Notice-and-Comment Judicial Decisionmaking

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. This Article argues 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.