INTRODUCTION :: Concern about so-called “judicial activism” is rampant. Despite a lack of consensus regarding precisely what the term means, those wielding it have in mind judges who overstep the bounds of their role. “Activist” judges usurp the authority of the political branches, decide issues not properly before them, and generally do more than is necessary to resolve the disputes they face. Legal scholarship has tended to reflect these concerns, with most of the debate over the proper functions of courts directed toward defining the outer bounds of the judicial power.
In contrast, what might be termed “judicial inactivism”-judges doing less than their role requires-receives little systematic attention. This is somewhat curious. A judicial failure to act-such as when a court fails to address one of the claims before it-preserves the status quo, which can be every bit as consequential as the changes to the status quo resulting from judicial action. If it is legitimate to be concerned about judicial action that exceeds proper limits, then it should be equally legitimate to be concerned about improper judicial inaction. Indeed, because a court that fails to act will generally be less obtrusive than a court that does act, perhaps judicial inactivism should receive more attention than judicial activism.
This is not to suggest that law journals are utterly bereft of articles suggesting that courts are doing less than what is (or should be) required of them. The literature concerning the processes of appellate courts, for example, consistently bemoans the fact that the appellate process no longer includes many of the features once thought integral to appellate adjudication. Courts no longer hear oral argument or issue published, precedential opinions in every case, and the opinions they do issue are as much or more the product of law clerks than the judges themselves.
These phenomena, however, are but mere symptoms of the larger problem, which is that caseloads have expanded at a rate far greater than the judiciary itself. Judges consequently have considerably less time to devote to each case than their predecessors. What has resulted might be characterized as involving multiple varieties of judicial inactivism. The systemic failure to accord cases the same level of process as in the past could be viewed as a generalized form of inactivism. At the level of the individual case, the combination of time pressure and reduced judicial engagement might result in inaction flowing from courts’ inability to recognize meritorious issues for what they are. Most dramatically, the bureaucratization and impersonalization of the process have led to an atmosphere in which it is easy to imagine judges willfully avoiding potentially meritorious issues simply because of a lack of effective mechanisms to prevent them from doing so. Overall, nearly everyone agrees the quality of appellate justice has suffered.
Reform proposals have abounded. Indeed, many of the systemic features now considered part of the problem were themselves reforms. Underlying nearly all of these reforms and proposed reforms is the idea that restoring the quality of appellate justice requires restoring to appellate judges what they no longer enjoy, namely adequate time to devote to their cases. Thus each reform effort seeks to return some of that lost time to judges, such as by directing a portion of the caseload elsewhere or shifting a portion of the process of adjudication to other courts or to non-judicial personnel.
What is largely absent from this prior work is consideration of the asserted problems and proposed reforms in light of a deeper conception of what the appellate process, or adjudication more generally, ought to achieve. This Article seeks to fill that gap. Rather than simply working on the assumption that restoring adjudicative legitimacy requires lessening judicial workloads, it first draws on prominent models of American adjudication to articulate a vision of the “adjudicative duty”-the minimal components of legitimate adjudication. Despite the distinctly different emphases of those models, they share a common conception of courts’ minimum obligations that is rooted primarily in the value each accords to party participation. This conception includes a duty to be at least “weakly responsive” to the parties’ claims, meaning that a judicial decision should squarely confront the parties’ proofs and arguments even if the court concludes the case is more properly resolved on other grounds. It also includes a strong preference for the court to provide full and candid elaboration on the reasons for its decision. None of this, it bears noting, involves a prescription that courts engage in adjudicative conduct that differs substantially from the behavior we intuitively expect from judges. We sense that courts should grapple with the contentions the parties put before them and that judicial opinions should accurately reflect that process. Thus, the value of articulating the adjudicative duty lies not in discovering new things that judges ought to be doing, but rather in revealing the theoretical underpinnings for and fundamental nature of those things we have reflexively viewed as part of the judging process.
Having identified the minimal components of legitimate adjudication, the Article next takes up the question of whether current institutional arrangements are up to the task of ensuring that courts routinely act in conformity with the adjudicative duty. The analysis reveals that previous commentators’ concerns about the consequences of modifications to the appellate process are legitimate. When appellate adjudication more closely resembled the idealized conception on which most critiques are based, it almost certainly generated consistent compliance with the adjudicative duty. This was not simply because judges had more time. Instead, it resulted from a cluster of informal mechanisms that allowed for more effective monitoring of judicial behavior and otherwise worked to discipline judges to fulfill their obligations. Many of the changes to the appellate process implemented over the last several decades have removed or impeded the effectiveness of these mechanisms. As a result, reductions in workload alone are unlikely to restore much of what has been lost.
Such a realization accordingly invites consideration of different means to reform. This Article focuses on the judicial opinion. Specifically, it takes up an account of the opinion as an example 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. The core insight underlying informational regulation is that the audience for the disclosure will, by virtue of being better informed, be better positioned to act in response to the disclosing entity’s conduct, and therefore to shape that conduct through either market or political channels. At the same time, to the extent that gathering and preparing the information for disclosure leads the disclosing entity to consider new information or to process in a different way information it already possessed, a disclosure requirement can also have more direct effects on the underlying conduct.
A moment’s reflection reveals that, although the connection has never been expressly made, judicial opinions serve as a form of informational regulation of judicial behavior. By disclosing the ostensible justifications for a court’s decision, an opinion enables the various audiences to which it is directed to monitor the court’s performance and act in response to it. At the same time, the act of writing an opinion disciplines the court to reach, or at least justify, its decision in a more systematic, logical way than would be the case were judicial decisions rendered in a less formal manner. These points are at least implicit in the literature concerning the forms and functions of opinions. Analysis of opinions in light of the developing literature on informational regulation, however, allows for more refined consideration of how opinions work to shape judicial behavior, and how today’s modified appellate process renders them less effective in doing so. That, in turn, provides a basis on which to develop refinements to the opinion device that direct adjudication toward greater compliance with the adjudicative duty.
This Article advocates one such refinement. Specifically, it suggests that the opinion format be modified to include “framing arguments”-party-generated statements of the issues before the court. The inclusion of framing arguments would better harness the informational-regulatory power of the judicial opinion to steer judicial behavior toward greater compliance with the adjudicative duty. Judges required to justify their decisions in the shadow of the parties’ characterizations of the dispute before the court would be more likely not only to justify, but also to reach those decisions in an appropriately responsive manner. At the same time, the various audiences to which opinions are directed could more easily monitor the extent to which judicial decisions meet the requirements of the adjudicative duty. In short, while not a cure-all, the use of framing arguments would better align the informational-regulatory aspects of opinions with the overall goals of the regulatory regime.
The balance of this Article proceeds as follows: Part II provides a brief overview of the dominant models of American adjudication, extracts from them a conception of the adjudicative duty, and outlines what the duty demands from judges. Part III explores the traditional constraints that operated to encourage compliance with the adjudicative duty in the appellate context and their demise in the wake of the growth of appellate caseloads and procedural changes undertaken to cope with that growth. Part IV develops a conception of judicial opinions as informational regulation, drawing on the developing literature concerning informational regulation as well as that relating to the forms and functions of judicial opinions. Finally, Part V introduces the concept of framing arguments and outlines how the implementation of such a device would operate to bring adjudication back toward greater compliance with the adjudicative duty.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital