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I Noticed, Then Commented ? Thoughts on a New Application for the Notice and Comment Process

By Eric L. Lipman

Note: The following essay is slated for publication in the forthcoming Winter Issue of the Minnesota State Bar Association Public Law Newsletter. I thought that this item might likewise be of interest to readers of these pages.

At the close of last year, I had a something of an old home week. I had the chance to catch up with some professors ? Michael Abramowicz and Thomas Colby ? who are teaching at my alma mater. Abramowicz and Colby are leading lights in the faculty of the George Washington University?s National Law Center and had just posted their latest article to the Social Science Research Network.

In their article, Notice-and-Comment Judicial Decisionmaking (accessible here), Abramowicz and Colby argue that the notice and comment processes of administrative rulemaking might be useful in warding off error by state and federal courts. Noting that judicial opinions often contain errors that have far-ranging and untoward consequences, Abramowicz and Colby contend that if interested persons had an opportunity to preview yet-to-be finalized judicial opinions, commentators could assist the courts in avoiding error. As it is with administrative rulemaking, the professors explain, notice and comment procedures could improve the work product of, and public?s confidence in, our courts.

In keeping with their theme, Professors Abramowicz and Colby also suggested that I submit my reactions to their proposals for ?notice and comment? by others. I decided that I would write about the professors? work, and my own reactions to it, in these pages here. Whether you love or hate their suggestions, Abramowicz and Colby?s article presents ideas that every Public Lawyer should think about closely.

(The remainder of this essay is continued here.)

Full post as published by Within the Scope on January 20, 2009 (boomark / email).