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Reviews - January 2001; v.4, no.1 |
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Washington Jurists on JURIST – Part I
 Reviews
Institutional Politics – The Federal Appointments Process The Federal Appointments Process: A Constitutional and Historical Analysis Over the past decade or so, the confirmation process has become a political flashpoint. The normally staid Senate now regularly plays host to media spectacles involving confirmation battles over controversial Supreme Court nominees, such as Robert Bork and Clarence Thomas, and executive branch hopefuls, such as John Tower (a prospective Secretary of Defense) and Lani Guinier (a Justice Department nominee). But, in truth, as Michael J. Gerhardt points out in his well-documented book, neither politics nor controversy is anything new in this arena. His thesis is that because the Constitution provides only a broad framework, "the driving force of the appointments process are the norms developed by presidents and senators to constrain or guide their decision making." Indeed, the federal appointment process is at the crossroads of politics and constitutional law. Origins & Structure of the Process Michael Gerhardt, a professor of law at the College of William and Mary, divides his study into three parts: the origins of the process, the roles of the major institutional players, and a discussion of reforms. He starts, sensibly enough, at the beginning, outlining "The Origins, Structure, and Evolution of the Federal Appointments Process." Gerhardt's discussion of the debate at the Constitutional Convention surrounding the appointments process is most interesting, reminding us that the ultimate result – appointment by the President with the "advice and consent" of the Senate – was by no means pre-ordained or inevitable. The pre-constitutional procedures under the Articles of Confederation and in the states provided no clear or obvious path for the new national government to follow. In some states, the governor played a strong role in appointing officers of the executive branches, while in others, his powers were constrained by the need for ratification of his choices by a council, usually appointed by the legislature. In some states, the governor actually had no power of appointment. The ultimate result, under which we labor to this day, was thus the product of compromise. Some of the framers, notably those from Virginia, sought to give to the President the sole power of appointment, leaving Congress completely out of the picture. Others took the opposite view, proposing that Congress make appointments on its own, without input from the President. Alternative schemes would have allocated the appointment power to the different branches depending on the nature of the office: cabinet officers, ambassadors, and judges, for example, would be subject to different procedures. The ultimate outcome, appointment by the President with the approval of the Senate, was the position of such notables as Alexander Hamilton and Gouverneur Morris. Most striking in Gerhardt's discussion of the debates over the various plans is the foresight of those critics among the framers who anticipated the same sorts of complaints about the process that we hear today. The founders, of course, were not always right. Hamilton, the proponent of a strong executive, predicted that the Senate would be, if not quite a rubber stamp, at least highly deferential to the President's nominees. Gerhardt acknowledges this historical deference and the Constitution's presumption of confirmation. Nonetheless, Hamilton may have proved to be a better framer than prognosticator, as nominees whose appointments have languished or died in Senate committees, or were blocked by a single Senator exercising the "hold" power might attest. Other founders, perhaps hypersensitive to the creation of a monarchy so soon after independence from King George III, were mortified at the prospect of the President selecting nominees, even with the check of Senate confirmation. Luther Martin of Maryland feared that letting the President nominate officials would make him "king, in everything but name." Presidents, to be sure, are the subjects of all manner of critique, but rarely in these times are they faulted for acting like a king. Gerhardt focuses on the fact that there is a single Appointments Clause for all "officers of the United States," thus placing the power to nominate solely with the President, without distinction as to the importance or nature of the office. This power is, of course, subject to the "advice and consent" of the Senate. In Gerhardt's view, a sensible reading of the "advice" clause is that the Senate may give nonbinding advice on "whom as well as what kinds of persons [the President] should nominate to certain posts." The Institutional Players The real meat of Gerhardt's analysis comes in Part Two of his book, "Evaluating the Roles of the Major Players in the Federal Appointments Process." In this section, Gerhardt analyzes the parts played by the President; the Senate; the nominee; the public and interest groups; and the media and technology. Gerhardt takes an approach he calls "historical institutionalism," which he defines as "studying how institutional arrangements shape and direct political behavior." Much of what Gerhardt has to say seem – at least on the surface – to be obvious. He informs us, for example: "Of all the actors routinely involved in the federal appointments process, the one with the greatest potential to influence events or outcomes is the President of the United States." Or, "throughout U.S. history presidents and senators have been concerned about the social or political ramifications of judicial nominations." Nonetheless, Gerhardt provides a highly valuable service in categorizing the various players and the factors that influence their performance into a framework conducive to serious study, as opposed to scattershot punditry. Although he eschews anecdotal and statistical approaches to the study of the appointments process, preferring to focus on the institutional interplay, some of the most interesting data in the book relate to historical confirmation battles and confirmation statistics. It must be recognized that the vast majority of appointments are concluded without controversy or acrimony, and thus only the contested appointments generate substantial background information and public interest. Inevitably, we are drawn to controversy, not routine. The focus is on what went wrong, rather than on the many more numerous instances when things went right. Thus, it is far more interesting to analyze what happened in the failed nomination of Abe Fortas for Chief Justice of the Supreme Court than to discuss the many chief justices confirmed without much ado. Although the book examines both judicial and executive appointments, the judicial examples are far more numerous. This is due, in part, to statistics that Gerhardt prefers to step over lightly. For example, twenty-six Supreme Court nominations – almost one in six – have failed to secure confirmation. In contrast, only nine executive branch nominees have been rejected in floor votes. To be sure, the statistics do not tell a complete story, as formal rejections mask the story of withdrawn nominations or others left on the cutting room floor for a variety of reasons. In his chapter on the Senate, Gerhardt does an excellent job of identifying how the confirmation process is shaped by the various internal institutional arrangements and practices of that body, including Senatorial courtesy, holds, logrolling, creating new offices or eliminating old ones, and just plain, old-fashioned politics. Also quite instructive is Gerhardt's analysis of the role of interest groups in both the nomination and confirmation process. His historical perspective is especially helpful here, reminding us that the participation of those groups – now a routine part of the nomination and confirmation game – is a quite recent phenomenon. Gerhardt points out that not a single outside interest group testified either for or against the confirmation of William Brennan to the Supreme Court in 1957, and only one did so in the considerably more controversial nomination of Thurgood Marshall to the Court in 1967. By the 1980s, however, outside groups were practically falling over themselves to participate. A whopping eighty-six representatives of interest groups testified in the epic confirmation battle that culminated in the defeat of Robert Bork's nomination to the Supreme Court in 1987. Four years later, ninety-six representatives of interest groups had the opportunity to make their views known to the Judiciary Committee during the confirmation hearings for Clarence Thomas. In contrast, only thirty-nine groups testified in the Supreme Court confirmation hearings for David