Pitfalls of Public Policy: The Case of Arbitration Agreements

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs\u27 view of public policy as a wild horse ridden by a result-oriented judiciary desperate for decision remains a familiar vision for many today, perhaps because of its essential core of truth. When courts move from the realm of legislative statements to notions of public policy, they have entered a less bounded playing field in which judges have more discretion and hence more power to make law. In the traditional American view, however, courts are to have a circumscribed sphere of influence bounded by legislative and executive authority. Most people believe that although courts may occasionally need to resort to public policy in order to decide cases, the judiciary should make only constrained use of public policy so long as the standard, tripartite, majoritarian-centered approach remains the fulcrum of American government. By this, I mean the constitutional structure of American government in which the bulk of new substantive law is made by legislative action, with the metaphorical “edges” of the law defined by executive implementation and judicial interpretation in contested cases