• Ball, Howard. A Defiant Life: Thurgood Marshall and the Persistence of Racism in America.  Reviewed by Scott D. Gerber.
• Farnsworth, E. Allen.  Changing Your Mind: The Law of Regretted Decisions. Reviewed by Dennis Patterson.
• Feeley, Malcolm M. & Edward L. Rubin. Prisons, Public Policy, and Legal Theory.  Reviewed by Donald A. Dripps.
• Lieberman, Jethro K. How the Supreme Court Has Ruled on Issues from Abortion to Zoning. Reviewed by Alexander Wohl.
• Macauley, Melissa. Social Power and Legal Culture: Litigation Masters in Late Imperial China.  Reviewed by Janet E. Ainsworth.
• Veeser, H. Aram, editor. The Stanley Fish Reader.  Reviewed by Pierre Schlag.
• Talkback

You Can’t Get There From Here (Really)
by Pierre Schlag

The Stanley Fish Reader
H. Aram Veeser, editor
New York, NY: Blackwell Publishers, 1999
Paper: $24.95
Pp. x, 297

Should you read The Stanley Fish Reader (edited by H. Aram Veeser)?   Absolutely.  With care and caring.  It is your fate that is at stake -- for these essays are about you.  Or more accurately, one of the essays -- the one that will that will spark your interest after reading the Table of Contents -- will be about you.

When you read an essay by Stanley Fish (formerly of Duke), it’s like reading a Rorschach test.  What you retrieve is what you have put into it.  You, the reader, produce Stanley Fish’s text.  Once you realize this, you will have enacted his views of the matter.   This will make it quite difficult for you to deny that he is right.  As for the fact that this point applies to itself -- that, as Fish would say, is not a refutation of the point, but rather its restatement.  Game over.

If you don’t want the game to be over, you the reader will have to pay greater attention.  Fish is a performer.  And what he performs, over and over again, even as he tells you so, is a disruption of your reading strategies.  What is perhaps most amazing about Fish’s work is that in a single essay he can engage (and disrupt) so many different reading strategies at once.  Here, then, is one view of how it works.

First: The Rorschach quality of Fish’s text helps explain why so many commentators can find so many different messages in his works.  Literary critics see in Stanley Fish a reader-response theorist or a speech-act theorist.  Philosophers see a Wittgensteinian or a neo-pragmatist.  ACLU liberals see an anti-liberal prophet.  The media (always the first to seize upon image) see a leftist. Moral philosophers see a sophist.  And so on.  Stanley Fish has also been variously called a humanist, a Gnostic, a liberal, a deconstructionist, a postmodernist, a nihilist, a conservative and a whole slew of considerably nastier names.

Second: Since what you take out of Fish is what [he has prompted] you to put in, the results can be somewhat "surprising."  As intimated above, academic commentators routinely read into Fish’s text their own professional methods, anxieties, and obsessions.  Most often the results are dramatically self-defeating.   Thus, the moral philosopher bent upon finding sophistry in Fish’s work can end up revealing her own desire to win a moral crusade at whatever cost to truth.  The ACLU liberal bent on preserving the sanctity of free speech can end up revealing an ironic but profound fear of ideas -- namely, those of Stanley Fish.  The political crusader bent upon political action through critical self-consciousness can discover that his project is not critical, not nearly as self-conscious as he wants it to be, and of no political consequence whatsoever.  In this way Fish entraps his readers in their own fetishized proclivities.  This is why Fish routinely takes on the sacred cows of the legal or literary academy: theory, free speech, anti-professionalism (and so on).

Third: Well, this is not very nice is it?  And yet, there is an ethic here.   Stanley Fish’s text reveals to you the reader, your own rhetorical, moral and intellectual vulnerabilities -- the very ways in which you can end up surprised by sin (namely, your own).  So, when I wrote above that Fish entraps his readers in their own fetishized proclivities, that was not exactly right.  It’s more accurate to say that his readers are already entrapped in their own fetishized proclivities; Fish merely offers them the opportunity to let go.  There’s a kind of "wake up, smell the coffee" ethic to Stanley Fish’s work.  Some will find this ethic upsetting; others, with different temperaments will find it energizing.  The key question for you is: Do you want to sleep or not?

Fourth: So what’s the point?  There isn’t any.  (Do you need one?)   Some would take the absence of a point as a damning criticism.  But it’s not.  The idea that there must be a point, that intellectual activity must congeal into a point -- into a stand-alone, off-the-shelf, ready-for-rapid-deployment, eminently citable, wisdom-widget -- is a kind of nutty idea.  It’s not just bad metaphysics; it’s also an impoverished and demeaning view of intellectual life.   (It is, of course, a quintessentially academic view).

Fifth: If you think you have Fish caught in some intolerable academic faux pas, an insuperable mistruth, an unacceptable lapse of moral judgment, an untenable contradiction, that is the point at which you should wake up and ask yourself two questions: (1) Just how did you get here?  Or, what is in effect the same question: (2) Just what is it about you that makes you think this moment is intolerable, insuperable, unacceptable, or untenable?

Contradiction Happens

Fish loves to put the reader in this situation.  The examples are countless (which is to say that I have not counted them).  Here is one: Gerald Graff introduces the essay "Is There a Text in this Class," with the following:

Fish . . . argues that we never have access to anything "outside" the "situation" or "interpretive community" that we’re in at any given moment. . . . So Fish’s argument ultimately hinges on our ability to know where one "system of intelligibility," "situation" or "interpretive community" ends and another begins without messy overlap. But no such distinctions are possible. At least three critics -- Scholes, Dasenbrock, and me -- have argued that Fish too readily treats beliefs as if they comprise consistent, monolithic and discrete "systems" with a clear inside and outside. (39-40)

Now, up through the italicized sentence, "But no such distinctions . . .", Graff’s statement is almost unobjectionable.  But then Graff asserts something that does not obviously follow.  It’s true, as he says, that no such distinctions are possible -- where "possible" means having the intellectual integrity or veracity claimed for them -- but that does not mean that the distinctions are not happening.

The claim that because something is objectionable, it cannot form any part of our thinking is a common enough move in American academic life.  Indeed, it is amazing how much of American academic life on the side of law and the humanities can be summed up in a two sentence argument:

1. This sucks.

2. Therefore, it is

a) not true
b) not right
c) not happening
d) any or all of the above

This is the sort of argument-practice that makes the theoretical minimalism of Beavis and Butthead ("This sucks," period) seem metaphysically profound by comparison.

Fish will teach this lesson over and over again: Simply because one comes to realize that something is self-contradictory, even demonstrably self-contradictory, does not mean that one can or will stop uttering it.  Now that possibility -- that we are, at least sometimes, compelled to repeat and re-enact contradictions, paradoxes, half-truths, full-falsehoods, etc. -- is absolutely intolerable for a great number of academics and, sometimes, for entire academic disciplines (i.e., analytical philosophy).  But the fact that it is absolutely intolerable for so many in no way denies its truth nor that it is happening (and will continue to do so).

Now, Stanley Fish, for one, is not at all anguished by any of this.  And truth be told, you shouldn’t be either.  Read the book.

Pierre Schlag is Byron White Professor of Constitutional Law at the University of Colorado at Boulder.  He is the author, most recently, of The Enchantment of Reason (Duke University Press, 1998) and Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind (New York University Press, 1996).

