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.
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.