ISSN 1062-7421
Vol. 11 No. 10 (October 2001) pp. 463-467.

MINDING THE LAW by Anthony G. Amsterdam and Jerome Bruner. Cambridge, MA: Harvard University Press, 2000. 453pp. Cloth $36.95. ISBN 0-674-00289-X.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College.

In MINDING THE LAW the authors propose, "to make the already familiar strange"(p. 1) for law students and their professors by "mak[ing] the sights of the legal universe constantly curiouser and curiouser" (p. 5). Its means toward this end is to interpret the law from the point of view that litigators and adjudicators "must inevitably rely upon culturally shaped processes of categorizing, storytelling, and persuasion in going about their business (p. 7). Amsterdam, an accomplished civil liberties attorney, and Bruner, a distinguished cognitive psychologist, hold that this point of view is necessary to defend "against the numb acceptance of injustices and
inhumanities so rooted in routine that they seem natural, inevitable, or not really to be going on at all" (p. 17).

The theoretical foundation for this defense against insensitivity is the concepts of "categories," "narrative," and "rhetoric." In turn, the case studies of Supreme Court opinions illustrate how those concepts, within the context of tensions inherent in the political culture, are used to screen or conceal unexamined biases and policy choices in legal argumentation.

Readers of this review tutored in Critical Legal Studies, feminist theory, Critical Race theory, law and literary analysis, or rhetorical studies will find this familiar territory and its publication raises, albeit fortuitously, the interesting sociological of knowledge question about how wide or deep the impact of those studies, analyses, and theories has been on law school education. The authors' experience with a decade-old advanced law school seminar on "lawyering theory" has persuaded them that their point of view is novel, and that it can free students and faculty from "the deadly habit of taking the law for granted" (p. 6). So much so that they end this
book with the (qualified, if not indecisive) recommendation that a "human sciences" approach to the concepts of argumentation might inform a preliminary and core course of instruction in law school. (Making unfamiliar first-year studies even more strange?)

At one level then, those who are interested in the issues of extra-legal materials for legal education can dig into MINDING THE LAW and Richard Posner's THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999) for their contesting views about those issues.

At another level, those tutored readers can obtain a different kind of profit. They should keep in mind that this book was not written to go beyond, or necessarily to engage, the existing bodies of literature that inform, or conceivably correspond with, or possibly challenge the point of view the authors endorse. Thus, if they should take this book up they might find in it an occasion to answer some hard questions

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about the authors' point of view. For example, "How might this book's arguments about categories, narrative, and rhetoric (described below) be qualified or criticized by insights drawn from the new institutionalism and constitutive approaches to the law?" Or, "If legal argumentation and analysis are as indeterminate as the authors claim, then how well does this book measure the extent to which the law's indeterminacy undermines attempts to locate that which is 'unjust' or 'inhumane'?"

As for those who are untutored in the ways of analyzing the law from the perspective of the linguistic and cultural-psychological forces that underlie it, some will probably find the second, fourth, and six chapters that classify characteristics of categories, narrative, and rhetoric slightly wearing. However, these chapters prove to be remarkably well written, and the pay-off for readers' persistence will be a well-managed profile of the territory. Specifically, the chapter on categories represents them as the products of the cognitive activity that seeks to sort like things alike. Such sorting is conceptualized by the authors as embedding cultural conventions about authorized or desirable states of affairs that constitute the criteria for what things are considered alike. From that perspective, the authors elaborate on the source, various functions and "rules" or conditions of the uses and hazards of categorization.

Narrative is conceptualized in its chapter as the cultural "stories" (or "myths") that a people construct to inform one another about how the things of the social world are related to one another. There is a brief review of theories of narrative, and what the authors argue are its five main components (e.g., "what is ordinary and legitimate," "what constitutes time," "what human beings strive for") as they relate to the central business of persuasion in legal argumentation.

In Chapter Six, rhetoric (e.g., strategies of persuasion or "selling" and debate framing) is depicted in terms of Austin's and Grice's speech act theory. Thus portrayed, the functions of rhetoric are associated with the inherent contestability of the law, and the fact that rhetoric in lawyering "is not what you say or do or mean but what you can sell" (p. 175). Legal rhetoric thus requires that something is always to be concealed, and the study of the functions of rhetoric are identified as a means whereby students become alive to the "self delusion [that] becomes especially likely when contestability threatens to destabilize important premises of our accustomed reasoning" (p. 176).

