by Nancy Black Sagafi-nejad. Albany: State University of New York Press, 2011. 272pp. Cloth $75.00. ISBN: 1438434138. Paper $25.00. ISBN: 1438434146.Reviewed by Elizabeth Ellen Gordon, Department of Political Science and International Affairs, Kennesaw State University. Email: egordon [at] kennesaw.edu.
pp. 671-674
Nancy Black Sagafi-nejad’s focus in Friends at the Bar is divided among three tasks, all connected by a common thread: the interaction between Quakers and the Anglo-American legal system. Her first task is to demonstrate historically how Quaker beliefs and practices have impacted their relationship to law in England (where the Religious Society of Friends began) and later in America. The first chapter is a primer on Quaker belief and philosophy; here, Sagafi-nejad explains the Friends’ “testimonies,” namely peace, simplicity, equality, and truthfulness. In living their beliefs, Quakers have often found themselves on the wrong side of the law and have endured persecution as a result. Next, she explains that, despite the Society’s traditional reluctance to “go to law,” some faithful Quakers have nevertheless done just that. At several points, she considers the conditions under which legal involvement may be necessary or at least acceptable – from the Quaker point of view - to achieve a greater public good. She illustrates how Quaker plaintiffs and defendants have repeatedly won expanded civil liberties not only for Friends, but for others as well. Indeed, she provides an array of legal actions involving Quakers, perhaps most famously, Tinker v. Des Moines Independent Community School District, a 1969 Supreme Court case defining students’ free speech rights in conjunction with a black armband protest against the Vietnam War. Additionally, she discusses various instances of Quaker civil disobedience in opposition to war and slavery, among other societal evils. At times, court cases have arisen as institutional extensions of the civil disobedience strategy.
Sagafi-nejad's second task is to paint a picture of contemporary American lawyers who are also Friends. Because of conflicts between the testimonies and the U.S. legal system, she expects that Quaker lawyers in contemporary practice will find their personal beliefs at odds with certain aspects of their profession. She reports the results of her survey of about 100 Quaker attorneys in a chapter rich with quotes from respondents. Sagafi-nejad lays out her findings with an eye to comparing sub-groups of these Quaker attorneys (especially sub-groups based on gender, but also those defined by age and area of practice). She concludes that for most of her respondents, Quaker beliefs influence their legal practices; often respondents identify tensions and incompatibilities between their beliefs on the one hand and legal culture and professional norms on the other. Following the empirical section is a meditation on how playing the role of “lawyer,” which is expected of those in [*672] the profession, may interfere with one’s personhood. Through the development of legal system norms such as zealous advocacy and confidentiality, the courts have come to accept fairly low standards of truthfulness. Dishonesty and deception contrast with both the Quaker testimony of truth-telling and more broadly, with Americans’ common sense notion of the truth.
Sagafi-nejad is a lawyer, not a social scientist, and this disciplinary perspective is most noticeable in the empirical sections of her book. At times, she is careless about reporting perceptions as reality. For example, her purpose for citing a survey showing that 56 percent of Americans believe lawyers use the legal system to enrich themselves is to “confirm” the observation that lawyers actually do act solely in their self-interest (p.171). Furthermore, because her own survey methodology does not include a control group, the reader can draw few conclusions about anything other than how Quaker lawyers perceive themselves and the overall legal profession. The data is insufficient to ascertain whether they are unique in their views or distinctive in their practices, in kind or in degree. We know that almost half of her respondents thought their practices differed from non-Quaker colleagues, but without anything else to support this observation, we cannot judge the accuracy of this perception. Her survey reveals Quakers’ discomfort with the adversary nature of the legal system. However, there is reason to believe that ambivalence toward at least some aspects of the adversary system is widespread among lawyers, regardless of their religious persuasion. Sagafi-nejad explained that 55 percent of her responding Quaker lawyers thought alternative dispute resolution (ADR) was superior to litigation. (Caution is in order here. The survey item eliciting this information did not allow for the rather obvious conditional response “it depends,” but was worded in global terms: “Vis a vis litigation, do you view alternative dispute resolution as a) superior b) inferior or c) neutral as a means of settling disputes?”(p.205)) Even taken at face value, this finding pales in comparison with a 2011 finding that 90 percent of even New York attorneys, enmeshed as they are in a tough competitive legal culture, hold a positive view toward mediation (Weill 2011).
