Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Monday, January 10, 2005

Book Reviews, Part III.

This post provides a brief review of the 2004 book I have referenced in a couple of earlier posts: The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right by Fordham Law Professor Thane Rosenbaum. First, Professor Rosenbaum diagnoses the disease, as he perceives it. He argues the system wrongly (1) elevates the legal over the moral; (2) the body over the psyche (or the “soul”) in awarding damages; (3) and otherwise obstructs the disclosure of truth in resolving disputes, among other things.

Second, as a prescription, Mr. Rosenbaum submits that “the story” is the remedy. In other words, Professor Rosenbaum evidently believes that the litigants should be permitted to tell their stories through trial (and even afterward) with little or no constraints. Emotional outbursts? No problem. Irrelevancies? No worries. Influencing his proposed storytelling remedy perhaps is Professor Rosenbaum’s status as a published novelist. In addition, he liberally quotes or references legal fiction writers such as Franz Kafka (The Trial), Charles Dickens (Bleak House) and Albert Camus (The Stranger) to support his proposition.

Mr. Rosenbaum promotes his remedy of “the story” almost to the point of a panacea. Professor Rosenbaum overstates his case; allowing litigants to emote and speak ad infinitum will unlikely solve the problems he suggests it will. Moreover, it is likely that new ills will emerge: (1) staggering expenses of seemingly endless litigation; (2) clogged courtrooms forcing litigants to wait years to even have the chance to tell their stories (“justice delayed …justice denied”?); and (3) creating a forum favoring better storytellers rather than those with the better legal or even moral positions. In the end, I did not find the proposed remedy persuasive; however, Professor Rosenbaum provides an insightful view of some of the maladies of the legal system, which, at the very least, is a starting point for fruitful discussion.