Courts and Judicial Policymaking / Edition 1

Courts and Judicial Policymaking / Edition 1

by Christopher P. Banks, David M. O'Brien

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ISBN-10: 0131443496

ISBN-13: 9780131443495

Pub. Date: 01/01/2007

Publisher: Pearson

For courses in courts and judicial process; and law and society. The scope of its coverage, and its high academic quality, makes it attractive for graduate courses as well.

Courts and Judicial Policymaking is the only comprehensive textbook on courts, law, and judicial policymaking.

The authors wrote this book to fill a need for a


For courses in courts and judicial process; and law and society. The scope of its coverage, and its high academic quality, makes it attractive for graduate courses as well.

Courts and Judicial Policymaking is the only comprehensive textbook on courts, law, and judicial policymaking.

The authors wrote this book to fill a need for a comprehensive textbook on law and judicial policymaking. The authors present and combine both legal and political science perspectives, and provide an alternative to pre-existing and limited judicial process texts that do not combine legal academy and political science approaches, overemphasize federal courts, and present a limited comparative judicial process analysis; and, instead, offer a fresh perspective on the contemporary politics of law, courts, the legal profession, and judicial policymaking, often with an underlying comparative judicial process perspective.

Product Details

Publication date:
Edition description:
New Edition
Product dimensions:
6.00(w) x 9.00(h) x 1.00(d)

Table of Contents




Section I: The Nature of Law

CHAPTER 1. Legal Systems and Sources of Law

Legal Systems

Civil Law, Common Law, Ideological Legal Systems, Religious Legal Systems, Customary and “Mixed” Legal Systems

The Nature and Sources of Law

Public Law, Private Law

CHAPTER 2. The Politics of Law and Jurisprudence

Classical Theories of Jurisprudence

Natural Law, Legal Positivism, Sociological Jurisprudence and Legal Realism

Contemporary Theories of Jurisprudence

Economics in Law and Pragmatism, Feminist Jurisprudence, Critical Legal and Race Perspectives

Controversies Over Courts: How Should Judges Interpret the Constitution?

The Rule of Law and the Judicial Process

In Comparative Perspective: Constitutional Courts in Europe

Section II: Court Organization and Operation

CHAPTER 3. Judicial Organization, Structure, and Administration

The Origins of U.S. Courts

The 1798 Judiciary Act, The Growth of the Federal Judiciary

Contemporary Judicial Federalism: State and Federal Courts

State Judiciaries, The Federal Judiciary

In Comparative Perspective: Courts in South and Southeast Asia

The Politics of Judicial Administration

State Court Administration, The Administration of the Federal Judiciary

The Politics of Judicial Reform in the 21st Century

Controversies over Courts: Should the Public Finance State Judicial Elections?

Chapter 4 . Judicial Recruitment, Retention, and Removal

State Judicial Selection

Controversies over Courts: Are State Judicial Campaigns and Elections Too Partisan?

Federal Judicial Selection

The Framers and Judicial Selection, Ideology or Merit?, The Nomination Process, The Confirmation Process

Towards A Representative Bench and a Career Judiciary?

A Representative Bench?, Leaving the Bench

In Comparative Perspective: The Career Judiciary in Japan

Section III: Influences on Judicial Access and Decision-Making

Chapter 5. The Practice of Law

The Rise of the American Legal Profession

Contemporary Legal Education and Bar Admission

The Business of Legal Practice

Private Practice, Government Attorneys, Corporate Legal Practice, Public Interest Lawyers and Legal Academia

Access to Lawyers and Equal Justice

The Right to Counsel in Criminal Cases, Legal Representation in Civil Litigation, Government Subsidized Legal Aid, Pro Se Representation, Pro Bono Legal Services

Chapter 6. Access to Courts

Formal Barriers

Discretionary Barriers

The Law of Standing, Mootness and Ripeness, The Political Question Doctrine

Controversies Over Courts: Is the Federal Judiciary Too Small to Provide Equal Access to Justice?

Organized Interests and Strategic Litigation

Interest Group Politics and Litigation Strategies

In Comparative Perspective: Comparative Constitutional Law and Capital Punishment

Chapter 7. The Adversarial Process and Criminal Procedure

The Adversarial Process

Trials: Truth or Fight Theory?

Prosecutorial Discretion: From Arrest to Trial

Initial Appearance, Preliminary Hearings and Grand Jury Indictments, Formal Arraignment, Plea Bargaining

The Jury’s Role

The Democratic Politics of Citizen-Juries

In Comparative Perspective: Jury Systems Around the World

Controversies Over Courts: What is the Role of Courts in Times of Crisis and Wartime?