Editors’ Note: Dean Stanley Fish, who has written for BOL, is also the author of the forthcoming The Trouble with Principle (Harvard University Press, 1999-2000). This July 19-23, Dean Fish will conduct a seminar at Cornell University, entitled "Rhetoric, Politics, Law: The Endless Quarrel." Among other things, the seminar will consider the tensions between affirmative action and First Amendment law, and between fidelity to abstract norms and the desire to bring about certain outcomes in the world. Finally, Fish’s widely-noticed "There’s No Such Thing as Free Speech, and It’s a Good Thing, Too" is one of the essays in The Stanley Fish Reader

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Confucian Culture Wars
by Janet E. Ainsworth

Social Power and Legal Culture:
Litigation Masters in Late Imperial China
Melissa Macauley
Stanford, CA: Stanford University Press, 1999
Cloth: $55.00
Pp. 416

Professor Melissa Macaulay has written a meticulously researched portrayal of the legal world of 18^th and 19^th Century China.  Rather than focusing on judges or legal codes as earlier studies have done, she trains her sights on the shadowy underworld of the litigation masters -- itinerant legal experts who drafted complaints and gave advice about trial tactics to would-be litigants.  Acting as a litigation master was a serious criminal offense in imperial China.  In exploring why this was so, Professor Macaulay provides a window into the legal culture of imperial China, and demonstrates the benefits of taking a cultural approach to legal studies.

You might expect this book to be well-read among historians of late imperial China, and undoubtedly it will be.  It is destined to be a classic in the field of late imperial Chinese cultural studies.  Most previous studies of traditional Chinese law have adopted a narrow historiographical perspective on their subject.  Either they view the Chinese legal system as one of the mechanisms of central state control, and thus situate their endeavors in the field of institutional history; or they see Chinese law as a specialized arena for the application of Confucian ideology, and treat the topic as a case study in intellectual history.  Macaulay wisely eschews methodological purity, and combines the rigorous documentary exegesis of the traditional historian with the interpretive synthesis characteristic of the best legal anthropology.  Her sources range from the annals of legal cases to the elite writings of literati and magistrates, the underground handbooks that passed among litigation masters, and examples of the literary and artistic popular culture of the time.  By focusing on reconstructing imperial Chinese legal culture, Macaulay’s methodologically eclectic work represents a refreshing and fruitful approach to achieving a richer historical understanding of late imperial China.

Influential and welcome to historians of China as this study will be, Professor Macaulay’s work deserves to reach a broader audience of legal scholars, however, for its message and significance transcend the arguably parochial world of Chinese history.   This book is, I believe, equally valuable to those seeking a fuller appreciation of the nature of law in its modern social context.  Legal orders are both the products of their time and place, and a crucial constituent part of the overall fabric of social meaning that we call "culture."  Macaulay is fully cognizant of this, and her study sheds light on a number of questions of general interest in legal studies.   For example, what consequences follow when the state diverts controversies from its formal apparatus of dispute resolution?  What happens when a state legal apparatus fails to square with popular images of justice?  How is it possible that domains such as law can serve simultaneously to maintain hegemony and to resist it?

Perhaps the greatest obstacle to this book’s reaching a non-Sinological audience is the unfamiliarity of its subject matter.  The institutions, practices, and ideology of Qing Dynasty China may seem to a contemporary Western reader impenetrably exotic and alien -- so far removed in time and space as to appear quite irrelevant, if not entirely incomprehensible to us.   Fortunately, the reader who perseveres through the initial shock of foreignness will be well rewarded. Macaulay describes the facts behind many of the cases she has collected, and they are compelling reading, indeed.  Amongst these cases are stories of greed, treachery, betrayal, lust, and deceit.  Frankly, they are ripping good yarns.

The World of the Magistrate in Late Imperial China

In order to understand why Macaulay chose to focus on the role of "litigation masters" in imperial China, it is necessary to have a sense of the world in which they operated.  Imperial China possessed a highly sophisticated hierarchical legal system in which legal complaints could be lodged with the district magistrate, whose rulings in the matter could be appealed to higher courts at the provincial level and ultimately to the highest authorities in the capital.  This was in the purest sense an inquisitorial system -- no lawyers appeared to argue for the litigants.  Once a complaint was filed, the district magistrate had full authority to investigate and pursue the case as he thought appropriate, including the power to compel testimony from recalcitrant witnesses through carefully prescribed judicial torture.  For that reason, filing a complaint was a highly perilous activity.  At the very least, complainants risked being deemed untruthful or uncooperative and so subject to being tortured until their testimony satisfied the judge.  Not infrequently, the magistrate would discover during the course of the lawsuit some related or unrelated legal dereliction on the part of the accuser that would justify criminal punishment.  Once any case was before the magistrate, he had jurisdiction over any law violation which came to his attention during the course of the lawsuit.

Although district magistrates were expected to ferret out the facts and to interpret the scope and application of the Qing code to each case, they had no formal legal training to prepare them for conducting litigation.  In fact, presiding over litigation represented only a small part of their official duties.  District magistrates were the appointed representatives of the national government at the local level, and were consequently responsible for all manner of administrative duties, ranging from supervising public works construction and executing tax collection to maintaining social services such as schools and public granaries.

The central government in Beijing chose its district magistrates from among those who had passed a hierarchical series of grueling civil service examinations.  Although the sole purpose of the examinations was to qualify applicants for office, the examinations did not test the applicant’s knowledge of statecraft or administration, nor did they measure his knowledge of the legal codes.  Rather, they required excruciatingly finely detailed knowledge of classical Confucian texts in order to construct highly stylized exegetical essays commenting on fragments taken from the Confucian canon.  Many thousands of Chinese men spent the better part of their lives preparing for and repeatedly taking these examinations, since success provided the only avenue into membership in the national elite.

From the pool of those talented, hard-working, and lucky enough to have the financial backing necessary to dedicate their lives to pursuit of examination success, the central government selected its officials who were assigned to public service in posts far from friends and relations.  Placing its officials in areas where they had no affiliations or ties was an intentional strategy by the central government to maintain their loyalties to Beijing, and to prevent their collusion with the local elites in their districts to undermine central governmental control.  Every few years, the central government re-assigned its district magistrates to other postings.  Therefore, district magistrates remained perpetual outsiders within their districts, bereft of connections to local elites and generally lacking a full appreciation of the dynamics of local politics.

As China’s economy became increasingly complex and commercialized during the 18^th and 19^th Centuries, property disputes multiplied far beyond the ability of the formal litigation system to adjudicate.  By this period, serious litigation backlogs existed in virtually every judicial district.  Magistrates were under intense pressure from the central government to reduce litigation rates to keep the formal litigation apparatus from breaking down completely.  This pressure was compounded by the Confucian ideological stance holding that litigation represented a tangible sign of breakdown of the social and moral order within the district, which reflected on the administrative incompetence or moral unworthiness of the presiding district magistrate.   Thus, there was both ideological and institutional pressure to shunt disputes out of the formal court system and into customary dispute resolution forums at the local level.  Village headmen and ranking members of local lineage groups were permitted, even encouraged, to mediate and resolve local disputes in order to keep cases out of the formal court system.

Macaulay’s work highlights a central difference between the pre-modern legal orders of China and Europe.  In Europe, as state power increased, the state reached out to bring more and more dispute resolution into the orbit of state authority, expanding the power of the state in ever-widening circles over society.  By asserting the primacy of the state’s courts over competing forums for dispute resolution, European governments sought to legitimate the growth of state power and authority and to diminish the power of competing sources of authority (such as religious and village-level customary law).  The story of the development of European legal orders, then, is the story of the law’s role in the inexorable widening of the scope and strengthening of the authority of state power over local affairs.

In contrast, the Chinese imperial state sought to deflect disputes out of the orbit of central state authority and into that of local and regional elites.  Far from attempting to monopolize dispute resolution, the imperial Chinese government actively frustrated attempts by would-be litigants to gain access to the formal court system, leaving disputing parties to settle their differences through informal customary legal processes.  Perhaps this power-sharing between the local and national elites reduced the risk that local elites would affirmatively contest the power of the national government.  In any event, this conscious policy by the central government of restricting access to its court system did have the effect of magnifying the power of local elites with respect to local social and economic matters.  With local elites firmly in control of most local dispute resolution, the "haves" were in a position to ensure that the "have-nots" stayed that way.

