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Dorothy McClellanA 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 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 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.) 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.
—Department of Political Science, Texas A&M University, Corpus Christi