Vol. 9 No. 9 (September 1999) pp. 387-391.
A VISION OF AMERICAN LAW: JUDGING LAW, LITERATURE, AND STORIES WE
TELL by Barry R. Schaller. Westport, Connecticut: Praeger, 1997,
188 pp. Cloth $55.00. ISBN 0-275-95111-1.
Reviewed by Malcolm Feeley, Center for the Study of Law and Society,
University of California, Berkeley
A VISION OF AMERICAN LAW is the latest in a genre of "law and
literature" books (See Ferguson 1984; White 1973; White 1985;
Brooks and Gewirtz 1994), and in my view it is among the most
successful. This volume, in the author's own words, is intended
to look "beyond the narrow confines of legal writing into the
world of imaginative literature as a way of understanding more
fully the role and impact of law in American society" (p. xi).
His purpose is to subject American law to careful scrutiny, to see
how practice--the law-in-action as it were--comports with our
aspirations.
Schaller's study is based on two premises: (1) the law is of
central importance in American society, and (2) imaginary
literature in fact provides us with the truth about legal
experience. He succeeds in establishing both these claims very
well indeed. Following this he then proceeds to deal with what he
terms "systemic problems" in American society, violence and the
breakdown of social structure, problems of legal authority, and
pursuit of the American dream--optimism, progress--exploring these
themes as they are revealed in imaginative literature and a they
find expression in the law through (usually) judicial opinions.
In establishing his points of departure, Schaller argues that
at least since the mid nineteenth century, law, legal
institutions, and lawyers have played a distinctive role in
American society. As a compact between the states and a contract
with individual citizens, the idea of America, he shows, has deep
roots in legality. Every society must have institutions that
mediate between the quest for selfhood and individual identity and
the larger society, and in America, the premier institution
serving this function has been law. He notes, as does everyone
who writes on the American character, that a distinctive feature
of American culture is its preoccupation with individualism. He
draws on Mary Ann Glendon's (1993: 4) observation that America has
a "near-aphasia concerning responsibility, [and] its excessive
homage to individual independence and self-sufficiency...impede
development of the sort of rational public discourse that is
appropriate to the needs of a mature, complex...pluralistic
republic."
Although Schaller examines this argument by turning to Alexis
de Tocqueville's observations about law and the role of lawyers in
the early Republic, his case rests most heavily upon evidence
gleaned from his survey of American fiction. One of the major
themes in American literature, he finds, is the clash of the
individual against the conforming power of society, and the
struggle for individual autonomy. Individual self-reliance has
been highly valued since the days of the Pilgrims, but was raised
to a principle of near-religious status by Ralph Waldo Emerson.
The precise forms it has taken have varied, but the struggle of
the individual against the larger society remains a persistent
theme in literature. Indeed he identifies
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several standard types of individualism, each of which represents a distinct strain of
values whose salience waxes and wanes at different periods in
American history, and whose personification represent distinct
character "types" in American literature. For instance,
"defensive individualism" runs through the works of James Fenimore
Cooper, Henry David Thoreau, and Emily Dickinson to the twentieth
century novels of Alice Walker, Joyce Carol Oates, and Toni
Morrison. And what he calls "democratic individualism" is found
in the writings of Thomas Jefferson, and literary works from Walt
Whitman to John Steinbeck to Ralph Ellison.
Schaller's project focuses on literature, he argues, because
it does a better job of identifying those enduring and distinctive
traits of the American character than does the news media or
public opinion polls. Imaginative literature, he believes,
identifies deeply embedded and enduring values--the national
psyche--while at best the news media and public opinion is likely
to capture fleeting and possibly superficial views that may
mistake the ephemeral for the permanent and the trivial for the
profound. In contrast, narrative fiction, and particularly
narrative fiction that endures in its ability to capture the
imagination of generations of readers, he seems to be saying,
provides deeper and more profound insights into the American
character and the problems of Americans citizens than do the
presumably more objective and systematic sources of information,
the news media and public opinion polls. Furthermore, he seems to
be saying, the distinct and enduring themes that recur in American
literature reveal just how deep-seated and entrenched in the
American psyche and culture certain of these traits are. Despite
awesome changes in size and diversity of the United States, many
of its central concerns and problems derive from these distinct
and stable traits associated with on the one hand American
individualism and the role of the state, and on the other the
position of law and lawyers that mediate between them. For
instance, the preoccupation with rights and hence with courts is
one enduring consequence of individualism in American culture that
is reflected throughout our literary tradition.
