|
COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. FACTS, LAW, AND ASSUMPTIONS A. Facts B. Law C. Assumptions 1. The objectivity of law 2. Professional expertise 3. Right answers 4. Judicial motivation 5. Other rules held constant 6. Other courts? 7. Political constraints ignored II. LAY JUSTICES AS ERROR-MINIMIZERS A. The Expertise Argument for Lay Justices 1. Some taxonomy and terms 2. Lay Justices, expertise, and bias B. Tradeoffs and Uncertainty C. Deliberation and Expertise D. Dual Competence? III. THE REPRESENTATION OF EXPERTISE A. Make or Buy? B. Incorporating Legal Expertise C. The Benefits of Representation IV. PROBLEMS AND IMPLICATIONS A. Decision Costs B. Endogenous Agendas, Endogenous Rules? C. Intracourt Deference D. Extensions and Scope CONCLUSION: PHILOSOPHER-KINGS AND ACCOUNTANT-JUSTICES
"I told you before I'm not a scientist. (Laughter.) That's why I don't want to have to deal with global warming, to tell you the truth.'"
--Justice Antonin Scalia ([dagger])
"Breyer says that if the only thing that matters is historical truths from the time of the Constitution, "we should have nine historians on the court.' Scalia says.... that a court of nine historians sounds better than a court of nine ethicists. "
--Dahlia Lithwickt ([double dagger])
INTRODUCTION
By "lay Justices" I mean Justices of the Supreme Court of the United States who are not accredited lawyers. Currently the number of lay Justices is zero, although there is no constitutional or statutory rule that requires this. Commentators who urge that the Supreme Court should be diverse on all sorts of margins--methodological diversity, ideological diversity, and racial or ethnic or gender diversity (1)--say little or nothing about professional diversity on the Court.
I shall suggest that the optimal number of lay Justices is greater than zero, under specified empirical conditions. I do not know whether those conditions actually hold, but on the other hand no one knows that they do not. It is very plausible that the conditions do hold, in which case the status quo of zero lay Justices is an implausible extreme. In the strong form of the argument, it would be a good idea (whether or not it is a politically feasible one) to appoint a historian, economist, doctor, accountant, soldier, or some other nonlawyer professional to the Court. In a weaker form of the argument, I also suggest that at a minimum, we should appoint more dual-competent Justices--lawyers who also have a degree or some other real expertise in another body of knowledge or skill.
The topic of lay Justices has been examined only briefly in previous work, (2) and only on populist or jurisprudential premises quite different than the ones advanced here. It is no part of my argument that it would be more "democratic" to have courts with some nonlawyers; that some fraction of the cases that reach appellate courts are pervasively indeterminate, so that legal expertise runs out; (3) or that law, or constitutional law, or Supreme Court constitutional law, is "politics" anyway. (4) Rather the argument is based on expertise. Lay Justices have technocratic advantages: a Court with at least some lay Justices will reach more right answers across the total set of cases than will a Court with zero lay Justices.
To bias the inquiry against lay Justices, I assume that law is an objective body of knowledge to which legal training supplies privileged access; that there is a single right legal answer in all cases, even hard cases; and that Justices are sincere and vote their best assessment of the legal merits in each case. Even under these assumptions, I suggest, a multimember Supreme Court with some lay Justices will do better at reaching right legal answers in some class of cases, and will plausibly do better on net across all cases, than a Court composed solely of lawyer Justices. This is because legal training will cause lawyer Justices to do worse on average at deciding an important class of cases, even according to legal criteria, than nonlawyer Justices. At a minimum, a Court with some dual-competent Justices will do better in this class of cases than a Court composed solely of pure lawyers.
