Courts reach into nearly every corner of contemporary American society, including the workplace, voting booths, schools, playgrounds, even the air we breathe. Given their scope of activity, understanding how courts shape American politics and policy-making represents a core challenge of political science, especially the fields of public law, public administration, and American politics.
It is also enormously complex. Studying courts requires researchers to penetrate arcane legal rules and dense professional jargon and master subjects ranging from high-profile conflicts over constitutional rights to less visible—but often no less important—regulatory disputes.
Confronted with this complexity, most judicial scholars have tended to specialize, compartmentalizing the study of courts from other segments of government and concentrating on judicial decision-making within specific courts, especially the U.S. Supreme Court. This strategy has its benefits. Specialization has yielded a mature research agenda on judicial behavior that remains productive. But it has a price. American politics and policy-making are inherently interactive processes. Analyzing courts in isolation may produce an incomplete and even misleading view of how law shapes—and is shaped by—politics.
Instead of narrowly examining judicial decision-making, my research views law and courts from an “interbranch perspective,” which holds American politics and policy-making emanate from ongoing interactions among the branches and levels of government. This perspective, I argue, flows from essential features of American government. Most obviously, the U.S. Constitution disperses power among overlapping and diversely representative policy-making forums. The resulting institutional redundancy produces an array of dynamics that include direct confrontations, strategic alliances, and political games of credit claiming and blame shifting. In this system of “separated institutions sharing power,” to use Neustadt’s famous phrase, the central task is not explaining the behavior of any single actor; it is exploring patterns of shifting relationships among actors across policy areas and over time.
Applying an interbranch perspective is labor intensive, requiring the collection of new data and formulation of new concepts, but its rewards are commensurate. It produces a fuller appreciation of how law and politics interact, which not only enriches court-centric models of judicial behavior but also encourages the re-conceptualization of legal processes in political terms. So, from an interbranch perspective, the filing of lawsuits becomes a distinct mode of agenda setting; contingency fees create a class of political entrepreneurs; and class actions offer a means for overcoming collective action problems. Such re-conceptualization opens avenues of inquiry for court scholars and those interested in American politics and policy making. It also places the analysis of law, courts, and litigation at the heart of the study of American politics and public administration—where they belong.
Interbranch Analysis of Law and Politics
My first book, Overruled? Legislative Overrides, Pluralism, and Court-Congress Relations in an Age of Statutes (Stanford 2004), examined the “override process”—cases of interbranch relations in which Congress passes statutes intended to reverse or substantially modify judicial interpretations of federal statutes.
To study this process, I created a new typology of interbranch relations based on competing theories of American democracy and collected original data on a random sample of 100 override processes. I then analyzed the distribution of these types of interbranch relations using a method that I call “large-n process tracing,” which analyzes a relatively large number of cases in detail along a limited number of theoretically important dimensions. I found that, contrary to several leading theories of American democracy, the override process worked surprisingly well. Interbranch relations catalyzed participation among diverse groups and significantly reduced legal uncertainty.
Perspectives on Politics, the leading outlet for book reviews in political science, stated that Overruled? is “a great example of persuasive social science research. Barnes asks innovative questions, advances our understanding of complex phenomena, and systematically marshals convincing data to test empirical conjectures.” The review concludes that the book “should become must reading for students of Congress and the courts and of the strategic interaction of the branches” (Maltzman 2004: 834, 835).
Perspectives on Political Science echoed these sentiments, calling Overruled? “excellent” and “an important book that all political scientists will find useful” (Bergerson 2005: 52). The Law and Politics Book Review described it as “taking a tremendous step forward” in the empirical analysis of the override process, which makes a “significant contribution in moving the literature on Congressional-judicial relations towards a more nuanced and empirically-grounded understanding” (Vanberg 2004: 498). The Harvard Law Review added that Overruled? “expertly builds on game theory, policy analysis, and legal scholarship,” and concludes, “[r]eaders interested in exploring the character and vigor of interbranch dialogue will find fruitful terrain in Professor Barnes’s analysis” (Anon. 2005: 2489).
After completing Overruled?, I published an edited volume with my colleague, Mark Miller, entitled Making Policy, Making Law: An Interbranch Perspective (Georgetown 2004). The goal was to begin laying a foundation for a broader research agenda based on interbranch analysis of the courts and illustrate how this perspective cuts across methodological camps.
The Law and Politics Book Review stated that, “[b]ecause of its effective development of an alternative model of interbranch relations and forceful reconsideration of the textbook interpretation of separated powers, anyone with an interest in American political institutions ought to read this volume.” It goes on to note that the book offers a “comprehensive assessment of a more complicated and subtle explanation for the role of the judiciary and interbranch politics in American government” and raises “important questions for future research” (Brisbane 2004: 768). In his review of the volume, Russell Wheeler, president of the Governance Institute at Brookings, writes that “Judge Robert Katzmann’s Foreword aptly calls it ‘an extraordinarily valuable resource for any student of government seeking to understand the ongoing American experiment’” (Wheeler 2006: 346).
I extended the two main theoretical chapters of Making Policy, Making Law (Barnes & Miller 2004a, b) in an article for the Annual Review of Political Science (2007), entitled “Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy-Making,” which expands on the rationale and promise of interbranch analysis. I recently revisited these themes in a review essay, “Law’s Allure and an Interbranch Perspective on Law and Politics” in Law & Social Inquiry (2010).
My newest project under the broad heading of inter-branch research involves studying how reliance on litigation versus social insurance programs shapes injury compensation politics in the United States. I am currently working on a book-length manuscript on this topic with my colleague, Thomas F. Burke, which is under contact with Oxford University Press.
Barnes, Jeb. 2004. Overruled? Legislative Overrides, Pluralism, and Court-Congress Relations in an Age of Statutes. Palo Alto, CA: Stanford University Press.
——. 2004. “Adversarial Legalism, the Rise of Judicial Policymaking, and the Separation-of-Powers Doctrine,” in Miller & Barnes, eds., 2004: 35-52.
——. 2007. “Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making,” Annual Review of Political Science 10: 25-43.
——-. 2010. “Law’s Allure and an Interbranch Perspective on Law and Politics,” Law & Social Inquiry, 35: 1029-1040.
Barnes, Jeb and Mark Miller. 2004a. “Governance as Dialogue,” in Miller & Barnes, eds., 2004: 202-207.
—–. 2004b. “Putting the Pieces Together: American Lawmaking from an Interbranch Perspective,” in Miller & Barnes eds., 2004: 3-12.
Miller, Mark and Jeb Barnes, eds. 2004. Making Policy, Making Law: An Interbranch Perspective. Washington, D.C.: Georgetown University Press.
Asbestos Litigation and American Public Policy
After completing my first two books, I was one of five political scientists nationally to be selected for a two-year Robert Wood Johnson Scholar in Health Policy Research Fellowship. This program brings promising scholars from political science, sociology, and economics into the field of health policy, challenging them to adapt approaches they have developed in other settings to create original research.
One of the projects that emerged from my fellowship concerned the politics of the asbestos injury compensation—an ongoing problem that involves millions of Americans, thousands of businesses, and billions of dollars. It asks: why has Congress failed to replace a litigious system that is costly and inconsistent and does not serve other values, such as deterring corporate misconduct or providing individualized treatment?
Applying an interbranch perspective, I argue that a key to understanding the congressional response to the asbestos problem is “court-based tort reform:” the creative adaptation of existing rules and procedures by lawyers and judges to change who pays, who decides, how much, and to whom. These judicial innovations have reinforced legislative inertia by (1) encouraging Congress to wait-and-see if court-based tort reforms would resolve thorny political issues and (2) creating a shifting matrix of winners and losers that has divided stakeholders within and across political party lines.
This finding underscores how interbranch analysis improves our understanding of American politics by recasting legal processes in political terms. It highlights in particular the ways in which businesses have learned to use Chapter 11 reorganization as an exit and cost shifting strategy in the U.S. public-private welfare state. These strategies in turn reinforce a broader “politics of inefficiency” in the United States, meaning the puzzle of why demonstrably inefficient institutional arrangements and policies often resist change. After all, if businesses can unilaterally use Chapter 11 to avoid obligations under the tort system—as well as union contracts, pensions, environmental regulations and others—then they have little reason to accommodate rival interests as part of national legislative reform efforts. In addition, if individual businesses can use Chapter 11 to shift various litigation and regulatory costs to competitors, these businesses have no reason to improve the efficiency of the system—in fact, the more inefficient the system, the better.
Jeb Barnes. 2010. Dust-up: Asbestos Litigation and the Death of Commonsense Policy Reform. Washington, D.C.: Georgetown University Press
——. 2009. “In Defense of Asbestos Litigation: Rethinking Legal Process Analysis in a World of Uncertainty, Second Bests, and Shared Policy-Making Auuthority,” Law & Social Inquiry 34: 5-30)
——. 2009. “What Do Trial Courts Do? Civil Litigation and the Policy-Making Process,” in Miller, ed., Exploring Judicial Politics. New York: Oxford University Press.
——. 2008. “Courts and the Puzzle of Institutional Stability and Change: Administrative Drift and Judicial Innovation in the Case of Asbestos,” Political Research Quarterly, 61: 636-648.
——. 2007. “Rethinking the Landscape of Tort Reform: Lessons from the Asbestos Case,” Justice Systems Journal 28(2): 157-181.
The Social Construction of Disability Access Law
My Robert Wood Johnson health policy fellowship resulted in a second project. It examines organizational responses to the access provisions of the Americans with Disabilities Act. Similar to my previous work, it charts patterns of interaction under the law. However, it brings this analysis to the local level, exploring how grassroots political and organizational factors combine to produce distinct “rights practices” that significantly affect the social impact of the ADA.
The project centers on a perennial question in socio-legal research: how and when do rights matter? To gain new leverage on this question, it combines three lines of research that often ignore one another: the political science literature on the mobilization of the law, the sociological literature on the diffusion of organizational practices, and the public policy research on regulatory compliance.
Barnes, Jeb and Thomas F. Burke. 2006. “The Diffusion of Rights: From Law on the Books to Organizational Rights Practices,” Law & Society Review 40: 493-524.
——. “Making Way: Legal Mobilization, Organizational Response and Wheelchair Access” (under review)
Thomas F. Burke and Jeb Barnes, “Is There an Empirical Rights Literature?” Studies for Law, Politics & Society (2009) 48:69-91
My newest project, with colleague Nick Weller at USC, concerns how we can use mixed methods to study causal mechanisms in a world of complexity. We are currently working on a manuscript that explores the central issue of how to select effective “pathway cases” when the underlying relationship among key variables is non-linear and features multiple causal mechanisms. This project builds on my interests in using mixed methods to explore complex political phenomenon, which underlies all of my other projects.