This study breaks new ground in exposing the degree to which litigation masters served to undermine the monopoly of local and national elites over legal power.  Through an examination of a large number of documented court cases, Professor Macaulay reveals a world in which the Confucian orthodoxy of contempt for formal litigation is sharply resisted in complex and previously-unappreciated ways.  For example, Macaulay notes that a very large percentage of the court cases that she analyzed were filed by members of socially and economically subordinated classes, such as widows, debtors, younger male relatives, tenants, and beggars.  This finding is quite astounding.  Previous studies have taken it for granted that litigation before the district magistrate was a vehicle through which the power and privilege of both local and national elites were legitimated and furthered.  Yet, in examining the cases filed, Macaulay reveals that the resort to formal litigation was a frequent strategy taken by the powerless in order to resist domination by the powerful.

Take, for example, the surprising fact that widows accounted for about one-quarter of the complaints filed with the district magistrate in Professor Macaulay’s 18^th and 19^th Century case sample.  How remarkable to see women initiating lawsuits in a world in which they were subordinated to men, both in law and in reality!   Patriarchal privilege was inscribed in the very fabric of law, restricting the ability of women even to attempt to withstand male domination.  Under the Qing Dynasty legal code, widows were a nominally protected class, at least so long as they maintained a chaste loyalty to their deceased husbands.  The deceased’s lineage, however, frequently sought to dispossess the widow of her land and property, resorting to tactics spanning the gamut from guile and fraud to intimidation and violence.  All too often, a widow resisting her late husband’s relatives was kidnapped and raped in order to destroy her status as a "chaste widow" deserving a life estate in her husband’s property.  That male lineage lines used fraud and violence to dispossess widows is a familiar story to Chinese legal scholars.  What Macaulay adds to the picture is how widows tried to fight back by lodging formal complaints in the district court against their tormentors.

Those like widows whose interests were unlikely to prevail in local dispute resolution resisted being shunted into customary law forums by using litigation masters to file complaints with the district magistrates -- complaints that could not be ignored.  No district magistrate could afford to ignore a claim of homicide, for example.  Such a serious charge could not be handled informally but demanded the full attention of the representative of the central government.  The prevalence of claims of homicide -- many of them apparently false claims -- can be seen as a desperate attempt to by powerless litigants to propel their disputes out of the local informal forum in which the deck was surely stacked against them into the presumably more neutral forum of the district magistrate.  At least it was a forum in which local power and privilege did not predetermine the outcome, which was the best that powerless litigants could hope for.   That widows and other subordinated litigants apparently seldom prevailed in court does not change the fact that their resistance was real and that it had social consequences.

Subordinated people could not have had access to the courts without the assistance of litigation masters in filing their complaints and strategizing their lawsuits.  The role of litigation masters in leveraging this access to the formal court system infuriated both national and local elites.  It is telling that the terms songshi, or litigation master, and songgun, or litigation hooligan, were used interchangeably in official parlance.  The vehemence with which "litigation hooliganism" was condemned in elite writings and criminally punished in imperial China is emblematic of the threat that it was seen to pose to the established order.   Litigation masters were blamed for stirring up disputes amongst otherwise placid populations, filing outrageous false accusations, inciting perjurious testimony, and exploiting simple people to line their own purses.  Cunning and ruthless, they were considered more than merely bothersome -- litigation masters were beyond any appeal to Confucian morality, and thus affirmatively dangerous to a government based on Confucian precepts.  No wonder this activity was condemned as "litigation hooliganism" and, as such, aggressively prosecuted.

Not surprisingly, the image of litigation masters in the stories and songs of popular culture was somewhat different.  Clever and unintimidated by the court system, litigation masters were seen as capable of routing local bullies and tricking corrupt officials.  Celebrated for living by their wits, litigation masters were known as "knife brushes" whose special knowledge of the arcane written language of the law gave them unique, nearly magical, powers to use as weapons on behalf of those unfairly oppressed.  Although litigation masters figured as heroes in these tales, these stories often display a tinge of ambivalence about them.  Figures so powerful but unconstrained by Confucian morality might, after all, use their powers for ill as well as for good.  The overall message conveyed in popular culture was that a wise person stayed as far away from litigation as possible, given its potential for unforeseeable disaster.

Despite vituperative condemnation and escalating criminal punishments ranging from severe beatings to permanent exile, litigation masters continued to ply their trade throughout China in the late imperial period.  Writing a complaint in appropriate legal language was a skill far beyond even most educated Chinese citizens.  If they wanted to gain access to the courts -- and Professor Macaulay’s study reveals that a surprising number of ordinary Chinese did -- the services of the litigation master were indispensable.  As long as a large class of people existed who needed the services of litigation masters, they occupied an important social ecological niche that no amount of condemnation or punishment could eliminate.

Professor Macaulay’s study of litigation mastery in imperial China suggests some provocative questions that could be posed for legal studies in the contemporary West.   In recent years, access to formal litigation is being systematically curtailed in ways strangely evocative of those used in imperial China.  Efforts to raise jurisdictional bars, to force more and more cases into small claims courts, and to require mandatory mediation and arbitration in many instances are just a few examples of this trend.  Clogged judicial backlogs further this push to move cases out of formal litigation and into alternative dispute resolution.  As many commentators have noted, informal dispute resolution can operate to disadvantage "have-nots" in our legal culture, just as local informal dispute resolution did in imperial China.  Will American would-be litigants react as their Chinese counterparts did by making extreme attempts to break out of ADR to give them the day in court that they want?  Macaulay herself does not try to draw out any parallels between the imperial Chinese legal experience and our own legal world; but, her study does serve as a model for taking a cultural perspective in understanding law in its social context, which is surely applicable for our own time and place as well.   She reminds us that, just as the social and ideological construction of litigation served a situs for contests over social meaning in imperial China, so too it does in our own world.

Janet Ainsworth is Professor of Law at Seattle University. She chaired the Law and Anthropology Section of the American Association of Law Schools in 1998-99.

———————————————————————
Doctrinal Pragmatism, or The Lessons of Elegance
by Dennis Patterson

Changing Your Mind: The Law of Regretted Decisions
E. Allan Farnsworth
New Haven, CT: Yale University Press, 1998
Cloth: $30
Pp. xi, 271

The Search for Order

Plato and Parmenides.  Depth and surface.   Universal and particular.  These oppositions identify two basic types of explanation present in every field of thought.

On the one hand, there are thinkers such as Hegel and Spinoza.  They look for the grand sweep, the underlying principle.  Like Plato, they think that what one sees on the surface is just the play of larger, hidden forces.  According to Marxism, the most infamous social theory of the modern age, all forms of cultural expression are mere superstructural expressions of underlying economic causes.

On the other hand, there are thinkers such as Heidegger and the later Wittgenstein.  For them, understanding is not so much the grasp to underlying principles as it is an immersion in everyday practices and activities.  In explaining a social phenomenon, the surface is where the action is to be found. Heidegger’s treatment of tools in Being and Time, and Wittgenstein’s account of language-games reflect a commitment to the particular in human affairs.  What used to be called nominalism gave way to pragmatism.

In law, the supreme theorist is Christopher Columbus Langdell.  For him, understanding of law is not a matter of bringing a blizzard of legal rules under control; rather, it is identification and employment of basic principles.  Langdell urged law students to eschew long hours in the library reading many cases because

the number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is constantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number. [Christopher C. Langdell, A Selection of Cases on the Law of Contracts vii (1871).]

Professor Allan Farnsworth begins his new book this way: "In this book I survey some of the general principles underlying the legal rules that apply when you change your mind and reverse a decision." (ix)  And it gets more interesting, for Farnsworth tells us that one motivation for writing this book is the desire to "further the rationalization of legal concepts . . . ." (Id)  It takes more than a little courage in the current environment openly to celebrate the role of reason in law.  Just when you might have thought, "it’s all politics in the end," Farnsworth takes a stand for reason and against its opposite.

