Vol. 5 No. 2 (February, 1995) pp. 50-52
SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor
INTRODUCTION TO LAW & THE LEGAL SYSTEM (5th) by Harold J.
Grilliot and Frank A. Schubert. Boston: Houghton Mifflin, 1992.
648 pp. Cloth $44.00.
Reviewed by John Culver, Department of Political Science,
California Polytechnic State University.
The first three editions of this text were written by the late
Harold J. Grilliot. Following his death in the mid-1980s, Frank
Schubert of Northeastern University's College of Criminal Justice
assumed responsibility for the subsequent editions, including a
new one which will be available in early 1996.
This is a comprehensive text written from a legal and
institutional perspective. In the preface, Schubert says that the
book is designed to allow students to understand the
"strengths and weaknesses of law" and that readers
"can decide for themselves whether the lawmaking
institutions -- the legislative, executive, judicial and
administrative agencies -- are dealing adequately with social and
business problems" (p. xxi). These goals are to be fulfilled
as students analyze the cases included in each chapter.
The strength of the text lies with these cases for they
illustrate key points made by the author and demonstrate how
legal concepts are operationalized in judicial decisions. Unlike
some case-oriented texts that have students jump from one lengthy
case decision to another without any narrative explanation,
Schubert has carefully abridged them and provided the necessary
linkage on their importance; few of the cases go beyond three
pages. The cases, which are varied and well chosen, are then
followed by several questions designed to encourage students to
think about the application of the law and the consequences of
the decisions. Some of the questions turn on narrow points of the
law. For example, in discussing civil procedure, Schubert has
several paragraphs on "Notifying the Defendant,"
followed by DORSEY v. GREGG, a decision handed down by the court
of appeals in Oregon in 1988. One of the three questions at the
end of the case asks, "Why did the Oregon Court of Appeals
rule that the alternative service of process was invalid?"
(p. 107). Other case questions lead directly to larger and more
controversial issues. Thus, after a page on "Other Pretrial
Procedures," a 1987 courts of appeals decision from South
Carolina is included. One of the case questions asks, "The
media often depicts courtroom lawyers using surprise witnesses
and evidence. In reality, thorough discovery usually destroys any
possibility of surprise. Is this good or bad? Exhaustive
discovery is very expensive. One party will frequently be able to
afford more discovery than his or her opponent. Does this change
your mind about the value of discovery?" (p. 117).
One other example shows the diversity of cases in the text. In
the chapter on Judicial Decision Making, Schubert addresses
precedent and the absence of precedent in one subsection. The
case he employs to illustrate how unique situations can be
translated into new laws is STRUNK v. STRUNK, a 1969 decision
handed down by the court of appeals in Kentucky. This is an
intriguing case involving the legality of removing a kidney from
a mentally incompetent man for transplant into his brother who is
suffering from a fatal kidney disease. A divided court found this
acceptable. In one of the questions
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posed about the decision, Schubert asks, "Does the decision
make mental institutions a storehouse of human bodies available
for distribution to the more productive members of society
whenever the state decides that someone's need outweighs the
danger to the incompetent?" (p. 191). This is the stuff from
which stimulating class discussions can be had.
The first chapter of most any textbook is critical for it is here
where students are initially excited or let down by what follows.
One of the advantages in teaching about law and the legal system
is that the vast majority of students begin with an interest in
the subject matter by virtue of their own experiences, career
ambitions, popular movies and novels on things legal, and news
accounts of controversies in the courts. Schubert covers
considerable conceptual ground in his introductory chapter with
its focus on ways of thinking about law, different types of law,
the objectives of law, and the sources of law. This chapter also
shows students how to brief cases. Diligent students will realize
that, unlike their preconceptions about law and justice, there is
a theoretical domain that has important signposts for future
travel in this material. Virtually all of the chapters that
follow can be built on the foundation laid in this chapter.
The next six chapters cover material found in the ten or so
mainstay texts associated with Legal Process-Law and Society
courses: the Judicial System, Civil Procedure, Judicial Decision
Making, and Criminal Law and Procedure. However, chapters on
Limitations in Seeking Relief ( Ch. IV) and Judicial Remedies
(Ch.. VI) distinguish this text from others. The subsequent seven
chapters are much more specialized, covering such topics as
Contracts, Property, Torts, Administrative Law, Employment and
Discrimination, and Antitrust. The concluding chapter is devoted
to alternative dispute resolution. The Antitrust chapter will be
replaced in the forthcoming sixth edition with one on Family Law.
This should be a welcome revision.
The text is too legalistic for my undergraduate course in
Judicial Process. There is nothing wrong with the legalistic
emphasis. Indeed, were I to stress this, rather than a political
orientation, this book would be fine. But, I wish Frank Schubert
would weave some of what Glendon Schubert has written about the
law, the judiciary, judicial behavior, and influences on judicial
decision making into these chapters. Topics common to many texts
such as the politics of judicial appointments, the politics of
the legal profession, jury behavior, and the dimensions of
judicial policymaking are not discussed in any depth. This is a
mild criticism but a significant one for me when it comes to
choosing from competing texts. At my institution, our Business
Department offers a Government Regulation of Business course
which is taught from a legalistic perspective. This text would
work well in that course or similar ones such as the Legal
Environment of Business or Introduction to Law. Social science
faculty who are grounded in a case approach will be comfortable
with this text.
Earlier I said this was a comprehensive and complete text. It is
also a serious one that demonstrates sound scholarship both in
reference to the substantive issues and the
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level of writing. Schubert, a law school graduate, moves from one
subtopic to another easily, with the chapter cases illustrating
important points of law. A number of charts serve as welcome
visuals to show the stages in the processing of criminal and
civil cases, variations in judicial remedies, and, among others,
the organization of federal agencies. While there are no
summaries at the end of each chapter, students are presented with
a list of important terms and a number of situations from which
Schubert asks whether a court's decision was correct, the
persuasiveness of a dissenting opinion, and whether a collateral
issue would be covered by the court's decision. The book is quite
complete. In addition to its fourteen chapters, there is a
glossary of legal terms, chapter boxes on law in an international
context, and suggested readings following each of the numerous
abridged case decisions. A Study Guide and an Instructor's
Resource Manual (with a test bank) are also available.
The fact that a new edition of INTRODUCTION TO LAW & THE
LEGAL SYSTEM will be out soon speaks well of its popularity with
faculty and students. Faculty can appreciate its rigor and
students should emerge with new insights into legal reasoning.
While all textbooks are overpriced, and the fifth edition is
priced at the high end, this text is still a value given the
breadth and depth of its contents.
Copyright 1995