WHITHER PUBLIC LAW SCHOLARSHIP? AN ASSESSMENT OF AN
ASSESSMENT OF THE FIELD
Malcolm M. Feeley, School of Law, University of
California at Berkeley and Visiting Fellow, Law and Politics Program,
Princeton University (2008-09). Email: Mfeeley [at] princeton.edu.
pp.1092-1097
This review was part of an LPBR
special edition on the Oxford Handbook of Political Science, LPBR
18(12), December 2008.
At the University of Wisconsin, it was the policy – at least in the 1970s
when I was there – for all members of the political science department to
read each others’ annual professional activities reports as part of an
exercise to determine salary increases. I was always awed at how productive
my colleagues were, but I must confess that for a while I tended to be
respectfully dismissive of encyclopedia and handbook entries. This changed
markedly after I’d written my first such entry. I gained a new respect for
the genre. Encyclopedia and handbook entries constitute an art form
requiring much thought and much discipline. Consider: authors are charged
with summarizing and assessing work within an area of specialization. They
must identify the core features of that specialization, succinctly examine
the most salient issues, present the current debates, and point to future
issues. And they must do all this within strict word limits. This poses
immense challenges: one must do more than summarize the conventional wisdom.
One cannot criticize the conventional wisdom without first explicating it.
Similarly, one cannot merely report on latest developments in the field
without first providing an overview of its core. The entry is not like a set
of comments prepared for a roundtable at one of our professional meetings,
where like-minded scholars come together to talk about their latest
research. It is different than all these things. While authors need not aim
to write only for the “general reader” or for the intensely interested
specialist, nevertheless they do write for both of them, as well as others.
Further, while they do not need to write for the ages, they must keep in
mind that someone will be reading their entries and judging them some years
hence--they cannot write the academic equivalent of today’s headlines. And
again keep in mind that at most they only have a few pages in which to do
their job.
In short, a good entry in an encyclopedia or handbook
must be a gem. It must have several facets and each must sparkle. Some
handbooks and encyclopedias are renowned for this quality. My personal
favorite is the 1968 edition of the ENCYCLOPEDIA OF THE SOCIAL SCIENCES,
which I consult as often as I do the more recent edition.
The OXFORD HANDBOOK OF LAW AND POLITICS compares favorably with the best
of this genre. Keith Whittington, Daniel Keleman and Gregory Caldeira are
to be congratulated for assembling a first rate group of contributors who
in combination have put together a wonderful volume. It is a weighty
project in every sense of the word. The book weighs several pounds. It has
forty five separate entries. And as I’ve said, the contributors are an all
star [*1093] cast. The headings, subheadings and titles of entries are
still further evidence of the thought and care that went into the volume.
But of course the real test is the quality of the entries themselves. I
must confess I have not read all 774 pages and all forty five entries
(excluding index and front matter). But I have skimmed and dipped in here
and there – reading most of the essays that are both closest to and
farthest away from my areas of interest, and reading as well the volume’s
four introductory and three concluding essays. I feel moderately confident
in assaying the HANDBOOK as a whole, and in underscoring my conclusion:
the editors and authors have done well for the field. We are in their
debt.
But the question is, how should we approach such an enterprise? Below is
my effort.
The entries in this handbook can serve several quite different functions
for different readers. First, some of them provide a quick survey into
areas that are on the periphery of the reader’s interests; they provide a
convenient way for catching up, at least casually, in areas where we don’t
read the journals. In a discipline and a field that has no obvious
methodological or theoretical core, and draws heavily on work in other
disciplines and fields, this is valuable. Thus for instance, I found Tom
Tyler’s entry on law and psychology, and Chris Tomlin’s article on law and
history, and still others’ entries interesting because they cover areas I
don’t keep up with, but which have relevance to some of my concerns and
some of the central issues in the field.
Second, some of the entries will provide instructors with materials for
class comments, and for me especially in my undergraduate survey course.
Robert George’s essay on natural law is as good a succinct treatment of
the subject as I have ever read. Indeed it is especially valuable since it
is explicitly directed at a law and politics audience. And of course it
has to prick the consciences of the normative selves in all of us who
should search for greater values coherence in our divided selves.
Similarly, although Frank Cross’ discussion of judicial independence is
frustrating in its failure to pin down the subject, nevertheless it is
helpful in cataloguing the many and at times conflicting dimensions of the
concept of judicial independence. I am likely to steal from sections of
his discussion in response to questions about judicial independence.
Similarly, Bryant Garth’s essay on law and globalization will probably be
useful in my teaching in ways I cannot yet even begin to anticipate. The
same can be said for many of the other entries. Christine Harrington’s
discussion of informal justice provides a framework for thinking about all
types of legal orderings.
