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NONPARTY PARTICIPATION AS A (PARTIAL) REMEDY TO PROCEDURALIST CONCERNS OVER JUDICIAL REVIEW

Published online by Cambridge University Press:  07 December 2018

Geoffrey D. Callaghan
Geoffrey D. Callaghan*
Affiliation:
McGill University, Faculty of Law
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Abstract

The argument I defend in this paper takes for granted that the proceduralist indictment against judicial review is at least partly justifiable, and that a complete theory of democratic legitimacy will therefore attempt to address it to the greatest possible degree. I examine how the indictment can be addressed via the practice of nonparty participation, whereby members of the general public may seek participatory involvement in a court proceeding despite not being directly implicated by the dispute at issue. Through this practice, courts acquire a means to expose themselves to a cross-section of societal influences, which in turn can be said to improve the legitimacy of the decisions they render from a procedural perspective. Importantly, however, such legitimacy will not be transmitted spontaneously, as if the mere fact that courts allow nonparties to participate is all that is needed to address the proceduralist's concern. The crux of my argument is that only when the practice is conceived in a particular way, and is subjected to the appropriate conditions, does it have a genuine chance of realizing its legitimating promise.

Type
Research Article
Information
Legal Theory , Volume 24 , Issue 4 , December 2018 , pp. 255 - 290
Copyright
Copyright © Cambridge University Press 2018 

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References

1. Recent data suggest that since 1990, at least one amicus brief had been filed for over 90 percent of the appeals to the U.S. Supreme Court. See Paul M. Collins, Jr., Friends of the Court: Interest Groups and Judicial Decision-Making (2008).

2. See Kearney, Joseph D. & Merrill, Thomas W., The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743 (2000)CrossRefGoogle Scholar (for the U.S. context); Neudorf, Lorne, Interventions at the UK Supreme Court, 2 Cambridge J. Int'l & Comp. L. 16 (2013)CrossRefGoogle Scholar (for the UK context); Williams, George, The Amicus Curiae and Intervener in the High Court of Australia: A Comparative Analysis, 28 Fed. L. Rev. 365 (2000)Google Scholar (for the Australian context); Alarie, Benjamin R. D. & Green, Andrew J., Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance, 48 Osgoode Hall L. J. 381 (2010)Google Scholar (for the Canadian context).

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10. Id. at 426.

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14. Note that Section 19.2(2) of the Civil Procedure Rules of the United Kingdom allows courts to add an interested party either if it is “desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings” or “if there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.”

15. See Regina v. the Lord Chancellor, ex parte Witham [1997] 2 A11 ER 799.

16. See Brief of U.S. District Judge Lewis A. Kaplan as Amicus Curiae, Stein v. KPMG, LLP, 486 F.3d 753 (2d Cir. 2007).

17. Rule 37(3)(a) of the Rules of the Supreme Court of the United States provides that “an amicus curiae brief in a case before the Court for oral argument may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file under subparagraph 3(b) of this Rule.”

18. See Schweitzer, Dan, Fundamentals of Preparing a United States Supreme Court Amicus Brief, 5 J. App. Prac. & Process 523, 531–537 (2003)Google Scholar for a good description of nine different kinds of briefs that may be filed by an amicus curiae in the United States.

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20. The conception is commonly referred to as “the legal model” in the literature. See Kearney & Merrill, supra note 2, at 775–779. As Kearney and Merrill note, it is “without doubt the ‘official’ conception of how information, including that provided by [nonparty participants], influences judges.” Id. at 776.

21. Baroness Hale, Who Guards the Guardians? Public Law Project Conference: Judicial Review Trends and Forecasts (October 2013), http://www.publiclawproject.org.uk/resources/144/who-guards-the-guardians. Note also that of the four functional theories outlined by S. Chandra Mohan for amici curiae in the United States, only one escapes a purely instrumental description. See Mohan, supra note 12, at 367–376.

