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Yale Law School

Yale Law School Legal Scholarship Repository

Faculty Scholarship Series Yale Law School Faculty Scholarship

1-1-1977

Judicial Review, Justiciability and the Limits of theCommon-Law Method

Lea BrilmayerYale Law School

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Recommended CitationBrilmayer, Lea, "Judicial Review, Justiciability and the Limits of the Common-Law Method" (1977). Faculty Scholarship Series. Paper2521.hp://digitalcommons.law.yale.edu/fss_papers/2521
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BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807itself has acknowledged that established standards are vague and inconsis-tently applied.5 Those attacking Marshall's justification of review, and theapproach to justiciability that has evolved from it, have proposed alterna-tive models that purport not to rely upon traditional elements of commonlaw adjudication to regulate the form in which federal courts considerlegal disputes.6This article will argue that it would be a serious mistake for the Su-preme Court to renounce the traditional approach to justiciability, with itsinsistence that constitutional challenges be made in proceedings that re-semble common law cases. While the doctrines of justiciability have notbeen well articulated in the past, they are, for the most part, sound.Whatever the defects in Chief Justice Marshall's derivation of the powerof judicial review, the common law method of establishing principles oflaw through the decision of particular cases remains the most appropriateway for courts to perform judicial review. Thus, traditional limitations arenot merely a relic from the days of Chief Justice Marshall, but rather anintegral part of the present success of the reviewing function. The impor-tance of these doctrines, and of the traditional common law model ingeneral, becomes readily apparent if, as will be attempted here, onereconstructs the connection between common law adjudication-the judi-cial function of applying law to cases-and judicial review-the power todisregard the dictates of those laws when they conflict with the Constitu-tion.

II. JUDICIAL REVIEW AND THE DECIDING OF CASESA. Th e Logic of MarburyCentral to Chief Justice Marshall's explanation of the constitutionalbasis for judicial review in Marbury v. Madison was the fact of a writtenconstitution. For Marshall, the existence of the Constitution necessarilyestablished its superiority over conflicting acts of legislation: the Framershad laid down certain principles of government in writing to ensure thatthe limits of those principles would not be transgressed. Unless the provi-sions of the resulting document controlled contrary laws, such an attemptat limitation of government would have been no more than a futile

See, e.g., Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151(1970) ("[gleneralizations about standing to sue are largely worthless as such"); Flast v.Cohen, 392 U.S. 83, 98-99 (1968).The problem of standing is surrounded by the same complexities and vagaries thatinhere in justiciability. Standing has been called one of "the most amorphous [concepts]in the entire domain of public law."Id., quotingHearings on S. 2097 Before the Subcomm. on Constitutional Rights of the SenateJudiciary Comm., 89th Cong., 2d Sess. 465, 498 (1966) (statement of Professor Paul A.Freund).6 Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976);Monaghan, supra note 4; see Berger, Standing to Sue in Public Actions: Is It a ConstitutionalRequirement?, 78 Yale L.J. 816 (1969); Jaffe, supra note 4; Vining, Direct Judicial Reviewand the Doctrine of Ripeness in Administrative Law, 69 Mich. L. Rev. 1443 (1971).

HeinOnline -- 57 B.U. L. Rev. 808 1977

808 BOSTON UNIVERSI1Y LAW REVIEW [Vol. 57:807itself has acknowledged that established standards are vague and inconsistently applied.5 Those attacking Marshall's justification of review, and theapproach to justiciability that has evolved from it, have proposed alternative models that purport not to rely upon traditional elements of commonlaw adjudication to regulate the form in which federal courts considerlegal disputes.6This article will argue that it would be a serious mistake for the Supreme Court to renounce the traditional approach to justiciability, with itsinsistence that constitutional challenges be made in proceedings that resemble common law cases. While the doctrines of justiciability have notbeen well articulated in the past, they are, for the most part, sound.Whatever the defects in Chief Justice Marshall's derivation of the powerof judicial review, the common law method of establishing principles oflaw through the decision of particular cases remains the most appropriateway for courts to perform judicial review. Thus, traditional limitations arenot merely a relic f rom the days of Chief Justice Marshall, but rather anintegral part of the present success of the reviewing function. The importance of these doctrines, and of the traditional common law model ingeneral, becomes readily apparent if, as will be attempted here, onereconstructs the connection between common law adjudication-the judicial function of applying law to cases-and judicial review-the power todisregard the dictates of those laws when they conflict with the Constitution.

II. JUDICIAL REVIEW AND THE DECIDING OF CASESA. The Logic of MarburyCentral to Chief Justice Marshall's explanation of the constitutionalbasis for judicial review in Marbury v. Madison was the fact of a writtenconstitution. For Marshall, the existence of the Constitution necessarilyestablished its superiority over conflicting acts of legislation: the Framershad laid down certain principles of government in writing to ensure thatthe limits of those principles would not be transgressed. Unless the provisions of the resulting document controlled contrary laws, such an attemptat limitation of government would have been no more than a futile

See, e.g., Association of Data Processing Servo Orgs., Inc. v. Camp, 397 U.S. 150, 151(1970) ("[g)eneralizations about standing to sue are largely worthless as such"); Flast v.Cohen, 392 U.S. 83, 98-99 (1968).The problem of standing is surrounded by the same complexities and vagaries thatinhere in justiciability. Standing has been called one of "the most amorphous [concepts)in the entire domain of public law."Id., quoting Hearings on S. 2097 Before the Subcomm. on Constitutional Rights of the SenateJudiciary Comm., 89th Cong., 2d Sess. 465, 498 (1966) (statement of Professor Paul A.Freund).6 Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976);Monaghan, supra note 4; see Berger, Standing to Sue in Public Actions: Is I t a ConstitutionalRequirement?, 78 Yale L.J. 816 (1969); Jaffe, supra note 4; Vining, Direct Judicial Reviewand the Doctrine of Ripeness in Administrative Law, 69 Mich. L. Rev. 1443 (1971).


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810 BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807constitutional interpretation belongs squarely within the framework ofcommon law adjudication1 5 with its traditional emphasis upon the resolu-tion of legal issues through the process of deciding cases. A natural, if notnecessary, corollary of Marshall's premise that the power of judicial re-view is an incident of the obligation of courts to "apply the rule toparticular cases" is that, absent a traditional case, courts must lack suchpower. 1 6 It is this inference, which through the "judicial power" and"cases and controversies" language of article III has continued toinfluence the Supreme Court's regulation of federal jurisdiction,'" thathas been the target of recent criticism. Commentators have charged thatno such limitation upon judicial competence does or should exist, and thatin fact the traditional "case" model of review is neither appropriate to norreflective of the realities of modern public law litigation. 19The response to such views must be sought in Marshall's "essence ofjudicial duty" 20 -the traditional case-deciding functions of the common...n resolving claims of litigants was amarked advance, squarely rejecting as it did the viewthat the document stated only political rules beyond the cognizance of judicial tribunals." Id.,citing Corwin, Marbury v. Madison and the Doctrine of Judicial Review, in I Selected Essays

on Constitutional Law 128, 146-47 (1938). See generally C. Black, supra note 3.IS See Monaghan, supra note 4, at 1365-68 (elaboration of "private rights model").16 A. Bickel, supra note 3, at 114-15:If, as Marshall argued, the judiciary's power to construe and enforce the Constitutionagainst the other departments is to be deduced from the obligation of the courts todcide cases conformably to law, which may sometimes be the Constitution, then it mustfollow that the power may be exercised only in a case .... It follows that courts maymake no pronouncements in the large and in the abstract, by way of opinions advisingthe other departments at their request; that they may give no opinions, even in aconcrete case, which are advisory because they are not finally decisive, the power ofultimate disposition of the case having been reserved elsewhere; and that they may notdecide non-cases, which do not require decision because they are not adversary situa-tions and nothing ... hangs on the result. These are ideas central to the reasoning inMarbuy v. Madison. They constitute not so much limitations of the power of judicialreview as necessary supports for Marshall's argument in establishing it. The words of artthat are shorthand for these ideas are "case and controversy" and "standing."iT U.S. Const. art. III, 2.Is See, e.g., Warth v. Seldin, 422 U.S. 490, 498-500 (1975); Association of Data Processing

Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151-52 (1970); Flast v. Cohen, 392 U.S. 83 , 94-95(1968); A. Bickel, supra note 3, at 113-16. Aetna life Ins. Co. v. Haworth, 300 U.S. 227(1937), contains a frequently cited description of a traditional article III "case or con-troversy."A "controversy" in this sense must be one that is appropriate for judicial determina-tion. A justiciable controversy is thus distinguished from a difference or dispute of ahypothetical or abstract character; from one that is academic or moot. The controversymust be definite and concrete, touching the legal relations of parties having adverselegal interests. It must be a real and substantial controversy admitting of specific reliefthrough a decree of a conclusive character, as distinguished from an opinion advisingwhat the law would be upon a hypothetical state of-facts.Id. at 240-41 (citations omitted); see, e.g., Preiser v. Newkirk, 422 U.S. 395, 401 (1975);United States v. Michigan Nat'l Corp., 419 U.S. 1, 4 (1974) (per curiam); North Carolina v.Rice, 404 U.S. 244, 246 (1971).'9 .g., Chayes, supra note 6, at 1283-84 ("[w]hatever its historical validity, the traditionalmodel is clearly invalid as a description of much current civil litigation in the federal districtcourts"); Monaghan, supra note 4, at 1368 ("[w]hile one can readily agree that the Courtrather than the political branches is uniquely suited [to the task of review], it is by no meansevident that it should be a function of ordinary litigation concerning private rights"). See also

id. t 1368-71 and authorities cited therein.20 5 U.S. (1 Cranch) at 178.


