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The Judicial Process

The Judicial Process
Law, Courts, and Judicial Politics

March 2015 | 400 pages | CQ Press
The Judicial Process: Law, Courts, and Judicial Politics is an all-new, concise yet comprehensive core text that introduces students to the nature and significance of the judicial process in the United States and across the globe. It is social scientific in its approach, situating the role of the courts and their impact on public policy within a strong foundation in legal theory, or political jurisprudence, as well as legal scholarship. Authors Christopher P. Banks and David M. O’Brien do not shy away from the politics of the judicial process, and offer unique insight into cutting-edge and highly relevant issues. In its distinctive boxes, “Contemporary Controversies over Courts” and “In Comparative Perspective,” the text examines topics such as the dispute pyramid, the law and morality of same-sex marriages, the “hardball politics” of judicial selection, plea bargaining trends, the right to counsel and “pay as you go” justice, judicial decisions limiting the availability of class actions, constitutional courts in Europe, the judicial role in creating major social change, and the role lawyers, juries and alternative dispute resolution techniques play in the U.S. and throughout the world. Photos, cartoons, charts, and graphs are used throughout the text to facilitate student learning and highlight key aspects of the judicial process.

Part 1: Law and Political Jurisprudence in a Globalized Society
Chapter 1: The Politics of Law and Courts in Society
Legal Systems  
In Comparative Perspective: Major Global Legal Systems  
Legal Systems and Globalization  
The Nature and Sources of Law  
The Role of Courts in Contemporary Society  
Contemporary Controversies Over Courts: The Dispute Pyramid  
Chapter 2: The Politics of Law and Jurisprudence
Classical Theories of Jurisprudence  
In Comparative Perspective: Law, Morality, and Same-Sex Marriages  
Contemporary Theories of Jurisprudence  
Contemporary Controversies over Courts: Is Cannibalism Ever Legally Justified?  
Part 2: Judicial Organization and Administrative Processes
Chapter 3: Judicial Organization and Administration
The Origins of U.S. Courts  
Contemporary Judicial Federalism: State and Federal Courts  
The Politics of Judicial Administration and Reform  
In Comparative Perspective: Constitutional Courts in Europe  
Contemporary Controversies Over Courts: Should the Public Finance State Judicial Elections?  
Chapter 4: Judicial Selection and Removal
Staffing State Courts  
Staffing Federal Courts  
Contemporary Controversies Over Courts: The Hardball Politics of Filibusters, "Nuclear Options," and Recess Appointments in Federal Judicial Selection  
Toward a Representative Bench and a Career Judiciary?  
In Comparative Perspective: The Career Judiciary in Japan  
Part 3: Access to Courts and Judicial Decision Making
Chapter 5: The Practice of Law
The Rise of the American Legal Profession  
Contemporary Legal Education and Bar Admission  
In Comparative Perspective: Legal Education and Lawyers in Western Democracy  
The Business of Legal Practice  
Access to Lawyers and Equal Justice  
Contemporary Controversies Over Courts: The Right to Counsel and "Pay As You Go" Justice  
Chapter 6: Access to Courts and Justice
Formal Barriers  
Discretionary Barriers  
Contemporary Controversies Over Courts: Tactics for Constitutional Avoidance: "Passive Virtues" or "Subtle Vices"?  
Organized Interests and Strategic Litigarion  
In Comparative Perspective: Comparative Constitutional Law, Interest Group Litigation, and Capital Punishment  
Chapter 7: Trial Courts: The Adversarial Process and Criminal Cases
The Adversarial Process  
The Criminal Law and the Justice System  
Prosecutorial Discretion: From Arrest to Formal Arraignment  
Plea Bargaining  
Contemporary Controversies Over Courts: Plea Bargaining, the Right to Counsel, and Global Trends  
Trials and the Jury's Role  
In Comparative Perspective: Jury Systems Around the World  
The Politics of the Post-Trial Sentencing Process  
Chapter 8: Trial Courts: Civil Cases and Litigation
Adversarial Civil Justice  
Civil Lawsuits: The Trial and Appeal Process  
The Politics of Tort and Civil Litigation Reform  
Contemporary Controversies Over Courts: The Roberts Court and Class Action Lawsuits  
Alternative Dispute Resolution  
In Comparative Perspective: The Global Expansion of ADR  
Part 4: Judicial Policymaking
Chapter 9: Appellate Courts and Decision Making
The Appellate Decision Making Process  
Studying Judicial Decision Making  
In Comparative Perspective: Are Judges "Politicians in Robes" or Not?  
Statutory Interpretation  
Constitutional Interpretation  
Contemporary Controversies Over Courts: How Should Judges Interpret the U.S. Constitution?  
Chapter 10: The Scope and Limits of Judicial Power
Judicial Policymaking  
In Comparative Perspective: The European Court of Justice and The Globalization of Judicial Power  
The Impact of Judicial Decisions  
The Limitations of Judicial Power  
Contemporary Controversies Over Courts: Do Courts Forge Major Social Change?  

“This book is simultaneously deep and comprehensive.  It covers every topic that is appropriate for a judicial process course.  Although courts are legal institutions, and students must learn basic elements of the law, courts are largely political in nature.  Professors Banks and O’Brien do an outstanding job explaining both the legal and political elements of the judicial process.”

Steven Tauber
University of South Florida

“In addition to the standard topics, Banks and O’Brien also cover jurisprudence, which is a very welcome addition in a judicial process text.”

John Gruhl
University of Nebraska

“A very clear and well developed organization to the book that addresses major components of the study of the courts; one of the real strengths is the comparative approach to garner a better understanding of how the American judicial system compares to other judicial systems.”

Michael J. Bitzer
Catawba College
Key features


  • The book’s unique interdisciplinary perspective provides an in-depth analysis of legal theory and political jurisprudence, topics that are frequently absent from other judicial process textbooks.
  • In Comparative Perspective boxes introduce students to cutting-edge analysis of issues of law and courts in different countries and illustrate how judicial politics varies throughout the world.
  • Contemporary Controversies over Courts boxes acquaint students with the key controversies and debates over courts and judicial politics today.
  • A glossary facilitates an understanding of legal terminology, while Appendix A provides students with practical sources and strategies for conducting their own legal research and writing, and Appendix B lists the historical and contemporary membership of the Supreme Court of the United States.
  • Each chapter has a chapter summary, key questions for review and critical analysis, web links, and selected readings that highlight key issues and offer students guidance for further research.

Sample Materials & Chapters

Chapter 10

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