The Rule of Law in America.

Vol. 14 No. 7 (July 2004), pp.563-566

THE RULE OF LAW IN AMERICA, by Ronald A. Cass. Baltimore: Johns Hopkins University Press, 214 pp. 2003, Paper. $19.95. ISBN: 0-8018-7441-6. 2001, Cloth $32.50. ISBN 0-8018-6728-2.

Reviewed by John Brigham, Department of Political Science, University of Massachusetts, Amherst. Email: brigham@polsci.umass.edu.

This review is a little late in coming, and the book could well be remaindered by the time anyone sees these comments. Still, our journal works at the speed of light and perhaps it will be able to catch up with the publishers. A few years ago I wrote a review of law professor Deborah Rhode’s book, IN THE INTERESTS OF JUSTICE (2000), on what was wrong with lawyers. For my troubles I got this assignment. I think I accepted it because a colleague in political science had appreciated my candor in the other review. That led me to want to conspire further with social scientists who study law as if lawyers, even legal academics, are a separate fraternity.

In the academy, drawing this distinction, between us and them, is tricky. Lawyers want to be part of the university. Although they like having their own schools, for the most part, law schools are attached to universities and law school ranking is an academic as well as a professional judgment. Law professors appear to appreciate this campus connection, and the schools, even if they cut themselves off from undergraduates, generally participate in campus life. The faculty I know like to be treated as scholars (while being paid as professionals). Indeed, the pursuit of academic respect would seem to be one of the reasons Dean Cass of Boston University wrote the book under review.

It is in this regard that the idea that we study them can be offensive to lawyers. Responding to the inquiry “Did you go to law school?” with “I’m not a lawyer, I study them,” generally produces a puzzled, slightly hurt, response. Although, legal academics who believe they are important might expect to be studied, it would be as scholars. Even legal academics who might not be all that important want to be taken seriously as scholars rather than be seen as servicing professional interests. I am sure the distinction should not apply to some lawyers who teach undergraduates, and even to some faculties in law schools. But the book under review is a legal, rather than a scholarly, product and should be approached as such. It depends on a separation between those who have been through law school, and bonded, and those who have not.

The book, THE RULE OF LAW, looks at law in six substantive chapters with an introduction and a conclusion. It is primarily about the power of judges to get other officials to follow their orders. Technically the rule of law is defined here in terms of four elements—fidelity to rules, rules of principled predictability, rules from valid authority, and rules from external authority. These elements operate, Dean Cass says metaphorically, “much as a large body of water acts on weather patterns” (p.19). Thus, the various aspects of [*564] rules are presented as a moderating force in human affairs. Nothing wrong with that.

But, a compelling thing about this sort of scholarly writing by legal academics is how ponderous it is. Cass’s RULE OF LAW covers familiar territory. It cites Hart, Fuller, Dworkin, Posner, Epstein, Raz, and Holmes. Its tone reassures the reader that the canon is still useful. Cass seems perfectly conversant with this literature, yet something is missing. In the social sciences we may not always produce compelling story lines with our data and our fancy methodological debates, but our part of the academy seems alive and contentious compared with this sort of work—i.e., work where the givens in the field have been established through professional socialization.

In Cass’s RULE OF LAW we do not get social scientists on the nature of law or what the law is. And, we do not get women or scholars of color, who, I guess are not presumed to be writing at this level. I said in the Rohde review that legal academics often short-change attention to the “social structure of lawyering.” Where her book was about the legal profession this was a particular problem. Here, with Cass on the subject of the rule of law, the absence of attention to that structure is still a problem. In order to understand the rule of law, we need to understand its social structure, and in order to do that, people who study it cannot just work from within the logics and traditions of the academy. They need to pay attention to some of the ways professional practices, like judicial review, are reinforced by the legal academy though institutions like the law clerk.

My inclination is to propose a science of this distinction, or at least suggest what some of the analytic categories would look like. The first and most important is distance – announced, critical, bold, often annoying, distance. There is no distance here. THE RULE OF LAW IN AMERICA is an insider’s account that lays out the articles of faith. The “elements of the rule of law” mentioned above, are the sort of grand statements one expects to get from an authoritative source, and the citations establish their lineage and the author’s authority. This is not the sort of comprehensive scholarship where the sources can be tested. The sources are authorities within the system that teach the importance of the rules and how they are to be discussed.