Souter in 1990, and only twenty for or against Ruth Bader Ginsburg in 1993. These battles have taken their toll on nominees, Senators, committee staff, and interest groups alike. Gerhardt also illuminates the process whereby interest groups become involved in a less formal manner before a formal nomination, suggesting names to the administration and Senate, boosting or torpedoing potential nominees well before the President actually acts. With speculation rampant that the new President may have the chance to appoint up to four justices to the Supreme Court, recent news reports indicate that interest groups have already been working behind the scenes preparing dossiers on those whose names have been floated in the media as potential nominees. Media and technology have also influenced the process. Televised confirmation hearings have now worked their way into the category of business as usual. But Gerhardt points out that prior to 1929, the Senate considered most nominations in closed executive session. Personal testimony of the nominee at the confirmation hearing owes its origins to Harlan Fiske Stone who, of his own accord, appeared before the Senate in 1925 to answer questions about a decision he made as attorney general. Sandra Day O'Connor appeared in front of the first televised Supreme Court confirmation hearing in 1982. The arrival of C-SPAN and CNN now guarantee gavel-to-gavel coverage of future hearings. Proposals for Reform The last major section of Gerhardt's book describes and seeks to evaluate various proposals for reform of the appointment and confirmation process. Some of these are relatively minor. For example, several academic studies have recommended that increased resources be devoted to those charged with conducting background checks on nominees, in order to shorten this laborious and often quite lengthy process. Other proposals are seen as shifting the historical roles of the players. Most notably, Senator Arlen Specter, a member of the Judiciary Committee, has recommended that the President consult more seriously with the Senate before making formal nominations. But the fundamental "issue" with the appointments process, if one can indeed call it that, is that the players in the process have not just differing views about individual nominees, but also differing views about how any nominee should be evaluated. What are the factors that should guide a President in choosing a cabinet member, judge, or justice? Political loyalty? Professional ability? Ideological compatibility? Deference to the Senators of the nominee's home state? Is it acceptable to ask a judicial nominee about her views on controversial topics? Or are such questions off-limits "litmus tests?" Likewise, how should a Senator evaluate a nominee? Should the standard be deference unless the President's choice is particularly objectionable? Or should the Senate conduct a sort of de novo review? Are experience, competence, honesty, and integrity enough to merit a "yes" vote, or must the Senator share the nominee's philosophy as well? These are, of course, the tough questions that politicians, academics, and the media (and even we judges who have survived the process) have been debating for ages. The Constitution, to be sure, does not provide all of the answers. And, not surprisingly, neither does Professor Gerhardt. No one could expect him to provide definitive answers to the Big Questions of the confirmation process. But, at least, it would have been valuable for him to give us more insight into his views. Gerhardt's pointed refusal to focus on recent high-profile confirmation battles is also a bit disappointing. His insistence on taking a more systemic, historical approach is understandable, given his academic background. But it may be going too far to claim, as he does, that studies of the most controversial nomination battles "have generally failed to provide lasting insights into the federal appointments process; to clarify the social, political, and historical contexts in which appointment controversies arise; and to develop appropriate criteria for analyzing the performances of the major participants in the appointments process from different historical periods." The battles royal are certainly not wholly representative of the hundreds of presidential appointments that routinely make their way through the Senate without attracting public attention. But surely they are important, if for no reason other than the fact that they – not the routine confirmations – shape the public's view of the process. And, they put our system through a periodic "stress test," reminding us of the wisdom of the framers. Gerhardt's project is extremely worthwhile – it provides a well-structured rubric for evaluating the roles of the different players in the process, as well as giving a very thoughtful historical perspective. For anyone interested in the appointment process, the book is a must, and it provides valuable historical reference for scholars, politicians and nominees alike. But even while Gerhardt is adept at identifying the players and the perceived problems, he chooses not to provide many solutions. Perhaps this is inevitable. The many players come to the appointments process with strongly and genuinely held views that are the result, not of flaws in the system, but of democracy itself. As long as the men and women appointed by the President and confirmed by the Senate continue to exercise the vast powers of our national government, disagreements are inevitable. This does not mean that the process is broken; perhaps it means that it is working exactly how the framers intended. Judge M. Margaret McKeown was appointed to the United States Court of Appeals for the Ninth Circuit by President Clinton and confirmed in 1998. She is a graduate of the Georgetown University Law Center. Judge McKeown was a partner in Perkins Coie's Seattle and Washington, D.C. offices and previously served as a White House Fellow. Editors' Note: For other Books-on-Law reviews dealing with the Supreme Court, see Alexander Wohl's review of A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning (University of California Press, 2nd edition, 1999) by Jethro K. Lieberman; and Dennis Patterson's review of Matters of Principle: Legitimate Legal Argument and Constitutional Interpretation (New York University Press, 1998) by Richard S. Markovits. ———————————————————————Justices at the End by Gerry L. Alexander Leaving the Bench: Supreme Court Justices at the End That I am on the cusp of my sixty-fifth year and about to commence a new six-year term on the court on which I sit, no doubt caused me to approach the task of reviewing University of Missouri-Kansas City Professor David Atkinson's book, Leaving the Bench, with a sense of trepidation. I found myself wondering if reading a book, the jacket of which promised to inform readers about the "medical conditions" and "ultimate demise" of every justice who has served on the United States Supreme Court, would cause me to feel slightly depressed and might even convince me that I should consider leaving the bench at this age when retirement is common in many professions. After reading this extremely interesting and absorbing work that briefly chronicles the lives, illnesses, resignations, and retirements of all of the justices, from the appointees of President George Washington through the retirement and death of Justice Harry Blackmun, I emerged without any sense of depression. Indeed, this account of Supreme Court Justices at the end of life left me impressed with the resilience of those who have served on the Supreme Court and with that Court's ability to occasionally accommodate the presence of a dysfunctional justice without great damage to the institution. At the same time, I found myself feeling not entirely sanguine about the fact that numerous justices have declined to leave the Court when their need to do so was made obvious by their physical or mental condition. I also felt a degree of discomfort about the Court's willingness over the years to withhold from the public truth about the condition of some of its members. Thus, it was with particular interest that I considered Professor Atkinson's proposals for reform of the system that he sets forth in the final chapter of his book. The Antebellum Court's Justices The author has neatly divided his discussion of all of the justices into five historical periods. The period that I found the most interesting is the one with which I was the least familiar, "the Antebellum Court, 1789–1864." We learn that in this period the Court experienced its youngest age, the average age of the justices never exceeding 68 years. This compares to the period 1981 to 1990 in which the Court's average age never dropped below 68. Although the youthfulness of the Court in its early years reflected the fact that it was a new institution, the author