Michael D. Gilbert (University of Virginia School of Law) has posted Judicial Independence and Social Welfare (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
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Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and to resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas.
For two centuries scholars have debated those ideas and the underlying tradeoff, independence versus accountability. They have achieved little consensus, in part because independence raises hard antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one’s views about complicated issues like minority rights, the determinacy of law, and the nature of legalism itself. Those complications have paralyzed the debate.
This paper presents a way forward. It reduces the debate about independence into a small set of intuitive parameters and shows how they interact. The result is a framework for identifying the optimal degree of judicial independence. The framework transcends the thorny issues bogging down the debate by allowing scholars with diverse views and methodologies to input whatever assumptions they like and get an answer to the question, how independent should judges be?
The framework generates important insights. It shows that independence can implicate a new and fundamental tradeoff. Independent judges make some non-legalistic decisions, and each imposes a high cost on society. Dependent judges make more non-legalistic decisions, but each imposes a low cost on society. The framework also shows that society may prefer a dependent judge to adjudicate minority rights and that the determinacy of law can be irrelevant to the choice of judge. Finally, it shows that the debate rests on deep and contestable assumptions about the value of law. The question is not whether the legalistic decisions that independence is supposed to facilitate are better than non-legalistic alternatives. The question is, how much better?
Very interesting & recommended.