The Politics of the Post-Trial Sentencing Process

The Growth of Determinate Structured Sentencing

Chapter 8. Civil Litigation

The Civil Trial Process

The Nature of Civil Litigation, Civil Procedure

Alternative Dispute Resolution

In Comparative Perspective: Transnational Courts - Quasi-Judicial Tribunals Under NAFTA

Section IV: Judicial Policymaking

Chapter 9. Judicial Decision-Making and Behavior

The Appellate Decision-Making Process

Agenda Setting, Oral Argument, Judicial Conferences, Opinion Writing

Controversies Over Courts: Should Unpublished Judicial Opinions Count as Precedents?

Studying Judicial Decision-Making

The Attitudinal Model, New Institutionalism, Strategic Choice Theory, Legal Reasoning and Interpretative Approaches, The Law and Politics of Legal Precedent

Statutory Interpretation

Statutory Construction and Administrative Regulation

Constitutional Interpretation

The Methods of Constitutional Interpretation, The Sources of Constitutional Interpretation

Chapter 10. The Scope and Limits of Judicial Power

Judicial Policy-Making

State Judicial Policymaking: Equality in Educational Financing Cases, Federal Judicial Policymaking: Privacy Rights and Abortion Politics

In Comparative Perspective: The European Court of Justice and The Globalization of Judicial Power

The Impact of Judicial Decisions

The Politics of Gay Rights and Same Sex Marriages: A Case Study

The Limitations of Judicial Power

Internal Constraints, External Restraints

Controversies Over Courts: Do Courts Forge Major Social Change?


3.1. The United States Court System

3.2. State Court Organization

3.3. California’s Unified Court System

3.4. Ohio’s Non-Unified Court System

3.5. Geographical Boundaries of the U.S. Court System

3.6. The Organization of Judicial Administration in the United States

4.1. The Nomination and Confirmation Process for Federal Judges

7.1. The Stages of Trial and the Presentation of Evidence

7.2. The Criminal Trial and Appeal Process

8.1. The Civil Trial and Appeal Process

9.1. The Process of Appellate Decision-Making

9.2. Research Methodologies for Studying Judicial Politics

10.1. Judicial Compliance and Impact


1.1. Major Global Legal Systems

1.2. Types of Law

3.1. Landmark Judicial Administration Legislation

3.2. A Comparison of the State and Federal Judiciary

3.3. Type of State Courts

3.4. State Trial Court Docket

3.5. U.S. District Court Caseload and Docket Composition, 1960-2004

3.6. Nature of Civil Actions and Criminal Offenses in U.S. District Court, 2000-2004

3.7. U.S. Courts of Appeals Docket Composition and Source of Appeals, 1988-2004

4.1. Judicial Selection Methods in the States

4.2. Federal Judicial Selection Methods During Modern Presidencies

4.3. Unsuccessful U.S. Supreme Court Nominations

4.4. The Duration of the Confirmation Process in Lower Federal Court Nominations

4.5. Demographic Characteristics of U.S. District Court Appointees

4.6. Demographic Characteristics of U.S. Court of Appeals’ Appointees

4.7. Judicial Salaries of State and Federal Judges

5.1. Demand for Legal Education, 1964-2005

5.2. Legal Profession Occupations, By Gender and Position

5.3. Top “Megafirms” in the United States

5.4. Salient Differences in Legal Representation in Indigent Criminal Cases

7.1. Trial Court Characteristics in Adversary and Inquisitorial Legal Systems

7.2. Constitutional Protections in Criminal Cases

7.3. Criminal Convictions Resulting from Trials and Pleas in State Felony Cases

7.4. Sentencing Typologies and Practices

8.1. Number of Tort and Contract Trials and Median Jury Awards to Plaintiffs

8.2. Alternative Dispute Resolution and Settlement Practices

9.1. Appeals Terminated After Oral Hearing in U.S. Courts of Appeals

9.2. Types of Judicial Opinions

9.3. Appeals Terminated Without Published Opinion in U.S. Courts of Appeals

9.4. Select Categories of Legal or Political Variables Used to Explain or Predict Judicial Decisions

9.5. Voting Alignments in the Rehnquist Court, 1986-2004

9.6. Rehnquist Court Voting Blocs, By Natural Court, 1994-2004

9.7. Interpretative Methods of Statutory Construction

10.1. Constitutional Amendments Overturning Unpopular U.S. Supreme Court Decisions


1.1. Inquisitorial and Adversarial Systems

1.2. Researching the Law and Judicial Decisions

3.1. Tribal Courts

3.2. United States Magistrates

4.1. Should Judges Make Direct Appeals to Voters During Judicial Campaigns?

4.2. The Federalist Society’s Role in the Modern Confirmation Process

5.1. The Poor State of Indigent Defense Systems in the States

6.1. The Ashwander Rules of Constitutional Avoidance

6.2. “Public Interest” Lawsuits in the United States and Abroad

7.1. Plea Bargaining Practices in the United States and Continental Europe

7.2. Jury Nullification

8.1. The Politics of Class Actions

9.1. The U.S. Solicitor General

10.1. Judicial Activism and Restraint

10.2. The Battle over School Funding in the States

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