Notice-and-Comment Judicial Decisionmaking

73 Pages Posted: 11 Dec 2008 Last revised: 15 Apr 2015

See all articles by Michael Abramowicz

Michael Abramowicz

George Washington University Law School

Thomas Colby

George Washington University Law School

Date Written: 2009

Abstract

Executive branch agencies typically use a process of "notice-and-comment" to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. In this Article, Professors Abramowicz and Colby argue that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these concerns, and could also help to constrain judges to follow the rule of law and to improve the legitimacy of the judicial process.

Keywords: notice-and-comment, judges, errors

Suggested Citation

Abramowicz, Michael and Colby, Thomas, Notice-and-Comment Judicial Decisionmaking (2009). 76 U.Chi L. Rev 965 (2009), GWU Legal Studies Research Paper No. 446, GWU Law School Public Law Research Paper No. 446, Available at SSRN: https://ssrn.com/abstract=1313901 or http://dx.doi.org/10.2139/ssrn.1313901

Michael Abramowicz (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Thomas Colby

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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