Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law

—————————————————————————————
Books

• Cantor, Norman F. Imagining the Law: The Common Law and the Foundations of the American Legal System. Reviewed by Justice Christine M. Durham (Utah Supreme Court).

• DiFonzo, J. Herbie. Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth-Century America. Reviewed by Judge Richard Ross (New York City Family Court).

• Drachman, Virginia G. Sisters in Law: Women Lawyers in American History. Reviewed by Judge Barbara J. Rothstein (U.S. District Court, Western District of Washington).

• Perry, Michael J. The Idea of Human Rights: Four Inquiries. Reviewed by Judge Dorothy Toth Beasley (Georgia Court of Appeals).

• Posner, Richard A. The Federal Courts: Challenge and Reform. Reviewed by Judge Jon O. Newman (U.S. Court of Appeals, 2^nd Circuit).

• Schabas, William, editor. The International Sourcebook on Capital Punishment. Reviewed by Judge Rosemary Barkett (U.S. Court of Appeals, 11^th Circuit).

• Tushnet, Mark V. Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991. Reviewed by Judge Nathaniel R. Jones (U.S. Court of Appeals, 6^th Circuit).

• Urofsky, Melvin. Division and Discord: The Supreme Court Under Stone and Vinson, 1941-1953. Reviewed by Justice Susan M. Leeson (Oregon Supreme Court).

Judge Posner's Crisis Recedes
by Jon O. Newman

The Federal Courts: Challenge and Reform
Richard A. Posner
Cambridge, MA: Harvard University Press, 1996
Cloth: $37.50
Pp. xvi, 413

The second edition of Chief Judge Richard A. Posner's "The Federal Courts" has abandoned the 1985 subtitle "Crisis and Reform" and substituted the more circumspect "Challenge and Reform." Whether or not the earlier perceived "crisis" is now properly regarded only as a "challenge," Posner's prescriptions for "reform" remain largely unchanged—insightful, well argued, and modest in scope. My principal criticism, and the only point worth advancing in the limited space of this review, is that his jurisdictional proposals are grounded on an abiding faith in efficient market theory that some will find unpersuasive as applied to the federal judicial system.

Posner initially provides a detailed and thoughtful description of the federal courts, their caseload, their personnel, and the steps they have thus far taken to handle increasing volume. His downgrading of the "crisis" stems from the fact that district court filings in 1995 were no higher than in 1988, and court of appeals filings, though rising rapidly in recent years, were no higher in 1995 than in 1993. Posner thinks both levels of court are doing reasonably well, and that caseload growth is "not inexorable" (p. 84). I fear he may be assuming that all one thousand of his colleagues are functioning with the same superior intellectual and writing skills that he displays, seemingly so effortlessly. My perception is that the federal courts, especially the appellate courts, are struggling mightily to keep up with crushing volume, that they are using highly undesirable short-cuts to move their business, and that future caseload growth is both inevitable and, unless somewhat redirected to state courts, a distinct threat to the essential nature of the federal court system.

Posner’s "Palliatives" & "Reforms"

Turning to "reform," Posner identifies seven measures he calls "palliatives" and some broader proposals packaged in what Part IV rather enthusiastically calls "Fundamental Reform."

The palliatives, only some of which he endorses, are increased filing fees, abolishing or limiting diversity jurisdiction, better management, required use of ADR techniques, "reforming" the bar (by instituting a "loser pays" rule and abolishing contingency fees) so that lawyers will more prudently decide whether to sue, specialized appellate courts, and reducing the extent of administrative review in appellate courts.

The three chapters of his "Fundamental Reform" part are a curious mix of modest proposals and insightful comments. First, he recommends a reallocation of business between state and federal courts based on his efficient market model of federalism. But this reallocation turns out, as he acknowledges, to have little effect on federal court caseloads because it takes out some types of cases and puts in others. Moreover, both the author and the reader are left unsure of the net result because neither knows how many cases would likely be in the categories identified for shifting.

Second, he usefully contributes to the age-old dialogue concerning principled adjudication, especially its nature in the critical areas where text, precedent, and other authoritative guides are lacking. In the process, he helpfully clarifies the various senses in which "judicial activism" can be understood, urging judicial restraint primarily in the sense of courts’ limiting their assertion of authority against other branches of government.

Third, he offers some mild advice to district and circuit judges to improve their "judicial craft," and some structural alterations such as immediate appeal of all class action certifications. I particularly liked his advice to appellate judges to prune their opinions of useless fact recitations, boiler-plate legal propositions, and string citations, and to expand their often sparse discussion of reasoning.

"Marketing" Judicial Power

Central to his caseload reallocation recommendations is the economist’s religious faith in efficient market theory. Though I do not doubt his premise that "people, including judges, act in accordance with their rational self-interest" (p. 276), I am skeptical that they do so all the time, or that they always have an adequate basis to perceive and properly assess what is in their "rational self-interest."

Posner seems convinced, however, that market theory always works and that social policy can sensibly be evolved by applying his convictions. Thus, for example, when he considers the appropriate allocation of judicial power between the states and the federal government, he starts with the observation that people dissatisfied with their state government can (will?) move to another state, whereas dissatisfaction with the federal government is less likely to impel emigration abroad. From this premise, he concludes that a powerful independent judiciary as a means of checking governmental power is less important at the state level (p. 277). I would have thought that climate, job opportunities, tax policy, and quality of life considerations affect most people’s choice of residence far more than their perception of the extent to which a state's courts are adequately checking other branches of state government.

The "vote with one's feet" approach (p. 277) then explicitly animates at least part of his approach to the allocation of cases between state and federal courts. For example, he worries that if diversity jurisdiction were abolished, people might be deterred from visiting a state "because its tort rules, as applied, are stacked against nonresidents" (p. 281). He also worries that if some cases under the Federal Tort Claims Act were placed in state courts, a state court judge might lean toward deciding a postal truck injury case in favor of a local resident, both to favor the resident and to spread the cost of the judgment among the taxpayers of all the states (p. 283). He even worries that if mail-order pornography cases were prosecuted in state courts, a local judge will punish a resident distributor of mail-order pornography less severely than a federal judge because "the producing state [sic] obtains all the income and bears none of the costs" (p. 284).

Market Theory Doesn’t Always Sell

Even if these "interstate externalities" (p. 288) have some appropriate bearing on the allocation of business between state and federal courts, I doubt if they can possibly bear the weight Posner places upon them.