22. Luiza Chwialkowska, Rein in Lobby Groups, Senior Judges Suggest, Nat'l Post, April 6, 2000.

23. Ryan v. Commodity Futures Trading Commission, 125 F.2d 1062 (7th Cir. 1997).

24. Harrington, supra note 19, at 699.

25. Anderson, supra note 19, at 411.

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30. See Owens, Ryan C. Black & Ryan J., Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence, 71 J. Pol. 1062 (2009)Google Scholar; Sheehan, William Mischler & Reginald S., Public Opinion, the Attitudinal Model, and Supreme Court Decision-Making: A Micro-Analytic Perspective, 58 J. Pol. 169, 173 (1996)Google Scholar.

31. Ronald Dworkin, Taking Rights Seriously (1977), at 84–85.

32. See id. at 84–86.

33. Feldman, Morten Bennedson & Sven E., Lobbying Legislatures, 110 J. Pol. Econ. 919, 920 (2002)Google Scholar. For in-depth discussions on each of these aspects of lobbying, see Schnakenberg, Keith E., Informational Lobbying and Legislative Voting, 61 Am. J. Pol. Sci. 129 (2017)CrossRefGoogle Scholar (for the informational model) and Austen-Smith, David, Campaign Contributions and Access, 89 Am. Pol. Sci. Rev. 566 (1995)CrossRefGoogle Scholar (for the campaign contribution model).

34. Dan Clawson, Alan Neustadtl & Mark Weller, Dollars and Votes (1998), at 68.

35. See Timothy M. LaPira & Herschel F. Thomas, Revolving Door Lobbying: Public Service, Private Influence, and the Unequal Representation of Interests (2017), at 11.

36. Consider, for instance, that a 2011 study by the National Journal surveying 300 of the top congressional staffers in Washington reported that 93 percent were of Caucasian descent, 68 percent were male, and virtually all had at least obtained a bachelor's degree from a postsecondary institution. Dean Praetorius, Congressional Staffers: Who Are the People Behind the Scenes?, Huffington Post/Nat'l J., June 17, 2011.

37. These include the semirecent constitutional developments in Canada, Israel, New Zealand, and South Africa. See Ran Hirschl, Toward Juristocracy: The Origins and Consequences of the New Constitutionalism (2004), at ch. 1.

38. Id. at 11.

39. Id. at 51.

40. For judges’ concern about the legitimacy of the court, see Flemming, Roy B. & Wood, B. Dan, The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods, 41 Am. J. Pol. Sci. 795 (1997)CrossRefGoogle Scholar; Mishler, William & Sheehan, Reginald S., The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 Am. Pol. Sci. Rev. 87 (1993)CrossRefGoogle Scholar. For judges’ concern about their decisions being overridden, see Lee Epstein & Jack Knight, The Choices Justices Make (1998) and Stimson, James A., MacKuen, Michael B. & Erickson, Robert S., Dynamic Representation, 89 Am. Pol. Sci. Rev. 543 (1995)CrossRefGoogle Scholar. For the law clerk perspectives, see Lynch, Kelly J., Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J. L. & Pol. 33 (2004)Google Scholar. Note also that the author of one well-known study whose results questioned the veracity of this claim was careful to explain that

I caution the reader regarding the utility of the affected group hypothesis [the hypothesis that “the mere presence of a large number of interests on one side of the dispute” influences the Court to a greater extent than the legal or political arguments contained in the brief (Collins, Paul M. Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 Law & Soc. Rev. 807, 814 (2004)CrossRefGoogle Scholar] as operationalized here. Specifically, while I am confident in the results that a relative advantage of amicus participants does not increase the likelihood of litigation success, I am hesitant to call the affected groups hypothesis lifeless. Here I have assumed that an advantage of amicus briefs, relative to one's opponent, represents the fact that the litigant possesses more opportunities to present the Court with alternative or reframed arguments than does the litigant's opponent. While I doubt this assumption is completely unjustified, I nonetheless recognize that it is not operationalized. Thus, I believe it is imperative to acknowledge that fact that it still may be affected groups that increase litigation success.

Collins, Friends of the Court, supra at 828.

41. See Hirschl, supra note 37, at 168, where he writes:

there is much to question regarding the claim that bills of rights have been or are likely to be agents of effective reform in advancing progressive notions of distributive justice. That the evidence of this is unclear is particularly significant, since concern for these interests is a cornerstone for validating and enhancing judicial authority. Yet the data presented here point in the opposite direction. Whereas the constitutionalization of rights does have crucial importance in affirming marginalized identities and enhancing the status of individual freedoms, its independent impact on ameliorating the socioeconomic status of historically disenfranchised groups is often exaggerated.

