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date: 15 September 2019

(p. 792) Subject Index

(p. 792) Subject Index

All referenced legal cases are indexed under the “cases” heading.

abdications, and emergency powers176
abortion regulation, and ideological transformation635–8
accountability:
and agencies:
delegation346
discretion347
and electoral accountability744, 745
and institutional provisions101
and judicial elections479–80, 570–1
and judicial independence100–1, 115, 566
and legal accountability744, 745–6
politicization of746–7
and negotiated rulemaking387–8
and rule of law65
accounting firms547
adjudication:
and economic analysis of698, 708
and integrated model of699–700
criticisms of700
and litigant selection699–700
and modeling collegiality705–8
consistency and coherence706
reasons for collegiality705–6
voting on collegial courts706–8
and modeling doctrine703–5
and models of700–1, 702–3
and team models of700–2
Administrative Conference of the United States (ACUS)387
administrative law340
and agency deference344
and agency discretion343
external rules343
internal rules343
and delegation346
and democracy–technocracy balance580–4
and deregulation344
and discretion347–8
and expansion of regulatory agencies342
and fairness348–9
and governance/legality trade-off341–5
and impact of Reagan administration344–5
and judicial review343, 355, 589, 590
curtailing of344
reasonableness review349–51
and managerial ideology341
and objective of340–1, 356
as omnibus category353
and political foundations of351–5
political goals352–3
and positive political theory (PPT)342, 345, 353–5
and reasonableness349–51
and regulatory process579, 584–7
outside United States588–9
public participation585–7
rulemaking585–7
and response to expansion of regulatory agencies342–3
and skepticism over agency performance342
Administrative Procedure Act (1946, USA)341, 348, 349, 381, 387, 584–5
adversarial legalism748
advocacy networks:
and globalization of the law245–6
and social reform601
affirmative action548
and ideology635, 638–40
and United States Supreme Court decision-making760–1
Afghanistan74
Age Discrimination in Employment Act (USA)647
agencies:
and administrative law:
delegation346
discretion347–8
fairness348–9
reasonableness349–51
and administrative state341
and capture of342
(p. 793)
and economic case for regulation578–9
and expansion of342
and governance/legality trade-off341–5
and informalism381, 386–8
negotiated rulemaking386–7
and judicial review343, 344, 355, 576, 577, 583, 589, 590
reasonableness review349–51
and managerial ideology341
and political conception of administrative regulation342–3
political goals352–3
and power of340, 346
and regulatory process584–7
outside United States588–9
public participation585–7
rulemaking585–7
and “retail justice”348
and skepticism over performance342
and statutory interpretation374–5
and strategic judicial decision-making38
al Qaeda544
Albania66
alternative dispute resolution (ADR)385–6
and informalism384
American Bar Association545
and influence on courts546
and judicial recruitment471
lower federal courts477–8
United States Supreme Court474
American Civil Liberties Union (ACLU)237
American Political Development movement724
American Political Science Association (APSA)5, 757, 769
American Political Science Review5
Americanization Movement378
Americans with Disabilities Act (1991, USA)531, 647, 690
Americas Watch259
amnesty, and democratization235–9
Amnesty International258
Andean Court of Justice220, 223
appropriations process, and statutory interpretation368–9
arbitration, international commercial252–4
Argentina:
and judicial independence39, 68, 70, 72, 73, 567
and judicialization of politics125–6
and rule of law63
ASEAN122
attitudinal model of judicial decision-making24–6, 39–41, 756–7, 760
and judicial independence563–4, 565
and lower courts27–8
and United States Supreme Court26–7, 302–4, 496–7, 760–1
attorneys' fees, and convergence268
Australia:
and electoral districts330
and judicial review84
Austria:
and emergency powers176
and judicial review85
autarchy550
authoritarianism, and judicial review92
battered woman syndrome447–8
behavioralism7, 752
and significance of constitutions292–3
Belarus66
Belgium, and federalism142
bilateral treaties, and growth of188–9
bills of rights:
and evolution of implications of426
and legal immunities417
and legal rights425–6
and symbolic value425, 426
Bosnia241
Brady Bill (USA)647
Bretton Woods institutions255
British School of international relations190, 192, 196
Bulgaria66
and judicial independence69
business organizations, and establishment of rule of law73
business regulation, and judicial decision-making312–13 see also regulation
campaign finance324
Canada:
and Charter of Rights and Freedoms (1982)125, 150
and electoral districts330
and emergency powers174
delegation175
and federalism146
and judicial empowerment653
and judicial independence69
and judicial review84, 131
and judicialization of politics124–5, 128
and subsidiarity154
Canadian Law and Society Association684
Canadian Supreme Court150
and integration156
and subsidiarity157
(p. 794) cases (USA, unless otherwise stated):
A v Secretary of State (2005, England)177
Adkins v Children's Hospital (1923)632
Aetna Life Insurance v Lavoie (1986)559
American Communication Ass'n v Douds (1950)313
American Trucking Assns v Smith (1990)758
Argersinger v Hamlin (1972)549
Ash Grove Cement v FTC (1978)343
Atkins v Virginia (2002)516
Austerity Package Decisions (1995, Hungary)125
AZAPO (1996, South Africa)127
Baehr v Lewin (1993)670
Baehr v Miike (1996)670
Barber v Guardian Gra (1990, ECJ)211, 215
Board of Trustees of University of Alabama v Garrett (2001)315
Bonham's Case82
Bradley v Fisher (1872)561
Brown v Board of Education (1954)283, 310, 453–5, 504, 523, 603–4, 607, 652, 711, 753
Brown v Legal Foundation of Washington (2003)549
Bunting v Oregon (1917)631
Burns v State (1872)633–4
Bush v Gore (2000)753, 764
California Democratic Party v Jones (2000)324
Cassis de Dijon (1979, ECJ)211
Chechnya Case (1995, Russia)125
Chevron v Natural Resource Defense Council (1984)344, 374
Chicago Police Department v Mosley (1972)310
Chisom v Roemer (1991)367
City of Boerne v Flores (1997)315
Civil Rights Cases (1883)311
Coker v Georgia (1977)652
Commission v Germany (1987, ECJ)211
Cooperative Committee on Japanese-Canadians v Attorney General of Canada (1946, Canada)176
Corralito Case (2004, Argentina)126
Costa v ENEL (1964, ECJ)210–11, 213
Crowell v Benson (1932)341
Crown Zellerbach (1988, Canada)157
Davis v Bandemer (1986)327
Dred Scott v Sandford (1856)311, 753
Edenfield v Fane (1993)547
Eisenstadt v Baird (1972)22
Ellison v Brady (1991)446
Ethyl Corp v EPA (1978)349
Fiji v Prasad (2001, Fiji)126
Florida Bar v Went for It, Inc (1993)545
Germany v Parliament and Council (2000, ECJ)158–9
Gideon v Wainwright (1963)549, 652
Goldberg v Kelly (1970)348
Gonzales v Oregon (2006)150
Gonzales v Raich (2005)159
Grant v Gould (1792, Great Britain)169
Gratz v Bollinger (2003)639
Grayned v City of Rockford (1972)23, 310
Greater Boston Television Corp v FCC (1971)343
Griswold v Connecticut (1965)22, 433, 652
Grutter v Bollinger (2003)548, 639
Hale v Committee on Character and Fitness (2000)545
Hamdan v Rumsfeld (2006)125, 177, 307
Hans v Louisiana (1890)431
Harper v Virginia Board of Elections (1966)652
Harris v McRae (1980)636
HBO v FCC (1977)343
Heydon's Case (1584, England)369
Holden v Hardy (1898)312
Holy Trinity Church v United States (1892)362
Immigration and Naturalization Service v Chadha (1983)431, 433
Johnson v California (2005)310
Keystone Bituminous Coal Association v DeBenedictis (1987)433
Korematsu v United States (1944)176, 310, 453
Lawrence v Texas (2003)156, 516, 546
Lee v Weisman (1992)498
Legal Services Corporation v Velazquez (2001)549
Lemon v Kurtzman (1971)311
Lochner v New York (1905)312, 429–30, 630–1
Maastricht Case (1993, Germany)128
Maher v Roe (1977)636
Marbury v Madison (1803)82, 83, 114, 753
Martin v Hunter's Lessee (1986)434
McCulloch v Maryland (1819)309, 646, 753
Meritor v Vinson (1986)446
Miller v California (1973)506
Minor v Happersett (1874)630
Miranda v Arizona (1966)506
Moore v City of East Cleveland (1977)652
Muller v Oregon (1908)441, 630, 631
NLRB v Friedman-Harry Marks Clothing Co (1937)312
NLRB v Jones & Laughlin Steel Corp (1937)312
Ohralik v Ohio State Bar Association (1978)545
Oncale v Sundowner Offshore Services (1998)447
Operation Dismantle (1985, Canada)125
Orr v Orr (1979)439
