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July 7, 2007

Review, James Surowiecki, "The Wisdom of Crowds"

[Review of The Wisdom of Crowds: Why the Many Are Smarter Than the Few And How Collective Wisdom Shapes Business, Economies, Societies and Nations by James Surowiecki (Doubleday, 297 pp.) Originally appeared in the New York Post, July 11, 2004.]

* * *

Can't recall how the National Security Adviser spells her first name? Try a Google spell-check. "Condoleezza" appears on 308,000 web pages, "Condoleeza" on 76,000, and "Condolleeza" on only 261. Sure enough, the first of the three spellings, by far the winner in page "votes", is the correct one.

Given the right task to solve, aggregate amateur opinion sometimes proves more reliable than the expert kind. In 1906 the scientist Francis Galton observed that when rural English fairgoers were invited to buy a ticket and guess how much flesh an ox would yield when slaughtered, with the best guesses winning prizes, the crowd's average guess was more accurate than that of even the most knowledgeable individual farmer. Similarly, students asked to guess the number of jelly beans in a glass jar often come remarkably close to the correct number when their guesses are averaged. Writes James Surowiecki: "under the right circumstances, groups are remarkably intelligent, and are often smarter than the smartest people in them".

For a moment you might fear Surowiecki is going to take this little insight and start hammering away with it, One Big Theory style, until he winds up convincing himself that voters as a group choose unerringly between candidates, that a poem's popularity is a sure sign of its literary merit, that employees' time is better spent in committee meetings than in mastering their individual jobs, and so forth. Not to worry: this is a much better book than that. In fact, the author almost at once begins to explore the exceptions and limits to his initial generalization -- the many ways in which the world usually falls short of providing the "right circumstances" for crowd rationality. By the end, you see why crowds got their reputation for being messy, unpredictable and easily misled in the first place.

So much the worse for the book's somewhat grand title. But so much the better for the reader, since it gives Surowiecki, whose writings on business are a reason to read The New Yorker, free rein to roam among a wide variety of topics of his choosing. For instance: why "yes-men" are so harmful in committee deliberations (it has to do with their tendency to turn an initial error into a "cascade"); why it's so hard to beat the stock market or the sports betting line; why a key to the success of Linux is precisely that it's much less decentralized and "open" than it looks; why the silly "sweeps" system continues to dominate TV ratings; why juries, political factions or artistic coteries that start out with similar leanings can talk each other into more extreme positions than any of them took originally; why the scientists with the most original contributions to make are also those who collaborate most; what game theory can tell us about Fed interest-rate decisions; and much more. Surowiecki is quite good at explaining these topics, and they're nearly all worth learning about.

The Wisdom of Crowds is selling briskly at the stores. In this case, the crowd knows what it's doing.

July 6, 2007

Review, Brett Fromson, "Hitting the Jackpot"

[Review of Hitting the Jackpot: The Inside Story of the Richest Indian Tribe in History by Brett D. Fromson (Atlantic Monthly Press, 244 pp.). Originally appeared in the New York Post, May 16, 2004]

Betting on the Pequots

Indian gambling will probably arrive in the Catskills soon, waved in by state budgeters eager for revenue. Let's hope we've learned some lessons from Connecticut's decade-plus experience with Pocahontas-as-croupier, a story told in devastating fashion by Brett Fromson in Hitting the Jackpot.

The modern story of the Mashantucket Pequots and their Foxwoods casino is by now familiar. After drifting in life, a restless New Englander realizes his Indian heritage might entitle him to housing and other benefits.

Falling in with shrewd lawyers, he realizes that much more is at stake if he and his relatives can succeed in simulating the existence of a functioning tribe. They first outwit Hartford's half-asleep politicos and then maneuver a bill through Congress to secure federal recognition as a tribe without the usual scrutiny.

They proceed to erect the world's largest casino in the woods and the resulting geyser of cash, sprayed judiciously in various directions, buys them many highly placed friends, with enough left to make tribe members very rich indeed. Some of the money winds up going to classes to teach them how to become Indians, since no Pequot traditions survive as to language, crafts, belief or much of anything else.

Veteran financial reporter Fromson documents the series of sharp dealings and bald impostures that carried the day. "Never underestimate the ignorance of your opponents," proclaims the tribe's chief adviser, attorney Tom Tureen. "People are real stupid sometimes." Ideology also played a key role.

