Thursday, September 21, 2006

Law and Letters Bookworm

Taking a cue from Larry Solum...

Until Gil Grantmore gets The Legal Reader, a blog by lawyers who love literature (belles lettres), up and running, I've decided to start my own legal version here.

There are several legal texts that have profoundly affected my intellectual development--for better or worse. Some I've come full circle back to (The Concept of Law by H.L.A. Hart) while others I became intensely infatuated with and then eventually rejected (sadly, Words That Wound). But I've written about that already.

There is a list of books every law student should read, but they never do nor will, so I'll leave that to the law professors to grumble over. I'm not yet a law professor, and so I will not pedantically create a syllabus for aspiring lawyers who aren't necessarily interested in the law as an academic subject anyway (viewing the J.D. degree as more utilitarian) and so won't take the time to read jurisprudence and legal history. I have looked at such lists, including one created by Liberal College Law, and while some choices are very, very good (Grant Gilmore!) some are bewildering and will not be of much use nor interest. So since top ten lists, like any attempt to order and operationalize, may be assailed, I won't create a list. (Although seriously, if the list doesn't include H.L.A. Hart; Owen Fiss, Robert Chayes, et. al., run, run, run away). Instead, what I shall offer is a periodic plug for a book that I find myself greatly liking.

So I am greatly liking Judicial Policy Making and the Modern State by Malcolm Feeley and Edward L. Rubin.

It is one of those "...and the kitchen sink" books, but in a good way, meaning there is something for everyone. Feeley, a political scientist and law professor, and Rubin, a law professor and now dean (of Vanderbilt) write what is one of the best books I've read in a long time. It's hard to express how much I love this book, but if you read the abstract of it, you'll see why:

Between 1965 and 1990, federal jduges in almost all of the states handed down sweeping rulings that affected virtually every prison and jail in the United States. Without a doubt judges were the most important prison reformers during this perid. This book provides an account of this process, and uses it explore the more general issue of the role of coursts in the modern bureaucratic state. In doing so, it provides detailed accounts of how the courts formulated and sought to implement their orders, and how this action affected the traditional conception of federalism, separation of powers, and the rule of law.

The authors argue that the judges have always made policy, and will continue to do so, especially in the modern administrative state. The modern administrative state embodies notions of government as an active policy maker, rather htan a passive adjudicator of conflicts. This concept, the book argues, applies to courts as well. The modern administrative state requires an active, policy-making judiciary and, perhaps more importantly, a different and more activist concept of law.

Yes, it's everything a law nerd could want. Legal history, legal theory, case studies (and I mean in the political science sense) as well as case studies (and I mean in the legal sense), doctrinal analysis, a law and society approach to the abandonment of such doctrine, normative and empirical critiques....did I mention they dedicate an entire chapter to how the prison reform cases show how the judiciary abandoned the principle of federalism in order to commandeer the running of state prisons, an area formerly left entirely to the sovereignty of the states?

It's a great book, that not only interrogates the question of what judges do when they make policy choices and then craft policies and implement them, but why judges do that. Well, there's never a clear answer to that latter question--but they do ask how judges get from one point (the illusion of legal neutrality and passive third party adjudication of disputes) to another (the entire overhaul of prisons in the South and active enforcement and regulation). So this book brings in all the stuff I love to read and think about as applied to a concrete case--Fuller, Fiss, Chayes, Shapiro, Segal and Spaeth. Legal theory and political science behavioralist theory is a lot of fun to read, people. Especially as applied to a real-world example. I would not naturally pick up a book about prison reform, but I am glad I am reading this one, if only because it is so interesting to interrogate the judicialization of the modern administrative state.

If we are so worried about "activist judges," what are we worrying about? Judges who enact their own policy preferences? Everyone is a legal realist now (or at least, the law professors at the schools I've gone to)--evyerone knows that is what judges do, particularly at the higher levels of adjudication in which the judges are less bound by precedent (being free to make their own) and when they are not constrained and autolimited by the prospect of being overruled by a higher court. If we are worried about activist judges because they usurp the policy making powers of the legislature, and the enforcing powers of the executive (think of how courts enforce equitable remedies like injunctions), and this raises the concern about the separation of powers--well, who are we kidding? In the modern administrative state, administrative agencies perform the functions of all three branches of government: policy making, review, enforcement. In the modern administrative state, courts peform all three functions as well, because in the very act of "interpreting" a law they make new law, in the interpretation they express a policy preference and thus create policy, and enforcing the remedies requires extensive judicial oversight over a long period of time. This should destroy any illusions of "restrained, passive adjudicators" as well as the illusion of separation of powers and federalism.

So yes, this book is fascinating and rich. Something for everyone, but a lot for me in particular.

This book hasn't "changed my life," per se, because I'm a little less willing to make quick and violent revolutions at this stage in my life and career. While you are always free to change your mind, at some point you have to realize that you should "think about things" for a bit and mull them over for some long period of time before changing an entire philosophy. Thus, while I am reading Walter Benn Michael's The Trouble With Diversity with great interest, I doubt that it would make me change my mind about supporting affirmative action at this late stage. It will complicate my opinions about affirmative action, and inform them, but it probably won't change them.

So this book isn't life changing in the sense that I all of a sudden think all judges make policy choices and are policymakers. Well, I had always believed that, so that's why it's not terribly life changing. But it is life-affirming. I have high regard and deep respect for positive legal theory, and I do believe (more now, than when I was in the grips of Critical Race Theory) that judges are constrained by precedent, the rule of law, and objectively ascertainable doctrine. However, I believe that they vote and act upon their policy choices within those constraints, brushing up against the very limit as they do. Sometimes, they cross the line. Here is an example of when judges cross the line from making policy choices within formal constraints to just becoming outright policymakers and administrators.

It is a loooong book, and goes over much literature that has tried to explain court behavior, and goes in depth studying the particullar cases of Arkansas and Texas--but it is a good read, and well worth the sleepless nights. Much as I love studying the law, such that I can't imagine not studying it, I have a general policy of not reading the law right before bed. Well, I used to. I try to read poetry, fiction, The New Yorker--something other than law, so that if I die in my sleep, the last thing I read won't be "the law." I think that this rule was more important when I was getting my J.D. and taking required subjects I didn't care much for. Now that I'm a graduate law student, taking only the classes I want to take, you know, I'm not minding reading the law right before bed as much. I could die, slumped over my Fed Courts book, and I would be okay with that. I have gone to bed a few nights in a row with Judicial Policy Making and the Modern State, and fortunately have not dreamed of prisons and their bad conditions. Maybe because I don't watch Prison Break. But I am saying this to you, as one resistant to reading "the law" before bed, that I would have been fine with it if I had died in my sleep after reading this book.

Larry has this thing of saying "Download it While It's Hot!" when he plugs a SSRN piece. While I have great hopes for this book, my exhortation will be (borne of experience, sadly):

Read It While It's In Print!