Instructor: Brendon Swedlow                                                      Political Science (POLS) 495

bswedlow@niu.edu    815.753.7061                                                                   NIU Fall 2004

Office: 418 Zulauf Hall                                                                       Mondays 3:30-6:10 p.m.

Hours: MW 1-1:50 p.m.                                                                                         DuSable 464                                                                            

 

Seminar in Current Problems:

Theory of U.S. Legal Institutions in Comparative Perspective

 

 

 

Seminar Overview

 

What role do courts, regulatory agencies, and other legal institutions play in the U.S. political system? How do U.S. legal institutions differ from each other and from those in other countries? What are the causes and consequences of these differences?

 

These are among the questions that we will seek to answer in this seminar as we write about and discuss readings in the following areas:

 

I.   SOCIO-LEGAL STUDIES: CHALLENGES AND OPPORTUNITIES

II.  BASIC CONCEPTS AND RELATIONSHIPS: POLITICS, THE RULE OF LAW, JUDICIAL INDEPENDENCE, JUSTICE

iii. TOWARD THEORY-BUILDING: typologies of legal ordering

IV. POLITICAL SYSTEMS AND LEGAL INSTITUTIONS

  1. Establishing Constitutionalism/Constitutional Courts
  2. Constitutional Design, Political Organization, and Legal Institutions
  3. Political Systems and Modes of Accountability for Legal Officials

V. INSTITUTIONAL DESIGN AND LEGAL DECISIONMAKING

A.    The Dilemma of Rules v Discretion
  1. The Criminal Process
  2. Civil Litigation
  3. Bureaucratic Administration and Regulatory Processes

VI. JUDICIAL DECISIONMAKING IN A “POLITICAL” JUDICIARY

A.    Lower Courts in the U.S.

B.    U.S. Supreme Court

VII. LAW, LITIGATION, AND SOCIAL AND POLICY CHANGE

A.    Can “Law-Ways” Change “Folkways”?

B.    Courts and Social Change

C.    Policy-Making Through Litigation

 

 

 

Weekly Discussion Papers and Seminar Participation

 

Almost all readings for the first five weeks of the seminar are available in the Holmes Student Center bookstore in a course-pack. Three articles assigned during this period will be available only in hardcopy or e-reserves at the library. The balance of seminar readings will be available in some combination of a second course-pack and reserve readings, depending on availability and affordability of publisher permissions to reprint.

 

Readings that the bookstore has already been able to identify as candidates for reserves are designated ON RESERVE in the syllabus. I will tell you which additional readings will also only be found on reserve once I have that information.

 

Since we only meet once a week, please read the following introductory pieces before our first seminar meeting on Monday, August 23rd :

  • Robert Kagan’s "What Socio-Legal Scholars Should Do When There is Too Much Law to Study”
  • my research proposal, “Who Regulates? Which Risks? How? Why? With What Consequences? Understanding before Reforming U.S. Risk Regulation”
  • Aaron Wildavsky’s “Reading with a Purpose”

 

Each week before our Monday meeting please read the articles and book excerpts corresponding to the topic heading in this syllabus for that week. Each week please also write a short, 2-3 page “discussion paper” based on those readings. Your discussion paper should be synthetic and analytical, not just a synopsis or description of what you read, although you should be able to summarize the main points of readings for discussion.

 

You should email your discussion paper to me no later than the Sunday night before the Monday meeting at which we will discuss those readings.

