POLS 510 Seminar: Judicial
Politics
Instructor: Artemus Ward
Office: 410 Zulauf Hall
Office Phone: 815-753-7041
E-mail: aeward@niu.edu
Office Hours: T TH 11:00-12:00pm & T 2:30-3:00pm
& 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, come to class prepared to discuss the material, and use Blackboard
to access course information and continue the
discussion on-line. 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. 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 both in-class and on-line, you
will fail this part of the course.
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.
Grading:
Written Work: 70%
Seminar Participation: 30%
Required Books:
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).
Maveety, Nancy, Pioneers of Judicial Behavior (Ann
Arbor, MI: University of Michigan Press, 2001).
Rosenberg, Gerald N., The
Hollow Hope: Can Courts Bring About Social Change? (Chicago, IL: University
of Chicago Press, 1993).
Introduction
Week 1: Introduction -- Studying Law & Courts; Using
Blackboard: see
http://www.helpdesk.niu.edu/its/helpdesk/blackboard_support.shtml
The Lasting Legacy of Legal Realism
Week 2: From Classical Legal Thought to Sociological
Jurisprudence
·
Levi, Edward H., An
Introduction to Legal Reasoning (Chicago, IL: University of Chicago Press,
1948) pp. 1-4. http://www.amazon.com/gp/reader/0226474089/ref=sib_dp_pt/103-7435562-7435030#reader-link.
·
Calder
v. Bull, 3 U.S. (Dall.) 386 (1798), Chase and Iredell Opinions
only.
http://press-pubs.uchicago.edu/founders/documents/a1_10_1s10.html
·
Marbury
v. Madison, 1 Cr. 137 (1803).
http://www.constitution.org/ussc/005-137a.htm
·
Lochner
v. New York, 198 U.S. 45 (1905).
http://www.tourolaw.edu/patch/Lochner/
·
Muller
v. Oregon, 208 U.S. 412
(1908).
http://www.hist.umn.edu/~bywelke/Muller%20v%20Oregon.htm
Week 3: Legal Realism
·
Adkins
v. Children's Hospital, 261 U.S. 525 (1923). Sutherland, Taft, and
Holmes only.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=261&invol=525
·
West
Coast Hotel v. Parrish, 300 U.S. 379 (1937).
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=300&page=379
· Leiter, Brian, “American Legal Realism,” 2002. http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID339562_code021012630.pdf?abstractid=339562
· OPTIONAL: 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 Reserve at Library.
Paper Topic 1: What is the relationship between legal
realism and legal reasoning? Do legal
realists pose a threat to the legal reasoning model?
Week 4: Modern Legal Realists: The Critical Legal Studies
Movement
·
Legal Information Institute, “Critical Legal Studies: An
Overview.”
http://www.law.cornell.edu/topics/critical_theory.html
·
Balkin, Jack M. “Deconstruction’s Legal Career,” 1998.
·
http://www.law.cornell.edu/topics/critical_theory.html
·
Kennedy, Duncan, “Legal Education and the Reproduction of
Hierarchy,” 1982.
http://www.nclg.mcmail.com/2_3.htm
·
Legal Information Institute, “Feminist Jurisprudence: An
Overview.”
http://www.law.cornell.edu/topics/feminist_jurisprudence.html
·
PBS’s Think Tank with Ben Wattenberg, “A
Conversation with Catherine MacKinnon,” July 7, 1995. http://www.pbs.org/thinktank/transcript215.html
Week 5: Contemporary Post-Realist Scholarship: The
Liberal Principlist Attempt to Rescue Judicial Review from Realism
·
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 Reserve.
·
Ackerman, Bruce, We
The People: Transformations Vol. 2 (Cambridge, MA: Harvard University
Press, 1998) Ch.1 "Higher Lawmaking" and Ch. 13 "Reclaiming the
Constitution." On Reserve.
Paper Topic 2: 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?
The Contribution of Political Science
·
Pritchett, C. Herman, The
Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (New
York: Macmillan, 1948) Ch.2 "Divided It Stands." On Reserve.