The relevant class is made up of cases in which law itself requires that judges make decisions based in part on nonlegal knowledge. There are two subclasses of cases within this class: (1) cases in which law draws upon specialized knowledge that is not itself legal, such as economic, medical, or military expertise; and (2) cases in which law draws upon knowledge that is neither specialized nor legal, such as knowledge of "the mystery of human life" (5) or "evolving standards of decency." (6) In the former subclass, nonlawyers bring to the bench distinctive expertise that can make decisions better. In the latter subclass, lawyers have systematic and correlated biases induced by common professional training, but a bench composed of both nonlawyers and lawyers will have uncorrelated or random biases or at least a lower degree of correlation; the aggregate decisionmaking competence of the group will thus improve if the Court contains at least some lay Justices.
There are tradeoffs to be made because lay Justices will do worse than lawyer Justices in cases where specialized legal knowledge is all that matters. But no sensible guess about the shape of the tradeoffs would suggest that the optimal number of lay Justices is zero. A well-motivated appointer--a kind of benevolent planner for the judiciary--would appoint more than zero lay Justices, in part to diversify and thereby hedge our bets in the face of uncertainty and disagreement about how a well-functioning Court should be composed. The costs and benefits sketched here apply, in diluted form on both the cost and benefit side, to the appointment of dual-competent Justices.
Part I provides factual and legal background and then adopts an array of restrictive assumptions, deliberately biased in favor of a bench exclusively composed of pure lawyer Justices. Part II, the core of the discussion, identifies the major tradeoff: although a bench composed solely of pure lawyers will minimize judicial error in cases in which law draws solely upon specialized legal knowledge, a bench with some lay members will do better at minimizing error when law draws upon knowledge that is not both specialized and legal. So long as the latter class of cases is not trivial, then a multimember court that includes more than zero lay members is likely to minimize errors across a total array of cases that includes both classes. At a minimum, dual-competent Justices would improve on the current Court, which is dominated by pure lawyers.
Part III examines an important objection: the bodies of knowledge that drive the argument in Part II can be incorporated into judicial decisionmaking through deference to administrative agencies, special masters, and juries, and through briefs and arguments by parties and amici curiae. This is a question about whether people with the relevant bodies of knowledge should be brought inside the boundaries of the judicial firm; it is analogous to the make-or-buy decision that private-sector firms face. Under conditions of high transaction costs, I will suggest, it is better to appoint people with the relevant knowledge to the bench than to rely on case-by-case incorporation of knowledge. On this view, expertise in domains outside of law should be institutionalized through a kind of representation, by putting at least some nonlawyer Justices or dual-competent Justices on the Court.
Part IV examines some problems and implications, such as the effect of lay Justices on decision costs; endogeneity issues, such as the effect of lay Justices on the Court's agenda and on the content of the legal rules it creates; whether lay Justices would be excessively deferential to lawyer Justices, or vice-versa; and whether and how the argument extends to lower appellate courts in the federal system or to other types of courts. A conclusion follows.
I. FACTS, LAW, AND ASSUMPTIONS
A. Facts
Lay judges are hardly novel. Many legal systems today use lay judges at some levels of the judicial hierarchy. I will briefly survey some major liberal democracies and other nations, but we should be aware of subtle institutional factors that make comparison difficult. Chief among these are that in many legal systems law is not taught in separate professional schools; judging is a separate career from advocacy rather than a later stage in the advocate's career; and judges may--by the terms of their tenure, position, and promotion--be more analogous to Anglo-American administrative officials than to federal Article III judges or Justices. Still, some sense of the comparative landscape helps put matters in perspective. (7)
In the United States, lay judges of various sorts sit in some forty states, although usually on low-stakes matters, and in some cases subject to de novo review by a lawyer-judge. (8) In the United Kingdom, Lords without legal training heard appeals in the House of Lords until 1834; (9) today, lay magistrates or justices of the peace hear certain classes of civil and criminal cases, (10) In Germany, lay judges sit on all courts of first instance that have criminal jurisdiction; in the Amtsgericht, which hears civil and less serious criminal cases, one professional judge sits with two lay judges, whereas in the Landgericht, which hears all serious criminal cases, three professional judges sit with two lay judges. (11) Japan recently introduced lay judges into its criminal justice system. Criminal cases are heard by a panel composed of three career judges and six lay judges, but the career judges cannot be narrowly outvoted; when the decision is made by a majority vote, the majority must include at least one career judge. (12)
It is sometimes assumed that lay judges are only used on (1) courts of first instance and (2) in low-stakes matters, such as might be handled by a justice of the peace. However, a surprising number of nations use nonlawyer judges on appellate courts or courts that hear serious criminal charges. These include Austria, the Czech Republic, France, Italy, and Sweden, as well as Latvia, Cuba, and Kosovo. (13) The last two nations go farther and put nonlawyer justices on the highest appellate court, while in France, nonlawyers serve on the Conseil Constitutionnel, the highest constitutional authority. (14) Most nations, however, have a legal requirement or an implicit practice that allows only trained lawyers to serve on appellate courts of last resort.
