JUDICIAL GOVERNANCE OF THE LONG BLUR Jim Dator Hawaii Research Center…

JUDICIAL GOVERNANCE OF THE LONG BLUR

Jim Dator
Hawaii Research Center for Futures Studies
University of Hawaii
Honolulu, Hawaii 96822 USA
dator@hawaii.edu
http://www.soc.hawaii.edu/future/

In a recent issue of Futures, I concluded an essay on the futures of
the courts and law with an ancient Chinese poem which I first heard
read by the Chief Justice of the Courts of Singapore, Yong Pung How.
The poem said that one of the signs of a well-governed polity is that
"the courts of justice are overgrown with grass" [1]. I have also been
known to argue passionately that, while some polities are closer to
being democratic than others, no current system is democratic; that
true democracy lies in the future, most likely as enabled by some
forms of electronic direct democracy [2].

At the same time, I have been working for many years with judges,
judiciaries, lawyers, and law associations throughout the US and in
other countries as well, and have become increasingly impressed
with how future-oriented they are, compared with other political
and economic actors in postmodern societies [3].

The purpose of this little essay is to explain a related phenomenon I
(and many others) have long noted: that the relevance of elected
legislatures is fading away while more and more governance is being
taken over by judiciaries. This phenomenon is especially found in
common law jurisdictions where judiciaries have considerably more
policy making discretion than they do in civil law systems. But I
believe it is more or less true everywhere, and might become more
and more the case worldwide over the following years.

I do not see the move from elected-representative to judicial
governance as necessarily "good" or "bad." Most people who also
comment on this phenomenon heartily condemn it. I do not. Neither
do I praise it, as some others do. I certainly do not see judicial
governance to be the "final solution" to the obsolescence, and
indeed, the obstruction, of representative government. Judicial
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governance is probably a transitional step towards some other kinds
of governance. What those future alternatives might be is not the
burden of this essay. Rather, I here simply intend to offer my
explanation for the transition I believe I see underway.

The explanation for the rapid rise of judicial governance lies, I
believe, in the needs of what is often called "the New Economy."

In what follows, I will first outline some of the alleged characteristics
of "The New Economy" (I prefer to call it, the "Long Blur"). Then I
will suggest that increased judicial governance is a reasonable and
necessary response to them. The Long Blur needs a governance
system that can speed along with it. Judiciaries can. Legislatures
can not.

I will not discuss here the problematic character of the Long Blur
itself. But I need to make it clear that I do not consider the New
Economy to be sustainable--neither socially (it creates enormous
wealth and opportunities for the few, but enormous poverty and
misery for the many; it requires exhilarating risk-taking by the few
while it forces everyone to live lives of intolerable uncertainty and
despair) nor environmentally (it requires us to devour and trash
Mother Earth with ever greater greed, speed and unconcern; it
focuses us only on the immediate "now" and spits in the face of
future generations).

But, suspend those concerns. Imagine with me that The Wall Street
Journal, The Financial Times, Forbes, Fortune, Worth, Money, Fast
Company, Upside, Business 2.0, The Industrial Standard, e C o m p a n y ,
Wired, the "Business" section of your daily paper and every popular
magazine--and all the rest of those propagandistic rags--are
accurately explaining the present and foretelling the future, and
let's see what consequence that might be having for the present and
futures of governance.

I. THE "NEW ECONOMY" AS A "LONG BLUR".

For the last several years, particularly during the roaring stock
market boom as the Dow Jones approached, then passed, then
dipped below, then soared above the mythical 10,000 number, the
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popular, and especially business-oriented, press has been delirious
in its joy and its undying optimism. Virtually every article paints a
picture of a completely rosy future for anyone who is willing and
able to play the new games of the New Economy. Even the
occasional warning about the inevitabilities of business cycles is
downplayed. While there may be some downs, the long-range
trajectory is inevitably up.

A. THE LONG BOOM.

We have finally found the secret for continued economic growth
and prosperity in the New Economy. While elements of the bad old
economy--unions, job security, government regulation, and
local/national protectionism--still linger on, they are, fortunately,
few in number and elderly. Time, we are constantly being assured, is
on the side of the New.

The titles of four recent books foretell this bright future very
clearly:

     The Long Boom: Forging a better future for our families,
communities, and business in the new global economy [4].
     Prosperity: The coming 20-year boom and what it means to
you [5].
     Dow 36,000 [6].
     Dow 100,000 [7].

It just doesn't get any better than this--though it will! We are in the
early pastures of a paradise beyond any dreams of the past.

The New Economy is said to be transforming our relations to
everything--to our family, friends, neighbors and customers; to the
world around us; to the changed nature of change itself, and even to
the meaning and experience of time.

B. THE TWENTY-FOUR HOUR ECONOMY.

Capitalism, like rust, never sleeps. If you snooze, you lose. A
moment's reflection is an opportunity lost. The world is round, the
                                                                      4

economy is global, and if you are not out there buying and selling,
someone will corner your share of the market.

