Vol. 13 No. 8 (August 2003)
NEGLECTED POLICIES: CONSTITUTIONAL AND LEGAL COMMENTARY AS CIVIC EDUCATION by Ira L. Strauber. Duke University Press, 2002. 266 pages. $21.95 Paperback. $64.95 Hardcover. ISBN: 0-8223-2041-5 (pb), 0-8223-2945-x (hb).
Reviewed by Marc Georges Pufong, Department of Political
Science, Valdosta State University, mpufong@valdosta.edu
In modern American politics, constitutional discussions and
legal commentaries on the constitution are often confusing as well as difficult
to follow. Admittedly, much of the confusion and difficulties can be attributed
to the over-politicization of the constitution rather than to the sophistry
of the arguments presented by proponents of either side of the issues at stake.
Yet politics need not be avoided for passionate exchanges on important
constitutional issues of the day. In NEGLECTED POLICIES: CONSTITUTIONAL AND
LEGAL COMMENTARY AS CIVIC EDUCATION, Professor Ira Strauber challenges the
centrality of what is often said, how it is often said, and the impact of
what is said. In a way, he challenges ideas, commentaries, and their effects
with an urgency that scholars and critics of constitutional jurisprudence
think differently and carefully about the constitution and its interpretation.
He evinces particular sensitivity and concern that set ideas, issues, and
personalities apart. Strauber argues that various strands of engagements do
in fact, repress awareness of the difficulties involved in making a more meaningful
democratic contribution to constitutional commentary on matters of both law
and policies.
The villains in this book are teachers and critics, particularly
those outside legal academies. Strauber’s challenge is premised on the
proposition that they—i.e., the scholars and critics—are unreflectively
and mistakenly devoted to a complex group of intellectual and political ideas
on constitutional and legal commentary that needs to be challenged. To Strauber,
their self-image as civic educators in an interpretative community and their
ideas about the law’s “formalisms” are critically important. By “formalisms,” he means “law’s argumentative
rules and structures, principles, concepts, and doctrines” (p.1).
Strauber also focuses on their views and ideas of the Constitution
as a text, the reasoning and arguments of litigators and adjudicators, philosophical
theories, and the role of the courts in liberal-democratic politics. He argues
that it is a mistake to engage in unreflective devotion to self-image and
ideas, notably in the “ideology of involvement” and “intellectual
jurisprudence” because both extract too high a cost in constitutional
and legal commentary (pp.16-27).
The “ideology of involvement” in Strauber’s
assessments leads teachers and critics to presume that they are more efficacious
as civic educators, than they actually are or can be. It assists in repressing
the awareness of how difficult it is to make a more democratic contribution
to commentaries about law and policies that breaks with intellectual jurisprudence.
In Strauber’s view, it is this “intellectual jurisprudence”
that leads teachers—critics as well as their audiences—to neglect
too much what is important about law, politics, and especially, policies in
a liberal-democratic polity. Furthermore, Strauber is concerned with pursuing
the implications of giving more attention to the context-specific, circumstantial,
and consequentialist social fact considerations that at their core collide
with political perspectives and controversies in pluralist polities. Yet,
pragmatically, Strauber foresees limits. For example, he acknowledges that
it is not practical, nor is it intellectually or politically prudent, to replace
either “the ideology of involvement or intellectual jurisprudence.”
Rather, for a more politically sufficient commentary, he proposes in the alternative,
a set of tenets that fosters a “habit of mind” over one fostered
by the “ideology of involvement” (pp.2, 23-27). This habit of
mind is called “agnostic skepticism,” oriented and designed to
shape a more prudent and hopefully, efficacious approach to civic education.
Agnostic skepticism Strauber argues, owes its tenets and
origins to sociological jurisprudence, legal realism, and critical legal studies.
