Notice-and-comment judicial decisionmaking

University of Chicago Law Review

Volumn 76, Issue 3, 2009, Pages 965-1036

  Abramowicz, Michael ^a   Colby, Thomas B ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 71849093030     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (488)

1. See Kennedy v Louisiana, 128 S Ct 2641, 2664-65 (2008).
2. See id at 2653. The Eighth Amendment, the Court stated, "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society."
3. Id at 2649
4. , quoting Trop v Dulles, 356 US 86, 101 (1958) (plurality).
5. Kennedy, 128 S Ct at 2652.
6. See Dwight Sullivan, Supremes Dis the Military Justice System, CAAFlog (June 28, 2008), online at http://caaflog.blogspot.com/2008/06/supremes-dis- military-justice-system.html (visited Sept 1, 2009).
7. The New York Times picked up the story the following week and explained that the parties had been entirely unaware of the new military law and had failed to call it to the attention of the Justices. See Linda Greenhouse, In Court Ruling on Executions, a Factual Flaw, NY Times A1 (July 2,2008).
8. Commentators, including some with misgivings about the death penalty, were critical of the Court. See, for example, Lawrence H. Tribe, The Supreme Court Is Wrong on the Death Penalty, Wall St J A13 (July 31, 2008).
9. Professor Tom Smith observed: It appears the law finding mechanism we use to inform the Court about what the law is [is] laughably inefficient in the era of the Web and the blogosphere. The Court is supposed to be, among other things, the really deep, really well informed body on our federal law, right? Yet they missed something a blogger came up with off the top of his head. ... Is there a way that the Court could take advantage of current social technologies to dramatically improve its understanding of the relevant law in any given case? Of course there is, but I'm not holding my breath. You could, for example, post all of the briefs in wiki format, or something similar, and then sift through the results. But any procedure you could come up with could be gamed, and it seems unlikely the federal judiciary could ever bring itself to modify its procedures to really take advantage of Web 2.0 sorts of tech.
10. Tom Smith, Jurisprudence and Information, The Right Coast Blog (July 7, 2008), online at http://rightcoast.typepad.coin/rightcoast/2008/07/ jurisprudence-a.html (visited Sept 1, 2009).
11. Paul Cassell, Should the Supreme Court Take Advantage of the Web?, The Volokh Conspiracy Blog (July 9, 2008), online at http://volokh.com/posts/ 1215574584.shtml (visited Sept 1, 2009) (noting that, when he was a federal district judge, he sought to harness the "wisdom of crowds" by "circulat[ing] 'tentative' written rulings to the parties before holding oral argument," and suggesting that the Supreme Court might consider doing the same).
12. The "wisdom of crowds" is an allusion to James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations (Doubleday 2004). These ideas are not entirely new. Another blogger made a similar suggestion a few years earlier.
13. See Jason Mazzone, SupremeCourtOfTheUnitedStates.blogspot.com?, Concurring Opinions Blog (Dec 17, 2005), online at http://www. concurringopinions.com/archives/2005/12/supremecourtoft.html (visited Sept 1, 2009): The Supreme Court should operate a blog to generate input on the Court's opinions before they are published. The postings could range from limited issues ("if we decide in the petitioner's favor, is it better to remand to the lower courts?") to entire drafts of opinions and requests for comments. And in his famous administrative law treatise, Kenneth Culp Davis once suggested, without elaboration, that notice and comment be used for both administrative and nonadministrative adjudication.
14. See Kenneth Culp Davis, Administrative Law Treatise § 14.6 at 29-30 (K.C. Davis 2d ed 1980) (suggesting that the procedure be used only where new law is being created).
15. For example, in one apportionment case, despite having received briefing focusing on a technical issue, the Court apparently still made a critical technical error on the central issue in the case-an error that could have been clarified by the parties and the public had they been given the opportunity. See Paul H. Edelman, Getting the Math Right: Why California Has Too Many Seats in the House of Representatives, 59 Vand L Rev 297, 317-18 (2006)
16. (discussing United States Department of Commerce v Montana, 503 US 442 (1992), in which the Court, because it misunderstood an affidavit submitted by a government expert, used a nonsensical denominator in calculating the proper apportionment of seats in the House of Representatives among the states).
17. This phrase refers to technologies such as social networking, blogs with comments, and the like, that allow individual users to contribute to the authorship of websites. See Lisa Veasman, Note, "Piggy Backing" on the Web 2.0 Internet: Copyright Liability and Web 2.0 Mashups, 30 Hastings Commun & Enter L J 311, 314-15 (2008).
18. See Thomas E. Hollenhorst, Tentative Opinions: An Analysis of Their Benefit in the Appellate Court of California, 36 Santa Clara L Rev 1, 14-16 (1995) (chronicling the development of the Tentative Opinion Program);
19. Mark Hummels, Distributing Draft Decisions before Oral Argument on Appeal: Should the Court Tip Its Tentative Hand? The Case for Dissemination, 46 Ariz L Rev 317, 340-41 (2004) (arguing that providing a draft of the court's tentative ruling narrows the focus of parties and improves the quality of oral argument and judicial decisions). Outside of these courts, a handful of individual judges have adopted this practice on their own.
20. See Richard C. Braman, Prehearing Tentative Rulings Promote Intellectual Integrity in Judicial Opinions and Respect for the System, 49 APR Fed L 50, 50 (2002).
21. See notes 215-18 and accompanying text. At the international level, tribunals do sometimes give parties a chance to comment on a pending opinion after oral argument.
22. See, for example, World Trade Organization, Understanding on Rules and Procedures Governing the Settlement of Disputes, Art 15 ¶ 1, 33 ILM 112, 122 (1994) ("Following the consideration of rebuttal submissions and oral arguments, the panel shall issue the descriptive (factual and argument) sections of its draft report to the parties to the dispute. Within a period of time set by the panel, the parties shall submit their comments in writing.");
23. North American Free Trade Agreement (1993), annex § 1903.2 ¶ 4, 32 ILM 605, 608 ("Within 14 days of the issuance of the initial declaratory opinion, a Party to the dispute disagreeing in whole or in part with the opinion may present a written statement of its objections and the reasons for those objections to the panel."). Although this approach still falls short of what we have in mind, its existence does help to establish the plausibility of our proposal.
24. See 5 USC § 553.
25. Public comment also plays a role, albeit an informal one, in legislative decisionmaking. The text of bills pending in Congress is available to the public in searchable form on the Library of Congress's THOMAS website.
26. See THOMAS, The Library of Congress, online at http://thomas.loc.gov (visited Sept 1, 2009). And, of course, members of the public have an opportunity to contact their representatives in Congress to express support for, or concerns about, pending legislation.
27. See, for example, Write Your Representative, United States House of Representatives, online at https://writerep.house.gov/writerep/welcome.shtml (visited Sept 1, 2009). President Barack Obama has institutionalized a more formalized role for public comment in the presentment process. He has committed to making the text of bills sent to him for his signature available to the public for comment before he signs or vetoes them.
28. See Ethics, Barack Obama, online at http://www.barackobama.com/issues/ ethics/index-campaign.php (visited Sept 1, 2009) ("As president, Obama will not sign any non-emergency bill without giving the American public an opportunity to review and comment on the White House website for five days.").
29. See Part I.B.
30. See, for example, Sol Wachtler, Judicial Lawmaking, 65 NYU L Rev 1, 2 (1990) (inquiring whether lawmaking is a natural byproduct of dispute resolution, and, if it is not, whether the lawmaking role played by the courts of this country is legitimate and justified).
31. See Richard J. Pierce, Jr, Chevron and Its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 Vand L Rev 301, 308 (1988).
32. See notes 309-11 and accompanying text.
33. See notes 290-92 and accompanying text.
34. See Rebecca Love Kourlis and Jordan M. Singer, A Performance Evaluation Program for the Federal Judiciary, 86 Denver U L Rev 7, 8-9 (2008).
35. See, for example, Elliott v City of Clarksville, 2007 WL 470467, *22 (MD Tenn) ("[T]he Court still retains discretion to consider all facts presented by the parties, as well as any other facts apparent in the record that were not even addressed by the parties.");
36. Matter of Estate of Wagler, 577 NE2d 878,879 (Ill Ct App 1991) ("We hasten to point out, however, that this court may look to the record to discern facts not cited by the parties.").
37. See also Thomas B. Marvell, Appellate Courts and Lawyers: Information Gathering in the Adversary System 170-71 (Greenwood 1978) (noting that appellate judges and their clerks often read the record and rely on facts not cited by the parties in deciding appeals).
38. Indeed, one study of 112 cases decided by a state supreme court in a single year found that approximately one half of all legal authorities cited by the court were not mentioned by counsel in their briefs or arguments.
39. Marvell, Appellate Courts and Lawyers at 6, 133-36 (cited in note 20).
40. In 25 percent of those cases, none of the legal authority relied upon by the court was cited by counsel. Id at 133. A similar study of thirty Sixth Circuit cases found that only 55 percent of the authorities cited, and only 65 percent of those emphasized, by the court had been included in the briefs.
41. Id at 134-35.
42. See id at 135. Many law clerks use "the briefs hardly at all or only as a place to begin the research when writing draft opinions or memorandums. The law clerks or, increasingly, the staff attorneys do the great bulk of the research."
43. Id.
44. Adam A. Milani and Michael R. Smith give a striking example in discussing Poyner v Loftus, 694 A2d 69 (DC 1997).
45. See Adam A. Milani and Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn L Rev 245, 259-61 (2002). The case of Poyner involved a legally blind man who brought suit after he was injured when he fell from an elevated walkway.
46. See 694 A2d at 69. The DC Court of Appeals based its affirmance of summary judgment for the defendants on authorities not cited by the parties: cases from other jurisdictions articulating a common law rule that a blind person is contributorily negligent as a matter of law if he walks without a cane or guide dog.
47. See id at 72-73.
48. What the court did not realize, however, was that that old common law rule had been abrogated by statute in a number of jurisdictions, including the District of Columbia. Milani and Smith, 69 Tenn L Rev at 260-61.
49. See, for example, US S Ct Rule 24(1)(a) ("At its option, . . . the Court may consider a plain error not among the questions presented but evident from the record and otherwise within its jurisdiction to decide.").
50. See, for example, Tahara v Matson Terminals, Inc, 511 F3d 950, 955 (9th Cir 2007) ("Though the parties have not discussed § 928(c), we may affirm the district court for any reason supported by the record.") (citation and quotation marks omitted).
51. See, for example, Andrus v Charlestone Stone Products Co, Inc, 436 US 604, 607 n 6 (1978) ("Although the question of the District Court's subject-matter jurisdiction was not raised in this Court or apparently in either court below, we have an obligation to consider the question sua sponte").
52. Although courts often find an issue not raised by a party to be waived, see, for example, Marks v Newcourt Credit Group, Inc, 342 F3d 444, 462 (6th Cir 2003) (holding that, according to the Federal Rules of Appellate Procedure, an appellant waives an issue by failing to present it in his initial briefs), they can offer new arguments on behalf of issues already raised,
53. see, for example, Eldred v Reno, 239 F3d 372, 383-84 (DC Cir 2001) (noting that a court can reach beyond the parties' arguments with respect to issues before the court), and the definition of "issue" is sufficiently nebulous that courts often have considerable freedom to reach beyond what the parties contemplated.
54. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L Rev 1253, 1255-56 (2002);
55. Milani and Smith, 69 Tenn L Rev at 245, 253-59, 311 (cited in note 23).
56. 304 US 64 (1938) (abolishing general federal common law).
57. 367 US 643 (1961) (applying the Fourth Amendment exclusionary rule against the states).
58. 426 US 229 (1976) (rejecting disparate impact liability under the Equal Protection Clause).
59. 494 US 872 (1990) (rejecting disparate impact liability under the Establishment Clause).
60. See Milani and Smith, 69 Tenn L Rev at 248 (cited in note 23) (noting that "raising issues sua sponte is not an uncommon practice"). Thomas Marvell's study of state supreme court decisions found that 16 of the 112 opinions studied resolved issues not raised by the parties.
61. See Marvell, Appellate Courts and Lawyers at 122 (cited in note 20).
62. Frank H. Easterbrook, Afterword: On Being a Commercial Court, 65 Chi Kent L Rev 877, 880 (1989).
63. See Chad M. Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide, 94 Georgetown L J 121, 132 (2005).
64. Judge Posner reminds us of this in his writing, though not by example. See Richard A. Posner, What Do Judges Maximize? (The Same Thing Everybody Else Does), 3 S Ct Econ Rev 1, 10-11 (1993) (suggesting that judges, since they are in a nonprofit sector, favor increased leisure over increased compensation).
65. For a discussion of cognitive dissonance in legal decisionmaking, see Donald C. Langevoort, Behavioral Theories of Judgment and Decision Making in Legal Scholarship: A Literature Review, 51 Vand L Rev 1499, 1505-06 (1998).
66. See, for example, Arthur S. Miller, Constitutional Decisions as De Facto Class Actions: A Comment on the Implications of Cooper v. Aaron, 58 U Det J Urb L 573, 576-79 (1981);
67. Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, 40 Yale L J 161, 162 (1930) ("The reason which the judge gives for his decision is never the binding part of the precedent.").
68. Max Radin, Case Law and Stare Decisis: Concerning Präjudizienrecht in Amerika, 33 Colum L Rev 199, 210 (1933) (noting that opinions are not even legally required in most states).
69. See Peter M. Tiersma, The Textualization of Precedent, 82 Notre Dame L Rev 1187, 1190-1204 (2007).
70. See id at 1192, 1223.
71. See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 NYU L Rev 123, 128-29 (1999).
72. See id at 129-30.
73. See Tiersma, 82 Notre Dame L Rev at 1230 (cited in note 40);
74. Hartnett, 74 NYU L Rev at 133 (cited in note 42).
75. See, for example, Hartnett, 74 NYU L Rev at 126-36 (cited in note 42);
76. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L Rev 43, 44 (1993) (arguing that for nonjudicial actors, judicial opinions are merely "legal essays that provide information useful in predicting what judgments courts will enter in future controversies").
77. See also Michael C. Dorf, Dicta and Article III, 142 U Pa L Rev 1997, 2036 n 143 (1994) (collecting authorities).
78. See Hartnett, 74 NYU L Rev at 126-28 (cited in note 42);
79. Daniel John Meador and Jordana Simone Bernstein, Appellate Courts in the United States 75-76 (West 1994) ("The opinion of an appellate court is the explanation of what the court is deciding; it is not a legally operative instrument. The court's formal action is embodied in its 'judgment,' a separate document directing the disposition of the case.").
80. See Charles A. Sullivan, On Vacation, 43 Houston L Rev 1143, 1150 (2007): [I]t is increasingly common in this country to treat opinions as the operative act of the court. While judgments continue to concern the parties (both in resolving the immediate dispute and affecting future suits under doctrines of preclusion), the rest of us worry not about the judgment but about the law made in the opinion.
81. See Frank H. Easterbrook, Foreword: The Court and the Economic System, 98 Harv L Rev 4, 5-8 (1984) ("[T]oday cases are often just excuses for the creation or alteration of [societal] rules.").
82. This is especially true of the Supreme Court. See, for example, Robert Post, The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, 85 Minn L Rev 1267, 1273 (2001) (quoting Chief Justice William Howard Taft) ("The real work the Supreme Court has to do is for the public at large, as distinguished from the particular litigants before it.").
83. See Sullivan, 43 Houston L Rev at 1161 (cited in note 47).
84. Frederick Schauer, Giving Reasons, 47 Stan L Rev 633, 641 (1994). Schauer elaborates: "When a court gives a reason, it typically either calls forth a preexisting rule that encompasses this case (as well as others) . . . or, if candidly acknowledging that it is making new law, it announces a new rule that includes cases other than the one at hand."
85. Id at 640.
86. See also James Boyd White, What's an Opinion For?, 62 U Chi L Rev 1363, 1366 (1995).
87. Earl M. Maltz, The Function of Supreme Court Opinions, 37 Houston L Rev 1395, 1402 (2000). Karl Llewellyn elaborates: "In our law the opinion has . . . a central forward-looking function which reaches far beyond the cause in hand: the opinion has as one if not its major office to show how like cases are properly to be decided in the future."
88. Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 26 (Little, Brown 1960).
89. Dorf, 142 U Pa L Rev at 2037 (cited in note 45). As Dorf notes, many of the most contentious disputes among Supreme Court justices take place in cases in which the justices agree on the result but differ sharply on the rationale for the decision.
90. See id at 2037 n 145 (providing as an example R.A.V. v City of St Paul, 505 US 377 (1992)). The justices would not expend energy on those disputes if they understood only the result to make binding law.
91. Similarly, the so-called Marks rule-that "(w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds,'" Marks v United States, 430 US 188, 193 (1977) (citation omitted)-is premised on the notion that the reasons laid down in the controlling opinion have consequences for subsequent courts.
92. See Maltz, 37 Houston L Rev at 1414 (cited in note 52) (arguing that the Marks decision demonstrates the Supreme Court's willingness to establish formal legal rules for both lower courts and nonjudicial actors).
93. See, for example, Erwin Chemerinsky, Decision-makers: In Defense of Courts, 71 Am Bankr L J 109, 111 (1997) ("Whether it is in the development of common law, in the interpretation of statutes, or in enforcing the Constitution, courts frequently issue opinions that have the force of law.").
94. See also Tiersma, 82 Notre Dame L Rev at 1247 (cited in note 40) ("The language of opinions is increasingly being viewed as authoritative text, not all that different from statutes.");
95. id: In the United States, . . . most lawyers have come to think of a precedent as something to be found in the text of a majority opinion. In fact, for many American lawyers the text of the majority opinion seems to have become synonymous with the notion of precedent. The out-come of the case is almost an afterthought, something that matters only to the parties.
96. See, for example, County of Allegheny v ACLU, 492 US 573, 668 (1989) (Kennedy concurring in the judgment in part and dissenting in part) ("As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law.").
97. See, for example, 6th Cir R 206(c) ("Reported panel opinions are binding on subsequent panels.").
98. See, for example, United States v Underwood, 717 F2d 482,486 (9th Cir 1983): The Supreme Court cannot limit its constitutional adjudication to the narrow facts before it in a particular case. In the decision of individual cases the Court must and regularly does establish guidelines to govern a variety of situations related to that presented in the immediate case. The system could not function if lower courts were free to disregard such guidelines whenever they did not precisely match the facts of the case in which the guidelines were announced.
99. See also Tiersma, 82 Notre Dame L Rev at 1233 (cited in note 40) ("[L]ower courts must follow the decisions of judges above them in the hierarchy. From the perspective of the lower court judges, the word of the higher courts-in particular, the written word-is law.").
100. 358 US 1 (1958).
101. See id at 18 (holding that state officials must enforce the Supreme Court's earlier ruling in Brown v Board of Education, 347 US 483 (1954)).
102. Christopher J. Peters, Adjudication as Representation, 97 Colum L Rev 312, 361 (1997).
103. See, for example, Meir Dan-Cohen, Bureaucratic Organizations and the Theory of Adjudication, 85 Colum L Rev 1, 4-5 (1985) (exploring different models of adjudication and the potential for tension when judges, who want to create forward-looking policy, are asked for a backward-looking resolution).
104. See Flast v Cohen, 392 US 83, 94-97 (1968).
105. See Schauer, 47 Stan L Rev at 655 (cited in note 51) ("[A] court giving reasons is deciding a class of cases not now before the court, and a class of cases for which the supposed crucible of experience is missing.Thus every time a court gives a reason it is, in effect, giving an advisory opinion.").
106. See Michael Abramowicz and Maxwell Stearns, Defining Dicta, 57 Stan L Rev 953, 1044-45 (2005).
107. See Schauer, 47 Stan L Rev at 647-48 (cited in note 51).
108. See, for example, McCoy v Massachusetts Institute of Technology, 950 F2d 13, 19 (1st Cir 1991) ("We think that federal appellate courts are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings");
109. Lewis v Sava, 602 F Supp 571, 573 (SDNY 1984) ("This court need not decide whether the statement in Chadha is dicta. Even if it is, in the absence of any clear authority to the contrary, the court is obliged to follow it.").
110. See Sullivan, 43 Houston L Rev at 1183-84 (cited in note 47);
111. Maltz, 37 Houston L Rev at 1418-19 (cited in note 52) (arguing that "the lower courts have often treated dicta from the Supreme Court as controlling");
112. Dorf, 142 U Pa L Rev at 2026 (cited in note 45) (explaining that some lower courts follow the dicta of the Supreme Court);
113. Frederick Schauer, Opinions as Rules, 53 U Chi L Rev 682, 683 (1986): Fine distinctions between holding and dicta are rarely relevant; indeed, the very question of what the Court held at all becomes increasingly less important as we follow an opinion down the hierarchy. For when we are in the pit of actual application, we will discover that it is not what the Supreme Court held that matters, but what it said. In interpretive arenas below the Supreme Court, one good quote is worth a hundred clever analyses of the holding.
114. See also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U Chi L Rev 1175, 1177 (1989): Let us not quibble about the theoretical scope of a "holding"; the modern reality, at least, is that when the Supreme Court of the federal system, or of one of the state systems, decides a case, not merely the outcome of that decision, but the mode of analysis that it applies will thereafter be followed by the lower courts within that system, and even by that supreme court itself
115. See Dorf, 142 U Pa L Rev at 2027-28 (cited in note 45).
116. Richmond Newspapers, Inc v Virginia, 448 US 555, 595 (1980) (Brennan concurring).
117. See also Hart v Massanari, 266 F3d 1155, 1176-77 (9th Cir 2001) ("Writing a precedential opinion . . . involves much more than deciding who wins and who loses in a particular case. It is a solemn judicial act that sets the course of the law for hundreds or thousands of litigants and potential litigants.").
118. The exception is amicus briefs, which we discuss in Part II.A.1.b.
119. Hanna v Larche, 363 US 420, 442 (1960).
120. Parklane Hosiery Co v Shore, 439 US 322, 327 n 7 (1979).
121. Phillips Petroleum Co v Shutts, 472 US 797, 812, 820 (1995).
122. See Miller, 58 U Det J Urb L at 574 (cited in note 38). Chief Justice Fred Vinson once admonished lawyers arguing before the Supreme Court to remember that they represent "not only [their] clients, but tremendously important principles upon which are based the plans, hopes and aspirations of a great many people throughout the country," and thus that they are, "in a sense, prosecuting or defending class actions."
