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Courts and Judicial Policymaking

by Christopher P. Banks - Kent State University; David M. O’Brien - The University of Virginia

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Copyright, ii
Dedication, ii
Preface, vii
Part I. The Nature of Law, 1
One. Legal Systems and Sources of Law, 1
Legal Systems, 4
Civil Law, 4
Common Law, 8
Ideological Legal Systems, 11
Religious Legal Systems, 12
Customary and “Mixed” Legal Systems, 13
The Nature and Sources of Law, 15
Public Law, 16
Private Law, 20
Selected Readings, 24
Notes, 25
Two. The Politics of Law and Jurisprudence, 28
Classical Theories of Jurisprudence, 29
Natural Law, 29
Legal Positivism, 31
Sociological Jurisprudence and Legal Realism, 34
Contemporary Theories of Jurisprudence, 36
Economics in Law and Pragmatism, 36
Feminist Jurisprudence, 38
Critical Legal and Race Perspectives, 39
The Rule of Law and the Judicial Process, 47
Selected Readings, 53
Notes, 54
Part II. Court Organization and Operation, 57
Three. Judicial Organization, Structure, and Administration, 57
The Origins of U.S. Courts, 58
The 1789 Judiciary Act, 60
The Growth of the Federal Judiciary, 61
Contemporary Judicial Federalism: State and Federal Courts, 65
State Judiciaries, 67
The Federal Judiciary, 77
The Politics of Judicial Administration, 99
State Court Administration, 100
The Administration of the Federal Judiciary, 103
The Politics of Judicial Reform in the Twenty-First Century, 105
Selected Readings, 112
Notes, 112
Four. Judicial Recruitment, Retention, and Removal, 118
State Judicial Selection, 119
Federal Judicial Selection, 130
The Framers and Judicial Selection, 130
Ideology or Merit?, 130
The Nomination Process, 134
The Confirmation Process, 140
Toward a Representative Bench and a Career Judiciary?, 152
A Representative Bench?, 153
Leaving the Bench, 162
Selected Readings, 165
Notes, 166
Part III. Influences on Judicial Access and Decision-Making, 173
Five. The Practice of Law, 173
The Rise of the American Legal Profession, 173
Contemporary Legal Education and Bar Admission, 176
The Business of Legal Practice, 180
Private Practice, 180
Government Attorneys, 184
Corporate Legal Practice, 185
Public Interest Lawyers and Legal Academia, 185
Access to Lawyers and Equal Justice, 186
The Right to Counsel in Criminal Cases, 186
Legal Representation in Civil Litigation, 190
Government Subsidized Legal Aid, 191
Pro Se Representation, 192
Pro Bono Legal Services, 193
Selected Readings, 193
Notes, 194
Six. Access to Courts, 199
Formal Barriers, 200
Discretionary Barriers, 202
The Law of Standing, 203
Mootness and Ripeness, 204
The Political Question Doctrine, 205
Organized Interests and Strategic Litigation, 210
Interest Group Politics and Litigation Strategies, 211
Selected Readings, 216
Notes, 217
Seven. The Adversarial Process and Criminal Procedure, 220
The Adversary Process, 221
Trials: Truth or “Fight” Theory?, 223
Prosecutorial Discretion: From Arrest to Trial, 228
Initial Appearance, 230
Preliminary Hearings and Grand Jury Indictments, 230
Formal Arraignment, 231
Plea Bargaining, 232
The Jury’s Role, 235
The Democratic Politics of Citizen Juries, 235
The Politics of the Posttrial Sentencing Process, 250
The Growth of Determinate Structured Sentencing, 251
Selected Readings, 255
Notes, 256
Eight. Civil Litigation, 260
The Civil Trial Process, 261
The Nature of Civil Litigation, 262
Civil Procedure, 265
Alternative Dispute Resolution, 270
Selected Readings, 277
Notes, 277
Part IV. Judicial Policymaking, 280
Nine. Judicial Decision Making and Behavior, 280
The Appellate Decision-Making Process, 281
Agenda Setting, 282
Oral Argument, 286
Judicial Conferences, 288
Opinion Writing, 290
Studying Judicial Decision Making, 297
The Attitudinal Model, 297
New Institutionalism, 303
Strategic Choice Theory, 304
Legal Reasoning and Interpretative Approaches, 305
The Law and Politics of Legal Precedent, 306
Statutory Interpretation, 309
Statutory Construction and Administrative Regulation, 309
Constitutional Interpretation, 314
The Methods of Constitutional Interpretation, 314
The Sources of Constitutional Interpretation, 316
Selected Readings, 316
Notes, 318
Ten. The Scope and Limits of Judicial Power, 324
Judicial Policymaking, 325
State Judicial Policymaking: Equality in Educational Financing Cases, 325
Federal Judicial Policymaking: Privacy Rights and Abortion Politics, 329
The Impact of Judicial Decisions, 338
The Politics of Gay Rights and Same-Sex Marriages: A Case Study, 341
The Limitations of Judicial Power, 345
Internal Constraints, 345
External Restraints, 346
Selected Readings, 357
Notes, 357
Case Index, 363
Index, 365

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