Editors' Note: Recently, an Oregon woman sued Paladin Press, alleging that Hit Man was used by a hired killer for an attack on her two years ago.

For other Books-on-Law reviews focusing on free speech, see Bruce Johnson's review of First Amendment, First Principles (2000) by John F. Wirenius; C. Thomas Dienes' review of Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us (1999) by Bruce W. Sanford; and Chris Finan's review of Bookleggers and Smuthounds: The Trade in Erotica, 1920-1940 (1999) by Jay A. Gertzman. See also our General Index of Reviews (under Free Speech).

The Limits of Law: Essays on Democratic Governance
Peter H. Schuck
Boulder, CO: Westview Press, 2000
Cloth: $75.00 / Paper: $32.00
Pp. 504
ISBN: 081336759X (cloth) / 0813367581 (paper)

The Limits of Law is a collection of law review articles about administrative law, constitutional theory, and related public law topics that Peter Schuck has written over the course of the past two decades. Gathered in one place, they confirm what readers of the individual articles already know: that Schuck is one of the most thoughtful and perceptive scholars in these fields. The essays, which range from pragmatic topics such as regulatory strategy, regulatory politics, judicial review and public law litigation, to theoretical issues of federalism, factionalism, delegation, and legal complexity reveal an incisive understanding of the relevant issues, and a balanced approach to them that is both refreshing and reassuring in these contentious times. Anyone interested in one of the topics Schuck addresses should consult this book; anyone interested in public law or regulation should read it in its entirety.

While much could be said about each of the essays in the book as individual articles, this review will focus on their totality as a book. To collect a group of writings and present them under a single title (apart from a title such as "Collected Articles") advances some sort of implicit claim about their unity of purpose or vision, and that claim deserves to be evaluated. In addition, Schuck has written a concluding chapter, eponymous with the part of his title before the inevitable colon, that, in his words, "distills, extends, and generalizes the main lessons of the preceding chapters." (xi) This is a more explicit claim to unity, and also provides a detailed account of what the author regards as the unifying themes.

The first part of this review will discuss the new legal process school. The second will argue that the overarching vision of the book places it within this school. The third part will evaluate some of the premises of this school by focusing on Schuck's concluding chapter.

The New Legal Process School

Professor Schuck's general approach to public law falls into the category of scholarship that I, and others, have identified as the "new legal process." (Edward Rubin, "The New Legal Process, The Synthesis of Discourse, and the Microanalysis of Institutions," 109 Harvard Law Review 1393 (1996); Edward Rubin, "Institutional Analysis and the New Legal Process," 1995 Wisconsin Law Review 463; William Eskridge & Gary Peller, "The New Public Law Movement: Moderation as a Postmodern Cultural Form," 89 Michigan Law Review 707 (1991)) The legal process movement, a synthesis of formalism and realism, began from the premise that the role of courts was determined by political decisions. It then proceeded to analyze the wisdom of those decisions, that is, the kinds of tasks that a rational political decision maker should assign to the judiciary.

This analysis was carried out by comparing the relative competencies of different governmental institutions. Lon Fuller argued that courts, given their reliance on party-driven factual presentations and reasoned legal arguments, were well-suited to adjudicate bilateral disputes, but ill-suited to resolve complex, "polycentric" issues of public policy. (Lon Fuller, "The Forms and Limits of Adjudication," 92 Harvard Law Review 353 (1978), originally written 1957-61) In the constitutional arena, Herbert Wechsler elaborated the idea of reasoned legal argument into a claim that courts must rely on neutral principles. (Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harvard Law Review 1 (1959)) Two decades later, Jesse Choper and John Ely clarified the implicit legal process position that the courts were institutionally designed to protect human rights, but not to police the interactions of the political branches. (Jesse Choper, Judicial Review and the National Political Process (University of Chicago Press, 1980); John Ely, Democracy and Distrust (Harvard University Press, 1980))

Underlying these various claims were at least two general perspectives. The first was that law was an independent conceptual system, although operating within an institutional context, and it could not be understood without understanding the institutions in which it was embedded. The second was an abiding, albeit qualified, faith in the democratic process. What was best for the people was what the people chose; a morally superior result to popular choice was possible only in those relatively rare situations where the democratic process had broken down.

The legal process school came under a sustained attack during the 1970s and 80s from both the law and economics and critical legal studies movements. Beginning from different political positions and using different methodologies, both movements challenged the idea that courts made decisions on the basis of reasoned legal arguments, or that the political forces that allocated authority to courts made decisions in the public interest, and would thus allocate responsibilities to courts on the basis of the courts' comparative institutional advantages.

Even more importantly, both movements challenged the general perspectives of legal process. First, they asserted that law was not simply embedded in institutions, but determined by those institutions. In other words, it is a by-product of economic forces, dependent if not epiphenomenal, and not a coherent conceptual system. Second, they advanced substantive and elaborated standards that they asserted were superior to the people's democratically determined choices – efficiency in the case of law and economics, and equality in the case of critical legal studies. They argued that systematic defects in the political process prevented public policy from achieving these superior standards.

As the critical legal studies movement disintegrated, and the law and economics movement was taken over and modified by real economists, interest in the legal process school revived. The scholars whose work reflected this revival, however, had absorbed the insights of the critics. They were willing to acknowledge that political leaders do not necessarily act in the public interest, that judges do not necessarily decide cases on the basis of legal reasoning, and that the entire concept of legal reasoning may be a chimera. What allied them with the legal process school of the preceding generation were two beliefs, at least. First, they maintained the idea that different institutions have different competencies, and that consideration of these differences could lead to optimal allocation of governmental tasks. (For example, see Neil Komesar, Imperfect Alternatives (University of Chicago Press, 1994).) In so doing, they revived the legal process school's belief in law as an independent, although institutionally embedded conceptual framework; in light of the intervening criticisms, however, they no longer claimed that law is a conceptually coherent system, but only that it is a social practice employed by institutions, such as courts, that have legal competencies. Second, they believed that the democratic process, despite all the defects which law and economics and critical legal studies had emphasized, was morally superior to any substantive standard such as efficiency or equality.

Essays on Democratic Governance and the New Legal Process

The twelve previously written chapters in Schuck's book – his "Essays on Democratic Governance," as it were – demonstrate that he belongs to this new legal process movement; in fact, he is one of its principal exponents. Perhaps he would dispute this, since scholars typically do not like to pigeon-hole themselves. Moreover, Schuck's own brief description of this movement (20-21) restricts it to the analysis of legal interpretation that characterized its predecessor, but he falls within the broader definition offered above.

To begin with, Schuck's method of analysis is consistently comparative. In discussing regulatory strategy and reform, he evaluates regulation by comparing its advantages and disadvantages with those of an unregulated market. (Chapter 6) In discussing federalism, he compares the political and social forces that lead to centralized and decentralized approaches, avoiding all the tiresome old bromides about the Framers' intent, the rights of states, and the implied powers of the federal government. (Chapter 3) He criticizes David Schoenbrod's efforts to revive the non-delegation doctrine by comparing the present regime with the regime that would prevail if courts enforced this doctrine. (Chapter 8, reviewing David Schoenbrod, Power Without Responsibility (Yale University Press, 1993)) He analyzes the proper role of courts by comparing them with other governmental institutions; they are inferior to the political branches as a means of controlling partisan gerrymandering, although superior as a means of achieving a one-person, one-vote principle (Chapter 10); they are superior to both the market and administrative agencies as a means of resolving mass tort claims (Chapter 11); they are sometimes effective and sometimes ineffective in achieving social reform, but the overall pattern is too complex to yield to the sort of generalities that Gerald Lopez and Gerald Rosenberg have asserted (Chapter 12, reviewing Gerald Lopez, Rebellious Lawyering (Westview Press,1992) and Gerald Rosenberg, The Hollow Hope (University of Chicago Press, 1991)). This is an effective method of analysis that, in Schuck's able hands, yields balanced, thoughtful judgments; his responses to the sweeping, rather absolutist claims of Schoenbrod, Lopez and Rosenberg are quite convincing.

