Professor Brendon Swedlow                                                                                                                                                  Political Science (POLS) 495-P1    815.753.7061                                                                                                                                                              NIU Fall 2005

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

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


Seminar in Current Problems:

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 larger questions we seek to answer in this seminar.


Initial readings will educate us about the roles courts play in policymaking and in changing the way Americans live their lives. We will critically examine the policy and social impacts of the U.S. Supreme Court’s decision that segregation in public schools violated the Constitution’s guarantee of “equal protection of the laws.” What role, if any, did Brown v. Board of Education play in such de-segregation of public schools as has occurred?


Additional readings will teach us about the roles law, litigation, and courts have played in equalizing the financing of public schools, enforcing civil rights laws in labor unions, protecting the Northern Spotted Owl, making tobacco companies liable for smoking-related diseases, reforming the welfare system, reducing racial disparities in earnings, collecting income taxes, banning public smoking, regulating paper mills, helping people with disabilities, providing social security, regulating poly-vinyl chloride, overseeing nursing homes, handling vagrants, and punishing drunk drivers.


Before we have read and discussed all of these case studies we will pause to consider how such studies might be done in ways that could teach us even more about the roles courts, regulatory agencies, and other legal institutions play in the U.S. and other countries. What should researchers do when, as one of our readings asks, “there is too much law to study”? The answer to that question, most scholars would agree, has something to do with selecting cases so that they are representative of other cases.


We will read and discuss a research proposal I have written describing my on-going research on risk regulation in Illinois. This research is designed to provide a template for comparing the regulation of a representative sample of risks in the U.S. and Europe. Last semester, students in my seminar on Risk Regulation began researching the regulation of these risks in a couple of Illinois counties. We will read and discuss, and the some of these students will present, their findings in this seminar. We will also read parts of a study of risk regulation regimes in Britain that serves as something of a model for our work. You are invited to participate in this project through the research you will do for your seminar paper.


The balance of the seminar consists of readings that direct our attention from the policy and social impacts courts, regulatory agencies, and other legal institutions have in the U.S. to institutional features and cultural influences that may cause these impacts. As we will see, U.S. legal institutions are in many ways quite different from their counterparts in England, Germany, France, Japan, and other Western democracies.


Is “adversarial legalism” the “American way of law,” as some of our readings claim? If so, what explains why U.S. legal institutions and their impacts differ quite a bit from each other?


Seminar Requirements: Weekly Readings, Discussion Papers, and Participation


Two books are required and available for purchase at the Holmes Student Center bookstore:


Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 1991).


Robert A. Kagan, Adversarial Legalism: The American Way of Law (Harvard University Press, 2001).


Additional readings are available on e-reserves at Founder’s Library. I will give you the url in seminar.


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. I will frequently provide some questions to guide your reading and writing of discussion papers.


You should post your discussion paper to the seminar Blackboard discussion board 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, trying to answer these questions for yourself may also prove helpful:

  • 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 receive letter grades and, together with class participation, will determine your participation grade – which will be 50% of your seminar grade. The remaining 50% of your grade will be based on a seminar paper. There is no final exam but you will be presenting the results of your research to each other and me during our final exam period.


Seminar Requirements: The Paper Proposal, Paper, and Presentation


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 seminar paper should be an article-length (i.e., 20-30 page) paper on a course-related topic. We can discuss paper ideas in seminar as they arise. If you have an idea, please tell me at the beginning of our class meeting that you would like to raise it in seminar, so that we can allow time for discussion. Students electing to study risk regulation in Illinois will be provided with research guidance and various other supporting materials.


The timeline for submitting paper proposals and seminar paper is as follows:


October 10th         Paper Proposal Due

December 5th        Final Seminar Paper Due

December 5th        Present Paper in Seminar during Final Exam Period


Seminar Requirements: Academic Conduct

“Academic misconduct” is defined by the NIU Student Judicial Code as the “receipt or transmission of unauthorized aid on assignments or examinations, plagiarism, unauthorized use of examination materials, or other forms of dishonesty in academic matters.” Academic misconduct is not expected. If it occurs, it is a serious matter and will be handled according to university guidelines.


Department of Political Science Announcements

Undergraduate Writing Awards


The Department of Political Science will recognize, on an annual basis, outstanding undergraduate papers written in conjunction with 300-400 level political science courses or directed studies. Authors do not have to be political science majors or have a particular class standing. Winners are expected to attend the Department’s spring graduation ceremony where they will receive a certificate and $50.00. Papers, which can be submitted by students or faculty, must be supplied in triplicate to a department secretary by February 28. All copies should have two cover pages – one with the student’s name and one without the student’s name. Only papers written in the previous calendar year can be considered for the award. However, papers completed in the current spring semester are eligible for the following year’s competition even if the student has graduated.


