Law, Institutions, and Public Policy

Where to find the readings: = E-reserves; = Blackboard course materials; = World Wide Web (hyperlink from syllabus);
= Stokes Library 3 hour reserve; also available for purchase at Labyrinth.

Week One. February 1 and 3. Introduction: the variety of institutions .
The first week of the course will lay out three cases aimed at illustrating the range of institutions the course will consider: (1) publicly ordered institutions (citizenship), (2) private ordering within a legal framework (contract), and (3) institutions whose rules and practices are not generally established through law, though they may have the state's patronage or acceptance (science).

Citizenship:
Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992), 21-34 (Ch. 1 "Citizenship as Social Closure").

Contract:
Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton NJ: Princeton University Press, 2013), xiii-xvii (Prologue) and 1-18 (Ch. 1).

Science:
Robert K. Merton, Social Theory and Social Structure (New York: Free Press, 1968), 604-615 ("Science and Democratic Social Structure").

Week Two.February 8 and 10: What are institutions, and why do they matter? Institutional analysis and legal systems.
This week examines different approaches to institutional analysis and institutional change and to legal systems .

February 8: Contrasting disciplinary and theoretical perspectives on institutions
Douglass North, Institutions, Institutional Change, and Economic Performance (New York: Cambridge University Press, 1990), Chs. 1, 9.
Paul J. DiMaggio and Walter Powell, "The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields." American Sociological Review 48 (1983), 147-160.
Giovanni Capoccia and Daniel Keleman, "The Study of Critical Junctures: Theory, Narrative, and Counterfactuals in Historical Institutionalism," World Politics (2007) 59: 341-54 [first 14 pages only].

February 10: Legal systems
H.L.A. Hart, The Concept of Law, 3d ed. (New York: Oxford University Press, 2012), Ch. 5 ("Law as the Union of Primary and Secondary Rules"), 79-99.
Derek Roebuck, The Background of the Common Law (Oxford University Press, 1990), 1-10.
John Henry Merryman and Rogelio Perez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, 3rd ed. (Stanford, CA: Stanford University Press, 2007), 1-5, 20-33.

Week Three. February 15 and 17. Political institutions: state-building, the nation-state, and constitutionalism.
In this week, we will examine the rise and consolidation of the modern nation-state as both a social and a legal project.

Michael Mann, "The Autonomous Power of the State: Its Origins, Mechanisms, and Results," in John A. Hall, ed., States in History (Oxford: Blackwell, 1986). 109-36.
Charles Tilly,"States and Nationalism in Europe 1492-1992," Theory and Society (1994), 23: 131-146.
Douglass C. North and Barry R. Weingast, "Constitutions and Commitment: The Evolution of Institutional Governing Public Choice in Seventeenth-Century England," Journal of Economic History 49 (Dec. 1989), 803-832.

Week Four. February 22 and 24. Democracy and law
We now take up questions about the institutional framework of democracy: What are the primary types of institutional design and what are their consequences? What role does law play in regulating democracy? And can constitutions and courts prevent democracies from being undone democratically?

February 22: The design of democracy
G. Bingham Powell, Jr.,"Constitutional Designs as Visions of Majoritarian or Proportional Democracy," in Elections as Instruments of Democracy (Yale University Press, 2000), Ch. 2.
Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, "An Introduction to the Design of Democratic Institutions," in The Law of Democracy: Legal Structure of the Political Process, 4th ed. (New York: Foundation Press, 2012), 1-13.


February 24: Constitutional democracy against itself? (Kim Lane Scheppele)
Kim Lane Scheppele, "Constitutional Coups and Judicial Review: How Transnational Institutions Can Strengthen Peak Courts at Times of Crisis," Transnational Law and Contemporary Problems (Spring 2014),23: 51-117.

Weeks Five and Six. Legal institutions
We turn to the institutions that shape the legal process, focusing on courts, judges, and judicial review.

February 29. Courts, lawyers, and juries (Paul Frymer)
Marc Galanter, "Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change" Law and Society Review 9 (1974), 95-160.
Jessica Silver-Greenberg and Robert Gebeloff, "Beware the Fine Print, Part I: Arbitration Everywhere, Stacking the Deck of Justice," New York Times Oct. 31, 2015; and Jessica Silver-Greenberg and Michael Corkery, "The Fine Print, Part II: In Arbitration, a 'Privatization of the Justice System,'" New York Times Nov. 1, 2015
Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (New York: Basic Books, 1994), Ch. 1.

March 2: Judicial review
Christopher L. Eisgruber, Constitutional Self-Government (Cambridge, MA: Harvard University Press, 2001), 10-45 (Ch.1).
Martin Shapiro, "The Success of Judicial Review and Democracy," in Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (New York : Oxford University Press, 2002).
Cass Sunstein, "Law and Administration after Chevron," Columbia Law Review 90 (December 1990), 2071-2120.

