NCJ Number
182522
Journal
Michigan Law Review Volume: 97 Issue: 6 Dated: May 1999 Pages: 1994-2036
Date Published
May 1999
Length
43 pages
Annotation
This analysis of Feeley and Rubin’s 1998 book "Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons" praises the insights on the history of prison reform litigation and also argues that the book is flawed by mismatches between the litigation underlying the author’s theory and the theory itself.
Abstract
The discussion notes that Feeley and Rubin aim to transform understanding of judging and of law by expanding it to include policymaking as well as interpretation. Their subsidiary goals are to describe the history of prison reform litigation and to present a sociological description of the institutional phenomenology of judicial decision making, to persuade readers that federalism and separation of powers have no normative and little positive force, and to recast the concept of the rule of law. The book’s final chapter is particularly insightful in its discussion of the paradox that litigation’s elimination of the worst institutional abuses does not necessarily produce an outcome that inmates or their advocates would have chosen. However, Feeley and Rubin’s insistence that the prison cases amount to policymaking untethered to the Constitution’s text is not completely persuasive, although the prison cases are policymaking in part. However, the deeper flaw of Feeley and Rubin’s analysis is that their theory almost exclusively concerns the sole institution of the judiciary, and, even more narrowly, the judicial activity of doctrine creation. The authors fail to assess the larger context of the litigation; their theory fails to reckon with litigation realities such as the burden of proof; the resources, goals, and strategies of attorneys; or the difference between settled and litigated policy. The authors focus on judges and do not address the more appropriate issue of how courts function as an arena of policy disputation. Footnotes