Progressive Nutmeg-state lawmakers promoted assertions of Indian identity. Federal judges leaned over to help the presumed underdogs. Liberal local congressman Rep. Sam Gejdenson avidly backed the tribe.

As for the tribe's lawyers, who'd emerged from the legal services movement, these oh-so-idealistic attorneys found themselves gradually turning into well-paid casino promoters.

And the lucky Pequots? Few stories are sadder than what happens to the typical sweepstakes winner. Unused to riches, tribal members splurged on BMWs and foreign travel, some borrowing heavily against future income to do so. The tribal government, which made Tyco look Trappist, was soon spending $200,000 per member on services, aside from the casino payroll and large direct cash payments to members. Then the flow of incoming money began to slow.

The tribe eventually shoved aside the founding Haywards from the helm of (as Fromson puts it) "the tribe they had invented." Millionaires or no, the reservation suffers from much crime and domestic abuse.

Fast-paced and well-written, this book has been assailed in some quarters as "anti-Indian," which hardly seems fair, since the folks Fromson is writing about are about as authentically Indian as Camilla Parker Bowles.

July 5, 2007

Review, Ken Foskett, "Clarence Thomas"

[Review of Judging Thomas: The Life and Times of Clarence Thomas by Ken Foskett (Morrow, 339 pp.). Originally appeared in the New York Post, Dec. 19, 2004]

Thomas' Trials and Triumph

So much for comity between the different branches of government. Speaking on NBC's "Meet the Press" two weeks ago, new Senate Minority Leader Harry Reid coolly insulted Justice Clarence Thomas, calling the 56-year-old African-American jurist "an embarrassment to the Supreme Court" whose "opinions are poorly written."

Who knew Reid, a hitherto little-known Nevada Democrat whose major backers have been casinos and trial lawyers, took such an interest in judges' writing skills?

For years, Thomas has served as a punching bag for lazy commentators. In the 1991 fight over his nomination, liberal interest groups portrayed him as a lecherous incompetent. When he was confirmed anyway, they began banging away on his supposed overdependence on his colleague Antonin Scalia.

Among those who follow the court's work closely, most of these themes are at best passé. Over 13 years, Thomas has laid out a body of conservative-to-libertarian judicial thinking clearly distinct from Scalia's. And many court-watchers who disagree passionately with the content of Thomas' views acknowledge that there's nothing subpar about his written opinions.

Which still leaves the question of character, explored at length in Ken Foskett's new biography, "Judging Thomas."

By now the outlines of Thomas' remarkable life story are well-known: his poor upbringing in Savannah, raised by a super-strict grandfather who drilled him in hard work and obedience; his radical phase at Holy Cross, where he affected Army fatigues "and a black beret festooned with black power buttons"; his arrival at a Yale Law School then supremely confident of its mission to use the law to remake American society; his rejection of that mission and emergence as a conservative strongly opposed to counting by race as a form of governance, and at length his recruitment (via John Danforth's Missouri attorney general office) by a Bush 41 administration that kept tapping him for jobs very different from those for which he would have volunteered, culminating in a seat on the nation's highest court.

At every stage, there were lacerating snubs: from lighter-skinned blacks and snooty boarding-school students amused by his uneducated accent, from the civil-rights establishment, from People for the American Way mudslingers and New Yorker editors.

Where the criticism struck him as fair, Thomas had the strength to take it to heart: Thus, the toughie Yale Law property expert who gave him his worst grade became his favorite professor. After the confirmation ordeal, on the other hand, Thomas spent a couple of years recovering from embitterment, and even now Foskett describes him as "tightly wound," though warmly regarded by his staff.

An investigative reporter for the Atlanta Journal-Constitution, Foskett writes in a relaxed and readable style, and though a few expressions suggest that he does not necessarily agree with Thomas' jurisprudence, the resulting portrait is generally a favorable one.

Thomas' own memoirs are supposedly in the works. In the meantime, this book dramatically depicts the power of will over circumstance.

July 4, 2007

Review, Andrew Sullivan, "The Conservative Soul"

[Originally ran in the New York Post Nov. 5, 2006. Review of The Conservative Soul: How We Lost It, How To Get It Back by Andrew Sullivan (HarperCollins, 294 pp.)

