Vol. 5 No. 2 (February, 1995) pp. 56-58

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

LAW AND POLITICS IN THE UNITED STATES, Second Edition, by Herbert Jacob. New York: Harper Collins Publishers, 1995. Paper, $22

Reviewed by Susan Lawrence, Rutgers University

My favorite public law qualifying exam question -- and I was the recipient rather than the author of this one -- is: "Law is politics." V. Lenin. Discuss from the perspective of American government.

For me, it is this project that defines the field of public law. Of course, the catch is that neither our concept "law" nor our concept "politics" has settled boundaries -- and indeed, it is the placement of these definitional boundaries that has itself become a current topic of dispute within some quarters of the discipline.

As Professor Jacob's title, LAW AND POLITICS IN THE UNITED STATES, suggests, his text addresses this inquiry. LAW AND POLITICS presents a systematic description of the American legal system and its points of linkage with the political system. The text begins with two chapters devoted to defining law and the legal system, well summarized early on by the following passage:

... law is at the center of all politics. Not only does law affect how the political game is played, but also is the goal of most political activity. People use politics to change or maintain a law, affect its implementation, and influence its interpretation by the courts. They focus on law because law is an instrument of social control; it is a tool for compelling people to obey the norms of those dominant in the political arena." (p. 5)

It is this view of law that leads to one of the primary strengths of this basic text: its broad definition of the "legal system," one that encompasses much before and beyond judges and courts. It reflects Jacob's realist view that law's power lies in its invocation rather than in its physical existence in code books and reporters.

Jacob's definition of politics remains implicit, revealed largely in the specific connections between politics and the legal system that he describes. Jacob concludes LAW AND POLITICS by noting that:

"the link between law and the political arena does not simply consist of the ways judges and other officials reach their offices or the consequences of judicial decisions on the other officials. At its very heart, the legal system is linked to the political arena because the political arena selects the values that become embedded in substantive and procedural law." (p. 303)

However, in the preceding text, he text focuses largely on describing the institutions and actors in the legal system, noting connections to the other formal political institutions. He employs a definition of politics that centers on formal institutions and partisan contests. This leaves individual instructors with plenty of room to present their own definition of politics and their own analysis of the role of the legal system in the deployment of public and private power

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through the authoritative allocation of values.

LAW AND POLITICS presents a through, balanced, taxonomic, introductory-level description of the American legal system. Three concentric circles provide the heuristic device for Jacob's analysis of the actors and institutions of the legal system. The "outer ring" includes civil and criminal disputants and the "middle ring" includes the police, lawyers, and interest groups. In a series of well-organized chapters, it presents a functional analysis of the role of each of these sets of actors in the administration of law. The text then turns to the inner ring, or "core institutions," of the legal system, with chapters on trial courts, appellate courts, the Supreme Court, legislatures, and administrative agencies. The tone is neutral and descriptive. While many instructors will find this to be quite appropriate in an introductory level text, others might find that it gives them little to "argue against" in class presentations. At times, I worry that the tone is so dispassionate that few students will be challenged to question and explore the implications of the status quo. For example, in a number of places Jacob describes the advantages that repeat-players and powerful, privileged groups have in the legal system; however, the objective, matter-of-fact presentation allows the reader to absorb this information without being startled by the discongruence between this description of practice and the rhetorical ideals of equal justice that are used to legitimate the legal system.

The text is peppered with many current private law examples that should serve to make the material interesting and concrete for students, although their relevance to the text's law and politics theme is not always made explicit. Not surprisingly, given Jacob's own research interests, divorce is a frequently used example of the civil legal process. While the big Supreme Court impact cases, such as BROWN and ROE, are discussed in the chapter on the Supreme Court, they do not dominate the text. The text calls upon instructors, if they are so inclined, to place this material in a historical context for students.

While many texts in the field can be faulted for placing too much emphasis on judges and courts in their depiction of the legal system, LAW AND POLITICS is most definitely not a book about judges and courts and, hence, could be used effectively in conjunction with the former. There is very little material in LAW AND POLITICS on court structure, organization and hierarchy, or procedure. There is scant discussion of the determinates of judicial decision-making once cases reach the courts, either from the behavioral perspective or from the inter-governmental relations perspective. For example, the role of judicial values in influencing decision-making is only noted in passing during a discussion of the Supreme Court appointment process. The variety of court-checking strategies available to legislatures, and historical examples of their use, receive little attention.

LAW AND POLITICS IN THE UNITED STATES provides an attractive, readable, well-organized, introduction to the legal system based on a realist definition of law that recognizes no firm distinction between law and politics. Instructors may

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want to consider adopting it in introductory level public law courses along with texts that focus on the courts per se. Its discussion of legislatures and administrative agencies as part of the legal system makes it a candidate for adoption in introductory American government courses as well.