considered to be an implicit part of the legislative power. Judges, though, resolve
cases with an eye towards crafting legal solutions that are consistent with their
notions of what the law permits or requires. Courts are not supposed to assess the
wisdom of policy, only its validity.
Nevertheless, judges are inevitably drawn into considering how their interpret-
ations of the law will aVect diVerent segments of society, whether their resolution of
a dispute will make sense as a matter of public policy for those who are consumers
of their decisions. Although cases are ostensibly disputes between two individual
litigants, those litigants, as often as not, are drawn from larger populations that
stand to win or lose by a case’s outcome. Thus, a decision in a case in which a single
corporation is a party may aVect an entire industry. A case in which a state is a
party may be one which many other states watch with interest, since they are apt to
feel the eVects of the decision. And so on.
Unlike legislators, however, courts have little capacity to summon additional
information to inform their decisions. They must rely instead upon the abstract
arguments of law presented by the parties to a case. In some courts, aVected
interests have the opportunity to inform judges through their participation as
amici curiae(that is, as ‘‘friends of the court’’). Again, however, judges have little
control over the source or quality of this information. In this respect, they are at a
distinct disadvantage relative to elected oYcials who, as a routine matter, seek to
gather as much information and analysis as they deem useful on the impact of
various policy alternatives.
Finally, courts diVer from other decision-makers in that the judicial process does
not provide for regular monitoring and oversight of the policies crafted by judges.
Naturally, judges can adjust policies through subsequent litigation, but there is no
formal mechanism by which judges can examine the ongoing impact of their
policies. That adjudication does not provide such mechanisms means that courts
will not learn in a timely way—if indeed they learn at all—that the policies they
have put into place may be failing to realize their objectives.
These limitations notwithstanding, judges on both trial and appellate courts are
generally quite competent in discharging their responsibilities, and many of their
policies clearly produce important, substantive change for various segments of
society. A great deal of scholarly work, in fact, demonstrates that courts can
be the source of signiWcant innovations in the policy priorities of government
(see, e.g., Glick 1991 ; Rowland and Carp 1996 ).
For their part, legislative and executive oYcials are by no means immune from
suVering the fate of ineVective or ill-considered policy. Any governmental institu-
tion is limited by various handicaps that hamper what they may achieve. As a
comparative matter, there are a number of important factors that diVerentiate legal
from political policy-makers, and these factors serve to place somewhat greater
limits on the members of the judiciary than they do oYcials who are popularly
chosen.
542 kevin t. mcguire