At its best, Baez's study is effective in documenting the "stories" courts (at all levels) tell and
the broader implications such stories have. He is generally thoughtful in moving outward beyond the cases per
se. The book is most compelling when exploring the affirmative action arena where the judicial stories are most
clear-cut and their fallacies most readily revealed. Throughout the study, Baez utilizes a synthetic approach
to develop his arguments, relying extensively on the work of multiple
writers in multiple disciplines.
Although this is well and good ultimately, I think, at least for a political science readership, the book fails
on many levels. At the outset, it should be pointed out that it is not an easy read. Baez offers an inordinate
amount of road mapping, spreading more ink telling the reader what he is going to do than he does actually doing
it. Consequently, the renderings of cases and doctrinal development tend to be
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cursory and over-simplistic, as well as highly selective and, at times, non-contextual. The fundamentally simple
notion hammered home by Baez about the political nature of adjudication is offered up to the reader as if it were
a revelation, and a complex one to boot. Further, as a general matter, Baez's prose is both layered and labored
and, frankly, often difficult to digest. What is one to make, for example, of the assertion that, "A politics
that fails to question the historical and political
nature of any race project not only cannot see the tools of contestation, but may re-inscribe historically oppressive
formative discursive practices into the body directly, leading individuals to discipline themselves in accordance
with the tenets of those formative discursive practices" (p. 149).
From what I've said thus far, it should come as little surprise to note that the analysis is ideologically driven
at every turn. The reader is continually met with terms and concepts such as "judicial violence," the
"imperialism of court speech," and the language of "agency and structure." Although music
to the ears of some, the approach will be anathema to many others. In a similar vein, Baez's analysis will not
be convincing for readers who have difficulty making the transition from the writings of the likes of Freud, Foucault,
Kant, and Nietzsche to the decisions of courts. Among the more contemporary analysts Baez uses to draw the link
between
discourse and legal development are Cornell West, Duncan Kennedy, Catharine MacKinnon and Dinesh D'Souza, while
political scientists who can help inform the study (such as John Brigham, for example) receive no mention.
At bottom, the ultimate failure of the book, for me, lies in its punch line. Baez concludes his analysis by noting
that the state and, of course, courts, have substantial limits when they are relied on as the exclusive mechanisms
to remedy racial injuries, a point well taken. Consequently, Baez advocates the inclusion of "non-state"
responses to the legal issues examined, a "politics of resistance" spreading "counternarratives"
to the stories told by courts and which predominate in the academy. Such a strategy, it seems to me, although
not profound, does make much sense. When Baez offers some substantive content to such counternarratives, however,
he falters in my view, opting for arguments premised in relativism and context and largely eschewing empirical
truths which, simply, cannot be trusted. Yet a standardless, relativist world ultimately does not convince and
will, in the end, not be taken seriously by a meaningful proportion of judges or academics, the very audiences
whose speech acts must change if the author's rhetorical agenda is to move forward.
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Copyright 2002 by the author, Elliot E. Slotnick.