Northern
Department of
Political Science
POLS 510 Seminar: Judicial
Politics
Fall 2006 T 3:30-6:10
Founder's Library Room 352
Instructor: Artemus Ward
Office: 410 Zulauf Hall
Office Phone: 815-753-7041
E-mail:
Office Hours: T TH 11:00-12:15 & by appointment.
This seminar explores the contributions that
social science, and specifically the discipline of political science, has made to
the study of law and courts. We will take an historical approach in examining
the various schools of thought that have dominated the literature. Have these
approaches been successful in furthering our understanding of judicial behavior
and the role of law in society? Do contemporary approaches provide sufficient
explanations or is something missing? To this end, students are required to
vigorously participate in weekly seminars and write four separate thought
papers about the issues discussed. Students with an interest in doing research
in the Public Law field may substitute a literature review or other project for
the thought papers.
You are required to do the assigned reading and
come to class prepared to discuss the material. Because this course is a seminar,
I will endeavor to speak as little as possible. You should be prepared to
discuss the assigned works in depth and respond to the remarks of your
colleagues. That said, there is such a thing as too much participation. Be
respectful of the other seminar participants and give others a chance to join
the conversation. Class participation is crucial in graduate courses and will
account for a substantial part of your course grade. If you miss classes,
generally do not come prepared and/or do not regularly participate, you will
fail this part of the course.
Grading
Written
Work: 70%
Seminar
Participation: 30%
There
are two assignment options:
1)
You are required to write 4 short 4-5 page thought papers
on issues relating to course topics throughout the semester. You should choose
your 4 topics from those listed in the syllabus. Your papers should be very specific about the
course readings. Careful and detailed reading and writing is essential at the
graduate level. As you may know, unlike undergraduate work, graduate level
writing must go beyond merely summarizing the readings. Everything you write at
the graduate level should include some kind of original contribution—argument,
analysis, approach, etc.
OR
2)
You may write one final course paper (15-20 pages
minimum) on a topic of your choice relating to public law, broadly defined.
This can also be a literature review. If you choose this option, discuss your
plans with me as early in the semester as possible.
Required Books
Hansford,
Thomas G. and James F. Spriggs II, The Politics
of Precedent on the
Hirschl,
Ran, Towards Juristocracy: The Origins
and Consequences of the New Constitutionalism (
Maveety,
Nancy, Pioneers of Judicial Behavior (
Russell,
Peter H., Recognizing Aboriginal Title:
The Mabo Case and Indigenous Resistance to English-Settler Colonialism (
Recommended
Books
Baum, Lawrence, Judges and Their Audiences: A Perspective on
Judicial Behavior (
Clayton,
Cornell W. and Howard Gillman, eds., Supreme
Court Decision-Making: New Institutionalist Approaches (Chicago: University
of Chicago Press, 1999).
Epp,
Charles R., The Rights Revolution:
Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago:
University of Chicago Press, 1998).
Gillman,
Howard & Cornell Clayton, eds., The Supreme Court in American Politics (Lawrence,
KS: University Press of Kansas, 1999).
Kahn, Ronald and Ken I.
Kersch, eds., The Supreme Court and
American Political Development (
Rosenberg,
Gerald N., The Hollow Hope: Can Courts
Bring About Social Change? (Chicago, IL: University of Chicago Press,
1993).
Course Calendar
Introduction
Week 1—Aug
29. Introduction to Studying Law & Courts
The Lasting Legacy of Legal Realism
Week
2—Sept 5. From Classical Legal Thought to Sociological Jurisprudence to Legal
Realism
Required:
·
Levi, Edward
H., “The
Nature of Judicial Reasoning,”
·
Calder
v. Bull,
3
·
Marbury v. Madison, 1 Cr. 137 (1803).
·
Lochner v. New York, 198
·
Muller v.
Oregon, 208
·
Brandeis Brief
(1907). Do NOT read the entire brief. Just get a sense of it.
·
Adkins
v. Children's Hospital, 261
·
West
Coast Hotel v. Parrish, 300
·
Williamson
v. Lee Optical Co., 348
·
Leiter, Brian
R., “American Legal Realism,”
2002. U of
Recommended:
o
The Constitution of the
United States of America (1787).
o
Madison,
James, Debates in the Federal
Convention of 1787.
o
Hamilton,
Alexander, James Madison, and John Jay, The Federalist Papers—particularly
#78.
o
Pound,
Roscoe, “Mechanical Jurisprudence,”
o
Llewellyn,
Karl, The Bramble Bush: On Our Law and Its Study (Dobbs Ferry, New York:
Oceana Publications, 1930).
o
Levi,
Edward H., An Introduction to Legal
Reasoning (Chicago, IL: University of Chicago Press, 1948).
o
Llewellyn, Karl, Jurisprudence: Realism in
Theory and Practice
(Chicago: University of Chicago Press, 1962).