·
Baum, Lawrence, “C. Herman Pritchett: Innovator with an
Ambiguous Legacy,” ch. 2 in Maveety, The Pioneers of Judicial Behavior.
·
Segal, Jeffrey A., “Glendon Schubert: The Judicial Mind,”
ch. 3 in Maveety, The Pioneers of Judicial Behavior.
·
Benesh, Sarah C., “Harold J. Spaeth: The Supreme Court Computer,”
ch. 5 in Maveety, The Pioneers of Judicial Behavior.
·
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 Reserve.
Week 7: Behavioralism - The Origins of the Strategic
Approach
·
Epstein, Lee and Jack Knight, “Walter F. Murphy: The
Interactive Nature of Judicial Decision Making,” ch. 8 in Maveety, The Pioneers
of Judicial Behavior.
·
Walker, Thomas G., “David J. Danelski: Social Psychology
and Group Choice,” ch. 10 in Maveety, The Pioneers of Judicial Behavior.
·
Brenner, Saul, “David Rhode: Rational Choice Theorist,”
ch. 11 in Maveety, The Pioneers of Judicial Behavior.
·
OPTIOINAL: Maveety, Nancy and John Anthony Maltese, “J. Woodford Howard Jr.: Fluidity,
Strategy, and Analytical Synthesis in Judicial Studies,” ch. 9 in Maveety, The
Pioneers of Judicial Behavior.
Paper Topic 3: Is behavioralism is law and courts
research, as exemplified by both attitudinal and strategic approaches,
predicated on legal realism? How useful
is behavioralism for studying public law?
Week 8: New Institutionalism I -- Rational Choice
· Gillman, Howard and Cornell W. Clayton, "Beyond Judicial Attitudes: Institutional Approaches to Supreme Court Decision-Making," (Introduction) in Clayton and Gillman, Supreme Court Decision-Making.
·
Maltzman, Forrest, James F. Spriggs II, and Paul J.
Wahlbeck, “Strategy and Judicial Choice: New Institutionalist Approaches to
Supreme Court Decision-Making,” ch. 2 in Clayton & Gillman, Supreme
Court Decision-Making.
·
Epstein, Lee, and Jack Knight, “Mapping Out the Strategic
Terrain: The Informational Role of Amici Curiae,” ch. 10 in Clayton &
Gillman, Supreme Court Decision-Making.
·
Cohn, Jonathan, "Irrational Exuberance: When did
political science forget about politics?" The New Republic, October 25, 1999. http://www.nuff.ox.ac.uk/users/Kayser/TNR%20Cohn.pdf
Paper Topic 4: What is the relationship between the
attitudinal model and the rational choice approach to studying law and
courts? Are they compatible, different,
etc.? Which approach is most useful for
studying public law?
Week 9: Spring Break
Week 10: New Institutionalism II – Origins of Historical
Institutionalism (“Old” Institutionalism?)
·
Clayton, Cornell, “Edward S. Corwin as Public Scholar,”
ch. 12 in Maveety, The Pioneers of Judicial Behavior.
·
Davis, Sue, “Alpheus Thomas Mason: Piercing the Judicial
Veil,” ch. 13 in Maveety, The Pioneers of Judicial Behavior.
·
Gillman, Howard, “Robert G. McCloskey, Historical
Institutionalism, and the Arts of Judicial Governance,” ch. 13 in Maveety, The
Pioneers of Judicial Behavior.
Week 11: New Institutionalism III – Origins Continued . .
.
·
Dahl, Robert A., "Decision Making in a Democracy: The
Supreme Court as a National Policy-Maker," Journal of Public Law 6 (1957): 279-95. On Reserve.
·
Adamany, David and Stephen Meinhold, “Robert Dahl:
Democracy, Judicial Review, and the Study of Law and Courts,” ch. 15 in
Maveety, The Pioneers of Judicial Behavior.
·
Kritzer, Herbert M., “Martin Shapiro: Anticipating the
New Institutionalism,” ch. 16 in Maveety, The Pioneers of Judicial Behavior.
·
Clayton, Cornell, “The Supreme Court and Political
Jurisprudence: New and Old Institutionalisms,” ch. 1 in Clayton & Gillman, Supreme
Court Decision-Making.
