Institutions and Public Law: Comparative Approaches

Vol. 15 No.11 (November 2005), pp.1005-1009

INSTITUTIONS AND PUBLIC LAW: COMPARATIVE APPROACHES, by Tom Ginsburg and Robert A. Kagan (eds). New York: Peter Lang Publishing, 2005. 336pp. Paper. $32.95. ISBN: 0-8204-7477-0.

Reviewed by Donald W. Jackson, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu

INSTITUTIONS AND PUBLIC LAW is quite an interesting and useful book, containing essays resulting chiefly from the fecundity of Martin Shapiro. To put that conclusion in context, I should note that the essays in this book are examples of the1990s version of “new institutionalism,” applied not only to U.S. courts, but also to transnational courts and to those of other countries. Most of the chapters were first presented at a 2003 conference honoring Martin Shapiro’s contribution of the study of public law.

This version of “new Institutionalism” is described in the introduction by Tom Ginsburg and Robert A. Kagan as taking “institutional structures seriously, rather than focusing on the individual agent alone,” and focusing on the “structures that constrain and empower some of the individuals that make them up.” The two strands that make up this version of institutionalism consist of the rationalist approach that seeks to demonstrate how rational actors pursue “exogenous” preferences in an instrumental manner within judicial systems, and the historical approach that demonstrates how judicial institutions change over time. Some readers may well think that “old institutionalism,” when done well, was not all that different, although, to be sure, usually without the norms or methods of positive political theory. Surely, not every instance of the “old institutionalism” was the sterile parsing of legal descriptions of institutions that were quite remote from reality. However, the intellectual battles cited in this book do not really lie between new and old institutionalism.

Instead, the new institutionalist approach is cast in the introduction to the book as the worthy opponent of attitudinalism, described as viewing judges as “essentially politicians in robes” who pursue their own policy preferences, and who “are only weakly constrained” by “precedents, principles and norms of consistency.” This is echoed in Chapter 1 by R. Shep Melnick, who first notes that Shapiro’s work “is a reflection of the man’s intellectual curiosity and breadth of view,” rather than a single oft-repeated theme. Instead, according to Melnick, “the heart of Shapiro’s argument is that courts are usually one part of a larger policymaking process;” it would be difficult for anyone to argue with that. Unfortunately, Melnick then attacks Jeffrey Segal’s and Harold Spaeth’s “attitudinal model” for rejecting arguments that institutional roles and judicial constraints affect judicial decision-making as “simply bunkum” (p.28). That is a demonstrable overstatement, for it was applied by Segal and Spaeth specifically to Justice Blackmun’s claim that the words “cruel and unusual punishment” precluded him from voiding death penalties, when he [*1006] had been the author of the trimester ruling in ROE v. WADE (see Segel and Spaeth 1993, at 236). Those who have been part of the fray may care about this battle of competing viewpoints, but apart from them, it is reasonable to suspect that unlike the Gettysburg Address, the “world will little note nor long remember” this battle between political scientists. It is likely that both perspectives have contributed to our understanding of judicial politics. Indeed, Melnick later concludes that, “the Supreme Court, like most courts, issues at least two types of decisions” (with other mixed versions in between). A few decisions establish new substantive legal policy (rule-making), while most judicial decisions involve routine norm enforcement and the necessity of presiding over the rules of the game. So, does that not mean that both “attitudinalists” and “new institutionalists” are sometimes correct?

Fortunately, the papers that are contained in this edited volume are much better than this controversy between competing approaches might suggest, and indeed Melnick does laudable yeoman duty in his chapter by outlining six essential elements of political jurisprudence contained in the work of Martin Shapiro: 1) “political jurisprudence must abandon traditional legal categories” and examine all decisions that are involved in making public policy; 2) “investigators must understand the underlying policy issues and dilemmas facing legislators, administrators and judges;” 3) “political jurisprudence requires placing court action within ‘the everyday world of bargaining, persuasion, concession and compromise’” that characterize American politics; 4) “court decisions affect public policy not just by changing ‘law on the books,’ but by shifting the incentives of potential litigants and intervenors;” 5) by facing “a steady stream of cases on a particular topic, judges sometimes engage in a dialog with other actors;” and 6) judges do not necessarily “play the same role in every policy arena.”

The length of this review does not permit comments of each of the 10 chapters; the comments here should nonetheless suffice to suggest the scope and tone of the book.

Howard Gillman’s Chapter 2, “How Political Parties Can Use the Court to Advance their Agendas: Federal Courts in the United States, 1875-1891,” is an excellent case study of the advancement of ideology, in this instance laissez-faire economics through the federal courts. Because courts can be used for purposes such as the one Gillman reviews, it should not surprise anyone that this is an equal opportunity venture, open to partisans of the left, right or center. Gillman’s clarification is that the development of laissez-faire ideology is best seen as politically-inspired rather than court-inspired. Thus he links “national court behavior to the interests of [then] dominant coalitions and broader changes in the political system.” This was represented by the waning of the “national enthusiasm for the vigorous protection of civil rights” and the rise of what he describes as economic nationalism within the Republican Party. This was achieved by the staffing of courts with ideologically sympathetic judges by both Republican and conservative Democratic Presidents Grant through Cleveland, and Gillman concludes that, “These partisans were [*1007] much more successful than the Federalists at transforming the judicial into a programmatic stronghold.”

