WHEN LAWYERS SCREW UP: IMPROVING ACCESS TO JUSTICE FOR LEGAL MALPRACTICE VICTIMS

Vol. 29 No. 1 (January 2019) pp. 12-15

WHEN LAWYERS SCREW UP: IMPROVING ACCESS TO JUSTICE FOR LEGAL MALPRACTICE VICTIMS, by Herbert Kritzer and Neil Vidmar. Lawrence: University Press of Kansas, 2018. 248pp. Cloth $45.00. ISBN: 978-0-7006-2585-7.

Reviewed by Jared Perkins, Department of Political Science, California State University, Long Beach. Email: Jared.Perkins@csulb.edu

In Herbert M. Kritzer and Neil Vidmar’s recent book, WHEN LAWYERS SCREW UP: IMPROVING ACCESS TO JUSTICE FOR LEGAL MALPRACTICE VICTIMS, the authors embark on a groundbreaking and comprehensive study of claims of malpractice by lawyers in the United States. By investigating the types of claims that are made and the resolution of those claims, the authors provide a portrait of the claims involving lawyers’ professional liability (LPL), or legal malpractice. Given the dearth of scholarship on malpractice litigation outside of the context of physicians, this study is an invaluable contribution to our understanding of the nature of malpractice by lawyers in America. The authors use a mixed-methods approach to consider several facets of LPL, including what factors contribute to legal malpractice claims, how the claims are handled by relevant actors like tort lawyers, insurance defense lawyers, and insurance companies, and the overall outcomes of these claims. In addressing these areas, the authors advance the theoretical argument that there are “two-hemispheres” in the world of legal malpractice: one focused on claims arising from legal work conducted for clients who are individuals or small businesses, and the other from claims that stem from work done for large corporations (p. 4). It is this theoretical argument, supported with ample evidence throughout the book, that is perhaps this book’s greatest contribution as it sheds much-needed insight onto the immense disparity in the access to justice available for victims of legal malpractice.

In Chapter 1, the authors begin by noting the relative paucity of research and scholarly attention devoted to legal malpractice, especially when compared to the literature on malpractice by physicians and surgeons. They then present their research question of investigating the nature of legal malpractice claims and outline the “two-hemispheres” argument for understanding these claims in the United States. This theory is based on the understanding that the kinds of cases handled by large law firms with mostly corporate clients are markedly different from those taken by legal practices that primarily serve individuals or small business. Naturally then, the kinds of mistakes and errors made by lawyers and the context of that potential legal malpractice varies along this fault line as well. This is an important distinction, and one the authors refer back to throughout the book, as it provides crucial insight into the causes of the disparity in access to justice for victims of legal malpractice between the two hemispheres. Legal practices serving large businesses are more likely to be insured, and thus lawyers are more likely to sue these firms as there is an entity that may pay out. Kritzer and Vidmar find that many plaintiffs’ lawyers are reticent about taking on uninsured lawyers and that many personal services sector lawyers do not carry insurance, leading to fewer claims and less successful claims against lawyers in this “hemisphere.” The authors conclude the chapter by outlining the difficulty in researching this topic, as data is difficult to obtain and tends to be patchy at best. Nevertheless, the authors were able to gather high-quality data from several sources, including insurance companies and state regulatory agencies, to help paint a vivid portrait of the state of legal malpractice and access to justice in the United States.

Chapter 2 contains ten illustrative case studies that help demonstrate the types of legal situations that give rise to legal malpractice claims. The authors divide the cases into two types based on the “hemisphere” of legal practice in which the case arose, with five cases being drawn as examples from the personal [*13] services sectors and the remaining five selected from the business or corporate legal services hemisphere. These cases illuminate the kinds of legal malpractice that lead to LPL claims, including missing a deadline, breach of fiduciary duty, negligence, and bad legal advice.

THE MYTH OF THE LITIGIOUS SOCIETY: WHY WE DON’T SUE

Vol. 29. No 1 (January 2019) pp. 8-11

THE MYTH OF THE LITIGIOUS SOCIETY: WHY WE DON’T SUE, by David M. Engel. Chicago: The University of Chicago Press, 2016. 248pp. Cloth $24.00. ISBN: 978-0-2263-0504-2. Ebook $18.00. ISBN: 978-0-2263-0518-9.