Sagafi-nejad’s third task is to “challenge the small but hardy band of Quaker lawyers to lead their colleagues” in implementing legal reform, particularly in connection to promoting mediation and arbitration as alternatives to litigation (p.201). She explains that Friends are in an especially good position to lead such an effort, partly because their faith instills values consonant with these ADR methods and partly because of their familiarity with the Quaker community’s own long-practiced system of dispute resolution. Based on New Testament prescriptions, the Friends’ approach to resolving disputes among themselves proceeds in several steps. First, a Friend who feels s/he has been wronged must gently engage the transgressor and attempt private reconciliation (similar to negotiation). If this does not resolve the dispute, the next step is to bring two or three other Friends to help the disputing parties come to a resolution (similar to mediation). The next step, if necessary, [*673] is to summon a larger panel of Friends to determine a fair resolution to the dispute (similar to arbitration). She explains how this process embodies the Quaker testimonies, and how similar processes might make the legal system less destructive of community and relationships. Mediation, in her view, is advantageous in situations where the conflict is essentially private and a resolution can be tailor-made for the individuals involved. In contrast, litigation is a better approach when rights are at stake, where the public resolution of a conflict can result in advancing important goals such as equality and impacting people far beyond those involved in the current dispute.
One of the strengths of Friends at the Bar is its in-depth explanation of Quaker values and how they so often conflict with the English and American legal systems. It is also useful as a collection of Quaker-related 20th Century court cases. The reader can see the impact determined Quakers have had on the wider community as they persist in following the precepts of their faith. By recounting this history, Sagafi-nejad strengthens her claim that Quakers may exert influence disproportionate to their numbers in contemporary and future legal reform efforts, especially in moving toward increased use of ADR. On the other hand, parts of the book seem a bit dated. Keep in mind that she surveyed the Quaker lawyers in 1991-92, at a time when court-connected mediation was not nearly as established as it is today. In the last section, she mentions that “many state bars and bar associations, including those of Texas and Maryland, have established special ADR committees or sections that promote informed use of ADR and have attorney-members who themselves mediate and arbitrate” (p.194). She underestimates how mainstream ADR has become in the legal community. Dispute resolution sections or committees are ubiquitous among state bar associations. Furthermore, the American Bar Association’s Dispute Resolution Section, established in 1993, includes over 19,000 members (“Economic” 2010). Likewise, she indicates that “because many still perceive courts to be the principal channel of justice, it is important that ADR be made part of state and federal court systems” (p.195). In fact this has already occurred; nearly every state has some sort of governmental body charged with overseeing ADR in the courts. A report by the ABA Section of Dispute Resolution’s database counted at least 162 federal district and appellate court programs and 65 state court programs in 2006 (ABA 2006).
Taken as a whole, Friends at the Bar contributes to the public discourse on legal reform, both as another call to expand alternatives to mainstream legal adversary practice and as a documentation of litigation’s historical value in promoting social justice. The alternative perspective on law offered here is refreshing. However, while the Quaker viewpoint serves to critique the legal system, that critique is one-way. The reader should understand that this book offers no critical assessment of Quakers’ rather complex relationship with the law. (It is fair to note that Sagafi-nejad is a Quaker lawyer and that a Quaker community’s scholarship funds supported research for this book.) [*674] Whether, for instance, lawyers do a disservice to their clients or to the system when they bend professional norms in the service of their Quaker values is not adequately explored. While the author asserts that litigation is “an opportunity for Friends’ witness,” the courtroom runs as it does because of practices she considers to be fundamentally flawed. From a Quaker perspective, “truth is truth only in its wholeness” (p.157). The Quaker version of truth-telling, consequently, does not permit “the non-disclosure of a relevant fact, intent, or consequence” (p.158). Such a standard conflicts in a fundamental way with the adversary system, where lawyers are expected to spin information in ways favorable to their clients. While this does not necessitate active lying, it may well entail what she disapprovingly refers to as “passive deceit,” which could include misleading cross-examinations, selective framing of issues, and discrediting truthful witnesses whose testimony might nevertheless ensure an unjust outcome. She acknowledges that issues like the free speech rights at stake in Tinker are well-suited to litigation in the formal court environment, where such issues can be “aired according to evidentiary and procedural rules” and “explored and clarified through the presentation of evidence” (p.119), yet she does not consider that some infractions of the Friends' testimonies might be inextricably woven into the trial process. Despite the nobility of an allegiance to truth, it still seems prudent and worthwhile to consider whether Quaker absolutism might potentially short-circuit the very system devout Quakers have used so effectively to pursue social justice.
References:
ABA Section of Dispute Resolution. 2006. “What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes.” http://www.abanet.org/dispute.
“Economic Recovery, Health Care Mediation and Dissolution of Same-Sex Relationships to be Topics at ABA Spring Conference” 2010, ABA NOW, March 4. http://www.abanow.org/2010/03/economic-recovery-health-care-mediation-and-same-sex-dissolution-to-be-topics-at-aba-spring-conference.
Weil, Richard S. 2011. “Mediation in a Litigation Culture: The Surprising Growth of Mediation in New York.” Dispute Resolution, Volume 17, Number 4 (Summer), 8-12.
Case Reference:
Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969).
© Copyright 2011 by the author, Elizabeth Ellen Gordon.
