Judicial declaration of public policy.

• Author: Aldisert, Ruggero J.

1. INTRODUCTION

   I have been writing judicial opinions for fifty years: since 1969 as a federal appellate judge on the Third Circuit, and for eight years before that on the Pennsylvania Court of Common Pleas. (1) For nearly forty years of that time, I have offered my advice as an expert opinion writer to other judges in opinion writing seminars and through my book Opinion Writing, (2) which for many years was distributed free of charge to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. (3) Over the past year, as I have revised and prepared Opinion Writing, 2d Ed. for availability to a wider audience, I have endeavored to provide my best practical guidance on the nuts and bolts of opinion writing, style, and structure, as well as on the judicial decisionmaking process and the theoretical underpinnings of opinion writing. I have encouraged opinion writers to keep their readers in mind as they write, and have advised opinion readers on how better to understand the opinion-writing process. (4) However, no comprehensive discussion of opinion writing theory can be complete without a discussion of judicially declared public policy.

   Recent criticism of judges--whether as lawmakers or as interpreters of constitutional or statutory text--has been particularly strong when they base decisions on considerations of public policy. Such decisions generate controversy on grounds both political and institutional. Public policy issues more readily inspire the familiar labels of "liberal," "conservative," "strict constructionist," or "a Bork-type." They provoke criticism from social, economic, and political perspectives. Some critics argue from an institutional perspective, contending that articulating policies for the public interest is the task of state and national legislatures rather than federal or state judiciaries. Depending upon the viewpoint of the critic, judges who seek to advance the common good expressly through policymaking are pilloried as either "activists" or "traditionalists." This controversial aspect of judicial responsibilities demonstrates the interplay among the components of the trichotomy of legal philosophy, jurisprudence, and jurisprudential temperament.

2. OVERVIEW OF JUDICIAL DECLARATION OF PUBLIC POLICY

   Roger J. Traynor admonished us not to "be misled by the half-truth that policy is a matter for [only] the legislators to decide." (5) The courts are continually called upon to weigh considerations of public policy when adding to the content of the common law, when filling in statutory gaps left by an inattentive, divided, or politically sensitive legislature, and when applying constitutional precepts to changing and novel circumstances. In all these aspects of the judicial process, considerations of public policy may be compelling or even decisive. David A. J. Richards emphasized the same point, noting that policy considerations underpin even the threshold doctrines of justiciability:

   [T]he proper ends of adjudication surely at least sometimes include policies. For example, the many discretionary rules of standing, ripeness, mootness, and the like clearly rest in part on policies of conserving judicial resources, a social policy of maximum output from limited inputs. Even aside from the problematics of the proper weight of principle and policy in understanding these rules, many cases of adjudication on the merits clearly invoke policies, as in many instances of statutory construction. Even where there is no clear legislative intent, courts invoke policy considerations sua sponte in order to effectuate a sensible legislative result; the burgeoning area of federal common law is one example. (6) These American authorities have rejected sentiments voiced by English judges of an earlier era: that "public policy ... is a very unruly horse and when once you get astride it you never know where it will carry you," (7) and that judges are more to be trusted as interpreters of the law than as expounders of public policy. (8) And yet, more recent United Kingdom jurists do not follow the teachings of the earlier era. The venerable Lord Denning, for instance, applied the modern view in his discussion of the measure of damages in a tort case:

   At bottom, I think the question of recovering economic loss is one of policy. Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant. Whenever the courts set bounds to the damages recoverable--saying that they are, or are not, too remote--they do it as a matter of policy so as to limit the liability of the defendant. (9) Justice Hopkins of the Appellate Division of the New York Supreme Court was similarly realistic in declaring that among the several devices available as bases for decisions--such as maxims, doctrines, precedents, and statutes--public policy is primary. As he put it, "[t]he other grounds for a judicial decision yield to the declaration of public policy, once that policy is ascertained." (10)

   Although much of the controversy concerning judicial implementation of public policy is of recent vintage, the practice itself is longstanding and well established in common law adjudication. As early as 1881, Justice Holmes wrote:

   The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. (11) Notwithstanding the importance of these considerations to judicial decisionmaking, it is well to remember that judges are far more constrained than legislators in fashioning or declaring public policy. Professor and former Yale Law School Dean Wellington offers the thoughtful suggestion that

   when a court justifies a common law (as distinguished from a statutory or constitutional) rule with a policy, it is proceeding in a fashion recognized as legitimate only if two conditions are met: The policy must be widely regarded as socially desirable and it must be relatively neutral. (12) This poses an obvious question: How may--indeed, how can--a court determine whether a policy is socially desirable? Wellington recommended that in fashioning common law on public policy grounds, the court first look

   to the corpus of law--decisional, enacted, and constitutional--to determine whether relevant policies have received legal recognition.... [i]n determining the extent of a policy's social desirability, a court should examine such things as political platforms, and take seriously--for this purpose--campaign promises and political speeches. The media is a source of evidence and so too are public opinion polls. Books and articles in professional journals, legislative hearings and reports, and the reports of special committees and institutes are all evidence. (13) The sound requirement of neutrality extends to constitutional and statutory interpretation as well as to common law adjudication. The principle of neutrality demands that judges, who are intentionally shielded from the pressures of interest groups by the structure of American government, should not justify their rulings by accepting the demands of one interest group at the expense of another that is not party to the litigation. (14) Professor Wechsler bore the brunt of much criticism--unfounded and undeserved--for his 1959 Holmes lecture on neutrality, given at Harvard Law School. (15) Commenting in 1975 on that criticism, he reasserted the importance of his principle:

   The central thought is surely that the principle once formulated must be tested by the adequacy of its derivation from its sources and its implications with respect to other situations that the principle, if evenly applied, will comprehend. Unless those implications are acceptable the principle surely must be...