Commentary Magazine

The Litigious Society, by Jethro K. Lieberman

Judicial Activism

The Litigious Society.
by Jethro K. Lieberman.
Basic Books. 212 pp. $13.95.

The term “imperial judiciary,” originally coined for the purpose of calling attention to activist excesses, has passed into usage as a simple description of the power of the courts in contemporary American government. As the Reagan administration increasingly takes control of the federal establishment and tries to implement a more conservative judicial philosophy, however, we are likely to hear more and more from defenders of judicial activism, if not of the imperial judiciary. They will find support in Jethro Lieberman’s The Litigious Society, a vigorous defense of activist policy-making by the courts.

Lieberman is by no means uncritical of the courts. He agrees that they sometimes exceed the proper limits of their competence and authority, and he regards as utopian the aspiration for total redress of injury—both individual and social—that inspires much litigation. Yet at bottom he assigns no blame for today’s proliferating litigation, viewing it as an expression of the loss of a sense of community for which no one is really responsible.

In a perceptive opening chapter, Lieberman describes the evolution of the legal idea of redress as an outgrowth of the modern world view, in which human agency replaced divine or natural causation and law became the instrument of conscious social policy rather than the record of immemorial custom. Reflecting this new intellectual background, law and litigation played an especially important role in the unfolding history of the United States, where it also served as a unifying force in an ethnically fractionated society. A litigious people from the outset, Americans have always shown a ready propensity to go to law to get what they want. Since the end of World War II this inclination has been greatly encouraged by the democratization of the legal process, achieved through the liberalization or abrogation of technical doctrines such as standing to sue, mootness, political questions, and sovereign immunity which long served as barriers to the courtroom.

In substantive terms the contemporary importance of litigation results from the rise of positive government and the welfare state. The purpose of government, Lieberman observes, is now seen to be the redressing of injury and the promotion of individual and collective well-being. Instead of the individualistic ethic which once prevailed, there is now a communitarian ethic according to which government imposes on those whose actions affect others an affirmative duty to care for their welfare. This ethic is expressed in legislation establishing vague standards for the regulation of social and economic life, which in turn leads to judicial policy-making through the review of administrative procedures. Add to all this what Lieberman acknowledges to be a judicial preference for total redress—born of the idea that no moral society can permit any injury to stand unrequited—and the upshot is that explosion of litigation and consequent expansion of judicial power which has come to be called “government by judiciary.”

The body of Lieberman’s book consists of an analysis of five areas of public and private law that have witnessed the greatest increase in litigation in recent years. These are product liability, medical malpractice, environmental protection, hospital and prison reform, and government immunity. On each of these topics Lieberman provides a succinct and illuminating essay demonstrating an admirable grasp of the technological and social conditions underlying the issue as well as the judicial response to it. On the whole, Lieberman’s assessments of the litigation crisis appear reasonable. He finds that despite some frivolity, most of the claims pursued through litigation have a reasonable basis, and concludes further that judges, although they occasionally tend toward excessive involvement in policy, by and large act reasonably in accommodating the rising demand for redress.



The most significant aspect of Lieberman’s study, however, is his defense of litigation and government by judiciary as an instrument and catalyst of democratic reform. It is through the courts, Lieberman asserts, that citizens are able to challenge the discretionary power of the governing establishment, with its selective enforcement of the law. In this sense litigation is a democratic tool.

The fact that federal courts are non-elective institutions continues to strike many people as improper in a constitutional democracy, the more so when these courts engage explicity in lawmaking activities. Lieberman deals with this objection by pointing to the contradiction between majority rule and constitutionalism in the American political system, and by emphasizing the primacy of the latter. Lieberman is pleased to count himself a constitutionalist in defending judicial power and in asserting further that if the courts are not democratic, neither is Congress in its internal organization and procedures. It is therefore unfair, he reasons, to pin the undemocratic label on the judiciary alone.

At the same time Lieberman insists that if in a proximate sense the judiciary is undemocratic, ultimately its policy-making promotes democracy. The very fact of judicial intervention, he contends, is proof that the other branches of government have not been properly involved. (A possibility unconsidered by Lieberman is that governmental inaction may also represent a democratic policy choice.) On the central political question of whether such judicial interventions foreclose action by other democratic institutions, as the theorists of judicial restraint have argued, Lieberman follows the constitutional historian Leonard W. Levy, an unswerving defender of judicial activism, in concluding that they do not.

In the final analysis, Lieberman defends government by judiciary on the ground that government by legislatures and executive officers has simply failed. A great deal of modern legislation is so general and imprecise as to be practically meaningless. But where others, such as Theodore Lowi, have proposed to remedy this situation through legislation embodying stricter regulatory standards to which administrative agencies can be held accountable, Lieberman sees no alternative to judicial rule. In his view, legislatures are hopelessly political and irresponsible and therefore scarcely capable of adopting clear and specific policy requirements. Accordingly, it is left to the courts to clarify empty legislative generalities, “working out the meaning of great truths, only dimly perceived and inchoately expressed at passage.” Moreover, courts perform this function not on their own initiative, but in response to litigants who turn to them “as the last resort because they perceive that the government has broken down.”

Lieberman makes no attempt to analyze this situation or explain what he means by a breakdown in government. His language here is mere hyperbole, intended to make judicial governance appear not only a desirable but a necessary alternative to the bureaucratic state. In a sense it is an appealing argument, for who among us will defend bureaucracy? But then—what is the difference between being ruled by administrative decree and court order? Lieberman says it is the difference between having a set of inflexible, artificial, and pervasive regulations imposed on us, and living under the discerning guidance and intelligent social adjustment that the rule of reason provides as explicated by the courts.

Lieberman here employs, and takes comfort from, the idea of judicial right reason. It is an ancient notion, and one which for centuries constituted a basis of Anglo-American law. Yet it is also at odds with the realist model of law that Lieberman endorses in this book, according to which judges are political actors and policy-makers no different from other government officers in the executive and legislative branches.

American courts have always exercised political influence, but the degree of politicization supported by the theory of law which informs Lieberman’s study goes far beyond anything contemplated in orthodox constitutional thought. It simply eliminates any distinction between judges and other government officials. Like most defenders of judicial activism, Lieberman seems to assume that judicial authority will persist nonetheless, because he sees the mandate of the courts as resting on the public’s approval of the social results of court decisions. Yet the public at large, as well as those government officials with whom the courts deal, has never abandoned the idea of judicial impartiality, or its expectation that judges will act in a judicial rather than a political way. To all of this Lieberman seems oblivious. His book raises but does not answer the very timely question of whether the legitimacy of judicial authority can long be maintained in the face of the thoroughgoing politicization signified in the litigation explosion of recent years.

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