The Download of the Week is Preventive Adjudication by Samuel Bray. Here is the abstract:
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This Article identifies, justifies, and explains the parameters of a
largely ignored but important category of cases – what is here called
“preventive adjudication.” In this category of cases, courts offer
opinions without any “command” to the parties, and these opinions are
meant to avoid future harm, not remedy past harm. Despite receiving
little attention in the legal literature, preventive adjudication is
pervasive throughout law. It happens in declaratory judgment actions
about wills, patents, and unconstitutionally vague statutes; in
paternity and maternity petitions; in petitions to have missing persons
declared dead; in boundary disputes; in actions to quiet title. This
Article explains what preventive adjudication is and how it should and
should not be used.
Preventive adjudication is intuitively appealing, because it
helps people avoid harm and clarifies the law. But there are downsides
to deciding cases in advance instead of waiting for remedial
adjudication. The argument for preventive adjudication is therefore a
qualified one. This Article identifies not only the merits of
preventive adjudication but also the crucial limiting principles. One
limiting principle is administrative and error costs; another is the
adequacy of discounting, i.e., taking into account the uncertainty of
future events. People discount for many kinds of uncertainty, and
discounting is usually adequate for uncertainty caused by law. But
discounting is inadequate when the law causes uncertainty about
inescapable threshold questions for human behavior, such as legal
parenthood, citizenship, marital status, or death. Discounting is also
inadequate for uncertainty about property rights, because uncertainty
undermines the policy reasons for having property rules in the first
place. Where discounting is inadequate, preventive adjudication is
especially valuable.
This Article also shows how this normative understanding of
preventive adjudication can be translated into the actual practice of
courts in the United States. Legal systems in the United States have
two ways of determining which cases should be decided by preventive
adjudication: sometimes they rely on judicial discretion to decide if
preventive adjudication is appropriate in each case (“retail sorting”);
and sometimes they specify categories of cases in which preventive
adjudication is available (“wholesale sorting”). An analysis of both
approaches shows that wholesale sorting – which is common in state
courts but almost unknown in federal courts – better aligns the actual
practice of preventive adjudication with the cases in which it is
justifiable.