Reviewed by Aaron J. Ley, Department of Political Science, University of Rhode Island. Email: ajley@uri.edu.

If there is an incontrovertible truth to everyday Americans, it is the conventional wisdom that litigation is out of control and greedy plaintiffs and their lawyers are exploiting the tort system for their own gain. To students of the legal system, however, the flaws of this narrative have been exposed by an extensive body of socio-legal research showing it to lack merit. For scholars like David M. Engel, a Distinguished Service Professor at State University of New York at Buffalo Law School, the fundamental question is no longer whether there is an American litigation problem since the empirical research demonstrates that there clearly is not one. Rather, the mystery we are seeking to solve is the case of “the dog that doesn’t bark,” or why injury victims do not claim. Here, “the dog that does not bark” refers to a classic Sherlock Holmes tale of a mystery solved when it was learned during the investigation that a dog did not bark at the scene of a crime. That is because the perpetrator was known by the dog. Engel argues that to explain the lack of claiming by injury victims we should ask why, given the popular understanding that injury victims are habitual claimers, they choose to “lump” rather than to “claim.”

To explain the propensity of injury victims to “lump,” Engel develops a model that draws on work from a variety of disciplines, including “rehabilitation science, nursing, anesthesiology, and neuroscience” (p. 4). His model goes beyond the dominant theories of claiming that are grounded in economic and cultural explanations. According to the rational choice model which is based in economic theory, claiming occurs only after injury victims have carefully weighed all of the costs and benefits of asserting their claims. The cultural theory of claiming, on the other hand, explains that victims choose not to claim because powerful social norms deter it. Engel concludes that a new model of claiming is necessary because, while some support exists for these traditional models of claiming, they nevertheless fall short of capturing empirical reality (especially the rational choice model, which Engel finds to be more normative in nature).

Before introducing his model, Engel provides the reader with a brief guided tour of the existing literature on claiming behavior by personal injury victims, which allows him to introduce Felstiner, Abel, and Sarat’s (1980-1981) model that describes lumping as an alternative to naming, blaming, and claiming. It models the injury victim as being rationally motivated and as moving along a unidirectional series of linear decision stages that more commonly lead to lumping rather than claiming. To Engel, this model is “deeply flawed” because it is “an unrealistic image of injury and response that bears little relationship to injuries as they actually occur or to victims as they actually live, breathe, and cope with the dire consequences in which they find themselves” (p. 36). Engel proposes to overcome these theoretical flaws by focusing instead on the experience of injury while describing the non-linear character of decision-making that occurs in the aftermath of an injury.

The experience of an injury, for instance, may impose excruciating and debilitating pain that cause sensations of disembodiment while also requiring the consumption of pain medication that muddles thought processes. [*9] It is, moreover, common for injury victims to experience a personality change, which causes victims to withdraw from family and other social support systems. Rational and highly linear models of autonomous decision-making are undermined even further when considered alongside a wide body of psychology research demonstrating that our bodily sensations and interrelationships influence our nonconscious thinking and decision-making. To Engel, all of these observations make it “a mistake to imagine that the typical injury victim suffers damage to the body and then, in effect, refers the matter [of asserting a claim] to his or her brain for a conscious assessment and response. Instead, it is more accurate to imagine an organic interconnection of environment, body, and mind” (p. 54).

JUST MEDICINE: A CURE FOR RACIAL INEQUALITY IN AMERICAN HEALTHCARE

Vol. 29 No. 1 (January 2019) pp. 4-7

JUST MEDICINE: A CURE FOR RACIAL INEQUALITY IN AMERICAN HEALTHCARE, by Dayna Bowen Matthew. New York: New York University Press, 2016. 288pp. Cloth $35.00. ISBN 978-1-4798-9673-8

Reviewed by Leniece Titani-Smith, Department of Political Science, Jackson State University. Email: leniece.t.smith@jsums.edu.