810 , BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807constitutional interpretation belongs squarely within the framework ofcommon law adjudication l5 with its traditional emphasis upon the resolution of legal issues through the process of deciding cases. A natural, if notnecessary, corollary of Marshall's premise that the power of judicial review is an incident of the obligation of courts to "apply the rule toparticular cases" is that, absent a tradi tional case, courts must lack suchpower. 16 It is this inference, which through the ')udicial power" and"cases and controversies" language of article I I I 17 has continued toinfluence the Supreme Court's regulation of federal jurisdiction,18 thathas been the target of recent criticism. Commentators have charged thatno such limitation upon judicial competence does or should exist, and thatin fact the traditional "case" model of review is neither appropriate to norreflective of the realities of modern public law litigation.t9The response to such views must be sought in Marshall's "essence ofjudicial duty"2-the traditional case-deciding functions of the common

. . . in resolving claims of litigants was a marked advance, squarely rejecting as it did the viewthat the document stated only political rules beyond the cognizance ofjudicial tribunals." [d.,citing Corwin, Marbury v. Madison and the Doclrine of Judicial Review, in I Selected Essayson Constitutional Law 128, 146-47 (1938). See generally C. Black, supra note 3 ... See Monaghan, supra note 4, at 1365-68 (elaboration of "private rights model").16 A. Bickel, supra note 3, at 114-15:If, as Marshall argued, the judiciary's power to construe and enforce the ConstitutionaKainst the other departments is to be deduced from the obligation of th e courts todecide cases conformably to law, which may sometimes be the Constitution, then it mustfollow that the power may be exercised only in a case .... It follows that courts maymake no pronouncements in the large and In the abstract, by way of opinions advisingthe other departments at their request; that they may give no opinions, even in aconcrete case, which are advisory Decause they are not finally deCisive, the power ofultimate disposition of the case having been reserved elsewhere; and that they may notdecide non-cases, which do not require decision because they are not adversary situations and nothing ... hangs on the result. These are ideas central to the reasoning inMarbury v. Madison. They constitute not so much limitations of the Rower of judicialreview as necessary supports for Marshall's argument in establishing it. The words of ar tthat are shorthand for these ideas are "case and controversy" and "standing."17 U.S. Const. art . II I, 2.18 See, e.g., Warth v. Seldin, 422 U.S. 490, 498-500 (1975); Association of Data ProcessingServ. Orgs., Inc. v. Camp, 397 U.S. 150, 151-52 (1970); Flast v. Cohen, 392 U.S. 83, 94-95(1968); A. Bickel, supra note 3, at 113-16. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227(1937), contains a frequently cited description of a traditional article I I I "case or controversy."A "controversy" in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus dist inguished from a difference or dispute of ahypothetical or abstract character; from one that is academic or moot. The controversymust be definite and concrete, touching the legal relations of parties having adverselegal interests. It must be a real and sUDstantial controversy admitting of speCific reliefthrough a decree of a conclusive character, as distinguished from an opinion advisingwhat the law would be upon a hypothetical state of facts.[d. at 240-41 (citations omitted); see, e.g., Preiser v. Newkirk, 422 U.S. 395, 401 (1975);United States v. Michigan Nat'l Corp., 419 U.S. 1,4 (1974) (per curiam); North Carolina v.Rice, 404 U.S. 244, 246 (1971).19 E.g., Chayes, supra note 6, at 1283-84 ("[w]hatever its historical validity, the traditionalmodel is clearly invalid as a description of much current civil litigation in the federal districtcourts"); Monaghan, supra note 4, at 1368 ("[w]hile one can readily agree tha t the Court

rather than the political branches is uniquely suited [to the task of review], it is by no meansevident that it should be a function of ordinary litigation concerning private rights"). See alsoid. at 1368-71 and authorities cited therein.

20 5 U.S. (I Cranch) at 178.


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812 BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807what circumstances and how far they will run the risk of coming againstwhat is so much stronger than themselves .... *26

Although these features of the common law preserve the neutrality andrationality of our legal system, unquestioning adherence to precedent maycause undesirable results. 27 The evolution of the common law may bestultified by the enforcement of pre-existing rules that are unresponsiveto changes in society or to the significance for judge-made law of theaction or inaction of other branches of government. Moreover, a basictension exists between the manner in which common law decisions areinitially made and the manner in which they are subsequently appliedunder stare decisis. Seeking to resolve current disputes, later courts lookto earlier decisions for rules of general application. The rules they find,however, while possibly applicable according to their literal terms, mayhave been set out with entirely different situations in mind, and for thisreason may be wholly inapposite. Mechanical application of rules drawnfrom the holdings of earlier decisions would preclude taking into accountthe factual variations that inevitably develop in later cases. 28 To prohibit acourt from considering the circumstances of the dispute before it wouldbe irrational:2 9 while considerations of fairness account for the doctrine ofstare decisis, with its requirement of adherence to precedent, countervail-ing considerations of fairness in the particular case may require deviationfrom existing rules. 30

well-ordered society, one effectively regulated by a shared conception ofjustice, there isalso a public understanding as to what is just and unjust.Id.; see id. at 133; id. at 238.26 Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 457 (1897).27 Cf id. at 469:It is revolting to have no better reason for a rule of law than that it was laid down in thetime of Henry IV. It is still more revolting if the grounds upon which it was laid downhave vanished long since, and the rule simply persists from-blind imitation of the past.28 See A. Bickel, supra note 3, at 69-70:[In striking down legislation, the Court] is not obligated to foresee all foreseeablerelevant cases and to foreclose all compromise. Indeed, it cannot. It can only decide thecase before it, giving reasons which rise to the dignity of principle and hence, of course,have forward momentum and broad radiations. But the compelling force of the judg-ment goes only to the actual case before the Court.In discussing the nature of common law precedent, Professor Dworkin reaches similarconclusions by focusing upon the weaknesses of an analogy between statutes and the "rules"derived from past cases:[A judge] will discover that many of the opinions that litigants cite as precedents do no tcontain any special propositions taken to be a canonical form of the rule that the caselays down. It is true that it was part of Anglo-American judicial style, during the lastpart of the nineteenth century and the first part of this century, to attempt to com osesuch canonical statements, so that one could thereafter refer, for example, to the rue inRylands v. Fletcher. But even in this period, lawyers and textbook writers disagreed aboutwhich parts of famous opinions should be taken to have that character. Today, in anycase, even important opinions rarely attempt that legislative sort of draftsmanship. Theycite reasons, in the form of precedents and principles, to justify a decision, but it is thedecision, not some new and stated rule of law, that these precedents and principles aretaken to justify. Sometimes a Judge will acknowledge openly that it lies to later cases todetermine the full effect of the case he has decided.R. Dworkin, supra note 21, at 110-11 (citation omitted).29 See J. Rawls, supra note 21, at 239-43.30 Cf. R. Dworkin, supra note 21, at 111 & n.l, 112-13 (reaching similar conclusion but

proceeding from justification of why courts should ever follow precedent).


