PLSC 385: JUDICIAL PROCESS AND BEHAVIOR
Instructor: Professor Pyle
Section:
21842
Office:
601d Pray-Harrold
Time:
2:00-3:15
Cell Phone: 734-660-1732
Place:
420 Pray-Harrold
Office Hours:
8:30-9:30a, 11:00-2:00, TTh and MW By Appointment
E-Mail:
bpyle@emich.edu
Cell Phone:
734-660-1732
PURPOSE OF THE COURSE: AMERICAN courts represent a unique mixture of law and
politics. Evidence of this unique institutional mixture is found in words of two early
American commentators. Alexander Hamilton believed that the court, as a legal
institution, is the least dangerous branch of the federal government because they had
neither the power of the sword nor the purse and only the power of will and judgement.
Hamilton's statement is born out in the fact that, in most cases, courts must participate
within the political and policy process if they want their decisions to be implemented
and impact society. On the other hand, Alexis de Tocqueville described the importance
of courts in the American political system by stating that most of America's political
questions are sooner or later turned into legal questions. The accuracy of de
Tocqueville's description is evidenced by the fact that courts play an important role in
most major political or policy questions. However, if both these notions are true, they
indicate that a paradox exists between courts as legal and political institutions. That is,
courts may not have the power, ability, or capacity to act in their expected role as
political problem solvers or policy-makers. The judicial system’s apparent paradox
raises three important questions that will be addressed throughout the semester. First, is
there a distinction between legal and political institutions? Second, should courts have
the role of making public policy in a political environment? Finally, do courts have the
necessary autonomy and capacity to make effective public policy? The first two
questions are mostly normative in nature and the latter is empirical. In order to address
these distinct and comprehensive questions, it is important to understand the history of
American courts as well as the nature of the judicial process and the behavior of
judicial actors. The development of this understanding is the orienting purpose of this
course.
To develop an understanding of the federal judicial system, the course is divided
into five sections with a particular focus on the US Supreme Court. The first section
briefly outlines the nature of law as well as the general nature and history of the federal
and state judiciaries. We will pay special attention to the role of the judiciary in a
constitutional democracy. The second section of the course focuses on the selection,
education and behavior of judicial actors. Primarily, the focus will be on lawyers,
interest groups, judges/justices, and the courts as a set of legal rules and practices.
From there, the course turns to an examination of the judicial process or the context in
which judicial actors behave. I cannot underestimate the importance of understanding
the nature of this process. Simply put, we define justice as process. If you do not
understand the process, you cannot understand American law and its attempt to
approximate a notion of justice. The fourth section examines the trial and appellate
processes of legal decision-making, interpretation and policy-making. This section
focuses on how the trial and appellate court processes of agenda setting and decisionmaking influences the role of judicial actors as adjudicators and policy-makers. The
fifth and final section ties the previous sections together and investigates the role of
federal courts in American government as well as the courts autonomy and capacity to
impact society and implement their decisions in the fulfillment of that role. In the end,
the goal of the course is to establish an empirical understanding of the judiciary that can
serve as a basis for drawing critical and normative conclusions about the role of the
judiciary in a constitutional democracy.
STUDENT RESPONSIBILITIES: Readings for the class are taken from three books and
various posted and assigned articles. The books are listed below. Students are
expected to keep up with the readings in order to make the lectures more clear and
facilitate class discussion. Students are responsible for the materials presented in the
lectures and the readings. The lectures and the readings will often overlap; however,
this will not always be the case. Therefore, in order to perform well on the exams, it is
necessary to attend class and do the required readings. The class grade will compose of
a midterm and final examination as well as an independent research project or paper.
The format and scope of the exams and grading scale as well as the nature of the
research project will be discussed in class on January 14th. Exams will include a
combination of multiple choice, and short essays as well as a take-home question.
These two exams will makeup approximately 55% of the final grade (First Midterm
30% and Final Exam 25%). The in-class portion of the exams will focus on descriptive
and empirical issues while the take-homes will focus on the connection between factual
issues and normative questions. The research paper/project will be worth 35% (Drafts
10% and Finished Product 25%) and the remaining 10% will be based on class
participation, attendance and quizzes. Students are required to take the examinations
and turn in written work on the dates given in the course outline or in class. I do not
like to give makeup exams and I will not give one unless you notify me at least one
class period in advance and have a valid excuse that can be verified. I also understand
that emergency situations may arise. These will be dealt with on an individual basis.
Unless otherwise specified, if you hand in the paper late, it will be penalized at the
rate of TEN points a day. YOU MAY NOT TURN IN WRITTEN WORK VIA
EMAIL.