The sine qua non of agnostic skepticism
according to Strauber is its mandate to resist an unreflective devotion to
lawyerly methods and legal, political, and moral abstractions as ordinarily
deployed in doctrinal analysis, jurisprudence, and legal philosophy. According to Strauber, in a most unlawyerly
way, an agnostic mandate calls for commentary that mixes and merges these
methods and abstractions with commonplace contingent and/or circumstantial
social-facts, social-scientific, and consequentialist considerations. This
approach, he maintains, requires a willingness to be situated “on the
outside looking in” on the law, its advocates, its judges, and its commentators.
Above all, Strauber argues, an agnostic requires a “habit of
mind” ultimately at home with a relativism based on the premise that
constitutional and legal commentary should always be understood in terms of
various shades of gray (p.3).
As characterized, Strauber’s “agnostic skepticism”
gives narrative shape to commentary in three major ways. First, Strauber argues
that agnostic skepticism provides descriptions and analyses of conditions
and relationships that challenge unmerited solace in the political credibility
of legal, political, and moral abstractions. Second, Strauber argues its descriptions
and analyses provide strong reasons to resist the allure of predetermined
conclusions, on both the left and the right, about the strengths and weakness
of liberal-democratic law and facets of political power, as well as about
when law and policies ought to be conserved or criticized. Third, and lastly,
Strauber maintains that agnostic skepticism’s descriptions and analyses
also provide strong enough reasons to oppose the compulsion to read constitutional
and legal opinions in terms of whether they are rightly decided or not, and
to oppose fixed or totalistic conceptions of the role of courts in major controversies.
Thus, the narratives of agnostic skeptical commentary are summarily meant
to incline teachers and critics, and those who learn from them, to take a
more “experimental and venturesome approach” than usual to the
materials of legal and political commentary.
Admittedly, while Strauber’s agnostic skepticism cannot
predict outcomes—i.e., of what is yet to take place—he contends
that its experiments could well have substantively different results. Thus,
Strauber urges that case studies presented and referred to in this book should
be read in light of that possibility. Interestingly, Strauber’s own
experiments are borrowed from Justice Benjamin Cardozo’s “ordered
liberty” conception of rights, powers, and interests related to maintaining
the common good, political stability and popular rule or sovereign interests.
From that perspective, however, Strauber touts the implications of ordered
liberty beyond Cardozo’s conception and known case laws. He does so
by drawing on often heavily qualified hypothetical social fact claims and
accounts of the “under-determinacy” of legal formalisms and political
and moral abstractions. By “under-determinacy,” Strauber means the tendency
of legal formalisms and abstractions to justify a multiplicity of competing
and equally credible results. These results, he argues, are very often logically
inconsistent with one another, such as having different policy implications
from case to case, instance to instance, or incongruous with more practical
social, economic, political, and historical considerations.
With caution, however, Strauber maintains that legal formalisms
and political and moral abstractions are not necessarily fatally flawed by
virtue of their inconsistency or incongruity with social fact considerations.
Strauber sees three major civic education lessons arising out of agnostic
skepticism’s commentary and experiments with hypotheticals and under-determinacy.
The first lesson is that hypotheticals and under-determinacy might well take
agnostics to conclusions at odds with their political or moral preferences.
The second lesson Strauber sees is that commentary to a middle course may
lead one to shuttle back and forth between arguments that justify both conservation
and criticism of the law’s formalisms and facets of political power.
Lastly, the third lesson Strauber sees is that there is less certainty and
more doubt to be had about the widespread conviction that courts are always
a politically prudent venue for articulating the uppermost political and moral
aspirations of the polity. Thus, to Strauber, these lessons bear directly
on the place and role played by teachers and critics as civic educators within
an interpretive community.
Contrasting these lessons to commentary hassling “intellectual
jurisprudence and ideology of involvement,” Strauber admittedly does
not follow up with counsel for either changing or improving what litigants,
adjudicators, public policy-makers, or courts do. Rather, he holds back steadfastly preferring
instead to recommend that skeptical commentators abjure the pleasure of giving
any such counsel because it is likely going to be inefficacious. To Strauber,
common social facts about knowledge, power, law, and policies lead to the
obvious recommendation that teachers and critics concentrate their energies
on a potentially more efficacious, but less hard to accomplish, goal: civic
education in a more “Jeffersonian civic culture.” Strauber’s
view of a Jeffersonian civic culture is one in which an elite of properly
educated citizens is increasingly predisposed to learn about law, politics,
and policies so that they can tolerate legal and political ambiguities and
contradictions inherent in a pluralistic polity. This predisposition, he insists,
would make them suspicious and tentative about all claims having to do with
the Constitution, law, and policies—be they claims from lawyers, scholars,
journalists, or the people themselves.