IF you went looking for some one to write a systematic or impartial account of the conflicts that are pushing America's conservative movement toward breakup, just about the last author you'd pick for the job would be Andrew Sullivan.

The British-born commentator's new book, like all his work, is engaged, quirky and personal, the view of a gifted outsider who can't go for long without circling back to gay issues. Yet "The Conservative Soul" will still resonate as one of the year's key political books, a free-associating literary polemic that well complements "The Elephant in the Room," the recent book by New York Post contributor Ryan Sager.

The "conservatism I grew up with," notes Sullivan, stood for "lower taxes, less government spending, freer trade, freer markets, individual liberty, personal responsibility and a strong anti-communist foreign policy." Defining figures such as Ronald Reagan and Margaret Thatcher spoke regularly of human freedom as the great aim of political life. "It has long been a fundamental conviction of the Republican Party," declared the 1980 GOP platform, "that government should foster in our society a climate of maximum individual liberty and freedom of choice."

Somehow from there we arrived at the presidency of George W. Bush, whose pronouncement on the state's proper role - "When someone hurts, government has got to move" - owes more to LBJ than to Barry Goldwater.

Pennsylvania Sen. Rick Santorum brusquely waves aside "this whole idea of personal autonomy," this "idea that people should be left alone, be able to do whatever they want to do." Ex-Democrats of the McGovern-Dukakis era once popularized the line "I didn't leave the party, the party left me"; if the Santorums prosper, plenty of old-line Republicans will be ready to sing the same refrain.

Sullivan's prime target is a GOP (to quote George Will) "increasingly defined by the ascendancy of the religious right." Twenty-five years ago, mainstream publications on the Right didn't regularly use the word "secular" to sum up the positions they oppose, as do the National Review and Weekly Standard today.

Back then, conservative editors might have held at arms' length an elected official who described his goal in office as being to implement the divine will. Now they vie to promote the national ambitions of Kansas Sen. Sam Brownback, who - in an astounding Rolling Stone profile cited by Sullivan - boasted of having but a single "constituent," as he pointed his finger skyward.

Much of Sullivan's point-scoring against personages on the Christian Right is forceful and well-taken, but you do wish he'd draw distinctions. He lumps truly radical figures with the merely hidebound as "theoconservatives" and, provocatively, deems "Christianism" an emergent counterpart of today's radical Islamism, if a "much milder" one.

Is it really useful to discard a century of accepted terminology so as to tag traditionalists in his own church, Roman Catholicism, as "fundamentalist"?

No, it's not.

In this respect, Sullivan's popular blog shows an advantage over the book format. When Sullivan says something unfair online, he gets and prints a barrage of reader response, and often revises his views. This book will go unrevised by ongoing customer reaction, but would have profited by it.

That aside, it helps open a crucial and timely debate.

August 24, 2006

Read These Books -- And Sue Every Boss In Sight

[Originally appeared in the Baltimore Sun, Feb. 16, 1997]

Furious at your high-handed boss? A generation ago you might have called a union organizer, but now you’re likelier to dial 1-800-LAWSUIT. From Mitsubishi to Texaco to the guy down the hall who put in an age-bias claim after getting downsized, lawyers and threats to sue have been fast supplanting unions and threats to strike as the prime movers of workplace conflict in this country.

The shift is reflected at the bookstore, where for every volume on collective bargaining you can find a half dozen aimed at disgruntled individual workers with titles like Your Rights in the Workplace by Marcia Stewart and Barbara Kate Repa (Nolo Press, 1996), The Employee Strikes Back! by Brian Zevnik and John Rapoport (Macmillan, 1994), and Can They Do That? A Guide to Your Rights on the Job by Michael A. Zigarelli (Lexington, 1994).

I read a sackful of these self-help volumes in the course of researching a forthcoming book on the new employment law and how it’s transforming the American workplace. Most were reasonably well-written and accurate, if also somewhat single-minded in nurturing among readers a bristly assertiveness about their rights. But they also made clear, sometimes with inadvertent humor, that the influx of lawyering into the nation’s offices and plants is making America a more contentious place in which to go about our daily work, which spells bad news for employers and quite possibly for the rest of us as well.

Attorney E. Richard Larson minces no words in his book’s title: Sue Your Boss (Farrar, Straus & Giroux, 1981). Larson tells workers who’ve been fired, passed over for promotion, or otherwise aggrieved that newly enacted laws are "very much in your favor" and just "waiting to be used". "Vast sums" can be on the table, he adds, just in case any readers have been dozing off. "Money -- lots of it -- has been changing hands."