EMAILED WORK WILL BE DELETED UNLESS WE HAVE
DISCUSSED ITS USE AHEAD OF TIME. PERIOD
In addition to completing the required assignments on time, students will be required
to answer any and all questions in their own words. That is, cutting and pasting
answers from any source, without proper citation, is a form of plagiarism and will not
be accepted. Any assignments that are completed in this way will NOT be given credit
and can result in disciplinary action by the University. Please see the University's policy on
plagiarism and academic dishonesty at
http://www.emich.edu/studentconduct/facultylinks/academic_integrity.php Judicial Services defines
plagiarism as "Plagiarism - deliberate and knowing use of someone else’s work or ideas as one’s own.
Examples of plagiarism are: quoting a source verbatim, or paraphrasing text from a given source, without
properly citing the source; turning in a research paper that was written by someone else; or in any other way
passing off someone else’s work as one’s own; or failing to give credit for ideas or materials taken from
someone else." The Halle Library site contains more information about plagiarism and integration of sources
at http://www.emich.edu/library/help/integratingsources.php
Please be sure also that you understand the EMU Student Conduct Code
http://www.emich.edu/sjs/discproces.html and adhere to its guidelines when interacting with
others during this course. Being in the ‘academic-world’ does not mean that you will not be
held accountable for any unethical, discriminatory, or otherwise inappropriate conduct or
language as described in the Student Conduct Code. There will, no doubt, be times when
the topic of discussions will raise some very passionate ideas from many different
viewpoints. I strongly recommend using language that is the least offensive and please
remember to not take things too personally. Lets try and be as respectful of others ideas and
viewpoints as possible.
Notes about electronics in class:
1) NO CELL PHONES UNLESS THERE ARE EXTRAORGINARY CIRCUMSANCES (I.E., SICK
RELATIVE)
2) NO TEXTING IN CLASS
3) COMPUTERS MAY BE USED FOR NOTE TAKING AND CLASS RELATED ACTIVITIES –
FACEBOOK AND OTHER SOCIAL NETWORK SITES AS WELL AS EBAY ET AL. ARE NOT
CLASS RELATED.
4) VIOLATIONS OF THESE POLICIES WILL RESULT IN POINTS BEING DEDUCTED FROM
YOUR PARTICIPATION GRADE (05% REDUCTION PER INFRACTION).
I believe that the most important part of the college experience relates to what goes on in the classroom. If
you are not engaged with the material, you are not learning. THAT BEING SAID ….. I RESERVE THE
RIGHT TO TAKE ATTENDENCE AND COUNT THE LACK THEREOF AGAINST YOUR GRADE.
READINGS:
Barbara Perry – The Michigan Affirmative Action Cases
Kevin McGuire – New Directions in Judicial Politics
Gerald Rosenberg – The Hollow Hope
Others posted in syllabus, my.emich and on J-Store
JANUARY:
7
Class Introduction
I. FOUNDATIONS OF LAW AND COURTS: POLITICAL JURISPRUDENCE AS
SYSTEM
STRUCTURE AND FUNCTION
9-21 The Nature of Law and the Legal Process – A Time for review? and context
Readings:
THE CASE OF THE SPELUNCEAN EXPLORERS – Posted on my.emich
Cardozo – Posted on my.emich
The Rule of Law as a Law of Rules
Antonin Scalia
The University of Chicago Law Review
Vol. 56, No. 4 (Autumn, 1989), pp. 1175-1188
Published by: The University of Chicago Law Review
Marbury v. Madison (1803) –Posted on my.emich
McCulloch v. Maryland (1823) – Posted on my.emich
Federalist 78 – Posted on my.emich.edu
Power Point Slides – Posted on my.emich.edu
23
Legal Research and Your Research Paper – We Begin our Analysis
Case for Paper Due Today – Write name of case on a piece of paper - EASY
Readings:
Perry Chapter 1-2 (Context of a Legal Policy Dispute)
23-28 The Basic Introduction to the Legal System – Federalism and
Institutional Hierarchy
Readings:
None so you had better come to class…Yo!
II. JUDICIAL PARTICIPANTS: THE BEHAVIOR OF LAWYERS, CLIENTS AND JUDGES
A. Lawyers, the Legal Profession and Litigants
28
Law School Day – Maybe a Visitor
FEBUARY:
30-4 Lawyers, Political Litigation and Clients – What they do and who they do it to
Readings:
An Essay on the New Public Defender for the 21st Century
Charles J. Ogletree, Jr.
