Postmodern Legal Movements: Law and Jurisprudence at Century's End.

• Author: Sagers, Christopher L.

By Gary Minda. New York: New York University Press. 1995. PP. xii, 350. Cloth, $36; paper, $18.95.

American legal scholarship of the past thirty years has been characterized by nothing so much as fragmentation. The accelerating evolution of contemporary scholarship has brought about forays into all manner of Cognate disciplines, has elicited considerable criticism,(1) and, for some scholars, has reflected an extreme disaffection with traditional techniques of law teaching and analysis.(2) This latter condition has come to be known by some as the "postmodern" condition (p. 2). In Postmodern Legal Movements, Gary Minda(3) attempts nothing less than to capture the whole sweep of American jurisprudence. In SO doing, he purports to explain this postmodern condition as it exists in the legal academy.(4)

Postmodern Legal Movements does two things. First, the bulk of the book provides an overview of American jurisprudence, from Christopher Columbus Langdell to the present. This overview is necessary because, in order to understand "postmodern forms of jurisprudence, we must first explore what came before postmodernism, that is, modernism" (p. 5). Second, the relatively short latter portion of the book presents an argument about the current state of American legal scholarship and its future. Minda's picture of contemporary legal thought is that of a paradigm shift in the making. As he explains it:

[T]he mainstream or modern view has broken into a diverse body

of jurisprudential theories and perspectives. The current state of law

and modern jurisprudence has become like a delta just before a

river empties into the sea. The mighty river that was once modern

jurisprudence has broken down into separate rivulets as it merges

into a larger and different body of water. [p. 257]

Postmodern Legal Movements will prove useful to those in search of a basic introduction to the standard account of American legal thought.(5) Minda is well read in jurisprudence, and his book provides a comprehensive overview of legal philosophy as it has developed in this country during the twentieth century.

As an argument about the direction of legal thought, however, the book suffers from certain problems. It has a strong tendency to overgeneralization and is at times ideologically one-sided. Furthermore, the book's more fundamental arguments -- about the nature of the postmodern phenomenon, its causes, and its future -- seem unduly conclusory. This book is a lumper, as it were, not a splitter; its tendency to compartmentalize intellectual trends seems Procrustean and simplistic.

These criticisms lead to a more general one. Minda is quite sympathetic to the postmodern view,(6) and yet his book seems unduly categorical and rigid -- vices, if anything, of modernism (as Minda uses the term). Thus, the irony of Postmodern Legal Movements is that the book seems itself to be a modernist work. This may be no serious criticism in itself,(7) but one is left to wonder why a scholar so critical of modernist scholarship has taken on such a modernist project.

Part I of this Notice discusses Minda's historical treatment. It sets out in abbreviated fashion the story as Minda has told it, in order to set the stage for his more central arguments. Part I also briefly examines the book's deeper claims and considers Minda's view that modern jurisprudence is at a critical point, verging on an inexorable turn to postmodernism. Part II takes a more critical view, assessing the problems and ironies mentioned above.

1. THE THREAD OF LEGAL HISTORY

   1. Early Trends

      Minda first lays out a lengthy exegesis of what he calls "modern" jurisprudence.(8) He does so because definitions of postmodernism are usually given in relational terms -- postmodernism is everything that is not modernism.(9) Modernism, in turn, seems to be basically everything that we have known as jurisprudence until the present time; only in the past few decades have we begun to explore postmodern modes of legal thought.(10)

      The first four chapters set out a fairly traditional account of the history of American legal philosophy.(11) Minda locates the beginning of modern jurisprudence in the 1871 publication of Langdell's A Selection of Cases on the Law of Contracts.(12) Langdell is for Minda the source of considerable evil in American legal thought -- he was the father, or at least a chief proponent, of American "formalism."(13) The evil of formalism was that it ignored the cultural context in which law exists. As later thinkers understood, formalism allowed the application of rules without respect to the social inequities that may have given rise to them -- racial, class inequality, and so on -- or the unfairness that may result from their application (pp. 64-65).

