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January 13, 2006

Can the nation's lawyers 'lick' the GOP's agenda?

[Originally appeared in the Chicago Tribune, March 1, 1995]

The atmosphere in the litigation debate is getting as poisonous as the atmosphere in, well, litigation itself. Eighty-two House members have now called on George Bushnell, Jr., president of the 370,000-lawyer American Bar Association, to resign after he described the Republican leadership of Congress as "those reptilian bastards."

Bushnell has refused to apologize for or retract the comment, which a spokesman for Speaker Newt Gingrich called "appallingly injudicious." The arm-waving attack is bound to remind the public of the famous 1991 American Bar Association conclave in Atlanta where then-ABA president John Curtin rudely rebuffed Vice President Dan Quayle.

In a recent speech, Gingrich warned that organized lawyers were going to turn the GOP push for litigation reform into a "brawl" and "the biggest fight" of the months ahead. "They're going to run every ad, they're going to pull out every stop, they're going to use every trick, they're going to make every threat to every member." He said lawyer groups had ponied up to $20 million and were threatening both primary and general election challenges to any member who votes for curtailing lawsuits. "That's how bad it's going to be. It's going to be unbelievable, bitter, in the trenches, just fighting it out."

The ABA's February convention in Miami geared up for an all-out war against GOP legal-reform plans, with any spare time devoted to fighting welfare reform and other Republican plots. Delegates shouted through resolutions opposing "Contract with America" planks with little or no reported dissent or discussion. The seeming unanimity prevailed even though many of the lawyers present were defense litigators who represent clients who get sued, clients who presumably would welcome some of the Republican efforts to cut down on suing.

Lawyer-commentator Mark Pulliam, writing in the California Political Review, recently described a campaign mailing sent out last fall to San Diego lawyers. The pitch went not just to lawyers who represent plaintiffs but also to defense litigators, and specifically warned that "defense business will dry up" if Republicans get in and pass reform.

A wry moment came last week when the ABA's litigation-section chair, Davis Weiner, complained that the new House leadership did not include enough lawyers, pointing out that only one of the eight higher-ranking Republicans is a member of the bar. In the newly elected House, members with backgrounds in business, banking or real estate outnumber lawyers for the first time in decades, 191 to 170. (Lawyers still outnumber enterprise types by 2 to 1 in the Senate, 54 to 27, and made up 13 of the 18 members of the original Clinton cabinet.)

Worse yet from the organized bar's point of view, the one attorney in the House leadership, Chris Cox of California, is even more vocal than the rest on the need to rein in courtroom abuse. "For the first time the profession is going to be regulated from the perspective of nonlawyers, and I told them that," Cox told the Washington Times.

ABA president Bushnell's "reptilian" outburst came in reaction to the prospect that Republicans will scotch a Clinton administration plan to expand funding for the Legal Services Corp., the former Hillary Rodham Clinton bailwick whose poverty lawyers are expected to sue to block any welfare reform Congress succeeds in enacting.

Bushnell, a Detroit Democrat, is not earning a reputation as the avatar of a new Augustan Age of wit and sensibility. Among other comments, he declared last week that recent conservative electoral wins were based on "the pimping of fear." He called the menace of GOP legislation "comparable to that of the invasion of our shores by foreign forces." Even his apparent play on the speaker's name was a dud, since Newts in fact are amphibians, not reptiles.

The cruelest blow came when the head of the Association of Trial Lawyers of America, a group whose bare-knuckled style is legendary in Washington, asked Bushnell to apologize for his "outrageous insult" and "name-calling," publicly worrying that the bouncing-off-the walls remarks will hurt the lobbying blitz against lawsuit reform. Almost unthinkably, ATLA now bids to become the more polite and respectable of the Terrible Twins of Bar Self-Interest.

As recently as the 1970s, the ABA was a comparatively sedate and respected professional group that steered clear of most political controversies. Now, as it settles into the role of a trade guild for people who sue people, you might think it's squandering what was once its considerable dignity.

But maybe it's better to suppress such passing thoughts, lest you wind up as one of those Republican-majority types. Before long you might be sunning yourself on a rock, flicking your tongue, and wondering why Dad skipped out, the way they do on the Hill.

The Law on Trial

[Review of "Beyond All Reason" by Daniel Farber and Suzanna Sherry. Originally appeared in the Wall Street Journal, October 14, 1997].

The vogue for identity politics in humanities scholarship has been talked to death, while the similar trend in law schools has drawn far less attention. Yet alarming things can happen, observe Daniel Farber and Suzanna Sherry in "Beyond All Reason" (Oxford, 186 pages, $25.00), when “the cloistered world of the academy meets the world of law and coercion”.

"Beyond All Reason" strikes me as a work of merit, a view that might draw cavils from Harvard Law School’s Duncan Kennedy (“Judgments of merit are inevitably culturally and ideologically contingent”) or Duke’s Stanley Fish (“there is no such thing as intrinsic merit”), to say nothing of Ann Scales of the University of New Mexico (“feminist analysis begins with the principle that objective reality is a myth”). Mr. Farber and Ms. Sherry, both law professors at the University of Minnesota, respectfully disagree with these deconstructionist notions.

Their targets are “radical multiculturalists”, a group that includes critical race theorists, legal feminists and other identitarians. According to a New York Times account in May, advocates of critical race theory are now on the faculty at almost every major law school. This group of thinkers “holds that people’s perspectives on events are overwhelmingly determined by their racial background” to the point that “competing racial versions of reality” come to replace the earlier notion of an objective standard of accuracy.

Critical race theory wants to bring race to the very center of the analysis of most situations,” one adherent told the Times. The traditional view of, say, tax audits, would be that some few audits might be affected by the gender or race or accent of the taxpayer or IRS agent. That presupposes a previous model of an “untainted” audit in which identity factors play no role. Pounce! Such a supposedly untainted model is actually gendered (male), white, Anglo, and so forth.

Doting on subjectivity, critical race theory relies heavily on a type of storytelling that can range from memoir to parable to sci-fi tale. As the authors note, writers on law have always spent a lot of time recounting cases. But now Columbia’s Patricia Williams writes at length of a personal racial indignity she endured at a Benetton store; others offer accounts of experiences on a train or in a taxicab. New York University’s Derrick Bell pens a fable of space visitors who propose to buy blacks and remove them from American society, an offer to which his fictional whites respond by behaving -- are we surprised? -- badly.

Problem number one with the new-style stories is that they’re not checkable even in principle. Most legal discussion derives from records of public disputes in which each side has had some chance to get its version on the table. It would be nice to know what the Benetton store’s personnel have to say about Ms. Williams’s story, but we’re unlikely ever to find out. Instead, write Mr. Farber and Ms. Sherry, “[personal] stories lend themselves to several conversation-stopping moves”: announcing offense that one’s story has been challenged or accusing a rival storyteller of inauthenticity or of trying to speak for someone else’s group.

Not all race theorists go as far as Alex Johnson Jr. of the University of Virginia, who has written that the “voice of color” is one that “rejects narrow evidentiary concepts of relevance and credibility”. Still, Mr. Farber and Ms. Sherry believe the movement has become “a self-sealing ideology that resists punctures by evidence or logic”. Thus Catharine MacKinnon casually dismisses reports that Denmark and Japan, though tolerating pornography, have very low rates of rape; her explanation is that faced with governments so evil, women do not report sexual assault. Critical race theorists have devoted considerable ink to (baldly self-serving) assertions that minority law profs find it harder to get tenure offers at prestigious schools than do similar white counterparts, yet Farber and Sherry adduce evidence that the opposite is the case. And while even cautious discussion of such issues is apt to bruise feelings, many of the radicals rub things raw with a truly epic incivility, documented in detail here.

Intellectually, the new theorists reject the Enlightenment with its “aspiration to universalism and objectivity”; practically, their most important influence has been to undermine the Enlightenment-derived tradition of free speech by leading efforts to criminalize or attach civil liability to speech they believe hurtful. While Mr. Farber and Ms. Sherry concede that most of the radicals are not themselves anti-Semitic, they also charge that the anti-Enlightenment project of rejecting a common intellectual life guided by reason and injecting racial consciousness into every realm inevitably prepares the way for anti-Semitic sentiment.

As the authors note, the ideas they deplore can turn up anywhere on the spectrum: Thus defenders of creationism have smoothly borrowed from deconstructionist attacks on the authority of science. At a time when some on the right as well as left are trying to turn individual liberty and the Enlightenment into swear words, these good old causes could use some help. They get it here.

Dworkin's morality: rule by Supremes

[Review of "Freedom's Law: The Moral Reading of the American Constitution" by Ronald Dworkin (Harvard University Press). Originally appeared in the Baltimore Sun, May 5, 1996]

Few figures sum up the era now passing away in American law as thoroughly as Ronald Dworkin, author of extravagantly praised books on jurisprudence, professor at Oxford and NYU, and furrow-browed scourge of conservative Supreme Court nominees. This latest collection of his essays may please a few diehards, but in the long run is likely to deflate further the transatlantic blimp of his reputation.

The volume consists largely of New York Review of Books essays, most of which deal with either Roe v. Wade (he's for it) or the Bork and Thomas nominations (against) with excursions into topics like affirmative action and euthanasia (for, in both cases). Newly added is a turgid introductory essay -- the New York Review's editorial skills are missed -- laying out his case that judges should give the Constitution a moral reading, which amounts to what most of us would see as reading their own moral views into that document.

