Before the Law: An Introduction to the Legal Process » (8th Edition)

Before the Law promotes an interdisciplinary approach for introducing students to the purpose and practice of law in our society. Excerpts from recent and classic court cases, as well as material on trends in legal studies come from a range of legal sources, including court opinions; sociological, psychological, and anthropological analyses; historical and philosophical approaches; and literary reflections. Readings cover such current topics as online dispute resolution and protection of personal and property rights in cyberspace; gay marriage; and post-9/11 legislation for fighting terrorism.

John Brigham

BEFORE THE LAW emerges from a Legal Studies tradition which brought law back into the undergraduate liberal arts curriculum. Law and Society, a related academic movement, brings social science approaches to law and consequently incorporates social considerations, like racialized practices in administering the death penalty. For Law and Society work, the methods and pretensions of social science partially distinguish its approach from that of the professionals. Legal Studies relies on the undergraduate environment and a reaction against teaching legal doctrine to distinguish itself from professional legal education. BEFORE THE LAW tries to treat law as it might have been treated before it was professionalized and snatched from the liberal arts. This appears easier than it turns out to be. BEFORE THE LAW allows us to see why it is so hard to separate law from the profession. In this capacity, it is a fine text/reader. Now in the fifth edition, this text had its genesis in the late 1960s. The first edition was published in 1974. I have great respect for work that goes into multiple editions. This collection is packed and it has benefited from continuous revision. It contains more than enough material for a semester "legal studies" course. I would probably use it myself but for my training in the institutional dimensions of process which has resulted in a predisposition to teach things like the hierarchies of courts in the federal system and the difference between criminal and civil law. The institutional basics are not a focus of this book. Luckily I have never faced this adoption issue because I share a campus with its authors who teach large and successful classes using the text. The distinctive framework of BEFORE THE LAW is of the greatest interest to me because it allows me to raise a few questions about ways Americans see law. The authors, like so many in power today, have moved from the 60s into middle age. Yet, unlike others (the President, the Speaker of the House) they have not quite become respectable. The authors have constructed the book as outsiders. The book teaches that law is mysterious, complicated and difficult to penetrate, in short, that it is run by others. I think their view is a remarkably common one in law schools, especially very good law schools, where methods from outside the law, from interpretation to economics, have been incorporated. The authors consider this obfuscation problematic and from its signature parable to the critical voice throughout, the point is brought home. I think that the message in BEFORE THE LAW, as well as in professional practice, may be making the critical framework more acceptable than it once was. The new edition looks a lot like its predecessor. In muted tones, the cover carries a portrait from the COURTHOUSES OF THE COMMONWEALTH, the handsome collection of photo essays on the Page 48 follows: Massachusetts courts by Keller and Peet. BEFORE THE LAW is divided into six key parts (Theory and Practice, Police, Legal Profession and Legal System, Juries and Community Participation, Conflict Resolution, and Legal Theory) with 3-8 chapters in each part. Each chapter contains 3-5 readings. There is minimal writing by the authors. Mostly, this writing is confined to short introductory paragraphs, more extensive notes, questions and comments at the end. This material is of very high quality and here Legal Studies draws from its big brother in the law schools to employ illuminating cases and wrap them in provocative questions. For instance, following the Foreword begins, "Before the law stands a doorkeeper on guard. To this doorkeeper there comes a man from the country...." The notes discuss the parable as "an old and odd form of education" (xix) traceable to the old testaments of most religions. (Here in the notes, the refinements that this book has received over the years is evident.) This reviewer is drawn to speculate on the relationship between the title of the book, which comes from this passage in Franz Kafka's THE TRIAL and the handsome architecture of the 19th