Strauber argues further that when people are predisposed
to learn in this way, they exhibit a kind of pragmatic judiciousness of enlightened
self-interest traditionally identified with the American mind and citizens’
relations (p.4). Thus, within Strauber’s continuum of analysis and recommendations,
he sees agnostic commentary as an attempt to pragmatic judiciousness that
fulfills four commitments. With regards to the first commitment, Strauber
argues that agnosticism does not try to evade the inevitable complexity, ambiguity,
inconsistency, and incongruity of things. For instance, he maintains that
arguments – one’s own or those of others – which appear
to be certain or beyond rejoinder, ought to be appreciated for their rhetorical
robustness and then treated suspiciously as insufficient.
Relative to the second agnostic commitment, Strauber contends
that if nothing is certain or beyond rejoinder, then it is judicious to differentiate
not only between weaker and stronger reasoning and justification, but also
to discover what is weak in the stronger and vice versa. The primary benefit
of this judiciousness, Strauber insists, is that it acts as a check against
premature judgments and an unjustifiable confidence that judgments are rightly
decided. The costs, he adds,
are that one may lose one’s certainty of argumentative touch, or wander
off into pitfalls and fallacies of thought. The third agnostic commitment
has to do with cost. Accordingly, Strauber maintains that although costs may
seem high compared to the benefits, they are worth paying if they help to
purchase civility and tolerance which themselves entail a self-critical and
emphatic (if not compassionate) regard for unpredictability of the course
of political events. The fourth commitment is the good of civility and tolerance.
According to Strauber, they are worth purchasing if they are as useful, if
not more so, for private relations as they are for legal and political relations
(pp.4-5). Interestingly, only the first three of the four commitments are
developed fuller in various ways throughout the book. The fourth is undeveloped
since Strauber claims that it may not be recognized as tacit in case studies,
because it blurs the distinction between lessons about public and private
relations.
On the whole, the discussions in this book are framed and
divided into three main parts. Part 1 consists of three chapters. Chapter
1, titled “The Purpose of an Interpretive Community,” introduces
the main arguments about the ideology of involvement jurisprudence mostly
embedded in the discussions above. It clearly identifies Strauber’s
concerns about the need for a more politically sufficient commentary. Furthermore, he seeks to demonstrate that
a gulf exists indeed between the reasons and arguments made in the course
of “advocacy, judgment and scholarly analysis” and the practical
and quite common social, economic and political conditions and relationships.
More importantly, Strauber also defines and elaborates on the core terminology
and concepts that embody his arguments in this book—namely, “the
ideology of involvement, intellectual jurisprudence, political sufficiency
and agnostic jurisprudence.” As noted above, these terms do more. For
example, they establish the context for analytical points Strauber makes throughout
the book about the gulf between legal reasoning and politics. They explain
why it is costly to constitutional and legal commentary; and finally they
also explain how commentators might go about reducing those costs and recovering
neglected policies (pp.15-35).
Chapter 2, “Formalisms: An Efficacious Enemy of Politically
Sufficient Commentary,” presents the first case study, a criticism of
conventional commentary on the First Amendment flag burning case. Here Strauber
illustrates how the tenets of political sufficiency direct one to keep a critical
eye on the way commentary tries to answer the rightly decided questions that
lead to neglected policies. On law’s formalism, Strauber argues that
if teachers, critics and their audience adopt agnostic skepticism, then they
need to learn to challenge at every turn the unmerited solaces inherent in
its formalism—that is, to draw attention to its argumentative rules
and structures, its principles, concepts and doctrines, and “the habits
of mind” that ensues from them. Law’s formalisms he maintains,
are the natural places to begin because they are at the heart of intellectual
jurisprudence that constitute an intrinsic limit on efforts to democratize
the intellectual authority of law (pp.36-51).
