Making Policy, Making Law

An Interbranch Perspective

Mark C. Miller and Jeb Barnes, Editors

"This first-rate collection provides additional and more comprehensive support for a sophisticated, interactive political model of separated powers. . . . Anyone with an interest in American political institutions ought to read this volume. It is chock full of thoughtful and insightful scholarship on a central aspect of American governance."
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The functioning of the U.S. government is a bit messier than Americans would like to think. The general understanding of policymaking has Congress making the laws, executive agencies implementing them, and the courts applying the laws as written—as long as those laws are constitutional. Making Policy, Making Law fundamentally challenges this conventional wisdom, arguing that no dominant institution—or even a roughly consistent pattern of relationships—exists among the various players in the federal policymaking process. Instead, at different times and under various conditions, all branches play roles not only in making public policy, but in enforcing and legitimizing it as well. This is the first text that looks in depth at this complex interplay of all three branches.

The common thread among these diverse patterns is an ongoing dialogue among roughly coequal actors in various branches and levels of government. Those interactions are driven by processes of conflict and persuasion distinctive to specific policy arenas as well as by the ideas, institutional realities, and interests of specific policy communities. Although complex, this fresh examination does not render the policymaking process incomprehensible; rather, it encourages scholars to look beyond the narrow study of individual institutions and reach across disciplinary boundaries to discover recurring patterns of interbranch dialogue that define (and refine) contemporary American policy.

Making Policy, Making Law provides a combination of contemporary policy analysis, an interbranch perspective, and diverse methodological approaches that speak to a surprisingly overlooked gap in the literature dealing with the role of the courts in the American policymaking process. It will undoubtedly have significant impact on scholarship about national lawmaking, national politics, and constitutional law. For scholars and students in government and law—as well as for concerned citizenry—this book unravels the complicated interplay of governmental agencies and provides a heretofore in-depth look at how the U.S. government functions in reality.

Table of Contents


Judge Robert A. Katzmann


Part I: Setting the Stage: Themes and Concepts

Putting the Pieces Together: American Lawmaking from an Interbranch Perspective
Jeb Barnes and Mark C. Miller

1. American Courts and the Policy Dialogue: The Role of Adversarial Legalism
Robert A. Kagan

2. Adversarial Legalism, the Rise of Judicial Policymaking, and the Separation-of-Powers Doctrine
Jeb Barnes

Part II: A Closer Look at Interbranch Perspectives

3. The View of the Courts from the Hill: A Neoinstitutional Perspective
Mark C. Miller

4. The View from the President
Nancy Kassop

5. Courts and Agencies
R. Shep Melnick

Part III: Statutory Construction: The Interbranch Perspective Applied

6. The Supreme Court and Congress: Reconsidering the Relationship
Lawrence Baum and Lori Hausegger

7. The Judicial Implementation of Statutes: Three Stories about Courts and the Americans with Disabilities Act
Thomas F. Burke

8. The City of Boerne: Two Tales of One City
Stephen G. Bragaw and Mark C. Miller

Part IV: Constitutional Interpretation: The Interbranch Perspective Applied

9. Judicial Finality or an Ongoing Colloquy?
Louis Fisher

10. Constitutional Interpretation from a Strategic Perspective
Lee Epstein, Jack Knight, and Andrew D. Martin

11. Is Judicial Policymaking Countermajoritarian?
Neal Devins

12. Governance as Dialogue
Jeb Barnes and Mark C. Miller



"Miller and Barnes capture the richness of interbranch relations by bringing together scholars who have much to say about the intricate web of policymaking. Their canvass is broad and richly textured using both qualitative and quantitative approaches, analyzing the state of policymaking, applying an interbranch perspective to statutory construction and constitutional interpretation, and drawing lessons from the diversity of essays provided. This volume, a work about both institutions and policymaking, is an extraordinarily valuable resource for any student of government seeking to understand the ongoing American experiment."—From the Foreword, by Robert A. Katzmann

"This first-rate collection provides additional and more comprehensive support for a sophisticated, interactive political model of separated powers. . . . Anyone with an interest in American political institutions ought to read this volume. It is chock full of thoughtful and insightful scholarship on a central aspect of American governance."—Law & Politics Book Review

"The book delivers 'big-time,' providing a perspective that should change how we conceptualize the lawmaking process, altering our perceptions of the role of different levels and branches of government in the process, and providing a provocative argument about why the American lawmaking process differs so greatly from that of other established democracies. It thus will become a 'must read' volume for all who are seriously interested in understanding American lawmaking and the role of our governing institutions in it."—Lawrence C. Dodd, Manning J. Dauer Eminent Scholar in Political Science, University of Florida

"Anchored in the 'new institutionalism,' this volume makes a stunning contribution to both political science and legal scholarship. It replaces a tired (and incorrect) civics book notion of separation-of-powers with a more realistic (and accurate) view of policymaking that depends upon dialogue and shared powers among all the branches of government. The wonderfully written essays prepared by an all-star cast of scholars should make this an attractive book for use in any number of different political science, public policy, and law school courses. Indeed, entire courses can be constructed around it."—Malcolm M. Feeley, Claire Sanders Clements Professor of Law, Boalt Hall School of Law, University of California, Berkeley

"A major contribution. In this volume a wonderful collection of first-rate scholars treat legislators, executive officials, and judges as part of an integrated and ongoing process of democractic decision making. Miller and Barnes provide a thoughtful and persuasive rationale for their interbranch perspective, and the methodologically diverse essays provide conclusive evidence for the virtues of their approach. Making Policy, Making Law should usher in a new 'governance as dialogue' movement within institutional studies."—Howard Gillman, professor of political science and law, University of Southern California

"If the past decade of political science scholarship teaches us anything about courts and judges it is that they cannot be understood in isolation of other institutions. This very valuable volume expands our understanding of how courts and law influence, and are deeply influenced by, policy-making in the other branches. I cannot imagine a reader who would not be stimulated by thinking about the implications of this collection."—Cornell Clayton, Department of Political Science, Washington State University


Jeb Barnes Lawrence Baum Stephen G. Bragaw Thomas F. Burke Neal Devins Lee Epstein Louis Fisher Lori Hausegger Robert A. Kagan Nancy Kassop Robert A. Katzmann Jack Knight Andrew D. Martin R. Shep Melnick Mark C. Miller

Supplemental Materials


About the Author

Mark C. Miller is an associate professor and chair of the Department of Government and International Relations, and director of the Law and Society Program at Clark University, and author of The High Priests of American Politics: The Role of Lawyers in American Political Institutions.

Jeb Barnes is assistant professor in the Department of Political Science at the University of Southern California, and author of Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations.

256 pp., 7 x 10

Aug 2004

256 pp., 7 x 10

ISBN: 978-1-58901-025-3
Aug 2004

256 pp.

ISBN: 978-1-58901-364-3
Aug 2004

American Governance and Public Policy series
Gerard W. Boychuk, Karen Mossberger, and Mark C. Rom, Series Editors

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