The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making

Law professors and political scientists generally subscribe to opposed theories of Supreme Court decision making. Law professors, to a great degree, adhere to an internal view: Supreme Court justices decide cases according to legal rules, principles, and precedents. Political scientists follow an external view: justices decide cases according to their political ideologies or preferences. This article develops an interpretive-structural theory that harmonizes these seemingly opposed views. This interpretive-structural theory not only explains why the internal and external views often are both effective but also why, sometimes, one approach might be more effective than the other. The article concludes by comparing the interpretive-structural theory with the "new institutionalism" that is emerging in political science.     

On the Consequences of Defensive Professionalism: Recent Changes in the Legal Labour Process

This study of change in the legal profession argues that governmental policies, combined with economic recession and supply-side considerations, have led to decline in the legal profession's historical performance, and a defensive strategy which preserves the status and earning power of equity partners. Related responses include a drive towards organizational consolidation, a long-term increase in the numbers of salaried solicitors, and fewer non-fee-earning support staff. This involves a shift from external (or occupational) closure regimes, which sanction entry to the profession, to internal (or organizational) mechanisms, which regulate progression through the professional hierarchy. The paper challenges hypotheses of deprofessionalization and managerialization, and lends empirical support to Freidson's continuity thesis whereby reorganization is safeguarding traditional privileges and rewards for certain sections of the profession at the cost of a progressive process of intra-occupational stratification.     

Contestability, queues, and governmental entry deterrence

This paper demonstrates that a perverse kind of entry deterrence can result when government subsidized production is combined with non-price rationing in the form of queuing. Even though queuing leads to a total cost to the consumer (not including the tax cost) that is higher than the cost of an unsubsidized private supplier, and even though the government's money price is rigid, the market is not contestable. The key to the result is that the waiting cost portion of the consumer's acquisition cost declines immediately upon entry and losses would be forced upon the entrant. Privatization would negate the entry deterrence, thus leading to entry, increased output at lower full prices, lower average production costs, decreased waiting costs, increased profits, and increased consumer surplus.     

ADA, Disability Rights, and Evolving Regulatory Federalism: Articles

This article explores the evolution of regulatory federalismby examining the shifting basis of disability rights mandatesfrom conditions-of-aid to federal preemption. It also examinesthe disability rights mandates placed on state and local governmentsby the Americans with Disabilities Act (ADA) and compares themwith those provided in earlier federal laws. The central thesisis that by adopting a preemptive approach, the U.S. Congressclaimed for itself the dominant role in creating and enforcingnondiscrimination mandates to protect the rights of people withdisabilities. While several organizing principles and implementationdirectives stipulated in ADAwerefirst devised in earlier federallaws and administrative regulations, their application throughfederal preemption strengthened the force and reach of disabilityrights protections. In the process, preemption substantiallyreduced the authority of state and local governments to createand implement their own disability rights measures.     

Sex differences, parental attachment, and juvenile delinquency

This study examined the relationship between parental attachment and delinquent behavior among adolescents between the ages of 13 and 18. 133 subjects completed self-report questionnaire packets, which included a demographic survey, an attachment inventory (assessing parental attachment and attachment to the father and mother separately), and a delinquency questionnaire. The relationship between sex, delinquency level, and attachment score was statistically tested using a multivariate analysis of variance. Results indicated a significant relationship between delinquency level and parental attachment, attachment to father, and attachment to mother, suggesting that the more attached adolescents are to their parents, the less delinquent they are. The effects of sex on attachment were not significant, nor were the effects of sex by delinquency on attachment. Mean attachment scores to the mother were not significantly higher than mean attachment scores to the father and females reported far less criminal activity, but more delinquent activity, than did males. Implications of the findings are discussed.     

An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law

Among legal scholars, Anthony T. Kronman and David M. Trubek have provided the leading interpretations of Weber's theory of law. Kronman and Trubek agree on two important points: Weber's theory is fundamentally contradictory, and Weber's theory relates primarily to private law subjects such as contracts. This article contests both of these points. Building on a foundation of Weber's neo-Kantian metaphysics and his sociological categories of economic action, this article shows that Weber's theory of law is not fundamentally inconsistent; rather it explores the inconsistencies that are inherent within Western society itself, including its legal systems. Furthermore, Weber's insights can be applied to modern constitutional jurisprudence. Weberian theory reveals that modern constitutional law is riddled with irreconcilable tensions between process and substance—between formal and substantive rationality. In the context of racial discrimination cases involving equal protection and the Fifteenth Amendment, the Supreme Court's acceptance of John Hart Ely's theory of representation-reinforcement demonstrates the Court's resolute pursuit of formal rationality, which insures that the substantive values and needs of minorities will remain unsatisfied.