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96 Harv. L. Rev. 4 (1982-1983)
Foreword: Public Law Litigation and the Burger Court

handle is hein.journals/hlr96 and id is 22 raw text is: THE SUPREME COURT 1981 TERM FOREWORD: PUBLIC LAW LITIGATION AND THE BURGER COURT Abram Chayes* Q OME years ago in this journal,' I called attention to what I saw as a transformation of the role of federal (and to a lesser extent state) judges, a transformation attendant on a far- reaching change in the nature and form of the judicial business that judges are called upon to perform. With some diffidence, I called the new kind of lawsuit public law litigation.'2 The label was designed to emphasize that in such cases the federal courts are no longer called upon to resolve private disputes between private individuals according to the principles of pri- vate law. Instead, they are asked to deal with grievances over the administration of some public or quasi-public program and to vindicate the public policies embodied in the governing statutes or constitutional provisions.3 As a result, courts are inevitably cast in an affirmative, political - activist, if you must - role, a role that contrasts with the passive umpireship we are taught to expect. The main elements of this contrast should be stated in somewhat greater, though still compressed detail. In the clas- sical model, litigation is viewed as a mode of dispute settle- ment. The dispute is between private parties, and it concerns the consequences of the parties' actions for the legal relation- ships - rights and obligations - between them. This central focus on the dispute more or less determines the other basic elements of the traditional model. First, litigation is bipolar: *Felix Frankfurter Professor of Law, Harvard University. Harvard University, A.B., 1943; LL.B., 1949. This Foreword is part of a continuing research project on new models of public law litigation. The research is supported in part by the National Science Foundation, the Edna McConnell Clark Foundation, and the New World Foundation. I would like to thank Reed Boland for his able research assistance and Antonia Handler Chayes, who read and criticized the manuscript at every stage. I Chayes, The Role of the Judge in Public Law Litigation, 89 HARv. L. REV. 1281 (1976). 2 Id. at 1284. 3 See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, i88 (1941); A. Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 76-98 (1976); cf. Abel, Law Books and Books About Law, 26 STAN. L. REV. 175, i85-86 (1973) (contemporary legal thought concerned more with realization of practical goals than with expression of values). 4