123. Id.
124. Consider Amy Coney Barrett, Stare Decisis and Due Process, 74 U Colo L Rev 1011, 1011-12 (2003) (arguing that a rigid application of stare decisis can deny due process to litigants who are bound by a prior case in which they had no opportunity to participate).
125. Our adversarial system is, of course, premised on the assumption that the opposite is true. See Frederick Schauer, Do Cases Make Bad Law?, 73 U Chi L Rev 883, 883 (2006) ("Moreover, so it is said, making law in the context of deciding particular cases produces lawmaking superior to methods that ignore the importance of real litigants exemplifying the issues the law must resolve.").
126. Marvell, Appellate Courts and Lawyers at 27 (cited in note 20).
127. See Neal Devins and Alan Meese, Judicial Review and Nongeneralizable Cases, 32 Fla St U L Rev 323, 326-28 (2005).
128. See Schauer, 47 Stan L Rev at 656 (cited in note 51) (noting that appellate cases involving particular circumstances can generate rule-based opinions "whose array of results is, on balance, more detrimental than the good produced by the right result in the original case, such that it would have been better to reach the wrong result in the original case").
129. Northern Securities Co v United States, 193 US 197, 400-01 (1904) (Holmes dissenting) (noting that the facts of the instant case can exert "a kind of hydraulic pressure" which "appeals to the feelings and distorts the judgment").
130. See also Marvell, Appellate Courts and Lawyers at 23 (cited in note 20).
131. See Kirk J. Stark, The Unfulfilled Tax Legacy of Justice Robert H. Jackson, 54 Tax L Rev 171, 173 (2001).
132. See also Martin D. Ginsburg, The Federal Courts Study Committee on Claims Court Tax Jurisdiction, 40 Cath U L Rev 631, 634-35 (1991) ("[P] ractitioners cannot expect, and surely, as rational men and women, practitioners ought not to hope, that the Supreme Court will take too many tax cases. It is, history teaches, not a job the high court performs superbly.");
133. Charles L.B. Lowndes, Federal Taxation and the Supreme Court, 1960 Sup Ct Rev 222, 222 ("It is time to rescue the Supreme Court from federal taxation; it is time to rescue federal taxation from the Supreme Court.").
134. See, for example, William A. Klein, Tailor to the Emperor with No Clothes: The Supreme Court's Tax Rules for Deposits and Advance Payments,41 UCLA L Rev 1685, 1688 (1994): What is it about the legal system that leads judges at the highest level, with the finest support from the smartest and best-trained of clerks and the elite players in the adversary system, to demonstrate such ignorance of, or disdain for, sound tax principles-principles that, once recognized, should be noncontroversial?
135. See, for example, Stark, 54 Tax L Rev at 256 (cited in note 80) (arguing that "the Supreme Court's role in the tax field" is characterized by "the cost, chaos, and additional litigation that often follow its decisions");
136. Laura Saunders, The Agents Run Riot, Forbes 144 (Nov 9, 1992) ("[W]hat has the tax world up in arms is the absurdly broad language the justices used to rule in the government's favor....[T]he upheaval has created much uncertainty.").
137. See Bernard Wolfman, The Supreme Court in the Lyon's Den: A Failure of Judicial Process, 66 Cornell L Rev 1075, 1075 (1981): Hardly an enclave of tax experts, the Supreme Court relies for illumination and protection on the validity of a basic assumption about the adversary process: that strong and effective advocates bring the issues into focus and marshal the strongest arguments for each side, thus educating the Court and helping it reach the best result.
138. See id at 1076 (arguing that botched Supreme Court decisions "cast[] some doubt on the adversary system itself as a reliable vehicle for attaining justice in tax disputes and for producing sound and authoritative interpretations of the Internal Revenue Code").
139. See, for example, Klein, 41 UCLA L Rev at 1725 (cited at note 81) (noting that the parties in tax cases focus on arguments based on existing precedents that will win the case; they have little incentive to offer more comprehensive and critical analysis).
140. See Wolfman, 66 Cornell L Rev at 1091-92 (cited in note 83).
141. See generally Schauer, 73 U Chi L Rev 883 (cited in note 75).
142. See also Devins and Meese, 32 FIa St L Rev at 328 (cited in note 77).
143. See Devins and Meese, 32 Fla St L Rev at 331-34 (cited in note 77).
144. For a comprehensive overview, see Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts:A Meta-analysis, 20 Just Sys J 219, 243 (1999).
145. See, for example, Gregory C. Sisk and Michael Heise, Judges and Ideology: Public and Academic Debates about Statistical Measures, 99 Nw U L Rev 743, 778 (2005) ("[T]hat ideology is a factor in judging, at least sometimes for some categories of cases and at least to some degree, has long been asserted by scholars and is further verified in recent studies.").
146. Federalist 78 (Hamilton), in The Federalist Papers 521, 523 (Wesleyan 1961) (Jacob E. Cooke, ed).
147. Planned Parenthood v Casey, 505 US 833, 865 (1992).
148. See, for example, Maimón Schwarzchild, Keeping It Private, 44 San Diego L Rev 677,687 (2007) (arguing that the "problem of judges as lawmakers in a democratic society is a familiar one. Judges are not readily answerable to the electorate. Hence, judicial lawmaking is in tension with democratic legitimacy, if not at odds with it.").
149. See, for example, Tom R. Tyler, Does the American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to Authority, 56 DePaul L Rev 661, 692 (2007).
150. See Richard H. Fallon, Jr, Legitimacy and the Constitution, 118 Harv L Rev 1787, 1827-33 (2005).
151. See, for example, Tyler, 56 DePaul L Rev at 663 (cited in note 94).
152. See id at 664 (identifying factors that the public considers when evaluating the fairness of procedural justice).
153. See also Tom R. Tyler, Why People Obey the Law 163 (Princeton 2006): One important element in feeling that procedures are fair is a belief on the part of those involved that they had an opportunity to take part in the decision-making process. This includes an opportunity to present their arguments, being listened to, and having their views considered by authorities. Those who feel that they have had a hand in the decision are typically much more accepting of its outcome, irrespective of what the outcome is.
154. See Tyler, 56 DePaul L Rev at 664-67, 673-75 (cited in note 94);
155. Marvell, Appellate Courts and Lawyers at 25 (cited in note 20).
156. See Miller, 39 San Diego L Rev at 1303 (cited in note 28).
157. See also Milani and Smith, 69 Tenn L Rev at 284 (cited in note 23): Sua sponte decisions work against such litigant and societal acceptance... because the losing party will feel that he has not been given a fair opportunity to present his case when he had neither notice of, nor the chance to present[] arguments on[,] the issue that the court found determinative. Indeed, one study found that even winning lawyers feel that a court acts illegitimately when it decides in their favor based on an issue not raised by the parties.
158. See Marvell, Appellate Courts and Lawyers at 125 (cited in note 20).
159. See Oldfather, 94 Georgetown L J at 172 (cited in note 35). Chad Oldfather adds that the failure to explain why the parties' arguments were rejected undermines "adjudicative legitimacy on a more global level" by failing to assure the public that future litigants will have thenarguments taken seriously.
160. Id.
161. Christopher Peters has argued that the active, participatory role of the parties in choosing the issues to raise and the authorities upon which to rely-and thus in shaping the court's decision-confers legitimacy on the courts with respect to the participating parties.
162. See Peters, 97 Colum L Rev at 347 (cited in note 60). He further argues that the common law method, pursuant to which stare decisis binds subsequent litigants only to the extent that they are similarly situated to the parties in the precedential case, such that their interests were adequately represented by the original parties, confers legitimacy on the courts with respect to third parties.
163. See id. As Peters himself recognizes, however, his theory of judicial legitimacy depends upon three necessary conditions: first, that the court's decision is actually the result of the choices of the parties as to which facts, issues, and authorities to emphasize; second, that a "precedential decision binds only those future parties who are similarly situated to the original litigants in every material way"; and third, that "the conduct of the parties in litigating the original precedential opinion meets a threshold standard of adequacy."
164. Id at 375-76 (emphasis omitted). The failure to meet any or all of those conditions, explains Peters, undermines the judiciary's claim to legitimacy.
165. See id. Likewise, he argues, courts undermine their legitimacy whenever they "attempt to articulate general rules that will govern future cases," id at 400, 402, 410, and whenever they issue broad decisions in constitutional cases "of tremendous import," id at 412.
166. As the foregoing discussion illustrates, Peters's necessary conditions are often not met in the real world of contemporary judicial decisionmaking, and courts often engage in the very practices that he identifies as undercutting his defense of their legitimacy.
167. See Tyler, 56 DePaul L Rev at 680-82, 681 n 126 (cited in note 94).
168. See, for example, Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 NYU L Rev 461, 492-503 (2003) (arguing that concerns about government arbitrariness are central to the constitutional structure and to the legitimacy of administrative agencies);
169. Scalia, 56 U Chi L Rev at 1178 (cited in note 66) (arguing that the same is true of the judiciary).
170. See Part I.A.
171. See Marvell, Appellate Courts and Lawyers at 47 (cited in note 20) ("Lawyers in normal appeals often incompletely inform the courts; yet the cases are decided and law is made.").
172. See note 76 and accompanying text.
173. Irving Kaufman, The Court Needs a Friend in Court, 60 ABA J 175, 175 (1974).
174. See also Marvell, Appellate Courts and Lawyers at 28 (cited in note 20) ("[A]ppellate judges often say that the quality of their work depends on greatly on the quality of counsel's work.").
175. Marvell, Appellate Courts and Lawyers at 29 (cited in note 20) (basing this conclusion on private interviews and published writings of appellate judges). The "great majority" of law clerks also find the parties' briefs "terrible, worthless," and "abhorrent."
176. Id.
177. See note 22 and accompanying text.
178. See Marvell, Appellate Courts and Lawyers at 37-40 (cited in note 20) (concluding that there is a "strong possibility that the adversary system operates substantially in favor of lawyers who do a better job").
179. On the other hand, the fact that some parties can afford better, and more, lawyering than others can create imbalances that undermine the fairness of even the dispute resolution function of the courts. See, for example, David Luban, Lawyers and Justice 50-58 (Princeton 1988).
180. See Victor E. Flango, Donald C. Bross, and Sarah Corbally, Amicus Curiae Briefs: The Court's Perspective, 27 Just Sys J 180,181 (2006).
181. See also Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism, 27 Rev Litig 669, 674 (2008) ("Insights offered by amici curiae tend to extend beyond the interests of the parties to the litigation ... and are generally aimed at protecting the interests of individuals or organizations who are absent from the proceedings but whose interests are potentially jeopardized by the litigation.");
182. James F. Spriggs II and Paul J. Wahlbeck, Amicus Curiae and the Role of Information at the Supreme Court, 50 Polit Rsrch Q 365,367 (1997): To fulfill their policy goals, the Court's members require information about the potential consequences of alternative decisions. Since litigants are more likely to be narrowly focused on the case outcome, the broader policy ramifications of the decision may not be discussed in their briefs. In contrast, amicus briefs may provide this information and help the Court's members understand the policy implications of their rulings. (citation omitted).
