The Limits of Law

by Schuck, Peter H.

• ISBN13: 9780813367590
• ISBN10: 081336759X
• Format: Hardcover
• Copyright: 1999-12-01
• Publisher: Westview Pr

Summary

Law is an increasingly pervasive force in our society. At the same time, however, the obstacles to law's effectiveness are also growing. InThe Limits of Law,Yale law professor Peter H. Schuck draws on law, social science, and history to explore this momentous clash between law's compelling promise of ordered liberty and the realistic limits of its capacity to deliver on this promise.Schuck first discusses the constraints within which law must worklaw's own complexity, the cultural chasms it must bridge, and the social diversity it must accommodateand proceeds to consider the ways law uses regulatory, legislative, and adjudicatory processes to influence social behavior. He shows how politics shapes regulation, how regulation might incorporate individualized equity, and how it can best be reformed. Turning to legislation, he justifies a strong role for special interest groups, dissects the anatomy of purely symbolic statutes, and defends broad delegations of legislative power to regulatory agencies. On adjudication, Schuck analyzes the courts' efforts to advance social justice by controlling federal agencies, constitutionalizing politics, managing mass toxic tort disputes, and reforming public services and institutions. His concluding chapter draws together some general lessons about law's limits and possibilities for improving democratic governance.

Author Biography

Peter H. Schuck is Simeon E. Baldwin Professor at Yale Law School. He is the author or editor of many books and articles including Citizenship Without Consent: Illegal Aliens in the American Polity (with Rogers M. Smith), Paths to Inclusion: The Integration of Migrants in the U.S. and Germany, Suing Government: Citizen Remedies for Official Wrongs, Agent Orange on Trial: Mass Toxic Disasters in the Courts, Foundations of Administrative Law, and Tort Law and the Public Interest: Competition, Innovation, and Consumer Welfare.

Table of Contents

Introduction and Acknowledgments	ix
Part I Constraints and Challenges
Legal Complexity: Some Causes, Consequences, and Cures	3	(44)
Introduction	3	(4)
The Growth in Legal Complexity	7	(4)
The Problematics of Legal Complexity	11	(4)
The Political Economy of Legal Complexity	15	(7)
The Limits of Legal Complexity	22	(3)
Toward Legal Simplification: A Strategy for Reform	25	(5)
Conclusion	30	(17)
Notes	30	(17)
Multi-Culturalism Redux: Science, Law, and Politics	47	(46)
Two Case Studies	51	(5)
The Competing Cultures	56	(16)
Looking Ahead	72	(7)
Conclusion	79	(14)
Notes	80	(13)
Some Reflections on the Federalism Debate	93	(24)
Introduction	93	(2)
The Pervasiveness of Devolution	95	(3)
The Global Character of Devolution	98	(2)
Diversity and Devolution	100	(3)
Technological Change	103	(5)
The Cognitive Demands of Devolution	108	(9)
Conclusion	108	(1)
Notes	109	(8)
Part II Institutions and Processes
The Politics of Regulation	117	(22)
Economic Regulation	117	(4)
Social Regulation	121	(5)
Wilson's Theory of Regulatory Politics	126	(3)
The Courts and Regulation	129	(2)
The Zeitgeist and Regulation	131	(8)
Notes	133	(6)
When the Exception Becomes the Rule: Regulatory Equity and the Formulation of Energy Policy Through and Exceptions Process	139	(41)
Regulation and Equity	141	(22)
Conclusion	163	(17)
Notes	171	(9)
Law and Post-Privatization Regulatory Reform: Perspectives from the U.S. Experience	180	(24)
The Pro-Market Presumption	181	(6)
Improving the Effectiveness of Regulation	187	(8)
Extra-Regulatory Institutions and Processes	195	(9)
Conclusion	201	(1)
Notes	202	(1)
References	202	(2)
Against (and for) Madison: An Essay in Praise of Factions	204	(47)
Constitutional Protection and Ideological Demonization	206	(9)
The Claims Underlying the Critique of Special Interests	215	(3)
A Qualified Defense of Factions	218	(10)
Remedies	228	(23)
Notes	233	(18)
Delegation and Democracy: Comments on David Schoenbrod	251	(16)
The Problem	252	(2)
The Goals	254	(3)
The Constraints	257	(5)
The Consequences of the Nondelegation Doctrine	262	(5)
Notes	264	(3)
To the Chevron Station: An Empirical Study of Federal Administrative Law	267	(18)
Introduction	267	(2)
Objectives and Study Design	269	(4)
Summary of Principal Findings	273	(4)
Conclusion	277	(8)
Notes	278	(7)
The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics	285	(60)
The Bandemer Decision	288	(3)
The Arguments Against Partisan Gerrymandering	291	(18)
The Siren's Song of Proportional Representation	309	(9)
The Court and the Perils of Political Success	318	(27)
Conclusion	322	(1)
Notes	322	(23)
Mass Torts: An Institutional Evolutionist Perspective	345	(47)
Introduction	345	(2)
Building a System	347	(13)
Common-Law Process	360	(7)
Selection	367	(25)
Conclusion	372	(1)
Notes	373	(19)
Public Law Litigation and Social Reform	392	(27)
Introduction	392	(1)
Rebellious Lawyering	393	(2)
The Hollow Hope	395	(10)
Conclusion	405	(14)
Notes	407	(12)
Part III Mapping the Limits of Law
The Limits of Law	419	(61)
Critiques of Law	424	(10)
Law's Competitors	434	(10)
General Principles and Specific Applications	444	(10)
Conclusion	454	(26)
Notes	455	(25)
Index	480