Statement Concerning Students with Disabilities


Under Section 504 of the Rehabilitation Act of 1973, NIU is committed to making reasonable accommodations for persons with documented disabilities. Those students with disabilities that may have some impact on their coursework and for which they may require accommodations should notify the Center for Access-Ability Resources (CAAR) on the fourth floor of the Health Services Building. CAAR will assist students in making appropriate accommodations with course instructors. It is important that CAAR and instructors be informed of any disability-related needs during the first two weeks of the semester.


Department of Political Science Web Site


Undergraduates are strongly encouraged to consult the Department of Political Science web site on a regular basis. This up-to-date, central source of information will assist students in contacting faculty and staff, reviewing course requirements and syllabi, exploring graduate study, researching career options, tracking department events, and accessing important details related to undergraduate programs and activities. To reach the site, go to





WEEK 1 (No Discussion Paper)

Introductions, Seminar Overview, Presentation by Prof. Swedlow


“Reason for Hope? The Spotted Owl Injunctions and Policy and Social Change”




WEEK 2 (No Discussion Paper)

A. The Hollow Hope: Can Courts Bring About Social Change? (G. Rosenberg)


“Introduction” 1-8

“The Dynamic and Constrained Court” 9-36

“Introduction” 39-41

“Bound for Glory? Brown and the Civil Rights Revolution 42-71

“Constraints, Conditions, and the Courts” 72-106




WEEK 4 (Post Discussion Paper to Seminar Blackboard Discussion Board)

B.    The Hollow Hope: Can Courts Bring About Social Change? (G. Rosenberg)


“Planting the Seeds of Progress?” 107-156

“The Current of History” 157-174

“Conclusion: The Fly-Paper Court” 336-343

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


WEEK 5 (Post Discussion Paper to Seminar Blackboard Discussion Board)

C.    Other Studies, Different Answers, to Rosenberg’s Question


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)


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).


B. Swedlow, “Reason for Hope? The Spotted Owl Injunctions and Policy and Social

Change,” Law and Society Association, 2005.


WEEK 6 (Post Discussion Paper to Seminar Blackboard Discussion Board)




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


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


A. NIU Project on Risk Regulation Regimes in Illinois, the U.S., and Europe


B. Swedlow, “Risk Regulation Regimes in Illinois: Creating a Template for U.S.-European

Comparisons,” Grant Proposal under Submission to the Smith Richardson Foundation, 1-17



Please Note: This week we will also read one or more student research papers (from a

previous seminar) on risk regulation in Illinois. Some students will also present their papers

in class; topics may include the regulation of air pollution, smoking, marijuana,

formaldehyde, hexachlorophene, ammonia, or poly-vinyl chloride.


WEEK 7 (Post Discussion Paper to Seminar Blackboard Discussion Board)


            B. Risk Regulation Regimes in Britain   


C. Hood, H. Rothstein, and R. Baldwin, The Government of Risk: Understanding

Risk Regulation Regimes. Oxford: Oxford University Press (2001).


     “What Are Risk Regulation Regimes? Why Do They Matter?” 3-19.


     “The Comparative Anatomy of Risk Regulation Regimes,” 20-35.


     “Nine Risk Regulation Regimes Compared,” 36-58.




WEEK 8 (Post Discussion Paper and Paper Proposal to Seminar Blackboard Discussion Board)


A. Courts and Policymaking: Other Studies, Questions, and Answers


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


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


R. S. Melnick, "Federalism and the New Rights," Yale Policy Review/Yale J. on

Regulation (Symposium Issue, 1996), pp. 325-354


WEEK 9 (Post Discussion Paper to Seminar Blackboard Discussion Board)

B.    Law, Litigation, and Social Change: Other Studies, Questions, and Answers


D. Gaiter, “Eating Crow: How Shoney’s, Belted by a Lawsuit, Found the Path to Diversity,”

Wall Street Journal, April 16, 1996


P. Burstein & M. 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, “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)


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 10 (Post Discussion Paper to Seminar Blackboard Discussion Board)


            A. Adversarial Legalism: The American Way of Law


R. Kagan, Adversarial Legalism: The American Way of Law (Harvard University Press, 2001).

“The Concept of Adversarial Legalism,” 3-17.

“The Two Faces of Adversarial Legalism,” 18-33.

“The Political Construction of Adversarial Legalism,” 34-58.


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


WEEK 11 (Post Discussion Paper to Seminar Blackboard Discussion Board)


            B. Bureaucratic Justice & Adversarial Legalism in Regulatory Settings


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 (review), 207-224


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.


   WEEK 12 (Post Discussion Paper to Seminar Blackboard Discussion Board)


            C. Rules, Ritualism, and Discretion in Administration and Regulation


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


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


WEEK 13 (Post Discussion Paper to Seminar Blackboard Discussion Board)


D.  U.S. Criminal Courts and Procedure


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


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


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


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


WEEK 14 (Post Discussion Paper to Seminar Blackboard Discussion Board)


E.  Criminal Court Procedure in the U.S., Europe, and Japan


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


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)


WEEK 15 (Post Discussion Paper to Seminar Blackboard Discussion Board)


F. 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 16 (Final Paper Due, Paper Presentations, Monday, December 5th)