June 30, 2010
Is It Best For Judges To Regulate Late, If At All?
Posted by David Zaring

I noted that courts have formed an unimportant part of the financial crisis interventions by the government, and that the end of the Supreme Court's most recent term suggests that it gets to matters years, if not decades, after they have become settled law one way or the other.

Is this a bad thing?  Bainbridge says no:

The very nature of their social role precludes judges from being proactive regulators. They can make law, of course, but they can't do so without an actual case or controversy to use as a vehicle for doing so. Finding a case that has the right facts and the right procedural posture to make new law can take quite a while. This is especially true for the SCOTUS, of course, since it can take years for cases to find their way through the lower court system.

When it comes to complex issues like the financial crisis, moreover, why would we want judges being "proactive participant[s] in the regulatory system"? Consider the Supreme Court. Nine old farts with hardly a day of business experience between them. Each has a staff of just four (I think) wet behind the ears law clerks who probably took all con law courses. I dare say there's nobody in the Supreme Court building who could tell you the difference between a CSO and a CBO. They simply don't have the expertise available that Congress and the regulatory bodies possess.

And, of course, the judiciary is the least accountable branch. If you're going to be in a position to plunge the entire world economy into a depression, you ought to be democratically accountable.

I'm not sure I disagree.  Legal scholars often focus on courts, which leads me to occasionally post (and write) often about how small a part of the legal picture they are (I say this with all modesty - I could be entirely wrong).  Whether you think this is ideal or detrimental depends on whether you think that as an institutional matter, courts are likely to help or hurt.  I spend much of my scholarly life ignoring them, so I would probably suggest that they can neither help nor hurt much in almost any particular matter in which I have an interest.  But there's no question that for some things they matter, it's just that for things like international economic law and financial regulation, they don't so much.  And I suspect the category of stuff for which they really do matter is smaller than most people think.

I suppose there's an implicit "and that's not so bad" in there.  In that, Bainbridge and I could probably write a majority opinion on a three blogger panel.

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