Judiciary

 

The first step in integrating the professional review into the system of checks and balances is to explain the concept. A professional review is a judgment by a group of experts from the relevant disciplines whether a legislative or administrative act has the desired properties of general benefits, consistency and efficiency. To keep such professional reviews from exceeding current knowledge in measuring these properties, the experts making such judgments would not be expected to render their personal opinions, but rather they would use their expertise to determine whether the analyses published by professionals in referred journals were in agreement or disagreement on the issue under consideration. To declare an act unconstitutional the experts would have to find general consensus that the act lacked at least one or the desired properties.

The consensus criterion  is imposed to limit the ability of any individual, for example a very liberal or a very conservative economist, to impose his personal opinions on government. Such a limitation is considered necessary in order to gain popular support for the concept. But because experts in the various disciplines are likely to have widely varying opinions on many government acts, it might seem that the consensus criteria in the professional review makes the professional review so weak that it will have little effect. Nevertheless, it will be demonstrated that properly integrated into the system of checks and balances, the professional review would promote a much better estimate of the common weal.

There are many ways in which a professional review might be integrated into government. To avoid adding to the complexity of an already complex government, the professional review should be integrated into one of the existing branches of government. In order to insulate the professional review from the short-time-horizon concerns of reelection politics, the professional review should not be placed in either the legislative or executive branch of government. This leaves the judiciary.

Let us now consider two ways in which the professional review might be implemented in the judiciary. First, one or more special courts could be set up as science courts to make professional reviews. Second, experts in various disciplines could be added to the bench of the current system of courts to enable the current courts to make professional reviews. We shall opt for the second approach by expanding the staffing of the judiciary to include judges-in-fact  as well as judges-in-law . The former would be experts in various disciplines and the latter would be traditional legal judges.

An important reason for expanding the judiciary to include experts from various disciplines is a fundamental response to the rapid rate of discovery in all disciplines. Judges-in-fact are needed to ensure that people making judgments in informational society are competent to understand what they are judging. As knowledge advances and is applied to all human endeavors, the ability of a jury of one's peers or for that matter judges-in-law to make competent judgments of fact on the basis of intuition will decrease. Furthermore, the jury and judges-in-law will become increasingly less competent to evaluate disputes between expert witnesses.

Thus, expanding the judiciary to include experts of various fields is necessary to ensure that the judges understand the evidence in the case. Since a single person is unlikely to understand all the issues of a complex case, a committee of experts spanning the law and facts to be presented in the case would increasingly judge cases. The assumption is made that jury trials would gradually be displaced by trial by expert committee. The proposed precedent for an expert committee trial is that if either party intends to use expert witnesses, then the case would be judged by a committee of judges competent to judge both the law and the expert witnesses.

Assuming the current heavy case load of the judiciary is unlikely to decline in the future, expanding the bench to include the new professionals would improve court performance. The Supreme Court would be expanded to, say, 15, together with corresponding enlargements to the courts of appeals and the district courts. The number of professionals from each profession should correspond to the number of cases requiring expertise in the respective profession. For example, physicists would be required to judge nuclear issues, chemists and biologists to judge environmental issues, medical doctors to judge medical issues, and psychologists to judge sanity issues. As a great many legal issues involve property, a large contingent of judges-in-fact would be professionals from business administration fields and economics. The number would undoubtedly vary over time and should be established by slowly changing customs rather than by Constitutional amendment or statute. The distribution in the number of judges from each selected profession would probably be biased towards the prestigiousness of the profession; nevertheless, over time the composition of professionals on the bench would roughly reflect the knowledge necessary to judge disputes.

In revising the judiciary, an important concern is the appropriate length of appointment  for members of the bench. To promote an independent judiciary the framers of the Constitution made appointment to the federal bench for life. But as lifetime expectancy has increased by several decades since 1790, does lifetime appointments still promote judicial performance? Maintaining lifetime appointments would promote independence and would also help to maintain the judiciary centered in the political spectrum, as each President would appoint only a fraction of the judiciary. This is desirable in order to achieve orderly change in law as knowledge advances.

On the other hand, an argument for shorter appointments is that they would ensure that judges' knowledge not become obsolete during office. So to achieve better performance with minimum changes to the current system, a compromise between these two options would be a requirement that federal judges retire at the age other professionals in their fields retire. If this criterion were applied in current society, judges, like university professors, would retire at seventy. This would promote more orderly change, especially in the Supreme Court, as judges would not have the option of trying to outlive a President who maintains a different political philosophy.

The next issue to consider is how technological advances could be employed to improve judicial performance. Currently the district and appeals courts have jurisdiction over specific physical districts. Within these physical districts the ability of judges to specialize in particular types of cases is limited. As knowledge advances, greater specialization would result in better judicial performance. The federal bench could become much more specialized if judges presided over cases throughout the entire country rather than the current physical districts. With advances in communication such a court system could be effectively administered through  teleconferencing . The system of courts would thus become a national system of teleconference centers, and the participants would simply use the nearest center. Judges would specialize in areas of law and would hear cases in their specialty nationwide. With teleconferencing and national case loads the judges would develop, through on-the-job training, a better understanding of the law and facts of their specialty than is currently possible, because of the much narrower range of cases over which they would preside.

