Legal Commentary

The time has come for me to bring my guest stint to a close.  Before I sign off completely, I want first to note that I've posted an updated, and incrementally more complete, version of my Judicial Process Course Materials here.  The new version includes sections on judicial ethics, as well and federal and state judicial selection.  I'm well aware that I've got a lot of work to do, and continue to welcome comments.

Finally, I want to close with one last judicial process-related thought.  Most lawyers who have done appellate work have had the experience of getting from the court an opinion that seems to resolve a different case.  Sometimes a court will overlook an issue completely. Other times it will merely omit reference to certain facts or authorities that, in the eyes of at least one of the parties, are of critical importance.  These are but a few variations of what I have referred to more generally as "judicial inactivism."

A few years back I offered up a partial solution.  What if, I asked, we gave the parties a little space of their own in opinions? In particular, what if we required opinions to include "framing arguments" - essentially, party-generated statements of the issues before the court?  It wouldn't preclude courts from engaging in inactivism.  But it might make them less likely to do so, both because it would underscore for judges the importance of being responsive to the parties and because it would make it easier for the public to monitor judicial behavior.  It might even encourage lawyers to put a little more care into formulating their appeals.  (The full paper is here for anyone interested in learning more.)

I wouldn't mention it if I didn't still think it's a good idea.  It's hardly perfect, but on balance it seems to me worth trying.