3 Actors in the Judicial Process
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Judges are the central players in the business of judicial policy-making. They weigh
alternatives and craft authoritative rules that aVected constituencies are obliged to
respect. Because the development of those rules is so contingent upon decisions
made by others (decisions about when to go to court, what arguments to present,
and the like) any attempt to understand the links between the judicial process and
judicial policy-making requires that one consider with special care the role of other
actors in the legal system.
Foremost among those are the litigants themselves. Courts, as I have noted, are
passive institutions that require genuine legal controversies within which to
develop policies. For that reason, the decision to go to court is crucial for creating
the opportunities necessary for judges to advance their legal policy goals.
On the one hand, the sheer size of court caseloads at both the federal and state
levels suggest that judges are not lacking for legal vehicles in which to develop
policy. On the other hand, the evidence also suggests that most potential conXicts
tend not to make it before judges. Instead, cases are either settled or never initiated
in theWrst place. In criminal cases, prosecutors and defense attorneys frequently
opt to plea bargain (Heumann 1978 ; Mather 1979 ), and consequently many of the
cases that might otherwise be brought before a judge are resolved by a defendant
agreeing to accept a guilty plea in exchange for some form of consideration from
the prosecutor.
In the case of civil disputes, much has been made of the tendency for individuals
to avail themselves of courts at the slightest provocation. Objective assessments of
theXow of litigation, though, suggest that the notion of a litigation crisis is vastly
oversold (Galanter 1983 ; Miller and Sarat 1980 – 81 ). The media are largely culpable
for stimulating such perceptions; by placing unwarranted reliance upon sensational
and unrepresentative cases, the media present a largely perverted picture of the
legal system and the courts’ policy role in resolving private disputes (Haltom and
McCann 2004 ).
Such perceptions have implications for the policy-making capacity of courts.
One of the conditions for eVective legal change is that courts enjoy support and
acceptance from the public and other governmental oYcials. So, to the extent that
the legal system is perceived as irrational or ineYcient, this will impede the
implementation of judicial rulings (Canon and Johnson 1999 , 33 – 43 ; Edwards
1980 ).
Such distortions aside, many citizens do regard litigation as a kind of right, and
as a result they often turn to the courts as a forum for solving their interpersonal
conXicts, even as judges are reluctant to consider them (Merry 1990 ). For the most
part, though, the vast majority of individuals who suVer some form of wrong opt
not to go to court. Many simply capitulate and accept their losses; far fewer actually
the judicial process and public policy 543