Second, Schuck takes law and legal doctrine seriously, but he treats them as a social practice, rather than a conceptually coherent system. He is willing to delve into the complexities of doctrine, and several of his chapters include highly accomplished analyses of statutory provisions or judicial decisions. (For examples, see Chapter 5 on statutory exceptions, and Chapter 10 on reapportionment doctrine.) More often, however, he explores the social and economic sources of law, in a manner characteristic of the new legal process approach. He notes the increasing complexity of law – itself a social rather than a doctrinal insight – and attributes such complexity to a series of institutional factors, including the self-interest of legislative staff, the self-interest of bureaucrats, the interaction of litigants and judges, and the conceptual features of modern legal scholarship. (Chapter 1) He assesses the use of scientific evidence in litigation by treating law and science as two separate professional cultures, rather than adopting the traditional approach of framing legal rules by which scientific evidence can be judged. (Chapter 2) He treats regulation as a product of economic and social forces, not a public-spirited response to perceived problems; but he rejects James Q. Wilson's model, which relies heavily on economic self-interest, and links the development of modern social regulation to broad social attitudes that constitute the "zeitgeist." (Chapter 4) And his approach to the most famous case in modern administrative law, Chevron U.S.A., Inc. v. NRDC (1984), is not to criticize its doctrinal coherence, something that has become a leading sport among administrative law professors, but to conduct an empirical study of the lower courts' responses to it. (Chapter 9)

A third overarching feature of the essays in this book that is characteristic of the new legal process movement is Schuck's qualified endorsement of democracy. He is aware of its defects; some reference to the distortions of interest group politics or the failures of public institutions appears on virtually every page. Thus, he does not justify the democratic process because it represents the will of the people, or because it guarantees social justice, or because it maximizes economic well-being. Rather, Schuck regards our complex modern democracy as the best way to achieve civil order and implement collective problem solving in a large, diverse industrial society. In one brilliantly argued essay (Chapter 7), he challenges both James Madison and modern "good government" advocates on their condemnation of special interest groups, or factions. Of course these interest groups create inequality and injustice in certain situations, Schuck argues, but they also enable many individuals to participate in governance, provide valuable information to public officials, and offer protection to individuals against governmental over-reaching. They are, thus, a necessary element in a modern democratic process.

The Limits of Law and the New Legal Process

Schuck's concluding essay, newly written for this book, is, like the book itself, entitled "The Limits of Law." In it, he attempts to draw the themes in the preceding essays together through a discussion of the role of law in a modern administrative state. Schuck begins by distinguishing between "top-down" rules, essentially command and control regulation, and "bottom-up" rules that "reflect information and values whose main source is the intended consumers of the rules." (422) He then summarizes the principal critiques of law – the libertarian critique that law restricts liberty, the functionalist critique that law is inefficacious, and the illegitimacy critique that it fails to induce people to follow its strictures. To evaluate these critiques, Schuck compares law with two other mechanisms of social regulation, norms and markets, by focusing on five "criteria for policy design" – incentives, information, flexibility, transaction costs, and legitimacy. He concludes that law is often the worst of the three. But, since the rule of law is, in Schuck's view, "humanity's greatest creation" (454), we should not give up on law, but seek ways to improve its operation and minimize its impact.

This essay certainly "distills, extends, and generalizes" the book by employing the new legal process principles that characterize the other essays; it relies on institutional comparison, it treats law as an institutionally embedded social phenomenon, and it generates its value system from a proceduralist concept of democracy. It also reflects some of the ambivalences that characterize the rest of the book, and the new legal process movement generally. In terms of substance, the essay simultaneously presents two different comparisons – the comparison between top-down and bottom-up rules, and the comparison between law and non-legal regulation such as social custom or markets. The second comparison reflects the lessons that the new legal process has learned from law and economics, and reaches the expected negative conclusions about the desirability of law on that basis.

These conclusions are debatable, however. The criteria for evaluation, which are not really derived from prevailing theories of policy design, seem to have been selected to disadvantage law and yield a negative conclusion; indeed, one of them, legitimacy, is identical to one of the identified critiques of law. Had law been compared with norms and markets according to the criteria of intergenerational justice, income redistribution, protection of human rights, collective problem solving and national security, results might have been different.

The first comparison, between top-down and bottom-up rules, reflects at least some of the insights of critical legal studies, as well as law and economics. Command and control rules are in disrepute these days, and merely framing the issue as a dichotomous choice is virtually sufficient to decide it. But that conclusion is debatable as well, for it leaves open the question of who will decide whether the bottom-up rules generated by ordinary citizens (the CLS idea) or merchants in the industry (the law and economics idea) are desirable social policy. There is a vast difference between using social norms and markets as resources for implementing public policy, which is what Schuck seems to favor, and allowing private individuals to determine the principles that guide the polity. In addition, there is a difference between any bottom-up rule, even one that simply enacts principles determined by private individuals, and allowing private individuals to be governed by those norms and markets directly. Schuck is not unaware of these points; he is simply ambivalent about them. This ambivalence is reflected in several of the other essays in the book (e.g., Chapters 1, 6, and 7) and in many other works in the new legal process movement.

A second ambivalence in the new legal process, which in certain ways contributes to the first, involves the methodology for legal scholarship. The original legal process movement could rely on something that it called legal reasoning, since its proponents believed that law was a coherent, although institutionally-embedded system. Both law and economics and critical legal studies attacked this as intellectually indefensible, and proposed methodologies derived from other disciplines (micro-economics and Continental social theory, respectively) as an alternative. The new legal process movement, although accepting many of these movements' insights, has displayed a certain tendency to backslide, to return to the comfortable, but ultimately unconvincing belief that law can be analyzed in its own terms, without subjecting oneself to the complex, burdensome task of understanding other disciplines.

Schuck makes about as good a case for this approach as can be made. His analysis of politics, social systems, and intellectual movements is invariably thoughtful, balanced and perspicacious. Ultimately, however, the kind of analysis he wants to do, and that other new legal process scholars want to do as well, demands a more fully developed theoretical framework. For example, the relationship of top-down and bottom-up rules, and the relationship between such rules and social norms and markets, is central to the work of many modern social theorists, including Habermas, Luhmann, Parsons, Giddens, North, and Williamson, any of whom could be of help in clarifying the cross-cutting categories that are involved. At present, new legal process contains simply too much discussion of organizations without reference to organizational theory, too much discussion of social attitudes without reference to sociology or social theory, too much discussion of transaction costs without reference to transaction cost economics.

This is not intended as a condemnation of the new legal process, but as a way of expanding and deepening an extremely promising approach. In my view, this movement represents the future of legal scholarship. As it proceeds, it will undoubtedly deploy better-developed methodologies to address the complex issues of the modern legal system. At present, no better examples of it can be found than Schuck's essays in The Limits of Law.

Edward Rubin is Professor of Law at the University of Pennsylvania Law School. He writes in the areas of administrative law, commercial law, and legal theory, and is the author of Judicial Policymaking and the Modern State: How the Courts Reformed America's Prisons (Cambridge University Press, 1999) (with Malcolm Feeley) (reviewed by Donald Dripps for Books-on-Law) and Minimizing Harm (Westview Press, 1999). Professor Rubin is also a contributing editor to Books-on-Law.

