Tuesday, December 13, 2011

New Faculty Publication: Watts on Constraining Certiorari

Kathryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U. Pa. L.  Rev. 1 (2011), available on SSRN.

Professor Watts latest article considers similarities between the U.S. Supreme Court's "discretion to set its own agenda" with administrative law.
Although certiorari and administrative law certainly differ, both involve congressional delegations of discretion to a less accountable body and therefore both raise concerns about accountability, transparency and reasoned decision-making.
The article provides a history of certiorari, the relevance of the administrative law analogy to certiorari reform, a comparison of checks on both systems, and some possible solutions to the Court's discretion based on administrative law principles. Some of these suggestions include:

  • Congressional legislation providing more specific standards to be used by the Court in making certiorari decisions
  • requiring the Court to give reasons or disclose votes on denials of certiorari petitions
  • increasing public participation through the filing of amicus briefs

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