In JUST MEDICINE Dayna Bowen Matthew investigates the sub-optimal health care and healthcare outcomes of people of color in the United States. She offers a descriptive and explanatory account that intersects neuroscience, social science and the law. Her work extends the discourse beyond access and affordability to include a salient but frequently overlooked factor in the poor health outcomes of minority patients: unconscious racism, also known as implicit bias. This book has three overarching goals: (1) highlight and emphasize the reality that unconscious racism “due to implicit biases is hidden, tolerated, and even excused, despite its destructiveness” (p. 54); (2) to demonstrate that unconscious racism is the key mechanism influencing the thinking, behavior, and interactions that produce health disparities in minority populations; and (3) to end and reverse the discriminatory attitudes, beliefs and conduct that cause disproportionate harm to the health of minorities, up to and including policy and legislation. Throughout the book, Matthew puts forth data and evidence, which are generated from interviews with physicians, nurses, and patients, which were part of a snowball convenience sample. The inclusion of national survey data on healthcare experiences would have added weight to the Biased Care Model and provided additional evidence of the disparity gap in treatment. However, the combination of neuroscience, social science, and legal research provides cogent evidence to advance the main arguments.

Matthew examines how implicit bias frames and disrupts the clinical encounter from pre- to post-clinical contact. For instance, implicit biases shape the clinical encounter in many ways, including how close to sit, eye contact, listening to the patient, answering questions, or offering relevant detailed information. Physicians’ implicit biases affect pain management, referrals or recommendations for treatments, tests or procedures, pediatric decisions and diagnoses, and treatment of manageable conditions. Although this book is about unconscious racism, it is not the author’s intent to label all physicians as racists. In fact, she asserts that most doctors are not bigots, nor are they aware of their personal contribution to health disparities among patients of color; further, neither are they aware that they are personally influenced by implicit racial biases. Although none accept the assertion that they might be guilty of implicit bias, research using the Implicit Association Test (IAT), demonstrates that most physicians possess some level of implicit bias toward people of color.

In Chapter 2, “Implicit Bias and Health Disparities,” Matthew reviews neuroscience research on implicit bias. She discusses the distinction between implicit bias and racism and defines implicit bias as the “attitudes, preferences, and beliefs about social groups that operate outside of human awareness or control” (p. 42). She relies on neuroscience research to explain how implicit bias is automatic, unconscious thought without intention and identifies the stages — Store, Identify, Retrieve, Activate, Form and Influence — of implicit bias in the subconscious mind (p. 40). Matthew also offers physiological evidence of how the brain processes implicit biases, and the cognitive processes that lead to bias. Her discussion of the measurement of implicit bias utilizes the IAT, a computer-based test that measures the time a person takes to sort photos of African American and European American faces and combinations of those facial images with selected pairs of positive and negative words. Scores closer to zero demonstrate a neutral preference toward African-Americans or Whites. Harvard Project Implicit researchers reported that they found “a strong implicit preference for white Americans [*5] over black Americans among all test takers including physicians who were white, Asian and Hispanic,” but not African-American (p. 45). Additionally, there is a discussion of heuristics and racial schema, and the useful but possibly destructive role of “sorting patterns” used for solving medical problems and making diagnoses.

A REALISTIC THEORY OF LAW

Vol. 29 No. 1 (January 2019) pp. 1-3

A REALISTIC THEORY OF LAW, by Brian Z. Tamanaha. Cambridge: Cambridge University Press, 2017. 208pp. Hardback $110.000. ISBN: 9781107188426. Cloth $34.99. ISBN: 9781316638514.

Reviewed by Joshua Turner, Department of Philosophy, Utica College; MAIR candidate, American University School of International Service. Email: jaturner1@utica.edu.

In one of the later chapters of his book, A REALISTIC THEORY OF LAW, Brian Tamanaha remarks that “Once a label and corresponding conceptual implications take hold... they are hard to dislodge” (p. 154). While speaking specifically of international law in this instance, it could be fairly applied to the entirety of what his book is attempting to achieve. Despite the use of “realistic” in the title, Tamanaha argues for what international relations theorists might call a constructivist view of law; that is to say one which is heavily influenced by both social and historical considerations. For Tamanaha, the “nature” of law is reflected in the meaningful actions of societies and people and, perhaps most importantly, could have been constituted differently (p. 80). Law, as it is currently viewed, is not a linear progression towards a destination that was necessary. To put it in Platonic terms, there is no ‘form’ of law which all things that wish to be law necessarily bend towards.

