Vol. 5 No. 2 (February, 1995) pp. 65-67
JUDICIAL PROCESS IN AMERICA, 2d ed., Robert A. Carp and Ronald
Stidham. Washington: CQ Press, 1993. 421 pp. paper $27.95
Reviewed by Mark Silverstein, Department of Political Science,
Boston University
THE JUDICIAL PROCESS IN AMERICA (2 ed) by Robert A. Carp and
Ronald Stidham is a solid entry in a growing array of books
intended as the principal text for undergraduate courses in
judicial process and behavior. Stressing the impact of the courts
on the policy making process, the authors provide a comprehensive
and thorough introduction to the American judiciary. Indeed this
is an exhaustive text and any instructor is certain to find
substantial portions of the book eminently usable regardless of
his or her particular theoretical perspective. The
student-reader, however, might beg to differ. This text covers
(almost) every aspect of the judicial system in depth and the
sheer weight of detail (coupled with the authors' penchant for
"typing" and subdividing) works on occasion to obscure
the larger themes. I suspect that even the more resolute of
undergraduates might, at times, become discouraged with this
text. Nevertheless, despite this and a few other reservations, my
general assessment is that this volume merits careful
consideration, particularly if one is looking for a text with a
primary focus on the federal courts and a feel for the impact of
courts on public policy.
Chapter one, "Foundations of Law in the United States,"
is a short and somewhat cursory look at the sources and types of
law in the United States. The strengths (and, alas, the
weaknesses) of this volume soon become apparent in chapter 2,
entitled "History, Function, and Organization of the Federal
and State Judicial Systems." On one level, this is a
remarkably rich and wide-ranging introduction to the court
systems. From another standpoint (perhaps that of the neophyte
student of the judiciary) this chapter might be seen as so dense
and crammed with material as to be beyond reasonable
comprehension. For example, the student in the space of
approximately 10 pages must digest a discussion of the early
history of the U. S. Circuit Courts, a description of the
appellate function (in which the authors dedicate a paragraph to
each of the following "types" of appeals: ritualistic,
frivolous, bureaucratic, consensual and nonconsensual) and then a
brief examination of the courts of appeals at work. A similar
analysis is applied to the U.S. Supreme Court, the federal
district courts as well as to the state court systems. It is, to
say the least, a very thorough summary; indeed perhaps so much so
that the typical undergraduate might become so snarled in detail
that some of the basic themes -- e.g. the differences between
trial and appellate courts, the distinction between the state and
federal system -- might well be lost.
Chapter 3 deals with the administrative and support staff and,
while I would skip this chapter in my judicial process class,
others that find such material appropriate for undergraduate
study will find this chapter thorough and informative. Chapter 4
combines a discussion on lawyers, litigants and interest groups.
This is one of the few instances where the authors appear to
short-change the topic. Personally I would prefer a separate,
more complete chapter on lawyers simply because the would-be
attorneys that make up the majority of my
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students find discussions of law school and the actual practice
of law endlessly fascinating. Moreover the material on interest
groups seems out of place and might be better located at the end
of the book where the authors focus on the courts and public
policy. Chapter 5, entitled "Jurisdiction, Work Load and
Policy-Making Boundaries of Federal and State Courts,"
provides a review of the jurisdiction of the various Art. III
courts as well as a general discussion of the work load of the
state courts. The chapter also includes an interesting section on
judicial restraint, discussing some of the rules of
justiciability and comity that limit the power of the federal
courts to influence public policy.
Chapters 6 and 7 detail the criminal and civil processes. Once
again, the authors opt for more rather than less with
inconsistent results. One might reasonably question, for example,
whether it is carrying the public policy orientation of the text
a bit far for the authors to list and to describe five
"types" of crime -- conventional, economic, consensual,
organized and political -- sorted according to their public
policy implications. When the authors do illustrate the actual
criminal or civil process, however, the text shines. Here the
material is presented in a tightly organized fashion with just
the right mix of details and examples. The same can also be said
for the next chapter on federal and state judges. The expected
material on judicial selection and socialization is all here but
the authors also include a section that attempts to illustrate
the policy implications of appointments to the federal courts as
well as the linkage between who is in the White House and who is
selected to serve on the federal bench.
The final four chapters highlight the policy orientation of the
text. A rather lengthy chapter on the "Decision-Making
Process" includes an informative section on how judges
accommodate extra-legal factors into the decision-making process
or, in the words of the authors, how judges "have learned to
bend when the democratic winds have blown." (283) A chapter
on the special case of collegial courts follows, documenting the
various models developed by social scientists for studying
appellate courts. The text concludes with a chapter on the
implementation of judicial decisions and a short concluding
chapter that refocuses attention on policy making by American
judges.
My criticisms of this volume run in contradictory directions. On
the one hand, I believe readability (particularly for
undergraduates) has in several instances been sacrificed to an
almost encyclopedic approach to the material; the volume could be
cut in length by probably 20% without any significant impact on
its value as a comprehensive teaching tool. On the other hand I
find a judicial process text that dedicates nary a paragraph to a
direct discussion of the adversary process to be sadly lacking.
The adversarial approach is a fundamental tenet of the American
judicial process and the failure to discuss its nature and values
(as well as modern calls for its reform) detracts, I believe,
from the overall merit of this text. Secondly -- and this
criticism is perhaps directly related to the absence of any
extended discussion of the central precepts of the adversary
process -- the book suffers from a complete lack of comparative
analysis. One could read this
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text -- as I suspect some students will -- firm in the belief
that every legitimate judicial system must share the same
attributes as the American system. The absence of any alternative
perspectives on, say, the role of lawyers or the function of the
judge is a serious omission.
These criticisms notwithstanding I repeat my initial conclusion:
this book merits serious consideration for use in any course
studying the judicial system. The introductory text is not aimed
at a market that seeks daring innovation and creativity and
Professors Carp and Stidham can hardly be faulted for failing to
stretch the genre. I am confident that anyone teaching in the
field will feel quite at home using this text.