century courtroom on the cover because the relationship between the two defines the framework of the book. Kafka presented the law as something difficult to know because authorities wanted it to be that way. Kafka's man from the country has little luck gaining admittance to the law even though he thinks that the Law "...should be accessible to every man and at all times" (xviii). The reader is positioned outside like "the man from the country". Yet, as the cover suggests, the vernacular American courtroom is something we visit quite often, at least culturally if not in person. The contradiction is important. This image of citizen or student outsider is not my image of the law. When I first learned of this "continental" view in the 1960s it reflected the alienation of my generation. Although I didn't know enough to understand its implications, I accepted it at the time. Foreignness as an expression of alienation had more appeal then. Now, I think this perspective is off the mark and that the more accurate picture in America is of access and vernacular legal penetration that gives law its power. Although getting to the trial is still pretty foreign, most of us are participants in the law and now know many of its mysteries. With Christine Harrington I have argued that in its ordinariness and in its penetration into the fabric of our lives, the law exercises greater control than the continental law of Kafka's oppressive doorways. I feel free to indulge my concern about the frame because the text provides the material for this kind of analysis. We see the law in this book not in its formal, black letter manifestations, but in the fascination with its ambiguity. With these materials we can investigate its power. At one level, the book is full of material that attests to our capacity to know the law. We are invited to learn how lawyers reason and how judges think. We are introduced to law in much the same way that lawyers are introduced to it. This is a Legal Realist text in the modern manifestation that movement has taken. I believe the point of the book, though it is not explicitly stated, is a grudging respect for law's institutions and practices which is manifested in the readiness to enter the fray, to ask lots of questions. This stuff reflects the diverse Page 49 follows: authors' and in this respect the book benefits greatly from the many scholars who came together in its creation. The book contains many of the classic readings in the legal studies tradition (Llewellyn from THE BRAMBLE BUSH, Orwell on Shooting an Elephant, de Tocqueville on the legal profession, Jerome Frank on fights and truth, Martin Luther King, Jr. from the Birmingham jail, and Robert Cover on Violence) and some cases that have been widely used to elaborate this tradition (FURMAN, EEOC V. SEARS ROEBUCK, NOW V. OPERATION RESCUE). But the book is more than simply a collection of the classics. There are a number of selections here not adequately covered in conventional legal studies readers, including excellent material on legislation and administrative lawmaking, tax and other commercial questions as well as useful selections by Duncan Kennedy, Patricia Williams, Marc Galanter and V.I. Lenin. In the language of the recent past, the book has a voice. It is a progressive collection. The writers help us see that law is not equally accessible to everyone; that law serves entrenched power quite effectively; and that people as jurors are an important democratic element of the system. There are sections on feminism and conflict resolution. There is extensive treatment of the jury and special sections on the relationship between "law, status, wealth and power." The success of the book supports the proposition that this voice rings true to many scholars in the field. The readings, the organization and the editorial material all establish the value of this veteran text. To me its greatest strength is that it is provocative. The authors say that they want it to be but, frankly, when they say this it does not ring true. It's when you begin to work with the materials that their richness emerges. Here is where legal meaning and legal ambiguity come through and here in the names (Faludi, Felstiner, Crenshaw, Turow, Noonan) and the issues (race, sex, abortion, search and seizure, jury nullification, conflict resolution) one feels the vitality of legal studies. Reference: EEOC V. SEARS ROEBUCK 628 F. Sup. 1264 (1986) FURMAN V. GEORGIA 408 U.S. 238 (1972) Franz Kafka, THE TRIAL (New York: Alfred A. Knopf, 1937) Karl N. Llewellyn, THE BRAMBLE BUSH (New York: Oceana, 1951) NOW V. OPERATION RESCUE 726 F. Sup. 1483 (1989) George Peet and Gabrielle Keller, COURTHOUSES OF THE COMMONWEALTH (Amherst: University of Massachusetts Press, 1984).

