Vol. 5 No. 2 (February, 1995) pp. 59-61

SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor

LAW AND POLITICS: UNANSWERED QUESTIONS by David A. Schultz (ed.). New York: Peter Lang, 1994. 311pp. Paper $29.95

Reviewed by John C. Kilwein, Department of Political Science, West Virginia University.

With the goal of introducing the role of courts in American society to political science students, Professor Schultz and seven contributors explore the intersection of law and politics. Guiding the introduction is the widely accepted idea that politics and law are connected and greatly affect each other. Although this premise clearly seems pitched at an introductory class, the book does little in the way of explicitly targeting itself at a specific class. The best of LAW AND POLITICS is a bit too sophisticated for an introductory law and politics class. Its better essays could provide good supplemental reading for a constitutional law or civil liberties class.

In addition to Professor Schultz's introductory essay, LAW AND POLITICS has ten chapters, which average 30 pages in length. Chapters one through four endeavor to give the reader basic information on American law and courts; covering legal reasoning, the politics of due process, separation of powers, and law, courts and the political process. The remaining six chapters examine the substantive intersection of law and politics by focusing on reproductive rights, environmental policy, free speech, church-state relations, and, in two chapters, crime. All of the essays in LAW AND POLITICS are followed by a set of discussion questions designed to get students to think about the implications of the material they had just read. The book has no subject or case indices, a definite minus in an introductory text. Finally, there are several typographical errors in the book, e.g., the reference to the "benediction made by the rabbit" in LEE v. WEISMAN (p. 256).

With a few exceptions, the work in LAW AND POLITICS takes a limited institutional approach to examining the impact of the American legal system on politics and policy. Specifically, all of the essays focus extensively on the U.S. Supreme Court and its decisions. For this reason, the book should include a copy of the Constitution to which the students can refer. The book pays little attention to the other elements of the American judicial system, namely the decisions of state and lower federal courts, and out-of-court settlements. LAW AND POLITICS has no explicit discussion of the structure or nature of the American judicial system.

The conceptual framework is problematic for a number of reasons. First, LAW AND POLITICS assumes that students understand the legal system. This assumption reduces the book's utility in a truly introductory judicial politics class. Second, the focus on important U.S. Supreme Court cases is likely to leave students with the impression that all that really matters in the American legal system is what the U.S. Supreme Court has decided on any given legal topic. This reaction occurs too often in many versions of the traditional constitution law/civil liberties sequence; it should really be avoided in a "wide-angle" introduction to the politics of the law. Relatedly, there is minimal discussion of the "law and society" or legal cultural literature which can be used to

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move the student beyond a court-centered view of the legal system. Likewise, with one notably exception, Professor O'Callaghan's discussion of the Supreme Court of Canada's decision in R. v. BUTLER to allow the regulation of pornographic material based on the idea that it harms women, LAW AND POLITICS presents no significant comparative perspective on the law. Finally, the book fails to present students with an introduction to even the basics of empirical behavioral judicial politics research, or for that matter, basic descriptive data on courts and the legal system. I found the failure to systematically examine the political science literature that looks at how Supreme Court justices decide cases, e.g., the attitudinal versus legal models, especially curious given LAW AND POLITICS' extensive focus on U.S. supreme Court cases. In short, LAW AND POLITICS primarily deals with its topic in the case-study approach, although not as extensively as a traditional constitutional law textbook (see for example David O'Brien's CONSTITUTIONAL LAW AND POLITICS). LAW AND POLITICS could not be used as a basic text in a constitutional law or civil liberties class, and its contributors make no such claim.

Substantively, three of the book's essays are excellent introductions to aspects of Supreme Court decision-making: Bruce E. Auerbach's "The Politics of Due Process: Incorporation and the Bill of Rights"; Kent Rissmiller's "Governmental Power and Individual Rights: The Courts in Environmental Policy"; and Jerry O'Callaghan's "Free Speech: Dimensions and Limitations", which introduces his readers to the debate created by the Dworkin-McKinnon arguments about the harm of pornography on women. All provide the reader with a coherent historical review of their given topic. They also present the reader with a useful introduction to relevant political issues that surround their subjects. And finally, they do a nice job of summarizing and interpreting relevant decisions of the Court. Professor Schultz's "Church State Relations and the First Amendment", follows the same format, although he did less synthesizing of the Supreme Court decisions, opting instead to quote directly, long passages of the Court's opinions. Professors O'Callaghan and Rissmiller also do a nice job of introducing the reader to several relevant non-U.S. Supreme Court decisions.

In her "The Law and Politics of Reconceiving Reproduction" Susan Behuniak-Long puts a different spin on some of the issues surrounding reproductive rights. Professor Behuniak-Long begins her chapter with a very personal view of the pain experienced by women who are unable to conceive. This discussion does contain several problematic generalizations, foremost among them being her almost complete rejection of adoption as a viable alternative available for infertile couples. One need not be an ardent supporter of our present Speaker of the U.S. House of Representatives to find this position somewhat objectionable. She moves on to raise some of the difficult issues created by technological efforts designed to help infertile couples, and discusses the Court's important decisions on reproductive rights. Finally, she presents policy responses to the issues surrounding fertility technology raised by relevant interest groups, without really exploring what effect, if any, they have

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Brian L. Porto's two contributions to LAW AND POLITICS, "Legal Reasoning and Review", and "Law, Courts, and the Political Process", are by far its worst. Porto, a practicing attorney, presents incredibly simplistic and formalistic discussions of topics that are critical to an introductory class on the politics of the law and courts. Although many examples exist that would highlight the problems with these two chapters, a discussion in his chapter on law, courts and the political process is particularly telling. In a section where he is discussing the importance of lawyers in the political process, he avoids presenting even the most basic data relevant to the discussion. For example, one wonders how difficult it would have been to determine how many presidents throughout our nation's history were lawyers, or how many of today's governors have a legal background? More critical is the fact that in the chapter Porto fails to explain to reader why it even matters that many of our political officials have a legal education and have practiced professionally as a lawyer. Clearly evidence exists that supports the idea that it does matter, but it is nowhere to be found in Porto's discussion.

Although more competently done, Priscilla H. Machado's chapters on crime, "The Dilemma of Crime", and "The Sanctioning of Criminals", present only the most basic supporting data. For example, several times Professor Machado refers to the epidemic growth of crime in this country with little statistical support. Clearly, data exist that show rates of some serious crimes are actually declining. More troubling is the lack of serious discussion of the political uses of portraying crime in hyperbolic, alarmist language. As many important races in last November's election clearly point out, the potential electoral utility of the "Willie Horton" strategy has not been lost on some American political candidates. This interesting intersection of law and politics is ignored by Machado. Unfortunately, several of her fellow contributors to LAW AND POLITICS do the same, ignore truly compelling products of the intersections of law and politics, and revert to simplistic discussions of U.S. Supreme Court decisions.

REFERENCES

LEE V. WEISMAN, 112 S.Ct. 2649, (1992).

O'Brien, David M., 1995. CONSTITUTIONAL LAW AND POLITICS. New York: W.W. Norton.

R. V. BUTLER, 1 S.C.R. 452, (1992).


Copyright 1995