Tamanaha clearly expresses his objectives for the book early on, with a stated goal of “articulat(ing) a realistic theory of law, and more generally to demonstrate the significance to jurisprudence of theories that center on law in society” (p. 2). What people say and think about the law is of greater importance than what is actually written down on paper; this pragmatic and empirical approach to understanding law is the bedrock of what is to follow. Tamanaha calls this a “social legal theory,” which has its roots in the historical school of jurisprudence (pp. 12-24). He is also clear in pointing out that his is only one interpretation of social legal theory among many and that it is quite possible for two social legal theorists to have very different views on what constitutes it; this is a diversity found less often in the positivist or natural law interpretations (p. 29).

Thematically, the book has a good flow and progresses smoothly from foundations to more specific concerns. At no point does Tamanaha get “over his skis” and tackle issues that have not at least been touched upon in earlier sections. This approach of building from the ground up (much like his conception of law itself) again lends to the ease in reading what could otherwise be very convoluted and nebulous. While making his points, Tamanaha pulls no punches but is charitable to countering views. Arguments are always made in good faith and it does not seem as though he is taking the worst interpretation possible of those with which he disagrees.

Tamanaha describes a jurisprudential landscape dominated by two main branches of jurisprudence: an analytical or positivist perspective and the Law of Nature or natural law (pp. 12-13). The third prominent view, a historical one which was positioned directly against the universalism of natural law, would eventually become what we now call the social branch of jurisprudence. The empiricism of the Enlightenment, through the works of Montesquieu, Savigny, and Maine, among others (pp. 15-19), would greatly influence this branch of jurisprudence, with an emphasis on law as a “living organism” that must change with social norms and accepted practices. For Tamanaha, a potentially difficult aspect of engaging with social legal theory is that for many its tenants are often accepted as a kind of truism and thus it is not given the thought and academic rigor it deserves. From this beginning, what follows is a thorough examination of social legal theory and how it fits into the grander scheme of jurisprudence and how we think about law. Perhaps most interesting in this chapter is the juxtaposition of empirically based social science with philosophy in regards to their ability to identify universal truths, so far as they [*2] exist, about law. While Tamanaha effectively rebuts this notion in a later chapter, it remains a constant theme throughout the book. As is noted in a footnote (p. 36), while legal philosophers are quick to disregard the ability of social science to tell us what we ought to think about law, because it is limited to telling us what the predominant social thought regarding law of the time is, scientists have long been hostile to philosophy encroaching on what they increasingly see as their domain. Tamanaha makes clear that neither the social approach he posits nor those in the contemporary analytical school, can provide all the answers alone (p. 37).

THE ACHILLES HEEL OF DEMOCRACY: JUDICIAL AUTONOMY AND THE RULE OF LAW IN CENTRAL AMERICA

Vol. 28 No. 7 (December 2018) pp. 102-104

THE ACHILLES HEEL OF DEMOCRACY: JUDICIAL AUTONOMY AND THE RULE OF LAW IN CENTRAL AMERICA, by Rachel Bowen. Cambridge University Press, 2017. 292pp. ISBN 978-1-107-17832-8.

Reviewed by Lydia Tiede and Susan Achury, Department of Political Science, University of Houston. Emails: lbtiede@uh.edu and susan.achury@gmail.com.

Rachel Bowen’s THE ACHILLES HEEL OF DEMOCRACY: JUDICIAL AUTONOMY AND THE RULE OF LAW IN CENTRAL AMERICA re-conceptualizes our understandings of the threats to judicial independence that judges and courts encounter in weak states. While much of the extant literature on courts worldwide focuses on their independence from political actors, Bowen offers a fascinating look at how societal actors can both promote and undermine the institutional and decisional independence of courts. She also offers a comparison of five understudied judiciaries in Central America found in Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua, all but one of which has emerged from repressive rule, civil violence, and foreign interference. By analyzing courts and other legal actors in these countries, she shows how judicial power evolves over time to confront criminality, violence, and corruption as well as to confront the more often studied encroachments from strong executives and legislators. Bowen’s book includes information from extensive interviews and detailed accounts of how judiciaries and other actors in Central America navigated complex environments in the period from 1979 to 2015.