points out that it was also influenced by the high turnover of justices during the period. Although biographers of this period were more inclined to eulogize a famous subject than relate medical details of their death, Professor Atkinson has managed to unearth significant information about the maladies that inflicted the justices. He makes the not surprising point that many of the early Supreme Court justices suffered from poor health, and opines that this was due, in part, to the fact that satisfactory treatment for common illnesses like gout or kidney stones was lacking. Another explanation he gives for the frequent ill health of the justices was the practical difficulties that were then associated with being a United States Supreme Court justice. From a physical standpoint, it was simply a much more demanding position than it is today. This, Atkinson suggests, was primarily due to the fact that the justices were required to ride the judicial circuit to hear trials when they were not assembled as the Supreme Court. This practice, which was not discontinued until 1891, understandably took a toll on the men who served on the Court because the distances they had to travel were great, accommodations were primitive, and the weather was often forbidding. Finally, the author suggests that the courtroom of the Supreme Court, which was then in the lower reaches of the Capitol Building in Washington, D. C., was an unhealthy place to work, what with its smoky air and poor ventilation. If one visits that exquisitely restored courtroom today, it is hard to appreciate the fact that it was once so pestilential that it caused a prominent Washington architect to say, "The deaths of some of our most talented jurists has been attributed to this location of the courtroom." Although the absence of pensions contributed to few resignations in the Court's early days, many justices of the period were incapacitated for long periods of time. Professor Atkinson speculates that these justices were not removed by impeachment and conviction because Congress was unwilling to equate an absence of "good behavior" (U.S. Constitution, article III, section 1) with judicial infirmity. If indeed this was the view of Congress then, it is a view that has prevailed over the years. Any discussion of the Antebellum Court would, of course, be incomplete without mention of the great Chief Justice, John Marshall. The author, fortunately, does not disappoint the reader in that regard. He points out that Marshall, who served as Chief Justice for 34 years and five months, underwent an operation for the removal of bladder stones approximately four years before his death. Although Marshall made an extraordinary recovery from this operation for one who was at the then-advanced age of 76, he soon began to show signs of emaciation due to a more significant problem – liver disease. Although his close friend and great colleague Justice Joseph Story indicated that the disease did not cause a decline in Marshall's intellectual powers, the Chief Justice's strength soon diminished. He finally succumbed a few months short of his 80th birthday. The author reminds us what many of us learned as youngsters and perhaps forgot, that upon Marshall's death, the Liberty Bell was tolled and promptly cracked, "dramatically symbolizing the end of Marshall's usefulness to the nation." The Court of the Industrial Revolution According to Professor Atkinson, the period from the end of the Civil War to the beginning of the 20th Century was a time in which the members of the United States Supreme Court suffered more personal difficulty than during any other period in our history. Interestingly, of those who left the Court during this time, only one, William Strong, did so in good health. The court managed, however, to accommodate these problems without great harm to its functioning. This, according to Professor Atkinson, was due, at least in part, to the fact the court was presented with few cases of great constitutional import during this period. The author describes in considerable detail the poignant story surrounding the resignations of two justices of the period, Robert C. Grier and Stephen J. Field. Grier, who began his service on the Court in 1846, began to show signs of severe mental decline in the 1860s. By 1869, his thinking became so muddy that a delegation of his fellow justices waited on him and asked him to resign, and he did soon thereafter. A relatively new member of the Court at that time was Justice Field. Ironically, many years after Justice Grier's resignation from the Court, Justice Field's mental condition also began to decline. Eventually, the then-Chief Justice, Melville Fuller, and other Justices of the court determined that the old gentleman should be urged to resign. Justice John Marshall Harlan was delegated the responsibility of calling on Justice Field in order to encourage his resignation. Harlan approached this onerous task by reminding the elderly Justice Field of what he understood was Field's own visit with Justice Grier many years before. To this entreaty, the old man is alleged to have said, "Yes, and a dirtier day's work I never did in my life." Professor Atkinson points out in an appendix that despite what Justice Field said to Justice Harlan on that day, Field was probably not a member of the delegation that had called on Justice Grier those many years before. In any case, Harlan's visit did not have the same effect on Field that the 1869 visit had on Grier, for Field did not resign. Instead, he remained on the court for a few more years until he established the then-record tenure of thirty-four years, eight months and twenty days. The Court of Prosperity & Depression The period the author calls "The Court in Prosperity and Depression, 1900–1936" also saw many members of the Court inflicted with disability problems. Those that overstayed their usefulness burdened the remaining justices because, as the author notes, all of the justices did their own work, the practice of law clerks assisting with the drafting of opinions then being unknown. The condition of the members of the court in the early part of the century, while not a subject that made its way into the newspapers of the day, did become known to at least one President of the United States, President William Howard Taft. Taft, a future Chief Justice, was moved to remark in 1909: "The condition of the Supreme Court is pitiable and these old fools hold on with a tenacity that is most discouraging. Really, the Chief Justice is almost senile; Harlan does no work; Brewer is so deaf that he cannot hear and has got beyond the point of commonest accuracy in writing his opinions. Brewer and Harlan sleep almost through all the arguments. I don't know what can be done. It is most discouraging to the active men on the bench." Taft must not have recalled these words when he arrived at the latter part of his term as Chief Justice. Although his mental and physical condition had by then deteriorated, like the great Oliver Wendell Holmes who retired two years after Taft, Taft did not slip easily into retirement. From Roosevelt to the Present In the period "from Roosevelt to Warren, 1937–1968," what the author describes as a "desirable pattern" of justices not lingering long beyond their period of useful service emerged. While Atkinson points out that the illnesses of Justices Cardozo and Murphy were somewhat extended, the number of resignations and retirements began to exceed the number of deaths in office. This trend of events, which may have been prompted by the passage of the Retirement Act of 1937, has not, according to the author, carried over into the "contemporary period, 1969 to the present." Professor Atkinson indicates that "more so than at any time since 1900-1937, justices have been reluctant to leave the court." Some of the best known, he suggests, have continued to serve on the Court long past their best years. In making his point, Atkinson highlights the well-documented incapacity of my state's native son, Justice William O. Douglas, as well as the more recent but equally reported medical condition of Justice Thurgood Marshall. In fact, a photograph of an elderly and obviously fatigued Justice Marshall, at this point a mere shadow of the handsome young crusader for civil rights, graces the cover of the dust jacket. The author ascribes this departure from the trend of earlier retirements observed in the preceding period to the justices' increasing reliance on the assistance of law clerks, the advantages of the computer revolution, the protection provided by judicial anonymity, and friendly media coverage. Modest Proposals for Reform Building on this concern, the author suggests, in the book's final chapter, three steps that might be taken to head off the pattern of recent years where, for a variety of reasons, many justices seem reluctant to retire at