Foreword F.1 Before the Law, Franz Kafka F.2 Dialogue Between a Priest and K., Franz Kafka F.3 The Problem of Our Laws, Franz Kafka F.4 Couriers, Franz Kafka I. Law in Theory and Practice 1. Lawmaking and Precedent: How Judges and Lawyers Reason from Prior Cases 1.1 The Bramble Bush, Karl N. Llewellyn 1.2 State v. Pendergrass 1.3 Joyner v. Joyner 1.4 State v. Black 1.5 State v. Rhodes 1.6 State v. Mabrey 1.7 The Bramble Bush (continued), Karl N. Llewellyn 1.8 State v. Oliver 2. Law and Official Discretion 2.1 The Judging Process and the Judge's Personality, Jerome Frank 2.2 A Forgery Case 2.3 The Queen v. Dudley and Stephens 2.4 Incarcerated America 3. Law and Values 3.1 The Sorcerer and His Magic, C. Levi-Strauss 3.2 Simple Living and Hard Choices, Maureen A. Flannery 3.3 Cook v. State 3.4 Furman v. Georgia 3.5 The Hanging Judges, Bryan Stevenson 3.6 The End of Executions? The Anti-Death Penalty Movement Is Gathering Force, Linda Lutton 3.7 A Hanging, George Orwell 4. Law and Conflicting Interests 4.1 Why the Haves" Come Out Ahead: Speculations on the Limits of Legal Change, Marc Galanter 4.2 The Case of the Spoiled Chiles, Laura Nader 4.3 Susquehanna Fertilizer Co. v. Malone 4.4 Madison v. Ducktown Sulphur, Copper & Iron Co. 4.5 Ohio v. Wyandotte Chemicals Corp. 4.6 Living Is for Everyone, Miriam Davidson 5. Law, Status, Wealth, and Power 5.1 Das Capital, "The Working Day," Karl Marx 5.2 American Textile Mfrs. Inst. v. Donovan 5.3 The State, V.I. Lenin 5.4 From Day Clean to First Dark, Kenneth Stampp 5.5 Thornton and Wife v. The Suffolk Manufacturing Company 5.6 Streich v. General Motors Corp. 5.7 Testimony of John Higbie 5.8 Fibreboard Paper Products Corp. v. NLRB 5.9 Testimony of William H. Bywater 5.10 The New Free-Trade Heel, Jeffrey Ballinger 5.11 Service Economy, John J. Bonsignore 6. Law and Popular Will 6.1 The Cheyenne Way, Karl N. Llewellyn and E. Adamson Hoebel 6.2 Law and Authority, Peter Kropotkin 6.3 The Watchman, Franz Kafka 6.4 First National Bank of Boston v. Bellotti 6.5 Proposition 215: The Compassionate Use Act of 1996 6.6 Romer v. Evans 6.7 Goodridge v. Department of Public Health 7. Feminist and Racial Perspectives on Law and Legal Order 7.1 EEOC v. Sears, Roebuck & Co. 7.2 International Union, UAW v. Johnson Controls 7.3 Harris v. Forklift Systems, Inc. 7.4 Demarginalizing the Intersection of Race and Sex, Kimberle Crenshaw 7.5 A Critique of "Our Constitution Is Color-Blind," Neil Gotanda Conclusion Suggested Additional Readings II. Law Enforcement 8. Legal Force 8.1 The Violence of Legal Acts, Robert M. Cover 8.2 Address to the Prisoners in the Cook County Jail, Clarence Darrow 8.3 The Rule of Law Versus the Order of Custom, Stanley Diamond 9. Legal Rights 9.1 The Law Is Terror Put into Word's, Peter d'Errico 9.2 Excerpt from "Letter from Birmingham Jail," Martin Luther King, Jr. 9.3 Feminism and Porn: Fellow Travelers, Wendy McElroy 10. Law's Techniques 10.1 Confronting the Complexity of the Policing Function, Herman Goldstein 10.2 Walking the Beat Alone: An African American Police Officer's Perspective on Petit Apartheid, Jackie Campbell 10.3 Terry v. State of Ohio 10.4 Brown v. Texas 10.5 Florida v. Bostick 10.6 Interstate Travel: Constitutional Challenges to the Identification Requirement and Other Transportation Security Regulations, Todd B. Tatelman Conclusion Suggested Additional Readings III. Lawyers 11. The Profession of Law 11.1 The Temper of the Legal Profession in the United States, Alexis de Tocqueville 11.2 Friendly Fire, David Goodman 11.3 The Big Casino, Roy Grutman and Bill Thomas 11.4 The Price of Law, Gilliam K. Hadfield 12. The Education of Lawyers 12.1 Law School: Caught in the Paradigmatic Squeeze, John J. Bonsignore 12.2 Legal Education