Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0001
- Subject:
- Political Science, European Union
Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of ...
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Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of governance, the judicial mode, consolidated as a stable set of practices; it explains that the approach taken combines three strains of theory – theory on judicialization and governance, on the courts as commitment devices, and on the dynamics of judicial rulemaking and precedent. The second section, European Integration and the Legal System, indicates that the book expands on previous efforts to elaborate and test a theory of European integration, and shows that its primary focus is on the impact of adjudicating European Community law on the institutionalization of the European Union (EU), rather than on the impact of EU law on national legal systems. The third section, Determinants of Judicial Discretion in the EU, looks at the question of how the European Court has been able to have such an impact on the course of European integration and the work of the national courts. The fourth section, Precedent and the Path Dependence of Legal Institutions, focuses on why legal institutions tend to develop in path dependent ways; it begins by conceptualizing precedent, and then attempts to show how legal systems can develop in path dependent ways, and discusses how the book goes about analysing precedent in Europe. The last two sections look at the case selection and data used in the book and give a brief outline of its structure.Less
Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of governance, the judicial mode, consolidated as a stable set of practices; it explains that the approach taken combines three strains of theory – theory on judicialization and governance, on the courts as commitment devices, and on the dynamics of judicial rulemaking and precedent. The second section, European Integration and the Legal System, indicates that the book expands on previous efforts to elaborate and test a theory of European integration, and shows that its primary focus is on the impact of adjudicating European Community law on the institutionalization of the European Union (EU), rather than on the impact of EU law on national legal systems. The third section, Determinants of Judicial Discretion in the EU, looks at the question of how the European Court has been able to have such an impact on the course of European integration and the work of the national courts. The fourth section, Precedent and the Path Dependence of Legal Institutions, focuses on why legal institutions tend to develop in path dependent ways; it begins by conceptualizing precedent, and then attempts to show how legal systems can develop in path dependent ways, and discusses how the book goes about analysing precedent in Europe. The last two sections look at the case selection and data used in the book and give a brief outline of its structure.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0005
- Subject:
- Political Science, American Politics
This chapter suggests that precedent is often discounted as a source in constitutional decision making because it is usually understood narrowly as judicial decisions. But it shows that a broader ...
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This chapter suggests that precedent is often discounted as a source in constitutional decision making because it is usually understood narrowly as judicial decisions. But it shows that a broader definition of precedent encompasses nonjudicial precedent (any of the past constitutional judgments of nonjudicial actors which judicial or other authorities seek to invest with normative power). It shows how nonjudicial precedent is important not only to courts, but to nonjudicial actors.Less
This chapter suggests that precedent is often discounted as a source in constitutional decision making because it is usually understood narrowly as judicial decisions. But it shows that a broader definition of precedent encompasses nonjudicial precedent (any of the past constitutional judgments of nonjudicial actors which judicial or other authorities seek to invest with normative power). It shows how nonjudicial precedent is important not only to courts, but to nonjudicial actors.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0007
- Subject:
- Political Science, American Politics
This chapter examines the relatively rare, though highly significant circumstances in which precedents are practically immune to reconsideration or reversal. After reviewing the basic features that ...
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This chapter examines the relatively rare, though highly significant circumstances in which precedents are practically immune to reconsideration or reversal. After reviewing the basic features that super precedents share, it examines whether specific precedents, such as Roe v. Wade, have these features. It concludes with an examination of the ramifications of super precedent for both constitutional theory and Supreme Court selection.Less
This chapter examines the relatively rare, though highly significant circumstances in which precedents are practically immune to reconsideration or reversal. After reviewing the basic features that super precedents share, it examines whether specific precedents, such as Roe v. Wade, have these features. It concludes with an examination of the ramifications of super precedent for both constitutional theory and Supreme Court selection.
Michael A. Bailey and Forrest Maltzman
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691151045
- eISBN:
- 9781400840267
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151045.001.0001
- Subject:
- Law, Legal History
How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? This book combines new theoretical ...