an appropriate age. Three modest proposals, he contends, could be adopted by the Court and would leave life tenure for the justices alone. The proposals are essentially: (1) the Court should be more forthcoming about the health of each justice; (2) the role of law clerks should be better delineated; and (3) the justices should exercise greater awareness that they should ordinarily leave the Court no later than in their mid-70s. Few could disagree with these suggestions. Atkinson does not stop with these suggestions, however, but goes on to submit that if the justices prove increasingly reluctant to leave the Court at or before age 75, a modernized version of President Franklin Roosevelt's famous court reform proposal (commonly referred to as the "court packing plan") might be worthy of consideration. While space does not permit me to describe the author's plan in detail, I must say that I am skeptical that such a plan would receive any better reception than did President Roosevelt's ill-fated plan of the 1930s. In sum, for the legal history buff or anyone interested in the Supreme Court as an institution, Professor Atkinson's book is a good read. It is a comprehensive study of an aspect of the life of the most important court in the world. The author fully supports the text with footnotes, and he has supplemented the work with appendices that not only shed light on whether Justice Steven J. Field asked Justice Grier to resign but also describe the average age and tenure of the justices over the years and list the burial sites of all justices. After serving 20 years as a trial and appellate court judge, Justice Gerry Alexander was elected to the Supreme Court of Washington in 1994. He was recently re-elected to a second six-year term on that court, and in January 2001 he will be sworn in as the court's chief justice. Justice Alexander has an abiding interest in history and is a co-founder and board member of the Washington Courts Historical Society. He was recently named Historian of the Year by the City of Olympia Heritage Commission. ———————————————————————Sins of the Twentieth Century by Faith Ireland Ladies and Gentlemen of the Jury: Greatest Closing Arguments in Modern Law As a trial court judge for fifteen years, I was privileged to observe hundreds of closing arguments of wildly varying degrees of quality and effectiveness. In Ladies and Gentlemen of the Jury: Greatest Closing Arguments in Modern Law, the authors have created what seems to be a unique volume of fine closing arguments. The rigors of selection, compilation, editing, and setting the historic context certainly would explain the dearth of comparable works. The criteria used by the authors to select their ten "greatest" arguments include historical significance, durability of subject, availability of trial record, and above all, quality of work. Each chapter contains a brief historical introduction that places the case in its social and historical context, a biography of the lawyer who delivered the closing argument, an analysis of the notable aspects of the argument, and the argument itself. Most of the arguments have been edited to remove some very specific factual details. The volume leaves the reader with the sense of having reviewed the major sins of the 20th Century. The topics of the closing arguments include genocide and war crimes, corporate greed, police brutality, government corruption, bloodlust, mayhem, sexism, racism, classism, and anarchism. The book begins and ends with war crimes – first, the closing argument of Robert H. Jackson, chief United States counsel at the International Military Tribunal of the Major War Criminals of the European Axis at Nüremberg, and last, Captain Aubrey Daniel's summation at the court martial of William L. Calley, Jr. following the massacre at My Lai. Summations by noted trial lawyers, such as Clarence Darrow and Gerry Spence, are presented along with closing arguments by attorneys who are less familiar. Gerry Spence indicts both a corporation and the entire nuclear industry for their greed in the case of whistleblower, Karen Silkwood. Acquitting Herself Historians should find as much of interest in these pages as trial lawyers do. The arguments have an immediacy that transports our minds back to specific times and places – and to the prevailing mores and moods of the country. For example, the only argument by a female takes us back to the 19th Century. Clara Shortridge Foltz became California's first woman lawyer in 1878, at a time when women could not even sit as jurors in that state. In addition to passing the bar examination, Ms. Foltz had to get a law passed by the legislature in order to practice law. In short, she was required to defend herself, her sex, and her right to be in court. The text sets out her argument more than a decade later, in her defense of a young man charged with arson. She acquitted both herself and her client admirably. Darrow Accused In an early chapter, Clarence Darrow faces jury-tampering charges following his defense of labor organizers accused of arson and murder (California v. Clarence Darrow [1912]). Darrow's closing argument in his own defense reminds us that great power was wielded against workers who attempted to unionize. The workers' right to organize, taken for granted today, was born and raised in violence. As the authors note, the jury – with its attention span undiminished by the electronic media – was able to listen closely to the eight-hour summation, which was delivered in a sweltering courtroom over a two-day period. Gleaning Concepts A criticism has been leveled against this text for its lack of instruction: "The weak link in this collection is not the arguments, it is the lack of analysis of why the closing attorney phrased the argument as it was phrased and how those principles can be expanded and used by other trial lawyers." Sam D. Dennis and Roger J. Dodd, Trial (February, 1999). The complaint is legitimate, but this is not primarily a "how-to" book. There are a number of fine books of instruction on argument. This book is rich in useful and artistic material, but it comes at a cost in time and discernment. Readers must cull and organize for themselves the general principles, techniques and strategies, psychological tools, and the turns of phrase. There are some overarching concepts that have emerged from my analysis of these arguments. The first is face the demon. In each closing argument, the attorney has a major hurdle that must be met head-on. By acknowledging the major weakness of a case first, one can develop the right cause or theme around which to organize the argument. If the weakness is not recognized and met, the theme may fail to overcome it. Second, identify the right cause. Each attorney must select a compelling theme, which guides the presentation of the evidence and the organization of the closing argument. Third, hold them accountable. The trier of fact must feel fully responsible for the outcome. In these cases, counsel present no opportunities to pass the buck. Fourth, arouse passion. Facts and figures may bolster, but emotions persuade. Use the tools of emotion, passion, eloquence, and humor. Fifth, create a triumphant ending. If there is no possibility of a "happy" ending, at least let it be a noble one which uplifts and satisfies the jury's desire to do justice. Ultimate Atrocity The first concept is well illustrated in the chapter entitled "Architects of Genocide." Robert H. Jackson, an associate justice of the Supreme Court (on leave), served as chief counsel for the United States at the Nüremberg trials in Germany. Jackson recognized that he had to take the vast scope of the Nazis' atrocities and give them a contextual framework in order to allow the jury to deal with the enormity of the deeds and the mountains of evidence. Two justifications were used to excuse the defendants' atrocities: "I didn't know" and "I was only following orders." Jackson anticipated these in his compelling theme – the Nazis were not tried for the reprehensible beliefs they held, but for the reprehensible deeds they had done. In answer to claimed ignorance, he said: "They do protest too much. They deny knowing what was common knowledge. They deny knowing plans and programs that were as public as Mein Kampf and the party program." Of their professed order-following, Jackson said: "The defendants may have become slaves of a dictator, but he was their dictator . . . . Every Nazi took this oath: 'I pledge eternal allegiance to Adolf Hitler. I pledge unconditional obedience to him and the führers appointed by him.'" Unlike the victims they exploited, imprisoned, and exterminated in taking that pledge, each defendant exercised his own free will. Crime As Cause William Kunstler demonstrates how to transform a crime into a cause in the trial of the Chicago Seven (Abbie Hoffman, Jerry Rubin, Tom Hayden, Rennie