Vol. 5 No. 3 (March, 1995) pp. 83-85

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

JUDICIAL PROCESS AND JUDICIAL POLICYMAKING by G. Alan Tarr. St. Paul: West Publishing Co., 1994. 431 pp. (paper)

Reviewed by Susan R. Burgess, Department of Political Science, University of Wisconsin - Milwaukee.

JUDICIAL PROCESS AND JUDICIAL POLICYMAKING is a well written, interesting, up-to-date book that would certainly be an effective textbook for introductory or upper division classes on the American judicial process, the American legal system, law and politics, or law and society courses.

Heavily emphasizing judicial aspects of law and legal practice, the book is divided into four sections that address: (1) the theoretical and historical varieties of courts and law; (2) the structures and participants in the judicial process (including chapters on federal and state court systems, judges, lawyers); (3) judicial process and judicial decision making (including chapters on trials and appeals, criminal justice and the courts, civil justice and the courts, and judicial decision making); and (4) judicial policymaking (including chapters on the concept of policymaking, federal court policymaking, and state court policymaking). In addition, Tarr includes a useful list of suggested readings at the end of the book that interested students might consult, perhaps to begin to construct a bibliography for a research paper assignment. Although the organization of the book suggests that it is concerned entirely with process, Tarr does discuss several substantive issues. For example, in his discussion of federal court policymaking, Tarr includes detailed accounts of the substantive issues and arguments in the areas of abortion and school desegregation.

Each chapter begins with an anecdote, current event or problem that is about a page to three pages in length. Tarr then derives several abstract themes of importance from the anecdotes. These themes become the glue that holds each chapter together. My guess is that these anecdotes would effectively interest students in and generate greater understanding of the more abstract themes that each chapter addresses. While Tarr provides a clear and accessible description of the structure, process, and practice of the legal system, he does not stop there. He also provides students with the material and arguments they need to evaluate institutional development over time, as well as current critiques and reform strategies. Each chapter includes historical and comparative analyses of the institutions and practices in question, plenty of concrete examples and cases to highlight and clarify his thematic points, as well as tables presenting relevant data or offset boxes presenting controversies or problems relate to the textual material. As regards the overall conceptual framework of the text, the only explicit assumptions that Tarr adopts are as follows: (1) American courts have always played an important role in governing and that this role has been on the rise; (2) judicial policymaking is distinctive, in part because judges bring a unique training and orientation to the task, and their institutional constraints (and capabilities) are different from other political actors'; (3) courts make policy in a variety of ways -- not always conflicting with other branches, but

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often complementing them, for example, in statutory interpretation; and (4) courts are also objects of policy, hence the discussion of reform and the comparative element in order to see how other countries have dealt with common problems and to show what is distinctively American.

Apart from those assumptions JUDICIAL PROCESS AND JUDICIAL POLICYMAKING is not based on an explicit, monolithic conceptual framework. While theoretical consistency is not necessarily problematic in a textbook, in my view some texts stunt the intellectual growth of students by dogmatically presenting a single "true" methodological approach, and/or by failing to acknowledge or acidly dismissing legitimate alternative approaches. The latter approach leaves the students with little choice but to adopt the text's (and the professor's) professional catechism. Students may well be able to memorize such dogma effectively, but I do not believe that they will become more skilled at understanding or analyzing current legal and judicial problems in all their complexity.

Happily, Tarr avoids the pontification pitfall in at least two ways. First, he draws from a variety of contemporary and classic books, law reviews, and political science journals ranging from current doctrinal, behavioral, and qualitative social scientific research as exemplified by the likes of Robert Bork, Lee Epstein, and Gerald Rosenberg, for example. Tarr clearly explains the main findings of the scholarly literature in an interesting fashion, providing plenty of concrete explanatory examples and avoiding unaccessible jargon.

Second, Tarr shows that most of the conceptual problems that scholars quarrel about (e.g., the relationship of law and politics in the courts) are complex, and thus do not admit of easy solution. Rather than resolving these difficult problems in a facile way, Tarr presents arguments and evidence from many sides of these debates and encourages students to deepen their understanding of the issue in question by acknowledging and engaging the various points of view. In Tarr's words, he aims to "provide readers with the information and the range of perspectives they need to arrive at their own assessment of the American legal system"(p. 2).

JUDICIAL PROCESS AND POLICYMAKING does, from time to time, raise normative questions concerning, for example, the legitimacy of judicial activism, or the racial, gender, and ethnic composition of the federal judiciary in various presidencies. Again, Tarr goes to great lengths to point out that most of these issues are quite complex and do not lend themselves to easy resolution. And, for the most part, the book successfully locates a relatively non-dogmatic, unbiased approach.

However, despite the obvious care that Tarr has taken to rid the text of bias, and to give coverage to gender, ethnic, and racial issues, he does not succeed entirely. Tarr sometimes adopts "mainstream" language and analysis of these issues. For example, he states: "Following the not-guilty verdict in the policy-brutality case that sparked the Los Angeles riots, critics charged that American courts were guilty of racism." (p. 2; also see p. 323.) He then contrasts complaints about racism in the legal system with concerns

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about "excessive and drawn out litigation found in the Council on Competitiveness's 'Agenda for Civil Justice Reform in America' and from popular concerns about excessive leniency by the courts in criminal cases." (p. 2) Tarr never refers to the "riots" in L.A. as rebellion, nor does he explain the grounding of such a perspective to his readers. "Riot" of course, connotes illegitimate, relatively random violence, whereas rebellion connotes a legitimate response to systematic injustice along racial lines.

In addition, there is absolutely no mention of gays and lesbians in this book but for three paragraphs on p.280 that describe how BOWERS V. HARDWICK declined to extend the right of privacy to cover "consensual homosexual activity". Although Tarr notes that Hardwick tried to argue that the common principle in the privacy cases was the protection of consensual sexual relations, rather than reproduction, Tarr does not discuss or provide a critique of Justice White's argument from "traditional" values. I worry that many students may not be able to generate independently an alternative to White's "mainstream" view of historical attitudes regarding homosexuality. Additionally, BOWERS V. HARDWICK is not listed in the index of the book, nor is there any listing of "homosexuals" or gays, lesbians, or bisexuals, nor do any of these groups appear under Tarr's general listing "minority groups". While I realize that the amount of material one text can cover is limited, I am concerned about the message that we give to our gay, lesbian and bisexual students when a text renders such groups invisible or when the only coverage provided reveals a lack of legal protection. Tarr could have included an offset box showing the positive protection that states other than Georgia provide for gays and lesbians (such as the state constitutional protections of Wisconsin and Massachusetts, or the current controversy over Hawaii, which may soon legally recognize same-sex marriages).

Apart from these difficulties I want to reiterate that Tarr's text is better than most in terms of its attempt to discuss gender, ethic, and racial issues that relate to law and the judicial process. JUDICIAL PROCESS AND JUDICIAL POLICYMAKING is a comprehensive, well organized undergraduate text that students will find interesting and engaging. It can stand on its own in introductory classes, or be supplemented with one or several shorter paperbacks in more advanced courses. For those who teach such courses, I would say that this book is well worth a look.