Osborn v Bank of the United States (1824)758
(p. 795)
Pace v Alabama (1883)634
Panhandle Oil Co v Knox (1928)434
Patriation Reference (1981, Canada)150
Pierce v Society of Sisters (1925)652
Planned Parenthood v Casey (1992)637
Plaut v Spend Farm Inc (1995)565
Plessy v Ferguson (1896)310, 633, 635, 753
Principality of Monaco v Mississippi (1934)431
Printz v United States (1997)156
Quebec Secession Reference (1998)128
Rasul v Bush (2004)177
In re Gault (1967)382
Republican Party of Minnesota v White (2002)559
Roe v Wade (1973)22, 283, 635–6, 638, 753
Roper v Simmons (2005)546
Rowland v Mad River (1985)665
Salazar v Davidson (2003)327
Secession Reference (1998, Canada)150
Slaughterhouse Cases (1873)156, 311, 633
Southern Christian Leadership Conference v Louisiana Supreme Court (2001)549
Southern Pacific Co v Jensen (1917)316
SPUC Grog (1991, ECJ)211
State v Kelly (1984)447–8
State v Rusk (1981)446
Strauder v West Virginia (1880)311, 634
Swedish Match (2004, ECJ)159
Tanja Kreil v Bundesrepublik (2000, ECJ)211
TVA v Hill (1978)368
United States v Gonzalez-Lopez (2006)542
United States v Locke (1985)432
United States v Lopez (1995)158, 159
United States v Sawyer (2006)503
United States v Shaughnessy (1955)22
United States v Will (1980)558
Van Gend en Loos (1962, ECJ)210, 213
Vermont Yankee v NRDC (1978)348
Virginia R Co v System Federation (1937)312
Wallace v Jaffree (1984)498
Washington, Virginia & Maryland Coach Co v NLRB (1937)312
Washington v Davis (1976)458
Washington v Glucksberg (1997)156
West Coast Hotel v Parrish (1937)632
West Virginia State Board of Education v Barnette (1943)560
cause layering534–5, 687
Centre for Individual Rights (CIR)638–9
Central and Eastern Europe:
and judicial independence69
and rule of law, threats to66
Central Intelligence Agency (CIA)257, 258
Chile258–9
and informalism388
and judicial independence70–1, 75–6
China:
and judicial review83
and rule of law64, 76
economic liberalization74
threats to66
choice, and natural law399–400, 401, 402
civil law systems:
and colonialism248
and international law199 see also convergence
civil liberties, and judicialization of politics121
Civil Litigation Research Project (CLRP)390–1, 528, 685
Civil Rights Act (1964, USA)646
civil rights movement, and use of courts598
civil society, and establishment of rule of law71–3
class, and legal consciousness530
class action litigation535
class legislation630
Cleveland Bar Association545
collaboration problems, and international law194
collegial courts, and adjudication models:
and consistency and coherence706
and reasons for collegiality705–6
and voting on collegial courts706–8
Colombia67
colonialism:
and globalization of the law247–8
and United States249–50
dollar diplomacy250
Columbia University, and study of law and politics4–5
commitments:
and conceptual constitutionalism291
and international law197–8
credibility195 see also credible commitments
common good, and judicial independence568–9
common law systems:
and colonialism248
and doctrine703
and evolutionary models of700
and international law199
and litigant choices699
and martial law168–9
and prerogative power168–9 see also convergence
communication theory, and statutory interpretation364
(p. 796) community empowerment, and neighborhood justice centers386
comparative judicial politics12
comparative law10–11 see also convergence
compliance:
and international law200–2
credible commitments195
and law and society690–1
and motivation to obey law712–13, 715–16
deterrence model713–14
internalization of moral values717
legitimacy716–17
problems with deterrence model714–15
procedural fairness718–19
value-based perspectives718
Congressional Dominance Hypothesis37
Congressional studies771
connection thesis441
consociationalism332–3
constitutional courts:
and measuring performance of93–5
and strategic decision-making39 see also judicial review
constitutional law, and American politics301–2
and constitutional decision-making314–15
future research316–17
and creating agreement306–9
political procedures305–6
public policy306–9
and election campaigns305–6
and structuring disagreement310–13
business regulation312–13
jurisprudential regimes310–11
state neutrality312
and United States Supreme Court decision-making302–5
public policy-making307–9
and value voting314
constitutional politics9
constitutional review, see judicial review
constitutionalism:
and conceptual constitutionalism289–92
constitutions as contracts290–1
constitutions as coordination device291
constitutions as credible commitment291
constitutions as precommitment devices290
constitutions as promises289–90
entrenchment of rules and commitments291–2
functions of constitutions289, 292
and constitutional arrangements281
and constraint of government power281
and empirical constitutionalism292–4
constitutional change294
constitutional design293
significance of constitutions292–3
working of constitutions293
and judicial independence567–8
and liberalism281
and normative constitutionalism282–9
conservative legal movement283–4
constitutional change285–6
democratic institutions287
dualist democracy285
judicial review282–3
judicial supremacy assumption289
moral inadequacy286
originalist theories284–5
post-cold war theorizing284
priority of democracy288–9
priority of substantive values287–8
proceduralist approach286
protection from self-interested politicians286–7
reconciling with democracy284–9
theoretical developments284
and scholarship on294–5
revival of282
constitutions, and types of281
constructivism, and international law194, 196–7
and compliance with201–2
contract rights, and ideology629–32
contractarianism, and conceptual constitutionalism290–1
convergence267–8
and analytical tools277
and attorneys' fees268
and binding nature of court decisions269
and complexity of269
and contradiction in272–3
and cultural/political context271–2, 277
and current debates271–3
and definition of268
and deterministic logic of269
and divisions over idea271
as dynamic process272
and ideological dimensions270–1, 277
and imperialism278
and judicial review269–70
and language277–8
and legal procedure275–6
and policy diffusion270
and power dynamics270, 277
and role of legal doctrine274
and sources of law273–4
and temporal aspects of268–9
(p. 797)
and trust law274–5
and Western rule of law notion277
cooperation problems, and international law194
coordination, and conceptual constitutionalism291
corporate law:
and decision-making688
and expansion of549
and structure of private practice548
Council on Foreign Relations (CFR)250–1
counter-mobilization534
credible commitments:
and conceptual constitutionalism291
and international law195
and judicial independence107–8, 569, 648–9
criminal justice system614
and criminal sentencing:
alternatives to prison619–20
defendant characteristics618
determinants of severity of618–21
impact of judicial selection processes619
judge characteristics618–19
law and society687
screening processes620
sentence predictability622–3
sentencing guidelines621–2
statistical issues621
and policing615–18
decentralized nature of615
distribution of police services616
impact of politics615, 617
impact on politics617–18
local political culture617
race615–16
threat hypothesis615–16
and prisons622–4
deterrent effect624
expenditure on623
felon disenfranchisement624
impact on politics624
incarceration rate growth622, 714
political effects623
social disciplinary role623–4
threat hypothesis623–4
crisis, see emergency powers
critical juncture:
and exogenous shocks50–1
and path dependency49–50
Critical Legal History (CLH)726
Critical Legal Studies (CLS)439
and historical approach723
and law and society723
and legal history730
and nature of law456, 723
and race456–7
Critical Race Theory (CRT)452, 455–6
and analytical tools459
and emergence of457–8
and focus of459–60
and strategies of459
and successful establishment of458–9
Croatia241
Cuba, and informalism388
cultural norms, and legal consciousness530
custom, and law724
de-centering, and law and courts subfield738
and definition of740
and legal mobilization740, 743–4
and nature of the center738–40
and new institutionalism740
examples of742–3
precursors of741–2
and opportunities presented by749
Declaration of Sentiments and Resolutions437
decolonization, and judicial review85
deference, and emergency powers176–7
delegation, and administrative law346
democracy:
and electoral accountability744, 745
and legal accountability744, 745–6
politicization of746–7
and legal structure of321–2
addressing group differences332–5
bipartisan gerrymandering328–9