I am thinking that it might be appropriate to create a subclass of scholarship to include Cass, Rhode, Kronman, and a considerable list of law school “Dean’s Books.” We have a “Dean’s book” program at our Honor’s College where students read important, current books. The Dean, in this program, asserts an influence on the intellectual life of our undergraduates. Law “Dean’s books” are also about influence, but rather than settling into that influence, I would suggest reading the books to study its character. Students might read the Dean’s books to see if they agree with one another. We might read the books to understand the literary character of the law school bond. Law students might be proud of the other-regarding thoughtfulness of their Dean and his or her facility with the canon. We would read the Dean’s books to see the ways the canon is constructed. From studying these books we could assess the coherence of legal ideology in America. [*565] I think we would find that it is remarkably coherent.

Without recognition of these books as part in a professional project, awareness that this is a subclass of scholarship on law, this would simply be a very annoying book. A close look at Chapter 3, “Judge’s Rule,” provides a most ponderous argument and outrageous dismissal of social science scholarship. The issue is Justices telling Presidents what to do. There is a section on the Nixon Tapes and CLINTON v. JONES. The conclusion is, “[A]t one level, the NIXON and CLINTON cases offer unambiguous proof of the vitality of the rule of law in America” (p.40). Yuck. If the author meant something complex like the fact that in both of these cases other institutions joined to back up the Court against the President, or had he mentioned Gerry Rosenberg or some of the rest of us who have had a lot to say about this subject, the statement might have some meaning. But, he is simply saying the Presidents did what the judges told them to do, and therefore the rule of law rules.

Chapter 6, “Problems and Progress,” addresses professional problems, the sort of thing that Rhode, mentioned above, was addressing. As I noted in my review of Rhode, law school deans might not be the most trustworthy folks to consult when you want to fix the legal system. Indeed, they know a lot about it, but they are also invested in it. In popular commentary, we often turn, as Americans, to those who participate in a process to understand it. This is sometimes endearing and certainly widespread. But it is also deeply frustrating and should not be accepted by those of us in the social sciences. Law school deans and their faculty are part of the practice of law.

The payoff in reading THE RULE OF LAW IN AMERICA involves core legal practices. One associated with the rule of law is how we are to see judges functioning when they interpret the law. Cass uses the metaphor of translation, and it is a good one for putting legal practice in an academic context. Here the academy helps draw attention from the notion that judges legislate. Judges are not supposed to do that, and through jurisprudential considerations, Cass argues instead that they “translate.” This is good work. Here the legal hierarchy is reinforced with the judge helping the ordinary folk to understand the sacred and arcane texts of the law. At the same time the crude politics of legislating is reinterpreted into the more sophisticated framework of a process by which learned people make judgments for those who know less. There is considerable intelligence in all of this, and in “Translation as Composition” Cass effectively addresses the work of Lawrence (Larry here) Lessig. He also features Sanford (Sandy here) Levinson as the authority on what will fly. That sort of draws social science back in a little.

In short, this book belongs in a class of sacred texts that are foundational for the institutional life of law. Today they are written as scholarship because that is the language of authority. They are not really scholarship because they are circular, but they are authoritative because they are linked to the institutional life of law. They matter to the constitution of law around professional associations and institutions. Cass writes like a confident [*566] man. He writes like someone who has secretaries to make appointments for him and who sits in lots of meetings where his words are given respect—which is to say, he does not write for us. The value in reading him is as data. The work is so internal, so lacking in critical foundations, so derivative of a body of conventional wisdom, that it is good data.

REFERENCES:

Kronman, Anthony T. 1995. THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION. Cambridge, MA: Belknap Press.

Rhode, Deborah. 2000. IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION. Oxford: Oxford University Press.

CASE REFERENCES:

CLINTON v. JONES, 520 US 681 (1997).

UNITED STATES v. NIXON, 418 U.S. 683 (1974).

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