Vol. 10 No. 3 (March 2000) pp. 193-196.

JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS by Malcolm M. Feeley and Edward L. Rubin. New York: Cambridge University Press, 1998. 490 pp.

Reviewed by Susette M. Talarico, Department of Political Science, The University of Georgia.

Malcolm Feeley and Edward Rubin have written an important, provocative and in many ways refreshing book. Although the subtitle is misleadingly narrow and implies that the book focuses directly on the effects of prison reform litigation, the primary contribution of the work centers on the authors' more general understanding and conception of judicial policymaking. In this, the authors' central objective is to deal with broader issues on the relationship between law and government. Underlying this is an unequivocal assumption -- judges make policy like legislators and executives. Also, they argue that this activity is something that has always characterized our constitutional framework, albeit in varying degrees, and something that is inevitable in the modern administrative state.

Basically, Feeley and Rubin use the prison reform cases to describe how judges make policy. In the process, they address three questions: (1) Under what circumstances do judges engage in policy making rather than the more familiar interpretative task? (2) What procedures do judges use when making policy? (3) How is judicial policy making constrained? These are decidedly descriptive queries, a fact that the authors explicitly acknowledge and, indeed, emphasize. As Feeley and Rubin explain, descriptive social science is essential not only to our understanding of courts but also to normative assessments of their role in contemporary government. Feeley and Rubin describe several prison reform cases to address these more general questions about judicial policy making and they do so for an obvious reason. As they note, "(t)he prison reform cases of the past three decades are the most striking examples of judicial policy making in modern America" (p. 13). On this issue, there will probably be little disagreement.

However, some may quarrel that by relying exclusively on these cases, the authors have stacked the deck, so to speak, in support of their basic premise. In my judgment, this would be unfair as the authors acknowledge that judges exercise other critical functions, i.e., the determination of facts and the interpretation of law. Furthermore, they also make no claim that courts are constantly engaged in policy making to the diminishment of these other functions. Third, they acknowledge that judicial policy making can be and often is constrained. Finally, it is important to admit that the contemporary prison reform litigation cannot be ignored. Working independently of each other, with no discernible leadership from the U. S. Supreme Court and with no meaningful guidance from the vaguely worded Eighth Amendment, many federal judges and some state jurists came to striking unanimity with regard to the

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subhuman and inhumane conditions of contemporary correctional institutions.

Moreover, these jurists took rather unprecedented steps to apply national correctional standards to these institutions. Clearly this is policy making. As Feeley and Rubin point out, much has been written about this particular variety of institutional reform or extended impact litigation. However, most of this work has not really advanced our understanding of the policy role of courts, and it does not help us to evaluate the related criticisms and defenses that have been raised in response to these judicial efforts. To be sure, the authors rely directly and indirectly on some of the fine case studies that have been conducted in this general area. However, they offer something decidedly different -- an effort to look at the patterns in prison reform litigation and to consider what these patterns tell us about judicial policy making and the more normative arguments that have been raised in both criticism and defense.

The general plan of the book makes sense when one recognizes what the authors are trying to do. In a succinct introductory chapter, Feeley and Rubin set out their major thesis and more descriptive objectives. The bulk of the book is then divided into two separate parts. In the first, the authors offer five prison reform case studies. Here, attention is directed to the more systemic litigation in Arkansas and Texas and then to the more narrowly focused challenges at the state level (Colorado's Old Max), at the local level (the Santa Clara, California jail), and even at the national level (the penitentiary at Marion, Illinois). These case studies are followed by the second major part of the book in which the authors describe the prison reform litigation process against varied policy making models. The final chapter offers a coda where the authors speak to but purposively do not answer the question of impact.

The three chapters where Feeley and Rubin offer the five case studies are truly excellent. First, they provide the best overview of prison reform litigation that I have read. Second, they take extraordinarily complicated litigation history and offer succinct and yet informative accounts. Third, they are absolutely refreshing and occasionally irreverent in the way they cast the respective narratives. With regard to the last point, two of my personal favorites are the observations that "the only person who ever successfully escaped from Alcatraz was Clint Eastwood" and "(a)s anyone with an even vaguely Cro-Magnon sensibility might have guessed." These are references, respectively, to Marion's precursor as the toughest of the federal prisons and to the way the Texas Department of Corrections' harassment of a plaintiff's attorney backfired.