812 BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807what circumstances and how far they will run the risk of coming againstwhat is so much stronger than themselves. . . ."26

Although these features of the common law preserve the neutrality andrationality of our legal system, unquestioning adherence to precedent maycause undesirable results.27 The evolution of the common law may bestultified by the enforcement of pre-existing rules that are unresponsiveto changes in society or to the significance for judge-made law of theaction or inaction of other branches of government. Moreover , a basictension exists between the manner in which common law decisions areinitially made and the manner in which they are subsequently appliedunder stare decisis. Seeking to resolve current disputes, later courts lookto earlier decisions for rules of general application. The rules they find,however, while possibly applicable according to their literal terms, mayhave been set ou t with entirely different situations in mind, and for thisreason may be wholly inapposite. Mechanical application of rules drawnfrom the holdings of earlier decisions would preclude taking into accountthe factual variations that inevitably develop in later cases.28 To prohibit acourt from considering the circumstances of the dispute before it wouldbe irrational: 29 while considerations of fairness account for the doctrine ofstare decisis, with its requirement of adherence to precedent, countervailing considerations of fairness in the particular case may require deviationfrom existing rules.30well-ordered society, one effectively regulated by a shared conception of justice, there isalso a public understanding as to what is just and unjust.[d.; see id. at 133; id. at 238.26 Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 457 (1897).27 Cf id. at 469:It is revolting to have no better reason for a rule of law than that it was laid down in thetime of Henry IV. It is still more revolting if the grounds upon which it was laid downhave vanished long since, and the rule simply persists from blind imitation of the past.28 See A. Bickel, supra note 3, at 6970:[In str iking down legislation, the Court] is not obligated to foresee all foreseeablerelevant cases and to foreclose all compromise. Indeed, it cannot. I t can only decide thecase before it, giving reasons which rise to the dignity of principle and hence, of course,have forward momentum and broad radiations. But the compelling force of the judgment goes only to the actual case before the Court.In discussing the nature of common law precedent, Professor Dworkin reaches similarconclusions by focusing upon the weaknesses of an analogy between statutes and the "rules"derived from past cases:[A judge] will discover that many of the opinions that litigants cite as precedents do notcontain any special propositions taken to be a canonical form of the rule that the caselays down. It is t rue tha t it was part of Anglo-American judicial style, during the lastpart of the nineteenth century and the first part of this century, to attempt to composesuch canonical statements, so that one could thereafter refer, for example, to the rule inRylands v. Fletcher. But even in this period, lawyers and textbook writers disagreed aboutwhich parts of famous opinions should be taken to have that character. Today, in anycase, even important opinions rarely attempt that legislative sort of draftsmanshil?' Theycite reasons, 10 the form of precedents ana principles, to justify a decision, but It is thedecision, not some new and stated rule of law, that these precedents and principles aretaken to justify. Sometimes a judge will acknowledge openly that it lies to later cases todetermine the full effect of the case he has deciaed.R. Dworkin, supra note 21, at 110-11 (citation omitted).29 See J. Rawls, supra note 21, at 239-43.30 Cf R. Dworkin, supra note 21, at III & n.l, 112-13 (reaching similar conclusion butproceeding from justification of why courts should ever follow precedent).


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1977] JUSTICIABILITY AND THE COMMON LAW METHOD 813The common law decisionmaking process accommodates the potential

for such conflict by providing that past decisions carry precedential weightonly in factually similar circumstances. The inherent flexibility of thecommon law results from the fact that common law judges make legaldecisions in the context of applying them. Although a judge is bound tothe extent that the dispute before him resembles past cases, he is free tothe extent that the factual settings differ. The determination whetherparticular circumstances are so distinguishable as to warrant a differencein treatment requires, within the constraints of principled decisionmak-ing, an exercise of independent judgment by the court. While such re-evaluations are crucial given the evolutionary nature of the common law,the power of courts to adjust previously established precedent derivessolely from the presence of specific facts in the case at bar that demon-strate a need to revise pre-existing rules. To allow courts to revise priorstandards in the absence of distinctive circumstances would be to violatethe principles of consistency and predictability-and therefore to under-mine the notion of the rule of law. 31

The nature of the factual distinctions that empower courts to reviseexisting articulations of law can be illustrated by analyzing the differencesin judicial treatment of statutory, judge-made and constitutional rules. Alegislature enacting a statute is not bound by existing declarations oflegally recognized harms. As a democratic body, a legislature is competentto make determinations of policy. Thus, legislatures can lay down broadrules designating certain factual patterns as harms for which the courtsare to provide remedies. In contrast, courts faced with situations in whichparticular litigants seek relief under existing judge-made law lack com-petence to make determinations of comparable scope. Instead, courtsmust focus on the existence of specific individual harm as justification forinvoking their limited power to deviate from established precedent.3 1

Ordinarily, a court faced with application of a statute cannot make anindependent determination of specific harm requiring a change in thelaw. Although the facts of the particular case remain significant withregard to whether the statute applies, the court must recognize that thelegislature has already made the essential determination as to what setof circumstances are to constitute a legally remediable injury. However,when application of the statute would implicate constitutional consid-erations, the situation changes. Clearly, the court must first look to thehigher authority of constitutional text; but the text itself does not providea complete answer as to whether the Constitution's strictures have beenviolated in a particular instance.3 3 To make such a determination, the31 Cf. J. Salmond, supra note 22 , 58, at 194 (courts can disregard precedent when a

different result would be "contrary to reason," but "[w]henever a decision is departed from,the certainty of the law is sacrificed to its rational development").32 See id. 60, at 202: "The prerogative of judges is not to make law by formulating anddeclaring it-this pertains to the legislature-but to make law by applying it. Judicialdeclaration, unaccompanied by judicial application, is of no authority."3 A constitution, to contain an accurate detail of all the subdivisions of which its great


1977] JUSTICIABILITY AND THE COMMON LAW METHOD 813The common law decisionmaking process accommodates the potential

for such conflict by providing that past decisions carry precedential weightonly in factually similar circumstances. The inherent flexibility of thecommon law results from the fact that common law judges make legaldecisions in the context of applying them. Although a judge is bound tothe extent that the dispute before him resembles past cases, he is free tothe extent tha t the factual settings differ. The determination whetherparticular circumstances are so distinguishable as to warrant a differencein t reatment requires, within the constraints of principled decisionmaking, an exercise of independent judgment by the court. While such reevaluations are crucial given the evolutionary nature of the common law,the power of courts to adjust previously established precedent derivessolely from the presence of specific facts in the case at bar that demonstrate a need to revise pre-existing rules. To allow courts to revise priorstandards in the absence of distinctive circumstances would be to violatethe principles of consistency and predictability-and therefore to undermine the notion of the rule of law.31The nature of the factual distinctions that empower courts to reviseexisting articulations of law can be illustrated by analyzing the differencesin judicial treatment of statutory, judge-made and constitutional rules. Alegislature enacting a statute is not bound by existing declarations oflegally recognized harms. As a democratic body, a legislature is competentto make determinations of policy. Thus, legislatures can lay down broadrules designating certain factual patterns as harms fo r which the courts

are to provide remedies. In contrast, courts faced with situations in whichparticular li tigants seek relief under existing judge-made law lack competence to make determina tions of comparable scope. Instead, courtsmust focus on the existence of specific individual harm as justification forinvoking their limited power to deviate from established precedent.32Ordinarily, a court faced with application of a statute cannot make an

independent determination of specific harm requiring a change in thelaw. Although the facts of the particular case remain significant withregard to whether the statute applies, the court must recognize tha t thelegislature has already made the essential determination as to what setof circumstances are to const itute a legally remediable injury. However,when application of the statute would implicate const itut ional considerations, the situation changes. Clearly, the court must first look to thehigher authority of constitutional text; but the text itself does not providea complete answer as to whether the Constitution's strictures have beenviolated in a particular instance. 33 To make such a determination, the

31 CJ. J. Salmond, supra note 22, 58, at 194 (courts can disregard precedent when adifferent result would be "contrary to reason," but "[w]henever a decision is departed from,the certainty of the law is sacrificed to its rational development").

32 See id. 60, at 202: "The prerogative of judges is not to make law by formulating anddeclaring it-this per ta ins to the legislature-but to make law by applying it. Judicialdeclaration, unaccompanied by judicial application, is of no authority."33 A constitution, to contain an accurate detail of all the subdivisions of which its great


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BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807court must look to its traditional competence to assess the legal sig-nificance of facts based on the existence or nonexistence of concreteindividual injury.

