Vol. 31 No. 4 (April 2021) pp. 77-79JUDICIAL DECISIONMAKING: A COURSEBOOK by Barry Friedman, Margaret H. Lemos, Andrew D. Martin, Tom S. Clark, Allison Orr Larsen, and Anna Harvey. West Academic Press. 2020. 966pp. Paper $164.00. ISBN: 9781642422573.
Reviewed by Mark Rush, Washington and Lee University. Email: RushM@wlu.edu.
Were there enough time and space in every undergraduate or law curriculum, a course on the judicial process and judicial decision-making would be linked to every curriculum that included jurisprudence or topical law courses. As the authors note in the preface and first chapter, a strictly “internal” approach to the study of law that focuses on constitutions, statutes, regulations, and court decisions ignores the fact that courts are part of a wider system of dispute processing comprised of bureaucrats, litigants, attorneys, legislators, lobbyists, and so forth. Accordingly, to regard the law as simply the product of the deliberations of one or more black-robed oracles offers at best an incomplete and at worst, a misleading view of the legal system. In JUDICIAL DECISIONMAKING, the authors therefore look to balance this internal approach with an external one that addresses the many inputs into the legal system that condition the process that leads to an actual judicial decision.
The book’s ten chapters cover the vast expanse of social science research on the indeterminacy of legal and statutory language, the impact of a judge’s ideology and attitudes, systemic constraints on any court’s capacity to render a decision (caseload pressures, appeals processes, etc.), the role and power of any particular court based on its position in a hierarchical, separated system of governmental powers, and the fact that a plural court—like any other collegial body—is subject to strategic bargaining and negotiation among its members. In this regard, the authors do an exhaustive job of demonstrating that while the law may be, as Oliver Wendell Holmes said in THE PATH OF THE LAW, “what the courts will do in fact, and nothing more pretentious,” the courts or the judges have very little control over the process that gives them the opportunity to render a decision (1987, pp. 460-461).
Social scientists will be quite familiar with the contents of JUDICIAL DECISIONMAKING. It is packed with discussion of and references to decades of path-breaking analysis that comprises a highlight reel of the best of social science research. Accordingly, one wonders why, in an era of robust academic interdisciplinarity, there is still a need to build (or, at least, keep reinforcing) the bridges that the authors build in JUDICIAL DECISIONMAKING. Nonetheless, they have done a great service to learning by combining such a wealth of knowledge into one outstanding resource that would make it easy to create a course. [*78]
One cannot do justice to the scope of a resource that is, indeed, a textbook for what would be a very intense and enjoyable class. To go through the text chapter by chapter would turn this book review into a poor version of an outstanding textbook. To give a sense of the importance of the themes and the thoughtful manner in which the authors present them, I touch upon a couple of the chapters.
Chapter 1 (“An Introduction to Judicial Decision-making”) leads up to and ends with a provocative question: “Did the law decide BROWN V. BOARD OF EDUCATION? This comes at the end of a great overview of the legal and political process. Social forces dictate the court’s docket and the court relies on the social forces and the support of the other branches for enforcement of their decisions. Ultimately, force (in some cases, military force) was necessary to desegregate the schools. So, this chapter nicely places the role of the courts clearly and starkly in the midst of a dynamic, indeterminate governmental system.
Chapter 2 (“The Limits of the Law”) nicely lures the reader in with a discussion of Chief Justice John Roberts’ use of the “umpire calling balls and strikes” metaphor at his Senate confirmation hearing. The chapter demonstrates the limits utility of any such metaphor in any legal system. The umpire may be a useful ideal type from which to develop an analysis of the judicial mind. But the interpretation of legal text and precedent is hardly as straightforward as deciding whether a baseball crossed the strike zone. The author’s use of the wonderful case RIGGS V. PALMER (a.k.a.”Elmer’s case” 115 N.Y. 506 (1889)) makes this manifest. Elmer killed his grandfather so that his aunts would not convince grandpa to change the will in their favor. On the one hand, a judge might look at this case and say that no one should profit from his or her wrongdoing. Elmer loses. On the other, maybe grandpa declared Elmer his beneficiary precisely because he loved his grandson’s homicidal tendencies. Hardly the stuff of calling balls and strikes.
Chapter 6 (“Judging in a Hierarchical System”) is a wonderful antidote to Dworkin’s use of Hercules as a sort of judicial oracle. For many people, “the law” will never be more than whatever is dispensed by local courts or perhaps state courts or federal district courts. Accordingly, “what the law is” is more than merely Oliver Wendell Holmes’ “The prophecies of what the courts will do in fact, and nothing more pretentious.” That depends on which judge, which court, which jurisdiction, etc.
These vignettes are instructive but do not do justice to the scope and utility of JUDICIAL DECISIONMAKING. In short, this is a tremendous work that is worth having on the bookshelf at least as a reference as well as a course book. Nonetheless, I’ll take the reviewer’s privilege and offer some quibbles. First, although JUDICIAL DECISIONMAKING is exhaustive, it lacks a bibliography and useful index. Adding these resources would make it much more helpful and accessible for a social science course or, at least, as a reference. The footnotes are wonderful. But, a bibliography would save a lot of time thumbing back through the pages to find a citation or reference. Also, the prospective reader should know that this is a text focused on JUDICIAL decision making—not all of the judicial or legal process. Accordingly, it does not cover alternative dispute processing [*79] systems, juries and jury selection, plea bargaining, substantive due process, the “new property,” or algorithmic bias in the detail that would certainly fit in a broader course on the judicial/legal process.
This is just an observation and by no means a criticism. JUDICIAL DECISIONMAKING serves the key purpose that its authors identify at the outset. There is always more ground to cover. Nonetheless, it is an admirable work that will be an invaluable resource for scholars and students of the law, politics, and the legal process.
CASES:
RIGGS V. PALMER, 115 N.Y. 506 (1889).
REFERENCES:
Dworkin, Ronald. 1977. TAKING RIGHTS SERIOUSLY. Cambridge: Harvard University Press.
Holmes, Oliver W. 1897. “The Path of the Law.” HARVARD LAW REVIEW. 10: 457 – 478.
© Copyright 2021 by author, Mark Rush.
