The Adversarial Myth: Appellate Court Extra-Record Factfinding

The United States\u27 commitment to adversarial justice is a defining feature of its legal system. Standing doctrine, for example, is supposed to ensure that courts can rely on adverse parties to present the facts courts need to resolve disputes. Although the U.S. legal system generally lives up to this adversarial ideal, it sometimes does not. Appellate courts often look outside the record the parties developed before the trial court, turning instead to their own independent research and to factual claims in amicus briefs. This deviation from the adversarial process is an important respect in which the nation\u27s adversarial commitment is more myth than reality. This myth is problematic for many reasons, including the fact that it obscures the extent to which some of the most significant cases the Supreme Court decides, such as Citizens United v. FEC, rely upon facts that have not been subjected to rigorous adversarial testing. The adversarial myth exists because the U.S. legal system\u27s current procedures were designed to address adjudicative facts-facts particularly within the legislative facts-more general facts about the state of the world. Recognizing knowledge of the parties-but many cases turn instead on this distinction between adjudicative and legislative facts helps identify those cases in which existing practices undermine, rather than promote, adversarial justice. This Article concludes with suggestions for reform, including liberalizing standing doctrine when legislative facts are at issue. If courts are going to turn to nonparties for help in resolving disputes of legislative fact, it is better that they be brought into the process earlier so the factual claims they offer can be rigorously tested

Rejecting Reasonableness: A New Look at Title VII\u27s Anti-Retaliation Provision

This Article argues that the “reasonableness” requirement of Title VII should be rejected. Under this approach, a plaintiff’s complaint would be protected unless the defendant could establish that the plaintiff was acting in bad faith at the time she made the complaint. Such a standard would offer employers some protection from retaliation suits based on frivolous complaints without compromising the significant goals the retaliation provision can serve. Part I provides background on Title VII and the anti-retaliation provision, particularly the “opposition” clause, explains why the anti-retaliation provision is necessary and how courts have interpreted the scope of the conduct it protects, and identifies the problem with the current approach, namely, that the “reasonableness” requirement provides too little clarity as to what conduct is protected and gives courts a powerful tool by which they can limit the scope of protected conduct under the statute. Part I concludes with a discussion of the D.C. and Fourth Circuit decisions that illustrate the problems this approach creates. Part II explains why these decisions are so problematic, especially in the context of hostile work environment claims, examines how these courts’ definitions of the term “reasonableness” threaten to undercut the anti-retaliation provision’s effectiveness by discouraging harassment victims from reporting what they are experiencing, especially in the earliest stages of the harassment, and then argues that the way to address this problem is not to craft some alternative definition of the term reasonable; rather, the better approach is to reject the “reasonableness” requirement altogether. Part III explores the benefits of this approach and discusses how a stronger anti-retaliation provision will serve Title VII’s myriad goals. These benefits relate, in part, to enforcement: Individuals will be more likely to report conduct if they believe that their complaint will be protected, and this approach will also facilitate more informal methods of resolving harassment claims. But the benefits go beyond enforcement. By encouraging individuals to report harassment, the anti-retaliation provision can facilitate a change in the norms that govern the workplace and can ameliorate the harms that harassment causes

The Collateral Consequences of Ex Post Judicial Review

Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so—unwilling because their membership has changed since the law was enacted, or unable because of institutional features that make quick response difficult. Under either scenario, these disruptions are cause for concern. Yet they are virtually inevitable under our current system of ex post judicial review. The answer is not to abandon judicial review, which plays an important role in our constitutional structure, but to reconceptualize it. This Article offers preliminary thoughts on what a system of ex ante judicial review might look like and argues that such a system would also address the policy distortions and significant legal uncertainties caused by our current system. Recognizing that such radical reforms are unlikely to be imminent, the Article also offers a number of more modest proposals that could help address these greater-than-necessary democratic disruptions in the short term. Finally, the Article argues that the Supreme Court has not taken even these modest steps because it is unwilling to acknowledge the policy disruptions its decisions often produce. This lack of honesty about its role may impair the Court’s ability to fill that role effectively

System of systems engineering governance framework for digital transformation: A case study of an Australian large government agency

Current swift technological advances are significantly impacting how organizations operate and services are provided. Even with the multiple benefits for organizations that undergo digital transformation, the majority of transformation initiatives fail due to the challenges that arise. A primary reason for these failures links back to the lack of effective governance framework to support effective digital transformation efforts. This paper proposes such a framework through a system of systems engineering approach to understand the various constituent systems involved in digital transformation efforts and their interactive and emergent behaviors. The application and usefulness of the framework were demonstrated as part of a digital transformation initiative in an Australian Large Government Agency and documented as a case study

A supply network governance framework: a case study of the South Australian mining industry

Purpose – The competitiveness of mining regions largely depends on the performance of the regional supply chains that provide services to mining companies. These local supply chains are often highly intertwined and represent a regional supply network for the industry. Individual companies often use supply chain strategies that are sub-optimal to overall supply network performance. To effectively respond to an uncertain business environment, policy-makers and supply chain participants would benefit by a governance framework that would allow to incentivise the formation of supply networks structures enabling effective operations. The purpose of this paper is to offer an empirically grounded conceptual framework based on Complex Adaptive Systems (CASs) governance principles, which links network governance mechanisms with supply network structure and operational performance to incentivise the formation of adaptive and resilient supply networks in the mining industry. Design/methodology/approach – A mixed method research design and a case study of the South Australian mining sector were used to collect empirical data. Qualitative interviews and network analysis of the SA mining industry regional supply network structure were conducted. The relationships between network parameters were interpreted using CAS theory. Findings – An empirically grounded conceptual framework based on CAS governance principles is developed. The case study revealed that supply chain strategies and governance mechanisms in the SA mining industry have led to the formation of a hierarchical, scale-free structure with insufficient horizontal connectivity which limits the adaptability, responsiveness and resilience of the regional supply network. Research limitations/implications – The findings are drawn from a single case study. This limits generalisability of the findings and the proposed framework. Practical implications – The proposed framework draws the attention of the policy-makers and supply chain participants towards the need for utilising CAS governance principles to facilitate the formation of adaptive, responsive and resilient regional supply networks in the mining industry. Originality value – The proposed conceptual framework is an attempt to parameterise the governance of the regional supply networks in the mining industry.Larissa Statsenko, Alex Gorod and Vernon Irelan

Self-organising supply networks: A case study of the SA mining industry

For efficient operation, it is vital for supply chain management leaders and policy makers to recognize the nature of the system they deal with. Supply chains, are increasingly recognized as systems of systems, which are complex networks exhibiting selforganising properties. In large scale real-life networks, selforganisation manifests itself in distinctive structural patterns, such as Power Law connectivity distribution, scale-free, fractal, and nearly decomposable modular structure. Identification of such structural patterns in real-world supply networks may provide useful insights into their dynamics and functionality, and as a result, apply adequate governance frameworks to embrace structural complexity. To this end, the methods for identification of complexity traits in real-world industrial supply networks are of interest. A case study of the mining industry supply network in South Australia has been used to propose a method for identifying self-organisation patterns in regional industrial supply network structures. The approach combines network analysis and recent methods for testing Power Law distributions. The findings provide insights into the mining industry supply network functionality, including such operational characteristics as robustness, responsiveness, flexibility, and resilience.Larissa Statsenko, Vernon Ireland, Alex Goro