In some instances, his reliance on economic theory yields recommendations that are startling. Commenting on the rise in federal court caseloads, for example, especially at the appellate level, he points out that those who administer the court system have been reluctant to take one of the obvious steps to reduce demand for judicial services—impose delay. Even if he is right that deliberately lengthening the time for the federal courts to dispose of a case (the 1995 average time from district court filing to court of appeals disposition was 24.7 months) would decrease the caseload, he seems to be concerned only with one consequence. "The problem with delay as a remedy for a heavy caseload is that evidence tends to decay." (p. 209). In fact, this is a rather minor problem, since documentary evidence does not decay, and oral testimony, at least in civil cases, may be preserved in depositions. Absent from his analysis is any consideration of the societal costs of deliberately delaying the resolution of court disputes. Yet later on he acknowledges: "Litigants have an individual as well as a collective right to the reasonable dispatch of their lawsuits." (p. 223).

The basic issue raised by this book, and by other writings of the true believers in market economics, is whether important questions of public policy should be based heavily on what economics has to teach. The premise of the argument is that people act rationally, and therefore we can always figure out what consequences will flow from changes in policy. But even Posner's data reveal this is often not so. He hypothesizes, for example, that if the number of federal and state court decisions reviewable by the Supreme Court becomes so great that there is only an infinitesimal probability of the Court's granting review in a given case, "most applicants will be discouraged." (p. 83). In fact, however, the declining rate of Supreme Court review in recent years (about one percent in 1995) has been accompanied by an increase in the number of cases in which review is sought. Apparently, most applicants are not discouraged.

Despite my restrained enthusiasm for an economics approach to all legal issues, I urge every thoughtful student of the federal court system to read and reflect deeply upon what one of our most outstanding federal judges has to say on systemic matters he has considered as carefully as any commentator in the field.

Judge Newman is a senior judge of the United States Court of Appeals for the Second Circuit. He has been a federal judge for 26 years. As Chief Judge of the Second Circuit from 1993-97, he served with Judge Posner as a member of the Judicial Conference of the United States.

———————————————————————
A Global View of the Death Penalty
by Rosemary Barkett

The International Sourcebook on Capital Punishment
William A. Schabas, editor
Boston, MA: Northeastern University Press, 1997
Cloth: $58.50
Pp. xi, 261

The popular debate on capital punishment in the United States has often suffered from a lack of dimension. Generally, the debate has been circumscribed by the tendency to consider the death penalty from an isolationist and nationally egocentric view, and to limit the content to the emotionally charged and temporal considerations of specific crimes and the concomitant concepts of retribution and vengeance. Placing the death penalty in international and historical contexts permits us to view the questions affecting that debate in much broader policy terms, and enables us to consider the weight to be accorded other universal values over and above the transitory gratification of vengeance.

The research task of accurately placing the death penalty in these contexts, however, has appeared somewhat daunting to ordinary practitioners who do not exclusively practice death penalty law, or to those who are unable to comb through a multitude of sources. The International Sourcebook on Capital Punishment has made this task an easy one. The Sourcebook is the initial volume of a projected continuing yearbook on capital punishment undertaken by the Center for Capital Punishment Studies of the University of Westminster, London. The book consists of four sections: (1) Articles, (2) Book Reviews, (3) Documents, and (4) International Statistics on Capital Punishment.

Death Penalty in America, Africa & Europe

In the Articles section, the Sourcebook presents three comprehensive essays covering the status of capital punishment around the globe. In the first, "Legalized Lynching," Stephen B. Bright (Director of the Southern Center For Human Rights in Atlanta, Georgia) reviews the history and application of the death penalty in the United States, primarily in terms of race. Bright initially notes that, after invalidating the death penalty in 1972 in Furman v. Georgia (1972), the Supreme Court upheld the reinstitution of the death penalty in Gregg v Georgia (1976) under statutes that would ostensibly correct arbitrariness and discrimination against racial minorities and the poor, factors which had contributed to the decision in Furman. He then reviews the historic relationship between racial violence and the death penalty in the United States, and examines the various ways racial bias continues to influence the process by which defendants are chosen to receive the penalty. Finally, he evaluates the use of the death penalty in the years after Gregg, and finds that state legislatures and courts have been unsuccessful in eliminating racial discrimination in capital cases.

In the second essay, "African Perspectives on the Abolition of the Death Penalty," William A. Schabas (Professor and Chair of the Département des sciences juridiques at the Université du Québec á Montréal) surveys the status of capital punishment in Africa. Taking the continent by regions, Schabas reviews the history of the abolition process in some countries and the continued application of the death penalty in others. He weaves historical references into his narrative—noting, for example, that capital punishment as we know it was not indigenous to Africa, but was introduced by the colonial powers. Such references provide a broader perspective on the issue of capital punishment in a continent in which a significant number of countries, though replete with human rights violations, have at the same time eliminated the death penalty, either de facto or de jure. Finally, Schabas reviews in detail the recent decision of the Constitutional Court of South Africa abolishing the death penalty as incompatible with South Africa’s interim constitution. While all eleven Justices of the Constitutional Court agreed that the death penalty was unconstitutional, each Justice wrote a separate opinion advancing a variety of reasons for his or her conclusion. Schabas summarizes the Justices’ views and evaluates those views in terms of what he perceives as a projected trend toward death penalty abolition in all of Africa.

In the third essay, "Death Penalty Developments," Eric Prokosch (Theme Research Coordinator for Amnesty International in London) examines capital punishment developments primarily in Europe. He reports on the total elimination of capital punishment in Italy and Spain in 1994 and 1995, including its abolition from even the Military Penal Codes of both countries. In this, Italy and Spain follow in the footsteps of Austria, Finland, Sweden, Portugal, Denmark, Norway, the Netherlands, New Zealand, Switzerland, and Greece. In contrast to these developments in Europe, Prokosch then considers the expansion of the death penalty in other countries, such as Lebanon and Nigeria. Moreover, he examines its expanded use in the United States for some sixty new offenses, including offenses other than homicide, under the Federal Death Penalty Act of 1994. Finally, he discusses recent signatories to International Treaties on the death penalty, and describes important developments in several intergovernmental organizations.

The Balance of the Book

The second section of the Sourcebook is composed of four reviews of current books on the death penalty. These books range from a history of the death penalty in Texas, to a case study involving the death penalty and the mentally retarded, to a collection of essays written by a death row inmate.

