THE AMERICAN LEGAL PROFESSION: THE MYTHS AND REALITIES OF PRACTICING LAW

Vol. 28 No. 3 (June 2018) pp. 36-38

THE AMERICAN LEGAL PROFESSION: THE MYTHS AND REALITIES OF PRACTICING LAW, by Christopher Banks. CQ Press, 2018. 144pp. Paperback $23.00. ISBN: 9781506333120.

Reviewed by Todd Collins, Steed Distinguished Professor of Public Policy, Department of Political Science and Public Affairs, Western Carolina University. Email: tcollins@email.wcu.edu.

Christopher Banks’ new book, THE AMERIACN LEGAL PROFESSION: THE MYTHS AND REALITIES OF PRACTICING LAW, provides an insightful evaluation of the law school application process, the law school experience, and the current state of the legal profession. Banks provides a strong mix of standard law school advice, review of recent scholarship, and data related to everything from law school rankings to the average salary of associate attorneys at “Big Law” firms. In addition to potential law students, this book would be a great read for new faculty or those recently assigned pre-law advising duties. It is also a worthy addition to the shelves of those that have been advising pre-law undergrads for many years.

The opening chapter introduces the purpose of the book and points out the modern perceptions and misconceptions of the practice of law, many of which stem from fictional characterizations of attorneys. Chapter 2 provides a very detailed examination of the law school application process. Much of the information here may already be known to those who have been advising students for some time, such as the standard advice that there is generally no “one” major needed to get into law school. This chapter also includes a good discussion of choosing the right law school, preparing for the LSAT, and the misconception that everyone makes a lot of money and is happy as an attorney, a theme the author returns to often in the book. While the information provided is fairly typical for pre-law advisors, what is very useful is that the author includes updated data and recent scholarship concerning these topics. Even for the experienced pre-law advisor, the updates and citations to scholarly works are well worth exploration.

Chapter 3 describes a brief history of the training of attorneys and portrays the modern law school experience. Again, much of the information here will likely be known to those that have advised for some time, such as the fact that social science perspectives on legal issues are not generally taught in law schools and that most of a student’s grade for a course is dependent on one final exam. A very useful section also discusses the bar exam and licensure requirements, something that many pre-law advisors may not include in their standard talking points, but is very important given the low bar passage rates of some law schools operating today. Again, this section is peppered with a significant amount of new data and references to recent inquiry into these issues.

THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING

Vol. 28 No. 3 (June 2018) pp. 33-35

THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING*, by Christopher P. Banks and David M. O’Brien. Los Angeles: CQ Press, 2016. 400 pp. Paper. $88.00 ISBN: 978-1-4833-1701-4.

Reviewed by Claire B. Wofford, Department of Political Science, College of Charleston. Email: wofforcb@cofc.edu.

While there has been no shortage of dismay among academics about the various activities and policies of the Trump administration, there is one development that most law and courts scholars surely favor: the renewed focus on the legal system. Indeed, a new story appears nearly every day about how some legal actor (lawyer, judge, private litigant, interest group) has turned to the courts to manage the current president. Aside from the pending litigation about the travel ban, the Emoluments clause, and the prohibition of transgender troops in the military, there is also the ongoing saga of the Mueller investigation and the additional legal inquiries it has spawned. Though the general public may not follow all of this as closely as academics, it is hard not to notice that the judiciary has moved front and center in American politics.

If these developments spark student interest in law and courts the way the 2018 election seemed to do for American political science generally, then Christopher P. Banks and David M. O’Brien’s newest collaboration for undergraduate courses arrives at a particularly fortuitous time. Judicial process textbooks appear regularly (these same authors published a similar one in 2008, reviewed in these pages in November of 2007) and meet our pedagogical needs with varying degrees of success. But given both the strengths of this book itself and the increasing reliance of many on the judiciary to rein in the current executive, this textbook may prove even more apropos and popular than its authors could have foreseen.

