SOLVING THE PUZZLE OF INTEREST GROUP LITIGATION by Andrew Jay Koshner. Westport, CT: Praeger Press. 132 pages. Paper $52.95. ISBN 0-313-30583-8.

Reviewed by Gregg Ivers, Associate Professor of Government, School of Public Affairs, American University.

In reading Andew Jay Koshner's SOLVING THE PUZZLE OF INTEREST GROUP LITIGATION, I was reminded of a piece of advice that an old professor once told me: "It's true a good dissertation is a done dissertation. But remember, a done dissertation is not always a good book." Although not for lack of effort or seriousness of intent, I am afraid that Koshner's book falls into that category. At almost every turn, I felt like I was reading a hurried dissertation draft put together to meet a deadline. The signs are all there: easily detectable factual errors and inconsistencies, jargon-laced prose, repetition, a tendency to assume facts not in evidence, excessive and often pointless tables and charts and a misplaced sense of grandiosity about the entire enterprise. Had Koshner framed his research question more narrowly and investigated it more thoroughly, he could have made a real and welcome contribution to the literature on interest group use of the courts. As such, we are left with little more than some useful summaries of secondary materials.

First, there is the puzzle of SOLVING THE PUZZLE. Koshner asserts that he is going to do more than simply document and describe the rise of interest group litigation. He is going to explain why interest group use of the courts has increased in the modern constitutional era, a feat that no previous scholar working in the field has attempted to do (p. 1-2). Rather than explore this ambitious question by analyzing the participation of all groups in all cases, Koshner has focused upon organizations involved in church-state litigation before the U.S. Supreme Court. Right off the bat, then, we have a conceptual problem. Koshner is going to solve a puzzle, but has chosen to study only one of its pieces. He claims that "the selection of these cases allows for an extensive examination of an entire body of constitutional doctrine, so that any sampling problems can be avoided" (p. 5). Sample of what? That isn't explained and it never becomes clear.

Koshner selects fifteen possible "suspects" as responsible for the rise of interest group participation in church-state litigation, seven of which are "Court suspects," four of which are congressional and executive branch "suspects," and five more "suspects" that come from the groups themselves. Through a process of elimination, Koshner concludes that some "suspects" are more culpable than others. For example, judicial activism, doctrinal shifts, Court "dissensus," Solicitor General involvement, membership pressure within groups and congressional legislation all contribute in some form to increased interest group participation in church-state litigation. But we do not learn how much or in what proportion, a disappointment in light of Koshner's claim that his is the "first empirical analysis of the rise in interest group litigation" (p. 99).

By the close of his book, Koshner qualifies many of the assertions he offers up front. More research is needed, as church-state litigation may not reflect other fields. Other factors not within the scope of his study need consideration as well, such as the role of the U.S. Department of Justice and the possible influence of foundation grants as determinants of group behavior. Koshner concludes that the Justice Department's involvement deserves special attention as a result of the response he received from the groups he identified for investigation in his study. His survey "reveals a close working relationship between interest groups and the Justice Department." Only 23 of the 61 groups that Koshner identified as active in church-state litigation responded to his survey. Of those groups, 58% said the Justice Department was indifferent to their efforts, 100% said the Solicitor General's decision to file a brief made no difference in their own decision to submit an amicus brief and 71% said they paid little or no attention to the Solicitor General's litigation activities. Draw your own conclusion.

Second, Koshner's relies on a set of simplistic and often unsupported assumptions on which to develop his explanatory variables. For example, he writes that the Framers envisioned the Court as an "apolitical and independent" institution, and would be aghast at the more political role it has assumed in the contemporary governmental process (pp. 2-3, 55-56, 104-5). But, in the opinion of many. the Court never has been nor ever will be an "apolitical" institution. Its creation stemmed from a political act, the ratification of the Constitution. Moreover, the federal judiciary owes its existence to the First Congress, which granted it the power of judicial review over state laws, a political decision of great moment. The constitutional design of the selection and confirmation of federal judges is another example of how political considerations and compromise were etched into the Constitution. The federal courts do indeed perform a different function in the American constitutional design than the executive and legislative branches. But the courts, and the Supreme Court in particular, have been important political actors since their creation. Certainly, that lesson was not lost upon John Marshall, who left his imprint on nearly every important feature of the American governmental process in leading one of the most activist and political Courts in its history.

In a separate discussion, Koshner concludes that group membership is a powerful explanation for the increase in interest group litigation. He writes that since only 11 of the 61 groups under review here are nonmembership organizations, the remaining 82% must ultimately answer to some membership base. Well, yes and no. One can argue that individuals join groups because of what they do, not to tell them what to do. Koshner here offers some useful evidence, drawn from personal interviews, that groups file briefs to satisfy organizational needs, with policy goals only a secondary factor. True enough. But then the discussion begins to slide when Koshner speculates that the reason the major Jewish organizations did not participate in a major 1993 equal access case was because membership was undecided or conflicted about which side to support. For some research I was doing on a related topic, I sat in on several meetings in which two of the organizations Koshner identifies were discussing their litigation agenda. Membership had almost no role in those discussions; rather, many of the lawyers did not see that case as one that was worth their time, given the other demands on their schedule. Resource allocation is a major issue for most public interest law organizations. How those resources are allocated is often a function, as Koshner points out elsewhere, of what the Court chooses to decide, not of membership demands.

Another quick word here about the role of membership in the group's decision making process. When Koshner describes the 61 organizations in his study as groups that litigate, he assumes, or so it appears, that they all give equal consideration to the decision to participate in litigation. That's not quite the case. A group that decides to sign a brief prepared by someone else may be doing nothing more than offering an endorsement of a legal position. That decision may reflect little consultation with the membership and say next to nothing about that group's capacity to litigate. When you see the ACLU's name on a brief, you can rest assured that its lawyers had something to say about its content. The same is not necessarily true when you have groups like the Jewish War Veterans or the Clarendon Foundation signing on a brief prepared by a more sophisticated and recognized organization.

This study also could have benefited from some careful parsing. Had Koshner decided to focus on a more powerful and representative subset of organizations, done some extensive interviewing beyond that reported here, and provided some kind of narrative linkage to tell what is a very interesting development in modern constitutional politics, he could have written a good book. Instead, the 105 pages of text offers not much more than a series of speculations that have little or no empirical or theoretical relationship to his research questions. His conclusion that some of these "suspects" are more responsible for explaining the dynamics of interest group litigation than others is unsupported by the evidence he presents.

Finally, there is the matter of his survey. Just over a third of the groups he identified as regular participants in church-state litigation responded. Those that did not include Americans United for the Separation of Church and State, the ACLU, the Christian Legal Society and the Commission on Law and Public Affairs. All of these groups, at some point, have sponsored an important Supreme Court church-state decision and are frequent AMICI. How they would have responded is of much greater interest to me than, for example, the Institute for Justice. But of greater importance is the fact that the groups that did respond in no way form a representative sample of the universe of groups identified in his study. Results like these do not support his larger and, in my view, inaccurate claim that his is the first empirical analysis of interest group litigation. That comes as news to me, as I consider the literature on interest group use of the courts well-rooted in empirical research.