      The second major phase of American jurisprudence, which is commonly seen as a reaction to the ills of formalism,(14) is known as realism. Minda identifies the origins of realism in the frustration felt by certain faculty at the Columbia and Yale law schools with formalistic law and jurisprudence and their "deep skepticism about the possibility of decision making according to rule."(15) According to Minda, however, most legal realists did not wholly reject formalism. Although the realists recognized the "relationship between law and society [that] enabled [them] to argue in favor of `nontechnical' or `extra-legal' considerations in legal decision making" (p. 28), they "were not that different from the traditional legal scholars they criticized" (p. 31). While Langdell had argued that "law is a science," the realists "advanced the similar idea that `law is a social science'" (p. 31). Thus, although realism was a rejection of the formalist ideal of a discrete set of guiding legal principles, it nonetheless maintained the view that "correct" legal answers could be discovered through social science methods that properly take into account the cultural context in which law operates.(16)

      Realism, which flourished throughout the 1920s and 1930s and lived on into the 1940s, was ultimately defeated by a temporary return to formalism. The 1940s saw the birth of several strands of thought that ultimately crystallized into what is now known as the "legal process" or "neutral principles" school (pp. 33-40). Legal process scholars proposed that law could be made objective if decisionmaking were based only on process values rather than on substantive values. This could be accomplished, they argued, by allowing the courts to consider only those matters within their institutional competence -- disputes involving the individual interests of private parties -- and requiring that they defer in all other matters to bodies more competent to resolve them. Thus, awkward value choices would be left to the representative legislatures, rather than the antimajoritarian courts.(17) This, in turn, would allow law to be more Like the "science" envisioned by Langdell.

      Modernism--all the jurisprudence predating postmodernism, including formalism, realism, and legal process -- finally met the beginning of its end when courts and commentators began to understand the reciprocity of law and society. That is, the first seeds of postmodernism were sown when it became clear that law and the people who make it and are subject to it are interconnected and interdependent. Minda locates this shift in two places. First, he cites two scholarly articles written in the early 1960s: Ronald Coase's The Problem of Social Cost(18) and Charles Reich's The New Property.(19) The "common jurisprudential perspective" of these two articles was their "similar critical responses to the role and function of law in society.... Both authors implicitly rejected traditional faith in the efficaciousness of the legal process and the autonomy of fundamental rights" (pp. 72-73). Thus, they both considered it important to reject the prevailing formalist view that law may be studied profitably in a vacuum, without reference to the cultural context surrounding it.(20)

      Minda also sees the beginnings of postmodernism surfacing in the civil rights case law of the Warren Court. In particular, in Brown v. Board of Education,(21) the Court rejected the then-dominant "separate-but-equal" regime because "traditional legal analysis had failed to recognize that law contributes to the construction of social reality" (p. 64) -- that is, that "separate" seemed "equal" at least in part because the law said it was (p. 74).

      The recognition of the reciprocity of law and society precipitated the changes in scholarly thought that have led to current jurisprudence. Young thinkers influenced by this recognition "rejected the notion that law was distinct from political and moral philosophy; [they] also rejected the idea that law could be rendered coherent by a comprehensive legal theory" (p. 77). This new brand of culturally influenced scholarship soon spurred the growth of five distinct scholarly movements -- the "law-and" movements and the critical theory schools -- that remain with us today. These recent movements are dealt with in the second part of Minda's book.

   2. The Five Schools

      Minda explains "that ... five jurisprudential movements of the 1980s have ... come to reflect the emergence of a new skeptical aesthetic, mood, or intellectual condition in American jurisprudential studies, which many have identified as postmodern" (p. 2). These five schools, each of which is treated separately in its own chapter, are (i) law and economics (chapter 5), (ii) critical legal studies (chapter 6), (iii) feminist legal theory (chapter 7), (iv) law and literature (chapter 8), and (v) critical race theory (chapter 9).

      Minda explains that each school has gone through "generations" (p. 94). In each case, initial proponents of the school, while innovative, retained too much of the modernist baggage that they sought to discard. Later scholars purported to avoid their predecessors' mistakes. For example, "first-generation" law-and-economics...