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Judicial Process: Law,Courts,and Politics in the United States / Edition 2

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Overview

For such courses as Judicial Process; Judicial Politics; The American Legal System; or Law, Courts, and Politics, typically found in departments of political science, criminal justice, or law. JUDICIAL PROCESS provides a comprehensive examination of the American legal system, including a balanced treatment of law and politics and explanations of the function of judicial process as the third branch of government. This textbook is designed for courses that deal with America's judicial system, emphasizing how the American legal system reflects the American political system.
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Editorial Reviews

David W. Neubauer
David Neubauer identifies two selling points in his Preface to JUDICIAL PROCESS. He says that his book differs from other judicial process texts, first, because it is a "comprehensive, stand-alone text," and second because it is a "balanced treatment of law and politics" (p. ix). For reasons explained below, I am not persuaded by his first point. Regarding the second, Professor Neubauer succeeds exceptionally well. Even though I suspect that neither those committed to a more traditional approach exemplified by, say, Harold J. Grilliot's INTRODUCTION TO LAW AND THE LEGAL SYSTEM, or to a more behavioral approach like Robert A. Carp's and Ronald Stidham's JUDICIAL PROCESS IN AMERICA would adopt it, JUDICIAL PROCESS straddles both approaches without falling between chairs. CONCEPTUAL FRAME. Professor Neubauer's frame of reference resides squarely in the mainstream of PublicLaw/Judicial Politics scholarship. Specifically, he has adopted one fundamental perspective and two subsidiary perspectives, none of which are unconventional. In a section of his Preface addressed "To the Reader," Professor Neubauer notes that although his fundamental purpose is to inform students of the structure and process of the American judiciary he also seeks to analyze the "Law-in-Action" and to address Problems and Reforms (pp. x-xi). Thus, while focusing on courts, judicial actors and judicial users, Professor Neubauer also addresses the "dynamics" and problems of judicial process. I put "dynamics" and "Law in Action" in inverted commas because I do not think either term does justice to his second objective. Neubauer is not merely making the important yet unremarkable point that judicial process is not self-executing. He wants students to understand that judicial actors make political choices when they apply abstract legal rules to concrete cases. Discretionary, or perhaps open-textured, would convey more accurately what he intends than saying he is employing a dynamic law-in-action perspective. It is not until Chapter 1 that Professor Neubauer explicitly says that courts are political institutions (pp. 10-11). All told, these three viewpoints are hardly at the frontier of the discipline's scholarship. Nevertheless, while orthodox in themselves, Professor Neubauer utilizes all three conceptions adroitly, producing a serviceable undergraduate college text. Professor Neubauer compares federal to state judicial process and, notably, attends closely to differences among the states. There are no cross-national comparisons, but the only book I know of in this genre containing such comparisons is Henry Abraham's THE JUDICIAL PROCESS. Neubauer's JUDICIAL PROCESS also is pedagogically mainstream. I tell my undergraduate students that understanding a complex social phenomenon, like judicial process, entails asking descriptive questions (who? what?), analytical questions (how?), causal questions (why?) and evaluation questions (worth?). I also suggest to them that obtaining viable answers to these queries becomes more difficult, and prospects of definitive answers grow less likely, as one moves from description to evaluation. The methodological tilt in Professor Neubauer's text is toward who? what? and how? questions, with ascertaining why? and worth? of secondary importance. For example, in his Preface he identifies "Controversy" boxes providing "a flavor of the issues debated about the courts" (p. xii) as a Special Feature of the book, but a Controversy does not appear until p. 206, seven chapters and almost half-way through the text. Such a feature might have encouraged students to ask why? and worth? questions. (In total, I count only eight "Controversy" boxes in the entire book.) Apparently, Professor Neubauer set for himself the primary task of providing students with accurate, up-to-date information, leaving it to them to make something out of it. Consequently, his text is a useful, relatively unchallenging work; unless, of course, one believes (reasonably) that informing students these days is challenging enough. ORGANIZATION. JUDICIAL PROCESS consists of an introductory chapter, "Law, Courts, and Politics," followed by five parts and an Epilogue, "Courts, Controversy, and Change." Part I treats "Legal Foundations": Law and Legal Systems (Chapter 2), Federal Courts (Chapter 3) and State Courts (Chapter 4). Part II discusses "Principal Actors": Lawyers and Legal Representation (Chapter 5) and Judges (Chapter 6). Part III concerns "Users": Mobilizing the Law: Litigants, Interest Groups, and Court Cases (Chapter 7). Part IV is the text's centerpiece. It is about "Trial Courts": Trial Courts: The Preliminary Stages of Criminal Cases (Chapter 8), Trial Courts: Bargaining and Sentencing in Criminal Courts (Chapter 9), Trial Courts and the Transformation of Civil Disputes (Chapter 10), Trial Courts: Disposition of Civil Cases (Chapter 11) and Trial (Chapter 12). Part V addresses "Appellate Review": The Appellate Process (Chapter 13), The Supreme Court: Deciding What to Decide (Chapter 14) and The Supreme Court: The Justices and Their Decisions (Chapter 15). Accessibly priced, this text is accessibly written. Chapter sections are clearly sign-posted and track well. Each chapter contains a brief conclusion, a section identifying key terms, references and sources for further reading. Professor Neubauer makes effective use of graphics in every chapter, presenting information in readable tables and figures. His discussion is larded with pithy quotations drawn from classic works in Public law and Judicial Politics. Professor Neubauer's selection of topics is thoughtful. He bases his inclusion and organization of topics on a sensible conception of the legal system that he explains in his first chapter. This conception portrays the legal system as three concentric circles (he refers to them as "rings"): "Core Institutions: Courts and Law" surrounded by "Gatekeepers" and "Users," operating within the context of "Political, Social, and Economic Forces" (Figure 1.1, p. 7). His examination of specific topics is comprehensive. For example, Chapter 5, "Lawyers and Legal Representation," begins by discussing the gatekeeping roles lawyers play, then takes up legal education and contemporary law schools, licensing and legal ethics, bar associations, what lawyers do and where they work, professional diversity and stratification, and access to legal services. Professor Neubauer is well versed in the research literature of Public Law and Judicial Politics, to which he has contributed, and he incorporates it skillfully into his chapter analyses. Again, Chapter 5 is illustrative. Professor Neubauer's description and analysis of lawyers and legal representation is steeped in much of the relevant scholarship. In sum, JUDICIAL PROCESS delivers on its author's promise "to provide an adequate breadth of coverage and an appropriate depth of treatment" (p. ix). In my opinion, this accomplishment sets it apart, favorably, from many competitors in a crowded field. LEVEL OF SOPHISTICATION. JUDICIAL PROCESS is written for students taking upper-division Political Science courses, titled in various ways, that focus on courts. Professor Neubauer includes students "simply needing a social science elective" among his book's intended audience (p. ix). I disagree. This book is not designed for typical lower-division courses meeting general education or distribution requirements. Political science (and criminal justice) majors would find his text most useful, and those majors would benefit from initially having taken the introductory American government and politics course(s) and, perhaps, an introduction to politics or Political Science course. I would characterize JUDICIAL PROCESS as an intermediary text. I have suggested that this book's strong points are its rich descriptions and well-grounded analyses of a broad number of topics. It is not theoretically rigorous or critically demanding. As such, it is neither a lower-division nor a graduate-level text. While second- and third-year majors would learn a great deal about judicial process from Professor Neubauer's work, they should not read it cold, and they need to read more. USEFUL SUPPLEMENTS. In order to stretch students to ask why? and worth? questions about judicial process, I would want to supplement this text with works posing explanations and offering evaluations. In the former category, John B. Gates' and Charles A. Johnson's THE AMERICAN COURTS: A CRITICAL ASSESSMENT and Sheldon Goldman's and Austin Sarat's AMERICAN COURT SYSTEMS come to mind. In the latter category, inter alia, I might focus on judicial recruitment via Jane Mayer's and Jill Abramson's STRANGE JUSTICE: THE SELLING OF CLARENCE THOMAS, on law enforcement via the National Association for the Advancement of Colored People's BEYOND THE RODNEY KING STORY, and/or on civil rights policy via Derrick Bell's FACES AT THE BOTTOM OF THE WELL. OVERALL. Supplemented as indicated just above, I would consider adopting Professor Neubauer's book for a third-year judicial politics course. In my mind, his book occupies a second tier of potential texts, along with Harry Stumpf's AMERICAN JUDICIAL POLITICS to which it is similar. On the first tier, for different reasons, are works I have noted by Abraham, and Carp and Stidham, and Lawrence Baum's AMERICAN COURTS. Distinguishing first-tier books from second-tier options is that each first-tier text offers something more than the descriptive and analytical materials that Professor Neubauer assembles