The Documents section features various relevant transcripts, resolutions, and judicial opinions of international bodies. Included are excerpts from the United Nations Security Council Meeting adopting the International Tribunal for Rwanda, which formally excluded the death penalty from the permissible sanctions in cases of convictions for genocide or other war crimes; a judicial opinion from the Court of Appeal of Trinidad and Tobago, addressing the question of whether prolonged detention on death row constitutes inhuman and degrading treatment; and the Reservation clause concerning the death penalty by the United States in ratifying the International Covenant on Civil and Political Rights. Perhaps the most interesting document in this section is the extensive excerpt from the opinion of the President of the South African Constitutional Court striking down that country’s death penalty as unconstitutional. This remarkable opinion, in itself, provides a comprehensive analysis of the arguments for and against the death penalty—all against a backdrop of history, the use of the death penalty in other countries, its treatment by international tribunals and human rights organizations, and its place in the popular view.

Going Beyond the Superficial

This is an extremely helpful, if not indispensable, book for practitioners in this area of law and for anyone wishing to inform his or her jurisprudential view of the death penalty. This collection shows that, notwithstanding differences in cultures and in history, the concepts and the values involved in this debate are universal. The constitutional text in America may be the prohibition against "cruel and unusual punishment," while in South Africa it is the prohibition against "physical, mental, and emotional torture" and against "cruel, inhuman, and degrading treatment and punishment." Universally, the texts of all national and international documents affirm the sanctity of life and each individual’s right to it, as well as the respect demanded for and the need to protect human dignity. It is striking that so many countries with differing geographical, cultural, and historical backgrounds have concluded that the right to life and human dignity requires the abolition of the death penalty.

There is great value in a compendium such as the Sourcebook which enables us to view the death penalty in a global way, providing us with the thoughtful evaluation undertaken by so many nations that have suffered from internal violence, class struggles, and oppression. As we are likewise faced with our own problems of race, violence, and class, we can gain from their perspectives on the compatibility of the death penalty with the universal values of life and human dignity. Professor Schabas’s works go a long way toward informing our debate and elevating it beyond the superficial.

Rosemary Barkett has served as a judge on all levels of the Florida State courts, including the Florida Supreme Court. On July 1, 1992, she became Florida’s first female Chief Justice. She is currently a Circuit Judge on the U.S. Court of Appeals for the Eleventh Circuit.

Editors’ Note: Professor Schabas has also recently updated his book, The Abolition of the Death Penalty in International Law (Cambridge University Press, 2nd edition 1997) (paper: $39.95; pp. xii, 474). This second edition of his work, which studies the abolition of the death penalty in international law, exhaustively describes many international declarations and treaties supporting his thesis of eventual global abolition of the death penalty. His work also includes extensive appendices containing many of the essential documents for the study of capital punishment in international law.

———————————————————————
Time To Redress "Naked Divorce"
by Judge Richard Ross

Beneath The Fault Line:
The Popular and Legal Culture of Divorce in Twentieth-Century America
J. Herbie DiFonzo
Charlottesville, VA: University Press of Virginia, 1997
Cloth: $29.50
Pp. xiv, 248

A cultural and legal history of divorce must, of course, trace the history of marriage and family, as Hofstra University Associate Professor of Law J. Herbie DiFonzo illustrates clearly in this well-written account. In the case of Twentieth-Century American marriage, the story revealed is the development and ironic aftermath of the Twentieth-Century American Right to Happiness.

Professor DiFonzo takes a deft cruise through these troubled waters. He tours familiar ports of call, among them the early-century sea change from divorce as disgraceful, even evil, to divorce as respectable; the cynical, sometimes farcical ways in which the so-called "fault" divorce grounds of adultery, desertion, and cruelty operated in practice as consensual divorce; the shift from fault to no-fault divorce, including experiments with incompatibility and living apart grounds; and post-World War II mandates for conciliation and counseling ("therapeutic divorce") to bring the divorce tide to an ebb.

Finally, Professor DiFonzo examines California no-fault, which he argues convincingly was a failed conservative attempt to check divorce. As the law was envisioned, pleadings and court jargon would be non-adversarial. A California spouse would have to present substantial reasons for ending the marriage. In order to promote marital healing before deciding to grant dissolution, the courts would apply counseling, social work, and sensitive judicial scrutiny of the history and state of the marriage. So much for theory. Instead, California’s trial courts made automatic grants of divorce for irreconcilable differences—the substitution of divorce on demand for divorce by mutual consent.

Nearly all of this is well-known history, though only several times set forth previously in one volume. Adding particular worth to this well-constructed survey are Professor DiFonzo’s smooth writing style; his apt, entertaining draws from popular periodicals and books to portray the cultural history; and a rich, sixty-four page section of notes to the text.

Divorce at the Millennium

The most salient fact is that Americans finished with their marriages in this century have always managed to divorce, no matter the legislative or appellate barriers that happen to be in fashion. If, as Professor DiFonzo asserts, "naked divorce" has gone too far, then American trial judges are as responsible as anyone. "Let the perjury begin," Professor DiFonzo reports one judge as wont to intone at the outset of each day’s fault-divorce calendar. On its most superficial level the story is amusing, as with an appellate justice who describes a proceeding that resulted in his being "one of the few lawyers in California who ever succeeded in losing a divorce case."

Yet this is serious stuff: a court culture that consistently winks at perjury and rubber-stamps the applications of litigants. And more serious still when divorce and the family are at issue, since matrimonial judges more routinely than most trial judges sit where the buck stops. The language of family law provides broad latitude in application; domestic relations cases frequently turn on credibility assessments that are rarely disturbed by appellate review.

Judges who preside regularly over divorce proceedings and, more particularly, their custody, visitation, support, and domestic violence case progeny, understand too well the severity of the related pathology and the damage done—especially to children and to women with limited financial potential. In all likelihood, the trial bench by now has acquired a dim view of the American cultural ethos of Personal Fulfillment and its requirement, when a marriage falters, for automatic divorce so that the quest for fulfillment can begin anew. Too much "real, adverse, gut-wrenching" litigation, as Professor DiFonzo describes it, has passed through the courts to permit anyone to pretend that the assertion of the right to be happy has yielded the desired result. Rather, the judiciary’s role in "naked divorce" more likely reflects a diminution of judicial autonomy, a sense of impotence among the trial bench over its ability to shape cultural norms and values regarding divorce and related family issues.

In Beneath The Fault Line’s too-brief Epilogue, Professor DiFonzo calls for a "new legal and cultural matrix on marriage and divorce" and hints that current proposals to replace no-fault and fault divorce with provisions involving mutual consent, separation periods, and mediation efforts may point to a better way. Certainly, trial judges, if they choose, can have great impact on the development and enforcement of new divorce legislation and court rules. Societal forces will continue to emerge outside of the legal arena. Whatever the outcome, the evolution of personal morality, cultural values, the law, and judicial behavior to define marriage, family, and divorce will continue to be a vital and fascinating story.