Trained in academic philosophy, Dworkin now bids to be the last defender of the Warren Court philosopher-king ideal under which a wise Supreme Court gets to meditate on moral issues and proclaim the results as constitutionally binding whatever the strain on the document's language, structure or history. Nearly everyone else has grown disillusioned with that ideal; the significant recent trend has been the rise of anti-activist thinking among many who share liberal goals.

Various writers associated with the New Republic thus favor keeping abortion legal or doing away with the death penalty but don't think courts should dig up the Constitution in search of such rights like a lawn mower chasing moles.

Dworkin concedes a "near unanimous" view among today's scholars that too much judicial review endangers the citizenry's right to govern itself -- what he dismisses as the "majoritarian premise" .

There's a consistency worry too. Once judges go activist, what's to stop them from, say, writing free-market economics into law, as they did years ago? (Especially since the Constitution really does contain provisions against impairing the obligation of contracts or taking property without compensation.) Dworkin's answer: the copycat judges would simply be "wrong", since the second group of rights aren't "fundamental to freedom". Thus does James Carville's book title -- "We're Right, They're Wrong" -- get translated into high theory.

The best picks here are the book reviews, where Dworkin grapples with authors' fact-finding and forgets his usual sniffish abstraction. His piece on Renata Adler's "Reckless Disregard" and the two big libel suits it covers is worth a look; he warms to a biography of the famous judge Learned Hand, for whom he clerked, and scores a few hits on Catharine MacKinnon, the Savonarola of Ann Arbor.

But he never strays far from his constitutional hobbyhorse. High court nomination battles preoccupy him much as royal successions dominated stage drama in the age of kings. His writings on them run to intense partisanship, as when he claims President Reagan's court policy was meant to "leave the Constitution no longer an important source of...individual rights against unjustified public authority" -- or, put more plainly, that it was meant to suspend the Bill of Rights.

That kind of thing is as demagogic as any GOP pamphleteer's suggestion that every Clinton judge wants to turn criminals loose, and the pamphleteer doesn't get an Oxford don's chair out of it.

Theory-Addled Lawyers

[Review of The Lost Lawyer: Failing Ideals of the Legal Profession by Anthony Kronman. Originally appeared in Across the Board, February 1994]

Writing in the Wall Street Journal last year, Harvard Law School professor Mary Ann Glendon observed that Lani Guinier’s failed nomination for U.S. assistant attorney general for civil rights should bring pause to an legal academic establishment that is "woefully out of touch with American culture and political life". Guinier's dense articles on voting rights law, which were to prove unacceptably extreme to even the most liberal Democratic senators, had passed almost without challenge in the "hothouse environment" of the law reviews, whose "relatively homogeneous political culture", Glendon wrote, displays "a growing disdain for the practical aspects of law, a zany passion for novelty, a confusion of advocacy with scholarship, and a mistrust of majoritarian institutions".

Though about a hundred times less outspoken than Glendon, Professor Anthony Kronman of Yale Law School shares much of her dismay at legal academia’s current “contempt for the claims of practical wisdom”, its valuing of brilliance over deliberativeness. Kronman’s The Lost Lawyer (Belknap/Harvard) takes on the issue in a somewhat tedious but undeniably thought-provoking manner.

Guinier is hardly an extreme example of the crisis about which Kronman writes: Compared with much current legal academic writing, actually, hers comes off looking rather mild. A Syracuse University Law School professor recently got a sober hearing for her proposal that companies sued by "less-empowered" individuals on tort claims should not only be required to prove affirmatively that they are innocent, but should have to fork over claimed damages at the start of the controversy and then sue to get their money back, a result the good professor derived from, no kidding, feminist theory. ("It's just so far from the way the legal system currently operates that I -- I just don't have a reaction to it," an evidently stunned practicing lawyer told a Journal reporter when asked to respond to this and similar theories.)

Should anyone care if the academic study of law goes the theory-addled way of so many humanities departments? Well, yes. When fields like art history or French literature succumb to intellectual faddism, the damage is limited: people by the million go on enjoying Rembrandt’s paintings and speaking French anyway. Legal theory gone wrong can land you in jail, take away your land, or drag you into a custody battle.

It can also, as Kronman observes, starve the minds of those who practice law for a living -- those who would like a professional ideal to live by, but no longer get useful guidance from the elite. Legal academia has grown dismissive of the profession's older ideals without offering a credible alternative in their place, he says.

What were those older ideals? The good lawyer, it was long thought, displayed what Kronman calls "practical wisdom", conceived of as a trait of character as much as an operational skill. It consisted of being "more calm or cautious than other people and better able to sympathize with a wide range of conflicting points of view", familiar with human nature through the "broad acquaintance with suffering and ambition on which sound judgment generally depends". Such qualities helped make lawyers natural leaders in politics and other settings; the "lawyer-statesman" could, in a sense, treat the nation as his client.

Part of the package was a distrust of abstract speculation and grand theory. Flannery O'Connor, asked for her literary theory, said she wrote the way Samuel Johnson's blind housekeeper poured the tea: she put her finger in the cup. So it was with the common lawyer, who was famous for proceeding case by case, proving no more than was needed to resolve the immediate controversy and hoping for solutions that were workable if not necessarily precise or consistent.

Kronman, generally critical of trends favoring academic legal thought over experience, is particularly severe on the displacement of law by "law and…". Learn a little economics (or sociology, or gender theory, or semiotics), it seems, and you can soon reduce the law of real property or criminal sentencing to a three-factor model, or a template of sexual oppression, or a word game. And since you are reinventing the world from scratch, "the vast storehouse of accumulated precedent, to the extent that it conflicts with the requirements of natural reason, is nonsense to be discarded with impunity" -- consigned to those melancholy shelves in the back of the law-library stacks marked "SUPERSEDED".

Speaking of oversimplication, however, one should note that there's a huge difference between law-and-economics (or law-and-other-things) done badly -- the kind being roasted here -- and done well. In the wrong hands, economics can indeed be a bluntly reductionist instrument, a way of abstracting away almost all the life in a legal situation. At other times it can be powerful in itself and obviously relevant to practicing lawyers: One thinks of, for example, George Priest and Benjamin Klein's finding that cases that go to trial (as opposed to settling out of court) are not a random selection of the cases that get filed but instead differ from the norm in systematic ways.

Nor, for that matter, are economists as a class deaf to the lawyerly virtues of case-by-case reasoning, historical narrative or persuasive rhetoric, as witness Austrian economist Friedrich Hayek's classic defense of the common-law method or the more recent writings of D. McCloskey, a University of Iowa economics professor.

More broadly, one wouldn't want practical wisdom to become a prerequisite for academic life. A university does well to shelter some thinkers whose heads are in the clouds; its inhabitants should not resemble the villagers in the 1912 E.F. Benson novel Mrs. Ames who had never seen an abstract idea wild, any more than they had seen a wild elephant, but only tamed and eating sweets, as at the zoo. Still, one can join Kronman in hoping that what he sees as the distinctive expertise of the practicing lawyer -- the "art of handling cases", seeing analogies and distinctions between them, imagining how future cases could arise -- will again begin to get a little respect in the legal academy, and not be dismissed, as it now often is, as unrigorous and anecdotal.

A curious aspect of this book is the clash between its substance and its predominant style. Kronman proclaims the need for particularity and concreteness, but he does so for most of the book's length in the dryest of academic manners, with a dire shortage of examples, cases and metaphors, not to mention humor. Happily, the Muse pops by for the last chapter, where Kronman rises to eloquence in a number of passages. That last section is the place to begin for all but the specialist reader interested in pursuing the thesis of this difficult book.

January 3, 2006

Meddlers won't quit

[Originally appeared in USA Today, November 17, 1997, as "Opposing View" to USA Today's editorial].

Fresh from its push to protect mental illness in the workplace, the Equal Employment Opportunity Commission (EEOC) is back with its next social-engineering venture: arm-twisting pay parity between men's and women's coaches. The likely results? More outside meddling in college sports and worsening of the current Title IX disaster for such sports as men's track, wrestling and diving.

News flash: Women are different from men. College football is a huge business, and it won't have a female equivalent as long as women are free to avoid it. Extremes of physical competition don't play the same role in women's lives as in men's.

Yet Brown University got rebuffed when it defended its small excess of male varsity positions by noting that men were more likely to try out for teams. After higher-ups settled a lawsuit by accepting varsity quotas, Cal State Northridge this June proposed dropping men's baseball, soccer, swimming and volleyball. Title IX-driven cuts have devastated "nonrevenue" men's sports, with gymnastics teams, which numbered 133 in 1975, down to 32 today.

After a token concession that not every volleyball coach may be entitled to the pay of a Big Ten football wizard, the new EEOC guidelines start in with the bad news. Comparisons between dissimilar sports? No problem. Offers based on market rates or current pay levels will be suspect: "Cultural and social factors may have artificially inflated men's coaches' salaries."

