NCJ Number
60074
Journal
Virginia Law Review Volume: 65 Issue: 1 Dated: (FEBRUARY 1979) Pages: 43-106
Date Published
1979
Length
64 pages
Annotation
ADJUDICATORY AND POLITICAL MODELS OF SOCIAL ADJUSTMENT AID IN EXPLAINING THE NATURE OF INSTITUTIONAL REFORM LITIGATION, AND IN THE EXAMINING THE INFLUENCE OF JUDGES IN SOCIAL REFORM.
Abstract
COURTS HAVE BECOME THE PRINCIPAL FORUM FOR THE PURSUIT OF STRUCTURAL REFORM BY MANY GROUPS DISGRUNTLED WITH THE DELIVERY OF GOVERNMENTAL SERVICES. IN RESPONDING TO THESE DEMANDS, JUDGES HAVE PLACED THEMSELVES IN THE UNFAMILIAR POSITION OF DESIGNING AND SUPERVISING MAJOR CHANGES IN INSTITUTIONS, AND ORDERING MASSIVE INCREASES IN EXPENDITURE. THE DEMANDS OF STRUCTURAL REFORM MAGNIFY THE EXPLICITLY POLITICAL DIMENSIONS OF LITIGATION. PARTIES HAVE USED LITIGATION LESS AS A MEANS OF AUTHORITATIVE RESOLUTION OF CONFLICT, AND MORE AS A MEANS OF REALLOCATING POLITICAL POWER. THIS TRANSFORMATION IN THE CHARACTER OF LITIGATION HAS ALTERED THE ROLE OF THE JUDGES, AS THEY WIELD POWER FAR BEYOND THE IMMEDIATE BOUNDARIES OF THE INDIVIDUAL CASE. AN EXAMINATION OF THE STRUCTURAL LIMITATIONS ON THE EXTENT TO WHICH JUDGES CAN USE THE ROLE OF POLITICAL POWERBROKER INDICATES THAT THE VERY SOURCES OF THE JUDGES' POWER LIMITS THEIR CAPACITY TO EXERCISE POWER. WITHOUT A CHANGE IN POPULAR ATTITUDES TOWARDS THE JUDGES' FUNCTIONS, THE VERY PROCESS OF ASSUMING THE ROLE OF POWERBROKER MAY STRIP IT OF ITS EFFICACY, AS JUDGES ABANDON THE ROLE OF NEUTRAL ARBITER, AND ASSUME THE FUNCTION OF SOCIAL MANIPULATORS. SPECIFIC TOPICS OF DISCUSSION INCLUDE THE USE OF ADJUDICATION AS AN INSTRUMENT OF REFORM, LITIGATION AS A BARGAINING GAME WITH RULES AND PLAYERS, AND THE LIMITS UPON JUDGES SUCH AS RESTRICTED TIME TO GATHER INFORMATION. JUDGES FACE A PHILOSOPHICAL DILEMMA BECAUSE OF THEIR AUTHORITY'S BASIS IN IMPARTIALITY, AND THE NEED FOR THEM TO BE SUBJECTIVE IN CREATING EQUITABLE RELIEF. FOOTNOTES ARE PROVIDED. (TWK)