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Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons, by Malcolm Feeley and Edward L. Rubin. Cambridge, MA: Cambridge University Press, 1998, 450 pp., $69.95 cloth.
Judicial Policy Making and the Modern State begins with the uncontroversial assertion that a body of substantive law created by judges in the course of various suits against state prison administrations beginning in 1965 effected widespread change on American prisons. These suits created prisoners' rights to be free from myriad varieties of ill treatment, even including the imposition of secondhand smoke laws [Helling v. McKinney, 509 U.S. 25 (1993)]. From this premise, the book undertakes two separable projects. First, it attempts to elaborate a process by which these judges engaged in policymaking as distinct from their commonly recognized task of interpreting legal principles, and to create a general model of judicial policymaking in structural reform litigation. Second, it argues that, in general, judicial policymaking is a legitimate undertaking. Regarding the former, the authors have made an innovative and important contribution in furtherance of an academic understanding of the role of judges in structural reform litigation. The latter task is inhibited by the trap doors and blind corners of over a century of jurisprudential debate on judicial involvement in the administrative state. Though the authors demonstrate a responsible awareness of the contours of this scholarly dialogue, their contribution is ultimately unconvincing.
From the outset, the authors claim no position on the long-standing argument of the determinacy of judicial interpretation of legal texts. Interpretation, they note, is but half of judges' role in the modern state. Judicial policymaking-the use of court power on the basis of judicial judgment to achieve socially desirable resultscompletes their business. The authors attempt a description of the process of judicial policymaking within a classic framework of policymaking-define the problem, identify a goal, generate a range of alternatives, select the most promising alternative, and implement that alternative-while acknowledging the contrasting doctrines of incrementalism and Gadamerian hermeneutics, giving admitted short shrift to the latter. The following discussion of the judicial policymaking process is concerned solely with the authors' reformulation of the classic policy method, as it is their main contribution.
In the case of prison reform, federal district court judges created an elaborate network...