consociationalism332–3
design of electoral districts329–30
election administration330–2
gerrymandering325
group identity334
integrationists333
partisan gerrymandering325–7
political parties322–5
power-sharing334–5
and legality744, 747–8
and normative constitutionalism:
constitutional change285–6
democratic institutions287
dualist democracy285
judicial supremacy assumption289
moral inadequacy286
originalist theories284–5
priority of democracy288–9
priority of substantive values287–8
proceduralist approach286
protection from self-interested politicians286–7
reconciling with democracy284–9
(p. 798) democratization:
and amnesty235–9
and comparative judicial politics12
and focus on elections63–4
and horizontal accountability65
and human rights regimes69
and judicial review, establishment of91–2
hegemonic preservation91
political insurance90–1
and judicialization of politics134–5
and proliferation of new democracies321–2
and rule of law, establishment of63
civil society71–3
consolidation of ruling elite's power69–70
domestic economic factors76
inequality76
informal influences on67
international community73–4
party competition68–9, 70
separation of powers framework67–71, 74–5
threats to66–7
and strategic defection86–7
and third wave of87
deregulation, and administrative law344
deterrence, and psychology of human motivation713–14
and problems with model714–15
developmental states248
devolution, and federalism142
dictatorship:
and ancient Rome167
and German state of exception171
diffusion, and policy convergence270
disabled, and legal mobilization531
discretion:
and administrative law347–8
and judicial decision-making758
dispute resolution:
and alternative dispute resolution (ADR)384, 385–6
and international commercial arbitration252–4
and team models of adjudication701
disputing:
and changes in law686
and dispute pyramid527–8, 685
and law and society685–6 see also legal mobilization; litigation
diversion programs, and lower courts380
doctrine, and adjudication models703–5
dollar diplomacy250
domestic violence447–8
dualist democracy285
economic analysis of law, and adjudication698, 708
and integrated model of699–700
criticisms of700
and litigant selection699–700
and modeling collegiality705–8
consistency and coherence706
reasons for collegiality705–6
voting on collegial courts706–8
and modeling doctrine703–5
and models of700–1, 702–3
and team models of700–2
economic development:
and judicial independence649
and rule of law63
Egypt:
and judicial independence70, 74, 649
civil society72
and judicialization of politics128
and Supreme Constitutional Court650–1
El Salvador, and judicial independence66, 73
elections:
and administration of330–2
national legislation331–2
partisan control330, 331
and democratization63–4
and impact of constitutional law305–6
and judicialization of politics126–7 see also gerrymandering; primary elections
Electoral College306
electoral districts, see gerrymandering
emergency powers:
and extra legalist approach to165–6
and legalist approach to165
and post-9/11 debate over178–80
and traditions of166
French state of siege tradition169–70
German state of defense172–3
German state of exception171–2
martial law168–9
prerogative power168–9
Roman legal dictatorship167
Roman suspension of law167
and use of173–4
delegation174–5
enabling acts174–5
judicial deference176–7
suspension175–6
targeting of177–8
emerging democracies, see democratization
enabling acts, and emergency powers174–5
Endangered Species Act (ESA) (USA)368
England:
and development of rule of law66
(p. 799)
and judicial independence108
Environmental Protection Act (EPA)606
Environmental Protection Agency (EPA)585–6
Equal Employment Opportunities Commission606
European Coal and Steel Community209
European Commission:
and enforcement of European law216
and European Court of Justice209–10, 218–19
and public participation588
European Convention on Human Rights426
European Court of Human Rights75
and emergency powers176
and judicialization of politics122
and structure of democracy322
European Court of Justice (ECJ)75, 589
and Barber protocol215–16
and comparison with other international courts220–4
and establishment of authority of210–12
and European integration212
ECJ as interlocutor217–19
ECJ as states' agent214–16
ECJ's leading role212–14
invocation of European law by substate actors217–18
political influences of decisions219
referring cases to ECJ218–19
and features of:
compulsory jurisdiction209
European Commission references to209–10, 218–19
influence of219
preliminary ruling mechanism209, 210–11
and federalism:
centralizing activity150–1
integration156
and foundation of209
and imposition of EU law652–3
and judicialization of politics122
and political autonomy of223–4
and strategic decision-making39
and subsidiarity158–9
European Union389
and federalism142
role of judiciary145, 147
and subsidiarity153
Evarts Act (1891, USA)654
exception, state of, and emergency powers171–2, 173
exogenous shocks, and historical institutionalism50–1
fairness:
and administrative law348–9
and judicial independence559
and motivation to obey law718–19
Family and Medical Leave Act (USA)686
family law, and feminist jurisprudence444–5
federal courts:
and imposition of national norms652
and judicial decision-making763, 764
and recruitment to475–8
American Bar Association477–8
confirmation process477
diversity476
ideology476–7
interest groups477
party affiliation475–6
presidential agendas475
federalism:
as “constitutional” bargain143
and distinctive feature of143
and flexibility/stability balance143
and horizontal federalism142, 145
protection of state interests145–6
and “infant system protection”151
and informal centralization146
and integration154–5, 156–7
and international law199–200
and judicial bias147–51
incentives and motives147–8
and judicial review83–4, 88, 146–7
and judiciary143–4, 160
protection of state interests144–7
and legal forms of142–3
and legalism160
and legitimacy of149
and meaning of142
and origins of142
and subsidiarity152–4, 157–60
instrumental subsidiarity153, 154
role of courts in enforcing154
substantive subsidiarity153–4
and vertical federalism142, 145
protection of state interests145
Fédération de Droit Européen (FIDE)214
feminism, and law:
and consciousness raising443
and critiques of law437
and equal protection doctrine439
and family law444–5
and feminist jurisprudence438
and feminist legal reasoning443–4
and gendered reality439–43
connection thesis441
difference versus domination440–2
(p. 800)
ethic of care441
gender essentialism441–2
physical gender differences441
radical feminism441–2
sameness versus difference440
situation jurisprudence442
and impact on intellectual discourse438
and law as instrument of male supremacy437
and male bias438–9
and rape445
and reasonable person concept445–6
battered woman syndrome447–8
domestic violence447–8
reasonable woman doctrine446–7
and result-oriented jurisprudence439
and second stage of437–8
and women's education437–8
Fiji126
First World War232, 233, 234
Ford Foundation251, 259, 681
foreign aid, and establishment of rule of law73
Foreign Assistance Act (1973, USA)258
foreign investment, and establishment of rule of law74
foreign policy:
and international law188, 246
and role of law246–7
and United States, role of lawyers249–52
formalism:
and arguments against431–2
and best case for433–4
and change in attitude towards435
and decision-making under uncertainty434–5
and definition of431
and Lochner v New York (1905)429–30
and pejorative use of term428–9
and “real” formalism430–2
and “slippery slope” argument434
framing390
France:
and Constitutional Council49, 86
and development of rule of law66
and emergency powers174
enabling acts175
state of siege169–70
and judicial review86, 130, 131
free trade, and judicial review84
French Revolution, and state of siege169
functionalist theories, and international law193–6
game theory7
and origins of judicial review83
gender630, 631–2
gender differences:
and connection thesis441
and difference versus domination440–2
and ethic of care441
and gender essentialism441–2
and physical gender differences441
and sameness versus difference440
and situation jurisprudence442 see also feminism, and law
gender equality:
and legal profession548
and radical feminism441–2 see also feminism, and law
General Agreement on Tariffs and Trade (GATT)203, 255, 256
Geneva Conventions544
German Supreme Court, and subsidiarity158
Germany:
and emergency powers174
dual state177
enabling acts175
state of defense172–3