Imaginative literature not only provides a window into the
American character, it also provides insights into American
visions of the law and legal institutions. If individualism,
individual autonomy and the quest for rights has been a major
subject in American literature, so too has law, litigation, and
legal institutions. The courtroom figures in American literature
as perhaps it does in no other national literature. And one of
the dominant themes of this literature is that the law is not up
to the task of protecting the individual. Schaller argues that
legal institutions rarely fare well in American literature. At
times, as in some of Fenimore Cooper's works, the law is the
instrument of the mob. At times, as in the many stories of
ambitious lawyers, ruthless prosecutors, and insecure judges, it
is subservient to political expediency. Even when law appears to
triumph to protect the individual, Schaller shows, it is often
because outside forces intervene to circumvent or outwit legal
institutions and not because of the law's inherent capacity for
justice.
Schaller argues that these ideas about law's failures are
"true." They are true not in the sense that they represent the
well-documented modal practices in a random sample of the American
public, but in the sense that they represent enduring popular
images of law and legal institutions. They are "real" if people
believe them, and since the same themes, problems and predicaments
recur in imaginative literature throughout American history, they
are, he argues, deeply
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ensconced in American popular belief. There is then, he claims, an endemic failing of law and legal
institutions in the United States.
I have listened to a great many distinguished lawyers and
judges who when confronted with the types of arguments outlined
above respond by saying the problem is that people "just don't
understand." Indeed, a number of years ago when I participated in
a workshop at the National Center for State Courts which reported
public opinion surveys showing that although people respect
judges, they have very low opinions of the judicial process, and
indeed the more they know about the process--the more first hand
experience they had with it--the lower their opinions. The
response of a great many of the judges I spoke to was interesting;
they proposed to add "information officers" to the courts so as to
better inform the public about their work. They saw their low
ratings as a failure of communication, one that could be remedied
by better public relations, and not a failure of their collective
self.
Schaller--a judge with eighteen years experience as a trial
court judge and still more years on an appellate court--rejects
any facile approach. He takes literature seriously. For him it
provides a clear window onto society. The problems he reads about
in American fiction, he seems to be saying, are the problems he
recognizes in his own courthouse. Furthermore they are enduring
problems, not the consequences of the 1960s or of poorly drafted
new laws or the modern, administrative state. They are problems
that have been documented in imaginative literature -- and hence
the American legal process -- throughout American history.
His response to what are perennial problems is not the usual
technocratic fix--more judges, higher salaries, better facilities,
new liability rules, higher barriers for bringing law suits, and
the like (although he would probably favor all of these). Rather,
he suggests, the central problems of the legal process, so well-
documented and elaborated in our national literature, are rooted
in a legal tradition which fails to be sufficiently attentive to
doing -- and appearing to do --justice. He doesn't state it quite
this way, but his test is something like this: when we read
fictional accounts of injustice in the legal system, we can
usually identify the culprits --an unethical lawyer, a careless or
hyper-formalistic judge, a politically over-ambitious prosecutor,
a callous bureaucrat. It is moral problems and not resource
problems, he suggests, that at root undermine the integrity of the
legal process.
It is this point that Schaller calls to our attention in the
concluding sections of the book, as he suggests how to make law
more responsive. But as is often the case, it is easier to
diagnose an ill than prescribe its cure. So it is with this book.
If the first part of his book examines literature that reveals
unflattering depictions of law and the legal process, the shorter
second part examines examples of judicial actions that he believes
ameliorate these the problems and overcome moral obtuseness. The
key, according to Schaller, is sensible and understandable
judicial rulings grounded in "sensible analysis and relevant
principles." Despite the obvious truth of this, there is
nevertheless something of a discontinuity between the diagnosis of
the problems (through the analysis of literature and the pointed-
to solutions in the form of exemplary judicial reasoning. (The
reader might find it surprising that Judge Schaller's exemplary
judicial reasoners are Supreme Court Justices Sandra O'Connor and
Anthony Kennedy, certainly members of the "practical" center bloc
on the Court, but also often thought of representatives of the
sort of middle American babbittry so often ridiculed in American
literature.)
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But the problematic disjuncture between his diagnosis in the
form of reviewing the themes of imaginative literature and his
preferred ameliorating responses in the form of exemplary judicial
opinions may be stated simply as the difference between trial
courts and appellate courts. The literature almost always reveals
problems in trials courts and locates the problems not in
inflexible or unworkable rules but in careless and crass
officials. Yet his solution stresses changes in rules and even
more remote, changes in the ways rules are articulated. Indeed, a
number of his examples of exemplary judicial conduct involve
judges engaged in a difficult process of balancing competing
constitutional values. His discussion here is sensitive and
convincing, but may be largely beside the point of his larger
project. These particular prescriptions for exemplary judicial
conduct do not really address the central thrust of his very
convincing diagnosis; that the central failings of the legal
process stem from the moral failings of the bar, or perhaps more
precisely from flight from classic legal professionalism to self-
interest.