Professor Farnsworth is no formalist, though he does share Langdell’s ideal of law as a science (not in the naturalistic sense, but in the way Germans do when they use the word Wissenschaft).  Farnsworth, who has lived through and presided over (as Reporter for the Second Restatement of Contracts) the disintegration of the classical model of contract law (offer / acceptance / meeting of the minds / consideration), uses this book to show those of us still trying to make sense of things just how he sees the big picture.  If there is a unity in the law of contracts (and other doctrinal areas), there is no one better than Allan Farnsworth to pull it all together.

I said that Farnsworth is no formalist, and that is so.  He might be a traditionalist, but as I see his thought in this book, he is a genuine pragmatist.  I know, it is fashionable nowadays for everyone to wear the "pragmatist" label.   I think the appellation applies to Farnsworth and, in a way, has always applied.   Farnsworth believes in legal reason, but he eschews the totalizing account of law that one finds on both the left and the right.  The essence of pragmatism is anti-reductionism.  This is why Farnsworth is a pragmatist: he believes there are principles at work in the law.  He does not reduce legal doctrinal to one or two principles.  This is why his position is so subtle and, in my opinion, so right.

I must confess that I began this book with more than a little of the analytic philosopher’s skepticism.  I wondered, "What, exactly, is this book about?"  I asked this because Professor Farnsworth says the book is about "the law of regret."  I dismissed this as psychologistic prattle.   Regret, I opined, is a psychological notion, not a legal concept.  There can no more be a law of regret than there can be a law of depression, for regret is an emotion.  If there are any "laws" of regret (or any other emotion) then the "law" is scientific, not legal in nature.

As I read through the book, I became convinced that I was mistaken, and that Farnsworth was making a subtle point.  He was trying to show me something the analyst’s razor often misses.  What Farnsworth shows is how much of the law is a matter of psychology.  A theory of the law of regretted decisions is, in reality, a theory of how the law deals with regret.  In short, this is a book about the principles organizing the various rules for how and when one may change one’s mind about a promise or commitment.  Very subtle.  Very interesting.

Professor Farnsworth identifies six principles "that underlie the legal rules governing the irrevocability of a commitment and the irreversibility of a relinquishment or preclusion."  He enumerates these six principles: (1) the reliance principle (and its corollary, the assent principle); (2) the intention principle; (3) the dependence principle; (4) the public interest principle; (5) the anti-speculation principle; and (6) the repose principle.

Space does not permit discussion of all of these. I shall concentrate on the first (or first two), the reliance and assent principles.  I do this for reasons both historical and evaluative.  Historically, since Fuller and Perdue’s famous 1936 Yale Law Journal article on the reliance interest, contract law (or, the theory of contract law) has been in a state of incoherence.  The evaluative reason concerns the strength of Farnsworth’s argument. As I began reading this book, I wondered how the pre-eminent figure in my field would, at century’s end, tackle the great unresolved problem of our time.  To set the stage, let me say a bit more about the problem.

As anyone who teaches contracts knows all too well, only some promises are enforceable.   For example, a promise to make a gift is not, generally speaking, enforceable at law.  What separates enforceable from unenforceable promises is the presence of consideration.  Consideration -- something of value given in exchange for the (bargained-for) promise -- is the means by which enforceable promises are identified.   To complete the picture, a contract is a promise for the breach of which the law provides a remedy [Restatement (Second) of Contracts, Section 1].

Consideration doctrine, so much the province of the law (and lore) of contract since Langdell, has been systematically diminished in both its scope and importance.  For example, the sales Article (Article Two) of the Uniform Commercial Code dispenses with the consideration requirement entirely.  Despite its diminishing importance in the world of commerce, consideration is a central feature of every first-year Contracts course.  Yet, as every law student learns, in addition to consideration, promises may be enforced where there is reasonable, detrimental reliance on the part of the promisee.   Detrimental reliance -- as described in Section 90 of the Restatement (Second) of Contracts -- is a "substitute" for consideration.  It is a substitute in the truest sense of the word, as reliance does the work normally done by consideration.

So what’s the problem?  In a word, the executory (unperformed) contract.   Imagine an offeror and an offeree each having made promises to one another (e.g., the offer to mow a lawn for ten dollars, duly accepted).  Other things being equal, there is a promised delivery of a service and a promise to pay a sum certain for that service.  In short, there is a contract.  The mere making of promises on both sides constitutes consideration. Each promise is enforceable.

Contrast this example with one where a promise is made but there is no corresponding promise.  Instead, the promisee detrimentally, reasonably, and forseeably changes position in reliance on the promise made.  The promise may be enforceable as such under Section 90.  The action of the promisee does the work of a promise -- it is the functional equivalent of consideration.

The "problem" I alluded to above concerns the grounds of promissory obligation.  At what point is a promise enforceable?  Under the consideration model, no duties arise until and unless the promise is supported by consideration.   But the promisee need do nothing more than make a verbal statement (e.g., "I accept") in order for duties to arise on the part of the promisor.   Thus, the duty of the promisor to deliver the promised performance arises the moment the promisee says "I accept."

In the case of reliance (Section 90), no duty on the part of the promisor arises until and unless the promisee changes position or otherwise detrimentally relies on the promisor’s promise.  In this situation, the promisee has to do something in order for the promisor to be bound.  The promisor’s duty arises later than it does in the consideration cases, and then only if and when the promisee relies on the promisor’s promise.

In other words, under the consideration model, duties arise when consideration is present (e.g., the promisee saying "I accept" in response to the promisor’s promise).  There is no need to inquire into the actions of the promisee in reliance on the promisor’s promise because all that is required is reciprocity in the form of consideration, and for this nothing more than a return promise is required.  The promisor’s duty of performance is actuated upon the utterance of the promisee’s mere verbal behavior. In contrast, under the reliance model, promissory obligation (duty) arises for the promisor only after the promisee has changed his position.  The promisee has to suffer somehow or give something up (e.g., pass up an opportunity) in order for the promisor’s promise to be enforceable.   Until the promisee does something in reliance on the promisor’s promise, no duties arise.

Now, note how the consideration and reliance models are completely irreducible explanations of the nature of promissory obligation.  Under the consideration model, the reliance inquiry is superfluous, irrelevant: reliance can never give rise to promissory liability.  Contrariwise, the detrimental reliance model requires that the promisee suffer some change of position before a duty is actuated.  Mere verbal behavior (e.g., "I accept") is insufficient, because nothing is suffered by mere utterance.

The problem for theorists of contract law has been to reduce these two grounds of liability to one (a unity).  Until Fuller and Perdue’s article, contract law was coherent, for the consideration model ruled the field. Fuller and Perdue shattered this complacency, and contract theory has never been the same.  Since Fuller and Perdue’s article, contract theorists have attempted to solve what I call "the riddle of unity."  The riddle is how to reduce contract law to a single explanatory principle.

This background serves to explain why Professor Farnsworth’s book is immensely interesting.  Farnsworth’s announced interest is in treating contract law as "a whole," one that is informed by reason.  In his own Contracts casebook, Farnsworth devotes more pages to consideration than almost anyone I know.  For this and many other reasons, he is unique in my field.  Thus, when I came to his fourth chapter, titled "Why Should a Promise Commit?", I was ready for an answer to what is, in a sense, the $64,000 dollar question in contract theory.

In answer to the question, Farnsworth states that "no single answer will suffice . . . ." (37)  Expectation and Reliance are each identified, but no hint is yet given as to how they will be reconciled.  After some remarks on the interpretation of contracts, we move to Chapter Five, which treats the formal side of enforceability: the seal, consideration, and the bargain test.

Then, in his sixth chapter, Farnsworth moves toward the question.  He begins by noticing that "under contract law a mere exchange of promises -- without any reliance -- is enough to bind the parties." (55)  But why, he asks, "should a party that has done nothing whatsoever in reliance on the other party’s promise -- performing, preparing to perform, or even forgoing other opportunities -- be entitled to enforce that promise?" (56)  The answer is, again, deferred.