Davis, David Dellinger, John Froines, Bobby Seale, and Lee Weiner in Illinois v. Abbie Hoffman, et al. [1970]). At a time when the country was caught up in the civil rights movement and opposition to the war in Vietnam, protests and violence accompanied delegates to the Democratic convention in Chicago. In defending the seven against charges of conspiracy to cross state lines to incite riot, Kunstler quickly established his theme: his clients were rebels agitating against an unjust system, as were the patriots of the American Revolution. He shifted the focus of the trial from a case about a criminal conspiracy to a case about the constitutional rights of free assembly and free speech: When a new truth comes upon the earth, or a great idea necessary for mankind is born, where does it come from? Not from the police force, or the prosecuting attorneys, or the judges, or the lawyers, or the doctors. Not there. It comes from the despised and the outcasts, and it comes perhaps from jails and prisons. It comes from men who have dared to be rebels and think their thoughts, and their faith has been the faith of rebels. Kunstler's eventual victory came from the U.S. Court of Appeals for the Seventh Circuit, which overturned convictions of the defendants and harshly criticized Judge Julius Hoffman, saying "the demeanor of the judge would require reversal even if errors did not." Famed and Framed In California v. John DeLorean (1984), defense attorney Donald M. Re overcame an incredible obstacle – a videotape of his famous client, John DeLorean, "caught in the act." He convinced the jury that DeLorean was not a conspirator, but instead the victim of a law enforcement conspiracy. Facing Outrage Clarence Darrow, as defense counsel in Illinois v. Nathan Leopold & Richard Loeb (1924), demonstrates masterfully the concepts of facing difficulties, developing the theme, and requiring accountability. Darrow admitted the two young defendants callously killed a fourteen-year-old boy, but insisted their punishment should not be death. He faced substantial obstacles in the case – including outrage over the nature of the murder and the defendants' lack of remorse, resentment of the defendants' wealth and social status, and the public outcry for execution. Darrow turned the obstacle of the defendants' social and economic status into the theme of his case, classism. His theory was that if his clients had been poor, the state would not even have asked for a death sentence. Darrow argued that the prosecutor then would have accepted a guilty plea and sought life imprisonment. Darrow also held the trial judge solely and unequivocally accountable for the fate of the defendants: Your Honor, it may be hardly fair to the court . . . to place a serious burden upon your shoulders. And at that, I have always meant to be your friend, but this was not an act of friendship. I know perfectly well that where responsibility is divided by twelve, it is easy to say: 'Away with him.' But, Your Honor, if these boys hang, you must do it. There can be no division of responsibility here . . . . It must be by your deliberate, cool premeditated act, without a chance to shift responsibility. Helter Skelter In these cases, the opportunity to arouse passions is abundant. Witness the trial of Charles Manson and his "family" for the 1969 gruesome murders of actress Sharon Tate and four others at her home and the vicious murders the following night of Leno and Rosemary LaBianca. These bizarre and seemingly random killings terrified the citizens of Los Angeles. Yet in his prosecution, Vincent Bugliosi, Jr. faced one major problem. Charles Manson was not present when the killings took place. Coolly and methodically, Bugliosi proved Manson masterminded the murders to further his fanatic plan, dubbed "helter skelter," to promote race war. In his closing, Bugliosi demonstrates a masterful blend of arousing emotion, while still keenly honing the jurors' abilities to reason their way to a conviction. It's Just Time In the murder trial, more than thirty years after the killing of civil rights leader Medgar Evers in 1963, prosecutor Bobby DeLaughter creates an excellent example of the triumphant ending in Mississippi v. Byron De La Beckwith (1994). The first two trials of De La Beckwith ended in hung juries when the forces of segregation were still strong in Mississippi. The authors contend that in the early sixties, the fundamental question for jurors was not was there a murder, but rather whether it was a crime for a white man to kill a black man. In 1994, De Laughter recast the case as not being about the black and white races. In his case and his argument, the jury had to chose – identify with a cowardly racist who ambushed and shot a man in the back as he came home to his wife and children, or uphold the reputation of Mississippi as a state of civilized society. De Laughter had to overcome many obstacles, but especially the passage of time. To reinforce the defendant's guilt, he repeated a compelling mantra throughout the argument – "His gun. His scope. His fingerprint. His car." The defense tried to defuse the "Mississippi on trial" argument, but DeLaughter did not let the jury off the hook: Mississippi is not on trial . . . . [B]ut this I do know . . . . Justice in this case is what you twelve ladies and gentlemen say it is. So in this case, in effect, you are Mississippi. So what is Mississippi justice in this case, ladies and gentlemen? What is Mississippi justice for this defendant's hate-inspired assassination; assassination of a man that just desired to be free and equal? [H]old him accountable, find him guilty, simply because it's right, it's just, and Lord knows, it's just time . . . . Is it ever too late to do the right thing? For the sake of justice and the hope of us as a civilized society, I sincerely hope and pray that it's not. De La Beckwith was convicted. As De Laughter reflected, Mississippi had freed itself of the shackles of the past and could, at last, move on. As much as this book is a survey of the sins of the 20th Century, it is also a testament to the courage of lawyers as they do their job, as they do justice. Justice Faith Ireland was elected to the Washington State Supreme Court in 1998, after serving 15 years as a judge of the King County Superior Court. She graduated as one of two women in her class at Willamette University College of Law in 1969, and received a master's degree in taxation with honors from Golden Gate University in 1984. In her capacity as a state and national leader in judicial education, she has promoted professional development for judges at all levels and has sought to diversify the judiciary through programs on judicial selection for minority attorneys. She wishes to thank Anne Watson, law clerk, for her assistance. Editors' Note: For information of related interest, see the Famous Trials website by Professor Douglas Linder. For Books-on-Law reviews of related interest, see Ronald C. Slye's review of Prosecuting War Crimes and Genocide: The Twentieth Century Experience (University Press of Kansas, 1999) by Howard Ball; and Ramona Ripston's review of William M. Kunstler: The Most Hated Lawyer in America (New York University Press, 1999) by David J. Langum (and Langum's reply). ———————————————————————An Observational Theory Cobbled by Faith by Philip Talmadge Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism It's not that Constitutional Revolutions by Professor Robert Justin Lipkin of Widener University is a bad book – it's not. Professor Lipkin offers significant insights into the implications of landmark constitutional decisions. But the book is exceedingly difficult to read; it does not clearly communicate. It's Time for English The book is replete with jargon, a virtual academic patois, detracting from Professor Lipkin's valuable points. A passage at pages 5-6 is representative of so many other parts of the book that make for extremely laborious reading: Accordingly, the crisis of American constitutionalism in general is a crisis of western civilization and epistemology and metaphysics Western civilization defends. Western intellectual inquiry is experiencing a sea change away from grand narratives canonizing and legitimizing primary discourses, discourses through which we experience and act upon the world. This move away from foundationalist epistemology and metaphysics is an indictment of the Enlightenment, and the modernist, scientific spirit that created it. Antifoundationalism challenges the role of reason in intellectual inquiry; it further challenges foundationalist conceptual schemes and the prominence of the notions of truth and objectivity endemic to such schemes. Essentially, this challenge denigrates the viability of key foundationalists dichotomies such as the objective and subjective; the real and the ideal; truth and justification; mind and body; altruism