Vol. 1, Number 3 (May 1991) pp. 43-49

THE AMERICAN COURTS: A CRITICAL ASSESSMENT by John B. Gates and Charles A. Johnson (eds.). Washington, D.C.: Congressional Quarterly Press, 1990, 534 pp..

Reviewed by Malcolm M. Feeley, University of California, Berkeley

AMERICAN COURTS is a collection of essays by distinguished judicial process scholars which reviews and assesses current research on the judicial process. The essays were specially commissioned for this volume and follow a common format; they begin with a review of current theoretical issues in the litera- ture, then summarize and assess the central findings of empirical research, and conclude with a discussion of future research needs. The result is a fairly comprehensive assessment of the central issues in the judicial process field. In this review I will briefly summarize the central concerns of each of the contributors in this volume, and then offer some observations on how they all add up.

The seventeen essays (eighteen including a concluding essay by Gates), are grouped in five parts, each organized around a central research issue in the field. Part I consists of five essays on judicial policy making, each examining a different set of courts. The lead essay in the volume by David Adamany exam- ines the tensions between judicial review and representative government. He raises and rejects the standard defenses of judicial review in terms of the Court's role in protecting minority rights and conferring legitimacy on policies made elsewhere, and then goes on to defend an interpretation of the Court's role as a policy making body, "a powerful lawmaking department, behaving much like a legislative body, and without substantial intellectual justifications for its sweeping exercise of the power of judicial review" (p. 23).

Other essays in Part I provide critical assessments of the policy making of other courts. Donald Songer examines the federal circuit courts of appeal, and discusses the shifting nature of their business (from private to public law issues), and argues that the judges on these courts have greater discretion to impose their own policy preferences than is suggested by the low rates of dissent. C.K. Rowland examines the research on federal district courts. He emphasizes the vast discretion trial courts have in managing facts, interpreting upper court policies, and issuing and implementing remedial orders in complex cases. He also notes that quantitative studies tend to support the position that judges impose their personal policy preferences in decision making while qualitative research supports a more traditional legal view that judges "apply" rules. He concludes by outlining a research strategy that would integrate these competing and contradictory approaches. Henry Glick reviews the sparse litera- ture on state supreme court policy making, and in the light of the continuing and now not-so-New Federalism, examines expanding policy making role of state supreme courts in judicial review. His essay contains two mini-case studies that nicely illustrate the role of these courts. Lynn Mather's review of state trial courts rounds out Part I. In a three part essay, she first examines and rejects the view that trial courts are norm

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enforcers not policy makers, argues for a broad notion of policy making as "a pattern of impact created by the aggregate of decisions made by these who implement general principles," and then makes the case that trial courts are important policy makers. She then illustrates her view with two mini-case studies of trial court policy making.

Part II consists of two essays on judicial selection. Charles Sheldon and Nicholas Lovrich explore implications of different modes of selection based not upon formal institutional differences but by the scope of involvement by bar associations, attorneys, voters and others in the recruitment and selection process. They then assess implications of these differences in light of democratic theory and the selection of women and minori- ties. Sheldon Goldman profiles federal judges appointed by the past several presidents and shows how the differences are related to the president's agenda and constituency.

Part III consists of three essays on judicial decision making. Herbert Jacob's lead essay examines trial courts; he argues that courts must be understood as organizations not simply individual judges, and that political scientists have been preoccupied with criminal to the exclusion of civil matters before the courts. Both arguments are eminently sensible and persuasively argued. Following the adage that whoever frames the questions dictates the answers, H.W. Perry examines the agenda setting of the U.S. Supreme Court. Noting that this Court has vast discretion to decide what cases and issues it wishes to decide, he reviews the work to date in this area, points out its inconsistencies and shortcomings, and outlines an agenda for future work. The third essay in Part III, by James Gibson, deals with federal appellate courts. His essay identifies both micro and macro factors that affect judicial decision making in these courts, and concludes with a call for a more integrated and theoretically sophisticated model of decision making.

Part IV consists of five essays examining "Courts and External Pressure." Wayne McIntosh draws on the recent litera- ture on the longitudinal studies of courts to show how issues before and outcomes of courts over time reflect socioeconomic changes. Gregory Calderia explores public opinion and the courts, examining the twin issues of how public opinion affects judicial decision making and how court decisions affect public opinion. In a pair of chapters Lee Epstein and Jeffrey Segal examine recent literature on courts and politics. Both ask, what influence do various groups have on the courts. Epstein charts the importance of interest groups in getting before the courts and their successes, and Segal examines the influence of legisla- tures and executives as the shape the nature of the judiciary and bring issues before the courts. William McLauchlan reviews some of the literature on the "litigation explosion," and explores its implications (delay, costs, rise of alternatives).

