Vol. 5 No. 3 (March, 1995) pp. 83-85
SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor
AMERICAN COURTS: PROCESS AND POLICY (3rd ed.) by Lawrence Baum.
Boston: Houghton Mifflin Company, 1994. 369 pp. Paper $ 29.95.
Reviewed by Lynn Mather, Department of Government, Dartmouth
College.
As recently as ten or fifteen years ago, faculty teaching
judicial process courses were hard-pressed to find a text that
would fit the bill. There were a few excellent readers with essay
collections, but very few single books that focused exclusively
on courts in the United States and that included state as well as
federal courts. Baum's AMERICAN COURTS: PROCESS AND POLICY is one
of a number of outstanding recent books which can serve as
first-rate texts in a judicial process course. If this series of
book reviews on judicial process texts shows nothing else, it
demonstrates how dramatically the field has changed and how the
rich scholarship on courts in American society has finally made
its way into texts for undergraduates.
Lawrence Baum's AMERICAN COURTS: PROCESS AND POLICY, now in its
third edition, is a solid, fact-filled text. Baum writes that the
book's major goals are description and explanation of how and why
courts work the way they do. A third -- but admittedly less
important -- goal for the book is "to provide the necessary
basis for judging reform proposals" (p. x). Overall, I think
that the text succeeds in meeting these goals; descriptive and
explanatory analysis do (as promised in the introduction)
dominate the discussion, but some normative analysis is
introduced. Like most judicial process texts, Baum's book
concentrates exclusively on American courts. The instructor who
seeks a more comparative view will have to introduce it through
lectures and other readings.
The conceptual frame of the book is primarily behavioral. At the
outset, Baum introduces three general perspectives for
understanding court processes and outcomes: "the legal, the
environmental, and the personal" (p. 11). After explaining
the benefits and limits of each view, and noting that he will
employ all of these perspectives in the book, Baum concludes that
he "will give primary emphasis to the personal perspective,
and especially to the motives that underlie choices made by
people in the courts" (p. 17). I like the fact that the book
introduces different theoretical approaches and then explicitly
identifies the dominant approach of the text. In this way,
faculty who wish to introduce competing perspectives can present
alternative materials to supplement AMERICAN COURTS.
One consequence of the "personal" perspective is the
relative attention that the book gives to various topics. The
bulk of the book addresses legal actors and legal processes, with
much less attention to policy issues. The book is organized in a
fashion typical of most judicial process texts (and courses).
Chapters 1 and 2 present "An Overview of the Courts"
and "Court Organization." The next three chapters
discuss "Lawyers," "Selection of Judges," and
"Judges." Chapters 6-8 cover court processes,
"Trial Courts: Criminal Cases," "Trial Courts:
Civil Cases," and "Appellate Courts: The Process."
A final chapter addresses "Appellate Courts as Policy
Makers." The chapters on lawyers, judges, and court
processes are rich and comprehensive, drawing extensively on the
literature in the
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field and presenting clear description and synthetic analysis.
The book devotes much more attention to court process, however,
than to court outcomes. Only the last chapter discusses court
policies in any depth, with sections on "Appellate Court
Decisions as Policies" (on appellate court agendas,
ideological patterns, and judicial activism) and "The Impact
of Appellate Court Decisions" (covering the literature on
implementation and impact). The chapter on civil court processes
also includes excellent sections on the "litigation
explosion," and on Galanter's argument on "Why the
Haves Come out Ahead," in which Baum evaluates civil court
outcomes in areas of personal injury, debt collection, and
divorce. But many of the normative concerns that are raised
elsewhere in the book focus more on issues internal to the legal
system, rather than on the political and social impact of courts
on society. For example, in the section on criminal sentencing,
Baum explains the sentencing process and evaluates the question
of consistency among judges in sentencing, but does not discuss
trends on incarceration or the use of probation. Other evaluative
or critical sections focus on issues such as court unification,
competence of lawyers and judges, and the effectiveness of trial
decision-making.