state of exception171–2
suspension175–6
and federalism142
informal centralization146
integration156
role of judiciary145, 147, 150
and judicial review85–6, 131
and judicialization of politics128
gerrymandering324, 325
and bipartisan gerrymandering328–9
decline in electoral competition328
degree of systemic harm328–9
role of courts329
and design of electoral districts329–30
and partisan gerrymandering325–7
capacity for326–7
defining326
incentives for327
partisan symmetry standard326
process-oriented constraints326
stability of327
and United States Supreme Court327
global governance, and informalism389
globalization of the law245
and advocacy networks245–6
and colonialism247–8
and domestic rule of law245
and human rights257–60
and inevitability of245
(p. 801)
and international commercial arbitration252–4
and international trade254–7
and internationalists246
and legal authority245
and scholarship of247
and transnational norms245–6
and transnational political and economic matters245
and unilateralists246
and United States246–7, 259–61
role of lawyers in foreign policy249–52
Glorious Revolution66
Golden Rule401, 402
governing coalitions, and courts645, 657–8
as coalition stabilizers650–1
and credible commitments648–9
and imposition of national norms651–3
as independent policy-makers655–7
as policy-making partners645–7
and political entrenchment653–5
and United States Supreme Court644, 645–6
group identity, and democratic structure334
Guantánamo Bay, and United States Supreme Court177
Guatemala76
and judicial independence72
Gun-Free School Zones Act (USA)647
Hague Convention in Private International Law275
Hague Court of International Arbitration252
harm, and natural law404
Harvard Program on Negotiation387
hegemonic preservation:
and judicial independence69
and judicial review91
hegemony:
and legal consciousness672
and legal mobilization531
Help America Vote Act (2002, USA)331–2
historical institutionalism7, 12
and emergence of46–9
application to law and courts48–9
motives for46
new institutionalism47
and ideas54–5
and identifying independent variables56
and legal mobilization535
and political regime approach55
and public law scholarship:
contemporary position52–4
future of54–7
and realizing potential of56
and theorizing49–52
exogenous shocks50–1
intercurrence of political orders51–2
path dependency49–50, 52
history, and law, see legal history
horizontal accountability, and rule of law65
human rights:
and amnesties237
and democratization69
and globalization of the law257–60
and international treaty commitments198
compliance201, 202
and judicial review81–2, 87, 88–90
Human Rights Watch237, 259
Hungary66
and judicial independence69
and judicialization of politics125
ideology626–9
and constitutionalism626–7
and contract rights629–32
and framing of legal ideas628
and historical institutionalism54–5
and judicial decision-making24–6, 39–41, 628–9, 640
judicial independence563–4, 565
lower courts27–8
United States Supreme Court26–7
and law640–1
and law and society689–90
and law's influence on635
abortion regulation635–8
affirmative action635, 638–40
conservatism638
and legal institutions627
and liberalism626
and racial ascriptivism632–5
and research focus on627
impartiality, and judicial independence559
impeachment of judges562
implementation:
and international law199–200
and social reform decisions600–1
India:
and emergency powers177
and judicial review85
and judicialization of politics128
Indian Gaming Regulatory Act (USA)647
indifference, and judicial decision-making762
Indonesia72
inequality:
and justice549
and legal and political accountability744–6
(p. 802)
and legal mobilization529
and rule of law76
informalism:
and alternative dispute resolution (ADR)384–7
and comparative perspective388–9
and global governmentality389
and judicial hierarchy approach380–2
administrative agencies381
flexible informal procedures381
lower courts380
scrutiny by higher authority381–2
and legal ordering389–90
and legal pluralist approach383–4, 390
and nature of378
and ongoing relationship approach382–3
enforcement382–3
privacy382
relationship between parties382
and order maintenance378–9
as political resource391
as regulatory reform386–8
accountability387–8
negotiated rulemaking386–7
and research on390–1
institutionalism:
and international law194
institutions, and definition of48
integration, and federalism154–5, 156–7
integrationists, and democratic structure333
Intellectual Property Organization256
intellectual property rights256
intentionalism, and statutory interpretation, see statutory interpretation
Inter-American Commission on Human Rights75
Inter-American Court of Human Rights220
and judicialization of politics122
Inter-American Development Bank63
intercourt relations in United States:
and complexity of503
and consensus512
and hierarchical organization of judiciary504, 507
and information asymmetries507
and judicial ideology512
and lower court compliance with precedent504–6
and monitoring of lower courts:
appellate review509–10
ideology509, 510
reversal509, 510
United States Supreme Court507–9
and parallel courts:
citation practices515–16
diffusion of doctrine513
foreign court precedents516
judicial incentives and cues515–16
policy leadership514
and principal–agent model506–7
lower court decision-making511–12
and research on503–4, 516–17
interest groups:
and judicial independence107
and judicial recruitment477
and regulation579
and regulatory process in America585, 586
Interest Theory of Legal Rights417, 418–21
interlegality383
International Association of Democratic Jurists (IADJ)257
International Chamber of Commerce246, 252
international commercial arbitration, and globalization of the law252–4
International Commission of Jurists257–8
and emergency powers180
international community, and establishment of rule of law73–4
international courts (ICs):
and comparison with European Court of Justice220–4
and design and caseloads of220–3
and effective supranational adjudication219–20
and features of219
and private access to220, 223
International Criminal Court (ICC)203, 231
and international commercial arbitration252–3
and judicialization of politics128
and legitimacy crisis233
and political costs of action by236–7
and problems facing232
and prosecuting aggression235
International Criminal Tribunal for Rwanda (ICTR)127, 235
International Criminal Tribunal for the former Yugoslavia (ICTY)127, 235, 241, 542
international law11, 12, 203–4
and characteristics of187
and compliance with200–2
conditions for201
constructivist explanations of201–2
domestic mechanisms201
first-order200
(p. 803)
reputation201
second-order200
and effectiveness of202–3
and enforcement of200–1
and existence of international legal system189
and foreign policy188, 246
and implementation of199–200
and political theories of190–1
constructivism196–7
constructivist194
human rights commitments198
international regimes190, 193
legal commitments197–8
rationalist/functionalist193–6
realism191–3
and proliferation of bilateral/multilateral treaties188–9
International Monetary Fund63, 73, 255
international relations:
and British School190, 192, 196
and existence of international legal system189
and international law188, 203–4
compliance200–2
effectiveness of202–3
enforcement200–1
implementation of199–200
and legalization of190
and proliferation of bilateral/multilateral treaties188–9
and theories of190–1
constructivism196–7
constructivist194
human rights commitments198
international regimes190, 193
legal commitments197–8
rationalist/functionalist193–6
realist191–3
international trade:
and globalization of the law254–7
and international law203
Iran92
Iraq74
and support for war crimes trials239–40
Islamic law:
and judicial review83, 92
and judicialization of politics128
Israel:
and judicial empowerment653–4
and judicial independence69
and judicial review86
and judicialization of politics128
Israeli Supreme Court650
and judicialization of politics125
Italy, and judicial review85, 131
Japan:
and judicial independence39, 68, 109
and judicial review85
Jim Crow634, 635
Jordan74
judicial behavior, see judicial decision-making
judicial decision-making12, 19–20, 30–1
and administrative law351–5
and approaches to19
and attitudinal model24–6, 39–41, 302–4, 563–4, 565, 756–7, 760
lower courts27–8
United States Supreme Court26–7, 496–7, 760–1
and behavioral theory of756
and computer-based analysis of31
and constitutional law302–5
constitutional decision-making314–15
and development of study of755–6
