Adverse Publicity as a Means of Reducing Judicial Decision-Making Delay: Periodic Disclosure of Pending Motions, Bench Trials and Cases under the Civil Justice Reform Act

The modest objective of this article is to analyze §476 in light of the purpose it was designed to serve, and to evaluate the performance of that section during the two years that it has been in operation. To do that, it is useful to begin by placing §476 in the larger context of ongoing efforts to address and remedy indefensible decision-making delays. Section II will, therefore, summarize the causes of decision-making delay, dividing them among the defensible and the indefensible, and then review existing mechanisms for alleviating indefensible delay. The point worth underscoring is that while defensible delays-particularly delays occasioned by burgeoning caseloads-are undeniably the most significant source of decision-making delay, they are not the only source. Section 476 may properly be understood as the latest in a series of efforts to reduce indefensible delays-delays precipitated by nonstructural inefficiency, indecision, inertia, belligerence or disability. Section III will track the development and implementation of §476. While it is still too early to reach any firm conclusions as to the ultimate success of the section in reducing indefensible delay, preliminary findings are encouraging; delays are declining, and judges appear to be acknowledging that the impact of the section is salutary. Even at this early date, then, the evidence may be sufficient to justify Congress in lifting the sunset provision as it applies to §476

Adverse Publicity as a Means of Reducing Judicial Decision-Making Delay: Periodic Disclosure of Pending Motions, Bench Trials and Cases under the Civil Justice Reform Act

The modest objective of this article is to analyze §476 in light of the purpose it was designed to serve, and to evaluate the performance of that section during the two years that it has been in operation. To do that, it is useful to begin by placing §476 in the larger context of ongoing efforts to address and remedy indefensible decision-making delays. Section II will, therefore, summarize the causes of decision-making delay, dividing them among the defensible and the indefensible, and then review existing mechanisms for alleviating indefensible delay. The point worth underscoring is that while defensible delays-particularly delays occasioned by burgeoning caseloads-are undeniably the most significant source of decision-making delay, they are not the only source. Section 476 may properly be understood as the latest in a series of efforts to reduce indefensible delays-delays precipitated by nonstructural inefficiency, indecision, inertia, belligerence or disability. Section III will track the development and implementation of §476. While it is still too early to reach any firm conclusions as to the ultimate success of the section in reducing indefensible delay, preliminary findings are encouraging; delays are declining, and judges appear to be acknowledging that the impact of the section is salutary. Even at this early date, then, the evidence may be sufficient to justify Congress in lifting the sunset provision as it applies to §476

Judicial Independence at Twilight

Judicial independence is a fixture of American government, but its structure has never been fully understood. As long as the federal judiciary has survived episodic attacks with its independence intact, there has been no pressing need to know how or why. But a confluence of cyclical, sustained, and sudden developments now threatens the federal judiciary’s autonomy in arguably unprecedented ways and demands a more comprehensive analysis of judicial independence and its vulnerabilities. This article begins by reconceptualizing the structure of judicial independence in three tiers. At the apex is an ancient, Rule of Law Paradigm, which proceeds from the premise that independence enables judges to set extralegal influences aside and impartially uphold the law. In the middle tier is Article III of the U.S. Constitution, via which the framers implemented the Rule of Law Paradigm in a rudimentary way. At the base tier are informal constitutional conventions that emerged over time to fill gaps in the constitutional design and guide the political branches in their relationship with the courts in a manner consistent with Article III and the overarching paradigm. Next, the article explains how this threetiered structure came into being, how it evolved, later eroded, and how it recently began to collapse with the repudiation of judicialindependence conventions in a neo-populist age that is sweeping the globe. It attributes the long-term erosion of support for judicial independence to the crumbling Rule of Law Paradigm and its increasingly antiquated premise that independent judges impartially uphold the law, unsullied by ideological and other influences. It recommends a gradual shift to what I call a Legal Culture Paradigm, which reframes and defends the role of judicial independence in a government with a judiciary whose judges are deeply acculturated to take law seriously but who are nonetheless subject to extralegal influences at the margins, where operative law is indeterminate. It argues, however, that a reboot of the prevailing paradigm cannot, by itself, quiet the fury firing the ongoing, neo-populist assault on judicial independence, because the judiciary and its autonomy have become little more than pawns subject to sacrifice in a high-stakes chess game played by polarized, partisan political leaders for the future of American Democracy. The article concludes that realistic hope for an accord that restores judicial-independence conventions, guided by a new paradigm, must follow a period of destabilizing, no-holds-barred, partisan combat, in much the same way that settlement in contentious civil cases can often be achieved only after a period of exhausting and unrestrained hardball litigation

Who Is to Judge?

Imagine this scenario: A state trial judge is running for re-election in a mid-sized U.S. community. He/she receives campaign contributions from a local construction company. A case arises before the judge in which the construction company is accused of negligent safety practices causing worker injuries. A motion to dismiss is pending regarding whether the construction company has a duty to protect the workers on the job. Imagine another scenario: A lawyer applies for an appointed judge position. He/she gets the judgeship by being appointed by a Governor who is the same political party as the new judge. Subsequently, the State is sued for not increasing its budget for child welfare—something the Governor, and the new judge’s political party, have always opposed. The new judge is faced with a motion for summary judgment from the State claiming the Governor has sole discretion to decide the budget

Rescuing Judicial Accountability from the Realm of Political Rhetoric

The article examines the threat to judicial independence from political calls for more judicial accountability. The author begins by defining judicial accountability and discussing its purposes before breaking the concept down into three categories: institutional accountability, behavioral accountability, and decisional accountability. This process reveals that in the judicial accountability family, there is but one discrete sub-species, situated in the decisional accountability genus, that does not further accountability\u27s proper purpose and is therefore conceptually problematic: direct political accountability for competent and honest judicial decision-making error that the politicians desire and a serious threat to judicial independence. The critical question becomes one of classification: how does one distinguish honest disagreements as to applicable facts and law, for which direct political accountability is inappropriate, from deliberate usurpations of political power, which are properly subject to sanction? In order to determine the difference between honest judicial mistakes and dishonorable usurpations of power, the author argues that the judge\u27s state of mind must be the principal factor, and that in cases of decision-making error, the presumption should be that the judge in question was competent and honest, absent extrinsic evidence to the contrary