WHITHER PUBLIC LAW SCHOLARSHIP? AN ASSESSMENT OF AN ASSESSMENT OF THE FIELD
Malcolm M. Feeley, School of Law, University of California at Berkeley and Visiting Fellow, Law and Politics Program, Princeton University (2008-09). Email: Mfeeley [at] princeton.edu.
At the University of Wisconsin, it was the policy – at least in the 1970s when I was there – for all members of the political science department to read each others’ annual professional activities reports as part of an exercise to determine salary increases. I was always awed at how productive my colleagues were, but I must confess that for a while I tended to be respectfully dismissive of encyclopedia and handbook entries. This changed markedly after I’d written my first such entry. I gained a new respect for the genre. Encyclopedia and handbook entries constitute an art form requiring much thought and much discipline. Consider: authors are charged with summarizing and assessing work within an area of specialization. They must identify the core features of that specialization, succinctly examine the most salient issues, present the current debates, and point to future issues. And they must do all this within strict word limits. This poses immense challenges: one must do more than summarize the conventional wisdom. One cannot criticize the conventional wisdom without first explicating it. Similarly, one cannot merely report on latest developments in the field without first providing an overview of its core. The entry is not like a set of comments prepared for a roundtable at one of our professional meetings, where like-minded scholars come together to talk about their latest research. It is different than all these things. While authors need not aim to write only for the “general reader” or for the intensely interested specialist, nevertheless they do write for both of them, as well as others. Further, while they do not need to write for the ages, they must keep in mind that someone will be reading their entries and judging them some years hence--they cannot write the academic equivalent of today’s headlines. And again keep in mind that at most they only have a few pages in which to do their job.
In short, a good entry in an encyclopedia or handbook must be a gem. It must have several facets and each must sparkle. Some handbooks and encyclopedias are renowned for this quality. My personal favorite is the 1968 edition of the ENCYCLOPEDIA OF THE SOCIAL SCIENCES, which I consult as often as I do the more recent edition.
The OXFORD HANDBOOK OF LAW AND POLITICS compares favorably with the best of this genre. Keith Whittington, Daniel Keleman and Gregory Caldeira are to be congratulated for assembling a first rate group of contributors who in combination have put together a wonderful volume. It is a weighty project in every sense of the word. The book weighs several pounds. It has forty five separate entries. And as I’ve said, the contributors are an all star [*1093] cast. The headings, subheadings and titles of entries are still further evidence of the thought and care that went into the volume. But of course the real test is the quality of the entries themselves. I must confess I have not read all 774 pages and all forty five entries (excluding index and front matter). But I have skimmed and dipped in here and there – reading most of the essays that are both closest to and farthest away from my areas of interest, and reading as well the volume’s four introductory and three concluding essays. I feel moderately confident in assaying the HANDBOOK as a whole, and in underscoring my conclusion: the editors and authors have done well for the field. We are in their debt.
But the question is, how should we approach such an enterprise? Below is my effort.
The entries in this handbook can serve several quite different functions for different readers. First, some of them provide a quick survey into areas that are on the periphery of the reader’s interests; they provide a convenient way for catching up, at least casually, in areas where we don’t read the journals. In a discipline and a field that has no obvious methodological or theoretical core, and draws heavily on work in other disciplines and fields, this is valuable. Thus for instance, I found Tom Tyler’s entry on law and psychology, and Chris Tomlin’s article on law and history, and still others’ entries interesting because they cover areas I don’t keep up with, but which have relevance to some of my concerns and some of the central issues in the field.
Second, some of the entries will provide instructors with materials for class comments, and for me especially in my undergraduate survey course. Robert George’s essay on natural law is as good a succinct treatment of the subject as I have ever read. Indeed it is especially valuable since it is explicitly directed at a law and politics audience. And of course it has to prick the consciences of the normative selves in all of us who should search for greater values coherence in our divided selves. Similarly, although Frank Cross’ discussion of judicial independence is frustrating in its failure to pin down the subject, nevertheless it is helpful in cataloguing the many and at times conflicting dimensions of the concept of judicial independence. I am likely to steal from sections of his discussion in response to questions about judicial independence. Similarly, Bryant Garth’s essay on law and globalization will probably be useful in my teaching in ways I cannot yet even begin to anticipate. The same can be said for many of the other entries. Christine Harrington’s discussion of informal justice provides a framework for thinking about all types of legal orderings.
A number of entries are likely to be useful in work with students at opposite ends of their educational experience: new graduate students (and advanced undergraduates) at the one end, and advanced graduate students preparing for qualifying exams at the other. The same essay can serve different functions for both these quite different groups, an introduction to students unfamiliar with the field, and synthesis for advanced students. A student new to the topic can read an essay to get his or her bearings [*1094] before diving in to the field in depth, beginning in all likelihood with some of the materials cited in the essay itself. An advanced student can profit not so much by gaining new knowledge but by learning how to synthesize, how to break down a topic into constituent parts, how to relate it to allied issues, and how to identify some of the major continuing issues in the field. Indeed, some of the HANDBOOK’s essays can serve as model answers to prelim questions.