In certain circumstances, however, the relevant facts are themselves notsusceptible of judicial determination. In such cases, the doctrine of "politi-ca l questions" applies: absent judicially manageable standards for deter-mining the Constitution's implications in the particular case, courts mustrelinquish certain issues to the definitive judgment of other branches ofgovernment.34 Although a particular individual may claim to be ag-grieved, examination of the facts of that individual's situation does not aidin assessing the merits of his claim. Rather, the relevant "facts" involvecompeting considerations of policy, the constitutional significance ofwhich courts are unable to evaluate. That this situation places limitationsupon the ability of the courts to deal with certain types of problems isillustrated by the Supreme Court's initial attempts to remedy legislativemalapportionment. 3 In order appropriately to allocate voting power,legislative apportionment necessarily entails evaluation of legislative factsand a choice among theories of political philosophy; such determinationsare ordinarily considered nonjusticiable. 36 Accordingly, the SupremeCourt could not recognize an equal protection challenge to a state systemof legislative apportionment in Baker v. Carr31 until it rephrased theapportionment claim in terms of its effect upon the voting rights ofindividuals. By interpreting as a private wrong what was formerly consid-ered an ill-advised political structuring, the Court effectively precludedconsideration of political judgments, thereby making possible judicialresolution of a previously nonjusticiable problem.C. The Case Method and "Activist" Approaches to Review

The previous section demonstrated that the flexibility of the commonlaw case method is crucial to any law-declaring function for the courts.The basic premise of this analysis is that the Constitution is simply a lawthat the courts must interpret in the ordinary course of judicial business.Such an approach contemplates an essentially conservative role for thejudiciary and may thus appear to ignore a significant aspect of the review-ing function-the special obligation of the courts to protect the rights ofindividuals and the interests of unpopular and unrepresented groups in a

powers will admit, and of all the means by which they may be carried into execution,would partake of a prolixity of a legal code, and could scarcely be embraced by thehuman mind .... Its nature, therefore, requires that only its great outlines should bemarked . . . and the minor ingredients which compose those objects be deduced fromthe nature of the objects themselves.McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819)." See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's TheFederal Courts and the Federal System 214-41 (2d ed. 1973) [hereinafter cited as Hart &Wechsler].35 Baker v. Carr, 369 U.S. 186 (1962); see Reynolds v. Sims, 377 U.S. 533 (1964)." See Baker v. Carr, 369 U.S. 186, 266-70, 298-99 (1962) (Frankfurter, J., dissenting).37 369 U.S. 186 (1962).


814 BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807court must look to its traditional competence to assess the legal significance of facts based on the existence or nonexistence of concreteindividual injury.In certain circumstances, however, the relevant facts are themselves notsusceptible of judicial determination. In such cases, the doctrine of "politi

cal questions" applies: absent judicially manageable standards for determining the Constitution's implications in the particular case, courts mustrelinquish certain issues to the definitive judgment of other branches ofgovernment. 34 Although a particular individual may claim to be aggrieved, examination of the facts of that individual's situation does not aidin assessing the merits of his claim. Rather, the relevant "facts" involvecompeting considerations of policy, the constitutional significance ofwhich courts are unable to evaluate. That this situation places limitationsupon the ability of the courts to deal with certain types of problems isillustrated by the Supreme Court 's initial attempts to remedy legislativemalapportionment.

35In order appropriately to allocate voting power,legislative apportionment necessarily entails evaluation of legislative facts

and a choice among theories of political philosophy; such determinationsare ordinarily considered nonjusticiable.36 Accordingly, the SupremeCourt could not recognize an equal protection challenge to a state systemof legislative apportionment in Baker v. Carr37 until it rephrased theapportionment claim in terms of its effect upon the voting rights ofindividuals. By interpreting as a private wrong what was formerly considered an ill-advised political structuring, the Court effectively precludedconsideration of political judgments, thereby making possible judicialresolution of a previously nonjusticiable problem.C. The Case Method and "Activist" Approaches to ReviewThe previous section demonstrated that the flexibility of the commonlaw case method is crucial to any law-declaring function for the courts.

The basic premise of this analysis is that the Constitution is simply a lawthat the courts must interpret in the ordinary course of judicial business.Such an approach contemplates an essentially conservative role for thejudiciary and may thus appear to ignore a significant aspect of the reviewing function-the special obligation of the courts to protect the rights ofindividuals and the interests of unpopular and unrepresented groups in a

powers will admit, and of all the means by which they may be carried into execution,would partake of a prolixity of a legal code, and could scarcely be embraced by thehuman mind .... Its nature, therefore, requires that only its great outlines should bemarked ... and the minor ingredients which compose those objects be deduced fromthe nature of the objects themselves.McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).34 See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's TheFederal Courts and the Federal System 214-41 (2d ed. 1973) [hereinafter cited as Hart &Wechsler].35 Baker v. Carr, 369 U.S. 186 (1962); see Reynolds v. Sims, 377 U.S. 533 (1964).36 See Baker v. Carr, 369 U.S. 186,266-70, 298-99 (1962) (Frankfurter,]., dissenting).37 369 U.S. 186 (1962).


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1977] JUSTICIABILITY AND THE COMMON LAW METHOD 815fundamentally majoritarian society. It has been suggested that the jus-tification for the institution of judicial review should come not fromconstitutional text or normal case-deciding functions but rather from theparticular competence of the judiciary to vindicate such rights and inter-ests.38 Notwithstanding the difference in emphasis that such "activist"approaches to review entail, their effectiveness in practice depends uponthe framework that the case method provides.The special role of the courts in protecting the interests of politicalminorities is derived from general principles of representative govern-ment.3 9 In a democracy, citizens exercise control over the political deci-sions that affect their lives through their selection of legislative and execu-tive officials who are expected to ascertain, codify and implement theconsensus of the majority. Although no individual has a right to im-plementation of his own preferred notions of government policy, it is theopportunity to participate generally in the creation of policy that justifiesimposition of the majority's consensus upon all members of society andnot merely upon those who concurred in its creation. In practice, how-ever, not all members are participants in the development of consensus;through minority status, popular prejudice, or historical subordination,some may be denied effective political voice. The principle that those whobear the burdens of a decision should participate in its making requiresthat affected individuals be able to influence political decisionmaking; ye tthe realities of democracy give no guarantee that those in power willconsider the interests of the unrepresented. Thus, it is argued under the

38 The examples of alternative theories of review presented in this section are suggestedby Shapiro, Judicial Modesty, Political Reality and Preferred Position, 47 Cornell L.Q. 175(1962) and R. Dworkin, supra note 21. Professor Shapiro attempts an outspoken defense of apurely political justification of judicial activism; Professor Dworkin sees the source forjudicial activism as derivable in principled terms from the Constitution itself.

3 See Shapiro, supra note 38, at 185-200. Professor Shapiro argues that the three branchesof government are essentially coequal "power centers," id. at 189, upon which variousinterest groups operate to develop what is considered the democratic will. Under this model,the appropriate task of the courts is to represent those interest groups-"minorities"--thatotherwise lack access to the alternative power centers-the executive and legislativebranches. Id. at 195, 197, 199, 203. Compare the simple theory of representation set forth inthe text of this article to the approach to standards of review set forth both in Justice Stone'sfamous "footnote 4" in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938),where he askswhether prejudice against discrete and insular minorities may be a special condition,which tends seriously to curtail the operation of those political processes ordinarily to berelied upon to protect minorities, and which may call for a correspondingly moresearching judicial inquiry;and in the more recent "suspect classification" equal protection cases, e.g., San Antonio Ind.School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (indicia of suspect classifications includeevidence that a particular group is "saddled with such disabilities, or subjected to such ahistory of purposeful unequal treatment, or relegated to such a position of political power-lessness as to command extraordinary protection from the majoritarian political process");Graham v. Richardson, 403 U.S. 365, 372 (1971) (use of Carolene Products "discrete andinsular minority" language in decision subjecting state alienage classification to strictscrutiny). See also Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YaleL.J. 920, 933 n.85 (1973) (higher scrutiny justified for "we-they" than for "they-they"classifications).