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Two essays in Part V explore "policy impact and innovation." Lawrence Baum reviews the sparse literature on doctrinal innova- tion and how it is diffused across courts.Drawing on his book with Charles A. Johnson, Bradley Canon reviews the development of Supreme Court impact studies and offers a framework of research typologies and theories. In so doing he sets forth a clear research strategy.

The concluding essay by editor John Gates takes stock of the materials covered in the volume. If Gates' concerns were summa- rized in a single question it would be something like this, "How does all this research add up in terms of theory and method?" And he would make four points in response: l) theory construc- tion has increased in recent years but lags behind other areas of political science; 2) research emphasizes the unique and ideographic character of courts to the neglect of more general theories; 3) despite this there have been some valuable theoreti- cal contributions in the field; and 4) the field is fragmented among those interested in normative questions, those pursuing qualitative research, those pursuing quantitative research, and those interested in theory construction.

Gates concludes his essay with a somewhat skeptical assess- ment of what March and Olson have labeled the "new institutional- ism," and a perspective that Rogers Smith has used in a recent APSR article to assess and judge pretty harshly research in the judicial process field. This perspective does not view politics -- including judicial politics -- solely or perhaps even primari- ly in terms of the clash of interests. Rather it treats such conflict as "surface" practices, and seeks to understand practic- es and policies in terms of "deeper" structures and institutional arrangements that may amplify or muffle the voices that seek to rise to the surface. Drawing on Smith's APSR essay, Gates argues these deeper structures and traditions -- institutions -- are often ignored or treated as givens or background factors by scholars and that they should be brought to the fore. Apprecia- tion of their importance in framing public choices and policy making is "the new institutionalism." However Gates has mixed feelings about the new institutionalism as applied to the judi- cial process. On one hand he values the emphasis with broader concerns and "deeper" structures, but on the other he thinks that it might simply lead to more historical and descriptive research whose effects are not cumulative or even meaningfully theoreti- cal.

I now turn to ask, what does all this add up to? And my response is two-fold. First I want to offer some reflections on the potential audience for the book, and then I want to address the substantive concerns of some of the authors.

Both by virtue of who published the book, Congressional Quarterly Press, and the authors' own stated intent, the book is designed for use as an undergraduate text in judicial process courses. However,

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I am not sure how useful it will be for undergraduates. Although the essays cover a lot of ground that is and should be covered in an undergraduate course, this ground is covered very quickly. The authors were charged with reviewing the literature, and do a comprehensive job of it. But in order to cover this ground, they must run rather than saunter. Their's is a swift reconnaissance better suited for researchers who are concerned with major landmarks, big issues, and problematic places, than for tourists on an introductory journey. My hunch is that undergraduate instructors will want to cover many of the topics addressed in this book, but will prefer to have students read representative samples of the studies under consideration rather than these syntheses and critical reviews of entire areas. However those who teach in this area will find the essays to be intelligent discussions of major issues in the field, and that the essays will provide the basis for a number of their lectures.

In contrast, graduate students in public law are likely to find this volume extremely useful. They will be familiar with much of the research discussed in the essays and thus be able to assimilate the vast amount of material so briefly discused. More generally they are likely to resonate to the informed and sensi- ble discussions of approach, method, techniques, and theory that are central to most of the essays.

Still several of the essays are eminently suitable for undergraduates. David Adamany's essay on judicial review and democratic theory is a gem. I don't think anyone can find a better short essay on the subject. And some other essays combine a critical assessment of a topic with a sustained case study or analysis to illustrate some of their central points that under- graduates can sink their teeth into. Lynn Mather's and Henry Glick's essays come to mind here. Despite this I believe that the real market for the book is graduate students.