42. On this particular point, see Philip Pettit, On the People's Terms: A Republican Theory and Model of Democracy (2012), at chs. 3, 4.

43. Galanter, Marc, Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc. Rev. 95 (1974)CrossRefGoogle Scholar, especially Figure 3 at 125.

44. See generally Volume 33, Issue 4 of Law & Society Review (1999), which was an issue dedicated exclusively to the question “Do the ‘Haves’ Still Come Out Ahead?”.

45. Epp, Charles R., The Two Motifs of “Why the ‘Haves’ Come Out Ahead” and Its Heirs, 33 Law & Soc. Rev. 1089, 1093–1094 (1999)CrossRefGoogle Scholar.

46. Collins, Paul M. Jr., Amici Curiae and Dissensus on the U.S. Supreme Court, 5 J. Empirical Legal Stud. 143, 166 (2008)CrossRefGoogle Scholar; Collins, supra note 1, at ch. 6.

47. Hettinger, Virginia A., Lindquist, Stefanie A. & Martinek, Wendy L., Acclimation Effects and Separate Opinion Writing in the U.S. Courts of Appeals, 84 Soc. Sci. Q. 792 (2003)CrossRefGoogle Scholar; Forrest Maltzman, James F. Spriggs II & Paul J. Wahlbeck, Crafting Law on the Supreme Court: The Collegial Game (2000); Wahlbeck, Paul J., Spriggs, James F. II & Maltzman, Forrest, The Politics of Dissents and Concurrences on the U.S. Supreme Court, 27 Am. Pol. Q. 488 (1999)CrossRefGoogle Scholar.

48. Dworkin, Ronald, Judicial Discretion, 60 J. Phil. 624 (1963)CrossRefGoogle Scholar; Dworkin, Ronald, Review: Wasserstrom: The Judicial Decision, 75 Ethics 47 (1964)CrossRefGoogle Scholar; Dworkin, supra note 31, at chs. 2, 3, 4, 13.

49. Collins, supra note 1, at 151.

50. Id. at 166 (note that Collins's study is specific to the U.S. Supreme Court).

51. See Waldron, supra note 5.

52. As Waldron writes:

The point of a legislative assembly is to represent the main factions in the society, and to make laws in a way that takes their differences seriously rather than in a way that pretends that their differences are not serious or do not exist. That such a body cannot usually proceed on the basis of deliberative consensus is thus not an embarrassment, but a tribute to this particular approach to the making of laws: the idea is that we will make our laws in full cognizance of our disagreements, not in a way that attempts to finesse them.

Id. at 27.

53. See Kearney & Merrill, supra note 2, at 783; Murray, supra note 11; Daly, Nancy, Amicus Curiae and the Public Interest: A Search for a Standard, 12 Law & Pol'y 389 (1990)CrossRefGoogle Scholar; Koch, John, Making Room: New Directions in Third Party Intervention, 48 U. Toronto Fac. L. Rev. 151 (1990)Google Scholar; Bryden, supra note 4; Kristov, supra note 13, at 711; Barker, Lucius J., Third Parties in Litigation: A Systemic View of the Judicial Function, 29 J. Pol. 41, 56 (1967)CrossRefGoogle Scholar; see also Section 8.8.2 of the Supreme Court Practice Directions in the United Kingdom, where it is said that “[l]eave is given to such bodies to intervene and make submissions … in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain.”

54. See Garcia, supra note 4, at 348–352; Harrington, supra note 19, at 677–682; Collins, supra note 1, at ch. 3; Schneider, Andrea Kupfer, Unfriendly Actions: The Amicus Brief Battle at the WTO, 7 Widener L. Symp. J. 87 (2001)Google Scholar; O'Conner, Karen & pstein, Lee, Court Rules and Workload: A Case Study of Rules Governing Amicus Curiae Participation, 8 Just. Sys. J. 35 (1983)Google Scholar.

