Justice Vs. Law - Hardcover

Eugene W. Hickok; Gary L. McDowell

Hardcover

ISBN 10: 0029205298 ISBN 13: 9780029205297

Publisher: Free Press, 1993

Synopsis

Examines how the political and legal systems in American society often work against each other instead of with each other

About this title

From Kirkus Reviews

A powerful and profound ``look into the nature and extent of judicial power under a written constitution of limited powers.'' Hickok (Law/Dickinson College) and McDowell (Visiting Scholar/Harvard Law School; Curbing the Courts, 1988, etc.--not reviewed) see modern federal litigation as a tool used by ideologically motivated litigants ``to supplant the status quo with new visions of the just society.'' Thus, federal courts have departed from their role as neutral arbiters of specific cases and controversies and have become ``places where abstract legal theories are pushed by this side and that.'' The authors begin by analyzing a 1989 Supreme Court case, DeShaney v. Winnebago County, in which the Court held that state social workers had no duty under federal statutory or constitutional law to protect a five-year-old from a brutally abusive father. Arguing compellingly that the DeShaney result was correct, the authors use the Court's steadfast and restrained adherence to law in the face of poignantly tragic facts as a device to make their central assertion: Courts exist not ``to exercise compassion in the name of justice'' or even to achieve just results, but simply to apply legal rules neutrally- -even when, as in DeShaney, the result offends conscience. Finally, Hickok and McDowell contend that the advent of government by the judiciary, abdication of Congressional responsibility, and the increasing litigiousness of society have vitiated popular government and diminished the democratic significance of citizenship. Conservative in the tradition of Bickel and Frankfurter, and echoing some of the arguments in Robert Bork's The Tempting of America (1990) and Walter K. Olson's The Litigation Explosion (1991). Hickok and McDowell won't convince believers in an activist judiciary, but they do make clear the dangers to democracy posed by rule by judicial decree. -- Copyright ©1993, Kirkus Associates, LP. All rights reserved.

From Booklist

It seems nowadays that every big national issue winds up in the Supreme Court--again and again in matters such as civil rights and abortion. Hickok and McDowell rue this state of affairs, but in their analysis, they forgo polemics and produce a public policy argument of the first order. Their effort is tripartite. First, they limn DeShaney v. Winnebago County (1989), in which so-called strict constructionism won the day: the letter of the law was observed even though individual justice was thwarted by the decision. Next, they trace the history, old as the Court itself, of contention over the nature and extent of judicial power--a history marked by decisions in which judicial activism (justices' personal notions of justice) won out over the constitutional text and in which political pressures upon appointments to the high court greatly increased. Finally, Hickok and McDowell discuss the predicament of today's Supreme Court--as much ultimate legislator as ultimate arbiter--and what, besides the incremental legitimation of judicial activism in the eyes of the legal profession and the general public, brought it about. They conclude popular government is in a real fix when moral issues that ought to be deliberated and decided in, if not before they reach, Congress are forced upon the Court. This is the kind of engaged history writing we all should have encountered in school. Superb. Ray Olson

Edition details

• Publisher: Free Press
• Publication date: 1993
• ISBN 10: 0029205298
• ISBN 13: 9780029205297
• Binding: Hardcover
• Language: English
• Edition number: 1
• Number of pages: 253