Does reliance hold the answer?  Professor Farnsworth tells us that "when academics began to suspect that reliance might be the true basis for enforcing promises, they began to ask why, a question that has had an enduring fascination." (57)   "Well, OK," I thought.  But I wanted to know what Farnsworth -- the man of reason, the believer in consideration (remember, his casebook devotes substantial pages to it) thought.  Then he gave his answer:

For me, the most satisfying answer is still the one proposed by Lon Fuller more than fifty years ago: "To encourage reliance we must . . . dispense with its proof."   Promising is an important activity because a promise affords the promisee a basis for planning.  But a promise will be of little use as a basis for planning unless it can be relied upon, and protecting a promisee’s expectation is the most effective way of protecting a promisee’s reliance. (57)

I look to paragraphs such as this one as the place where the argument comes together.  Farnsworth claims that in contract "[m]ainly [he] has found harmony rather than discord." (ix)  To make good on that observation, Farnsworth would have to show how the expectation and reliance explanations of the basis of promissory obligation can be integrated into a coherent explanatory framework rather than two competing and often contradictory bases of obligation.

But Professor Farnsworth does not do that.  In fact, as soon as the moment arrives in his argument for him to put it all together, he seems to back away.  On the one hand, claims of negative reliance (e.g., passing up an opportunity) "might be hard to prove." (59)  Thus, Farnsworth counsels that "[c]hoosing the moment of assent produces a bright-line rule that binds the promisor at the earliest moment that the promisee could possibly have a claim based on such reliance.  Reliance before assent would not be justifiable." (59)  This argument is the sort one hears from defenders of the old regime, where the presence of consideration precluded an inquiry into the quality and character of the purported reliance.  On the other hand, just as the position looks to be shaping up, the reader is informed that "consideration has become a mere technicality." (74)  Is there a position here, or just a series of compromises?

In the end, I am won over by Farnsworth’s elegant treatment of the competing tensions that beset contemporary contract law.  For example, in his handling of Allegheny College -- Cardozo's doctrinal tour de force -- Farnsworth shows himself to be every bit the master of doctrine as Carodozo.  Just as Cardozo moved back-and-forth between the demands of consideration doctrine and the flexibility of the then-emergent doctrine of promissory estoppel, Farnsworth demonstrates by his prose the virtues of the anti-reductionist spirit of pragmatism.

Allan Farnsworth’s book is important for a number of reasons.  First, he is among the most elegant prose stylists in law.  This alone makes this book worth a close read.  Second, this is quite possibly the last book-length treatment of these issues one is likely to see from a true traditionalist. Farnsworth is a traditionalist, but he is not the conventional wisdom.  Not by a long shot.  The conventional academic ear is deaf to the music of doctrine.  Farnsworth avidly hears it, reminding us that the law is an intellectually demanding subject on its own terms.  It is instructive and inspiring to see such a mind at work.

Dennis Patterson is Distinguished Professor of Law at Rutgers University, School of Law (Camden).   He is the author of Law and Truth (1996) and Introduction to the Philosophy of Law (1999), both published by Oxford University Press.   His casebook, Introduction to Commercial Law (with Richard Hyland) will be published by West Group in May of this year.

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Referencing the Constitution
by Alexander Wohl

A Practical Companion to the Constitution:
How the Supreme Court Has Ruled on Issues
from Abortion to Zoning
Jethro K. Lieberman
Berkeley, CA: University of California Press (2^nd ed., 1999)
Paper: $35.00
Pp. 820

How many times have you been at one of those wacky law school faculty parties talking knowledgeably about a recent Supreme Court decision in a field in which you have some expertise, when the conversation takes a sudden and unexpected turn into a new and, for you, unfamiliar territory?  One minute you are happily pontificating about a certain type of evidentiary privilege, and the next minute you are strangely silent while everyone around you is merrily talking about the history of prior restraint.  You are left mentally flagellating yourself as you realize that you could have avoided just this kind of problem by spending a little less time working on that definitive article on Rule 60b, and a little more time perusing one of those many "reference" books you have been accumulating in your office.

While this scenario is clearly on the absurd side, it nonetheless points to the usefulness and importance of Jethro K. Liberman's excellent new edition of his Supreme Court reference book, which he has renamed A Practical Companion to the Constitution.  The term "Companion" is an artful, yet appropriate one, for this well-researched and organized volume contains not only a wealth of materials about individual Supreme Court decisions, but also goes well beyond mere caselaw.

An entry entitled "Clear and Present Danger," for instance, offers both a concise history of the development of that doctrine, as well as a discussion of prominent cases relating to it, with cross references to other subjects, such as "conspiracy," "first amendment," and "marketplace of ideas."   At only about a page in length, the discussion is not an exhaustive one, of course, nor does it offer in-depth analyses of the Court’s reasoning in particular decisions.   What it does do is provide a significant enough background and explanation through a mix of historic and contemporary issues and cases to give a lay reader or non-expert a basic understanding of the subject matter.

Another nice feature of a book that is not case name dependant is that the reader can turn to the subject of a decision or a particularly noteworthy feature of a case.   Thus, if you’re having trouble recalling the famous case Muller v. Oregon (1908), involving a law that limited the number of hours women could work, but you do remember that Louis Brandeis (the lawyer for the state) filed a lengthy, ground-breaking style of brief in the case, you can look up the entry "Brandeis Brief."  Or, if you can’t recall the Supreme Court’s interstate commerce-related decision that struck down a significant piece of New Deal legislation, you can just look up "Sick Chicken Case."

In addition to its more traditional constitutional listings, the book also has entries on subjects such as "Ports" or "Budget," topics that are often overlooked in discussions of constitutional doctrine because they do not focus on contemporary and pressing issues.  These are helpful both as an informational tool, as well as a means of putting the work of the Court in perspective.

At the same time that the book includes discussions of a number of these less sensational subjects, other subjects seem to be missing, or at least given short shrift.   This is not so much an oversight, but an understanding by the author of the distinction between political and constitutional doctrine, and between the relationship of the Constitution and other laws or legislative policy developments.  As Professor Lieberman states in a very helpful introductory essay about how to use the book, "since this is not a book about law in general or about specific policy issues, inevitably only parts of many stories are told here."  An even more basic reason for the lack of discussion of some subjects is practical limits of space.  As the author apologetically puts it, " how big a book do you wish to hold in your hands?"

Although a reference book in which every entry is written by one author raises the potential of subjectivity, Professor Lieberman appears largely to have avoided that pitfall.  While the author clearly presents a certain tone -- he has, after all, retained the essence, if not the title of the first edition, The Evolving Constitution (1992) -- this voice does not interfere with the book’s scholarship.  In fact, in most instances, the author’s commentaries provide important perspective and added value.  In the case of the aforementioned "Clear and Present Danger" entry, for instance, Lieberman concludes with a concise and incisive comment: "As famous as are the words ‘clear and present danger,’ they speak to only a part of the struggle for free speech."

Similarly, an appropriately brief entry on "States’ Rights" explains that the term is more political than constitutional in nature, noting that its less than savory history involves advocacy of slavery and other views in which a majority has power over "less favored groups."  At the same time, however, the author cross-references this entry with several more meaty ones, including "Judicial Review," "Southern Manifesto" (the 1956 statement issued by 96 members of Congress denouncing Brown v. Board of Education (1954)), "Tenth Amendment," and "Federalism."  The latter two entries, in particular, offer some important perspective on the Court’s recent revivals of these doctrines.

While some readers, particularly conservatives, may take offense at pejorative comments such as "a new assault on the old understanding of American federalism is being waged in the 1990s" to describe recent trends in the Court, Professor Lieberman is both fair and accurate, and his conclusions are suitably measured and critical of both sides whenever needed.  When talking about judicial activism, for instance, he comments that the Warren Court is most prominently associated with this terminology, but adds that it is an approach not reserved to liberals.  He notes that Roe v. Wade (1973) was one of the most activist decisions in our history, and points out that although both the Burger and Rehnquist Courts are politically conservative, each has been activist in its own right.  These type of discussions are enhanced by Lieberman’s fluid, journalistic, non-jargonistic brand of writing, which, through the use of phrases such as "a sharply divided Court followed this principle," is absorbing and appropriate.

