37 Pages Posted: 14 Jul 2009
Date Written: July 13, 2009
This article discusses and evaluates several forms of accountability in the administrative law judiciary, and compares them with prevalent forms of accountability in the judicial branch. Felter argues that codes of judicial conduct, as well as formal enforcement mechanisms, work together to maintain a balance of independence and accountability in the administrative law judiciary. The article analyzes the "right kinds" of accountability as distinguished from the "wrong kind" of accountability, i.e., political accountability. The article maintains that decisional independence is the cornerstone of any properly functioning adjudication system. The price of decisional independence is accountability to concepts and mechanisms other than the political system. The article maintains that the first mechanism of accountability for all judicial and quasi-judicial officers is the requirement of "reasoned elaboration," which is the prerequisite to second form of accountability, judicial review. The next mechanism is accountability to the relevant code of judicial conduct. The article discusses and analyzes appropriate and inappropriate judicial performance evaluations. It distinguishes developmental evaluations (for the purpose of performance improvement, but not to affect pay or employment status) from judgmental evaluations. Developmental evaluations are sometimes in the form of anonymous surveys of practitioners and litigants, peer review quality assurance processes and/or both. Judgmental evaluations, which often are legally required and can affect pay and employment status, can be evaluations by a supervisory judge or by a performance commission. The article concludes with an argument against political evaluations of judges because these evaluations are generally based on the wrong reasons, e.g., the political clamor of the day.
Suggested Citation: Suggested Citation
Felter, Edwin L., Accountability in the Administrative Law Judiciary: The Right and the Wrong Kind (July 13, 2009). Denver University Law Review, Vol. 86, No. 1, 2008. Available at SSRN: https://ssrn.com/abstract=1433284