Tuesday, August 2, 2011

Lee on Judicial Restraint in America

Evan Tsen Lee, University of California, Hastings, draws upon his expertise as a federal courts scholar and takes an intriguing, biographical approach to his subject in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented.  I've long thought that we should have, in addition to the "Law Stories" series, serious and succinct historical monographs that track first-year and other high-volume law-school courses.  As much as I like teaching the American Legal History course, I sometimes think that legal historians can best contribute to legal education by cultivating in law students an appreciation of the value of a historical perspective as they learn legal doctrine and become adept in doctrinal analysis.  As our notices here over the years indicate, quite a few contributions to the Law Stories series do much more, many settle for providing factual detail not evident in a reported opinion.  That's not nothing.  It is probably the way to coax the widest range of law students (and the lawyers most will become) into conceding that History Is Important.  I'm not sure how much more I managed in my summary of recent scholarship on Pierson v. Post.  Still, a Paul Harvey, "The Rest of the Story" approach--dating myself, I know--is no guarantee that law students appreciate what Ajay Mehrotra has called "the interpretive power of historical analysis,  and what Willard Hurst termed thinking "in the dimension of time."  

This more ambitious pedagogic goal probably requires the mainstreaming of a historical perspective in a substantive law course, so that students learn to think historically as they learn to think like a lawyer.  In the best outcomes, they would not distinguish between the two. The trick is to show that considering "change over time" can help one master legal doctrine and legal skills without limiting the value of history to this narrowly instrumental goal.  But it's worth the effort, especially as our best chance to get a historical perspective into policymaking and governance is through the legal profession, whose members staff so much of American government.

A classic example of the monograph I have in mind is G. Edward White's Tort Law in America (Oxford University Press, 1980, 2003).  Stuart Banner has just published one for "my" first-year course: American Property (Harvard University Press, 2011).  The "Ageless Wisdom" of its subtitle gives me pause, but what most intrigues me about Lee's book is the possibility that it could help Federal Courts scholars mainstream "the dimension of time" into that most formidable law school course

Here is Oxford University Press’s description:
Many legal scholars believe that judges should not be "activists." But exactly what does it mean for judges to practice "restraint," and how did that set of practices evolve in America? In Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented, Evan Tsen Lee traces the cultural, social, and intellectual forces that shaped the contours of judicial restraint from the time of John Marshall, through the "vested property rights" courts of the early 20th Century, through the Warren Court, and up to the present. The Supreme Court and the many lower federal courts have long used mystifying technical doctrines known as "standing" and "abstention" out of a professed fidelity to judicial restraint. Yet this book aims to demonstrate that the concept of judicial restraint cannot be meaningfully viewed outside of the varying contexts of American history. The notion of judicial restraint only makes sense in light of the waxing and waning American commitments to property rights and Protestant idealism, to scientific pragmatism, to racial equality, and even to environmental protection and the need to stem climate change. This book focuses on the personalities and lives of powerhouse Supreme Court justices - John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, William Brennan, and now Antonin Scalia. Largely written in narrative form, it will appeal to those interested in how politics, society, and the power of ideas have shaped American public law.