Book Review - Jurismania

• Author: Major J Thomas Parker
• Pages: 08

1998] BOOK REVIEWS 179

JURISMANIA1

REVIEWED BY MAJOR J THOMAS PARKER2

The editor of a sports magazine recently noted that Formula One racing's rules prohibit, in four words, the use of traction control devices.3 Apparently, there is an ongoing controversy surrounding whether or not one of the sport's top teams is benefiting from such a device or system. The controversy is unlikely to be resolved anytime soon since the rule on point is sparse, and since it will be impossible to truly determine whether any particular technological innovation adds traction control to a vehicle. The editor goes on, however, to compare Formula One's rule to the European Union's twenty-nine thousand word regulatory provision governing duck egg commerce. His obvious conclusion is that Formula One will probably need something more than four words to clarify what is prohibited, but something less than twenty-nine thousand.4

The call for more regulation for Formula One and the European Union's rule on duck eggs are both examples of what professor Paul F. Campos has termed "jurismania." The tenents of this general idea and Campos' comments on the law in the United States and on what the status of the law means to society in broader terms are all explained in his recent book Jurismania: The Madness of American Law.5

In order to understand what Professor Campos calls "jurismania," one must first grasp his notion that we, as a society, think and act in broad, legalistic ways. Professor Campos begins his discussion of this point with a story about how he was contacted by a reporter from the New York Times. The reporter had called about the Denver Nugget's Mahmoud Abdul-Rauf, a player who created quite a stir when he refused to stand during the playing of the national anthem, despite a National Basketball Association (NBA) rule mandating that its players do so.6 In reply to the reporter's

question about the First Amendment implications of this story, Campos comments that "there seems to be no issue of public life that can spend more than a few minutes on the national radar screen before legal modes of argument begin to take over."7 He believes that the NBA's rules are "a prime example of an ongoing process we might think of as the juridical saturation of reality."8 The NBA and other organization's detailed rules and regulations are an "example of both juridical saturation and of what might be called the Will to Process."9 To Campos, the really interesting aspect of the NBA's rule concerns neither the First Amendment implications nor how the rule actually works. Rather, the answer to those types of questions "[are] . . . not as important or interesting as the mere fact of the [NBA's] provision itself."10

The general situation, as Campos describes it, is one where "the work-place, the school, and even the home mimic the language of the law, and as a consequence replicate its conceptual schemes."11 We live and "move through a social space . . . with . . . regulations that attempt to control the minutiae of our social roles in ever more obsessive detail."12 Additionally, the law has grown in more areas than just the regulatory and administrative. As to criminal and constitutional law, Professor Campos believes that the law has grown to such an extent that the full application of its rules in every court case would cause the system to collapse. It "doesn't collapse only because of a tacit understanding that its formal rules must never be followed."13 Consequently, it is only the rich who can afford to bring the law's full panoply to bear on a given dispute.14

With this basic perspective in mind, Professor Campos moves on to discuss his primary ideas. The most unique of these revolve around what he calls "equilibrium zones." Equilibrium zones are basically those areas where subjective and objective decisional criteria reach a point of comfortable reconciliation. As an example, Campos describes how the gambler's point spread and the stock market work. In simple terms, gamblers and investors both take whatever relevant information is available assemble that information and arrive at a mathematical (monetary) point from which it is possible to gamble and purchase.15 As to the law, we have "legal equilibrium zones." Unlike a stock price, "[a] legal equilibrium zone is a sort of negative analogue to an 'equilibrium price' . . . ."16 One might say that in a legal equilibrium zone, equilibrium is reached at a point of uncomfortable irreconciliation.17

Within legal equilibrium zones reside some of the supposedly great legal questions of our time such as abortion and physician-assisted suicide. These questions are "legal" questions because we have chosen to refer them to the court system and not because they are inherently within the court system's purview. Unlike most questions that the law faces, these types of questions are ultimately irreconcilable since they "involve not only complicated empirical questions, but also problematic judgments . . . of moral value . . . ."18 In other words, "[a] legal equilibrium zone develops whenever the materials of legal interpretation faithfully reflect this underlying cultural tension, by failing to resolve through formal rules social conflicts that are not otherwise usefully amenable to rational analysis."19

Additionally, "[s]ocial, political, and legal equilibrium zones arise whe

ever public disputes implicate powerful competing ideological visions- visions that are themselves the product of axiomatic political and moral beliefs."20

With this notion of the legal equilibrium zone in mind, it probably goes without saying that cases with constitutional implications are among those cases that reside most assuredly within legal equilibrium zones:

In the American legal system, to call something a question of constitutional law is not so much an act of formal categorization as it is a shorthand way of signaling that it involves the most intractable moral and political issues our society faces. Constitutional law is the categorical dumping ground for everything the normal political process can't digest: race and religion, sex and death.21

A legal equilibrium zone comes about when the parties to a question are unable to resolve the issues surrounding a dispute. As an important predicate, however, we have the idea that most of our law works, albeit in the background, to keep disputes from arising.22 The process by which this occurs and by which the equilibrium zone is reached is what Professor Campos calls an "efficient process." His "efficient process theory," has three "propositions." First, "[i]n a legal system, efficiently processed disputes will be settled to the extent that the available information predicts a likely outcome."23 The key word here is "settled." If it can be determined what the likely outcome will be, the controversy will not be litigated. With sufficient information in hand, people will choose to avoid the courthouse. Lawsuits will not be filed, guilty pleas will take place and settlements will be reached. On the other hand, "to the extent the process fails to produce a reliable prediction, the further the dispute will tend to travel through the dispute processing system."24 Hence, Campos' second proposition that "[t]he further an efficiently processed dispute travels through a dispute processing system, the more firmly that dispute is lodged in a legal equilibrium zone."25 As to this, it becomes clear that the dispute will not be resolved without resort to formal proceedings. Although there is no great

new insight that comes with these first two propositions, there is something startling about Campos' third proposition.

In his third proposition, Campos states that "[i]n an efficient processing system the terminal decision making structures of the system will resolve disputes arationally."26 Ultimately, Professor Campos' point about the legal equilibrium zone is that when a controversy reaches the zone, it will never be wholly and satisfactorily resolved. Thus, we come full circle and we are beset with the notion that our legal system is essentially not rational despite its nearly infinite attempts to regulate. In other words, despite our best efforts, some of the types of questions that reach the legal process are simply not designed to be answered by a formal system of rules, however detailed...