MAY IT PLEASE THE COURT: JUDICIAL PROCESSES AND POLITICS IN AMERICA by Brian L. Porto. New York: Longman, 2001. 308 pp. Paper $42.00. ISBN: 0-321-03683-2.
Reviewed by John Francis Ryan, Department of Political Science, West Virginia University.
In the midst of many textbooks available on the market, Brian Porto's
MAY IT PLEASE THE COURT seeks to distinguish itself in two major ways.
First, Porto argues that many previous textbooks are prone to 1) overemphasizing
the political in law and politics, and 2) not giving enough appreciation
for the "human drama" found in both criminal and civil litigation. As a
result, previous textbooks "portray an incomplete, inaccurate, and rather
dull image of the judicial process" (p. xi).
Reflecting this comparative neglect of the legal aspect of law and
politics, Porto arranges his text around a central theme: "the judicial
process operates at the intersection of law and politics" (p. xi). As the
author walks a fine line between strictly legal and political views of
the judicial process, students using this text should thus come away with
an appreciation of how both law and politics influence the judicial process.
Relying upon his various experiences (law student and judicial clerk)
and professional hats (practicing attorney, political scientist), Porto
organizes his textbook in order to stress both the legal and political
found in the American legal system. Chapter One begins the book with a
primer of law and politics, and how they can overlap and differ. Chapter
Two discusses state court institutional structures from trial to appellate
level, and federal courts from district to Supreme Court, and a brief overview
of the relations between federal and state courts. Chapter Three focuses
on lawyers, highlighting major themes within the legal profession: its
history,
law school education, diversity, practice and challenges for the future.
Chapter Four discusses both the selection methods and removal of both
state and federal judges. As with other chapters, it includes intriguing
facts, such as a reminder that many judges in "election" states are actually
appointed by the governor for their first term as vacancies arise (p. 86).
Chapters Five and Six discuss the procedures found in criminal and civil
litigation (respectively) from the origin of a dispute, through the initial
stages of each process, and ending with the sentence or jury verdict. Chapter
Seven complements the previous chapters with an overview of the appellate
process: the post-verdict motions, notices of appeal, oral
arguments and decision.
In Chapter Eight the reader then finds a survey of both legal and political influences and a glimpse into their prevalence within the legal system. The chapter includes important points such as exceptions to the mootness doctrine (pp. 218-19), something that could be glossed over otherwise. Chapters Nine and Ten then highlight and discuss the debates concerning
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judicial policy-making, such as judicial activism vs. judicial restraint and the constrained vs. dynamic court. This includes a prescription and some guidance as to judicial policymaking. Within each chapter, Porto offers insights into the relationship between law and politics.
MAY IT PLEASE THE COURT is written with a rather broad audience in mind:
primarily undergraduates but also paralegals and first-year law students.
Indeed, the text includes sections that appeal to more than one group of
readers at once. For example, both undergraduates and law students can
find the discussion about the constrained and dynamic court found in Chapter
Nine quite intriguing and thought provoking. Can, and should, judges make
policy from the bench? Why or why not? In addition, all three types of
readers can appreciate the Appendices that show how to research law (Appendix
A) and offer examples of court documents (Appendix B). This can prove a
quite valuable resource, especially for undergraduates and paralegals (and
various first-year law students) who are as-yet unfamiliar with legal research.
As yet another example, first year law students and undergraduates will
need to respond to Chief Justice Rehnquist's observation in PAYNE v.
TENNESSEE (1991) "that stare decisis is not 'an inexorable command,'"
and that stare decisis matters more in property and contract rights cases
than in noneconomic cases (p. 224).
The textbook plays to its major strength: the inclusion of cases as
examples of various topics and terms, and as fodder for chapter discussion.
As a welcome addition to discussions about the criminal and civil litigation
process (Chapters Six and Seven), Porto provides in-depth discussions of
two previous court cases filed in the state of New Hampshire. This includes
the facts of each case, the participants themselves (individuals, attorneys,
the judge) and important facts about them such as their personal history,
and legal procedures from initial stages to pronouncement of the verdict.
Appendix B supplements these chapters with examples of actual case documents
such as the search warrant in the criminal case and the complaint in the
civil case. Given the inherent limitations of presenting a textbook-only
version of the law, such reproduction of important legal documents
can only contribute to a good-quality discussion of real-world adjudication.
In each of these chapters the reader gets a greater sense of the context
of litigation, such as the reasons for not pleading guilty or motioning
to dismiss, the types of questions asked during the trial, and the interactions
among the participants. What were the reasons for the defendant not simply
pleading guilty to criminal charges of drug possession? Similarly, why
did the defendant choose to challenge the complaint in the civil case?
Chapter Seven gives the reader a similar view of the appellate
process, by describing the appeals of the cases found in Chapters Five
and Six. In short, readers are granted a bird's eye view of actual legal
disputes, the actual stakes involved, and how they are resolved.
