Vol. 4 No. 7 (July, 1994) pp. 93-95
AMERICAN CIVIL PROCEDURE: AN INTRODUCTION by Geoffrey C. Hazard,
Jr. and Michele Taruffo. New Haven: Yale University Press, 1993.
Hardbound $28.50.
Reviewed by John P. McIver, Department of Political Science,
University of Colorado
Let me begin by correcting what may be a common misperception.
While AMERICAN CIVIL PROCEDURE: AN INTRODUCTION (hereafter ACP)
has been written by two law professors, this is not a casebook to
be used in a first year civil procedure class. That is, it may
look like a duck, but it does not quack like a duck, and should
not be confused with a duck. (This is not to say it could not or
should not be assigned at the very beginning of such a course to
give new law students a grasp of the function and purpose of the
civil procedures that will place so large a role in many of their
careers.) ACP is perhaps best viewed as a prelaw undergraduate
text. ACP might also be used at the graduate level for students
without prior training or experience with the law or as context
for the behavioral study of law.
The tenor of the book, and the focus of the new Yale Contemporary
Law Series of which it is a part, reflects the recent shift of
university presses toward books with commercial possibilities. If
there are commercial possibilities for this book, they lie in the
degree to which ACP will compete with the variety of introductory
textbooks on the American legal system. Most introductory
textbooks do not identify their civil justice system bias.
Nonetheless, most undergraduate texts de-emphasize the criminal
justice aspects of the justice system with commentary often
focussing on the civil justice system. Most current textbooks
contain chapters on the structure of the court system, basic
legal concepts, lawyers, trial procedures, and alternative
dispute resolution. So does ACP.
I found ACP more readable, perhaps for the authors' occasional
willingness to be adversarial and assertive, than most
contemporary texts. It also provides more depth to the discussion
of procedure than common in currently available texts. The
different tone to ACP should not preclude its adoption. Quite to
the contrary, I suspect students may enjoy reading this book far
more than they do the existing textbooks on the American legal
system.
The book is dominated by a focus on civil procedure yet
nonetheless can serve as a general introduction to the American
legal system. The first three chapters provide a history of civil
justice, a lecture on the structure of the legal system and
importantly the link between the legal system and the structure
of American government, and discussion of the authority and
functions of the courts. Chapter 4 explains the distinctions
between various conceptions of proof and the ability of courts to
find both truth and justice. Lawyers make the legal engine go and
they are the subject of Chapter 5. Chapters 6 through 10
concentrate attention on procedure at various stages. Pre-trial
and trial process are the subject of chapters 6 and 7.
Alternatives to traditional litigation are discussed in Chapter
8. Judgment and appeals are the focus of Chapter 9 while Chapter
10 discusses the post-litigation process. A final chapter wraps
up the book as the authors offer their expectations about the
future of the American civil justice system.
The advantages of this book lie in the historical context in
which the authors place contemporary civil procedure. The
confusion that often reigns in distinguishing common and civil
law as practiced in American as opposed to civil justice systems
in other nations is handled in greater detail than in most
textbooks and is a much needed improvement. Similarly, the
distinction between law and equity and its effect on procedure is
handled in greater detail and clarity than usual. (Typically, it
is a distinction mentioned in the first chapter and never heard
from again.) The authors' argument that real change is more
difficult to accomplish than court reformers expect is one of
several intriguing conclusions offered in the final chapter.
Yet there is a Jekyll and Hyde quality to this book. On the one
hand, it is a wonderfully written summary of the basic components
and procedures in the American civil justice system. Yet the
authors ignore certain perspectives and evidence and these
omissions limit the book.
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Perhaps they are implicitly arguing that such material should be
ignored. Let me not put words in their mouths but suggest what I
believe is missing.
Clearly, there are different viewpoints between the authors' view
of the literature they are summarizing and the reviewer, a
behaviorally oriented political scientist who has taught
introductory courses on the legal system to hundreds of aspiring
pre-law students. I would argue that the authors do not discount
the behavioral research in the study of the law as much as they
ignore it. By ignoring this research tradition, they fall back on
reporting how the legal system is designed to operate rather than
how it actually does. In doing so, they paint a picture that
lacks a substantial sense of the real world. For example, the
authors hold up BROWN v BOARD and ROE v WADE as examples of the
impact of the court system without acknowledging the controversy
raised by Rosenberg's, THE HOLLOW HOPE (1991). They treat
"great public controversies" and "routine
litigation" as equivalent despite different treatments of
such problems by courts, and they appear to claim that a
principle of finality prevents the stronger or more persistent
party from prevailing by protracting conflict when that is
exactly the way the system often operates.
Facts and figures do occasionally find their way into the
discussion although the authors tend to skimp on the presentation
of evidence. When "facts" are presented, however, it is
often without reference to their sources. (For example, who says
there are 750,000 practicing attorneys? Is this not a dated
estimate?) Historical studies are identified without footnote or
chapter reference. One assumes that if the reader could
cross-examine the authors on the witnesses stand they would have
the evidence and supporting documentation readily available. The
frustration is that it is not provided in the book.
The authors best foray into the real world comes in the chapter
on enforcement of judgments (Chapter 10). They document both the
need for additional legal effort beyond trial to collect a
judgment as well as the "unpleasant truth" for many
plaintiffs that defendants are "judgment proof". But
again the reader would like to know the extent of the problem
rather than the possibility that exceptions are used to prove the
rule.
There is an elitist tone to the discussion of the legal
profession. The authors seem to have little regard for the
majority of practicing attorneys while attributing
"resourcefulness, energy and thoroughness" to an
extraordinary few. Combined with the discussion of the variation
in legal training, one senses there is a strong claim made being
how good certain law schools are. Before claiming that
"many" (a word I read to mean "more than
half") lawyers are "poorly prepared",
"confused" and "inept" I would like some
evidence. (p.91) Similarly, while admitting that the majority of
the legal profession practices alone or in small firms of two or
three lawyers, the focus of attention seems to be on the practice
of major corporate law firms. The discussion of "The Civil
Litigation Team" (pp. 95-96) ignores the primacy of small
legal practices in the profession of law. The discussion of
constraints on litigation first says that the "primary
constraint is cost" (p. 208) but then calls psychological
distress the "greatest constraint" (p.210). The first
statement reflects the continuing corporate perspective of the
authors. The latter may indicate a concession to
"ordinary" litigation but, wrapped up as it is in an
old Learned Hand platitude, it is hard to see the authors as
really considering the time and energy of litigants as a
consequential consideration. While accusing the authors of
producing a Jekyll and Hyde volume on the basics of civil
procedure, the reviewer must admit to a review with similar
characteristics. I think this is one of the most interesting
textbooks on American courts that I have read. Yet its
limitations are frustrating. The book ends by asserting that the
fundamental problem for American civil justice is to reconcile
ideals and reality. I would challenge the authors similarly. I
hope there is a second (expanded) edition.
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REFERENCES
Rosenberg, Gerald N. (1991). THE HOLLOW HOPE: CAN COURTS BRING
ABOUT SOCIAL CHANGE. Chicago: University of Chicago Press.
Copyright 1994