 

As we think, write about, and discuss each week’s readings, it may help to ask and try to answer questions like these:

  • What am I learning that I did not know before? How does this article or excerpt reinforce, build on, or challenge what I already knew?
  • What does the article or excerpt teach me about the week’s topic? What do the articles together teach me about the week’s topic?
  • How do readings on one topic relate to readings on previous topics? Do subsequent readings deepen or broaden understanding of, or raise questions about, prior readings?
  • Are there topics or themes other than the weekly topics to which these readings speak? What do they teach us about those other topics or themes?
  • What claims are being advanced by the various readings? How well-supported are these claims empirically or logically?
  • What appear to be the most important research questions in different topic areas? Why? What kinds of studies have been done, and would need to be done, to answer those questions?
  • What are the contours and extent of empirical knowledge on a topic? What findings seem well-established and why? Where are the big gaps in knowledge?
  • What generalizations can we make about legal institutions and/or legal actors? Are there concepts that seem to travel across time and space without inordinate conceptual stretching? Are there particular variables that appear to be important across different legal settings?
  • Are there larger theories linking generalizations, concepts, and/or variables into a coherent account of the causes and consequences of differences in legal institutions? If not, what would it take to create such theories? What would such theories have to do? What might they look like?

 

Discussion papers will not receive letter grades. However, discussion papers along with participation in seminar discussion, and written review of the paper proposals and draft and final papers of your seminar colleagues, will determine your seminar participation grade – which will be 20% of your seminar grade. The remaining 80% of your grade will be based on a seminar paper. There is no final exam.

 

The Seminar Paper

 

The seminar paper should be an article-length paper on a course-related topic. Ph.D. students in political science should think about how they can use this seminar to advance their dissertation research and/or to write an article related or unrelated to their dissertation that they can present at a conference and refine into an article for submission to a peer-reviewed outlet. The Midwest Political Science Association meets in Chicago in the Spring every year and is a great forum for presenting your work.

 

M.A. students in political science and public administration should similarly be thinking about writing a paper that can serve as a starred paper or be developed into a Master’s thesis and/or can be presented at a conference.

 

Law students, and political science grad students with an emphasis in public law, might think about writing a paper that can be submitted to a law journal.

 

Papers designed for publication in peer-reviewed outlets in political science and public administration should be about 25 pages in length, while those designed for publication in law journals can be significantly longer. The topic and type of analysis pursued will determine which kind of outlet is the most appropriate target for your work.

 

You are not required to submit a proposal to a conference nor to present your paper there. Nor are you required to submit your seminar papers to journals. However, I want you to select topics and think about and research and write your seminar papers with the idea that you will be presenting it to other professionals in one or more of these forums. Undergrads should also think along these lines.

 

You are required to develop paper proposals, to write draft and final papers, and to provide written comments on each other’s work.

 

I will provide more detailed guidance on exactly how we are going to organize these interactions. I will be commenting on all paper proposals and papers, but only your final paper will receive a letter grade. All other work you do will contribute to your participation grade, which, again, is 20% of your final grade.

 

Paper proposals should be 3-5 pages in length and have a preliminary bibliography. Paper proposals should pose a clearly defined question; give a preliminary review of sources (secondary if possible, primary if necessary) that will be used to address the question; and indicate what contribution an answer to the question will make to our knowledge in that area.

 

The timeline for submitting paper proposals and draft and final manuscripts is as follows:

 

October 4th            Paper Proposal Due

November 15th      Draft Seminar Paper Due

December 6th        Final Seminar Paper Due

 

Seminar and Project on Risk Regulation in the U.S. and Europe

 

Identifying, assessing, managing, and regulating risk are major preoccupations of governmental and non-governmental organizations and individuals everywhere. Risk is the chance that something bad is going to happen – whether it is to the environment, health, or safety; or to business, trade, or finances; or to society, morality, or relationships. The list could and does go on and on.

 

Next semester I will be teaching a seminar on Risk Regulation in the U.S. and Europe. This seminar will be based on and seeks to advance a project on comparative risk regulation to which I contributed while a post-doctoral fellow at Duke University’s Center for Environmental Solutions. Visit the Duke CES webpage (http://www.env.duke.edu/solutions) and click on the link for “Conferences” and then look through the “Dialogues on Precaution in the U.S. and Europe” to learn more about the Duke CES project.

