September 1, 2008


Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven: Yale U. Press, 1975) ("[T]his book is...about Lemuel Shaw and many judges like him. It is the story of earnest, well-meaning pillars of legal respectability and of other collaboration in a system of oppression--Negro slavery. I have chosen to analyze at length only the dilemma of the antislavery judge--the man who would, in some sense, have agreed with my characterization of slavery as oppression. It was he who confronted...the choice between the demands of role and the voice of conscience. And it was he who contributed so much to the force of legitimacy that law may provide, for he plainly acted out of impersonal duty." "In a static and simplistic model of law, the judge caught between law and morality has only four choices. He may apply the law against his conscience. He may apply conscience and be faithless to the law. He may resign. Or he may cheat: He may state that the law is not what he believes it to be and, thus preserve an appearance (to others) of conformity of law and morality. Once we assume a more realistic model of law and of the judicial process, these four positions become only poles setting limits to a complex field of action and motive. For in a dynamic model, law is always becoming. And the judge has a legitimate role in determining what it is that the law will become. The flux in law means also that the law's content is frequently unclear. We must speak of direction and of weight as well as of position. Moreover, this frequent lack of clarity makes possible 'ameliorist' solutions. The judge may introduce his own sense of what 'ought to be' interstitially, where no 'hard' law yet exists. And, he may do so without committing the law to broad doctrinal advances (or retreats). Id. at 6.).

Minow, Martha, Michael Ryan, & Austin Sarat, eds., Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbor: U. of Michigan Press, 1992).

Sarat, Austin, ed., Law, Violence, and the Possibility of Justice (Princeton & Oxford: Princeton U. Press, 2001) (From Professor Sarat's Introduction: "By failing to confront law's lethal character and the masking of its interpretive violence, legal theory tacitly encourages officials to ignore the bloody consequences of their authoritative acts and the pain that those acts produce. Moreover, by equating the conditions of legitimacy with that masking, much of jurisprudence promotes righteous indifference and, as a result, allows law's violence to continued unabated.... [T]his book seeks to move violence to the center of theorizing about law and to connect it to the question of justice. Does law's violence stand as an impenetrable barrier to the achievement of justice in and through law? Or, alternatively, is violence necessary to the realization of justice?" "These ought to be perennial questions of legal theory, but unfortunately, they are not. Perhaps this is why the work of Robert Cover was, and is, so significant.... At the heart of his work was an effort to think about law in relation to the institutional reality of its intimate engagement with violence while also attending to its normativity and its normative aspirations." Id. at 3-4. On a side note, it would be naive of me to think the typical law student, lawyer, or law professor would be interested in Robert Cover's work given its nature. The typical law student aspires to be a typical well-paid lawyer, so that is what the typical law professor trains him or her to be. Notwithstanding claims that we law professors are not just teaching black letter law, 90% of what we present to law students is black letter law with a touch of grey, but, and more important, 99.999999% of what we teach is a defense of the status quo. Radical (and I don't meant bomb throwers) law professors, the one who truly question law's justice and fairness, do not get tenure. They probably don't get hired. To become and stay a law professor one must demonstrate that one will be a good member of the club. Law is a very conservative institution...and it locks the institutional doors to bar entry to those who would question--let alone shake--the pillars of the law.).