Vol. 17 No. 11 (November, 2007) pp.811-813
COURTS AND JUDICIAL POLICYMAKING, by Christopher P. Banks and David M. O’Brien. Upper Saddle River, New Jersey: Prentice Hall, 2008. 384pp. Paper $55.60. ISBN: 9780131443495.
Reviewed by Helena Silverstein, Department of Government and Law, Lafayette College. Email: silversh [at] lafayette.edu.
If you are looking for a new textbook for your undergraduate judicial process or law and politics course, consider COURTS AND JUDICIAL POLICYMAKING. Readable and well-organized, this text provides an overview of legal processes and judicial behavior, framed by social science and presented from the perspective of courts as a policymaking institution.
Divided into four parts, the text traverses a wide range of material that will be useful for students being introduced to the field of judicial process and politics. Authors Christopher P. Banks and David M. O’Brien open with a discussion of “The Nature of Law,” reviewing the multiple foundations of law, varying legal systems, and divergent jurisprudential approaches. Part II takes up the organization and operation of the courts, including, for example, the administration of the judiciary and the politics of judicial selection and retention. Part III, entitled “Influences on Judicial Access and Decision-Making,” covers the legal profession, barriers to the courts, the adversarial system, and criminal and civil procedure. Part IV concludes with an analysis of judicial policymaking, treating appellate processes, statutory and constitutional interpretation, and the impact and limits of judicial power.
COURTS AND JUDICIAL POLICYMAKING is, by and large, a text that introduces students to the nuts and bolts of the judiciary, focusing primarily on the United States. As such, the book distinguishes between such things as state and federal courts, trial and appellate courts, civil and criminal procedure, civil and common law, and preliminary hearings and grand jury indictments. It covers such subjects as standing, ripeness, mootness, plea bargaining, jury nullification, and alternative dispute resolution. It reviews the path from the trial court through the appellate court system to the US Supreme Court, incorporating discussions of agenda-setting, oral argument, judicial conferences, the role of law clerks in opinion writing, and the influence of amicus briefs.
Though the text is familiar and in many ways comparable to other judicial process texts, the social science and policymaking framing of COURTS AND JUDICIAL POLICYMAKING comes through in multiple ways. Notably, Part IV – aptly titled “Judicial Policymaking” – incorporates a review of alternative approaches to studying judicial behavior. Here the authors explain the attitudinal model, new institutionalism, strategic choice theory, and traditional legal reasoning theory. Part IV also includes a discussion of judicial compliance and impact, [*812] covering, among other things, a review of scholarly debates about whether the courts produce social change.
In addition, social science research informs the entire body of the text. Whether citing Herbert Kritzer’s conclusion that “corporate legal practice has become a world of change and turmoil” (quoted on p.182), or William Haltom and Michael McCann’s study of civil litigation and tort reform (p.261), or Malcom Feeley and Edward Rubin’s JUDICIAL POLICYMAKING AND THE MODERN STATE (p.325), the authors pepper the text with the findings of social science and public law scholarship. Students will thus end up not only with a sense of how the judiciary operates and the contested interpretations of that operation, but also with the scholarly enterprise that is public law. Since the text is well documented both with endnotes and lists of selected readings, students will know where to go to further their studies.
While the authors’ treatment of judicial processes and politics centers on the United States, most of the chapters include segments covering comparative law. At first glance, these discussions appear as if they are incidental gestures at understanding law in a global context, separated as they are from the main text in shaded boxes and presented under the heading “In Comparative Perspective.” But the segments present an array of topics on judicial processes outside the United States to which the authors provide substantive review. For example, the authors include an extended discussion of judicial careers in Japan in the chapter on judicial selection and retention, a similarly extended review of jury systems around the world in the chapter on criminal procedure, and a lengthy review of courts in South and Southeast Asia in the chapter on court structure.
The authors include in Chapter 10 a segment on “The European Court of Justice and the Globalization of Judicial Power” that marries their social science emphasis with a consideration of comparative law and, more generally, illustrates their approach to this text. After describing the organization and operation of the European Court of Justice, the authors provide an overview of competing explanations for the development of the Court’s power of judicial review. The authors then draw on legalist, neorealist, neofunctionalist, and intercourt competition explanations to illuminate the types of theoretical approaches adopted by social scientists and how these approaches inform global analyses of law and politics.
Two other features of this text are worth highlighting. First, the authors seem to know that their primary audience will be the undergraduate student, who may or may not come to the study of law with the eagerness of a public law scholar. Whether or not designed to entice the typical undergraduate in a judicial politics course, the authors do include material that will likely peak students’ interests.
Chapter One, for example, begins this way, with a story of sex, the police, and the Constitution:
In the late evening on September 17, 1998, deputies from the Texas Harris County Sheriff’s department went to John Geddes Lawrence’s apartment in search of an armed intruder, who was reportedly “going crazy in the [*813] apartment.” What they found, instead, were two men, John Geddes Lawrence and Tyron Garner, engaging in consensual sodomy, a misdemeanor under Texas’s law that penalizes “deviate sexual intercourse with another individual of the same sex.” (p.1)
This story, now familiar to most who study law in the US context, begins the chronicle that would result in the Supreme Court’s 2003 ruling in LAWRENCE v. TEXAS, a decision overturning Texas’s same-sex antisodomy statute on due process, privacy, and equal protection grounds. And Banks and O’Brien effectively use this case and others throughout the text as both hooks and examples.
Second, the authors include segments throughout the text, entitled “Controversies over Courts,” to detail various debates in law and judicial process. Like the sections on comparative law, these are separated from the main text in shaded boxes, and one wonders whether such segregation may lead students to think they are less important, despite the “Controversies” marker. Still, they are substantive and relevant pieces that work to build upon the body of the main text. In several instances, the authors rely on excerpts from primary sources to illuminate these disputes. For instance, the debate over different approaches to constitutional interpretation is given voice not only through the authors’ own treatment of the subject but also when they turn to Justice Antonin Scalia’s words on originalism, Justice Thurgood Marshall’s comments on the Constitution as a living document, Justice William Brennan’s comments on the Constitution’s aspirations to social justice, and Justice Stephen Breyer’s remarks on pragmatism.
In the end, COURTS AND JUDICIAL POLICYMAKING is a textbook and should be treated as such. It will likely prove more fitting in judicial process and law and politics courses than in introductory courses on law and society. Moreover, it has some of the typical shortcomings of an introductory text, most notably an emphasis on breadth over depth. But there is nothing unusual in this. Supplemented by primary sources, this text provides an attractive option.
Feeley, Malcom M. and Edward L. Rubin. 1997. JUDICIAL POLICYMAKING AND THE MODERN STATE: HOW THE COURT REFORMED AMERICA’S PRISONS. New York: Cambridge University Press.
Haltom, William and Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago: University of Chicago Press.
Kritzer, Herbert M. 1998. “The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World,” 33 LAW AND SOCIETY REVIEW 713-759.
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
© Copyright 2007 by the author, Helena Silverstein.