Federal Courts, State Prisons: Theories of Judicial Review in Prison Reform Litigation

Bradley Stewart Chilton, University of North Texas

Interest in federalism and theories of judicial review recently revived with the publication of Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State. This paper explores the theoretical justifications for judicial review of state prison reform litigation offered by federal courts and the scholarly literature they cite and their context. A natural set of classifications of theoretical justifications for judicial review that emerged are analytically and separately discussed in the paper. These include: historical "classical" theory, various legal realism "hidden logic" theories (critical and economic), "neo-classical" proceduralisms, and "dramaturgical" social consciousness theories of judicial review. The analysis suggests that the "dramaturgical" justifications are ascendent among these approaches and discusses the implications for the future of federal court judicial review of criminal justice organizations.

(Return to Program Resources)

Updated 05/20/2006