Vol. 10 No. 2 (February 2000) pp. 103-105

KEETON ON JUDGING IN THE AMERICAN LEGAL SYSTEM by Robert E. Keeton. Charlottesville: LEXIS Law Publishing, 1999. 743 pp.

Reviewed by Laura Langer, Department of Political Science, University of Arizona.

The goals of KEETON ON JUDGING IN THE AMERICAN LEGAL SYSTEM are simple: provide guidance to judges, lawyers, and students of law, about difficult decisions made by state and federal judges and offer a valuable resource for those interested in the American legal system. The approach Keeton takes to achieve these goals is one that pays careful attention to detail, and he provides articulate and informative stories to illustrate the points. Keeton provides a wealth of information in this comprehensive book about law and judges in the American legal system at both the state and federal level. And, he suggests a variety of reasons for judicial decisions across a range of issues adjudicated in state and federal courts. His attention to state court systems, judges, and rules, make this book even more valuable to scholars, teachers, and students.

Although KEETON ON JUDGING IN THE AMERICAN LEGAL SYSTEM has many valuable insights, there are two benefits in particular that make reading Keeton's book well worth the time. First, Keeton presents an "insiders" look at the American legal system that serves as a refreshing and enlightening introduction to the application and study of law. His perspective offers helpful and seemingly necessary advice and commentary for law students, attorneys, professors of law, and other members of the scholarly community. Second Keeton's use of subtlety and clarification demonstrate successfully the importance and power of language, premises, and legal tests. For example, his discussion of bright-line and evaluative tests emphasizes the distinction between objective and subjective standards and the role these tests play in legal reasoning. In this way, the book helps the reader understand how the applied test's objectivity can determine the amount of discretion afforded to a judge when he or she makes a decision. Ultimately, the standard used can influence the outcome of the dispute.

The book contains twenty-one chapters that are organized into three parts with each section covering a wide array of topics. The organization of each chapter follows an outline form that parallels the table of contents. A substantial part of the text is presented in easy to understand, comprehensible sections. In addressing the three main topics (or one might say audiences), Keeton provides a well written, balanced, and thorough, treatment of important matters both at the federal and state level. In the first part of the book, Keeton offers some of the basic ideas underlying good judging as well as suggestions on how participants of the legal system can both encourage and demand good judging. Using eloquent examples, Keeton offers a variety of legal strategies that turn not only on written presentation but the ability to tap

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into the mind of the judges. He emphasizes the need to present judges with logical reasoning that would enable the judge to decide the case in a manner consistent both with the lawyer's preference and consistent with the logic of the law. Part One also raises some important questions about the legal forces influencing judges, the nature of the law, and the tests used to resolve disputes. In this part of the book, Keeton instructs the reader on the law making abilities, necessities, and tendencies of judges.

The second part of the book addresses an equally inexhaustible range of issues that pertain mostly to the functions of the American legal system. In this section of the book, Keeton discusses the role of judges and other members of the legal profession within the context of federalism, separation of powers, and checks and balances. He offers many insights about the changing and complex milieu within which judges make decisions and pursue justice. For example, Keeton contends that the allocation of jurisdiction to state court judges has expanded increasingly in part because of the dependence on state courts to resolve many of the disputes in the United States and the United States Supreme Court's devolution of authority to the states in recent decisions. (e.g., UNITED STATES V. LOPEZ). An underlying theme of part two of Keeton's book is the independence of the third branch of government and the responsibility and commitment attached to such autonomy. Keeton raises a very serious concern that has alarmed democratic theorists since our nation's inception - does independence create too many opportunities for a concentration of power in one branch of government, and if so, how has the American legal system maintained a balance among the three branches of government? The last chapter in Part Two most directly tackles this question with a discussion of the responsibility, power, and role of juries in the American legal system. A fair legal process and rules of substantive law, Keeton suggests, will allow the American legal system to achieve justice most often and effectively. Recognition of limitations on federal and state powers will also maintain a balance among the three branches of government and advance justice. Keeton concludes Part Two of his book with a summary of changes (e.g., legal education, professional roles, application of common law, jury system) that continue to create new relationships among individuals, members of the legal profession, and the law, as well as alter the context within which judges decide and lawyers litigate cases. These new (or modified) relationships that have resulted from a host of changes in the American legal system, require more particular attention to context than in the past. In many ways, Keeton suggests that the responsibility for good judging does not solely rest with judges, but it is dependent upon all participants of the judicial system, such as the public, other governmental actors, and especially lawyers.

KEETON ON JUDGING IN THE AMERICAN LEGAL SYSTEM targets members of the legal profession and law students as the primary audience in Part Three of the book. Although informative, much of the discussion utilizes legal terminology and technical language that makes this section more difficult to read than the first two sections. The first few chapters in this section focus on the authority of judges as lawmakers and the limits to that authority. Keeton offers

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numerous examples that demonstrate both the awesome powers of judges and the limits of judicial authority (e.g., interpretation of legislation, constitutional review of legislation). Next, Keeton places judges in the context of the jury system, illustrating the important interactions between judges and juries. He describes the demands placed on judges and the legal profession to find juries who will serve as impartial followers of the law and judgers of fact. One of the most attractive features of part three of Keeton's book is the provision and description of legal forms used in the legal process. In this way, section three of the book appeals to a much broader audience. Not only are the forms (e.g., verdict form, jury questionnaire) informative, but they also are illustrative of the level of technicality and precision that contributes to the functioning of our legal system. Additionally, these forms are great pedagogical devises for undergraduate and graduate teaching.

Overall, Judge Keeton's ideas are well organized and he offers an excellent resource for academics, students, law professors, and attorneys who all share a common interest in the law and its application in society. His book is laden with useful examples to illustrate his points and demonstrate the way lawyers and judges use the law and legal reasoning to cajole judges into choosing the decisions they make. Several references to Supreme Court decisions and hypothetical cases are presented throughout the text. Despite the book's appeal to a broader audience, however, I believe its usefulness for undergraduate or graduate students in political science is limited. If there is any shortcoming to KEETON ON JUDGING IN THE AMERICAN LEGAL SYSTEM it is that it provides too much information. Although careful attention to detail and description is applauded, at times the distinctions were too subtle and frequent that Keeton's points became lost or the amount of information became overwhelming. That being said, KEETON ON JUDGING IN THE AMERICAN LEGAL SYSTEM is an important resource and offers valuable insights. In short, the strengths of this book outweigh the shortcomings. As a general introduction and a resource, it is an extremely useful book.