The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making |
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| Authors: | Stephen M Feldman |
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| Institution: | Stephen M. Feldman is Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. I thank Richard Delgado, Stanley Fish, Sandy Levinson, C. J. Peters, Cass Sunstein, Mark Tushnet, Deb Donahue, Jim Delaney, Joel Selig, Marty Belsky, and Tamara Piety for their helpful comments on earlier drafts. 1 also thank Ted White for his e-mail message commenting on the internal/external debate. Finally, I appreciate the discussions of earlier drafts that occurred in faculty colloquies at the University of Texas and the University of Tulsa. |
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| Abstract: | 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. |
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