Political Science: The State of the Discipline II

By Ada W. Finifter | Go to book overview

14
Public Law and Judicial Politics

Martin Shapiro

The Status of the Field

Public law, judicial politics, or law and politics today enjoys a highly problematic status as a subfield of political science. Even its name is in doubt. Once one of the five or six major subdisciplines, it has, to some degree, avoided the fragmentation of some of the others. It remains one of the larger subdisciplines in numbers of practitioners and publications. Yet it has become one of the more minor fields in terms of status within the discipline. Few, if any, public law political scientists are numbered among the stars of the discipline as Corwin and Cushman once were. Many departments have reduced judicial politics to a sub-subfield of American politics. During much of the 1980s, a striking proportion of the top departments, including Harvard, Yale, Chicago, Michigan, and Stanford had no senior person devoted to principally to teaching in the field. Through promotion, some senior lateral hiring, and the joint appointment of law faculty to political science departments, the situation is now somewhat improved. Nevertheless, several generations of Ph.D's are depleted, and in only a handful of major departments is there more than one senior person of national reputation devoting full time to political-science-based (as opposed to law-based) instruction in law and politics.

Vigorous efforts are being made to fill the gap by the Law and Courts Organized Section of APSA. A committee of the section, chaired by Austin Sarat, prepared a major report on the state of the discipline, and, in conjunction with the section, the Review of Politics has announced it will devote one issue a year for three years to law and politics studies (see the "Special Issue on Public Law," Summer 1992).


Public Law as Constitutional Law: Supreme Court Alone

Intellectual change typically is overdetermined and full of chicken and egg problems. A number of paradoxes associated with the decline of the subfield can be noted even though describing them falls short of a causal explanation. The central paradox involves constitutional law and the Supreme Court. Until the 1950s, "public law" was usually thought of as containing three distinct entities that together formed the field while each also performed a vital service to another major field. The three were constitutional law, administrative law, and international law, linked respectively to American politics, public administration, and international relations. Moreover, another small but distinct field, "government regulation of business," called heavily on the services of public law political scientists.

Then, in a bipolar, cold war world, particularly as interpreted by the dominant Morgenthau school of international relations scholars, international law came to seem a meaningless facade. The number of international law teachers and scholars in political science declined to near zero. Even those international relations specialists seeking non-Clauswitzian facets somewhere in the family of nations, now concerned themselves, not with international law, but international organization.

Under the impact of the "behavioral revolution" the policy studies areas of political science such as government regulation fell away. Public administration became administrative behavior and organization, with administrative law, like all law, treated as one of those formal screens which investigators had to penetrate in order to discover real political behavior.

In American politics, too, behaviorism tended to denigrate formal legal and constitutional structures and language as mere appearances behind which real and quantifiable political behavior lurked. Yet the power of the Supreme Court to declare laws unconstitutional was too big and too dramatic to permit as great a decline in constitutional law as occurred in administrative and international law. Constitutional law remained as the eroded but still visible remnant of what had been "public law." Even in the remnant, however, much of "constitutional law" became "judicial behavior," and most of judicial behavior became the analysis of the votes of the justices of the Supreme Court in particular cases. In

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Political Science: The State of the Discipline II
Table of contents

Table of contents

  • Title Page i
  • Table of Contents v
  • Preface vii
  • Theory and Method 1
  • 1: Texts and Canons: The Status of the "Great Books" in Political Theory 3
  • Conclusion 21
  • Notes 22
  • Bibliography 23
  • 2: Political Theory in the 1980s: Perplexity Amidst Diversity 27
  • Notes 43
  • Bibliography 43
  • Additional Bibliography 46
  • 3: Feminist Challenges to Political Science 55
  • Notes 72
  • Bibliography 73
  • 4: Formal Rational Choice Theory: A Cumulative Science of Politics 77
  • Concluding Comments 97
  • Notes 98
  • Bibliography 101
  • 5: The Comparative Method 105
  • Conclusion 116
  • Notes 117
  • Bibliography 117
  • 6: The State of Quantitative Political Methodology 121
  • Conclusion 148
  • Notes 148
  • Bibliography 150
  • Political Processes and Individual Political Behavior 161
  • 7: Comparative Political Parties: Research and Theory 163
  • Conclusion 183
  • Notes 184
  • Bibliography 185
  • 8: The Not So Simple Act of Voting 193
  • Notes 213
  • Bibliography 214
  • 9: The New Look in Public Opinion Research 219
  • Notes 240
  • Bibliography 240
  • 10: Expanding Disciplinary Boundaries 247
  • Conclusion 269
  • Notes 271
  • Bibliography 271
  • 11: Citizens, Contexts, and Politics 281
  • Conclusion: Putting the Puzzle Back Together 299
  • Bibliography 300
  • 12: Political Communication 305
  • Conclusions 323
  • Bibliography 324
  • Political Institutions of the State 333
  • 13: Legislatures: Individual Purpose and Institutional Performance 335
  • Conclusions: Behavior, Institutions, and Theory 354
  • Notes 357
  • Bibliography 357
  • 14: Public Law and Judicial Politics 365
  • 15: Political Executives and Their Officials 383
  • Conclusion 402
  • Bibliography 403
  • 16: Public Administration: The State of the Field 407
  • Notes 423
  • Bibliography 424
  • Nations and Their Relationships 429
  • 17: Comparative Politics 431
  • Conclusion 443
  • Notes 444
  • Bibliography 446
  • 18: Global Political Economy 451
  • Conclusion 474
  • Notes 476
  • Bibliography 477
  • Conclusions 483
  • Conclusions 503
  • Notes 504
  • Bibliography 505
  • Appendix 511
  • Contributors 513
  • Index of Cited Authors 517
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