Richard Ross is supervising judge of the Manhattan Family Court in New York City and the author of A Day in Part 15: Law and Order in Family Court (Four Walls Eight Windows, 1997).

———————————————————————
Portia’s Progress
by Barbara Jacobs Rothstein

Sisters in Law: Women Lawyers in American History
Virginia G. Drachman
Cambridge, MA: Harvard University Press, 1998
Cloth: $35.00
Pp. 384

In a methodically researched book, Tufts University historian Virginia Drachman vividly recreates the American women’s crusade to enter the legal profession. The 1990s provide an interesting vantage point from which to view the history of women lawyers in America. Two women sit on the Supreme Court. A number of women sit on federal and state benches. Women comprise up to fifty percent of some major law school classes. And Secretary of State Madeline Albright and Attorney General Janet Reno hold two of the most powerful cabinet positions.

In contrast to contemporary assumptions about women’s access to professional positions, Professor Drachman’s recitation of obstacles facing women who entered the legal profession from the 1860s to the 1930s leaves one with a sense of astonishment. Sisters in Law recreates the world in which women battled for admission to law schools and the bar. Set against a backdrop of constant social, political, and economic upheaval, Drachman’s women lawyers are products of and catalysts for these changes.

The tenacity of the first women lawyers was, indeed, remarkable. In the 1860s, women lacked the most basic rights of citizenship. Women could not vote, own property, sit on juries, or form contracts. It was not surprising that women’s efforts to enter the legal arena were greeted with ridicule, hostility, and moral outrage.

The world of lawyers was uniformly male. Women’s attempts to enter the profession were perceived as nothing less than subversion of the established order. In rejecting Lavinia Goodell’s application for admission to the Wisconsin bar (1875), the state’s Chief Justice Edward G. Ryan succinctly defined a woman’s "place" in that order. "The natural law," he explained, "destines and qualifies the female sex for the bearing and nurture of children of our race and for the custody of the homes of the world and their maintenance in love and honor." But there was more than just the view that law itself was inappropriate for women. Victorian America subscribed to the notion that there were separate spheres for men and women. These spheres were viewed as predetermined by women’s emotional nature: their inability to reason and their needs for domesticity, motherhood, and male guidance or protection.

"We don’t because we don’t"

The philosophical and moral trappings in which discrimination against women lawyers presented itself neatly parallel similarly reasoned justifications of slavery—the citing of physiological and emotional differences between the races. As with the rationalization for denying rights to African-Americans, Drachman points to the unabashed acceptance of the status quo by the greatest legal minds of the time. She documents the opposition of many influential judges and lawyers to admitting women into the profession and their failure to see any inconsistency between denying the female half of the population entry into the law-making process and the American ideals of democracy and equality.

Rather than demonizing the detractors faced by early women lawyers, Professor Drachman lets them speak for themselves. And speak they do. George Templeton Strong, a trustee of Columbia College and a founder of that school’s legal academy, opined in his diary: "Application from three infatuated young women for admission to Law School. No woman shall degrade herself by practicing law, in N.Y. especially, if I can save her. I think the clack of these possible Portias will never be heard in Dwight’s moot courts. Women’s Rights—women are uncommonly loud & offensive of late. I loathe the lot." Drachman also includes Harlan Stone’s explanation of why he, as dean of Columbia Law School, refused admittance to women: "We don’t because we don’t."

Although the first skirmishes to open the legal profession to women played out against the backdrop of Reconstruction, most early women lawyers brought their own social and racial biases with them to the legal profession. Emma Gillett, founder of what is now American University’s law school, embodied the ambivalence of the first women lawyers towards racial integration. Gillett received her law degree from Howard University. Although established to educate newly-freed slaves, Howard was the first law school open to men and women regardless of race, and was the only law school in the District of Columbia open to women. Recognizing the need for additional opportunities for women to study law in D.C., Gillett established an all-women’s law school from which she excluded non-whites. The small number of women lawyers formed their own clubs where they could discuss mutual problems—clubs routinely excluding African-Americans, Jews, and working-class women who attended the night law schools.

"Double Consciousness"

Raised within the Victorian construct of separate social spheres for men and women, the first women lawyers came ill-equipped to define their unique status at the bar. Their correspondence and exchanges demonstrate their confusion about a woman’s purpose and conduct within the profession. Some felt women should limit their practices to causes resulting in social benefits (such as charity cases), to spheres traditionally within women’s domains (such as issues involving families and juveniles), or to the representation of other women in their affairs. Some felt that the public arena of the courtroom was a male preserve where, as Judge Ryan noted, "all the unclean issues of society" lurked, and where murderers and rapists frequented the halls. The transposition of the Victorian theory of separate spheres onto the practice of law ("court practice" vs. "office practice") would ensure the preservation of womanly virtue.

Other women argued for true integration of the law. They entreated their sisters not to be "lady lawyers," but to "simply be lawyers." Women, they felt, should not limit their practices to the womanly domains of elaborately constructed wills and charity work; they should represent business people and corporations. And that bastion of male dominance, that "rough arena of life," the courtroom? Attack it. Make it their own. For these women, the practice of law translated to litigation. This idea was no small matter. Professor Drachman’s accounts of lawyers hurling objects at each other during the heat of trial reminds one of the ferocity of the Industrial Age, of the titanic heat with which industrialists and railroad tycoons fought for supremacy.

Symbolic of women lawyers’ struggle over appropriate practices is the debate over what a woman lawyer should do with her hat when she enters the courtroom. Victorian ladies always wore hats, even indoors. Male lawyers removed their hats in court as a gesture of respect. The dilemma facing female lawyers, then, was whether they should comport themselves exactly like their male colleagues and remove their hats. To do so would be less than ladylike. This "double consciousness," as Drachman refers to it, is also evident in women’s concerns over the proper balance between the demands of a legal career and family obligations. Not surprisingly, the first women lawyers never resolved whether they should be ladies first and lawyers second, or vice-versa. To this day, no woman has found a universal or simple solution to the challenge of balancing the demands of practicing law while raising a family.

