Vol. 1, Number 3 (May 1991) pp. 43-49
THE AMERICAN COURTS: A CRITICAL ASSESSMENT by John B. Gates and
Charles A. Johnson (eds.). Washington, D.C.: Congressional
Quarterly Press, 1990, 534 pp..
Reviewed by Malcolm M. Feeley, University of California, Berkeley
AMERICAN COURTS is a collection of essays by distinguished
judicial process scholars which reviews and assesses current
research on the judicial process. The essays were specially
commissioned for this volume and follow a common format; they
begin with a review of current theoretical issues in the litera-
ture, then summarize and assess the central findings of empirical
research, and conclude with a discussion of future research
needs. The result is a fairly comprehensive assessment of the
central issues in the judicial process field. In this review I
will briefly summarize the central concerns of each of the
contributors in this volume, and then offer some observations on
how they all add up.
The seventeen essays (eighteen including a concluding essay by
Gates), are grouped in five parts, each organized around a
central research issue in the field. Part I consists of five
essays on judicial policy making, each examining a different set
of courts. The lead essay in the volume by David Adamany exam-
ines the tensions between judicial review and representative
government. He raises and rejects the standard defenses of
judicial review in terms of the Court's role in protecting
minority rights and conferring legitimacy on policies made
elsewhere, and then goes on to defend an interpretation of the
Court's role as a policy making body, "a powerful lawmaking
department, behaving much like a legislative body, and without
substantial intellectual justifications for its sweeping exercise
of the power of judicial review" (p. 23).
Other essays in Part I provide critical assessments of the policy
making of other courts. Donald Songer examines the federal
circuit courts of appeal, and discusses the shifting nature of
their business (from private to public law issues), and argues
that the judges on these courts have greater discretion to impose
their own policy preferences than is suggested by the low rates
of dissent. C.K. Rowland examines the research on federal
district courts. He emphasizes the vast discretion trial courts
have in managing facts, interpreting upper court policies, and
issuing and implementing remedial orders in complex cases. He
also notes that quantitative studies tend to support the position
that judges impose their personal policy preferences in decision
making while qualitative research supports a more traditional
legal view that judges "apply" rules. He concludes by
outlining a research strategy that would integrate these
competing and contradictory approaches. Henry Glick reviews the
sparse litera- ture on state supreme court policy making, and in
the light of the continuing and now not-so-New Federalism,
examines expanding policy making role of state supreme courts in
judicial review. His essay contains two mini-case studies that
nicely illustrate the role of these courts. Lynn Mather's review
of state trial courts rounds out Part I. In a three part essay,
she first examines and rejects the view that trial courts are
norm
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enforcers not policy makers, argues for a broad notion of policy
making as "a pattern of impact created by the aggregate of
decisions made by these who implement general principles,"
and then makes the case that trial courts are important policy
makers. She then illustrates her view with two mini-case studies
of trial court policy making.
Part II consists of two essays on judicial selection. Charles
Sheldon and Nicholas Lovrich explore implications of different
modes of selection based not upon formal institutional
differences but by the scope of involvement by bar associations,
attorneys, voters and others in the recruitment and selection
process. They then assess implications of these differences in
light of democratic theory and the selection of women and minori-
ties. Sheldon Goldman profiles federal judges appointed by the
past several presidents and shows how the differences are related
to the president's agenda and constituency.
Part III consists of three essays on judicial decision making.
Herbert Jacob's lead essay examines trial courts; he argues that
courts must be understood as organizations not simply individual
judges, and that political scientists have been preoccupied with
criminal to the exclusion of civil matters before the courts.
Both arguments are eminently sensible and persuasively argued.
Following the adage that whoever frames the questions dictates
the answers, H.W. Perry examines the agenda setting of the U.S.
Supreme Court. Noting that this Court has vast discretion to
decide what cases and issues it wishes to decide, he reviews the
work to date in this area, points out its inconsistencies and
shortcomings, and outlines an agenda for future work. The third
essay in Part III, by James Gibson, deals with federal appellate
courts. His essay identifies both micro and macro factors that
affect judicial decision making in these courts, and concludes
with a call for a more integrated and theoretically sophisticated
model of decision making.
Part IV consists of five essays examining "Courts and
External Pressure." Wayne McIntosh draws on the recent
litera- ture on the longitudinal studies of courts to show how
issues before and outcomes of courts over time reflect
socioeconomic changes. Gregory Calderia explores public opinion
and the courts, examining the twin issues of how public opinion
affects judicial decision making and how court decisions affect
public opinion. In a pair of chapters Lee Epstein and Jeffrey
Segal examine recent literature on courts and politics. Both ask,
what influence do various groups have on the courts. Epstein
charts the importance of interest groups in getting before the
courts and their successes, and Segal examines the influence of
legisla- tures and executives as the shape the nature of the
judiciary and bring issues before the courts. William McLauchlan
reviews some of the literature on the "litigation
explosion," and explores its implications (delay, costs,
rise of alternatives).
