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Notice-And-Comment Judicial Decisionmaking, Michael B. Abramowicz, Thomas Colby
Notice-And-Comment Judicial Decisionmaking, Michael B. Abramowicz, Thomas Colby
GW Law Faculty Publications & Other Works
Executive branch agencies typically use a process of "notice-and-comment" to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. In this Article, Professors Abramowicz and Colby argue that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these …
Citation To Legislative History: Empirical Evidence On Positive Political And Contextual Theories Of Judicial Decision Making, Michael B. Abramowicz, Emerson H. Tiller
Citation To Legislative History: Empirical Evidence On Positive Political And Contextual Theories Of Judicial Decision Making, Michael B. Abramowicz, Emerson H. Tiller
GW Law Faculty Publications & Other Works
We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit mostly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political-ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative …