by Lawrence Baum. Chicago: University of Chicago Press, 2011. 296pp. Hardback. $85.00. ISBN: 9780226039541. Paperback. $27.50. ISBN: 9780226039558. E-book $7.00 to $27.50. ISBN: 9780226039565.
Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University, Email: Richard.Brisbin [at] mail.wvu.edu.
In SPECIALIZING THE COURTS Lawrence Baum presents the first comprehensive comparative examination of the politics of special jurisdiction courts in the United States. Going beyond simple descriptions of the multitude of these courts, his objective is to answer questions about the reasons for the creation of such courts and the political outcomes of their adjudicatory and policymaking activity. Although his book does not fully answer these questions, it is a noble scholarly inquiry that leads the reader to consider a variety of potential hypotheses about the internal decision making and political consequences of the existence of such courts. In brief, Baum’s book establishes a research agenda that should encourage judicial politics scholars to reconsider their fetishistic devotion to the study of the Supreme Court of the United States and to explore other judicial institutions that affect the everyday lives of Americans and the conduct of business in a global economy.
Effectively Baum’s study of specialized courts has four segments. His first segment addresses the scope of his inquiry and his unit of analysis. What is a specialized court? To this reviewer, the answer offered in his first chapter is the most debatable aspect of the book. The fluidity of the meaning of separated powers has meant that adjudications occur within a wide range of institutions in the United States. Additionally, Martin Shapiro, whose work Baum cites as a source of inspiration for his study, has written that, “in reality there are very few if any societies in which courts are so clearly delineated as to create absolute boundaries between them and other aspects of the political system” (Shapiro 1981, p.1). However, Baum chooses to narrow Shapiro’s definition of courts as political institutions that exhibit a “triadic structure of conflict resolution” for a definition closer to traditional separation of powers logic and nearer to what Shapiro called the “conventional prototype” of courts (see Shapiro 1981, pp.viii, 1-64). Assuming the generalist court is a traditional third branch institution adjudicating all sorts of conflicts, Baum defines specialist courts as institutions with high “case concentration,” high “concentration of judges,” or both (p.7). He admits that case concentration, or jurisdiction over cases about a narrow area of the law, and judge concentration, or judges “who concentrate on a limited range of cases,” are ambiguous and imprecise.
Additionally, to provide for a “manageable” study of specialized courts, Baum chooses not to devote much attention to the cause or consequences of four other forms of specialized “triadic conflict resolution.” He excludes specialized administrative [*281] agency adjudication from his study even when the adjudication is before independent administrative law judges or occurs within institutions that carry the label “court,” such as federal Immigration Courts. He reasons that most agencies are specialized and cannot readily be compared to largely nonexistent generalist agencies and that agencies’s location in the executive branch “reduces their comparability with generalist courts” (pp.9-10). Second, he chooses not to examine federal and state general jurisdiction courts that assign their judges to specialized tasks (pp.11-12, 19-20). For example, he excludes courts such as the Allegheny County Court of Common Pleas in Pittsburgh that assign judges to long terms of specialized service in civil, criminal, family, and orphans’ divisions. Third, he does not consider courts whose venue causes them to specialize in particular cases (p.11). For example, the Superior Court in LaPorte County, Indiana has two courthouses, and the judge sitting in the courthouse nearest a state penitentiary is assigned all cases involving crimes committed by prison inmates. Finally, Baum discusses but excludes from his study appellate courts that assign specific categories of cases to panels of judges, allow specialization in opinion writing by specific judges, or assign judges temporarily to specific tasks, such as the management of asbestos litigation (pp.13, 18-21).
Other problems with the definition of the specialized court remain largely unaddressed. This reviewer is not sure how Baum’s definition of specialized courts would categorize institutions with unique forms of mixed judicial and executive powers that function only partially like either traditional third branch courts or agencies. Consider the Court of Claims in this reviewer’s home state. Much like the Court of Federal Claims described in Baum’s Chapter Five, the West Virginia court has judges who adjudicate monetary claims lodged against government for contract breach, property damage, personal injury, and false arrest or imprisonment. However, its judges also supervise personnel who administer a crime victims’ compensation fund. Any damages awarded by judges in adjudications or through the compensation fund then are reviewed and amended by committees by both houses of the legislature, are subjected to amendment on the floor by each house, and can receive further amendment by a conference committee. Finally, the governor can line-item veto any damage awards. So, is this institution a court or a court in some respects and not others? Baum also neglects the categorization of the adjudicatory tasks of some states’ county commissioners in property taxation, election, and mental health conflicts, hybrid schemes such as the mixed judicial, executive, and legislative roles of Texas county judges, and the hearings held by zoning appeals boards and other such local adjudicatory bodies with a commission form. (County commissioners’ adjudicatory powers are a residue of eighteenth and nineteenth century county courts composed of justices of the peace at quarter sessions who also exercised executive and legislative powers). The performance of adjudicatory functions by these institutions indicates that Baum and other scholars need to develop a general agreement on “court” as a unit of analysis. [*282]
Baum’s second segment identifies the potential causes and consequences of court specialization. In his second chapter he establishes a framework and sets of criteria for the assessment of the causes and consequences of court specialization. The development of criteria especially draws on the literature about organizational design and administration. As to the creation of specialized courts, he posits three possible explanations: (1) rational choice institutionalism, (2) an institutional evolution perspective that draws on path dependence and other constructs used by sociological and historical institutionalists, and (3) a version of the garbage can model of policy choice.
From this literature and the potential explanations he thoughtfully posits what are, effectively, variables potentially associated with the creation and consequences of specialized courts. He argues that any of these explanations make it possible for policy concerns, concerns about the efficiency and quality of adjudication, and aspects of judicial self-interest to contribute to movement toward specialization. As to consequences or the impact of specialized courts, Baum proposes to assess these on two dimensions: (1) the “neutral virtues” or potentially greater uniformity in decisions, efficiency in case processing, and expertise and quality of legal interpretation when compared to generalist courts, and (2) the substance of policy. To examine the substance of policy he proposes to inquire into “immersion” or whether specialization results in insularity of perspectives or professional bias toward the law or parties to cases, the influence of interested groups, and court goals, missions, and policy orientations. He recognizes that these are subjective categories whose effect on outcomes is often contingent upon specific circumstances.
To evaluate the frameworks about nature and causes and consequences of court specialization Baum relies on an extensive array of primary and secondary descriptive studies and qualitative evaluations of broad categories of specialized courts (pp.25-27, 55-59). However, the paucity of primary data and information and the limited range of previous systematic collection of data and descriptive studies of such courts force him to attend more to specialization in federal specialized courts and the state courts that he and other researchers have found of interest. Unfortunately the dearth of data means that his book provides limited comparative information on the politics and policies of many states’ family and business courts and the specialized state courts that address adoptions, probate, and related transfers of wealth, such as New York’s Surrogate’s Courts.
In a third segment Baum offers four chapters with substantive case studies that use his framework to assess the causes and consequences of categories of specialized courts: foreign policy and national security courts, criminal courts, courts with jurisdiction over economic cases with governments as a party, and courts that address economic litigation between private parties. The chapter on foreign policy and national security courts focuses on the federal consular and overseas courts, military courts and courts martial, foreign intelligence surveillance courts, and the Alien Terrorist Removal Court. The chapter on criminal courts opens with a [*283] discussion of some of the reasons of efficiency and the need for specialized treatment of social problems that have caused states to establish specialized criminal courts. The remainder of the chapter offers brief applications of his exploratory framework to juvenile, domestic relations, women’s, drug, mental health, homeless, veterans, community, domestic violence, and environmental courts.
In the chapter on courts with jurisdiction over economic cases in which governments are parties Baum applies his framework to federal courts that consider disputes about revenue, such as the federal Court of International Trade, Court of Appeals for the Federal Circuit, and Tax Court; federal courts that address conflicts about government payments, such as the Court of Federal Claims and Court of Appeals for Veterans’ Claims; and federal courts that in the past addressed specific regulatory disputes. A final set of case studies examine the specialized courts that address economic litigation between private parties. These include the patent courts that evolved into the duties of the Court of Appeals for the Federal Circuit, the federal Bankruptcy Courts, the Delaware Chancery Courts, and, briefly, state business courts.
Although it is extremely useful to have descriptive information about these courts in one book, in all of his substantive chapters Baum also offers a brief assessment that considers what the case studies tell us about the causes and consequences of specialized courts. However, his final chapter pulls together the mélange of findings from the substantive chapters. As to the causes of specialized courts, he finds that governmental and private interests have had the greatest influence on the creation of specialized courts, and efficiency and judicial self-interest have sometimes secondarily contributed to their creation alongside policy reasons. He also finds that governments create most specialized courts using folk theories and without consideration of their potential effects, copy their duties from experiences elsewhere, and fail to devise them as part of a master plan to improve the judiciary. This evidence leads him to conclude that the process of creating these courts best fits with a garbage can model of institutional development. Finally, he comments that path dependence and a bias toward generalist courts works to limit the emergence of specialized courts.
As to the consequences of specialization, Baum finds they are contingent upon the attributes of the court in question. Evidence that a specialized court is more efficient, more expert, and more uniform in judgments than courts of general jurisdiction is both spotty and inconsistent. In terms of policy consequences he finds that judges on a specialized court can bring a special policy orientation into court decisions, incentives to favor some parties, and support for specific policies. Although a reader might question the “softness” of Baum’s conclusions, they also lead him to profess agnosticism about the value of specialized courts.
After reading Baum’s book, this reviewer recognized that judicial politics scholars and others still have much to study about the creation, structure, internal decision making processes, and external policy effects of both specialized and general jurisdiction [*284] American courts – let alone the other adjudicatory institutions that exist. Although other disciplines and interdisciplinary law and society scholarship have addressed aspects of specialized adjudication in family and juvenile courts, much more could be said about the political dimensions of decision making and the policy implications of such courts for the lives of women and children. As evidenced by the panels offered at political science conferences, attention to criminal courts has gradually slipped off the research agenda of judicial politics scholars. Finally, political science has given but limited attention to administrative agency and administrative law judge adjudications. Since workers’ compensation and Social Security disability litigation is a critical source of income for many American lawyers and directly affects the well-being of many citizens, the neglect of the political role of these agency adjudications is especially surprising.
Additionally, more attention needs to be paid to the subtle ways by which legality and bureaucratic politics influence the mobilization of the powers of both generalist and specialized courts as well as the administration and procedures of these courts and other adjudicatory bodies. More attention needs to be paid the reasons for the development of adjudicatory norms that supplement or replace the formal law. In particular the effect of the local norms about disposition of disputes on women and minorities needs further analysis. More attention also should be paid to the legitimacy of local courts and state and local agencies adjudicators as they redistribute wealth, regulate personal conduct, and reinforce or reconstruct the local social order. Richer comparative information on all of these topics would do much to advance the understanding of the place of courts and court personnel in American governance. Through reading Baum’s study I am sure that scholars and students will find ideas that might result in a much broader effort to understand the political functions of courts and adjudication in the American regime. Whether these issues are addressed, however, depends on the education of political scientists who are eager to study courts more broadly and the provision of financial support for their research.
Shapiro, Martin. 1981. COURTS: A COMPARATIVE AND POLITICAL ANALYSIS. Chicago: University of Chicago Press.
© Copyright 2011 by the author, Richard A. Brisbin, Jr.