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Two essays in Part V explore "policy impact and
innovation." Lawrence Baum reviews the sparse literature on
doctrinal innova- tion and how it is diffused across
courts.Drawing on his book with Charles A. Johnson, Bradley Canon
reviews the development of Supreme Court impact studies and
offers a framework of research typologies and theories. In so
doing he sets forth a clear research strategy.
The concluding essay by editor John Gates takes stock of the
materials covered in the volume. If Gates' concerns were summa-
rized in a single question it would be something like this,
"How does all this research add up in terms of theory and
method?" And he would make four points in response: l)
theory construc- tion has increased in recent years but lags
behind other areas of political science; 2) research emphasizes
the unique and ideographic character of courts to the neglect of
more general theories; 3) despite this there have been some
valuable theoreti- cal contributions in the field; and 4) the
field is fragmented among those interested in normative
questions, those pursuing qualitative research, those pursuing
quantitative research, and those interested in theory
construction.
Gates concludes his essay with a somewhat skeptical assess- ment
of what March and Olson have labeled the "new institutional-
ism," and a perspective that Rogers Smith has used in a
recent APSR article to assess and judge pretty harshly research
in the judicial process field. This perspective does not view
politics -- including judicial politics -- solely or perhaps even
primari- ly in terms of the clash of interests. Rather it treats
such conflict as "surface" practices, and seeks to
understand practic- es and policies in terms of
"deeper" structures and institutional arrangements that
may amplify or muffle the voices that seek to rise to the
surface. Drawing on Smith's APSR essay, Gates argues these deeper
structures and traditions -- institutions -- are often ignored or
treated as givens or background factors by scholars and that they
should be brought to the fore. Apprecia- tion of their importance
in framing public choices and policy making is "the new
institutionalism." However Gates has mixed feelings about
the new institutionalism as applied to the judi- cial process. On
one hand he values the emphasis with broader concerns and
"deeper" structures, but on the other he thinks that it
might simply lead to more historical and descriptive research
whose effects are not cumulative or even meaningfully theoreti-
cal.
I now turn to ask, what does all this add up to? And my response
is two-fold. First I want to offer some reflections on the
potential audience for the book, and then I want to address the
substantive concerns of some of the authors.
Both by virtue of who published the book, Congressional Quarterly
Press, and the authors' own stated intent, the book is designed
for use as an undergraduate text in judicial process courses.
However,
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I am not sure how useful it will be for undergraduates. Although
the essays cover a lot of ground that is and should be covered in
an undergraduate course, this ground is covered very quickly. The
authors were charged with reviewing the literature, and do a
comprehensive job of it. But in order to cover this ground, they
must run rather than saunter. Their's is a swift reconnaissance
better suited for researchers who are concerned with major
landmarks, big issues, and problematic places, than for tourists
on an introductory journey. My hunch is that undergraduate
instructors will want to cover many of the topics addressed in
this book, but will prefer to have students read representative
samples of the studies under consideration rather than these
syntheses and critical reviews of entire areas. However those who
teach in this area will find the essays to be intelligent
discussions of major issues in the field, and that the essays
will provide the basis for a number of their lectures.
In contrast, graduate students in public law are likely to find
this volume extremely useful. They will be familiar with much of
the research discussed in the essays and thus be able to
assimilate the vast amount of material so briefly discused. More
generally they are likely to resonate to the informed and sensi-
ble discussions of approach, method, techniques, and theory that
are central to most of the essays.
Still several of the essays are eminently suitable for
undergraduates. David Adamany's essay on judicial review and
democratic theory is a gem. I don't think anyone can find a
better short essay on the subject. And some other essays combine
a critical assessment of a topic with a sustained case study or
analysis to illustrate some of their central points that under-
graduates can sink their teeth into. Lynn Mather's and Henry
Glick's essays come to mind here. Despite this I believe that the
real market for the book is graduate students.
More generally, what does this collection tell us about the
field? I think the essays in AMERICAN COURTS do a good job in
synthesizing research by political scientists in public law. And
this, of course, was its stated intent. However I cannot help but
believe that field would be improved if it were less
disciplinarily parochial. Ironically one of my concerns about the
value of a more interdisciplinary perspective here is that it
would have better illustrated the political nature of courts in
American society. Despite the fact that all the essays insist
upon the policy making functions of courts, they nevertheless
sleight research in other disciplines that examines such func-
tions, especially court-induced changes in the common law.
