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From Public Law to Public Policy, or The “Public” in “Public Law”

Published online by Cambridge University Press:  28 November 2022

Martin Shapiro
Martin Shapiro*
Affiliation:
Harvard University
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Extract

In a self-consciously forward looking survey recently published in PS, Glendon Schubert continues to employ the phrase “public law” as roughly synonymous with the legal concerns of political science. The recent publication of Murphy and Tanenhaus' The Study of Public Law also reaffirms that, in spite of the movement toward “judicial behavior,” which it might have been anticipated would change the boundaries of the field, the “public” in public law is still very much with those political scientists particularly concerned with things legal. There does not seem to me to be any valid reason why political scientists should maintain the public law—private law distinction and then proceed to exclude themselves from the “private” law sphere.

Type
Research Article
Information
PS: Political Science & Politics , Volume 5 , Issue 4 , Fall 1972 , pp. 410 - 418
Copyright
Copyright © The American Political Science Association 1972

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Footnotes

*

A longer version of this paper was presented at the meeting of the Canadian Political Science Association, June 2–5, 1972.

References

1 Winter “Judicial Process and Behavior during the Sixties,” P.S. 5 (1972) 6–15.Google Scholar

2 Murphy, Walter and Tanenhaus, Joseph, The Study of Public Law (New York: Random House, 1972).Google Scholar See also Grossman, Joel and Tanenhaus, Joseph, “Toward a Renascence of Public Law” in their Frontiers of Judicial Research (New York: John Wiley and Sans, 1969) 3–25.Google Scholar

3 Middleton, John and Tait, David, eds., Tribes Without Rulers (London: Routledge and Kegan Paul, 1958).Google Scholar

4 Along one dimension we observe levels in the sense of one law for the family, another for the village etc. See Pospisil, Leopold, Kapauku Papuans and Their Law, Yale University Publications in Anthopology No. 54 (New Haven: Yale University Department of Anthropology, 1958).Google Scholar Along another we note legal structures following the boundaries of lineage structures. See Barkin, Michael, Law Without Sanctions (New Haven: Yale University Press, 1968) Ch. 2Google Scholar and works cited there.

5 These terms are reported by Bohannan, Paul J., Justice and Judgment Among the Tiv (London: Oxford University Press, 1957)Google Scholar and Llewellyn, Karl N. and Adamson Hoebel, E., The Cheyenne Way (Norman, Oklahoma: University of Oklahoma Press, 1941)Google Scholar respectively. On witchcraft see Evans-Pritchard, E. E., Witchcraft, Oracles and Magic Among the Azande (Oxford: The Clarendon Press, 1937)Google Scholar; Hogbln, H. Ian, “Sorcery and Administration,” Oceania 6 (1935) 1–32.CrossRefGoogle Scholar The most extensive treatment of banishment in a single society is to be found in Llewellyn and Hoebel, op. cit. On the public conduct of trials Cf. Bohannan, op. cit. with Gluckman, Max, The Judicial Process Among the Barotse of Northern Rhodesia (Manchester: Manchester University Press, 1955).Google Scholar

6 Merryman, John Henry, “The Public Law—Private Law Distinction in European and American Law,” Journal of Public Law, 17 (1968) 3–19.Google Scholar

7 See Simpson, A. W. B., An Introduction to the History of the Land Law (Oxford: Oxford Unixersity Press, 1961).Google Scholar

8 Winfield, Perch H., Province of the Law of Tort (Cambridge: Cambridge University Press, 1931) 190ff.Google Scholar

9 Cf. Hale, Matthew, Pleas of the Crown (London: 1678)Google Scholar with Stephen, James, History of the Criminal Law of England (London: MacMillan, 1883).Google Scholar

10 See Hanson, Charles J., Executive Discretion and Judicial Control: An Aspect of the French Conseil d'Etat (London: Stevens, 1954)Google Scholar; Galeotti, Serio, The Judicial Control of Public Authorities in England and in Italy (London: Stevens, 1954).Google Scholar

11 Merryman, op. cit., 11–12.

12 There is as yet no complete scholarly treatment of Star Chamber. See the numerous references in Holdsworth, William, History of English Law (London: Methuen & Co. 1903–1966).Google Scholar