As I read his accounts of the themes in narrative fiction, it
appears to me that the law (legal rules and procedures) comes out
pretty well. The principles and procedures are generally accepted
as fair. The problems confronting the characters in these stories
is not with the law so much as with the abandonment of law. The
problem is the lack of moral fiber of those who administer the
law. To paraphrase the late Robert Cover on nineteenth century
tort liability, "whatever the rules, the railroads always win."
If I am correct, the solution that Schaller seeks lies not so much
in locating more caring and principled rules and legal reasoning,
but in strengthening the moral backbone of lawyers. His
discussion of model judicial opinions in difficult cases that
involve balancing one important constitutionally protected value
(search and seizure, Establishment clause issues, federalism)
against another does not advance his argument very far.
Reasonable--and thoughtful and good--people could and do go either
way or split the difference when dealing with such tough cases.
Yet the literary narratives he recounts are replete with
prosecutors abandoning professional obligations to use a weak case
to advance a career, lawyers pandering to jurors' prejudices,
judges failing to restrain over-aggressive lawyers, crowded courts
rooms staffed with uncaring officials. The lesson from
imaginative literature reviewed in the book is that the bar fails
to embrace the morality that is in the law. To the extent that
this literature is didactic (and whether or not it is, Schaller
certainly is), the answer lies in better people not necessarily
better laws. Indeed, Judge Schaller recognizes this as well, and
towards the book he quotes from Anthony Kronman's fine book, THE
LOST LAWYER (1993). Indeed, I wish Schaller had pursued this
theme more fully, since as I read his own evidence from
literature, Kronman may be lamenting the decline of a non-existent
yesteryear. With his skills and insights, one hopes that Schaller
would address just this issue in his next book. But these
criticisms are hardly fatal to this book. The book is superb.
Who should read this book? Anyone who loves the law or loves
literature and especially those who love both. Lawyers would
enjoy it, and one hopes that it is reviewed in publications read
by lawyers, so that they might learn of it. It would have made a
wonderful candidate as a selection in the Lawyer's Literary Guild,
but this organization collapsed some time ago, perhaps for reasons
suggested in Schaller's book. (The last issue of the Guild's
catalogue
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that I saw featured not "literary" works, but books with
titles such as How to Make a Killing in Real Estate, and How to
Run a Profitable Small Law Office.) So, it may be the case that a
great many lawyers won't even learn of this book. The same is
true for law students. Furthermore even if they do see it, they
won't read it. They only read edited books in brown or dark blue
or black covers in which the longest entry is six or eight pages.
And besides law students are not so interested in the morality of
professionalism; they are interested in becoming "real" lawyers.
However undergraduates still read books and they are also
keenly interested in issues of morality and legal professionalism.
Indeed, this book would be marvelous for use in any number of
political science undergraduate courses; obviously a law and
literature course, but others as well--the judicial process,
American legal history, the legal system, and the like. Indeed
students could be assigned this book as well as one or more of the
novels Schaller examines in his book. Despite being a large and
obvious market for the book, it is unlikely that even they will
read the book. The book is published in hardback not paperback,
and while there is no price on it, Praeger Press is not known for its
inexpensive books. One hopes, however, that either Praeger puts
this book out in paperback and then advertises it widely in
political science journals or alternatively sells the paperback
rights to someone who will.
REFERENCES
Brooks, Peter and Paul Gewirtz, eds. 1994., LAW'S STORIES:
NARRATIVE AND RHETORIC IN THE LAW. New Haven: Yale University
Press.
Ferguson, Robert A. 1984.LAW AND LETTERS IN AMERICAN CULTURE.
Cambridge: Harvard University Press.
Glendon, Mary Ann. 1993. RIGHTS TALK: THE IMPOVERISHMENT OF
DISCOURSE New York: The Free Press.
Kronman, Anthony. 1993. THE LOST LAWYER: FAILING IDEALS OF THE
LEGAL PROFESSION. Cambridge: Belknap Press.
White, James Boyd. 1973. THE LEGAL IMAGINATION. Boston: Little,
Brown & Co.
White, James Boyd. 1985. HERACLES' BOW: ESSAYS ON THE RHETORIC AND
POETICS OF LAW AND LITERATURE. Madison: University of Wisconsin
Press.
Copyright 1999