The Courts and Social Policy Author: Donald L. Horowitz
Reviewed by Stephen L. Wasby
Donald Horowitz's The Courts and Social Policy is a serious effort to deal with the question of judicial capacity. Horowitz talks first of the expansion of judicial responsibility, which he thinks is a departure from the traditional exercise of the judicial function, and then explores the sources of this growth, particularly expansive statutory interpretation. He believes that courts do not do well at interpreting the mixes of statutes, regulations, and local arrangements with which they are faced more and more frequently. "Griggs v. Duke Power Co.," which invalidated non-job related tests with discriminatory effects, and "Lau v. Nichols," which held that failure to remedy Chinese children's English language deficiencies deprived them of the opportunity to be educated, are used as examples. Horowitz then discusses attributes of adjudication, focusing particularly upon courts' ability to handle social facts and to implement their decisions.
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The Constitution and the Common Law: The Decline of the Doctrines of Separation of Powers and Federalism By Randall Bridwell and Ralph U. Whitten
Reviewed by Herbert A. Johnson
This short and tightly written volume will have a major impact upon the legal history of the federal constitution and on the diversity jurisdiction of federal courts. Professors Bridwell and Whitten have undertaken a reevaluation of the role that common law played in nineteenth-century federal jurisprudence. They question the accepted belief that the doctrine of Erie Railroad Co. v. Tompkins'has greater historical foundation than the repudiated rule of Swift v. Tyson, which permitted the development of federal common law in diversity of citizenship cases. Basic to their argument is the postulate that modern theories of jurisprudence have been read into our historical analysis of the nineteenth-century legal system. The fundamental mistake made by historians is the constant insistence that the language of the cases of the period and the writings about its jurisprudence actually mean what one thinks they should mean by modern standards, rather than what they seem to mean as practiced by people of the period. The results have been misleading, according to the authors, and historians will recognize an indictment of anachronism emerging from their discussion.
Stephen L. Wasby and Herbert A. Johnson,
31 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol31/iss3/5