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How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? This book combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. The book shows how two types of constraints have influenced the decision making of the modern Court. First, the book documents that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The book finds considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, it shows that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. This book shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.Less
How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? This book combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. The book shows how two types of constraints have influenced the decision making of the modern Court. First, the book documents that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The book finds considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, it shows that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. This book shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.001.0001
- Subject:
- Political Science, American Politics
In this book Professor Michael Gerhardt provides the first comprehensive effort to use both social science methods and conventional legal analysis to explain the role of precedent in constitutional ...
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In this book Professor Michael Gerhardt provides the first comprehensive effort to use both social science methods and conventional legal analysis to explain the role of precedent in constitutional law. His analysis demonstrates how precedent influences more than social scientists claim, but less than most scholars claim. He further shows how precedent, broadly understood, performs multiple significant but underappreciated functions in constitutional decision making both inside courts and outside of them. Last, but not least, his analysis explains a fundamental tension in constitutional adjudication in which precedent is generally respected as an abstract principle but particular precedents rarely constrain the decisions of courts and nonjudicial actors.Less
In this book Professor Michael Gerhardt provides the first comprehensive effort to use both social science methods and conventional legal analysis to explain the role of precedent in constitutional law. His analysis demonstrates how precedent influences more than social scientists claim, but less than most scholars claim. He further shows how precedent, broadly understood, performs multiple significant but underappreciated functions in constitutional decision making both inside courts and outside of them. Last, but not least, his analysis explains a fundamental tension in constitutional adjudication in which precedent is generally respected as an abstract principle but particular precedents rarely constrain the decisions of courts and nonjudicial actors.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.001.0001
- Subject:
- Political Science, European Union
The law and politics of European integration have been inseparable since the 1960s, when the European Court of Justice rendered a set of foundational decisions that gradually served to ...
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The law and politics of European integration have been inseparable since the 1960s, when the European Court of Justice rendered a set of foundational decisions that gradually served to ‘constitutionalize’ the Treaty of Rome. In this book, the author, one of the world's foremost social scientists and legal scholars, blends deductive theory, quantitative analysis of aggregate data, and qualitative case studies to explain the dynamics of European integration and institutional change in the European Union (EU) since 1959. He shows that the activities of market actors, lobbyists, legislators, litigators, and judges became connected to one another in various ways, giving the EU its fundamentally expansionary character. The first chapter, ‘The European Court and Integration’, provides an introduction to the book. The second, written with Thomas Brunell, assesses the impact of Europe's unique legal system on the evolution of supranational governance. The following three chapters trace the outcomes in three policy domains: free movement of goods (written with Margaret McCown), sex equality (written with Rachel Cichowski), and environmental protection (written with Markus Gehring). There is also a concluding chapter. The book integrates diverse themes, including: the testing of hypotheses derived from regional integration theory; the ‘judicialization’ of legislative processes; the path dependence of precedent and legal argumentation; the triumph of the ‘rights revolution’ in the EU; delegation, agency, and trusteeship; balancing as a technique of judicial rulemaking and governance; and why national administration and justice have been steadily ‘Europeanized’.Less
The law and politics of European integration have been inseparable since the 1960s, when the European Court of Justice rendered a set of foundational decisions that gradually served to ‘constitutionalize’ the Treaty of Rome. In this book, the author, one of the world's foremost social scientists and legal scholars, blends deductive theory, quantitative analysis of aggregate data, and qualitative case studies to explain the dynamics of European integration and institutional change in the European Union (EU) since 1959. He shows that the activities of market actors, lobbyists, legislators, litigators, and judges became connected to one another in various ways, giving the EU its fundamentally expansionary character. The first chapter, ‘The European Court and Integration’, provides an introduction to the book. The second, written with Thomas Brunell, assesses the impact of Europe's unique legal system on the evolution of supranational governance. The following three chapters trace the outcomes in three policy domains: free movement of goods (written with Margaret McCown), sex equality (written with Rachel Cichowski), and environmental protection (written with Markus Gehring). There is also a concluding chapter. The book integrates diverse themes, including: the testing of hypotheses derived from regional integration theory; the ‘judicialization’ of legislative processes; the path dependence of precedent and legal argumentation; the triumph of the ‘rights revolution’ in the EU; delegation, agency, and trusteeship; balancing as a technique of judicial rulemaking and governance; and why national administration and justice have been steadily ‘Europeanized’.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0004
- Subject:
- Political Science, European Union
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of ...