A more specialized judiciary, however, creates a potential problem in maintaining the independence  of the judiciary from the other two branches of government. In a more specialized system of courts, economic interests strongly influenced by a particular judge would have a great interest in determining the next appointment. If judicial appointments were for narrow specialties, the judiciary would accordingly tend to suffer the same type of problems that independent regulatory agencies currently suffer. The most concentrated economic interest group would have great incentives to appoint a friend of the interest. To prevent this possibility, the power of appointment to particular cases should be solely the function of the judiciary. To assist in this process, an assignment committee would assign cases to judges based on the knowledge requirements in law and fact for each particular case. The bench would elect this committee with the appointments of each President electing one representative. The committee would elect a chairman each year from its elected members. For a large number of cases of a particular type, such as bankruptcy, the assignment committee might appoint a specialized court to sit in permanent session. These specialized courts would hear cases nationwide not just in a physical district. Moreover, to maintain independence from the other branches of government the assignment committee would reassign judges sufficiently such that the various interest groups in society would only have a general rather than a specific interest in the appointment of a judge. In addition, the review process would tend to limit the ability of outside interests to control specialized courts.

Assuming the judiciary would be able to maintain its independence from the legislature and executive, the quasi-judicial activities of the administration should be transferred back to the judiciary. Such a move would promote the original separation of powers between the judiciary and the other two branches. As was pointed out in Chapter 2, with the growth of the bureaucracy especially the independent regulatory agencies, the administration has acquired quasi-judicial activities, that is, adjudicatory judgments by administrative officials. One example is an administrative law judge of the National Labor Relations Board deciding an unfair labor practice case. Under the current system, administrative agencies tend to represent the interests of the group with the most concentrated interest in the agency and policies tend to shift abruptly with a change in the President. Long term regulatory performance should improve if control were passed to independent slowly changing judiciary competent to judge both matters in law and matters in fact .

The final aspect of reorganization of the judiciary would be to expand the scope of the judiciary to cover all new forms of expert dispute resolution. Given the costliness of traditional trials, newer forms of settling disputes such as small claims court and binding arbitration have been devised. Advocacy trials may not be the best mechanism for settling disputes involving scientific forecasts of future events. Undoubtedly, over time other forms of dispute resolution will be proposed and tried. All forms of dispute resolution by experts would become part of the new expended judiciary.

Having considered the reorganization of the courts, let us now consider how the courts would process professional  review cases. As is the precedent for judicial review cases, the judiciary would, to avoid interfering with the legislature and executive, only consider professional review cases brought before the court by an interested party after the legislature or the executive had acted. In that it is now generally accepted that the Supreme Court interprets the Constitution, the Supreme Court would have the last word in a professional review. For the professional review to create incentives for the legislature and the executive, the court must operationally define the meaning of the abstractions: consistency, general benefits, and efficiency. Given finite knowledge, of course, bounded rational judges will never be able to create a single set of definitions appropriate for all conditions and all times. Therefore, in judging cases the court would have to create a set of precedents or rules of thumb which would apply to categories of cases. These precedents would provide the legislature and the executive with useful information, as they would tend to define those actions which clearly would not pass a professional review.

To improve the adjustment of precedents to changing knowledge and conditions the analysis supporting a precedent should include a complete analysis of the impact of the precedent on society in addition to the traditional legal analysis. The legal analysis would be performed by the judges-in-law and the social impact analysis would be performed by judges in fact . With greater specialization, judicial opinions will improve thereby providing better adaptation of precedents to changing conditions and as knowledge advances and measurements improve, the requirements of a professional review would become more exacting.

Now let us consider the desired properties of general benefits, consistency, and efficiency in greater detail. A minimal requirement for general benefits  would be that all legislative and administrative acts be based on a complete analysis demonstrating that the proposed action is in the common weal. If the standards of this analysis were set as a demonstration of conclusive evidence, very few government actions would pass the general benefits test. Because estimates of the common weal differ widely between liberals and conservatives and because there are competing theories for most social phenomena, critics could successfully challenge almost every proposed government action. In order to provide a much greater range of government action, a lesser standard is proposed. For legislation or administration to be constitutional, the analysis would only have to be considered correct by one of the competing theories. Thus a President, in promoting his legislative program, would only have to ensure that the legislation was correctly analyzed by theories most congenial to his political beliefs.

While this criterion might seem very mild, it would have a great impact over time. As knowledge advances some theories are rejected as invalid by most practitioners in a profession. Once this happens any legislation or administrative action based on the rejected theories would fail to pass the criterion of general benefits. In the thirties much regulation of industry was enacted to obtain legal cartels in various industries. By the sixties most economists had rejected the theoretical basis of this type of legislation. Given a professional review, the deregulation of airlines, banks, and trucking might have occurred through the courts about ten years prior to the deregulation legislation of 1980.

