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Minding the Law
Download PDF Minding the Law
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Review
Most law professors teach by the 'case method,' or say they do. In this fascinating book, Anthony Amsterdam--a lawyer--and Jerome Bruner--a psychologist--expose how limited most case 'analysis' really is, as they show how much can be learned through the close reading of the phrases, sentences, and paragraphs that constitute an opinion (or other pieces of legal writing). Reading this book will undoubtedly make one a better lawyer, and teacher of lawyers. But the book's value and interest goes far beyond the legal profession, as it analyzes the way that rhetoric--in law, politics, and beyond--creates pictures and convictions in the minds of readers and listeners. (Sanford Levinson, author of Constitutional Faith)Tony Amsterdam, the leader in the legal campaign against the death penalty, and Jerome Bruner, who has struggled for equal justice in education for forty years, have written a guide to demystifying legal reasoning. With clarity, wit, and immense learning, they reveal the semantic tricks lawyers and judges sometimes use--consciously and unconsciously--to justify the results they want to reach. (Jack Greenberg, Professor of Law, Columbia Law School)Amsterdam, a distinguished Supreme Court litigator, wanted to do more than share the fruits of his practical experience. He also wanted to...get students to think about thinking like a lawyer...To decode what he calls "law-think," he enlisted the aid of the venerable cognitive psychologist Jerome Bruner...[and] the collaboration has resulted in [this] unusual book. (James Ryerson Lingua Franca)It is hard to imagine a better time for the publication of Minding the Law, a brilliant dissection of the court's work by two eminent scholars, law professor Anthony G. Amsterdam and cultural anthropologist Jerome Bruner...Issue by issue, case by case, Amsterdam and Bruner make mincemeat of the court's handling of the most important constitutional issue of the modern era: how to eradicate the American legacy of race discrimination, especially against blacks. (Edward Lazarus Los Angeles Times Book Review 2000-12-17)This book is a gem...[Its thesis] is easily stated but remarkably unrecognized among a shockingly large number of lawyers and law professors: law is a storytelling enterprise thoroughly entrenched in culture....Whereas critical legal theorists have talked among themselves for the past two decades, Amsterdam and Bruner seek to engage all of us in a dialogue. For that, they should be applauded. (Daniel R. Williams New York Law Journal 2000-12-05)In Minding the Law, Anthony Amsterdam and Jerome Bruner show us how the Supreme Court creates the magic of inevitability. They are angry at what they see. Their book is premised on the conviction that many of the choices made in Supreme Court opinions 'lack any justification in the text'...Their method is to analyze the text of opinions and to show how the conclusions reached do not always follow from the logic of the argument. They also show how the Court casts its rhetoric like a spell, mesmerizing its audience, and making the highly contingent shine with the light of inevitability. (Mitchell Goodman News and Observer (Raleigh, North Carolina))What do controversial Supreme Court decisions and classic age-old tales of adultery, villainy, and combat have in common? Everything--at least in the eyes of [Amsterdam and Bruner]. In this substantial study, which is equal parts dense and entertaining, the authors use theoretical discussions of literary technique and myths to expose what they see as the secret intentions of Supreme Court opinions...Studying how lawyers and judges employ the various literary devices at their disposal and noting the similarities between legal thinking and classic tactics of storytelling and persuasion, they believe, can have 'astonishing consciousness-retrieving effects'...The agile minds of Amsterdam and Bruner, clearly storehouses of knowledge on a range of subjects, allow an approach that might sound far-fetched occasionally but pays dividends in the form of gained perspective--and amusement. (Elisabeth Lasch-Quinn Washington Times 2000-11-05)Stories and the way judges-intentionally or not-categorize and spin them, are as responsible for legal rulings as logic and precedent, Mr. Amsterdam and Mr. Bruner said. Their novel attempt to reach into the psyche of...members of the Supreme Court is part of a growing interest in a long-neglected and cryptic subject: the psychology of judicial decision-making. (Patricia Cohen New York Times 2001-06-30)In Minding the Law, lawyer Anthony Amsterdam and psychologist Jerome Bruner teach us how to read judicial opinions to see what the judges who wrote them did not see themselves…They have tried to expose the ways in which Supreme Court justices erect screens that "are often tissues of denial–denial that there is a problem, denial that the problem could be fixed if there were a problem, denial of judicial responsibility to fix the problem if it could be fixed. (The Federal Lawyer)
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About the Author
Anthony G. Amsterdam is Judge Edward Weinfeld Professor of Law at New York University School of Law, and a MacArthur Fellow.