 

Students taking my Risk Regulation seminar next semester will research and write up case-studies that help build on the Duke CES project. This follow-on project and the role I envision NIU students playing in it are described more fully in my research proposal that you are asked to read for our first seminar meeting on August 23rd, “Who Regulates? Which Risks? How? Why? With What Consequences?” Understanding before Reforming U.S. Risk Regulation.”

 

Students taking this current seminar on Legal Institutions who are interested in doing research in this area are encouraged to continue next semester with the seminar on Risk Regulation. What you learn here about legal institutions will help you understand and analyze legal institutions that regulate risks.

 

If you are interested in risk regulation and in participating in this project, you could research and write a paper for this Legal Institutions seminar that contributes to the project and/or that lays a foundation for the case study you would be doing next semester in the Risk Regulation seminar.

 

I will discuss the Duke CES project on risk regulation and my proposed follow-on project in our Legal Institutions seminar. If you are interested in writing a paper related to risk regulation for this seminar we should discuss this prior to you proposing a seminar paper.

 

READINGS

 

WEEK 1 (Read before first meeting, Monday, August 23rd:)

I. SOCIO-LEGAL STUDIES: CHALLENGES AND OPPORTUNITIES

R. Kagan, "What Socio-Legal Scholars Should Do When There is Too Much Law to Study," J. of Law & Society 22: 140-146 (1995)

B. Swedlow, “Who Regulates? Which Risks? How? Why? With What Consequences? Understanding before Reforming U.S. Risk Regulation,” Research Proposal, 2004, pp. 1-14.

A. Wildavsky, “Reading with a Purpose,” from Craftways: On the Organization of Scholarly Work, (Transaction Publishers, 1989), pp. 25-38.

 

WEEK 2

II.  BASIC CONCEPTS AND RELATIONSHIPS: POLITICS, THE RULE OF LAW, JUDICIAL INDEPENDENCE, JUSTICE

       M. Krygier, “Rule of Law,” from International Encyclopedia of the Social Sciences (Elsevier, 2002) pp. 13403-08

M. Shapiro, Courts: A Comparative and Political Analysis (Univ. Chicago Press, 1981), excerpts in R. Cover, O. Fiss & J. Resnik, Procedure (Foundation Press, 1988) pp. 1232-39.

O. Ulc, The Judge in a Communist State (1972) pp. 130-33, 140-41.

Robert Cover, Justice Accused: Antislavery and The Judicial Process (1975) pp. 1-7

C. Foote, "Vagrancy-Type Law and Its Administration" (1956), excerpts from W. Chambliss, Crime and the Legal Process (1969) pp. 295-300

N.Y. Times v Sullivan, 376 U.S. 255 (1964)

U.S. v Nixon, 418 U.S. 683 (1974)

R. Kagan, Adversarial Legalism: The American Way of Law (Harvard U. Press, 2001, pp. vi-ix (on Bush v Gore)

 

WEEK 3

iii. TOWARD THEORY-BUILDING: typologies of legal ordering

P. Nonet & P. Selznick, Law and Society in Transition: Toward Responsive Law (Harper & Row, 1978) pp. 10-17, 29-39, 53-66, 78-79, 96-98.  ON RESERVE

M. Damaska, “Structures of Authority and Comparative Criminal Procedure,’ 84 Yale L.J. 480 (1975), excerpted version from R. Cover & O. Fiss, The Structure of Procedure (Foundation Press, 1979) pp. 292-300

M. Damaska, The Faces of Justice and State Authority (Yale Univ. Press 1986) pp. 71-88.

R. Kagan,  Adversarial Legalism (2001), pp. 6-14.

R. Kagan, “On Responsive Law,” from Kagan, Krygier & Winston, eds., Legality and Community (Institute of Governmental Studies, 2002) pp. 85-98

B. Swedlow, “Toward Cultural Analysis in Policy Analysis: Picking Up Where Aaron Wildavsky Left Off,” Journal of Comparative Policy Analysis: Research and Practice 4: 267-285 (2002).