In Chapter Eight, the functions and hazards of categories, narrative, and rhetoric are associated with the dynamics of what is referred to as a "pragmatic" (p. 231) conception of the culture. These dynamics are presented as a process of contest and reconciliation between authoritative interpretations for constituting the self and society and the storehouse of innovative alternative possibilities that categories, narrative, and rhetoric contain. The authors indicate that there are many ways to frame these dynamics and their preferred frame places those contests in "the crest-and-cycle of American egalitarian sentiment and its political realization" as it
is marked by respective triumphs and defeats of "idealism" as opposed to "caution" (pp. 260-61).

Tutored and untutored readers alike are apt to welcome this chapter's discussion of the push and pull of argumentative forces between idealism and caution as most

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helpful for getting an overview of what the authors believe is at stake in promoting their point of view about the law. For one, the discussion discloses the broader cultural and political backdrop necessary to the full appreciation of the case studies presented in Chapters Three, Five, and Seven about representing categorization, narrative, and rhetoric respectively. For another, the discussion places what previously might be read as a basically left-liberal nostrum about idealism into more complex, poignant, and therefore invigorating scenarios--drawn from the U. S., Ireland, and Italy--of the obstacles that stand in the way of maintaining a dialogue between advocates of the contending forces.

The case studies themselves (in the preceding chapters) are all examples of how the three concepts can be instruments for the triumph of caution over idealism. The authors promise in those studies a "close reading" of the opinions that will indicate where the use of those concepts results in arguments that "lack any justification in the text" (p. 7). The chapter devoted to categories and law thus maps how they are deployed in MISSOURI v. JENKINS (1989) to deny that a District Court's equity power extends to fixing a tax rate to pay for the costs of desegregation. Likewise, literary references to stories about adultery are used to help map the way categories are arrayed in MICHAEL H. v. GERALD D (1989) against a substantive due process claim about parenthood as it comes up against the common law conception of family.

A chapter devoted to narrative and the law draws out similarities between the story lines in two cases that assert Federal over State power, and caution over idealism, in order to postpone advancing the cause of racial equality. One case is PRIGG v. PENNSYLVANIA (1842), which voided Pennsylvania's law prohibiting the abduction of Negroes and mulattos from the State. The other is FREEMAN v. PITTS (1992), which held that District Courts might release school boards from judicial oversight in incremental stages, and choose not to order further remedies if there are no DE JURE violations.

Lastly, the chapter devoted to rhetoric examines McCLESKEY v. KEMP (1987), which sustained the death penalty in the face of Eighth and Fourteenth
Amendment challenges to it as discriminatory. The theme of the study is that conventional legal claims can be apparently persuasive but nevertheless conceal tacit values tenets that distort otherwise reasonable counter-claims that would undermine convention.

Read as confirmation of the vitality and usefulness of the authors' point of view, these studies will appear as well crafted and persuasive to both tutored and untutored readers. Yet, as indicated above, tutored readers might well entertain some hard social-scientific and interpretive questions about them. For example, law scholars and political scientists attentive to the complexities of doctrinal analysis, as well as social scientists trained in content analysis, might scrutinize some of the conceptual and empirical assertions advanced in the studies to test the studies' own validity and reliability. Also, perhaps it would be prudent for all readers to consider
whether the authors, in refraining from interrogating themselves sufficiently about the implications of their studies, actually manifest the self-same hazards of categorization, narrative, and rhetoric for which they reproach others?

I say this not so much as a criticism but because perspicacious readers may agree

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with me that the authors have allowed this question to percolate cautiously throughout the book. In Chapter One the authors alert readers that although the case studies to come are prompted by results that the authors find unjust, the authors refrain from any criticism of those results or promotion of their own ideological preferences (p. 7). Their justification is that such criticisms or promotion of their own preferences would require normative analysis that is beyond the scope of the book. This justification is repeated in various ways throughout, and it is repeated and expanded upon again in Chapters Nine and Ten where the issue boils up in a way that I found difficult to analyze.