Moving Targets

A pattern emerges in Drachman’s book as women progress through different stages of integrating the profession. The first hurdle was achieving state court recognition of women’s rights to practice law. The next was opening law schools to women. With few exceptions, when women finally did go to law school, their choices were limited. The struggle then shifted to gaining access to elite institutions that provided gateways to truly lucrative and influential legal careers. Among elite American legal institutions, Harvard has the dubious distinction of being among the latest to admit women. Not until 1950 did a woman matriculate at Harvard Law School.

The disparity, caused by a constantly moving target, persists. Women have undoubtedly made great strides within the legal profession. One need look no further than the Supreme Court and the Office of the United States Attorney General for proof. Women have done well for themselves in the public sector, becoming judges and high-ranking government lawyers. But they have not, according to the ABA, fared as well in the more lucrative private sector. We are left with the question Drachman poses when she ends her book in discussing the state of women lawyers in the 1930s: Will Portia’s progress ever be complete? Or will the target keep moving?

Portia’s Progress

The strength of Drachman’s book is the breadth and depth of sources she packs into it. Through direct quotations from letters, correspondence, and legal documents of the day, Professor Drachman unveils deeply personal accounts of the first women lawyers, told in their own voices. By including details of the day-to-day, practical challenges these women faced in their crusade for the right to stand at bar, Professor Drachman gives us a rich and balanced portrait of their lives.

Judge Barbara Jacobs Rothstein sits on the United States District Court for the Western District of Washington. She was one of very few women in the Harvard Law School’s class of 1966.

Editors’ Note: In a future issue, Books-on-Law will publish a review by Louise J. LaMothe of Presumed Equal—What America’s Top Women Lawyers Really Think of Their Firms by Suzanne Nossel & Elizabeth Westfall (Career Press, 1998). Also forthcoming is a review by Ruthann Robson of Beyond Portia: Women, Law and Literature in the U.S. (Northeastern University Press, 1997).

———————————————————————
Important Transition, Not-So-Great Chiefs
by Susan M. Leeson

Division and Discord:
The Supreme Court Under Stone and Vinson, 1941-1953
Melvin Urofsky
Columbia, South Carolina: University of South Carolina Press, 1997
Cloth: $39.95
Pp. xv, 298

This book is part of a series on chief justiceships of the United States. Herbert A. Johnson edits the series, which apparently reflects his supposition that "leadership in the person of the chief justice is an essential ingredient of institutional cohesiveness and thus a critical element in the effective conduct of Court business." Urofsky's contribution to the series is an examination of the Supreme Court between 1941 and 1953, the chief justiceships of Harlan Fiske Stone and Frederick Moore Vinson. This period has not received a great deal of attention, Urofsky observes, because it lacked the drama of Roosevelt’s court-packing efforts that immediately preceded it and the judicial activism of the Warren years that followed. Nonetheless, Urofsky argues, the Stone and Vinson courts mark important transitions in Supreme Court history.

Divisive Personalities

The primary focus of Division and Discord is the justices’ personalities. Urofsky finds little to admire in the leadership of either Stone or Vinson. Neither was able to harness the "wild horses" over whom he presided as chief justice, notably Felix Frankfurter, Hugo Black, William O. Douglas and, to a lesser extent, Robert Jackson. Stone’s failure, Urofsky contends, was attributable in part to his academic background, which led him to engage in and allow endless debate among the justices rather than to command or cajole his colleagues into making decisions.

Frankfurter took advantage of Stone’s lack of tight control, and "poisoned the well of collegiality" in his relentless and arrogant efforts to dominate his colleagues. Although not surprising by today's standards, the Court for the first time in history in 1943 issued more than half of its decisions with divided opinions, an indication to Urofsky that Stone’s lack of leadership had taken an institutional toll.

The situation had not improved by 1946, when Vinson became chief justice. Frankfurter, Black, and Douglas apparently liked Vinson as a person, but he was no more capable than Stone of exerting leadership over his brethren. Urofsky contends that Vinson "left practically no mark on American jurisprudence." Stone and Vinson, in short, were not the key characters on the Supreme Court during the times of their chief justiceships.

Urofsky concludes that Frankfurter, Black, and Douglas, who were the central figures during this period in Court history, were not "attractive as human beings" and that their "ill-temper" (and Frankfurter and Douglas’s "nastiness") is central to understanding the period from 1941-1953. Despite their personalities (or even character flaws), these three justices shaped the debates about incorporation of the Bill of Rights, due process, equal protection and the role of the judiciary in the modern political system.

Urofsky faults Stone and Vinson both for failing to shape the debates and for failing to exert the leadership necessary to take advantage of the potential contained in them. Thus, he concludes, the Court as an institution foundered during their chief justiceships and failed to make the mark on American law that it should have made given the opportunities posed by cases arising out of World War II, the Cold War, and the labor and individual rights movements.

Doctrinal Development During the Era

Division and Discord is a "good read" because Urofsky, as always, effectively combines his training as an historian and a lawyer. He adeptly explains the broader significance of legal documents and the justices’ notes and diaries, demonstrating how historical context shapes doctrine. Chapter 2, "The Court at War," is a good example. Urofksy describes how even the ardent civil libertarians Black and Douglas sought out the narrowest possible grounds on which to decide cases involving individual liberties during World War II. His depiction of the voting alignments among the justices in Korematsu v. United States (1944) is particularly instructive, and he wonders whether Black and Douglas "would have voted as they did if the war had come later in their judicial careers, after they had reached their mature views on the extensive reach of the Bill of Rights."

Unlike Alpheus Mason, Urofsky does not conclude that the Court’s protection of civil liberties in the flag salute, treason, and denaturalization cases during World War II was some form of "miracle." Neither does he endorse the condemnations of the Court as repressive during the war. Like virtually ever other aspect of the Supreme Court between 1941 and 1953, Urofsky concludes that the decisions and doctrines were mixed, and that the years are best understood as an "interlude" between the era of substantive economic due process that went before and the regime of rights and liberties that followed.

A Small Nit

If Division and Discord is unsatisfying in some way, it is because Urofsky does not explain how the rancor and divisive personalities of the justices affected the Court’s decisions. He reports, for example, that Jackson found the Court’s atmosphere so "poisonous" that he was not sure "whether he would ever come back" to its disagreeable climate after the Nuremberg trials. A court can be a contentious place to work, but still produce sound judicial opinions. Urofsky is not the first to report that justices like Frankfurter, Black, and Douglas were annoyingly egotistical and that their deliberations could be protracted and unproductive.

What is missing is an explanation of how, in addition to producing the divided opinions to which the country has become accustomed, those personality differences influenced the content of the Court’s decisions or the evolution of constitutional doctrine. By contrast, Urofsky does a fine job of explaining how World War II and the Cold War affected important decisions.

