Vol. 5 (1995)

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

THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, rev. ed., by David Kairys (Editor). Pantheon Books, 1982, 1990. xii, 481 pp. Paper $19.95.

Reviewed by Howard Gillman, Department of Political Science, University of Southern California.

There is too little "law" and too little "politics" in many textbook discussions of legal politics and judicial decisionmaking. While it is common for texts to review the basic definitions of concepts such as torts and crimes, it is rare that one finds a systematic analysis of legal doctrine, at least not beyond a summary of conventional debates about familiar legal policies such as the exclusionary rule or the insanity defense. This may be because authors worry whether undergraduate audiences are prepared to master obscure rules and principles, or whether it is appropriate in social science courses to reproduce in miniature parts of the law school experience. But it is more likely that the disappearance of law has more to do with the wide acceptance among social scientists of realist-inspired assumptions about the indeterminacy of legal rules and the advantages of focusing attention instead on the behavior of players associated with the legal system.

Once the point about legal indeterminacy is established via a rehearsal of familiar arguments against the straw man of mechanical jurisprudence, it seems natural for attention to turn from the language of law to the question of how players in the legal system exercise the discretion that is available to them. Students learn that judicial decisions reflect partisan preferences and that appellate judges frequently engage in bargaining in order to maximize these preferences; bar associations work to protect the interests of members and their most important clients; legal talent, like most important and scarce resources, is unequally distributed; trial judges, prosecutors, and defense attorneys operate in concert to ensure that their working groups remain functional or efficient; civil justice is mostly a matter of negotiations that take place among parties who often possess unequal resources; politicians use judicial appointments as patronage or to promote partisan agendas; and so on. Not only is there very little law left in these conventional readings, but the political world depicted in these accounts is extraordinarily conventional. Judicial and legal politics is characterized by players who promote competing partisan and factional agendas, cope with scarce resources, and engage in imperfect interest group competition. If there is a normative dimension to the analysis it usually takes the form of a demonstration that the actual operation of the system does not conform to the ideal; but whatever political bite these observations might have is usually mitigated by an impression that these deviations are either inevitable, appropriately pragmatic, or correctable through conventional politics.

One of the best ways to open up a discussion about whether the content of law is this insignificant, or whether politics around the legal system is best understood as an acceptable species of pluralism, is to lay this portrait alongside the essays found in David Kairys' THE POLITICS OF LAW.

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Some of the contributors to this volume write as if their most important contribution is to demonstrate that law and judicial decisionmaking are not "separate from--and 'above'--politics, economics, culture, and the values or preferences of judges" (1). But if this is all the collection had to offer it would not distinguish itself from the rest of the pack. What distinguishes this wonderful volume is the effort to demonstrate systematic connections between legal doctrine and stable but mutable structures of illegitimate domination -- capital over labor, whites over non-whites, men over women, straights over gays and lesbians. While these authors have embraced the antiformalism of legal realism, they have not made the mistake of inferring that legal doctrine amounts to little more than empty rhetoric and is therefore unimportant in understanding the exercise of power, except insofar as players in the legal system feel compelled to exploit this rhetoric at their convenience as they pursue their extralegal partisan and factional agendas. These authors assume that, as the formal expression of an authoritative state ideology, law represents a set of choices about who's world view will be privileged and who's interests will be institutionalized, and they attempt to demonstrate that these choices are not best explained in the language of conventional politics or with reference to the dynamics of interest group competition. Moreover, they want to emphasize that politics is not just something you begin to see when you set law aside, but is also something that is embedded in legal doctrine and the language of judicial opinions in ways that raise important questions of social justice.

The volume is divided into three parts. Part One is made up of Elizabeth Mensch's economical and provocative overview of how "mainstream legal thought" has evolved over the past two hundred years in a series of successive (yet unsuccessful) efforts to resolve certain contradictions in liberal "rule of law" ideology, and Duncan Kennedy's famous discussion of how the culture and curriculum of law school socializes students to embrace (or at least resign themselves to) the presence of illegitimate hierarchies both in social relations and in their professional lives.