Week
3—Sep 12. Trial Courts
Required:
·
Frank,
Jerome, Courts On Trial: Myth and Reality
in American Justice. (Princeton, NJ: Princeton University Press,
1936). Ch.1 "The Needless Mystery
of Court-House Government," Ch.2 "Fights and Rights," Ch.3
"Facts Are Guesses," Ch.10 "Are Judges Human?" Ch.11
"Psychological Approaches." On e-reserve.
·
Church,
Thomas W., “Plea Bargaining and Local Legal Culture,” in Lee Epstein, ed., Contemplating Courts (Washington, DC: CQ
Press, 1995) 132-54. On e-reserve.
·
Scheppele,
·
Mather,
Recommended:
o
Scheingold, Stuart A., The Politics of Street Crime: Criminal Process and Cultural Obsession
(Philadelphia, PA: Temple University Press, 1991).
o
Munger, Frank, “Trial Courts and Social Change: The
Evolution of a Field of Study,” Law & Society Review 24 (1990): 217.
Paper Topic 1: What is
the relationship between legal realism and legal reasoning? Do legal realists pose a threat to the legal
reasoning model?
Paper Topic 2: What is
the relationship between trial courts and policymaking? Can and should trial
court judges make policy?
Week
4—Sep 19. Interest Groups and the Courts
Required:
·
Plessy
v. Ferguson, 163
·
Missouri
ex rel. Gaines v. Canada, 305
·
Shelley
v. Kraemer, 334
·
Brown
v. Board of Education, I, 347
·
Brown
v. Board of Education, II,
349
·
Wasby,
Stephen L., Race Relations Litigation in
an Age of Complexity (Charlottesville, VA: University of Virginia Press,
1995). Required, on e-reserve: Ch. 7, "The 'Planned' in Planned
Litigation," pp. 141-169;
·
Tushnet, Mark
V., The NAACP’s Legal Strategy Against
Segregated Education: 1925-1950 (
·
Caldeira,
Gregory A., and John R. Wright, “Organized
Interests and Agenda Setting in the U.S. Supreme Court," American Political Science Review 82
(1988): 1109-28.
Recommended:
o
Pacelle, Richard L., Jr., The Transformation of the
Supreme Court's Agenda: From the New Deal to the Reagan Administration.
(Boulder, CO: Westview Press, 1991).
o
McGuire, Kevin T., “Amici Curiae and Strategies
for Gaining Access to the Supreme Court.” Political Research Quarterly 47
(1994): 821-37.
Week 5—Sep 26. Appellate Courts
Guest:
Stephen L.
Wasby, Professor Emeritus, SUNY Albany and current editor of Justice
System Journal. In addition to leading the seminar, Professor Wasby
will also be giving a talk, "Of Albatrosses, Toddlers, and Saints: Tales
from an Editor," on publishing
in journals from 12:30pm-1:30pm in Watson 110.
Required:
·
Howard, J. Woodford, Courts
of Appeals in the Federal System (Princeton, NJ: Princeton University
Press, 1981) Required, on e-reserve: Ch. 2-3; Suggested, Ch. 4-8 of the book,
which is on physical reserve at the library.
·
Cohen, Jonathan Matthew, Inside Appellate Courts: The Impact of Court Organization on Judicial
Decision Making in the
·
Klein, David E., Making Law in
the United States Courts of Appeals (
Recommended:
·
Goldman,
Sheldon, “Voting Behavior on the
·
Songer,
Donald, R., Reginald S. Sheehan, and Susan B. Haire, Continuity and Change on the United States Courts of Appeals (Ann
Arbor, MI: University if Michigan Press, 2000).
·
Wasby,
Stephen L., “The Supreme Court and Court and Courts of Appeals en bancs,” McGeorge Law Review
33 (2001): 17-73.
·
Wasby,
Stephen L., “Intercircuit Conflicts in the Courts of Appeals,”
·
Week 6—Oct
3. Modern Legal Realists: The Critical Legal Studies Movement
Required:
·
Legal Information Institute, “Critical Legal Studies: An Overview.”
·
Tushnet, Mark, “Critical Legal Studies: A Political History,” The Yale Law
Journal 100 (1991): 1515-44.
·
Kennedy,
·
Legal Information Institute, “Feminist Jurisprudence: An Overview.”
·
MacKinnon, Catharine A., “Feminism, Marxism, Method, and the State: Toward Feminist
Jurisprudence,” Signs 8 (1983): 635-58.
·
PBS’s Think Tank with Ben
Wattenberg, “A Conversation with Catharine MacKinnon,” July 7,
1995.