According to Harriet Presser, presently, two-fifths of all employed
Americans work mostly during the evenings or nights, or rotating
shifts, or on weekends. Less than 30% of employed U. S. citizens
work a "standard work week" defined as 35-40 hours a week,
Monday through Friday, on a fixed daytime schedule. The modal
family is the two-earner couple. In these, typically one, and often
both, work a "non-standard work week". There are important
gender, ethnic and class differences and consequences, moreover,
which these aggregate figures hide.

Presser says the leading causes for these new patterns of work are
the change of the economy from manufacturing to service; changing
demography (postponed marriages, aging of the population
generally); and changing technologies and systems (The Internet,
globalization, Federal Express). Presser cites extensive research
showing the negative effects of the new patterns of work on
individual health.

Her concluding paragraph:
      "The movement toward a 24-hour economy is well underway,
and will continue into the next [i.e., 21s t] century. Although driven
by factors external to individual families, it will affect the lives of
family members in profound ways. The home-time structure of
families is becoming temporally very complex. We need to change
our conception of family life to include such complexities. This
should help to improve social policies that seek to ease the
economic and social tensions that often result from the dual
demands of work and family, particularly among the working poor"
[8].

C. THE FUTURE? IT'S ALL A BLUR.

Another prominent feature of the New Economy is the speed of
change and novelty. Nothing lasts very long--not specific products
or services, certainly not company loyalties, and not even brands
(though brand names--being image empty of substance--are
comparatively more enduring). [9]
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The tremendous volatility and speed of the economic future is
captured very dramatically in the title of a recent book: B L U R.

In BLUR: The Speed Of Change In The Connected Economy, Stan
Davis and Christopher Meyer say that increasing speed of every
aspect of business, increased electronic connectivity, and the fact
that intangibles are now more important than tangibles equals
BLUR, "the new world in which you will come to live and work" [10].

       "And what will you see? A meltdown of all traditional
boundaries. In the BLUR world, products and services are merging.
Buyers sell and sellers buy. Neat value chains are messy economic
webs. Homes are offices. No longer is there a clear line between
structure and process, owning and using, knowing and learning, real
and virtual. Less and less separates employee and employer. In the
world of capital--itself as much a liability as an asset--value moves
so fast you can't tell stock from flow. On every front, opposites are
blurring" [11].
       "In an increasing number of businesses, the real capital is
intangible; it consists of such things as brand image, strong
customer relationships, the talent on staff, the experiences built into
business processes and systems.. ." "The implication is clear: In our
future accumulation of surplus value and investments in production
capacity, we have to get less physical. The tangible must give way to
the intangible" [12].

More recently, Rick Levine, et al., make the point even more
forcefully:

       "Where business is headed there are no roadmaps yet, and few
comforting parallels with the past. The landscape has little to do
with mass production, mass merchandising, mass markets, mass
media, or mass culture.
       "Instead, the future business of businesses that have a f u t u r e
will be about subtle differences, not wholesale conformity; about
diversity, not homogeneity; about breaking rules, not enforcing
them; about pushing the envelop, not punching the clock; about
invitation, not protection; about doing it first, not doing it 'right';
about making it better, not making it perfect; about telling the
                                                                     6

truth, not spinning bigger lies; about turning people on, not
'packaging' them; and perhaps above all, about building connvivial
communities and knowledge ecologies, not leveraging demographic
sectors" [13].

D. E-COMMERCE.

If I were asked to say what was the one major thing I encountered in
tremendous abundance during my environmental scanning in 1999
that was barely noticeable two years ago, I would say, "e-commerce."
E-commerce was clearly an "emerging issue" in 1997. By 1999 it was
a roaring feature of the present. More people bought their
automobiles online than in auto lots. Amazon.com revolutionized
virtual bookselling (just as Borders and Barnes & Noble had
revolutionized physical bookstores only a few years earlier).
Discussions of e-shopping and e-tailing dominated everywhere I
scanned.

 A leading tracker of e-commerce proclaimed:
     "Consumers will spend $4 billion on the Internet between
Thanksgiving and New Year's Day. The 8.6 million households that
shop online this holiday season will buy everything from books and
CDs to researched big-purchase items like computers and furniture.
Some will even buy their holiday meals through the Net" [14].

      "A new study from the Gartner Group predicts that online
sales in North America will exceed $29.3 billion this year [2000]--a
75% increase over last year's sales of $16.8 billion. Gartner
estimates that e-tail sales will comprise 5-7% of total retail sales in
North America by 2004, up from less than 1% in 1999. ... The
biggest moneymaker will continue to be the computer/electronics
industry segment, which is forecast to grow from $7.5 billion in
1999 to $59.7 billion in 2004. But the strongest growth will likely be
in the home consumables and entertainment businesses. IDC
recently predicted that U.S. sales of pharmaceutical, health and
beauty products over the Internet will soar from less than $250
million in 1999 to more than $18 billion in 2004, while grocery
sales will mushroom to $8.8 billion in the same period" [15].
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E-commerce is perfect for the Long Blur: ideally, one has no
inventory and no personnel. All you need is a server in your
mother's basement; fast and reliable connectivity; and a killer
webpage which you update by the second to respond to whatever is
happening NOW.

