Vol. 5 No. 2 (February, 1995) pp. 42-46
SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor
THE AMERICAN COURTS: A CRITICAL ASSESSMENT by John B. Gates and
Charles A. Johnson (Editors). Washington: Congressional Quarterly
Press, 1991. 534 pp. Paper $32.95.
Reviewed by Susan Olson, Department of Political Science,
University of Utah
Gates and Johnson's AMERICAN COURTS is unique in being a
comprehensive judicial politics textbook that is neither written
wholly by one or two authors nor a collection of (probably
excerpted) articles from many sources or authors. It is instead a
set of eighteen essays written for this volume by well-known
scholars in different specialties within judicial politics. The
editors' charge to the authors was "to review contemporary
theoretical developments regarding the chapter topic, discuss
relevant empirical findings, and describe what future research
might be done in the area" (p. ix). They have done that
well.
I have used the book as a core text, supplemented by many
articles, in a seminar for graduate students in American
politics, most of whom would have no other class focusing on
courts and the legal system. The book could also be used with
advanced undergraduates if they have some feel for the research
process and a descriptive knowledge of court organization and
processes. All of the essays provide solid literature reviews of
the major issues surrounding their topic, and most include some
critique of the literature. Several also incorporate some kind of
case study to illustrate the themes discussed, and a few even
present original research or conceptual frameworks.
As its name suggests, the book is limited to American courts, but
it does include state and federal, trial and appellate courts.
The organizational scheme of the book combines institutional and
behavioral approaches, which could make it difficult to mesh with
a syllabus exclusively organized around one or the other. The
eighteen essays are organized into five Parts and a Conclusion:
Judicial Policy Making, Judicial Selection, Judicial Decision
Making, Courts and External Pressures, and Policy Impact and
Innovation. Each of these will be discussed in order.
Organized by level of court, Part I reflects great diversity in
approach that can stimulate good discussion about what
constitutes judicial policy making. The first essay, by David
Adamany on the U.S. Supreme Court, begins with a summary of the
debate over the legitimacy of judicial review. This essay is more
normative than the others, presenting evidence of judicial
discretion in both agenda and merits decisions and rebutting the
most common arguments in favor of judicial review. The essay ends
with a brief historical overview emphasizing critical elections
theory and suggestions for future research.
Donald Songer's chapter on the federal Courts of Appeals assesses
their policy role from the perspectives of types of cases on
their dockets over time, the judges' degree of discretion in
interpretation, their finality, and patterns of substantive
outcomes (winners and losers). Policy making in both a micro
(individual judge) and macro (collective court) sense are
presented. He concludes with a discussion of the tension in the
circuit courts' role between forces of regionalism and national
uniformity.
Page 43 follows: C. K. Rowlands' chapter on federal District
Courts takes a narrower focus, discussing only the micro-level
decision process of individual judges, but he includes policy
making through remedy formulation as well as legal
interpretation. He also advances an original conceptual
framework, "social cognition," as helpful for assessing
the combination of legal and extra-legal influences on judicial
policy making.
The chapter on "Policy Making and State Supreme Courts"
by Henry Glick shares many common themes with the others, such as
the importance of courts' agendas for their opportunities for
policy making and the significance of judicial review. In
addition, he offers a thoughtful critique of judicial activism as
a concept for organizing research and explores inter-court
relations via the adequate and independent state grounds doctrine
and interstate citation patterns. He concludes with a discussion
of "right to die" policy as an illustration of research
that combines advantages of case study and aggregate data.
The last chapter in Part I is Lynn Mather's on state trial
courts. Her essay argues that such courts do make policy and
develops an analytical framework of the policy significance of
different stages in litigation. This chapter also differs from
most in giving substantial attention to the contribution of
actors other than judges in mobilizing court policy making. She
concludes with a case study of a contract dispute that
illustrates her framework.
Part II on judicial selection is divided into one chapter on
state and one on federal judicial recruitment. The state chapter
by Charles Sheldon and Nicholas Lovrich goes beyond a review of
existing literature to propose an original approach to the
classic question of whether selection method makes a difference.
They break selection into distinct steps and suggest that the
number of participants at each stage influences the balance the
court strikes between independence and accountability and the
likely representation of women and minorities on the bench. They
then test their theory on judicial recruitment in Washington and
Oregon.
Sheldon Goldman's chapter on federal recruitment
straightforwardly discusses the importance of studying judicial
recruitment and backgrounds, the process used to select federal
judges, the characteristics of persons so chosen, and the
likelihood that the present system selects the most qualified
candidates.
Part III, Judicial Decision Making, includes one chapter on trial
courts and two on appellate courts. The chapter on trial courts
by Herbert Jacob contrasts the literature considering the trial
court as a system with that organized according to individual
participants (e.g., judges, police, prosecutors, defense
attorneys, juries, and private attorneys and litigants). He
elaborates on the organizational paradigm as a good focus for
future research.
H. W. Perry's chapter, "Agenda Setting and Case
Selection," concentrates on the U.S. Supreme Court since the
most explicit case selection occurs there. He reviews and
critiques the competing
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explanations for how the justices choose cases and recommends
future research directions.
James Gibson's chapter on appellate decision making emphasizes
the U.S. Supreme Court, but weaves in what research on U.S.
