Available in paperback. Cambridge University Press, 1996 (with Malcolm M. Feeley).
Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons.
Judges regularly declare new public policy when making their decisions. Legal scholars often condemn this, while political scientists regard it as demonstrating the dominance of politics and the irrelevance of law. This book demonstrates that policy making is an established and justifiable element of the judicial process, subject to as many constraints as other judicial functions. It is, in fact, the way that new legal doctrine is developed. In the modern state, judicial policy making often centers on the actions of government agencies and institutions. The book demonstrates this process by considering the prison reform cases, where the federal courts restructured state prison systems, primarily in the South. Properly regarded as a high water mark of judicial activism, these decisions were in fact a principled imposition of national norms on divergent, morally reprehensible institutions, and fashioned a body of doctrine whose validity is now widely accepted and approved.