There are other valuable parts of this volume that might be overlooked if it is viewed solely as an encyclopedia of terms, procedures, and decisions.  These include several short, but excellent introductory essays to the Constitution and constitutional interpretation, which should not be neglected, especially by lay readers.  In addition, the book contains a list of all 2,635 Supreme Court decisions discussed in the book (in alphabetical order, with references to page cites), as well as a list of justices and a brief biography of each, a time chart of the Supreme Court, and a good index.   Potentially the most important and discounted tool, however, may be the "Concordance to the Constitution" that the author has prepared, which identifies in index form each section of the Constitution and Bill of Rights where a specific topic is mentioned.

At times, the briefness of some entries and the large number of cross-references make the reader wish for more extensive or in-depth articles.  The book, for example, has four successive entries relating to education -- "education, bilingual," "education, compulsory," "education, foreign languages and," and education, right to," -- in addition to several other entries concerning schools and individual issues.  Why not a larger, more comprehensive essay combining all of the subjects relating to education and schools?  The answer is that this is not intended to be that kind of book, and criticisms like these are nitpicking.  Happily, the purposes behind the author’s choices, including dividing the subjects, are almost always readily apparent and the individual parts combine to create a comprehensive whole.

Lieberman, a professor of law and director of the writing program at New York Law School, had the misfortune of publishing the first edition of this book in 1992, around the same time that Professor Kermit L. Hall published the Oxford Companion to the Supreme Court, and, unfortunately, his excellent work was somewhat overshadowed by it.  (Indeed, a 1993 combined review I wrote of the two books unintentionally gave short shrift to Lieberman’s work, although still complimenting it.)  While the two books occasionally overlap, they are different in approach and content.

This new edition of Lieberman’s book should help give it an identity of its own, which it well deserves.  Although it is similar to the first edition, there are a number of changes beyond the title.  The 1999 version updates many of the entries, and includes more than 350 new cases and more than 25 new essays on topics that were either omitted from the earlier edition or, as the author acknowledges, were in the wrong place.  The book also will have annual supplements, an essential part of any Supreme Court or Constitutional law related tool.

A Practical Companion to the Constitution is a significant book that stands on its own, and that deserves a place on the bookshelf (but not only on the bookshelf) of every student of law or constitutional history.

Alexander Wohl, an attorney, is an Adjunct Professor at American University (Washington, D.C.) in the Department of Justice, Law & Society; he is also a contributing editor to Biography Magazine.

Editors’ Note: A review of Kermit Hall’s Oxford Companion to the Supreme Court (Oxford University Press, 1999) is scheduled to appear in a future issue of Books-on-Law.

———————————————————————
Prisons, Public Policy, and Legal Theory
by Donald A. Dripps

Judicial Policy Making and the Modern State
Malcolm M. Feeley & Edward L. Rubin
New York, NY: Cambridge University Press, 1998
Cloth: $69.95
Pp. xv, 490.

This interesting and ambitious study really combines two different books.  One is a concise yet richly detailed history of how the federal courts reformed America’s prisons from about 1965 until about 1990.  The other is an extended, purportedly descriptive, analysis of judicial policy making.  The authors, Professors Malcolm M. Feeley and Edward L. Rubin, argue that the prison cases illustrate that courts make public policy, and that the process of judicial policy making is distinct from traditional adjudication, and yet legitimate.  They conclude that the legitimacy of the distinctive judicial policy making mode confirms the obsolescence of familiar doctrinal tropes -- specifically federalism, the separation of powers, and the rule of law.

The first book -- the one about prison reform litigation -- will be justly and, I expect, universally praised.  The dramatic changes in prison administration imposed by the federal courts are under appreciated by the public, which remains virtually ignorant of them, as well as by the legal academy, which tends to slight important subjects that fall between the cracks of regular course offerings or that fail to find their way into the United States Reports.  Professors Feeley and Rubin have done a significant scholarly service by offering a comprehensive yet readable account of the prison reform litigation revolution.

Briefly, their account shows that in the 1960s, prison systems in the South were run by selected inmates, discipline was enforced by shooting or torture, food and medical care were inadequate, and no attempt was made to provide vocational training or other rehabilitative services.  Inmates depended on other inmates for physical security, the necessities of life, and the smallest luxuries.  Endemic violence and corruption attended these arrangements.

Despite a steady stream of prisoner complaints, prior to the 1960s the federal courts consistently refused to intervene in the administration of prisons.  Beginning in the mid-1960s, however, federal district judges found it within their power to order sweeping changes in prison administration.  The courts of appeal upheld these decisions, and the Supreme Court refused to intervene (as it did intervene to stop institutional reform litigation aimed at urban police departments).

There are several remarkable features of the prison cases.  They frequently involved the judge in first-hand fact-finding in the form of a personal tour of the institution.  They involved long-term supervision of the prisons by the local federal court, in the form of consent decrees that required on-going monitoring by a special master or compliance officer.  These decrees, moreover, governed prison administration in extraordinary detail, as the authors note, down to the wattage of the light bulbs and the frequency of showers.

Their pretensions to agnosticism notwithstanding, Feeley and Rubin offer a persuasive case that the prison reform litigation made the prisons better -- by no means perfect, but clearly better.  At least in this instance, judicial activism worked.   Debate about legitimacy will doubtless continue, but no judge who reads this history will nurture the illusion that it is invariably cruel to be kind.  Nowadays the complaints coming out of prisons concern things like exposure to second-hand tobacco smoke; in the mid-1960s, they concerned whippings and electric shocks to the testicles.   The judges had a major hand in this transformation, and Feeley and Rubin tell that story well.

The authors’ theoretical claims about judicial policy making will provoke more dissent. Certainly the idea that judges make policy is not new, nor is there much novelty in the claim that the modern administrative state made the 19^th Century model of adjudication obsolete. For example, Justice White, dissenting back in Miranda v. Arizona (1966), conceded that judges interpreting the great clauses of the Constitution make new public policy and always have.

A few years before, Professor Grant Gilmore acknowledged the force of the realist critique of formalism in the wake of the administrative state ("Legal Realism: Its Cause and Cure," 70 Yale L.J. 1037 (1961)).  But Gilmore denied that judicial policy making represents a radical departure from the former practice of adjudication.  One could tell the story of the prison reform cases along the lines of Gilmore’s interpretation of how progressivism and the New Deal altered the law in the early 20^th Century.  In such an account, the judges did what they always have -- adapted the available legal materials to changing circumstances or to evolving public values.

The gist of the Feeley and Rubin argument is something like this.  The prison cases cannot be squared with traditional understandings of federalism, separation of powers, or legality.  Yet the prison cases were decided by a wide cross-section of the judiciary, rather than a rogue majority of the Supreme Court.  They also reached results that most people find morally acceptable, if not imperative.  Ergo, there must be something outmoded about federalism, separation of powers, and legality.

The prison cases, however, emerged immediately after two doctrinal changes made by the Supreme Court.  First, Monroe v. Pape (1961) held that police on duty act under color of state law for purposes of 1983, even when they violate state law by abusing citizens.  Second, Robinson v. California (1962) held that the Fourteenth Amendment incorporated the Eighth Amendment’s cruel punishments clause.  Until Robinson, Eighth Amendment scrutiny of state prison conditions was barred by O’Neil v. Vermont (1892).

Thus, there is a very good reason why the prison cases didn’t bear fruit until the mid-1960s.  Until then, there was no federal constitutional law applicable to state punishment.  Due process was in play, of course, but convicts are not defendants.   Convicts have had (in theory, anyway) or waived a criminal trial, as much notice and opportunity to be heard as there is.  That left substantive due process, but in the ‘50s and early ‘60s, substantive due process was a habit the judges were thought to have kicked.

