THE POLITICS OF THE LEGAL ORDER
G53.2355/ G62.1101
Fall 1998
Professor Christine Harrington
christine.harrington@nyu.edu
Office hours at Politics: T 1:30-3:00
715 Broadway, rm. 432
Phone: 998-8509
Office hours at ILS: TH 2:00-3:00
249 Sullivan,3rd floor
Phone: 998-6698/8536
This course focuses on the role of law in politics and the politics of law. It provides an overview of approaches that shape the theoretical and empirical contours of the public law field and contribute to multidisciplinary law and social science studies. We examine institutional, judicial behavior, legal impact, dispute processing, ideological, and neo-institutional approaches. We study multidisciplinary political movements and debates, such as liberal legalism, legal realism, legal pluralism, law and society, law and economics, feminist jurisprudence, critical legal race theory, and interpretive sociolegal theory. In the course of studying these approaches and debates we focus on legal and political development, legal institutions, judicial politics, litigation, and legal-political mobilization. Our objective is to investigate both the politics of law and the law of politics.
The four basic requirements of the seminar are: 1) to read and think about the assigned material before each weekly seminar, be prepared to discuss the material and participate in the Law and Society Colloquium (20% of the grade); 2) write an analytical paper (12-15 pages) focusing on an area of scholarship within public law (20% of the grade); 3) design a research project, write a proposal (10-12 pages) and an abstract (1-2 pages) for (20% of the grade); and 4) either take a comprehensive final exam OR write a research paper (20-25 pages) on a topic you arrange with me (40% of the grade).
Required Reading
Epstein. Lee (ed) (1994) Contemplating Courts. Washington, D.C.: Congressional Quarterly Press.
Brigham, John (1987) The Cult of the Court. Philadelphia: Temple University Press.
Segal, Jeffrey and Harold Spaeth (1993) The Supreme Court and the Attitudinal Model. London: Cambridge University Press.
Mashaw, Jerry L. (1997) Greed, Chaos, & Governance: Using Public Choice to Improve Public Law. New Haven: Yale University Press.
Scheingold, Stuart (1991) The Politics of Street Crime. Philadelphia: Temple University Press.
Cain, Maureen and Christine B. Harrington (eds) (1994) Lawyers in the Postmodern World. NY: NYU Press.
Bumiller, Kristin (1988) The Civil Rights Society. Baltimore: Johns Hopkins University Press.
Hunt, Alan (1993) Explorations in Law and Society. NY: Routledge Press.
MacKinnon, Catherine (1989) Toward a Feminist Theory of the State. Cambridge: Harvard University Press.
* Additional Readings
COURSE OUTLINE
Introduction: September 10
Law and Society Colloquium: September 14
Professor Ethan Nadelmann, Soros Foundation, New York, “Commonsense Drug Policy”
II. Judicial Institutions, Actors and Ideologies
A. Appellate Courts
1. Policy Making in the Appellate Courts: September 17
Epstein, Lee (1994) "Introduction," in L. Epstein, pp. 1-14.
Pacelle, Richard L. (1994) "The Dynamics and Determinants of Agenda
Change," in L. Epstein, pp. 251-274.
Epstein, Lee and Thomas G. Walker (1994) "The Role of the Supreme Court in American Society: Playing the Reconstruction Game," in L. Epstein, pp. 315-346.
* Cavanagh, Ralph and Austin Sarat (1980) "Thinking About Courts: Toward and Beyond a Jurisprudence of Judicial Competence," 14 Law & Society Review 371.
2. Judicial Behavior Approach: September 24
Segal, Jeffrey and Harold Spaeth (1993) THE SUPREME COURT AND THE ATTITUDINAL MODEL.
Segal, Jeffrey, Donald R. Songer, and Charles M. Cameron (1994) "Decision Making on the U.S. Courts of Appeals," in L. Epstein, pp. 227-246.
3. Institutional Approaches
A. Interpretative: October 1
Brigham, John (1987) THE CULT OF THE COURT.
* Smith, Rogers (1988) "Political Jurisprudence, the 'New Institutionalism,' the Future of Public Law," 82 American Political Science Review 89.
Law and Society Colloquium: October 5
Professor Gary Wickham, Department of Sociology, Murdorch University, Western Australia,
“Foucault, Cultural Studies and Socio-Legal Studies: A Delicate Mix”
B. Rational Choice: October 8
Mashaw, Jerry L. (1997) GREED, CHAOS, & GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW.