Chapter 3, “Skepticism and Neglected Policies”
(pp.52-63), again revisits TEXAS v. JOHNSON (initially presented in Chapter
2). The chapter assesses the central formalism of an opinion, and in this
instance, whether marketplace formalism is merited or not. Strauber acknowledges
that marketplace formalism provides no legal criteria to justify the claim
that one interpretation of sovereignty interest in “public discussion
as public policy” is better. It only requires only that ethical and
political principles be addressed. On the core debate between Justice Brennan
and Chief Justice Rehnquist over whether JOHNSON was rightly or wrongly decided,
Strauber maintains that the case should not be treated solely as a conflict
between liberalism and communitarianism. In his view, it is more to the point
to read the eminent political theory of the opinion as a conflict over interpretation
of sovereignty interests and the use of market place formalism (p.61).
Part II consists of six chapters sharing a central aim and
theme of the book. These chapters define and situate agnostic skepticism’s
exact place in jurisprudence. They further explain how the tenets of political
sufficiency lead to a deeper appreciation of the ways in which the law’s
formalism and facets of liberal-democratic political power obscure important
political conditions and relationships. For example, Chapter 4, titled “Formalisms:
Facets of Political Power and Neglected Policies,” introduces the issue
of complicated differences and similarities between skepticism and a principal
source of its inspiration, critical legal studies (CLS) (pp.67-90). Specifically,
a case study of market place formalism and facet of regulatory power in another
First Amendment case, FCC v. LEAGUE OF WOMEN VOTERS, is compared with a treatment
of marketplace formalism, governmental power, and sovereignty interests. This
comparison is made even livelier with Roberto Unger’s version of Critical
Legal Studies (CLS) called “radical revisionism.”
According to Strauber, this comparison reveals that despite the extent
to which solace in legal formalisms and facets of regulatory power may be
viewed as unmerited, agnosticism does not buy in to the “revisionist
agenda” that liberal-democratic law and politics is necessarily flawed
or attend to its call for radical transformations.
Summarily, Chapters 4 through 6 explain why agnosticism owes
a great deal to CLS when it comes to evaluating the inevitable ambiguity,
inconsistency, and incongruity that attend law, politics, and policies (p.69).
Chapter 5, “The Internet: Distorted Ideals and Practices,” sets
out a brief analysis of the controversy over sexually explicit materials on
the Internet (pp.91-103). Here, Strauber relates the various issues to agnostic
assessments of the controversy. He commits to the notion that under-determinacy
is central to politically sufficient commentary that shuttles back and forth
between arguments for conservation and criticism of law. Furthermore, he argues that mixing and
merging empirical claims about facets of power with formalistic ones reveals
the extent to which the subject matter of legal commentary ought to be thought
about in terms of under-determinacy.
There is, however, a limit. Accordingly, Strauber also maintains that
a line of under-determinacy also establishes the extent to which one should
be skeptical about blanket condemnations or celebrations of the law’s
formalisms. This is the case he argues, even though skepticism may in fact
confirm inconsistency and incongruity in the use of legal formalism (p.102-3).
Chapter 6, “Agnostic Skepticism About Radical Rejectionism,”
presents an in-depth analysis of formalism in the federalism and sovereignty
interests in MCCULLOCH v. MARYLAND, by comparing Critical Legal Studies (CLS)
assessments (pp. 104-126). In this chapter Strauber places his analysis in
the context of a case study derived from a variant of Mark Tushnet’s
“radical rejectionism.” Radical rejectionism, Strauber maintains,
is driven by the belief that the rule of law is a myth, that liberal–democratic
law and policies are simply incapable of doing anything but obscuring the
severity of societal dysfunctions, and that federalism is a sham as rule-of-law
imposes limits on federal power. Put simply, liberal-democratic laws defeat
all hope for social change. Strauber is not persuaded with this proposition.