Professors Feeley and Rubin argue that the detail of the remedial orders makes it impossible to characterize the prison cases as involving traditional constitutional interpretation, but this claim is debatable.  There are clear Eighth Amendment violations, there are clear non-violations, and there are middle cases.  A starvation diet would clearly violate the cruel punishments clause; but the adequacy of diet is not a binary category.  Holding the prisoner in total darkness for a term of years would clearly violate the clause; but how much light, ventilation, sanitation and so on are minimally sufficient will be a matter about which reasonable minds can disagree.   Obviously the judges made policy; but that they made it in defiance of the rule of law seems questionable.

Other plausible arguments might square the prison cases with separation of powers principles and with federalism.  As for federalism, once Robinson made the Eighth Amendment part of the Fourteenth, federalism as a doctrinal matter was out of the picture.  The Fourteenth expressly limits state sovereignty.  Once construed to ban cruel punishments, the Fourteenth Amendment cannot, in doctrinal terms, be countered by an appeal to federalism.  To be sure federalism weighed against the result in Robinson, but once that Rubicon was crossed there was nothing radical about the lower federal courts’ second-guessing state punishment practices.

Separation of powers is a more complex story.  That the administration of penitentiaries is a novel judicial task can hardly be gainsaid.  Professors Feeley and Rubin argue that the separation of powers should be understood in pragmatic terms of checks and balances rather than as the separation of governmental functions.  This is indeed the prevailing view in the modern cases (e.g., Morrison v. Olson (1988); Mistretta v. United States (1989)).  It may well have been the view of the founders themselves, who authorized Chief Justice John Jay to negotiate a treaty, and who created a commission to award benefits to veterans of the revolutionary war.  That the prison cases depend on a checks-and-balances, as opposed to a separation-of-functions, conception of the separation of powers need not call for any radical change in legal thought.

One might defend the authors’ three targets -- separation of powers, federalism, and the rule of law -- in terms of John Hart Ely's theory of judicial review (Democracy and Distrust (1980)).  Ely reads the Fourteenth Amendment as a delegation to future constitutional decision-makers to identify and enforce unenumerated rights, which he would locate in predictable failures of the democratic political process.  Prisoners, as Rubin and Feeley recognize, are politically helpless.  On Ely’s account, there is no legality deficit to the prison cases, because the Fourteenth Amendment authorizes the judges to protect the politically powerless.

On Ely’s account, moreover, the prison cases have no federalism deficit, because the Fourteenth Amendment has the purpose of limiting state abuse of the politically powerless.  And, if we conceive of the Fourteenth Amendment as a popular delegation to the courts of the power to protect helpless victims of electoral arithmetic, there is no separation of powers deficit either.  The prison cases, while procedurally revolutionary (see Abram Chayes, "The Role of the Judge in Public Law Litigation," 89 Harvard Law Review 1281 (1976)), do not force us into radical changes in legal theory.

The authors come close to recognizing this, for they alternately claim to drag the practice of judicial policy making into the open and yet assert that everybody already knows that judges make policy.  As to whether judges make policy, there is no sane dispute.  As to how judges make policy, the subject has received inadequate attention, and here Feeley and Rubin generate some important insights.   They compare policy making in the legislature, the executive, and the agencies with judicial policy making.  The comparison is intriguing.

The standard account of policy making describes five steps: problem description, goal identification, development of alternatives, selection of an alternative, and implementation.  Professors Feeley and Rubin note that judicial policy making tends to submerge, if not elide, the third stage, and often the fourth is distorted or concealed by the need to square the decision with legal doctrine in a written opinion.   Ironically, when administrative agencies reach similarly opaque decisions, they get reversed by the courts under the "hard look" doctrine.

I can think of only one salient counter-example of self-conscious judicial weighing of alternatives.  In Miranda v. Arizona (1966), the Court granted review in five cases and received amicus briefs from all quarters for the purpose of generating a new legal regime to regulate police interrogation.  If one believes that Miranda was at least a qualified success, it seems reasonable to suppose that judicial policy making might benefit from a more open approach to policy making of the sort that Rubin and Feeley have in mind.

The analogy to the hard look doctrine might well provide a model for evaluating judicial policy making.  Under Citizens to Preserve Overton Park v. Volpe (1971), reviewing courts insist that administrative agencies act within the scope of the authority confided by law, consider all relevant factors, avoid clear errors of judgment, and comply with applicable procedural requirements.  Adopting these standards for their own use, courts might frankly characterize their choices as within a range of discretion delegated by broad constitutional or statutory language, consider the plausible alternatives against one another, and scrupulously ensure that their decisions are informed by input from a wide spectrum of opposing views.  The Court did something very much like this in Miranda; and while Miranda can be criticized on any number of grounds, it seems unlikely that any other organ of government could have dealt with the confessions problem more thoroughly or more thoughtfully.

As things stand, the courts make policy under the authority of very broad language which they sometimes characterize as requiring, rather than allowing, the result.   Minimizing (if not denying) the causal significance of doctrine itself, Feeley and Rubin delve into the determinants of judicial decisions.  One of the difficulties with legal realism has been that denying the dispositive power of doctrine does not identify the real reasons for the result.  Feeley and Rubin locate the real reason in the judge’s need to integrate her own values with the authoritative sources her role requires her to consult.  Most judges will be in sympathy with most doctrine for purely sociological reasons, and so the process does not require extensive double-think.

The Feeley and Rubin account of integration sounds like a sensible description of judging, but the process Feeley and Rubin describe is by no means inconsistent with familiar legal theory.  Rules standing alone are not law, and not even the flintiest positivism ever asserted that they are.  The Constitution of the Confederacy still proclaims its own validity, for instance.  It is only the commitment of human beings to abide by rules that can turn them into law.

The commitment may influence the content of the rules, but those who choose to become, in jurisprudential jargon, insiders have only quite limited power to change the rules without stepping out.  As Feeley and Rubin persuasively note, there are many decisions a judge can’t make without looking like an idiot, and that is a high price to pay even to secure one’s favored outcome.  Sociological incentives to comply with doctrine, however, do not deny the conceptual claim that when idiosyncratic decisions become commonplace, the rule of recognition has changed or the society has lapsed into anarchy.

Liberal positivists have nothing to fear from the Rubin and Feeley account.   Followers of H.L.A. Hart can use the prison cases as evidence that positive law frequently leaves the judges legislative discretion.  Disciples of Ronald Dworkin can point out that the process of integration Feeley and Rubin describe looks very much like the "moral reading" of the legal order.  Theorists of all persuasions can join in the call for a little more candor and a little less coyness from the courts.

Judicial Policy Making and the Modern State offers an excellent account of the prison reform cases and a provocative assessment of their implications.  Even troglodytes who persist in valuing legality and similar trifles can agree with the authors that judicial policy making is common and deserves more careful study than it has hitherto received.

Donald A. Dripps is the James Levee Professor of Law and Criminal Procedure at the University of Minnesota.

Editors’ Note: Consistent with our policy of full disclosure, we note that while Profeesor Edward Rubin is on our Editorial Board, he had no knowledge of our plan to review his book and therefore had no say in the selection of a reviewer.

———————————————————————
The Biography of Race
by Scott D. Gerber

A Defiant Life: Thurgood Marshall and the Persistence of Racism in America
Howard Ball
New York, NY: Crown Books, 1998
Cloth: $30.00
Pp. 428

In the introduction to my recent biography of Clarence Thomas, First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999), I discuss the five main types of judicial biography.  The first four types -- the "Life and Correspondence of. . ." collection, the personal biography, the legal philosophy study, and the full-scale judicial biography (or autobiography) -- are quite broad.  The fifth type is quite specific.  It is this more specific type that Richard Posner, Chief Judge of the U.S. Court of Appeals for the Seventh Circuit and one of the most influential legal scholars of the twentieth century, advocated in his keynote address to the 1995 National Conference on Judicial Biography.  According to Posner, encyclopedic treatments of a justice’s life or career are unlikely to bear much relation to what should be the primary function of judicial biography: "to illuminate the judicial process."  Rather, a "judicial study" that focuses on a particular aspect of a justice's tenure "holds greater promise" for informing readers about how the judicial process really works.

