08 February 2007

Defending and Challenging ‘Minimalism’ Empirically

A January 11th 2007 piece in the Financial Times (‘Corporate America Discovers the Limits of Judicial Sympathy’, p. 9) raises intriguing questions with regard to the pro’s and cons of minimalism as an approach to Supreme Court adjudication. The article by Patti Waldmeir and Brooke Masters in addition lends force to a theme recurrent in much recent scholarship: the importance and the difficulty of empirical defenses of prescriptive theories of adjudication.

‘Minimalism’ currently has two principal propagators: Chief Justice Roberts on the bench and Professor Cass Sunstein in academia. The Chief Justice made his preference for minimalist rulings clear in a Commencement Address he delivered last year at Georgetown, saying: "If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more”. Chief Justice Roberts’ defense of minimalism is principally rule-of-law based in the sense that it is an outgrowth of his wish for as much agreement among the Justices as possible. Consensus among the Justices, desirable for reasons of clarity and authoritativeness, would push strongly in the direction of narrow focused rulings.

Professor Cass Sunstein has propagated minimalism in much of his writings, including his 1999 book ‘One Case at a Time: Judicial Minimalism on the Supreme Court’. Minimalism as a practice, in Sunstein’s approach, describes two central features of judicial opinions: (a) narrowness and (b) shallowness. Narowness means deciding specific issues in cases actually before the Court, rather than laying down broad rules for future application. Shallowness describes the avoidance of discussions of questions of basic principle, grounding decisions instead on what Sunstein has called ‘incompletely theorized agreements’.

Sunstein’s defense of the use of the practice of minimalism - the prescriptive part of his theory - is built on a mix of normative and positive elements. One part of the defense is based on the idea that minimalism is the appropriate outlook for a fallible court in a strongly heterogeneous society with functioning democratic institutions. The second part of his defense turns on pragmatic considerations: minimalism will make it easier for time-pressed Justices to agree (Chief Justice Roberts’ point) and minimalism “is likely to make judicial errors less frequent and (above all) less damaging” (One Case at A Time, p. 49).

Interestingly enough, Sunstein himself has been one of the lead advocates for empirical defenses of prescriptive theories of adjudication - albeit with regard to another theory - in particular in his 1999 article ‘Must Formalism Be Defended Empirically?’ (Answer: Yes, to a large extent. The paper can be found on SSRN here). The questions Sunstein identifies in that article as relevant to an empirical defense of formalism may be transposed to discussions on minimalism. They would then read:

(a) Whether a [minimalist] or [nonminimalist] judiciary will produce more mistakes and injustices;

(b) Whether the legislature will anticipate possible mistakes or injustices in advance, and whether it will correct them after they occur, and do so at relatively low cost; and

(c) Whether a [nonminimalist] judiciary will greatly increase the costs of decision, for courts, litigants, and those seeking legal advice, in the process increasing the costs associated with unpredictability.

No empirical work with regard to these questions seems to have been carried out (but I’d be very happy to be corrected on this point!) and the Waldmeir/Masters piece is confirmation of how difficult such work would be.

Sunstein himself has been equivocal about the crucial empirical question of whether minimalism as a practice would in fact lower total error costs, writing: “A court that economizes on decision costs for itself may in the process ‘export’ decision costs to other people, including litigants” (One Case at a Time, p. 48). Neil Siegel, in his 2005 critique of Sunstein’s work on minimalism - A Theory in Search of a Court, and itself: Judicial Minimalism at the Supreme Court Bar, available online here - has written that “pre-empirically, it appears more likely that whatever costs the Court saves itself by taking a minimalist path will be outweighed by the costs incurred by litigants, lower courts, and, political bodies”. (A Theory in Search of a Court, p. 2006). But again; this assessment is, as emphasised by the author: pre-empirical.

Waldmeir and Masters have interviewed a number of business litigators on their stance towards the Chief Justice’s avowed preference for minimalism and his efforts to achieve unanimous decisions. No uniform verdict becomes evident. In general, the ‘business community’, predictably, appreciates uniformity, but dislikes uncertainty-inducing narrowness. The authors write, quoting a trial lawyer: “narrow opinions leave a lot of uncertainty - and, given the high cost of US litigation, ‘uncertainty is a big negative for the business community’”.

Systematic interviews among litigators and their clients may be indispensable in measuring the extent to which a minimalist Supreme Court devolves decisional costs on others. However, even if agreement can be found among litigators and clients as to the actual aggregate effect of particular decisions (taking both the benefits of judicial agreement and the costs of narrowness into account) the critical question remains of which decisions may properly be qualified as minimalist in the first place and may therefore serve as relevant sample.

The Sunstein/Siegel debate demonstrates the difficulties involved in the elaboration of such a - falsifiable - descriptive notion of minimalism. The central problem is the fact that a decision can only truly be identified as minimalist, if it may be compared with hypothetical alternative reasoning and outcomes (i.e. if we don’t know what other options the Justices had, how can we say their chosen path was more minimal than alternatives?). Such hypothetical alternatives are generally not available (although they may sometimes be embodied in concurring opinions).

The Waldmeir/Masters article does not touch upon these issues, but it does point the way, to some extent, for future empirical research.

First, the article shows that business law will likely be the most profitable area of law for the construction of a sample of minimalist decisions and the measurement of their costs. Rather than in the controversial political, moral and ethical debates for which Sunstein originally developed his ‘incompletely theorized agreements’ and on which context much of his normative defense of minimalism is based, it may be in technical questions of business law that the costs and benefits of minimalist judging can be most easily measured.

Secondly, the article shows that it will be useful to make an initial selection of unanimous or near-unanimous decisions for sample construction. The Chief Justice’s own defense of minimalism puts a lot of emphasis on unanimity as desired result and minimalism as merely a tool to achieve that result. It may be assumed therefore that in the aggregate, unanimous or near-unanimous decisions will be more minimalist than other decisions in the same areas of law. In Chief Justice Roberts' own words: "The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground". In this quote, the shift in Roberts' own assessment of the relationship between agreement and narrowness is crucial; we move from: narrow decisions leading to a greater likelihood of agreement/unanimity, to: the presence of unanimity giving rise to an inference of a relatively narrow decision. A focus on this group of decisions replaces the difficult search for hypothetical alternatives with regard to the same case, with a - perhaps slightly less difficult - search for real alternatives with regard to similar cases and questions.

Professor Sunstein discusses the Roberts address here, in an LA Times Op/Ed.

Last week (February 6th 2007), Sunstein's Chicago colleague Geoffrey Stone discussed Roberts' views on minimalism in a Chicago Tribune Op/Ed ('A Narrow View of the Law') which can be found here.

1 comment:

  1. Give me minimalism every time. Glad to see Roberts, as head honcho on the court, is pressing this approach. Our constitution says nothing of foreign law as a basis for the Big Boys' decisions. So, why do some on the court nsist that foreign law is relevant? One example.

    --Jack Payne