As I said, I’ve not read all the essays in the volume. But I did read the editors’ long introduction in Part I, the three essays in Part II (Approaches), and the three essays in Part X (Old and New). Since they frame the contributions in the large middle section of the volume, I want to offer some brief comments on these bracketing essays. Whittington, Keleman, and Caldeira do a wonderful job of summarizing the range of concerns in the volume, and thus the field. They recognize that our field is eclectic and needs to be tolerant as to both scope and methods. Indeed, they embrace an expansive view of the field, and identify contributors and topics that I suspect many others, less imaginative or gracious, would not have included in the HANDBOOK. (One indicator of this: by my rough count over a third of the contributors have no training in political science and have never held appointments in political science departments. Nevertheless, their entries are strong and clearly speak to our interests, as measured by the range of courses we teach and the range of articles and books we publish.) This expansiveness speaks well of the editors’ judgments. Their decision to invite such a range of contributors also reflects two other factors: the “law and . . .” enterprise has had a significant impact not only on the periphery of our field but on its core as well; and it reveals that at long last law professors are paying greater attention to the work of political science public law scholars. Nice.
All three of the essays, in Part II, “Approaches,” are models of coverage and clarity. Jeffrey Segal does a wonderful job explaining the main tenants of the attitudinal model. Furthermore, he engages meaningfully with the strategic model as it applies to the U.S. Supreme Court in a way that advances understanding and scholarly debate. Similarly Pablo Spiller and Raphael Gely summarize the main features of the newer strategic approach based on rational choice models of the judicial process. Although they too focus on the U.S. Supreme Court, they move beyond it to consider courts elsewhere, and indeed it may be that the strategic model has more power elsewhere, where high courts are not so well institutionalized and secure. Indeed, the essays by Segal and Spiller and Gely nicely engage each other. Anyone wanting an introduction to the two areas they discuss would be well served if they were directed to these essays. The excellence of these essays clearly reflects the erudition of the authors, but I suspect the mutual engagement also reflects encouragement by the editors as well. (One small criticism of the volume: it would have been nice to see more mutual engagement in other contributions. But this would have required authors to submit their contributions well before deadline. Heaven forbid.)
Rogers Smith’s “Approaches” essay is in a special class. More than any other [*1095] single person in recent years, he is responsible for creating the new and important sub-subfield in the law and courts area, historical institutionalism and the law. He has connected the dots among constitutional history, doctrine, the Supreme Court, American political history, and the revived interest in institutions (the new institutionalism) in political science and sociology more generally. This essay is likely to place this new subfield on an even more secure footing. Indeed, it reveals the constitutive power of a label; give an inchoate set of ideas a name, and it becomes a “project.” Subsume a group of diverse writing under the label and you have a subfield. This is a wonderful development. It returns the study of law and politics to its roots. The study of law, legal institutions, legal regimes, and legal systems has traditionally been anchored in historical and institutional and comparative analysis that seeks to address big social science issues – variation across time and across location. This development is a nice supplement to judicial behavior studies, which has in recent years occupied a great deal of the field’s attention. Although judicial behaviorists claim to be markedly different than the legalistic law professors whose approach they ridicule, nevertheless much of their work is something of a reflection of conventional legal scholarship. Like their law professor counterparts, judicial behaviorists focus, almost exclusively, on the handful of split decisions in relatively recent U.S. Supreme Court cases in order to divine their own form of explanation. Of course this is a legitimate enterprise; social science ought to be about accounting for variation, and in my view judicial behaviorists do a convincing job of explaining why Supreme Court justices vote as they do. But the US Supreme Court is a highly atypical “court,” and legal decision making is everywhere. Historical institutional analysis promises to be much more expansive. Further, it too is interested in accounting for variation, but of a much more dramatic sort--variation across time and regime (and comparative historical analysis promises even more), and how issues emerge before a court, as opposed to how judges on one court vote once issues get to their doorstep. Smith’s essay points the way towards a more theoretically rich, if methodologically messier, agenda for public law scholarship. Although framed in terms of current developments in American political science and sociology, its vision is certainly not limited to this. Indeed, in scope and method it harkens back to work in sociological jurisprudence and some of the classical concerns of nineteenth and early twentieth continental and English legal history and comparative law, and to Weberian-inspired social science more generally.
