Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide

 

In another blog, Denver attorney Andrew Oh-Wilike reflects on his twelve years practicing law.  Among the lessons he learned, he explains, is what we hear from most honest attorneys: that the lessons taught in law school have very little practical application in the real world.  Among other things, Oh-Wilike explains:

 

The hardest lessons for an idealist young lawyer to learn are that (1) the law as applied at the trial court level frequently differs dramatically from the law described in textbooks and appellate court opinions, and (2) most cases should be settled even though this means your client gets less than the relief to which the law entitles him. The latter lesson is, to a significant extent, a product of the former. The life of law really is not reason, but experience. Many legal notions that should work don't. Many legal strategies that shouldn't work do.

 

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Any time you walk into a court room the outcome is always in doubt, no matter how strong your case . . . Many judges have great difficulty comprehending subtle or involved legal arguments much of the time. The legal reasoning in court orders is frequently far less rigorous than the legal reasoning in a lawyer's legal briefs.

 

Andrew's confessions -very typical among honest lawyers-is not the subject of this month's article.  However, his observations -that the published law is applied inconsistently (often not at all) and that the outcome of disputes is uncertain- reflect poorly on our courts' performance, because it is indicative that stare decisis is dead.

 

The doctrine of stare decisis requires the courts to follow principles established in earlier decisions-similar cases must be decided in similar ways for consistency, uniformity, predictability and fairness. When courts depart from this, litigants cannot be sure of whether the law governing or protecting their property rights, familial associations, civil liberties and reputations are enforceable.  Litigants, and their attorneys, may waste tens of thousands of dollars and hundreds of hours preparing a case or an appeal based upon a moving target, unsure of whether the published law will be the law used to determine the outcome.  Certainly, we saw this in the recent and typical Tenth Circuit decision in Harrington v. Wilson.  Thus, outcomes are unpredictable -as Andrew has observed-and may be viewed as capricious, arbitrary or other forms of judicial fiat, especially the exercise of will, rather than judgment.

 

As noted above, the doctrine of stare decisis is a hallmark of our system; the role of the judge is not to make law but to decide cases in accordance with existing legal rules as determined in prior decisions.  Departure from this -where judges are perceived as making law- is often called, "judicial activism."  However, the most common form of departure from stare decisis is simply not applying any cognizable law (including the governing precedent) to a particular set of facts or, perhaps, misstating the facts so as to support a desired outcome (usually dismissal) of a case, so as to abstain from reaching the true merits.  Professor Karl Llewellyn charged that judges engage in, "manhandling .  . . [of] the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule, which, in fact, does not fit, or especially that if falls outside of a rule, which would lead in the instant case to a conclusion the court cannot stomach.  Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133.

 

This form of departure can be best described as judicial non-activism. Hence the subject of this month's article by Chad M. Oldsfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide, appearing in the Georgetown Law Journal, Vol. 94, p. 121, 2005.

 

The underlying concern about judicial inactivism is a recognition of the possibility that judges fail to perform the minimal components of the judicial function. The consequences of such a judicial failure to act - typically the preservation of the status quo - will generally be no less significant than those resulting from judicial action. Indeed, since improper judicial inaction might be harder to detect than improper judicial action, one might suppose that we should be more concerned about judicial inactivism than we are about judicial activism. Oldfather's article attempts to provide an answer to the question of what judicial inactivism is. In so doing, he draws on previous efforts to articulate models of civil adjudication, and unites that literature with the largely distinct body of work addressing the topic of judicial sincerity. His goal was to articulate at least some of the components of the adjudicative duty - a court's minimal adjudicative obligations when presented with a justiciable claim over which it has jurisdiction.

 

Next month, we will discuss how judicial inactivism is implemented under the radar: through the use of unpublished, non-precedential decision.