Although courts are not autonomous and do not act unilaterally,
nevertheless they took the lead in revolutionizing many areas of
the law in the nineteenth century and again in the twentieth.
Developments in torts and contract come most readily to my mind.
Similarly they led the due process revolution of the l960s. And
even more recently judges have shifted the ways they sentence in
criminal
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cases, and it is these changes, not legislative get-tough
policies, that have led to a doubling and tripling of the prison
population in the United States. All these policies have had a
dramatic impact on social and political life in America, but none
of them is examined at any length.
Let me hazard some guesses as to the reasons why. Most of the
research in the field, like most of the essays in this book, are
studies about individual courts or types of courts. Social
science is largely about studying variation, and variation in
this field is generally understood as variation among judges
(usually appellate judges on the same court). Little of it is
concerned with variation across time, and especially broad spans
of time. (I acknowledge that several contributors to this volume
do in fact embrace a broader perspective, but on the whole most
do not, and the reason is, I think, quite simple, research in the
field does not.)
This focus may be driven by methodological concerns. Empiri-
cally oriented public law scholars are good methodological
individualists, so it is the behavior of individual judges they
study. Understandably they are less comfortable studying
"courts" or "the law." Yet many of the most
important policies developed in the courts have occurred in
almost imperceptibly small steps, without much if any public
debate or even central direction or even identifiable
"big" decisions. One should not mistake the autonomy --
or the semi-autonomy, or more simply the quiet pervasiveness of
the legal process and shifts in it -- as the application of
neutral or nonpolitical principles. Indeed the low visibility of
the judicial process and the myth of the objectivity of
"law" are factors in accounting for why courts are
granted such deference, judges are such powerful political
actors, and why law is such an important web of social control.
To emphasize marginal differences among judges on the same
courts, inter-circuit differences, and the occasional big case
may cause us to miss the more pervasive political nature of
courts.
Another partial explantion is that the judicial process subfield
is precisely that a subfield about the judicial process, the
study of the organization and operations of the judiciary. In
this sense organization theory is the proper theoretical paradigm
since central to this paradigm is a concern with how institutions
organize to maintain themselves, i.e. how they develop standard
operating procedures to process routine work expeditiously,
adjust to the interests of the central figures in the
organization, and adapt to and reflect their larger environ-
ment. Although as Herbert Jacob's essay indicates few studies
embrace organization theory systematically, nevertheless most of
the essays in this volume -- and most of the research in the
field -- address organization theory-like issues, internal
organization, pressures to conform to institutional norms,
recruitment and socialization of judges, adaptation to a shift-
ing environment, and the like. And although there continues to be
research on the behavior of individual
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judges which views their decisions as the consequence of person-
al values, the field has tended to drift from a focus on individ-
ual behavior to embrace a broader understanding of courts as
organizations. Organization theory, implicitly or explicitly, now
frames much of the work in the field.
There is, however, another paradigm that in my view should be
embraced. It is social theory, a perspective that would ask in
the context of the law and politics field, what are the social
functions of courts? This perspective is not wholly foreign to
the field. In a sense it is little more than a self-conscious
elaboration of the concerns of those whose interest lies in the
impact of or compliance with court rulings. Furthermore there is
a substantial body of research that addresses these issues.
Some readers of this review might respond to my concerns by
arguing that if taken seriously, it would lead to vague histori-
cal narratives rather than theoretically driven social
"science." If so, let me respond in advance by pointing
to some substantial bodies of research that address issues of the
social functions of courts that have been ignored in this volume
and by those in the field generally. This work in my view
addresses both "big" theoretical issues and is rigorous
social science. Within the past twenty years there has been a
boom in law and economics, and most of this work has focused on
judicial policy making. Indeed nearly the entire field of law and
economics is devoted to the propositions that judges seek to
maximize social utility in their decision making and that one can
understand the judicial process and innovations in judge-made law
in these terms. Indeed in chapter twenty three of the first
edition of his widely read, LAW AND ECONOMICS, Richard Posner
argues that judges are better policy makers than legislatures. In
this discussion he takes for granted that judges make important
political decisions; his concern is to convince us that courts do
a better job than legislatures. Despite its use of high-powered
empirical theory, quantitative methods, and the fact that it
asserts that judges do not "follow" the law but seek to
maximize policy preferences, the economic analysis of judicial
decision making is ignored in this volume. Similarly, COURTS, the
most important book by the field's most important scholar, Martin
Shapiro, is entirely ignored. Although Shapiro's informal remarks
about developments in the field are cited by many of the
contributors, no one commented on the audacious theory put
forward in this book, which holds that all courts -- everywhere
and at >