How to get some? To begin with, says Larson, you "always should assert your rights under as many of the laws as are available." Each separate claim gives the employer something else to sweat over and pay its lawyers for, and what with this country’s lack of a loser-pays rule there’s no penalty if you’re wrong on one (or for that matter all) of them. If you fall into more than one protected-group category -- race, sex, age -- Larson advises throwing in a claim for each, whether or not you’ve seen actual evidence of bias: "there is no reason to give your employer the benefit of any doubt. Instead, assume the worst."

Most of these martial-arts-meets-the-human-resources-department volumes broadly resemble each other in format. Their drawback as a publishing proposition is that they date so quickly, falling out of print (like Larson’s), or requiring updated editions as the law relentlessly expands through such enactments as the Americans with Disabilities Act of 1990, the Civil Rights Restoration Act of 1991, the Family and Medical Leave Act, and so forth. Maybe at some point trade publishers will emulate the professional law-book houses which address this problem by publishing in looseleaf format or with kangaroo-like "pocket parts" in back for new developments.

As the manuals make clear, the law in practice is not the law as it may look on the page. Academic writers on sexual harassment split hairs about the difference between consulting a "reasonable woman" and a "reasonable person" in deciding what jokes or comments are permissible in the workplace. Ellen Bravo and Ellen Cassedy in the 9 to 5 Guide to Combating Sexual Harassment (Wiley, 1992) are blunter and more practical. "Who decides what behavior is offensive in the workplace?" they ask. "The recipient does." They advise potential offendees to "trust your instincts" about what constitutes harassment.

Thorough if not obsessive documentation is a common theme. One author suggests starting a file every time you take a new job and saving in it every scrap of paper the company ever gives you. "The one with the biggest pile of papers wins," writes Lewin G. Joel III in Every Employee’s Guide to the Law (Pantheon, 1993). What if co-workers make, say, "wisecracks about your age"? "Don’t wait until you get home from work. As soon as you are alone and have a chance to write them down, do it. Go to the rest room if you have to. Remember to bring a pencil." Take notes on supervisors’ remarks "even at a chance meeting at a ballgame or nightclub".

If relations with your boss weren’t tense already, they may get that way before long. Some authors propose that you insist on a written job description and formal performance reviews even if your company doesn’t normally follow either practice, and demand at frequent intervals to inspect the contents of your personnel file. "If you were made uncomfortable because of jokes, pin-ups or cartoons posted at work, confiscate them -- or at least make copies," write William Petrocelli and Barbara Kate Repa in Sexual Harassment on the Job (Nolo Press, 1992). Bravo and Cassedy suggest objecting to offensive goings-on in "any tone that feels right to you". (Sample wording: "If you touch me/talk to me that way one more time, I’ll report you so fast you won’t know what hit you.").

Nearly all the manuals are written by practicing employment lawyers, and after a while it becomes clear that many of them have a product to sell. "_Talk to an attorney early_", advises Darien McWhirter in Your Rights at Work (Wiley, 1989) [emphasis in original]. "...Many employees could avoid throwing their cases away if they would talk to an attorney before doing something stupid, like resigning or admitting guilt." (Admit guilt? What a dumb move!). Every Employee’s Guide to the Law, one of the livelier volumes and one of the franker in boosting litigation, tells of "a jury award out there with your name on it."

The assert-your-rights manuals are rather skimpy, however, on warning readers of the costs of a decision to get into a fight with their employers. A leading study of litigation by university professors found most who sued suffered lasting harm to "their finances; their relationships with family, friends, and colleagues; their attitudes toward lawyers and the legal process in general; and most of all their careers." Yes, there are often tempting short-term settlements to be had, shared with one’s lawyer; but they may come at a future price part of which is paid when other employers think twice about an applicant who’s shown a willingness to sue.

