Introduction: law's allure and American politics; Part I. Law's Allure: Why, and Why Now, and Why it Matters: 1. Law's allure: motives, incentives, patterns, and process; 2. Why now? The expansion and acceleration of law's allure; 3. Why it matters: law is different - a theory of precedent; Part II. Law's Allure: Patterns, Process, and Cautionary Tales: 4. Poverty and abortion: the risks and rewards of a judicial strategy; 5. Environmental regulation: a constructive process; 6. Campaign finance: a de-constructive process; 7. When the court says yes - and no: the special prosecutor, budget control, and line item vetoes; 8. When the court is reluctant to intervene: war powers; Part III. Law's Allure: Costs and Consequences: 9. Tobacco: the promise and peril of law's allure; Conclusion: law's allure and American politics: for better - and worse.
Law's Allure explains how, when, and why America's reliance on legal rules and judicial decisions shapes, constrains, saves, and sometimes even kills politics.
Gordon Silverstein is Assistant Professor of Political Science at the University of California, Berkeley. A former journalist with a PhD from Harvard University, Professor Silverstein also has taught at Rice University, Dartmouth College, Lewis & Clark College, and the University of Minnesota. Silverstein has written a number of articles and book chapters on American politics, the separation of powers, and judicial power in comparative perspective and is the author of Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy (1996).
“Law’s Allure is a masterful treatment of the causes and
consequences of the juridification of American politics.
Beautifully written and displaying Silverstein’s encyclopedic
knowledge of American constitutional law and practice, the book
helps us understand how the courts can both enable and disable our
politics under different circumstances. Silverstein integrates both
abstract principle and bare-knuckle politics into the account,
resulting in a volume that is at the same time profound and
accessible. A major contribution that will enlighten both scholars
and the informed public.”
-- Tom Ginsburg, The University of Chicago Law School
“Professor Silverstein provides an original and compelling analysis
of the complex relationships between law and politics. His insights
that juridification in the United States is on the rise, that
juridification is more than government by judiciary, and that
escaping from politics has numerous hidden costs are interesting,
important and likely to provoke a good deal of conversation both
within and without political science.”
-- Mark Graber, University of Maryland
“Gordon Silverstein has given us a superb analysis of
juridification, the messy interaction of supposedly objective legal
rules with partisan interests that often produce public policy.
Through both general reasoning and close studies of specific cases,
he demonstrates how these forces noisily, and sometimes angrily,
engage to create not a seamless web but a jig-saw puzzle whose
jagged pieces never fit neatly together. Neither students of public
law nor public policy can afford to miss this splendid book.”
-- Walter F. Murphy, Princeton University
“Law’s Allure is a breathtakingly good book. Tracing through a
substantial number of important case studies ranging from abortion
and school desegregation through campaign finance and environmental
litigation to the tobacco cases and more, Gordon Silverstein gives
us a new paradigm for thinking about the role of courts in American
politics, one that is more complete, convincing, and persuasive
than we have ever had before in a single volume.”
-- Kim Lane Scheppele, Princeton University
“A valuable contribution to the next generation of studies on
constitutional politics. With well-chosen case studies and a useful
analytical framework, Gordon Silverstein helps identify the whys,
hows, and so-whats of interactions between politicians and judges
in shaping public policy.”
-- Mark Tushnet, Harvard Law School
“Law’s Allure: How Law Shapes, Contrains, Saves and Kills Politics
provides an original and compelling analysis of the complex
relationships between law and politics. Professor Silverstein’s
insights that juridification in the United States is on the rise,
that juridification is more than government by judiciary, and that
this escape from politics has numerous hidden costs are interesting
and important. The case studies are well written and informative,
the research is solid, and the conclusions likely to provoke a good
deal of conversation both within and without political
science…Professor Silverstein provides a far more nuanced account
of the relationship between law and politics than found in the
existing political science literature.”
Mark Graber, Balkinization blog
"Students of both judicial process and public policy will find this
well-written, fully documented book to be a worthwhile addition to
their libraries. Recommended." - CHOICE
"Silverstein ends his book by observing that the failure to fully
recognize and understand the phenomenon of juridification and its
consequences is in part a product of the "artificial divide that
has grown up between those who study law and those who study
government and politics"'5 (283). He argues that this divide has
narrowed, but the two schools are still running on parallel tracks
rather than working together to understand "how law and politics
interact, shape, and frame each other" (284). Law's Allure does a
fine job of bridging the gap between the two. It is not, as
Silverstein rightly observes, "meant to be the last word on the
subject" of juridification (285). And as Tocqueville's words
illustrate, it is not the first word on the subject either. But it
is a valuable addition to the conversation."
Journal of Legal Education, Paul Horwitz
"Through a discussion of the Supreme Court’s growing breadth of
engagement with political policy-making and a series of careful
case studies, Silverstein provides an insightful “roadmap” for
future scholars interested in exploring the causes and consequences
of judicial policy-making. Indeed, the analyses in this book should
provide considerable grist for the mill as this line of literature
moves forward."
-Tom S. Clark, Emory University
"Gordon Silverstein, a political scientist at Berkeley, has written
a fine book about the “juridification” of American politics—the
resort to Courts to settle issues that the political process,
through electoral action, persuasion, bargaining and compromise,
might have resolved...He does not take a simple view, falling prey
to a one-dimensional judgment of which Branch is overreaching or
displaced from its natural functions."
-Bob Bauer, Chair of the Political Law Group of Perkins Coie LLP
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