Vol. 5, No. 9 (September, 1995) pp. 211-215.
Editors's Note: This review is the last of the series on judicial
process textbooks. The other reviews appeared in February and
March, 1995.
AMERICAN JUDICIAL POLITICS by Harry P. Stumpf. San Diego:
Harcourt Brace Jovanovich, 1988. 476 pp. Cloth
Reviewed by Christine B. Harrington, Department of Politics and
Institute for Law and Society, New York University.
We should all be on the look out for the second edition of
AMERICAN JUDICIAL POLITICS (available in 1996) since the first
edition offers students a comprehensive description and engaging
discussion of the essentials about the U.S. judicial process and
sociolegal studies. Over the past decade and a half or so, I have
performed a number of "pedagogical experiments" in my
laboratory of undergraduate courses on "Law and
Society," "Law and Social Change" and "Courts
and Judges." Is there a comprehensive textbook that can
provide undergraduates with a solid understanding of what, why
and how social scientists study law in American politics? These
experiments have been performed on students in a small college
(Vassar College), a large state university (Rutgers University)
and they are still taking place at a medium-sized undergraduate
college situated in a large private university (New York
University). Seven years ago when AMERICAN JUDICIAL POLITICS
first came out I put it to the test. Aside from the general
question noted above, I wanted to know how well this textbook
worked in a class of students who are diverse in several
challenges ways: different levels of background knowledge about
American politics, history and the legal system (weak high school
education to two years of a very good college education);
different levels of interest in the subject (none to this is my
life); different economic and cultural experiences with the law
(none to presently litigating some matter); and a host of other
ad hoc subjective intuitions I have about what makes a class of
50 to 100 students click.
Stump's textbook passed the test. It even received informed
praise from students who were self-ascribed
"just-here-for-the-credit-types." Those who have taken
it upon themselves to deeply embed law in their lives, or the
other way around, and who will stand for no less than a text that
came tell them something new, reported that they found reading
Stumpf an "awesome" experience for it opened the doors
of professional political science scholarship. Indeed, Stumpf's
text does an excellent job at synthesizing methodology and
research findings federal and state judicial appointments,
federal and state appellate decision-making, civil litigation,
criminal dispute processing and impact studies, to name a few of
the major areas covered in this book. The section at the end of
each chapter on "Further Reading" was actually
meaningful to more than the usual handful of students. That is,
about one quarter of my students reported that they looked up
books and articles of particular interest because of Stumpf's
illuminating presentation of related material. When I teach this
text, the more avid readers of publications, such as THE NEW YORK
TIMES or THE VILLAGE VOICE, regularly supply me with clippings
related to sociolegal phenomena discussed in this textbook (e.g.,
the politics of judicial selection; tort litigation practices and
reform campaigns; the perils of plea bargaining in urban courts;
etc.).
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With knowledge of my experience teaching Stumpf, what does this
book offer for those who have yet to try it? The conceptual
framework of AMERICAN JUDICIAL POLITICS is laid out in the book's
organization. There are four parts, each focuses on an important
angle for understanding how and why law works the way it does in
the American political context. Part I, "The Judicial
Setting" has four chapters. Chapters 1 and 2 ease students
gently into what is often completely ignored or so abstractly
presented it is meaningless--- "Jurisprudence Old and New:
Ways of Thinking About Law," and "Law and the Judicial
Function." From the start, students are presented with core
concepts philosophers, lawyers and judges, and social scientists
have applied in their studies of law (e.g., natural law;
analytical or positive jurisprudence; sociological jurisprudence;
legal realism; political and behavioral jurisprudence). This
material is not easy to present to undergraduates. I often debate
whether it should go at the beginning, middle or end of the
course. Realizing that some of what I am "debating" is
whether to teach it at all to undergraduates in a general
introductory course, such as "Law and Society or "The
Judicial Process," I plunge forth and go with Stumpf's
ordering. I have concluded, after teaching with this book for
about four semesters, that it is a good way to begin, though
still challenging. Chapter 2 situates the theoretical material of
Chapter 1 in current intellectual movements (e.g., Critical Legal
Studies) and ongoing debates about the role of courts and rights
in policy formation and implementation. The book ends with a
chapter that raises these issues again, but does so through a
description of sociolegal studies on compliance and impact. These
first two chapters set out the debates over what law is and how
it is connected to particular kinds of social relations, such as
political and economic ideologies and institutions. These debates
are implicit in what we teach, so why not put them on the table
(chalkboard) from the beginning? The two other chapters in Part I
cover more conventional material on state and federal judicial
organization by situating courts in a historical context. This
serves both as a supplement for students with weak American
history backgrounds (three-fourths of my students) and as an
excellent framework for learning the structure of the state and
federal judicial systems. Stumpf wisely uses the aids of
organizational charts we all used to photocopy and hand out in
class because too many of the narrowly focused behavioral texts
simply omitted them. Institutionalism is alive and well in this
book, which strengthens its treatment of "The Judicial
Setting."
