Vol. 13 No. 11 (November 2003)
THE AMERICAN LEGAL SYSTEM: FOUNDATION, PROCESSES, AND
NORMS, by Albert P. Melone and Allan Karnes. Los Angeles: Roxbury Publishing
Company. 790pp. Hardbound $84.95. ISBN: 1-891-48792-2.
Reviewed by Scott Barclay, Department of Political Science,
University at Albany: State University of New York. Email: S.Barclay@albany.edu.
For political scientists, textbooks discussing the law
primarily fall into one of three categories. The large, generic American
government textbook devotes a chapter or two to a discussion of the United
States Supreme Court and its role in the political system. The second category
of textbooks for political scientists focuses upon constitutional law. It
examines the product of the United States Supreme Court (and occasionally
the federal Courts of Appeal) in terms of doctrines and constitutional reasoning
adopted by the justices (or judges) themselves. Melone and Karnes’
THE AMERICAN LEGAL SYSTEM recognizes and incorporates aspects of these two
approaches, but fits into the small third category of textbooks. It is a
textbook that takes the ideas and research on law and politics seriously
when considering the role of law in the American system.
American Government and Constitutional Law texts tend to
portray the courts in the same terms as Hamilton in Federalist 78 –
unelected and independent judges using the law to maintain pre-determined
constitutional safeguards to protect the unpopular minority from the “tyranny
of the majority.” This depiction of the courts and its products occurs
despite fifty years of excellent scholarship by political scientists offering
a more “political” perspective on the role of courts. Murphy,
Pritchett, Dahl, Schubert, Casper, Barnum, Scheingold, Baum, Rosenberg,
Segal and Spaeth, Gillman, Maltzmann, Spriggs and Wahlbeck, and a long list
of other political scientists have effectively redefined the personal, social,
and institutional forces that can be thought to influence judicial decision
making. As such, it is hard for public law scholars to think seriously about
the role of courts in the political system and the timing and direction
of court decisions without consideration of this political science research—not
to mention the students who move from one approach in Introduction to American
Politics to being confronted with a completely different approach when they
take an upper division law and politics course. Clearly, the research effort
of political scientists has extended beyond the actions of the highest courts
to embrace assessment of the social and political forces in the larger legal
system, including such notions as “legal norms,” as key to understanding
the law in American society.
The Melone and Karnes effort is among those few textbooks
(one might also consider Baum’s AMERICAN COURTS in this tradition)
that incorporate all of this political science research in a format that
offers a coherent and comprehensive picture of the origins, legal justification,
and actual operation of the legal system. In their own words, Melone and
Karnes “wanted to give students a broad perspective on the important
topic of how law is a manifestation of social values and how the legal system
is part of a much larger political, economic, social, and business environment”
(p.xxi). In this task, they recognize the competing
approaches that students encounter, and they frame their textbook in a way
that complements and extends students’ existing ideas.
Interestingly, the book leans in the direction of those
factors most relevant to business administration. One cannot blame Melone
and Karnes for focusing on a specific set of issues in the legal system,
given that comprehensive coverage of the American legal system would be
a Herculean task. Despite this tilt to the topic selections, the book could
easily be used (potentially with some complementary material) in general
introductory classes in Legal Studies, or the initial judicial politics
classes in political science. It has excellent sections on a range of questions,
including the criminal justice process, torts, and the legal system in general,
in addition to those sections devoted more exclusively to the themes in
business administration.
Each chapter succinctly summarizes the literature in an
area that offers the student a framework within which to understand divergent
approaches, different actors, or the major legal doctrines that dominate
an area of law, often presenting all three of these aspects at one time.
For example, the authors begin the book with a nice discussion of the divergent
approaches to understanding the role of law, quickly introducing the various
schools of jurisprudence from Natural Law through Critical Legal Studies.
They contextualize these divergent approaches using excerpts from cases
as well as a discussion of the legitimizing aspects of law. Similarly, their
chapter on Court Organization and Jurisdiction (in the Federal System) mingles
descriptions of the various courts and their relationships, discussion of
defining cases highlighting key constitutional factors that shape the structure,
and ideas about the changing understanding of the federal system. I found
these discussions to present all of the ideas that are key to a student’s
understanding of an area of law or an aspect of the legal system. I often
found myself noting a point for inclusion in my lectures or pointing to
a paragraph for a student to gain a quick understanding of an approach or
legal idea.
If anything, Melone and Karnes could be accused of being
too inclusive at times. Their balanced treatment of approaches and ideas
belies the fact that the underlying intellectual development of the field
occasionally replaces old theories with new ones. Similarly, I often wanted
to see further development of ideas to expand upon relationships between
different actors or approaches that were only suggested. Instead, the text
presents a pluralistic consideration of all competing approaches relatively
equally in the interest of promoting an understanding of the larger topic.
But, I guess that is why textbooks are written – to leave room for
the instructor to introduce such ideas to students according to her own
preferences. In addition, it serves as a reminder that interesting intellectual
thoughts about the legal system can fall in and out of favor rather quickly.
For example, it has been a while since I have seen such a long discussion
of Alternative Dispute Resolution. Indeed, such issues remain of interest
to judges and court administrators even if our community of scholars has,
by and large, moved on to other questions.
Overall, this is an excellent textbook with a clear framework,
offering a good base for students and repeated entre to instructors to branch
off into areas where we would like to have more in-depth discussion. To
me, this makes it well worth the price.
REFERENCES:
Baum, Lawrence. 2002. AMERICAN COURTS: PROCESS AND POLICY (5th ed). Boston, MA: Houghton Mifflin Co.
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Copyright 2003 by the author, Scott Barclay.