More generally, what does this collection tell us about the field? I think the essays in AMERICAN COURTS do a good job in synthesizing research by political scientists in public law. And this, of course, was its stated intent. However I cannot help but believe that field would be improved if it were less disciplinarily parochial. Ironically one of my concerns about the value of a more interdisciplinary perspective here is that it would have better illustrated the political nature of courts in American society. Despite the fact that all the essays insist upon the policy making functions of courts, they nevertheless sleight research in other disciplines that examines such func- tions, especially court-induced changes in the common law. Although courts are not autonomous and do not act unilaterally, nevertheless they took the lead in revolutionizing many areas of the law in the nineteenth century and again in the twentieth. Developments in torts and contract come most readily to my mind. Similarly they led the due process revolution of the l960s. And even more recently judges have shifted the ways they sentence in criminal

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cases, and it is these changes, not legislative get-tough policies, that have led to a doubling and tripling of the prison population in the United States. All these policies have had a dramatic impact on social and political life in America, but none of them is examined at any length.

Let me hazard some guesses as to the reasons why. Most of the research in the field, like most of the essays in this book, are studies about individual courts or types of courts. Social science is largely about studying variation, and variation in this field is generally understood as variation among judges (usually appellate judges on the same court). Little of it is concerned with variation across time, and especially broad spans of time. (I acknowledge that several contributors to this volume do in fact embrace a broader perspective, but on the whole most do not, and the reason is, I think, quite simple, research in the field does not.)

This focus may be driven by methodological concerns. Empiri- cally oriented public law scholars are good methodological individualists, so it is the behavior of individual judges they study. Understandably they are less comfortable studying "courts" or "the law." Yet many of the most important policies developed in the courts have occurred in almost imperceptibly small steps, without much if any public debate or even central direction or even identifiable "big" decisions. One should not mistake the autonomy -- or the semi-autonomy, or more simply the quiet pervasiveness of the legal process and shifts in it -- as the application of neutral or nonpolitical principles. Indeed the low visibility of the judicial process and the myth of the objectivity of "law" are factors in accounting for why courts are granted such deference, judges are such powerful political actors, and why law is such an important web of social control. To emphasize marginal differences among judges on the same courts, inter-circuit differences, and the occasional big case may cause us to miss the more pervasive political nature of courts.

Another partial explantion is that the judicial process subfield is precisely that a subfield about the judicial process, the study of the organization and operations of the judiciary. In this sense organization theory is the proper theoretical paradigm since central to this paradigm is a concern with how institutions organize to maintain themselves, i.e. how they develop standard operating procedures to process routine work expeditiously, adjust to the interests of the central figures in the organization, and adapt to and reflect their larger environ- ment. Although as Herbert Jacob's essay indicates few studies embrace organization theory systematically, nevertheless most of the essays in this volume -- and most of the research in the field -- address organization theory-like issues, internal organization, pressures to conform to institutional norms, recruitment and socialization of judges, adaptation to a shift- ing environment, and the like. And although there continues to be research on the behavior of individual

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judges which views their decisions as the consequence of person- al values, the field has tended to drift from a focus on individ- ual behavior to embrace a broader understanding of courts as organizations. Organization theory, implicitly or explicitly, now frames much of the work in the field.

There is, however, another paradigm that in my view should be embraced. It is social theory, a perspective that would ask in the context of the law and politics field, what are the social functions of courts? This perspective is not wholly foreign to the field. In a sense it is little more than a self-conscious elaboration of the concerns of those whose interest lies in the impact of or compliance with court rulings. Furthermore there is a substantial body of research that addresses these issues.

Some readers of this review might respond to my concerns by arguing that if taken seriously, it would lead to vague histori- cal narratives rather than theoretically driven social "science." If so, let me respond in advance by pointing to some substantial bodies of research that address issues of the social functions of courts that have been ignored in this volume and by those in the field generally. This work in my view addresses both "big" theoretical issues and is rigorous social science. Within the past twenty years there has been a boom in law and economics, and most of this work has focused on judicial policy making. Indeed nearly the entire field of law and economics is devoted to the propositions that judges seek to maximize social utility in their decision making and that one can understand the judicial process and innovations in judge-made law in these terms. Indeed in chapter twenty three of the first edition of his widely read, LAW AND ECONOMICS, Richard Posner argues that judges are better policy makers than legislatures. In this discussion he takes for granted that judges make important political decisions; his concern is to convince us that courts do a better job than legislatures. Despite its use of high-powered empirical theory, quantitative methods, and the fact that it asserts that judges do not "follow" the law but seek to maximize policy preferences, the economic analysis of judicial decision making is ignored in this volume. Similarly, COURTS, the most important book by the field's most important scholar, Martin Shapiro, is entirely ignored. Although Shapiro's informal remarks about developments in the field are cited by many of the contributors, no one commented on the audacious theory put forward in this book, which holds that all courts -- everywhere and at >

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