JUDICIAL ENTREPRENEURSHIP: THE ROLE OF THE JUDGE IN THE MARKETPLACE OF IDEAS by Wayne V. McIntosh and Cynthia L. Cates. Westport, Connecticut: Greenwood Press, 1997. 152 pp. Cloth $49.95. ISBN 0-313-30519-6.

Reviewed by David Schultz, Department of Political Science, University of Wisconsin, River Falls.
 

JUDICIAL ENTREPRENEURSHIP combines the metaphor of marketing and sales with the study of judicial policy making and influence to produce a highly readable theory of judicial behavior and role. Opening with Justice Holmes's famous line from ABRAMS v. UNITED STATES that "the best test of truth is the power of the thought to get itself accepted in the competition of the market," the authors use that quote as a hypothesis to describe judicial behavior. Specifically, Supreme Court Justices and judges alike compete to have their ideas about the law accepted in the judicial marketplace of ideas.

McIntosh and Cates describe judges as judicial entrepreneurs, seeking to sell their ideas and influence. For the authors, the activist or ideological labels cannot adequately capture this theory of judicial behavior. Instead, they define judicial entrepreneurship as a judge "who is alert to the opportunity for innovation, who is willing to invest the resources and assume the risks necessary to offer and develop a genuinely unique legal concept, and who must strategically employ the written word to undertake change." (p. 5) As entrepreneurs, judges must be alert to the contexts, risks, and strategies in marketing their ideas, much as real economic entrepreneurs must be alert to these factors when selling their products. Hence, to be entrepreneurs, judges use opinion writing, often concurrences and dissents, but occasionally off the bench writings, to sell their unique legal ideas. Chapters on Louis Brandeis, Jerome Frank, Hans Linde, and Sandra Day O'Connor form the four judicial case studies and typologies to explain judicial entrepreneurship. Each judge offers an example of the different tactics, contexts, and opportunities for judicial entrepreneurship, as well as contrasts in success in marketing their ideas. Justice Brandeis is described in a chapter title as the "consummate entrepreneur," using numerous avenues to sell his ideas. For McIntosh and Cates, Brandeis's views on privacy that he pushed in his scholarly writings also became ideas he articulated as a judge in numerous opinions. Eventually, through careful and persistent marketing, a right to privacy became a hallmark of Fourth and First Amendment and Due Process jurisprudence.

In contrast to Brandeis's success, Jerome Frank is described as a judicial entrepreneur who pushed his unique legal ideas regarding the jury system and fact-finding, yet nonetheless failed to capture his market. However, he had more success in his views on obscenity and in regards to his views on intangible property, with the Supreme Court and other courts accepting many of his ideas.

Chapter four discusses Hans Linde, University of Oregon law professor and Oregon Supreme Court Judge, who is credited with selling his theory of adjudication which emphasized turning to state constitutional provisions before seeking to decide cases on the basis of federal constitutional law. McIntosh and Cates correctly describe Linde's efforts in this area as quite successful, influencing Justice Brennan and other state court judges in launching the revival of state constitutional law. Surprisingly, the authors devote even more space to Linde's views on tort law and his arguments to limit judicial construction and extension of liability. Here again, he is described as having successfully sold his ideas in terms of having other judges, at least in Oregon, accept them.

Finally, in a short twelve-page chapter Sandra Day O'Connor is the last of the four judicial entrepreneurs that the book examines. O'Connor's 1981 essay in WILLIAM AND MARY LAW REVIEW advocating increased federal deference to state decisions is connected to her later articulation of federalism principles as Supreme Court Justice. In this overly brief chapter O'Connor's use of the Guarantee clause is highlighted as her primary constitutional tool to further her unique federalism ideas.

The book concludes with an attempt to finalize a theory of judicial entrepreneurship, arguing that judges look to windows or opportunities to market their legal ideas, and that these opportunities may be times of legal or socioeconomic instability. The judge, as a specialist marketing a specific idea, can use a variety of strategies both on the off the bench to get their ideas across.

On one level, this is much to praise in this book. To view judges as competing for intellectual influence as entrepreneurs leaves open a rich possibility that the language and metaphors of marketing could tell us much about how judicial behavior and role are forms of selling. This suggests that the language of Madison Avenue and strategic planning might assist scholars in constructing a new paradigm for explaining judges. In addition, JUDICIAL ENTREPRENEURSHIP nicely discusses judges such as Hans Linde and Jerome Frank whom one would not otherwise think would be included in a book of this type. Finally, McIntosh and Cates correctly hint that their theory of marketing offers a novel way to think about the role of concurrences and dissents as not simply intellectual disagreements but as exercises in intellectual marketing.

While there is much to praise, JUDICIAL ENTREPRENEURSHIP is not without its problems. Specifically, the book is thin both in the number of pages and in the elaboration of the theory it seeks to propound. In describing judges as entrepreneurs, the authors hint that the literature of marketing will be able to inform and explain judicial behavior. Unfortunately, there is not much depth to the marketing or judicial behavior literature. For example, beyond saying the judges are entrepreneurs selling their ideas, there is little that the marketing metaphor is used to explain. In fact, Walter Murphy's ELEMENTS OF JUDICIAL STRATEGY manages to say everything this book does, and I am unsure how McIntosh and Cates improve upon what that book already does. Moreover, the use of the marketing metaphor leads the authors to say some silly things, such as describing Justice O'Connor to be like "a new breakfast cereal, candy bar, or a cola entrant." (P. 98)

In addition to failing to develop the marketing literature and to show how it yields a new way to understand judicial behavior, the authors also fail to develop the already existing judicial scholarship. As noted above, they do not really expand upon Murphy and they also ignore the existing literature that examines dissents. Moreover, in arguing that judges primarily are selling to the legal community, they ignore scholarship that discussed the many different publics that pay attention to the courts or that potentially could be the different markets for a judge's ideas.

Finally, the choices of whom to select as entrepreneurs, while interesting, are also odd. The book opens with Justice Holmes, but he is not singled out as a major marketer of judicial ideas. Instead, he is relegated to a subsection in the chapter on Brandeis. Similarly, Justice Scalia, perhaps one of the more important and recent innovators, is also left out.

JUDICIAL ENTREPRENEURSHIP offers the reader the potential for a new way to think about judges, but unfortunately, to borrow the marketing metaphor, the authors have not done enough product research and development on their unique idea to sell it in the marketplace of ideas about judicial behavior. However, their idea deserves more exploration and one can hope that they will expand upon it to make it a more marketable and saleable product.