Similar to their prior text, THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING is divided into four major sections, which are then subdivided into chapters, with two to four chapters per section. Part 1, entitled “Law and Political Jurisprudence in a Globalized Society” contains the “Politics of Law and Courts in Society” and the “Politics of Law and Jurisprudence.” Part 2 is the more traditional “nuts and bolts” of the judicial process, with chapters on federal and state court organization and administration as well as judicial selection and removal. In Part 3, “Access to the Courts and Judicial Decision-Making,” the authors cover the legal profession and practice of law, formal and discretionary barriers (such as standing and mootness) to accessing courts, and the processes and procedures of both criminal and civil trial courts. The book concludes with Part 4, “Judicial Policymaking,” which includes chapters on appellate court decision-making and the extent of, and limits on, judicial policymaking power.

AMERICAN JUDICIAL POLITICS: MYTH AND REALITY IN LAW AND COURTS

Vol. 28 No. 3 (June 2018) pp. 31-32

AMERICAN JUDICIAL POLITICS: MYTH AND REALITY IN LAW AND COURTS, by Pamela C. Corley, Artemus Ward, and Wendy L. Martinek. New York, NY: Routledge, 2016. 474pp. Paper $86.95. ISBN: 9780415532983.

Reviewed by Todd C. Peppers, Department of Public Affairs, Roanoke College.
Email: peppers@roanoke.edu.

The request to review AMERICAN JUDICIAL POLITICS: MYTH AND REALITY IN LAW AND COURTS (herein after AMERICAN JUDICIAL POLITICS) came at an especially opportune time, namely, as I was preparing to teach my spring Judicial Process course. While the textbook for that course had been ordered, I decided to use AMERICAN JUDICIAL POLITICS as a supplemental text from which to prepare for class. Accordingly, as I prepared my lectures, class exercises, and class discussion topics, I read the assigned readings from the course text as well as the equivalent readings from AMERICAN JUDICIAL POLITICS. In short, I had the rare opportunity to give the textbook a “test run” in my own class. Overall, I was generally pleased with the results.

Over the last fifteen years, I have used and consulted a variety of textbooks and supplemental readings while teaching Judicial Process. What I have found is that a comprehensive judicial process textbook must cover the following (in no particular order): the different types of laws and their functions in society; the organization of the federal and state judiciary and the different functions of the courts therein; the background, selection and qualification of judges; the role of other legal actors (such as lawyers, litigations, and interest groups) in the legal system; legal and extra-legal theories of judicial decision-making; the civil and criminal trial process; and the implementation and impact of judicial policymaking. From this laundry list of topics, some textbook authors have differentiated their products by including additional topics such as dedicating a chapter to comparative judicial systems or spending more time on the finer points of the methods of legal interpretation.

My guess is that the authors of AMERICAN JUDICIAL POLITICS recognized the need to distinguish their book from the ordinary. They accomplished this goal in several ways, both large and small. First of all, the book is a pleasure to read. The authors pack a lot of information into the textbook, and they do so with a combination of accessible writing, easy-to-follow charts and graphs, and memorable pictures. The range and variety of photographs alone suggest the time and attention put into this project. Given the challenges of teaching this generation of undergraduate students, this book is designed to hold their attention.

AMERICAN COURTS EXPLAINED: A DETAILED INTRODUCTION TO THE LEGAL PROCESS USING REAL CASES

Vol. 28 No. 3 (June 2018) pp. 27-30

AMERICAN COURTS EXPLAINED: A DETAILED INTRODUCTION TO THE LEGAL PROCESS USING REAL CASES*, by Gregory Mitchell and David Klein. St. Paul, MN: West Academic Publishing. 2016. 247pp. Softbound $49.00. ISBN  978-1-63459-879-8.

Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. Email: cbanks6@kent.edu.