183. Luther T. Munford, When Does the Curiae Need an Amicus?, 1 J App Prac & Process 279, 281(1999).
184. Id.
185. See Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 Fla St U L Rev 315, 338-47 (2008);
186. Peters, 97 Colum L Rev at 417-418 (cited in note 60).
187. Garcia, 35 FIa St U L Rev at 340 (cited in note 115).
188. See US S Ct R 37.1 ("An amicus curiae brief which brings relevant matter to the attention of the Court that has not already been brought to its attention by the parties is of considerable help to the Court.");
189. Simard, 27 Rev Litig at 690-693 (cited in note 112) (presenting the results of a survey of federal judges that found broad agreement that amicus briefs are useful in offering legal arguments that are missing from the briefs and in focusing the court's attention on the potential impact of the decision on nonparties);
190. Flango, Bross, and Corbally, 27 Just Sys J at 187 (cited in note 112) (presenting the results of a survey of state high court judges and clerks that found that 95 percent of respondents believed amicus briefs to be useful in informing the court of policy considerations, and 75 percent of the respondents believed amicus briefs to be a useful source of social science research and data);
191. Justice Breyer Calls for Experts to Aid Courts in Complex Cases, NY Times A17 (Feb 17,1998) (quoting Justice Stephen Breyer) ("[Amicus] briefs play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions.").
192. see, for example, Brown v Board of Education, 347 US 483,494 n 11 (1954)
193. (citing psychological studies on the effects of segregation on children that were called to the attention of the Court in the Brief of Amici Curiae ACLU, et al, Brown v Board of Education, *17-18 (US filed Nov 28, 1955)).
194. See also Bruce J. Ennis, Effective Amicus Briefs, 33 Cath U L Rev 603,603 (1984) ("Amicus Briefs have shaped judicial decisions in many more cases than is commonly realized.").
195. 539 US 306 (2003).
196. see generally Consolidated Brief of Amici Curiae Lt Gen Julius W. Becton, Jr, et al, in Support of Respondents, Grutter v Bollinger, No 02-241 (US filed Feb 19,2003).
197. See Richard J. Lazarus, Advocacy Matters before and within the Supreme Court: Transforming the Court by Transforming the Bar, 96 Georgetown L J 1487,1544 (2008).
198. Marvell, Appellate Courts and Lawyers at 80 (cited in note 20).
199. See Spriggs and Wahlbeck, 50 Polit Rsrch Q at 382-383 (cited in note 112).
200. See Joseph D. Kearney and Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U Pa L Rev 743, 746-747 (2000) (noting that "well-organized interest groups will be more likely to file amicus briefs than will diffuse and poorly organized interests," and that "over-representation of well-organized interest groups through amicus filings may have an influence in the outcomes reached by courts").
201. See Peters, 97 Colum L Rev at 418 & n 372 (cited in note 60) (suggesting that liberal use of intervention and joinder can increase judicial legitimacy).
202. State procedural rules often closely resemble the federal rules, see generally John B. Oakley and Arthur F. Coon, The Federal Rules in State Courts: A Survey of State Court Systems of Civil Procedure, 61 Wash L Rev 1367 (1986),
203. and even when a state's rules appear to be nominally different, in practice state courts generally employ the same basic procedural rules as the federal courts, see Thomas O. Main, Procedural Uniformity and the Exaggerated Role of Rules: A Survey of Intrastate Uniformity in Three States That Have Not Adopted the Federal Rules of Civil Procedure, 46 Vill L Rev 311, 319 (2001).
204. FRCP 19(a).
205. See Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, 7 Federal Practice and Procedure §1604 (West 3d ed 2001). The Rules also allow permissive joinder of plaintiffs or defendants if "any question of law" common to all plaintiffs or defendants will arise in the action, but only if the claims all "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences." FCRP 20(a).
206. FRCP 24(a).
207. Id.
208. FRCP 24(b).
209. See SEC v United States Realty & Improvement Co, 310 US 434,459 (1940) (discussing the ability of a party to intervene in bankruptcy proceedings).
210. Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, 7C Federal Practice and Procedure §1911 (West 3d ed 2007).
211. See id at §§1911,1914.
212. FRCP 23(a). See also Thomas R. Grande, Class Actions in State Courts-A Tool for the Trial Advocate, 23 Am J Trial Advoc 491, 495 n 17 (2000) ("[T]he vast majority of state class action rules are modeled after Federal Rules of Civil Procedure 23.").
213. FRCP 23(a).
214. See Timothy R. Johnson, James F. Spriggs, II, and Paul J. Wahlbeck, Oral Advocacy before the United States Supreme Court Does It Affect the Justices' Decisions?, 85 Wash U L Rev 457,459 n 8 (2007) (noting that "even though oral arguments may not control the outcome of a case in terms of changing votes, they may provide key information to the Justices").
215. Id at 462.
216. Id.
217. See William H. Rehnquist, The Supreme Court 245 (Knopf 2d ed 2001) ("One can do his level best to digest from the briefs ... what he believes necessary to decide the case, and still find himself falling short in one aspect or another of either the law or the facts. Oral argument can cure these shortcomings.").
218. See, for example, Johnson, Spriggs, and Wahlbeck, 85 Wash U L Rev at 463 (cited in note 137) ("While the briefs may address almost every legal intricacy, counsel cannot always know what information the Justices want. It is only during oral arguments, then, that Justices can dis- cuss with counsel those points that pique their interests.");
219. Charles A. Rothfeld, Avoiding Missteps in the Supreme Court: A Guide to Resources for Counsel, 7 J App Prac & Process 249,252 (2005) (quoting Justice Scalia) ("I use [oral argument] to give counsel his or her best shot at meeting my major difficulty with that side of the case. 'Here's what's preventing me from going along with you. If you can explain why that's wrong, you have me.'");
220. William H. Rehnquist, Oral Advocacy: A Disappearing Art, 35 Mercer L Rev 1015,1021 (1984) (noting that, at oral argument, "[c]ounsel can play a significant role in responding to the concerns of the judges, concerns that counsel won't always be able to anticipate in preparing the briefs").
221. See, for example, Johnson, Spriggs, and Wahlbeck, 85 Wash U L Rev at 499 (cited in note 137) (concluding on the basis of an empirical examination of Justice Blackmun's notes from oral argument that "oral advocacy has a generally large and robust effect on the way in which Supreme Court Justices vote");
222. Robert L. Stern, et al, Supreme Court Practice 671 (BNA 8th ed 2002) (quoting Justice Brennan) ("Often my idea of how a case shapes up is changed by oral argument.");
223. David O'Brien, Storm Center: The Supreme Court in American Politics 282 (WW Norton 4th ed 1996) (quoting Justice Scalia) ("Things ... can be put in perspective during oral argument in a way that they can't be in a written brief.");
224. Robert H. Jackson, Advocacy before the Supreme Court: Suggestions for Effective Case Presentation, 37 ABA J 801, 801 (1951) ("I think the Justices would answer unanimously that... they rely heavily on oral presentations.... [Oral argument] is of the highest, and often of controlling, importance.").
225. See Hummels, 46 Ariz L Rev at 318 (cited in note 10) (noting that "advocates commonly enter argument at least partly guessing which issues the court finds most important, which cases the most relevant, and which arguments the most forceful");
226. Marvell, Appellate Courts and Lawyers at 78 (cited in note 20).
227. See Robert J. Martineau, The Value of Appellate Oral Argument: A Challenge to the Conventional Wisdom, 72 Iowa L Rev 1, 24 (1986) ("Realistically, one should not expect the average attorney to respond effectively to unanticipated questions, relying solely on memory, without an opportunity to reflect on either the question or the response.").
228. Jackson, 37 ABA J at 803 (cited in note 142).
229. See Marvell, Appellate Courts and Lawyers at 75 (cited in note 20).
230. See also id at 29,33-34 (noting that judges are generally disappointed in the quality of oral advocacy in their courtrooms).
231. Martineau, 72 Iowa L Rev at 16 (cited in note 144).
232. See Stern, et al, Supreme Court Practice at 729 (cited in note 142) (noting that some opinions will have "unanticipated consequences," but "obviously, counsel cannot readily identify such cases in advance of the Court's action").
233. See Marvell, Appellate Courts and Lawyers at 88,94-95,133-136 (cited in note 20).
234. See id at 19-20.
235. See Introduction. See also notes 80-86 and accompanying text (discussing tax law).
236. Consider Melvin Aron Eisenberg, Participation, Responsiveness, and the Consultative Process: An Essay for Lon Fuller, 92 Harv L Rev 410,412 (1978) (noting that the norm that an "adjudicator should explain his decision in a manner that provides a substantive reply to what the parties have to say... help[s] to satisfy the loser that the decision is not arbitrary" and "giv[es] assurance that the adjudicator has in fact attended" to "what the parties have to say").
237. See Oldfather, 94 Georgetown L J at 178 (cited in note 35) ("[M]any judges have observed that a decision that once seemed perfectly reasonable can often turn out to be considerably less so following an attempt to write a justification.");
238. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U Chi L Rev 1371,1374-1375 (1995):
239. Even when judges agree on a proposed result after reading briefs and hearing argument, the true test comes when the writing judge reasons it out on paper (or on computer).....It is not so unusual to modulate, transfer, or even switch an originally intended rationale or result in midstream because "it just won't write." See also Robert J. Traynor, Some Questions on the Work of State Appellate Courts, 24 U Chi L Rev 211,218 (1957).
240. See note 37 and accompanying text.
241. Wald, 62 U Chi L Rev at 1375 (cited in note 153).
242. See also David L. Shapiro, In Defense of Judicial Candor, 100 Harv L Rev 731,737 (1987) ("A requirement that judges give reasons for their decisions-grounds of decision that can be debated, attacked, and defended-serves a vital function in constraining the judiciary's exercise of power.");
243. Llewellyn, The Common Law Tradition at 26 (cited in note 52) (noting that a judicial opinion "serves as a steadying factor which aids reckonability," because "(i]f I cannot give a reason I should be willing to stand to, I must shrink from the very result which otherwise seems good").
244. Schauer, 47 Stan L Rev at 652 (cited in note 51).
245. See notes 89-90 and accompanying text.
246. See Part I.C.
247. See, for example, David A. Hoffman, Alan J. Izenman, and Jeffrey R. Lidicker, Docketology, District Courts, and Doctrine, 85 Wash U L Rev 681,682 (2007) (reporting the results of an empirical study of district court opinions that found that "only 3% of all orders, and only 17% of orders applying facts to law, are fully reasoned").
248. A court, for example, will often issue a summary opinion that does not fully explain why the arguments offered by a party have been rejected. See Caleb E. Mason, An Aesthetic Defense of the Nonprecedential Opinion: The Easy Cases Debate in the Wake of the 2007 Amendments to the Federal Rules of Appellate Procedure, 55 UCLA L Rev 643, 644 n 2 (2008) (noting that over 80 percent of all opinions issued by the federal courts of appeals are unpublished);
249. W. Warren H. Binford, et al, Seeking Best Practices among Intermediate Courts of Appeal: A Nascent Journey, 9 J App Prac & Process 37,84 (2007) (noting similar percentages for state appellate courts);
250. Arthur D. Hellman, The View from the Trenches: A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, 8 J App Prac & Process 141,173 (2006) ("[W]hen an opinion is designated as 'not for publication,' the panel is permitted-and indeed often encouraged-to provide only a skeletal statement of the facts (perhaps not even that) and a conclusory statement of the rationale.");
251. Chad M. Oldfather, Remedying Judicial Inactivism: Opinions as Informational Regulation, 58 Fla L Rev 743, 773 (2006) ("Not infrequently, the courts dispense with opinions altogether, simply issuing an order indicating that the lower court disposition is affirmed.");
252. Arthur D. Hellman, The View from the Trenches: A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, 8 J App Prac & Process 141,173 (2006) ("[W]hen an opinion is designated as 'not for publication,' the panel is permitted-and indeed often encouraged-to provide only a skeletal statement of the facts (perhaps not even that) and a conclusory statement of the rationale.").