Part Two is an overview of selected legal topics organized under five headings. The longest section focuses on "Class, Race, and Sex" and includes: Karl E. Klare's thoughtful discussion of non-reductionist critical theory and postwar collective bargaining law; Rand E. Rosenblatt's examination of how legal ideology structured recent debates over whether welfare should be considered an entitlement; W. Haywood Burns' disappointingly brief review of the legal status of blacks in early America; Alan Freeman's vigorous critique of post-Brown antidiscrimination law "as reaffirming the myths that normalize inequality as the outcome of impersonal, neutral forces" (146); Nadine Taub and Elizabeth M. Schneider's very useful overview of how law historically "furthered male dominance by explicitly excluding women from the public sphere and by refusing to regulate the domestic sphere" (151); Rhonda Copelon's careful reading of the homophobic language found in BOWERS and her critique of a

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liberal conception of privacy; and Kimberle Crenshaw's explanation of how the "single- axis" framework of current antidiscrimination law is incapable of accommodating the distinctive experiences of black women.

Under the section on "The Constitution" Mark Tushnet reviews the antiprogressive features of the Constitution and the conservative implications of judicial review; David Kairys discusses the role of labor activism and mass politics in the development of modern free speech doctrine and the inability of constitutional ideology alone to foster participatory democracy; and Jules Lobel attempts to show how the transformation of constitutional doctrine relating to foreign affairs and warmaking (particularly the shift to an imperial presidency) was intimately linked to the emergence of the United States as a global, imperial power. In the section on "Crime" Elliott Currie discusses the breakdown of the liberal model of criminology in favor of the conservative claim that crime has more to do with leniency than social justice, and David Rudovsky criticizes the Supreme Court for inappropriately accommodating police interests in its recent Fourth and Fifth Amendment decisions. The section on "Personal Injury" includes Richard Abel's examination and critique of the transformation of tort law in light of industrialization and postindustrialization, Regina Austin and Sharon Dietrich's suggestion that torts such as "the intentional infliction of emotional distress" be reconfigured for provide some relief or hope to low-status workers suffering in insecure and dangerous working conditions, and Morton J. Horwitz's review of how the issue of "causation" in tort law began to give way to more overt policy considerations regarding the efficient distribution of insurable risks. In the section on "Business" Jay M. Feinman and Peter Gabel contrast the "socioeconomic reality" with the "ideological imagery" of eighteenth-, nineteenth-, and twentieth- century contract law, and William H. Simon reviews the central features of contemporary corporation doctrine and explores why we started getting out of the habit of talking about corporations in political terms. In Part Three the essays shift from critical readings of substantive lines of doctrine in liberal jurisprudence and address more generally the question of what it means to adopt a critical or progressive approach to the law. Robert W. Gordon defends critical legal studies as a liberatory political project; he believes that by exposing the historical contingency of legal doctrine and the political choices that lie behind law's categories, critical scholarship might help people "break out of their accustomed ways of responding to domination" (424). Victor Rabinowitz follows the late E. P. Thompson in suggesting that it is useful for progressives to work to compel the state to keep the promises it makes in its legitimating ideology, but at the same time he thinks that critical scholars should develop a modern Marxist theory of law as a meaningful alternative to liberal legalism. Mark Kelman argues that it is essential for progressives to refute conservatives' complacent portrait of freedom under capitalism and common law. Frances Olsen urges scholars to assault "a complex set of

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dualisms" in legal ideology (such as rational v. irrational, reason v. emotion, principled v. personalized) on the grounds that these distinctions are gendered to the structural disadvantage of women--so much so that "law is male" in the sense that it (quoting Catharine MacKinnon) "rules in a male way" (461). Finally, Cornel West points out how "the difficult task of progressive legal practitioners is to link their defensive work within the legal system to possible social motion and movements that attempt to fundamentally transform American society" (468).