13 See von Mehren, Arthur, The Civil Law System (Boston: Little Brown and Co., 1957) 3–80.Google Scholar

14 See Calabresi, Guido, The Costs of Accidents (New Haven: Yale University Press, 1970)Google Scholar; Friedman, W. G., “Social Insurance and the Principles of Tort Liability,” Harvard Law Review, 63 (1949) 241–265 CrossRefGoogle Scholar; Morris, Clarence, “Hazardous Enterprises and Risk Bearing Capacity,” Yale Law Journal 61 (1952) 1172–79CrossRefGoogle Scholar; Fleming, John G., “The Role of Negligence in Modern Tort Law,” Virginia Law Review 53 (1967) 815–846.CrossRefGoogle Scholar

15 See Franklin, Bruce, “Replacing the Negligence Lottery: Compensation and Selective Reinbursement,” Virginia Law Review, 53 (1967) 774–814.CrossRefGoogle Scholar

16 See Fletcher, George P., “Fairness and Utility in Tort Theory,” Harvard Law Review 85 (1972) 537–573.CrossRefGoogle Scholar

17 Blum, Walter J. and Kalven, Harry Jr., Public Law Perspectives on a Private Law Problem: Auto Compensation Plans (Boston: Little Brown and Co. 1965).Google Scholar

18 Green, Leon, “Tort Law Public Law in Disguise,” Texas Law Review 38 (1959–1960) 1–13, 257–69.Google Scholar

19 See Posner, Richard A., “A Theory of Negligence,” Journal of Legal Studies 1 (1972) 29–96.CrossRefGoogle Scholar

20 Cappelletti, Mauro, Merryman, John Henry, Perillo, Joseph M., The Italian Legal System (Stanford, Calif.: Stanford University Press, 1967) 208–9.Google Scholar It might be noted in passing that Taney was groping toward a similar distinction in The Charles River Bridge Case.

21 See Hurst, Willard, Law and Economic Growth: The Legal History of the Lumber industry in Wisconsin 1836–1915 (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1964).Google Scholar

22 See Morgenthau, Hans J., “Power as a Political Concept,” in Young, Roland, Approaches to the Study of Politics (Evanston, Ill.: Northwestern University Press, 1958) 67.Google Scholar

23 See e.g. Levin, Martin A., “Urban Politics and Judicial Behavior,” Journal of Legal Studies 1 (1972) 193–221 CrossRefGoogle Scholar; “Policy Evaluation and Recidivism,” Law and Society Review 6 (1971) 17–47; Hahn, Harlan, “Ghetto Assessments of Police Protection,” Law and Society Review 6 (1971) 183–195.CrossRefGoogle Scholar

24 Shapiro, Martin, Law and Politics in the Supreme Court (New York: Free Press, 1964)Google Scholar passim

25 Shapiro, Martin, The Supreme Court and Administrative Agencies (New York: Free Press, 1968) 104–109.Google Scholar

26 See e.g. Jacob, Herbert, Justice in America (2nd ed., Boston: Little Brown and Co., 1972)Google Scholar; Debtors in Court (Chicago: Rand McNally, 1971); Dolbeare, Kenneth, Trial Courts in Urban Politics (New York: John Wiley and Sons, 1967)Google Scholar; Shapiro, Martin “Decentralized Decision-Making in the Law of Torts” in Sidney Ulmer, S., ed., Political Decision-Making (New York: Van Nostrand Reinhold 1970).Google Scholar I am acutely aware of the standard criticism that the best way to persuade others to do something is by example not injunction. I can only offer my preliminary excursion into torts noted here.

27 What Glendon Schubert calls the “conventional” approach. See his Judicial Policy-Making (Glenview, Ill.: Scott, Foresman and Co. 1965) 161 and bibliographic note, 205.

28 See Goldman, Sheldon and Jahnige, Thomas, The Federal Courts as a Political System (New York: Harper and Row, 1971)Google Scholar; Jahnige, Thomos and Goldman, Sheldon, eds., The Federal Judicial System (New York: Holt, Reinhart and Winston, 1968)Google Scholar; Jacob, Herbert, ed., Law, Politics and the Federal Courts (Boston: Little Brown and Co., 1967)Google Scholar; Klonoski, James and Mendelson, Robert, eds., The Politics of Local Justice (Boston: Little Brown and Co., 1970).Google Scholar

29 See Sigler, Jay, An Introduction to the Legal System (Homewood, Ill.: Dorsey Press, 1968).Google Scholar

30 See Foster Sherwood, “The Role of Public Law in Political Science,” in Young, op. cit.