American courts explained uses two actual cases, COMMONWEALTH OF KENTUCKY V. WOODALL (a criminal case) and PROMOTION IN MOTION V. BEECH-NUT (a civil case) as the basis for taking students through a detailed examination of the adversarial process from start to finish. Designed as a stand-alone or supplemental text, it differs from other judicial process textbooks that present course material in a more conventional format that typically analyze topics such as the nature and origins of law, judicial organization, judicial selection, the legal profession, criminal and civil litigation, and appellate decision-making, and judicial policy-making. While most, but not all, of those areas of study are addressed by Mitchell and Klein, their exploration is contextualized within the framework of the Woodall kidnapping, rape and murder trial, and the Beech-nut breach of contract and warranty civil action. In a rather unique way, the book discusses relevant concepts by detailing the “law of procedure” underlying each case, thereby elucidating “how cases get filed in court and how they progress through the state and federal courts.” (p. 202). In short, the main cases serve as the template to analyze select topics within the judicial process in an effort to underscore their conceptual significance to the study of law and courts, and politics in general. Moreover, in the preface the authors explain that the book is a “descendant” (p. iii) of Daniel Meador and Mitchell’s AMERICAN COURTS, a casebook that is used in law schools and part of West’s American Casebook series. In this sense, American courts explained is an analogous textbook that is aiming for a share of the undergraduate liberal arts market.

In order to accomplish its aims, the first chapter logically introduces students to the WOODALL criminal case and the PROMOTION IN MOTION civil action. Undoubtedly, both are interesting in their own right and each illustrates the procedural and substantive complexities of criminal prosecutions and civil litigation. In WOODALL, the defendant, a former sex offender that was recently released from prison, was prosecuted and ultimately convicted of the brutal kidnapping, rape, and murder of a sixteen-year old victim that was snatched from a convenience store in Greenville, Kentucky after she drove there to rent a movie. After a grand jury indictment, the prosecutor indicated that the Commonwealth would seek the death penalty at trial, and the defendant initially pled not guilty even though the police were able to secure shoeprint, fingerprint, and DNA evidence that strongly suggested that he was guilty as charged. Shortly before trial, and after a successful defense motion to change the trial’s venue to another location, Woodall changed his plea to “guilty,” which meant that the only remaining issue was whether he should be put to death after a sentencing hearing. At the sentencing hearing, the trial judge refused a defense counsel request to instruct the jury to not draw any negative inferences about Woodall’s decision to not take the stand and testify. After the jury sentenced him to death, the trial judge’s decision became the basis for state and federal court appeals (including habeas corpus) that ultimately affirmed his death sentence over a span of sixteen years.

RAISED RIGHT: FATHERHOOD IN MODERN AMERICAN CONSERVATISM

Vol. 28 No. 2 (April 2018) pp. 25-26

RAISED RIGHT: FATHERHOOD IN MODERN AMERICAN CONSERVATISM, by Jeffrey R. Dudas. Palo Alto: Stanford University Press, 2017. 207pp. Cloth $24.95. ISBN: 9781503600188.

Reviewed by Anna Kirkland, Department of Women’s Studies, University of Michigan. Email: akirklan@umich.edu.

Fathers and paternal authority are ubiquitous references in conservative political and social thought. Conservatives pay homage to the founding fathers in originalist constitutional interpretation, locate family breakdown in fathers’ abandonment, and seek to bolster little girls’ self-esteem with father-daughter dances. In RAISED RIGHT: FATHERHOOD IN MODERN AMERICAN CONSERVATISM, Jeffrey Dudas argues that fatherhood is far more than a popular hortatory point of reference for political conservatism. It provides an explanation for how such a diverse set of people and ideas have held together politically with such effectiveness for so long. Paternal rights discourse is, he argues, “both [conservatism’s] unifying principle and the primary means by which it covers over its scar tissue” (p. 38). Dudas elaborates on what he means by scar tissue later in the conclusion, observing that “paternal rights discourse . . . constitutes national heroes and enemies; it identifies and orients action against supposedly heteronomous, immature, and subversive people and, in so doing, guilds the fractious tendencies at American conservatism’s core by giving its most devoted practitioners something to believe in” (p. 134). Both religious conservatives and libertarians can agree (for quite different reasons) that single mothers who need social goods such as paid maternity leave or child care support are deviant failures and that a strong father in the home is the best fix.