Bowen asks “how weak democracies can build courts and other justice sector institutions that can exercise autonomous power and contribute to building the rule of law” (p. 10), defined as “a system in which power is exercised through democratically enacted formal laws applicable to all equally and checked by formal accountability institutions” (p. 223). To answer this question, Bowen asserts in the first chapter that courts are more effective in building the rule of law if they are both independent from political actors and autonomous from societal actors, including criminals, businessmen, and others who have the means to corrupt the judicial policy-making process. Bowen makes a significant contribution by focusing our attention on societal autonomy which allows judges in weak states to give “practical effect” to law without “threats from violent actors and enticements from their wealthy counterparts” (p. 2). While political independence allows courts to act against public officials who have overstepped their power, societal autonomy allows courts to prosecute a variety of actors for crimes which undermine citizen security and highlight state weakness.

Bowen uses both political independence and societal autonomy to create a useful topology of four judicial regime types. A liberal judicial regime (defined by moderate to high levels of political independence and societal autonomy) is best placed to build the rule of law and is exemplified in Costa Rica since 1989 (Chapter 3). In stark contrast, the government control judicial regime lacks both political independence and societal autonomy and exists within authoritarian contexts existing in Guatemala, Honduras, El Salvador, and Nicaragua in the 1970s and 1980s (Chapter 4). In line with other scholars who analyze the rule of law in authoritarian contexts (see Moustafa and Ginsburg 2008), Bowen analyzes a wide variety of responses from judicial and other actors operating within this judicial regime type as countries transition from authoritarian to hybrid regimes and then to unconsolidated democracies.

A clandestine control judicial regime has high political independence, but limited or no autonomy from societal actors and thus is plagued by corruption. While this type of [*103] judicial regime may support democratic development, it is often stymied by threats from the private sector. Guatemala from 1986-2002, presented in Chapter 5, provides the best example of a clandestine control judicial regime because despite the signing of peace accords in 1996, the country’s movement toward democracy coincided with an increase of organized crime, violence and insecurity – a useful reminder about how difficult it is to establish the rule of law after conflict.

CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE

Vol. 28 No. 7 (December 2018) pp. 97-101

CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE, by Tamir Moustafa. New York: Cambridge University Press, 2018. 206pp. Paper $29.99. ISBN: 978-1-108-43917-6

Reviewed by Steven D. Schaaf, Department of Political Science, The George Washington University. Email: stevenschaaf@gwu.edu.

How and why do debates regarding the role of religion in society end up being adjudicated in the courthouse? And what are the consequences of using law and courts to resolve religious disputes? Tamir Moustafa’s CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE explores these questions through a rigorous analysis of the judicialization of religion in Malaysia. This book is an impressive undertaking, contributing to a diverse body of research on comparative judicial politics (Ferejohn et al 2009; Helmke and Rios-Figueroa 2011; Kapiszewski et al 2013), social and legal mobilization (Zemans 1983; McCann 1994; Anderson 2006; Arrington 2018), and the relationship between the religious and secular in social and political life (Gill 2001; Grzymala-Busse 2012; Fox 2015).

CONSTITUTING RELIGION keenly articulates a puzzle that deserves more attention in political science: in many countries, particularly majority-Muslim countries, state law and courts are used to codify religious principles, construct boundaries between religious and secular spheres, and regulate religious practice. The concept of religion broadly encompasses all “systems of beliefs or practices oriented toward the sacred or supernatural” (Smith 1996). But the courthouse is a very specific forum, one in which disputes tend to be expressed in a unique legal jargon, rendered as an adversarial conflict with a binary outcome, subject to the technicalities of judicial procedure, constrained by standards of admissible evidence, and resolved through the application of state law, rather than divine law. Hence, it is odd that courts should ever emerge as institutions for adjudicating conflicts of a sacred or supernatural nature. By investigating the judicialization of religion in Malaysia, Moustafa’s work takes an important step forward in evaluating how the judicial toolkit lends itself to construing and resolving sensitive political and social disputes.

Moustafa theorizes that religion becomes most heavily judicialized under the following conditions: (1) religion is tightly regulated – with the implication being that such regulations are established through law; (2) judicial empowerment and public access to the judiciary are high; (3) constitutions make dual commitments to both religion and liberal rights; and (4) different legal regimes apply to different communities. Of course, CONSTITUTING RELIGION is a theory-building project, not one that aims to test each of these conditions empirically (p. 63). The main strength of the book is Moustafa’s detailed and contextualized analysis of the Malaysian case; the theory it develops is heavily attuned to Malaysian history and the complexities of Malaysia’s political environment. But some of this theoretical richness becomes blurry when the insights Moustafa derives from the Malaysian case are conceptualized in more general – and generalizable – terms.