55. See Act of Serudunt (Rules of the Court of Session) (Amendment No 5) (Public Interest Intervention in Judicial Review) (2000) SSI 2000/317 at 58.19(4).

56. See Sreenivasan, Gopal, What Is the General Will?, 109 Phil. Rev. 545 (2000)CrossRefGoogle Scholar.

57. A speculative hypothesis: Could the inclusion of a public interest condition on interveners in the United Kingdom account for the significantly lower rate of nonparty participants in UK Supreme Court cases (33 percent) than in the United States (90 percent) where no such condition applies? See Collins, supra note 1, at 45, for the U.S. numbers, and JUSTICE, To Assist the Court: Third Party Interventions in the Public Interest (2016), at 9, for the UK numbers.

58. For a comprehensive account of many of the themes in this area, see Susan N. Herman, The Right to a Speedy and Public Trial: A Reference Guide to the United States Constitution (2006); see also Sandefur, Timothy, In Defense of Substantive Due Process, or, The Promise of Lawful Rule, 35 Harv. J. L. & Pub. Pol'y 284 (2012)Google Scholar; Krishnan, Jayanth K. & Kumar, C. Raj, Delay in Process, Denial of Justice: The Jurisprudence and Empirics of Speedy Trials in Comparative Perspective, 42 Geo. J. Int'l L. 747 (2010)Google Scholar.

59. Warren E. Burger, What's Wrong With the Courts: The Chief Justice Speaks Out, U.S. News & World Rep., Aug. 10, 1970, at 69 (address to American Bar Association meeting).

60. As Hannah Arendt reminds us, “it is the people's support that lends power to the institutions of a country.” Hannah Arendt, On Violence (1970), at 41. For a broad explanation of this general idea, see Sonja Zmerli, Kenneth Newton & Jose Ramon Montero, Trust in People, Confidence in Political Institutions, and Satisfaction with Democracy, in Citizenship and Involvement in European Democracies: A Comparative Analysis 35 (Jan W. van Deth, Jose Ramon Montero & Anders Westholm eds., 2007).

61. For a good discussion on this debate (albeit in the context of campaign finance reform), see J. Tobin Grant & Thomas J Rudolph, Expression vs. Equality: The Politics of Campaign Finance Reform (2004), especially ch. 2.

62. U.S. Fed. R. Civ. P. 11(b)(1).

63. Garcia contends that the four elements captured by U.S. Federal Rule of Civil Procedure 11(b)(1)–(4) would “provide a better threshold for the acceptance or rejection of amicus briefs” than what exists in that system at present. Garcia, supra note 4, at 349. As each of those elements goes to the legitimacy of information in the brief rather than the object of the brief's argument, however, I would challenge Garcia on the claim that his conception actually meets more general standards of democratic legitimacy.

64. UK Criminal Justice and Courts Act, 2015 c 2. In particular, as JUSTICE outlines in its 2016 report on third-party interventions in the United Kingdom:

There is now a statutory presumption that interveners should bear their own costs and a party to the judicial review cannot be required to pay an intervener's costs unless exceptional circumstances make this appropriate. [In addition, a] party may apply to the court to request that the intervener pay that party's costs arising from the intervention. The court must make such an order if one of the following conditions are met: (a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent; (b) taken as a whole, the intervener's evidence and representations have not significantly assisted the court; (c) a significant part of the intervener's evidence and representations relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the state of the proceedings; or (d) the intervener has acted unreasonably. However, the courts retain their discretion not to award costs if it would be inappropriate to do so.

JUSTICE, supra note 57, at 51.

65. HL Deb 27 Oct 2014, Col 998.

66. See JUSTICE, supra note 57, at 27–30.

67. Bryden, supra note 4, at 514.

68. There is another variable in an overall assessment of fairness that bears noting here. It could reasonably be argued that an evaluation of fairness is not only about who stands to be affected by some decision, but about how they stand to be so affected. Consider, for instance, a litigant who faces the death penalty, or a decision that carries the potential for a very high financial reward. Can it be said that giving nonparties the opportunity to influence those kinds of decisions is fair, even if the general public stands to be affected by them in some way? I think that it can, and for the same reasons offered in the passage above. As I have explained the relationship, a proceeding-based restriction helps to ensure that nonparty participation is limited to cases where the public interest hangs in the balance. And where the public interest is implicated in a case that carries the potential for a severe penalty, it stands to reason that the ensuing interest will be quite significant in turn. This is so due to the biconditional nature of the relation between penalty and offense, where (if sentencing is fair) as one variable rises, so too will the other. In this respect, the balance I am alluding to in the body of the paper remains intact even when we factor in this other consideration.