To be sure, much of the initial exuberance surrounding the
thousand early "dotcoms" was tempered by a stock market
"correction" in the first half of 2000 which wiped most of them out.
Even Amazon.com seems on the verge of facing the realities of the
Old Economy at this moment of writing. But the songbirds of the
future continue to sing of the vitality of the Long Blur.

E. GLOBALIZATION.

Without a doubt, the characteristic of the New Economy that has
been noted the longest, and most frequently, is that it is global--that
local, and even national, economies are dead and gone.

One example among the very many:
      "Technology is creating a global economy that is rapidly
supplanting our old national economies. National governments
cannot control this new economy, yet no one, least of all Americans,
wants to create the forms of global governance that might be able to
control it. As a result we are going to be living in a fundamentally
unmanaged economic system." "National governments, which used
to worry about managing and maintaining their economic systems,
are slowly being pushed out of business" [16].

F. THE ECONOMY OF ICONS: IS THE "INFORMATION SOCIETY" OVER?

Several other recent sources have also focused on the imminent
swift transformation of the most advanced societies from an
information economy to a service economy and now to what Ernest
Sternberg calls The icon economy [17], or what Rolf Jensen terms
The dream society: How the coming shift from information to
imagination will transform your business [18], and B. Joseph Pine II
and James H. Gilmore label The experience cconomy: Work is
theatre and every business a stage [19].
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It is no longer product, or service, or information or even knowledge
that counts. It is performance. It is pretense. It is pizzazz. It is shtick.

Or maybe worship?

G. THE MARKET AS GOD.

After studying The Wall Street Journal and the business pages of
weekly news magazines, the well-known theologian, Harvey Cox,
concluded that a post-modern theology has emerged, complete with
"myths of origin, legends of the fall, and doctrines of sin and
redemption .. chronicles about the creation of wealth, the seductive
temptations of statism, captivity to faceless economic cycles, and
ultimately, salvation through the advent of free markets, with a
small dose of ascetic belt-tightening along the way, especially for the
East Asian economies." "The East Asian troubles, votaries argue,
derive from their heretical deviation from free-market orthodoxy--
they were practitioners of 'crony capitalism,' of 'ethnocapitalism,' or
'statist capitalism,' not of the one true faith."
        "Soon I began to marvel at just how comprehensive the
business theology is. There were even sacraments to convey salvic
power to the lost, a calendar of entrepreneurial saints, and what
theologians call an 'eschatology'--a teaching about the 'end of
history.' At the apex of any theological system, of course, is its
doctrine of God. In the new theology this celestial pinnacle is
occupied by The Market, which I capitalize to signify both the
mystery that enshrouds it and the reverence it inspires in business
folk" [20].


II. FROM PREMODERN, TO MODERN, TO JUDICIAL GOVERNANCE.

So what has all this to do with judicial governance?

For many hundred years, until the rise of the United States and
other modern nations, "law" was not a set of generalized rules
"made" by legislators. Rather, law was typically declared (or, it was
pretended, "discovered") by judges on behalf of kings in common
law communities on a case-by-case basis. Judges did of course seek
to follow the decisions of other judges in similar cases, but, because
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of the rarity of adequate written records, and the considerable
distance between courts in relation to existing transportation and
communication systems, there was actually considerable variance
between and within jurisdictions. Law was, in effect, highly localized
and individualized. In England, it might have been the intention of
the King's Law "to devour all other" laws, as Maitland said, but it
was no easy task actually to accomplish at the time.

During the last few hundred years, however, "law" has been thought
to be "made" by legislators acting as representatives of citizens,
typically guided by principles contained in written constitutions.
Law in modern societies was intended to apply to everyone in order
to produce a stable, long-lasting set of rules by which the newly-
emerging games of nation-building, industrialization, and capitalism
could be played. The widespread use of the printing press, and of
educational and other institutions based upon and furthering the
use of the written word for economic and governance purposes,
further led to a system whereby judge-discovered oral law gave way
to legislatively-made written law, with the primary role of the courts
becoming to render judgements based upon reconciling specific
human actions with generalized written rules, requirements, or
prohibitions [21].

Under this modern system, judges neither made nor discovered law.
Their role was simply to interpret and announce the meaning of
(and perhaps to clear up any ambiguity in) the written laws and
constitutions so that everyone would be playing the modern game
according to the same set of rules.

A. JUDICIAL RESTRAINT VS. JUDICIAL ACTIVISM?

The myth that judges do not, and should not, "make law" but
"merely interpret and apply" it is surely the most enduring in
American legal history and popular culture.

For example, as I was writing this paper, a controversy was going on
in Hawaii about a decision of a Federal District Judge, David Ezra, in
a case concerning longline fishing. The judge's decision produced
considerable public outrage. A group of lawyers wrote a letter to the
editor expressing their support for Judge Ezra, saying the uproar
                                                                    10

was unwarranted:
       "Judges are required to enforce the law, and they take an oath
to do so. Judges...cannot disregard all or part of the law in the name
of 'fiscal responsibility,' convenience or popular opinion.
       "Similarly, the notion that Judge Ezra should have asked
himself whether his decision was 'the best possible solution to the
dispute' ignores the fact that judges cannot second-guess the
wisdom of federal laws. Those political judgments are made in
Congress and in the White House, not the courthouse.
       Judges cannot 'make' law." [22].