For instance, when stated broadly as an independent variable, the first factor promoting the judicialization of religion appears a bit too on-the-nose. If religion is tightly regulated by law, it seems apparent that the judiciary – being charged with interpreting and applying state law – should be more active in religious affairs. At the same time, Moustafa’s analysis of the Malaysian case does quite a bit more than say “the legalization of religion facilitates its judicialization.” In fact, some of CONSTITUTING RELIGION’s most compelling insights come from explaining how religion came to be so heavily regulated by Malaysian law in the first place.

PRESIDENT OBAMA: CONSTITUTIONAL ASPIRATIONS AND EXECUTIVE ACTIONS

Vol. 28 No. 7 (December 2018) pp. 94-96

PRESIDENT OBAMA: CONSTITUTIONAL ASPIRATIONS AND EXECUTIVE ACTIONS, by Louis Fisher. Kansas: University Press of Kansas, 2018. 296pp. Paper $24.95. ISBN: 978-0-7006-2685-4. ISBN: 0700626859

Reviewed by Kimberley Fletcher, Department of Political Science, San Diego State University. Email: kfletcher@sdsu.edu.

PRESIDENT OBAMA: CONSTITUTIONAL ASPIRATIONS AND EXECUTIVE ACTIONS, by Louis Fisher is a well written account of basic constitutional principles, including separation of powers, checks and balances, and formulating public policy through presidential decree vis-à-vis legislative enactment. Fisher proficiently intertwines a historical, legal and political evaluation to demonstrate how and why unilateral attempts by President Barack Obama to shape national policy without Congress have done substantial harm to the nation and our constitutional system. Fisher employs a rather straightforward theory of presidential power and authority in his analysis of various policy initiatives advanced by the Obama administration. He successfully weaves his theory into an expert retelling of the institutional power plays between the executive, and legislature, illustrating the main goals of the book: how we understand change, how it persists, and how this change is instituted over developmental time. Fisher also examines the integral role of the courts in this process. At times, the courts have championed change with a decision like OBERGEFELL V. HODGES (2015). But Fisher finds the courts are also an inadequate response to executive overreach, as they have also enabled continued claims of executive power.

Fisher demonstrates how the basic system of checks and balances has been substantively changed over time by Supreme Court decisions (beginning with the Court’s 1936 decision in UNITED STATES V. CURTISS-WRIGHT EXPORT CO., which established the sole organ doctrine), military initiatives (including President Truman and the Korean War, President Clinton and hostilities in Haiti and Bosnia, President Obama and military action in Libya, and drone warfare), scholarship (idealizing a pro-presidential position beginning with World War II and on), and by presidents prone to exert unilateral power. This book addresses the unceasing use of unilateral actions by presidents of both parties, including President Donald J. Trump’s recent endorsement of having even more power lodged with the executive branch.

Fisher’s broad framework successfully evaluates Obama’s two terms against the backdrop of prior executives, with attention given to the presidencies of Truman to the present. Fisher begins by evaluating the presidential power that Obama inherited. These powers date back to the basic principles set forth by the Framers but have been considerably altered over developmental time. Fisher then expertly demonstrates that by understanding how a campaign promise to uphold the Constitution can be broken upon entering office we can better grasp the practical realities of responding to congressional gridlock and threats to our national security.

In a detailed account of the Obama administration’s expansive exercise of Article II powers, Fisher illustrates that the political realities of a presidential candidate and the confines of the office resulted in President Obama, an authority on the Constitution, pursuing his agenda ever more aggressively through presidential action. Policy areas reviewed include climate change, the auto industry bail-out, and financial reform. Even though Obama had vowed to revere the separation of powers and the confines of the executive’s constitutional authority, Fisher illustrates that Obama was not unlike other modern presidents in his actions. When Obama’s ambitious policies failed, Fisher draws attention to the politics and the apprehensions that can [*95] propel presidential overreach. In this regard, Fisher speaks to the effect of executive prerogatives on bipartisan backing, public perception, and the efficiency of government.