and egoism; the public and the private; the descriptive and the prescriptive; abstraction and contextualism; and so forth. Come on, Professor. In English, please. (See generally Pierre Schlag, "Normative and Nowhere to Go," 43 Stanford Law Review 167 (1990)). Practical Holes On the substantive side, Professor Lipkin's doctrine of constitutional revolutions is an observational theory wistfully punctuated with an element of faith. Professor Lipkin believes judges engage in revolutionary decisionmaking through judicial review. Such "revolutions" include decisions of Chief Justice John Marshall, the New Deal's post-Lochner decisions in the economic realm, and decisions beginning with Griswold v. Connecticut (1965) preserving an individual right of privacy. Sensing new cultural and political factors, judges can identify the larger constitutional good, apart from the textual anchor to the United States Constitution; they can encapsulate and enshrine new constitutional doctrines in their judicial decisions. Traditional stare decisis functions only when judges apply the revolutionary constitutional doctrines. Lipkin also believes revolutionary judicial review is more compatible with progressive theory than with other doctrines. Judicial review achieves the communitarian ideal for constitutional law because judges give an appropriate "second look" to social decisions. Professor Lipkin summarizes his doctrine of constitutional revolutions at pages 238-239 as follows: Revolutionary change drives judicial review by translating cultural factors external to the judicial system itself into judicially and politically workable constitutional principles and rules. The theory of constitutional revolutions integrates a theory of constitutional moments with a theory of judicial reasoning by combining Kuhn's theory of conceptual change with the concept of wide reflective equilibrium, that is, a pragmatist interpretation of the relationship between constitutional fit and justification. The court revolutionizes constitutional practice when a majority of judges perceive a constitutional crisis that demands resolution in contemporary terms not contained in that form in the constitution. Ackerman's dualism is a theory of this sort. However, Ackerman's dualism gives the Court merely a preservationist role and binds it to three different constitutions, or constitutional regimes, exclusively. Professor Lipkin then adds: By contrast, the theory of constitutional revolutions supports a prophetic role for the Court that is both restricted to and liberated by constitutional practice. For a majority of judges to institute a revolution, each justice must believe that a particular decision, though short on history, is nevertheless the morally best, or pragmatically necessary, decision in the relevant circumstances. This reconstruction of constitutional moments and judicial reasoning creates a syncretic conception of American constitutional practice, a conception necessary in explaining American constitutional change accurately. This explanatory claim itself has normative force because, in the absence of neutral perspectives a presumption exists in favor of the way we do things, unless there are formidable reasons to the contrary. Once the theory adequately satisfies this explanatory dimension of constitutional practice, it has initial normative force. A full justification of the practice of revolutionary review can occur only by showing how it supports and is supported by a preferred theory of American democratic constitutionalism – in my view, communitarian democracy. The legitimacy of judicial review rests in its explanatory accuracy and its support of communitarian democracy. For a viable sense of legitimacy, the central normative question is functionalist: Does revolutionary review contribute positively to efficiency and justice in a communitarian democratic society? Finally, he observes: The goal of communitarian democracy is to determine, if possible, the good of the community, or least its considered judgments concerning the good. This process is a two-step process at least. First, the majoritarian branches speak; then if their voice is unclear or in some other way problematic, causing a constitutional crisis, the nonmajoritarian branch reconsiders, or takes a "second look" at their decision. The communitarian democratic point here is that to ascertain the community's good, or the community's considered judgment, some mechanism for reconsideration is required. This does not render revolutionary judicial review inevitable, but rather reflects how American judicial practice has in fact developed independently, whether or not its original structure was designed in this matter. One can argue that a particular nonjudicial mechanism of reconsideration may be more than compatible with one's preferred conception of democracy, but some mechanism is necessary, and in the context of American constitutional practice, and according to communitarian democracy, revolutionary judicial review has assumed that role. If there exists a better nonjudicial mechanism for second-order judgments that is more compatible with democratic self-rule, its proponents must articulate it. From my real-world perspective as a judge and former legislator, I am skeptical about this analysis; it has glaring practical holes. First, I am uncertain the decisions Lipkin references represent "revolutions." It is more likely the constitutional decisions of the Marshall Court like Marbury (1803) or McCulloch (1819) were revolutionary because they were new; the Constitution had not been interpreted. The later decisions he discusses, like Brown or Griswold were landmarks, but not necessarily revolutions. If the major United States Supreme Court decisions Professor Lipkin references are "constitutional revolutions" rather than merely landmark decisions on the United States Constitution, when does a judge sitting on a particular case decide a "constitutional revolution" is justified? The question is absolutely critical. When a judge senses a "revolution" is needed, that judge may completely ignore prior case law. Professor Lipkin implies a judge will know when a revolution must occur, but that is hardly a predictable decision-making model for our legal system and offers untold temptations to judges (often unelected) to behave functionally as super-legislators, a result not terribly bothersome to Professor Lipkin. As he paraphrases the late Barry Goldwater, "Restraint in the face of constitutional crisis is no virtue, and activism in pursuit of democratic justice is no vice." (222). Moreover, Professor Lipkin's analysis of the American constitutional system largely ignores any role for the other branches of government. Were a person to read Professor Lipkin's book, that reader would assume the executive and legislative branches had nothing to do with the Civil War or the New Deal; the judicial branch of government invented both. The "revolutionary" judicial decisions justified truly revolutionary decisions made in the other branches. Little understanding of the interplay between judicial review and the activities of the other branches of American constitutional system is evidenced in Professor Lipkin's book. The most troubling aspect of Professor Lipkin's constitutional revolutions theory rests in his faith that judicial application of his theory's principles will usually advance communitarian democracy. Not necessarily so. Hasn't he heard of the Reagan Revolution or the Contract with America? It is difficult to reconcile Lipkin's article of faith with the powerful movement in American courts today to turn back the tide on civil rights issues, glorify property rights in a fashion designed to roll back the social legislation of the 20th Century, and limit the scope of personal privacy. If Professor Lipkin is correct that judges are unrestrained by the text of the Constitution and may decide cases based on their perception of larger cultural and political values apart from constitutional text or values reasonably implied from the constitutional text, what is to restrain a judge, in the guise of a constitutional revolution, from overturning basic American constitutional law principles? Why should Marshall's formulations of constitutional nationalism, the civil rights principles of the Fourteenth Amendment and Brown, the post-Lochner era economic cases, or principles of personal privacy articulated in Roe and Griswold be safe from reactionary judges? Isn't a reactionary agenda precisely what some on the United States Supreme Court want? Isn't Roe v. Wade a live issue, a litmus test, in federal judicial appointments? That a judge has very considerable power in interpreting constitutional values, a power unrestrained by majoritarian influences precisely because the decisionmaking is constitutional, is true. But to accept Professor Lipkin's proposition