Week 12: New Institutionalism IV -- Conceptualizing the
Court as an Institution
·
Gillman, Howard, “The Court as an Idea, Not a Building
(or a Game): Interpretive Institutionalism and the Analysis of Supreme Court
Decision-Making,” ch. 3 in Clayton & Gillman, Supreme Court
Decision-Making.
·
O’Brien, David M., “Institutional Norms and Supreme Court
Opinions: On Reconsidering the Rise of Individual Opinions,” ch. 4 in Clayton
& Gillman, Supreme Court Decision-Making.
·
Davis, Sue, “The Chief Justice and Judicial
Decision-Making: The Institutional Basis for Leadership on the Supreme Court,”
ch. 6 in Clayton & Gillman, Supreme Court Decision-Making.
·
Silverstein, Mark, “Bill Clinton’s Excellent Adventure:
Political Development and the Modern Confirmation Process,” ch. 8 in Gillman
& Clayton, The Supreme Court in American Politics.
Week 13: New Institutionalism V -- Law & Doctrine as
Constraint
·
Griswold
v. Connecticut 381 U.S. 479 (1965)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=479
·
Roe v.
Wade 410 U.S. 113 (1973)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=113
·
Planned
Parenthood v. Casey 505 U.S. 833 (1992)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/505/833.html
·
Kahn, Ronald, “Institutional Norms and the Historical
Development of Supreme Court Politics: Changing ‘Social Facts’ and Doctrinal
Development,” ch. 4 in Gillman & Clayton, The Supreme Court in American
Politics, pp. 43-50 & 58-59 only.
·
Kahn, Ronald, “Institutional Norms and Supreme Court
Decision-Making: The Rehnquist Court on Privacy and Religion,” ch.8 in Clayton
& Gillman, Supreme Court Decision-Making, pp. 175-185 & 196-197
only.
·
Clayton, Cornell, “Law, Politics, and the Rehnquist
Court: Structural Influences on Supreme Court Decision Making,” ch. 9 in
Gillman & Clayton, The Supreme Court in American Politics.
Paper Topic 4: What is the relationship between the
attitudinal model and new institutional scholarship? Are the rational choice and historical institutional approaches
compatible? Are they different? Which approach is most useful for studying
public law?
Beyond the U.S. Supreme Court
Week 14: Courts and Social Change I
·
Rosenberg, Gerald N., The
Hollow Hope: Can Courts Bring About Social Change? (Chicago, IL: University
of Chicago Press, 1993). Required: Ch. 1, 2, 6, 12; Recommended: Ch. 3-5 &
7-9; Optional: Ch. 10-11.
Week 15: Courts and Social Change II
·
McCann, Michael, “How the Supreme Court Matters in
American Politics: New Institutional Perspectives,” ch. 5 in Gillman & Clayton, The Supreme
Court in American Politics.
·
Gates, John B., “The Supreme Court and Partisan Change:
Contravening, Provoking, and Diffusing Partisan Conflict,” ch. 6 in Gillman & Clayton, The Supreme
Court in American Politics.
·
Epp, Charles R., “External Pressure and the Supreme
Court’s Agenda,” ch. 12 in Clayton & Gillman, Supreme Court
Decision-Making.
Paper Topic 5: To what extent can and/or should public
law scholars study social change? What are
the obstacles and benefits of doing legal research on social change?
Week 16: Comparative Courts I
·
Epp, Charles R., The
Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative
Perspective (Chicago: University of Chicago Press, 1998). Required: Ch.1-6
& 11; Optional: Ch. 7-10.
·
Epstein, Lee, “The Comparative Advantage,” Law &
Courts. http://www.artsci.wustl.edu/~polisci/epstein/research/compadv.pdf
·
Law & Courts listserv responses to Epstein's article.
Paper Topic 6: Is there an advantage to studying law and
courts comparatively? What are the pros
and cons of such an approach?
Paper Topic 7: What have been the most important successes
of political scientists and court scholars in the public law field? What have been their most serious
shortcomings? In answering this
question you may want to think about how your own research (or future research)
fits into the field.