253. See Part I.B-C.
254. Chevron, U.S.A., Inc v Natural Resources Defense Council, 467 US 837 (1984).
255. See Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L J 2155, 2175-2176 (1998).
256. See, for example, Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 Va L Rev 301,305 (2004);
257. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C Circuit, 83 Va L Rev 1717, 1718 (1997) (exploring the partisan behavior of the DC Circuit in environmental cases and concluding that "a judge's vote (not just the panel outcome) is greatly affected by the identity of the other judges sitting on the panel; in fact, the party affiliation of the other judges on the panel has a greater bearing on a judge's vote than his or her own affiliation").
258. See Emerson H. Tiller and Frank B. Cross, A Modest Proposal for Improving American Justice, 99 Colum L Rev 215,234 (1999).
259. See id at 216; Tracey E. George and Albert H. Yoon, Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging, 61 Vand L Rev 1,32 (2008) ("[M]ost courts have instituted procedures that result in roughly random assignment of judges to cases. And some courts have promulgated local rules mandating random assignment with the usual constraints dictated by the location of oral arguments and availability of judges.").
260. See Stern, et al, Supreme Court Practice at 729 (cited in note 142) (noting that rehearing might be appropriate "where the unanticipated consequences of the Court's opinion are clearly explained only in the rehearing petition");
261. Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, 16AA Federal Practice and Procedure §3986.1 (West 4th ed 2008) ("Matters of genuine public importance might also qualify [for rehearing], particularly if the judgment is calculated to have a direct effect on nonparties.").
262. See, for example, United States v Weitzenhoff, 35 F3d 1275,1279-81 (1994) (amending the opinion but denying the petition for rehearing).
263. See also Stern, et al, Supreme Court Practice at 729-30 (cited in note 142) (noting that the Supreme Court will sometimes "make minor changes in its prior opinion to correct certain inaccuracies or omissions brought to light by a petition for rehearing," or will grant a motion to clarify or modify the opinion if the petitioning party is not seeking a change in the judgment);
264. William F. Rylaarsdam, The Crisis of Volume in California's Appellate Courts: A Reaction to Justice in the Balance 2020 and a Proposal to Reduce the Number of Nonmeritorious Appeals, 32 Loyola LA L Rev 63, 86 n 114 (1998) ("After the court files the opinion, the losing party will frequently file a petition for rehearing. Such petitions are rarely granted but, based on the petition, amendments to the opinion may be prepared.").
265. See, for example, Stern, et al, Supreme Court Practice at 727 (cited in note 142) (noting that a rehearing petition in the Supreme Court following a published opinion on the merits has "hardly any chance of success");
266. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 SCL Rev 567, 570 (1999) ("Writing a rehearing request may be good therapy for the losing lawyer, but such pleas are rarely granted. On rehearing petitions, responsible counsel's best advice to the client, much more often than not, will be: save the money.");
267. Marvell, Appellate Courts and Lawyers at 84 (cited in note 20) (noting that rehearing petitions in appellate courts are "very rarely successful");
268. Robert A. Leflar, Internal Operating Procedures of Appellate Courts 60 (American Bar Foundation 1976 ) ("In many appellate courts, a motion for rehearing has come to be regarded as little more than a formality designed to procure delay in enforcement of the judgment.").
269. Samuel Estreicher and John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 NYU L Rev 681, 810 n 582 (1984).
270. For courts that sit in panels, like the federal courts of appeals, it is possible that this concern could be ameliorated through rehearing en banc. Even when the original judges are unwilling to admit their mistakes, a petition for rehearing en banc allows the other judges on the court-who have no psychological investment in the erroneous opinion-to correct the error. But whatever its promise in theory, in practice, rehearing en banc, like panel rehearing, is extremely rare. See, for example, Michael Ashley Stein, Uniformity in the Federal Courts: A Proposal for Increasing the Use of En Banc Appellate Review, 54 U Pitt L Rev 805, 831-32 (1993) (noting that, in 1991, rehearing en banc was granted in only 0.392 percent of cases);
271. Estreicher and Sexton, 59 NYU L Rev at 810 n 582 (cited in note 169) (noting that there is "no realistic chance" of correcting errors through rehearing en banc).
272. See also Weitzenhoff, 35 F3d at 1293 (Kleinfeld dissenting from denial of rehearing en banc) (noting that most appellate judges vote to deny rehearing en banc even when they believe that the panel decision was mistaken). Judges view excessive use of the en banc procedure as a threat to the collegiality of the entire court.
273. See, for example, Douglas H. Ginsburg and Donald Falk, The Court En Banc: 1981-1990, 59 Geo Wash L Rev 1008,1021 (1991).
274. Stephanie Stern, Cognitive Consistency: Theory Maintenance and Administrative Rulemaking, 63 U Pitt L Rev 589, 591 (2002).
275. See also Devins and Meese, FIa St U L Rev at 332-333 (cited in note 77) (noting that psychological "studies show that individuals will 'anchor' their views of an issue or situation on their initial assessment, even if that assessment is based upon less-than-perfect information," and "once anchored, views or opinions are difficult to change, even if substantial information is adduced that tends to undermine the initial impression").
276. See Stern, 63 U Pitt L Rev at 616-620 (cited in note 171) (noting that consistency is viewed positively by society, which makes it hard to change one's mind after a commitment is made public).
277. See Hummels, 46 Ariz L Rev at 332 (cited in note 10) (noting that a survey of appellate judges and attorneys indicated that judges are more receptive to suggestions for changes in an opinion before a final version of the opinion has been issued).
278. See Introduction.
279. See generally Kennedy v Louisiana, 129 S Ct 1 (2008) (amending the opinion but denying the rehearing petition).
280. See id.
281. The Washington Post editorialized that the Court's explanation of why the military law provision would not have made any difference was "unconvincing and leave[s]-deservedly or not-the impression that a majority of the court refused to allow new facts to alter their positions." Editorial, Case Closed, Wash Post A22 (Oct 2,2008).
282. See Kennedy, 128 S Ct at 2656-2657
283. See note 168.
284. See Part I.B.
285. See Marino v Ortiz, 484 US 301, 304 (1988) ("The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.");
286. Amy E. Sloan, Appellate Fruit Salad and Other Concepts: A Short Course in Appellate Process, 35 U Bait L Rev 43,43 & n 4, 45-46 (2005).
287. See Sloan, 35 U Bait L Rev at 48 (cited in note 181);
288. Joan Steinman, Shining a Light in a Dim Corner: Standing to Appeal and the Right to Defend a Judgment in the Federal Courts, 38 Ga L Rev 813, 882-884 (2004): Black letter law says that ordinarily prevailing parties cannot appeal, that courts review judgments, not opinions, and consequently that prevailing parties may not appeal reasoning, unfavorable findings of fact, unfavorable conclusions of law, unfavorable applications of law to fact, or a failure of the court to rule on the grounds preferred by the would-be appellant.
289. See US S Ct R 10 ("A Petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law."); Ross v Moffitt, 417 US 600, 613-15 (1974) (noting that state supreme courts likewise are often not in the business of error correction);
290. Carolyn Shapiro, The Limits of an Olympian Court: Common Law Judging versus Error Correction in the Supreme Court, 63 Wash & Lee L Rev 271, 279-80 (2006) (explaining the Supreme Court's explicit disavowal of an error correcting role).
291. See William H. Taft, The Jurisdiction of the Supreme Court under the Act of February 13, 1925, 35 Yale L J 1,2 (1925) ("The function of the Supreme Court is ... not the remedying of a particular litigant's wrong, but the consideration of cases whose decision involves principles, the application of which are of wide public or governmental interest, and which should be authoritatively declared by the final court.").
292. See Philip Allen Lacovara, The Incredible Shrinking Supreme Court, Am Lawyer 52, 53 (Dec 2003).
293. See Gregory A. Caldeira and John R. Wright, Organized Interests and Agenda Setting in the US Supreme Court, 82 Am Polit Sci Rev 1109,1120 (1988) (demonstrating empirically the importance of the presence of a genuine conflict in the granting of certiorari).
294. Stephen M. Shapiro, Jr, Certiorari Practice: The Supreme Court's Shrinking Docket, 24 Litig 25,29 (1998) (emphasis added).
295. See Lacovara, The Incredible Shrinking Supreme Court at 53 (cited in note 185). Interestingly, one of the factors that has influenced the Court's decisions to deny certiorari is the presence of "poor lawyering."
296. Shapiro, 24 Litig at 30 (cited in note 187) ("[T]he Court prefers to grant review in cases involving experienced counsel who can brief and argue the cases in a sophisticated manner."). That suggests the appellate process does not rectify the problem of poor lawyering leading to poor decisions that end up binding parties who bear no responsibility for hiring the less competent attorneys.
297. Oldfather, 94 Georgetown L J at 135 (cited in note 35).
298. Id.
299. See id at 135 n 42 (noting a reversal rate of 27.9 percent in 1945, 24.5 percent in 1960, and 9.4 percent in 2003).
300. In administrative law, renoticing is required when a rule is not a "logical outgrowth" of the original notice. See, for example, United Steelworkers v Marshall, 647 F2d 1189, 1221 (DC Cir 1980).
301. See note 213.
302. We recognize, though, that the benefits and costs of notice and comment might vary across contexts. It might be argued, for example, that this procedure would be more useful in intermediate appellate courts than in supreme courts (which have fewer cases to consider and thus may make fewer errors) or trial courts (whose opinions generally lack precedential value).
303. See Part III.B-C.
304. See notes 10-11 and accompanying text.
305. See, for example, Howard Wasserman, Someone is Reading the Blogs, Concurring Opinions Blog, (Oct 14, 2008), online at http://www. concurringopinions.com/archives/2008/10/someone-is-read.html (visited Sept 1, 2009) (noting an email from Ninth Circuit Judge Raymond Fisher reporting that he had revised his opinion in an antitrust case in response to a blog post).
306. Rule 2.10: Judicial Statements on Pending and Impending Cases, ABA Model Code of Judicial Conduct Canon 24-25 (2007).
307. See note 141 and accompanying text.
308. See Erwin Chemerinsky, Constitutional Law: Principles and Policies 58 (Aspen 3d ed 2006) (explaining that an opinion is not advisory if (1) it is issued in the course of an actual case or controversy, and (2) there is a substantial likelihood that a favorable ultimate decision in that case or controversy will have some effect on the parties).
309. It is sometimes said that advisory opinions are "opinions that are not in support of a judgment resolving a case or controversy before the court." Sullivan, 43 Houston L Rev at 1164 (cited in note 47). On that definition, a tentative opinion might indeed be advisory, since it would not (yet) be accompanied by a judgment resolving the case or controversy. But that definition seems clearly overbroad, as it would render all interlocutory opinions advisory; many opinions are issued during the course of a case or controversy that do not purport to be dispositive of it and that are not accompanied by a judgment, such as opinions resolving discovery disputes or denying summary judgment.
