Beyond the Hero Judge

Professor Margo Schlanger


97 Mich. L. Rev. 1994 (May 1999)

Margo Schlanger


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, uses 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." In my review, I argue that, while the strengths of this work are formidable, the book is flawed by a fundamental mismatch between the litigation underlying Feeley and Rubin's theory and the theory itself. Institutional reform litigation is not a judicial movement but a political practice. 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. Feeley and Rubin ask a question of the prison cases – How do judges make policy – that the cases cannot answer. They do not engage the more interesting and more appropriate question: How do courts function as an arena of policy disputation?

I begin with a brief history of litigated prison reform and a summary of Feeley and Rubin's theory. Then I discuss two topics vital to understanding the cases, but omitted from the book – settlement, and the varying interests and strategies of different prisoners' lawyers. The review concludes by calling for renewed scholarly examination of institutional reform litigation, which remains a regular and important component of the interaction between the court system and the executive and legislative branches of state and local governments. How courts began, and whether they continue, to be an arena for such litigation; how the litigation looks; and whether it succeeds or fails are functions not simply of judicial will and role, but of the goals, resources, and actions of many groups and actors, filtered through the rules of litigation. If scholars are going to be useful observers and analysts of this universe of cases, we must free ourselves from our long-bred urge to talk only about judges and open our eyes instead to the full range of participants and forces at work.