Worse, the EEOC hints that women's coaches should win even if their programs are revenue washouts -- in one famous case, the USC men's basketball program brought in 90 times as much revenue as the women's -- if colleges didn't advertise and promote their squads as heavily as the men's, though to hype a fanless team may be to throw good money after bad. In a typical stroke of micromanagement, the agency suggests a college may lose if it "sets up weekly media interviews" for a red-hot men's team but not its languishing female equivalent.

Washington flexes its muscles. What keeps on atrophying is freedom.

Age-bias law backfires on boomers

[Originally appeared in USA Today, August 26, 1997]

Britain’s new Labor government has vowed to introduce a law that would forbid U.K. employers from discriminating against older workers, along the lines of this country’s Age Discrimination in Employment Act. Such a bill would ban the custom of automatic retirement from a company at 65 or any other age, as we’ve banned it here. “The employers in the U.S. can cope with the so-called cost burden, so why can’t we?” said Lawrence Davies, a British lawyer pressing for the change. “It seems to me that the U.S. is thirty years ahead of us.”

Memo to Prime Minister Tony Blair: don’t rush into this.

From across the Atlantic, age-bias law may look simple and straightforward. American politicians endorse it almost unanimously with a nod to the powerful American Association of Retired Persons. Big employers emit few protests. There’s a vague sense that anyone remaining skeptical must be in some way hostile to the elderly -- much as anyone dubious about covering the disabled, gays or people with accents with bias laws is thought to be somehow against those groups.

But there’s a problem: signs are mounting that this law makes things worse for many of the workers it’s meant to help.

And there are more of them than you think. Most baby boomers, those over 40, are “protected” by these laws.

Originally passed by Congress in 1967 and toughened since then, the age-discrimination law was supposed to help older workers stay at their jobs longer, bring their talents renewed respect at the workplace, and put in their own hands the timing of their retirement decision. The opposite has happened on every front.

There’s widespread evidence that older workers are losing relative ground in hiring. The federal Bureau of Labor Statistics observes that they face “greater labor market difficulties” than younger colleagues when displaced from an old job.

Rates of full-time employment for older men have dropped, not risen, since the law came in.

Big employers increasingly prune their payrolls via “buyout” offers targeted at older employees. So far has this process gone that in some lines of work, being bought out now begins to seem like the normal way to end a career. But buyouts tend to flush longtime workers out of their jobs earlier, not later, than they would have departed under the old system.

Morale has plunged for veteran workers, who feel less welcome. For example, firms have quietly but steadily done away with the awards and ceremonies by which they used to honor milestones such as 20 or 25 years of service.

Are all these developments mere coincidence? Almost everything but the law gets blamed. “Older employees are perceived as less flexible and adaptable,” says an AARP analyst, while a Washington Post report cites such possible hurdles as “unfamiliarity with changing technologies; a lack of networking and interviewing skills; not knowing the latest way to effectively write or circulate a resume,” and so forth. But most of these problems have been there all along. Why should they have gotten worse?

Consider another possibility: Older applicants now pose a heightened legal danger to employers. If they don’t work out, or if advancing age soon takes a toll on their ability, they may require an expensive buyout. Simply firing them is a recipe for getting a lawsuit: and employers see age cases as “the most dangerous type of discrimination case to take to trial,” reports the Employee Relations Law Journal. Lawsuits over age bring much higher payoffs than those over race or sex, thanks in part to the virtually automatic doubling of damages. (Result: the juiciest monetary rewards of bias law -- in verdicts, settlements and buyouts -- go to middle-aged white males, especially those in executive and managerial posts. Did someone say ironic?)

Of course, no individual employer would admit to tilting against older job applicants; that would be legally suicidal, since hiring bias remains flatly unlawful. And since backers of age-bias law aren’t eager to have people think their pet cause has backfired, there’s a sort of community of interest in downplaying the problem.

One obvious comeback is that if employers are reluctant to hire older workers because of the perceived legal hazards, the answer is to crack down on them by taking them to court. Easier said than done: as long as managers have not let slip interview questions, stray remarks or jotted notes that a clever lawyer can in some way link to matters of age, it’s quite hard for any single applicant to make a case.

The other possibility would be to ask courts to scrutinize overall hiring numbers, which is exactly what we let them do in the case of the hiring of minorities and women, and which does indeed provide a definite incentive -- for better or worse -- for employers to hire members of those groups to stay out of trouble. But no one has the stomach to push quota pressure for older job applicants. It’s just too obvious that in no world this side of the absurd would, say, over-55s get hired proportionally as lifeguards, bicycle messengers and MTV announcers. So today’s older job applicant gets the worst of both worlds: legally hazardous to hire but not especially hazardous to turn away in the first place.

So what do older workers get from our new system? Well, you might say, they get lucrative buyouts. Yet no rational worker would ever have designed today’s buyout plan on purpose as a fringe benefit. Because companies typically spring offers as a surprise, they keep workers not knowing when they’ll retire, thus unable to plan their futures. Buyouts also dish out cash windfalls unevenly and unfairly among equally deserving employees. (Workers who are highly paid in the first place are most likely to bag generous sums, while most blue-collar laborers can expect no buyouts at all.)

Even well-off professionals, the ones most likely to pocket early retirement offers, can hardly expect a free lunch. At some point employers must begin factoring the cost of eventual buyouts into their calculations how much to pay such workers in the first place.

“Despite all the age-discrimination laws,” observed the normally shrewd Forbes in June, “employers are often motivated to get rid of older workers.” Despite? Try “because of”. Before Britain heads down the same path, it might want to take a hard look at the unintended consequences of our experiment.

Have the Harassment Rules Changed?

[Originally appeared in the Wall Street Journal, "Manager's Journal", April 6, 1998].

According to the Rev. Jesse Jackson, last week's dismissal of the Paula Jones lawsuit was "planned by God." Mr. Jackson is not the first to confuse federal judges with deities. But his surmise of divine intervention does recall the old saying that God looks after drunks, children and the United States of America -- or in this case leaders of the United States of America who are alleged to have behaved like drunken children. At any rate, now that Judge Susan Webber Wright has thrown out the world's most famous employment lawsuit, what can we conclude about the future course of harassment law? In particular, what does it mean for managers worried about their own organizations' liability exposure?

On the one hand, the case has prompted a vast public debate about the dangers and excesses of this newly grown branch of the law, and the public's newfound skepticism about harassment law is likely to be helpful over the long run to employers, as well as to individuals targeted by poorly founded harassment claims. On the other hand, it would be rash to read too much significance into the details of last week's ruling, which (1) doesn't signal any particular change of direction in harassment law, and (2) offers little guidance or precedent for anyone seeking to avoid such charges--an unsurprising fact, given that the Jones case was never very typical of the harassment docket.

'Open Season'

Pundits are busy offering a host of supposed lessons of last week's ruling, most of which should be received with great skepticism:

# From now on, it's one free flash or grope per employee. It's "open season on women here in this country," claims Jones spokeswoman Susan Carpenter-McMillan. "Sleazy bosses popping corks all across America" ran the headline over Andrea Peyser's New York Post column.

But as most commentators have realized, Ms. Jones lost not because the judge declared any sort of blanket immunity for the general category of behavior charged, but because of the defects in her particular case. Ms. Jones's outrage-related charges were weak because she had trouble showing that she had reacted with the severe distress that most women would presumably experience if they encountered a flasher. Her employment-related charges were weak because she had trouble showing that her later job conditions were affected. Either hurdle might have been overcome had Ms. Jones taken relatively simple steps during her employ with the state, such as visiting a counselor. A would-be harasser would be foolish to imagine he can count on his victims' doing nothing to document their discomfiture.

# Something must have been going on with this judge. To the editorialists at the New York Post, the judge's "shocking and questionable" ruling "raises the suspicion that she was trying a bit of jurist nullification" But other editorialists on the right sharply differed: "In fact, Judge Susan Webber Wright was simply striking a blow for legal sanity in sexual harassment cases," wrote the impeccably conservative Detroit News, while the Chicago Tribune agreed that the judge acted "properly and courageously."

Mr. Clinton may not have been suspiciously lucky to draw this particular judge, but he was lucky. One of the open secrets of our court system is that judges differ enormously one from the next in their willingness to screen cases out at the summary judgment stage. Had Mr. Clinton been sued in many other federal courtrooms around the country, or in many state courts where employment defendants almost never win summary judgment, he would today still be headed for a nightmare trial.

# Now other women will hesitate to press their claims. If they draw the right conclusions from this case, they'll do the reverse of hesitating: They'll file earlier. Most of the distinctive weaknesses in Ms. Jones's case sprang from her extreme tardiness in getting a case together. The statutes of limitation had run out on many of her prospective legal claims, she'd done little or nothing to document key elements of her case, and she'd allegedly said and done a number of things that worked to undercut her eventual claims. Had she consulted a lawyer early on, she would certainly have been instructed to keep a diary, visit a counselor and take other steps aimed at documenting both emotional distress and difficulties encountered on the job.

# Companies are going to feel less under the gun on the issue. Harassment law was full of frightening and unpredictable legal exposure before Wednesday, and none of it has gone away. Employers do win many victories at the summary judgment stage, but such cases are hard to turn into reliable precedent that keeps them from getting sued in the future: Prevailing Supreme Court doctrine encourages lower courts to look at the "totality of the circumstances" in each case anew, rather than developing definite rules that clearly assign or reject liability given a particular pattern.