Dudas constructs the core of his argument based on an analysis of the lives and writings of three of the most iconic and celebrated conservatives: William F. Buckley, Jr., Ronald Reagan, and Clarence Thomas. He extends his argument to analyze the internal tensions within conservatism that also run through the troubled relationships of its heroes with their own fathers, who were repressive, distant, and cruel even as their adult sons define their presence as required for growth into a mature citizen. Dudas argues that an essential conservative assumption is that democratic citizenship requires that children be raised with strong paternal authority coupled with weak maternal authority. In other words, children must both submit to paternal authority but then become self-disciplining. Failures of this process include feminized, narcissistic “snowflakes” who want safe spaces, women who want the government to be their husband, and effete left-wing men who eschew their traditional role. Conservatives see individual rights as having been hijacked by the social movements of the 1960s and 1970s, made infantile and coddling, and thus in need of return to the concepts of rights set up by the Founding Fathers. But how, Dudas asks, does the submission to paternal authority end when it is set up to be so complete and total? As he puts it, isn’t it sad to live with this “bone-deep desire for order, stability, and coherence in a world that appears to the afflicted as unstable, out-of-control—a living hell of proliferating, over-determined meanings” (pp. 137-38)? Thus the conservative desire for the dominating father figure is also hopelessly lost in an imagined past, best recapitulated through the private family and gender relations, but always flailing against the changes and variations of the United States we actually inhabit, together, today. RAISED RIGHT, as should be clear by now, is highly critical of conservatism and its commitments, but also acutely sensitive to feelings that Dudas skillfully draws out from his close readings: loss, fear, dissolution, and melancholy. These emotions are not possible for conservatives themselves to acknowledge under paternal rights discourse, and they can only be drawn out by a critical yet highly attentive scholar.

GERRYMANDERING IN AMERICA: THE HOUSE OF REPRESENTATIVES, THE SUPREME COURT, AND THE FUTURE OF POPULAR SOVEREIGNTY

Vol. 28 No. 2 (April 2018) pp. 23-24

GERRYMANDERING IN AMERICA: THE HOUSE OF REPRESENTATIVES, THE SUPREME COURT, AND THE FUTURE OF POPULAR SOVEREIGNTY, by Anthony J. McGann, Charles Anthony Smith, Michael Latner, and Alex Keena. New York: Cambridge University Press, 2016. 272pp.

Reviewed by Robin E. Best, Department of Political Science, Binghamton University (SUNY). Email: rbest@binghamton.edu.

With the Supreme Court hearing partisan gerrymandering cases for the first time in over a decade, it is difficult to imagine a better time to read the comprehensive treatment of partisan gerrymandering in GERRYMANDERING IN AMERICA: THE HOUSE OF REPRESENTATIVES, THE SUPREME COURT, AND THE FUTURE OF POPULAR SOVEREIGNTY. This book provides a thorough discussion of the causes and consequences of partisan bias in contemporary congressional districts, focusing on the political motivations behind partisan gerrymanders, the constitutional context for partisan gerrymandering, and the general implications of partisan gerrymandering for the organization of American democracy.

A major theme of the book is the attribution of partisan bias in current congressional districts to the political means and motives of state politicians. The authors argue that VIETH V. JUBELIRER (2004) effectively removed the possibility of challenging a districting plan on partisan grounds and, in doing so, provided states with free reign to engage in partisan gerrymandering. The Court’s decision in VIETH is situated within a broader constitutional context in Chapter 2, where it is presented as a backtracking of vote equality standards and a relative reversal of the Court’s position in previous partisan gerrymandering cases. The primary empirical findings are delivered in Chapter 3, where the authors employ a well-known symmetry measure of partisan bias (Gelman and King 1994) to show that bias in favor of the Republican Party has increased since the VIETH decision both nationally and in state-level districting plans. Although the authors find plenty of partisan bias already present in 2002-2010 congressional districts, this bias becomes more pervasive and pronounced in favor of the Republican Party under the new districts used in 2012.

