The Politics of Rights: Lawyers, Public Policy, and Political Change

8. THE IMPLEMENTATION OF PUBLIC POLICY

8. THE IMPLEMENTATION OF PUBLIC POLICY The enunciation of new goals of public policy results in a rearrangement of legal rights and obligations, but does not guarantee behavior in the real world that is consistent with the rearrangement. The myth of rights leads us to believe that litigation is an obvious and effective answer to any footdragging by opponents of the new order. The burden of this chapter, however, will be to indicate that direct deployment of legal rights in the implementation of public policy will not work very well, given any significant opposition. Litigation may be helpful to individuals who have the resources and determination to pursue remedies through the court system. But courts cannot be relied upon to secure rights more generally in the society for reasons rooted in legal policy and political power. Using courts to make things happen in the real world ultimately pits the victorious litigant with a court order against those who are inclined to resist-meaning both the losing party and others who are similarly situated and therefore implicated in the judgment. Just how widely the net extends is always a matter for conjecture, although legal procedures and the apparent preferences of most judges ordinarily combine to particularize the legal import of judicial decisions. The practical impact is similarly restricted -in part as a consequence of the ambiguous and particularized legal situation, which provides endless opportunities for evasion and delay. More fundamentally, the impact is restricted by post-judgment power relationships. These power relationships vary a good deal from situation to situation with II7 II8 THE POLITICS OF RIGHTS only a single constant: the judiciary's modest reservoir of coercive resources. Lawyers might take strong exception to this pessimistic assessment-particularly when coupled with my relatively optimistic evaluation of litigation as a tool for altering the goals of public policy. The average lawyer would probably come to just the opposite conclusions, since judicial policy initiatives emerge erratically and unpredictably, while the lawyer can feel reasonably confident about using litigation to force delivery on existing legal commitments. But the lawyer's view is derived largely from experience with individual litigants. Whether corporate or private parties does not matter, because the courts are ordinarily both willing and able to act effectively in behalf of the individual litigant. On a social scale, things are different. Precisely because litigation is structured to serve individual needs, it tends to fragment problems by breaking them down into a multiplicity of discrete transactions. This distinction between the particular and the general is the key to the following discussion. It is important to note that litigation is cumbersome as an instrument of compliance irrespective of what is being complied with. Legislation, executive orders, judicial decisions are all equally difficult to enforce if the coercive resources of the government are not made available. By the same token, distinctions between legal and constitutional rights are of little practical significance. The exalted status of a constitutional right does not ease the burden of litigation one bit. The analysis which follows is thus generally applicable to litigation as a tool for closing the gap between the promises and the reality of American public policy-regardless of whether that promise is of constitutional status or is a lesser enactment. LEGAL PROCEDURES AND JUDICIAL PREFERENCE Litigation is structured by procedures which fragment and particularize compliance. These procedures can be, and often IMPLEMENTATION OF PUBLIC POLICY II9 are, stretched and shaped by judges who are sensitive to the importance of prompt and uniform implementation of the law. Particularization does, nonetheless, inhere in the judicial process as we know it. Moreover, particularization seems to be consistent with the preferences of most judges. Judicial preference is no doubt largely a product of training and socialization in the common law tradition, but particularization can also be seen as the rational choice of judges who wish to shield themselves from responsibilities that courts are not well equipped to assume. The consequence is to break compliance down into a series of one-on-one confrontations that play into the hands of those who oppose the rules promulgated by the judges. It is all but inevitable that litigation will fragment and particularize the compliance process whenever there is a significant measure of resistance. If the norm in question is a court order, it is legally binding only on the parties to the original suit. But even when the norm is more generally applicable-statutes, class action court orders, or administrative regulations-there is always...