Vol. 3, No. 6 (June, 1993), pp. 53-55.
COURTS, POLITICS, AND THE JUDICIAL PROCESS by Christopher E.
Smith. Chicago: Nelson-Hall, 1993. 357 pp. Paper $29.95.
Reviewed by Charles R. Epp, Department of Political Science,
Indiana University.
Christopher Smith's text on the judicial process follows a fairly
standard format (covering key actors, civil and criminal justice,
and appellate court policy-making) but emphasizes to a greater
extent than similar texts a normative concern about the unequal
treatment of the poor and racial minorities in the judicial
process. That concern comes through clearly and is likely to
arouse students' interest in a way that texts with a more neutral
tone often fail to do. In that sense this text is a welcome
alternative. It covers a broad range of issues and is appropriate
in intermediate and upper-level undergraduate surveys of the U.S.
judicial process. It has a few weaknesses, though, among them
minor problems related to organization, the absence of some
important issues, and a general absence of illustrative graphics.
The chapter structure of Smith's text is fairly standard. The
book begins with an introductory chapter emphasizing that
politics is the primary influence on the judicial process and a
chapter on the structure of the U.S. judicial system. The next
chapters focus on central actors in the judicial process (a
chapter each on lawyers, judicial selection, and judicial
decision making), followed by a chapter each on the criminal and
civil justice processes, followed by a chapter on appellate
courts, one on the Supreme Court, and one on judicial policy
making. The book concludes with a really nice chapter placing
several current controversies (lawyer populations, litigation
levels, achievement of justice) in comparative perspective.
Smith's comparative treatment of those particular issues is, in
my view, far more thorough and carefully done than the brief
comparative additions to other American judicial process texts.
My only complaint is that many of Smith's comparative
observations would be valuable contributions to earlier chapters,
all of which entirely lack a comparative dimension. For example,
the chapter on civil litigation contains a brief discussion of
the "litigation explosion" debate that would have
benefitted from his later comparisons. A significant omission in
the book's organization is any sustained discussion of the
various types of law within the U.S. system and of the
differences between the common law system and other legal
systems.
Smith's conceptual framework focuses on the behavior of key
actors within the institutional context of the judicial system.
He says in the introduction that the book's "underlying
theme is that court organization and the outcomes produced by the
judicial process are actually the product of politics" (p.
3). The claim that law is strongly influenced by politics is, of
course, a central theme of many judicial process student texts
but Smith articulates it somewhat more explicitly and more
repeatedly than in other texts. In addition, he defines politics
more behaviorally than in some other texts by focusing primarily
on the wills and interests of individuals (p. 3). He tempers this
somewhat narrow definition, though, by returning repeatedly to
the role of class and race in structuring the nature and outcomes
of the judicial process. Smith's largely
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behavioral framework does not include a cultural perspective on
law although such an addition might support and enrich his
discussion of the treatment of the poor. In general, he fulfills
the second part of his promise, that politics influences the
outcomes of the judicial process, more effectively than he
fulfills the first part, that politics influences the structure
of the judiciary.
While Smith promises to emphasize the political sources of court
organization, and returns to that theme in the conclusion to his
chapter on court organization (chapter 2), the emphasis generally
does not come through clearly in the text. Smith does include a
good discussion of political disputes over state judicial reform.
But he omits any sustained discussion of the political disputes
that led to the basic structural characteristics of our dual
court system, the political background of such important
institutional developments as discretionary jurisdiction in the
U.S. Supreme Court and some state supreme courts, and more recent
political disputes over some federal appellate circuits.
Additionally, the forces that sustain judicial federalism remain
very important in the U.S., but the text pays little attention to
them. Judicial federalism, in turn, produces very important
consequences, some of which Smith examines, for example
"forum shopping." But his claim to examine the
political sources of court organization remains unfulfilled, at
least in regard to some of the most significant characteristics
of that organization.
Smith fulfills much more thoroughly the second part of his
promise, that politics (or, perhaps more correctly, the
distribution of power) influences judicial outcomes, particularly
with regard to his general theme that outcomes tend
disproportionately to harm the poor and minorities. I have only a
few observations on his discussion of outcomes. One is that I was
surprised, given Smith's emphasis on what others call the
"have nots," that he never mentions Galanter's famous
distinction between repeat players and one shotters. Inclusion of
that conceptual distinction would have strengthened significantly
the chapter on the civil justice process (chapter 7). That
chapter prominently discusses the role of interest groups in
reform litigation but ignores the role of major institutional
actors, particularly insurance companies, in ordinary civil
litigation. Also, surprisingly, the chapters on judicial decision
making (ch. 5) and policy making (ch. 10) almost never mention
interest groups as forming an important part of the environment
of appellate judicial agenda setting, decision making and policy
making. My second observation is that Smith's recurring attempt
to replace "law" with "politics," while often
leading to illuminating insights, becomes forced at places. For
example, in illustrating the value of a political perspective on
judicial decision making, Smith contrasts a legal analysis of
Scalia's decisions (in part, his opposition to affirmative
action) with a "political science" analysis of Souter's
first term, focusing on the number of Souter's opinions and on
his voting congruence with the Chief Justice (pp. 145-149).
While, admittedly, Smith builds a richer analysis of Souter's
first term than simply the number of opinions and voting
congruence, I am troubled by the implication that a political
science analysis does not include any concern for a Justice's
substantive positions on constitutional policy. "Law"
and "politics"
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need not be contrasted so starkly. By contrast, I found Smith's
discussions of the role of discretion in legal reasoning (pp.
132-136) and the criminal justice process (chapter 6) to be
outstanding.
Smith's emphasis on class and race brings out, with greater
urgency, a number of important points that tend to be ignored or
mentioned only in passing in other texts. One is the continuing
racial and economic exclusivity of the legal profession and its
continuing failure to provide access to the justice system to the
poor and the lower middle class (but, surprisingly, he only
barely mentions the explosive growth in the number of women
lawyers) (pp. 70-71, 78). Another is a wonderful, indignant
discussion of federal judges' complaints about their salaries and
what those complaints indicate about the judges' lack of
familiarity with the conditions of life for many ordinary
citizens (p. 124). Smith's normative concern also leads to a more
sustained, urgent discussion of the plight of poor criminal
defendants than one usually finds in such texts (throughout
chapter 6). He also discusses, more forcefully than most, the
erosion of due process posed by the Supreme Court's treatment of
in forma pauperis petitions (p. 265) and some forms of
alternative dispute resolution (211-213).
The book is generally well-written, at a level suitable for
undergraduate students above an introductory level.
Unfortunately, though, there are very few figures, photographs,
charts, or sidebars to break up the pages of straight text and to
help illustrate important points. Additionally, some of the
figures and charts that are included have no clear value: pages
28 and 29 contain a chart identifying the judicial structures in
all fifty states -- why? Smith's clear normative concerns,
however, may act to balance out those limitations and keep
students' attention.
Professors using Smith's text may wish to supplement it with
several additional materials. One necessary addition will be
figures illustrating the growth in lawyer populations, changes in
litigation levels and in types of cases, changes in the Supreme
Court's support for different kinds of claims or litigants, and
the like. Another will be a discussion of the main types of law
within the U.S. system and a comparison of common law and civil
law systems. Additionally, teachers may wish to add a case study
of the law in action -- for example, Gerald Stern's book on the
Buffalo Creek Disaster. My overall assessment is that this is a
very good student textbook. It has several problems in its
current form. But few texts with which I am familiar present such
a clear evaluation of the judicial system's operation and none
that communicates such a clear concern for equality in the
judicial process.
Copyright 1993