Democracy by Decree

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What Happens When Courts Run Government

Ross Sandler and David Schoenbrod

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Schools, welfare agencies, and a wide variety of other state and local institutions of vital importance to citizens are actually controlled by attorneys and judges rather than governors and mayors. In this valuable book, Ross Sandler and David Schoenbrod explain how this has come to pass, why it has resulted in service to the public that is worse, not better, and what can be done to restore control of these programs to democratically elected—and accountable—officials.

Sandler and Schoenbrod tell how the courts, with the best intentions and often with the approval of elected officials, came to control ordinary policy making through court decrees. These court regimes, they assert, impose rigid and often ancient detailed plans that can founder on reality. Newly elected officials, who may wish to alter the plans in response to the changing wishes of voters, cannot do so unless attorneys, court-appointed functionaries, and lower-echelon officials agree. The result is neither judicial government nor good government, say Sandler and Schoenbrod, and they offer practical reforms that would set governments free from this judicial stranglehold, allow courts to do their legitimate job of protecting rights, and strengthen democracy.

Ross Sandler is professor of law and director of New York Law School’s Center for New York City Law. David Schoenbrod is a professor at New York Law School and author of Power Without Responsibility: How Congress Abuses the People through Delegation, published by Yale University Press.

A selection of the Eagle Book Club

"Sandler and Schoenbrod’s account—really a discovery—of the existence of a second government in our midst is meticulous, nuanced, and alarming. By showing how unilateral judicial government undermines both democracy and individual rights, they have done a significant service to both."—Christopher DeMuth, president, American Enterprise Institute

"A brilliant, well-written and brave account of how federal courts have distorted our political system by taking control of complex institutions like schools and prisons—sometimes for decades—instead of enforcing rights, which is their proper domain."—Diane Ravitch, New York University

"This is a fascinating book for someone like me who regretted agreeing to a court-approved consent decree limiting the city’s authority in programs involving prisons, welfare, education, homeless shelters, etc. The authors discuss the topic in an interesting and clear manner making it a read well worth your time."—Ed Koch, former mayor, New York City

“A compelling story with a powerful argument backed by lots of fascinating stories about judicial shipwrecks.”—James B. Jacobs, New York University School of Law

"Democracy by Decree shows how courts can protect rights and still let mayors and governors do their job.”—John Sexton, president of NYU and dean of NYU Law School

"An easy to read, insightful and scholarly explanation of how our country’s government of the people became a government of the courts. Sandler and Schoenbrod offer a measured and practical prescription for restoring democracy while still honoring rights. This book will appeal to liberals and conservatives alike."—Lamar Alexander, former governor of the State of Tennessee and 2002 candidate (Tennessee) for the U.S. Senate

"Democracy by Decree is an impressive and thoughtful analysis of the current court-centered rights culture in which it is too easy for elected officials to ‘pass the buck’ to courts while taking actions that are blatantly unconstitutional."—Nadine Strossen, President, American Civil Liberties Union and professor, New York Law School

"Democracy by Decree is a devastating indictment of how high-sounding legal mandates undermine the social goals they purport to guarantee. With fascinating blow-by-blow accounts, Sandler and Schoenbrod expose how advocates for one interest group inevitably undermine the interests of others and thwart the ability of those in responsibility to balance interests for the common good."—Philip K. Howard, author of The Death of Common Sense

“Sandler and Schoenbrod collect a compelling set of vignettes that show how the courts, over the last few years and at an exponential rate, are replacing state and local officials in running many important state and local services, such as welfare, jails, prisons, noise pollution, and foster care.”—Ronald Rotunda, Cato Journal

"Whatever the future holds, Democracy by Decree tells a story worth reading. Slamming judicial activism is a popular hobby among conservatives. Sandler and Schoenbrod provide a valuable service. Undermining local democracy is a tag-team affair, and this book shows that Congress can be just as ’activist’ as any could."—Jonathan Kay, Commentary

