POLS 510  Seminar: Judicial Politics

Spring 2004 T 3-5:40 DU 466

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

 

Week 6: Behavioralism: Attitudinalists

 

·        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.