Editors' Note: For other Books-on-Law reviews concerning jurisprudence, see Anthony J. Sebok's review of The Problematics of Moral and Legal Theory (Harvard University Press, 1999) by Richard Posner; Stephen Guest's review of Law and Legal Theory in England and America (Oxford University Press, 1996) also by Richard Posner; Pierre Schlag's review of The Stanley Fish Reader (Blackwell, 1999), edited by H. Aram Veeser; Lawrence Mitchell's review of Liberalism and the Limits of Justice (Cambridge University Press, 1998) by Michael Sandel; and Margaret Davies' review of Radical Critiques of the Law (University Press of Kansas, 1997), edited by Stephen M. Griffin & Robert C.L. Moffat.

Professor Edward Rubin's review of my book is probing, insightful, and balanced – just as one would expect from a scholar as accomplished, fair-minded, and incisive as Rubin is. The reviewer is also characteristically generous; indeed, he ascribes more coherence to my essays than I can fairly claim for them.

With one important exception that I discuss more fully below, I do not disagree significantly with any of Rubin's observations, including his generously mild and constructive criticisms of my book. I do have a quibble with his suggestion that the new legal process movement, of which he is both its most assiduous theorist and a leading practitioner in his own right, believes that "law can be analyzed in its own terms, without subjecting oneself to the complex, burdensome task of understanding other disciplines." Speaking only for myself, I believe no such thing. Indeed, like Rubin, I often have criticized the loosey-goosey (mis)use of those disciplines by legal scholars, sometimes even including those with advanced training in them. For better and for worse, we legal scholars tend to be an eclectic, opportunistic, parasitic, and imperialistic group whose superficial grasp of other fields and methodologies sometimes leads us astray.

With that caveat, I certainly agree with Rubin that our work would be greatly enhanced by a "more fully developed theoretical framework" – assuming, of course, that it is a correct, or at least a fruitful, framework. Law being as complex and normatively disputable a social practice as it is, however, this is often a heroic assumption. No single theoretical framework will adequately capture law's manifold meanings, and multiplying the frameworks, while in principle enriching the analysis of law, also inevitably renders the analysis even more indeterminate, reducing its already limited resolving power. Still, Rubin insists that we can do better, and I agree.

Here is my only significant quarrel with Rubin. He notes that the five criteria for policy design that I selected as a template for assessing the relative strengths and weaknesses of law (both "top-down" and "bottom-up" law), markets, and social norms tend to "disadvantage law and yield a negative conclusion," and he adds that had I compared law with norms and markets according to some other criteria that he lists, law might have come out looking better. Fair enough. But my five criteria reflect an important methodological move that I would vigorously defend. I selected the particular criteria I did – incentives, information, flexibility, transaction costs, and legitimacy – precisely because they are values that are essential to the effectiveness of any public policy, regardless of its substantive goals. In saying this, I do not naively suppose that my criteria are entirely value-neutral (whatever that might mean), but I am convinced that they come closer to value-neutrality and universal acceptability than any other non-trivial criteria I can think of. Specifically, they are sharply different and far less contestable than the alternative, unabashedly normative criteria that Rubin cites, such as inter-generational justice and income redistribution.

By calling attention to this difference, I do not mean to deny that Rubin's choices are perfectly legitimate, even compelling values against which to measure law's performance – at least to those people who embrace them, which of course depends on how they are defined and implemented. My point, rather, is that by defining and then using criteria that people of highly diverse normative persuasions can (or should) agree are among the most important measures of (or constraints on) comparative social effectiveness, I hoped to gain some widely-accepted analytical (and to some extent, prescriptive) purchase on the question of social effectiveness in a normatively diverse society that Rubin's explicitly substantive criteria could not.

Readers will have to decide for themselves, of course, whether I have succeeded. I can only hope that their readings of my book are as serious and perspicacious as Rubin's is.

Peter H. Schuck is the Simeon E. Baldwin Professor of Law at Yale Law School, where he has taught since 1979. In addition to the book under review, his Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship (Westview, 1998) has just been published in paperback. He is now working on a book tentatively entitled Diversity in America: Law's Roles.

Free Speech and the Politics of Identity
David A. J. Richards
Cambridge, MA: Oxford University Press, 2000
Cloth: $65.00
Pp. xvii, 278
ISBN: 0198298862

Quoting black lesbian poet activist Audre Lorde, critical theorists claim that "the master's tools will never dismantle the master's house." (See Audre Lorde, Sister/Outsider (Crossing Press, 1984), p. 112) Lorde's insight has come to mean different things to different people. One such meaning is that rights-based theories are not sufficient tools for bringing about the social change that is required to dismantle the house of racism. The critical insight is that using rights analysis can result in a conflict between different rights. In the end, the rights of the more powerful typically trump the rights of the less powerful.

David A. J. Richards is not a critical theorist. His book, Free Speech and the Politics of Identity, like much of his earlier work, is steeped in the discourse of rights. The book's primary focus is the tension between free speech and equality, understood as the right to be free from unjust discrimination. This is a tension that has captured the scholarly attention of many critical race theorists, especially in regard to hate speech and group libel. Richards erases the alleged tension by arguing that free speech and equality are not two independent rights that may find themselves in conflict. Rather, equality depends on a robust freedom of speech doctrine and vice versa. He calls this the "dependence thesis." (129)

Because equality is actually dependent on free speech, Richards asserts that government restrictions on free speech will not generally produce more equality. This is so even when the restrictions are intended to protect those groups that have suffered a long history of structural injustice, groups such as racial minorities, women, and gay people. The three types of governmental restrictions that Richards critiques are group libel, obscenity laws, and laws against blasphemy. In Richards's view, all such restrictions are unconstitutional because they restrict the individual right of conscience.

At the core of Richards's argument is the notion that both the right to free speech and to equality are based on the concept of a society composed of individuals, each of whom has moral responsibility for self. The structural injustice to which he refers is the historical branding of racial minorities, women, and gay people as individuals who are lacking in moral responsibility. Thus, only those individuals who have suffered structural injustice, i.e., those who have been branded as lacking moral responsibility, can adequately protest that injustice and challenge the stereotype of moral inferiority. Intervention by the state for the purpose of countering inequality "worsens the problem it claims to solve because it asserts a paternalistic power in the state in the domain of conviction that the idea of moral responsibility for self repudiates and must repudiate." (244) Not exactly as pithy as Lorde, but the message is similar.

Toleration and Free Speech

Toleration is the value that Richards embraces, both as a justification for free speech and for equality. His concept of toleration is best understood by focusing on the constitutional requirements for religious liberty. Religious beliefs are a matter of individual conscience and, thus, the state cannot interfere with individual judgment regarding such matters. Individual conscience is similarly at the core of free speech rights. The idea that toleration is a constitutional value that will help us understand constitutional rights is not new. Richards has made this argument before, initially in his 1986 book, Toleration and the Constitution (Oxford Univ. Press). He has elaborated further on the theme in more recent works, including Conscience and the Constitution (Princeton Univ., 1993), Women, Gays, and the Constitution (Univ. of Chicago Press, 1998), and Identity and the Case for Gay Rights (Univ. of Chicago Press,1999).

Chapter Two of his new book focuses on toleration as the most workable model for justifying free speech in our constitutional scheme. Richards contrasts his model to utilitarian models, perfectionist models, and the argument from democracy. Utilitarianism fails to provide an adequate explanation of why dissent should be protected. Perfectionism fails because it runs the risk of claiming higher moral ground for certain viewpoints, a privileging of viewpoint that runs counter to liberal political theory. Finally, the argument from democracy actually supports governmental intervention in situations where certain private speech needs help to become more audible. Since the Supreme Court has been unwilling to validate governmental intervention to aid one type of speech over another, Richards claims there must be some better explanation for the Court's rulings in free speech cases. Toleration is Richards's candidate for the better explanation.

