Vol. 5 No. 9 (September, 1995) pp. 223-224

POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY'S END by Gary Minda. New York: New York University Press, 1995. 350 pp. Cloth $40.00.

Reviewed by Lief Carter, Department of Political Science, The Colorado College.

This highly descriptive book, little more than a selective (and extremely redundant) review of some curiously selected recent writers, will have very limited utility for political scientists. It may serve the purpose of introducing a cohort of aging and atheoretical law professors -- I imagine specialists in such subjects as Federal income taxation -- to the existence and significance of developments in academic legal theory in the last twenty years. But it is too simplistic, too selective, too reductive, and substantively too seriously flawed reliably to add to the knowledge of attentive students of contemporary political theory in public law.

This book could have been an encyclopedic mapping of the postmodern terrain. To serve that function well, the book would contain a bibliography and footnotes at page bottoms. Minda, a law professor at Brooklyn Law School, has presumably been socialized into using the exhaustive law review genre of footnoting. This practice is itself incompatible with postmodern thought, since the practice presumes that the author must prove she got each point authoritatively "right." But by placing hundreds of such notes as endnotes he defeats his own purpose.

To succeed as an encyclopedic map, the author would also have to avoid such an arbitrary selection of writers, or at least to select systematically the most recent significant writers. Yet here we find Carol Gilligan but no Carrie Menkel-Meadow. Milner Ball is barely mentioned, and only in connection with Critical Race Theory, which is not his main stage. Robert Ellickson and Mary Ann Glendon are missing in action. Minda might alternatively have taken a critical stance within, or a distinctive position toward, postmodern developments. Unfortunately, his position merely insists that postmodernism is important and here to stay.

As I've already hinted, the primary problem with this book is the author's choice of analytical categories and methods. The book is not primarily about postmodern thought after all. Instead, he juxtaposes Langdellian determinism against five recent schools of thought -- law and economics, critical legal studies, feminist theory, law and literature, and critical race theory. Minda calls these five schools "postmodern" because they share a new "skeptical aesthetic mood" (p. 2). I do not know what he means by this, but I cannot myself avoid placing law and economics in a positivistic place that differs considerably from law and literary studies. In any event, Minda confuses me by his concluding section -- less than a quarter of the book -- which rightly suggests that postmodernism challenges each of these five scholarly fields.

Minda's preface accurately describes the book as a "modest effort to carry on" a jurisprudential tradition, and as an effort "to try and capture the general jurisprudential climate" of our time. But from the postmodern perspective these two efforts are not compatible. If postmodernism radically breaks from the past, one should not try to

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"carry on." In any event, having made the choice to carry on, Minda should not have dismissed sociological jurisprudence and legal realism in about ten pages. John Dewey, Edward Levi, and Albert Sacks do not appear in the index. Cardozo gets less attention than "Leave It to Beaver" and Ricky Nelson. Frankfurter and Arnold get no attention at all.

Space does not permit me to point out all of the substantive particulars with which I happen, as a student of the subject, to disagree. The book will be a positive experience for beginners who need to learn that "Some law and economics scholars took issue with liberal scholars who argued that objective decision making standards can be inferred from an interpretive community or from some enduring theory of legal rights" (p. 191), or that "Deconstruction is thus a form of criticism that attempts to defeat foundational claims of conceptual knowledge" (p. 118), or that "Jules Coleman argued that 'transaction costs are a black box that needs to be filled in"' (p. 104). But the descriptive style of this book, coupled with its outdatedness (We get only the Stanley Fish of "Is There a Text in this Class?"), achieves the very opposite of a postmodern performance. Minda does understand the central role of performance practices in postmodern thought. But that very truth should direct political theorists and law professors alike to pay greater attention to law in action, to realize that academics have no special access to any truths that lie beyond the constructs of our own particular academic tribal languages. Minda would thus have served us better by writing about Gerry Spence than about this (partial) list of the usual academic suspects.


Copyright 1995