And yet, the learned lawyers to the contrary notwithstanding, and
certainly without concerning ourselves with what Judge Ezra ruled
in this instance, judges do "make law" or at least set policy, every
day.

Arguments about the existence or propriety of "judicial activism"
and "judge-made law" fill many library shelves.

Typical is the following testimony (subsequently published)
submitted by Lino A. Graglia, a University of Texas School of Law
Professor, to the Subcommittee on Courts and Intellectual Property
of the Committee on the Judiciary, US House of Representatives,
May 15, 1997:
       "The most serious defect in the American system of
government as it currently operates is the policymaking role
assigned to itself by the Supreme Court. The Court has in recent
decades evolved into the most important institution of America
government in terms of domestic social policy. It has made itself the
final arbiter on issues literally of life and death.. ." "In sum, the
issues that determine the nature of a civilization or culture and the
quality of life as a society are no longer determined on a local basis
by elected representatives, but for the nation as whole by a majority
vote of a committee of nine lawyers unelected to office,
unremovable by election, and holding office essentially for life.
       "Policy making by the Court is obviously inconsistent with the
basic constitutional principles of separation of powers,
representative self-government and federalism that are the only real
protection against governmental tyranny. Judicial policymaking
usurps the legislative power that the Constitution assigns exclusively
                                                                    11

to Congress in part and otherwise reserves to the states; it replaces
representative self-government with government by electorally
unaccountable officials, and it decides for the nation as a whole
policy issues that the Constitution leaves for the most part for
decision on the state or local level, by officials closest and most
responsive to the people the policy affect. It amounts, in short, to a
near-total subversion of the system of government created by the
Constitution" [23].

On the other hand, there have been many attempts from many
different perspectives to justify "judicial activism." One very
familiar argument is that the U. S. Constitution is "a living
document" which must be viewed as more than the original words
on parchment, as formally amended.

More recently, a provocative and widely discussed explanation for
judicial policy-making has been offered:
       "The pragmatic reason courts tend to ignore federalism and
the separation of powers, therefore, is that the principles no longer
describe the governmental system in which they exist, or the model
of government action that modern government embodies." "As our
state has become increasingly administrative and managerial,
judicial policy making has become both more necessary for judges
to produce effects and more legitimate as a general model of
governmental action." "We no longer see discrete, independently
operating entities, like 'the executive,' 'the legislative,' or 'the
judiciary.' Rather we see complex organizations that interact with
each other through a wide range of individual behaviors."
"Regulation is an intimate, albeit not affectionate, process of
negotiation, threat, bargaining, compromise, and confrontation that
cannot be subjected to fixed, preestablished rules without becoming
either excessively lax or excessively harsh. It is dynamic, rather than
mechanistic.. ." "A modern version of the rule of law, therefore,
incorporates the concept of constraint, but jettisons the idea that
the constraint must necessarily consist of fixed, preestablished
rules." "Reliance on attitudes, culture, and complex supervisory
mechanisms rather than on the grand structure of government may
appear to be an insubstantial or unreliable way to protect freedom,
but there is really nothing else" [24].
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But it is now being increasingly argued that more and more
important policy decisions are being made by judges, and less and
less are being made by legislatures:
      "Over the last few years, the legal system has begun to
overtake the legislative process as the vehicle to resolve contentious
debates, particularly over unpopular products, when Congress is
unwilling to act" [25].

       "Americans lean heavily on the law. More than any society on
earth, the U. S. relies on its civil justice system to define relations
between man and man, man and woman, man and corporation.
Americans depend on the civil law to shape and bind society: to
defend individual rights, tame the excesses of capitalism, and
compensate them for the modern and ancient adversities of living.
Litigiousness is not just a perverse American character flaw: it is
something closer to a core American value. But now, as big
government wanes, America seems to be entering an era of more
and bigger lawsuits. For more than a decade, mass litigation has
become increasingly common in areas of personal injury, product
liability, and workplace discrimination." "Courts are increasingly
called upon to assume an oversized role, making public policy in
areas vacated by politicians. The glacial pace of legal change has
suddenly accelerated as the third branch of government assumes
responsibilities from the other two, regulating and taxing whole
segments of U. S. industry" [26].

B. WHY JUDICIAL GOVERNANCE?

Summarizing the above arguments, and adding a few of my own not
previously mentioned by anyone as far as I know, I believe the
reasons for the rise of judicial governance in the United States are
the following;

       --Elected officials throughout the U. S. try not to make
decisions about controversial or unpopular matters for fear of losing
elections, leaving the issue to be decided by appointed judges.

       --Extensive tax cuts and "downsizing" of governments at all
levels, most especially at the U. S. federal level, has rendered most
nonmilitary and non-paramilitary governmental agencies
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increasingly understaffed and underfunded, and thus unable to
function as intended. While this primarily impacts the
administrative branch, the effect is to force more and more
decisions into the hands of judges.