If a business's operations are confined to one part of the country where federal judges are known as relatively friendly to the dismissal of weak cases at the summary judgment stage, it may have some mild cause to nod with approval. But national employers by definition have to be prepared to be sued anywhere, and would be very ill-advised to relax even if they believe their conduct is beyond reproach.

# See, the system works after all. Defenders of the American litigation system are sure to trot this one out, as they did after the O.J. Simpson civil case. But many others will draw a rather different conclusion: Even if the defendant wins in one of these cases, he loses.

Among employment lawyers, a widely observed rule of thumb is that if a case is destined to get past summary judgment, the defendant should offer a substantial settlement. But the lesson of Jones v. Clinton is that even cases that aren't strong enough to make it to a jury can inflict ruin on defendants' reputations and pocketbooks. For months experts have criticized Mr. Clinton's refusal to settle the Jones matter with a cash payment at an early point. Mr. Clinton still looks unwise not to have done so, given the damage his reputation has suffered as a result of the "discovery" process. Even if Bob Bennett had been clairvoyant enough to know for certain that the case would be disposed of last week, he would still have been well-advised to recommend paying Ms. Jones almost any sum she wanted. What does this tell us about the economics of modern American litigation?

# Now that the president has experienced firsthand the plight of defendants in our legal system, maybe he'll start supporting reforms. Don't count on it. The Jones affair points up the unfairness of any number of rules in our litigation system: the ultraliberal discovery procedures that encourage fishing expeditions, the misbegotten evidence rules that permit harassment complainants to probe the sexual histories of the men they're accusing even if a judge finds the information irrelevant, and the lack of a loser-pays principle. (In harassment law, as in discrimination law more generally, plaintiffs can collect legal fees from defendants if they win, but not vice versa.) In a rational world, we would now proceed to a national debate about how to change those rules so as to protect more defendants against ill-founded claims. But any such reform movement will almost certainly have to proceed without help from the Clinton administration, which now as ever is wedded to the notion of giving litigators the most expansive powers possible.

'Through the Mud'

Clinton adviser David Strauss, a law professor at the University of Chicago, had one of the best analyses of the case's aftermath. "I think we should resist the temptation to say that this shows the system works," he told National Public Radio. "I think it shows something closer to the opposite, which is even a baseless lawsuit that never should have been brought tied up the presidency for many months, dragged his name through the mud, dragged lots of other people's names through the mud, and turned out to be groundless. . . . That just shows the problem with allowing civil litigation to be used as a weapon against the president."

Or, he should have added, against anyone else.

Under the ADA, We May All Be Disabled

[Originally published in the Wall Street Journal, "Rule of Law" column, May 17, 1999]

To understand the latest controversy concerning the Americans With Disabilities Act, the word to keep in mind is "unmitigated."

Karen Sutton and Kimberly Hinton want to be classed as legally disabled on account of their poor eyesight. There's just one catch: it seems the two sisters can see pretty much as well as the rest of us. Ah, their lawyers say, but that's when they're wearing glasses! Ditch the specs, and they're badly nearsighted. Last month, the Supreme Court heard arguments on whether the physical condition of persons wishing to sue under the ADA should be considered in its "unmitigated" state, that is, before any remedial steps have been taken.

The issue has plenty of applications. A second case before the court involves a United Parcel Service driver who wishes to qualify as "disabled" because he'd have a serious problem with high blood pressure if he stopped taking his medication -- though in fact he does take it. Also watching with interest are people who'd be in medical trouble if not for their joint or heart-valve replacements.

In other realms of life we seldom rely on an "unmitigated" definition of disability. For example, if you're applying for disability-benefit checks, it's a bad idea to tell the claims processor that you want the income even though you're perfectly capable of holding down a job and performing common tasks provided you keep your glasses on or take your pills.

Then there's the question of where the concept of remediation stops. For those with impaired mobility or blood-sugar imbalance, prescribed exercise and nutrition may make the difference in avoiding a downward course. Are they entitled to legal rights based on the disability they'd suffer if they started defying doctors' orders? At the extreme, perhaps we should allow persons whose lives have been saved by their medications to exercise their right to ignore mitigation and instead hold themselves out as legally dead.

To be fair, the tangle of disability-definition gets a lot more complicated than this. Economist Carolyn Weaver says the government has used more than 20 different definitions of disability for various purposes. And the ADA's is among the vaguest of all.

At the Supreme Court last month, you might say the theme was unmitigated confusion. "I don't see how to get this statute to work," said Justice Stephen Breyer. "I'm at sea," confessed Justice David Souter. As Justice Antonin Scalia waved his glasses in the air -- seven of the nine Justices wear glasses -- the court seemed to realize in one magic moment that under the more liberal interpretations of the ADA every one of them could count as protected-class members as could "a majority of Americans," as Justice Scalia said. That's a result at odds with the law's preamble, which cited 43 million as the number regarded as disabled then.

By this point, to be sure, it would seem late in the day to stop the majestic progress of disabled-rights law from bestowing a right to accommodation on everyone who differs physically, mentally, or behaviorally from the norm. Last year the Hartford Courant reported that nearly one in three high schoolers in affluent Greenwich, Conn., are now officially regarded as disabled, entitling them to various benefits ranging from individualized tutoring to laptop computers. Soon we may achieve a Lake-Wobegon effect in reverse, in which we will all get to be below average.

Unmitigated gall is more the style of a new study that claims that the ADA is actually unfairly tilted toward business defendants. Hyped by its sponsor, the American Bar Association's disability-rights commission, the study purportedly found employers winning 92% of ADA lawsuits and almost as high a share of Equal Employment Opportunity Commission proceedings; it got uncritical coverage from the Associated Press, USA Today and CNN.

Of course a different way to interpret the same numbers would be as indicating that 92% of ADA cases are shown unmeritorious. But in fact the numbers mean nothing at all because of the absurd way they were compiled. The summary judgment stage is often crucial in ADA disputes, and cases won by management at this stage were duly entered into the ABA database. And cases that went the other way? Well, um, it happened they were left out, except for the small minority of instances where the employer insisted on litigating to the end.

If the Associated Press or CNN had checked with some leading plaintiff's-side ADA authorities -- never mind the defense -- they might have gotten an earful about the defects of this study. Gary Phelan, co-author of a leading treatise on the ADA and a plaintiff's attorney who's handled more than 300 cases under the law, told the Connecticut Law Tribune that the ABA survey's exclusion of settled cases made it "not only misleading" but "flat out wrong." "Generally, around the country, ADA cases that have gone to trial have done very well," he told the paper. Peggy Mastroianni, ADA specialist at the EEOC, said the ABA report "overstates by far" employers' success at her agency.

Still, the ABA's efforts did divert attention from some other statistics less popular among disabled-rights advocates. Hardly anyone has been rude enough to mention, for example, that the rate of workforce participation among the disabled, which everyone expected would rise under the new law, has instead plunged to 29% from 33% in 1986. Also little-cited has been the report in the Dec. 24, 1997 Journal of the American Medical Association (JAMA) offering statistical support for the plausible notion that workers with sensory impairments get into more than their share of industrial accidents.

In both the new mitigation cases, employers are fighting back based on fears for traveler safety -- not because of some sort of dislike of handicapped persons.

The two sisters are suing because they've been turned down for jobs as pilots at United Air Lines. United declines to weaken its standard for pilots of 20/100 uncorrected vision or better, perhaps because it has considered the tendency of eyeglasses to smash or go flying in runway mishaps or conditions of extreme turbulence. Meanwhile, UPS declines to give the man with partially controlled hypertension a driving job because of the well-established correlation of that malady with traffic risks. (According to the Dallas Morning News, plaintiff Vaughn Murphy avoids taking the full dosage needed to keep his blood pressure down to normal because doing so makes him "stutter or forget things.")

The word, once again, is "unmitigated," as in "unmitigated disaster."

Mine and Thine

[Review of Richard Pipes, "Property and Freedom" (Knopf, 328 pages, $30). Originally appeared in the Wall Street Journal, May 6, 1999].

Wouldn't it be great if we could just do away with private ownership of property, sharing and sharing alike in nature's bounty? Generations of radical thinkers have been captivated by utopian flights of this sort. Meanwhile, their nonradical counterparts have often taken property rights for granted as a useful but uninspiring feature of the West, an accommodation to human frailty best left to the elucidation of economists and lawyers.

The spectacular collapse of communism, with its attempt to dispense with private ownership, has suggested to many that the whole concept of property might perhaps be something fundamental, worth a closer look. In "Property and Freedom" (Knopf, 328 pages, $30) Harvard historian Richard Pipes bids to restore the idea of property to its rightful place, "the key to the emergence of political and legal institutions that guarantee liberty."

Mr. Pipes has devoted his life's work to the study of Russia, a country where the concept of property has had peculiar difficulty establishing itself. He argues that "no single factor in Russia's history explains better the divergence of her political and economic evolution from that of the rest of Europe" than the failure to develop institutions of private property like those that arose in early modern England.

