Policy Making

Policy Making in the United States

An approach used by judges, particularly appeals judges, as they perform their basic case review function. Judges who engage in policy making intentionally fashion new norms as they reach decisions. Such judges believe that the judicial role is not merely to apply the norms established by others, but to supply their own when necessary. The opportunity to make policy will not exist in every case, nor do judicial policy makers avail themselves of every opportunity that does present itself. Policy making by a judge takes place when a norm is challenged by a party to a case under review, and the court rules in the challenger’s favor. While policy making can occur in cases where appellate courts are engaged in statutory construction, it is more likely where judicial review is involved.

See Also

Interpretive Approaches (Judicial Effects and Policies) Judicial Activism (Judicial Effects and Policies) Judicial Review (Judicial Effects and Policies); NORM ENFORCEMENT,

Analysis and Relevance

Judicial policy making involves the setting of norms by

judges. Such policy making is undertaken consciously. In many ways, policy making is judicial activism. The judge who pursues a policy making course believes that courts are as legitimate a source of norm creation as, for example, administrative agencies and possibly even legislative bodies. Judicial policy making is manifest in a number of ways. One of these ways is to create policy by interpretation of the Constitution. The formal recognition of a right of privacy in Griswold v. Connecticut (381 U.S. 479: 1965) is an obvious example. The Consti-tution contains no explicit right of privacy, and yet the Court declared such a right exists by implication from provisions of other enumerated rights. Second, courts can develop and oversee the administration of new norms. Judicial establishment of the one person-one vote principle, and the administration of this principle in legislative apportionment situations is illustrative. Finally, rather than validate policy set elsewhere, the courts can nullify such policy and substitute their own preferences. The Supreme Court engaged in this kind of policy making during the 1930s when it found many of the New Deal initiatives unconstitutional.

Notes and References

  1. Definition of Policy Making from the American Law Dictionary, 1991, California

Policy Making: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Policy Making. This part provides references, in relation to Policy Making, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Policy Making by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Policy Making and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Policy Making or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Policy Making and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Policy Making. Finding these decisions can be challenging. In many cases, researchers about Policy Making should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Policy Making when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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