The Social Organization of Law: Introductory Readings.

Vol. 14 No. 8 (August 2004), pp.623-626

THE SOCIAL ORGANIZATION OF LAW: INTRODUCTORY READINGS, by Austin Sarat (ed.). Los Angeles: Roxbury Publishing Company, 2004. 596pp. Paper $63.95. ISBN 1-931719-20-9.

Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University. E-Mail: martinek@binghamton.edu .

As teachers, we make one of the most critical choices for the success of our classes well before the first day we set foot in the classroom. That choice is the selection of a text or set of texts. It can be quite an onerous task to first determine likely candidates and then wade through them to identify the most appropriate book. It is not a task many of us relish despite its importance, since a poor choice can color the subsequent class experience for both students and faculty. The edited collection of readings Austin Sarat has compiled, THE SOCIAL ORGANIZATION OF LAW, promises to be a strong contender as ideal supplementary text for a variety of courses dealing with the law, especially those focusing on the judicial process. What makes this book so attractive is not so much the particular selection of readings Sarat chose to include (though they are excellent selections) but the framework he uses to organize them. That framework, focusing on the intersection of law and violence, is one students (and teachers) will no doubt find compelling.

The book is divided into five parts: “When Law Fails,” “The Search for Law,” “Access to Justice,” “Severity and Leniency,” and “Organizing Law’s Violence.” The material is further differentiated into sections within each part. Sarat offers introductory passages for each reading, and he draws on the law and violence framework to situate each piece while simultaneously developing the theme. Each reading ends with notes and questions, drawing attention to particularly telling aspects of the section and facilitating students’ own critical insights.

The first part, “When Law Fails,” begins with a selection of readings devoted to the limits of legal protection. The point is to challenge students to think about how law attempts to impose order and security in society and consider the limitations the law faces in doing so. The readings in this section include, among other items, newspaper coverage of the death of one hockey dad at the hands of another and excerpts from DESHANEY v. WINNEBAGO COUNTY, in which the Court ruled that the Wisconsin Department of Social Services was not liable for the terrible injuries sustained by Joshua DeShaney at the hands of his father. The second section of “When Law Fails” focuses on the purposes of law, and Sarat’s selections here include both classic (Hobbes, Locke) and contemporary (Austin Turk, James Boyd White) writers. The questions that follow each reading in this section are particularly well suited for encouraging students to think.

The second part, “The Search for Law,” sets out in a slightly different direction, to explore what Sarat calls “dilemmas [*625] that characterize the social organization of law” (p.71). In particular, the readings in this section are intended to offer some food for thought regarding the appropriate balance in law regarding accessibility, severity, and the discretion exercised by those in the service of the law. This part is really more an introduction to the three remaining parts, each of which takes up one of these issues in greater detail.

The first of these, “Access to Justice,” begins with a section entitled “Lining-Up at the Door of Law.” Four of the five readings deal directly with the issue of liability, whether as a generalized concept or as defined by juries. While these selections are all quite good, arguably the best is the remaining piece, an excerpt from a 1980 LAW & SOCIETY article co-authored by the editor with William L.F. Felstiner and Richard L. Abel, the focus of which is on how disputes emerge and then transform (or not, as the case may be) into conflicts appropriate for legal resolution. Despite the relative brevity of the excerpted text, this selection is crucial for drawing students’ attention to the oft-overlooked fact that the legal system is not the first stage of a dispute. Our expectations of the law and the legal system cannot be well informed if we do not first understand the process by which disputes make their way to the formal judicial forum. Subsequent sections in “Access to Justice” focus on lawyers in civil law, the social definition of law, and the role of class in the operation of the law. Of particular note is the piece by Susan Estrich. Estrich begins her exploration of rape with an account of her own experience as a rape victim. Her personal narrative makes her subsequent analysis of rape law all the more compelling, and students are sure to find this to be one of the more thought-provoking selections in the book.

The penultimate part, “Severity and Leniency,” is divided into four sections, which considers, in sequence, plea bargaining, criminal attorneys, juries, and sentencing. These are meat and potatoes issues in most judicial process classes and nicely complement sections of most constitutional law courses with a focus on criminal due process. Fortunately, they also contain some of the best selections in the text, including pieces by Lawrence Baum, John H. Langbein, and Abraham S. Blumberg, among others, who ably introduce students to the respective topic in general and the debates key to it. The selection by Monroe H. Freedman and Abbe Smith will be of particular interest to students with intentions of pursuing a career in the legal profession and will also, no doubt, serve as a useful foundation for heated (but hopefully reasoned) classroom debates. Likewise, Lisa Frohmann’s discussion of prosecutorial discretion in the decision to file charges and the effects (real or potential) of race, class, and gender in shaping that discretion will generate lively classroom discussions.

The final part of the book is “Organizing Law’s Violence,” which consists of four sections. The first, and lengthiest, is devoted to policing issues. The selections range from Jerome Skolnick’s consideration of the tension between the demands of policing and the demands of the legal system, to Heather MacDonald’s critical challenge to what she terms the myth of racial profiling, and Alan M. Dershowitz’s argument in favor of the use of torture in limited [*626] circumstances. There is more than enough material here to provoke students to think critically on their own.

All three of the other sections in “Organizing Law’s Violence” are devoted to punishment. The first focuses on imprisonment, while the second two consider the death penalty. I particularly like the first of the two sections on the death penalty, in which the emphasis is on what the U.S. Supreme Court has had to say about the matter, as evident through excerpts from Court opinions. Students, however, will undoubtedly find the second death penalty section, “The Future of Capital Punishment,” of even greater interest. The first piece is by Justice Antonin Scalia in which he offers both a legal and moral justification for the continued use of the death penalty. The second is by George H. Ryan, the former governor of Illinois who pardoned several death row inmates and commuted the death penalty sentences of almost 170 other inmates prior to leaving office. Unlike Justice Scalia, Ryan sees the death penalty system as hopelessly flawed and the continued use of the death penalty as jeopardizing the legitimacy of the law itself. Both Scalia and Ryan articulate cogent points and argue eloquently. Yet, they arrive at fundamentally opposed positions. Hopefully, thoughtful students will see this as a demonstration that intelligent people of good will can disagree, thereby making them more tolerant of views different from their own.

There are two risks a teacher runs in the selection of an edited collection as a class text. The first is that the quality of the selections will be uneven. This is most certainly not the case with Sarat’s THE SOCIAL ORGANIZATION OF THE LAW. The selections range considerably in terms of their provenance, but all were selected with a careful eye toward the contribution they would make and edited to maximize their accessibility without sacrificing their integrity. The other risk is that, no matter how good all of the selections are, only some will be relevant for a particular class—the likely concern with regard to this collection. The interdisciplinary nature of the selections makes it suitable for courses taught from a variety of perspectives, but it is perhaps best suited for a course on the judicial process, the sociology of the law, or law and society. Moreover, any number of the selections would be very useful as supplementary readings in a constitutional law class with substantial attention paid to rights of the criminally accused. Unfortunately, the proportion of those relative to the entire text is sufficiently small to make it less desirable in that context. Having said that, reading this collection over the past several weeks has kept me thinking about how I might, in fact, reasonably incorporate it into my more traditional constitutional law classes. It is a quality volume that merits careful consideration by anyone seeking to engage students intellectually.

CASE REFERENCES:

DESHANEY v. WINNEBAGO COUNTY, 489 US 189 (1989).

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