B. Trial Courts: October 15
Scheingold, Stuart (1991) THE POLITICS OF STREET CRIME.
* Feeley, Malcolm (1979) THE PROCESS IS THE PUNISHMENT, Chapter 7.
Church, Thomas (1994) "Plea Bargaining and Local Legal Culture," in L. Epstein, pp. 132-154.
C. Judges, Lawyers, and Professional Power
1. Appointing Judges: October 22
* Goldman, Sheldon and Elliot Slotnick (1997) “Clinton's First Term: Many Bridgesto Cross,” 80 Judicature 254-273.
Caldeira, Gregory A. and John R. Wright (1994) "Lobbying for Justice: The Rise of Organized Conflict in the Politics of Federal Judgeships," in L. Epstein, pp. 44-71.
McGurie, Kevin T. (1994) "Capital Investments in the U.S. Supreme Court: Winning with Washington Representation," in L. Epstein, pp. 72-92.
Law and Society Colloquium: October 26
Professor Michael McCann, Department of Political Science, University of Washington
"Law and Lore: Mass Media, Legal Knowledge, and the Politics of Tort Reform"
Paper Due: October 29
2. Lawyers and the Constitution of Professional Power: October 29
Cain, Maureen and Christine B. Harrington (eds) (1994) LAWYERS IN THE POSTMODERN WORLD.
* S. Fish (1989) "Anti-Professionalism," in DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES.
D. Doctrinal Choices and Legal Ideologies: November 5
* Harvard Law Review (1998) "Leading Cases"
* Spiller, Pablo T. and Matthew L. Spitzer (1992) "Judicial Choice of Legal Doctrines," 8 The Journal of Law, Economics, & Organization 8.
* Brisbin, Richard A. (1993) "Antonin Scalia, William Brennan, and the Politics of Expression: A Study of Legal Violence and Repression," 87 American Political Science Review 912.
* Kessler, Mark (1993) "Legal Discourse and Political Intolerance: The Ideology of Clear and Present Danger," 27 Law & Society Review 559.
Hunt, Alan (1993) "The Ideology of Law," in A. Hunt, EXPLORATIONS IN LAW AND SOCIETY, pp. 117-138.
III. The Processes of Disputing
A. Litigation: November 12
* Grossman, Joel et. al. (1982) "Dimensions of Institutional Participation: Who Uses the Courts and How?" 44 The Journal of Politics 667.
* Stookey (1992) "Trying Times: A Sociopolitical History of Litigation During the First Half of the Twentieth Century," 16 Social Science History Review 23.
Harrington, Christine B. and Daniel S. Ward (1994) "Patterns of Appellate Litigation, 1945-1990," in L. Epstein, pp. 206-226.
Law and Society Colloquium: November 16
Professor David Lieberman, Jurisprudence and Social Policy Program, University of California, Berkeley, “Economy and Polity in Bentham's Science of Legislation”
Research Design and Abstract Due: November 19
B. Articulating Claims: November 19
Bumiller, Kristin (1988) THE CIVIL RIGHTS SOCIETY.
* Miller, Richard and Austin Sarat (1981) "Grievances, Claims, and Disputes: Assessing the Adversary Culture," 15 Law & Society Review 525.
C. Legal Plurality December 3
* Santos, Boaventura De Sousa (1987) Law: A Map of Misreading: Toward a Postmodern Conception of Law," 14 Journal of Law and Society 279.
* Harrington, Christine B. (1984) "The Politics of Participation and Non-Participation in Dispute Processes," 6 Law & Policy 203.
IV. Critical Sociolegal Theory
A. Marxist and Critical Legal Theory: December 10
Hunt, Alan (1993) EXPLORATIONS IN LAW AND SOCIETY, Chapters 1-5; 7; 9-11.
B. Constitutive Sociolegal, Feminist, and Critical Race Theory: December 17
* Harrington, Christine B. and Barbara Yngvesson (1990) "Interpretive Sociolegal Research," 15 Law & Social Inquiry 135.
Hunt, Alan (1993) EXPLORATIONS IN LAW AND SOCIETY, Chapter 12.
* Brigham, John (1996) THE CONSTITUTION OF INTEREST, Chapters 1 and 6.
MacKinnon, Catherine (1989) TOWARD A FEMINIST THEORY OF THE STATE.
* Crenshaw, Kimberle (1988) "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, " 101 Harvard Law Review 1331.
Comprehensive Exam/ Paper: TBA