310. It is sometimes also said that an advisory opinion is "a nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose." Black's Law Dictionary 1125 (West 8th ed 2004). This too raises concerns for tentative opinions, since they would be " nonbinding" until formally issued (either as is or with changes) at the close of the comment period. But to the extent that this definition implies that any nonbinding legal interpretation is advisory, it also seems clearly overbroad. If every nonbinding opinion is advisory, then a district judge acts unconstitutionally every time she tells the parties that she is inclined to rule one way or the other in an effort to get them to resolve an ancillary issue or to allow them to convince the judge otherwise.
311. See, for example, Jon Heller, Excerpts from the Civil Justice Expense and Delay Reduction Plans Pursuant to the Civil Justice Reform Act, Q214 ALI-ABA 515, 574 (1993) (noting that the Eastern District of California enacted a "[p]re-argument notification program to advise parties of areas on which [a] judge would like oral argument to focus, or allow [a] judge to issue tentative ruling or take matter under submission").
312. Indeed, if this definition is correct, then decisions on motions in limine are unconstitutional. Consider, for example, Luce v United States, 469 US 38,41-42 (1984): The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unex-
313. Pected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.
314. In Piscataway v Taxman, 522 US 1010 (1997), civil rights groups that feared an adverse affirmative action precedent paid a premium to the plaintiff in order to settle the case prior to oral argument in the Supreme Court. See
315. Lisa Estrada, Buying the Status Quo on Affirmative Action: The Piscataway Settlement and Its Lessons about Interest Group Path Manipulation, 9 Geo Mason U Civ Rts L J 207, 215-16 (1999) (discussing the unusual dismissal of the Piscataway case just weeks before the Supreme Court oral argument). That phenomenon is relatively rare, due to the difficulty of predicting how courts will rule ex ante. But once a tentative opinion issues, the writing on the wall is suddenly much more legible.
316. See Judith Resnick, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L Rev 1471, 1472 (1994).
317. See Sullivan, 43 Houston L Rev at 1174-75 (cited in note 47);
318. Howard Slavitt, Selling the Integrity of the System of Precedent: Selective Publication, Depublication, and Vacatur, 30 Harv CR-CL L Rev 109, 118-19, 137-38 (1995);
319. Resnick, 41 UCLA L Rev at 1488-1489 (cited in 200).
320. See US Bancorp Mortgage Co v Bonner Mall Partnership, 513 US 18, 26 (1994).
321. Id (quotation marks omitted).
322. Id at 27.
323. See also Manufacturers Hanover Trust Co v Yanakas, 11 F3d 381, 384 (2d Cir 1993) (refusing to "allow a party with a deep pocket to eliminate an unreviewable precedent it dislikes simply by agreeing to a sufficiently lucrative settlement to obtain its adversary's cooperation in a motion to vacate" because that would not be "a proper use of the judicial system").
324. See Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528 US 167, 192 (2000) (noting that courts have no license "to retain jurisdiction over cases in which one or both of the parties plainly lack a continuing interest, as when the parties have settled").
325. In Bonner Mall, the Supreme Court explained that, if a case becomes moot, the "Court may not consider its merits, but may make such disposition of the whole case as justice may require," 513 US at 21
326. quoting Walling V. James v Reuter, Inc, 321 US 671, 677 (1944), and may "enter orders necessary and appropriate to final disposition" of the case, Bonner Mall, 513 US at 22. Bonner Mall stands for the proposition that, when settlement moots a case, justice requires that the parties not be able to avoid the precedential effects of a judicial opinion-even if the mandate has not yet issued and the opinion has not yet been given the force of law at the time of settlement. See id at 26-29. Simply allowing the tentative opinion to become final serves the interest of justice, and it does not require the issuance of an order or the taking of any affirmative step at all after the case becomes moot.
327. See, for example, Dismas Charities, Inc v DOJ, 401 F3d 666, 680 (6th Cir 2005) (noting "the primary purpose of Congress in imposing notice-and-comment requirements for rulemaking-to get public input so as to get the wisest rules");
328. Michael Asimow, Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 Mich L Rev 520, 574 (1997) ("The primary reason that public participation leads to better rules is that it provides a channel through which the agency can receive needed education. Agencies are not omniscient and do not have all relevant economic and social data.");
329. Richard J. Pierce, Jr, Seven Ways to Deossify Agency Rule-making, 47 Admin L Rev 59, 86 (1995) (asserting that the primary benefit of notice-and- comment rulemaking lies in the fact that "[a]gencies are more likely to make wise and well-informed policy decisions if they solicit, receive, and consider data and views from all citizens who are likely to be affected by a policy decision");
330. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them to Bind the Public?, 41 Duke L J 1311, 1373 (1992) ("The accuracy and thoroughness of an agency's actions are enhanced by the requirement that it invite and consider the comments of all the world, including those of directly affected persons who are able, often uniquely, to supply pertinent information and analysis.").
331. See, for example, Stephen M. Johnson, The Internet Changes Everything: Revolutionizing Public Participation and Access to Government Information through the Internet, 50 Admin L Rev 277, 289 (1998) ("Public participation is essential to sound agency decisionmaking because it instills a sense of legitimacy in the public for the agency's decisions.");
332. Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 Nw U L Rev 173, 187 (1997) ("Persons and entities subject to agency regulations are more likely to view agency decisions as legitimate if the procedures leading to their formulation provide for fair consideration of their views.").
333. Victor B. Flatt, Notice and Comment for Nonprofit Organizations, 55 Rutgers L Rev 65, 73 (2002).
334. See also Rossi, 92 Nw U L Rev at 183 (cited in note 210);
335. Alan B. Morrison, The Administrative Procedure Act: A Living and Responsive Law, 72 Va L Rev 253, 263 (1986) (arguing that "public participation," including notice-and-comment rulemaking, "has deterred the agencies from straying too far from their assigned missions").
336. See Parts I and II.A.
337. Administrative law distinguishes between two fundamental categories of agency action: adjudication and rulemaking. See Bernard Schwartz, Administrative Terminology and the Administrative Procedure Act, 48 Mich L Rev 57, 65 (1949). Generally speaking, rulemaking involves the establishment of norms of general applicability and future effect, whereas adjudication resolves the specific rights of individuals in special circumstances.
338. See Jim Rossi, Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry, 1994 Wis L Rev 763, 769-70. Notice-and-comment procedures are generally employed for rulemaking, but not for adjudication. Compare 5 USC § 553 (rulemaking), with 5 USC § 554 (adjudication). The distinction between rulemaking and adjudication in the agency arena is not always a clear one, however.
339. See David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv L Rev 921, 924 (1965). In reality, agency adjudications often have precedential value and establish generally applicable policy.
340. See Rossi, 1994 Wis L Rev at 770-774 Our general proposal for notice and comment in the courts could thus sensibly be applied to agency adjudication as well. Consider id at 772 (arguing that "most administrative law commentators" have a "strong preference" for rulemaking over adjudication because of the informational and legitimating benefits of notice and comment, and lamenting that the courts do not force the agencies to make law only by rulemaking). Because we do not recommend applying hard look review in the context of adjudication, the agency's choice between adjudication and rulemaking would still affect the cumbersomeness of the notice-and-comment process.
341. See notes 10-11 and accompanying text.
342. See, for example, Robert Q. Young, A Comparison of Reading and Listening Comprehension with Rate of Presentation Controlled, 21 AV Comm Rev 327, 334-335 (1973) (concluding that most subjects learn equally well from reading and hearing material, if the same amount of time is spent in learning).
343. See notes 143-47 and accompanying text But see Paul D. Carrington, Daniel J. Meador, and Maurice Rosenberg, Justice on Appeal 17 (West 1976) ("Some judges assimilate ideas more readily by oral than by written transmission; and some ideas are more readily transmitted by oral means.").
344. See Charles F. Hobson, Defining the Office: John Marshall as Chief Justice, 154 U Pa L Rev 1421, 1439-40 (2006);
345. Philippa Strum, Change and Continuity on the Supreme Court- Conversations with Justice Harry A. Blackmun, 34 U Rich L Rev 285, 298 (2000) (quoting Justice Harry Blackmun) (observing that oral argument "sharpens the focus of the case if we let the lawyers do that and don't interrupt them with constant questions.... It's hard to get everything out in thirty minutes, especially if Justices interrupt.").
346. Some have argued that amicus briefs may promote junk science because they are not subject to rigorous evidentiary requirements or peer review. See, for example, Simard, 27 Rev Litig at 704 (cited in note 112);
347. Garcia, 35 Fla St U L Rev at 352 (cited in note 115);
348. Michael Rustad and Thomas Koenig, The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 NC L Rev 91, 94 (1993). That same risk might be posed by a notice-and- comment system, but this system at least allows responses and dialogue, so third parties could point out problems in social science and arguments raised by others.
349. Consider 28 CFR § 0.20(b)-(c) noting that the Solicitor General must authorize all appeals and all amicus briefs filed by the government).
350. See notes 96-101and accompanying text.
351. Tyler, 56 DePaul L Rev at 680-682, 681 n 126 (cited in note 94).
352. See Tyler, Why People Obey the Law at 137 (cited in note 97).
353. See Hummels, 46 Ariz L Rev at 331 (cited in note 10);
354. id at 349 (noting that, in 2002, the Arizona Court of Appeals, Division Two, changed the result after oral argument in 11.7 percent of cases and made substantial modifications in another 26 percent of cases);
355. Hollenhorst, 36 Santa Clara L Rev at 34-35 (cited in note 10) (noting that, over an eight-month period, the California Court of Appeal, Fourth Appellate District, Division Two, changed the result after oral argument in 3.5 percent of cases, substantially rewrote the opinion in 7.9 percent of cases, and made major changes in nearly 20 percent of cases);
356. id at 331 n 108 ("On a number of occasions, this court has rewritten entire opinions after oral argument.").
357. See note 192 and accompanying text.
358. See Gary Lawson, Prolegomenon to Any Future Administrative Law Course: Separation of Powers and the Transcendental Deduction, 49 SLU L J 885, 888 (2005) (arguing that "virtually the entire structure of the modern administrative state is either suspect or flagrantly unconstitutional under any plausible formalist account").
359. Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum L Rev 1749, 1805 (2007).
360. See also Bressman, 78 NYU L Rev at 546-617 (cited in note 103) (arguing that allowing agencies to develop policies through interpretive rules rather than rules subject to notice-and-comment procedures "jeopardizes administrative legitimacy").
361. See Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J L, Econ, & Org 243, 244 (1987).
362. See Pablo T. Spiller, Invitations to Override: Congressional Reversals of Supreme Court Decisions, 16 Intl Rev L & Econ 503, 503-504 (1996) (providing a positive political theory account of legislative overrulings).
363. See David Fontana, Reforming the Administrative Procedure Act: Democracy Index Rulemaking, 74 Fordham L Rev 81, 85 (2005).
364. See, for example, Mark C. Niles, On the Hijacking of Agencies (and Airplanes): The Federal Aviation Administration, "Agency Capture," and Airline Security, 10 Am U J Gender Socy Policy & L 381, 387-400 (2002).
365. See Donald J. Burnett, Jr, A Cancer on the Republic: The Assault upon Impartiality of State Courts and the Challenge to Judicial Selection, 34 Fordham Urban L J 265, 273-276 (2007).