69. Much work has been done on the effectiveness of joint interventions as a means of persuading the court on some point of law, but very little has been said on the normative merits of the action. On the former issue, see Lynch, Kelly J., Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J. L. & Pol. 33, 56–69 (2004)Google Scholar; Stephen M. Shapiro, Amicus Briefs in the Supreme Court, 10 Litig. 21, 24 (1984); JUSTICE, supra note 57, at 30–33.

70. For an elaboration of this argument, see Schlozman, Kay Lehman, Verba, Sidney & Brady, Henry E., Participation's Not a Paradox: The View from American Activists, 25 Brit. J. Pol. Sci. 1 (1995)CrossRefGoogle Scholar; Geoffrey Brennan & Loren Lomasky, Democracy and Decision: The Pure Theory of Electoral Preference (1993), at ch. 5.

71. A few salient examples include:

  • *

    * The U.S. Context: Rule 37(1) of the Rules of the Supreme Court of the United States provides that “an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

  • *

    * The UK Context: Section 8.8.2 of the Supreme Court Practice Directions for the United Kingdom provides that “[l]eave is given to such bodies to intervene and make submissions … in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain” and, further, that, “an intervention is however of no assistance if it merely repeats a point which the appellant or respondent has already made.”

  • *

    * The Australian Context: The guiding precedent for being granted leave to intervene in Australia states that the applicant must be “willing to offer the court a submission on law or relevant fact which will assist the court in a way in which the court would not otherwise have been assisted.” Levy v. State of Victoria (1997) 189 CLR 579 at 604.

  • *

    * The Canadian Context: In Canada, “the salient question [for being granted leave to intervene] is whether the intervenor will bring further, different and valuable insights and perspectives that will assist the Court in determining the matter.” Canada [AG] v. Pictou Landing First Nation (2014) FCA 21 at para 9.

72. U.S. Federal Rule of Civil Procedure 24(b)(3) reads: “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”

73. This is of course not to say that all litigating parties will in fact be motivated on the basis of personal reasons—a number of litigants, especially in constitutional cases, will likely bring their dispute to court out of a sense of responsibility to the community—but only that the rules around standing ought not to prohibit litigants who are in fact motivated exclusively on this basis.

74. See Friedlander, Lara, Costs and the Public Interest Litigant, 40 McGill L.J. 55, 93–97 (1995)Google Scholar; Fox, L. M., Costs in Public Interest Litigation, 10 Advoc. Q. 385, 393–396 (1989)Google Scholar. For a general perspective on cost-related issues in relation to public interest litigation (in the United Kingdom, Australia, and Canada), see Tollefson, Chris, Costs in Public Interest Litigation Revisited, 39 Advoc. Q. 171 (2011)Google Scholar.

75. See JUSTICE, supra note 57, at 5, 79–80; Justice/Public Law Project, A Matter of Public Interest (1996), at 32–33, 38–39; Response of the Senior Judiciary to the UK Ministry of Justice's Consultation Paper, Judicial Review: Proposals for Further Reform (November 2013), at 44; Willmott, White & Cooper, supra note 3, at 611–612; John Koch, supra note 53, at 166–167.

76. H. L. A. Hart, The Concept of Law (3d ed. 2012), at 126.

77. Consider, for instance, the substantive criteria enumerated by JUSTICE concerning permission to intervene. In its report, the organization notes that “[i]n most kinds of proceedings, there are no formal criteria by which the judge decides whether to grant permission to intervene. Instead, each application is considered on its own merits.” I believe this state of affairs is caused by the fact that, “[i]n practice, the main criterion for whether to grant permission is whether the proposed intervention would provide the court with some information, expertise or perspective not already provided by the parties, and which would assist the court in performing its role.” JUSTICE, supra note 57, at 50.