INTEREST GROUPS AND JUDICIAL FEDERALISM: ORGANIZATIONAL LITIGATION IN STATE JUDICIARIES by Donald J. Farole, Jr. Westport, CN: Praeger, 1998. 224 pp. Cloth $57.95. ISBN 0-275-96067-6.

Reviewed by Craig F. Emmert, Department of Political Science, Texas Tech University. Email:

URCFE@TTACS.TTU.EDU.

In INTEREST GROUPS AND JUDICIAL FEDERALISM, Donald J. Farole, Jr. examines interest group participation in takings and obscenity cases in the appellate courts of Colorado, Indiana, Minnesota, New Jersey, and South Carolina. The research design, based on analysis of court cases, examination of interest group documents, and interviews with group officials, is straightforward, and the author's exposition is very clear. Since there is little previous research on group participation in state court litigation, the book sheds new light on this important issue.

Several findings stand out. First, interest groups participated (as litigation sponsors or amici curiae) infrequently in state court litigation between 1960 and 1994, at least in these kinds of cases in these five states. The ACLU (along with its state affiliates) was the most frequent participant, taking part in 13 obscenity cases. The primary reason for its higher rate of participation is that the ACLU meets the "organizational threshold" that makes extensive litigation efforts possible. In other words, the ACLU possesses the necessary resources, i.e., state affiliates and cooperating attorneys, etc., to systematically pursue its organizational goal of litigation for its preferred policies.

Farole stresses the importance of a "legal incentive" in prompting participation in obscenity cases. Group participation increased notably in the wake of the U.S. Supreme Court's decision in MILLER V. CALIFORNIA, 413 U.S. 15 (1973), where the Court indicated that it would give states greater latitude to regulate sexually explicit material and would accept fewer obscenity cases in the future.

Farole finds that there is less group participation in takings than in obscenity cases. He argues that there is no analogous precedent to MILLER for these cases. If anything, the Court has been more receptive to property rights claims in recent years. Therefore, no legal incentive exists for groups to participate in state takings cases. He also points out, based on interviews, that groups believe state courts are too closely linked to state governments to overturn their regulatory decisions. Federal courts, in contrast, are seen as more independent, and groups more often pursue takings claims in federal court.

All these findings are interesting and important. Still, in my view, the book suffers from a number of significant limitations. First, only two (fairly unusual) types of cases from five states are analyzed. I would like to have seen, for example, business regulation, tort, abortion, civil rights, employment, or family law cases included in the study. Or, takings and obscenity cases from all states might have been included. The author states that it was necessary to limit both the number of states and types of cases in order to keep the number of interviews to a manageable level. In my opinion, however, it would have been desirable to analyze more kinds of cases and/or cases from more states whether or not more interviews were conducted.

One result of limiting the number of states and types of cases is that the effects of several potentially significant explanatory variables can neither be analyzed nor adequately controlled. Perhaps the most important excluded variable is court ideology. Farole maintains that "judicial attitudes ... are not the principal factors influencing groups' decisions to participate in state takings and obscenity cases" (p. 29), and he does provide some quotes from group officials that suggest ideology is not important. Yet, later, he states that "[e]xcept in Colorado, where state courts are among the most libertarian in the nation on the issue of obscenity, groups turned to federal courts more often than to their state counterparts..." (p. 143). Is not libertarianism a judicial attitude?

In addition, limiting the study to two types of cases from five states means that there are very few cases overall. So, even comparisons of frequency of participation are often questionable. And, except for one instance (where comparisons are based on six or fewer cases per state), the effects of group participation on case outcomes is not addressed. To me, this is a crucial omission,

but an inevitable one, given the small number of cases.

A second shortcoming, in my view, is the limited utility of the legal incentive variable. According to Farole, the incentive to participate in litigation can take two different forms. Under the "new judicial federalism" incentive, groups turn to state courts to obtain favorable rulings based on state law. Second, the "federal restriction" incentive means that access to federal courts is restricted by precedent. In this instance, groups are essentially forced to turn to state courts, if they choose to be involved in litigation at all. Unfortunately, when state constitutional grounds are raised (either alone or with federal grounds), it may be impossible to tell to which legal incentive groups are responding. In practice, then, the distinction may not be particularly meaningful. In addition, since only two types of cases are analyzed in the study, we do not know whether legal incentives exist for cases other than takings or obscenity cases.

In sum, I believe the book would have been much stronger if more cases, more kinds of cases, or cases from more states had been analyzed. As it is, the book makes only a modest contribution to our knowledge of state courts.

Copyright 1995