and the Reproduction of Hierarchy, Duncan Kennedy 12.3 Diary of a Law Professor, Patricia J. Williams 13. Lawyers and the Adversary Process 13.1 The Ethics of Advocacy, Charles P. Curtis 13.2 The "Fight" Theory Versus the "Truth," Theory Jerome Frank 13.3 "I Have Nothing to Do with Justice," James Mills 13.4 The End of Law, Rex R. Perschbacker and Debra Lyn Bassett Suggested Additional Readings IV. The Jury 14. The Jury in a Historical and Cultural Context 14.1 Constitution of the United States, Amendments 15. The Jury as a Political Institution 15.1 Duncan v. Louisiana 15.2 Blakely v. Washington 15.3 Trial by Jury in the United States, Alexis de Tocqueville 15.4 Jury Nullification: The Right to Say No, Alan Scheflin 15.5 Merciful Juries: The Resilience of Jury Nullification, Alan W. Scheflin and Jon M. Van Dyke 15.6 Jury Instructions 15.7 United States v. Dougherty et al. 16. Jury Selection in a Pluralistic Society: The Problem of Gender Discrimination and the Case of Racial Peremptories 16.1 Equality, Law, and Belonging: An Introduction, Kenneth Karst 16.2 A Jury of Her Peers, Susan Glaspell 16.3 Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, Laura Gaston Dooley 16.4 Peremptory Challenges and Affirmative Action: Constitutional Protections for a Jury of Peers, Stephen Arons 16.5 Batson v. Kentucky 16.6 The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, Charles R. Lawrence III 16.7 Miller-El v. Cockrell 17. Decline of the Jury: Democracy at Risk? 17.1 Excerpt from The Transformation of American Law, Morton Horwitz 17.2 An Introduction to Tort Reform and Its Effect on the Survival of Trial by Jury, Stephen Arons 17.3 The Not-So-Quiet Revolution, Philip Corboy 17.4 Empirical Research and Civil Jury Reform, Valerie P. Hans and Stephanie Albertson 17.5 Johnson v. Louisiana 17.6 Apodaca et al. v. Oregon 17.7 The Unanimous Verdict, Jeffrey Abramson Conclusion Suggested Additional Readings V. Conflict Resolution 18. Legal Context of Dispute Resolution 18.1 The Transformation of Disputes by Lawyers: What the Dispute Paradigm Does and Does Not Tell Us, Carrie Menkel-Meadow 18.2 Mediation from a Feminist Perspective: Promise and Problems, Janet Rifkin 18.3 The Culture of Battering and the Role of Mediation in Domestic Violence Cases, Karla Fischer, Neil Vidmar, and Ren? Ellis 18.4 Scrapping the Plea-Bargain, Jennifer Smith 19. Dispute Resolution and Community Justice 19.1 The Social Organization of Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America, Sally Engle Merry 19.2 The Development and Impact of Victim-Offender Mediation in the United States, Mark S. Umbreit 19.3 Talking with the Enemy, Anne Fowler, Nicki Nichols Gamble, Frances X. Hogan, Melissa Kogut, Madeline McComish, and Barbara Thorp 20. Public Disputes and Dispute Resolver 20.1 Disputes Together: Conflict Resolution and the Search for Community, Robert M. Ackerman 20.2 Conflict Resolution, Cultural Differences, and the Culture of Racism, Howard Gadlin 20.3 The Calculator: How Herbert Feinberg Determines the Value of Three Thousand Lives, Elizabeth Kolbert Conclusion Trading Justice for Harmony, Laura Nader VI. Cyberspace and the Future of Law 21. Cyberspace and the Future of Law 21.1 Faking It: The Internet Revolution Has Nothing to Do with the NASDAQ, Michael Lewis 21.2 Law and Borders, David R. Johnson and David G. Post 22. Settling Disputes in Cyberspace 22.1 The Impact of Cyberspace on Disputes and Dispute Resolution, Ethan Katsh and Janet Rifkin 23. Protecting Rights in Cyberspace 23.1 Planned Parenthood v. American Coalition of Life Activists 24 . Protecting Property in Cyberspace 24.1 Metro-Goldwyn-Mayer v. Grokster 24.2 Sony Corp. v. Universal City Studios, Inc. Suggested Additional Readings Index"