On the whole, however, Division and Discord is a good look behind the scenes of a Court that—from Stone’s Footnote 4 in United States v. Carolene Products (1938) to the narrow but consistent rulings in favor of the NAACP—set the stage for the Warren Court revolution in individual rights.

Justice Leeson sits on the Oregon Supreme Court. From 1970 to 1992, she was a professor at Willamette University Law School. She is the co-author of Constitutional Law: Cases in Context (2 vols.) (Prentice-Hall, 1997, 1998), and of Ending It: Dispute Resolution in America (Anderson Press, 1988).

———————————————————————
Marshall Stays the Course from Advocate to Conscience
by Nathaniel R. Jones

Making Constitutional Law:
Thurgood Marshall and the Supreme Court, 1961-1991
Mark V. Tushnet
New York, NY: Oxford University Press, 1997
Cloth: $29.95
Pp. viii, 246

For this challenging task, I doff my judicial robe and don the civil rights advocate’s hat I long ago placed on the shelf. Reading this remarkable book by Georgetown Law Professor Mark V. Tushnet takes me back many years to my youth in Youngstown, Ohio, when I first met Thurgood Marshall. He was then chief counsel of the National Association for the Advancement of Colored People, and I was a high school student.

The last time I saw Justice Marshall was during a 1992 dinner in connection with Fordham University’s symposium in his honor. Among those who greeted him upon his arrival was Professor Tushnet. As Justice Marshall inquired about the progress being made on his biography, Tushnet sat down beside him and gave a status report. The expression on the Justice’s face evidenced great satisfaction. As this anecdote illustrates, Marshall, as always, was intricately involved in the legal scholarship surrounding him and never one to completely release the reins of his judicial role. Friendship notwithstanding, in the final analysis, Professor Tushnet offered up all the facts, just as he did in the preceding volume, Making Civil Rights Law (1994).

I will leave to "objective" legal scholars and commentators the task of providing a critical review, from a doctrinal point of view, of Marshall’s twenty-four year tenure as a Supreme Court Justice. Making Constitutional Law draws my approbation for what it does to help the readers understand how politics, race, and jurisprudence intersected during Marshall’s time on the court to advance and inhibit social and public policies. For a time, particularly under the leadership of Chief Justice Earl Warren, policies related to implementing racial remedies were dominant themes. A shift in those judicial policies followed the departure of Chief Justice Warren and the arrival of his successor, Warren Burger, and others.

Often with poignant anecdotes, Professor Tushnet traces Marshall’s tenure on the Court and his struggle to ensure that constitutional law protected rather than defeated the rights of the poor and minorities. The book gives an inside look into the politics of the Supreme Court and the inner workings of one of the greatest minds on that Court.

The constitutional law Justice Marshall sought to make as a Supreme Court Justice grew from theories that he and his mentor, Charles Hamilton Houston, planted in the litigation soil during his tenure at the NAACP. Tushnet has traced this back to the legal theories of the NAACP, and has drawn upon them in analyzing and understanding Marshall’s role as a Justice. The ultimate goal of those theories was to emancipate all Americans, not Black Americans alone, and it was a goal Marshall in which truly believed. Professor Tushnet makes clear how the intersection of politics, race, and jurisprudence influenced the deliberations of the Supreme Court. He also does a fine job in analyzing Justice Marshall’s role inside the Court, and the extent of that role beyond the Court. During his life, Marshall was unique—whether as co-architect of the Charles Hamilton Houston-Thurgood Marshall litigation strategy, as Solicitor General, or as a jurist.

When I occupied his shoes as chief counsel for the NAACP, I became frustrated at the difficulty in transforming what were thought to be settled constitutional principles into reality for the historic and more recent victims of discrimination. From Professor Tushnet’s enlightening description of debates within the Court following the departure of Chief Justice Warren and the arrival of Warren E. Burger, it is apparent that Justice Marshall had to be grievously pained, particularly in his last years, to see his life’s work on behalf of equal rights slowly eroded by the new court majority relying on amorphous claims of reverse discrimination. The process of that erosion is carefully delineated by Professor Tushnet in Making Constitutional Law.

School Desegregation Cases

Nowhere is the rutted course more apparent than in the area of school desegregation and affirmative action. Tushnet chronicles in candid detail the shift from the Warren Court’s work to fashion results that would keep faith with neutral principles of law and yet vindicate constitutional rights, to decisions from the Burger Court that stand the Constitution, particularly the Fourteenth Amendment, on its head. The role played by Chief Justice Burger draws the close scrutiny of Professor Tushnet. What emerges is most revealing, indeed. As one who carried the Houston-Marshall brief into Court, I welcome Tushnet’s examination, for it clarifies some confounding results in school desegregation and affirmative action jurisprudence. The book details how the Court was reshaped, following the successful Nixon Southern Strategy, with the new Chief Justice mystifying his colleagues by actions that seemed to be oblivious to their broader jurisprudential and social consequences. These colleagues, including Marshall, would, remind the new Chief Justice with some frequency of the folly of the path he sought to pursue. As Tushnet illustrates, events in these two crucial categories of cases have proven Justice Marshall prophetic in his prediction of the grave consequences to come as a result of the Burger Court’s new agenda.

With respect to school desegregation, Tushnet observes that those who thought the Fourteenth Amendment was being violated by school officials in the South alone were rudely awakened with the ugly reality of racial discrimination in the North. Professor Tushnet, who formerly clerked for a Sixth Circuit Judge before joining Justice Marshall as one of his clerks, had a clearer understanding than most of the significance of the Sixth Circuit’s en banc vote in Bradley v. Milliken (1973), which affirmed Detroit’s decision to implement a metropolitan-wide desegregation remedy. The book skillfully pulls back the curtain to expose much of the interplay that occurred within the Supreme Court in arriving at its 5-4 decision reversing the en banc Sixth Circuit Court of Appeals (Milliken v. Bradley (1974)).

Early on, Marshall recused himself from cases in which the NAACP or its branches were parties. Once that became clear, I, as General Counsel, urged an end to cases being filed in the name of the NAACP. They were to be litigated in the name of individuals rather than the organization in an effort to win Justice Marshall’s participation. It worked. His voice, though often not sufficient to carry the day, was crucially important. Professor Tushnet, for the most part, ably recaptures in the book the often groundbreaking and, later, the protesting force of that voice in those cases.