In Mr. Pipes' account of the long history of intellectuals' hostility to property, actual communists hold the stage for a relatively brief time, although as the most committed faction. Revolutionaries, syndicalists and romantic nationalists all get their turn, but the surprising villain turns out to be cultural anthropologists, who by the late 19th century had begun informing a rapt intelligentsia of their investigations into primitive tribes, which allegedly revealed those happy peoples to be untroubled by quarrels over who owned what.

This idea fit neatly with the widespread myth of a Golden Age of ancestor-heroes among whom mine and thine were unknown. Later and more careful work, however, has found such a propertyless view of primitive life about as realistic as the image of carefree natives swanning about without a stitch of clothing or any thought of modesty.

Concepts of property among tribal peoples, writes Mr. Pipes, are likeliest to attach to "whatever their livelihood depends on," such as water holes in an arid climate. Cultivation of the soil, which typically raises its value, goes along everywhere with a more precise definition of property rights. Yet even hunter-gatherers recognized rights in what we call "intellectual property" -- in songs, for example, or techniques of artisanship.

The fork in the road between Britain and Russia, it would seem, came on the issue of whether the ruler could be said to own everything in the country. In England, this idea was challenged and then rejected with the revolutionary consequence that the king had no more right to trespass on an Englishman's freehold than anyone else did. Nor (eventually) could he exact financial penalties from his subjects -- or do much of anything else, such as take away life and liberty -- without due process of law. The idea that rights were something prior to government soon made England the most property-oriented country on earth.

By contrast, in unhappy Russia, the czars' claim to own everything carried only too much weight. The members of the Russian nobility often found themselves acting as collectors-of-tribute on highly revocable allotments. Serfdom persisted because the obligations of nominal landowners to the crown were too onerous to be met any other way. Whole categories of economic endeavor, such as coach inns and flour mills, were decreed to be the property of the royal family. When Lenin sought to ensure submission to the authority of his Soviets by ordering the pulping of old title deeds, he was acting in the tradition of the worst czars.

Going beyond his case histories, Mr. Pipes points to many other connections between property and liberty, including the crucial role of mercantile towns in the late Middle Ages in developing modern ideas of representative government and the role of private fortunes in providing a seedbed for oppositional ideas.

Mr. Pipes packs a great deal of material into his book, at the cost of seeming to change subjects rather often; a tone also creeps in of irritable dismissiveness toward those who've gotten these matters wrong. (Fans of John Rawls and Erich Fromm will yelp.) Practical recommendations aren't his main point, but he does suggest that courts stop treating property rights as unloved stepcousins of "real" rights, and that foreign-affairs specialists not shy away from prescribing private ownership to those who would modernize their countries.

A man with an eye for a quote, Mr. Pipes invokes David Hume on redistribution: "Render men's possessions ever so equal, men's different degrees of art, care and industry will immediately break that equality. Or if you check those virtues, you reduce society to the most extreme indigence; and, instead of preventing want and beggary in a few, render it unavoidable to the whole community." On his own he comes up with a pithy philosophical reflection on the sweeping success of "privatization" around the world since 1980: "Aristotle has triumphed over Plato."

New Trends in Highway Robbery

[Review of Ken Dornstein, "Accidentally, On Purpose: The Making of a Personal Injury Underworld in America" (St. Martin's, 468 pp., $26.95). A slightly shorter version appeared in the Wall Street Journal, December 20, 1996].

Last year the FBI, with indictments in 31 states, launched a crackdown on a peculiarly American crime: organized car-crashing, now a multi-billion-dollar business. In "swoop-and-squats", a gang driver pulls in front of an unwary motorist and slams on the brakes. Claiming injury, he and his passengers set themselves up for a nice insurance settlement, then head out on the road for another "accident".

Sue Grafton ("H" Is for Homicide) and other novelists have tackled this gruesome subculture, and now Ken Dornstein fills the nonfiction gap with a remarkable new book, "Accidentally, On Purpose: The Making of a Personal Injury Underworld in America" (St. Martin's, 468 pp., $26.95). This first-time author pulls together more colorful history in one book than most authors manage in four, yet someone at St. Martin's should be spanked for failing to edit out the repetitions and digressions that make it only a great browse instead of a great read.

Mr. Dornstein signed up in 1991, when still a senior at Brown, to work the L.A. accident scene as a street investigator. A tireless rummager among the archives of railway claims journals, he lays out a vast forgotten history of fraudulent personal-injury claims, dating back to Civil War days, full of characters like New Jersey's "Banana Anna", whose 17 peel-related mishaps landed her in women's prison, and the Tumbling Womacks of St. Louis.

Such freelancers were bad enough; then came the organizers. "The key figure in the evolution of the urban accident racket in the first decades of this century," writes Mr. Dornstein, "was the 'ambulance chaser'" who connected lawyers to lucrative cases, often purchasing "leads" from cops, nurses, and reporters, and sometimes cultivating the help of disloyal insurance adjusters and even streetcar or delivery drivers who might be induced to crash their vehicles.

Investigations into resulting abuses provoked a huge public reaction from the late 1920s to the 1930s, culminating in waves of disbarments, medical-license revocations, and prosecutions, most notably by racketbuster Thomas Dewey. But times changed, and by the 1970s elite law opinion had grown ashamed of the old chaser probes: Why not let insurance defense attorneys sort out which claims were invalid? Prosecutors, bench, bar and medical authorities all snoozed off.

Abuses grew bolder. A supposed religious charity, the "Friends of the Friendless", gave chasers the run of the giant Los Angeles County Medical Center; techniques included pressing an unconscious patient's inked thumb to a legal retainer and threatening those who said no with deportation. "I get as much as I give," a hospital newsletter quoted one Friend as saying about his visits: "both the patients and I are rewarded." In Illinois, runners took over the Community Hospital of Evanston, dispensing with doctors' supervision and discouraging "real" nurses from applying. ("You're going to be so bored here. There is nothing to do.") The driver of the courtesy van whisking clients from law offices told why he liked the job: "No one is really hurt" so "no one gets sick on me".

True-crime books usually aim to show how the dirty deed is done, and this one does not disappoint:

How do I get started? For a "paper" accident, try inflicting "controlled damage" on a couple of cars with a sledgehammer in a dark parking lot. Insert passengers. Summon a witness. Gather broken glass in bags for re-use.

That was easy, what next? "Staged" accidents: Buy rustbuckets, insure one and run it into another one full of recruited claimants-to-be ("cows"). If you're nice, give them pillows.

I need symptoms! "OK, you can take tingles, and you can take hips or your shoulder," said one coach to his aspiring victims. "But don't go saying the exact same things." And be glad you aren't being sent to one of the House of Pain operations that massage would-be claimants with sandpaper and jagged can lids or flog them with apple-filled sacks. Let alone "Nub City", the Florida town that, in the 1970s, could boast that something like 10% of its population had practiced self-amputation for insurance, typically popping a left hand with a hunting rifle.

Who to target for swoop-and-squats? Big trucks on freeways are most lucrative, but many prefer forcing collisions with affluent drivers of newish cars, especially women because of "their reluctance to dispute liability".

How do I keep from getting caught? Vary your fact patterns. Don't stamp a doctor's name on medical reports months after he's died. Don't lose your ledger -- needed to keep hundreds of accidents straight -- or your scripts and tip sheets.

Mr. Dornstein is kind enough to present -- at length, and even with some sympathy -- the response of the trial lawyers to all this fraud. Not surprisingly, they see the publicity given to such cases as an industry-orchestrated plot against them, "intended to destroy a branch of the law which has always been concerned with fair and compensatory damages," as one said. So this truly is a book with something for everybody. But not before meals.

January 2, 2006

Taking Aim at the Trial of the Century

[Review of Vincent Bugliosi, Outrage, and H. Richard Uviller, Virtual Justice. Originally appeared in the Wall Street Journal, July 24, 1996]

"O.J.'s going to kill me someday," Nicole Brown Simpson told friends, "and he's going to get by with it." Vincent Bugliosi tells how he did in "Outrage" (Norton, 356 pages, $25). The former Los Angeles district attorney (and true-crime author of "Helter Skelter") has a field day skewering virtually everyone involved in the Simpson case. But his main brief is to expose the many errors of the prosecution.

Confident its blood-ID and other proofs would suffice to nail the former football star, prosecutors withheld from the jury a stack of evidence concerning his doings after the murders: his equivocal statement to police, his abortive suicide note and the story of the Bronco chase, where he set off accompanied by an old friend, $8,750 in cash, a passport, a gun and a false goatee and mustache. The receipt for the disguise turned up in the Bronco too. It came from Cinema Secrets Beauty Supply in Burbank and was dated May 27, 1994, about two weeks before the murders -- a bit of damning Simpsoniana readers may encounter in this book for the first time.

Apparently the district attorneys feared the maudlin suicide note might rouse sympathy, while the police statement might let Mr. Simpson have his say without taking the stand. But along with predictable denials of the murders, both documents were full of highly incriminating admissions on such matters as how and when he sliced his hand and bled all over his car. "Give me a yellow pad and one hundred hours and I would have convicted Simpson on [the police] statement alone," brags Mr. Bugliosi. Instead the state squandered weeks on coroner's testimony that led nowhere.

The state's soft sell sometimes bordered on apology. "You may not like me for bringing this case," Marcia Clark told jury prospects. Chris Darden in final argument: "Nobody wants to do anything to this man....There is nothing personal about this, but the law is the law." But jurors needed to hear it would not be understandable for them to vote either way, that letting this man off would haunt them forever.