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The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.Less
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.
Richard Caplan
- Published in print:
- 2005
- Published Online:
- July 2005
- ISBN:
- 9780199263455
- eISBN:
- 9780191602726
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199263450.003.0002
- Subject:
- Political Science, International Relations and Politics
Examines some of the more salient features of international administrations. Differentiates the various types of administrations on the basis of the degree of authority that they possess—ranging from ...
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Examines some of the more salient features of international administrations. Differentiates the various types of administrations on the basis of the degree of authority that they possess—ranging from supervisory (Cambodia) to direct governance (Kosovo and East Timor). Further distinguishes international administrations with regard to the aims and contextual factors that establish the framework of an operation. These operations are not entirely without precedent and the chapter also discusses relevant historical antecedents. Concludes with a discussion of the various international actors involved and the nature of the organizational structures created.Less
Examines some of the more salient features of international administrations. Differentiates the various types of administrations on the basis of the degree of authority that they possess—ranging from supervisory (Cambodia) to direct governance (Kosovo and East Timor). Further distinguishes international administrations with regard to the aims and contextual factors that establish the framework of an operation. These operations are not entirely without precedent and the chapter also discusses relevant historical antecedents. Concludes with a discussion of the various international actors involved and the nature of the organizational structures created.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0001
- Subject:
- Political Science, American Politics
The introduction provides an overview of the basic arguments in the book. It explains basic terminology used in the book and the likely significance of the book in the voluminous literature on ...
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The introduction provides an overview of the basic arguments in the book. It explains basic terminology used in the book and the likely significance of the book in the voluminous literature on precedent in constitutional law.Less
The introduction provides an overview of the basic arguments in the book. It explains basic terminology used in the book and the likely significance of the book in the voluminous literature on precedent in constitutional law.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0002
- Subject:
- Political Science, American Politics
This chapter provides a detailed overview of the Supreme Court's handling of precedent from the Jay Court through the Rehnquist Court. It examines the principal patterns in the justices' approach to ...
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This chapter provides a detailed overview of the Supreme Court's handling of precedent from the Jay Court through the Rehnquist Court. It examines the principal patterns in the justices' approach to precedent, particularly the different tests they have used to reevaluate their precedents. Moreover, it discusses some basic data with respect to the Court's overruling of precedent, and concludes with an examination of the many ways in which the justices weaken precedents without explicitly overruling them.Less
This chapter provides a detailed overview of the Supreme Court's handling of precedent from the Jay Court through the Rehnquist Court. It examines the principal patterns in the justices' approach to precedent, particularly the different tests they have used to reevaluate their precedents. Moreover, it discusses some basic data with respect to the Court's overruling of precedent, and concludes with an examination of the many ways in which the justices weaken precedents without explicitly overruling them.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0003
- Subject:
- Political Science, American Politics
This chapter critically examines the most prominent theories which social scientists and legal scholars have developed to explain the role of precedent in constitutional law. It shows that legal ...
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This chapter critically examines the most prominent theories which social scientists and legal scholars have developed to explain the role of precedent in constitutional law. It shows that legal variables matter more to the outcomes of cases than social scientists typically acknowledge, but less than many legal scholars claim. Nor, for that matter, have legal scholars been able to dismiss altogether the relevance of external factors to constitutional decision making, including the justices' personal attitudes about constitutional law and policy preferences.Less
This chapter critically examines the most prominent theories which social scientists and legal scholars have developed to explain the role of precedent in constitutional law. It shows that legal variables matter more to the outcomes of cases than social scientists typically acknowledge, but less than many legal scholars claim. Nor, for that matter, have legal scholars been able to dismiss altogether the relevance of external factors to constitutional decision making, including the justices' personal attitudes about constitutional law and policy preferences.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0004
- Subject:
- Political Science, American Politics
This chapter examines the multiple factors (ignored by most social scientists and legal scholars) limiting the path dependency of precedent—or the extent to which precedent forecloses or mandates ...