Toleration and Equality

In Chapter Three, Richards extends the argument based on toleration to explain the right to be free from unjust discrimination. Of greatest interest (at least to this reader) is his attempt to ground the Court's suspect classification equal protection jurisprudence in values that will more readily include gay men and lesbians. Eschewing the notion that biology, and thus immutability, should affect the degree of scrutiny given to claims of discrimination, Richards instead argues that the key factor ought to be the history of exclusion that brands a group as morally inferior. He further argues that such a history, because it has created negative stereotypes on the basis of race, gender, and sexuality, can sometimes harm the dominant group as well as the subordinate one. Thus, his theory helps justify the current Court's equal protection jurisprudence, which looks closely at the classifications declared suspect whether they discriminate against subordinate groups or in favor of them.

Free Speech as a Remedy for Structural Injustice

In Chapters Four and Five, Richards gives a more detailed presentation of his dependence thesis by looking more specifically at the role free speech has played in the civil rights movements to end racism, sexism, and homophobia. He presents the American experience, primarily through the lenses of history and political theory, and offers similar descriptions of the experiences of other countries for comparison. Readers who are interested in tight legal analysis will not find what they want in these chapters. Yet anyone who is interested in the conflict between free speech and equality is likely to find something in this rich contextual argumentation that can be used to craft creative legal arguments in favor of both equality and free speech.

The Promise of Comparative Public Law

In addition to the American experience of the tension between free speech and equality, Richards explores the experience of other countries, including France, Germany, Iran, Great Britain, Israel, and Canada. He is critical of those countries that have restricted free speech in order to lend governmental support to the previously silenced voices of the oppressed. Richards makes a plea that all countries ought to look to others in order to learn more about which constitutional values best support a liberal democracy. Although the United States has probably developed its constitutional values more myopically than other developed nations, Richards argues that the United States is right about free speech and that other countries are wrong when they allow governmental intervention in matters of conscience.

But his ultimate justification lies not in lessons learned from comparative public law. Rather it lies in the central point of Richards's own argument: "It is the principle of free speech, properly understood, that alone offers the required constitutional acoustics not only for hearing the previously silenced voices of groups afflicted by a history and culture of structural injustice, but for allowing persons in these groups to hear themselves as having a moral voice that challenges the terms of the unjust stereotypes that have traditionally dehumanized them." (251)

Application of the Theory

This book is primarily about political theory. It is densely and richly argued with references to history, philosophy, and psychology, as well as political theory. In the end, a lawyer would want to know how the theory might be applied to resolve concrete legal disputes. And there are many interesting current disputes that are relevant to Richards's inquiry. When, for example, does the state have the legitimate authority to regulate the practices of groups that discriminate? What if the group asserts that the regulation interferes with the group's rights to free speech?

Richards clarifies at least five times in the book that his justification for free speech ought not prevent the government from regulating real harms. He does not count as a real harm the mere stigma that an individual might experience as a result of group libel. By contrast, losses of a job, of an education, or of one's home are real harms. I could not help wondering how I might use Richards's theory to resolve the issue recently faced by the Supreme Court in Boy Scouts of America v. Dale (2000). Is exclusion from the Boy Scouts a real harm under Richards's theory, or is it merely a harm similar to that of group libel? And, although the Boy Scouts organization is not the government, how does the fact that it is heavily supported by the government affect its first amendment rights? Finally, would Richards agree with the Court that exclusion from a large public organization is speech, or would he view it as the sort of action that can be regulated by government? Unfortunately, Richards gives us no indication of his own views in cases such as this.

Although his book is purportedly about race, gender, and sexuality, he virtually ignores many real cases in which First Amendment free speech rights and Fourteenth Amendment equality rights appear to collide. He is significantly silent about gay rights cases that raise such issues. For example, he mentions none of the Boy Scout cases involving exclusion of gays, although all were in litigation when the book was in draft. He fails to mention Shahar v. Bowers (11^th Cir.,1997), an employment discrimination case in which the employer's First Amendment right essentially trumped a lesbian employee's equality right. And, although he does mention Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), he does so only in a footnote and in a conclusory fashion.

The case he chooses to discuss at length is Buckley v. Valeo (1976), a case he has critiqued in earlier work and a case that has little to do directly with race, gender, or sexuality. In Buckley, the Court struck down federal legislative limitations on campaign expenditures, finding that such limitations burdened a candidate's First Amendment speech rights. Richards argues that Buckley was wrongly decided because the Court rejected equalization of political speech as a legitimate purpose. Consistent with the principle of "one person, one vote," free speech theory, according to Richards, must recognize the moral sovereignty of the individual and accord individuals equality of speech in the political sphere. If campaign expenditure limitations are carefully structured to further this purpose, the limitations ought to be upheld.

Although I found what Richards had to say about Buckley convincing in terms of his toleration-based justifications for free speech, I found his choice of this case as the prime example of applied theory somewhat strange for a book purporting to be about the "politics of identity." I don't mean this as a serious criticism of the final product. And, critiques of Buckley are certainly timely in light of continuing litigation about campaign finance reform. Besides, his decision to focus on one particular case doesn't affect the value of his theory.

But I was disappointed at the end of the book, at least in the sense that I wanted more. I still want more. I wish Richards would explain his theory further in ways that will help us to apply it to concrete cases in which defendants offer a First Amendment defense to anti-discrimination claims. Perhaps another book?

Patricia Cain is Professor of Law at the University of Iowa, where she teaches tax, trusts, property, feminist legal history, and sexuality and the law. She is the author of Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement (Westview, 2000).

Editors' Note: For Books-on-Law reviews of related interest, see Jan Alan Neiger's review of Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine (Westview, 1999) by James Weinstein; Timothy C. Shiell's review of Speaking Respect, Respecting Speech (University of Chicago Press, 1998) by Richard L. Abel; Robert Jensen's review and Wendy McElroy's review of In Harm's Way: The Pornography Civil Rights Hearings (Harvard University Press, 1998) edited by Catharine A. MacKinnon & Andrea Dworkin; and H. Richard Uviller's review of Punishing Hate: Bias Crimes under American Law (Harvard University Press, 1999) by Frederick M. Lawrence (& Lawrence's reply). See also the special issue of Dissent, Injustice, and the Meanings of America: An Online Exchange with Steven Shiffrin.

A People's History of the Supreme Court
Peter H. Irons
New York: Viking, 1999 (cloth) / New York: Penguin, 2000 (paper)
Cloth: $32.95 / Paper: $15.95
Pp. xviii, 542
ISBN: 0670870064 (cloth) / 0140292012 (paper)

Peter Irons, a professor of political science and the director of the Earl Warren Bill of Rights Project at the University of California, San Diego, has written or edited a host of books dealing with the Supreme Court and American constitutional law and history. For example, Irons wrote The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court (Free Press,1990). This is a book of case histories decided by the Supreme Court between 1940 and 1986 that addresses four major issues – religion, race, protest, and privacy – by examining the experiences of the persons who brought those cases to the high court. Irons subsequently edited, along with Stephanie Guitton, May It Please the Court: The Most Significant Oral Arguments Made Before the Supreme Court Since 1955 (The New Press, 1994). That book, which made available in the market place the recordings and transcripts of landmark cases that previously had been accessible only through a visit to the National Archives in Washington, stirred protests from the government and some friends of the Court. In these and other works, Irons has sought to bring the business of the high court down to the level of the people whose lives were shaped by the litigation process. All of Irons's scholarship, moreover, has a consistent theme: people, real people, have had a real impact on the American Constitution and the Supreme Court. His approach had drawn praise through national awards given by the American Bar Association; at the same time, conservative critics have complained that Irons manages to explain every turn in the Court's history almost entirely from the perspective of the American Civil Liberties Union.

