pre-existing, discoverable law, not to announce rules of law. In many ways, the venerable old judicial process is not well suited to the modern judicial task. We believe that it is time to consider modifying that process to incorporate from the world of administrative law a procedure that was sensibly crafted for precisely the rulemaking task that the judiciary is now generally understood to perform.

Acknowledgments:

Copyright © 2010 University of Chicago Law Review.

  1. Richmond Newspapers, Inc v Virginia, 448 US 555, 595 (1980) (Brennan concurring).
  2. Northern Securities Co v United States, 193 US 197, 400–01 (1904) (Holmes dissenting) (noting that the facts of the instant case can exert “a kind of hydraulic pressure” which “appeals to the feelings and distorts the judgment”).
  3. Tom R. Tyler, Does the American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to Authority, 56 DePaul L Rev 661, 680–82 & n 126 (2007).
  4. See Tom R. Tyler, Why People Obey the Law 137 (Princeton 2006).
  5. Mark Hummels, Distributing Draft Decisions before Oral Argument on Appeal: Should the Court Tip Its Tentative Hand? The Case for Dissemination, 46 Ariz L Rev 317, 337 (2004) (quoting Justice Thomas E. Hollenhorst) (discussing pre-argument tentative opinions in California).
  6. Republican Party of Minnesota v White, 536 US 765, 802 (2002) (Stevens dissenting).

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