366. This conclusion flows in significant part from the facts that agencies usually have a somewhat narrow focus; that agency officials often come from, and plan to return to, the industry that they regulate; and that powerful interest groups can help to provide agency members with benefits that they prize (budgetary clout on Capitol Hill and future employment are the two most often cited). By contrast, judges have life tenure and thus less concern about their future employment, have salaries and budgets that are largely free from congressional meddling, and may have a greater desire for prestige (which powerful interest groups cannot easily provide).
367. See Stuart Minor Benjamin and Arti K. Rai, Who's Afraid of the APA? What the Patent System Can Learn from Administrative Law, 95 Georgetown L J 269, 311-12 (2007).
368. See also Robert D. Cooler, The Objectives of Private and Public Judges, 41 Pub Choice 107, 129 (1983) (arguing that judges are generally less subject to capture because they seek to maximize their prestige).
369. See note 103 and accompanying text.
370. See note 211 and accompanying text. The existence of the "hard look" enforcement mechanism makes clear that constraint is one of the goals of notice and comment in administrative law.
371. See notes 288-292 and accompanying text.
372. Hummels, 46 Ariz L Rev at 337 (cited in note 10) (quoting Justice Thomas E. Hollen-horst) (discussing pre-argument tentative opinions in California).
373. "Placing the draft opinion 'face up' on the table promotes accountability by making it harder for judges to remain intransigent in the face of persuasive arguments." Id at 347.
374. See, for example, Rehnquist, The Supreme Court at 263 (cited in note 140) (noting that, when law clerks encounter problems in the drafting of opinions, they bring those problems to the attention of the judge);
375. Marvell, Appellate Courts and Lawyers at 87-97 (cited in note 20) (discussing the relationship between clerks and judges and noting the extent to which clerks seek to bring the best information to the attention of their judges so as to facilitate informed decisions by the judges on all important matters).
376. See 5 USC § 553(b) (requiring a "notice of proposed rule making," which must include "either the terms or substance of the proposed rule or a description of the subjects and issues involved").
377. Consider Hollenhorst, 36 Santa Clara L Rev at 13 (cited in note 10) (defending preargument tentative opinions on the ground that "the visibility of the draft opinion increases judicial vigilance" because the judge "may suffer embarrassment" if an error is pointed out).
378. See, for example, Marshall J. Breger and Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin L Rev 1111, 1131-1132 (2000) (discussing the Progressive emphasis on apolitical, independent regulatory commissions staffed by experts).
379. See, for example, Daniel B. Rodriguez, The Substance of the New Legal Process, 77 Cal L Rev 919, 925 (1989) ("The views of Woodrow Wilson and the Progressive era theorists and James Landis and the New Dealers seem anachronistic in light of modern public law theories that view administrative agency decisionmaking as a complex amalgam of rational calculation, statutory interpretation, political judgment, and translation of values into public policy.").
380. 463 US 29 (1983).
381. Id at 34 (holding that "the agency failed to present an adequate basis and explanation for rescinding the passive restraint requirement" for cars).
382. See id at 59 (Rehnquist concurring) ("The agency's changed view of the standard seems to be related to the election of a new President of a different political party").
383. See id ("A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations.").
384. See, for example, Christopher F. Edley, Jr, Administrative Law: Rethinking Judicial Control of Bureaucracy 184 (Yale 1990) (characterizing Rehnquist's observation as being "that the boundaries among politics, science, and fairness are virtually unobservable in practice because any complicated problem will involve the integration of all three decision making paradigms; the administrator cannot avoid deploying subjective preferences, even while making a putatively 'scientific' decision").
385. The Court did come around to the view that it must respect executive branch policy choices. See Chevron, 467 US at 866 ("[F]ederal judges-who have no constituency-have a duty to respect legitimate policy choices made by those who do."). But the Court still expects detailed justifications of such choices.
386. See id.
387. The hard look doctrine may have been instituted in reaction to a period of more deferential review. See, for example, Matthew Warren, Note, Active Judging: Judicial Philosophy and the Development of the Hard Look Doctrine in the D.C. Circuit, 90 Georgetown L J 2599, 2603 (2002) (noting that concerns about agency capture in the 1960s and 1970s likely led to closer examination of administrative behavior). But the courts have emphasized that they ought not substitute their policy views for an agency's.
388. See State Farm, 463 US at 43 ("The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency.").
389. See, for example, The Supreme Court, 1982 Term-Standard of Review for Rescission of Agency Rule, 97 Harv L Rev 230, 237 n 54 (1983) (suggesting that although the majority in State Farm "scrupulously avoided mention of the political overtones of [the National Highway Traffic Safety Administration's] actions, it may well have been reacting against them").
390. That is, policy judgments actually made by Congress, if found to be constitutional, are generally considered to be controlling. See, for example, Edward O. Correia, A Legislative Conception of Legislative Supremacy, 42 Case W Res L Rev 1129, 1142 (1992) ("[F]ew scholars and virtually no court opinion ever claims (openly) to favor violating legislative supremacy.").
391. See Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J L, Econ, & Org 81, 95-97 (1985).
392. Federalist 78 (Hamilton) at 523 (cited in note 91).
393. Some commentators have proposed instituting affirmative efforts to ensure ideological balance on a panel. See, for example, Michael Hasday, Ending the Reign of Slot Machine Justice, 57 NYU Ann Surv Am L 291, 304, 310 (2000) (criticizing random selection of panels and promoting balance based on party preferences for judges);
394. Tiller and Cross, 99 Colum L Rev at 215 (cited in note 164) (advocating every panel have judges from both political parties as determined by the appointing president).
395. See Part II.A.2.c.
396. Stern, 63 U Pitt L Rev at 591 (cited in note 171). Stern explains that merely writing down preliminary views can contribute to lock-in.
397. See id at 619.
398. See note 168-169 and accompanying text.
399. See Stern, 63 U Pitt L Rev at 616-617 (cited in note 171).
400. See Republican Party of Minnesota v White, 536 US 765, 802 (2002) (Stevens dissenting).
401. To the extent that cognitive consistency bias might still apply to tentative opinions, there are steps that could be taken to mitigate it. For example, studies suggest that when individuals write down their original opinions anonymously, they will be less intent on cognitive consistency.
402. See Stern, 63 U Pitt L Rev at 617 (cited in note 171) (reviewing studies that show publicity results in cognitive commitment). At least in an appellate court, the opinion might initially be designated per curiam; the judges could decide later whether to name the opinion author in the final opinion.
403. See Hollenhorst, 36 Santa Clara L Rev at 4 (cited in note 10) (noting that the practice in courts that release pre-argument tentative opinions to the parties has been to with-hold the authoring judge's name).
404. See note 223. In the Arizona court, judges made at least minor changes in 100 percent of published opinions.
405. See Hummels, 46 Ariz L Rev at 349 (cited in note 10).
406. See Stern, 63 U Pitt L Rev at 633 (cited in note 171). An Advance Notice of Proposed Rulemaking is issued earlier in the rulemaking process than a traditional notice of proposed rulemaking and is more open-ended, soliciting public comments on an issue generally, or seeking comments on a variety of alternative potential solutions.
407. See id.
408. But see Sarah Levien Shullman, The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow Their Decisions during Oral Argument, 6 J App Prac & Process 271, 272 (2004).
409. See David Lewis, Survey Shows Preferences of Northeastern Judges at Appellate Argument, 76 NY St B J 42, 42-43 (Oct 2004) (presenting results of survey that found substantial disagreement among judges about whether they have made up their minds on important issues prior to oral argument).
410. See Robert S. Thompson and John B. Oakley, From Information to Opinion in Appellate Courts: How Funny Things Happen on the Way through the Forum, 1986 Ariz St L J 1, 65: If a court has reached a conclusion, even one that is labeled "tentative," oral argument involves a process by which minds must be changed rather than open minds persuaded. If the minds have been made up by overlooking important information or approaches to the case, the task may be difficult indeed.
411. Delay may be especially costly in the Supreme Court, which generally issues the last of a term's opinions by early summer, just before new clerks arrive. See Stern, et al, Supreme Court Practice at 9-11, 36-37 (cited in note 142). Delaying the release of opinions might mean that new clerks will need to learn details from cases already tentatively decided.
412. See Authorized Judgeships, online at http://www.uscourts.gov/history/ allauth.pdf (visited Sept 1, 2009) (providing data on the number of authorized federal judgeships from 1789 to the present).
413. See Part III.C.1.
414. See, for example, Laura Inglis, et al, Experiments on the Effects of Cost-shifting, Court Costs, and Discovery on the Efficient Settlement of Tort Claims, 33 Fla St U L Rev 89, 90-91 (2005) (reporting that in a laboratory experiment simulating litigation, "increased court costs significantly improve pretrial settlement rates");
415. id at 116 (reporting a settlement rate of 58.7 percent with low costs and 77.7 percent with high costs).
416. See, for example, Alon Klement and Zvika Neeman, Against Compromise: A Mechanism Design Approach, 6 J L, Econ, & Org 285, 287 (2005) (noting that some models allow for this possibility, but presenting an alternative model that does not).
417. Consider Stark, 54 Tax L Rev at 256 (cited in note 80) (noting "the cost, chaos, and additional litigation that often follow" judicial decisions that were based on imperfect information).
418. See Richard A. Posner, Demand and Supply Trends in Federal and State Courts over the Last Half Century, 8 J App Prac & Process 133, 134 & 139 table 6 (2006) (illustrating trends in per judge caseloads and observing a "dramatic increase in federal appellate caseloads per judge").
419. See, for example, Todd Peppers, et al, Inside Judicial Chambers: How Federal District Court Judges Select and Use Their Law Clerks, 71 Alb L Rev 623, 628 (2008) (noting that since 1991, the number of clerks per federal district judge has been fixed at two).
420. Radically reducing the amount of time spent on the tentative opinion-on the theory that most of the serious thinking about the case can be done after the many resulting flaws are clarified through public comment-would defeat the purpose of notice and comment, which is designed to solicit public comments on the precise reasoning and wording contemplated by the court. But, at the other extreme, under our current system, because a "judge drafting a precedential opinion must not only consider the facts of the immediate case, but must also envision the countless permutations of facts that might arise in the universe of future cases," Hart v Massanari, 266 F3d 1155, 1176-77 (9th Cir 2001)
421. (Kozinski), "writing an opinion is a tough, delicate, exacting, time-consuming process," Alex Kozinski, In Opposition to Proposed Federal Rule of Appellate Procedure 32.1, 51 Fed Law 36, 39 (June 2004). It is possible that, with the backstop of notice and comment, a judge would sensibly spend a little less time on "the process of anticipating how the language of the disposition will be read by future litigants and courts, and how small variations in wording might be imbued with meanings never intended," a task that currently occupies a huge percentage of the judge's time.
422. Id at 38-39.
423. See also Hart, 266 F3d at 1176-1177
424. The trend has been toward increasing resolution of cases through unpublished decisions. See, for example, Joseph L. Gerken, A Librarian 's Guide to Unpublished Judicial Opinions, 96 L Libr J 475, 478 (2004) (documenting an increase in nonpublication rates in the US courts of appeals from about 50 percent in 1981 to about 80 percent in 2004).