“In this elegant volume, Ross Sandler and David Schoenbrod argue that the courts have overstepped the bounds of their authority over critical government institutions. Pointing to examples of courts’ influence over issues ranging from education to welfare, the authors criticize the control that democratically unaccountable judges exercise over entities that should be governed by elected political figures.”—Harvard Law Review

"A thought-provoking book about the fundamental issues of democracy, federalism, and separation of powers. . . . At its heart, Democracy by Decree is an ode to representative government. The authors demonstrate that the judiciary has an important role in protecting the rights of citizens, but argue convincingly that when it comes to making basic public policy choices, representative democracy may not be perfect, but it is often better than any viable alternative."—Ross Weiner, Legal Times

“Sandler and Schoenbrod have written a valuable book, particularly for beleaguered New Yorkers, concerned with the frustrations of city government. I recommend it to you.”—Henry J. Stern, New York Civic

"This book, though written in a measured tone, deserves to be controversial, for it an assault on much of what public interest lawyers and the judges before whom they appear have been doing for the past generation. . . . This closely documented and impassioned book deserves to be the guidepost for one side in any debate on the proper role of institutional reform litigation."—Michael B. Gerrard, New York Law Journal

“Both Sandler and Schoenbrod learned how to work the democracy-by-decree game as young lawyers, and they provide a wealth of insight and detail on its operation. Most importantly, they have come to see the terrible costs of the system . . . The virtue of Democracy by Decree lies in its clear exposition of the problem of courts running government. Before we can find the solution, we must first understand that something needs to be solved. The authors have done a commendable job in showing that the United States is suffering from judicial usurpation of legislative and executive functions and their book deserves a wide reading.”—George C. Leef, Regulation

"[Democracy by Decree is] a critique of astonishing efforts to govern society through the miracle of what the authors call 'institutional reform litigation.'"—Thomas J. Main, Wall Street Journal

"A criticism of the process by which federal judges seek to implement social policies that range from cleaning the environment to desegregating our schools. . . . [This] book shows how well-meaning efforts to fix society’s problems often fail because the judiciary is badly equipped to enforce such changes."—Jonathan Shapiro, Washington Post

“Sandler and Schoenbrod . . . have written one of the best books yet published on the problem of judicial usurpation of political power and what to do about it. . . . They have written a superb exposé of the phenomenon known as ‘institutional reform litigation.’ . . . They also write wonderfully, with a plain-spoken elegance and clarity that make the book accessible to interested citizens with no legal training. . . . And if it is not used as a teaching text in every law school in America, that will be a great pity.”—Matthew J. Franck, Claremont Review of Books

“Structural reform litigation is alive and well in institutions ranging from higher and elementary education to prisons to enforcement of claims of Americans with disabilities. Sandler and Schoenbrod’s provocative analysis can guide courts as they endeavor to both protect legitimate rights and preserve democratic values.”—David I. Levine, Professor or Law, University of California, Hastings College of Law

“Interesting and informative. . . . Among the many strengths of Democracy by Decree is a clear, jargon-free style that makes it suitable reading for those with no background in public law.”—John A. Rohr, Public Administration Review

“Sandler and Schoenbrod should be commended for seeking solutions and for giving scholars, lawyers, and judges something substantial to chew on. . . . Democracy by Decree is an interesting, informative, and well-written book.”—Susan Poser, Michigan Law Review

“In 2003 two professors at the New York Law School, Ross Sandler and David Schoenbrod, published, Democracy by Decree, perhaps one of this decade’s most important books on governance. They explain how federal standards are attached to federal money by Congress heroically transmuting aspirations into rights-enforceable claims.”—George Will, Newsweek

"[Sandler and Schoenbrod's] indictment of democracy by decree is compelling, coherent, and chilling in revealing the potential to subvert the executive power, and spending ability, of elected officials."—Gilles Renaud, Law Society Journal

ISBN: 9780300103144
Publication Date: August 11, 2004

288 pages, 5 1/2 x 8 1/4
10 b/w illus.

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