First Principles was written with Posner’s recommendation in mind.   And what my study of Justice Thomas’s acclimation period on the Supreme Court revealed about the judicial process was how political it is.  Howard Ball's new biography of Thurgood Marshall -- the man whom Justice Thomas replaced on the Supreme Court -- is also a more specific type of judicial biography.  In Ball’s case, what he endeavors to illuminate about the judicial process is how racist it is.  He is largely successful.

Professor Ball opens his biography with a chapter on the early history of racism in American law: slavery, the Supreme Court's narrow reading of the post-Civil War Amendments, and Plessy v. Ferguson (1896), among other issues.  There is virtually nothing about Thurgood Marshall in the chapter.  Ball’s apparent objective is to give readers who don't specialize in law and courts the background they need to understand Marshall’s vast impact on American law and society.  (Ball is plainly trying to reach a broader audience with his commercially-published book.)  The second chapter, which again contains almost nothing specifically about Marshall, describes the rise of the NAACP and Charles Houston's vision of black lawyers as "social engineers."

Chapter 3 is where Marshall begins to dominate Ball’s story.  Ball does a nice job in explaining how Marshall came to work for the NAACP, and in presenting the personal characteristics -- a razor-sharp wit, a willingness to work long hours under terrible conditions, and an unwillingness to back down in the face of adversity -- that made Marshall the most successful civil rights lawyer in the history of the United States.  Chapters 4 and 5, which chronicle Marshall's early tenure with the NAACP, provide more of the same.  After reading those chapters, I couldn't help but be even more impressed than I already was with what Marshall managed to achieve in the face of truly great odds (and threats to his personal safety).

It is textbook knowledge -- literally textbook knowledge -- that Thurgood Marshall was the lawyer who successfully argued Brown v. Board of Education (1954) before the Supreme Court of the United States.   Professor Ball devotes the sixth chapter of his book to this landmark case: to Marshall’s ability to effectuate Houston’s vision of black lawyers as "social engineers;" to the original arguments to the high Court and the subsequent re-arguments; to Chief Justice Fred Vinson's "opportune" death and replacement by the more sympathetic Earl Warren (Ball quotes Justice Felix Frankfurter as remarking at the time, "This is the first indication that I have ever had that there is a God" [129]); to the implementation decree of Brown II in 1955; and to massive resistance in the Deep South to all of the above.   The story of Brown v. Board has been told many times before, but I have to admit that I got goose-bumps when I revisited the case in Ball’s book.  Here is a highlight of Ball’s presentation of this great drama in the history of American law:

Marshall was flabbergasted!  A unanimous decision from a Court that was, as recently as a year ago, very divided on this constitutional issue.  There was one moment during the reading [of the opinion from the bench] that Marshall always remembered. It involved Justice Reed.

Marshall and others believed that Reed, and a few other justices, would dissent from any Court overturn of Plessy.  He even heard that Reed had brought in an extra law clerk to help the jurist prepare his dissent in Brown.  As Warren read the unanimous decision in Brown, Reed looked at Marshall and nodded almost imperceptibly. Marshall nodded back. (133)

Chapter 7 turns from triumph to tragedy: to Marshall’s distress over the lost opportunities of Brown.  It is in Chapter 7 where Marshall’s disdain for those who stood in the way of his vision of equality is most plainly in evidence.   Put directly, Marshall thought that President Eisenhower was a racist.  And as Ball chronicles later in his book, Marshall felt the same way about several members of the Supreme Court with whom he served (Rehnquist and Powell, in particular).

Marshall may have been frustrated with the slow pace of progress on civil rights in the United States, but Professor Ball documents throughout his book that most Americans realized that, in fact, tremendous headway had been made.  Consequently, after brief stints as a U.S. Court of Appeals judge and as U.S. Solicitor General (which Ball describes in Chapter 8), it was perhaps inevitable that the man most responsible for that progress would find himself appointed to the Supreme Court of the United States.  If anyone ever earned a seat on the high Court, it was Thurgood Marshall.

Ball devotes six chapters of his fifteen chapter biography to Marshall’s Court years.  In keeping with the overall theme of his book -- that race was the driving force in Marshall’s life and career -- Ball analyzes Marshall’s Supreme Court opinions and votes almost exclusively in terms of what they have to say about Marshall's racial politics.  This approach works well, obviously, when Ball is describing Marshall's views on the Equal Protection Clause in general (Chapter 10) and on affirmative action in particular (Chapter 11).  It works less well -- but it still works, nevertheless -- when Ball is examining Marshall's criminal justice jurisprudence (Chapter 12).

In contrast, with the notable exception of the abortion issue -- Marshall thought that poor blacks would bear the brunt of the Rehnquist Court’s attempts to narrow the scope of Roe v. Wade (1973) -- Ball’s racialist approach works not at all when he turns to Marshall's views on the First Amendment (Chapter 13) and on privacy (Chapter 14).  In fact, one of the few references to race in those chapters -- if not the only reference -- occurs when Ball, after presenting a long casebook-like summary of Buckley v. Valeo (1976), asserts that "Marshall dissented from the part of the opinion that invalidated the expenditure limitation because he felt that part of the law tried to level the political elections playing field for less affluent, minority candidates" (318).  Ball then immediately moves on to a summary of another First Amendment case that has nothing to do with race (and then to another and another).

Dick Francis's most recent work of fiction is titled Field of Thirteen.   (There is more to life than law and courts books, dear readers.)  That title refers to the number of short stories in the collection, and also to the number of horses in Francis’s fictional race.  I am not certain how many biographies have been written about Thurgood Marshall to date, but it is probably more than thirteen.   Consequently, the question that kept popping into my mind when I was reading Ball’s biography was this: Is there anything new here?

After all, Carl Rowan already had written Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall (1993); Mark Tushnet had penned Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (1994) and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (1997); and Juan Williams had released Thurgood Marshall: American Revolutionary (1998).   Not only do those other biographies cover the same ground that Ball covers in his book, but the authors of those books had a personal access to Marshall that Ball did not.   Indeed, a glance at Ball’s endnotes reveal that most of the quotes that he attributes to Marshall are quoted from the other biographies.

This said, there is a lot to like about Professor Ball’s biography of Thurgood Marshall.  Ball writes well (with the exception of the myriad of case summaries that quickly become tedious), and his concluding chapter (Chapter 15) is a model of how to close a book on a high note.  Most importantly, though, Ball’s book is worth reading because of whom his subject is.  Although Marshall can fairly be criticized for focusing too much on race during his tenure on the Supreme Court -- as my biography of Clarence Thomas suggests, is it really appropriate for a justice to view race as a principle of law? -- all Americans, be they white or black, can only benefit by revisiting the life of one of the most significant figures of the 20^th Century.  As Professor Ball’s book shows well, we owe a great debt to Thurgood Marshall.

Scott Douglas Gerber, Ph.D., J.D., is Senior Research Scholar in Law and Politics at the Social Philosophy and Policy Center.  He is the author of, most recently, First Principles: The Jurisprudence of Clarence Thomas (New York: New York University Press, 1999).

Editors’ Note: For another review of a book on Justice Thurgood Marshall, see Judge Nathaniel Jones's review of Professor Mark Tushnet’s second biographical volume on the Justice.  See also Ronald K.L. Collins, "Making the System Work," Washington Post (Book World), Dec. 20, 1998, p. 1 (reviewing Juan Williams, Thurgood Marshal: American Revolutionary (1998)).

NB: To the best of our knowledge, neither Professor Ball nor Professor Gerber knew that one was reviewing the other’s book.

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