PROBLEMS LEGAL SCHOLARSHIP. Shuchman.t West Hartford: The University of Connecticut School of Law Press, 1979. Pp. 106, app. 30. $8.95.
Reviewed by Robert A. Weninger*
The law library is the laboratory of the conventional legal scholar. Using statutes and appellate decisions as his subjects of observation, he classifies the varieties of rules and reported cases, compares one set of doctrines with another, and searches for the general principles that explain, justify, and give order to what seems to be confusion. By inductive logic he discovers the proposi- tions for which the reported decisions stand; by deductive reason- ing he reaches new conclusions and theories about the behavior of people and organizations. The results of his logical analysis are published in a law journal in which he exhorts for judicial or legis- lative change of existing law, seeking to improve the social order. The chief difficulty, Professor Shuchman asserts in his book
Problems of Knowledge in Legal S ~ h o l a r s h i p , ~
spond with the objective reality external on appellate decisions as is that much of what is written in the law journals is untrue and does not corre- to what is reported as fact in appellate decisions. Too often the legal scholar mistakenly relies his primary source materials, assuming that the events related in the reported cases actually occurred in the manner described, believing not only that appellate decisions accurately portray reality but also that they are the whole of real- ity. Instead, Professor Shuchman suggests, academic legal scholar- t
Professor of Law, The University of Connecticut School of Law.
Professor of Law, Texaa Tech University School of Law. B.B.A. 1955, LL.B. 1960, University of Wisconsin; LL.M. 1964, University of Chicago. PROBLEMS KNOWLEDGE Heinonline
12 Tex. Tech L. Rev. 1019 1981
TEXAS TECH LAW REVIEW
ship ought to proceed on the basis of empirical investigation and the truth-seeking methods utilized in the natural and social sciences. Identifying the obstacles to full fact revelation, the author ex- plains why it is unlikely that appellate decisions can contain a complete and correct history of the events related in them. The barriers to truth inhere in our legal system and run the gamut of the civil action. Take the pleadings as an example. There are vari- ous rules on what is to be stated in an answer or complaint, but in federal and most state courts it suffices if the pleadings merely give notice of a particular claim or defense. There are good reasons for allowing vagueness and generality in pleadings, but the result is that they do not provide much information as to a party's specific factual contentions. The idea is that other stages of the civil ac- tion, like pretrial discovery, are reserved for the disclosure of facts and past events. I t is true that a variety of discovery devices are available for informing the parties of evidence in the case--depositions, interrogatories, requests for admissions, and the like. These mechanisms appear well suited for their purpose, but the problem is that the adversary system permits the parties to control almost completely the operation of these devices. The usual result is that the discovery process is manipulated by lawyers interested in distorting or concealing information that might lead to evidence. Also, the cost of using these procedural devices im- pairs their effectiveness. Rather than fulfilling their intended pur- pose, they are frequently used to bludgeon a less financially able opponent into submission before trial. Shuchman explains that the rules of evidence further contrib- ute to the disparity between reality and the factual history related in an appellate decision. These rules govern the admission of the proof that may be received a t trial but are largely exclusionary in effect. To advance important interests or policies-for reasons al- together unrelated to the persuasiveness of the proof-the rules render various kinds of evidence inadmissible, thereby depriving the judge or jury of large segments of the history of the matter in litigation. Shuchman does not take issue with the goals of these various rules, but he observes that when the record of the trial pro- ceedings reaches the appellate court it may be bereft of much rele- vant evidence because of them. Moreover, the evidence in the re- cord consists of only some of the recollections relating to past Heinonline - - 12 Tex. Tech L. Rev. 1020 1981
history, presented by witnesses who often are highly partisan and elicited in a question-by-question manner that is not always con- ducive to the presentation of facts in the most natural way. And when a general verdict is returned in a jury case the appellate court does not really know what the jury found as facts. It must infer from the verdict what the jury probably found because the jury is not required to state the factual determinations it made; the jury answers only the question whether the defendant is liable to the plaintiff and in what amount. If the trial results in only a crude and incomplete determina- tion of historical fact, the appeal will help even less. For example, appellate courts exercise no initiative in choosing their subjects of review except in the rarest of instances; only the parties
deter- mine what issues will be considered on appeal. Appellate courts make no independent examination of questions presented to them. Their review is limited to the record and great deference is paid determinations of fact that are presumed to have been made a t trial. So long as there is evidence from which the jury might have inferred certain facts the verdict will remain undisturbed. So long as factual determinations made in a bench trial are not clearly erroneous they too will be upheld. The author has no quarrel with the conventions of trial and appeal. They are necessary for the formal and official settlement of a controversy. Hart and McNaughton have stated that the law does not require absolute correctness of particular decision^.^ It to is '
important that the court decide the case when the parties the decision and on the basis of the evidence presented by the parties. be impracticable and undesirable. The law thus ask for A decision must be made now, one way or the other. To require certainty or even near-certainty in such a context would compromise^.^
Shuchrnan agrees but goes on to observe, correctly does not follow that the same compromises have to be made in legal scholarship. What is said in appellate opinions I think, that it is not necessa- rily representative of the operation of law in society. What the scholar can infer from these decisions can result in a seriously dis-
Some Aspects of Evidence and Inference in the Law,
LUS, Fall 1958, at 40. 3. Id. at 45. Heinonline
12 Tex. Tech L. Rev. 1021 1981
TEXAS TECH LAW REVIEW
torted picture of the legal process. Perhaps it is true that empirical investigation does not rank high in the hierarchy of legal scholarship. But there has been a marked change in the past twenty years. Sustained research efforts have resulted in the publication of book-length legal studies with an empirical bent. The studies by Maurice Rosenberg,' by Hans Zeisel and Harry Kalven: and by Leo Levine are examples of this literature. Moreover, there are now social scientists who are mem- bers of law faculties. Several law schools now offer a course in Law and Social Research. A special association of lawyers and social scientists, the Law and Society Association, has come into exis- tence with its own journal.' The American Bar Foundation, through programs funded by the Walter Meyer Institute, supports empirical research concerning law and legal institutions. A select group of law teachers and social scientists have been invited to spend a year at the Center for Advanced Study in Behavioral Sciences at Palo Alto, California. The law journals often report the results of interdisciplinary resear~h.~ There is a long road to travel, however. Empirical legal studies are not yet routine. We need to be immersed in them so that their liberating possibilities can be appreciated. Professor Shuchman's book is an articulate statement of the need for legal scholarship to accept the offer of the social sciences.
See M .
H. H. &ISEL, 6. See A. LEVIN E. WOOLEY, 7. See 1 LAW REV. 6, 6-7 (1966). 8.
e.g., Weninger, Factors Affecting the Prosecution of Rape: A Case Study of
Tmvis County, Texas, 64
VA. L. Rev. 357 (1978).
Heinonline - - 12 Tex. Tech L. Rev. 1022 1981