Chapter Nine, which builds on the theme that persuasive legal claims conceal their own tacit tenets and distort unconventional counter-claims, as well as on the debate between idealism and caution, reiterates the justification for defaulting on normative analysis. It also admonishes readers to be skeptical about the authors' own policy predilections and to be aware of any defects in the arguments that follow (248). (Specifically, these arguments defend the claim that the legal and political aspirations of BROWN v. BOARD OF EDUCATION (1954) have been so constricted by decisions like PITTS, JENKINS, McCLESKEY, and affirmative action decisions that, in effect, the values of PLESSY v. FERGUSON (1896) rather than BROWN control adjudication (p. 256).

The defense of this claim is transparently results-oriented, and to their credit the authors give full vent to their robust disappointment about the triumph of cautious racism over idealism. But in Chapter Ten the authors render their own orientation and disappointment problematic by introducing otherwise appropriately trenchant legal and political questions about the coherence of BROWN'S doctrine, its implementation, the role of courts in society, and the like. This is the sole instance where the authors explicitly interrogate their own use of categories, narrative, and rhetoric. It was difficult for me to decide whether, in this instance, the authors succeed in bringing the materials dispersed throughout the book that distinguish argumentative analysis driven by policy predilections from normative analysis guiding choices about competing analyses into some kind of coherent position or not. On one hand, the self- interrogation does bring together all those comments along the way about policy preferences shaping case studies, remarks here and there that all interpretations are inherently suspect (e.g., p. 174), as well as suggestions that there is no one "right" way to frame those three concepts or to argue that a frame is "wrong" (e.g., 6-7, 35).

On the other hand, it unintentionally serves to corroborate Stanley Fish's (1999) warning that it is both impossible and unnecessary for argumentation to stand away or above normative analysis. That is because, says Fish, and the authors self-interrogation appears to confirm, argumentation is driven all the way down by policy preferences that compete with those they reject. Consequently, argumentative ends, says Fish in contrast to the authors, justify any categorical, narrative, and rhetorical means, and those means always seek to deprecate, disregard, and exclude the argumentative convictions and commitments of others.

Certainly the authors do not want their readers to draw Stanley Fish's conclusion about means and ends that "All that is possible--all you can work for--is to arrange things so that the... [arguments] are favorable to your interests and hostile to the interests of your adversaries" (p. 44). But an

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unintended consequence of the authors' interrogation of themselves, and their abstention from attending to issues of normative analysis, is to open the door wide to Fish's unwelcome conclusion. To the extent that that is the case, it must be considered whether MINDING THE LAW leaves the intended audience no better off than where the authors think that audience is now.

That is, (some, many, most?) law students and faculty are familiar enough with the idea that there are no single "right" answers to legal questions. Also, they are trained well enough to use--unconsciously perhaps--categories, narrative, and rhetoric to win legal arguments by being ever so clever at screening or concealing their unexamined biases and policy choices while attacking the arguments of their opponents for those "flaws." Consequently, this book could fall into their hands only to make them better crafts-persons in using categories, narrative, and rhetoric for ends that have nothing to do with making them less numb in regard to "injustices" and
"inhumanities."

This line of thought is not meant to, nor do I think it does, fault the authors for a book that they did not write. It is meant to bring to the forefront one of the risks of going to battle on one, argumentative front with the law and leaving another, normative flank open. The cost of that risk is, to paraphrase an old rock title, "to have fought the law, and the law to have won." But even at that cost, MINDING THE LAW IS nonetheless a book well-worth reading and criticizing for those who think that the battle against the law "to make the already familiar strange" and "to make the sights of the legal universe constantly curiouser and curiouser" is always worth the fight.

REFERENCES:

Fish, Stanley. 1999. THE TROUBLE WITH PRINCIPLE. Cambridge, Massachusetts and London, England: Harvard University Press.

Posner, Richard A. 1999. THE PROBLEMATICS OF MORAL AND LEGAL THEORY. Cambridge, Massachusetts and London, England: Harvard University Press.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U. S. 294 (1954).

FREEMAN v. PITTS, 503 U. S. 467 (1992).

MCCLESKEY v. KEMP, 481 U. S. 279 (1987).

MICHAEL H. v. GERALD D., 491 U. S. 110 (1989).

MISSOURI v. JENKINS, 491 U. S. 274 (1989).

PLESSY v. FERGUSON, 163 U. S. 357 (1896).

PRIGG v. PENNSYLVANIA, 16 Pet. 539 (1842).

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Copyright 2001 by the author, Ira L. Strauber.