Minding the Law.

Author:Winter, Steven L.
Position:Review
 
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MINDING THE LAW. By Anthony G. Amsterdam and Jerome Bruner. Cambridge: Harvard University Press. 2000. Pp. 448. $35.

In 1984, Gerald Lopez published his groundbreaking and still remarkable Lay Lawyering, (1) employing then-recent developments in cognitive science to reexamine and reconfigure basic questions of law and legal reasoning. Three years later, Charles Lawrence's The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism (2) used insights from cognitive and Freudian psychology to probe the problem of racism and the inadequacy of the law's response. George Lakoff's Women, Fire, and Dangerous Things appeared that same year. (3) It was followed by a series of articles in which I examined a range of legal and theoretical issues in light of the new learning about categorization and human reasoning. (4) Nineteen ninety-three saw the publication of articles by my colleagues Gary Minda and Donald Jones on, respectively, cognitive theory and the law of boycotts and the linguistic and metaphorical construction of race. (5) Two years later, Gary L. Blasi's What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory (6) and Linda Hamilton Krieger's The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity (7) both appeared. More recently, Larry Solan has reexamined issues of statutory construction and criminal law in light of what cognitive science has revealed about how humans actually categorize and reason. (8)

For all that, cognitive studies of law remain marginal in the academy. So, for those toiling in the field, the arrival of Anthony Amsterdam (9) and Jerome Bruner's (10) Minding the Law is an occasion of some moment. After all, when two such eminences grises turn their considerable intellectual talents to a burgeoning if still nascent subject, one has reason to expect the kind of epochal statement that can galvanize or reformulate a field. Jerome Bruner is a titan of cognitive and cultural psychology, the author of several books and numerous articles on education, mind, and culture. (11) Tony Amsterdam is a legendary figure both in the profession and in the academy. One of the country's leading litigators, his work with the NAACP Legal Defense Fund includes such landmark cases as Furman v. Georgia (12) and Lockett v. Ohio. (13) He is also a pioneer of clinical legal education and the author of the classic article on the Fourth Amendment. (14) Add to this an already vibrant literature on which to build, and it should be easy to see why expectations might run high. The combined expertise and experience of two distinguished lifetimes should lead to the kind of magisterial work that plumbs the fundamental questions of the discipline or marks out bold new directions for research and writing.

By this standard, the book is something of a disappointment. Not that it doesn't have its moments. The chapter on categorization provides a panoramic view of recent developments in the field that should serve as an able introduction for those not versed in this material. Chapter Three's discussion and redescription of Justice Scalia's plurality opinion in Michael H. v. Gerald D. (15) as instantiating classic Western adultery myths is a standout. Chapter Nine's summation and indictment of the way in which America's egalitarian promise has repeatedly been smashed on the cruel anvil of race is an effective, often moving jeremiad. And the book does a real service in drawing attention to an important, too-often neglected area of study.

That alone is an invaluable contribution. Indeed, the authors characterize their book as a "propaedeutic," or introduction, to a more productive theoretical study of law (p. 289). Still, for all its obvious promise, the book never seems to transcend a garden-variety legal realism: "Our aim," the authors proclaim, "is to intensify awareness of the decisions and choices constantly being made by the people who make the law -- and of the cognitive devices that those people are forever using to conceal their choices and avoid responsibility for their decisions" (p. 247). In the end, the book provides only the most etiolated accounts of mind as unsituated subjectivity and of law as nothing but the product of rhetorical manipulation. I take up the question of why in Part I of this Review. The answer, I think, is instructive: it says something not only about the current state of legal theory, but also more broadly about scholarship as an inherently communal enterprise. The succeeding sections defend these claims in more particular contexts: Part II focuses on the discussions of categorization, rhetoric, and Justice Powell's majority opinion in McCleskey v. Kemp (16); Part III focuses on the book's claims with respect to narrative and Justice Scalia's plurality opinion in Michael H.; and Part IV offers, by way of conclusion, an alternative prolegomenon to the study of law and mind that focuses on what I believe to be the larger political and social-theoretical stakes.

