In the Service of Public Values
Kende, Mark, Judicature
In the service of public values The Law As It Could Be, by Owen M. Fiss. New York University Press. 2003. 304 pages. $20.
Yale Law School Professor Owen Fiss is a seminal figure in liberal constitutional thought. For decades, he has argued that judges should use reason to interpret the U.S. Constitution as having a moral content that promotes progressive social values-referring to Bnnun v. Hoard oj Education, 347 U.S. 483 (1954), as a prime example. He has therefore engaged in intellectual battles with conservative scholars who advocate a restrictive, originalist method and has debated scholars to the left who argue that constitutional law is essentially politics, or that constitutional interpretation can be deconstructed. In addition, he has written that adjudication must serve public values.
In The Law As It Could lie, Fiss assembles some of his most significant essays on constitutional law and adjudication. Most address the importance of Brown in one way or another. Several are more than 20 years old; others are recent. Each is prefaced with a brief commentary to provide context. These essays do not just confirm his liberal credentials: they show a path-breaking scholar whose analysis sheds new light and perspective on difficult legal questions. Readers can benefit greatly from the book, regardless of political orientation.
Vindicating public values
The first chapter is typically illuminating. Today, politicians frequently criticize judges for "legislating" personal preferences from the bench. But Fiss defends class actions and the structural injunction by showing that they provide a unique way to vindicate public values through the legal process. Fiss's insightfulness is evident from his description of what makes the structural reform defendant different:
The [ordinary] concept uf [the defendant] wrongdoer is highly individualistic. It. presupposes such personal qualities as the capacity to have an intention and to choose. Paradigmatically, a wrongdoer is one who intentionally inflicts harm in violation of an established norm. In the structural context, there may be individual wrongdoers, for example, the police officer who hits the citizen, the principal who turns away the black child at the schoolhonsc door, the prison guard who abuses the inmate. They are not, however, the target of the suit. The focus is not on incidents of wrongdoing but on a social condition and the bureaucratic dynamics that produce that condition. In a sense, a structural suit is an in rem proceeding where the Mi is the state bureaucracy. The costs and burdens of reformation arc placed on the organization, not because it has "done wrong," in either a literal or metaphorical sense, for it has neither an intention nor a will, but rather because reform is needed to remove a threat to constitutional values posed by the operation of the organization (pp. 19-20).
Fiss follows with two chapters that address the connection between the judicial independence of federal judges and the fate of the structural injunction. In Chapter 4, he employs sociological analysis to assess the impact of the federal judiciary's increasing bureaucratisation (more judges, more magistrates, more law clerks, more administrative staff, etc.).
Specifically, he rejects the Max Weber-type view that bureaucratization may cause judges to become rigid and overly rule-oriented. The empirical and analogical nature of our common law system makes that unlikely, he concludes, and can instead result in a scenario of diffused responsibility in which the person at the top is isolated from the impact of his or her decision. …