Even in the face of rising hostility to his positions, Justice Marshall did not take the erosion of the civil rights remedial principles lying down. Professor Tushnet has lifted his dissenting words for all to read. In his typically blunt fashion, Marshall responded to the decision in Milliken, where the Court reneged on its commitment in Green v County School Board of New Kent County (1968) that segregation was to be eliminated "root and branch:"

Today’s holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution’s guarantee of equal justice than it is a product of neutral principles of law. In the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities, one white, the other black--but it is a course, I predict, our people will ultimately regret.

Period of Retreat

When the Court confronted the affirmative action issue posed by the Bakke case (1978), Justice Marshall felt compelled to offer a reminder of America’s bitter racial history, which Professor Tushnet wisely repeats:

[I]t must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

When he took his leave from the Court, Justice Marshall, in a final opinion, chose to scold his colleagues in a death penalty case. His condemnation could just as well applied to what the Court had been doing in the school desegregation and affirmative action cases. He wrote in Payne v. Tennessee (1991) about the dramatic shift from the position held just four years prior on the same issue, and stated "neither the law nor the facts" supporting earlier decisions "underwent any change in the last four years. Only the personnel of this court did. Power, not reason, is the new currency of this Court’s decisionmaking."

Making Constitutional Law stands as a learned tribute to a man who never forgot what the civil rights struggle was about and the centrality of the Constitution in that struggle. Marshall truly fought the good fight, and departed with his head high. Professor Tushnet has reminded us why we are so proud of this man in whom so many of us placed our faith. Having said that, I must note that given the national cleavage existing today with respect to race and the appropriateness of racial remedies, it would have been helpful if Professor Tushnet had laid out in Justice Marshall’s words an unequivocal demand for the Supreme Court to return to an authentic affirmative application of the Thirteenth, Fourteenth and Fifteenth Amendments. In this period of retreat—when commitment to racial justice and equality appears to have waned rather than waxed—that is what the country so desperately needs to read and to hear.

Nathaniel R. Jones sits on the United States Court of Appeals for the Sixth Circuit. He was appointed to that position in 1979 by President Jimmy Carter. Prior to this appointment, he was General Counsel for the NAACP (1969-1979).

Editors’ Note: For additional commentary on Making Constitutional Law, see David Rudenstein, Book Review, New York Law Journal, Sept. 30, 1997, p. 2.

———————————————————————
Human Rights—Timeless Questions
by Dorothy Toth Beasley

The Idea of Human Rights: Four Inquiries
Michael J.
New York, NY: Oxford University Press, 1998
Cloth: $29.95
Pp. 157

For those who wish to plumb the depths of the largest issues of our time, this book must be read—for it does just that. The author's passion for crystallizing the meaning of human rights in humankind’s understanding today is tangible, and his painstaking research and inquiry into others’ views on the subject are evident from his reflective, albeit one-sided, debate with their theories. Perry jousts with the likes of Nietzsche, Rorty, Dworkin, Glendon, Taylor, and Pope John Paul II. In doing so, he invites the reader to enter in, to discuss the subject with colleagues, and to explore further. It is a teaching book.

Perhaps that is why I have already referred two young scholars to it. Recently I was on a panel to select four among a group of vigorous, bright, and dedicated students seeking scholarship support for graduate study to prepare for careers in public service. Of the thirteen finalists, two have chosen to dedicate their lives to improving human rights internationally. At the end of their interviews, I urged the two to read this book; it has very practical application to the formation of an understanding of the concept, its source, and the inescapable challenge.

Four Fundamental Inquiries

The author introduces his four inquiries with a short explanation of "The Idea of Human Rights," how the subject entered the constellation of his world, and why he has pursued answers to the four provocative questions. Then come the essays that explore each of what he regards as four fundamental queries. The essays present his own answers and rationales in the context of what he has learned from others who have written on the subject, primarily in modern times. The four compel the reader to enter the dialogue: "Is the Idea of Human Rights Ineliminably Religious?"; "Rights Talk: What Does it Mean? And Is It Problematic?"; "Are Human Rights Universal? (The Relativist Challenge and Related Matters)"; "Are Human Rights Absolute? (The Incommensurability Thesis and Related Matters)." Professor Perry regards the latter two questions as the more serious and more difficult.

The discussion burrows deep, requiring the reader to engage in some hard thinking; but just as diamonds are buried far below the surface in the darkest coal, so the discovery of his reasoned conclusions are worth concentration and devotion to the dig. We then must decide for ourselves whether the unearthed gems are pure or flawed.

The issues revolve around such ideas as whether belief in the existence of human rights stems from religious-cosmological or religious-moral convictions or can have an independent secular foundation. (Although Perry presents The Golden Rule as a Christian principle, Sam Ericsson, President of Advocates International, has identified the same command in the religious writings of Buddhism, Confucianism, Hinduism, Islam, Judaism, Taoism, and Zoroastrianism.) He presents international discourse in terms of "what ought not to be done to and what ought to be done for human beings." The seemingly intractable nature of the issue of universality is explained by three positions labeled anthropological relativism, epistemological relativism, and cultural relativism. Here, the principle of equality could have been more fully developed. The final inquiry is answered with the optimistic answer that "[e]ven if no human rights are, as moral rights, absolute, some human rights, as international legal rights, should be—and, happily, are—absolute."

Front and center in the book are the legal instruments that reach across borders and encapsulate expressions of some of humankind’s greatest aspirations, hopes, and commitments. Of particular note, because of its fiftieth anniversary this year, is the Universal Declaration of Human Rights; the event adds currency to the book. Also referred to in the context of the four issues are the Declaration on the Elimination of Violence Against Women, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and other declarations and conventions. It would have been helpful if, as an appendix to the book, outlines of these documents, or at least of the Declaration of Human Rights, were included. Perry's concepts would have been more powerful and enlightening if they had been illustrated more often by examples, either real or hypothetical. As contemporary writer Andre Dubus puts it, much can be learned about life from stories.

Theory & Praxis

Professor Perry’s inquiries have practical application in informing our response to any international human rights struggle which pervades much of international relations—whether we focus on the sweatshops that exploit children for the economic benefit of manufacturer, consumer, and balance of trade; or anguish over the brutal military atrocities in Bosnia-Herzogovine, Kosovo, or Cambodia; or inveigh against international trafficking in human beings. His work is also pertinent to the political and societal will and action—in terms of employment, food and housing, an adequate standard of living, health, or education. The reader need not have an interest in the United Nations to find The Idea of Human Rights a valuable resource.

