Saturday, December 27, 2008

Saturday Evening Review: Oxford Handbook of Law and Politics

51yh0as57l_sl110_ The Oxford Handbook of Law and Politics, edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford University Press, 2008), is a 832 page tome described by the publishers as providing a

comprehensive survey of the field of law and politics in all its diversity, ranging from such traditional subjects as theories of jurisprudence, constitutionalism, judicial politics and law and society to such re-emerging subjects as comparative judicial politics, international law, and democratization. The Oxford Handbook of Law and Politics gathers together leading scholars in the field to assess key literatures shaping the discipline today and to help set the direction of research in the decade ahead.

How does a ConLaw Prof assess whether she needs yet another "handbook" on the general field of law with an interdisciplinary focus, priced at $ 150?

A good place to start is the table of contents, which is available on the OUP site (either US or UK).  It's an impressive roster of authors, although some of the names will be less familiar to law school academics who eschew political science scholars.  The scope is predictably wide, but perhaps less predictably has a definite US-focus, despite the four chapters (less than 10% of the book) on International and Supranational Law.   The section entitled "Sources of Law and Theories of Jurisprudence" looks especially enticing for any ConLawProf, with chapters on Positivism  (Jules Coleman), Natural Law (Robert George),
Rights Liberalism (Matthew Kramer), Formalism and Its Discontents (Frederick Schauer), Feminist Theory (Judith Baer), and Race and Legal Theory (Sheila Foster and Robin Lenhardt).

But a TOC (and the publisher's promotion materials) only provide a glimmer.  What one really needs, is a review.  And of course, not simply one review, but several of them, preferably by scholars and colleagues one can trust (as opposed to the anonymous postings on on-line book seller sites).

Luckily, the Law and Politics Book Review (which I've previously mentioned here), has a Symposium here on the book, also available as the 2008 Winter issue of LAW & COURTS (Volume 19, No.1), available as pdf from site here.  It's a series of five short reviews of the book, although Jeffrey Staton, one of the reviewers states, a handbook is actually a "series of review essays," and so in his review Shaping the Field?, he is "reviewing a collection of reviews."  He says that the "real success of the volume" is its potential to "start productive conversations among scholars in the various subfields" that is law and politics:  "Although the essay writers do not really engage each other directly, I think the best way to view the handbook is as an invitation to readers to flesh out implicit conversations in the essays."  It is Stanton's personal reflection, however, that provides the highest compliment for the book:

Some of the most intellectually stimulating moments on the job occur at faculty workshops or job talks where the research subject is outside your area. Learning that someone else thinks about a particular research problem in roughly the same way as you think about an analogous yet distinct research problem is exciting and reassuring. But it is even better when you see someone work through a problem in a way that provides material assistance to your own struggles. In large part, the handbook serves this purpose. I am anxious to get to work on my own research in light of what I have read from other scholars. I am also excited about the opportunity to reach out to people outside my subfield in an effort to collaboratively advance shared research questions.

Wendy Martinek of Binghamton University is less impressed and seemingly less stimulated.  Indeed, she cogently criticizes the entire enterprise of the interdisciplinary nature of law and politics scholarship.  In her review, Interdisciplinarity in Legal Scholarship, she argues that

Even a casual reader of the [Oxford Handbook's] chapters on law and economics (Kornhauser), law and psychology (Tyler), and law and history (Tomlins) – all of which appear in Part IX “Interdisciplinary Approaches to Law and Politics” – will come away with some sense of what might reasonably be seen as an economic or psychological or historical approach to the study of some aspect or aspects of law. But we can consider these interdisciplinary approaches only by assuming that law is a separate discipline. Setting aside the study of and training in the actual practice of law, however, I respectfully submit that law is not a separate discipline unto itself. There is no unique theoretical focus or particular methodological tool that demarcates law from other disciplines.  And scholarship that examines law through the lens of only one discipline – no matter how finely crafted and insightful – cannot be properly understood as interdisciplinary.