The three chapters in Part II, "Judicial Personnel,"
focus on the politics of judicial selection at the state and
federal levels (each meriting a chapter) and the politics of
"legal advice" or the legal profession. Stumpf offers
students a very comprehensive description of political science
research on judicial selection and the numerous reform movements
mobilized by professional and citizen groups. The bench, its
stability and power over time, is the central theme in Chapters 5
and 6. Chapter 7 does a particularly good job at telling
political science students about the legal profession, its
formation, its role in shaping legal education, its monopoly over
entry into practice, its role in creating and struggling to
maintain a stratified bar as well as private versus state funded
legal services.
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This chapter distinguishes this textbook from all others, in
part, because Stumpf draws on literature outside political
science, literature which is usually ignored by political
scientists, such as occupational sociology and legal history.
Stumpf's own scholarship, his interest and commitment, enrich the
discussion of this subject -- a subject, lawyers and lawyering,
students tend to take for grant if they come to the study of law
as naive wantabees.
Part III, "The Judicial Process," is a skillful blend
of judicial process and law and society scholarship. To the
extent that we might want to or tend to separate these two
approaches in our teaching, Stumpf puts them together in four
chapters. Chapter 8, "The Civil Judicial Process,"
examines how cases get into the hands of lawyers and/or courts
and why the vast majority of civil disputes do not. The process
of disputing, including the use and non-use of law and the types
of dispute institutions (formal and informal), are described.
Students learn about disputing. They are then prepared to
question cultural characterizations of Americans as
"litigious" and to evaluate popular campaigns seeking
to either expand or deny access to courts. This chapter
demonstrates why the distinction between "public law"
and "private law" makes so little sense. When students
understand that disputing and conflict resolution are political
processes, which employ local, state and federal workers, support
the building of institutions and require the expenditure of
resources, substantive fields of law traditionally not studied by
political scientists, such as torts, contract, property and
family law, are opened for inquiry. Chapter 9, "The Judicial
Process in Criminal Cases," likewise brings students into
the rich body of research on criminal courts and criminal dispute
processing. The text continues along the theme of understanding
who comes into the criminal process, how they get there and what
happens to them with once they arrive. Stumpf pay particular
attention to the discretion of court-house actors who intercede
or vanish along the way. Chapters 8 and 9 give students a solid
understanding of the trial process, which then lays the
foundations for a comparison between trial and appellate
institutions (Chapters 10 and 11).
Part IV, "Courts and Society," has two chapters on
assessing the politics of the judicial process. These chapters
raise squarely the questions I ask my "Law and Society"
students: What are the politics of rights in the U.S.?; Under
what conditions do people avoid or turn to rights? In what sense
can we treat claiming an entitlement as a political practice or
resource in the U.S.? Stumpf's Chapter 12, "Judicial
Policies: Compliance, Implementation and Impact," and
Chapter 13, "American Courts: An Assessment," cover
research findings and debates over the effectiveness of judicial
policy-making and more. Rather than hang courts out to take all
the heat for policy-making, Stumpf does an excellent job of
bringing into the picture other relevant forces -- legislatures,
the executive, interest groups, public opinion, the media and,
yes, that big messy category "society." Stumpf's gives
meaning, if not order, to the "mess" we live with and
live in everyday.
To the question of what types of supplementary material would be
useful or obligatory for classroom use of AMERICAN
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JUDICIAL POLITICS, I would answer this according to what themes
you want to emphasize in your course. I use Stumpf in my
"Law and Society" class which is mainly a
second-semester, first-year to a first-semester, third-year
course (i.e., a broad sweep). In this course, disputing,
litigation and judicial actors and institutions are studied first
to them explore the constitutive role of law in four settings.