He instead contends that, although law may be inconsistent and incongruent
with political conditions, this condition, alone, does not constitute sufficient
grounds for concluding that “rule of law” is a myth and/or that
liberal-democratic politics is incorrigibly dishonest (p.121).
To explain why he believes the social fact and formalistic
claims in MCCULLOCH provide a rationale, he offers the perspective of politically
sufficient commentary, for a more forgiving conception of the law’s
formalisms and routine politics. This rationale, he argues, holds despite
the fact that a “rejectionist” criticism of MCCULLOCH is partially
credible. Finally, Strauber explains
why agnostics ought to take seriously (even with a bit of skepticism) what
litigators and adjudicators say about law’s formalism and routine politics
in order to recover neglected politics and policies. His explanations leverage two related
issues that all constitutional commentary must address: the text of the Constitution
and the political structure of the polity. In this chapter, Strauber locates
the two issues on formalism of sovereignty interests, federalism (the vehicle
for understanding those interests), and the various cases. Finally he provides
a defense of politically sufficient commentary with agnostic skepticism.
In Chapters 7 and 8 Strauber exhibits a shift in assessment
that explores causes of neglected policies in particular areas of federalism.
In Chapter 7, “Agnosticism, Federalism, and Constitutionalism”
(pp. 127-141), contrary to his emphatic condemnation of “radical rejectionism”
for “presuming too much and explaining too little,” Strauber concedes
that there is some merit to Tushnet’s rejectionist critique. He notes,
however, that selecting more federalism cases and public law consideration,
indicates considerable solace in the idea and practice of federalism. In Chapter
8, titled “A Middle Course on Reform,” Strauber presents an amended
originalism regarding ordered liberty (pp.142-159).
Here Strauber depicts a MCCULLOCH-like dynamic of rights and powers
to orient commentary toward troublesome uncertainties attending efforts to
reform federalism. This dynamic he explains, melds textual consideration of
sovereignty and participant interests and plain political consideration about
governmental responsiveness, articulation of the politics of interests, and
budding issues of human capital development. Accordingly, he argues that such
commentary is not problematic, so long as agnosticism is not conceived as
advice to lawyers and judges about how they rightly decide cases if they would
just imitate commentary in their work. Rather, agonistic commentary, he insists,
is advice for critics, teachers, and students to pursue Jeffersonian critical
citizenship, whereby they experiment with what is practical and best in law,
politics and policies.
Rejecting “radical rejectionism”—a variation
on the Tushnet position—Strauber indicates a preference for Hirsch’s (1992) views of “liberty as an organizing
idea.” He does so with an agnostic tinge, while remaining vigilant of
motives and implications for doctrinal analysis and social fact considerations
(p. 127). Thus, Strauber’s agnostic variant of “liberty,”
for example, breaks away with Hirsch’s commitment to advance minority
rights, because in agnosticism substantive commitment contradicts the resolve
that nothing, even minority rights, is beyond rejoinder. Also, he argues that
agnostics must part with Hirsch’s commitment, because politically sufficient
commentary includes issues of power and sovereignty interests equal to considerations
of rights. While urging agnostics to remain skeptical
of “revisionism and rejectionism” because of the politics and
policies they neglect, Strauber values their importance, particularly in breaking
the grip traditional interpretations of rights and powers have had on people.
Thus, an agnostic sensibility inevitably leads agnostics to balance formalisms,
social fact considerations, and the Constitution as they try to craft commentary
that fulfills agnosticism’s mandate for neglected policies. To undertake
such an effort can be immobilizing, but as Strauber argues, it is a necessary
risk if we are to break with intellectual jurisprudence (p.128-9).
