Judicial Declaration of Public Policy

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I. INTRODUCTION

I have been writing judicial opinions for fifty years: since 1969 as a federal appellate judge on the Third Circuit, and for eight years before that on the Pennsylvania Court of Common Pleas. (1) For nearly forty years of that time, I have offered my advice as an expert opinion writer to other judges in opinion writing seminars and through my book Opinion Writing, (2) which for many years was distributed free of charge to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. (3) Over the past year, as I have revised and prepared Opinion Writing, 2d Ed. for availability to a wider audience, I have endeavored to provide my best practical guidance on the nuts and bolts of opinion writing, style, and structure, as well as on the judicial decisionmaking process and the theoretical underpinnings of opinion writing. I have encouraged opinion writers to keep their readers in mind as they write, and have advised opinion readers on how better to understand the opinion-writing process. (4) However, no comprehensive discussion of opinion writing theory can be complete without a discussion of judicially declared public policy.

Recent criticism of judges--whether as lawmakers or as interpreters of constitutional or statutory text--has been particularly strong when they base decisions on considerations of public policy. Such decisions generate controversy on grounds both political and institutional. Public policy issues more readily inspire the familiar labels of "liberal," "conservative," "strict constructionist," or "a Bork-type." They provoke criticism from social, economic, and political perspectives. Some critics argue from an institutional perspective, contending that articulating policies for the public interest is the task of state and national legislatures rather than federal or state judiciaries. Depending upon the viewpoint of the critic, judges who seek to advance the common good expressly through policymaking are pilloried as either "activists" or "traditionalists." This controversial aspect of judicial responsibilities demonstrates the interplay among the components of the trichotomy of legal philosophy, jurisprudence, and jurisprudential temperament.

II. OVERVIEW OF JUDICIAL DECLARATION OF PUBLIC POLICY

Roger J. Traynor admonished us not to "be misled by the half-truth that policy is a matter for [only] the legislators to decide." (5) The courts are continually called upon to weigh considerations of public policy when adding to the content of the common law, when filling in statutory gaps left by an inattentive, divided, or politically sensitive legislature, and when applying constitutional precepts to changing and novel circumstances. In all these aspects of the judicial process, considerations of public policy may be compelling or even decisive. David A. J. Richards emphasized the same point, noting that policy considerations underpin even the threshold doctrines of justiciability:

   [T]he proper ends of adjudication surely at least sometimes include
   policies. For example, the many discretionary rules of standing,
   ripeness, mootness, and the like clearly rest in part on policies
   of conserving judicial resources, a social policy of maximum output
   from limited inputs. Even aside from the problematics of the proper
   weight of principle and policy in understanding these rules, many
   cases of adjudication on the merits clearly invoke policies, as in
   many instances of statutory construction. Even where there is no
   clear legislative intent, courts invoke policy considerations sua
   sponte in order to effectuate a sensible legislative result; the
   burgeoning area of federal common law is one example. (6)

These American authorities have rejected sentiments voiced by English judges of an earlier era: that "public policy ... is a very unruly horse and when once you get astride it you never know where it will carry you," (7) and that judges are more to be trusted as interpreters of the law than as expounders of public policy. …