It is quite useful that Gillman’s chapter is followed by another essay by Melnick (Chapter 3), on the efforts of five members of the Rehnquist Court, “to restrict the power of the national government and to increase the autonomy of the states.” This represents another programmatic use of federal judicial power. At the core of these decisions on federalism is that they usually involve and sometimes limit the uses of federal power to regulate, or control, state and local government and officials. Melnick notes a second important point: that many of the “federalism decisions involve questions about the jurisdiction of federal courts”—this also limits federal control over state and local governments. Melnick concludes, after careful analysis, that, “the pattern of recent Supreme Court decisions becomes easier to understand. The Federalist Five want to reduce federal control of subnational governments. He then examines the politics of the Court’s “new federalism.” The eventual consequences of this “new federalism” are yet indeterminate.

As we have seen, the first three chapters of the book focus on U.S. politics. Part II consists of three chapters on the European context. The first is Alec Stone Sweet’s Chapter 4 on “Judicial Authority and Market Integration in Europe.” His is a tour de force on the process of European legal integration, “provoked by the European Court of Justice and sustained by private litigants and national judges,” that has “transformed the European Union.

One of Stone Sweet’s most useful themes is to focus on dyadic relationships that rest on contracts or social exchange and on the triad of third-party dispute resolution, concepts developed by Shapiro (Stone Sweet 1999). The adoption of triadic dispute resolution in a formalized institutional setting leads to the citing of precedents as a means of justification that may mask law-making and help preserve the legitimacy of courts.

Stone Sweet applies these concepts to the “constitutionalization” of the Rome Treaty, enhancing transnational authority at the expense of the EU’s inter-governmental character. This is made more concrete in a long section on the evolution of the ECJ’s case law, consistent with Shapiro’s previous conclusion that the “Court of Justice constituted the European Community.” Stone Street concludes that this was accomplished, in part, because the member states failed to make this possible on their own.

Carol Harlow’s Chapter 5 applies and develops Shapiro’s distinction between government and governance, citing him for the proposition that the change in words reflects “a significant erosion of the boundaries separating what lies inside a government and its administration and what lies outside them. There is also an erosion of the significance of the distinction between public and private, while the word politics, in most recent social science definitions occurs in any human institution that authoritatively allocates things that people value.

One problem with the erosion of boundaries is that the means of [*1008] influencing outcomes and the players in the game change as well. The carefully developed constitutional structures for democratic influence and accountability may decline, or be overwhelmed by informal influence that lacks both transparency and accountability. Harlow applies this analysis to the European Union in a section that she calls “Government Without Executive.” She argues that Shapiro’s “antagonism to the governance concept lies in his suspicion that it is antidemocratic.” This argument is consistent with concern about the “democratic deficit” of Brussels-centered governance, and, when courts move in to “fill the gap,” her concern is that they may further “add to the democratic deficit and widen the accountability gap.”

Chapter 6, by Paul Craig, reviews the rule of law in the administration of the European Union’s Common Agricultural Policy (CAP) after the adoption of new Financial Regulations in 2002. These regulations provide the “legal framework for the structure of Community administration of the CAP” and represent, according to Craig, the constitutionalization of Community administration.

Part III presents “Comparative Contexts.” These include Javier Couso’s chapter on judicial independence in Latin America, Tom Ginsburg’s chapter on the ancillary powers of constitutional courts, Bronwen Morgan’s essay on the economic review of legislation in non-judicial institutions, and a concluding appraisal of comparative judicial research by Martin Shapiro.

Couso’s chapter focuses on Chile where he finds that a reasonable degree of judicial independence has been achieved. That makes Chile one of the few countries in Latin American for which judicial independence can fairly be claimed. My own work, with Michael Dodson, on Guatemala and El Salvador, concluded that judicial independence has only rarely been achieved in those countries. As Couso appropriately notes “the most important threat to judicial independence in Latin America has been external.” Usually that has meant the executive branch, though sometimes the leaders of the judicial branch also have been complicit or compliant members of ruling oligarchies.

One of the serious problems in contemporary social science is the too frequent absence of cumulative research through which we take proper account of the work of others in developing our own understanding. To the extent that research is cumulative, it often rests on citing the research of friends and academic “neighbors,” rather than making a serious effort to survey the field. In Couso’s instance, the recent edited book by Scott Mainwaring and Christopher Welna (2003) would be a useful addition.

Shapiro’s concluding appraisal contains a plea for more comparative research and for more attention to “non-judicialized” law—here represented by Craig’s Chapter 6 and Morgan’s Chapter 9. His view is that the study of law and courts “demands of its participants knowledge that spreads across fields conventionally labeled in political science as American, comparative and international politics.” As he notes, the [*1009] commandment of Ph.D. qualifying exams that one must “know everything” continues to expand along new dimensions, as does the scope of our research.

REFERENCES:

Dodson, J. Michael, and Donald W. Jackson. 2001. “Judicial Independence and Instability in Central America.” In Peter Russell and David M. O’Brian (eds). JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD. Charlottesville: University of Virginia Press, 251-272.

Mainwaring, Scott, and Christopher Welna (eds). 2003. DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA. New York: Oxford University Press.

Segal, Jeffrey A, and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge: Cambridge University Press.

Stone Sweet, Alec. 1999. “Judicialization and the Construction of Governance.” 32 POLITICAL STUDIES 147-184.

Stone Sweet, Alec. 2000. GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE. Oxford: Oxford University Press.

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