Can we attribute this partisan bias to the political motives of state representatives? In Chapters 4 and 5 the authors do precisely this. Through careful analysis they eliminate three rival explanations for the presence of partisan bias in congressional districting plans: the natural geographic concentration of Democrats in urban areas, the need to draw majority-minority districts, and advancements in the technology used to create districting plans. Rather, they demonstrate that partisan bias follows the patterns one would expect if political motives were at work. The authors show the presence of bias in states where one party controlled the districting process and could benefit from a partisan districting plan, as well as an increase in bias across the two sets of districting plans in states where the same – almost always Republican – party controlled the districting process. Although it is difficult to disentangle the effects of the Court’s decision in VIETH from other political motivations, it is clear that the political circumstances of the districting plans drawn after the 2010 census allowed and encouraged Republican-led state governments to draw congressional district lines to their own advantage. A remaining question is whether partisan bias is also found in the districting plans used to elect the state legislators who draw congressional district lines. The presence of such bias would only serve to bolster the authors’ findings.

RECLAIMING ACCOUNTABILITY: TRANSPARENCY, EXECUTIVE POWER, AND THE U.S. CONSTITUTION

Vol. 28 No. 2 (April 2018) pp. 19-22

RECLAIMING ACCOUNTABILITY: TRANSPARENCY, EXECUTIVE POWER, AND THE U.S. CONSTITUTION, by Heidi Kitrosser. Chicago, IL: University of Chicago Press, 2015. 283pp. Cloth $45.00. ISBN: 978-0-226-19163-8. Paper $36.00. ISBN: 978-0-226-56567-5.

Reviewed by Mark A. Graber, University of Maryland Carey School of Law. Email: mgraber@law.umaryland.edu

Once upon a time during the halcyon days before the 2016 national election, Americans debated the nature of presidential power. Most Democrats found persuasive justifications when President William Clinton and Barack Obama exercised presidential power, but not when Ronald Reagan, George Bush and George W. Bush exercised presidential power. Most Republicans found persuasive the justifications Reagan, Bush I and Bush II gave for exercising presidential power, but not the reasons Clinton and Obama gave. A few scholars, most notably Eric Posner and Adrian Vermeuele (2011), offered bipartisan defenses of unilateral presidential power. A few scholars, most notably Louis Fisher (2014), offered bipartisan criticisms of unilateral presidential power.

RECLAIMING ACCOUNTABILITY is a powerful, bipartisan manifesto for those worried about increasing presidential power to withhold information from the general public. Kirtosser offers a strong defense of what she terms “substantive accountability.” Proponents of formal accountability emphasize public capacity to remove officials whom popular majorities conclude are not performing their duties. Officials are constitutionally accountable when they must stand for regular election. Substantive accountability, Kitrosser maintains, requires that the public has the information necessary to make an intelligent decision on whether public officials should be held accountable. Under this framework, officials are constitutionally accountable when their actions and the justifications for their actions are known to the public. “The public and other branches of government must” not only “have the means to respond to presidential misdeeds,” she points out, but “the public and the other branches must have mechanisms to discover and assess such misdeeds in the first place” (p. 15). RECLAIMING ACCOUNTABILITY details how proponents of presidential supremacy and the unitary executive undermine presidential accountability by proposing doctrines that deprive the public of necessary information to make decisions on presidential performance.