In presenting these case narratives, the authors draw on the secondary literature extensively with nearly a hundred pages of endnotes. More importantly, however, they emphasize that they conducted expansive research on their own and this shows. Although specific sources are not always documented or identified in the accounts (nor could they be), the authors clearly talked to many people and studied a variety of court documents and related reports. In doing this, they demonstrate the merit of case studies and implicitly remind us that there is more to the study of judicial decision making than quantification.

The second part of the book, in which the authors focus on judicial policy making more abstractly, is likely to generate the most attention and possibly criticism.

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As previously noted, Feeley and Rubin here consider the aforementioned questions and prison reform litigation patterns against three different policy making models. These consist of the classic problem identification sequence, a more incremental approach, and a more hermeneutic perspective. At the conclusion of this descriptive consideration, the authors come to some stark and controversial conclusions. These include the conclusion that: (1) judges engage in policy making and that this function is not that distinguishable from more interpretative tasks; (2) judges will continue to make policy in certain situations; (3) judges act much like, but not entirely identical to, legislators and executives; and (4) judges are reluctant to admit to this, albeit for some understandable reasons. As they advance these conclusions, Feeley and Rubin take direct aim at some cherished conceptions of courts in contemporary government. A direct quotation serves to illustrate this most effectively.

"Judges are simply wrong when they assert that they do not engage in policy making. Legal scholars are wrong when they say that judicial policy making is exceptional, or incoherent, or avoidable by better legal reasoning. But political scientists are also wrong when they say that judicial policy making is no different from policy making by the other branches and represents a complete abandonment of legal doctrine. As it has been demonstrated, it is a complex process that engages and connects with legal doctrine, and that expresses its results in terms of legal doctrine, but that the doctrine does not explicitly control or constrain" (p. 340).

In addition to taking direct aim at considerable legal and social science scholarship, Feeley and Rubin also offer some provocative rejoinders about judicial reluctance to admit to policy making and the related viability of structural principles of government. As they consider judicial reluctance to acknowledge policy making, Feeley and Rubin argue that judges are disinclined to admit to something that seems to fly in the face of well established legal principles, namely, federalism, separation of powers, and the rule of law. This, in turn, leaves judges with no legal framework or legitimate legal discourse with the inevitable result that they retreat from any policy making characterizations or admissions.

In Feeley and Rubin's judgment, this lack of recognition is not a good thing. As they note in the concluding chapter to Part II, "judicial policy making will not be abandoned and it can be improved only if it is acknowledged. Although the administrative state did not create judicial policy making, its advent provides a new opportunity to explore the possibilities of this widespread but much disparaged mode of government." (p.361) These are important conclusions for underlying them is the authors' argument that federalism and separation of powers are premodern conceptions that should be reconsidered. Although Feeley and Rubin explicitly disavow any intention of formulating a new theory of the state, they convincingly argue the desuetude (their term) of both structural principles. They come to that conclusion, though, primarily because of the inevitable existence and characteristics of the administrative state. Again a direct quotation is appropriate.

". . . the structural principles of federalism and the separation of powers gain their apparent force and continuing appeal by being conflated

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with the managerial strategies of decentralization and specialization. To the extent that federalism and the separation of powers rest on normative arguments, both doctrines are inapplicable in our nationwide administrative era. Attempts to revive them may serve to mount an indirect challenge to that administrative state, but the very indirection of the challenge suggests its unreality" (p. 341).

In terms of the rule of law, things are more complicated. The primary reason for this is the simple fact that there are several, different definitions of the rule of law, including at least one that is not compatible with their basic thesis. With the exception of this infrequent incompatibility, Feeley and Rubin emphasize that the rule of law does not necessarily contravene judicial policy making. This is especially pertinent as they consistently state or imply that legal doctrines are not irrelevant in judicial policy making, i.e., that judges can be, often are, and typically consider themselves constrained by law.

To be sure, Feeley and Rubin's direct challenge to our two, key structural principles of government and their unequivocal affirmation, so to speak, of judicial policy making will not set well with many people. However, they offer a strong empirical foundation for their argument and they force all scholars and practitioners to confront the reality and implications of the administrative state in which we live. This is an excellent book that deserves a wide audience.