It should be clear from these brief summaries that this volume is comprehensive in scope. It is hard to imagine that an instructor would fail to find at least a number of essays that could be usefully incorporated into any undergraduate or graduate course on law and society or judicial politics. Needless to say, one need not share the authors' critical sensibilities in order to find something of value in these richly historical essays. Taub and Schneider's discussion of women's historical experiences with the law provides essential background for an examination of contemporary issues, and Mensch's overview of jurisprudential schools of thought is informative even if one does not accept that realism fatally undermined the distinction between legislation and adjudication. In how many other texts can students learn something specific and important about the post-New Deal regime of labor law, the modern law of corporations, or the transformation of constitutional law relating to foreign affairs?

With this collection, students not only have a chance to learn unfamiliar topics but also to think about familiar topics in different ways. In a political climate where the key question facing antidiscrimination law is whether it protects non-whites too much, it is refreshing to hear the case being made that the law's principal effect is to perpetuate the injustices suffered by historically disadvantaged groups. For students who have been primed to wonder whether our so-called culture of victimization has led to a litigation explosion, it may be more useful to have them tear into the question of whether Abel is right when he writes that tort law "reflects the dominant traits of late- twentieth-century America: capitalist relations of production, individualism, extreme division of labor, and commodification" (348). Rather than focus on the question of whether the Constitution protects a right of privacy, students might be invited to respond to Copelon's charge that "the liberal notion of privacy reinforces the hierarchy embodied in heterosexism" (188). Some of these essays also provide convenient jumping off point for well-rehearsed debates on topics such as crime control, the rights of the accused, welfare entitlements, and gender discrimination. Brave instructors can also invite students to use Kennedy's discussion of law school as the basis for evaluating their current classroom experiences, as well as their more mainstream texts.

I have used this collection successfully in lower division lecture courses and in graduate seminars. It should be obvious that undergraduates often have a

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very difficult time with many of these essays, but these difficulties can be overcome if students are provided in advance with a theoretical and historical orientation to the material, and if the arguments in the essays are carefully reviewed. With this collection graduate students can be quickly oriented to critical legal scholarship and can be encouraged to think more broadly about whether it is appropriate to view law as a form of ideology, whether law is better understood as reflecting social life or constituting it, whether critical theorists are targeting an adequate conception of liberalism, whether law's false formalism requires it to rely on the kinds of general categories that make it impossible to accommodate the distinctive experiences of discrimination discussed by Crenshaw, or whether critical legal scholarship represents a meaningful political project.

Most of these essays were written approximately six years ago, and some are closer to fourteen years old. While the collection holds up remarkably well, it would be surprising if it did not begin to show its age. The existing discussions of mainstream legal thought and progressive legal theory do not take into account the rise of pragmatism in the academy, in both its conservative and social democratic manifestations. The basic analysis of entitlements is still relevant but it seems urgent that the discussion address more specifically the recent intensification of the debate over welfare. The discussion of antidiscrimination law should take into account post-1989 congressional efforts to "restore" civil rights as well as the Court's growing hostility to affirmative action. Taub and Schneider's discussion ends at WEBSTER; today a more satisfactory narrative would have to incorporate CASEY. Since this volume went to press the issue of voting rights has become more conspicuous and progressive work on redistricting deserves a place in this sort of collection. In other words, one can only hope for another edition. Still, even in its present form the collection is vital and relevant, and there are no competing texts that match its scope and theoretical sensibilities.

In his introduction Kairys suggests that the complacency about the politics of law that he and he collaborators want to confront is a product of the false consciousness produced by legal formalism. But I think it is probably closer to the mark to say that critical analysis of legal and judicial politics is stifled more by the tranquillity produced by typical social science accounts of the behavior of players in the legal system. There is only so much that can be said about these topics when one limits inquiry to behavioral observations to the exclusion of an interrogation of the structures of meaning within which social practices take shape. Kairys and company may or may not be right about the structural injustices associated with liberal legalism and the inability to correct those injustices within a liberal paradigm; but any successful defense against these thoughtful and informative essays would require a student to learn a lot about the vision of social life embodied in law, to think about the significance of legal doctrine for both judicial behavior and the lives of ordinary

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References:

BOWERS V. HARDWICK 478 U.S. 186 (1986)

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY, 505 U.S. _____ (1992)

WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 402 U.S. 490 (1989)