Mr. Charles A. Kromkowski
University of Virginia
Spring 1997, AG424F

This course examines and compares courts and legislatures as policymaking institutions. We will begin by exploring several conceptual models that can be used to describe and to explain the legitimacy, the dynamics, and the consequences of judicial and legislative policymaking. Next we will examine the historical development of the relationship between courts and legislatures with particular (although not exclusive) focus upon the United States. Finally, we will assess the judicial-legislative policymaking relationship within several policy domains.

The requirements for this course are: 1) a thorough engagement and discussion of the assigned texts; 2) several brief presentations; 3) a research paper; and 4) a final examination.

Required Texts
Edmund Morgan, Inventing the People (1988)
Robert Katzmann, ed., Judges and Legislators, (1988) [hereafter JL]
Gerald Rosenberg, The Hollow Hope, (1991) [hereafter HH]
Lee Epstein and Joseph Kobylka, The Supreme Court and Legal Change, (1992) [hereafter SCLC]
Stephen Skowronek, Building a New American State, (1981)
David K. Ryden, Representation in Crisis, (1996)
Neal Devins, Shaping Constitutional Values (1996)
Herbert Jacob et al., eds., Courts, Law, and Politics in Comparative Perspective, (1996)
The Federalist Papers, Rossiter, ed.

Additional Readings on Reserve (Clemons)

Part I
Jan. 15 Introduction and Organization
Common Approaches to Judicial Studies
Jan. 20-22 Thinking anew about Constitutional Contexts and Coordination
Heckathorn and Maser, "Bargaining and Constitutional Contracts," AJPS, (1987), 31: 142-68
Scharpf, "Coordination in Hierarchies and Networks," in Games in Hierarchies and Networks, (1993), pp. 125-65
Tsebelis, "Veto Players and Law Production in Parliamentary Democracies," in Parliaments and Majority Rule in Western Europe, (1995), pp. 83-111
Schwartz, "Relational Contracts in the Courts: An Analysis of Incomplete Agreements and Judicial Strategies," J. of Legal St., (1992), XXI: 271-318
Ramseyer, "The Puzzling (In)dependence of Courts: A Comparative Approach," J. of Legal Studies, (1994), XXIII: 721-47
Rosenberg, HH, 1-36
Epstein and Kobylka, SCLC, 1-33
Katzmann, "The Underlying Concerns," JL, 7-20

Part II: Historical Development
Jan. 27-29 Colonial Foundations, 1700-1776
Morgan, Inventing the People
North and Weingast, "Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England," J. of Econ. History, (1989) XLIX: 803-32
Feb. 3-5 Constitutionalism in the Early National Years
Federalist, Numbers 10, 47-49, 51, 78-83
Marcus and Van Tassel, "Judges and Legislators in the New Federal System, 1789-1800,JL, 31-53
Chisholm v. Georgia, 1 Dallas 419 (1793)
Marbury v. Madison, 1 Cranch 137 (1803)
Feb. 10-12 Antebellum Era, 1790-1860
Fletcher v. Peck, 6 Cranch 87 (1810)
Martin v. Hunter's Lessee, 1 Wheaton 304 (1816)
McCulloch v. Maryland, 4 Wheaton 316 (1819)
Dartmouth College v. Woodward, 4 Wheaton 518 (1819)
Cohens v. Virginia, 6 Wheaton 264 (1821)
Gibbons v. Ogden, 9 Wheaton 1 (1824)
Charles River Bridge v. Warren Bridge 11 Peters 420 (1837)
Luther v. Borden, 7 Howard 1 (1849)
Presentation: Mark A. Graber, "The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power, Constitutional Commentary, (1995), 12:67-92.
Warren, "Earliest Cases of Judicial Review of State Legislation by Federal Courts," Yale Law Journal, (Nov., 1922), XXXII: 15-28
Scheiber, "Federalism and the American Economic Order, 1789-1910," Law & Society, (1975), 10: 57-118
Feb 17-19 Nineteenth-Century Judicial Policymaking
Prigg v. Pennsylvania, 16 Peters 539 (1842)
Dred Scott v. Sandford, 19 Howard 393 (1857)
Ableman v. Booth, 21 Howard 506 (1859)
Lemmon v. People, 20 N.Y. 562 (1860)
Finkelman, "Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism," The S.Ct. Rev., (1994), pp. 247-94
Presentation: A.E. Keir Nash, "A More Equitable Past? Southern Supreme Courts and the Protection of the Antebellum Negro," N. Carolina Law Review, (1970), 48:197-242.
McCurdy, "Stephen J. Field and Public Land Law Development in California, 1850-1866, Law & Society, (1975)
Friedman and Landinsky, "Social Change and the Law of Industrial Accidents," Columbia Law Review, 67: 50-
Scheiber, "Property Law, Expropriation and Resource Allocation by Government, 1789-1910," Journal of Economic History, (1973), 33: 232
Feb. 24-26 Between Federalism and Consolidation, 1870-1937
Slaughterhouse Cases, 83 U.S. 36 (1873)
U.S. v. Reese, 92 U.S. 214 (1876); U.S. v. Cruikshank, 92 U.S. 542 (1876)
Munn v. Illinois, 94 U.S. 113 (1877)
Civil Rights Cases, 109 U.S. 3 (1883)
U.S. v. E.C. Knight Company, 156 U.S. 1 (1895)
Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429, 158 U.S. 601 (1895)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Murphy, "Struggle for Political Supremacy, 1866-1937," Congress and the Court, (1962), 35-65
Presentation: David McBride, "Mid-Atlantic State Courts and the Struggle with the "Separate But Equal Doctrine, 1900-1939," Rutgers L. Journal, (1986), 17:569-89.
Skowronek, Building a New American State, (1981)