and diffusion of doctrine513
and discretion758
and ideology628–9, 640
abortion regulation635–8
affirmative action638–40
contract rights629–32
white supremacy632–5
and independent policy-making655–7
and judges' good faith20–1
and judicial independence563–4
and judicialization of politics132–4
and jurisprudential regimes310–11
and law and society687–9
and legal influences19–20, 316
modeling law20–1
and legal models304–5, 758–60
and legal realism19
and modeling of754–5
and nature of316, 753
and personal policy preferences492, 495–6, 753–4, 757–8
and policy leadership514
and political science768–9
and precedent20, 758–9
foreign legal authorities516
horizontal22–3
lower court compliance504–6
United States Supreme Court497–8
vertical21–2
and principal–agent framework511–12
and rational-choice model761–3
and recruitment processes480–1
and separation of powers model28–30
and strategic approaches20
and text and intent of law23–4
(p. 804)
and typology of20
and United States Supreme Court495–9
attitudinal model496–7
policy preferences495–6
research methodology498–9
judicial empowerment653–4
judicial independence557–8
and accountability100–1, 115, 566
and centrality in Western constitutional thought99–100
as collective action problem112–13
and compliance with judicial decisions113
and constitutional structure105–6
as constraint on political power102, 115–16
puzzle of creation by politicians102–3, 107, 116, 568
and credible commitments107–8, 568, 648
and democratizing states64
civil society71–3
consolidation of ruling elite's power69–70
domestic economic factors76
inequality76
informal influences on67
international community73–4
party competition68–9, 70, 649
separation of powers framework67–71, 74–5
and development of66
and disagreements over nature of100
and dual dimensions of100
and dynamic nature of115
and economic and political development63
and economic development649
and endogenous explanations for106–9
benefits for political actors107–8
electoral volatility109
interest groups107
“passing the buck” by politicians108
political credibility107–8
reciprocity108–9
and exogenous explanations for110–12
public support for110–12
and future research116
and governing coalition stability650–1
as human right557
and institutional provisions for102
and judicial accountability100–1, 115
and judicial recruitment569–71
elected judges570–1
and meaning of558
contested nature of572
definitional difficulties558
empowering function561
freedom from constraints of law560–1
independence from litigants559
independence from public opinion559–60
lack of single definition561
limitation to judicial actions561
separation of powers rationale558–9
and model of costs and benefits of103–5
and nonabsolute nature of558
and parliamentary systems75
and political costs of curbing106, 110, 113
and political institutions38–9
and reality of562–5
budgetary threats562
congressional influence562, 563
ideological decision-making563–4, 565
impact of promotion prospects562–3
impeachment threats562
independence from law564–5
influence of litigants564
influence of public opinion564
measurement of563–4
presumption of562
responsiveness to political changes563
and rights protection559
and rule of law64–7, 557
and selective resistance to112–13
and sources of567–9
concern for common good568–9
constitutional protections567–8
credible commitments569
customary independence569
economic basis568
political basis568
and strategic defection86–7
and strategic judicial decision-making38–9, 113–15
sensitivity to political actors114–15
sensitivity to public attitudes113–14
and uncertain virtue of566–7
judicial politics9
and development of study of law and politics6–7
and modeling754–5
judicial recruitment471
and biases in scholarship469
emphasis on readily available data470
lack of intercourt comparisons470, 472
preoccupation with United States Supreme Court470
and common features of471
and future research482
(p. 805)
and ideal types of471
and increased attention to469
and judicial independence569–71
elected judges570–1
and literature review471–2
and lower federal courts475–8
American Bar Association477–8
confirmation process477
diversity476
interest groups477
party affiliation475–6
political ideology476–7
presidential agendas475
and state judicial systems478–81
electoral accountability479–80
gubernatorial appointment479
impact of selection system480–1
merit selection system479, 480
nonpartisan elections479
partisan elections479
and United States Supreme Court472–4, 488–90
American Bar Association474
choice of nominees474, 489
confirmation process473–4, 489–90
nominee characteristics473
obstacles to study of472
political ideology474
studies of472–3
vacancies488–9
judicial review:
and administrative law343, 355
curtailing of344
reasonableness review349–51
and contrasting views of282–3
and convergence269–70
and definition of81
and determination of legal rights422–4
and emergencies176
and explaining spread of:
democratization91–2
diffusion93
domestic political logics90
federalism88
hegemonic preservation91
institutionalist approach90
political fragmentation90
political insurance90–1
rights ideology88–90
rule of law hypothesis88
and federalism146–7
and future research:
authoritarian contexts92
comparative studies95
ideological reasons for adopting92–3
measuring performance93–5
and human rights81–2, 87, 88–90
and imposition of national norms652
and origins and development of:
Anglo-American natural law traditions82–3
decolonization85
federalism83–4
free trade84
game theory83
higher law82
international quasi-judicial review87–8
Marbury v Madison (1803)83
post-World War II Europe85–6
second wave85–7
social .[ntract82
third wave democratization87
United States82–4
written constitution82
and race455
and regulatory agencies343, 576, 577, 583, 589, 590
curtailing of344
and spread of81–2
and types of130–1
centralized/decentralized131–2 see also judicialization of politics
judicialization of politics138
and ascendancy of legal discourse and procedures121
and expanded scope of120
and limited academic coverage of120
and mega-politics (core political issues)123, 124–9
corroboration of regime change126
definition of the polity128
legislative and executive prerogatives124–6
oversight of electoral processes126–7
restorative justice127–8
and political entrenchment653–4
and political salience of123–4
and public policy-making:
domestic121–2
international122
limited impact on307–9
and reasons for:
access rights132
centralized/decentralized judicial review131–2
institutional features129–32
judicial decision-making132–4
judicial will134
necessity of political support for137–8
(p. 806)
political determinants134–8
rights discourse135–6
sociopolitical trends134–5
standing rights132
strategic political maneuvering136–7
type of judicial review process130–1
and significance of119
and spread of119–20 see also judicial review; legal mobilization
Judiciary and Removal Act (1875, USA)654
jurisprudence13
and politics and law7–8
jurisprudential regimes310–11
juristocracy123, 138, 245, 654
Juvenile Court Reform Movement381–2
Kantianism, and morality402–3
Kazakhstan66
Korea68
Kosovo war238
Kuwait74
labor regulation, and contract rights629–32
language, and convergence277–8
Latin America, and rule of law66–7
law and courts769–71
and neglect of law772 see also de-centering, and law and courts subfield
law and politics:
and defining field of773–4
and development of study of4–7
and disciplinary traffic patterns767–8
and diversity of field3–4
and law and courts769–71
neglect of law772
and political science767–8
congressional studies771
enrichment of770
executive studies771–2
limited influence on771
and structure of field7
comparative law10–11
constitutional law8–9
constitutional politics9
international law11
judicial politics9
jurisprudence7–8
law and society10 see also de-centering, and law and courts subfield
law and society10, 681–2
and compliance690–1
and construction of law681
and contextual perspective681
and Critical Legal Studies723
and decision-making687–9
and definition of684–5
and development of field681–2
and disputing685–6
and key characteristics of682–5
comparative approaches683–4
epistemology683
interdisciplinary682–3
law in society684
methodology683
policy-relevant concerns683
and legal consciousness690
and legal history691
and legal ideology689–90
and procedural justice691–2
and recent developments in692–3
and regulation690–1
and research areas682
Law and Society Association10, 682, 684
lawyers:
and cause lawyering534–5
and decision-making687–8
