Minding the Law

Jeffrey St. John

Anthony G. Amsterdam and Jerome Bruner. Minding the Law. Cambridge, MA: Harvard University Press, 2000. 453 pages. $35.00.

In Minding the Law, Anthony Amsterdam and Jerome Bruner offer an interrelated set of arguments about three processual tools used by lawyers and judges in the everyday practice of contemporary law. These tools are categorization, narrative, and “rhetorics.” Describing the tools—and the unreflective but important discursive operations they embody—in the context of several (mostly recent) Supreme Court opinions in race discrimination cases, Amsterdam and Bruner suggest that “lawyering” is an activity deeply rooted in the psychology and argumentative structures of legal contestation.

Chapter 1, “Invitation to a Journey,” introduces the reader to the eclectic approach the authors employ throughout the book. Citing influences ranging from Roman Jakobson to West African folktales, the authors broadly outline a three-part argument and an overview of subsequent chapters. Throughout the book, Amsterdam and Bruner seek in general to question longstanding assumptions about the nature and practice of law; to compare and contrast legal and extralegal usage of the three tools; and to provide fresh insights that would appeal to law students, law professors, and interested lay readers.

In chapter 2, “On Categories,” one encounters the main organizational challenge of reading Minding the Law—the authors’ continuous introduction of new sources and examples, often without explicit connection of one to the next in relation to the larger argument at hand. For example, in a subsection titled “Rules of the Game,” Amsterdam and Bruner list six epistemological rules for understanding “categorization” as a legal term. The third of these rules is “Categories Imply a World that Contains Them.” This rule is supported in successive paragraphs by references to (1) heroes and villains; (2) Hesiod’s theory of the Ages of Humankind; (3) verifiability and falsifiability; (4) Justice Scalia’s judicial reasoning; (5) human uses for stories; (6) Northrop Frye’s “exquisite” Anatomy of Criticism; and (7) the term “murderer” as evocative of images of Jack the Ripper in the minds of law students and lawyers. The reader must do a bit of work to put together in her own mind how the “Categories Imply” rule is meant to inform the “Rules of the Game” idea, and in turn how the latter is meant to support the chapter’s principal argument about categories.

In chapter 3 the authors analyze Justice Rehnquist’s majority opinion in Missouri v. Jenkins, a 1995 desegregation case, to demonstrate categorization’s role in the Court’s reasoning. Their analysis is painstaking and effective. Amsterdam and Bruner reveal Rehnquist’s heavy reliance on arguments from definition and generalization, both of which the authors class as subsets of categorization. They next examine the 1989 child visitation rights case Michael H. v. Gerald D. Though their method of analysis (a parsing of active verbs used to characterize each litigant’s position, followed by a comparison of the case to the legend of King Arthur) is unorthodox, the authors once again show how a judge (this time Antonin Scalia) relies on categorization as a predicate for reaching conclusions.

Chapters 4 and 5 are paired just like their two immediate predecessors: one chapter describes one of the three processual tools (narrative) and the second tackles specific cases. In chapter 4, the authors touch briefly on the use of narrative in mythic, literary, and philosophical contexts, then turn to legal narratives, which they describe as “pleadings, stories told to persuade somebody to believe something or to do something, partisan briefs and arguments” (134). Their application of narrative to chapter 5’s Prigg v. Pennsylvania and Freeman v. Pitts is not especially persuasive. In a section headed by the title “The Plot Outlines,” Amsterdam and Bruner declare that when “[t]racked summarily and stripped of legal material, the [Prigg and Freeman] decisions unfold [as follows].” The authors thus establish a framework of inquiry—“let’s read the stories and see what they tell us”—that is inherently dramatistic. One is left wondering how a verdict “stripped of legal material” may still be evaluated as a verdict, not as (merely) a story. To set about finding a narrative by reading a narrative is tautological at best, and unfortunately does little to advance the claim that lawyers and judges devise and employ narratives in legal argumentation without recognizing that they are doing so.

The next two chapters are the book’s strongest. Amsterdam and Bruner take “rhetorics” to “denote the various legal processes by which a speaker can create, address, avoid, or shape issues that the speaker wishes . . . to contest, or . . . suspects (at some level of awareness) may become contested” (165). The emphasis here is on contestation, and it is precisely law as a discourse of contest that provides the clearest and most persuasive foundation for the authors’ arguments about the psychological and cultural embeddedness of categorization, narrative, and rhetorics. They describe (1) litigation as a function (and as an outcome) of particular techniques lawyers use to encourage the predominance of certain versions of courtroom reality; and (2) how specific words are coded with binding or tendentious meanings within a broader system of courtroom symbolism. To illustrate rhetorics of contestation, Amsterdam and Bruner explore rhetorical devices deployed by Justice Powell in the 1987 death sentence appeal of McCleskey v. Kemp. Moving almost line by line through the Court’s majority opinion, the authors offer convincing support for the claim that Powell is not merely “reasoning,” but is in fact building rhetorical fortifications designed to suggest the ineluctability of his conclusions. Powell’s maneuverings are meant “to produce a single effect: the concealment of every debatable choice that the Court is making as it marches through a seemingly standard drill in legal reasoning” (202).

Chapter 8 works in loose association with chapter 9 to argue that one may step back from the narrow arena of law and watch the same sorts of discursive battles be waged at the level of culture itself. “Cultures in their very nature,” Amsterdam and Bruner contend, “are marked by contests for control over conceptions of reality” (231). In chapter 9 the authors briefly revisit the Court’s long dialectic with race, racial law, and racial policies, concluding broadly that “[t]he Supreme Court is an inescapable player in America’s cultural dialectic, and [is] inescapably responsive to it” (280).

One of the authors’ chief goals is to unpack much of what lies beneath the smooth discursive surfaces of contemporary law—“concealed presuppositions, categorical pitfalls, narrative predilections, rhetorical constructions” (287). Amsterdam and Bruner have achieved this goal. Though uneven in its treatment of individual themes, Minding the Law is a worthwhile read for scholars and laypersons interested in law or rhetoric, especially those focused on the intersections thereof. Anthony Amsterdam’s courtroom experience and Jerome Bruner’s cultural and psychological perspectives combine to make this book an engaging interdisciplinary contribution to the human sciences.

Jeffrey St. John is assistant professor of interpersonal communication at Ohio University.