In addition, each chapter includes a relevant case as well as questions to help guide and provoke discussion of the prevailing legal and political issues. Chapter Four, which focuses on the legal profession, ends with portions of majority and dissenting opinions in a case involving direct-mail solicitations by attorneys (FLORIDA BAR v. WENT FOR IT, INC. 1995) and even includes editorial notes within the opinion (e.g. the district court agreed with Went For It and circuit court
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affirmed). At the end of the chapter the reader then finds important
legal and political questions to answer and discuss. Such cases and questions
can provide the reader with material to strike his/her curiosity not only
about the case but its importance within the judicial process. As just
one question, should the First Amendment protect solicitation of this sort?
The addition of cases within the text also provides students with much-needed
assistance in understanding the legal
system not only in theory but also in practice.
MAY IT PLEASE THE COURT also has certain limitations. A textbook that
aims to highlight the human drama of litigation (best described in Chapters
Five, Six and Seven) should include certain facts related to litigation:
how often is one arrested or served with a complaint; how often might the
defense engage in plea bargaining or settling out of court, and even how
often a lower court is reversed upon appeal. Students can then grasp the
greater complexity of answering such questions as whether the defendant
should have plea bargained with the prosecution or else played the odds
with a trial. In addition, a discussion of the interplay of law and politics
should also include at least some in-depth investigation and outlining
of litigation at the federal level (something largely absent from Chapters
Five to Seven). Porto is certainly not unaware of federal litigation, as
he includes various federal cases at the end of each chapter. Yet as the
stakes are higher at
the federal level, with its unique aspects of law and politics, the
addition of federal cases can strengthen not only the surface discussion
of the litigation process but also the tensions between law and politics.
On a related note, the text provides no separate chapter on the Supreme
Court and/or state supreme courts. Granted, the textbook does include a
few pages outlining the institutional structures of the Supreme Court and
state supreme courts, but it does not say much about the interplay of law
and politics at these levels.
A minor difficulty with the textbook relates to the materials available for future research. The chapters include references (either in the text or endnotes) to such names as H.W. Perry, Gerald Rosenberg, Richard Posner, Mary Ann Glendon among many. As this text seeks implicitly to spark student curiosity about the judicial process (its legal, political and human dimensions) it might prove useful to add some type of bibliography at the end of each chapter; thus, students receive some guidance either in writing their research or satisfying their curiosity.
The most controversial aspect of the textbook relates directly to one
goal of the text: to outline a centrist view of judicial policymaking.
As found in the Preface, Porto states that he will describe a centrist
view of judicial policymaking. Chapter Nine then picks up this theme and
puts forth the view that judges should exercise moderation. This is not
Aristotle's definition of moderation; rather, it means a reflection of
"the broad philosophical outlines of the Founding Fathers' design" while
cautioning that, "judges must not be captives of eighteenth-century thinking"
(p. 259). Porto then spends a few pages sketching out this view of judicial
policy.
This can certainly provide debate material for both undergraduates
and first-year law students, as they attempt to wrestle with the proper
role of judges
and how they are to make decisions.
Although the attempt to put forth a separate view of the judiciary is laudable, it nonetheless leads the reader to ask: what then were the designs of the Founders? A
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reading of Chapter Two provides little guidance regarding the historical
debate and the history of American courts. The sole reference to the Federalist
Papers implies a certain naivete‚ among its authors, an example of the
myth that "law and politics are unrelated" (p. 1) when Hamilton wrote in
Federalist No. 78 that courts "have neither force nor will, but merely
judgment" (Hamilton, Madison, & Jay 1999: 433). One can certainly debate
the merits of judicial moderation, but readers should expect at least some
direction as to the debate between Federalists and Anti-Federalists and
the views of the Founding Fathers. The textbook provides no discussion
or historical/philosophical review of the arguments among the Framers or
references to important works (e.g. Federalist Nos. 78-79) to help spark
such
debate. The addition of such information can also help students appreciate
the alterations made to the American judiciary since its inception (something
missing from the textbook).
These weaknesses notwithstanding, the textbook provides students with
valuable insight into the judicial process. In many ways, it accomplishes
the goals it sets out for itself. The discussion of real-life cases gives
students a greater appreciation of the "human drama" found in the legal
process, and the various chapters highlight both the legal and political
aspects of the American courts as well as the judicial process. In addition,
its direct writing style and discussion of the legal process helps outline
not only important facts but also the greater meaning behind them. Teachers
wishing to convey the complexities of American courts and litigation, and
how
they function in both theory and practice, can do well to adopt this
textbook for their class.
REFERENCES:
FLORIDA BAR v. WENT FOR IT, INC., 115 S. Ct. 2371 (1995).
Hamilton, Madison, Jay. 1999. The Federalist Papers. Edited by Clinton
Rossiter, with new introduction and notes by Charles R. Kesler. New
York,
NY: Mentor Books.
PAYNE v. TENNESSEE, 508 U. S. 808 (1991).
Copyright 2001 by the author, John Francis Ryan.