Date of Original Version
Many law and policy scholars consider judges inimical to good public policymaking, and the criticisms they level on the judiciary implicitly reflect some of the concerns raised by Alexander Bickel and other critics. Despite the charge by critics that judges are institutionally ill equipped to participate in the policy-making process and that legal processes are costly, there are reasons to believe otherwise. This article uses field interviews and three case studies of an environmental dispute in the Pacific Northwest to show that the judiciary can be an institutional venue that enhances public input, can be more inclusive than other venues, and produces positive-sum outcomes when other venues cannot. The findings also suggest that legislative and agency policymaking are just as contentious and costly as judicial policy-making processes.
Ley, A. J. (2014). The Costs and Benefits of American Policy-Making Venues. Law & Society Review, 48, 91–126.