      --Alexis de Tocqueville commented on the American tendency
to solve disputes by turning to the courts more than a hundred
years ago. With enrollments in law schools (and the number of law
schools--and now of online law schools) in the U. S. continuing to
grow more rapidly than the overall rate of population growth, an
ever-increasing proportion of American citizens are lawyers, trained
primarily to solve their disputes by going to court.

       --Because of the rapid rate of technological and hence social
change, corporations as well as ordinary individuals often find
themselves facing problems (or opportunities) which require a quick
and authoritative decision, but about which no legislative body has
set (or, as likely, even considered) public policy. Hence, cutting-
edge, future-oriented cases and controversies come before
judiciaries for policy decisions before the public, or its elected
representatives, is even aware of them.

There seems little doubt that, as the pace of technologically-induced
social change increases, as time and space coalesce into a single
instantaneous and global market which never sleeps and seldom
rests while governments become weaker and weaker, that courts
everywhere--and not just in the U. S.--will resume more and more
policy-making roles.

In her Financial Times article, Patti Waldmeir quoted primarily from
people--many of them American judges, lawyers or legal scholars--
who were opposed to increasing judicial activism. She summarizes
and concludes her article:

      "Used as a regulatory system, civil litigation is unpredictable
and costly; as a system of social insurance it is random and
expensive. All involved in the debate should remember that the role
of the courts is to deliver justice--not to compensate for small
government with even bigger litigation" [27].
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I believe that this rather typical explanation is missing the most
important point about the increase of judicial activism.

Modern governments everywhere appear to be losing their
legitimacy. In the U. S. this seems especially advanced. Fewer and
fewer Americans vote or are otherwise politically active. Fewer and
fewer even bother to pay attention to politics. While young people
have always been less active and less attentive to the formal political
process in the U. S. than are adults (tending to become more
involved as they themselves reach middle age), apathy towards
formal politics and political issues seems increasingly widespread
among American youth [28].

While the symbols of American government--the Constitution and
the Flag--retain their almost holy status, politicians and actual
processes of politics are either held in contempt, or totally ignored
by more and more people [29].

At the same time, "gridlock" (the inability of legislative and
executive branches to agree quickly--sometimes, at all--on policy
matters) has come increasingly to characterize American politics.
Gridlock is nothing new. Neither is it a temporary mistake. Gridlock
is a fundamental design feature of the U.S. Federal Constitution,
more or less widely copied by all U. S. state constitutions and most
municipal charters. The U. S. Constitution intentionally makes it
almost impossible to govern without agreement between the
executive and the legislature, and yet the Constitution also
enshrines a system of governance, best called "presidentialist",
which makes such agreement almost impossible [30].

Because of the two-party system--itself an inevitable and totally
predictable consequence of specific political design features of the
U. S. and all state constitutions [31]--formal discussion of the many
varied opinions and preferences different citizens might actually
hold on policy issues is structurally impossible in the U. S., and only
a narrow range of basically similar proposals, representative of few
if any actual citizens, ever get discussed in legislatures. To make
matters worse, decisions there are reached by a simple majority vote
which virtually guarantees that in every matter of controversy,
almost everyone is substantially dissatisfied with the outcome [32].
                                                                      15


In contrast to this, judge-made law is both faster (though often still
not fast enough) and personalized--tailored to the specific case and
controversy, and generalized to other cases and controversies only
with great difficulty.

This certainly does result in a situation where there are scores, if
not hundreds, of different decisions being rendered on barely
distinguishable cases every year--if not in fact every day--in the U. S.
Many of these cases make it to the U. S. Supreme Court where they
often are affirmed or overturned without a hearing, with only a tiny
number of them being heard and decided, often by a narrowly split
vote of the nine Justices, and sometimes with several different
written concurring or dissenting opinions.

Surely this lack of uniformity must be lamentable, as the Financial
Times article said. Surely capitalism requires stable, predictable,
long-lived rules.

Modern capitalism perhaps did, but the postmodern "New
Economy" of the "Long Blur" does not, if I read its proponents
correctly. The kind of judge-made, personalized, and highly
transitory rule-making is precisely what the Long Blur seems to
require.

And the Long Blur neither needs nor wants rules about anything
which are made by highly unrepresentative and remote
"representatives"--rules which then must be administered and
adjudicated slowly over many years. To the contrary, by the time
such rules are finally and authoritatively affirmed (or denied!) by
the U. S. Supreme Court, the technology, the economy, and the
society will have long since moved on to other cases and
controversies about which the legislature is ignorant and silent,
though nonetheless still trying to place the dead hand of past
regulations on the throttle of dynamic change.

In my view, then, judges are not "usurping" the proper role of
legislators. Rather, they are merely responding as responsibly as
they can to the increasingly common and real need of global
economic actors to have quick decisions rendered on matters of
                                                                      16

great immediate, but probably quite transitory, urgency.

