PIG: Accountable Authority: Simplifying judicial review for community-scale accountability of delegated decision-making

[robknight]

Title (same as in your application form)
Accountable Authority: Simplifying judicial review for community-scale accountability of delegated decision-making

Team member names
Rob Knight
Chris Wray

Short summary of your improvement idea
Radically simplify common law judicial review to provide communities and organizations with a protocol for non-experts to challenge decisions and hold accountable those with executive roles or other decision-making power on the basis of formal/procedural constraints, thereby driving development of the corresponding decision-making protocol to mitigate the risk of successful challenge.

FAQ
What is the existing target protocol you are hoping to improve or enhance? Eg: hand-washing, traffic system, connector standards, carbon trading.

How executive decision-makers are held accountable in England by judicial review (a special legal protocol by which individuals can challenge the decisions of governmental/public bodies) and the corresponding decision-making protocol that government adopts to mitigate the risk of challenge.

What is the core idea or insight about potential improvement you want to pursue?

Future network states/Coordi-Nations or other networked community-scale organizations will face the same need as nation states to hold those with executive roles accountable for their decisions and to ensure fair procedures to deal with diverse conflicting interests, and yet they will lack the nation-scale institutional infrastructure of a judicial system. While mechanisms for accountability that are fundamentally aggregative and stakeholder-based and therefore political (tokenholders, shareholders or voters acting to replace or overrule those in decision-making roles) can be partially effective, such protocols can be too strong (substituting a different policy rather than correcting procedural defects that undermine legitimacy) and are inherently poor at defending minority interests.

Our research hypothesis is that an English law judicial protocol developed since the medieval period to hold monarchs and governments accountable can be radically simplified while preserving its core insight that procedural constraints drive improvement in decision-making without requiring judges or third parties to substitute their own substantive decisions. A protocol by which individuals or groups can challenge decisions on procedural grounds can drive improvement of a protocol for decision-making that encodes procedural constraints on decisions, as decision-makers try to mitigate the risk of successful challenge of their decisions. Since the grounds for challenge are procedural, members of a community or organisation (e.g. a sortition-based panel) can determine a challenge without requiring judicial or other domain-specific expertise. Technology can partially automate decision-making and challenge protocols by guiding correct workflow and securely recording evidence of compliance.

What is your discovery methodology for investigating the current state of the target protocol? Eg: field observation, expert interviews, historical data analysis, failure event analysis

Review of case law and commentary to show the historical development of common law judicial review and the corresponding evolution of government decision-making protocol to mitigate against successful challenge of officials’ decisions.

In what form will you prototype your improvement idea? Eg: Code, reference design implementation, draft proposal shared with experts for feedback, A/B test of ideas with a test audience, prototype hardware, etc.

A written constitutional community governance framework to (i) share with scholars of constitutional law and blockchain governance for feedback, and (ii) adopt as governance framework for a place-based community; together with (iii) appropriate software to support community decision-makers and members in making and challenging decisions in accordance with protocol.

How will you field-test your improvement idea? Eg: run a restricted pilot at an event, simulation, workshop, etc.

Challenges to decisions that arise in the community will be documented. In addition, a series of workshops including mock challenges will be arranged to review and document the processes and outcomes.

Who will be able to judge the quality of your output? Ideally name a few suitable judges.

Prof. Julia Black at LSE, Eric Alston at CU Boulder, and Morshed Mannan at EUI have offered to give feedback on a draft constitutional governance framework based on these ideas.

How will you publish and evangelize your improvement idea? Eg: Submit proposal to a standards body, publish open-source code, produce and release a software development kit etc.

Open-sourced code and publicly-licensed constitutional governance framework; documentation of real/mock challenges and workshop proceedings.

What is the success vision for your idea?

Partially automated, constitutional governance frameworks become widely adopted by communities and organizations in an increasingly privately-ordered, networked future.

[_ic]

A simple question: The project looks generic, including in the title (and I believe it is). Is there something specific to England, compared to the UK, Europe and others?

[chriswray]

Thanks for the question. Given that our target domain is place-based communities and other community-scale organizations involving private ordering of real-world assets, England is our source domain for a judicial review/administrative review protocol for a couple of specific reasons.

First, the nature of power over land or real-world assets at community scale is closer to the absolute monarchies and later constitutional monarchies of the first centuries of development of English judicial review than to the European or post-colonial democracies in which other administrative review protocols developed. Property rights are more strongly entrenched than the powers of a political officeholder in a democracy; a property owner has greater legitimacy in wielding decision-making power over their property (which includes the directors/officers/trustees who wield power over corporate assets). A challenge protocol that owners/founders/executives who control private property will generally agree to submit themselves to will have to be less constraining than one applying to democratic officeholders who control state resources and policies in the name of the people. Protecting minority interests in private property looks different than protecting minority interests in a democratic state.

Secondly, European (particularly German, and because of German influence, also at the level of EU law) administrative review tends to have a more substantive focus i.e. more often involves substituting their own view of the correct decision or policy in accordance with a constitution (unlike England, typically having a written constitutional document that judges have the legitimate role to interpret) or statute. Doctrines of administrative review such as “proportionality” are often cover for judges deciding political trade-offs. Interpreting basic rights (including human rights) similarly involves more substantive interpretation of what is correct by judges rather than by political representatives. This is less likely to work in our target domain: at community scale, we cannot rely on any judicial expertise in interpreting constitutions or policy trade-offs; and judges in a democratic state with separation of powers have a legitimacy in this role that is lacking when ordinary members of a community are asked to review decisions made on behalf of private property owners. The procedural constraints that medieval and later English judges were able to impose on monarchs did not require democratic legitimacy on the part of the judges implementing those protocols. The simpler nature of applying a procedural constraint to the particular facts of an instance of executive decision-making means that ordinary community members are more likely to be competent to fulfil that role and to be seen as legitimate in doing so.

Finally, we are choosing English judicial review as our source protocol because it is the one I have expertise in!

[_ic]

Thank you very much for this very informative post. It now makes strong sense to focus on English specifically in this project, and shows there would be much to do for other systems, so talking potentially about starting a family of protocols here—an inspiration for others!