function for the disputes that judges consider. Courts serve as a venue for
transforming various social, economic, and political problems into broader ques-
tions of public policy. This transformation of disputes from limited and bifurcated
conXicts into general questions of public policy is a basic function of the courts
(Mather and Yngvesson 1981 ). ‘‘Thus, when litigants and lawyersWle legal claims
and present arguments, they are deWning problems and formulating policy
alternatives’’ (Mather 1991 , 148 ).
Given that lawyers and organized interests have a major hand in deWning the
terms of legal contention, their decisions to go to court mean that legal policy is
guided to a substantial degree by larger sets of interests, such as governments, big
business, trade and professional associations, and the like. It is these types of
litigants who choose to go to court, who lay the foundation for the policies they
seek, and trade on their expertise and experience to help shift judicial policy in
their direction.
4 Legal Foundations for Policy
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One of the essential conditions for courts to succeed in eVecting legal reform is that
judges construct an intellectual infrastructure upon which to rest their policy goals,
a kind of a network of supporting precedents that will support their ultimate aims.
The idea that judge-made law be derived from established principles is a venerated
tradition (Cardozo 1921 ; Levi 1948 ). If the policy innovations of judges are to
succeed, they must be seen as legitimate. Establishing a legal basis in advance
of those innovations serves to smooth the way to acceptance and reduce the
likelihood of those policies being rejected.
Legal decision-making often relies heavily upon the tradition of the common
law, where judges derive legal principles in the absence of promulgated law and
apply those principles in later cases. This approach is a critical component for a
great deal of judicial policy. To take one example, the supreme courts of the
individual American states are under no obligation to follow one another’s de-
cisions, at least as far as issues of state law are concerned. Nevertheless, it is clear
that appellate judges look to other state supreme courts, especially those that carry
the highest reputations for professionalism, for precedents that can be employed to
underwrite their own opinions (Caldeira 1985 ). Likewise, appellate courts at the
national level take considerable pains to rely upon the decisions of the US Supreme
Court (Songer, Segal, and Cameron 1994 ). Transnationally, courts likewise look
outside their own borders for the guidance and experience of other tribunals.
the judicial process and public policy 545