It is important to understand that to some extent, this is not simply
an American, or even a common law, phenomenon. In a recent
flurry of books and articles, Alec Stone Sweet and others have
recently shown that legislatures in Europe also have lost much
governance to constitutional tribunals. Stone Sweet opens his book
titled Governing with judges:
       "Parliamentary supremacy, understood by most students of
European politics to be the constitutive principle of European
politics, has lost its vitality. After a polite, nostalgic nod across the
Channel to Westminster, we can declare it dead. In contrast to
central tenets of the British parliamentary model (and of traditional
Continental state theory), the 'new constitutionalism' has it that
legislation must conform to the dictates of the constitution--as
interpreted by constitutional courts--or be invalid. The work of
governments and parliaments is today structured by an ever-
expanding web of constitutional constraints. In a word, European
policy-making has been judicialized. Constitutional judges routinely
intervene in legislative processes, establishing limits on law-making
behavior, reconfiguring policy-making environments, even drafting
the precise terms of legislation. The development of European
constitutionalism has also infected the European Union. The
European Court of Justice, the constitutional court of the Union, has
fashioned a kind of superanational constitution, and this law binds
governments and the parliaments they control [33].

But more than even this, constitutional review has also influenced
the work of the judiciary as well, Stone Sweet notes:
       "Ordinary judges today regularly use the techniques of
constitutional law adjudication to manage the problems that
confront them in their workplace. Judges may even be using such
techniques to enhance their own policy-making authority, vis-à-vis
legislatures and constitutional courts. The brute empirical reality is
that parliaments have lost their implied monopoly on law-making,
constitutional courts today share their authority to interpret the
constitution, and ordinary judges--certainly not slaves to the codes--
participate in constitutional politics. Stated differently, it has
become increasingly obvious that traditional separation of powers
doctrines, however deeply embedded in consciousness we might
                                                                     17

suppose them to be, are increasingly less relevant to the realities of
European governance." [34].

Finally, Stone Sweet offers these comments about the future of
judicial governance in Europe:
       "The techniques of constitutional adjudication will then tend
to diffuse. Sites of public governance are gradually saturated with
models of action (rules, discursive tools, modes of reasoning)
prescribing how officials ought to do their jobs. Officials will make
use of these models to insulate their activities from future
constitutional censure. They will also acquire the capacity to
participate in the construction of the constitution, thereby
conditioning how constitutional courts do t h e i r jobs.
       "In the end, governing with judges also means governing like
judges" [35].

To be clear, I must point out that Stone Sweet, et al, are describing
developments in Europe that are moving away from the traditional
political philosophy which considered legislatures to be the sole
interpreters of the constitution because they embody Rousseau's
"general will", to a political philosophy that is more like traditional
American-style "judicial review" which privileges "the
Constitution", as interpreted by the courts, over anything a
legislature or executive might do.

However, what I am discussing in this essay is the next step that
Europe has not taken, but that many American judges have: beyond
slavish concern with what any old document says to doing whatever
is determined to be just for the moment and responsive to the
future.

In the paragraphs below, Peter Spiller is writing of British and New
Zealand judges, but much the same can and should be said of
American judges as well:
      "It is true that judges in England and New Zealand are bound
to apply the unambiguous wording of valid Acts of Parliament, and
that they do not have the right nor the opportunity to introduce
systematic and wide-ranging reforms of the legal system. The reality
is that the great majority of judges spend most of their time 'sifting
through a mass of conflicting factual material' and applying settled
                                                                      18

law to disputed facts, rather than formulating new principles of law.
Nevertheless, it is evident that judges play a creative role in the
legal system. They do this by virtue of 'the manner in which they
perceive and interpret "facts" in cases before them.' Furthermore,
particularly at the higher levels of the court system, they play a key
role in legal development by extending the law to cover new or
'grey' areas and in exercising discretions allowed by statute. Modern
judges tend to acknowledge their law-making power openly.. .."
       "The current President of the Court of Appeal, Sir Robin
Cooke, claimed (in 1990) that 'the great majority of New Zealand
judges, perhaps all, now openly recognize, albeit, no doubt, in
varying degrees, that the inevitable duty of the courts is to make
law and that this is what all of us do every day.'"
       "Thomas J has recently called for a distinct break with the
traditional notion 'that past cases should be followed for the sake of
precedent,' with the effect that 'the past.. . has predicted the future.'
He believes that it should be recognised that 'the common law today
remains what it has always been, the law as forged and reforged and
made and remade by the judges.' He argues that 'past cases should
be accepted as authorities and followed in a later case when, and
only when, the judge consciously and sensibly determines that they
accord with sound principle, will contribute to the achievement of
justice in the individual case, and are responsive to the current
norms and needs of their community.' He says that 'ultimately
judges are not bureaucrats applying preordained rules, nor are they
fundamentalists applying a rigid gospel unable to question the
wisdom, validity, and relevance of the law which they are called
upon to administer,' but are social artisans dealing with the affairs
of people" [36].

Some one will certainly object that U. S. judges do not have this kind
of freedom; that they are bound by the U. S. Constitution, their state
constitutions, and by previous judicial decisions.

They are so bound only because of their mutual willingness to
pretend they are. And if they are, then this might be yet another
reason why the U. S. Constitution--a magnificent political design for
America 200+ years ago, in the very earliest days of
industrialization--deserves a serious reconsideration. The dead hand
of Constitutional Fundamentalism (which characterizes the
                                                                        19

perspective of several U. S. Supreme Court Justices and a portion of
the legal community) is strangling the life out of the body politic
[37].

