JUDICIARY AND SOCIAL POLICY (FROM JUDICIARY IN A DEMOCRATIC SOCIETY, 1979, BY LEONARD J THEBERGE)

• NCJ Number: 56801
• Author(s): N GLAZER
• Date Published: 1979
• Length: 14 pages
• Corporate Author: D C Heath and Co
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

HYPOTHESES ABOUT THE LIKELY IMPACT OF JUDICIAL INVOLVEMENT IN OVERSEEING, CORRECTING, SETTING STANDARDS FOR, AND DIRECTLY ADMINISTERING SOCIAL SERVICES ARE DEVELOPED.

Abstract

AT ISSUE ARE JUDICIAL DECISIONS SETTING FORTH ELABORATE PROVISIONS FOR ADMINISTRATION--DECISIONS THAT TELL GOVERNMENT AGENTS HOW TO OPERATE, USUALLY WITH SOME PROVISION FOR CONTINUED OVERSIGHT BY THE COURT. TYPE-CASE FOR SUCH DECISIONS IS THE SCHOOL DESEGREGATION ORDER. OTHER CASES HAVE INVOLVED PRISONS, MENTAL HOSPITALS, AND OTHER AGENCIES. RATHER THAN CONSIDERING THE PROPRIETY OF THIS JUDICIAL ROLE EXPANSION, THE DISCUSSION FOCUSES ON ITS LIKELY IMPACT. HYPOTHESES ARE DEVELOPED ON THE BASIS OF A REVIEW OF JUDICIAL ACTIVISM IN ALABAMA AND ELSEWHERE. IT IS CONCLUDED THAT THE OVERALL EFFECT OF DIRECT JUDICIAL INTERVENTION IN SOCIAL POLICY ADMINISTRATION WILL BE TO REDUCE THE AUTHORITY, RANGE OF DISCRETION, AND RESPONSIBILITY OF ADMINISTRATORS AND SERVICE PROVIDERS. THE REDUCTION IN WORKING ADMINISTRATORS' AUTHORITY WILL BE ACCOMPANIED BY A SHIFTING OF POWER FURTHER UP THE CHAIN OF COMMAND, AN EVENT THAT MOST ORGANIZATIONAL THEORISTS BELIEVE DOES NOT ENHANCE THE EFFECTIVENESS OF AN ORGANIZATION. REDUCING THE AUTHORITY OF SERVICE PROVIDERS BY REQUIRING THEM TO FOLLOW COURT-ORDERED PROCEDURES MAY LEAD THOSE WHO RECEIVE SERVICES TO CONCLUDE THAT THE PROVIDERS CANNOT BE TRUSTED TO PERFORM WELL. BECAUSE THE COURTS USUALLY RECEIVE TESTIMONY FROM ACADEMICIANS RATHER THAN PRACTITIONERS, THEIR DECISIONS ARE LIKELY TO GIVE GREATER WEIGHT TO THEORETICAL THAN TO PRACTICAL OR CLINICAL CONSIDERATIONS. AN IMPLICATION HERE IS THAT PRACTITIONERS WILL HAVE LESS OPPORTUNITY TO BRING THEIR INSIGHT AND EXPERIENCE TO BEAR ON SOCIAL POLICY FORMULATION. ANOTHER PROBLEM IS THAT WHEN THE THEORETICAL 'KNOWLEDGE' ON WHICH A JUDICIAL DECISION IS BASED TURNS OUT TO BE WRONG, FURTHER LEGAL ACTION IS REQUIRED TO DEAL WITH THE SITUATION. THE ADMINISTRATOR, ON THE OTHER HAND, CAN SIMPLY REVERSE A DECISION UNDER SUCH CIRCUMSTANCES, AND IS IN A POSITION TO TEMPER ENTHUSIASM FOR THEORETICAL TRENDS WITH PRACTICAL EXPERIENCE. JUDICIAL INVOLVEMENT IN SOCIAL POLICY ADMINSTRATION IS ALSO LIKELY TO INCREASE THE POWER OF LAWYERS AND ACADEMICIANS RELATIVE TO THAT OF PROFESSIONALS WHO DEAL DIRECTLY WITH SERVICE RECIPIENTS. (LKM)