One setting we look at is the Civil Rights Movement, where I
supplement Stumpf with Mark Tushnet's (1987) THE NAACP's LEGAL
STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950, or Timothy
O'Neal's (1984) BAKKE AND THE POLITICS OF EQUALITY: FRIENDS AND
FOES IN THE CLASSROOM OF LITIGATION and selected federal court
cases. A second setting Stumpf's text provides a background for
is the Women's Movement, with specific attention to genderized
workplace inequalities. Here, Catharine A. MacKinnon's (1979)
SEXUAL HARASSMENT OF WORKING WOMEN, and/or Michael W. McCann's
(1994) RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF
LEGAL MOBILIZATION work very well with Stumpf. The area of Class
Action Torts is a third setting, where I use supplementary books,
such as Howard Ball's (1986) JUSTICE DOWNWIND: AMERICA'S ATOMIC
TESTING PROGRAM IN THE 1950'S; Paul Brodeur's (1985) OUTRAGEOUS
MISCONDUCT: THE ASBESTOS INDUSTRY ON TRIAL; Steven Fox's (1991)
TOXIC WORK: WOMEN WORKERS AT GTE LENKURT; Peter Schuck's (1986)
AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THE COURTS; or the
ever favorite, if dated, Gerald M. Stern's (1976) THE BUFFALO
CREEK DISASTER. The fourth setting we study is lower criminal
courts where students read Barbara Yngvesson's (1993) VIRTUOUS
CITIZENS, DISRUPTIVE SUBJECTS: ORDER AND COMPLAINT IN A NEW
ENGLAND COURT. This book brings an explicitly cultural analysis
of law to our concluding considerations of law as a the political
process. We also use Stuart A. Scheingold's (1976) THE POLITICS
OF RIGHTS. None of these supplementary books are absolutely
necessary to fill a hole in Stumpf's book. Indeed, his book is
the bridge between these books, which is why Stumpf is the core.
We often demand that authors do more when we review their work.
It could be said of Stumpf that he does not do enough with the
administrative processes or with comparative legal systems. Would
we, however, have the time in an introductory judicial process/
law and society courses to teach all of what he covers and more
in a meaningful way? Students learn that we live in a dual legal
system. Stumpf does a superb job at integrating state judicial
process material into the core of this text and provides a great
taking off point for those of us who find federalism to be one of
the hottest topics in American politics at the century's turn.
For those of us who may not want to or do not have the time to
"do state courts," you can go the "optional
reading" route, making state courts optional without killing
the book, but why? State courts have become essential reading.
What I would like to see more of, and I know my students would
enjoy, are pictures. Getting more graphic in our descriptions of
law would put on display
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where and how law matters in American politics, in everyday life.
I cannot reasonably demand more of Stumpf in terms of his levels
of sophistication; they are multiple and just what I need to
teach students with wide ranging skills and backgrounds. Finally,
Stumpf does something that no other text I have used does -- he
captures the richness of our work and the field out there ahead
of us. AMERICAN JURIDICAL PROCESS enables students to see the
boundaries of our approaches while not chopping up our work into
tiny pieces. Judicial process and law and society scholarship are
constitutive elements of the public law field, as is the study of
doctrine, which also, thankfully, creeps into this text.
References
Ball, Howard Ball (1986) JUSTICE DOWNWIND: AMERICA'S ATOMIC
TESTING PROGRAM IN THE 1950'S. New York: Oxford University Press.
Brodeur, Paul (1985) OUTRAGEOUS MISCONDUCT: THE ASBESTOS INDUSTRY
ON TRIAL. New York: Pantheon.
Fox, Steve (1991) TOXIC WORK: WOMEN WORKERS AT GTE LENKURT.
Philadelphia: Temple University Press.
MacKinnon Catharine A. (1979) SEXUAL HARASSMENT OF WORKING WOMEN.
Yale University Press. New Haven: Yale University Press
McCann Michael W. (1994) RIGHTS AT WORK: PAY EQUITY REFORM AND
THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of
Chicago Press.
O'Neal, Timothy (1984) BAKKE AND THE POLITICS OF EQUALITY:
FRIENDS AND FOES IN THE CLASSROOM OF LITIGATION.
Scheingold, Stuart A. (1976) THE POLITICS OF RIGHTS. New Haven:
Yale University Press.
Schuck, Peter (1986) AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS
IN THE COURTS. New Haven: Yale University Press.
Stern, Gerald M. (1976) THE BUFFALO CREEK DISASTER. Vintage
Press.
Tushnet, Mark (1987) THE NAACP's LEGAL STRATEGY AGAINST
SEGREGATED EDUCATION, 1925-1950. Chapel Hill: University of North
Carolina Press.
Yngvesson, Barbara (1993) VIRTUOUS CITIZENS, DISRUPTIVE SUBJECTS:
ORDER AND COMPLAINT IN A NEW ENGLAND COURT. New York: Routledge.