In the meantime, all American judges--whether conservative or
liberal; literalists or pragmatists; activists or originalists--from time
to time find themselves obliged by the dynamics of postmodern
society, technology and economics to be fluid, flexible, and fair.

It goes without saying that judges are very poorly prepared, by
prior academic training, to be the futurists and philosophers they
are increasingly required to be. So the continuing legal education of
the bar and bench is even more essential.

And it certainly goes without saying that this rising judicial
governance is a fundamentally "undemocratic" process. But there is
little truly democratic about any modern government now, in spite
of all the glowing rhetoric in our textbooks and from our politicians.

So it also goes without saying that, until a personalized, swift, highly
flexible, authoritative (but not authoritarian), and future-oriented
system of governance is finally invented to replace our obsolete
republican form, judges will be required more and more to make,
unmake, and remake highly private "public" policy decision which
current conditions demand and future conditions will make even
more imperative--as long as the Long Blur prevails.

C. GRASS OR COWARDS?

I started this essay by reminding readers of the poem that looked
forward to the time when the courts of justice were overgrown with
grass. Yet, everything I have written in the rest of the essay suggests
that all the grass on the planet is about to be overrun with judges
and lawyers. All the world's a courthouse and all the men and
women merely litigants.

That may be a necessary interim condition.

But while I was in New Zealand in February 2000, discussing judicial
futures there, a judge, whose name I regret I do not recall, gave me
                                                                        20

this poem which he had written out in his own hand, saying it was
by Robert Burns. Perhaps it can rekindle and sustain our hope for
futures without courts:

     A fig for those by laws protected.
     Liberty's a glorious feast.
     Courts for cowards were erected.
     Churches built to please the priests!

References   to "Judicial   Governance    of the Long Blur"

1. Jim Dator, "When courts are overgrown with grass: The role of
courts in the 21 s t Century," Futures. Vol. 32, No. 1 February 2000,
pages 183-197.

2. Jim Dator, "Future generations: They are our conscience," in Tae-
Chang Kim and Jim Dator eds., Co-creating a Public Philosophy for
Future Generations. London: Adamantine Press, 1999, pages 1-14,
and Jim Dator, "Bright future for democracy?" in Jim Dator, Ikram
Azam and Sohail Inayatullah, eds., The futures of democracy in
Pakistan and the developing world. Islamabad: WFSF-PFI publication,
1996, pages 22-35.

3. Jim Dator, "The dancing judicial Zen masters," Technological
Forecasting and Social Change, Vol. 46, No. 1, 1994, pages 59-70.

4. Peter Schwartz, Peter Leyden, and Joel Hyatt, The Long Boom:
Forging a better future for our families, communities, and business
in the new global economy. Reading, Massachusetts: Perseus Books,
1999.

5. Bob Davis and David Wessel, Prosperity: The coming 20-year
boom and what it means to you. New York: New York Times Books,
1998.

6. James K. Glassman and Kevin Hassett, Dow 36,000. New York:
New York Times Books, 1999.

7. Charles Kadlec,   Dow 100,000. New York: Prentice-Hall, 1999.
                                                                    21

8. Harriet Presser, "Toward a 24-hour economy." Science, June 11,
1999.

9. Nicholas Ind, The Corporate Brand. New York: New York
University Press, 1997.

10. Stan Davis and Christopher Meyer, BLUR: The speed of change in
the connected economy. Reading, Massachusetts: Addison-Wesley,
1998, page 5.

11. Op. cit., page 7.

12. Op. cit., page 184.

13. Rick Levine, et al., The Cluetrain Manifesto: The end of business
as usual. Reading, Massachusetts: Perseus Books, 2000.

14. www.forrester.com     (December 20, 1999).

15. E-Commerce Times, June 2000.

16. Lester Thurow, "Building wealth," The Atlantic Monthly, June
1999, pages 57, 69.

17. Ernest Sternberg, The icon economy New York: Praeger, 1999.

18. Rolf Jensen, The dream society: How the coming shift from
information to imagination will transform your business. New York:
McGraw-Hill, 1999.

19. B. Joseph Pine II and James H. Gilmore, The experience economy:
Work is theatre and every business a stage. Cambridge,
Massachusetts: Harvard Business School Press, 1999.

