Law, Institutions, and Public Policy WWS 333/SOC 326 Spring 2020

PAUL STARR SYLLABUS

Week One
February 3 and 5. Introduction: public versus private ordering of institutions.
The first week of the course will lay out two cases aimed at illustrating the principal kinds of institutions
the course will consider: (1) publicly ordered institutions (citizenship) and (2) privately ordered
institutions within a legal framework (contract). Reserved for later: institutions such as religion and
science whose framework of rules is not generally established through law in a liberal political order. 

Citizenship:
 Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA:
Harvard University Press, 1992), 21-34 (Ch. 1 "Citizenship as Social Closure"). 
 In the news: Katrin Bennhold,"Germany Has Been Unified for 30 Years. Its Identity Still
Has Not." New York Times, November 9, 2019.

Contract:
 Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of
Law (Princeton NJ: Princeton University Press, 2013), xiii-xvii (Prologue) and 1-18 (Ch. 1).

Week Two
February 10 and 12: What are institutions, and why do they matter? Institutional analysis and law.
This week examines different approaches to institutional analysis, institutional change, and legal
systems .

February 10: Contrasting disciplinary and theoretical perspectives on institutions 

 Douglass North, Institutions, Institutional Change, and Economic Performance (New York:
Cambridge University Press, 1990), Chs. 1, 9.
 Paul J. DiMaggio and Walter Powell, "The Iron Cage Revisited: Institutional Isomorphism
and Collective Rationality in Organizational Fields," American Sociological Review 48
(1983), 147-160.
 Giovanni Capoccia and Daniel Keleman, "The Study of Critical Junctures: Theory,
Narrative, and Counterfactuals in Historical Institutionalism," World Politics (2007) 59:
341-54 [first 14 pages only].

February 12: What makes law different? 

 H.L.A. Hart, The Concept of Law, 3d ed. (New York: Oxford University Press, 2012), Ch. 5
("Law as the Union of Primary and Secondary Rules"), 79-99.
 Carol A. Heimer, "Competing Institutions: Law, Medicine, and Family in Neonatal
IntensiveCare," in Erik Larson amd Patrick Schmidt, eds., The Law and Society Reader
II (New York: NYU Press, 2014), 265-275.

Week Three
February 17 and 19. Political institutions: states, nations, nation-states.
In this week, we will examine the rise and consolidation of the modern nation-state as both a social and a
legal project. 

 Charles Tilly,"States and Nationalism in Europe 1492-1992," Theory and Society (1994),

23: 131-146.
 Paul Starr, "The Creative Reluctance of Liberal Statecraft," in Freedom's Power (New York:
Basic Books, 2007), 29-52.
 John Henry Merryman and Rogelio Perez-Perdomo, The Civil Law Tradition: An
Introduction to the Legal Systems of Europe and Latin America, 3rd ed. (Stanford, CA:
Stanford University Press, 2007), 1-5, 20-33.

Week Four
February 24 and February 26. Democracy and rights 
We now take up questions about the institutional framework of democracy: What role does law play in
regulating democracy? What is the nature of rights?
 February 24: The design of democracy 
 Paul Starr, "The Conservative Design of Liberal Democracy," in  Entrenchment: Wealth,
Power, and the Constitution of Democratic Societies (New Haven: Yale University Press,
2019), Ch 4.
 Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, "An Introduction to the
Design of Democratic Institutions," in The Law of Democracy: Legal Structure of the
Political Process, 4th ed. (New York: Foundation Press, 2012), 1-13.

February 26: Negative and Positive Rights 

 Stephen Holmes and Cass R. Sunstein, "All Rights are Positive" and "The Necessity of
Government Performance" in The Cost of Rights: Why Liberty Depends on Taxes (New
York: W.W. Norton, 1999), 35-58.
 Emily Zackin,Looking for Rights in All the Wrong Places: Why State Constitutions Contain
America's Positive Rights (Princeton: Princeton University Press, 2013), Chs. 1, 3.

Weeks Five and Six

March 2, 4, and 9. Rights, civil society, and the limits of state authority
In these three sessions, we consider the rights revolution and counter-revolution, changes in civil society
and civic engagement, and the boundaries of state authority in relation to religion and science. 

March 2. The expansion and contraction of rights

 Robert Cover, "The Origins of Judicial Activism in the Protection of Minorities," Yale Law
Journal 91 (1982), 1287-1316.
 Adam Cohen, Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More
Unjust America (New York: Penguin Press, 2020), Introduction.
 Adam Winkler, We the Corporations (New York: Liveright, 2018), Introduction, Ch. 10.