that such unrestrained judicial power is likely to result in communitarian values is highly questionable. The very unpredictably of such decisionmaking is troubling. Ultimately, Professor Lipkin's book on constitutional revolutions is worth the reading, provided the reader is willing to plow through an often obscure analytical thicket. As an observational doctrine, Professor Lipkin's theory of constitutional revolutions may have some merit if we treat most "landmark" decisions as "constitutional revolutions." Whether constitutional decisions ought to be made this way is another matter entirely. I question Professor Lipkin's article of faith that the likely ultimate result of such an unrestrained judicial decision-making process is a progressive society in which communitarian values prevail. As much as I would hope that is true, there are no guarantees. Perhaps a judicial decisionmaking model more restrained in its scope would ensure less precipitous changes in views of the Constitution. (See Philip Talmadge, "Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems," 22 Seattle University Law Review 695 (1999)). Justice Philip Talmadge was elected to the Washington Supreme Court in 1994, where he served until January of 2001. Previously, he was a member of the Washington State Senate from 1979 to 1995. Justice Talmadge is the author of a number of articles on issues relating to appellate practice, judicial administration, product liability, medical malpractice, and attorney fees in civil cases. ———————————————————————A Reply to Justice Philip Talmadge by Robert Justin Lipkin Justice Talmadge presents three main objections to my theory of constitutional revolutions: (1) skepticism concerning the idea of a "revolution;" (2) my insufficient appreciation of the interplay between the judiciary and the other branches of government; and (3) my unsubstantiated faith in communitarian democracy. My response to the second and third objections is that the book is essentially an essay in constitutional jurisprudence written primarily for an audience of legal philosophers and scholars, not a treatise in political science or political theory. As I say on page 120: "The theory of constitutional revolutions is a theory of judicial revolutions." (emphasis in original) Talmadge is correct, of course, to point out that the practice of judicial review necessarily interacts with the operations of other branches of federal and state government. To insist, however, that the jurisprudence of constitutional adjudication is necessarily defective unless it provides a general theory of constitutional change would empty the law libraries across the nation of most of the important works on the nature of judicial review. A Tentative Connection to Progressivism Regarding the third objection, a careful reading of the book will show that the theory's connection to progressivism is tentative and limited. Indeed, I make clear on pages 230-231 that, in practice, conservatives as well as progressives embrace revolutionary adjudication. Further, the book never claims that revolutionary adjudication necessitates progressive values. The claims about communitarian democracy and progressivism, though important in themselves, are secondary and peripheral to the central thesis of this book, which is clearly about the jurisprudence of judicial decision-making in constitutional law. Justice Talmadge directs most of his criticism to, and extensively quotes from, one two-page section of the book. From pages 27-228, however, the book goes to great lengths to articulate a theory of constitutional change with little mention of the theory's connection to progressivism and democracy. Yet inexplicably, Talmadge barely touches the argument in these pages. Keeping that in mind, let me turn to the first objection, which is the only serious criticism of the book's central thesis. Revolutionary Because New The main complaint seems to be Justice Talmadge's skepticism concerning the theory's reliance on the term "revolution." In his view, the theory has "glaring practical holes." For example, such early Marshall Court decisions as Marbury (1803) and McCulloch (1819) "were revolutionary because they were new; the Constitution had not been interpreted." If Talmadge is right, one should think that the Constitution would have constrained even first impressions. Instead, he concedes that these early decisions were revolutionary, thus by his own remarks confirming one important instance of the theory. In the American experience, if not in every case of first impression, "new" interpretations of a recently ratified Constitution are inevitably revolutionary. Moreover, in Marbury, the revolution is not merely new; it is stupendous. Nowhere does the Constitution explicitly grant the Court the power of judicial review. Marbury might have been decided in a dozen different ways without augmenting the Court's Article III powers; indeed, the opinion in Marbury need not have been written at all. The ultimate disposition of the case rests on the Court's lack of jurisdiction. For a restrained Court, or even a less revolutionary Court, the case should have ended there. Yet, Marshall seized the revolutionary moment by anticipating the importance of a judicial counterweight restraining exclusively majoritarian institutions. Similarly, Marshall's capacious interpretation of the "necessary and proper" clause in McCulloch helped realize his own nationalist conception of the fledging union. Neither decision was necessitated, nor arguably even permitted, by a non-circular appeal to such restrained interpretive factors as the Constitution's text, intent, structure, or history. Consequently, it is difficult to take seriously Justice Talmadge's insistence that these decisions were not revolutionary. Of course, there is also a dark side to revolutionary adjudication. For example, Dred Scott v. Sandford (1856) is a revolutionary decision that rendered our nation's long and troubled attempt to eradicate racial injustice infinitely more difficult. The existence of revolutionary adjudication in the wrong hands can be a disaster, and neither law nor legal theory can tell us when revolutionary decisions are wrong. Only political and moral argument can do that, and in a pluralist society it can do so only contestably. Although no guarantees are possible, revolutionary decisions in the right hands can be a vital part of a progressive, deliberative democracy. It is the people's responsibility to make sure that the right judges are selected. Landmark vs. Revolutionary Justice Talmadge also describes such later decisions as Brown (1954) and Griswold (1965) as "landmarks, but not necessarily revolutions." This use of the word "landmark" is a great example of how ordinary descriptions can camouflage and distort more forcefully than philosophical or jurisprudential jargon. What does it mean to describe a decision as a "landmark" case? Typically, as in this review, the use of this common label is left completely unexplained. Talmadge never tells us how "landmark" decisions differ from revolutionary ones. My diagnosis of this problem is that landmark decisions are decisions no one ever quite thought of before, but once articulated seem right or even necessary to achieve important political goals. Because of their perceived importance, and because we are under the spell of the myth of the explanatory value of prior law, we duplicitously conclude that landmark decisions were always part of the law. This implausible charade distorts the revolutionary dimension of constitutional adjudication. Until someone shows how landmark decisions are already contained in prior law, the better view is to face reality by jettisoning the myth that prior law explains revolutionary cases. As a final observation, like the Rehnquist Court, Justice Talmadge calls for a "judicial decisionmaking model more restrained in its scope." Ironically, the Rehnquist Court's recent election decision, which for the first time in American history gave the U.S. Supreme Court the authority to choose the next American President, is greater evidence of the theory's persuasiveness than anyone could have imagined. Robert Justin Lipkin is Professor of Law and H. Albert Young Fellow in Constitutional Law at Widener University School of Law. In 1974, he received a Ph.D. in philosophy from Princeton University and in 1984 a J.D. from UCLA School of Law. During 1984-85, Professor Lipkin was a judicial clerk for the Honorable Gilbert S. Merritt, U.S. Court of Appeals for the Sixth Circuit. ———————————————————————Judging Justice by Elaine Houghton Legal Blame: How Jurors Think and Talk About Accidents An important task for any author is identifying his or her audience. An unfocused perception of one's audience will often result in an unfocused work of little use to any audience. Three potential audiences for Legal Blame