and distribution across professional roles547–8
and division of private practice548
and establishment of rule of law72–3
and influence on courts545–6
and judicial influence on544–5
and market for legal representation546–7
and monopoly protection545
and multidisciplinary partnerships (MDPs)547
and status of248–9
and theories of legal representation541–4
“Adversary System Excuse”541–2
lawyers' amoralism542–3
and United States:
prominence of248–9
role in foreign policy249–52
League of Nations246, 250
Lebanon74
legal aid549
legal consciousness:
and action674
and construction and transmission of669
and cultural diffusion671
and cultural shifts670–1
and hegemony672
and law and society690
and legal mobilization529–31
and legality668
(p. 807)
and path dependency672–3
and regime change664, 669–73
and routinization of law669–70
and social interactions669
and transformation of old narratives671
legal globalization, see globalization of the law
legal history723–4
and contemporary position of727–9
and contextualizing debates731
and critical contextualization724
and Critical Legal History726
and Critical Legal Studies723, 730
and development of724–7
and distinctiveness of728–9
and law and society691
and law as politics729
and law's context outside the sociological730
and sociologization of law730
legal mobilization522
and American politics522–3
and approaches to526–7
constitutive framework526
cultural526
individual/group focus527
instrumental526
and core analytical ideas:
actors' choice of litigation524–5
citizen capacity to mobilize law525
focus on nonofficial legal actors523–4
litigation as part of larger dynamic524
and de-centering740, 743–4
and definition of523
and group mobilization and social reform532
case studies533–4
cause lawyering534–5
conservative functions of law532–3
counter-mobilization534
litigation campaigns532
and hegemony531
and improved legal access523
and individual disputing527
analysis of identity and context531–2
challenging assumption of American litigiousness528
citizen political participation527
disabled531
disputing pyramid527–8
explaining reluctance to mobilize528, 531
legal consciousness529–31
resource inequalities529
social reform impact605–6
and institutional norms601–7
activist use of legal rights604
growth of administrative professions602
judicial restructuring of incentives602
organizational responses605
policy process602–3
political mobilization603–4
professional networks606–7
support structures601–2
and legal and political accountability744–6
and legality and democracy747–8
and politicization of legal accountability746–7
and research on522–3
class action litigation535
cross-national studies536
historical institutionalism535
mobilization by the powerful535
reduced opportunities535–6
and social change523
legal order12–13
and informalism390
and legal pluralism383–4
legal pluralism
and informalism383–4
and legal history728
legal process theory, and race452, 454–5
legal profession:
and composition of547–8
and division of private practice548, 688
and entry standards544–5
and judicial influence on544–5
and justice548–9
and lawyers' influence on courts545–6
and legal aid549
and market for legal representation546–7
and monopoly protection545
and multidisciplinary partnerships (MDPs)547
and politics550
and representativeness of548
and right to representation549
and theories of legal representation541–4
“Adversary System Excuse”541–2
lawyers' amoralism542–3
legal realism, and judicial decision-making19, 760
legal representation:
and justice548–9
and legal aid549
and market for546–7
and right to549
and theories of541–4
“Adversary System Excuse”541–2
lawyers' amoralism542–3
Legal Services Corporation549
(p. 808) legality:
and broadening scope of748
and democracy744, 747–8
and electoral accountability744, 745
and legal accountability744, 745–6
politicization of746–7
legalization, see globalization of the law
legislative supremacy, and determination of legal rights422–7
legitimacy:
and international law196–7
and motivation to obey law716–17
procedural fairness718–19
legitimation, and role of United States Supreme Court646
lex mercatoria, and international commercial arbitration252–3
liberalism:
and constitutionalism281
and influence on law626
liberalization:
and comparative judicial politics12
and establishment of rule of law74
litigation:
and ambivalence about595
and institutions391
and law and society685–6
and litigant selection699–700
and social reform595 see also legal mobilization
local government, and imposition of national norms651–3
Lord's Resistance Army (LRA)239
Maastricht Treaty (1993)215
Malaysia:
and judicial independence72
and judicialization of politics128
martial law, and common law systems168–9
maternalism630, 631
media, and impact of judicial decisions603–4
mega-politics (core political issues), see judicialization of politics
Mercosur122
Mexico:
and election administration331
and judicial independence68, 69, 70
civil society72
and judicial review84
Middle East70
minimum wage laws631
minority groups:
and democratic structure332–5
and legal consciousness530
and safe districts335
modeling, and use of754–5
Mongolia68
morality:
and internalization of moral values717
and natural law399, 400–1, 402–4
free choice403
and law410–11
moral obligations411
motivation, see psychology and law
multidisciplinary partnerships (MDPs)547
National Abortion Rights Action League (NARAL)637
National Association for the Advancement of Colored People (NAACP)641
Legal Defence Fund606
National Center for State Courts764
National Organization for Women (NOW)637
natural law:
and avoidance of evils401
and choice399–400, 401, 402
and harm as side effect404
and human goods399, 400, 401
and immoral choices402
and integral human fulfillment401
and intending harm404
and legal authority406
and legal enforcement of moral obligations409–10
and legal injustice410, 411
and legal interpretation408–9
and moral norms399, 400–1, 402
and moral obligations411
and morality402–4
free choice403
and law410–11
and political morality405–7
and positive law405–7
and practical reasoning399–402
and religion412
and rights411
and theoretical reasoning400
and unreasonableness402
and virtue404–5
and voluntariness403–4
NDispute387
negotiated rulemaking386–7
and accountability387–8
Negotiated Rulemaking Act (1990, USA)387
negotiating costs, and international law194
Neighborhood Justice Centers (NJCs), and alternative dispute resolution (ADR)385–6
(p. 809) neoliberalism, and negotiated rulemaking387–8
New Deal:
and administrative law341
and United States Supreme Court282–3, 312–13
new institutionalism47, 657
and de-centering740
and examples of742–3
and precursors of741–2
and structure of democracy321
New York Convention (1958)252–3
New Zealand:
and electoral districts330
and judicial empowerment653
and judicial independence69
Nigeria128
nongovernmental organizations (NGOs), and informalism389
nonstate actors, and establishment of rule of law
and civil society71–3
and international community73–4
Norris-LaGuardia Act (1932, USA)646
North American Free Trade Agreement (NAFTA)389
and judicialization of politics122
and quasi-judicial review87
Northern Ireland177
Norway84
Nuremberg war crimes trial232, 233–4
ongoing relationships:
and alternative dispute resolution (ADR)384–7
and informalism382–3
Open Society Institute237
originalist theories, and normative constitutionalism284–5
Pakistan66
and judicialization of politics126, 128
pandectism550
parliamentary supremacy:
and determination of legal rights422–7
and modifications to288
parliamentary systems, and judicial independence75
path dependency:
and historical institutionalism49–50, 52
and regime change672–3
peace settlements, and amnesties235–9
personal growth, and neighborhood justice centers386
Peru125
Philippines249–50
Physicians for Human Rights239
plea bargaining687
Poland69
policing615–18
and decentralized nature of615
and distribution of police services616
and impact of politics615, 617
and impact on politics617–18
and local political culture617
and race615–16
and threat hypothesis615–16
political crisis, see emergency powers
political institutions, and judicial independence38–9
political parties:
and campaign finance324
and centrality of322–3
and congressional rules and practices324
and gerrymandering325
bipartisan gerrymandering328–9
partisan gerrymandering325–7
safe districts324
and impact of Voting Rights Act (1965)324–5
and judicial recruitment475–6
and legal regulation of323
and polarization of323–5
and primary elections323