March 4. Civil society and changing structures of civic engagement 

 Theda Skocpol, Diminished Democracy: From Membership to Management in American
Civic Life (Norman: University of Oklahoma Press, 2003), Chs. 1-2.

March 9. The boundaries of state authority: religion and science

 Stephen V. Monsma and J. Christopher Soper, The Challenge of Pluralism: Church and
State in Five Democracies, 2d ed. (Rowman and Littlefield, 2009), 1-28.
 Robert K. Merton, "Science and Democratic Social Structure" in Social Theory and Social
Structure (New York: Free Press, 1968), 604-615.

March 11. Midterm exam.

SPRING BREAK

Week Seven
March 23 and 25. Judicial institutions
We turn to the institutions that shape the legal process, focusing on courts, judges, and judicial review.

March 23: Courts, lawyers, and juries (Paul Frymer)

 Marc Galanter, "Why the Haves Come Out Ahead: Speculations on the Limits of Legal
Change" Law and Society Review 9 (1974), 95-160.
 Jessica Silver-Greenberg and Robert Gebeloff, "Beware the Fine Print, Part I: Arbitration
Everywhere, Stacking the Deck of Justice," New York Times Oct. 31, 2015; and Jessica
Silver-Greenberg and Michael Corkery, "The Fine Print, Part II: In Arbitration, a
'Privatization of the Justice System,'"New York Times Nov. 1, 2015.
 Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (New York:
Basic Books, 1994), Ch. 1. 

March 25: Constitutional entrenchment, constitutional change, and judicial review

 Bruce Ackerman,We the People (1): Foundations (Cambridge: Harvard University Press,
1991), required:, 40-50 (beginning with "The Shape of the Constitutional Past" in Chapter
2). Optional background: 3-22, 34-39.
  Christopher L. Eisgruber, Constitutional Self-Government (Cambridge, MA: Harvard
University Press, 2001), 10-45 (Ch.1). 

Week Eight
March 30 and April 2. Institutions and economic growth
This week, drawing on comparative and historical evidence, we consider how institutions, especially
those created through politics and law, may affect economic growth, and how economic growth may
affect institutions. An additional focus is the effect of differences in family structure and female agency..

 Daron Acemoglu and James A. Robinson, Why Nations Fail: the Origins of Power,
Prosperity and Poverty (New York: Crown Business, 2012), Chs. 2-4, 7-10, 14-15. 
 Sarah Carmichael, Alexandra M. de Pleijt and Jan Luiten van Zanden, "Gender Relations
and Economic Development: Hypotheses about the Reversal of Fortune in EurAsia," Centre
for Global Economic History, University of Utrecht (August 2016).

Week Nine
April 6 and 8: Property rights and innovation
Continuing our discussion of institutions and economic growth, we turn to the problems of intellectual
property and innovation.

 Stuart Banner, American Property: A History of How, Why, and What We Own (Harvard

University Press, 2011), 1-22, 94-108 (Introduction, Chs. 1 and 4).
 Michael Heller, The Gridlock Economy (Basic Books, 2008), Ch. 1 ("The Tragedy of the
Anti-Commons").
 Lawrence Lessig, Free Culture (Penguin, 2004), preface, Chs. 1-5.  

Week Ten
April 13 and 15. Institutional change and inequality
Economic inequality has risen sharply since the early 1970s. What role have law and politics played in
that process?

April 20. The courts and inequality; labor's lost power

 Adam Cohen, Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More
Unjust America, Ch. 6.
 David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What
Can Be Done to Improve It (Harvard University Press, 2014), 1-5, 28-42, 43-44, 76-92. 

April 22. Eclipse of the welfare state? 

 Paul Starr, "Entrenching Progressive Change," in  Entrenchment, Ch 5.

Week Eleven
April 20 and 22. Monopoly power, platforms, and the rise of surveillance capitalism. 
The internet was expected to disperse power. We turn now to the ways in which it has concentrated it.

 Greg Ip, "The Antitrust Case against Facebook, Google, and Amazon," Wall Street
Journal January 16, 2018.
 Sanjukta Paul, "The Double Standard of Antitrust Law," The American Prospect (Summer
2019).
 Shoshana Zuboff, The Age of Surveillance Capitalism, "The Definition," 3-24, 63-127, 199-
308 (Chs, 1, 3-4, 7-10).

Week Twelve
April 27 and April 29. Democracy at risk
The rise of populist nationalism is shaking the foundations of democracy in Europe and the United States.
We turn now to the current crisis of liberal democracy and examine the old question of American
exceptionalism in light of contemporary developments.

April 27. Democratic backsliding and breakdown

 Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown, January
2018), 1-144.

April 29. The end of American institutional exceptionalism? (final lecture)

Last modified: January 26, 2020.