The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts.
Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork (who champions the original understanding of the Constitution) to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law.
Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.
"This carefully nuanced description of the kind of reasoning employed in law, a process often mysterious to outsiders, is the best I've seen."--The New York Times Book Review
"An eloquent review of how the law works."--The Washington Post Book World
"The arguments are elegant and the writing smooth and witty; the book deserves to be among the first taken down from the self by any student of legal theory and practice."--Choice
"[Sunstein's] carefully nuanced description of the kind of reasoning employed in law, a process often mysterious to outsiders, is the best I've seen, and captures the way judges actually make decisions in most cases....Mr. Sunstein has provided an articulate and comprehensible entry into the intellectual world of lawyers and judges....Anyone who wishes to learn what 'thinking like a lawyer' is all about should read this book."--The New York Times Book
"An eloquent review of how the law works."--Joan Biskupic, The Washington Post Book World
"If you are looking for an account of law that avoids the impossibly abstract choices posed by most legal theory and puts you in touch with the law as it really works, this is it."--Stanley Fish, Duke University
"Outside observers of American legal theory and practice can easily form the impression that American law is tortuous and arbitrary. Since everything is a bit like everything else, any conclusion can be justified. In this innovative work Cass Sunstein deals head-on with this problem. He argues persuasively that analogies form part of any legal system, and that the request for judges to make their decisions on the basis of first principles runs into decisive
pragmatic objections. It is a book that is obligatory reading for anyone concerned with the nature of law as it is actually practiced."--Jon Elster, Robert K. Merton Professor of Social Science, Columbia University
"A central characteristic of American judicial reasoning is its particularity. Indeed, the best of American legal theory has attempted to explain and justify an approach focusing on the features of individual cases and avoiding reliance on rigid rules. Sunstein's book not only offers the most comprehensive attempt to defend particularistic decisionmaking in all of its manifestations, but also gives the most powerful defense. Defenders of rules, categories, and
abstraction will have a formidable task in trying to penetrate the armor of Sunstein's normative defense of particularistic decisionmaking."--Frederick Schauer, Frank Stanton Professor of the First Amendment, Harvard University
"Cass Sunstein's new book makes a significant addition to our understanding of how law works and of the nature of law itself. He explains in lucid prose, with many concrete examples, the components of good (and bad) legal reasoning and how they contribute to the outcome of legal controversies. Sunstein's ideas, which combine keen insight, common sense, and a vast knowledge of legal materials, are sure to prompt discussion. His account of 'incompletely theorized
agreements' especially is original and important. The book will be of great value to scholars as well as to those who are beginning the study of law."--Lloyd L. Weinreb, Dane Professor of Law, Harvard University