Vol. 28 No. 3 (June 2018) pp. 33-35THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING*, by Christopher P. Banks and David M. O’Brien. Los Angeles: CQ Press, 2016. 400 pp. Paper. $88.00 ISBN: 978-1-4833-1701-4.
Reviewed by Claire B. Wofford, Department of Political Science, College of Charleston. Email: wofforcb@cofc.edu.
While there has been no shortage of dismay among academics about the various activities and policies of the Trump administration, there is one development that most law and courts scholars surely favor: the renewed focus on the legal system. Indeed, a new story appears nearly every day about how some legal actor (lawyer, judge, private litigant, interest group) has turned to the courts to manage the current president. Aside from the pending litigation about the travel ban, the Emoluments clause, and the prohibition of transgender troops in the military, there is also the ongoing saga of the Mueller investigation and the additional legal inquiries it has spawned. Though the general public may not follow all of this as closely as academics, it is hard not to notice that the judiciary has moved front and center in American politics.
If these developments spark student interest in law and courts the way the 2018 election seemed to do for American political science generally, then Christopher P. Banks and David M. O’Brien’s newest collaboration for undergraduate courses arrives at a particularly fortuitous time. Judicial process textbooks appear regularly (these same authors published a similar one in 2008, reviewed in these pages in November of 2007) and meet our pedagogical needs with varying degrees of success. But given both the strengths of this book itself and the increasing reliance of many on the judiciary to rein in the current executive, this textbook may prove even more apropos and popular than its authors could have foreseen.
Similar to their prior text, THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING is divided into four major sections, which are then subdivided into chapters, with two to four chapters per section. Part 1, entitled “Law and Political Jurisprudence in a Globalized Society” contains the “Politics of Law and Courts in Society” and the “Politics of Law and Jurisprudence.” Part 2 is the more traditional “nuts and bolts” of the judicial process, with chapters on federal and state court organization and administration as well as judicial selection and removal. In Part 3, “Access to the Courts and Judicial Decision-Making,” the authors cover the legal profession and practice of law, formal and discretionary barriers (such as standing and mootness) to accessing courts, and the processes and procedures of both criminal and civil trial courts. The book concludes with Part 4, “Judicial Policymaking,” which includes chapters on appellate court decision-making and the extent of, and limits on, judicial policymaking power.
The first thing to note about this book is that it has a lot of meat to it. As with many similar texts, it tackles everything from the role of courts and theories of jurisprudence, to how courts actually operate and what explains judicial decision-making, to what, if any, impact they have upon our culture, lives, and institutions. The use of sources is similarly expansive. The authors draw on news articles, polling data, court opinions, think tank research articles, and a wide range of social science and law review publications. Citations abound and the accompanying endnotes provide additional explanations and details for the interested reader. Instructors will likely find some particularly useful tidbits here to augment lecture content or foster class discussion. Rather than being organized as a reader with specific excerpts, the book uses the standard presentation of information through straightforward descriptive writing, which is both clear and substantive.
This combination of content, sourcing, and writing style generates a book with plenty of [*34] material for an undergraduate class. Indeed, the book is so rich in parts that professors will likely have to carefully monitor student understanding and judiciously select (no pun intended) which portions to emphasize and which to skip. While this is almost always part of our pedagogical duties, the breadth and depth of this textbook in particular is likely to require active instructor involvement (for many of us, of course, this is welcome).
In terms of appealing to students, the authors have done a very nice job of breaking up the text with various fonts, subheadings, and graphics. There is a plethora of photographs (Robert Bork appears at his most fierce, for instance) as well as cartoons, quotes (Justice Scalia’s acerbic comments are an understandable favorite), figures, and tables. The tables are particularly well-done; both simple and visually appealing, they provide clear summaries of information to punctuate particular phenomenon, such as plaintiff win rates across various torts and the diversity (or lack thereof) of judicial appointees across presidents. Students should be able to easily and quickly grasp what is being illustrated.