Martinek's "setting aside the study of and training in the actual practice of law" is an intriguing caveat.  Is that the difference between ConLawProfs who teach in law schools vs. ConLawProfs who teach in other parts of the university or in non-US law schools/departments that are not devoted to professional "training" in the same manner? 

Thomas Keck of Syracuse also contributed to this review symposium and I was especially anxious to learn his thoughts since I've used his excellent book, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (U Chicago, 2004), in my own work several times.  In his review, Law, Politics, and Political Science, he writes that the Oxford Handbook is "fabulous" with something for everyone in the law and courts "community," and adds:

despite my repeated efforts to prepare for this essay by focusing on the chapters most relevant to my own research on the Supreme Court and American constitutionalism, I kept getting distracted by excellent chapters on comparative and international law, particularly the contributions by Kim Lane Scheppele (on extralegal emergencies), Karen Alter (on the European Court of Justice), Tom Ginsburg (on the global spread of judicial review), and Ran Hirschl (on the worldwide judicialization of politics).

Yet Keck has some stinging criticism of the ten-volume series, Oxford Handbooks of Political Science, of which this volume is a part.  His bottom line is that the law and courts subfield is not well represented in the other nine volumes in the Oxford series, much to the detriment of those volumes.

Lisa Hilbink of University of Minnesota, approaches the Handbook from her perspective as a "comparativist" in a field "long dominated by scholars of a single court in a single country – namely the U.S. Supreme Court."  Hilbink's review, From Comparative Judicial Politics to Comparative Law and Politics, is an important argument for rethinking the limited scope of  many ConLaw courses and casebooks.   I'm a huge advocate of expanding coverage to include the lower federal courts, even in a US-focused conlaw course, so I find Hilbink's comments "spot-on."  As for the Handbook, Hilbink concludes it risks "reproducing some of the existing pathologies of the law and courts subfield":

Reading the chapters in the “Comparative Judicial Politics” section of the OHLP, I was struck by three things: first, the almost exclusive focus on high courts and constitutional decision-making in the countries of study; second, a tendency to discount the relevance of factors in any way internal to law or legal institutions; and third, a limited and limiting view of politics as narrowly instrumental. 

Hilbink's review supports her points and can be extended beyond the "comparativist" perspective.  Her review gestures toward answering the question that many students in law schools ask their ConLawProfs, in various guises but which can be reduced to a query such as "so, the Justices just do whatever they want?" 

Finally, Malcolm Feeley of UC-Berkeley School of Law (Boalt Hall), in his review, Whither Public Law Scholarship? An Assessment of an Assessment of the Field, has several things of interest to add.   Refreshingly, he admits that at one time he was rather " dismissive of encyclopedia and handbook entries. This changed markedly after I’d written my first such entry."  Having written a few of these myself (and repeatedly vowed not to write more), Feeley's reminder of the difficulty of such pieces is a good one.  Feeley also provides an admission:

I must confess I have not read all 774 pages and all forty five entries (excluding index and front matter). But I have skimmed and dipped in here and there – reading most of the essays that are both closest to and farthest away from my areas of interest, and reading as well the volume’s four introductory and three concluding essays. I feel moderately confident in assaying the HANDBOOK as a whole, and in underscoring my conclusion: the editors and authors have done well for the field.

Feeley not only provides some incisive analysis, but also points the way forward:

my suggestion as to what to do with the volume: Get your department to order the volume – or if you can afford it, order it yourself. When it arrives, place it on departmental reserve and invite public law graduate students and would-be public law graduate students to read it. Arrange a schedule; select two or three essays at a time, and meet in the student lounge to discuss them. Eventually work your way through most if not all of the volume. It should be a rewarding experience not only for the students but for you as well. What you can do in this process is what the authors of the entries did not do enough of – engage the different entries with each other. . . .  The combination and permutation of the various ideas in the entries invite a host of interesting possibilities.  You get the idea.

I've gotten the idea.  Although rather than students, why not colleagues?  Anyone up for a reading group next semester?


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