so competently. REFERENCES Abraham, Henry J. THE JUDICIAL PROCESS: AN INTRODUCTORY ANALYSIS OF THE COURTS OF THE UNITED STATES, ENGLAND, AND FRANCE. Sixth edition. New York: Oxford University Press, 1993. Baum, Lawrence. AMERICAN COURTS: PROCESS AND POLICY. Third edition. Boston: Houghton Mifflin, 1994. Bell, Derrick. FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM. New York: Basic Books, 1992. Carp, Robert A, and Ronald Stidham. JUDICIAL PROCESS IN AMERICA. Second Edition. Washington, D.C.: Congressional Quarterly, 1993. Gates, John B. and Charles A. Johnson. THE AMERICAN COURTS: A CRITICAL ASSESSMENT. Washington, D.C.: Congressional Quarterly, 1991. Goldman, Sheldon and Austin Sarat, eds. AMERICAN COURT SYSTEMS. Second Edition. New York: Longman, 1989. Grilliot, Harold J. INTRODUCTION TO LAW AND THE LEGAL SYSTEM. Third Edition. Boston: Houghton Mifflin, 1983. Mayer, Jane and Jill Abramson. STRANGE JUSTICE: THE SELLING OF CLARENCE THOMAS. Boston: Houghton Mifflin, 1994. National Association for the Advancement of Colored People. BEYOND THE RODNEY KING STORY: AN INVESTIGATION OF POLICE CONDUCT IN MINORITY COMMUNITIES. Boston: Northeastern University Press, 1995. Stumpf, Harry. AMERICAN JUDICIAL POLITICS. New York: Harcourt Brace Jovanovich, 1988.
Barbara Luck. Graham
JUDICIAL PROCESS is a standard, undergraduate text which covers materials on the American judiciary from a traditional and political framework. What makes this text stand out above the rest? Professor Neubauer has attempted to fill a void among existing judicial process texts in writing a comprehensive, stand-alone text which contains adequate coverage and in-depth treatment of wide ranging topics on American law and courts. The result is an excellent, systematic and comprehensive treatment of American judicial process which will probably become the dominant undergraduate text in the field. JUDICIAL PROCESS is a tightly organized text that covers a wide range of topics on the American legal system. The first chapter is a standard introduction to the study of law, courts and politics. The following fourteen chapters are grouped into five parts that provide an overview of how the major aspects of the judicial process fit together. Each of the chapters contains a more than satisfactory introduction and conclusion. Moreover, the author attempts to provide a historical overview of the major topics where required. Part I consists of three chapters on the topic of legal foundations. The first chapter examines the various features of law and the legal system such as common law, precedent, adversary system, structure of American law and the discretionary aspects of law. The next two chapters are devoted to a discussion of the structure of federal and state courts. The basic principles of state and federal courts are covered in these chapters: a historical overview of federal and state courts, jurisdiction, a description of types of courts in each system, the role of specialized courts and administrative units. The court organization problem is given additional emphasis in the state court chapter. Part II consists of two chapters that focus on the principal actors in the American judiciary: lawyers and judges. The chapter on lawyers includes a discussion of legal education, law schools and curriculum, licensing requirements, legal ethics and discipline, bar associations, work of lawyers, civil and criminal representation of the poor and diversity and stratification of the legal profession. Topics covered in the chapter on judges consist of judicial selection of state and federal judges, an evaluation of selection methods, judicial backgrounds and a description of the work of judges. From a legal mobilization perspective, Part III consists of a single chapter that examines the users of courts: litigants and interest groups. Attention is paid to one-shotters versus repeat players, the nature of the adjudicatory process, traditional versus policy-oriented lawsuits and caseloads of state and federal courts. The question of why interest groups use the courts is also examined. Page 67 follows: The most comprehensive coverage of judicial process topics is found in Part IV which consists of five chapters on the disposition of cases in criminal and civil trial courts and trial court decision making. The first chapter examines the early stages of criminal cases beginning with arrest through grand jury review and the role of the exclusionary rule on police gathering of evidence. Attention is also placed on factors affecting case attrition in criminal court. Considerable emphasis is placed on plea bargaining and sentencing practices in criminal courts from a courtroom work group perspective in the second chapter. Fairness and attempts at reforming these practices are covered here as well. The third chapter covers the early stages of civil trials and also includes an examination of the transformation of disputes into civil lawsuits from a disputing pyramid framework. Other topics covered include case load problems, the litigation explosion issue and alternative dispute resolution techniques. The fourth chapter examines the dynamics of case disposition in civil