Book Reviews

• Statutes in Court: The History and Theory of Statutory Interpretation
• The Activist Advocate: Policy Making in State Supreme Courts
• A Theory of the Trial

• To review a book

In this book, William Popkin intrepidly analyzes the topics that his title identifies. The first is enormous, and the second is intellectually complex. Aside from a brief look at early English statutory interpretation practices, his history is of those practices in this country. He deals with the major theories as they appear in his historical section and includes a chapter that explicates his own theory.

Popkin sets himself an impossible task in the historical section, due to the huge number of relevant cases. He discusses some that he considers representative; avoiding detours into such subjects as constitutional interpretation and judges' political activities would have allowed him more space for his main topic. Some of his narrative is skewed by an apparent attempt to discredit textualists: judges and commentators who would limit interpretation as tightly as possible to literal readings of statutes.

Popkin advocates "ordinary judging," which is adhering faithfully to a statute's text and then placing the statute in its temporal context: determining its meaning in part by its relation to relevant statutes that were in effect when it was enacted and its relation to facts that appeared after its enactment and could not have been foreseen. His subtle treatment of the latter task is the book's strongest section. The former task is both too broad (it allows distortion of meaning) and too narrow (if a drafter ignored existing statutes, he or she made a drafting error, and I would instead allow moving beyond a literal reading in order to correct obvious drafting errors).

In short, Popkin has not performed the impossible by writing a complete history of statutory interpretation in this country, although he has written a prolegomenon to any future such history, and he has propounded a theory of statutory interpretation that almost convinces. I also would assert that judges and commentators on statutory interpretation ought to learn as much as possible about how legislative drafters conduct their extremely difficult art. In short, this is a useful book, but more work needs to be done.

Jack Stark, U.W. 1979, is a retired legislative drafter and the author of The Art of the Statute and The Wisconsin State Constitution: A Reference Guide, as well as four other books and many articles.

This work may be more of interest to nonlawyers than to lawyers. The author's intent appears to be: Determine why the supreme courts of Indiana, West Virginia, and Ohio in the last quarter of the 20th century fit a definition of "activism." Lopeman defines the term as: "A court is activist when its decisions conflict those of other political policy makers [including predecessor courts]."

Although the preface mentions independent interpretation of state constitutions, the book does not treat that topic very extensively. (The work has only 129 pages; thus, it is helpful to read the cited cases to fully understand the author's contentions.) The preface also mentions "devolution," but the book has more discussion of common law development than of power shifting from the federal to the state sovereign.

The author identifies examples of activist decisions (as he defines them) by the supreme courts of Indiana, West Virginia, and Ohio in the 1970s and 1980s. Lopeman then sets about determining why the courts came to fit the "activist" definition. He concludes that neither the presence nor absence of an intermediate appellate court, nor partisan divisions on supreme courts, nor ideology can explain why the three high courts rendered "activist" decisions. Rather, he concludes that each of the high courts "had a justice who ... was an advocate of judicial policy making."

This is an interesting concept. It implies that one justice who is interested in "policy making" can overcome the disinclination in that regard of the other justices. Toward its conclusion, the author discusses how the supreme courts of Idaho, Florida, and Pennsylvania eschewed opportunities to be activist. Lopeman posits that these courts did not have an "activist advocate" during the latter part of the 20th century.

With regard to those courts which the author contends harbored an "activist advocate," not all would agree with the author's conclusions. For instance, Randall Shepard was the "activist advocate" on the Indiana Supreme Court. Yet he merely concurred in the court's opinion in a main case Lopeman cites, Citizens Action Coalition of Indiana Inc. v. City of Gary, Indiana, 485 N.E.2d 610 (Ind. 1985). Moreover, that case interpreted a state statute dealing with amortization of "sunk costs" of a canceled nuclear power plant. It would seem that if the state supreme court had been unduly "activist" in interpreting a state statute, the legislature would have passed a new law, correcting the state supreme court. That does not appear to have occurred.

One of the main cases cited for West Virginia, Hodge v. Ginsberg, 303 S.E.2d 245 (W.Va. 1983), also involved interpretation of a state statute. In this case, the "activist advocate," Richard Neely, dissented. There is no indication that the state legislature corrected the state supreme court, which the legislature could have done if it felt the court had been out of bounds.

A main case cited for Ohio, Haverlack v. Portage Homes, 442 N.E.2d 749 (Ohio 1982), dealt with sovereign immunity of municipal corporations. The Ohio Supreme Court noted that the sovereign immunity of municipal corporations was a court-created doctrine. In abrogating this court-created immunity, the Ohio Supreme Court stated, "We hold that the defense of sovereign immunity is not available, in the absence of a statute providing immunity, to a municipal corporation in an action for damages alleged to be caused by the negligent operation of a sewage treatment plant." (The book misspells "Haverlack" - and that is not the only instance of misspelling.)

Once again, if the Ohio legislature had perceived that the state supreme court was out of bounds, the legislature could have passed corrective legislation. The book does not mention if the Ohio legislature took any such action. Moreover, Haverlack seems a classic example of the development of common law. There are many who would opine that the case-by-case development of the common law is a hallmark of stable Anglo-American self-rule. Many would posit that the common law, rather than being an activist tool, through the ages, has been a means of thoughtfully responding to the developing realities of a changing society.

Even when a court rules that a state statute is unconstitutional, in the American system of government, the people can in turn overrule the state supreme court through constitutional amendment. The lack of instances of the state legislatures overturning common law decisions of the state supreme courts that are analyzed, and the lack of constitutional amendments overruling constitution-backed decisions, indicates that the courts analyzed in this book were not too "activist" for the particular states.

The author concludes by stating that activist advocacy, when it prevails among a court, leads the court to make policy, rather than deferring to a state legislature or to precedent. Once a court follows the lead of an activist jurist, then the second issue, the book contends, is what policy will be adopted.

In a country as varied as the United States, it may be impossible to exhaustively illuminate why some state supreme courts are more likely than others to "make policy." If one accepts a definition of "activism" that is very easily triggered, this book is plausible, within the paradigm it uses. However, there is such a large variety of fact patterns that may or may not come before high courts, and, of course, the decision not to decide a case can have practical impact. Thus, even within its definition, this book could not capture the full extent of activism or lack of activism among state supreme courts - perhaps no work could fully accomplish that.

Bruce P. Bower, Notre Dame 1975, is director of advocacy and client services for Texas Legal Services Center, Austin, Texas.

Focusing on a discussion of narrative techniques and linguistic processes, the author of this scholarly text carefully examines the structure of the American jury trial. Rather than showing the societal importance of the jury trial by recounting tales of courtroom drama, the author approaches his subject from the perspective of philosopher and builds an argument proving its value. He ultimately proves that the trial is an essential forum in a decent society where "the correct tension among moral judgment, legal structuring, and public purpose is achieved" through the performances that occur and the jury's almost unfailing determination of the proper result.

Make no mistake; this author allows the reader no intellectual laziness. Most paragraphs and sentences are quite long (for example, one paragraph contains 11 sentences with an average length of 29.7 words), and the text includes numerous quotations and footnote references to other scholarly works.

This book is directed more to professors accustomed to reading law review treatises than to practicing trial lawyers. Now and then, though, trial lawyers should find time to contemplate why cross-examination is essential to the jury's application of common sense. This well-thought study contains genuine gems of insight for readers prepared to work hard while mining for them.

Peter E. Hans, U.W. 1980, is an attorney with National Specialty Insurance, Madison.