Recommended:
o
Unger, Roberto Mangabeira, The Critical Legal Studies Movement (Cambridge,
MA: Harvard University Press, 1986).
o
Fiss, Owen
M., “The Death of Law?” Cornell Law Review 72 (1986): 1.
o
Rubin, Alvin
B., “Does Law Matter? A Judge’s Response to the Critical Legal Studies
Movement,” Journal
of Legal Education 37 (1987): 307.
o
MacKinnon,
Catherine, Toward a
Feminist Theory of the State (Cambridge, MA: Harvard University Press,
1989).
o
Balkin, Jack
M. “Deconstruction’s Legal Career,” Cardozo Law Review
27 (1998): 719-40.
Week 7—Oct
10. Contemporary Post-Realist Scholarship: The Liberal Principlist Attempt to
Rescue Judicial Review from Realism and Its Relationship to Political
Science
Required:
·
Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University
Press, 1977), Ch. 1 "Jurisprudence," Ch. 4 "Hard Cases" and Ch. 13 "Can Rights
be Controversial?" On e-reserve.
·
Ackerman, Bruce, We The People: Vol. 2, Transformations (Cambridge, MA:
Harvard University Press, 1998),
·
Howard, Robert M., and Jeffrey A. Segal, “A
Preference for Deference? The Supreme Court and Judicial Review,” Political Research
Quarterly 57 (2004): 131-43.
·
Keck, Thomas M., The Most Activist Supreme Court in History: The Road to
Modern Judicial Conservatism (
Recommended:
o
Brown v. Board of Education, 347
o
Bickel,
Alexander M., “The Original Understanding and the Segregation Decision,” Harvard Law Review
69 (1955): 1-65.
o
Wechsler,
Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review
73 (1959): 1-35.
o
Bickel,
Alexander M., The
Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. (New Haven, CT: Yale University Press, 1962,
1986).
o
Wolf v.
o
Colgrove v. Green, 328
o
Betts v. Brady, 316
o
Ely, John
Hart, Democracy and
Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University
Press, 1980).
o
Brennan,
William J., “The Constitution of the
o
Ackerman,
Bruce, We the
People: Vol. 1, Foundations (Cambridge, MA: Harvard University Press,
1991).
o
Dworkin,
Ronald, Freedom’s
Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard
University Press, 1996).
o
Sunstein,
Cass R., One Case at
a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard
University Press, 1999).
Paper Topic 3: Discuss the legacy of legal realism. Compare
and contrast the CLS movement to liberal principlist scholars such as Dworkin
and Ackerman. Which argument do you find more attractive? Why?
Paper Topic 4: What is the relationship between activism
and principlism? Discuss how liberal principlist arguments like those from legal
theorists Dworkin and Ackerman relate to the data provided by political
scientists such as Howard, Segal, and Keck.
The Contribution of Political Science
Week 8—Oct 17. Behavioralism: Attitudinalists
Required:
·
Pritchett, C. Herman, The
·
Baum, Lawrence, “C. Herman Pritchett: Innovator with an
Ambiguous Legacy,”
·
Schubert, Glendon, The Judicial Mind: The Attitudes and Ideologies of Supreme
Court Justices, 1946-1963 (Evanston, IL: Northwestern University Press,
1965)
·
Segal, Jeffrey A., “Glendon Schubert: The Judicial Mind,”
·
Segal, Jeffrey A. and Harold J. Spaeth, The Supreme Court and
the Attitudinal Model (New York: Cambridge University Press, 1993) Ch.6 "The
Decision on the Merits" and Ch.10 "Conclusion: Responses to Criticisms of the
Attitudinal Model." On e-reserve.
·
Benesh, Sarah C., “Harold J. Spaeth: The Supreme Court
Computer,”
·
Symposium on the Supreme Court and the Attitudinal Model, Susan
E. Lawrence;
Baum, Jack Knight, Gerald N. Rosenberg, Rogers M. Smith,
and Jeffrey A. Segal and Harold J. Spaeth, Law & Courts 4
(1994): 3-11.
Recommended:
o
Swisher,
Carl, “Research in Public Law: Report on the Panel on Public
Law,” American Political Science Review 40 (1946): 552.
o
Schubert,
Glendon, Quantitative Analysis of Judicial Behavior (Glencoe,
IL: Free Press, 1959).
o
Schubert,
Glendon, “Behavioral Research in Public Law,” American Political
Science Review 57 (1963): 433.
o
Mendelson,
Wallace, “The Neo-Behavioral Approach to the Judicial Process: A
Critique,” American Political Science Review 57 (1963): 593.
o
Pritchett,
C. Herman, Letter to the Editor, American Political Science Review 57 (1963): 948.
o Somit, Albert, and Joseph Tanenhaus, “Trends in American Political Science: Some Analytical Notes,” American Political Science Review 57 (1963): 933,