A trial lawyer, Mr. Bugliosi tells us, "has to put a bib on the jury and spoon-feed it." But Ms. Clark spent less than a page of her final statement waving off the defense's charge of a vast police conspiracy, rather than hammer away at how many officers would have had to join the plot, how unlikely the motivations and coincidences would have had to be, how high the chance of detection -- in short, how desperate, fantastic and slanderous the whole frame-up theory was.

Also entering the book's reputation-grinder head first is L.A. District Attorney Gil Garcetti, who keeps switching stories on why he chose to try the case downtown rather than in Santa Monica, with its far more pro-prosecution jury pool. The misnamed "Dream Team" defense, supposedly the "best that money can buy"? No such thing: It lacked murder-trial experience and failed to interview key witnesses. The jury? "Not a normal jury. If it was, we should start packing our bags for Madagascar." Johnnie Cochran? "As two-faced as a tower clock". As for flaying Judge Lance Ito, Mr. Bugliosi takes his number and gets in line.

The New York Times recently called Mr. Bugliosi a blowhard, and his often coarse and boastful tone does grate. "The prosecutors were far too civilized for the defense attorneys," he writes. "That would not have happened if I had been in that courtroom." We believe him. But clarity and powerful marshaling of argument still vault this book to the top of the Simpson stack. And he never forgets why we should care. "This book is for people who are very angry that a brutal murderer is among us -- with a smile on his face, no less -- and want to know how this terrible miscarriage of justice could have occurred."

As for what to do, he starts promisingly -- abolish peremptory challenges, kick the cameras out of the courtroom -- then turns and begins defending most current practice, rather as if Upton Sinclair had ended "The Jungle" by assuring readers that it was after all OK to tuck into a nice plate of Chicago sausage.

Readers looking for subtlety will find plenty in H. Richard Uviller's "Virtual Justice: The Flawed Prosecution of Crime in America" (Yale University Press, 318 pages, $30.) Avoiding the Simpson case, the Columbia law professor and former prosecutor steers mostly a mainstream academic line, admitting to ambivalence over the exclusionary rule (perhaps fixable by techno-measures like letting judges issue search warrants by walkie-talkie) but dismissing the view that criminals get off easily as mere "myth".

After various thoughtful observations, Mr. Uviller drops a little bomb: Troubled by the way our lawyer-driven criminal process leaves so much to chance and adversary skill, he is increasingly attracted to the judge-directed method of inquiry used in most European countries. "In an unfortunate word with overtones of ancient abuses, we call this model inquisitorial." It certainly made this reader start turning the pages with fresh interest, but then the book ended.

Breaking Ranks

[Review of Reflections of an Affirmative Action Baby by Stephen Carter. Originally appeared in National Review, Oct. 7, 1991].

* * *

"I got into law school because I am black." Stephen Carter isn't just grabbing our attention by opening his first chapter that way; he wants to cut through the pretense. He doesn't see any point in denying that elite American universities and employers admit on a racial curve. He's not impressed by activists who want "simultaneously to insist that racial preferences be preserved and to force the world to pretend that no one benefits from them."

Carter's experience won't let him pretend. He recalls how Harvard first turned down his application because, as one official candidly put it, "we assumed from your record that you were white," then switched to frantic wooing when it discovered "additional information that should have been counted in your favor"--namely, "the color of my skin."

Instead he went to Yale; having graduated from the law school, he became a professor there, and got tenure at a precocious age. Star minority candidates, it seems, are the targets not only of cultlike love-bombing from recruiters but also of bidding wars that can bring them bigger pay packets than similar white scholars may expect. At least at places like Yale, "race continues to add value in the hiring process. The value is often reflected, as values in a market generally are, by a price tag."

That's the upside, or part of it, for the intended beneficiary. Part of the downside is that certain things are expected of your writing and thinking. Carter gets letters addressed "Dear Minority Colleague" presuming that he holds correct positions on various controversies. People seem surprised, if not cheated, to find that his main research interests -- separation of powers, patent and copyright law, and the legal status of religion -- have little to do with race.

Not that he can avoid the subject. At one point a white colleague he hadn't met sent him a draft of a planned article charging that Carter's writings showed a "lack of sensitivity" to minority concerns. On learning that Carter was black, the critic simply dropped the attack from the final draft rather than amplify or defend it. "In his eyes, my blackness evidently provided an immunity from the charge."

It may not provide him with a similar immunity when it comes to the recriminations of his fellow blacks. Already Harvard psychologist Alvin Poussaint has declared that if Carter feels uneasy with racial preferences, as by the evidence of this book he does, he should quit his Yale post so it can be filled by someone with fewer qualms. (The New York Times letters section seems to serve as a sort of bulletin board for resignation calls these days, having also recently run Joyce Carol Oates's curt demand that Joseph Epstein, accused of improper witticisms, step down as editor of The American Scholar.)

The ultimate dread of someone in Carter's position is being labeled a "black conservative," which seems tantamount these days to being drummed out of the race. He has seen it happen: to Glenn Loury (called "treasonous" by Benjamin Hooks); to Shelby Steele ("a basket case," according to Amiri Baraka, who finds even Spike Lee a sellout); to William Lucas (merely "biologically black," in Representative John Conyers's revealing phrase); to Clarence Thomas (pick your own calumny from this morning's paper); and, of course, to Thomas Sowell (worse, Carl Rowan suggested, than Vidkun Quisling). Such dissenters may not have a bright future in tomorrow's academy: Harvard law professor Derrick Bell warns that "the ends of diversity are not served by people who look black and think white."

Precisely because Carter feels a sense of racial solidarity, he writes with feeling on how hurtful such charges can be. Winning the esteem of (some) whites, he says, may be no great consolation for being ostracized by the equivalent of one's own family. Unfortunately, "while there is a magnificent tradition of black intellectual dissent in the U.S., there is no comparable tradition of black intellectual tolerance; our history as a people has been to cast out those whose views make us uncomfortable."

If it will help spare him such casting out, it may be worth noting that Carter, like Steele, disavows the conservative label, and it's not for the rest of us to pin it on him. True, he has spoken at gatherings of the Federalist Society, and he quotes Clarence Thomas at sympathetic length here. Even more tantalizing, he departs from Left orthodoxy on some important issues in constitutional law. But none of that is really incompatible with the role of open-minded liberal.

When you get right down to it, Carter's views on Topic A will strike many conservatives as unsatisfactory. He favors efforts in Congress to shift burdens of proof onto employers accused of misdeeds. And he seems to think that even if the recruitment and admission stages are stacked, things can be put right -- perhaps already have been -- by insisting that applicants sink or swim once they reach the classroom or workplace. Thus he dismisses as "rather silly" the old chestnut about whether you'd choose to be sawn open by a surgeon who benefited from affirmative action, saying the real question is not whether he deserved to get into med school, but how he did once he got there.

But it's not so silly. Universities face legal pressure to retain as well as admit minorities, which can mean pressure to grade leniently and dispense with other barriers to the granting of the eventual license or diploma. New York's Baruch College, which mostly admits far-from-privileged kids but is tough in its grading, got in trouble for this -- paradoxically being threatened with loss of accreditation for not lowering its standards. Similar retention-and-promotion pressures apply at later stages of training; if med schools are an exception, they're an unusual one.

And is it really an "insult" and "demeaning," as Carter thinks, for hiring committees to draw up separate lists of minority candidates? Or just an entirely predictable response to today's legal demands? In general, for a law professor, Carter has oddly little to say about the role of lawsuits. This is, after all, not mostly a matter of blundering good will. It is a matter of force and confiscation. The affirmative-action system is run by threats to inflict pain and expense, to subpoena records of the tenure meeting and grill the co-workers in harrowing depositions. It has little to do with racial amity. It is litigation.

Even when not convincing, Carter is cautious and wants to be fair to both sides; the corresponding defect is an overdrawing of distinctions, so that his best insights tend to be preceded by a hem and followed by a haw. In his more inhibited moods he can come up with more hedges than the Hampton Court maze, and more on-the-other-hands than the six-armed Shiva. The pace picks up when he moves from abstraction to factual circumstance, as in his personal recollections and some brief but intriguing passages on black intellectual history.

What stands out most brightly, in fact, is Carter's affection for freedom of thought. People overcome racialism when they come to value something else more; in Carter's case that something is everyone's latent power "to use rational faculties to distinguish wisdom from folly." It doesn't take a white or a black mind to explode a fallacy; it takes a mind.

That is why Carter scorns the "diversity" notion that black thinkers can contribute insights that whites could never reach on their own, the claim to "speak, in effect, in a language that others cannot hope to understand." As he points out, this is an assertion that implies its humiliating converse. And it is why he opposes the "temptation to try to make the world shut up" by deploying campus speech codes against unwanted opinion. He considers it "another sign that we are losing the moral high ground, for there was a time when the civil rights movement had no reluctance to debate."

The rest of us should wish him well in his call for "an end to the enforced isolation of dissenting black intellectuals"; there will be plenty of time to thrash out our disagreements after tongues are untied.

