The Real World of Arbitrariness Review

The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are 'arbitrary' or 'capricious.' In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a 'hard look' at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are 'arbitrary.' This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.

How Well Do Measures of Judicial Ability Translate Into Performance?

Diverse measures are used as proxies for judicial ability, ranging from the college and law school a judge attended to the rate at which her decisions are cited by other judges. Yet there has been little serious examination of which of these ability measures is better or worse at predicting the quality of judicial performance—including the management and disposition of cases. In this article, we attempt to evaluate these measures of ability by examining a rich group of performance indicators. Our innovation is to derive performance measures from judicial decisions other than case outcomes (which are inherently difficult to evaluate): the decisions to preside over a securities class action, to reject a motion for lead plaintiff, to dismiss the complaint with prejudice, and to reject a request for fees. In each case, an affirmative decision requires more work from the judge, and thus may be an indicator that the judge works hard and, all else equal, performs well. Using a database of securities class action cases, we find that judges who publish frequently and are highly cited are more likely to dismiss with prejudice but no more likely to make the hard choice in the other cases. Other proxies for judicial ability (attended top law school, judicial experience, earlier position as judge, prior private practice, heavy business caseload, and senior status) are more mixed

Congressional Power Under the Civil War Amendments

Since their birth during Reconstruction, the thirteenth, fourteenth and fifteenth amendments have been the subject of heated commentary and varying judicial interpretations. During the 1965 term and more recently, in 1968, the Supreme Court, in several landmark decisions, has expansively described the power granted Congress by those provisions to safeguard civil liberties. This comment examines these decisions from the perspective of early judicial interpretation of the amendments and from the theories offered by modern constitutional scholars. In conclusion, the logical results of this almost unrestricted measure of congressional power are examined

Due Process Land Use Claims After Lingle

The Supreme Court held in Lingle v. Chevron U.S.A. Inc. that challenges to the validity of land use regulations for failing to advance governmental interests must be brought under the Due Process Clause, rather than the Takings Clause, and must be evaluated under a deferential standard. This Article analyzes and evaluates the probable course of such judicial review, and concludes that federal courts will resist due process review of land use decisions for good reasons but not always with an adequate doctrinal explanation. However, state courts can use due process review to provide state level supervision of local land use decisions in the absence of other legislative or administrative checks on local discretion. Such judicial review should focus on decisions reflecting distortions in the local political process

A Survey of Studies on Judicial Selection

The Alaska legislature is considering a bill — Senate Joint Resolution 3 — that would put before voters a state constitutional amendment to change the composition of the Alaska Judicial Council and the way its members are selected. The Alaska Judicial Council plays a constitutionally-mandated role in the selection of Alaska’s judges and also makes recommendations to voters concerning retaining or not retaining judges as part of the judicial retention election process. This article reviews selected existing studies relevant to potential effects of this proposed change to the council composition — studies that examined judicial effectiveness, responsiveness of judges to public opinion, and public perception of judges. Also provided are flowcharts of the selection processes for members of the Alaska Judicial Council and of judges of the Alaska Court System; a detailed table of judicial selection methods in U.S. states and the District of Columbia; and a bibliography.Studies on Nominating Commissions / Measures of Voter Satisfaction / Objective Measures of Judicial Performance / Complexity of Judicial Decisions / Judicial Productivity and Independence / Politicization of Judicial Elections / Conclusion / Resources on Judicial Selection (bibliography) / References (bibliography)Ye

The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making

Prosecuting attorneys enjoy exceptionally broad discretion in making decisions that influence criminal case outcomes. They make pivotal decisions throughout the life of a case with little public or judicial scrutiny. With support from the National Institute of Justice, the Vera Institute of Justice undertook research to better understand how prosecutors make decisions. Vera researchers combined statistical analyses with qualitative analyses, examining initial case screening and charging decisions, plea offers, sentence recommendations, and post-filing dismissals for multiple offense types in two moderately large prosecutors' offices. In addition to a technical report, the study produced a summary report and four podcasts

Judicial review, reasons and technology: a glance at constitutionalism and democracy

Judicial review reflects the level of commitment between constitutionalism and democracy in contemporary States. Yet democracy as the sovereign government of the people implies a tension with constitutionalism as the rule of law. That is, people ruling themselves or the government by the people – majority government - is limited by the law of law making, the constitution. In Brazil, the improvement of judicial review is nowadays related to increase the number of decisions given by the Brazilian Supreme Court or rather to the capability of this latter in deciding a large number of constitutional lawsuits no matter the form and content of its arguments. For, the Court is nowadays driven by numbers and to accomplish its goals in terms of numbers (of decisions) it applies to technological solutions such as the digitalization of legal proceedings. It means that as many decision as Supreme Court issues -with the help of technology- the better it is. Relating the numbers of decisions issued by the Court to the improvement of Brazilian judicial review or Brazilian constitutionalism and democracy is a great mistake and a false statement as far as it does not face the main problem of the system, which is the lack of reasons of Supreme Court’s decision. The point is that, in this case, technology is just a tool –among others- in order to render legal proceedings faster yet not a qualitative sign of Supreme Court’s decisions

Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions

In the Chevron and State Farm cases the Supreme Court announced what appeared to be controlling standards for substantive review of administrative decisions. Instead, the Chevron framework has broken down, and State Farm has been all but ignored by agencies and the courts, including the Supreme Court. This article accounts for this breakdown by analyzing the impact of judicial incentives on substantive review in administrative law

The Evolution of Precedent

We evaluate Richard Posner's famous hypothesis that common law converges to efficient legal rules using a model of precedent setting by appellate judges. Following legal realists, we assume that judicial decisions are subject to personal biases, and that changing precedent is costly to judges. We consider separately the evolution of precedent under judicial overruling of previous decisions, as well as under distinguishing cases based on new material dimensions. Convergence to efficient legal rules occurs only under very special circumstances, but the evolution of precedent over time is on average beneficial under more plausible conditions.

Workmen’s Compensation Insurer as Suable Third Party

Until 1960, lawyers appeared to assume that the workmen\u27s compensation insurance carrier partook of the employer\u27s immunity to common law suit by an injured employee. Since then there has been a rapid succession of judicial decisions, some holding the carrier liable as a third party for negligent safety inspections or medical services, some holding the opposite. This article analyzes the state and direction of the law produced by these decisions and related legislative amendments, and proposes a solution