NCJ Number
72560
Journal
Commentary Volume: 63 Issue: 1 Dated: (January 1977) Pages: 37-44
Date Published
1977
Length
9 pages
Annotation
The new areas of adjudication that have opened up in U.S. courts are discussed, together with the rationale for the courts' changes in scope and an examination of whether or not these changes are desirable.
Abstract
New areas of adjudication have included extensions to welfare administration, educational policy, road building, and natural-resource management. Sometimes these take the forrm of judicial review provisions written into new legislation, and some result from bureaucratic activity. These activities seem to be concomitant to the growth of the welfare state. Compelling the performance of certain affirmative acts is nothing new in principle, but is new in degree. Litigation is now more explicitly problem-solving than grievance-answering. The individual litigant, though still necessary, has tended to fade a bit into the background. The individual case and its peculiar facts have become mere vehicles for an exposition of more general policy probes. As the courts have moved more broadly into policymaking, significant social groups thwarted in achieving their goals in other forums have turned to adjudication as a more promising course. Major doctrinal developments have both followed and contributed to the increase in number and the change in character of issues being litigated--the loosening of requirements of jurisdiction, standing, and ripeness helped spread judge-made law. More often than not, judicial remedy has a directness, a concreteness, and a lack of equivocation that are absent in schemes that emerge from the political process. Thus, the tendency to commit the resolution of social-policy issues to the courts is not likely to be arrested. The courts have become more democratically accountable. What still remains questionable, however, is not the legitimacy but the capacity of the courts. The judicial process has reduced the number of participants and made it possible to cut through to an apparent solution. But the courts may find that while a policy decision goes one way in court, later the decision will be interpreted differently. Sensitive judges may well begin to wonder whether the institution over which they preside, admirably suited to processing individual cases, is really the right setting in which to thrash out the perplexing social-policy questions that increasingly come to court. Several footnotes are provided.