20. Harvey Cox, "The Market as God." Atlantic Monthly, March
1999, pages 18 ff.

21. Ethan Katsh, Electronic media and the transformation of law.
New York: Oxford University Press, 1989.
                                                                    22

22. Paul Alston, et al, "Court must abide by the law." The Honolulu
Advertiser, July 5, 2000, page A 12.

23. Lino Graglia, "It's Not Constitutionalism, It's Judicial Activism."
Harvard Journal of Law and Public Policy, Vol. 19, 1996, page 293.
       For a sampling of the rich, varied, and long-running debate
about the actual and desired role of courts in American governance,
see Robert Bork, The tempting of America: The political seduction
of the law. New York: Free Press, 1990; Ronald Dworkin, Freedom's
law: The moral reading of the American Constitution. Cambridge,
Massachusetts: Harvard University Press, 1996; Richard Gambitta, et
al., eds., Governing through courts. Sage, 1981; Howard Gillman and
Cornell Clayton, eds., The Supreme Court in American politics: New
Institutionalist interpretations. Lawrence, Kansas: University Press of
Kansas, 1999; Mary Ann Glendon, A nation under lawyers. How the
crisis in the legal profession is transforming American society. New
York: Farrar, Straus and Giroux, 1994; Stephen Halpern and Charles
Lamb, eds., Supreme Court activism and restraint. Lexington,
Massachusetts: D. C. Heath, 1982; Donald Horowitz, The courts and
social policy. Washington, D. C.: Brookings Institution, 1977; L. H.
LaRue, Constitutional law as fiction. Narrative in the rhetoric of
authority. University Park, Pennsylvania: The Pennsylvania State
University Press, 1995; Frederick Lewis, The context of judicial
activism. The endurance of the Warren Court legacy in a
conservative age. New York: Rowman & Littlefield, 1999; Robert
Justin Lipkin, Constitutional revolutions: Pragmatism and the role of
judicial review in American constitutionalism. Durham, North
Carolina: Duke University Press, 2000; Charles Lopeman, T h e
activist advocate: Policy making in state supreme courts. Westport,
Connecticut: Praeger, 1999; Arthur Miller, Toward increased judicial
activism: The political role of the Supreme Court. Westport,
Connecticut: Greenwood Press, 1982; Linda Mills, A penchant for
prejudice. Unraveling bias in judicial decision making. Ann Arbor:
University of Michigan Press, 1999; Mary Cornelia Porter and G.
Alan Tarr, eds., State supreme courts: Policymakers in the federal
system. Westport, Connecticut: Greenwood Press, 1982; Glendon
Schubert, Constitutional politics. The political behavior of Supreme
Court Justices and the constitutional polices that they make. New
York: Holt, Rinehart and Winston, 1960; G. Alan Tarr, Judicial
process and judicial policymaking. St. Paul, Minnesota: West
                                                                      23

Publishing Company, 1994; Keith Whittington, Constitutional
interpretation: Textual meaning, original intent, and judicial review.
Lawrence, Kansas: University Press of Kansas. 1999.

24. Malcolm Feeley and Edward Rubin, Judicial policy making and
the modern state: How the courts reformed America's prisons.
Cambridge, UK: Cambridge University Press, 1998, pages 343-351.

25. Barry Meier, "Bringing lawsuits to do what Congress won't." New
York Times, March 26, 2000, Week in Review, page 3.

26. Patti Waldmeir, "Legal eagles rule the roost," Financial Times,
December 11/12, 1999.

27. Loc. cit.

28. Carl Boggs, The end of politics: Corporate power and the decline
of the public sphere. New York: The Guilford Press, 2000; William
Chaloupka, Everybody knows: Cynicism in America. Minneapolis:
University of Minnesota Press, 1999.

29. Sanford Levinson, Written in stone: Public monuments in
changing societies. Durham, North Carolina: Duke University Press,
1998.

30. Fred Riggs, "Presidentialism vs. Parliamentarism: Implications
for Representativeness and Legitimacy," International Political
Science Review. Vol. 18 No. 3, 1998, pages 253-278.

31. Maurice Duverger, Political parties, their organization and
activity in the modern state. London: Methuen, 1964.

32. Lyn Carson and Brian Martin, Random selection in politics. New
York: Prager, 1999.

33. Alec Stone Sweet, Governing with judges. Constitutional politics
in Europe. Oxford, UK: Oxford University Press, 2000, p. 1. Italics in
original.

34. Ibid., p. 129. Italics in original.
                                                                         24


35. Ibid., p. 204. Italics in original. See also, Alec Stone Sweet,
"Judicialization and the construction of governance, " C o m p a r a t i v e
Political Studies. Vol. 32, No. 2, April 1999, 147-184; C. Neal Tate
and Torbjorn Vallinder, eds., The global expansion of judicial power.
New York: New York University Press, 1995; Charles Epps, The rights
revolution: Lawyers, activists and supreme courts in comparative
perspective. Chicago: The University of Chicago Press, 1998;
Mary Volcansek, Constitutional politics in Italy. The Constitutional
Court. New York: St. Martin's Press, 2000; Laszlo Solyom and Georg
Brunner, Constitutional judiciary in a new democracy. The
Hungarian Constititutional Court. Ann Arbor: The University of
Michigan Press, 2000.

36. Peter Spiller, et al., A New Zealand legal history. Wellington, New
Zealand: Brooker's, 1995, pages 176f.

37. Vincent Crapanzano, Serving the Word: Literalism in America
from the pulpit to the bench. New York: The New Press, 2000, and
Sanford Levinson, Constitutional Faith. Princeton, New Jersey:
Princeton University Press, 1988.

This article appeared in slightly modified           form in Futures,
Vol. 33, No. 2, March 2000, pp. 1 8 1 - 1 9 7 .