Moral Judgment

[Review of Moral Judgment: Does the Abuse Excuse Threaten Our Legal System?" by James Q. Wilson (Basic Books). Originally appeared in the Baltimore Sun, May 18, 1997]

In the limerick, the young Maid From Darjeeling throws her newly born babe at the ceiling: “When asked why she did/She replied, ‘To be rid/Of a strange, overpowering feeling.’”

The American courtroom might be the ideal place for the Maid to plead her case these days, with its parade of hired experts eager to diagnose compulsive traumatic syndromes and uncontrollable impulse disorders. In one case a West Virginia mother went on TV to beg for the return of her baby, which she said had been kidnapped, then confessed she’d beaten and drowned it because it wouldn’t stop crying. She got off with less than two years on a voluntary manslaughter plea: seems she’d been depressed, which as one sympathetic law-school pundit put it may have her “prevented her from conforming to society’s requirements” inasmuch as she “felt compelled to stop the frustration” caused by the infant’s wailing.

The “abuse excuse” hung the first Menendez jury, and related theories have surfaced in cases as diverse as those of Bernhard Goetz, Dan White, Patty Hearst, and the Los Angeles rioters. Now widely admired UCLA criminologist James Q. Wilson weighs in with Moral Judgment, a 112-page set of thought-provoking lectures whose main failing is that it masquerades as a book.

Start with the good news. “Contrary to what many suppose, there is no avalanche of ‘abuse excuses’ afflicting American criminal law.” Rockslides, maybe; but few cases turn on the new theories, and judges still reject such exotica as the “black rage defense” and urban survivor syndrome.

Nor are these issues wholly novel or distinctively American. Juries have long stretched notions of self-defense or extended implicit clemency to recognize mitigating factors such as provocation and histories of abuse. Those who think America has a patent on this may be surprised to learn that Britain has gone further in letting off female murderers on grounds of pre-menstrual syndrome (PMS).

So should we stop worrying about the “abuse excuse”? Not at all, Wilson argues.

For starters, syndrome-mongering turns crucial issues over to dueling hired experts on each side. (Prosecutors have their own dubious experts, like one who testified there was a “one hundred percent and absolute” certainty a convicted murderer would kill again.) The idea is that relevant issues of human nature are “beyond the ken of the reasonable laymen” yet can be resolved by science. But too often one or the other premise falls down: reasonable laymen's judgments may match anyone’s in accuracy, while science may offer no answers that carry real predictive rigor.

Meanwhile sympathy sneaks in the back door. Many judges have allowed abuse defenses but reject compulsive gambling syndrome. The explanation isn’t that the first are scientifically rigorous: in the first Menendez trial, an expert told jurors the brothers’ “brains had been ‘rewired’ the way, she claimed, a snail’s could be.” But courts just don’t feel sympathy for the embezzler.

Excluding much expert testimony, as Wilson proposes, would also make for speedier justice. “In England the average criminal trial in 1982 took only about one day, while in Los Angeles the average one took about five days (up from three days in 1953).”

Though full of cogent observations, the book isn’t the best introduction to Wilson’s work for the newcomer, nor is it a definitive overview of its complex subject. It’s a set of university lectures, best suited for those with some prior exposure to its themes. That Basic Books is hawking it as a sequel to Philip Howard’s The Death of Common Sense reflects the follies of publishing, not of Wilson’s pen.

Crimes of Ego

[Review of Crimes Against Nature: How George W. Bush and His Corporate Pals Are Plundering the Country and Hijacking Our Democracy by Robert F. Kennedy, Jr. (HarperCollins). Originally appeared in the New York Post, Oct. 17, 2004]

TWO years ago, celebrity environmentalist Robert F. Kennedy Jr. made himself a laughingstock from one end of Iowa to the other when he flew into that state to proclaim that large-scale hog farms are more of a threat to America than Osama bin Laden and his terrorists.

In one of the milder reactions, a Des Moines Register editorial called his comments "idiotic" and "ridiculous."

But the wayward scion learned nothing from that episode. His volume knob still stuck at 10, Kennedy has now delivered himself of a whole book about the "Crimes Against Nature" (always crimes, never the result of mere differences of opinion) by which today's high officials are leading us "back to the Dark Ages" on environmental policy.

His villains, a long list, include the "sleazy scoundrels" of the Bush regime, business execs with "reptilian hearts," "crooked scientists" whose research fails to confirm his own notions and sinister policy experts who dabble in "the occult art of cost-benefit analysis."

There's a rich market for Bush-bashing books these days, but Kennedy's jackhammer style leaves one yearning for Michael Moore's suavity, Molly Ivins' balance and Paul Krugman's lightness of touch. If you find it novel and illuminating to compare today's highly placed Texans with Hitler and Mussolini, then RFK Jr.'s your man.

For those with even a passing interest in public policy, the book affords the fun of a pratfall on every page, most of them occasioned by Kennedy's epic self-righteousness and astounding disregard for conventional accuracy.

Thus we learn that air pollution is a cause of Down's Syndrome, that "study after study" shows small family farmers to be "far more efficient" than battery raisers of chicken, eggs and pork and that "automakers already have the technology" to make SUVs and minivans get the mileage of passenger cars, but don't do it because, well, because they're mean.

And more: It seems there are "seven media giants that own or control virtually all of the United States' 2,000 TV stations, 11,000 radio stations and 11,000 newspapers and magazines," working hand in glove with the Bush White House (you know how CBS and the Times are always doing that). And did you know that the Bush people are secretly plotting to eliminate all federal environmental regulation within a year? Many of the "rollbacks" Kennedy cites, however, turn out to be refusals to expand the law, a rather different thing.

As for trade-offs at a time of $50/barrel oil ­-- between warm homes and optimal caribou habitat, between underground coal mining (better for the landscape) and surface mining (kills a lot fewer miners) ­-- Kennedy's usual practice is simply to ignore them. This helps in sustaining outrage, but does it really equip his readers to argue well for their cause? In a revealing turn of phrase, Kennedy complains his adversaries are allowed "to pretend that there is a genuine debate."

The man's lack of ironic self-awareness is a marvel. In his media-criticism chapter, he has the nerve to blast the press for its absorption with celebrity culture. Yet this book, like Kennedy's entire career, is nothing if not an artifact of that culture. It would never have been acquired by a major publisher, or sent out in quantity to bookstores, or reviewed in this newspaper today, if its author's name were Robert F. Snicklethwaite, Jr.

Judge Not...

[Review of Guilty: The Collapse of Criminal Justice by Harold Rothwax (Random House). Originally published in Commentary, May, 1996]

In Detroit, a rapist held fourteen-year-old Angela Skinner captive in his apartment, threatening to shoot her if she tried to escape. When police broke down a padlocked gate to free her, she led them to a closet where the man kept his guns. The rapist was convicted, but on appeal a federal court excluded the weapons from evidence and overturned his conviction because the police had obtained Angela's permission alone to look in the closet, and not his.

To much of the American public, stories like this are familiar, and infuriating: ever since the Warren Court proclaimed a series of new rights for criminal defendants in the 1960's and 1970's, the bad guys have gotten off on technicalities and crime rates have soared. Yet members of the legal establishment see things differently. Tales like Angela's, they say, are atypical; the new constitutional protections undercut relatively few prosecutions, and in any case the origins of the crime wave lie outside the legal system. Thus, a 1988 American Bar Association (ABA) report complains that "the public mistakenly looks to the criminal-justice system to eliminate the crime problem," and contrasts that unlettered view with the perspective held by "professionals," like the ABA's own members, who know the courts play "a more limited role in crime control and crime prevention."

The ABA's view has become a bit less tenable with the appearance of Guilty: The Collapse of Criminal Justice. Harold Rothwax, a judge in the New York State courts for the past 25 years, is nothing if not an experienced observer of the Warren Court doctrines in action, and he reports that they do in fact pose a big obstacle to putting malefactors behind bars. What makes Rothwax's testimony all the more piquant is his background: before joining the bench he practiced as a criminal-defense attorney for twelve years and also served as vice chairman of the New York Civil Liberties Union, a central shrine for the veneration of the Warren Court.

Guilty starts in familiar territory--the Miranda decision requiring police to advise arrestees of their right to remain silent; the exclusionary rule, which directs a judge to suppress even highly probative evidence when the police have stepped over a line to acquire it; and the modern trend toward excluding confessions given in police custody because they may have been coerced. Rothwax then goes on to explore less well-known topics, like the state statutes that enforce the constitutional guarantee of a speedy trial. In one egregious example, a Brooklyn man, charged with shooting his landlord, was apprehended after skipping two court hearings but was then let go on the grounds that the state had deprived him of his right to a speedy trial by failing to be sufficiently diligent in trying to catch him.

To Rothwax, the problem with the Warren Court's innovations is not only that they occasionally let the guilty go free; they also make the process numbingly cumbersome for everyone else. As a result, the difference between an outrageous marathon like the O.J. Simpson trial and the average court case is mostly one of degree, not of kind. Not everyone can afford a Dream Team, but even humble defendants, laments Rothwax, can watch judges "sitting by helplessly while attorneys are visibly engaged in an attempt to twist or foreclose the truth."

