CRUSADIDNG JUDGE - JUDICIAL ACTIVISM IN TRIAL COURTS

• NCJ Number: 60549
• Journal: Southern California Law Review Volume: 52 Issue: 3 Dated: (MARCH 1979) Pages: 699-741
• Author(s): M GALANTER; F S PALEN; J M THOMAS
• Date Published: 1979
• Length: 43 pages
• Sponsoring Agency: National Science Foundation
• Corporate Author: University of Southern California
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: EARLIER VERSION OF THIS ARTICLE WAS PRESENTED AT THE 1977 ANNUAL MEETING OF THE MIDWEST POLITICAL SCIENCE ASSOCIATION, CHICAGO, APRIL 21-23

Annotation

INSTANCES OF TRIAL JUDGE ACTIVISM IN THE DEPLOYMENT PROCESS ARE EXPLORED TO PROVIDE A CONCEPTUAL FRAMEWORK FOR UNDERSTANDING SUCH BEHAVIOR AND TO PROVIDE GUIDELINES FOR FURTHER RESEARCH.

Abstract

FROM THE LITERATURE AND RESEARCH CONDUCTED, A NUMBER OF WAYS IN WHICH TRIAL COURT JUDGES MAY DEVIATE FROM THE PROTOTYPE OF THE COMMON LAW JUDGE CAN BE IDENTIFIED. ONE TYPE OF ACTIVISM IS THE MOVEMENT FROM DEFERENTIAL SUBMISSION TO THE JUDGMENT OF OTHER AUTHORITIES TO ASSERTIVE WILLINGNESS TO DECIDE MATTERS OF POLICY INDEPENDENTLY. ANOTHER DEVIATION IS THE CONTRAST BETWEEN MECHANICAL RULE-FOLLOWING AND DOCTRINAL INNOVATION. A THIRD TYPE OF ACTIVISM IS JUDICIAL DEPARTURE FROM A PASSIVE ARBITRABLE STANCE TO AN ACTIVE MANAGEMENT ROLE IN THE CASES BEFORE THEM. ANOTHER DEPARTURE FROM LEGALISM OCCURS WHEN THE JUDGE SHIFTS FROM BEING AN ARBITER WHO ANNOUNCES BINDING DECISIONS TO BEING THE MEDIATOR OR CONCILIATOR WHO ARRANGES AN AGREEABLE SETTLEMENT. A FIFTH DEPARTURE IS THE SHIFT FROM THE JUDGE CONSTRAINED TO DECIDE IN ACCORDANCE WITH GENERAL RULES TO ONE WHO RESPONDS TO THE UNIQUENESS OF THE CASE BEFORE HIM. ACTIVISM SHOULD BE CONSIDERED NOT AS A SINGLE TRAIT BUT AS A CLUSTER OF KINDRED STYLES HAVING MANY MANIFESTATIONS. THE ENTREPRENEURIAL, OR ACTIVIST, STYLE SEEMS TO BE LINKED WITH A MOTIVATION TO 'MOVE UP' IN THE JUDICIAL HIERARCHY. PUBLIC IDENTIFICATION WITH AN ISSUE IS ONE WAY OF OBTAINING THE POLITICAL VISIBILITY NECESSARY FOR ENDORSEMENT TO A HIGHER JUDGESHIP. CONTRARY TO THE INITIAL ASSUMPTION OF THIS STUDY, HOWEVER, JUDGES MAY WELL BE SUITED TO SUCH ROLES. THEY HAVE CAREER INCENTIVES WHICH PROVIDE MOTIVATION AND A VANTAGE POINT FROM WHICH TO OBSERVE NUMEROUS INSTANCES OF CHRONIC FAILURE TO EFFECTUATE LEGAL POLICIES. THEY HAVE VAST DISCRETION AND FREEDOM FROM BUREAUCRATIC CONTROL WHICH ENABLES THEM TO COMMAND PUBLICITY, TO EXERT PRESSURE ON LAW ENFORCEMENT OFFICIALS, AND TO WITHSTAND PRESSURE FROM THOSE OFFICIALS. EXTENSIVE FOOTNOTES ARE PROVIDED. (LWM)