Demonstration's of Max Weber's Theory of Bureaucratic Perpetuation in Supreme Court Decisions: Franklin Roosevelt’s New Deal Program v. the Lochner Court.

다국어 초록 (Multilingual Abstract)

This is the third installment in a series of papers that examining Supreme Court decisions as a process that contests partisanship versus institution building, as an example of Max Weber's Theory of Bureaucratic Perpetuation. The first and second installment of this series examined the case of Marbury v. Madison and the case of Dred Scott v. Sandford where the Supreme Court attempted to conflate institution building with partisanship only to witness the disastrous results. In this installment, the forces of partisanship and institution building are reviewed as they applied to the Great Depression and the twilight years of the Lochner Court. This paper examines a series of decisions that occurred before and during the Great Depression where the partisanship of the court favored rulings that blocked potential remedies to the existential economic crisis that gripped the entire world. Because the Supreme Court stands atop the American legal establishment, the predictability of its decisions is important to the field of law. However, the court has embraced a teleological approach which makes predicting its decisions difficult. Justices show a strong preference to vote along partisan lines, but when they defect from partisanship they do so for a consistent, if not predictable, reason: institution building. This paper demonstrates that the Supreme Court behaves as Max Weber's social theory suggest: as an institution which frequently acts to perpetuate itself. During the Great Depression from 1929 to 1939, the tension between partisanship versus institution building hit a crescendo.

참고문헌 (Reference)

1 팀케인, "막스 베버의 기관 영속성 이론에 의한 미국 대법원 Dred Scott v. Sandford 판결 연구" 법학연구소 9 (9): 107-123, 2015

2 Simon, James F., "What kind of nation: Thomas Jefferson, John Marshall, and the epic struggle to create a United States" Simon and Schuster 2003

3 "West coast Hotel Co. v. Parrish 300 U.S.379,57 S.Ct 578"

4 Lee Epstein, "The Supreme Court as a Strategic National Policymaker" 50 : 2001

5 Lee Epstein, "The Supreme Court Compendium Data" Congressional Quarterly Inc 605 : 1994

6 Hobhouse, Henry, "Seeds of change: six plants that transformed mankind" Counterpoint Press 2005

7 Breiner, Peter, "Max Weber & democratic politics" Cornell University Press 1996

8 "Lochner v. New York, 198 U.S.45,25 S.Ct.539"

9 Llark, David Scott, "Introduction to the Law of the United States" Kluwer Law International 2002

10 Elder Witt, "Guide to the U.S Supreme Court" Congressional Quarterly Inc 1989

11 Allen, Robert C., "Global economic history: A very short introduction. Vol. 282" Oxford University Press 2011

12 Gordon, John Steele, "Empire of Wealth: The Epic History of American Economic Power (PS) by" 2004

13 Kane Timothy Michael, "Demonstration's of Max Weber's Theory of Bureaucratic Perpetuation in Supreme Court Decisions: Marbury v. Madison, Bush v. Gore" 서울시립대학교 법학연구소 23 (23): 1-22, 2015

14 Robert A.Dahl, "Decision-Making in Democracy: The Supreme Court as a National Policy-Maker" (Spring) : 2001

15 Lee Epstein, "Constitutional Law for a Changing America" A division of congressional quarterly INC 2001

16 Erwin Chemerinsky, "Constitutional Law Principles and Policies" Aspen 2006

17 Remini, Robert V., "A short History of the United States" HarperCollins e-books 2008

18 Peter Irons, "A peoples history of the Supreme Court" penguin book Ltd 315-, 2006

19 Lawrence M. Friedman, "A History of American Law" Touchstone publication 2005