“The Role of the Judge in Public Law Litigation”

Abstract

Traditionally, adjudication has been understood to be a process for resolving disputes among private parties which have not been privately settled. In this Article, Professor Chayes argues that this conception of adjudication cannot account for much of what is actually happening in federal trial courts. Civil litigation increasingly involves determination of issues of public law, whether statutory or constitutional, and frequently terminates in an ongoing affirmative decree. The litigation focuses not on the fair implications of private interactions, but on the application of regulatory policy to the situation at hand. The lawsuit does not merely clarify the meaning of the law, remitting the parties to private ordering of their affairs, but itself establishes a regime ordering the future interaction of the parties and of absentees as well, subjecting them to continuing judicial oversight. Such a role for courts, and for judges, is unprecedented and raises serious concerns of legitimacy. Notwithstanding these concerns, Professor Chayes' preliminary conclusion is that the involvement of the court and judge in public law litigation is workable, and indeed inevitable if justice is to be done in an increasingly regulated society. Because of its regulatory base, public law litigation will often, at least as a practical matter, affect the interests of many people. Much significant public law litigation is therefore carried out through the class action mechanism, discussed at length in Developments in the Law--Class Actions, which follows Professor Chayes' Article. Although this Article is not intended to be a foreword to the Developments Note, both pieces share the perspective that adjudication and civil procedure can usefully be analyzed as elements of a larger system of public regulation. For this reason, the two pieces may profitably be read together.