This latest book will not do much to silence critics on the right. It reaches, albeit in fuller detail and over a longer period of time, much the same conclusions about the Court and American constitutionalism as has his earlier scholarship. In the latter sections of the book, moreover, he relies heavily and appropriately on The Courage of Their Convictions and other works. Irons examines a relative handful of cases, eighty-five to be exact, that cover the breadth of the American constitutional experience. The emphasis in selecting cases was clearly on civil liberties and civil rights, but the coverage ends up being somewhat broader than those two categories alone would suggest. Broadening the range of decisions was a necessity, since much of the pre-Civil War docket of the Court had little to do with either of these matters as they are understood in the post-Fourteenth Amendment world of American constitutionalism.

Irons begins with Hayburn's Case (1792) and ends with Planned Parenthood v. Casey (1992). He touches many of the great chestnuts, including Marbury v. Madison (1803), Dred Scott v. Sandford (1857), Lochner v. New York (1905), Brown v. Board (1954), and Roe v. Wade (1973). The book's analysis, however, is driven more by the people who sought the Court's help than by the constitutional law and doctrine that flowed from the justices' decisions. Hence the title of the book. This is a people's history of the Court, meaning that it is a history that underscores the importance of the people who sought justice through it; it is not a history of the Supreme Court necessarily serving those people. To the contrary, Irons finds much to lament in the frequent inability of the nine-member court to reach anything even close to justice for individual plaintiffs, let alone the people as a whole. If there were any doubt about that matter, Howard Zinn's Preface makes clear that what Irons is seeking to do, to use the phrase that Zinn himself made famous among scholars, is to write a history of the Court from the "bottom up."

As a result, Irons has not given us anything like an encyclopedic approach to the Court's past. Instead, it is a pastiche, a kind of Stephen Sondheim approach to explaining the Court, its business, and the political and social contexts that have shaped and been shaped by it. Much like a Sondheim musical, not every scene, or in this instance every case, is necessarily connected to one another.

Lessons from the People's History

Such an approach has considerable virtue. Not the least of these is that the book abounds in contradiction and irony. We learn, for example, that Henry Weismann, the person most responsible for the passage of the original New York State Bake Shop Law that ultimately became the subject of Lochner, was also the attorney who argued successfully against its constitutionality before the Supreme Court. Moreover, there is scant evidence that Weismann was ever admitted to the high court's bar. Then, there was the case of Fred Korematsu, a soft-spoken Japanese-American who attempted to evade the federal government's round-up after Pearl Harbor by changing his name (to Clyde Sarah), crudely altering his draft card, and undergoing plastic surgery on his eyelids and nose. His efforts to pass as a Spanish-Hawaiian failed miserably (he knew no Spanish); he was arrested, convicted, and sent off to an internment camp for the rest of the war. The American Civil Liberties Union attorney in San Francisco attempted to defend Korematsu, but the government was determined to make his a test case, and it won. Ultimately, the case reached the high court in 1945 where a majority of the justices decided against Korematsu and in favor of the government's clearly racially driven policy of "evacuating" Japanese-Americans to detention camps.

Each of Irons's cases teaches a powerful lesson. The costs of protecting liberty, he reminds us, fall most fully on those whose liberty is most endangered. Indeed, in case after case, Irons details the courage that moved persons to take the emotional and financial risks associated with challenging the government and existing constitutional rules. Irons demonstrates over and over that the making of those challenges has been critical to the history of liberty. Had not, for example, Heman Sweatt and George McLaurin been willing to risk personal safety in the face open racial hatred, higher education – indeed, all public education – would not have been opened to blacks in the American South. At the same time, success at the bar of the Court has hinged not just on personal courage but on legal talent. The skills, for example, of Thurgood Marshall, William Hastie, and Charles Hamilton Houston were essential to ending separate-but-equal and convincing the justices that doing so was possible within the context of the Constitution. One of the most compelling features of Irons's book is his ability to dramatize the contingent nature of the Supreme Court's work. Who sits on the bench of the high court and who argues before it does matter. That was true of the hotly contested abortion decisions of the 1980s and the early 1990s; it remains so today on the eve of the election of either George W. Bush or Al Gore to the presidency.

That reality, along with the insight that success at the bar is not an accident, but instead the result of calculated decisions about how to build a successful constitutional litigation strategy, is also at the heart of Irons's book. While Irons gives emphasis to the ways in which a passion for justice makes the quest for it possible, there is also in his writing the great insight that calculated risk, a talent for grasping the legal main chance, and political shrewdness are essential for a lawyer to hold the high ground in any constitutional contest.

A People's History, then, is a fine and welcome addition to the literature dealing with the high court. It advances the arguments about the nature of justice in the American system; it provides a highly readable, if sometimes schematic, analysis of the Court; and it wonderfully reminds us not to believe entirely Charles Evans Hughes's refrain that the Constitution means what the Supreme Court says it does. In the end, the real motor driving the Court is the individual litigants and their lawyers, not the justices.

To Choose is to Lead

As Napoleon once observed, to choose is to lead, and in the business of writing books what is left out shapes the result as much as what is included. That is especially true in attempting to come to terms with the Supreme Court, whose actions over the previous two centuries have made it nothing less than a continuing constitutional convention. Whether anyone could select eighty-five cases that would provide sufficient fodder for either a people's history of the Court or answer the question of whether the people's interests have been well served by the Supreme Court is debatable. In the case of this People's History, however, the number seems, in the end, too small. Major and troubling gaps exist.

Take, for example, criminal justice. Irons's emphasis is clearly on civil rights and civil liberties, and with that a persistent refrain that links these concepts to human rights issues. Yet, there is surprisingly little attention given to the rights of the accused, a subject that was dear to the framers of the Bill of Rights. Only one of the cases that Irons selects as mile-posts in the people's history, Miranda v. Arizona (1966), deals in significant ways with criminal justice. Moreover, the discussion of Miranda, which provides that persons accused of a crime have certain rights of which the police are required to inform them, is elliptical since it is framed mostly in terms of its impact on Vietnam War demonstrators.

Even more troubling, the entire history of the death penalty before the high court is ignored. The omission seems particularly puzzling because of the life and death nature of the decision-making process and the clear evidence that the penalty falls disproportionately on people of color and with limited financial resources. One would never know, for example, that the high court has consistently moved in recent years to make it harder and harder, with the encouragement of Congress, for death row inmates to seek a new hearing through a writ of habeas corpus.

The Bill of Rights, notably Amendments III–VIII, gave extraordinary emphasis to the rights of the accused and formed the heart of American liberty at the national level as the framers understood it. Save for being part of the general discussion in the first section of the book about the development of the Constitution and the creation of the Bill of Rights, these matters almost never appear again in Irons's analysis. As a result, A People's History of the Supreme Court paradoxically neglects one of the most powerful phases of the interaction between the justices and the people.

The criminal justice cases also have been among the most telling examples not just of the history of liberty, but of civil rights as well. There is, for example, little or no attention given by Irons to the role of the NAACP and the National Lawyers Guild, along with the Communist Party, in attempting to deal with the fate of black Americans at the hands of the criminal justice system in general and the electric chair and gas chamber in particular. Where, for example, is the story of the Scottsboro boys (Powell v. Alabama [1932]) and the struggle that they represented to secure the right to counsel in capital cases?