Almost every chapter opens with a current event or compelling story, presumably to “hook” the students. The authors use these narratives to introduce broader themes and concepts to be explored in the chapter. Some of the anecdotes are more successful than others. Discussion of the (now lifted) ban on women driving in Saudi Arabia, for example, is not quite as compelling an example of law as social control as it might have once been; Justice Sotomayor’s comments about a “wise Latina justice” might spark more student interest than Justice Scalia’s drier statement about “good judges and bad judges.” On balance, though, the storytelling does spice up material students might otherwise find irrelevant or abstract.
The “Contemporary Controversies over Courts” boxes found through the book also enliven the text. Here, the authors highlight a particular issue and present various viewpoints about how it should be best resolved. The results are again mixed: public financing of judicial elections may not thrill undergraduates, but the more familiar questions about how judges should interpret the Constitution or whether or not courts can generate social change probably will. For instructors who wish to demonstrate the relevance, interest, and importance of the material, all of these examples should offer a very useful segue. There are also the usual, but still helpful inclusions of chapter summaries, key questions, web links, and references for additional reading at the end of each chapter. Lastly, there are two Appendices (one devoted to how to conduct legal research and another that lists membership on the U.S. Supreme Court) and a basic glossary of legal terms and key concepts that (somewhat oddly) are not defined in the main text.
While the book’s breadth and depth are notable, the coverage is not always executed perfectly. Part 1, for instance, admirably draws attention to the effects of globalization on judiciaries and the structure and operation of the legal system in other countries, topics which many similar textbooks do not address. Unfortunately, the rest of the text (save for more “boxes” on comparative courts peppered throughout the text), is focused almost entirely on American courts. The chapter on the legal profession is thorough (and should provide a good reality check for students who actually expect to emulate the portrayals of attorneys they see on television), but then other, seemingly more fundamental topics are somewhat obfuscated – for example, the U.S. Courts of Appeals and the Supreme Court are lumped together under “appellate judicial decision-making,” plea bargaining gets just a few pages, and the chapter on access to courts offers little on how larger social, political, economic, and demographic factors limit court availability for dispute resolution. In addition, the authors’ use of tangible policy areas (school financing, desegregation, abortion, affirmative action, LGBTQ rights) to illustrate the impact of judicial decisions is stimulating, but the broader implications of when and how courts change political, social, legal, and cultural practices are not fully explored.
[*35] Despite the promises in the preface of the book’s relevance for “law or law-related classes,” instructors in courses other than basic judicial process might wish to proceed with caution. Some law and society topics are covered (the dispute pyramid, the court as therapist), and there are solid sections on legal theory and political jurisprudence, but the book is best suited for the traditional legal procedure or courts and politics courses. As noted, the focus on globalization and comparative courts also falls a bit short; those wishing to place U.S. courts in a broader context will likely need to look elsewhere or supplement with additional readings.
None of these flaws are even close to fatal, of course; no textbook designed for a generalized or introductory class on courts can perfectly meet expectations. Such is the price to be paid for setting an ambitious goal, as these authors do. Moreover, the book’s overarching theme – that every single aspect of the judicial process is political – should resonate well with how many of us approach our classes and explode any myths students still retain about the fairness, objectivity, and neutrality of the legal system. As long as instructors are willing to devote the effort needed to cull the book for what they deem most critical, THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING offers a valuable addition. Reliance on the “check” of the U.S. judiciary is likely to continue for at least another two, if not six or more years. As the legal process becomes increasingly critical of our current practice of governance and the politics of law and courts increasingly visible, so too may student demand for our expertise and the need for books such as this arise. I, for one, and am quite glad Banks and O’Brien have put forth this worthy contribution.
© Copyright 2018 by author, Claire B. Wofford.
Editor's note: The second edition of THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING is scheduled to be published by West Academic in Fall 2019.
