Instituttlunsj: Judging Complex Cases

How should courts adjudicate complex issues like climate change, social rights, or abortion rights in constitutional law and beyond? 

In this lunch seminar, Malcolm Langford will present his book project on how a model of judicial responsiveness can help courts navigate difficult cases. He argues that judges often respond to such cases with a fixed set of heuristics, as represented in formalism, deference, and vigilance. However, these approaches risk underplaying the challenges of complexity and its accompanying epistemic, moral, and sociological uncertainties. It can also ignore the possibilities for optimising dispute resolution and sustaining both judicial legitimacy and constitutional accountability. 
 
Drawing on complexity and regulatory theories, the book argues for responsive judging. Here, courts seek to balance their integrity with openness, exercising greater agility in the choice of heuristics and mobilising a broader array of judicial techniques to probe and address uncertainty. While the feasibility of such a model varies according to the national context, responsiveness has traces in most jurisdictions and can be advanced with certain changes in judicial education, court design, and litigation strategy. Moreover, responsive judging holds promise in moving towards a constitutional paradigm of transformative incrementalism, in which courts make their distinct, though limited, contribution to democratic and social change.