1977] JUSTICIABILITY AND THE COMMON LAW METHOD 815fundamentally majoritarian society. I t has been suggested that the justification for the institution of judicial review should come not fromconstitutional text or normal case-deciding functions but rather f rom theparticular competence of the judiciary to vindicate such rights and interests.38 Notwithstanding the difference in emphasis that such "activist"approaches to review entail, their effectiveness in practice depends uponthe framework that the case method provides.The special role of the courts in protect ing the interests of politicalminorities is derived from general principles of representative govern

ment.39 In a democracy, citizens exercise control over the political decisions that affect their lives through their selection of legislative and executive officials who are expected to ascertain, codify and implement theconsensus of the majority. Although no individual has a right to implementation of his own preferred notions of government policy, it is theopportunity to participate generally in the creation of policy that justifiesimposition of the majority's consensus upon all members of society andnot merely upon those who concurred in its creation. In practice, however, not all members are participants in the development of consensus;through minority status, popular prejudice, or historical subordination,some may be denied effective political voice. The principle that those whobear the burdens of a decision should participate in its making requiresthat affected individuals be able to influence political decisionmaking; yetthe realities of democracy give no guarantee that those in power willconsider the interests of the unrepresented. Thus, it is argued under the

38 The examples of alternative theories of review presented in this section are suggestedby Shapiro, Judicial Modesty, Political Reality and Preferred Position, 47 Cornell L.Q. 175(1962) and R. Dworkin, supra note 21. Professor Shapiro attempts an outspoken defense of apurely political justification of judicial activism; Professor Dworkin sees the source forjudicial activism as derivable in principled terms from the Constitution itself.39 See Shapiro, supra note 38, at 185-200. Professor Shapiro argues that the three branchesof government are essentially coequal "power centers," id. at 189, upon which variousinterest groups operate to develop what is considered the democratic will. Under this model,

the appropriate task of the courts is to represent those interest groups--"minorities"-thatotherwise lack access to the alternative power centers--the executive and legislativebranches./d. at 195, 197, 199, 203. Compare the simple theory of representation set forth inthe text of this article to the approach to standards of review set forth both in Justice Stone'sfamous "footnote 4" in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938),where he askswhether prejudice against discrete and insular minorities may be a special condition,which tends seriously to curtail the operation of those political processes ordinarily to berelied upon to protect minorities, and which may call fo r a correspondingly moresearching judicial inquiry;and in the more recent "suspect classification" equal_protection cases, e.g., San Antonio Ind.School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (indicia of suspect classifications includeevidence that a particular group is "saddled with such disabilities, or subjected to such ahistory of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process");Graham v. Richardson, 403 U.S. 365, 372 (1971) (use of Carotene Products "discrete andinsular minority" lO!nguage in decision subjecting state alienaKe classification to strictscrutiny). See also Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YaleL.J. 920, 933 n.85 (1973) (higher scrutiny justif ied for "we-they" than for "they-they"classifications).


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BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807activist approach that if such individuals-are to be held to the obligationsof society, and ultimately to obtain effective voice within the politicalprocess, the courts must act as their forum. 40

The comparative isolation of the judiciary from the pressures of thepolitical majority, achieved through life tenure and salary protection, iscentral to the ability of the courts to perform this activist review role. Thelimitation of that review to cases, however, adds significantly to its practi-ca l feasibility. Unpopular decisions are more likely to gain general accep-tance if they appear to be compelled by the facts of specific cases ratherthan motivated by a cavalier disregard for the prerogatives of an electedbranch of government.41 Moreover, the restrained and incremental na-ture of the evolution of legal principles through cases may itself serve toinhibit attempts by already effective elements of society to influence thejudicial process. 42

More importantly, decisions made in common law cases remain in factas well as in appearance within the proper judicial domain. In utilizingjudicial power to remedy societal conditions that the legislature has notpreviously designated as harmful, courts may appear to be serving as asource of policy that is unresponsive to majoritarian pressures; however,judicial review need not elevate the opinion of the courts over ma-joritarian will with respect to issues usually deemed legislative in nature. Ifcourts refuse to make legal determinations except in the context of tradi-tional cases, the types of issues that they decide will differ from the issuesof policy appropriate for legislative resolution. Rather, the courts willsimply perform their ordinary task of remedying specific injuries sufferedby particular persons. Limiting the judiciary to this task precludes undueinterference with popular will; moreover, it allocates to the courts a taskfor which they have a special competence.

Restricting challenges to legislative action to the form of cases has theadditional advantage of emphasizing the surrogate nature of the forumthat the courts are expected to provide. 43 If review of a statute is limitedto a case involving application of the statute, then participation in thechallenge will be limited to those persons actually suffering the statute'sadverse impact. If the challenge is unsuccessful, the precedential effect ofthe decision is thus limited to other cases involving similar situations. Alater challenger has freedom to reargue the statute's invalidity as applied

40 See Shapiro, supra note 38, at 19 9 ("the Court can best define its special function as therepresentation of potential or unorganized interests or values which are unlikely to berepresented elsewhere in government").

41 See generally Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersec-tions Between Law and Political Science, 20 Stan. L. Rev. 169 (1969) (discussion of therelationship between the theories of Professor Shapiro and those of the judicially"modest"-Professors Bickel and Wechsler and Judge Hand).

4" See T. Schelling, The Strategy of Conflict 37 (1960) (similar point made in the generalterms of game theory).4' Se e Shapiro, supra note 38, at 197 (relationship between the nature of judicial proceed-ings and the effectiveness of courts as alternative forums).


816 BOSTON UNIVERSI1Y LAW REVIEW [Vol. 57:807activist approach that if such individuals"are to be held to the obligationsof society, and ultimately to obtain effective voice within the politicalprocess, the courts must act as their forum.4o

The comparative isolation of the judiciary from the pressures of thepolitical majority, achieved through life tenure and salary protection, iscentral to the ability of the courts to perform this activist review role. Thelimitation of that review to cases, however, adds significantly to its practi-cal feasibility. Unpopular decisions are more likely to gain general accep-tance if they appear to be compelled by the facts of specific cases ratherthan motivated by a cavalier disregard for the prerogatives of an electedbranch of government.4l Moreover, the restrained and incremental na-ture of the evolution of legal principles through cases may itself serve toinhibit attempts by already effective elements of society to influence thejudicial processYMore importantly, decisions made in common law cases remain in factas well as in appearance within the proper judicial domain. In utilizingjudicial power to remedy societal conditions that the legislature has notpreviously designated as harmful, courts may appear to be serving as asource of policy that is unresponsive to majoritarian pressures; however,judicial review need not elevate the opinion of the courts over ma-joritarian will with respect to issues usually deemed legislative in nature. Ifcourts refuse to make legal determinations except in the context of tradi-tional cases, the types of issues that they decide will differ from the issuesof policy appropriate for legislative resolution. Rather, the courts willsimply perform their ordinary task of remedying specific injuries sufferedby particular persons. Limiting the judiciary to this task precludes undueinterference with popular will; moreover, it allocates to the courts a taskfor which they have a special competence.Restricting challenges to legislative action to the form of cases has theadditional advantage of emphasizing the surrogate nature of the forumthat the courts are expected to provide.43 If review of a statute is limitedto a case involving application of the statute, then participation in thechallenge will be limited to those persons actually suffering the statute'sadverse impact. If the challenge is unsuccessful, the precedential effect ofthe decision is thus limited to other cases involving similar situations. Alater challenger has freedom to reargue the statute's invalidity as applied

40 See Shapiro, supra note 38, at 199 ("the Court can best define its special function as therepresentation of potential or unorganized interests or values which are unlikely to berepresented elsewhere in government").4 ' See gemrally Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersec-tions Between Law and Political Science, 20 Stan. L. Rev. 169 (1969) (discussion of therela tionship between the theories of Professor Shapiro and those of the judicially

"modest"-Professors Bickel and Wechsler and Judge Hand).42 See T. Schelling, The Strategy of Conflict 37 (1960) (similar point made in the generalterms of game theory).43 See Shapiro, supra note 38, at 197 (relationship between the nature of judicial proceed-ings and the effectiveness of courts as alternative forums).


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1977] JUSTICIABILITY AND THE COMMON LAW METHOD 817to him to the extent that he has experienced the statute's impact in adifferent way. The result is a form of representation that is specific to thejudicial branch: the party who participates in a challenge to a statuterepresents himself and all others who are in a similar position. Thus, thecommon law method has salutary procedural consequences in that itbrings into the legal decisionmaking process precisely those persons whobear the impact of a decision.44 The level of actual political involvementmade possible by the participation of a few particular individuals in agiven court challenge may be slight; but it does serve to increase the levelof involvement in the political process itself of those unrepresentedgroups that this model of review is intended to protect.

The activist model views the judiciary as fulfilling important politicalfunctions, as important as those of the executive and legislative branchesof government. Under such an approach, there is no "countermajorita-rian difficulty" 45 with judicial review. 4 6 All branches of government aretested against their responsiveness to the political interests of some seg-ment of society and, to the extent that it might be relevant, both courtsand elected representatives can be seen as acting contrary to popular willwhen they act in accordance with the Constitution.4 7 However, to treat thecourts and other branches of government as functionally similar would beto ignore another significant aspect of activist review-the unique compe-tence of courts to identify and thus to protect such individual rights.