 

IV. POLITICAL SYSTEMS AND LEGAL INSTITUTIONS

 

WEEK 4

 A. Establishing Constitutionalism/Constitutional Courts

Charles Lindblom, Politics and Markets  (1977) pp. 119-130

Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge Univ. Press, 2003), pp. 1-11, 22-33.

Michael Parenti, “The Constitution as an Elitist Document,: in R. Goldwin & W. Schambra, eds., How Democratic is the Constitution? (American Enterprise Inst. 1980) pp. 39-58

Forest McDonald, “The Constitution and Hamiltonian Capitalism,” in Goldwin & Schambra, eds., How Capitalistic is the Constitution? (Amer. Enterprise Inst.1982)

Lee Epstein, Jack Knight & Olga Shvetsova. “The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government,” Law & Society Rev. 35: 117-164 (2001) ON RESERVE

Lawrence M. Friedman, A History of American Law (1973), pp. 93-117. ON RESERVE

 

WEEK 5 (I will be gone this week, but you should still read, write about, and discuss:)

   B. Constitutional Design, Political Organization, and Legal Institutions

Robert Cooter & Tom Ginsburg, “Comparative Judicial Discretion: An Empirical Test of Economic Models,”  Internat’l Rev. Law & Economics 16: 295-313 (1996)  

P.S. Atiyah and Robert Summers, Form and Substance in Anglo-American Law (1987) "The Makers and Making of Statute Law," pp. 298-323.

R. Kagan, Adversarial Legalism, pp.34-58

Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective  (Univ. Chicago Press, 1998), pp. 1-10, 44-70 ON RESERVE

F. Zimring & G. Hawkins, Capital Punishment and the American Agenda (Cambridge Univ. Press, 1986) pp.26-47, 69-73

 

WEEK 6

C. Political Systems and Modes of Accountability for Legal Officials

Kagan, Adversarial Legalism pp. 70-81

P. Atiyah & R. Summers, Form and Substance in Anglo-American Law (Clarendon, 1987), pp.267-297; 336-358. ON RESERVE

J. Q. Wilson, Bureaucracy (Basic Books, 1989) "National Differences" pp.295-312

T. Moe, "Political Institutions: The Neglected Side of the Story," 6 J. Law, Econ.& Org. 213, 238-42 (1990)

J.Badaracco, Loading The Dice: A Five Country Study of Vinyl Chloride Regulation (Harv.Business School Press, 1985) pp. 5-18, 40-59, 70-81, 113-125. ON RESERVE

 

 

V. INSTITUTIONAL DESIGN AND LEGAL DECISIONMAKING

 

WEEK 7 (Paper proposal due, Monday, October 4th)

   A. The Dilemma of Rules v Discretion

R. Kagan, “Rules in the Legal Process,’ from International Encyclopedia of the Social Sciences (Elsevier, 2002) pp. 13408-12

R. Cover, Justice Accused: Antislavery and The Judicial Process (1975) pp.1-7 (Sec. II, supra)

C. Foote, "Vagrancy-Type Law and Its Administration" (1956), pp. 295-300 ( Sec II, supra)

R. A. Kagan, Regulatory Justice (Russell Sage Foundation, 1978) pp. 5, 37, 85-97.

William K. Muir, Jr., Police: Streetcorner Politicians (Univ. Chicago Press, 1977) pp. 47-51, 54-57

J. Braithwaite, "The Nursing Home Industry," in  Tonry & Reiss, eds,  Crime and Justice (Univ. Chicago Press, 1993) 18: 11-54

        Eugene Bardach & Robert A. Kagan, Going by The Book: The Problem of Regulatory Unreasonableness (Temple Univ. Press 1982) pp. 123-151 ON RESERVE

 

WEEK 8

  B.  The Criminal Process

 