closed323
open323
United States Supreme Court decision on323–4
and structure of democracy322–5
political party competition:
and judicial independence68–9, 70, 109, 568, 649
and judicial review90–1
and rule of law68
political science:
as American discipline769
and congressional studies771
and development of study of law and politics4–7
and executive studies771–2
and judicial decision-making768–9
and law and courts769–71
neglect of law772
and law and politics767–8
enrichment by770
limited influence of771
and modeling754–5
political-action committees (PACs)324
Portugal:
and informalism388
and judicial review84
(p. 810) positive political theory (PPT):
and adjudication698
and administrative law342, 345, 353–5
and statutory interpretation360, 361
intentionalism363–5
power elite745
power relations, and rule of law68
power-sharing334–5
and consociationalism332–3
precautionary principle589
precedent:
and citation practices515–16
and judicial decision-making20, 758–9
horizontal21–2
United States Supreme Court497–8
vertical22–3
and lower court responsiveness504–6
and stare decisis21–3, 269
and use of foreign court precedent516
precommitment, and conceptual constitutionalism290
prerogative power, and common law systems168–9
primary elections:
and closed primaries323
and impact of structure on candidate selection323–4
and open primaries323
and political parties323
and United States Supreme Court323–4
principal–agent theory:
and adjudication700
and European Court of Justice214–15, 216
and intercourt relations506–7
lower court decision-making511–12
and judicial independence111
prisons:
and deterrent effect624
and expenditure on623
and felon disenfranchisement624
and growth in incarceration rate622, 714
and impact on politics624
and political effects on623
and prison reform606–7
and social disciplinary role623–4
and threat hypothesis623–4
pro bono programs549
procedural justice, and law and society691–2
procedure, legal, and convergence275–6
pro-choice movement637–8
professional networks, and social reform606–7
pro-life movement636, 637
psychology and law711–12
and motivation to obey law712–13, 715–16
deterrence model713–14
internalization of moral values717
legitimacy716–17
problems with deterrence model714–15
procedural fairness718–19
value-based perspectives718
public choice theory:
and agency discretion349
and judicial independence107
and statutory interpretation371–2
legislative intent362–3
legislative process370
public interest law firms523
public law3
and behavioral revolution769
as problematic label768
and scope of773–4
public opinion:
and judicial independence559–60, 564
and support for court-sanctioned regime change666–8
public participation:
and legal mobilization527
and regulatory process:
outside United States588–9
United States585–7
public policy-making:
and courts as policy-makers655–7, 753–4
policy preferences492, 495–6
and judicialization of politics:
domestic level121–2
international level122
limited impact307–9
purposivism, see statutory interpretation
race:
and antidiscrimination law455
and Brown v Board of Education (1954)453–5
and comparative analysis462
and contestation over concept460–1
and Critical Legal Studies456–7
and Critical Race Theory452, 455–6
analytical tools459
emergence of457–8
focus of459–60
intersectionality458
strategies of459
successful establishment of458–9
unconscious racism458
and deconstruction of461
and differences among contemporary theorists462
and fluidity of concept460
and future in legal theory462–3
(p. 811)
and identity politics461
and ideology632–5
and legal and social construction of460
and legal consciousness530
and legal process theory454–5
and legal profession548
and legal scholarship451
and policing615–16
and pre-Brown era452–3
interwar period453
neglect in legal scholarship452
postwar period453
rape, and feminist jurisprudence445
rational-choice institutionalism47
rational-choice theory:
and democratic decision-making579
and judicial decision-making761–3
and obedience to law713
and regulation591
rationalist theories, and international law193–6
realism:
and amnesties236–7
and international law191–3
and war crimes tribunals237–8
reasonableness:
and administrative law349–51
and reasonable person concept445–6
reasonable woman doctrine446–7
reciprocity:
and international law201
and judicial independence108–9
recruitment, see judicial recruitment
Red Army Faction172
regime change:
and judicialization of politics126
and legal consciousness664, 669–73
cultural diffusion671
cultural shifts670–1
hegemony672
path dependency672–3
transformation of old narratives671
and political dysfunction664–5
and pressure for665
and role of courts663–4, 665–6
public opinion data on support for666–8
and sources of665
regime politics, and courts644, 657–8
as coalition stabilizers650–1
and credible commitments648–9
and imposition of national norms651–3
as independent policy-makers655–7
as policy-making partners645–7
and political entrenchment653–5
regulation:
and administrative law580
and American process584–7
public participation585–7
rulemaking585–7
and contract rights629–32
and cost–benefit analysis590
and democracy–technocracy balance580–4
and economic case for578–9
and future research590–1
and interest groups579
and judicial review576–7, 583, 589, 590
and law and society690–1
and political economy of579–80
and role of courts589–90 see also administrative law
regulatory agencies, see agencies
rehabilitation, and lower courts380
religion:
and judicial decision-making311
and natural law412
Religious Freedom Restoration Act (USA)647
reproductive rights, and abortion regulation635–8
reputation-building, and international law195 and compliance 201
resource inequalities, and legal mobilization529
restorative justice, and judicialization of politics127–8
rights:
and analysis of414, 415–21
duty415
Hohfeld's framework415–17
Interest Theory of Legal Rights417, 418–21
legal claims415
legal disability416
legal immunity416–17
legal liabilities416
legal liberty416
legal powers416
Will Theory of Legal Rights417–21
and legal philosophy414
analytical/normative distinction414
and natural law411
and normative questions414
judicial review/legislative supremacy debate422–7
procedural issues421
substantive issues421
who determines rights421–2
and a politics of746
rights discourse, and judicialization of politics135–6
(p. 812) Romania66
Rome (Ancient)167
Rome, Treaty of (1957)209
rule of law:
and constraints on state actors and individuals66
and definition of64
and democratizing states63, 64–7
civil society71–3
consolidation of ruling elite's power69–70
domestic economic factors76
inequality76
informal influences on67
international community73–4
political party competition68–9, 70
separation of powers framework67–71, 74–5
threats to66–7
and development of66
and horizontal accountability65
and judicial independence64–7, 557
rulemaking, and regulatory process:
and public participation, United States585–7
and public policy-making, outside United States588–9
Russia:
and Constitutional Court39
Chechnya Case (1995)125
and emergency powers174, 177
and judicial independence70
consolidation of ruling elite's power69–70
curbing of115
and rule of law63
threats to66
Russian Revolution176
Second World War232
Seneca Falls Declaration437
separation of powers:
and establishment of rule of law67–71, 74–5
and judicial decision-making28–30
strategic decision-making35–7
and judicial independence105–6, 558–9
siege powers, and emergency governance169–70
signaling, and international law195
situation jurisprudence442
slavery, and development of:
and intercurrence of political orders51–2
and path dependency49–50
Small Claims Court movement378
social cohesion674
social reform, and law:
and conditions for court-made law as instrument of:
fragmented governing structures597, 609
fragmented political organizations597–8
and future research:
legal environment609
limitations of rights610
and implementation of court decisions600–1
and law as tool of595–6
and legal mobilization532
activist use of legal rights604
case studies533–4
cause lawyering534–5
conservative functions of law532–3
counter-mobilization534
growth of administrative professions602
impact of private litigation605–6
institutional norms601–7
judicial restructuring of incentives602
litigation campaigns532
organizational responses605
policy process602–3
political mobilization603–4
professional networks606–7
support structures for601–2
and litigation595
practical impact of599–600
resource requirements599