trial courts. Attention is paid to civil procedure, the various steps in a civil lawsuit and the negotiation and settlement processes. The author provides three case studies involving torts, small claims and divorce as illustrations of bargaining in the shadow of the law. The final chapter in this part is solely devoted to trials. Topics covered here include the history and function of trials, jury selection, the presentation of a case, an overview of the end of the trial, jury decision making, pretrial publicity and an assessment of jury verdicts for the litigation explosion problem. Part V examines the appellate process in three chapters. The first chapter examines the nature of the appellate process generally, the business of appellate courts, post-conviction remedies, decision making and caseloads. This chapter devotes attention to the concept of the new judicial federalism and the role of state supreme courts as policymakers. The next two chapters are devoted to a discussion of the U.S. Supreme Court with the first emphasizing the nature and factors affecting case selection, a discussion of jurisdiction and related concepts and a brief examination of the Court's caseload problem. In the following chapter, the author examines judicial selection of Supreme Court justices, Court decision making, impact and implementation of Court decisions, and a concluding section of the role of the Supreme Court in the political system. Professor Neubauer concludes his text with an Epilogue which focuses primarily on the controversy surrounding the American judiciary and a discussion of future trends and developments affecting state courts. There are additional features of the text that are worth mentioning. I found the tables and figures very informative and easy to understand. Professor Neubauer has almost perfected the use of boxed quotations and close-up boxes that enhance material in the text and captures real-life situations affecting courts. The text also includes "controversy sections" offering a wide range of viewpoints on issues debated about courts (which he states that he does not agree with all of them). I think the "law in action" approach to the study of law and courts will have great appeal to undergraduates and it appropriately captures the dynamics of the American legal system. Finally, the students will appreciate the key terms that are highlighted in boldface which will aid them greatly in their understanding of legal terminology. Page 68 follows: According to Professor Neubauer's stated intent, the text is written for undergraduate courses that deal with the American legal system. I think he strongly understates his intent. Instructors are likely to find this text appropriate for both lower and upper level judicial process courses because the writing style is quite readable but at the same time the material is not presented in an overly simplistic manner. Instructors and students will find the discussions presented in an intelligent and substantive fashion. There is very little material that is superficially treated in this text. The main strength of JUDICIAL PROCESS lies in its comprehensive presentation of the topics; yet the reader is not confronted with a sea of unconnected details. Supplemental texts will not be needed although if the instructor wishes to assign additional readings on specific topics, the organization scheme makes this a simple task. On this point, I found the suggested reading list at the end of each chapter more than adequate as a starting point for student research on specific topics. Students should come away with a more informed understanding of the American judiciary with Professor Neubauer's text. I found no major shortcomings of JUDICIAL PROCESS nor was there much to legitimately quibble about. One important topic that was omitted on judicial selection of state judges was the role of judicial redistricting for the election of state court judges. This is probably the most salient issue addressing political equality and representation on the state bench for states that use elections to select all or part of their judgeships. A bit more attention could have been paid to a discussion of the relationship between state and federal courts, e.g. the concept of comity and a more extended discussion of judicial federalism. This oversight however does not detract from the overall quality of the text. In contrast, I personally like the fact that an inordinate amount of attention was not paid to the U.S. Supreme Court throughout the text. David Neubauer's JUDICIAL PROCESS is indeed a valuable contribution to the study of the American judiciary. Scholars and students will find that his text is an excellent, up-to-date, and quite readable treatment of judicial process topics. Professor Neubauer has undoubtedly set a new standard for judicial process texts.
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Product Details

  • ISBN-13: 9780030193842
  • Publisher: Wadsworth
  • Publication date: 12/23/1996
  • Edition description: Older Edition
  • Edition number: 2
  • Pages: 544
  • Product dimensions: 7.58 (w) x 9.26 (h) x 0.82 (d)

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