In Chapter 9, “Ordered Liberty and Political Morality”
(pp.160-175), Strauber finalizes the definition of agnostic skepticism’s
place in jurisprudence in explaining the problematic relationship of agnosticism
to legal philosophy. Strauber
sees a dichotomy. On one hand, legal philosophy is an enemy of agnostic skepticism
because it is so deeply rooted in the teaching lessons about rightly decided
questions and about the centrality of moral abstractions to legal and political
commentary. However, on the other hand, legal philosophy makes important contributions
to our understanding of the relationship between moral and legal concepts.
To Strauber, therefore, there is and must be a space for legal philosophy
and moral abstraction but one wherein they are used skeptically: their lessons
cannot be independent of, logically superior to, or weightier than those learned
from circumstantial and context-specific fact considerations. For illustration, Strauber compares Ronald
Dworkin’s assessment of PLANNED PARENTHOOD v. CASEY (the decision that
sustained and revised ROE v. WADE) with an agnostic treatment. He sees Dworkin
as the implacable foe of legal
pragmatism that informs the interpretive strategies of agnosticism. With his
own assessment, Strauber demonstrates how agnosticism and moral convictions
can coexist in political space. Yet,
his analysis and Dworkin’s are quite dissimilar. The difference between
the two is a function of competing “rhetorics of utility tied to social
fact considerations” and “rhetoric of analyticity heavily dependent
to logical considerations both of which are competing rhetorics of agnosticism
and moral philosophy” (p.173).
Part III consists of the three final chapters. In the first
of two case studies, Strauber illustrates agnostic commitment to relativistic
and skeptical advocacy about law, politics and moral commitments. In the second, he presents an account
of agnostic struggles of tolerating skepticism and relativism in constitutional
and legal commentary as civic education.
In Chapter 10, “Deeper Skepticism” (pp.179-201), and Chapter
11, “Qualified Solace in the Law’s Formalisms” (pp.202-219),
he illustrates the different ways that commentary addressing ordered liberty
recovers neglected policies and counsels a middle course by shuttling between
conservation and criticism of law. In both chapters Strauber presents different
understanding of the function of courts in liberal-democratic politics, especially
with regards to their perceived role in providing guidance to higher political
and moral values within the body polity. Chapter 10 for example, focuses on the issue of pornography.
Strauber raises penetrating questions about solace in the role of abstract,
mutually exclusive freedom-of-expression and equality principles and the role
that the Supreme Court plays in all of this. He frames the issues for understanding
what is at stake in the controversy over regulated pornography and its role
in subordinating women and producing harms to the cultural environment. AMERICAN
BOOKSELLER ASSOCIATION v. HUDNUT (1985) serves here as an important illustrative
vehicle.
Chapter 11 provides the last set of analyses on the controversy
over what constitutes a “family” as well as “family relations”
as manifested in the public law of adoption custody battles. Veering away
from mainstream legal and political commentaries, Strauber uses adoption custody
examples to demonstrate the practical need for and successful accomplishment
of adjudication to find a middle course. Adoption and custody battles, he insists,
ought to be understood as raising crucial public policy issues. Strauber also
bridges the problem confronted by judges in adjudicating “family and
family relations” cases to other problems that “skeptical teachers
and critics should expect to experience in reaction to their commentary and
efforts on civic education.” He concludes his exposé of this
chapter with a synopsis of charges against agnostic skepticism that test its
strength and weaknesses. In constructing rejoinders to these charges, Strauber
confronts the problem of civic education gone awry, tied to cognitive dissonance
in agnostic skepticism as civic education.
Finally in Chapter 12, “Qualified Solace in Agnosticism”
(pp.220-226), Strauber offers recommendations and solutions for coping with
cognitive dissonance and the degraded state of education. However, before
doing so he cautions that skeptics appreciate the risk of not succeeding in
their efforts to promote a “more Jeffersonian civic culture.”
This risk, he insists, is all too easily ignored because “ideology of
involvement” leads so effortlessly, even for agnostics, to the presumption
that civic education will be efficacious (p.220).
Strauber suggests the merging of private and public lessons to enhance
civic education that is suspicious and tentative.