securing support of judge599
utility of598–600
and role of courts596–7, 608–9
disputed effectiveness of607
judicial events596
policy interventions596
social transformation, and neighborhood justice centers386
sociological perspectives12
Sonnetrach253
South Africa:
and Constitutional Court87
and emergency powers174
and judicial empowerment653
and judicial independence69, 74
and judicialization of politics126, 127
and Truth and Reconciliation Commission236
South Korea126
Spain131
Spanish American War249
specialized courts546
Stafford Act (USA)175
stare decisis269
and judicial decision-making21–3
and lower court responsiveness504–6 see also precedent
state intervention, and contract rights629–32
state judicial systems, and recruitment to478–81
and electoral accountability479–80
and gubernatorial appointment479
and impact of selection system480–1
and merit selection system479, 480
and nonpartisan elections479
and partisan elections479
state neutrality312
and contract rights629–31
state of siege, and French legal tradition169–70
statutory interpretation:
and administrative agencies374–5
and dynamic statutory interpretation372
and empirical scholarship on373–4
and formalism:
arguments against431–2
best case for433–4
change in attitude towards435
decision-making under uncertainty434–5
definition of431
Lochner v New York (1905)429–30
pejorative use of term428–9
“real” formalism430–2
“slippery slope” argument434
and future research361
and institutional design375
and intentionalism361–6
communication theory364
difficulty in determining legislative intent361–3
intent of current legislature365–6
legislative materials363–4
manufacture of legislative history362–3
meaning of361
pivotal lawmakers364
positive political theory363–5
preference-estimating366
public choice objections362–3
understanding legislative process365
and natural law408–9
and positive political theory360–1
and pragmatic approach374
and public choice theory371–2
legislative intent362–3
legislative process370
and purposivism369–72
identification of purpose370
as judicial power grab371
mischief rule369
reasonable legislator assumption370–1
and regulatory process589
and renaissance of scholarship on360
and strategic judicial decision-making37
and textualism360, 366–9
appropriations process368–9
canons of construction367–9
formalist justification366
incentive for precise legislation366–7
substantive canons369
strategic action12
and judicial decision-making20
strategic defection86–7
strategic judicial decision-making34–5, 42–3
and antecedents of approach35
and attitudinal approach39–41
and constitutional courts39
and constraints imposed by separation of powers35–7
and decision costs38
and first wave studies of35–7
and internal strategic behavior41–2
and judicial independence38–9, 113–15
sensitivity to political actors114–15
sensitivity to public attitudes113–14
and judicialization of politics133–4
and relative political position37
and reluctance to use constitutional justification37–8
and responsiveness to Congress36–7
and second wave studies of37–9
and statutory interpretation37
and United States Supreme Court496–7 see also judicial decision-making
subsidiarity:
and federalism152–4, 157–60
and versions of:
instrumental153, 154
substantive153–4
surveillance, and deterrence714, 715
suspension, and emergency powers175–6
Switzerland:
and federalism142
and rejection of judicial review147
Taft-Hartley Act (USA)313
Taiwan:
and judicial independence68–9
and rule of law63
Taliban544
Tanzania66
and judicial independence72
team models of adjudication701–2
Tellico Dam368
Tennessee Valley Authority (TVA)368
textualism, see statutory interpretation
Tokyo war crimes trial232, 234
torture177, 203, 544
Trade Act (1974, USA)255
transaction costs:
and international law194
and judicial independence65
transitivity, and judicial decision-making762
transnational governance, and informalism389
transnational tribunals119
and judicialization of politics122
treaties, and proliferation of bilateral/multilateral treaties188–9
trust law, and convergence274–5
truth commissions236
Turkey128
Uganda239
Ukraine176
uncertainty, and international law194
undue burden, and abortion regulation637
United Kingdom:
and electoral districts329–30
and emergency powers177
Northern Ireland177
post-9/11179
and federalism142
and judicial independence567, 569
and judicialization of politics125
United Nations Convention Against Torture203
United Nations Convention on the Political Rights of Women202
United Nations Security Council200
United Nations Treaty Series (UNTS)188–9
United States:
and colonialism249–50
dollar diplomacy250
and emergency powers174
deference177
delegation175
enabling acts175
post-9/11179
targeting of178
and federalism142
informal vertical integration145–6
international law199–200
role of judiciary144–5
and foreign policy
internationalist vs. unilateralist246
role of international law188
role of law246–7
role of lawyers249–52
and globalization of the law246–7, 259–61
human rights257–60
international commercial arbitration252–4
international trade254–7
and judicial independence70
civil society72
and judicialization of politics119, 125
and prominence of lawyers248–9
United States Circuit Court Judge Nominating Commission476
United States Congress:
and influence on judiciary38
and overrides of Supreme Court decisions37
United States Courts of Appeals, and judicial decision-making27–8
United States Military Commission in Guantánamo542
United States Supreme Court487–8
and administrative law341, 348
and agenda setting (case selection)490–5
attention to other actors494
factors affecting508–9
future research494–5
ideology of lower courts509
legal or jurisprudential model491–2
policy preferences492
role of litigants493
strategic calculations493
and constitutional theory282–4
and emergency powers177
and federalism149
integration156
subsidiarity158, 159
and formalism429–30
and gerrymandering327
and hierarchical organization of judiciary504
and intercourt relations:
lower court compliance504–6
monitoring of lower courts507–9
reversal509
and judicial decision-making495–9, 753
attitudinal model26–7, 40–1, 302–4, 496–7, 756–7, 760–1
compliance of lower courts21–2
computer-based analysis of31
decision-making302–5
foreign legal authorities516
jurisprudential regimes310–11
legal models304–5
policy preferences495–6, 753–4
precedent497–8
research methodology498–9
separation of powers model28–30
strategic decision-making496–7
value voting314
and judicial independence558
and judicial review130
contrasting views of282–3
origins of82–4
and judicialization of politics125
and legitimation function646
as part of governing coalition644, 645–6
policy-making partner in645–7
and political parties323
primary elections323–4
and public policy-making:
governing coalition partner645–7
limited impact on307–9
and recruitment to472–4, 488–90
American Bar Association474
choice of nominees474, 489
confirmation process473–4, 489–90
nominee characteristics473
obstacles to study of472
political ideology474
studies of472–3
vacancies488–9
and strategic decision-making:
internal strategic behavior41–2
relative political position37
reluctance to use constitutional justification37–8
responsiveness to Congress36–7
sensitivity to political actors114
sensitivity to public attitudes114
separation of powers constraints35–7
statutory interpretation37
and structure of democracy322
as trustee150
Universal Declaration of Human Rights (1948)257, 557
utilitarianism, and morality402–3
Venezuela66
Versailles, Treaty of (1919)233
Violence Against Women Act (USA)647
virtue, and natural law404–5
Voting Rights Act (1965, USA)331
and impact on political parties324–5
and power-sharing effects334–5
Wagner Act (USA)646
war, and laws of229–30
war crimes tribunals230–1
and adņhoc nature of231
and amnesty235–9
and assigning responsibility for war234
and impact of240–1
and individual-level politics of240
and legitimacy of232
and outlawing war233–5
and peace vs. justice235–40
and powerful states232–3
and public opinion240
and relative power balance237–8
and shrinking ambit of233
as sign of lack of progress241
and truth commissions236
and victims' attitudes239–40
and victors' justice231–3
Washington Consensus247
Weimar Republic171, 172
white supremacy, and racial ideology632–5
Will Theory of Legal Rights417–21
World Bank63, 73, 224, 247, 255
World Trade Organization (WTO)203, 389, 569
and Dispute Settlement Body200
and globalization of the law256
and judicialization of politics122
Zambia66