JUSTICE VS. LAW

A powerful and profound ``look into the nature and extent of judicial power under a written constitution of limited powers.'' Hickok (Law/Dickinson College) and McDowell (Visiting Scholar/Harvard Law School; Curbing the Courts, 1988, etc.—not reviewed) see modern federal litigation as a tool used by ideologically motivated litigants ``to supplant the status quo with new visions of the just society.'' Thus, federal courts have departed from their role as neutral arbiters of specific cases and controversies and have become ``places where abstract legal theories are pushed by this side and that.'' The authors begin by analyzing a 1989 Supreme Court case, DeShaney v. Winnebago County, in which the Court held that state social workers had no duty under federal statutory or constitutional law to protect a five-year-old from a brutally abusive father. Arguing compellingly that the DeShaney result was correct, the authors use the Court's steadfast and restrained adherence to law in the face of poignantly tragic facts as a device to make their central assertion: Courts exist not ``to exercise compassion in the name of justice'' or even to achieve just results, but simply to apply legal rules neutrally- -even when, as in DeShaney, the result offends conscience. Finally, Hickok and McDowell contend that the advent of government by the judiciary, abdication of Congressional responsibility, and the increasing litigiousness of society have vitiated popular government and diminished the democratic significance of citizenship. Conservative in the tradition of Bickel and Frankfurter, and echoing some of the arguments in Robert Bork's The Tempting of America (1990) and Walter K. Olson's The Litigation Explosion (1991). Hickok and McDowell won't convince believers in an activist judiciary, but they do make clear the dangers to democracy posed by rule by judicial decree.