Irons has given short shrift to other powerful dramas of American constitutional history. It is hard to imagine, for example, a book that deals with politics and law that does not also include an assessment of either the Pentagon Papers case (1971) or the ironic travail of Richard Nixon, who, with the help of the high court, managed to hang himself and his presidency with his own recording tape. Perhaps no constitutional dispute in modern American history so fundamentally captured the struggle between political ambition and constitutional mandate than did United States v. Nixon (1974). Few controversies, moreover, have so fully brought before the people the great insight that the government is not above the law.

While Irons does touch on the importance of the incorporation of major portions of the Bill of Rights into the Fourteenth Amendment (notably, those dealing with protest, religion, and speech), the story unfolds only in bits and pieces. Indeed, the larger and more complex story is not accessible without giving more attention to the rights of the accused. In this instance, the technique of using select cases gets in the way of bringing thematic unity to the complex, yet constitutionally rich, subject of incorporation. No constitutional practice has proven more important in making the power of the federal government available to support local minorities than this critical doctrine that the justices spun out of constitutional whole cloth.

Finally, there is the matter of what the Court decides not to hear that is as much a part of its history as what it does hear. Over the past two centuries the Court, with the assistance of Congress, has managed to gain increasing control over its docket. That has given it the power to pick and choose cases to hear, and thus to shape the course of American constitutional development far more fully than Irons's case-study approach credits. The Court routinely decides not to hear thousands of appeals brought to it, almost always without explanation. The results for the parties, however, are every bit as real as they would be if the justices had acted, since the decision made below stands. The Court's certiorari jurisdiction has become so broad and the number of cases it hears so few that the authority not to decide through a formal process of briefs and oral arguments has become one of the justice's most potent powers.

The History of Real People

There is no doubt that Irons is right in approach: the history of the Court is the history of real people. "That, to me," Irons writes, "is what our Constitution's history is about: the people whose lives have given it meaning over the years since it became our nation's charter." (xvii) And there is also no doubt that Irons has managed to make his point with clear prose and abundant passion. Yet, The People's History is in many ways the victim of its own technique, since in relying so heavily on explaining the Court from the bottom-up we are left wondering about how ultimately it is connected to the rest of the American governmental structure from the top-down. Perhaps that explains why the Watergate and Pentagon Papers cases in Irons's view are not appropriate to a people's history. The decision not to include more criminal justice and capital punishment cases, in a book that has such a strong human rights emphasis, remains a puzzle. Only a book that more densely detailed such matters could frame fully the people's history of justice at the top of the food chain of America law. Yet, anyone who wants to understand the place of the Court in American life will find that this fine book of connected stories offers a fascinating starting point.

Kermit L. Hall is Provost and Vice Chancellor for Academic Affairs and Professor of History at North Carolina State University. He is the editor-in-chief of The Oxford Companion to the American Supreme Court (Oxford Univ. Press, 1992), now being revised into a second edition, and of The Oxford Companion to American Law (forthcoming). He is also the author of The Magic Mirror: Law in American History (1989) and is an editorial consultant to Books-on-Law.

Editors' Note: In 1998, Professor Irons authored a Books-on-Law review of Closed Chambers (Times Books, 1988) by Edward Lazarus. In 1997, Ronald Collins reviewed Professor Irons's May It Please The Court: The First Amendment (The New Press, 1997) for Intellectual Capital.com. For other Books-on-Law reviews of books on the Supreme Court, see Alex Wohl's review of Jethro Liberman's How the Supreme Court Has Ruled on Issues from Abortion to Zoning (University of California Press, 1999) and Jeffrey Hockett's review of The Warren Court and American Politics (Harvard University Press, 2000) by Lucas A. Powe, Jr.

Minding the Law
Anthony Amsterdam & Jerome Bruner
Cambridge, MA: Harvard University Press, 2000
Cloth: $35.00
Pp. 448
ISBN: 067400289X

At least since the 1920s and the writing of the Legal Realists, the notion of the law as a formal, neutral system of rules and precedents has been under suspicion. Early Realists, drawing from their Progressivist predecessors, critiqued a prevailing legal orthodoxy that presented legal reasoning as a neutral process leading systematically, or "naturally," to neutral, apolitical results. Rather, legal judgments, in the Realists' view, could not escape being moral or political judgments.

The Realist heritage has appeared, more recently, in the work of legal scholars representing movements known, generally, as Critical Legal Studies and Law & Literature. Although proponents of the two movements may disagree about certain issues (the determinacy of texts, or the moral impulse that may or may not inhere in them), both movements view the law as a discursive practice, a view that once again allows considerations of morality, politics, and power to enter the debate.

Minding the Law lends this debate a somewhat different twist. Anthony Amsterdam and Jerome Bruner examine the way in which the discursive practices of the law are culturally shaped, not unlike any other human practices. To look at law this way, they hope, is to see how the law's seemingly ordinary and mundane activities are in fact essential human activities of imagining and fashioning a social world.

Making the Familiar Strange

Professors Amsterdam and Bruner start by promising to take some familiar routines in the law and make them strange – an echo of the old Russian Formalists' project. (2) Their vehicle for this project is the human sciences, specifically psychology, linguistics, anthropology, and literary theory, as well as neurology and computational science.

We may have much to learn – even about those features of the law that are most peculiar to it – by looking at them against the backdrop of what is known concerning other forms of ideation and imagination, controversy and discourse, within cultures. But to do this we must, once again, take off the blinders of familiarity. (4)

The authors structure this backdrop of "what is known" into three cognitive activities: categorizing, storytelling, and persuading. The book takes up each activity in turn, laying a foundation with reference to recent work in the human sciences listed above, then showing how this activity not only underlies the workings of the law, but can inform our understanding of legal processes and judicial results. After discussing each cognitive activity, they illustrate it with one or more case studies, primarily U. S. Supreme Court opinions in which they believe the Court has arrived at an unjust result.

On Categories

Categorizing is the fundamental cognitive activity, a mental process that is "ubiquitous and inescapable." (19) We know the world through categories, even though we may not be wholly conscious of them. Indeed, in post-Kantian fashion, Amsterdam and Bruner point out that our categories do not derive from the shape of the world, but rather impose a shape upon it. Categories "are made, not found," they note, and in the act of creating them, we assign meaning to the world. (27-28) To the extent that this meaning-making is shared, categories establish a consensus within a society, although that same consensus can also impose difference and hierarchy. For example, gender-based categories commonly imply a hierarchy in which women are lower and men higher. (24) And some category systems achieve their effectiveness, or become entrenched, by seeming to be "natural" – most notoriously, the category system of race. (50)

Indeed, categories, whether legal categories or those of our everyday experience, derive from broader, value-laden frameworks, and the act of categorizing requires a judgment about what something is. For example, is welfare a "handout" or a "safety net"? The conceptual frameworks that underlie categories can also change over time. Amsterdam and Bruner point to the work of Leigh Bienen on incest laws. (52-53) Although earlier incest laws seemed either to prohibit transgressions against a divine order or to uphold a social structure that governed the ownership of property, modern incest laws seem aimed more at protecting young girls against assault by older family members. Thus, statutory definitions of incest, and the legal category they produce, have changed. (53)

On Narratives

When the authors look at storytelling, or the use of narratives, they move into the realm of human interaction. Narrative forms not only communicate cultural experiences, but also provide models that translate those experiences into cultural aspirations and the conflicts or plights that threaten those aspirations. Narratives are the framework for the drama of human experience; their very forms, indeed, allow us to understand that experience as dramatic.

