Beyond the hero judge: institutional reform litigation as litigation.

AuthorSchlanger, Margo
Position1999 Survey of Books Related to the Law

JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS. By Malcolm M. Feeley(1) and Edward L. Rubin.(2) New York: Cambridge University Press. 1998. Pp. xv, 490. $69.95.

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools.(3) Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality.(4) The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation's litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance.(5) A new kind of case (termed, variously, "public law litigation," "structural reform litigation," or "institutional reform litigation") developed as civil rights plaintiffs and their lawyers began to seek and obtain litigated reform and continuing injunctive relief not only against schools, but also against prisons,(6) jails,(7) mental health and mental retardation facilities,(8) and many other types of institutions.(9)

Law professors, law students, and political scientists followed a few years behind with descriptions, discussions of origins, efforts at legitimation, critiques, and case studies. Professors Abram Chayes and Owen Fiss set the terms of the scholarly debate;(10) both described and defended civil rights injunctive cases in opposition to Lon Fuller's vision of private dispute resolution by adversarial litigation,(11) and both took as their central concern the role of the judge. The many siblings of Chayes's and Fiss's work,(12) and its numerous progeny,(13) have, with some exceptions,(14) shared these two features. Malcolm Feeley and Edward Rubin's history and analysis of prison reform litigation, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons, is a work in this tradition. Like other scholars since the 1970s concerned with structural reform cases, Feeley and Rubin aim to rebut Fuller by "rethink[ing] the forms and limits of adjudication" (p. 3). And like other scholars since the 1970s, Feeley and Rubin pay most attention to judges, although they narrow the focus even further, to judges' creation of legal doctrine (albeit broadly defined).(15)

Feeley and Rubin use the first fifteen years of systemic prison reform litigation as both context and source for a theoretical description and legitimation of a judicial activity they contrast to interpretation and label policymaking -- "the process by which [judges] exercise power on the basis of their judgment that their actions will produce socially desirable results" (p. 5). The purpose of the authors' "microanalysis" of prison cases is to understand judges and how they are motivated and constrained and to construct a "theory of judicial policy making from the different, complex features that the [prison litigation] example offers."(16) Feeley and Rubin's most basic point is that "judicial policy making [is] a separate judicial function with its own rules, its own methods, and its own criteria for measuring success or failure" (p. 3), and their book proceeds to describe these elements (pp. 380-81).

It is Feeley and Rubin's grand design to transform our vision 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 in this country; to present a sociological description of the "institutional phenomenology of judicial decision making" (p. 212); to persuade readers that federalism and separation of powers have no normative (and, as a result, little positive) force; and to recast the concept of the rule of law. Succeeding in any of these projects is worth a book; shedding as much light on all of them as the authors do is a major achievement.

The strengths of this work are formidable. It is well written, interesting, nuanced, and erudite. The authors' account of pre-1960 prison cases (pp. 30-34) is itself a brief but important historical contribution. Their normative analysis of federalism (pp. 171-203) is creative and provocative and has garnered sustained scholarly attention elsewhere.(17) Particularly insightful is the discussion, in the final chapter, of the abiding paradox of litigated prison reform: even if litigation has eliminated the worst abuses -- the Tucker telephones,(18) the bread and water diets, the complete failure to provide medical care, and the authorized violence of convict "trusties" assigned to guard and punish other inmates -- its outcome may nonetheless not be one that inmates or their advocates would have chosen. As the authors explain,

The modern constitutional prison is a mixed blessing.... Conditions and practices are much improved and the constitutionalization of the process assures that these improvements are likely to be permanent. But the mission of prisons and jails remains safety and security by means of a tight system of control. Judicial reform has, on balance, enhanced the ability of officials to pursue this mission: they are now more, not less, effective and efficient. As such, the courts may have contributed to an increased willingness to rely on prisons and even to the increasing oppressiveness that results from the development of supermaximum institutions.(19) For all its virtues, however, Feeley and Rubin's exploration is flawed by two mismatches between the litigation underlying their theory and the theory itself. I take issue, first and probably less significantly, with their strong insistence that the prison cases amount to "policymaking" untethered to the Constitution's text. The authors consider the Eighth Amendment's prescription against "cruel and unusual punishments" a basically contentless cipher that acts only to give courts "jurisdiction" over policy disputes (pp. 14, 146); they present in support of this contention evidence that judges presiding over prison cases thought morality and national practice relevant considerations in determining the scope of the Eighth Amendment. They are persuasive on the factual point that morality and national practice played a role in convincing judges to hold some prisons constitutionally liable to inmates, but not on the theoretical claim that these liability assessments amounted to something quite different from constitutional interpretation. I think it is quite within the bounds of interpretation, traditionally defined, for judges to read the constitutional words "cruel and unusual" to forbid purposeful (or deliberately indifferent) infliction of pain on prisoners -- by torture, starvation, denial of medical care, failure to protect from known dangers of violence from other inmates, or excessive force. For judges to reach this conclusion, in the early 1970s and today, by evaluating what they learn from litigants about conditions in defendants' facilities in light of a conception of national morality and prison practices, seems similarly reasonable. "Cruel," after all, is a word with moral content,(20) and "unusual" is best read in a national charter of rights to direct a national comparison. In any event, this dispute is not the focus of this review, because it is indisputable that where judges continued after assessing liability to craft remedial orders, those orders were not similarly "interpretive" of the Constitution. As in most areas of injunctive practice, design of prison remedies requires the kinds of instrumental judgments that we typically label "policy," as decree-drafters decide how to bring about institutional changes that will ensure that the rights at stake are respected in the future.(21) Even further lessening the impact of this disagreement is that much of what Feeley and Rubin describe as the "rights" announced in the prison cases (p. 320 n.*), I would say were part of the admittedly instrumental "remedies." For example, where Feeley and Rubin argue that federal judges announced that nonbureaucratic prisons violated the Constitution (pp. 271-90), I would say, rather, that judges more typically first found that certain prisons violated the Constitution, and then imposed bureaucratizing solutions to the problems. So I agree with Feeley and Rubin that the prison cases are sensibly thought of as "policymaking" in part if not in whole.

But Feeley and Rubin's analysis has a deeper flaw, which is the major subject of this review (following brief summaries of the early history of the litigation and of the authors' theoretical framework). The history of litigated prison reform reveals it to be an intricate set of interactions framed by the rules of litigation and involving many groups, with varying roles, interests, and constraints. Feeley and Rubin's theory, however, 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 significance of the larger context (or, as they might prefer, the "institution") of the litigation, and their theory fails to reckon with litigation realities such as the burden of proof; the resources, goals, and strategies of counsel; or the difference between settled and litigated outcomes. Yet these are unmistakably important to the cases. It may be that there are other areas of criminal or civil litigation which have been more exclusively judge-driven (the Fourth Amendment law of policing, perhaps, or abortion law). But Feeley and Rubin ask a question of the prison cases -- How do judges make policy? -- that these cases, at least, cannot answer. The authors do not engage what is for me not only the more interesting but more appropriate question: How do courts function as an arena of...

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