Over time precedents would be established for the amount of evidence needed to establish general benefits in proposed legislation and administration. Very few laws have equal impact on all citizens; many, for instance, provide immediate benefits to a small group and indirect benefits, or even harm, to society as a whole. One example of this is legislation regarding basic research from which scientists enjoy the direct benefits and society enjoys the indirect. The principle which should be employed in making a general benefits test is that the smaller the subgroup which receives the direct benefits, the greater should be the evidence of general, indirect benefits. For example, at the very least most theories would have to concur that general indirect benefits existed. The precise evidence required to prove indirect benefits would change, of course, as knowledge and the ability to measure benefits advanced. For instance, by this measure expenditures on much basic research would pass the criterion, but expenditures to preserve homes on barrier islands along the Atlantic and Gulf coasts would not.

An exception to the general benefits rule is the case in which the cost of a service must be paid for by the recipients of the service. Currently licenses and special taxes on fishing and hunting gear pay for much of the government efforts in research and development of better fishing and hunting. This criterion would necessitate that the full cost of hunting and fishing promotion be paid by the recipients. Government services such as search and rescue would also be covered by this criterion. As microbinics advances the ability to charge recipients for such special services such as this will increase. Many programs have differential general benefits between the nation and the state where the facility is located. For example the super collider will advance particle physics worldwide, but will only provide local jobs for construction and maintenance. In such cases, the financing for such programs should be split between the higher and lower levels of government.

A special case of general benefits is the criterion of simplicity. The idea behind the goal of simplicity is that unnecessary complexity in government laws or programs is the fertile ground for creating unwarranted privileges. The classic example here is the old tax code, in which incredible complexity created numerous opportunities for special interests. In legislative and administrative acts, therefore, the burden of proof of performance should be placed on those who wish to replace a simple system with a more complicated system. For a more complicated system to replace a simpler system, there should be general agreement among the respective experts that the more complicated system is better. This challenge would serve to keep legislation and administration as simple as possible.

The second property of consistency  provides a professional criterion for analyzing the various subgoals of legislation and administration. Given the current, compartmentalized nature of legislative committees and administrative departments, serious inconsistencies in government actions arise. Moreover, voter comprehension of government is insufficient to demand consistency as a performance criterion. A classic example of this inconsistency is promoting tobacco through subsidies while at the same time mandating a hazard warning on cigarettes packages. The treatment of tobacco, alcohol, and drugs, for instance, is inconsistent with respect to the social harm of these substances. Another example is the inconsistencies in risk management by the government. Government regulation places much higher standards on preventing new risks than in reducing old risks. Old risks are covered by standard setting in which the industry's operations do not have to be modified until the regulatory agency issues a standard. In contrast, new risks are screened meaning the industry must obtain advance permission before beginning operations. For example, the Environmental Protection Agency sets standards for producing old chemicals, but screens the production of new chemicals. As a result, two inconsistencies arise. Generally new activities must pay for the cost of screening while the regulatory agency pays for the cost of setting standards. In addition, the standards for new activities are frequently much higher than those of old activities. These inconsistencies have negative social implications in that new technological activity is inhibited and insufficient effort is directed at reducing the risks of old activities. The precedent for inconsistency should be that if an inconsistency can be demonstrated to have negative social consequences, the court would provide the legislature a legislative session to resolve the matter before imposing a court mandated solution. With a challenge of consistency the tobacco subsidies would probably be eliminated. The challenge of consistency works to promote action towards more overall consistency in legislation and administration.

The third property of efficiency  would provide a criterion for numerous challenges to legislative and administrative acts. An example would be legislative interference in attempts by the administration to close inefficient facilities such as military bases. The efficiency property would give the administration a mechanism to pursue policies which were efficient nationwide, but which might cause a reduction in employment in a particular congressional district. In cases where the technology of some government operation has fallen behind the corresponding operation in the private sector, vendors of the new technology could challenge the inefficient government practice. Their incentive, of course, would be to promote sales of their new technology. This challenge would also promote the use of more sophisticated techniques to provide the correct level of public goods.

The requirement that the legislative and administrative acts have the desired properties of general benefits, consistency and efficiency could engender an extremely large number of professional review cases. To keep from being overwhelmed by such cases, the judiciary would adopt a precedent that professional review cases must be fought out in professional journals prior to submission to the courts. Thus, a brief to initiate a professional review case would have to be based on referred research published in a journal with a track record in previous professional review cases. Currently there are several reputable journals which specialize in policy analysis. The precedent for published research as a basis for initiating a professional review case would spawn numerous new journals. Undoubtedly, the bastion of market economics, the University of Chicago would immediately create one or more professional review journals explicitly for the purpose of pruning governmental excesses. Other universities would follow with additional creations.

The precedent that a professional review be based on published research would greatly increase the amount of policy research performed. But because of their heavy case load, the judiciary would be able to hear only a small component of potential professional review cases. For the professional review to have a major impact on the estimate of the public weal, the professional review must be integrated into the system of checks and balances to create powerful incentives for elected and appointed officials to incorporate the properties of general benefits, consistency, and efficiency into proposed legislative and administrative acts prior to enactment.

Legislature