Under this approach, the structure of the Constitution itself justifiescourt interference with popular authority. 48 As a source of specific rights

41 Cf E. Levi, An Introduction to Legal Reasoning 5 (1949) (emphasizing participation assource for the compelling force of law over litigants, who "are bound by something theyhelped to make").'5 A. Bickel, supra note 3, at 16-17:The root difficulty is that judicial review is a counter-majoritarian force in our system.. . . [W]hen the Supreme Court declares unconstitutional a legislative act or the action ofan elected exectitive, it thwarts the will of representatives of the actual people of thehere and now; it exercises control, not in behalf of the prevailing majority, but against it.46 See Deutsch, supra note 41, at 170 (footnotes omitted):

The starting point for the recent debate has been Judge Hand's eloquent Holmeslectures. In those lectures, Hand confessed his inability satisfactorily to justify a doctrineof judicial review that enables a Court not responsible to the electorate to nullify acts ofoitical agencies deriving their powers directly from that electorate. Professorechslers essay on neutral principles, by rooting the power of udicial review in the textof the Constitution itself, attempts to lay the ghost of judicial usurpation raised byHand.Shapiro, so to speak, stands Hand on his head. He accepts as given-as the normal

state of affairs-the very attempt of the Court to substitute its policy preferences forthose of the political agencies that Hand found so difficult to justify even in exceptionalcircumstances.11 Professor Bickel apparently did not realize, see note 45 supra, that if an individuallegislator should choose to vote against popular legislation for reasons of constitutionalprinciple, he too would be acting in a countermajoritarian fashion. Cf.The Federalist No. 78(Wright ed. 1961) (A. Hamilton) (justification of judicial review as not countermajoritarian

because the Constitution itself represents the highest statement of majority will). See generallyG. Gunther, supra note 14, at 25-36 (competence of nonjudicial branches of governmentindependently to interpret constitutional provisions).48 See R. Dworkin, supra note 21, ch. 5.


1977] JUSTICIABILITY AND THE COMMON LAW METHOD 817to him to the extent that he has experienced the statute's impact in adifferent way. The result is a form of representation that is specific to thejudicial branch: the party who participates in a challenge to a statuterepresents himself and all others who are in a similar position. Thus, thecommon law method has salutary procedural consequences in that itbrings into the legal decisionmaking process precisely those persons whobear the impact of a decision.44 The level of actual political involvementmade possible by the participation of a few particular individuals in agiven court challenge may be slight; but it does serve to increase the levelof involvement in the political process itself of those unrepresentedgroups that this model of review is intended to protect.The activist model views the judiciary as fulfilling important politicalfunctions, as important as those of the executive and legislative branches

of government. Under such an approach, there is no "countermajoritarian difficulty"45 with judicial review.46 All branches of government aretested against their responsiveness to the political interests of some segment of society and, to the extent that it might be relevant, both courtsand elected representat ives can be seen as acting contrary to popular willwhen they act in accordance with the Constitution.47 However, to treat thecourts and other branches of government as functionally similar would beto ignore another significant aspect of activist review-the unique competence of courts to identify and thus to protect such individual rights.Under this approach, the structure of the Constitution itself justifies

court interference with popUlar authority.48 As a source of specific rights.. cf E. Levi, An Introduction to Legal Reasoning 5 (1949) (emphasizing participation assource for the compell ing force of law over litigants, who "are bound by something theyhelped to make").45 A. Bickel, supra note 3, at 16-17:The root difficulty is that judicial review is a counter-majoritarian force in ou r system.. . . [W]hen the Supreme Court declares unconstitutional a legislative act or the action ofan elected executive, it thwarts the will of representatives of the actual people of thehere and now; it exercises control, not in behalf of the prevailing majority,but against it.46 See Deutsch, supra note 41, at 170 (footnotes omitted): .The s tarting point for the recent deba te has been Judge Hand's el0ll.uent Holmeslectures. In those lectures, Hand confessed his inability satisfactorily tojustify a doctrineof judicial review that enables a Court not responsible to the electorate to nullify acts ofpolitical agencies deriving their powers directly from that electorate. ProfessorWechsler's essay on neutrafprinciples, by rooting the power of judicial review in the textof the Const itution itself, a ttempts to lay the ghost of judicial usurpation raised byHand.Shapiro, so to speak, stands Hand on his head. He accepts as given-as the normalstate of affairs--tne very attempt of the Court to substitute its olicy preferences fortJ:iose of the political agencies that Hand found so difficult to justify even in exceptionalcIrcumstances.

47 Professor Bickel apparently did not realize, see note 45 supra, that if an individuallegislator should choose to vote against popular legislation for reasons of constitutionalprinciple, he too would be acting in a countermajoritarian fashion. Cf The Federalist No. 78(Wright ed. 1961) (A. Hamilton) (justification of judicial review as not countermajoritarianbecause the Constitution itself represents the highest statement of majority will). See generallyG. Gunther, supra note 14, a t 25-36 (competence of nonjudicial branches of governmentindependently to interpret constitutional provisions).46 See R. Dworkin, supra note 21, ch. 5.


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BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807that are inherently superior to the objectives of the majority, the Constitu-tion places certain limitations upon the range of decisions that can prop-erly be made by that majority.4 9 Because such rights are part of the initialframe of government, they need no justification for being counter-majoritarian. Moreover, being objective in nature, they are not subject todiscovery and verification through the democratic process; they mustinstead be developed through the principled decisionmaking of thecourts. 50In form, such an argument accords with the thesis of Professor Bickelthat the Constitution and the notion of law in general serve to justify theinjection of principle into the democratic process: 51

It is a premise we deduce not merely from the fact of a writtenconstitution but from the history of the race, and ultimately as amoral judgment of the good society, that government should servenot only what we conceive from time to time to be our immediatematerial needs but also certain enduring values. This in part is what ismeant by government under law. 52

Because legislatures are essentially creatures of expediency in a democ-racy,53 the role of development of principle has traditionally and properlyfallen to the courts. According to Professor Bickel, it is the common lawsystem of deciding cases that uniquely prepares the courts for this task. 4The traditional method, with its emphasis upon the facts of the specificcase, tends to lengthen the perspective of the decisionmaker, "providingan extremely salutary proving ground for all abstractions [and being]conducive, in a phrase of Holmes, to thinking things, not words, and thusto the evolution of principle by a process that tests as it creates. ' 55 Timeitself has similar effects; the inevitable delay between enactment of legisla-tion and its application to a particular set of circumstances enables thecourts to "appeal to men's better nature," and to act in light of "whatJustice Stone called the opportunity for 'the sober second thought.' "56 Inmore general terms, traditional cases breed responsible decisionmaking,49 d. at 133.50 See id. at 137-38, 140, 142-47.5' For Professor Bickel, the special competence of courts as developers of principle

justifies their limited interference with immediate majoritarian rule, but only insofar as thecourts remain ultimately responsible to the political process through the "passive virtues" ofjudicial restraint. See A. Bickel, supra note 3, at 27-33, 68-72, ch. 4. Such a compromise ispossible, and consistent with the concept of majority rule, because Bickel sees no inherentconflict between "principles" as elucidated by the courts and popular will; such "principles"are merely immediate expressions by the courts of those "enduring values" that mustultimately be vindicated or rejected through the operation of political forces. Id. at 24.

52 Id; see id. at 23-25.'3 ee id. t 24 , 27." See id. at 25-27, 69-70, 114-17.51 d. at 26.56 d.


818 BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807t ha t a re inherently superior to the objectives of the majority, the Constitution places certain limitations upon the range o f decisions that can prop-erly be made by that majority.49 Because such rights are part of the initialframe of government, they need no justification for being countermajoritarian. Moreover, being objective in nature, they ar e no t subject todiscovery an d verification through the democratic process; they mustinstead be developed through the principled decisionmaking o f thecourts.50

In form, such a n a rg um en t accords with the thesis of Professor Bickelthat th e Constitution and the notion of law in general serve to justify theinjection o f principle into the democratic process: 51I t is a premise we deduce no t merely from the fact o f a writtenconstitution but from the history of the race, an d ultimately as amoral judgment of the good sOCiety, that government should serveno t onlr what we conceive from time to time to be our immediatemateria needs but also certain enduring values. This in part is what ismeant by government under law.52

Because legislatures ar e essentially creatures o f expediency in a democracy,53 the role of development of principle has traditionally an d properlyfallen to the courts. According to Professor Bickel, it is the common lawsystem of deciding cases that uniquely prepares the courts for this task. 54The traditional method, with its emphasis upon the facts of the specificcase, tends to lengthen the perspective o f the decisionmaker, "providingan extremely salutary proving ground for all abstractions [and being]conducive, in a phrase o f Holmes, to thinking things, no t words, an d thusto th e evolution of principle by a process that tests as it creates."55 Timeitself has similar effects; the inevitable delay between enactment o f legislation an d its application to a par ticular set o f circumstances enables thecourts to "appeal to men's better nature," an d to act in light o f "whatJustice Stone called the opportunity for 'the sober second thought.' "56 Inmore general terms, traditional cases breed responsible decisionmaking,

49 [d. at 133.50 See id. at 137-38, 140, 142-47.51 For Professor Bickel, the special competence o f courts as developers of principlejustifies their limited interference with immediate majoritarian rule, bu t only insofar as the

courts remain ultimately responsible to the political process through the "passive virtues" o fjudicial restraint. See A. Bickel, supra note 3, at 27-33, 68-72, ch. 4. Such a compromise ispossible, an d consistent with the concept of majority rule, because Bickel sees no inherentconflict between "principles" as elucidated by the courts a nd p op ul ar will; such "principles"ar e merely immediate expressions by the courts of those "enduring values" tha t mustultimately be vindicated or rejected through the operation o f political forces. [d. at 24.52 [d; see id. at 23-25.53 See id. at 24, 27.54 See id. at 25-27, 69-70, 114-17.55 [d. at 26.56 /d.


