by Robert Benson. Durham, NC: Carolina Academic Press, 2008. 204pp. Paper $25.00. ISBN: 9781594605017.
Reviewed by Helen J. Knowles, Department of Political Science, State University of New York at Oswego. Email: Knowles [at] oswego.edu.
In a May 1978 memorandum to his colleagues, Justice Blackmun concluded that whether the policy of affirmative action would pass constitutional scrutiny in REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE “will depend, I suspect, in large part upon our respective personal conceptions of the kind of America that was contemplated by Title VI and by the Fourteenth Amendment” (Blackmun 1978). In THE INTERPRETATION GAME: HOW JUDGES AND LAWYERS MAKE THE LAW, Robert Benson, professor of law emeritus at Loyola Law School in Los Angeles, concludes that legal interpretation is inevitably this sort of subjective enterprise. Benson argues that (most) judges and lawyers have a built-in reluctance to acknowledge this truth. They are, he says, the victims of their education, which leads them to disingenuously couch the obviously subjective nature of legal interpretation in language and arguments that evince an air of objectivity (and therefore legitimacy and superiority).
In chapter one, Benson explains the “Old Story” that lies at the heart of this legal “scam.” Covering much familiar territory, this chapter summarizes the ‘traditional’ legal rules of interpretation, not just for statutes but also for “constitutions, contracts, and other texts that attempt to guide future conduct” (p.5). Benson spends the most time discussing the plain meaning of language rule. Although there is much truth in Benson’s conclusion that linguistic ambiguities give this rule limited utility, he overstates his case by arguing that judges and lawyers are trying to hoodwink us into believing otherwise.
In the much longer second chapter, which again revisits material afforded extensive and rich treatments elsewhere, Benson tells the “Modern Story” of the twentieth century historical and cultural changes which brought to legal interpretation a modernism of pragmatism and moral relativism. He reaches beyond the field of law for interesting examples of works – such as THE WIZARD OF OZ – that are open to multiple interpretations. Chapter three takes us into the twenty-first century, with a “postmodern insight” that Benson argues has brought important “new intensity” to legal realism (p.69).
In chapter three, Benson draws on the semiotics work of Umberto Eco in order to construct a “semiotic web of legal interpretation.” The concept of a spider’s web could be a useful way to illustrate a semiotics appreciation of the nuances and subtleties of law. After all, Benson is surely right that our understanding of interpretive processes can be greatly informed by an approach that focuses on signs and symbols. Unfortunately, the [*524] lone diagram in this chapter is bereft of the requisite explanation. This reader was left with a desire for a separate set of signs and symbols to guide her through it.
Before proceeding to Part Two of THE INTERPRETATION GAME, in which he examines the conflicting “Old” and “Modern” stories in action, in chapter four – “How Judges Fool Themselves” – Benson reminds us of his main objection to the legal profession’s use of traditional interpretive methods. He considers it misleading to read the “constraints of culture and judicial bureaucracy” – the importance of which he laid bare in chapters two and three – as being “matters of legal doctrine” (p.97). This appears to ignore the fact that these “social and professional values” are important components of legal doctrine.
Part Two opens with chapter five, “How Statutes Get Their Meaning.” Benson introduces us to four hypothetical individuals, and in doing so demonstrates the lightweight nature of many of his arguments. How, he asks, would these people interpret a 55mph speed limit law? Both the highway patrol officer and the “average” driver would, he concludes, naturally engage in a highly contextualized and common-sense reading of the law; the first would be unlikely to ticket offenders unless they went over 62mph, and the latter would be likely to assume that this would be the chosen behavior of the first.
Benson focuses his attention on the other two individuals – heavily stereotyped judges – and their judicial reactions to a 20-year old, poor and uneducated, 1952 pick-up truck-driving, Asian resident alien who was ticketed for driving at 60mph. Both of the positivist judges believe in the “Old Story,” and in the importance of social stability and safety; these values influence their reading of the speed limit law. The white, 50-something male, Republican-appointed former prosecutor is very likely to enforce these values with a ‘55 means 55’ plain meaning reading of the statute. By contrast, the middle-aged Latino woman, who is a Democratic appointee with experience in immigration law and personal injury litigation, will be far more suspicious of the legal system. She, we are told, will tell the prosecutor to quietly drop the charges. It was no surprise to find, at the end of THE INTERPRETATION GAME, that Benson argues that the media are right to describe case outcomes using ideological labels such as ‘conservative’ and ‘liberal.’