PART III: Modern Courts, Modern Legislatures
March 3-5
Polsby, "The Institutionalization of the House of Representatives," APSR, LXII: 144-168
Barrow, Zuk, and Gryski, Institutional Change and the Federal Judiciary, (1996) [on reserve]
Davidson, "What Judges Ought to Know about Lawmaking in Congress," JL, 90-115
Kastenmeier and Remington, "A Judicious Legislator's Lexicon to the Fed. Judiciary." JL, 54-89
Linde, "Observations of a State Court Judge," JL, 117-125

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SPRING BREAK (MARCH 10-12)
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March 17-19 Judicial Review, Supremacy, Finality
Dahl, "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," Journal of Public Law, (1957), 6: 279-295
Casper, "The Supreme Court and National Policy Making," APSR, (1976), LXX: 50-63
Paschal, "The Continuing Colloquy: Congress and the Finality of the Supreme Court," J. of Law & Politics, (1991), 143-226
Graber, "The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary," Studies in American Political Development, (1993), 7: 35-73
Presentation: William N. Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," Yale Law Journal, (1991), 101: 331-455; Eugenia F. Toma, "Congressional Influence and the Supreme Court: The Budget as a Signaling Device," Journal of Legal Studies, (1991).
March 24-26 Comparative Perspectives
England: Kritzer, "Courts, Justice, and Politics in England," Jacob et al., Courts, Law, and Politics in Comparative Perspective, [CLPCP]; Tate, ed., The Global Expansion of Judicial Power: Chapter 5 (The United Kingdom); Atiyah, "Judicial Relations in England," Judges and Legislators
France: Provine, "Courts in the Political Process in France," CLPCP; Tate, ed., The Global Expansion of Judicial Power: Chapter 16 (France); [Chapter 12: Stone, "Complex Coordinate Construction in France and Germany"]
Germany: Blakenburg, "Changes in Political Regimes and Continuity of the Rule of Law in Germany," CLPCP; Tate, ed., The Global Expansion of Judicial Power: Chapter 17 (Germany); [Chapter 12: Stone, "Complex Coordinate Construction in France and Germany"]
Italy: Tate, ed., The Global Expansion of Judicial Power: Chapters 13 (Di Federico) and 14 (Guarnieri); Mary L. Vocansek, "Political Power and Judicial Review in Italy," Comparative Political Studies, (1994), 26: 492-509.
Courts in Rapidly-Changing Nations: Tate, ed., The Global Expansion of Judicial Power: Chapters 23, 24 (Russia); Chapters 25 (Phillipines and Southeast Asia); Chapters 26 (The Judicialization of Namibian Politics)
Mar.31-Apr 2 Representation
Kromkowski, "A Theory of Judicial Behavior in Non-Monopolistic Policy Domains"
Kromkowski, "Wholly Macro!: Beyond Micro-Level Models of Judicial Behavior"
Ryden, Representation in Crisis
April 7-9 Civil Rights/Criminal Rights
Rosenberg, HH, pp. 39-172, 304-35
Eskridge, "Reneging on History? Playing the Court/Congress/President Civil Rights Game," California Law Review, (1991) 79: 613-684
April 14-16 Abortion
Epstein and Kobylka, SCLC, 137-298; Rosenberg, HH, 173-268; Neal Devins, Shaping Constitutional Values, (1996)
April 21-23 Death Penalty
Epstein and Kobylka, SCLC, pp. 34-136
The Imperial/Representative Judiciary and the End of Democracy?
First Things, Symposium I-II; "Theocon v. Neocon," New Republic, National Review
April 28 Conclusions
Katzman, "Summary of Proceedings," and "The Continuing Challenge," JL, 162-89
____________________
Attendance: Required
Grading:
Participation 33%
Paper 33%
Final 33%
Office Hours: after class and by appointment.