Narratives are also normative, providing a basis for evaluating the legitimacy (or degree of violation) of specific human actions. In the law, the normative nature of narratives gets translated into the body of principles known as legal rules, seemingly a separate cultural institution. But this corpus juris can never escape its origins in the narrative forms of the culture. (117)

Amsterdam and Bruner summarize some of the large body of literature on narratives and the law. They point out what many others have as well, that the law abounds in what they call "rhetorical narratives: pleadings, stories told to persuade somebody to believe something or to do something, partisan briefs and arguments." (134) Legal narrative is important in that it links specific, individual human actions to the abstract principles of the law.

[I]t is through narrative that we provide humanly, culturally comprehensible justifications for our principled decisions and opinions. It is through narrative, rather than through some impeccable, impersonal argument from first precepts, that we show how or why the plaintiff's or the defendant's case is to be judged as we judge it. (141)

Part of this judging has to do with the canonicity of certain narrative forms. A set of facts cast into a canonical narrative form often has more persuasive power, although by virtue of their very canonicity, certain legal narratives can and are targets for being overturned in the law. (137)

On Rhetoric

The rhetorical nature of legal narrative points to the third cognitive activity – persuading, or the use of linguistic strategies collectively known as rhetoric. As with narrative and the law, so with rhetoric and the law: the law is inherently about disputes, and the link between law and persuasion is readily apparent. But as in the earlier chapters, Professors Amsterdam and Bruner try to take a deeper and more carefully considered perspective, here with a comprehensive view of rhetoric that ranges from speech-act theory, to prototype theory and metaphoric rhetoric, to a reiteration of storytelling techniques, to close linguistic and textual analysis.

They seem particularly interested in the "invisibility" of persuasion, most centrally the way in which rhetoric frames the terms for the debate and thus shapes the boundaries of what can be contested. Within these boundaries, rhetorical language poses, defines, structures, and connects, but also averts, blurs, preempts, and conceals. (166-167) Many rhetorical techniques, they note, are difficult to detect; hence their effectiveness. Amsterdam and Bruner seem to worry about this, but conclude that the proper response is a call for more examination of the influence of rhetoric rather than to deny its place. "Less rhetoric, pace Plato, is impossible." (192)

The Mind at Work

Professor Amsterdam and Bruner follow their discussion of each of these cognitive activities with case studies of U. S. Supreme Court opinions. The case studies nicely illustrate, and concretize, synoptic discussions that can otherwise get somewhat abstract. For categorizing, they turn, for example, to Missouri v. Jenkins (1995), analyzing Chief Justice Rehnquist's repeated categorizing moves (by their count, thirteen) in his effort to end federal intervention in school desegregration in Kansas City. The chapter applying narrative theory to the law is destined to instruct both lawyers and non-lawyers, as they show, for example, how the classical narrative form of Conquering Hero-Turned-Tyrant underlies Justice Kennedy's opinion in Freeman v. Pitts (1992). (153-156) They compare this structure to that of Sophocles's Creon, then turn to Prigg v. Pennsylvania (1842) as a judicial story that retells the Trojan War tale of The Iliad. (156-159) For rhetoric, they turn to McCleskey v. Kemp (1987), analyzing the rhetorical strategies in Justice Powell's opinion and its self-justifying persuasiveness, a persuasiveness whose force Powell himself could view more dispassionately only after the distance of four years' time. McCleskey illustrates rhetoric's power to narrow and conceal, although Amsterdam and Bruner hold hope for rhetoric's ability to do the opposite as well. (193)

Culture and Its Contents

What holds together the three cognitive activities mentioned above? Or what, at least, offers a way of understanding the dialectic between individual cognitive acts and the larger human social order, including legal processes, that comprises them? Amsterdam and Bruner answer with the anthropological idea of culture, the final term of their study. In their view, however, culture is neither stable nor necessarily coherent. Rather, culture itself is a dialectical negotiation. "[C]ultures in their very nature are marked by contests for control over conceptions of reality. In any culture, there are both canonical versions of how things really are and should be and countervailing visions about what is alternatively possible." (231-232)

This view of culture is important to the guarded optimism of the book. If the law, like other human activities, is the product of certain cognitive activities that, in sum, constitute a cultural negotiation, then the law is equally the realm not only of the given but of the possible, not only of the actual but of the imagined. Amsterdam and Bruner use this view, finally, to analyze one of the dominant cultural dialectics in American history, that of race, starting with Plessy v. Ferguson (1896) and ending with the Supreme Court's desegregation cases of the 1990s: Freeman v. Pitts and Missouri v. Jenkins. The direction of the Court they find personally disheartening, but they see in it the workings of a cultural dialectic that, they hope, can be more fully understood. They find it "altogether inescapable" that, in negotiating between how things are and how things should be, the Court cannot help but rely on categorization, narrative, and rhetoric. Their aim "has been to make the instruments and their workings more visible, so that those who must use them can, if they choose, go about it a bit more consciously." (281)

Any reader might find such a claim weak, having worked through the extensive and, at times, abstract analyses of cognitive processes inherent in the law that Minding the Law offers. But Amsterdam and Bruner are appropriately modest and realistic about their project. In their own words, they "offer no grand conclusions." (282) Their goal is not to construct an all-encompassing theory, whether jurisprudential, constitutional, or otherwise. They are headed in the opposite direction. Theory, to echo another literary commentator on the law, "underdetermines" legal results. In the view of Amsterdam and Bruner, legal results "are influenced by how people think, categorize, tell stories, deploy rhetorics, and make cultural sense as they go about interpreting and applying rules, requirements, and theories." (289)

The authors do seem to sidestep any specific analysis of the ideological nature of the uses to which these cognitive processes are put. In their analyses of Supreme Court opinions, they repeatedly assert that, although they have chosen to interpret opinions with whose results they disagree, the reader need not make anything of those choices. Rather, they offer their own ideological leanings willingly, to help the reader, they hope, in catching them when their interpretations have been influenced by their own ideologies. This statement is fair, but one cannot help but wonder how they would have interpreted a judicial opinion to which they were more friendly. Would the categorizing be seen to have been as blindly done? Would the rhetorical force of the analysis have shown the unexamined cultural presuppositions of the judge as effectively? And if these cognitive processes are not wholly conscious, in what ways can they move us, or be used to move us, in the direction of the possible rather than the given, the imagined rather than the actual – a direction both authors seem to favor.

Perhaps such questions are unfair. Although the book emerges from materials that Amsterdam and Bruner have developed for a longstanding seminar of theirs, called the "Lawyering Theory Colloquium," they do not offer the work as a how-to manual for law students and lawyers. The book, rather, is a fascinating effort to demonstrate that more is at work in lawyering and judicial processes than anyone would have ever thought (I use that word advisedly), and its authors gently suggest that anyone who reads the book would do well to reflect about this, if only to understand the place of the law in the human condition. Put that way, the book's readership includes all of us.

Chris Rideout (Ph.D., literature) is the Associate Director of Legal Writing at Seattle University School of Law, where he teaches legal drafting, advanced writing, and law and literature seminars.

Editors' Note: For a Books-on-Law review of related interest, see Stephen Wizner's review of Reflections on Clinical Legal Education (Northeastern University Press, 1998) by Philip G. Schrag & Michael Meltsner.

Black Lawyers, White Courts: The Soul of South African Law
Kenneth S. Broun
Athens, OH: Ohio University Press, 1999
Cloth: $45.00 / Paper: $19.95
Pp. 286
ISBN: 082141258X (cloth) / 0821412868 (paper)

Ismael Mahomed died on June 17, 2000. At the time of his death, he was Chief Justice of the Republic of South Africa; and prior to being Chief Justice, he served on the very first panel of Justices in the Constitutional Court established at the time of South Africa's transition in 1994 to a non-racial democracy. At a memorial service for the late Justice Mahomed, President Nelson Mandela explained to the mourners the circumstances under which Ismael Mahomed became Chief Justice.

