Remedying Judicial Inactivism: Opinions as Informational Regulation
60 Pages Posted: 28 Aug 2006
This article continues the exploration of what I have termed "judicial inactivism" - the possibility that judges might sometimes fail to perform the minimum requirements of their role. That task, of course, requires consideration of what those minimum requirements might be. To what extent, for example, are courts subject to a duty to adjudicate not merely the cases before them in a broad sense, but also to resolve the precise claims and arguments that the parties put before them on the terms that the parties have done so?
The article first draws on my prior work to outline some of the components of these minimum requirements, which I have termed the "adjudicative duty." It then explores the extent to which the current structures and processes of appellate courts facilitate fulfillment of that duty. It concludes that many of the traditional constraints that encouraged appellate courts to comply with the adjudicative duty are no longer effective, due in large part to modifications made in response to the demands of rising caseloads.
The article next develops a conception of judicial opinions as a mechanism of "informational regulation," a term used to describe regulatory processes that operate through the required disclosure of information rather than through more traditional command-and-control mechanisms. That analysis suggests that the format of opinions could be modified so as to encourage judicial behavior that is more consistent with the adjudicative duty.
The article finally proposes one such modification. Specifically, I suggest that opinions include "framing arguments" - party-generated statements of the issues before the court. Judges required to justify their decisions in the shadow of the parties' characterization of the dispute, I argue, would be more likely not only to justify, but also to reach those decisions in a manner that is responsive to the parties' arguments, and therefore more consistent with the adjudicative duty. The use of framing arguments would also encourage greater transparency in the judicial decision making process, thereby making it easier for the various audiences to which judicial opinions are directed to monitor courts' behavior.
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