Chapter six provides a brief dissection and analysis of BROWN v. BOARD OF EDUCATION. It is not clear why this particular case study was chosen (beyond its ‘stature’), because after a short summary of Warren’s opinion, Benson simply provides brief biographies of every justice who participated in the decision. These “sketches,” writes Benson, “suggest that each justice, filtering the question in BROWN through his own complex set of experiences and values, answered it essentially by deciding what he thought was the best social policy rather than by deciding that the law dictated a result” (p.117). This will not come as a surprise to many law and courts scholars.
Chapter seven pays homage to the realist legacy of Benjamin Cardozo by [*525] examining his famous opinion in PALSGRAF v. LONG ISLAND RAILROAD and his arguments in THE NATURE OF THE JUDICIAL PROCESS (Cardozo 1921).
Chapter eight rounds out the book with “P.S.s” for five groups of people. Benson feels sorry for law school students who can only hope to survive law school if they ingest and understand the “Old Story.” He hopes that for these individuals THE INTERPRETATION GAME will have a liberating effect, but he is aware that it could equally generate disillusionment or a roll-of-the-eyes ‘old news’ reaction. He remains hopeful that lawyers will heed his call for interpretive honesty, but he is aware he is fighting an uphill battle. Judges, he says, need to take the lead in facilitating change, because judicial independence should not hang its hat on the myth that is the “Old Story.” Journalists are treated very well in this book. It is in their nature to be critical, and they would appear to be the potential saviors because of their willingness to expose legal interpretation for the “sham” that it is.
Although THE INTERPRETATION GAME ends with chapter eight, Benson has posted a ‘ninth chapter’ on a website that accompanies the book (http://www.theinterpretationgame.info). This supplement applies the book’s arguments to analysis of the Bush Administration’s interpretation of international law, with an emphasis on the “Torture Memos.”
The fact that this Internet supplement was not included in the book exposes the rather disorganized nature of the work. It appears to be a synthesis of arguments Benson has made elsewhere over the past two decades. This could be a successful strategy, but unfortunately it falls short. This reviewer found it distracting that some of the citations and references were clearly not updated. For example, in chapter two Benson refers to an “up-to-date contracts hornbook” (p.10). It may have been “up-to-date” in 1987, but it is a treatise that has since gone through two more editions.
Generalizing beyond the five types of audience to whom he writes “P.S.s,” Benson tells us that his book is intended for “the serious, sophisticated reader” (p.xiv). Be that as it may, I am not convinced this book will find its way into many classrooms. Pedagogical problems abound when one asks undergraduates to cast an analytical eye over arguments that often attack a straw man. I would only assign the book to undergraduates if I were confident they were well versed in the nature of such arguments. Graduate students and those studying at law schools are usually better equipped to handle such material. However, I doubt this book will find its way onto many public law field exams, or syllabi for judicial politics or constitutional interpretation seminars. Why? There exists an abundance of works – which are undeniable ‘classics’ – that cover the same material but with a depth and sophistication that students (and their professors) will sadly find lacking in Benson’s volume.
To be fair, Benson does acknowledge that it was not his intent to add to the more “comprehensive manuals” on “the sort of Machiavellian manipulation that gives lawyers, and Machiavelli too, a bad name.” Libraries are already over-endowed with such works, he says. Perhaps this is why he clarifies his [*526] opening comment about the intended readership by saying that, ultimately, he hopes THE INTERPRETATION GAME will be used by “the practicing bar,” whose members “will use the analysis and examples here to shear away some of the overgrowth of doctrine, words and mystifying nonsense in the legal jungle, to clear a path so that attorneys, clients, litigants, judges and the public can see what actually is at stake in each legal battle and how the outcome will actually be determined” (p.141).
This is a noble goal, but if the arguments that Benson makes are to be believed, we should not be holding our collective breath in hopes that it will be achieved – at least, not anytime soon.
Memo from Justice Blackmun to the Court, May 1, 1978, Box I:441, Papers of William J. Brennan, Manuscript Division, Library of Congress, Washington, D.C.
Cardozo, Benjamin N. 1921. THE NATURE OF THE JUDICIAL PROCESS. New Haven, CT: Yale University Press.
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
PALSGRAF v. LONG ISLAND RAILROAD, 162 N.E. 99 (N.Y. 1928).
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).
© Copyright 2008 by the author, Helen J. Knowles.