A second consequence of the book's "personal"
perspective is that the book is filled with data about people --
about lawyers and judges whose personal and political conflicts
and interests show how courts work. For example, the chapter on
court organization opens with an anecdote about a 1990 bill to
split the Ninth Circuit Court of Appeals into two parts,
California, Arizona and Nevada in one, and the Northwestern
states in the other. Senator Gorton of Washington sponsored the
bill so that states in the Northwest could escape what he called
the domination "by California judges and by California
attitudes" while California Senator Pete Wilson opposed it
as "environmental gerrymandering" (p. 21). Baum
explains that "splitting the circuit would prevent
California judges from ruling on environmental cases in the
Northwest, and judges who came from the Northwest themselves
might be more sympathetic toward industries that were important
to the region's economy" (pp. 21-22). In another example,
the book uses the 1989 battle between Cincinnati Reds manager
Pete Rose and baseball commissioner A. Bartlett Giamatti to
illustrate forum-shopping in diversity jurisdiction. Rose sought
to have his case heard in Ohio state court before an elected
judge from Cincinnati, rather than before an unelected judge from
Columbus in federal district court.
These stories of personal and political conflict make for
fascinating reading. Thus, the text will appeal to undergraduates
because of its lively, well-illustrated, and occasionally
humorous presentation of court processes. These are real people
making law, not abstract institutions or arcane rules. Moreover,
the legal realist conception of law and courts will resonate with
today's cynical and media-saturated students. For instance, when
discussing lawyer competence, Baum cites Judge Bazelon's comment
that many criminal defense lawyers are "walking violations
of the Sixth Amendment" (p. 87). Or, in the section on entry
into the legal profession, Baum tells the story of a man arrested
for
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impersonating a criminal defense lawyer in court; the judge
supposedly remarked, "I should have suspected he wasn't a
lawyer. He was always so punctual and polite" (p. 59).
While descriptions of people and process abound in the book, Baum
presents fewer discussions of law and legal principles. Judges
are quoted for remarks such as these, or for their acid-tongued
disagreements with each other, but not for their statements of
law. Instructors who use this book may want to supplement it with
court decisions and other reading which analyzes law in terms of
legal reasoning, language, or ideology.
A real strength of Baum's book is its readability, clarity, and
tone. My students found it very interesting and informative to
read. One student explained to me that she sold all her other
books at the end of the term but kept AMERICAN COURTS: PROCESS
AND POLICY because "it was so basic. . . you never know when
you'll need to know these things about courts." The text
draws on political science and legal scholarship, as well as
numerous newspaper articles. The wealth of data in the book is
impressive especially for the specific cases, surveys, and
research studies used to illustrate and support the analysis.
Baum is also very even-handed when presenting controversial
topics, underscoring the complexity of research and the ways in
which values can influence the interpretation of results. This
kind of caution encourages students to think carefully about how
to use data to support their arguments and to be self-conscious
about their own and others' biases.
One small weakness of the book in my mind is its slight tilt
towards federal law and courts. Although the book has excellent
chapters on trial court processes (including state courts),
elsewhere the federal courts are presented as the more important
courts. For example, Baum states that "only a small
proportion of all court cases are tried in federal court because
the great majority of cases fit under no category of federal
jurisdiction and thus go to the state courts by default" (p.
24). Clearly the state courts are not just a residual category
for leftover federal cases! Also, the discussion of the
superiority of federal constitutional law over state
constitutional law (p. 3) could mislead students in their
understanding of judicial federalism in which state
constitutional law has sometimes provided for greater individual
rights than has federal constitutional law.
Finally, I have to say I think this book is somewhat overpriced.
This weakness is no fault of Baum's but his publisher really
needs to do some comparative price checking. AMERICAN COURTS:
PROCESS AND POLICY is one of the more expensive judicial process
texts on a per page basis of any of those listed in the current
series under review. This paperback text would be more
appropriately priced at $22 or $25 to put it line with other
similarly-sized books (rather than the $30 recommended price). It
would be too bad if cost deters faculty from using what is
otherwise an excellent judicial process text.