Democracy by Decree: What Happens When Courts Run Government.

• Author: Poser, Susan
• Position: Book Review

DEMOCRACY BY DECREE: WHAT HAPPENS WHEN COURTS RUN GOVERNMENT. By Ross Sandler and David Schoenbrod. New Haven: Yale University Press. 2003. Pp. vii, 280. $30.

1. INTRODUCTION

Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. (1) Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, (2) Owen Fiss, (3) and more recently, Malcolm Feeley and Edward Rubin, (4) have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, (5) Donald Horowitz, (6) William Fletcher, (7) and Gerald Rosenberg, (8) among others, disapprove of active judicial involvement in structural remedies on the basis of either lack of legitimacy, lack of capacity, or both. Ross Sandler (9) and David Schoenbrod (10) clearly align themselves with the latter camp. Unlike some commentators, however, they go beyond criticizing the role of courts in these cases and propose specific limitations on judicial authority to provide remedies for constitutional and statutory violations. Their discussion of judicial authority and their criticism of plaintiffs' attorneys is clearly part of a larger agenda aimed at limiting what they consider to be federal overreaching in state and local political affairs. (11) In that sense, Democracy by Decree is as much a contribution to the new federalism literature as it is to the debate about institutional reform litigation.

One gets the impression from the book that the passion behind the authors' mission grows out of their personal experiences. The authors describe their own backgrounds as public interest lawyers right out of law school, intent on changing the world. But, they say bluntly, "we were wrong" (p. 31). Ross Sandier began his career as a Root Tilden scholar at NYU law school and then prosecuted environmental cases against polluters as a staff attorney at the Natural Resources Defense Council in the 1970s. In the early 1980s, Sandier began working for local government as a special advisor to New York Mayor Edward Koch and as Commissioner of Transportation in New York City. David Schoenbrod was also a staff attorney for the Natural Resources Defense Council in the 1970s, where he and Sandier sued New York City to enforce the Federal Clean Air Act (pp. 25-31). Schoenbrod's experiences and observations about Congressional delegation to agencies and courts led him to academia where he has been writing about these issues ever since. (12) Ross Sandier and David Schoenbrod are currently law professors at New York Law School, where Sandier directs the law school's Center for New York City Law.

The authors themselves describe Democracy by Decree as a book with a mission. The mission, according to Professors Sandier and Schoenbrod, is "to put the remedial decrees issued in institutional reform litigation on a footing that will let judges know when it is appropriate to use them and when it is not, and to direct them to use alternatives that will be more effective and more democratic" (pp. 11-12).

If the courts do not choose to impose these limits on remedies voluntarily then the legislature should impose them (p. 12). According to the authors, democracy by decree--by which they mean judicially created public policy in the form of court decrees intended to reform public institutions--stems from the misguided notion that "government can be made more compassionate only if judges impose their will on elected officials" (p. 33).

Democracy by Decree has two great strengths. First, it adds a new and important piece to the institutional reform puzzle by powerfully describing the role of the lawyers, particularly the plaintiffs' lawyers, in the remedial stage of institutional reform litigation. The authors call this group of lawyers the "controlling group" (p. 7: emphasis omitted) and argue that for political, legal, and practical reasons this group is given too much power in directing the course of the litigation and, more significantly, the remedy.

The second and more subtle strength is the authors' acknowledgement that one barrier to successful remedies in institutional reform litigation is the lack of judicial explication regarding the nature of the rights that are intended to be remedied by the court-ordered decrees. Because the judges are not clear about what exactly they intend to remedy through the court-ordered decrees, there is often a real or apparent lack of fit between the legal violation and the remedy imposed. This arguably leads to remedial orders that are overbroad and not necessarily addressed to plaintiffs' protected interests (p. 101).

The greatest weakness of Democracy by Decree is that the authors take what they acknowledge to be an extremely complex, "polycentric," problem, and propose an overly simplistic and impractical solution: to tell federal judges to stop fashioning remedies when state and local government officials break the law by violating the rights of individuals (p. 197). Sandler and Schoenbrod acknowledge that some rights, like the right to be free from state-sponsored racial discrimination, should be actively enforced by judges. This acknowledgement leads them to draw incoherent distinctions between the kinds of rights that should be enforced by courts, and the kinds that should not be enforced by them. (13) This solution is ironic since it ignores what I believe even the authors would consider the true source of the problem: Congress's penchant for creating federal rights. While these rights amount to unfunded mandates on state and local governments, they are nevertheless enforceable by private parties in federal court (p. 140). Sandier and Schoenbrod argue that elected officials, not judges, ought to make social policy in a democracy, but they also acknowledge that the elected officials (in Congress) are responsible for making bad social policy by creating the statutory rights that set democracy by decree in motion. In their words, "[e]lected officials invite judges to take charge of policy making in order to evade responsibility for politically controversial choices" (p. vi). The authors attempt to solve this problem by urging judges to refrain from taking up the invitation. The fact that preventing individuals from obtaining enforcement of the rights conferred on them by their elected representatives is itself antidemocratic does not bother Sandler and Schoenbrod because they view federal overreaching as the ultimate evil, far worse than federal judges not enforcing federal rights. (14)

So what's a judge to do? Sandler and Schoenbrod argue that the judges should "adopt a set of rules effective in limiting the availability, scope, and duration of decrees against government" (p. 11). This set of rules is provided at the end of the book. They leave us with the nagging question of what judges should do if they do not think they can adequately remedy constitutional and statutory violations by working within the confines of these rules.

To accomplish the mission of the book, the authors undertake three tasks with varying degrees of success. First, they describe the current state of institutional reform litigation and analyze a few cases to explain why the remedies take so long and are often considered unsuccessful. Second, the authors discuss the various causes of democracy by decree. Finally, Sandler and Schoenbrod propose a solution intended to improve the processes and outcomes of these cases, focusing particularly on the remedy.

Sandler and Schoenbrod are extremely successful in their first task. Through the description of a few case studies, the authors describe the current state of institutional reform litigation. They discuss one large case study and a few smaller ones, and demonstrate how these cases drag on for years and are not successful. The authors' discussion is accompanied by repeated articulation of their view that the way judges handle these cases constitutes a threat to democratic, representative government.

Sandler and Schoenbrod's analysis of the causes of the remedial problem is equally interesting insofar as the authors point to a variety of issues and actors that contribute to unsatisfactory results in institutional reform litigation. In addition to the concentration of power in the controlling group of plaintiffs' lawyers and experts, the authors point to the role of Congress in passing legislation that creates new rights without adequate funding. Sandier and Schoenbrod also discuss the failure of appellate courts to define the nature of the these rights in such a way as to provide guidance to district judges who must create remedies for their violations.

In the third task, the authors fall short of their goal. The new principles proposed for improving the remedial phase of institutional reform litigation are unrealistic and unlikely to be adopted by the federal judges to whom they are addressed. More significantly, there is only a loose fit between these principles and the underlying causes of the problem as articulated by the authors. While Sandler and Schoenbrod discuss the role of Congress in creating too many rights and the failure of the federal appellate courts to define the nature of those rights, their solution does not adequately address those issues. Instead, the authors offer a narrow solution that puts the onus on judges who, even if they are persuaded by the argument, might be shirking their own responsibilities if they followed the authors" prescriptions.

Compounding this lack of fit between the multifaceted problem and the solution, is the biased way in which the authors both describe and analyze institutional reform litigation. Every possible doubt about...