Book Review

This is not a book of history, but a book for historians. Though it contains a long intellectual history of Critical Legal Studies and a firm assertion about the nature of American Legal Realism, the footnotes to the former show a jumble of dates that makes clear that the history is analytic, and the explicit disclaimer of any attempt to render the latter in its historical specificity makes clear that the nature is outside of time. So, I shall pass on the chance either to chastise Kennedy for his recurrent failure to observe his disclaimer or to dispute his history of CLS. Comment about his theory of judicial decision making is another matter.	1
Legal historians often, to my mind too often, spend time examining the history of legal doctrine. Much of the work of CLS scholars was put into the careful examination of doctrine, often with extremely suggestive results. Kennedy's was among the best of this work and so his views on adjudication seem to me to bear consideration, even though they are not written for historians but as part of continuing jurisprudential debate.	2
Kennedy offers what he calls a "minimalist critique" of the notion of adjudication. He argues that in many cases, perhaps most, the existing state of doctrine allows appellate judges to choose how to decide a case based on their ideologically conditioned attitudes toward the events or transactions before them. It is an argument to the effect that often there is no lever and no place to stand. Without both, judges just make it up, not randomly, but in patterns that can be accounted for by their sense of, not some abstract notion of a neutralized "policy," but of what to the common mind are "political" preferences of the kind commonly associated with being a Democrat or a Republican.	3
This critique is "minimalist" in two senses. First, the critique at a minimum describes what happens often, but not necessarily, or even likely always. Second, the critique is the minimum necessary to occupy a place in between (and so to undermine the position of) those scholars who maintain that judges always, or almost always, do (or should?) make "neutral" decisions based on the logic of doctrine or the weight of policy and those scholars who argue that judges always, or almost always, do (but should not?) make "political" decisions based on favoritism in terms of social or economic results. Kennedy is careful to make it clear that he believes that even in appellate courts there are cases where all that is called for is application of the obvious rule. And he adopts a restrained view of "the political." His is not an argument at the level of "Liberalism"—a grand political theory that undergirds all contemporary legal and political thought in an endless struggle to suppress unarticulated communitarian alternatives—but rather at the level of contemporary domestic politics—liberals and conservatives in common parlance. Indeed, the most extraordinary thing about Kennedy's argument is the almost chasteness of it. This is not a piece designed to outrage. It is, as he says, an example of "internal critique," the examination of a system from within its conventions designed to show that, on the system's terms, the system does not operate as it is asserted to.	4
In one sense, no part of Kennedy's critique is news to any good historian. In this century Beard and others did it first and more forcefully. But, in another sense, the book is sensible reading for historians because of the care with which Kennedy goes about his argument, patiently demonstrating exactly where and how ideological considerations enter into the judging process and equally patiently working to undermine the arguments regularly presented on behalf of a more "neutral" understanding of the judicial process. Legal historians dealing with doctrinal development are seldom as careful and explicit in identifying exactly where politics comes into the making of a single decision, much less of a run of cases. Usually, a general tendency is identified, without any attempt to show the alternatives available "on the doctrine" that indicate the presence of choice and thus the implications of the road or roads not taken.	5
Sensitization to exactly what is necessary to make a credible argument about the political content of a judicial decision would be enough reason to note this book, but there is another reason as well. Regularly Kennedy makes arguments in the following form:	6
It may or may not be true that law making through adjudication buttresses the status quo in the way I have described. It seems plausible to me, and worth working on, both at a theoretical and at a practical level. (246)
There is something quite odd to this recurrent litany that derives from Kennedy's own ideology self-described as modernist/postmodernist. It is as if the postmodern epistemological critique of scientific certainty paralyzes Kennedy's ability to make the always and forever correct statements about the world that his modernism requires if the ideas he presents are to be asserted to be true. This annoying aspect of Kennedy's book should be ignored by historians for it is based on a misunderstanding of the postmodern epistemological critique. If the postmodernist critique of truth is correct, if there is no unsituated place from which to judge the world, then it is perfectly pointless to write as if an impossible standard had to be met in order to make a categorical statement. To assert the fallibility of human reason over and over is to betray the hold of the discredited infallible reason on the postmodern mind. To recognize the situatedness of the author of any work, be it philosophy or history, should paralyze no one. If it is "turtles all the way down," then turtles is the best that we can do. It is enough then to say, "This is how I interpret the world." It is for others to interpret it otherwise.
John Henry Schlegel State University of New York at Buffalo

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