Problem-Solving Courts and the Judicial Accountability Deficit

Source: (2006) In Michael W. Dowdle, Ed., Public Accountability, Designs, Dilemmas and Experiences. Cambridge, UK: Cambridge University Press. Pp. 301-328.

“This chapter argues that the zero-sum picture of courts versus other government actors is inaccurate. Given the appropriate decisionmaking structures and doctrines, it is possible to shrink courts’ democratic accountability deficit without a fully equal corresponding sacrifice of the judicial checking function. When faced with gaps in the law, judges need not simply choose between the Scylla of deference to elected actors and the Charybdis of usurpation fo the latter’s functions. Trial courts can address broad social problems without directly taking over responsibility for running institutions like prisons, schools, and police forces, while appellate courts need not themselves fill the gaps in constitutional and other open-ended legal norms; they can instead, or at least in addition, instigate reform by other actors.” (excerpt)