The Courts and Social Policy: Substance and Procedure

Judge Friendly admits that the courts must address themselves in some instances to issues of social policy. He would prefer, however, that a court rest its decision on an ascertainable jural principle rather than support its decision on the basis of its conception of what is desirable social policy. When courts do rely on social or economic data, they should observe procedural fairness as a goal in its own right and as a tool towards obtaining correct and complete information. When the economic and social data is indeterminate, a court should refuse to base its decision on such information.

If a decision is made and the courts frame an elaborate decree, they should remember that they are engaged in rulemaking and operate as other rulemakers, keeping close watch over the effects of their ruling.