Vol. 5 No. 2 (February, 1995) pp. 47-49

SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor

BEFORE THE LAW: AN INTRODUCTION TO THE LEGAL PROCESS, 5th Edition by John J. Bonsignore, Ethan Katsh, Peter d'Errico, Ronald M. Pipkin, Stephen Arons, and Janet Rifkin (Editors). Boston: Houghton Mifflin Co., 1994. 574 pp. Paper $34.00.

Reviewed by John Brigham, Department of Political Science, University of Massachusetts, Amherst.

BEFORE THE LAW emerges from a Legal Studies tradition which brought law back into the undergraduate liberal arts curriculum. Law and Society, a related academic movement, brings social science approaches to law and consequently incorporates social considerations, like racialized practices in administering the death penalty. For Law and Society work, the methods and pretensions of social science partially distinguish its approach from that of the professionals. Legal Studies relies on the undergraduate environment and a reaction against teaching legal doctrine to distinguish itself from professional legal education. BEFORE THE LAW tries to treat law as it might have been treated before it was professionalized and snatched from the liberal arts. This appears easier than it turns out to be. BEFORE THE LAW allows us to see why it is so hard to separate law from the profession. In this capacity, it is a fine text/reader.

Now in the fifth edition, this text had its genesis in the late 1960s. The first edition was published in 1974. I have great respect for work that goes into multiple editions. This collection is packed and it has benefited from continuous revision. It contains more than enough material for a semester "legal studies" course. I would probably use it myself but for my training in the institutional dimensions of process which has resulted in a predisposition to teach things like the hierarchies of courts in the federal system and the difference between criminal and civil law. The institutional basics are not a focus of this book. Luckily I have never faced this adoption issue because I share a campus with its authors who teach large and successful classes using the text.

The distinctive framework of BEFORE THE LAW is of the greatest interest to me because it allows me to raise a few questions about ways Americans see law. The authors, like so many in power today, have moved from the 60s into middle age. Yet, unlike others (the President, the Speaker of the House) they have not quite become respectable. The authors have constructed the book as outsiders. The book teaches that law is mysterious, complicated and difficult to penetrate, in short, that it is run by others. I think their view is a remarkably common one in law schools, especially very good law schools, where methods from outside the law, from interpretation to economics, have been incorporated. The authors consider this obfuscation problematic and from its signature parable to the critical voice throughout, the point is brought home. I think that the message in BEFORE THE LAW, as well as in professional practice, may be making the critical framework more acceptable than it once was.

The new edition looks a lot like its predecessor. In muted tones, the cover carries a portrait from the COURTHOUSES OF THE COMMONWEALTH, the handsome collection of photo essays on the

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Massachusetts courts by Keller and Peet. BEFORE THE LAW is divided into six key parts (Theory and Practice, Police, Legal Profession and Legal System, Juries and Community Participation, Conflict Resolution, and Legal Theory) with 3-8 chapters in each part. Each chapter contains 3-5 readings. There is minimal writing by the authors. Mostly, this writing is confined to short introductory paragraphs, more extensive notes, questions and comments at the end. This material is of very high quality and here Legal Studies draws from its big brother in the law schools to employ illuminating cases and wrap them in provocative questions. For instance, following the Foreword begins, "Before the law stands a doorkeeper on guard. To this doorkeeper there comes a man from the country...." The notes discuss the parable as "an old and odd form of education" (xix) traceable to the old testaments of most religions. (Here in the notes, the refinements that this book has received over the years is evident.)

This reviewer is drawn to speculate on the relationship between the title of the book, which comes from this passage in Franz Kafka's THE TRIAL and the handsome architecture of the 19th century courtroom on the cover because the relationship between the two defines the framework of the book. Kafka presented the law as something difficult to know because authorities wanted it to be that way. Kafka's man from the country has little luck gaining admittance to the law even though he thinks that the Law "...should be accessible to every man and at all times" (xviii). The reader is positioned outside like "the man from the country". Yet, as the cover suggests, the vernacular American courtroom is something we visit quite often, at least culturally if not in person. The contradiction is important.

This image of citizen or student outsider is not my image of the law. When I first learned of this "continental" view in the 1960s it reflected the alienation of my generation. Although I didn't know enough to understand its implications, I accepted it at the time. Foreignness as an expression of alienation had more appeal then. Now, I think this perspective is off the mark and that the more accurate picture in America is of access and vernacular legal penetration that gives law its power. Although getting to the trial is still pretty foreign, most of us are participants in the law and now know many of its mysteries. With Christine Harrington I have argued that in its ordinariness and in its penetration into the fabric of our lives, the law exercises greater control than the continental law of Kafka's oppressive doorways.

I feel free to indulge my concern about the frame because the text provides the material for this kind of analysis. We see the law in this book not in its formal, black letter manifestations, but in the fascination with its ambiguity. With these materials we can investigate its power. At one level, the book is full of material that attests to our capacity to know the law. We are invited to learn how lawyers reason and how judges think. We are introduced to law in much the same way that lawyers are introduced to it. This is a Legal Realist text in the modern manifestation that movement has taken. I believe the point of the book, though it is not explicitly stated, is a grudging respect for law's institutions and practices which is manifested in the readiness to enter the fray, to ask lots of questions. This stuff reflects the diverse

Page 49 follows: authors' and in this respect the book benefits greatly from the many scholars who came together in its creation.

The book contains many of the classic readings in the legal studies tradition (Llewellyn from THE BRAMBLE BUSH, Orwell on Shooting an Elephant, de Tocqueville on the legal profession, Jerome Frank on fights and truth, Martin Luther King, Jr. from the Birmingham jail, and Robert Cover on Violence) and some cases that have been widely used to elaborate this tradition (FURMAN, EEOC V. SEARS ROEBUCK, NOW V. OPERATION RESCUE). But the book is more than simply a collection of the classics. There are a number of selections here not adequately covered in conventional legal studies readers, including excellent material on legislation and administrative lawmaking, tax and other commercial questions as well as useful selections by Duncan Kennedy, Patricia Williams, Marc Galanter and V.I. Lenin.

In the language of the recent past, the book has a voice. It is a progressive collection. The writers help us see that law is not equally accessible to everyone; that law serves entrenched power quite effectively; and that people as jurors are an important democratic element of the system. There are sections on feminism and conflict resolution. There is extensive treatment of the jury and special sections on the relationship between "law, status, wealth and power." The success of the book supports the proposition that this voice rings true to many scholars in the field.

The readings, the organization and the editorial material all establish the value of this veteran text. To me its greatest strength is that it is provocative. The authors say that they want it to be but, frankly, when they say this it does not ring true. It's when you begin to work with the materials that their richness emerges. Here is where legal meaning and legal ambiguity come through and here in the names (Faludi, Felstiner, Crenshaw, Turow, Noonan) and the issues (race, sex, abortion, search and seizure, jury nullification, conflict resolution) one feels the vitality of legal studies.

Reference:

EEOC V. SEARS ROEBUCK 628 F. Sup. 1264 (1986)

FURMAN V. GEORGIA 408 U.S. 238 (1972)

Franz Kafka, THE TRIAL (New York: Alfred A. Knopf, 1937)

Karl N. Llewellyn, THE BRAMBLE BUSH (New York: Oceana, 1951)

NOW V. OPERATION RESCUE 726 F. Sup. 1483 (1989)

George Peet and Gabrielle Keller, COURTHOUSES OF THE COMMONWEALTH (Amherst: University of Massachusetts Press, 1984).

Copyright 1995