Then there’s the lawsuit itself, which participants often compare to an especially nasty divorce. To see this side of the process one does well to turn to real-life accounts. One of the most absorbing comes in Nan Robertson’s history of women at the New York Times, The Girls in the Balcony (Random House, 1992). The paper was targeted by an early landmark sex-bias case for paying less to female than to male employees. Robertson strongly sympathizes with the lawsuit’s aims, but recounts its events with palpable ambivalence. Waging a lawsuit against one’s employer is a "long, slow, painful, difficult, and ego-destroying process", said attorney Harriet Rabb, who represented the women employees. Grueling depositions, unmerciful invasions of both sides’ privacy, and staggering expenses helped turn the atmosphere at the paper "poisonous". The thought of going to trial "scared the socks off" both Rabb and her opposite number, Times lawyer Kathy Darrow: "We knew that people were going to get up on that stand and say terrible things about each other in public," said Darrow. "....Even taking the depositions, people cried, people were devastated, and there was nobody there but the lawyers to hear them."

If it were up to me, I’d tuck a story like that into the back of all the enthusiastic how-to-sue manuals, where it would make a much-needed "pocket part".

Review of Marcia Angell, Science on Trial

[Originally appeared in National Review, Nov. 11, 1996].

In recent years leading medical researchers have come out with big studies finding -- contrary to what we were told in one of the great scare campaigns of modern times -- no link between silicone-gel breast implants and the rate at which women contract diseases such as scleroderma, rheumatoid arthritis, and lupus. As PBS's Frontline summed up the data, "Women with implants do not have measurably different health from women without implants." Millions of women were badly scared, it seems, for nothing. As Gilda Radner used to say, "Never mind."

In a rational world this news would have been followed first by a huge sigh of relief, then by a round of apologies, and soon thereafter by some quiet retirements from public life. First to apologize would be the trial lawyers who stoked the panic at every stage, recruited tens of thousands of anxious women (1-800-RUPTURE was one hotline), filed lawsuits on their behalf that often shared the same typos, bankrupted formerly healthy Dow Corning, and pocketed millions in contingency fees from the resulting jury awards.

Next in line to offer regrets would be various figures manipulated wittingly or not by the lawyers. Connie Chung, who touched off the big panic in a 1990 CBS news show, would send a producer to accept a Golden Oops statuette. Food and Drug chief Dr. David Kessler would quit after squirming before a congressional committee probing his decision to order the devices banned. Public Citizen, the Ralph Nader operation that sedulously spread the scare, would shamefacedly halt its sale of implant-litigation kits to trial lawyers and disband its clearinghouse for implant law firms; and its spokesman, Dr. Sidney Wolfe, would find his card tossed from many a press Rolodex.

Of course this is America in the 1990s, so none of this happened. The lawyers and Public Citizen simply denied everything; Dr. Kessler dodged; Miss Chung's producers had long since moved on to other projects. Studies or no studies, some juries -- enough to keep the game highly profitable -- go right on awarding damages; one in Nevada awarded $ 14 million.

As executive editor of the nation's leading medical journal, the New England Journal of Medicine, Dr. Marcia Angell published the pioneering Mayo Clinic study finding no link to disease. "Almost immediately," she relates, "I received phone calls from reporters who had spoken with plaintiffs' attorneys eager to discredit the Mayo Clinic, the New England Journal of Medicine, and me personally." Soon the lawyers were aiming punishing subpoenas at her and at Mayo's Dr. Sherine Gabriel.

Bad move. Provoked, Dr. Angell has now written a damning book about the whole implant scandal, on top of the damning journalistic exposes that have been running lately in places like the New York Times, Fortune, Discover, Reason, and the editorial (but not news) side of the Wall Street Journal.

Dr. Angell writes with quiet authority on the medical issues, detailing the lawyers' retreat "bunker by bunker" to claims quite different from those they made at first. She notes that while studies based on health records before the panic indicate zero effect, those drawn from later records are inevitably skewed by the panic itself toward finding the publicized (self-reported) symptoms; lawyers have seized on this effect hoping to keep the debate open. Dr. Angell also disposes of the claim, much bruited about in letters to the editor, that the researchers forgot to check for new patterns of "atypical" auto-immune or connective-tissue illness.

Though Dr. Angell strives for a sober and analytic tone, human drama keeps nosing in. A Texas woman doesn't believe herself ill but says "my family will kill me" if she doesn't file a claim. Dr. Angell blasts "blatantly unethical" members of her own profession who assist the lawyers by running diagnosis mills. One Texas doctor makes $ 2 million a year certifying illness in implant recipients, more than 90 per cent of whom come in as lawyer referrals. A diagnosis in hand "is of great value to your claim," his brochure explains; "the manufacturers (and frankly, jurors) value a woman's case much lower" without one. Other doctors proceed to "unnecessary, costly, and sometimes risky treatments" such as dosing patients with steroids; one woman was put through $ 90,000 of hospitalization and $ 10,000 a month in therapy.

