| Review of: | Making Law in the United States Courts of Appeals by David E. Klein |
|---|---|
| Reviewed By: | Wendy L. Martinek |
| Reviewed in: | Political Studies Review |
| Date accepted online: | 04/03/2004 |
| Published in print: | Volume 1, Issue 2, Pages 196-301 |
North America
Courts of Appeals judges are not infrequently afforded the opportunity to create new legal rules. Klein seeks to determine what factors control the adoption of such new rules by colleagues, paying specific attention to the influence of judge characteristics and the prospective anticipation of Supreme Court policy. Klein's substantive focus is the development of new rules in anti-trust, search and seizure, and environmental law. He first examines the reaction of colleagues to the development of a new rule in a quantitative model (augmented by interviews with circuit court judges), finding factors such as ideological compatibility with the rule's author and that judge's prestige and expertise to structure the likelihood of rule adoption. Klein then proceeds to analyse the extent to which rule creation is shaped by what judges think the Supreme Court would do. He finds some evidence that judges do take the Supreme Court's views into consideration, though such influence is not determinative in any sense and clearly more of a factor when an area of law is better developed.
Considering the evidence he presents, Klein succeeds admirably in demonstrating that the development of law on the circuit courts is an interdependent process in the sense that the viability of a new legal rule is a function of characteristics of the rule's originator and those judges who subsequently find themselves facing similar legal issues. Though there is room to quibble over particular measurement choices (for example, decisional difficulty is measured not as a function of the case but on the basis of judge seniority), Klein meticulously considers alternatives and painstakingly documents his ultimate choices. Of particular note is Klein's well-done blend of quantitative analysis and personal interviews. The final product makes a nice contribution to a little studied but consequential area of judicial behaviour, which should be useful for advanced undergraduates, graduate students and scholars alike.