Judicial policy making and the modern state: How the courts reformed America's prisons.

Malcolm Feeley and Edward Rubin's Judicial policy Making and the Modern Sta te: How the Courts Reformed America's Prisons theorizes that judges engage in judicial policy making when they identify an egregious social problem an d perceive a solution, guided by a "coordinating idea." The book focuses on one detailed example of judicial policy making: the reform of America's pr isons. In this review, Professor Marc L. Miller explains that Feeley and Ru bin have written a study only of "hard" judicial policy,making. Hard judici al policy making occurs when courts not only assert new rights or doctrines not closely linked to authoritative text-which is soft policy making-but a lso create and supervise detailed administrative remedies. Professor Miller argues that the hard judicial policy making in prison reform was a rare ex ception to judicial norms and practices of restraint. He then tests the Fee ley and Rubin theory of judicial policy making against a dramatic counter-e xample: the general failure of courts to make policy for criminal defense c ounsel systems. Professor Miller argues that there is a close fit between t he state of public defense in much of this country and the conditions Feele y and Rubin say should trigger hard judicial policy making. He describes ca ses from the Louisiana, Oklahoma, and Arizona supreme courts that have begu n the critical task of reforming indigent defense systems. In each case, ho wever, these progressive courts have shied away from hard policy making, an d other courts have been reluctant to follow even their cautious first step s toward judicial reform of defense systems.