Book Reviews

Just Stories: How the Law Embodies Racism and Bias

Thomas Ross. Just Stories: How the Law Embodies Racism and Bias. Boston, Mass.: Beacon Press 1996. xx + 161 pp. Bibliographical references and index. $24.00 (hardback), ISBN 0-8070-4400-8.

Reviewed for H-Teachpol by Michelle D. Deardorff <mdeardorff@mail.millikin.edu>, Millikin University.

Published by H-Teachpol (January, 1998).

Just Stories: How the Law Embodies Racism and Bias is a fairly accessible introduction to many of the basic premises and arguments articulated by legal scholars who identify with the Critical Legal Studies (CLS) movement. The focus of this book, like that of CLS, is to demonstrate how the law embodies "racism, sexism, and the moral censure of the poor" (1). Thomas Ross argues that the law is more than just rules articulated in law books. Instead, the "choices and actions of the state's agents--police, prosecutors, judges, and juries" (p. 4) determine the meaning of laws; these agents generally perceive their own actions as being consistent with the law. So "the problem is not that the state's agents sometimes miscomprehend the law; they comprehend it all too well. They determine the state's law; their acts are the state's law" (p. 7). Hence, the narratives or social assumptions embodied by state officials become the laws of the state (p. 15). According to both Ross' and the Critical Legal scholars' interpretations, the legal system can only be reformed through changes both in societal understanding and officials' assumptions surrounding race, gender, and the poor.

This theory, as generally written by legal scholars, is often difficult for undergraduates to grasp. But there have been a growing number of scholars who write more accessibly, often using fiction or personal narrative. While using the traditional legal approach, this book is one such effort. Just Stories grapples with many of the difficult issues surrounding the legal treatment and potential for legal reform in the realms of race, class, and gender, but in a manner engaging for undergraduates and in a way that will allow faculty to help students wrestle with a number of complex issues.

In his second chapter, "The Rhetorical Tapestry of Race," Ross argues that the pattern in our historic interpretation of race has been the "theme of white innocence" (p. 21). For Ross, this concept of white innocence helps explain the legal history of slavery, the Jim Crow era, and Brown v. Board of Education (1954), and aids in the interpretation of contemporary race rhetoric. He specifically examines the metropolitan busing decision of Millikin v. Bradley (1974), the traffic barrier case of City of Memphis v. Greene (1981), and the affirmative action cases of Board of Regents v. Bakke (1978) and City of Richmond v. Crosen (1989). In all of these cases, he applies the following analysis: the concept of innocence has a great significance in our society, beyond the legal implications of denying responsibility. Supporters of white innocence argue that because our society denies that white individuals are responsible for the injustices of institutional and systemic racism, the burden to repair or remediate these historic injustices cannot be placed on their shoulders. Ross argues that "the rhetoric of innocence avoids the argument that white people generally have benefitted from the oppression of people of color in a myriad of obvious and less obvious ways" (p. 46). While I have not used this entire book in class, I have presented this section in my Race and Law course. The class had previously read and examined each of the pertinent cases and periods of history for the seminar and were familiar with the majority and dissenting opinions. This argument generated a great deal of discussion and thought, especially in regard to the implications of Ross' arguments for the debates surrounding affirmative action--if there are no innocent white victims, what validity can reverse discrimination cases maintain?

The second area of discussion in Ross' book concerns the legal protections for and societal narratives of poverty, and is found in the third chapter, "Their Immorality, Our Helplessness." Ross believes that society reflects the following narrative regarding poverty: "Poor people, it is said or implied, are unwilling to work and especially likely to commit fraud and child abuse, or to violate other legal and moral norms. They have bad attitudes and are the cause of their own poverty. At the same time, the problem of poverty is, in this rhetoric, a problem of daunting complexity that is virtually beyond solution" (p. 57). As in his section on race, he uses this societal narrative to interpret and explicate various historical and constitutional decisions concerning the rights of the poor. Ross specifically looks at such issues as the funding of AFDC, state control of welfare benefits and racial implications, federal requirement for income inclusion in AFDC family benefit calculations, termination of Social Security benefits for disabled, and food stamp benefits calculated for family size. Arguing that the social narratives surrounding poverty are responsible, Ross finds that the Supreme Court has typically been unwilling to intervene in protecting the rights and interests of poor people, relegating such protection to the political process. Because the societal narrative assumes that many of the poor (those deemed "undeserving") are poor through their own fault, there is logic to a system constructed primarily to prevent fraud, as opposed to providing the justice the majority expects for itself. Ross concludes, "Within this rhetoric, the problem of poverty is either a matter of personal transformation for which we cannot be responsible or a matter of such daunting complexity that we cannot solve it" (p. 91). Just Stories holds that the legal system has abdicated its responsibility to protect the constitutional rights of the poor. While I have not used this section of the text in class, it would be a stimulating alternative to most students' dominant framework of analysis regarding poverty--maximizing economic efficiency. In light of current welfare reform discussions, this chapter would encourage students to challenge the very assumptions underlying the welfare system and their implicit beliefs regarding poverty and appropriate means for reforming the welfare system.

Ross' final focus is gender, which he discusses in chapter four, "The Feminist Nomos." Relying on the writings of legal scholar Robert Cover, Ross spends time analyzing the arguments and assumptions of feminist jurisprudence. The approach in this chapter is quite different from the previous chapters, focusing less on general societal interpretations of issues and controversies. Instead, it examines how a subculture of academia has attempted to influence and change legal interpretation. While he spends some time examining the general tenets of feminist jurisprudence (which he identifies as: asking how facially neutral words and rules disadvantage women, result-oriented law, and using narrative as "consciousness-raising") and exploring the legal critiques of this approach, the analysis may be overwhelming to undergraduates without any background in legal theory. His primary question is whether or not law can serve as a means of redemption--can the law challenge or change social injustice? To illustrate both the issue of narrative conflicts and the difficulty of transforming law, Ross surveys rape, sexual harassment, and abortion law, the lack of precedents in this area, confusing legal guidelines, and competing societal narratives. He concludes this section by asking the reader to question "to what normative vision of law are we committed, and what is the depth of our commitment?" (p. 132).

In his conclusion, Ross recognizes that his thesis could be misconstrued as saying, "we have somehow embraced a mistaken set of narratives and thereby constructed some bad law" (p. 133). He argues that this is a misunderstanding of his purpose; however, he recognizes that narratives are accurate reflections of "dominant moral values" (p. 134). As a consequence, sharing counter-narratives (as feminist jurisprudence does) will not be an effective reform. For Ross, there are no easy solutions or simple remedies.

This text illuminates many questions undergraduates should explore. However, the utility of this text in raising these questions is dependent upon the individual classroom and professor. Just Stories is clearly more appropriate for an upper-division class which has, or is obtaining, knowledge of these specific policy and constitutional issues. It could serve as either a core textbook, with supplementary readings and discussions examining the relevant policy areas, or as a supplementary text encouraging students to engage in policy or legal analysis in a different, more fundamentally critical, manner. The larger purpose of law (e.g., to provide stability or to provide justice), the significance of the majority's definition of the minority in a democracy, and the way in which law reflects the lawmaker's, implementor's, and enforcer's interpretations are imperative discussions for the undergraduate political science classroom. Just Stories could well stimulate such analysis.

The H-Teachpol book review editor is Patrick O'Neil.

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