The Activist Advocate: Policy Making in State Supreme Courts

By Charles S. Lopeman | Go to book overview

Chapter 1
Judicial Policy Making: An Overview

Until recently, victims of drunken drivers in Indiana could not sue the bar owners who sold a drunk the drinks, even if the owners had known that their customer was drunk. Neither the Indiana legislature nor the Indiana Supreme Court had previously created the right of injured persons to sue the bar for their injuries. The Indiana Supreme Court intentionally and actively made Indiana policy when it created a new cause of action for the injured victim. 1 The West Virginia legislature had created local school districts and provided that the public schools within these districts would be supported by local property taxes. The West Virginia Supreme Court disagreed with the legislature's system of support and required it to abandon local funding for public schools and provide for equal funding for all state school districts, rich or poor. 2 In Ohio, the common-law doctrine of family immunity that had been established by earlier Ohio courts required that families had to control whether and on what condition a person who has been injured by another may bear the costs of accidental injuries caused by one family member to another. The Ohio Supreme Court shifted these costs to insurance companies by overruling long established doctrine that had prevented injured children from suing their parents 3 and injured husbands and wives from suing their spouses. 4

Obviously, the Indiana Supreme Court made public policy when, instead of waiting for the Indiana legislature to act, it established by its decision a right to sue bar owners who sell alcoholic beverages to intoxicated customers. When the West Virginia Supreme Court disagreed with its legislature in the school finance cases, it intentionally made public policy. It examined the legislature's policy and substituted for it the court's own preferred policies. Not all state policy has initially been made by state legislatures; some has been prescribed in decisions made by state courts at an earlier time. Common-law tort doctrines are examples of courtmade policy. They are rules that sue for the value of the damage. The Ohio Supreme Court substituted its own preferred policy and made it possible for victims of intrafamily harm to bring suits for the resulting damage. When a court effectively disagrees with these earlier-made rules and substitutes its own, it makes policy, just as it does when it changes the policy made by the legislature. When the

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