I must say at the outset that I feel slightly betrayed by the NYT on this one. The comment that this book should be read by every law student in America could not be further from the truth. I have never read a book that has been so well reviewed that has offered so little to the debate.
I share the sentiments of Mr. Currie. This book, while undoubtedly drawn from admirable intentions, suffers from several fatal flaws that, in my view, make it a mostly worthless read. I will explain a few of my problems with this book that I find the most troubling.
Firstly, Rosenbaum paints a deceptively bleak picture of the American legal system. Everyone who hasn't had any exposure to the court system would be right to be concerned about the state of our judiciary if it really worked the way that Rosenbaum implies. For example, Rosenbaum talks about the unfairness of statutes of limitation which preclude claims brought after a certain period of time. What Rosenbaum doesn't mention is that statutes of limitations are frequently tolled if, for example, the defendant actively covers up her crime, and that time limits during a trial are frequently extended if the other party has suffered no harm from the delinquent filing. In this way, courts are frequently able to give relief for claims that may be technically filed too late. Similar discussion of ways that the legal system attempt to balance the interests of the parties involved is missing from most of the rest of the book. It simply doesn't portray an accurate representation of the way the legal system works in practice.
This leads me to my second point; Rosenbaum's central theme is that the American legal system needs to be more moral. However, he does not define or explain what he means by morality aside from noting that morality does not have to be synonymous with religious morality. In my view, this is the central flaw in the book. Everyone in America has a different view of morality, and even if we could agree on some central tenants of morality to guide the legal system, Rosenbaum does not seem to realize how a moral system of justice would translate into a pragmatic system for adjudicating disputes. Instead, as Mr. Currie notes, Rosenbaum uses literary and dramatic examples where there is often a clear sense of right and wrong (For example, The Trial, where Joseph K. has clearly suffered injustice at the hands of the law.) In my view, morality necessarily involved compromise and balance - there are no absolutes. And in my experience, while there is clearly room for improvement in the American legal system, there is a conscience effort made to balance the interests of all parties. It is not perfect, but legal disputes more often than not have no clear cut answers - otherwise they wouldn't get to court in the first place. Going back to the statute of limitations example, I do not think that a moral system of justice would allow a plaintiff or victim to have relief against a defendant forever. The goals of justice and finality are both worthy goals of the legal system. If a defendant could bring a claim forever, anyone who has ever done anything wrong (which I would venture to say is all of us at some point) would spend the rest of lives in fear of prosecution. It is hard to see how anything would get done in a world like that - especially as people's private information becomes more accessible and durable on sources such as the internet. The case of the holocaust or war crimes might be an exception, but again, this is an issue of balance, not absolute morality. Just because the result in a case may seem like an unjust outcome, doesn't mean that the process was flawed or that an injustice was done. It may just be the result of a bad case, or a situation where no matter the outcome, neither party could be made whole.
Take another example. There is an inherent tension between a speedy and expeditious trial, which Rosenbaum would support, and longer trial where maybe more facts could come out to present a fuller picture of the dispute. So a speedy trial would be good because it would provide closure, and a longer trial could be good because it could get closer to the truth. Similarly, a quick trial could be bad if it only presents a cursory image of the dispute, and a longer trial could be bad by wasting resources and confusing the issue - like Jarndyce v. Jarndyce. There is no one guiding moral principal that could satisfy both of these concerns. The outcome is a balance between competing goals of morality that Rosenbaum simply does not seem to recognize.
Some of the inconsistencies in the book clearly stem from this failure to recognize that morality is a multi-faceted concept that might be more present in the legal system then Rosenbaum likes to admit. As such, the book is rarely more than a biased critic of the U.S. legal system which offers little to this field of scholarship. In the afterword, he notes a lot of the criticism that he has had from the book, and posits that at least he has got people to talk about the issues. This may be true, but there have been many a better book written on this subject which the reader would be well advised to read before touching this one. Some of the work of Posner and Fuller come to mind.
I guess ultimately my critique is that this book doesn't seem to add anything to the debate. Obviously there is room to debate whether the U.S. legal system should be a moral system or under what circumstances it could be moral (both of which I see as almost infinitely complex questions). The inquiry into Apartheid in South Africa is a good example of a system which decided that finding out the truth was more important than punishing the participants and that hence embraced truth as the overriding moral concern. And that was a controversial and difficult decision that involved many competing interests getting together to find a compromise that would best serve the interests of South Africa. It didn't flow from any fixed or simple idea of morality. Rosenbaum's analysis fails because it doesn't grapple with the really hard questions, or provide any answers. We would all like to see a legal system that provides more justice and fairness, but when we can't even decide what those words mean, it seems frivolous to simply go on a biased diatribe about all the immoral conduct in the legal system without tackling the underlying tensions. Simple storytelling cannot be the full answer. While storytelling may be a solution for some people to air their grievances, telling a story isn't going to pay the medical bills for someone injured in a car wreck, or compensate someone whose retirement has been fraudulently taken. In those situations, settlements (which Rosenbaum mostly rejects) might be the best option because they assure the plaintiff of a recovery and avoid the risk of trial which could be substantial, especially for an unsympathetic plaintiff, or a case where the evidence simply isn't there. Again, these are complex questions.
The editors note that "perhaps provoking lawyers is part of the book's point." But I just don't see provocation for the sake of provocation as being particularly moral or worthwhile. If Rosenbaum and the NYT don't think that law schools are debating these issues today, they are sorely mistaken. We all know that the system is flawed. What is needed is a real debate into how will deal the problems. Unfortunately Rosenbaum simply doesn't provide any help.