Learning to Live with Unequal Justice: Asylum and the Limits to Consistency
63 Pages Posted: 18 Jan 2008
An impressive empirical study by Professors Ramji-Nogales, Schoenholtz, and Schrag has recently exposed glaring disparities in the propensities of the various U.S. asylum adjudicators to grant asylum. The disparities persist even when the potentially confounding variables are controlled. Whether the focus is on asylum officers, immigration judges, or court of appeals judges, their study verified scientifically what most actors in the system had already sensed intuitively - that in asylum cases the result often hinges as much on the luck of the draw as on the merits of the case.
The present article explores the normative implications of those findings. After a brief background section, the article identifies both the consequences and the determinants of consistency in case-by-case adjudication. It explores generically why the level of consistency matters and what forces are likely to drive it. It suggests that the principal determinants relate to numbers, the attributes of the adjudicators, the roles of the adjudicators, the available resources, and the nature of the subject matter - particularly its degrees of specialization, complexity, dynamism, emotional or ideological content, and spectrum of choice.
The article then considers possible asylum-specific policy responses. It expresses concern that policymakers will respond viscerally to the admittedly shocking disparities in asylum approval rates by attempting to "rein in" the adjudicators. The article expresses particular worry that some will propose terminating or reassigning the outliers, establishing performance evaluations, resorting more frequently to agency head review, or even imposing mandatory or suggested maximum and minimum asylum approval rates. The article urges that those temptations be resisted. There are small steps that might marginally enhance the uniformity of asylum approval rates, but the article argues that more dramatic inroads into adjudicative inconsistency would require strategies that too severely compromise decisional independence or impose other excessive costs. The article concludes that, at least in the asylum context, we shall have to learn to live with a substantial measure of unequal justice because the alternatives are worse.
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