1 Richard A. L. Gambitta, Marlynn L. May, & James C. Foster, eds., Governing Through Courts (Beverly Hills, Cal.: Sage Publications, 1981). In the remainder of this essay, page numbers in parentheses in the text will refer to this book.Google Scholar

2 Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven, Conn.: Yale University Press, 1974).Google Scholar

3 Harris v. McRae, 448 U.S. 297 (1980).Google Scholar

4 See Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977).Google Scholar

5 See Marvin Schick, Judicial Activism on the Supreme Court, in Stephen C. Halpern & Charles M. Lamb, eds., Supreme Court Activism and Restraint 41–42 (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1982).Google Scholar

6 Because of his concern with lawyers' role in social change, Scheingold examines the impact of legal education on the attitudes and ambitions of prospective lawyers. That impact is the focus of James Foster's essay (ch. 9), which reports his findings on students in one law school.Google Scholar

7 Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States (2d ed. New York: W. W. Norton & Co., 1979).Google Scholar

8 Anthony A. D'Amato & Robert M. O'Neil, The Judiciary and Vietnam (New York: St. Martin's Press, 1972).Google Scholar

9 On lower-court activism more generally, see Mary Cornelia Porter & G. Alan Tarr, eds., State Supreme Courts: Policymakers in the Federal System (Westport, Conn.: Greenwood Press, 1982); Symposium: Judicially Managed Institutional Reform, 32 Ala. L. Rev. 267 (1981).Google Scholar

10 See Donald L. Horowitz, The Courts and Social Policy 1–12 (Washington, D.C.: Brookings Institution, 1977).Google Scholar

11 In the period from 1960 through 1977, the Court struck down about half as many federal laws and half as many state and local laws as it had throughout its entire previous history. The data are found in U.S., Library of Congress, Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 29, 1972, S. Doc. No. 92–82, 92d Cong., 2d Sess. (1973 & Supp. 1979).Google Scholar

12 See Friedman, Lawrence M. & Ladinsky, Jack, Social Change and the Law of Industrial Accidents, 67 Colum. L. Rev. 50 (1967); Croyle, James L., An Impact Analysis of Judge-Made Products Liability Policies, 13 Law & Soc'y Rev. 949 (1979). One legal scholar recently has cautioned against exaggerating the impact of common law rules, though he sees some types of rules as quite important. Epstein, Richard A., The Social Consequences of Common Law Rules, 95 Harv. L. Rev. 1717 (1982).Google Scholar

13 On the latter, see Robert E. Keeton, Venturing to Do Justice: Reforming Private Law (Cambridge: Harvard University Press, 1969).Google Scholar

14 Horowitz, supra note 10.Google Scholar

15 Id. at 18 (emphasis in original).Google Scholar

16 Horowitz did not define social policy explicitly, but his meaning is suggested by two of the examples that he used as case studies: the Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961), applying to state courts the exclusionary rule for illegally seized evidence, and Judge Skelly Wright's decisions in Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), 327 F. Supp. 844 (D.D.C. 1971), requiring redistribution of school resources within the District of Columbia.Google Scholar

17 See Horowitz, supra note 10, at 22–62.Google Scholar

18 Scheingold also alludes to the competence issue in a discussion of compliance with decrees (pp. 200–203). Unlike the other two essays, his reaches conclusions generally supportive of Horowitz.Google Scholar

19 E.g., Cavanagh, Ralph, & Sarat, Austin, Thinking About Courts: Toward and Beyond a Jurisprudence of Judicial Competence, 14 Law & Soc'y Rev. 371 (1980); Wasby, Stephen L., Book Review of Donald L. Horowitz, The Courts and Social Policy, 31 Vand. L. Rev. 727 (1978).Google Scholar

20 See Horowitz, supra note 10, at 293–98.Google Scholar

21 One such study is Cheryl Reedy's comparison of Supreme Court and congressional policy making on abortion. Reedy concludes that the Court does not fare badly in that comparison. Cheryl D. Reedy, The Supreme Court and Congress on Abortion: An Analysis of Comparative Institutional Capacity (paper presented at meeting of American Political Science Association, Sept. 3, 1982, Denver, Colo.).Google Scholar

22 Lief Carter has made a similar point more generally in a useful essay on the appropriate sphere of judicial policy making. Lief H. Carter, When Courts Should Make Policy: An Institutional Approach, in John A. Gardiner, ed., Public Law and Public Policy 141 (New York: Praeger Publishers, 1977).Google Scholar

23 Martin Shapiro, The Supreme Court and Administrative Agencies 52–54 (New York: Free Press, 1968).Google Scholar

24 Baum, Lawrence, Judicial Specialization, Litigant Influence, and Substantive Policy: The Court of Customs and Patent Appeals, 11 Law & Soc'y Rev. 823 (1977).Google Scholar

25 At least two caveats are in order. First, because of organizational practices and caseload composition a good deal of judicial specialization is inevitable even in supposedly generalist courts. A great many trial judges, for instance, hear solely or primarily criminal cases during a particular period. Thus specialization should be treated as a matter of degree rather than as a discrete characteristic. Second, the need for caution in increasing the specialization of courts does not mean that specialization always is inappropriate. For instance, Charles Carlton's essay in Governing Through Courts (ch. 8) concludes that the establishment in Northern Ireland of specialized courts to adjudicate cases involving political crimes has produced some important benefits. But we need to look carefully at the potential impact of proposals to make the courts more specialized, and it is especially important to avoid assuming that specialization will improve judicial functioning without affecting the substance of policy.Google Scholar

26 Horowitz agrees with Youngblood and Folse on this point. See Horowitz, supra note 10, at 298.Google Scholar

27 William Prosser's famous text on torts is nothing so much as a description of judges as policy analysts, in which the “public law” character of tort policy making comes across clearly. William L. Presser, Handbook of the Law of Torts (4th ed. St. Paul, Minn.: West Publishing Co., 1971). See also Green, Leon, Tort Law Public Law in Disguise, 38 Tex. L. Rev. 1 (1959).Google Scholar