  1. SANTAYANA'S FIRST COROLLARY

    At this stage of the game, a book on cognitive theory and law should take up the big questions. One reason the book disappoints is that it fails to face up to the issues raised by the material with which it deals. It notes that "[h]ow the category game is played is among the founding quandaries of philosophy of mind" (p. 26), but it explicitly declines to commit itself to a particular view of categorization (pp. 26-27, 29, 37-42). Though it recognizes that the questions of how category prototypes are formed and how similarity within a category is judged are "of interest in trying to understand how legal categories come into being and are used" (p. 41), it never returns to those issues. So, too, the book never grapples with the question of the nature of law -- i.e., what law is and how it is supposed to operate. It raises but, in the end, finesses the question of "how cultural predilections find their way into the adjudicative process" (p. 77). Perhaps most glaringly, it concludes with the observation that law "is driven neither by immutable truths engraved in a fixed body of rules, nor by arbitrary whims or vanities" (p. 291), but in fact says very little about what might lie between those widely separated (and hopelessly conventional) poles -- providing instead an account that stresses judicial acts of categorization and rhetorical legerdemain.

    How could this happen? The explanation, I think, lies in fundamental missteps with respect to organization and standpoint. These two problems are mutually reinforcing; together they determine the warp and woof of the book's peculiar shortcomings.

    The organizational problem can be variously characterized, but the heart of it is a striking disjuncture between the insights introduced in the initial chapter on categorization and the subsequent, hands-on analyses of the topics it takes up. The book appears to have been written in alternating chapters on mind and law, each oar laboring quite separately. Perhaps if the "law" chapters had been integrated with the "mind" chapters -- so that the discussions of the categorization and rhetorics of particular judicial opinions appeared as illustrations or demonstrations of specific theoretical claims -- this would have kept the discussion on its theoretical tracks. But the discrepancies go deeper than the discordance between the discussions of mind and law: because the book never commits itself to a particular theory of mind too often aspiring to be all things to all people (17) -- it cannot maintain the theoretical consistency a project of this sort demands. Even within the chapters on categorization and narrative, the book often fails to reckon with the epistemological implications of its earlier discussion; indeed, it frequently reverts to exactly those conventional understandings of mind and law that the material on categorization has undermined. In short, the authors fail to heed their own warning that "epistemological issues, with or without ideological dimension, almost always have a consequence for how one goes about one's business." (18)

    The problem of standpoint is twofold. The first is immediately apparent from the introduction's disclaimer (pp. 7-8): the principal legal texts chosen for close reading are decisions of the Supreme Court, mostly on matters of race, with which the authors disagree. (Several, in fact, are cases on which Amsterdam worked or which were litigated by former students.) The authors disclaim any intent to criticize these decisions, though they admit that these particular cases were chosen because their "results struck us as unjust" (p. 7). The actual discussions leave little doubt about the depth of the authors' feelings; as they concede: "our biases will show, sometimes clearly enough" (p. 10).

    But this is not a book about the Supreme Court's mishandling of race, or any other legal issue. As the authors note: "To criticize those ... results would require normative analyses (including, conspicuously, a statement of our own values and the reasons for them) that constitute a wholly different subject than the subject of this book" (p. 7). This is a book on how the workings of mind affect the doings of law. The decision to study and critique the rhetorical moves of only conservative decisions is, therefore, an odd choice. For one thing, one does not profitably study a phenomenon by observing only those portions of it with which one disagrees and about which one has strong feelings. For another, this tactic makes it hard for the reader to assess the relevance of cognitive studies to law. The authors acknowledge (p. 8) that the same strategies of narrative and rhetoric are used by Justices of all ideological stripes. Yet, if everyone uses them -- indeed, if everyone necessarily uses them because that is how human minds work (19) -- then it is not at all clear how an exposition of those strategies...

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