Professor Brendon Swedlow                                                                                           Political Science (POLS) 495-P1    815.753.7061                                                                                                    NIU Fall 2006

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

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


Seminar in Current Problems:

Judicial Policymaking and 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 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 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 Illinois.  Students who have undertaken this research in other courses I teach will present their findings and discuss their research experiences 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.


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.


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 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 I is responsible for leading discussion in Weeks 3, 6, 9, and 12.
  • Group II is responsible for leading discussion in Weeks 4, 7, 10, and 13.
  • Group III is responsible for leading discussion in Weeks 5, 8, 11, and 14.


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 Illinois, due in two installments, as described below. There is no final exam but you will be presenting research results and discussing research challenges during our final exam period and throughout the semester.


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:


  1. What is the risk?
  2. Who regulates it?
  3. How is it regulated?
  4. Why is it regulated the way it is?
  5. What are the consequences of regulating the risk that way?


For Research Paper Installment #1 (due Oct. 9th; worth 15% of your seminar grade):


  • Choose a risk the regulation of which you wish to study from a list of risks that I will provide. If the regulation of the risk you want to study has been previously studied by a student, I will get you a copy of their research paper so that you can build on it in your paper. (We will discuss this in seminar.)
  • Write five (5) pages answering one or more of the five questions listed above. If you are building on the work of other students, enable the “track changes” function in “Tools” so that I can identify what you have added to their paper.
  • Use the study guide to identify what information is missing from existing student papers that needs to be added to improve the paper. In some cases, my comments on student papers are available as further guidance on what is needed to improve them.


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

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 and Seminar Overview







(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)


“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 (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

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

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 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,” Presented at the Law and Society Association Annual Meeting, 2005.


WEEK 6 (Group I Please Post Discussion Papers to 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. NIU Project on Risk Regulation Regimes in Illinois, the U.S., and Europe


B. Swedlow, et al., “Convergence, Divergence, or Flip-Flop? Nine Trends in U.S. and

European Precautionary Regulation (and Several Ways to Study Their Causes and

Consequences),” Working Paper, NIU, Summer 2006.


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

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 regulation in Illinois. One or more students will also present their

papers in seminar.


WEEK 7 (Group II Please Post Discussion Papers to 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 (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, 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)


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.

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).


D. Thornton, N. Gunningham, and R. Kagan, “General Deterrence and Corporate Environmental Behavior,” Law & Policy, 27, 2, 2005, 262-288





WEEK 10 (Group II Please Post Discussion Papers to 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 (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)


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 (Group III Please Post Discussion Papers to Discussion Board)


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


Everyone please read these two articles:


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


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 Ariz. L. Rev. 508, 559-60, 587-614 (1984)


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 Readings)


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 (Research Paper Installment #2 Due, Paper Presentations, Monday, December 11th)