Before the studies came out several manufacturers had agreed to settle for a numbing $ 4 billion, including $ 1 billion in fees for the lawyers. The terms were generous: for example, as Dr. Angell notes, "a woman could claim joint and muscle aches, disturbed sleep, fatigue, and burning pain in the chest, none of which can be objectively verified by her doctor or anyone else, and collect up to $ 700,000." Lawyers surprised even themselves by recruiting hundreds of thousands of women claiming compensable illnesses, and the $ 4-billion deal collapsed as too _low_.

New to the subject of lawsuit reform though she may be, Dr. Angell offers generally excellent proposals, emphasizing rules that would exclude unreliable expert testimony -- "junk science" -- from court proceedings. (Trial lawyers have fought such rules, with help from Harvard's Laurence Tribe and some other academics.) Though silent on loser-pays, she puts her finger on our sore lack of ways to bring lawyers' incentives into line with society's. Other businesses tempted to violate ethical rules, she notes, risk losing customers and getting into trouble with the law. "Plaintiffs' attorneys are not similarly restrained. Their clients gain right along with them, and they are not only acting within the law, but using it as an instrument." Perhaps contingency fees "should be forbidden in this country, as they are elsewhere."

In an arresting passage, Dr. Angell writes of how she views herself as a feminist and "liberal Democrat . . . quick to see the iniquities of large corporations. I disclose my political philosophy here, because it did not serve me well in examining the breast-implant controversy. The facts were simply not as I expected they would be." But "my most fundamental belief is that one should follow the evidence wherever it leads." Whether silicone causes disease "is not ultimately a matter of opinion or legal argument; it is a matter of biological fact."

Capitol Hill bully John Dingell finally ran aground when he began casually defaming the respected liberal scientist David Baltimore. Let's hope this book marks a similar turning point.

April 8, 2006

Don't Steal This Book

[Review of Property Matters by James V. DeLong. Originally appeared in the Wall Street Journal, April 2, 1997]

In Schiller’s William Tell, the rural Swiss realize their ancient liberties are in danger when the new bailiff rides up to accost one of them for the offense of erecting a dwelling on his own land. “I am the Regent in the Emperor’s stead/And will not have the peasants building houses/Of their own will and living lives as freely/As if they were the masters in this country.” Before long, the villagers fear, the new overlords will turn their very forests and meadows into game preserves for the amusement of courtiers from the city.

Today it’s routine to read of a landowner denied permission to build a house, lay down a gravel path or rebuild an embankment. Much of rural America is in open revolt against the laws that require such permissions. Yet environmental spokesmen still profess to believe that developers are just pulling strings to simulate discontent. “To this day,” writes James V. DeLong, “neither environmentalists nor government officials seem to understand the anger of the landowners.”

They’ll have a better clue if they read Property Matters: How Property Rights Are Under Assault and Why You Should Care (Free Press, 390 pages, $27.50). Mr. DeLong, a Washington lawyer, aims to persuade his word-pushing neighbors that we all share a stake in safeguarding property against arbitrary confiscation, even if we hold assets in less earthbound forms such as pensions, condos and copyrights.

The federal laws and regulations preserving wetlands and endangered species, observes Mr. DeLong, fit a pattern. Preservationists identify some good or amenity that an affluent society might wish to buy more of. The next step is to draft laws simply commanding owners to go on providing it, often barbed with criminal penalties. Perusing testimony on the wetlands program, Mr. DeLong finds one witness after another assuming that if he has shown that swamps or tidal marshes are ecologically valuable, he's proved the case for ordering their owners to maintain them forever at whatever sacrifice. “The equivalent would be for an admiral to say that because the United States needs a navy, the government can take your land for a dockyard without paying you.”

It used to be that Uncle Sam would buy land when he expanded a national park or set aside a wildlife refuge. That’s the method contemplated in the Bill of Rights, whose Fifth Amendment reads, in part, “nor shall private property be taken for public use without just compensation.” Now officials have learned the trick: leave title with the owner and freeze use. Does the plot’s value fall by 50% or 95% once its owner is forbidden to do much more than hike on it? Tough: Absent physical invasion there’s been no taking, so not a dime is owed. Or that’s what officials keep arguing with a straight face.

