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Amnon Lehavi, Judicial Review of Judicial Lawmaking, 96 Minn. L. Rev. (forthcoming 2011), available at SSRN.

To what extent is a court just another lawmaker in our governmental structure? Professor Amnon Lehavi argues that the U.S Supreme Court has given a surprising answer in a surprising place: Stop the Beach Renourishment Inc. v. Florida Dept. of Envtl. Protection. The question in Stop the Beach was whether a decision of the Florida Supreme Court altering state property law deprived property owners of their rights in violation of the Fifth and Fourteenth Amendments. The U.S. Supreme Court held that it did not, but four justices expressly recognized that a judicial decision could constitute an unconstitutional taking.1 Lehavi contends that the case is significant beyond its ramifications for constitutional property law: four justices would treat state courts as lawmakers, indistinguishable from legislatures in this context. As Justice Scalia wrote: “It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat . . . the particular state actor is irrelevent.”2

Lehavi considers the implications of this view. For example, Lehavi asks, if state courts are lawmakers, are they entitled to the same sort of judicial deference as legislators and agencies? Specifically, should the U.S. Supreme Court engage in deferential review of their determinations rather than more aggressive de no review? If so, should the same doctrines apply or apply in the same manner? Lehavi observes many of those doctrines are adapted for legislatures or agencies, such as the regulatory taking doctrine. Consider Penn-Central’s three-prong test, which asks a reviewing court to consider: (1) the economic impact of the regulation on the claimant;” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations;” and (3) the character of the governmental action.” Lehavi notes that the third prong is awkward.  In some cases, the Court has examined whether the invasion is part of a broader governmental program adjusting benefits and burdens among citizens. But courts do not maintain such programs. Perhaps, then, substantive due process supplies the proper analysis, asking whether the invasion is effective at achieving some legislative public purpose. Courts have been understandably deferential to legislatures and judges on the means-ends connection. But, Lehavi inquires, should they maintain the same posture for state courts?

In the end, Lehavi argues for a model that sees state courts as recipients of delegated authority. When legislatures and agencies enact broad legal standards or leave open certain terrain within a common law field, courts (through common law adjudication) specify the rules in this area. Returning to Stop the Beach and the question of when a judicial decision altering the common law constitutes an unconstitutional taking, Lehavi argues that the Court should view a suspect judicial decision as flowing from the underlying delegation of authority from the political branches and thus ascribe the motives and policies of the judicial decision to the delegation. As such, the judicial decision is not merely a “judicial wrong” but a governmental wrong, and the Court should assess that wrong in reference to the motives and policies of the original legislative and executive acts. The idea, Lehavi says, is not one of vicarious liability but of situating the judicial decision in its broader, realistic lawmaking context. In Lehavi’s words, “for purposes of identifying the underlying motives, goals, and background, socioeconomic facts, a federal reviewing court could rely on the way in which the institutional collaborative scheme has unfolded over time, while independently reviewing the federal law questions implicated by the development of the common law doctrine.” (P. 40).

Lehavi’s article is part of a broader discussion about the nature of the judicial power in the modern regulatory state. We have long held onto the fiction that courts, particularly Article III courts, do not make law. Chief Justice Roberts endorsed the fiction in his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules; they apply them.” Justice Scalia has been more self-conscious about the fiction, but he has nonetheless adhered to it: Judges “make” the law “as judges make it, which is to say as though they were ‘finding’ it–discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” The fiction has been widely criticized by legal realists who acknowledge that judges do make law as well as by political scientists who have provided empirical support for the view of judges as lawmakers, and politically predictable ones at that.

Yet the old umpire uniform still hangs around.  Judges may be political, but we are reluctant to treat courts as lawmakers, subject to the same legal doctrines that govern legislators or agencies. For example, courts implement broadly-worded statutes, such as the Sherman Act or Title VII, but we regard those statutes differently from the ones that agencies implement. As Professor Maggie Lemos has argued, those statutes have not traditionally been subject to the same sort of nondelegation limits as statutes that agencies implement. Nor do we generally view courts as recipients of delegated authority, asking why Congress might design statutes with a preference for courts over agencies as implementing institutions. Moreover, we do not evaluate different judicial practices with a realistic understanding of the judicial power. For example, should stare decisis apply to questions of statutory interpretation in judicially-administered statutes? Should the absurdity doctrine apply? We either take the answers for a given (stare decisis: of course), or we finesse the answers to avoid harsh results (absurdity doctrine: judges should not remake the law except when the law needs to be remade). That is not to deny differences between courts, on the one hand, and legislatures and agencies, on the other. It is to recognize the similarities.

Lehavi shows us that the Court itself may be beginning to acknowledge the similarities, albeit still maintaining a safe distance from the plate. State courts are not federal courts, and the Court has always been more willing to acknowledge that state courts possess the power to make the law by altering the common law. (P. 7). Still, Lehavi shows us, the Court has gone further than ever before. Judicial changes to the common law can have the same legal character as legislative or administrative changes to statutory or regulatory law. The implications are far reaching.


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  1. Four other justices, in two different concurring opinions (Kennedy, J. and Breyer, J.), left open that determination.
  2. Id. at 2602.
Cite as: Lisa Bressman, The Judicial Playing Field: Courts as Lawmakers, JOTWELL (July 11, 2011) (reviewing Amnon Lehavi, Judicial Review of Judicial Lawmaking, 96 Minn. L. Rev. (forthcoming 2011), available at SSRN),