March 7: The expansion of rights (Paul Frymer)
Ronald Dworkin, "Taking Rights Seriously," in Dworkin, Taking Rights Seriously (1977), 184-205.
Robert Cover, "The Origins of Judicial Activism in the Protection of Minorities." Yale Law Journal 91 (1982), 1287-1316.
Paul Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton: Princeton University Press, 2008), Chs. 2-3.

March 9. Midterm exam.

SPRING BREAK

Week Seven. The public-private boundary
As we turn from publicly ordered institutions to privately ordered institutions within a legal framework, we consider the meaning of the public-private boundary, the changing understanding of property, and movement of functions or activities from public to private or vice versa.

March 21. Public versus private: property
Paul Starr,"The Meaning of Privatization," Yale Law and Policy Review 6 (1988): 6-41.
Stuart Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 1-22, 94-108 (Introduction, Chs. 1 and 4).
Michael Heller, The Gridlock Economy (Basic Books, 2008), Ch. 1 ("The Tragedy of the Anti-Commons").

March 23. Public versus private: privacy
James Whitman, "The Two Western Cultures of Privacy: Dignity Versus Liberty," Yale Law Journal 113 (2004), 1151-1221.

Week Eight. March 28 and 30: The institutions of capitalism and sources of economic growth
This week, drawing on comparative and historical evidence, we consider how institutions created through politics and law may affect economic growth, and how economic growth may affect institutions.

Max Weber, General Economic History (Glencoe, IL: Free Press, 1950), 275-278 ("The Meaning and Presuppositions of Modern Capitalism").
Daron Acemoglu and James A. Robinson, Why Nations Fail: the Origins of Power, Prosperity and Poverty (New York: Crown Business, 2012), Chs. 2-4, 7-10, 14-15.
Naomi R. Lamoreaux, "Did Insecure Property Rights Slow Economic Development? Some Lessons from Economic History," Journal of Policy History 18 (2006): 146-64.

Week Nine. April 4 and 6. Politics, technology, and constitutive choices: the case of communications. The Internet as an institution.
Changes in politics and technology often upset old institutional frameworks and lead to new choices in institutional design. The history of communications, from the post office to broadcasting and the Internet, illustrates the pattern.

Paul Starr, The Creation of the Media: Political Origins of Modern Communications (New York: Basic Books, 2004), Introduction, Chs. 1-4, 10.
Lawrence Lessig, Code, Version 2.0 (New York: Basic Books, 2006), Chs. 1, 3, 4, 7, 9, 12.
Laura DeNardis, The Global War for Internet Governance (Yale University Press, 2014), Ch. 1.

Week Ten. April 11 and 13. Civil society, religion, and politics
This week we consider how institutional change in civil society has affected political advocacy, and the relation of religion and the law.

April 11. Changing structures of civic engagement
Theda Skocpol, Diminished Democracy: From Membership to Management in American Civic Life (Norman: University of Oklahoma Press, 2003), Chs. 1, 2, and 4.
David Karpf, The Moveon Effect: The Unexpected Transformation of American Political Advocacy(Oxford University Press, 2012), Chs. 1-2.

April 13. Church and state
Stephen V. Monsma and J. Christopher Soper, The Challenge of Pluralism: Church and State in Five Democracies, 2d ed. (Rowman and Littlefield, 2009), 1-28.
Michael Corkery and Jessica Silver-Greenberg, "Beware the Fine Print, Part III: In Religious Arbitration, Scripture is the Rule of Law," New York Times Nov. 2, 2015.

Week Eleven. April 18 and 20. Professionalization, Science, and Law
We explore the rise of the professions, the differentiation of science from other spheres, and the relation of science and the professions to law .

Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1983), Introduction, Chs. 1-3.
Thomas F. Gieryn et al., "Professionalization of American Scientists: Public Science in the Creation/Evolution Trials," American Sociological Review (1985), 392-409.
Scott Brewer, "Scientific Expert Testimony and Intellectual Due Process," Yale Law Journal (1998), 1535-1566 [only].

Week Twelve. Contemporary institutional change in a global context
Changes in institutions in one country do not take place in isolation from others. This is expecially true today as new institutional models and policy paradigms have diffused throughout the world. What's the relationship of American institutions to these new patterns?

April 25. Global changes in the structure of government
Alasdair Roberts, The Logic of Discipline: Global Capitalism and the Architecture of Government (New York: Oxford University Press, 2010), Chs. 1-2.
Frank Dobbin, Beth Simmons and Geoffrey Garrett, "The Global Diffusion of Public Policies: Social Construction, Coercion, Competition, or Learning?" Annual Review of Sociology 33 (2007), 449-472.

April 27. The virtues and limits of American institutional exceptionalism (final lecture)

Last modified: January 29, 2016.