The priorities of environmental policy are constantly shaped and reshaped in the courts. Civil jurisprudence, not just certification by public authorities, decides the worthiness of commercial products. In civil rights matters, policy relies primarily on empowering each new category of claimants to sue. Kagan and Axelrad suspect that recourse to litigation is the natural habit of a society that distrusts government authority but nonetheless embraces an elaborate social wish list. Burke, as well as Landy and Cass, emphasizes the propensity of Americans to frame social needs or preferences as rights .
Courts of law are the traditional venue for the advocacy of rights.
Whatever its roots, the incessant legal agitation with its mass mobilization of lawyers, often unreliable case outcomes, and collateral damage to civil trust is deemed by almost all the authors to be, on balance, a disadvantage. In practice, rules with noble purposes sanitizing the air, conserving energy, lending money to the poor pass through the sausage maker of American politics. There, special interests and protectionists have an influence. Sometimes the end results are policies that improve neither this nation's welfare nor that of others. All the chapters were prepared by scholars who attended a conference at the Brookings Institution in 1996.