Caleb Foote, "Vagrancy-type Law and Its Administration," Sec II, supra

M. Feeley, The Process is The Punishment: Handling Cases in a Lower Criminal Court (1979) pp.3-4, 154-55, 178-85, 199-201, 235-43, 290-91 ON RESERVE

J. Langbein, "Land Without Plea Bargaining: How the Germans Do It." 78 Mich. L. Rev. 204-225 (1979)    

G. Hughes, "English Criminal Justice: Is It Better Than Ours?' 26 Ariz. L. Rev. 508, 559-60, 587-614 (1984)

J. Langbein, "Money Talks, Clients Walk," Newsweek, April 17, 1995, pp. 32-34

D. Johnson, "The Organization of Prosecution and the Possibility of Order," 32 Law & Society Rev. 247-308 (1998) ON RESERVE

 

WEEK 9

  C. Civil Litigation

 

R. Kagan, Adversarial Legalism (2001) pp. 99-125, 135-141

D. Bok, "A Flawed System of Law Practice and Training." Harvard Magazine (May/June 1983) pp. 38-44

O. Fiss, "Against Settlement" 93 Yale L.J. 1073 (1984) [from Cover et al, Procedure (1988) pp. 719-728]

Reducing Litigation: Evidence from Wisconsin. Workers Comp.Research Institute. Vol. 4, No.12 Dec. 1988.

 

   WEEK 10

  D. Bureaucratic Administration and Regulatory Processes

 

R. A. Kagan, “Inside Administrative Law: Review of Jerry L. Mashaw, Bureaucratic Justice, Columbia L. Rev. 84: 816-832

R. A. Kagan, Adversarial Legalism, pp. 22-32, 207-224

H. Kritzer, “American Adversarialism,” (Reviewing Robert A. Kagan’s Adversarial Legalism: The American Way of Law), Law and Society Review 38, 2: 349-383 (2004).

 

 

VI. JUDICIAL DECISIONMAKING IN A “POLITICAL” JUDICIARY

 

WEEK 11

  A. Lower Courts in the U.S.

 

 H.L. Ross & J. Foley, "Judicial Disobedience of the Mandate to Imprison Drunk Drivers," 21 Law & Soc. Rev. 315-22 (1987)

 S. Brill, "U.S. v Int'l Brotherhood of Teamsters and SEC v Drexel Lambert: When the Government Goes Judge Shopping." in Brill, ed. Trial By Jury (American Lawyer Press, 1989), pp. 418-448 ON RESERVE

M. Levin, "Urban Politics and Judicial Behavior," [excerpted version, J. Robertson, ed., Rough Justice: Perspectives on Lower Criminal Courts (Little Brown, 1979) pp. 192-210

M. Feeley & E. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge Univ. Press, 1998), Ch. 1 (pp. 1-25)

 J. Gibson, “Environmental Constraints on the Behavior of Judges: A Representative Model of Judicial Decisionmaking,” Law & Society Rev. 14: 343-369 (1980)

 J. Gottschall, "Reagan's Appointments to the U.S. Courts of Appeals." Judicature (June1986) pp.49-54

 F. Cross & E. Tiller, "Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals," 107 Yale Law Journal 2155-76

 

WEEK 12

 B.    U.S. Supreme Court

 

Lochner v New York, 198 U.S. 45 (1905)

Roe v Wade, 410 U.S. 113 (1973)

Lief Carter & Thomas Burke, Reason in Law (6th ed, Longman, 2002) pp. 104-121

Martin Shapiro, The Supreme Court and Administrative Agencies (Free Press, 1968) pp. 39-43

Keith Whittington. “Once More Unto the Breach: PostBehavioralist Approaches to Judicial Politics,” Law & Social Inquiry (2000) pp. 601-32

        Mark Richards & Herbert Kritzer, “Jurisprudential Regimes in Supreme Court Decision Making,” Am. Pol. Sci. Rev. 96: 305-320 (2002)