THE RHETORICAL INVENTION OF DIVERSITY: SUPREME COURT OPINIONS, PUBLIC ARGUMENTS, AND AFFIRMATIVE ACTION

Vol. 28 No. 7 (December 2018) pp. 91-93

THE RHETORICAL INVENTION OF DIVERSITY: SUPREME COURT OPINIONS, PUBLIC ARGUMENTS, AND AFFIRMATIVE ACTION, by M. Kelly Carr. East Lansing: Michigan State University Press, 2018. 310pp. Paper $49.95 ISBN: 1611862841.

Reviewed by Stephan Stohler, Department of Political Science, SUNY, University at Albany. Email: sstohler@albany.edu.

With the appointment of Justice Brett Kavanaugh, conservatives on the U.S. Supreme Court finally seem well positioned to strike down affirmative action in college admissions. This end has been long in the making. Since the 1970s, many conservatives on the campaign trail, in the Department of Justice, and on the federal bench have taken a dim view of these race-conscious, results-oriented policies. What is surprising, however, is that it has taken so long. Republican presidents have appointed a large majority of the justices to the Supreme Court since 1970. And yet, the conservative bloc has never quite been able to find the necessary five votes to advance a “colorblind” interpretation of relevant civil rights statutes or the Constitution's Equal Protection Clause that would prohibit universities from considering race in college admissions. Instead, at key moments over this forty-year time span, some of those conservative judges have eschewed colorblind arguments in favor of an alternative idea that – at least for now – dominates. Specifically, the Court has held that universities can sometimes use affirmative action policies to help them capture the educational benefits which flow from a diverse student body.

That argument and its origin in Supreme Court jurisprudence are the topic of M. Kelly Carr's new book, THE RHETORICAL INVENTION OF DIVERSITY. Specifically, Carr documents how Justice Lewis Powell, the conservative justice responsible for introducing the diversity argument at the Supreme Court level, crafted his famous, peculiar opinion in REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978). I say peculiar because although Powell announced the Court's conclusion in the matter, no single justice was willing to join Powell's entire opinion, much less his diversity rationale. As we know, Powell's more conservative colleagues condemned the affirmative action policy in question because it violated a colorblind interpretation of Title VI of the Civil Rights Act of 1964; his more progressive colleagues endorsed the policy because it remedied historical injustices.

THE RHETORICAL INVENTION OF DIVERSITY is focused first and foremost on how judges craft their opinions. Carr's core thesis is that judges examine the rhetorical choices available to them and then craft arguments best suited to their situation by drawing on cultural resources to defend their conclusions. They select those answers that they believe “meet the needs of the legal question, the legal institution, and the broader public audience and context” (p. 27). And, when justices cannot find an existing answer that meets these criteria, they craft their own, as Justice Powell did in BAKKE. To support this claim, Carr systematically examines the full range of arguments found in previous decisions and the many amicus briefs submitted in BAKKE; the memoranda and notes between Powell and his law clerk, Bob Comfort; and various drafts of the opinion itself. What emerges is a provocative story with significant theoretical implications for our study of judicial behavior and legal opinions.

Carr’s endeavor is a success. This book situates Powell’s opinion within a much larger range of potential arguments that Carr develops from the approaches advocated in a record-breaking number of amicus briefs. As expected, these briefs not only supplied the Court with a range of material from which justices might find an answer, but also insight into how various rhetorical decisions might play out. For example, in a well-documented exchange between Justice Powell and Comfort, Powell [*92] demonstrated substantial reluctance to support affirmative action as a remedy for historical injustices because such an approach would risk “delving into the intractables . . . of deciding whose ox has been gored more often and for how long” (p. 135). The way forward, at least from Powell’s perspective, was to find some balance between those briefs, which largely condemned the creation of a system of racial entitlements, and those defending the use of race-conscious decision making to redress social dislocation. Powell found a partial answer in the briefs supplied by a handful of elite universities, arguing that a strong liberal education required exposure to a range of viewpoints. These exchanges between Powell and Comfort are perhaps the most illuminating in the entire book, documenting Powell's rhetorical decisions to transform a relevant answer based on a new set of values that went beyond what the immediate parties envisioned.