Promoting Jeffersonian sensibilities requires considerable skepticism
about successfully linking those sensibilities to formal education. Anticipating
adverse reactions to his proposal on grounds of public/private sphere distinction,
he nevertheless proposes that teachers and critics link legal and political
lessons to people’s mundane concerns about private relations. Considering
the risk of failure, he surmises that it is prudent to construct second best
scenarios for civic education, and teachers and critics would be well-advised
to invent stories tied to mundane incidents “closer to home” to
enhance skeptical commentary about less familiar public issues. He concludes
this chapter with examples relative to the foregoing analysis.
In this book, therefore, Strauber not only challenges teachers
and critics of constitutional jurisprudence to think differently about the
Constitution and its interpretation, but he demonstrates how such constitutional
interpretations should be understood and, more importantly, how they should
be consumed. In so doing, he advocates a Jeffersonian civic culture of learning,
one in which we should expect citizens to be increasingly tolerant of the
ambiguities and contradictions inherent in law and politics of a pluralistic
society. Yet, within such expectations, he remains skeptical of its success—too
skeptical in my view—but perhaps consistent with the theory he advances.
His skepticism is presented especially well in the concluding Chapter 12,
where he explores the recognition that agnostic skeptics risk failing in their
effort to promote civic culture. As I have attempted to summarize, the theory
of “agnostic skepticism,” questions and evaluates competitive
jurisprudential notions that purport to generate “right answers”
to legal questions through law’s formalism. In Strauber’s estimation,
agnosticism demands attention to context-specific, circumstantial social facts
relevant to given controversies, and it requires above all, a “habit
of mind” that is at home with relativism. Indeed, his core argument
in this book is that important aspects of law, policies, and politics are
NEGLECTED because of legal formalisms.
By shuttling through the intersections of various sub-disciplines
of law, policy, politics and constitutional cases examples, Straber invites
teachers and critics to take seriously the agnostic skepticism approach to
constitutional policy evaluation. Readers should note that the criticisms
of law’s formalism from either critical legal scholars or Strauber’s
slant on agnostic skepticism presented in this book are not inherently radical.
Rather, together their arguments contribute to clearer thinking about
law’s usefulness in expanding the horizons of our existing discourse
on political and policy questions. In style and substance, this book is a
valuable contribution to scholars in public law, policy, and politics, interested
in constitutional interpretation and related questions of law and society.
Faculty teaching graduate and upper-level undergraduate seminars in public
law and policy broadly defined will find this book suitable as an additional
text for their course.
REFERENCES:
Cardozo, Benjamin
N. 1974. NATURE OF JUDICIAL PROCESS. New Heaven: Yale University Press
Dworkin, Ronald.
2000. SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY. Cambridge, Mass.:
Harvard University Press
Dworkin, Ronald.
1992. “The Center Holds: The Supreme Court’s July 29th 1992 Ruling
in Planned Parenthood of Southern Pennsylvania et al versus Casey.”
NEW YORK REVIEW OF BOOKS, 39: 29.
Hirsch, Harry
N. 1992. A THEORY OF LIBERTY: THE CONSTITUTION AND MINORITIES, New York: Routledge.
Tushnet, Mark.
1988. RED, WHITE AND BLUE: A
CRITICAL ANALYSIS OF THE CONSTITUTION. Cambridge, Mass.: Harvard University
Press.
Unger, Roberto. 1986 .THE CRITICAL LEGAL STUDIES MOVEMENT, 2nd ed. Cambridge, Mass.: Harvard University Press.
CASE REFERENCES:
AMERICAN BOOKSELLER ASSOCIATION v. HUDNUT, 771 F2d. 323 (7th
Cir. 1985).
FCC v. LEAGUE OF WOMEN VOTERS, 468 US 364 (1984).
McCULLOCH v. MARYLAND, 17 US 316 (1819).
PLANNED PARENTHOOD OF SOUTHERN PENNSYLVANIA et al v. CASEY,
505 US. 333 (1992).
ROE v. WADE, 410 US 113 (1973).
TEXAS v. JOHNSON, 491 US 397 (1989).
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Copyright 2003 by the author, Marc Georges Pufong.