Courts of Appeals and state supreme courts is available. He
organizes the research into that focusing on the micro level
(judicial values, judicial role orientations, and case facts) and
the macro level (institutional, organizational, and environmental
constraints) and calls for more research bridging the two levels.
Part IV, Courts and External Pressures, includes chapters
elaborating on the courts' interactions with five of the macro
level forces Gibson touches on in discussing decision making.
Wayne McIntosh's chapter, "Courts and Socioeconomic
Change," addresses the effects of socioeconomic change on
the structure and use of courts, not courts' ability to bring
about social change. This chapter is conceptually the broadest
piece in the book, addressing questions such as "what is a
court" and "what constitutes change" and tracing
these questions back to Durkheim, Weber, and Marx. He presents
three theories about the relationship between socioeconomic
development and litigation rates and illustrates with his own
longitudinal study of 150 years of cases in St. Louis, Missouri.
"Courts and Public Opinion" by Greg Caldeira succinctly
reviews and critiques the literature on three aspects of their
relationship: if courts are able to influence public opinion and
legitimate policies, if public opinion influences court
decisions, and what shapes the public's opinion of courts and
influences diffuse and specific support for them.
Lee Epstein's chapter on interest groups begins with a history of
the study of interest group litigation and its somewhat awkward
position between the study of courts and the study of interest
groups. She provides a thorough summary of literature on the
range of strategies and tactics groups use in litigation, the
frequency of group litigation, the types of groups participating,
the types of issues attracting amicus briefs, and the thorny
issue of the efficacy of group litigation. Woven throughout are
illustrations from BOWEN V. KENDRICK, a 1988 Establishment Clause
case, and suggestions for further research.
"Courts, Executives, and Legislatures" by Jeffrey Segal
addresses "cooperation and conflict between the judiciary
and its coordinate branches of government" (p. 373). This
chapter overlaps with David Adamany's on Supreme Court policy
making more than any other two chapters do, but both are distinct
and worthwhile. For example, both discuss critical election
theory, but Segal goes into more detail on the Dahl-Casper debate
about the extent to which the Court has been
counter-majoritarian. Segal also reviews and critiques the
literature on the role and influence of the Solicitor General and
on various court-curbing measures.
Part IV concludes with a chapter on caseloads by William
McLauchlan. This chapter is a logical extension of McIntosh's
because it addresses the impact on courts of the growing
caseloads that are McIntosh's dependent variable. McLauchlan
moves from
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the significance of growing caseloads for the quality of justice
to the distinction between caseload and workload. He proposes a
typology for evaluating caseloads.
Part V, Policy Impact and Innovation, contains two essays.
Lawrence Baum's chapter on policy innovation presents what is
probably the least familiar approach in the book, comparing
policy innovation by courts to the social science study of other
types of innovation. Baum acknowledges it is not always
meaningful to distinguish judges' responses to innovations from
their responses to other policy options, but concludes that this
framework can provide useful insights into sources and diffusion
of new doctrines and patterns of intercourt influence. He also
argues innovation is a good concept for comparing courts with
other governmental institutions.
"Compliance, Implementation, and Impact" by Bradley
Canon summarizes the major contributions to this field by Canon
and Charles Johnson in their earlier book: several explanatory
theories for judicial impact and a typology of affected
populations. Canon reflects on the apparent decline of impact
studies and makes suggestions for future research in this area.
The book concludes with a final chapter by John Gates,
"Theory, Methods, and the New Institutionalism in Judicial
Research," in which he criticizes the field for insufficient
attention to empirical theory--especially to the rational choice
and game-theoretic approaches popular in other subfields of
American politics. He attributes this in part to continuing
tension between quantitative and qualitative approaches in the
subfield and urges greater interaction between the two. Finally,
Gates assesses Rogers Smith's call for a "new
institutionalism" and cautions that good research must lead
to hypotheses that contribute to explanatory theory, not just
description.
This last chapter reflects the perspective that almost all the
essays share--that explanation is a matter of seeking
generalization and predictability as opposed to the more
interpretive perspective that explanation consists of
understanding meanings. Mather's and McIntosh's essays contain
elements of the latter perspective, but instructors who want to
expose students to these alternatives will need to supplement
this book with other readings. The book is also unabashedly
court-centered. It focuses on policy made by the filing of court
cases and judicial decision of them, rather than the broader
senses in which law structures human interaction.
I found the book to be well written, interesting, and
authoritative on the topics it covers. The individual authors
provide appropriate figures and tables to accompany their
discussions. The cost, currently listed at $32.95, is probably
higher than most ordinary texts, but I think is justifiable for
the original essays. All this said, I have to acknowledge that my
eight graduate students were not that crazy about the book. Most
found the chapters not very engaging reading compared to the
primary research articles we read. Half the students at least
granted that the book was valuable as a reference, and two
emphatically liked it.
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I would still use the book again for a similar class until it
becomes too outdated. Perhaps I could have affected the students'
attitude by using the book as the focus for discussion more than
as background. I also suspect the students' appreciation of it
may increase as they are reviewing for their comprehensive exams.
I believe it is a fine book and would recommend it to colleagues.
Copyright 1995