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1977] JUSTICIABILITY AND THE COMMON LAW METHOD 819"the hard, confining, and yet enlarging context of a real controversy leadsto sounder and more enduring judgments. 5 7

III. JUSTICIABILITY AND THE COMMON LAW MODELA. Expanding the Limits of Justiciability

In the ordinary run of litigation, decisionmaking occurs naturallywithin the context of a traditional case. Both the propriety of invoking thepower of the court and the presentation of essential facts are assuredwithout imposition of special doctrinal limitations. The old model oflitigation, however, in which legal principles were merely an incidentalby-product of resolution of particular disputes, has been supplemented bya new approach in which the individual case may be used as a vehicle forsocial change. 58 Under the new model, lawsuits are initiated both toremedy private harms and to establish precedents that will govern futurecases. Such lawsuits, whether intended to vindicate traditional legal rightsof absent parties or the ideological goals of nontraditional plaintiffs,involve a significant shift in focus-a shift from concern with final deter-mination of the rights of parties before the court to development of legalprinciple per se .

Commentators who have noted this shift in focus have generally believedthat it does not present substantial problems. Under this view, justiciabilitydoctrines would be reduced to a purely functional role; effective alloca-tion of limited judicial resources becomes a primary factor in controllingaccess to the courts and legal challenges become amenable to judicialresolution when sufficiently specific facts are available to ensure thatissues are presented with requisite clarity.5 9 Even given that courts candecline to adjudicate issues developed in inadequate form, 60 the morebasic question remains whether the development of such issues outsidethe confines of a traditional case provides an otherwise sufficient contextfor adjudication.

Both practical and theoretical problems arise in cases in which thelitigant's concern with long-range political goals overshadows his concernwith the immediate relief requested. The practical problems result fromthe litigant's increased willingness deliberately to rephrase issues so as toinfluence the eventual scope of the decision as precedent. Courts mayordinarily rely upon the parties to present a mass of information fromwhich independent judicial determinations as to the legal significance ofcertain facts can be made. The random quality of reliance upon injured

" Id. at 115; see id. t 69-70.58 See, e.g., United States v. SCRAP, 412 U.S. 669, 687 (1973) (referring to use of legal

process as a "vehicle for the vindication of the value interests of concerned bystanders"). Seegenerally Chayes, supra note 6, at 1281-84; Monaghan, supra note 4, at 1365-71.'9 See, e.g., Scott, supra note 4, at 670-83.60Monaghan, supra note 4, at 1373.


1977] JUSTICIAR/LIlY AND THE COMMON LAW METHOD 819"the hard, confining, and yet enlarging context of a real controversy leadsto sounder and more enduring judgments."s7

III. JUSTICIABILITY AND THE COMMON LAW MODELA. Expanding the Limits of JustuiabilityIn the ordinary run of litigation, decisionmaking occurs naturallywithin the context of a traditional case. Both the propriety of invoking thepower of the court and the presentation of essential facts are assuredwithout imposition of special doctrinal limitations. The old model oflitigation, however, in which legal principles were merely an incidentalby-product of resolution of particular disputes, has been supplemented bya new approach in which the individual case may be used as a vehicle forsocial change.s8 Under the new model, lawsuits are initiated both toremedy private harms and to establish precedents that will govern futurecases. Such lawsuits, whether intended to vindicate traditional legal rightsof absent parties or the ideological goals of nontraditional plaintiffs,involve a significant shift in focus-a shift from concern with final determination of the rights of parties before the court to development of legalprinciple per se.

Commentators who have noted this shift in focus have generally believedthat it does not present substantial problems. Under this view,justiciabilitydoctr ines would be reduced to a purely functional role; effective allocation of limited judicial resources becomes a primary factor in controllingaccess to the courts and legal challenges become amenable to judicialresolution when sufficiently specific facts are avail'able to ensure thatissues are presented with requisite clarity.59 Even given that courts candecline to adjudicate issues developed in inadequate form,60 the morebasic question remains whether the development of such issues outsidethe confines of a traditional case provides an otherwise sufficient contextfor adjudication.Both practical and theoretical problems arise in cases in which thelitigant's concern with long-range political goals overshadows his concernwith the immediate relief requested. The practical problems result fromthe litigant's increased willingness deliberately to rephrase issues so as toinfluence the eventual scope of the decision as precedent. Cour ts mayordinarily rely upon the parties to present a mass of information fromwhich independent judicial determinations as to the legal significance ofcertain facts can be made. The random quality of reliance upon injured

07 [d. at 115; see id. at 69-70.08 See, e.g., United States v. SCRAP, 412 U.S. 669, 687 (1973) (referring to use of legalprocess as a "vehicle for the vindication of the value interests of concerned bystanders"). Seegenerqlly Chayes, supra note 6, at 1281-84; Monaghan, supra note 4, at 1365-71.09 See, e.g., Scott, supra note 4, at 670-83.80 Monaghan, supra note 4, at 1373.


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BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807approach to declaratory relief. The Declaratory Judgments Act6 7 allows apotential defendant to litigate at a point when prior procedure wouldhave required him to wait and defend. One purpose of the Act is toalleviate the costs implicit in delaying adjudication of the validity ofthreatened government action. In particular, it was thought undesirableto force an individual to choose between forgoing his intended course ofconduct and running the risk of legal sanctions. Such a procedure thuspermits litigation for the sole purpose of affecting the outcome of ananticipated, not actual, dispute-a dispute that would occur only if thegovernment were to undertake the action that a potential defendantchallenges. The importance of predictability to a legal system that regu-lates society by guiding primary conduct militates strongly in favor of theavailability of some such determinations prior to arguably prohibitedconduct. 68

The inherent conflict that thus exists between the need for knowledgeabout the probable legal consequences of future conduct and the tradi-tional requirement that legal issues be resolved only within the context ofan actual controversy is met by the ripeness doctrine. Under the doctrine,courts may not intervene except in the presence of objective evidence of athreat of harm or enforcement. 69 Ripeness ensures that a court will not beforced to rely upon a hypothetical factual situation to formulate rules oflaw with speculative ramifications.7 0 When a dispute arises out of a courseof conduct involving both a potential defendant and the government,there is not only a need for judicial remedy,7 1 but also a strong incentive

67 28 U.S.C. 2201-02 (1970); see Perez v. Ledesma, 401 U.S. 82 , 111-15 (1971) (opinionof Brennan, J.) (purposes of Act).

68 See Monaghan, supra note 4, at 1394 & n.188; J. Rawls, supra note 21 , at 238-40.The purposes of the Act do not extend to litigation in which the sole purpose is prede-termination of legal principles to govern disputes between other parties; however, theprocedural innovations which the Act introduces are readily adaptable to that end. Whereasa defendant in a criminal trial has little, if any, control over the factual framing of the legalissues, a plaintiff seeking declaratory relief has a great deal. He need only hypothesize a se tof facts and allege that government officials will attempt to prosecute him on those facts, inorder to force resolution of constitutional issues upon a stipulated set of circumstances. Insuch a situation, adjudication of the legal issues would be contrary to the traditional re-quirement that legal questions be resolved only within the context of an actual controversycalling for adjustment and application of prior rules.69 See Comment, Threat of Enforcement-Pre-Requisite of a Justiciable Controversy, 62Colum. L. Rev. 106, 111 (1962). See generally Hart & Wechsler, supra note 34, at 140-49.70 See, e.g., Boyle v. Landry, 401 U.S. 77, 81 (1971). See also Monaghan, supra note 4, at

1394, where the suggestion is made that there is a substantial risk of frivolity when declara-tory relief is sought in an "as applied" attack upon a facially valid statute. ProfessorMonaghan argues that the defendant should be required to show that the criminal processwill not provide an adequate forum for testing the constitutionality of the application of thelaw and that the "as applied" issue can be concretely presented prior to commencement ofthe prosecution.