Kitrosser favors what she calls “macro-transparency,” which is the idea that presidents should be allowed to keep secrets only when federal law permits or at least does not forbid the secret (p. 45). Presidents may refrain from divulging how suspected terrorists are being interrogated when Congress has by statute declared the matter classified. However, presidents may not claim the power to violate federal law and the power to keep that violation a secret from Congress and the general public. When Congress declares that suspected terrorists may not be tortured, the president may not authorize torture and certainly may not insist that evidence of torture be classified so that no one knows the president is not implementing a congressional program. This distinction between “shallow secrets” (p. 53), secrets the public knows exist, even though the public does not know the content of the secret, and “deep secrets” (p. 53), secrets the public does not know exist, is crucial to substantive accountability and what Kitrousser calls “contained (executive) energy” (p. 47). Congress may empower the president to engage in substantial independent activity and keep numerous secrets as long as federal law known to voters empowers the president to act independently and authorizes the president to keep particular secrets.

COMMON LAW JUDGING: SUBJECTIVITY, IMPARTIALITY, AND THE MAKING OF THE LAW

Vol. 28 No. 2 (April 2018) pp. 16-18

COMMON LAW JUDGING: SUBJECTIVITY, IMPARTIALITY, AND THE MAKING OF THE LAW, by Douglas E. Edlin. Ann Arbor, MI: University of Michigan Press, 2016, 262pp. Hardcover $75.00. ISBN 978-0-472-13002-3.

Reviewed by Michael A. Dichio, Department of Political Science & Philosophy, Fort Lewis College. Email: madichio@fortlewis.edu.

Early on in my American Supreme Court class, I assign my students a response paper based on their viewing of a C-SPAN interview with a Supreme Court justice. Each paper—regardless of the justice my students select—describes virtually the same refrain: “As a justice, I am neutral and objective; the Court only applies and interprets the law.” This trope has long frustrated me because scholars and practitioner alike know it is false, but nevertheless it persists. Douglas Edlin’s COMMON LAW JUDGING: SUBJECTIVITY, IMPARTIALITY, AND THE MAKING OF LAW strikes at the heart of this falsity in a thought-provoking and creative way. Integrating Kantian aesthetic theory, case law in the United States and United Kingdom, and legal theory, Edlin argues that not only is the neutral, objective “ideal judge” non-existent; he asserts that judges incorporating their personal beliefs when judging is a good thing. Edlin calls on scholars, citizens and politicians to “move beyond thinking of the ideal judge as someone who suspends her own personal experiences and values and perspectives so that she can judge from a place of abstract neutrality and objectivity” (p. 110).

Edlin maintains at the very beginning of the book that society has understood and evaluated judges incorrectly; they do not dispassionately apply and interpret law. The overall aim of his book proposes an alternative to the “objective law or subjective preference trope” (p. 4). To move us beyond these tropes, Edlin begins by clarifying subjectivity and objectivity. Although the former has long been considered a vice while the latter a virtue in judging, he notes that these concepts should not be seen in “oppositional terms” (p. 25). He operates from the premise that common law judicial process is “irreducibly and inescapably subjective,” and, thus, his chief purpose “is to explain that subjectivity in judging, properly understood, does not threaten the objectivity of law, properly understood” (pp. 4-5). The heart of the book develops a framework based on Kantian aesthetic theory to capture the nature of common law judging accurately. Edlin’s conceptual framework allows us to merge individual subjectivity with the objectivity of well-defined forms of legal argument and sources that judges then communicate to a broader audience who subsequently “evaluates and validates” the judge’s opinion (p. 113). By using Kantian aesthetic judgement to understand common law judging, Edlin maintains that we can avoid “the misguided and widespread view that the subjective element of judging somehow compromises the integrity of the process or the decision” (p. 17). This Kantian framework also makes room for “a dynamic process of evaluating judgements in a community” (p. 28). Edlin seeks to move us away from evaluating judgments as either subjective (“commonly known today as legal realism”) or strongly objective (that judges discover “the true meaning of law”) (p. 111). For Edlin, this long-held dichotomy falls short of reality. Since “law and the judicial process are human creations” (p. 112), judges do not engage in strongly objective or subjective behavior but rather practice “mediated objectivism” where the meaning of a law “is determined through a process of considered judgement by a community that has particular training or expertise in formulating and evaluating judgments of this type” (p. 10). Thus, Edlin proposes a framework based in the reality of common law judging.