425. Kozinski, 51 Fed Law at 38 (cited in note 273).
426. See, for example, Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the US Courts, 56 Stan L Rev 1435, 1471-1474 (2004).
427. Kozinski, 51 Fed Law at 38 (cited in note 273) ("We are very careful to ensure that the result we reach in every case is right, and I believe we succeed.").
428. See Wald, 62 U Chi L Rev at 1375 (cited in note 153) (noting that without published opinions, there are "no backward looks or self-doubt").
429. See, for example, Hellman, 6 J App Prac & Process at 173 (cited in note 159) (noting that lawyers have "voiced the concern that unpublished opinions are used as a device to avoid controlling precedents");
430. Wald, 62 U Chi L Rev at 1374 (cited in note 153) (discussing the misuse of unpublished opinions to avoid making or following law).
431. But see Stephen L. Wasby, Unpublished Decisions in the Federal Courts of Appeals: Making the Decision to Publish, 3 J App Prac & Process 325, 340-341 (2001) (arguing that judges do not generally engage in this behavior).
432. Judge Wald similarly argues, "There ought, in my view, to be periodic overviews of which kinds of cases get sent down one track rather than another. Danger signals include the presence of obviously difficult issues..." Wald, 62 U Chi L Rev at 1376 (cited in note 153). But it is difficult to find such danger signals without a mechanism for pointing out problems before opinions issue.
433. Those length limits would, in turn, ensure that the notice-and-comment procedure would not significantly add to the judicial workload for unpublished cases. (It seems unlikely that non-parties would be interested in commenting on opinions with little or no precedential value. To keep the workload under control, courts could even mandate that only the parties may comment on unpublished opinions.).
434. see Hollenhorst, 36 Santa Clara L Rev at 23 (cited in note 10) (noting that, in California, discussion of tentative opinions at oral argument sometimes convinces judges to change their minds about whether to publish the opinion).
435. See, for example, Hillary A. Taylor, Appellate Delay as Reversible Error, 44 Willamette L Rev 761, 787-789 (2008) (focusing on appellate delay in the criminal context).
436. Indeed, it would be wise to allow courts to skip notice and comment for any good cause, as is the case with notice and comment in the administrative rulemaking context. See 5 USC § 553 (b)(3)(B) (providing that the notice-and-comment requirements do not apply "when the agency for good cause finds (and incorporates the finding and a brief statement of reasons there-for in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest").
437. See George L. Priest, Private Litigants and the Court Congestion Problem, 69 BU L Rev 527, 529-530 (1989) (reviewing studies of court congestion).
438. See id at 539-556 (presenting a case study of whether "the decision to litigate or settle is sufficiently sensitive to changes in litigation delay to generate a congestion equilibrium").
439. Administrative Procedure Act, Pub L No 89-554, 80 Stat 381 (1966), codified as amended at 5 USC § 551 et seq.
440. 5 USC § 553(c).
441. See, for example, Automotive Parts and Accessories Association v Boyd, 407 F2d 330, 338 (DC Cir 1968) (warning "against an overly literal reading of the statutory terms 'concise' and 'general,'" and noting that "[t]hese adjectives must be accommodated to the realities of judicial scrutiny");
442. M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U Chi L Rev 1383, 1432 (2004) ("The 'concise general' statement of 'basis and purpose' that is to accompany the final rule has, in the hands of judges, turned out to be not at all concise.").
443. 5 USC § 706(2)(A) (defining the scope of review).
444. Whether this is a plausible doctrinal hook is debatable. See, for example, Jack M. Beerman and Gary Lawson, Reprocessing Vermont Yankee, 75 Geo Wash L Rev 856, 882 (2007) ("Hard-look review may or may not be a correct or even plausible interpretation of § 706(2)(A)-a point on which the authors are not necessarily in full agreement.").
445. A helpful statement of this doctrine appears in Greater Boston Television Corp v FCC: Its supervisory function calls on the court to intervene not merely in case of procedural in-adequacies, or bypassing of the mandate in the legislative charter, but more broadly if the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a "hard look" at the salient problems, and has not genuinely engaged in reasoned decision-making. 444 F2d 841, 851 (DC Cir 1970).
446. By limiting its scope to "salient" issues, see id, hard look review of administrative decisions already includes a rough equivalent to the harmless error doctrine. It is possible, however, to imagine that poor reasoning would be grounds for remand of a judicial decision even if there was an adequate ground for the decision.
447. of course, this approach could not easily be applied to decisions of supreme courts. We could fancifully imagine a rule that decisions of the supreme court could be appealed to a panel of lower-court judges, who would be allowed to engage only in hard look review.
448. See SEC v Chenery Corp (Chenery II), 332 US 194, 196 (1947).
449. This is, of course, not the current approach in the judicial context. See Kevin Stack, The Constitutional Foundations of Chenery, 116 Yale L J 952, 955 (2007) (contrasting the Chenery rule with the rule that an appellate court must affirm a correct lower court judgment even when the lower court relied upon an incorrect ground or reason).
450. See Posner, 3 S Ct Econ Rev at 14-15 (cited in note 36) (noting that judges do not like being reversed, but that appellate judges often do not care as much about reversal, because it usually results from differences in judicial philosophy). Reversal might be more of a concern to judges-including appellate judges-if based on the quality of an opinion rather than on its result, as under these enforcement mechanisms.
451. See Orley Ashenfelter, Theodore Eisenberg, and Stewart J. Schwab, Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes, 24 J Legal Stud 257, 266-269 (1995) (offering an empirical analysis appearing to verify that judicial selection is genuinely random).
452. See 28 USC § 2112(a)(3) (requiring that the Judicial Panel on Multidistrict Litigation use random selection to designate courts of appeals to hear certain cases).
453. See Kourlis and Singer, 86 Denver U L Rev at 9 (cited in note 19) (noting that nineteen states have such programs).
454. Kourlis and Singer suggest that an independent commission might evaluate a variety of data sources, including a "sample of written orders," but they do not indicate how this sample might be constructed. See id at 41. Moreover, opinions with comments may be easier to evaluate than if the commission is expected to undertake its own research into a case.
455. See, for example, Marybeth Herald, Reversed, Vacated, and Split: The Supreme Court, the Ninth Circuit, and the Congress, 77 Or L Rev 405, 488 (1998) (concluding that the "high reversal rate of the Ninth Circuit is attributable to an ideological difference between the Supreme Court and the reversed panels on the Ninth Circuit").
456. See also note 297.
457. See notes 89-90 and accompanying text.
458. Commentators have discussed the impact of hard look review of administrative decisions on judicial reputation. See, for example, Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 Tex L Rev 483, 503 (1997) (suggesting changes to hard look review to "increase the reputational cost to judges" who perform badly). But we have found no sustained discussion of the effect of hard look review on agency officials' reputation.
459. An empirical study of all sixty-one DC Circuit remands of rules over a ten-year period ending in 1995 found that there were twelve remands that led to agency abandonment of the rulemaking, at least with respect to the points on which the courts based their remands. See William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals through Informal Rulemaking?, 94 Nw U L Rev 393, 433 (2000).
460. See Part II.B.2.c.
461. See Stuart Shapiro, Two Months in the Life of the Regulatory State, 11 Admin & Reg L News 12, 13 (2005) (reporting that the median number of comments in a sample of eighty-four rulemakings was one, and that "the distribution is quite skewed: a very few [rulemakings] receive a high percentage of the total").
462. Justice Ginsburg has noted that even "a gem" contained in an amicus brief can be missed because of the sheer volume of briefs. Simard, 27 Rev Litig at 700-701 (cited in note 112). Given the low cost of filing comments, relative to amicus briefs, one imagines that an unfiltered commenting system has the potential to generate a volume of comments in the Supreme Court in high profile cases that dwarfs the already substantial volume of amicus briefs.
463. See, for example, Pierce, 47 Admin L Rev at 59-60 (cited in note 209) (suggesting a number of methods to alleviate ossification);
464. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L J 1385, 1386 (1992).
465. McGarity, 41 Duke L J at 1412 (cited in note 309).
466. Seidenfeld, 75 Tex L Rev at 515 (cited in note 304).
467. The literature shows that when making a complex decision, a person will not work entirely in a bottom-up manner, but will make an assessment based on a somewhat holistic sense of the evidence and then, if asked to make judgments on subissues, will generally ensure that those judgments cohere with the broader decision, even when they might not have had the same view taking the subissues in isolation. See Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U Chi L Rev 511, 523-533 (2004).
468. See notes 6-7 and accompanying text.
469. See David Hoffman and Salil Mehra, Wikitruth through Wikiorder: Using Dispute Resolution to Generate Public Goods, online at http/www.kauffman.org/ ksli/resources.cfm resourcescfm (visited Sept 1,2009).
470. See Help: Reverting, Wikipedia, online at http://en.wikipedia.Org/wiki/ Help:Reverting(visited Sept 1,2009) (describing the process of reverting and characterizing as "harmful" "revert wars" in which users continually revert each other's edits).
471. See What is Digg?, Digg, online at http://digg.com/about (visited Sept 1, 2009).
472. See Peer to Patent, online at http://www.peertopatent.org (visited Sept 1, 2009).
473. See id.
474. For an interesting assessment of how technology might be used to structure the noticeand-comment administrative rulemaking process and to foster the development of deliberative communities contributing to individual rulemakings, see Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 Emory L J 433, 480-492 (2004).
475. See Jeffrey A. Lefstin, Claim Construction, Appeal, and the Predictability of Interpretive Regimes, 61 U Miami L Rev 1033, 1036 (2007) (noting that many believe unpredictability in patent claim construction to be a serious problem).
476. See generally Michael Abramowicz, Predictocracy (Yale 2008) (providing an overview of the use of prediction markets by decisionmaking institutions).
477. See id at 41-46.
478. See id at 28-32.
479. Conditional prediction markets can be used to estimate the probability of one event only if some other condition is met. See id at 144-54, 199-204.
480. See note 85 and accompanying text.
481. Or is warranted by "a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." FRCP 11(b)(2).
482. See, for example, Adrian Vermeule,Judicial History, 108 Yale L J 1311,1341 (1999) (discussing the view "that judicial deliberation requires extraordinary protection from the harms of publicity").
483. See, for example, Hartnett, 74 NYU L Rev at 126 (cited in note 42) ("Courts (or at least federal courts) do not sit to pronounce the law, but rather to decide cases and controversies.").
484. At his confirmation hearing to become Chief Justice, John Roberts said, "I will remember that it's my job to call balls and strikes and not to pitch or bat." Confirmation Hearing for John Roberts to the Chief Justice of the United States Supreme Court, Senate Committee of the Judiciary, 109th Cong, 1st Sess (Sept 13, 2005), online at http://www.washingtonpost.com/wp-dyn/ content/article/2005/09/13/AR2005091300693.html (visited Sept 1, 2009).
485. See, for example, James B. Beam Distilling Co v Georgia, 501 US 529, 549 (1991) (Scalia concurring) ("I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense 'make' law.").
486. See Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv L Rev 4, 7 (1996).
487. Our proposal could be seen to complement a theory like Sunstein's, insofar as the comment period could be used to inform judges of instances in which they are poised to decide more than is necessary to the resolution of the dispute.
488. Consider Schauer, 73 U Chi L Rev at 883 (cited in note 75) ("The common law's methods and theory were developed at a time when most common law judges understood themselves to be discovering the law rather than making it.").