 

VII. LAW, LITIGATION, AND SOCIAL AND POLICY CHANGE

 

WEEK 13 (Draft Paper Due, Monday, November 15th)

A.    Can “Law-Ways” Change “Folkways”?

 

D. Gaiter, “Eating Crow: How Shoney’s, Belted by a Lawsuit, Found the Path to Diversity,” Wall Street Journal, April 16, 1996

 W.R. Curtis, "The Deinstitutionalization Story,' The Public Interest, Fall 1986, pp. 34-49

 R. Kagan "How Much Does Law Matter? Labor Law, Competition, and Waterfront Labor Relations in Rotterdam and U.S. Ports." 24 Law & Soc. Rev. 35-65 (1990)

Robert A. Kagan, “Visibility of Violations and Income Tax Law Noncompliance”in Jeffrey Roth & John Scholz, eds., Taxpayer Compliance. Vol. 2, Social Science Perspectives. Univ. Pennsylvania Press, 1989, pp. 76-102  (plus notes)

Paul Burstein & Mark Edwards, “The Impact of Employment Discrimination Litigation on Racial Disparity in Earnings,” 28 Law & Society Rev. 79-85, 90, 105-08 (1994)

Robert A. Kagan & Jerome Skolnick, “Banning Smoking: Compliance without Coercion,” in Robert Rabin & Stephen Sugarman, eds. Smoking Policy: Law, Policy and Politics. Oxford Univ Press, 1993

R. Kagan, N. Gunningham, and D. Thornton, “Explaining Corporate Environmental Performance: How Does Regulation Matter?,” Law and Society Review 37, 1: 51-89 (2003).

 

WEEK 14

B.     Courts and Social Change

 

W. K. Muir, Jr., Law and Attitude Change (U. Chi. Press 1973) p.111-120

G. Hazard, "Social Justice Through Civil Justice" 36 U. Chi. L. Rev. 699-712 (1969)

M. Galanter, "Why the 'Haves' Come Out Ahead?" (1974) [excerpted by R. Cover & O. Fiss, The Structure of Procedure (Foundation Press), pp. 199-211]

M. McCann, "Reform Litigation on Trial," 17 Law & Social Inquiry 715-43 (1993)

P. Frymer, “Acting When Elected Officials Won’t: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-1985,” American Political Science Review 97, 3: 483-499 (2003).

D.Reed, "Twenty-Five Years after Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism," 32 Law & Society Rev. 175-220 (1998)

R. S. Melnick, "Federalism and the New Rights," Yale Policy Review/Yale J. on Regulation (Symposium Issue, 1996), pp. 325-354

J. Pickerill and C. Clayton, “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2, 2: 233-248 (2004).

 

WEEK 15

C.    Policy-Making through Litigation

 R.S. Melnick, "Pollution Deadlines and the Coalition for Failure." in M. Greve & F. Smith, eds, Environmental Politics: Public Costs, Private Rewards (Greenwood, 1992), pp.89-102

 T. Burke, "On the Rights Track: The Americans With Disabilities Act, " in Pietro Nivola, ed., Comparative Disadvantages? Social Regulations and American Adversarial Legalism (Brookings Inst. 1997) pp. 242-92

 R. Rabin, “The Third Wave of Tobacco Tort Litigation,” in R. Rabin & S. Sugarman, eds., Regulating Tobacco (Oxford Univ Press, 2001)  pp. 176-206

 Michael Heise, “The Courts, Educational Policy, and Unintended Consequences,” 11Cornell J. of Law & Public Policy 633-63 (2002)

 Brendon Swedlow, “Reason for Hope? The Spotted Owl Injunctions and Policy and Social Change,” Law and Society Association, 2004. (Note: This is not in your course-pack. I will make this paper or a revised draft available to you.)

 

WEEK 16 (Final Paper Due, Monday, December 6th)