In the United States, no nonlawyer has ever served on the federal Supreme Court in the modern era. The qualifier "in the modern era" refers to the era of accredited law schools and legal requirements that students attend such a school, requirements that became universal around 1950. Even before the modern rules took hold, however, every person nominated to the Supreme Court had received substantial legal training, perhaps by way of apprenticeship or study towards a bar exam. (15) In that sense, we can drop the qualifier and just say that no nonlawyer has ever served on the Court. (16) The Court's history conspicuously lacks any Justices who were soldiers, engineers, professional politicians, historians, philosophers, economists, accountants, or doctors and who were not also lawyers. (Part II will examine the possibility that one can have one's cake and eat it too, simply by appointing to the Court lawyers who also have expertise or experience in other professions or bodies of knowledge.)
B. Law
If there were some controlling rule of law requiring all Justices to be lawyers--in either the modern or the older sense--then the argument I offer here could just be cast as an argument for changing that rule. Still, it is worth pointing out that there is no such rule; nothing in the Constitution, statutes, precedents, or legal traditions bars the President from nominating nonlawyers for the Supreme Court.
Articles II and III of the Constitution specify that the President shall nominate and, with the Senate's advice and consent, appoint "Judges of the supreme Court," who serve "during good Behaviour." (17) The United States Code merely says that "[t]he Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate Justices, any six of whom shall constitute a quorum." (18) Any rule barring lay Justices from the Court would have to be read into these texts by forcible implication.
Precedent does not bar lay Justices either. Some have argued for a sweeping rule of due process requiring that all adjudication be performed by lawyers. (19) To date, however, the courts have not accepted these claims. Forty of the fifty states still use nonlawyer adjudicators in some parts of their court systems, and although the state supreme courts that have addressed the question have reached different answers about whether and in what circumstances due process requires the initial adjudicator to be a lawyer, (20) apparently no court says that all adjudication without exception must be performed by lawyers.
At the level of the federal Supreme Court, a few cases have addressed due process constraints on the qualifications of initial adjudicators, as opposed to appellate judges. The Court has never said that all judges must be lawyers, or anything close to that; in general, the Court's main concern has been with neutrality and bias, not legal training or expertise. In a 1976 case, North v. Russell, the question was whether a person accused of a crime with a possible sentence of imprisonment could be tried by a state police court judge. (21) The Court said yes, in part because the accused had a right to a de novo retrial before a law-trained judge, and in part because there was no suggestion of bias. (22)
The import of the North decision for the composition of multimember appellate courts of last resort is obscure. Suppose a rule of due process that no person could be subjected to any legal harm--a fine, prison sentence, or civil judgment--except by a law-trained trial judge. It is hardly obvious that such a rule would require every last judge on the jurisdiction's highest appellate court to be a lawyer; the two questions are only loosely related. If eight out of nine, or even five out of nine, Justices of the high court were lawyers, why would due process require more? Due process does not automatically make unconstitutional any procedure that has never been used before. If the technocratic argument for lay Justices is valid, then having some lay Justices will increase the Court's accuracy overall; the thrust of modern due process law is that procedural innovations with that effect will usually be unobjectionable. (23)
The reason there is little precedent on the question whether due process requires appellate judges to be lawyers is surely that, in the federal system and in the states, all appellate judges are lawyers anyway; the problem has never arisen. This suggests a type of constitutional argument from tradition. Perhaps the global tendency that nonlawyers are generally excluded from the highest appellate courts, and the longstanding American pattern that no nonlawyer has ever sat on the Supreme Court, supply a good normative reason to exclude nonlawyers from the Court in the future. Traditionalists will assume that there is some latent wisdom or epistemically valuable aggregated judgment in the repeated decision of many presidents over time never to appoint a nonlawyer, and in the parallel practice of most other countries to exclude nonlawyers from their high courts.
