A More Realistic View

By Wheeler, Russell R. | Judicature, May/June 2006 | Go to article overview

A More Realistic View


Wheeler, Russell R., Judicature


A more realistic view Making Policy, Making Law, An Interbranch Perspective, edited by Mark C. Miller and Jeb Barnes. Georgetown University Press, 2004. 256 pages. $26.95.

Mark Miller and Jeb Barnes have assembled an original set of essays to explain how policy making in the United States-with a special look at the courts-is the product of various kinds of "colloquies" between actors in the three branches and in state, local, and non-government institutions, especially interest groups. It is, by its own terms, for political science courses, but Judge Robert Katzmann's Foreword aptly calls it "an extraordinarily valuable resource for any student of government seeking to understand the ongoing American experiment."

The editors several times tout the collection as an antidote to "the standard text book accounts" that embrace the "principal-agent theory"-"Congress and the president . . . make statutes . . . and appointed bureaucrats and judges . . . apply statutes as written provided they are constitutional." A cover blurb says it "replaces a tired (and incorrect) civics book notion of separation-of-powers with a more realistic (and accurate) view of policy making that depends upon dialogue and shared powers among all the branches of government."

If today's political science texts merit those descriptions, someone in the textbook factory has been asleep at the switch. The essays in Making Policy, Making Law bear out the editors' acknowledgement that "a wide range of scholars [have been] developing research that look[s] beyond the formal boundaries of the branches of government." One reason to put it in your library is the richness of the references to the literature.

Miller and Barnes place the essays into four parts. Part I sets the stage with Robert Kagan's summary of his concept of "adversarial legalism"-the result of the U.S. tendency, especially in the last half century, to enact broad, vague, regulatory or rights statutes and leave their implementation less to large pervasive bureaucracies and more to litigation, often brought by interest groups. Courts have been inevitably drawn, Barnes then explains, into policy making and interactions with legislators and agencies in a way that conventional separation-of-powers assumptions cannot explain, in particular the superficial assumption that Congress is, by definition, a majoritarian, representative body.

Part II has three chapters explaining how different government institutions interact with courts and judges-the Congress, the president, and administrative agencies. Parts III and IV unpackage the relationships between Congress and the courts, especially the Supreme Court, as to statutory and then constitutional interpretation (although the two cannot be neatly divided, as the essays show).

The volume's contents are, roughly speaking, of three types. Some are essentially primers, explaining the elements of a particular policy arena or relationship-Nancy Kassop's essay on options available to the president to influence legal policy, and R. Shep Melnick's chapter on courts and agencies, which lays out the evolution of administrative law from the New Deal to the present, both as to judicial deference to agencies and federal judicial supervision of state and local bureaucracies.

Other chapters are analytical case studies, extrapolating from a particular litigation or statute. Thomas Burke shows that the courts' interpretation of the Americans with Disabilities Act falls short of the lofty goals of its most enthusiastic supporters, that most legislators who supported the Act were less interested in those lofty goals than a chance to symbolize their support for the disabled, and that in large measure the Act has been implemented beyond the litigation arena by corporate human resource complaint handlers and the disabled themselves, usually with at best a fleeting grasp of the ADA's provisions and how courts have interpreted them.

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