Current search-and-seizure doctrine abets this situation by leaving it hopelessly unclear when police actions will or will not be upheld in court. This, in turn, results in lengthy disputes that grind down the will and ability of prosecutors to prosecute. "If," Rothwax writes, "a street cop took a sabbatical and holed himself up in a library for six months doing nothing but studying the law on search and seizure," he would still not know how to obey the law-even if the state's chief justice agreed to ride along in the back seat of the patrol car to offer advice.

In style and in tone, Guilty is closely modeled on Philip K. Howard's successful The Death of Common Sense. Like Howard, Rothwax excels at storytelling while sometimes ducking hard issues by an appeal to "common sense," a concept that seems these days to serve much the same interpretive function some Protestant theologies once assigned to "inner light." The book is a quick read, concealing artful organization beneath a seemingly rambling surface, and in style it is admirably clear and direct, though occasionally falling into cliche or solecism. The fact that it is without source notes, bibliography, or even an index may tempt some readers to dismiss Guilty as a kind of talk-show appearance between hard covers; it is not.

As for Rothwax's concrete recommendations, they are not really as radical as one might conclude from the peals of outrage that have greeted this book from some quarters, most notably lawyers working the defense side. For instance, Rothwax favors sharp cuts in the number of peremptory challenges to jurors, an idea embraced by many other reformers as well. His proposal to allow juries to draw adverse inferences from a defendant's silence, outlandish as it may sound to contemporary ears, would do no more than restore American law to where it stood as recently as 1965. A sharper break from the past is his suggestion that we drop the requirement of unanimity among jurors, in favor of 11-1 or even 10-2 verdicts. Unfortunately, the main effect of such a change might be less to avert hung juries than to reduce the amount of time juries spend in deliberation--not necessarily a desirable objective.

Rothwax also makes a strong case for reform of "discovery" statutes. These require prosecutors to hand over information in their possession--witness lists, recordings and notes of interviews, and the like--to the defense before trial. In the old days, the defense would have a right to such material only if it tended to exonerate the accused. Newer laws require far more material to be handed over, at penalty of a mistrial, in order to avoid surprise or "ambush."

These laws, however, routinely encourage defense attorneys to tailor their stories so as to fit the contents of prosecution files. "We'll devise a defense," said O.J. Simpson attorney Robert Shapiro, "once we know what the state has to offer." In Judge Rothwax's own court, a gunman initially claimed that he had not been the one who shot at a busload of hasidic students on the Brooklyn Bridge; then, having been positively identified, he claimed to have shot in self-defense; then, after it was established that the students had been unarmed, he fell back on an insanity defense. Similarly, a burglar-rapist initially claimed his victim had voluntarily dated him and consented to sex; when it was revealed that she spoke not a word of English, he revised his story to say that he had not been in the room with her at all. Of course, in all such cases a jury hears only the final version.

In interviews and news stories, Rothwax has emphasized that he does not regard his book as hewing to any particular ideological line, and in fact he does not go as far in his proposals for reform as many conservative writers on crime. Thus, he does not object in principle to the exclusionary rule, and his hopes of clarifying search-and-seizure doctrine leave him agreeing with the "result" of most current Supreme Court law, if not its "reasoning." His chapter on plea bargaining defends a practice which has been assailed by other analysts of the criminal-justice system.

Much of Rothwax's case boils down to a plea for wider judicial discretion; everything, he says, should have an exception "so far as is reasonable." In one sense, such latitude is long overdue. After the Simpson debacle, almost everyone (except trial lawyers) would be happy if judges took a firmer hand in managing trials: kept questioning on track, cracked down on attempts to manipulate the jury; and so forth.

But Rothwax also favors widening the discretion of judges to interpret the law. For example, instead of the current "mechanical' deadlines for speedy trials, he would give judges permission to throw out unreasonably stale cases and send the rest forward. There are many objections to such a change, among them that it could end by widening the gap between hard-line judges (who would probably tend to throw out fewer cases) and soft-line ones.

Yet, whatever one thinks about any one of Rothwax's proposals, the portrait he paints of the criminal-justice system is a damning one. Many now agree that it is time to rethink the Warren Court legacy: if the publication of Guilty moves us toward the day when we can begin to debate which parts of that legacy should be discarded and which retained, it will have made a lasting contribution.

Is It Really an In-Justice System?

[Originally appeared in the New York Post, Sept. 30, 1996]

For many, it's an article of faith: The justice system is stacked against African-Americans. Last spring, a holdover Cuomo-era state panel made headlines by charging that black defendants get tougher sentences than similarly situated whites; the Pataki administration repudiated its report.

"Study after study verifies that color makes a difference at every stage of a criminal case", according to law professor and O.J. defense lawyer Gerald Uelmen. "Whites do better at getting charges dropped or reduced to lesser offenses." Do they? On Wednesday, the Center for Equal Opportunity will release figures suggesting that black defendants actually do better than whites at beating criminal charges. Moreover, although the numbers are sketchy, big-city juries may be acquitting blacks at a higher rate than whites.

The Washington-based center, best known for its president Linda Chavez, hired analyst Robert Lerner to assemble numbers from a U.S. Justice Dept. database of 56,000 felony cases filed in state courts in the nation's 75 largest cities in May 1992. The cities account for most of the nation's violent crime and an even bigger share of blacks' encounters with the criminal justice system.

Black defendants, it turns out, were convicted at a higher rate than whites in only two of the fourteen federally designated felony categories. These two categories also happened to be the two smallest: felony traffic offenses and a miscellaneous category of crimes not against persons or property. In the other 12 categories, black defendants escaped conviction at a higher rate than whites.

Many of the differences were modest. Thus, 38 percent of blacks charged with robbery beat the rap compared with 35 percent of whites; burglary, 25 percent vs. 21 percent; assault, 49 percent vs. 43 percent; theft, 27 percent vs. 25 percent. Murder cases showed a mere one-point difference (24 percent of blacks not convicted, 23 percent of whites) with equally tiny disparities for public order offenses and miscellaneous property crimes.

Blacks did significantly better than whites at beating drug and weapons charges. On drug trafficking charges, 24 percent were not convicted versus 14 percent of whites; similar margins were seen for other drug offenses (32 percent vs. 23 percent) and weapons charges (32 percent vs. 22 percent). The other side's obvious rejoinder is that blacks are being overcharged with these offenses in the first place. When DAs find the evidence won't hold up, this side maintains, they have to drop the cases.

Admittedly, the center's numbers can't resolve this challenge, but they do cast doubt on the simple idea that prosecutors and judges are adding their own dose of bias against blacks. (Hispanic defendants, incidentally, fared roughly the same as whites overall.) And this still leaves the study's most explosive finding: Whopping disparities in favor of black defendants accused of rape and other crimes against individuals that fall outside the dominant trio of categories -- murder, robbery and assault.

Other crimes against persons, a catch-all category covering charges from manslaughter to extortion to felony child abuse, showed a wide gap: 48 percent of blacks escaped conviction versus 28 percent of whites. And a startling 51 percent of rape charges against blacks ended in non-conviction compared with 25 percent for whites.

These happened to be the same two categories in which juries showed the most extreme tendency to acquit black defendants. Of cases that made it to trial, juries acquitted 69 percent of black defendants in other-crimes-against-persons cases, as against 29 percent of whites. And they acquitted 83 percent -- yes, I thought it was a misprint too, but Lerner says it's the real number -- of blacks charged with rape, compared with just 24 percent of whites.

Before readers fall off their chairs, they should know there are reasons to view these figures with caution. First, though the overall figures on non-convictions draw from a large set of cases, those on jury acquittals reflect small sample sizes: Most cases end in guilty pleas or dismissals, and only a few percent make it to juries. Second, and consistent with the greater randomness you'd expect given small sample sizes, juries did not show a reliable pattern of racial bias or lenience.

In two big categories, robbery and assault, they actually acquitted blacks at a lower rate than whites (12 vs. 18 and 37 vs. 42 percent respectively). And the low acquittal rates for both races on such charges as burglary and drug trafficking (where fewer than 10 percent of either race won acquittals) don't hint at an indiscriminate turn-'em-loose view.

Moreover, the figures don't necessarily point to a greater willingness to excuse black-on-white crime: in most rape and violent-crime charges accuser and defendant are of the same race. Finally, we can't assume that lower acquittal rates are simply better: Facts can truly be doubtful and defenses or mitigating circumstances real, one reason both races may show high acquittal rates on such charges as assault.

All that having been said, you can bet we'd hear plenty about the figures if they'd come out the other way. And the numbers are sure to fuel the debate about whether some inner-city juries are letting defendants off at the cost of ignoring the law and the evidence. While the nationwide acquittal rate is reported at 17 percent, it's said to exceed 30 percent in some big cities and to be approaching 50 percent for black defendants in The Bronx.

Some actually cheer this trend. In a much-quoted Yale Law Journal article, Paul Butler, a law professor at George Washington University, wrote that "when the criminal justice system discriminates against people who are African-American and poor, black jurors are legally and morally justified in acquitting those persons" -- even though African-Americans are typically the chief victims when freed wrongdoers go on to commit more crimes.

Jury acquittals, even if few, also help drive the entire system because plea bargaining takes place in their shadow. It's suggestive that prosecutors appear to be dropping cases beforehand in much the same general pattern in which those cases run into trouble with juries. The Simpson case may be a year old, but the need for a hard look at the performance of our trial system grows only more urgent.