Professor Perry has dedicated the book to his two children with the invocation: "May the idea of human rights become, in their lifetime, an ever more tangible reality." Joining him would be such renowned figures as Roman Herzog, President of the Federal Republic of Germany, and Ismail Serageldin, Vice President of the World Bank. President Herzog declared: "Our goal [in Germany] is the universal observation of human rights as they are prescribed in the United Nations Declaration on Human Rights of 1948 and in subsequent U.N. human rights documentation. No concessions can be made toward achieving this aim, and my plea here is for an unwavering stance in holding to this goal." Vice-President Serageldin challenged in a commencement address: "[T]he condition of hunger in a world of plenty is equally monstrous and unconscionable (to the problems which fueled the antislavery movement) and must be abolished."

The book addresses a subject which no one can escape and which no one, nor any government, should shirk.

Dorothy Toth Beasley has been a Judge on the Georgia Court of Appeals since 1984. She served as Chief Judge for the two-year term of 1995-1996.

Editors’ Note: For a book of related interest, see Micheline R. Ishay, editor, The Human Rights Reader: Major Political Essays, Speeches, and Documents from the Bible to the Present (Routledge, 1997) (paper: $25.00; pp. 517).

———————————————————————
Scavenging the Centuries for Keys to the Common Law
by Christine M. Durham

Imagining the Law:
The Common Law and the Foundations of the American Legal System
Norman F. Cantor
New York, NY: HarperCollins, 1997
Cloth: $35.00
Pp. xvi, 380

"The common law today is what it has been since it crystallized in the fourteenth century," asserts Professor Cantor at the end of this formidable history. Using the development of Roman law as a contextual foil, Cantor traces the evolution of English common law from ancient times (his first chapter is devoted to the advocacy of Cicero) to the modern American legal system. In his preface, Cantor offers a brief overview of the purposes and methods of legal history itself, and signals his own place in the tradition. He categorizes the seven "valuable" interpretive approaches to legal history: 1) Justice and liberty, mainstream; 2) Marxist; 3) Foucault-feminist power, pessimism; 4) Lacanian, psychoanalytic; 5) Structuralist; 6) Deconstructionist; and 7) Law and Economics. He then observes:

In the absence of consensus on the prescribed theoretical foundations for legal history, the historian will have to pick his or her way eclectically among the theories as the opportunity arises, instrumentally using one idea or another as the situation offers.

But this is what historians always do, especially the really good ones—they are intellectual scavengers, using shamelessly and conditionally whatever theory helps organize and explain their data to give a composite history of the past.

Imagining the Law qualifies by this definition as "really good" history. It is extraordinarily wide-ranging in its attention to moral philosophy, economic and political themes, and social and anthropological developments, and in its impressive explorations of the pre-modern imagination. Within four pages in his chapter on "Kings, Lords and Lawyers," Cantor elucidates three theories about the emergence of the common law (the sociological from Maitland, the judicial from Milsom, and Michael Clanchy’s anthropological focus on the twelfth-century transition from an oral to a literate culture), and offers a summary of three "fortuitous circumstances" affecting the separation of the common law in England from Roman law on the Continent (the "profits of justice" realizable by a greedy monarch from the operation of England’s judicial system; the absence of Roman law schools in England in the period of the Angevin legal revolution; and the hostility of Henry II to papal interference, which resulted in no papal inquisitions in England and thus no Roman law). Cantor concludes—and persuasively argues—that the "deep structure" of the common law was virtually complete by the mid-sixteenth century, and was not dislodged by even the upheavals of the English Civil War of the 1640s or the American Revolution.

The Normative Debate

Understanding the nature and origins of this "deep structure," however, is only the first part of the task Imagining the Law sets for itself. In considerable part, the book is devoted to the debate "whether the common law should be regarded as our birthright or our albatross." Cantor characterizes the common law as a means of facilitating and shaping behavior—as a "cultural, social system, polity, and ideology." He asserts that "between 1300 and 1750 lawyers were the most important professional group in English society," and argues that, after the revolution, "the activist torch of the common law was passed from England to the United States," particularly the concept of what he calls "judicial liberalism." He notes that, from a legal historical perspective, "the United States is in some ways a more conservative country, closer to the common law in the age of Blackstone, than is modern England." We in the United States have opted for a system of litigation and judicial review as a major source of political and social change, in contrast to England’s unitary reliance on legislation.

Cantor by no means suggests that the American legal profession has remained untouched by modern history, despite his assertion that the common law itself continues to inform our deepest beliefs about how law functions and what law is for. His last chapter identifies the emergence of the case method of law study in law schools, the founding of corporate law firms to serve the interests of big business, and the ethnic and gender diversification of the legal profession in the past several decades as major changes. This last chapter may contain the most graphic examples of Cantor’s willingness to serve as a "shameless scavenger" for theories to explain both the past and the present. Television’s "L. A. Law," John Grisham’s The Firm, the Court TV phenomenon, and the O. J. Simpson trial all serve as vehicles for illustrating the playing-out of the common law’s themes on a modern stage. Nevertheless, Cantor cogently argues that today’s complaints about the legal profession and the law are centuries old, that the common law today is what the common law has always been, at least since the mid-sixteenth century. He suggests, finally, that whatever reforms we may contemplate must respect the common law as "a culture, which means that it is a superstructure by which all lives are lived and faiths affirmed." By this he means that the operational structure and value system that originally gave to the common law its integrity and power are still at the essential core of American law, and that its durability ought to be respected. Imagining the Law has provided a source for such respect, and a fascinating collection of insights about both the common law and legal history itself.

Christine M. Durham has been a Justice of the Utah Supreme Court since 1982.

———————————————————————
Talkback

This is a commendation to the editors! Many is the time I've looked for indexes and books of legal interest and come up empty-handed - your website will perform a very useful function. Congratulations!

Hon. Judith Ann Lanzinger
Lucas County Common Pleas Court
Toledo, Ohio, USA

JURIST would like to hear your reactions to our reviews...

© Ronald K.L. Collins and David Skover, 1998. —————————————————————————————
JURIST: The Law Professors' Network™ is directed by Professor Bernard J. Hibbitts, Associate Dean for Communications & Information Technology, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA, in consultation with an international Advisory Board. E-mail JURIST at JURIST@law.pitt.edu.

© Bernard J. Hibbitts, 1998. All rights reserved. These pages may not be copied, reposted, or republished, in whole or in part, electronically or in print, without express written permission.

NOTICE
JURIST regrets that it cannot provide legal advice. For assistance with specific legal problems, please consult a licensed attorney in your jurisdiction.
—————————————————————————————