Minding the Law by Anthony G. Amsterdam & Jerome Bruner

But this does not mean our purpose in writing about these cases is to criticize their results.  We subject their texts to close reading; and where the reading shows that Supreme Court Justices have made undeclared categorial choices--or have chosen to take one narrative, rhetorical, or cultural direction rather than another without explaining why--we do not hesitate to say that the choices lack any justification in the text.

Anthony Amsterdam is a legend in the capital defense world.  He argued Furman v. Georgia, when the Supreme Court abolished the death penalty.  He argued two of the five cases that brought the death penalty back.  See here and here.  He won a MacArthur genius grant, and teaches at NYU law.

To say I admire him is...an understatement.  So you might imagine my excitement when I learned that he wrote a book.  And not just any book, a book co-written with an accomplished psychologist, Jerome Bruner.  In it, they seek to explain how Supreme Court decisions make categorical, narrative, and rhetorical decisions without acknowledging them.  They throw in chapter about what they call the "cultural" dialectic. For purposes of this review, I'm only going to talk about "categories" and the "cultural dialectic," but only because they have the less intuitive interesting things to offer.

As to categories, they explain the basic human cognitive function of categorizing the information presented to us; this allows us to organize a lot of information more efficiently and also to rely on our generalizations of a category when presented with a specific instance.  However, though categories serve an important cognitive function, we forget that categories are "made, not found."  It follows that to categorize something, is an act of meaning-making.  The act of categorization also serves an end.  They write, "In general, we can say that category systems serve two major cultural functions . . . . One is to promote cohesiveness within cultural groups . . . . But almost by virtue of that function, category systems can also serve to dominate other groups: to impose your system on them."

Categories also present a danger.  Consider:

     When one raises a question whether any particular legal category, category system, or category placement is defensible by anything but fiat, one is more often than not met with the claim that there must be some substance to the challenged categorization because things within the category are more similar to one another than to things outside the category.  And often the similarity adverted to is undeniable, even glaring.  But beware the other similarities that were ignored when the adverted-to similarity was selected for attention.

     For the fact is that human beings have an exquisite, ubiquitous capacity to register endless sources of similarity.  And any judgment of similarity depends upon the criteria chosen to measure likeness or unlikeness.  Similarity for what? is the question.  Two dachshunds are more like each other than like a Doberman, unless one of the dachshunds belongs to me; then the other dachshund and the Doberman are more alike because they are "not mine."

When this analysis is applied to decisions of the Supreme Court, we see that they are full of decisions about how to categorize facts.  These categorizations can ultimately decide a case.  The authors take two Supreme Court decisions and go blow for blow, exposing and explaining every categorical choice.

Amsterdam
I cannot decide which is
more righteous: the 
mustache or this portrait.

They do this kind of analysis for "narrative" and "rhetoric."  Those chapters are also full of insight into the unseen decisions within decisions.  I want to focus on the "cultural dialectic" because I think that section was more Amsterdam/Bruner than mere explication from other disciplines.

They explain what they mean by "cultural dialectic" by reference to ideas: "All cultures are, inherently, negotiated compromises between the already established and the imaginatively possible" and "Whatever internal coherence a culture achieves is attributable, not to some natural process (as with homeostasis in biology, say), but to the dialectical processes inherent in negotiation."  Or to summarize, "cultures in their very nature are marked by contests for control over conceptions of reality.  In any culture, there are both canonical versions of how things really are and should be and countervailing visions about what is alternatively possible."  Of course, this framing may not work for many purposes; however, in the context of legal decisions, it is very helpful.

The reason is that, many Supreme Court issues fall within this fissure.  Fundamentally, when an important issue appears before the Court, the Court is presented with competing views of what it should do: maintain the status quo or aspire to something better.  Do we maintain marriage as the institution of yesteryear, or do we transform it into something all encompassing?  Indeed, one of the most enduring debates about the Constitution is whether it should be read as the same document it has always been or whether it should be read as an evolving document.  Their application of this analysis to actual Supreme Court decisions is fascinating because, fundamentally, and without acknowledgment, the Court is making a decision about which side of the dialectic the Court is on.

Bruner

Why do we care that the Court is making decisions without acknowledging them?  As a lawyer, I care because professionally, I'm trying to persuade the court to do things, knowing what unstated considerations are at play are part of doing this job well.  As a person interested in ideas, this book has caused me to reflect on the layered nature of persuasion.  Yes, the logical is persuasive.  But, as this book shows, much more is at play than logic.  The implication is that our minds understand narratively, categorically, and rhetorically in a way parallel to logically.  And, lurking behind the shadows, is the cultural dialectic: our ability to understand is shaped by the questions of our day.

Obviously, of late, I've been reading what may be generally referred to as "legal theory" books  More so than any of the others, I'd recommend this to both lawyers and non-lawyers.  For the lawyers out there, this book explains the action of the law and problematizes what we easily take for granted.  For the non-lawyers, I think this book explains how being a lawyer is much more than applying straight forward rules to straight forward facts.  Highly recommended.