When President Mandela asked Ismael Mahomed to become Chief Justice, Mahomed initially turned down the offer, explaining to the President the profound humiliation he had to suffer in the past when appearing as advocate in the Appellate Division of the Supreme Court (as it was then called) because persons from Indian extraction were not permitted to stay overnight in the Free State or to take their meals in the (whites-only) hotels in Bloemfontein (the seat of the Appellate Division). Given that experience, Justice Mahomed was not prepared to take up office in the province which until not so long ago upheld such discriminatory laws. President Mandela went on to relate that he thereupon said to Justice Mahomed: "I now order you to become Chief Justice of South Africa," upon which Justice Mahomed responded: "In that case, I will accept the position."

The almost insurmountable difficulties that attended the qualification for, admission to, and participation in, legal practice in South Africa by persons of color during the apartheid era are recorded in Black Lawyers, White Courts by Kenneth S. Broun. The narrative centers on the life stories of some of the country's most prominent black lawyers, including the late Chief Justice Mahomed, the late Godfrey Pitje (at one time an associate in the famous and enterprising black lawyers' firm of Mandela & Tambo), Dikgang Moseneke (the first black advocate to be admitted to the Pretoria Bar), Adbullah Omar (Minister of Justice in the Mandela cabinet and currently Minister of Transport), Yvonne Mokgoro and Pius Langa (justices in the Constitutional Court), and Justice Moloto (Justice is his first name, not his title, a judge in the Land Claims Court).

The experiences of those lawyers, and those of the many other South African lawyers whose life stories are likewise recorded in Black Lawyers, White Courts, serve as a compelling reminder of the evils of racism in general, and in particular of the devastating consequences of applying policies and practices of discrimination in a professional setting. Those stories also bear testimony to the courage, and the determination against all odds, of the victims of the system who, through sheer perserverence, made it to the top. They underscore the accusations against, and legitimize the global condemnation of, systems of law and policy founded on the falacious assumptions of racial superiority. They illustrate why apartheid is, and ought to be, a crime against humanity.

Anecdotal Histories

The information contained in Black Lawyers, White Courts derives from interviews of the author with the persons selected to tell their stories. For that reason, the personal histories of people who were, understandably, not available to, or who were not selected by, the author – histories that may have been of special interest to some readers or might have provided further insights into aspects of the apartheid regime – have been omitted. Nonetheless, Black Lawyers, White Courts allows its readers to refer to the intriguing biographies of the late Oliver Tambo, President Nelson Mandela, Hassan Mall (the first person of color to become an advocate in South Africa, who was served with banning orders in 1962 because of his role in anti-apartheid activities, who became head of the Truth and Reconciliation Commission's amnesty committee, and who died in August 2000 at the age of 78). Some readers might have an interest in the less revolutionary and more complacent course taken by the careers of people like Charles Dhlamini (perhaps South Africa's most highly regarded law academic of African extraction) or Shadrack Gutto (University of the Witwatersrand).

The histories recorded are, for the greater part, anecdotal and are mainly reflected in the interviewees' own words with little, if any, editing by the author. The text, therefore, varies quite considerably in style. In some instances, it comprehensively reflects individual biographies as such (Pitje, Moseneke, and Omar), while in instances the biographies are fragmented and scattered throughout the manuscript under the heading of different thematic expositions. The author's own comments are restricted to a minimum, but are nevertheless quite substantive and insightful.

Factual Inaccuracies

Certain factual inaccuracies did creep in, however. It is not accurate, for example, to speak of "the land that they [the Mojapela people] had owned" (Phineas Mojapelo, at 36), since under indigenous African law land was not subject to ownership. The statement that in 1966 "the radio had just come into South Africa" (Phineas Mojapelo, at 37) is also entirely wrong. The radio has been in use in South Africa since the earliest times of its invention (television was introduced in South Africa in the mid 1970s). Elsewhere in the book, reference is made to "removals [which] started in the late sixties after the Group Areas Act was promulgated." (Timothy Bruinders, at 46) The Group Areas Act actually dates back to 1950, although a revised version of the Act was indeed promulgated in 1966.

There is also the misconception that "[t]he Group Areas Act divided South Africa into areas to be occupied by different racial groups." (Fikile Bam, at 33) The Group Areas Act applied in urban areas only. Other legislation (different Land Acts) segregated the races in different regions of the country. Moreover, the statement that the trial against Nelson Mandela and others "took place in the Johannesburg suburb of Rivonia" (Dikgang Moseneke, at 88) is also wrong. Arrests were made following the uncovering by the security police of a venue of liberation forces in a house in Rivonia, but the trial took place in the Old Synagogue in Kerk Street in Pretoria. The further statement that "together with him [Nelson Mandela] were thousands and thousands of people who were charged and incarcerated on Robben Island" (Dikgang Moseneka, at 88) is an excessive exaggeration.

The Growing Pains Caused by Generations of Discrimination

Readers should, of course, understand that the effects of apartheid will not disappear overnight. The privileges enjoyed, and the disadvantages suffered, by any particular individual are inevitably projected on the lives of their next of kin for generations to come. Furthermore, the political transformation in South Africa created a compelling need for all branches of commerce and industry to include people of color at the managerial levels of their trade; this applies with equal force to the professions, including law firms.

There are certain institutions with much clout in South Africa that, quite rightly, want to see the name lists of partners in law firms before assigning any legal work to those firms. Those institutions are known to have declined giving instructions for legal services to firms that do not reflect a fair balance of blacks in senior positions. Cases have been brought to the notice of the writer of this review in which law firms appoint blacks in senior positions in order to comply with the expectations of their corporate clients, but without entrusting to the "new partners" any meaningful responsibilities. That, of course, causes considerable frustrations on the part of the black lawyers in senior positions in the traditionally white law firms.

A problem of a different kind confronts the traditionally all-white or predominantly white educational institutions. In South Africa, the salaries of university professors are exceedingly low, and lag far behind the level of incomes earned by practicing lawyers. The sudden demand for large numbers of professionally qualified black lawyers in legal practice and in commerce, together with the economically uncompetitive disposition of academic institutions, have resulted in the almost complete absence of Grade-A applicants from those ranks for academic posts. The pressure on universities to apply policies of admission and appointments that, in the not too distant future, would proportionately reflect the demographics of the general population in their students bodies, staff, and faculty might culminate in the appointment of persons of color who are not properly qualified for academic positions. That, in turn, could lead to the perception that "the (older) white professors are good and the black professors are not so good."

These are some of the growing pains caused by generations of discrimination. South Africa has to find its way through the challenges they present. The very significant qualities of the persons whose biographies are recorded in Black Lawyers, White Courts, and of others similarly stationed, substantiate the hope that all will in the end turn out for the better.

In reading this book, I as a (white) South African was again filled with profound shame for the crime of apartheid committed by our governments and our people.I also read the manuscript with some real pride because those who suffered under the system are also my compatriots, my professional colleagues, and my brothers and sisters.

I strongly commend Professor Kenneth Broun's Black Lawyers, White Courts to all who cherish history as a guide against evil – in order that institutionalized discrimination never again be permitted to repeat itself.

Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights at Emory University School of Law. A former professor of law in the University of the Witwatersrand in Johannesburg, South Africa, Professor van der Vyver is an expert on human rights law and has been involved in the promotion of human rights in South Africa. Among other works, he is the editor of Religious Human Rights in Global Perspective: Religious Perspectives (Martinus Nijhoff, 1996).

Editors' Note: For a list of other new books dealing with human rights, see Books-on-Law's Book Notices list for 2000 and the list for 1999.

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© Ronald K.L. Collins and David Skover, 2000.