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This chapter examines the multiple factors (ignored by most social scientists and legal scholars) limiting the path dependency of precedent—or the extent to which precedent forecloses or mandates outcomes—in constitutional law. These factors help to explain an essential dynamic in constitutional law, the golden rule of precedent: justices and other constitutional actors must demonstrate respect for the precedent of others or risk having others not respect theirs. The golden rule of precedent explains why precedent generally may matter in constitutional law but particular precedents may not constrain constitutional decision making very much.Less
This chapter examines the multiple factors (ignored by most social scientists and legal scholars) limiting the path dependency of precedent—or the extent to which precedent forecloses or mandates outcomes—in constitutional law. These factors help to explain an essential dynamic in constitutional law, the golden rule of precedent: justices and other constitutional actors must demonstrate respect for the precedent of others or risk having others not respect theirs. The golden rule of precedent explains why precedent generally may matter in constitutional law but particular precedents may not constrain constitutional decision making very much.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0006
- Subject:
- Political Science, American Politics
In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of ...
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In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of social scientists who study courts. These multiple functions include educating the public about constitutional law, shaping constitutional discourse in and outside of courts, implementing constitutional values, clarifying constitutional structure and history, resolving particular cases or controversies, and democratizing constitutional law.Less
In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of social scientists who study courts. These multiple functions include educating the public about constitutional law, shaping constitutional discourse in and outside of courts, implementing constitutional values, clarifying constitutional structure and history, resolving particular cases or controversies, and democratizing constitutional law.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0008
- Subject:
- Political Science, American Politics
In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of ...
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In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of precedent in its first two years. He suggests that the Roberts Court has been entirely predictable in avoiding direct overruling of precedents, weakening precedents which the majority does not like, and grounding its opinions largely (but not wholly) in precedent. Gerhardt reiterates the case for his comprehensive framework for explaining better than other current theories (or statistical studies) the multiple functions of constitutional law. One strength he identifies in his framework is the importance it places on candor as a means for justices and other constitutional actors to clarify the significance of precedent, as contrasted with judicial minimalism, which liberates justices from having to explain the reasons for (or implications of) their decisions.Less
In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of precedent in its first two years. He suggests that the Roberts Court has been entirely predictable in avoiding direct overruling of precedents, weakening precedents which the majority does not like, and grounding its opinions largely (but not wholly) in precedent. Gerhardt reiterates the case for his comprehensive framework for explaining better than other current theories (or statistical studies) the multiple functions of constitutional law. One strength he identifies in his framework is the importance it places on candor as a means for justices and other constitutional actors to clarify the significance of precedent, as contrasted with judicial minimalism, which liberates justices from having to explain the reasons for (or implications of) their decisions.
Martin Shapiro and Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.001.0001
- Subject:
- Political Science, Comparative Politics
Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and ...
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Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In this book, two leading political scientists present a compilation of their research in 11 papers (some old, some new) that focus on how to build and test a social science and politics of law, courts, and judging. Chapters 1–5 each contain two pieces, one by each author addressing a common topic. Each pair of papers is preceded by co-authored introductions that explain how the materials presented relate to the more general purpose of developing a broad-gauge social science research agenda on law and courts, discuss the original motivations for writing the papers, and trace important (but perhaps not always obvious) connections between the two offerings. Chapter 6 consists of a co-authored piece. The opening chapter features Shapiro’s classic ‘Political Jurisprudence’, and Stone Sweet’s ‘Judicialization and the Construction of Governance’, pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the law-making dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping ‘judicialization of politics’ around the world. Chosen empirical settings include the United States, the GATT–WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.Less
Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In this book, two leading political scientists present a compilation of their research in 11 papers (some old, some new) that focus on how to build and test a social science and politics of law, courts, and judging. Chapters 1–5 each contain two pieces, one by each author addressing a common topic. Each pair of papers is preceded by co-authored introductions that explain how the materials presented relate to the more general purpose of developing a broad-gauge social science research agenda on law and courts, discuss the original motivations for writing the papers, and trace important (but perhaps not always obvious) connections between the two offerings. Chapter 6 consists of a co-authored piece. The opening chapter features Shapiro’s classic ‘Political Jurisprudence’, and Stone Sweet’s ‘Judicialization and the Construction of Governance’, pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the law-making dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping ‘judicialization of politics’ around the world. Chosen empirical settings include the United States, the GATT–WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.
Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0003
- Subject:
- Political Science, Comparative Politics
This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the ...
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This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis, which is here proposed as a new theory. Shapiro defines stare decisis as loosely meaning the practice of courts in deciding new cases in accordance with precedents, and in the ensuing discussion of the theory, he draws upon insights from both communications theory and previous work of his own on the decision-making process in tort law. He first examines the three branches of communications theory with respect to legal discourse: syntactics (the arrangement, transmission, and receipt of signals or signs, whose key concepts are information, redundancy, and feedback), semantics (the meaning of signals to people), and pragmatics (the impact of signal transmission and human behaviour), and then applies these concepts to the evolution of policy formulation in tort law in the United States and Britain. The survival of stare decisis as the dominant mode of legal discourse, particularly in the area of common law, is explained as its strength in its dual and mutually supporting contents of syntactic and semantic redundancy.Less
This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis, which is here proposed as a new theory. Shapiro defines stare decisis as loosely meaning the practice of courts in deciding new cases in accordance with precedents, and in the ensuing discussion of the theory, he draws upon insights from both communications theory and previous work of his own on the decision-making process in tort law. He first examines the three branches of communications theory with respect to legal discourse: syntactics (the arrangement, transmission, and receipt of signals or signs, whose key concepts are information, redundancy, and feedback), semantics (the meaning of signals to people), and pragmatics (the impact of signal transmission and human behaviour), and then applies these concepts to the evolution of policy formulation in tort law in the United States and Britain. The survival of stare decisis as the dominant mode of legal discourse, particularly in the area of common law, is explained as its strength in its dual and mutually supporting contents of syntactic and semantic redundancy.
Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0004
- Subject:
- Political Science, Comparative Politics
This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, ...
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This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, in October 2000; it is one of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis. Stone Sweet provides explicit theoretical foundations for the path dependence of legal institutions, and an argument as to why this should matter to social scientists and to lawyers. The paper elaborates a model of adjudication in which institutional development and decision-making are linked through highly organized discursive choice-contexts – meso structures called ‘argumentation frameworks’, which are curated by judges as legal precedents. Litigants and judges are assumed to be rational utility-maximizers, but they are also actors who pursue their self-interest in discursive ways, through argumentation and analogic reasoning, and sustained, precedent-based adjudication leads to outcomes that are both indeterminate and incremental: i.e. they are path dependent. The paper concludes by addressing various implications of the argument which, taken together, define an agenda for research.Less
This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, in October 2000; it is one of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis. Stone Sweet provides explicit theoretical foundations for the path dependence of legal institutions, and an argument as to why this should matter to social scientists and to lawyers. The paper elaborates a model of adjudication in which institutional development and decision-making are linked through highly organized discursive choice-contexts – meso structures called ‘argumentation frameworks’, which are curated by judges as legal precedents. Litigants and judges are assumed to be rational utility-maximizers, but they are also actors who pursue their self-interest in discursive ways, through argumentation and analogic reasoning, and sustained, precedent-based adjudication leads to outcomes that are both indeterminate and incremental: i.e. they are path dependent. The paper concludes by addressing various implications of the argument which, taken together, define an agenda for research.
Albert Casullo
- Published in print:
- 2003
- Published Online:
- May 2006
- ISBN:
- 9780195115055
- eISBN:
- 9780199786190
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195115058.003.0003
- Subject:
- Philosophy, Metaphysics/Epistemology
This chapter examines two conceptions of a priori justification: (AP1) S’s belief that p is justified a priori if and only if S’s belief that p is nonexperientially justified; and (AP2) S’s belief ...