A number of entries are likely to be useful in work with students at
opposite ends of their educational experience: new graduate students (and
advanced undergraduates) at the one end, and advanced graduate students
preparing for qualifying exams at the other. The same essay can serve
different functions for both these quite different groups, an introduction
to students unfamiliar with the field, and synthesis for advanced
students. A student new to the topic can read an essay to get his or her
bearings [*1094] before diving in to the field in depth, beginning in all
likelihood with some of the materials cited in the essay itself. An
advanced student can profit not so much by gaining new knowledge but by
learning how to synthesize, how to break down a topic into constituent
parts, how to relate it to allied issues, and how to identify some of the
major continuing issues in the field. Indeed, some of the HANDBOOK’s
essays can serve as model answers to prelim questions.
As I said, I’ve not read all the essays in the volume. But I did read the
editors’ long introduction in Part I, the three essays in Part II
(Approaches), and the three essays in Part X (Old and New). Since they
frame the contributions in the large middle section of the volume, I want
to offer some brief comments on these bracketing essays. Whittington,
Keleman, and Caldeira do a wonderful job of summarizing the range of
concerns in the volume, and thus the field. They recognize that our field
is eclectic and needs to be tolerant as to both scope and methods. Indeed,
they embrace an expansive view of the field, and identify contributors and
topics that I suspect many others, less imaginative or gracious, would not
have included in the HANDBOOK. (One indicator of this: by my rough count
over a third of the contributors have no training in political science and
have never held appointments in political science departments.
Nevertheless, their entries are strong and clearly speak to our interests,
as measured by the range of courses we teach and the range of articles and
books we publish.) This expansiveness speaks well of the editors’
judgments. Their decision to invite such a range of contributors also
reflects two other factors: the “law and . . .” enterprise has had a
significant impact not only on the periphery of our field but on its core
as well; and it reveals that at long last law professors are paying
greater attention to the work of political science public law scholars.
Nice.
All three of the essays, in Part II, “Approaches,” are models of coverage
and clarity. Jeffrey Segal does a wonderful job explaining the main
tenants of the attitudinal model. Furthermore, he engages meaningfully
with the strategic model as it applies to the U.S. Supreme Court in a way
that advances understanding and scholarly debate. Similarly Pablo Spiller
and Raphael Gely summarize the main features of the newer strategic
approach based on rational choice models of the judicial process. Although
they too focus on the U.S. Supreme Court, they move beyond it to consider
courts elsewhere, and indeed it may be that the strategic model has more
power elsewhere, where high courts are not so well institutionalized and
secure. Indeed, the essays by Segal and Spiller and Gely nicely engage
each other. Anyone wanting an introduction to the two areas they discuss
would be well served if they were directed to these essays. The excellence
of these essays clearly reflects the erudition of the authors, but I
suspect the mutual engagement also reflects encouragement by the editors
as well. (One small criticism of the volume: it would have been nice to
see more mutual engagement in other contributions. But this would have
required authors to submit their contributions well before deadline.
Heaven forbid.)
Rogers Smith’s “Approaches” essay is in a special class. More than any
other [*1095] single person in recent years, he is responsible for
creating the new and important sub-subfield in the law and courts area,
historical institutionalism and the law. He has connected the dots among
constitutional history, doctrine, the Supreme Court, American political
history, and the revived interest in institutions (the new
institutionalism) in political science and sociology more generally. This
essay is likely to place this new subfield on an even more secure footing.
Indeed, it reveals the constitutive power of a label; give an inchoate set
of ideas a name, and it becomes a “project.” Subsume a group of diverse
writing under the label and you have a subfield. This is a wonderful
development. It returns the study of law and politics to its roots. The
study of law, legal institutions, legal regimes, and legal systems has
traditionally been anchored in historical and institutional and
comparative analysis that seeks to address big social science issues –
variation across time and across location. This development is a nice
supplement to judicial behavior studies, which has in recent years
occupied a great deal of the field’s attention. Although judicial
behaviorists claim to be markedly different than the legalistic law
professors whose approach they ridicule, nevertheless much of their work
is something of a reflection of conventional legal scholarship. Like their
law professor counterparts, judicial behaviorists focus, almost
exclusively, on the handful of split decisions in relatively recent U.S.
Supreme Court cases in order to divine their own form of explanation. Of
course this is a legitimate enterprise; social science ought to be about
accounting for variation, and in my view judicial behaviorists do a
convincing job of explaining why Supreme Court justices vote as they do.
But the US Supreme Court is a highly atypical “court,” and legal decision
making is everywhere. Historical institutional analysis promises to be
much more expansive. Further, it too is interested in accounting for
variation, but of a much more dramatic sort--variation across time and
regime (and comparative historical analysis promises even more), and how
issues emerge before a court, as opposed to how judges on one court vote
once issues get to their doorstep. Smith’s essay points the way towards a
more theoretically rich, if methodologically messier, agenda for public
law scholarship. Although framed in terms of current developments in
American political science and sociology, its vision is certainly not
limited to this. Indeed, in scope and method it harkens back to work in
sociological jurisprudence and some of the classical concerns of
nineteenth and early twentieth continental and English legal history and
comparative law, and to Weberian-inspired social science more generally.
The three “approaches” essays are interesting for still other reasons.
