Eyal Zamir (Hebrew University of Jerusalem) has published "With No Reason: Allowing Courts to Decide Cases Without Explaining Their Decisions" on SSRN. Here is the abstract:
There is broad consensus that there are features of adjudication from which no deviation should be allowed—the quintessential one being the requirement that judges provide reasons for their decisions, based on the pertinent legal norms. In fact, current rules of civil procedure do not permit the parties to agree otherwise, with or without the approval of the court. This article challenges the common wisdom and suggests that, subject to the court’s approval, the parties should be allowed to agree to a non-reasoned decision. Drawing in part on insights from jurisprudence, democratic theory, behavioral law and economics and empirical legal studies, the article first explores the pros and cons of judicial reason-giving. It then proposes a legal reform, according to which in civil disputes, courts will be allowed, with the consent of the litigants, to decide cases without citing reasons for their decisions. This alternative route of deciding cases is expected to ease the burden on overburdened courts. The article discusses ways to mitigate the downsides of non-reasoned decisions, including the restriction of this option to agreements made after the filing of the lawsuit (that is, excluding pre-litigation agreements). The article analyzes the expected effect of the proposed reform on the behavior of litigants, the content of judicial decisions, and the functioning of the court system (including appellate federal courts).
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