The three “approaches” essays are interesting for still other reasons. Despite all the good things I’ve just said, in some ways there is a disconnect between the “approach” chapters and the remaining thirty nine topical essays. Many don’t fit comfortably within any of the approaches. This suggests that the scholars in our field have not waited for theoretical “approaches” to be developed before striking out on their own agendas. And of course it reflects the eclectic nature of our field. Still it is puzzling that there is not more of a connection. One reason may be the lack of breadth of the approaches chapters. All the references cited in Segal’s Approach [*1096] essay focus exclusively on American courts, and most of them on one court, the U.S. Supreme Court. This suggests that this approach is successfully used to explore some of the behavior of a handful of justices on a particularly distinctive – unique? – institution. Yet none of the subsequent essays, except Spaeth’s, really builds on or elaborates this approach in any sustained way.
As the newest subfield, it is not surprising that only a handful of the subsequent essays in the volume build in any explicit way on the historical institutional approach. Still the themes of several of the essays are compatible with it (among them, the essays by Ginsburg, Hirschl, Alter, and most especially Whittington, Graber, Gillman, and Harrington). If this approach has the potential that I think it does, one would expect that entries informed by a historical institutionalist approach will feature prominently in the next HANDBOOK OF LAW AND POLITICS. Also, almost all of the works cited in Smith’s ambitious essay deal with American subjects, yet as I suggested above, this approach has obvious implications for comparative research, as the author himself acknowledges.
Interestingly, it is Spiller and Gely’s discussion of rational choice models, which are often accused of being overly narrow, that is most cosmopolitan. Although they too draw mostly on work about American institutions, their essay has a higher proportion of references to research on non-American institutions (clearly a growth area of our field) than do the other two “Approaches” essays. Also, by my count some appreciation of the strategic approach informs the discussions in a high proportion of the entries in this volume (roughly one third), and especially of those entries that extend coverage beyond law and politics, see e.g., Shapiro, Chavez, Ginsburg, Vanberg, Hirschl, Scheppele, Rodriquez, Garrett, Yaloff, Epstein, Haire, Cross, Rose-Ackerman, and Kornhauser.
Still, for the long term I would bank on historical institutionalism and the law, especially since it has begun to find ways to incorporate some of the more provocative insights of rational choice models of the sort suggested by the works of John Ferejohn, Barry Weingast, Oliver Williamson, Douglass North, Mark Ramseyer, Martin Shapiro, Lee Epstein, Keith Whittington, and still others, which are discussed in various different places in the volume.
Before concluding let me say a few words about the three final essays. They are all written by grand old men in the field (the next edition of the HANDBOOK most certainly will have a grand old lady). Both Scheingold’s and Spaeth’s essays offer views of the profession from their many many years in the profession and their distinctive (and distinctively different) perspectives. Graduate students should eat them up. They get two smart people looking back and reflecting on their careers and the intellectual passions that animated them. They should be so lucky as to have such engagement in their work after long careers. The essays are all the more valuable because they are personal reflections. Good stuff. Martin Shapiro’s essay is more didactic. Always the one to look for the teaching moment, Shapiro takes advantage of the forum to point out that if in our field, we [*1097] claim to be interested in “law,” there is a lot more law in a lot more places than we choose to look. Similarly, he says, if we claim to be interested in courts, we have made a great mistake to focus so much of our attention on the most distinctive if not unique forms of courts and ignored other important courts, and especially court-like institutions that are part of the administrative process. Still, Shapiro must be pleased with the entries in the HANDBOOK. It seems to me that the range of entries nicely reflects his concerns about the breadth of the field.
I feel obliged to offer a conclusion, some sort of wrap-up, to this rambling essay, so here it is – my suggestion as to what to do with the volume: Get your department to order the volume – or if you can afford it, order it yourself. When it arrives, place it on departmental reserve and invite public law graduate students and would-be public law graduate students to read it. Arrange a schedule; select two or three essays at a time, and meet in the student lounge to discuss them. Eventually work your way through most if not all of the volume. It should be a rewarding experience not only for the students but for you as well. What you can do in this process is what the authors of the entries did not do enough of – engage the different entries with each other. You might be able to come up with some speculations that could lead to some nifty student paper topics if not research projects. What happens when the attitudinal model meets trial courts? Non-American courts? Courts with no tradition of dissenting? What happens when the strategic model meets historical institutionalism? What happens when American concerns with race, gender and courts meet non-American courts or their alternatives? What if any are the implications of the dramatic recent shifts in the roles of constitutional courts in Eastern Europe and the former Soviet Union for the understanding of American judicial institutions? What does the study of Latin American supreme courts suggest about the study of the American Supreme Court? After reading the entries of Bryant Garth and Christine Harrington, wither courts? The combination and permutation of the various ideas in the entries invite a host of interesting possibilities.
You get the idea.
© Copyright 2008 by the author, Malcolm M. Feeley.