Despite all the good things I’ve just said, in some ways there is a
disconnect between the “approach” chapters and the remaining thirty nine
topical essays. Many don’t fit comfortably within any of the approaches.
This suggests that the scholars in our field have not waited for
theoretical “approaches” to be developed before striking out on their own
agendas. And of course it reflects the eclectic nature of our field. Still
it is puzzling that there is not more of a connection. One reason may be
the lack of breadth of the approaches chapters. All the references cited
in Segal’s Approach [*1096] essay focus exclusively on American courts,
and most of them on one court, the U.S. Supreme Court. This suggests that
this approach is successfully used to explore some of the behavior of a
handful of justices on a particularly distinctive – unique? – institution.
Yet none of the subsequent essays, except Spaeth’s, really builds on or
elaborates this approach in any sustained way.
As the newest subfield, it is not surprising that only a handful of the
subsequent essays in the volume build in any explicit way on the
historical institutional approach. Still the themes of several of the
essays are compatible with it (among them, the essays by Ginsburg,
Hirschl, Alter, and most especially Whittington, Graber, Gillman, and
Harrington). If this approach has the potential that I think it does, one
would expect that entries informed by a historical institutionalist
approach will feature prominently in the next HANDBOOK OF LAW AND
POLITICS. Also, almost all of the works cited in Smith’s ambitious essay
deal with American subjects, yet as I suggested above, this approach has
obvious implications for comparative research, as the author himself
acknowledges.
Interestingly, it is Spiller and Gely’s discussion of rational choice
models, which are often accused of being overly narrow, that is most
cosmopolitan. Although they too draw mostly on work about American
institutions, their essay has a higher proportion of references to
research on non-American institutions (clearly a growth area of our field)
than do the other two “Approaches” essays. Also, by my count some
appreciation of the strategic approach informs the discussions in a high
proportion of the entries in this volume (roughly one third), and
especially of those entries that extend coverage beyond law and politics,
see e.g., Shapiro, Chavez, Ginsburg, Vanberg, Hirschl, Scheppele,
Rodriquez, Garrett, Yaloff, Epstein, Haire, Cross, Rose-Ackerman, and
Kornhauser.
Still, for the long term I would bank on historical institutionalism and
the law, especially since it has begun to find ways to incorporate some of
the more provocative insights of rational choice models of the sort
suggested by the works of John Ferejohn, Barry Weingast, Oliver
Williamson, Douglass North, Mark Ramseyer, Martin Shapiro, Lee Epstein,
Keith Whittington, and still others, which are discussed in various
different places in the volume.
Before concluding let me say a few words about the three final essays.
They are all written by grand old men in the field (the next edition of
the HANDBOOK most certainly will have a grand old lady). Both Scheingold’s
and Spaeth’s essays offer views of the profession from their many many
years in the profession and their distinctive (and distinctively
different) perspectives. Graduate students should eat them up. They get
two smart people looking back and reflecting on their careers and the
intellectual passions that animated them. They should be so lucky as to
have such engagement in their work after long careers. The essays are all
the more valuable because they are personal reflections. Good stuff.
Martin Shapiro’s essay is more didactic. Always the one to look for the
teaching moment, Shapiro takes advantage of the forum to point out that if
in our field, we [*1097] claim to be interested in “law,” there is a lot
more law in a lot more places than we choose to look. Similarly, he says,
if we claim to be interested in courts, we have made a great mistake to
focus so much of our attention on the most distinctive if not unique forms
of courts and ignored other important courts, and especially court-like
institutions that are part of the administrative process. Still, Shapiro
must be pleased with the entries in the HANDBOOK. It seems to me that the
range of entries nicely reflects his concerns about the breadth of the
field.
I feel obliged to offer a conclusion, some sort of wrap-up, to this
rambling essay, so here it is – my suggestion as to what to do with the
volume: Get your department to order the volume – or if you can afford it,
order it yourself. When it arrives, place it on departmental reserve and
invite public law graduate students and would-be public law graduate
students to read it. Arrange a schedule; select two or three essays at a
time, and meet in the student lounge to discuss them. Eventually work your
way through most if not all of the volume. It should be a rewarding
experience not only for the students but for you as well. What you can do
in this process is what the authors of the entries did not do enough of –
engage the different entries with each other. You might be able to come up
with some speculations that could lead to some nifty student paper topics
if not research projects. What happens when the attitudinal model meets
trial courts? Non-American courts? Courts with no tradition of dissenting?
What happens when the strategic model meets historical institutionalism?
What happens when American concerns with race, gender and courts meet
non-American courts or their alternatives? What if any are the
implications of the dramatic recent shifts in the roles of constitutional
courts in Eastern Europe and the former Soviet Union for the understanding
of American judicial institutions? What does the study of Latin American
supreme courts suggest about the study of the American Supreme Court?
After reading the entries of Bryant Garth and Christine Harrington, wither
courts? The combination and permutation of the various ideas in the
entries invite a host of interesting possibilities.
You get the idea.
© Copyright 2008 by the author, Malcolm M. Feeley.