Norm Enforcement in the United States

An approach used by judges in the discharge of their basic dis- pute-resolution function. Norm enforcement is an approach generally used by trial judges but can be seen in the behavior of appellate judges as well. The norms that are enforced or applied in particular cases generally reflect societal values. The values or norms applied by courts often come from sources outside the courts. Norms are typically expressed in the form of legislative enactments, administrative rulings, and community traditions. Prior judicial decisions are also a source of such norms. While some judicial discretion is involved, judges who engage in norm enforcement try to minimize the extent to which they, themselves, establish the norm to be enforced. This distinguishes the norm enforcer from the judge who more actively pursues judicial policy making. Norm enforcement occurs in both criminal and civil cases. Criminal conduct violates societal norms as set forth in legislatively established criminal codes. Courts not only adjudicate guilt using these norms, but impose sanctions for violations. Civil cases tend to focus on relationships between private parties and generally involve redress for some injury. The function of the courts is to assess liability and then pursue those options established by law in attempting to remedy the particular injury. In both kinds of cases, trial courts seek to apply legal norms to specific fact situations.

See Also

Judicial Review (Judicial Effects and Policies) Judicial Self-Restraint (Judicial Effects and Policies) Policy Making (Judicial Effects and Policies).

Analysis and Relevance

Judicial norm enforcement is not mechanical but rather requires the exercise of some discretion. Thus, to an extent, judges make policy even when engaged in norm enforcement. Construction of statutes necessarily clarifies norms in that it chooses between or among slightly divergent means or norms. Similarly, application of particular laws or rules to specific facts may extend norms beyond their original scope. The intent of judges engaged in this kind of activity is not to make new policy, but only to apply the norms where intended by those who legitimately set them. In many ways, the judge who approaches the appellate function as a norm enforcer is like the judge who subscribes to the doctrine of judicial self-restraint. As a rule, the norm enforcer defers to legislative initiatives and validates them in the face of various challenges. Norm enforcers usually give maximum effect to a norm based on legislative enactments or community traditions. Judges who wish to enforce legislatively established norms depend heavily on the meaning of the words chosen by legislators. Such judges refer to records of legislative debates and committee proceedings in attempting to understand legislative intent. When engaged in judicial review, the norm enforcer invalidates legislative enactments only when they are clearly unconstitutional.

Notes and References

1. Definition of Norm Enforcement from the American Law Dictionary, 1991, California