Interrogatories

Abstract: THE laws of procedure for state and federal courts in the United States permit each side in a dispute to submit questions that the other side must answer before the trial begins ("interrogatories"), interview the other side's witnesses under oath ("depositions"), requisition documents, and inspect physical objects in dispute ("permission to enter land"). Requests for information can include any material relevant to the general subject of the dispute. Failure to respond fully and candidly to these requests can provoke a variety of sanctions by the court. As a whole, these laws are designed to enable each side to discover the other's legal arguments and the facts on which they are based. The American legal institution of discovery has been the subject of controversy since it developed this century, especially through reform of the federal rules of evidence in the 1930s.1 The debate involves a variety of claims about the use and abuse of discovery.2 From these claims, five

Abstract: it must be assessed according to the regulatory objectives found in the legal doctrines of that area The main information mechanisms by which law comprehends its environment are of course in law's genesis through Parliamentary debates and expert committees, and in the courts, where the application of the law requires expert judgements to be made on the needs of social systems A decision like Pepper v Hart6o illustrates how information previously excluded to courts can be brought within the sphere of the legal For Teubner, institutionalization (ie the transfer from environment to law) will occur when the courts can discover a 'transferable meaning which can be worked into and preserved in the conceptual structure of the law'6' This is the key idea which I believe explains the dynamics of legaladministrative evolution The mechanisms by which natural justice institutionalizes administrative complexity are not peculiar to natural justice but are expressed in the procedures available to a judge in any civil court, in his or her task of gathering the fullest picture of the context he or she seeks to regulate; for example, the rules relating to discovery or the admissibility of interrogatories Thus in the context of natural justice, these information mechanisms will be rigid or flexible according to the extent to which the court is able to assess the character of the decision-making under review and to gauge the impact of any decision to impose natural justice on other centres of administrative decisionmaking The crucial point in developing a theory of administrative-legal evolution is to see that the extent of the law's ability to respond to challenges to its principles will depend on the efficiency of its information mechanisms These provide, to modify Berger and Luckmann's term, the 'legal construction of social reality' which is embodied in legal principles Arguably, it is the rigid and inflexible character of these mechanisms in modem courts that hinder their capacity to respond intelligently and flexibly to the pressures exerted by the administrative environment An example will make this clearer We have indicated that the perceived complexity of administrative decision-making rendered the governing legal principle of natural justice, that procedural protection would be restricted to decision-making of a 'judicial' character, vulnerable The courts therefore extended the coverage of natural justice to both 'judicial' and 'administrative' decision-making The problem with this extension of natural justice into areas of complex administrative decision-making, such as statutory inquiries, is that it requires the court to assess the consequences of its decisions upon administrative systems, if it is to avoid making decisions which appear to judges to produce unforeseen and damaging consequences for these systems The information mechanisms refer to the means by which the court can expertly assess the complexity of the administrative environment by, inter alia, comprehending the consequences of a decision to impose natural justice An obvious example of an efficient information mechanism is the Brandeis Brief of the US, which allows (6 [1993] 1 All ER 42 61 See Teubner, 'Substantive and Reflexive Elements in Modem Law', op cit n 7 at 264 This content downloaded from 1575539163 on Wed, 21 Sep 2016 04:43:30 UTC All use subject to http://aboutjstororg/terms 202 Oxford Journal of Legal Studies VOL 14 judges to hear evidence of social and economic facts in reaching their decisions Applied to English natural justice the contention is that existing information mechanisms do not endow judges with the expertise necessary effectively to respond to the complexity of administrative systems62 The result of this is that the courts cannot respond fully to challenges to legal principles Citing Luhmann, for Teubner what is missing in the structure of modem law is: a conceptual system oriented towards social policy which would permit one to compare the consequences of different solutions to problems, to accumulate critical experience, to compare different experiences from different fields, in short: to learn63

Abstract: “By contrast, antitrust enforcement authorities can and do pool information from all majorsources and should have better information than investors. The enforcement authoritiescompel production of confidential documents and answers to interrogatories from the mergingfirms, their rivals, and their customers. As a consequence, one might seriously question theidea that it is possible to learn any more from the stock market.” Werden and Williams(1989) (emphasis added).

Abstract: A method and system to allow workers' compensation carriers to quickly and without significant expense identify reserve and subrogation funds that are, heretofore unbeknownst to the carrier, available due to unreported settlements or other resolutions of third party claims filed by the workers' compensation claimant. The method includes the steps of selecting categories of claims to review for possible reserve and subrogation funds, reviewing the carrier's data to identify claims that fit within the selected categories, transmitting form interrogatories to the claimant(s) in each of the identified claims, collecting information from the responses to the interrogatories, analyzing the responses to separate them into appropriate responsive categories and then using the response information to identify available reserve and subrogation funds. The information obtained from the responses is used to reduce the carrier's reserve fund requirement, to reduce or stop payments to claimants or for other uses beneficial to the carrier.