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Product details
Paperback: 468 pages
Publisher: Harvard University Press; New Ed edition (April 30, 2002)
Language: English
ISBN-10: 9780674008168
ISBN-13: 978-0674008168
ASIN: 0674008162
Product Dimensions:
6.1 x 1.2 x 9.2 inches
Shipping Weight: 1.2 pounds (View shipping rates and policies)
Average Customer Review:
4.6 out of 5 stars
2 customer reviews
Amazon Best Sellers Rank:
#703,369 in Books (See Top 100 in Books)
He loves it, he's into law, so coming from him I appreciate his input. Hes says this book is quite "instructional" and makes you THINK like a law-connoisseur not quite as a lawyer, but I guess he refers to the way it makes you think in terms of law (not justice) though. He's and my two cents so that's 4 between us.
Rejecting the usual approach to analyzing case law by first describing the facts, and then reciting the court's decision, Amsterdam and Bruner dig deeper, and describe the hidden decisions which are made when courts (and by inference, lawyers) decide what the "facts" are--and how they are presented. Their hypothesis is that those choices--while virtually never acknowledged, either consciously or unconsciously determine the ultimate decision in a case.One of the examples chosen is a pre-Civil War case holding that states did not have the right to interfere with slave catchers seeking to return escaped slaves to their owners. The case came to the Supreme Court as an appeal from a criminal conviction of a slave catcher for capturing a slave in Pennsylvania without following the procedures established by Pennsylvania. The Court held that the federal Fugitive Slave Law trumped any local laws, and argued that, to hold otherwise, would be to grant states a veto over enforcement of federal law.To reach this seemingly logical conclusion, the Court ordered its presentation of the case around the historic compromise between slave and free states at the Philadelphia Constitutional Convention, and depicted Pennsylvania's procedural rules as an attempt to sabotage this compromise.However, as Amsterdam and Bruner point out, the Court could equally have built its description of the facts (or, to use their paradigm, told its story) from a different perspective. If one looks at the case from the perspective of the purported slave who has been seized, without any opportunity to challenge his "return" to slavery under the laws applicable to every other resident of Pennsylvania, it becomes a case about protecting innocent people from the abuses of slave catchers...or, stated differently, the question is not whether federal law trumps state law, but whether slave catchers have the right to unilaterally declare someone an escaped slave, in violation of established state procedures for making those determinations. Viewed from this alternate story-line, the Court's decision becomes far less obviously right, and certainly more controversial.Amsterdam and Bruner spend much of the book establishing the following building blocks to their argument: (1) people generally organize the way they think about things in narratives...which generally fall into a few well established general patterns ("rise and fall of the tyrant," "conquering hero," "fall from grace," etc.). (2) In telling a story, the teller always makes choices about how to categorize the facts--what to include, what to leave out, when to start, when to stop, and how to present the facts. (3) Judges do exactly the same thing when they write opinions. (4) To understand what judges do, you have to understand the choices they make when they tell their stories (or, more formally, write their opinions).Their argument is highly persuasive. It does, however, become heavy going at times. While Amsterdam is one of the country's lawyers who with long experience, highly skilled, and devoted to abolition of the death penalty, in this book, the authors write like professors, not trial attorneys seeking to convince a jury. They are not going to be confused with John Grisham. Don't expect a light, fast read.However, if you are interested in a deeper understanding of what courts do when they decide cases, and want to have a different framework within which to think about decisions made by--in particular--the U.S. Supreme Court, then this book is highly recommended.
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