Malcolm M. Feeley (Emeritus)



I have just completed a book on federalism with my long-time collaborator, Edward Rubin, Dean of the Vanderbilt School of Law. It is a theoretical book, provisionally entitled On Federalism: Federalism as Tragic Choice. Believe it or not this book derives from our project on prison conditions litigation. In that book, Judicial Policy Making and the Modern State (Cambridge 1998), we found that despite the long tradition of the “hands off” doctrine, federalism did not block or even slow down the federal court “take over” of state prisons which we think constitutes the most complete example of judicial policy making in modern history. We began to reflect on why despite its pedigree, federalism was not an impediment. The reason we concluded is that the United States is no longer a federal system. When ever there is a consensus about national norms–as there was about conditions in prisons–national norms trump the prerogatives of the states. What looks like federalism is in fact decentralization or something else. The American states have no real autonomy.

This argument created a fire-storm of criticism among legal scholars and political scientists. In preparing an article in response to our critics, one thing led to another and the result was On Federalism: Federalism as Tragic Choice, an extended inquiry into the nature and function of federalism and how federalism has been treated and mistreated in political science, legal scholarship, constitutional doctrine, and history.

Now back to my day job: I’ve also continued to work in my main area of interest, which deals with the criminal process, and have nearly completed a book with former JSP student Hadar Aviram on women and crime. Tentatively entitled, The Vanishing Female Criminal: A Study in Comparative History, the book traces the decline in the rate and proportion of women charged with serious crime–from a high of over fifty percent in some locations to the current level of around twelve percent–in various European settings in the eighteenth and nineteenth centuries. It is the first of a projected trilogy of historically-based crime policy books I hope to write.

The other two: one involves privatization and the role of entrepreneurs as reformers in the criminal process from the eighteenth to the late twentieth century; and the other is a historical study of the origins and functions of plea bargaining. In addition I continue to work on the implementation and institutionalization of court orders on prisons and jails, and the nature and function of contemporary courts, which is the focus of my JSP Seminar, “Courts and Social Policy.”

Professor Feeley’s faculty profile, bio, and other information can be found here.