Complex cases and responsive courts: navigating epistemic uncertainty

The concern over the institutional competence of courts lie at the heart of many complex cases, from climate and technological change to social and abortion rights. Judges face a myriad of epistemic uncertainties: legal, factual, subsumptive, remedial, and polycentric.

However, there is a risk that these concerns are:

1. reified to such an extent that courts abdicate their role in providing accountability and deliberation (deferentialism);
2. ignored such that courts over-confidently prescribe solutions (vigilance); or
3. both (formalism).

Instead, this presentation argues that courts should be responsive to these sources of complexity. This involves drawing on procedural techniques that may optimise the shared competences of different actors, acknowledging the underlying normative tensions, and assessing contextually the appropriate course of action.

This approach can enable courts to generate reflexively outcomes - at times experimentally, at times firmly - that are both legitimate and effective. Drawing on illustrative judgments as well as optimisation theory from economics and regulatory theory, this presentation fleshes out how courts can seek to improve the quality of decision-making in complex cases.

About the speaker

Malcolm Langford is a Professor of Public Law, University of Oslo and Director of the Centre on Experiential Legal Learning (CELL), a Centre for Excellence in Education (SFU). He is also an Adjunct Professor of Law, University of Bergen and a Visiting Fellow at the Gilbert + Tobin Centre on Public Law, UNSW Sydney.

His work spans international law, comparative constitutionalism, human rights, and technology and the law, and he has won several international prizes for his work on adjudication. He is the Co-Editor of the Cambridge University Book Series on Globalization and Human Rights and was previously the Co-Director of the Centre on Law and Social Transformation, CMI and University of Bergen (2014-2021), Director, Global School on Socio-Economic Rights (2012-2019) and Chairperson of the Academic Forum for Investor-State Dispute Settlement (ISDS) (2019-2021), which assists the UNCITRAL investment arbitration reform process.

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This seminar presentation will be in-person only.

Image credit: Light painting illustrating nonlinear dynamical systems by Kevin Dooley from flickr (CCBY 2.0)