" In the absence of an immediate threat of enforcement, litigants suffer no harm whenadjudication is delayed. A period of postponement can, however, be advantageous to thecourts. Legislative enactments, agency rulemaking, or other contingencies may obviate theneed for adjudication. Moreover, delay allows for development of a more concrete factualsituation, thus facilitating eventual judicial resolution of the issues. In some instances,interested groups may take the opportunity to prepare data and to explore possible groundsfor and ramifications of the decision.


822 BOSTON UNIVERSITY LAW REVIEW [Vol. 57:807approach to declaratory relief. The Declaratory Judgments Act67 allows apotential defendant to litigate at a point when prior procedure wouldhave required him to wait and defend. One purpose of the Act is toalleviate the costs implicit in delaying adjudication of the validity ofthreatened government action. In particular, it was thought undesirableto force an individual to choose between forgoing his intended course ofconduct and running the risk of legal sanctions. Such a procedure thuspermits litigation for the sole purpose of affecting the outcome of ananticipated, not actual, dispute-a dispute that would occur only if thegovernment were to undertake the action that a potential defendantchallenges. The importance of predictability to a legal system that regulates society by guiding primary conduct militates strongly in favor of theavailability of some such determinations prior to arguably prohibi tedconduct.68

The inherent conflict that thus exists between the need for knowledgeabout the probable legal consequences of future conduct and the traditional requirement that legal issues be resolved only within the context ofan actual controversy is met by the ripeness doctrine. Under the doctrine,courts may no t intervene except in the presence of objective evidence of athreat of harm or enforcement. 69 Ripeness ensures that a court will not beforced to rely upon a hypothetical factual situation to formulate rules oflaw with speculative ramifications.70 When a dispute arises out of a courseof conduct involving both a potential defendant and the government,there is not only a need for judicial remedy,71 but also a strong incentive

67 28 U.S.C. 2201-02 (1970); see Perez v. Ledesma. 401 U.S. 82. 111-15 (1971) (opinionof Brennan, J.) (purposes of Act).68 See Monaghan, supra note 4, at 1394 & n.188; J. Rawls, supra note 21, at 238-40.The purposes of the Act do not extend to litigation in which the sole purpose is predetermination of legal principles to govern disputes between other parties; however , the

procedural innovations which the Act introduces are readily adaptable to that end. Whereasa defendant in a criminal trial has little, if any. control over the factual framing of the legalissues, a plaintiff seeking declaratory relief has a great deal. He need only hypothesize a setof facts and allege that government officials will attempt to prosecute him on those facts. inorder to force resolution of constitutional issues upon a stipulated set of circumstances. Insuch a situation, adjudication of the legal issues would be contra ry to the traditional requirement that legal questions be resolved only within the context of an actual controversycalling for adjustment and application of prior rules.

69 See Comment, Threat of Enforcement-Pre-Requisite of a Justiciable Controversy, 62Colum. L. Rev. 106, III (1962). See generally Hart & Wechsler, supra note 34, at 140-49.70 See, e.g., Boyle v. Landry, 401 U.S. 77,81 (1971). See also Monaghan, supra note 4, at

1394, where the suggestion is made that there is a substantial risk of frivolity when declaratory rel ief is sought in an "as applied" attack upon a facially valid statute. ProfessorMonaghan argues that the defendant should be required to show that the criminal processwill not provide an adequate forum for testing the constitutionality of the application of thelaw and that the "as applied" issue can be concretely presented prior to commencement ofthe prosecution."In the absence of an immediate threat of enforcement, litigants suffer no harm whenadjudication is delayed. A period of postponement can, however , be advantageous to thecourts. Legislative enactments, agency rulemaking, or other contingencies may obviate the

need for adjudication. Moreover, delay allows for development of a more concrete factualsituation, thus facilitating eventual judicial resolution of the issues. In some instances,interested groups may take the opportunity to prepare data and to explore possible groundsfor and ramifications of the decision.


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1977] JUSTICIABILITY AND THE COMMON LAW METHOD 82 3for both parties to bring every significant factual detail to the attention ofthe court. Once a threat of harm is established, that the judgment willhave res judicata effect as to the parties guarantees that the court ispromulgating rules not in the abstract but incident to the determina-tion of the rights of litigants before it. This effect is vitiated if thoseissues presented for judicial resolution and actually adjudicated fail accu-rately to reflect the facts of the parties' situation; only proof that a litigantfaces a substantial threat of harm ensures that the force of res judicata willbe compelling.

The ripeness doctrine allows for adjustment of the literal rules govern-ing common law decisionmaking to accommodate the need for predict-ability. It thus incorporates basic notions about the function of law insociety into a traditional framework of adjudication.7 2 The standing doc-trine performs a similar function: it ensures the legitimacy of a judicialprocess that applies principles from previous cases to decide the claims offuture litigants by requiring that such principles be derived only as anincident of determining the rights of the parties before the court. For thisreason, it is somewhat analogous to constitutional limitations on the per-missible res judicata effect of a decision.

Ordinarily, due process limits the permissible res judicata effects of ajudgment upon persons not party to litigation and requires that personswho will be affected by a judgment have an opportunity to participate inits formulation--or, in class action litigation, to be represented by asimilarly situated litigant. 73 As the discussion of stare decisis indicated,however, even absent res judicata considerations the precedential sig-nificance of a decision for later cases may be substantial. 74 Future litigantswith claims similar to those resolved in a particular case are thus effec-tively placed in the position of absent members of a class action: they mustrely upon the adequacy of representation provided by prior litigantswhose claims, when resolved, will yield certain principles of law. Becausethe common law model focuses upon the vindication of private rightsthrough limited holdings, the legal principles laid down in each case are

In some "hard cases," the Supreme Court may prefer to stage a full-scale dress rehearsalprior to the real performance. Compare Warth v. Seldin, 422 U.S. 490 (1975), with Village ofArlington Heights v. Metropolitan Housing Dev. Corp., 97 S. Ct. 555 (1977). ComparealsoDeFunis v. Odegaard, 416 U.S. 312 (1974), with Bakke v. Regents of Univ. of Cal., 18 Cal. 3d34, 553 P.2d 1152, 132 Cal. Rptr. 680 (1976), cert. granted, 97 S. Ct. 1098 (1977). The Courtmay even suggest the specific details it would find helpful. For example, in Warth v. Seldin,the Court suggested that a properly phrased challenge to exclusionary zoning would allegethe denial of a specific building permit. 422 U.S. at 504. Such a challenge was subsequentlypresented and adjudicated on the merits in the Arlington Heights case.

72 See Developments in the Law-Declaratory Judgments-1941-1949, 62 Harv. L. Rev.787, 793 (1949):The modern declaratory judgment procedure answers the need for early adjudicationof legal relations without doing violence to the case-adversary system of presentingissues to the courts. In this way the procedure supplies a useful but carefully limitedextension of the judicial function.7' See, e.g., Mullane v. Hanover Bank & Trust Co., 339 U.S. 306 (1950). See generally Note,Collateral Estoppel of Nonparties, 87 Harv. L. Rev. 1485, 1496-97 (1974).

74 Cf. Chayes, supra note 6, at 1294 (discussion of "stare decisis effect" of modernequitable litigation).


1977] jUSTICIABILI1Y AND THE COMMON LAW METHOD 823for both parties to bring every significant factual detail to the attention ofthe court. Once a threat of harm is established, that the judgment willhave res judicata effect as to the parties guarantees that the court ispromulgating rules not in the abstract but incident to the determination of the rights of litigants before it. This effect is vitiated if thoseissues presented for judicial resolution and actually adjudicated fail accurately to reflect the facts of the parties' situation; only proof t h a ~ a litigantfaces a substantial threat of harm ensures that the force of res judicata willbe compelling.The ripeness doctrine allows for adjustment of the literal rules govern

ing common law decisionmaking to accommodate the need for predictability. I t thus incorporates basic notions about the function of law insociety into a traditional framework of adjudication. 72 The standing doctrine performs a similar function: it ensures the legitimacy of a judicialprocess that applies principles from previous cases to decide the claims offuture litigants by requiring that such principles be derived only as anincident of determining the rights of the parties before the court. For thisreason, it is somewhat analogous to constitutional limitations on the permissible res judicata effect of a decision.Ordinarily, due process limits the permissible res judicata effects of a

judgment upon persons not party to litigation and requires that personswho will be affected by a judgment have an opportunity to participate inits formulation--or, in class action litigation, to be represented by asimilarly situated litigant.73 As the discussion of stare decisis indicated,however, even absent res ju

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