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This chapter examines two conceptions of a priori justification: (AP1) S’s belief that p is justified a priori if and only if S’s belief that p is nonexperientially justified; and (AP2) S’s belief that p is justified a priori if and only if S’s belief that p is nonexperientially justified and cannot be defeated by experience. Two criteria are introduced to evaluate them: continuity with historical precedent, and coherence with generally accepted concepts and principles in the theory of knowledge. It is argued that although historical precedent does not favor either analysis, several theoretical considerations favor (AP1) over (AP2). (AP1) coheres better with the standard treatment of related epistemic concepts, highlights the central epistemic question raised by the theory of a priori knowledge, and satisfies a plausible criterion of adequacy regarding a priori justification; it leaves open the possibility of empirical knowledge of propositions knowable a priori.Less
This chapter examines two conceptions of a priori justification: (AP1) S’s belief that p is justified a priori if and only if S’s belief that p is nonexperientially justified; and (AP2) S’s belief that p is justified a priori if and only if S’s belief that p is nonexperientially justified and cannot be defeated by experience. Two criteria are introduced to evaluate them: continuity with historical precedent, and coherence with generally accepted concepts and principles in the theory of knowledge. It is argued that although historical precedent does not favor either analysis, several theoretical considerations favor (AP1) over (AP2). (AP1) coheres better with the standard treatment of related epistemic concepts, highlights the central epistemic question raised by the theory of a priori knowledge, and satisfies a plausible criterion of adequacy regarding a priori justification; it leaves open the possibility of empirical knowledge of propositions knowable a priori.
Michael A. Bailey and Forrest Maltzman
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691151045
- eISBN:
- 9781400840267
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151045.003.0005
- Subject:
- Law, Legal History
This chapter discusses how historical context and personal experiences influence the legal values of justices, but the connections are imperfect and unpredictable. It argues that legal values are not ...
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This chapter discusses how historical context and personal experiences influence the legal values of justices, but the connections are imperfect and unpredictable. It argues that legal values are not independent of politics. As legal regimes evolve, so too do the patterns of legal values that justices hold. Adhering to these legal values may lead justices to vote against their immediate policy preferences. Once a justice subscribes to a doctrine, it does indeed act as a constraint. But justices typically associate themselves with legal values that tend to promote their favored outcomes. Personal experiences also shape a justice's support for stare decisis. Whether previous experience is measured in federal or total terms, justices who had more experience as a judge before coming to the Court show higher levels of influence by precedent.Less
This chapter discusses how historical context and personal experiences influence the legal values of justices, but the connections are imperfect and unpredictable. It argues that legal values are not independent of politics. As legal regimes evolve, so too do the patterns of legal values that justices hold. Adhering to these legal values may lead justices to vote against their immediate policy preferences. Once a justice subscribes to a doctrine, it does indeed act as a constraint. But justices typically associate themselves with legal values that tend to promote their favored outcomes. Personal experiences also shape a justice's support for stare decisis. Whether previous experience is measured in federal or total terms, justices who had more experience as a judge before coming to the Court show higher levels of influence by precedent.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0003
- Subject:
- Law, Legal History
This chapter concentrates on the sources of English law that were treated within the system as rules of recognition; as authority, in other words, for what the law was, rather than as mere ...
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This chapter concentrates on the sources of English law that were treated within the system as rules of recognition; as authority, in other words, for what the law was, rather than as mere descriptions of propositions that courts would apply as law. In formal terms, legislation and judicial precedent were the two sources that predominated, as they had for centuries. Some legal writings, together with established customs and similar practices, might also rate on occasion; but if they were admitted at all as sources, they tended to be treated as secondary.Less
This chapter concentrates on the sources of English law that were treated within the system as rules of recognition; as authority, in other words, for what the law was, rather than as mere descriptions of propositions that courts would apply as law. In formal terms, legislation and judicial precedent were the two sources that predominated, as they had for centuries. Some legal writings, together with established customs and similar practices, might also rate on occasion; but if they were admitted at all as sources, they tended to be treated as secondary.