For some decades the Supreme Court banished the takings clause to what Judge Douglas Ginsburg has termed the “Constitution in exile” -- i.e., provisions too inconvenient to the modern state to enforce. In 1987, however, the landowners began winning a series of victories. Yet the court has declined to correct the regulators’ overreaching interpretions of their legal charters.

The law bans taking an endangered creature, which is now absurdly read to forbid altering habitat, very loosely defined: No trace of the species need ever have been seen on a property, for instance. Congress’s right to regulate the filling of navigable waters has spawned a wetlands program that reaches, according to a former regulatory chief of the Army Corps of Engineers, “depressions in corn fields, hundred-year floodplains, pastures and meadows, dry woods, weed-covered vacant lots, moist tundra, winter-wet grassland depressions, pine-palmetto flatlands, and dry desert washes.” Drafters of regulations, says Mr. DeLong, actually prefer vague prohibitions that force landowners into negotiations in which the agency bargains from strength. One result has been a huge transfer of power and wealth to lawyers on both sides.

A skilled explainer, Mr. DeLong sets himself a handicap by putting much of his drier material into his first hundred pages. He goes on to tackle an encyclopedic range of issues, from public-land grazing and forestry to irrigation and zoning. Though packed with valuable information and analysis, these sections also permit passion to dissipate, and by the time the author gets to intellectual property (where he finds the law in relatively good shape) readers may sense topic sprawl.

Having to pay for takings, suggests the author, imposes both a pragmatic and a moral discipline on those who wield power. “If you must pay, then it forces thought about what is really valuable and what is not. If the property is free, the outcome is obvious: take everything you can get your hands on.” As for the moral side of things, well, trading is ethically superior to stealing. “The pro-property forces should stand firmly where they belong, on the moral high ground.”

February 2, 2006

Why Business Loses In Court

[originally appeared in Fortune, May 23, 1988]

Evita Peron, if one believes the stories, used to carry out a rousingly popular form of case-by-case wealth redistribution. On her radio program she would field pathetic calls from destitute widows and Buenos Aires slum dwellers. Then she would call merchants more or less at random and order them to send a refrigerator or stove to the needy household. The voters loved it.

Richard Neely is in a similar line of work. He is a modern judge. "As a state court judge," he reports, "much of my time is devoted to designing elaborate new ways to make business pay for everyone else's bad luck." He is happy to sustain an award of several hundred thousand dollars against the Michelin company even though the one-car crash in question was of "unexplainable" origin. After all, "Michelin will somehow survive (and if they don't, only the French will care), but my disabled constituent won't make it the rest of her life without Michelin's money."

The unsettling thing here is that for all his willingness to plunder a possibly innocent defendant, Neely is no cardboard demagogue. Far from it: He is thoughtful and well informed, in no way hostile to business, and keenly aware that "my microproblem as a judge who wants to sleep at night has begun to create a macroproblem for the entire economy." He explores this clash between his private incentives as a judge and society's well-being in The Product Liability Mess: How Business Can Be Rescued From the Politics of State Courts (Free Press, $24.95). The prolific judge (author of How Courts Govern America and Judicial Jeopardy) is in his best writing form. He lays out his dilemma with clarity and wit, not to mention a candor that begins on page one and never lets up.

Lawsuits alleging injury by products, Neely explains, typically pit a hometown consumer against an out-of-state manufacturer and insurer. The one who benefits from an award is a neighbor, right there in the courtroom; the potential losers are anonymous workers, investors, and managers from all the far corners of the earth, hidden behind the insensate mask of the Michelin Man or some other corporate symbol. Neely says state judges would have trouble getting reelected or reappointed if they tried to be entirely impartial between the home team and the visitors. Instead they develop a sense that it's their duty to help out their local "constituents."

This strong incentive to bestow mammoth awards is not offset by any disincentive. Dishing out home cooking to an auto accident victim in West Virginia courts will not necessarily raise prices at Wheeling tire stores. Reason: If manufacturers charge a higher price in one state to cover that state's known propensity for lawless verdicts, middlemen will simply bring lower-priced stocks in from neighboring states. So the most pro-plaintiff states will get a free ride as big liability verdicts are in effect paid by consumers nationwide. Imagine Evita's success if she could have helped her followers in Argentina by zapping merchants in Uruguay and Brazil. Of course, other states eventually catch on and try to get ahead of the pack with their own increasingly pro-plaintiff laws and pro-plaintiff rulings -- what Neely calls "the race to the bottom."

