general

I am the type of reader who, even if I think i will disagree with an author's stance, like to give the book a fair shake. Who knows? The author might present a case I've not seen and in the end, it may be worth my time and effort. (It has happened before.) Not this time. I came away from these 300+ pages thinking the book a complete and total waste of my time.

The authors case - if I may be so polite - is that the law should be more moral; it should focus on doing the 'right' thing. Lawyers and judges should become morally sensitive. Law should become more embracing of moral tenets over strict rules and focus on 'healing' the parties involved rather than being an adversarial system focused on settlement for settlements sake.

Here's the problem; the author keeps saying all of these things and NEVER actually explores the ins and outs of this thesis. For instance, when he talks of why judges and lawyers need to focus on 'rightness' rather than procedural minuteia, on 'healing' rather than settlements, he never - not once - gives a glimpse at how such a system would work, whether it is practical, or tackles objections that, at least to me, are simply obvious.

While my objections are too numerous to go into, let me give you a taste of what you are getting with this book. The author writes:

"The winner-take-all structure of the legal systemis moraly deficient because it creates a presumption that justice has been achieved when morally it has not. Sometimes the ultimate winner should not have been victorious... [O]ften, the best moral result would... approximate some measure of victory in both parties - to send them both home healed rather than ambivalent or enraged." (p. 22)

But how do we KNOW who should be morally victorious (when we were not there to know that the alleged defendant did IN FACT commit the crime)? How can a legal system function other than adversarially (can it function communally?) How can a judge (who is not a psychologist) know when both parties are healed (and, say, in a murder, is there ANYTHING that could heal the victim's family in full? Surely not a forced apology!) And how can we measure (as the judge would have to do) when both parties are 'sufficiently' healed? Is it just measured by both parties say-so? If so, does that mean the trial could last 15 years?

My point is simple: the author DOESN'T EVEN TRY to map out either a positive case or handle any of these (what I think are) obvious objections. In the interest of giving the author a fair shake, it would have been nice to hear an argument. I did not. The book merely rehashes paragraphs like the above as if the positive case is self-evident (it is not) and objections don't exist (they do).

Another flaw is that the author cites (almost exlusively) fiction books and movies to make his case. "Since in x movie, we know that x was guilty and got off, the legal system is not fair." But the flaw is that there is a difference between fiction and life. In movies, we often KNOW who is guilty. Thus, it is easy to say, "the morally right decision is x because this character did it; we saw her do it on screen." In life, we rarely come in knowing who is guilty like in the movies. Thus, citing movies is simply too easy; saying, "X is the right answer becasue we know SHE did it," presumes... that we know she did it! Thus, making the 'morally right' decision is easy in the movies; but sadly, the author does little to differentiate the fantasy land of movies from real life quandaries.

It is no exaggeration to say that I could go on for pages citing errors like these! While I can somewhat sympahtize with the author's plight on a 'gut level,' his failure to explain a positive case, sheer repetitiveness of claims he simply ASSUMES to be self-evident, and absolute failkure to handle ANY objections left me dissapointed. Simply put, this is one of the few books I can say was wasted time.

I agree with the NY Times reviewer - all law students should be required to read this book, but would add that all practicing lawyers should read it too. An excellent and well written book, which just might make lawyers slightly more humane.