On the other hand, there are many longstanding behavioral regularities which have no latent wisdom behind them at all and lack any epistemic value whatsoever; this may well be one of them. Perhaps nonlawyers have never been appointed to the Court, in this country, just because most people have thought, stupidly, that what has never been done in the past must be illegal or harmful. (24) Paradoxically, those who rely upon tradition or longstanding practices as the basis for forming their own judgments do not contribute anything to the epistemic value of the practice, because they are not forming their own judgments independently. (25) In a more Benthamite vein, the organized legal profession has attempted to exclude nonlawyers from all courts, although it has been only partly successful. Behavioral regularities may rest on various forms of herding or cascades, informational or reputational, or on the power of interest groups, or on any number of other bases that deprive them of epistemic import.
Moreover, if the longstanding practice of appointing only lawyers to the Supreme Court is to be taken seriously, one must hold the view that of 110 people who have served on the Court, not one should have been a nonlawyer, and that, at present, not one of the nine Justices should be a nonlawyer. This is an extreme solution that might be right, but is usually wrong in complex institutions whose personnel must be chosen under conditions of uncertainty. Indeed, the very unanimity of the practice makes it suspect. Rather than suggesting latent wisdom, it may suggest that the practice rests on a kind of thoughtlessness, such that no one has considered and rejected the arguments for professional diversity on the Court; it may even suggest that the practice arises from interest-group power, just as a plebiscite in favor of the reigning leader is suspect if 100% of the population votes in favor.
C. Assumptions
Discussions of the optimal composition of the Supreme Court tend to bog down in questions about the nature of law, the nature of the appellate caseload, the normative theory of adjudication, and the positive question of what judges maximize. I sidestep these issues by adopting artificial assumptions that are maximally biased in favor of pure lawyer Justices. It is straightforward to argue for lay Justices or dual-competent Justices on the grounds that many appellate cases are legally indeterminate, that the legal profession is just a cartel that lacks any distinctive expertise, that law or constitutional law is all "just politics," or that the concept of democracy somehow requires representation of nonlawyers on courts, and so on. The argument here does not depend upon these views or their near relations.
Instead I make the following assumptions: that law constitutes an objective body of knowledge; that professional training confers distinctive expertise in that knowledge; that all cases have right answers; and that judges are (1) sincere and (2) vote their view of the legal merits. If the optimal number of lay Justices is greater than zero even under these restrictive assumptions, it will be even larger once some or all of the assumptions are relaxed. I also assume that that all current rules regarding the Court--the tenure of its members, the process by which they are selected, and the voting rules they use--are held constant. A few comments on each assumption follow.
1. The objectivity of law
I assume that law is objective, in the following sense: law consists of a body of observer-independent knowledge in the same way, or to the same degree, as medicine or military science or accounting. There are many other conceptions of objectivity; I have chosen a minimalist one that is plausible, mundane,...
Read the full article for free courtesy of your local library.
|
Bookmark this article
Print this article
Link to this article
Email this article
Digg It!
Add to del.icio.us
RSS
