Executive branch agencies typically use a process of "notice-and-comment" to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. In this Article, Professors Abramowicz and Colby argue that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these concerns, and could also help to constrain judges to follow the rule of law and to improve the legitimacy of the judicial process.
GW Paper Series
GWU Legal Studies Research Paper No. 446; GWU Law School Public Law Research Paper No. 446
Michael Abramowicz & Thomas Colby, Notice-and-Comment Judicial Decisionmaking, 76 U. Chi. L. Rev. 965 (2009).