11 August 2005

Tests and ‘frameworks for discussion’: the inevitable formalization of judicial discourse?

Back - a little later than expected - with new material on judicial 'tests'. Gary Lawson, Katharine Ferguson and Guillermo A. Montero have written an interesting Boston University Working Paper on the development of the Mathews and Penn Central decisions into cornerstones of modern due process and regulatory takings analysis. In ‘“Oh Lord, Please Don’t Let me Be Misunderstood!”: rediscovering the Mathews v. Eldridge and Penn Central Frameworks’, they take issue with the pervasive understanding of these judgments as setting out three factor ‘tests’. The Supreme Court in these cases, they argue, did not intend to announce ‘tests’ that should rigidly determine results in future cases. Rather, what the Court attempted to provide was a ‘lingua franca’, a common language for judges, attorneys and the public to talk and write about the issues involved. This, importantly, without losing sight of the fact that the final inquiry in all cases should be into the dictates of ‘fairness’ and ‘justice’. The authors show that early post-Mathews and Penn Central Supreme Court decisions understood the two judgments in this way, as frameworks for discussion rather than as decisional models, but that later rulings came to characterize them, wrongly, as ‘tests’.

The paper’s perspective, in my view, is novel and important. If the authors are correct in their appreciation of the original purpose of Mathews and Penn Central, this would have substantial implications for the sorts of criticism of the decisions that could be valid. More generally; I think much still can be learned about how and why certain decisions, that may have seem inconspicuous at the time, develop into full-fledged judicial ‘tests’. That said, two important questions remain unanswered by the paper: are we sure the Court did in fact intend these two decisions, Mathews and Penn Central, to be ‘mere’ frameworks for discussion and, more importantly, why did the discussion frameworks set out in the judgments morph into formalized tests?

The authors’ main argument for their view of the Court’s intentions is their analysis of the government’s briefs, from which they conclude that in both cases the Court did little more than adopt the framework suggested by the Solicitor General. I do not see how the fact that the Court merely repeated the arguments suggested by one of the litigants, especially where those arguments themselves attempted to summarize previous Court decisions, in itself provides proof that the Court did not intend its ruling as a ‘test’ that should determine the outcome in subsequent cases. In this respect, evidence provided by clerks and attorneys working on the original case, provided by the authors, surely is more convincing.

The paper barely touches on the second question (why did the frameworks change to tests?), saying at one point that the transformation happened ‘for no reason that is readily apparent’ (at p. 44). This issue seems fascinating and I hope the authors will perhaps come back to it in the future. I think the development is best described as an instance of formalization. The question of why and under what circumstances such formalization occurs seems absolutely intriguing. One central issue would be the capacity of legal communities to engage in long term open-ended discussions of ‘fairness’ and ‘justice’. On this point: could it be that the development described by the authors is inevitable?

Gary Lawson, Katharine Ferguson and Guillermo A. Montero,
‘“Oh Lord, Please Don’t Let me Be Misunderstood!”: rediscovering the Mathews v. Eldridge and Penn Central Frameworks’ (Boston University School of Law, Working Paper 05-12)

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