Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

Most often, solitude starts out neutral, like a lump of sculptor’s clay that we can shape into whatever we want. Our experiences, and those of our research participants, have shown us that there are a lot of positive outcomes possible when choosing to carve out some time alone. Why is solitude so potentially powerful for all kinds of people? That’s a question that has driven a large part of our research, and we continue to build on what we have learned. What we’ve seen so far points to the fact that solitude creates an environment where two important things can happen: each of us can captain our own ship, and while in that role, we can connect to our true selves. Think of it as the ultimate place to do what you want (autonomy) and be who you are (authenticity).

The social reality that Comparativists typically disaggregate in their political analysis is the replica of a society that has gone through an agrarian as well as an industrial revolution. It is organized into interest groups that constitute the basis of political parties. Political life is conceived within a right–left spectrum. Party systems are durable and subject to only minor alterations. The ability to encourage compromises and to produce sub-optimal policy outcomes is one of its key ingredients. Little attention, however, is paid to the underlying structures that keep the party system going, notably the fact that institutional stability in developed societies is effectively grounded in the economic production process. This variable is too often overlooked in the analysis of the quality of democratic institutions. The colonial powers encouraged the institutional fundament of such politics, but the ambition was unfinished at the time of independence. Trade unions, like cooperative societies, had started to emerge and provided the basis for the rise of a new political leadership. Once in power, however, these leaders introduced legislation to ban or reduce the powers of these non-state organizations. Because there was no independent African middle class with capital to influence development, the post-independence political organizations never took on a “class” character. The neo-Marxist criticism that flourished in the 1970s and onwards imputed too uncritically the exploitation and oppression on the continent to the presence of social classes similar to what would be found in Western society. Its influence, not surprisingly, waned quickly. By too readily assuming the hegemonic nature of colonialism, these neo-Marxist authors downplayed the role of indigenous African social formations in the same way as advocates of neo-liberal theory did in the decade that followed.

In the mirror literature, power and sovereignty are identified with the king’s person. The king’s conduct established a model, which his subjects would follow; consequently, the ruler’s actions and behaviour determined the nature of the polity. The king’s cultivation of virtue is, in consequence, a pragmatic as well as a moral imperative. The mirror-writers insist on the importance of the king’s self-discipline as a prerequisite for his governing other people; if he is unable to govern himself, he will be incapable of governing anyone else. The three extracts in this section describe the virtuous and effective king. From different perspectives, they treat some of the ethical and philosophical problems of human nature; in particular, they discuss how to strengthen, acquire and practise virtues and how to overcome and eradicate vices. The texts in this section are drawn from Yūsuf Khāṣṣ Ḥājib, Kutadgu bilig; al-Māwardī, Tashīl al-naẓar wa-taʿjīl al-ẓafar; and Kaykāʾūs, Qābūsnāmeh.

Protecting individual rights is a core feature of democratic constitutionalism. The centralization of the means of coercion gave rise to the Hobbesian dilemma, the fear that this enormous power might be abused unless it be effectively controlled. In addition to dividing power among different branches of government or sharing it between the federation and its units, constitutions have fortified individual rights with judicial review and enforcement mechanisms against the executive branch to rein in state power.

Proposing a collective right to effective self-government sits oddly with a vision that pitches free individuals against an all-powerful state. Such a right can, however, be justified on two interrelated grounds. First, in the absence of effective protection by a state, individual civil and political rights remain empty declarations. Stateless people, Hannah Arendt has taught us, are the most vulnerable; they have no legal rights and no way of seeking protection as a matter of right.

This chapter defends the existence of negligence, understood here as a form of inadvertent moral wrongdoing for which the wrongdoer is presumptively and non-derivatively responsible and blameworthy. The wrong in question is failure of due care. This common-sensical claim needs defense in view of widespread skepticism about the possibility of non-derivative inadvertent wrongdoing. A major source of this skepticism is the conviction that all wrongdoing must ultimately derive from intentional or knowing violations.

In much of the developing world, legal titling – the registration of land ownership through a formal, judicial process – is viewed as a path to economic development and political order. The introductory chapter explains why legal titling is unlikely to fulfill this promise. It begins by making a case that the new institutional economics and public choice, which were developed and applied to date in mostly Western contexts, are useful in understanding political, economic, and social institutions in the Islamic world. We then introduce our theory of emergence and change in property rights, which explains the situations when we expect the government to define and enforce property rights, when self-governance of property rights can work, and why it is unlikely that legal titling will be feasible as a development strategy in a typical fragile state. We conclude by introducing our empirical study of Afghanistan. The highlights of the empirical study include fieldwork conducted by one of the authors in thirty villages in rural Afghanistan, which resulted in hundreds of interviews with ordinary villagers, customary village leaders, and local government officials.

Our theory can explain why governments do not define and enforce property rights. The political history of Afghanistan illustrates the persistence of non-emergence of legal property rights. We also seek to explain why the Hobbesian account of the world in which there can be no sense of justice and no concept of property without a state is mistaken. According to our theory, self-governance would substitute for the state as a source of property rights when organizations have local monopolies, when they possess the capacity to resolve conflicts over land disputes, when their key decision makers face constraints, and when the institutions for local collective action are inclusive. Chapter 5 investigates this claim. Using original evidence from fieldwork, we show that self-governance of property works well in rural Afghanistan because customary governance satisfies the above criteria. Our theory can also explain why the formal property regime remains ineffective nearly two decades after state building commenced in 2001. Importantly, the property institutions in rural Afghanistan are typically private property rights, not unlike property rights in Western contexts. The difference is that customary private property rights in Afghanistan are effective despite not having any legal recognition.

Chapter 4 starts by presenting two broad critiques of the private governance literature. First, this research sometimes assumes that groups can self-regulate without group leaders. While this might be the case for some small groups, leaders are critical for cooperation in many groups. Second, scholars have overlooked the obstacles group leaders must overcome in order to govern well – such as impediments to truthful information sharing and impartial dispute enforcement – which has generated the faulty assumption that private order will emerge when it is needed. It then develops the logic of the argument, which sheds light on the conditions that make private trade-promoting policies more likely. While previous studies of private groups suggest that private institutions substitute for public institutions, the book’s argument is that state threats can encourage private good governance; private associations will predate without public institutions that force them to behave otherwise. The chapter also introduces the role of within-groups competition, theorizing about how competition increases the hurdles to private group leaders implementing trade-promoting policies. It then discusses the possibility of group leader-politician collusion, along with the way that relational contracting relates to the argument.

We conclude by situating the theory and practice of monetary policy within liberal political economy more generally. As we have seen, there are significant tensions between existing monetary institutions (discretionary central banking) and liberal ideals. This has been made even clearer by the Federal Reserve’s response to COVID-19. In brief, the Fed is now engaging in not only monetary policy but fiscal policy as well. This represents an immense expansion in its mandate, one that poses serious challenges for general and predictable monetary policy. The way out of this mess is embracing a comparative institutions approach to monetary policy. We cannot be satisfied with technical refinements to existing models and data. We need to explore alternative monetary policy rules, ones that are effective at providing macroeconomic stability while also respecting the requirements of democracy.