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22 June 2006


William Ford

The term "empirical legal studies" raises similar questions. What's in? What's out? And in what contexts is it worth trying to answer these questions?


On a related note, here is a great line from the 1946 report: "All members agree that justifiable research in public law must be 'useful,' but they have not worked out and agreed upon criteria of usefulness." (p. 557)

William Henderson

Wow, so there really is some significant terminological issues that bear on the great divide and OLR and NLR relationship with political science. Many thanks for these helpful citations and quotes.

William Ford

Bill, this is a good question. (We’ll see if I have a good answer.) John Burgess, who started the first graduate program in political science in the United States at Columbia College, thought of public law in terms of legislation and administration policies, but distinct from constitutional law. See Albert Somit & Joseph Tanenhaus, The Development of American Political Science 16-24 (Irvington 1982). Decades later, the 1946 report I discussed considered this question -- and without much success in answering it. It notes that some members of the Panel on Public Law thought public law simply meant constitutional law. Others thought of public law in broader terms. Subsequently, we get terms like “judicial behavior,” “law and courts,” and “judicial politics.” Whether these terms are used to mean different things is not always very clear, but I think all three have probably eclipsed public law as preferred terms for describing the range of political scientists’ interests. Public law has some historical baggage.

But public law is still in use. The American Political Science Association awards a prize named for Edward Corwin for the “best dissertation in the field of public law.” The information on the award defines public law “to include the judicial process, judicial behavior, judicial biography, courts, law, legal systems, the American constitutional system, civil liberties, or any other substantial area, or any work which deals in a significant fashion with a topic related to or having substantial impact on the American Constitution.”(http://www.apsanet.org/content_4199.cfm)

William Henderson

Bill, dumb question (but, hey, I'm here to learn):

What does "public law" mean in the context above? Friedman's blurb suggests that the political science / legal academy divide was over behavioralism and its implications for law's legitmacy. I assumed this meant that adjudication over all sorts of matters, not just state and federal statutory or constitutional law.

In the post, you write: "How political scientists viewed behavioralist work *on the courts* is not clear (or even how they defined the public law category in general), but they likely viewed such work more positively than other public law work."

I suspect that "public law" may be a term of art (or a contested term) in political science. Is a political scientist doing attitudinal research categorized as a "public law" scholar?

Thanks, bh.

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