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89 Harv. L. Rev. 1281 (1975-1976)
Issue 7

handle is hein.journals/hlr89 and id is 1301 raw text is: VOLUME 89 HARVARD LAW REVIEW THE ROLE OF THE JUDGE IN PUBLIC LAW LITIGATION t Abram Chayes * Traditionally, adjudication has been understood to be a process for resolving disputes among private parties which have not been privately settled. In this Article, Professor Chayes argues that this conception of adjudication cannot account for much of what is actually happening in federal trial courts. Civil litigation increas- ingly involves determination of issues of public law, whether statu- tory or constitutional, and frequently terminates in an ongoing affirmative decree. The litigation focuses not on the fair implica- tions of private interactions, but on the application of regulatory policy to the situation at hand. The lawsuit does not merely clarify the meaning of the law, remitting the parties to private ordering of their affairs, but itself establishes a regime ordering the future in- teraction of the parties and of absentees as well, subjecting them to continuing judicial oversight. Such a role for courts, and for judges, is unprecedented and raises serious concerns of legitimacy. Notwithstanding these concerns, Professor Chayes' preliminary conclusion is that the involvement of the court and judge in public law litigation is workable, and indeed inevitable if justice is to be done in an increasingly regulated society. Because of its regulatory base, public law litigation will often, at least as a practical matter, affect the interests of many people. Much significant public law litigation is therefore carried out through the class action mechanism, discussed at length in Develop- ments in the Law -Class Actions, which follows Professor Chayes' Article. Although this Article is not intended to be a foreword to the Developments Note, both pieces share the perspective that ad- judication and civil procedure can usefully be analyzed as elements of a larger system of public regulation. For this reason, the two pieces may profitably be read together. H OLMES admonished us in one of his most quoted aphor- isms to focus our attention on what the courts will do in t Copyright x976 by Abram Chayes. * Professor of Law, Harvard University. A.B., Harvard, 943; LL.B., 1949. This Article is a sketch of work in progress. It comprises a set of preliminary hypotheses, as yet unsupported by much more than impressionistic documentation, which I hope to test, refine, and develop in the course of research over the coming year. The research on which this Article is based is supported by grants from the National Science Foundation and the New World Foundation. I should also record my debt to colleagues who critiqued an earlier draft of this paper presented to a group of them late last year and to the students in my current seminar in Contemporary Procedural Developments. 1281 MAY 1976 NUMBER 7

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