Professor Brendon Swedlow Political Science (POLS) 495-P1
email@example.com 815.753.7061 NIU Fall 2006
Office: 418 Zulauf Hall Mondays
Hours: MW DuSable 464
Seminar in Current Problems:
in Comparative Perspective
What role do courts, regulatory agencies, and other legal
institutions play in the
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 and related cases play in such de-segregation of public schools as has occurred?
Additional readings will teach us about the roles law, litigation, courts, and regulatory agencies 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.
We will apply the lessons of these studies as we look for
our own answers by studying the regulation of a variety of environmental,
health, safety and other risks in
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
Seminar Requirements: Weekly
Two books are
required and available for purchase at the
Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 1991).
Robert A. Kagan, Adversarial Legalism: The
Additional required readings are available on e-reserves and on the course webpage. I will give you the e-reserves url in seminar.
Each week before our Monday meeting please read all of the articles and book excerpts corresponding to the topic heading in this syllabus for that week, except for Weeks 9 and 14, which will run a bit differently. Please also read student discussion papers based on those readings, as described below, as well as additional research-supporting readings posted on the seminar webpages.
Seminar discussion of these readings will be led by alternating groups of you on a three week rotation:
Group assignments will be made alphabetically, with the seminar divided into three groups that are as even in number as possible. Each member of a group should also write a three (3) page “discussion paper” for each week that your group is responsible for leading discussion. 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 provide questions to guide your reading and writing of discussion papers, but once you have answered these questions you are encouraged to go beyond them to comment on other things about the readings that you found particularly interesting or important (or uninteresting or unimportant).
Please post your discussion paper to the seminar Blackboard discussion board no later than the Saturday night before the Monday meeting at which we will discuss those readings so that everyone can read your papers.
Everyone should come to seminar prepared to discuss all readings (including discussion papers) regardless of whether or not it is your week to lead discussion and write a paper. If you are not participating in discussion, I may engage you by asking you some questions about the readings.
Discussion papers will receive letter grades (25% of seminar grade) and, together with
seminar participation (20% of grade), will determine your participation grade
(i.e., 45% of seminar grade). The remaining 55%
of your grade will be based on your research paper on risk regulation in
Seminar Requirements: Your Research Paper and Presentation on Risk Regulation
Research papers are due in two installments, posted to the discussion board and in hard copy at the beginning of seminar, on the dates given below. All research papers should seek to answer questions 1-3 and ideally also 4-5 elaborated in a study guide available on the seminar webpages. Those five questions are:
For Research Paper Installment #1 (due Oct. 9th; worth 15% of your seminar grade):
For Research Paper Installment #2 (due Dec. 11th; worth 40% of your seminar grade):
· Respond to my comments on Installment #1 by making revisions or taking the paper in the direction I advise.
· If interviews of regulatory officials and/or others are required to advance the research of how your risk is regulated, you will need to read a book chapter and some other guidance on interviewing that is available on the seminar webpages. My Interview Guide discusses how you can determine whether interviews are necessary and typical reasons to do interviews (which we will also discuss in seminar).
· Write 15-20 pages beyond the five pages written for Installment #1 answering three or more of the five questions listed above. Again, if you are building on the work of other students, use the “track changes” function in “Tools” so that I can identify what you have added to their paper. Again, use the study guide and any comments I may have made on the prior work by students to improve their papers.
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
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.
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
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 http://polisci.niu.edu.
WEEK 1 (No Discussion Paper) Introductions and Seminar Overview
WEEK 2 NO CLASS MONDAY, SEPTEMBER 4TH, LABOR DAY
(No Discussion Paper)
WEEK 3 (Group I Please Post Discussion Papers to Discussion Board)
A. The Hollow Hope: Can Courts Bring About Social Change? (G. Rosenberg)
“The Dynamic and Constrained Court” 9-36
“Bound for Glory? Brown and the Civil Rights Revolution 42-71
“Constraints, Conditions, and the Courts” 72-106
WEEK 4 (Group II Please Post Discussion Papers to 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
M. McCann, "Reform Litigation on Trial," 17 Law & Social Inquiry 715-43 (1993)
WEEK 5 (Group III Please Post Discussion Papers to Discussion Board)
C. Other Studies, Different Answers, to
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
B. Swedlow, “Reason for Hope? The Spotted Owl Injunctions and Policy and Social
Change,” Presented at the Law and Society Association Annual Meeting, 2005.
WEEK 6 (Group I Please Post Discussion Papers to Discussion Board)
II. 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)
A. NIU Project
on Risk Regulation Regimes in
B. Swedlow, et al.,
“Convergence, Divergence, or Flip-Flop? Nine Trends in
European Precautionary Regulation (and Several Ways to Study Their Causes and
Consequences),” Working Paper, NIU, Summer 2006.
B. Swedlow, “Risk
Regulation Regimes in
Comparisons,” Research and Artistry Grant Proposal, NIU, Summer 2006.
Please Note: This week we will also read one or more student research papers (from
previous courses) on risk
papers in seminar.
WEEK 7 (Group II Please Post Discussion Papers to Discussion Board)
B. Risk Regulation Regimes in
C. Hood, H. Rothstein, and R. Baldwin, The Government of Risk: Understanding
“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 (Group III Please Post Discussion Paper and Everyone Please Post Research Paper Installment #1 to 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 (Group I Please Post Discussion Papers to Discussion Board)
B. Law, Litigation, and Social Change: Other Studies, Questions, and Answers
Everyone please read the first two articles:
D. Gaiter, “Eating Crow: How Shoney’s, Belted by a Lawsuit, Found the Path to Diversity,”
Wall Street Journal,
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)
Everyone please also read two of these four articles; Group I discussion paper authors should indicate with a post to the discussion board which two articles they are reading (and about which they are writing); there should be no duplication between authors until all articles are being covered by at least one person:
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.
WEEK 10 (Group II Please Post Discussion Papers to Discussion Board)
A. Adversarial Legalism: The
R. Kagan, Adversarial Legalism: The
“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 (Group III Please Post Discussion Papers to 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 (Group I Please Post Discussion Papers to 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 (Group II Please Post Discussion Papers to Discussion Board)
C. Foote, "Vagrancy-Type Law and Its Administration" (1956),
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 (Group III Please Post Discussion Papers to Discussion Board)
E. Criminal Court Procedure in the
Everyone please read these two articles:
"Money Talks, Clients Walk," Newsweek,
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
Everyone please also read at least one of these three articles; Group III discussion paper authors should indicate with a post to the discussion board which article they are reading (and about which they are writing); no article should be read (nor be written about) by three people until at least two people are covering each article:
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
D. Johnson, "The Organization of Prosecution and the Possibility of Order," 32 Law & Society Rev. 247-308 (1998)
WEEK 15 (No Discussion Paper
But Everyone Should Be Prepared to Discuss
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]
WEEK 16 (Research Paper Installment #2 Due, Paper Presentations, Monday, December 11th)