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
Page 224 follows:
"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