Even if a state does adopt a self-denying rule refusing liability, its citizens can take advantage of the more generous laws in other states through so-called forum shopping. Suppose just one state -- say New Jersey -- accepts the theory that tobacco companies are liable for tobacco-caused damage to their customers' health. Then tobacco companies can expect to face suits not only from current residents of New Jersey but also from those who work there while living elsewhere, and those who used to live or work there. Add to that people in distant states who perhaps smoked cigarettes made there and many others who can claim some arguable "nexus" with the Garden State -- maybe conductors who smoked regularly on Northeast corridor trains, or Delaware radio fans who heard Winston jingles played on Jersey stations back when. Some smokers will even move into the state in order to sue. The propensity of plaintiffs to head for happier hunting grounds -- what writer Peter Huber has called the have-lawsuit, will-travel syndrome -- is another reason the most pro-plaintiff states tend to set the pace for the whole nation, while pro-defendant states can find their laws a dead letter.

BUT ISN'T TORT REFORM -- the rewriting of often old laws concerning injury and damage -- supposed to be making the law more reasonable? Maybe, but there's a small problem. The folks who get to implement tort reform are the same ones it is meant to constrain: the judges on state courts. As skilled lawyers, they know a hundred ways over, under, and around mere parchment barriers. Have lawmakers limited awards for such noneconomic harm as emotional distress? Make way for creative new claims of economic injury. Does the law exclude liability for obvious hazards? The meaning of that term is, well, less than obvious. And jurists can always throw out tort reforms as contrary to their state constitutions, a tactic by which they disposed of many of the medical malpractice reforms of the 1970s.

The only ones who can stop the race to the bottom, in Neely's view, are the federal courts, which do not answer to an electorate. He believes the federal courts should simply seize control of product liability law. This display of jurisdiction-grabbing might be as audacious as anything the states themselves have done, but Neely does not shrink from the charge of judicial activism.

WOULDN'T A FEDERAL role in tort law mean sending every barroom brawl and fender-bender to an expensive and often distant U.S. courthouse? Not to worry, Neely says. Federal judges wouldn't handle most cases themselves; they would just review what state courts have done, now and then proclaiming a broad new principle or correcting an outrage of the Pennzoil variety, much as they oversee the workings of state criminal law under the Warren Court decisions of the 1960s (an analogy in which many conservatives will not take comfort). Any number of issues could serve as entering wedges for the federal supervision Neely seeks, including a case this term in which the Supreme Court is expected to decide whether a state's punitive damage awards can ever be so outrageous as to be unconstitutional.

Although Neely eschews high theory in favor of his own brand of pragmatism, many academics share his interest in correcting the system's externalities -- the misplaced incentives that encourage states to try to live at one another's expense. But few seem prepared to go as far as he toward wholesale federalization. Some are looking for the least restrictive ways of restoring proper incentives to states. Edmund Kitch of the University of Virginia suggests a general law permitting manufacturers to opt out of notorious liability states: By stamping "not for sale or use in Texas" on their products, they could escape that state's law. Michael McConnell of the University of Chicago wants to reduce the scope of forum shopping by returning to so-called choice-of-law rules, such as "the law of the place of sale governs." They have generally been part of common law and have been worn away by court rulings.

It is worth paying attention when a leading state court jurist asserts that he and his colleagues are really not up to the task of exercising the vast redistributive powers they possess. After this stop-me-before-I-rule cry for help, not many readers will remain confident that the current system can deliver the right legal answers on product liability.

One might wish, however, that the author did not share quite so many of the assumptions of the system whose workings he explains. For all that he (like most people) is troubled by the obvious excesses of the liability revolution, his critique is narrow: Just call off the states' race to the bottom, and the runners will take care of themselves. Sharing as he does the widespread view that judges are no more than politicians in robes, he merely wishes to widen, from the state to the nation, the circle of constituents whose interests they consult in making decisions. That is not really the same thing as doing impartial justice.

January 13, 2006

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

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.

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.