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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problematic is her minimal exploration of what is happening with
reproductive law at the state level.
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