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Contested Terrains and Regime Politics: Thinking about America's Trial Courts and Institutional Change

Roy B. Flemming
Law & Social Inquiry
Vol. 23, No. 4 (Autumn, 1998), pp. 941-965
Published by: Wiley on behalf of the American Bar Foundation
Stable URL: http://www.jstor.org/stable/828943
Page Count: 25
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Contested Terrains and Regime Politics: Thinking about America's Trial Courts and Institutional Change
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Abstract

Institutional change in America's trial courts is poorly understood. Herbert Jacob in his 1982 presidential address to the Law and Society Association recommended that future research might consider intensive studies of single courts over time to trace the causal links between the courts and sociopolitical events outside the courtrooms. This essay explores Jacob's recommendation but ultimately takes a different tack. Instead of conducting natural histories of particular trial courts, this essay speculates that trial courts can be viewed as contested terrains made up of various sites. Proponents of particular ideas, interests, and institutions struggle to impose their policy preferences on these sites. These disputes, which wax and wane over time, constitute the regime politics that shape the probabilities of who wins in America's trial courts. The outlines of this perspective are sketched using the political science literature on agenda politics and on how policy ideas become institutionalized. Illustrations of this perspective are drawn from studies of civil and criminal court reforms.

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