Customer Reviews

A Theory of the Trial.

5 star:		(2)
4 star:		(0)
3 star:		(1)
2 star:		(0)
1 star:		(4)

 

 

This book analyzes "what really goes on" in a jury trial. It's written by a philosophically-oriented law professor and trial attorney, who sees trials as a clash of narratives spun by rival litigators, each seeking to appeal to the jury's sense of equity and fair play. Fortunately, the lawyers' story-telling never crosses the line into fiction because of constraints imposed by ethics rules, evidence rules, cross-examination, and the way jurors are forced by the trial process itself to grapple with the nitty-gritty of evidence. Burns has many insights into litigation but his book is hilariously overwritten, and weighted down with the vocabulary of phenomenology and meta-narrative theory; the irrelvant decorative quotes from Aristotle, Wittgenstein, and Arendt get old fast. Weirdly, much of the exposition is told through quotes from other works, as if the author was citing authorities in a legal brief. The book desperately needed an editor to bring things down to earth.

A Theory of the Trial brilliantly delivers what its title promises: an unconventional way of thinking about the idea of justice. If you are looking for a manual of trial practice, an anthology of case studies of famous trials, a collection of stories about notorious trials in history, look elsewhere. But if you are curious about the guiding principles-often unacknowledged and unexamined-operating beneath the surface of the trial system, forming its foundation, then A Theory of the Trial is for you.

Burns, a practicing trial lawyer, professor of law, and professional philosopher, contrasts "the received view" (the view "according to the officials") about how juries (and judges) behave and the complex "intellectual operations" they actually perform while evaluating issues during the performance of the trial. Close study of four trials and reference to many others reveal decidedly more intricate intellectual operations than the official, received view understands. Juries continually sort through what Burns calls "a web of languages" spun during the trial. The key is paying attention to those languages. He does so in painstaking detail, thus setting up his final chapters, which require a patient reader. There Burns's philosophical mind goes to work, thinking systematically through competing positions and working toward his own. The argument proceeds brilliantly from its premises. Despite a pattern of references to scores of previous thinkers, it is conducted clearly and lucidly.

For Burns, the trial is "one of the greatest achievements of our public culture." Ordinary citizens arrive at "truth-for-practical-judgment," truth that must be put into practice. Thereby, they influence public events in ways different from official, direct, top-down control. Does he overvalue the common sense of ordinary citizens? Perhaps, but today where else can we look for common sense and hard-won practical judgment? Burns's book makes its demands, but it delivers.

This book reminds me of everything I hated about law school at Yale--the philosophy, the pretension, the utter lack of interest in the real world.

The author writes a book about trials--and yet discusses almost no trials at all. Apparently Burns is a failed philosophy professor, because he has infintely more interest in his own mind than in what goes on in the courtroom. It is books like these that astound me--how can anyone think this is good enough to publish?

The prose is clunky, and Burns finds endless ways to make trials utterly dull. His ideas reduce to no more than the generalities one learns in Trial Practice classes--tell a strong story; every element of your case should reflect the theme; juries are unpredictable.

This book is awful. But then, Burns is probably a poseur--no trial lawyer can be as dull as Burns is and still survive. If one really wants to study the essence of trials, try reading Vincent Bugliosi.

This book attempts to harness two unrelated discourses and apply them to the American Jury System. First, it wants to use the wild, free-willing, MTVish, academia-lite trial advocacy theories of people like Steve Lubet (author of Nothing But the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth), where the existence of truth itself is denied or ignored and trial law becomes theater, law school becomes charm school. (Tell a story, develop a theme, project to the jury, wear the right clothes, forget the truth!) Second, it wants to add some muscle to this limp line of thinking by speaking of it in philosophical/hermeneutical terms. All the big guns come in, from Aristotle to hints of Bakhtin. It doesn't work. The book comes across as a Menippean Satire, a joke, something more like Rabelais than Immanuel Kant. The problem is that trial theory (the first strain) is so intellectually and morally bankrupt that putting fancy clothes on it makes it more a clown than an aristocrat. The clothes don't fit.

This is one of the best books available on the theories of contemporary justice. Burns uses a combination of scholarly sophistication and practical experience to explain why and how trials work so well at locating truth and doing justice.

This book is what it is -- an attempt to talk about trials metaphysically. As a trial lawyer, I thought I would get some insight into how to think about my job from a different perspective, but I was disappointed. This book isn't very deep and all the name-dropping that goes on isn't really explained. (Did the author really read all those philosophers, or just steal their quotes? I can't tell.) The work stinks like a dissertation, maybe the author is just out of grad school and is trying to prove himself.

This book is so bad I don't know where to begin. FIrst, it fails to be an adequate description of, or encomium for, jury trials. (For that, see Jeffrey Abramson's book, WE THE JURY.) Second, it fails to apply real jurisprudence (like Lon Fuller or HLA Hart) to this "new" area of thought, and it fails pathetically to mix in critical theory. (Why is Hannah Arendt thrown into nearly every paragraph?) I regret that I didn't click on the "look inside" feature of this website. Two pages of nonsense would have been enough. Save your money, save your time, by ignoring this brain-dead drivel.