Law and Contemporary Problems
Vol. 58, No. 1, Toward a More Effective Right to Assistance of Counsel (Winter, 1995), pp. 81-93
Published by: Duke University School of Law
Stable URL: http://www.jstor.org/stable/1192169
Perry Chapter 3 (The Dispute, Parties and their Representatives)
McGuire pp. 221-237
B. Judges and Justices: Background, Selection, and Socialization
6-11 Judicial Selections and its Connection to Adjudication
Readings:
McGuire Part I pp 1-52
13-18 Judges and Their Bench – Different Roles and Different Goals
Readings:
Speeches of Alex Kozinski – Posted on my.emich
Perry Chapter 4
20-4 The Civil Process, ADR and Litigation as Policy Strategy
Draft of First Part of Research Paper Due on 4th: Introduction as well as Historic
and Legal Background, Facts, Parties, Lawyers and Judges1
Readings:
Alternative Dispute Resolution: Wrong Solution, Wrong Problem
Austin Sarat
Proceedings of the Academy of Political Science
Vol. 37, No. 1, New Directions in Liability Law (1988), pp. 162-173
Published by: The Academy of Political Science
Stable URL: http://www.jstor.org/stable/1174062
McGuire pp. 53-54 & 80-106
– Who are they and initial assertions on how they will impact the nature of the
case and eventual decisions (Please note that Judges and Representatives Will
Change at Each Stage you may write about them separately.
1
III. JUDICIAL PROCESS AS CONTEXT FOR DECISION-MAKING AND POLICY-MAKING:
CRIMINAL AND CIVIL COURTS
MARCH:
6-13 The Criminal Process, Plea Bargaining and the Costs of Criminal Justice
Draft of Trial Court Disposition Due on 13th – Framing the issue at Trial
Readings:
The Impropriety of Plea Agreements: A Tale of Two Counties
David Lynch
Law & Social Inquiry
Vol. 19, No. 1 (Winter, 1994), pp. 115-133
Published by: Wiley on behalf of the American Bar Foundation
Stable URL: http://www.jstor.org/stable/828432
McGuire pp. 55-79
18
FIRST MIDTERM EXAMINATION
IV. APPELLATE COURTS: INTERPRETATION OF LAWS OR POLICY-MAKING
A. Appellate Court Process and Decision-Making
20-25 How Appellate Court Process Impacts Decision-Making
Readings:
McGuire 144-166, 167-185, 186-204 and 259-276
Perry Chapter 5-6
B. Decision-Making in Appellate Courts
27
Continued and Understanding Lower Appellate Courts – An analysis of State High
Courts and Federal Appeal Courts.
Readings:
McGuire pp. 109-143
Martin and Pyle on State High Courts – Posted on my.emich.edu
April
1-3
Legal Decisions at the US Supreme Court: Original Intent and Precedent –
Exogenous Formalism
Draft of Appellate Court Disposition and Oral Argument analysis due on 1st
Readings:
Scalia on Originalism – Posted on my.emich
The Norm of Stare Decisis
Jack Knight and Lee Epstein
American Journal of Political Science
Vol. 40, No. 4 (Nov., 1996), pp. 1018-1035
Published by: Midwest Political Science Association
Stable URL: http://www.jstor.org/stable/2111740
The Influence of Stare Decisis on the Votes of United States Supreme Court Justices
Jeffrey A. Segal and Harold J. Spaeth
American Journal of Political Science
Vol. 40, No. 4 (Nov., 1996), pp. 971-1003
Published by: Midwest Political Science Association
Stable URL: http://www.jstor.org/stable/2111738
Slaying the Dragon: Segal, Spaeth and the Function of Law in Supreme Court Decision Making
Richard A. Brisbin, Jr.
American Journal of Political Science
Vol. 40, No. 4 (Nov., 1996), pp. 1004-1017
Published by: Midwest Political Science Association
Stable URL: http://www.jstor.org/stable/2111739
Examples: Original Intent - Historic Meaning of Words
Heller: http://www.oyez.org/cases/2000-2009/2007/2007_07_290
Nixon: http://www.oyez.org/cases/1990-1999/1992/1992_91_740
Example: Precedent - Casey: http://www.oyez.org/cases/1990999/1991/1991_91_744
8
Political Decisions at The US Supreme Court: Judicial Attitudes and Raw Politics
Readings:
Reflections on the Bicentennial of the United States Constitution
Thurgood Marshall
Harvard Law Review
Vol. 101, No. 1 (Nov., 1987), pp. 1-5
Published by: The Harvard Law Review Association
Stable URL: http://www.jstor.org/stable/1341223
McGuire 207-220 & 238-256
Example Attitudes and Preferences: Griswold: http://www.oyez.org/cases/19601969/1964/1964_496 & Lopez: http://www.oyez.org/cases/19901999/1994/1994_93_1260
10-15 The Hollow Hope – Read the Whole Book for Discussion and Analysis.
17
Final Paper Due on the 17th All Parts – Review for Final
Final Exam April 22 at 1:30-3:00pm