COURTS/CHAYES, ABRAM
Traditional notions about the role of the courts are "clearly invalid", wrote Harvard Prof. Abram Chayes.
Chayes' explanation is admittedly sympathetic to the rise of an activist federal judiciary. He argues that the US now has a new kind of government -- "the regulatory state," he calls it -- which requires activity judges.
"If you say openly that judges are doing political things -- deciding issues on the basis of essentially political factors -- that makes all of us terribly uncomfortable."
But Chayes said he believes that judges now do make political decisions, and that this is - or can be - a good thing.
In fact, Chayes argues, a new genre of lawsuit has evolved -- he calls it "public law litigation" -- that does not fit that traditional model. Instead of a dispute between two identifiable parties, a lawsuit may involve many different parties, some of them vaguely defined. For example, in the Boston school desegregation case there are 7 parties to the basic litigation, some as amorphous as
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Boston's black school children or its teachers -- imprecisely defined "classes" whom the judge has admitted to the suit.
Chayes also likes the idea that a court handled public dispute is presided over by a judge: "His professional tradition insulates him from narrow political pressures, but...he is likely to have some experience of the political process and acquaintance with a fairly broad range of public policy questions." Moreover judges are trained in "reflective and dispassionate analysis."