spring to mind when reading the book: trial lawyers, social psychologists, and laypeople. Unfortunately, Professor Neal Feigenson cuts a path among all three of the groups, and offers a work of little value to any of them. Skip the "Policy" Chapter from First-Year Torts Legal Blame begins with a rather dry chapter entitled "Legal Rules and Expert Rationales: Accident Law and Philosophy." This chapter purportedly creates a context in which the reader can understand "the formal law governing accidents and the expert justifications proffered by legal scholars and philosophers for assigning responsibility and awarding damages." It is a chapter taken straight out of a first-year torts casebook, the one called "Policy." To his credit, Professor Feigenson does note that lawyers, law professors, and law students may wish to skip the chapter and move straight into the social psychology discussion. After having read the chapter, I would recommend that all readers skip the chapter. Feigenson attempts to distill into forty pages both the procedural (jury selection, trial procedure, instructions, etc.) and substantive (negligence, strict liability, causation, etc.) law of torts, and the various and often conflicting theories behind the tort system (corrective and distributive justice, social utility, economic efficiency, etc.). Key to the criticism of this chapter is that various theories explain the tort system. There is hardly consensus between Richard Epstein and Richard Posner, and no theory has the monopoly on "right" answers. Given the lack of expert consensus and the lack of uniform substantive tort law, and in light of the remaining book chapters, I question whether the chapter creates a context relevant to Feigenson's thesis – that jurors mete out "total justice." "Total justice" is frequently drawn in contrast with legal rules and theories. Feigenson argues that meting out "total justice" often produces a result concordant with that required by law, but given the apparent general irrelevance of legal rules and theories to a jury's verdict, the reader is left wondering why he or she suffered through them in the first place. Losing the Interest of Most Readers In the next two chapters, Professor Feigenson reviews research in social psychology that bears on how people think about responsibility and compensation for accidents. In other words, relying upon various psychological studies, he outlines the varying mental processes by which people make decisions. It is in these two chapters that Feigenson will lose the interest of most readers, or rather, that most readers will lose interest in Legal Blame. The chapters are full of phrases like "knowledge structures and inferential heuristics." The committed reader will quickly realize that these important sounding phrases are little more than soft-science lingo for context and decision-making by reference to past experience and prior knowledge, even if it is actually irrelevant or erroneous. We also learn that decision-makers frequently misunderstand statistics, rely upon 20/20 hindsight, and are swayed by emotions. The two chapters painstakingly detail and substantiate information so fundamentally basic that it is of little use to a lawyer or a layperson. It is hardly a revelation to anyone that statistics are frequently misused or subject to manipulation, that people generally think their personal experience is representative of everyone else's, or that decisions about right and wrong may be based on sympathy. Furthermore, the chapters appear to be generally useless to social psychologists as well, since Feigenson does nothing more than provide short synopses of dozens upon dozens of prior studies. The Melodramas of Jury Decisionmaking Attempting to tie these chapters together, Professor Feigenson moves into a discussion of what amounts to basic trial advocacy in the abstract. Jurors, as do most people, prefer stories to rules. Judging from Professor Feigenson's assertions, the stories people most prefer can be found in what amount to morality plays, or "melodramas." People represent traits, traits direct action, and actions cause effects (e.g., the lazy man refused to help another and as a result the other was injured while trying to do the job of two). Jurors recast an accident as a melodrama because the melodrama provides a familiar framework to help them decide liability. According to Feigenson, the melodrama framework encourages jurors to conceive of an accident as monocausal. Thus, jurors use heuristics, or mental "rules of thumb," to seek out the cause of an accident and the bad actor in their melodrama. First, they use a preconceived script of what they think should have happened (e.g., workers help each other out when help is needed). They then look for the deviation from that script (e.g., the lazy man who declines to help out a fellow worker in need). This deviation from the "normal" script is seen as the "cause" of the accident. The "cause" is often what appears most available to them – the deviation that stands out the most, rather than the deviation that could have had the greatest effect. Jurors look for situations familiar to them, and import their own past experiences to substitute for what actually occurred. Finally, jurors tend to blame a party because of the type of person he or she is, rather than because of the situation he or she was in when the accident occurred. Jurors use these scripts, available causes, preconceived resemblances, and blameworthy types of people to form the melodrama. From this melodrama, the jurors apply their common sense to decide whom to blame. But Feigenson argues that the Manichean world of the melodrama is necessarily tempered by the inescapable reality that jurors are procedurally and socially constrained from simply voting in favor of the "better" person. It is at this point that Feigenson introduces his theory of "total justice." "Total Justice" Jurors also have conflicting attitudes, emotions, sympathies, and biases that influence the script of the melodrama, and they attempt to balance all accounts between the parties. The jurors' desire to construct a melodrama and the cues they get from these various influences help shape the end result Feigenson calls "total justice." These attitudes and emotions are influenced by at least three factors: the substantive and procedural law, the expert legal opinions of the judge and attorneys, and the facts of the case. Whether the substantive law of negligence or strict liability governs the issue, or what comparative fault scheme exists in the state will influence how jurors think. The trial setting and rules of procedure affect how the jurors get the information and process it. In one interesting anecdote, twelve mock jurors recast their votes after being told that their state law employed limited and not pure comparative negligence. The plaintiff's degree of blame dropped 2 points to 49%, thereby enabling a recovery by her estate. Jury instructions and attorneys' arguments can also persuade the jurors to decide one way or another. Finally, as Feigenson obtusely notes, the exact facts of a case are key to how jurors decide whom to blame. The slightest variance in any of these three factors can cue different responses from jurors and make them more pro-defendant or out to get the deep pocket. Total justice has several aspects. First, jurors want to balance the accounts between the parties. Blame is allocated according to the perceived "fault" of the respective parties, and it is done so in a way that attempts to resolve all issues between the parties. An injured plaintiff is compensated only to the degree to which the defendant injures him or her, and the defendant pays only that amount corresponding to his or her culpability. Jurors will incorporate all information they think is relevant, even if it is not legally relevant. They rely not only upon the evidence set forth at trial, but also on their personal experience and their inherent prejudices and emotions. Key to the jurors' verdict is the need to feel right about the decision and eliminate bad feelings caused by any injustice. Finally, the decision is made as a group; jurors want to agree, and even when they are seeking to persuade, they seek to project themselves as consensus-builders. The result is a holistic judgment that may conflate elements of causation and foreseeability, or ignore basic elements of a legal cause of action. But despite the stubborn refusal of jurors to simply apply law to fact, the blame placed on the litigants by the jury is often legally "correct." Professor Feigenson then uses this framework to dissect closing arguments from three cases and transcripts from several mock deliberations. These chapters will undoubtedly be the most interesting for many readers, if only because readers are given the chance to read lawyers' effective and ineffective arguments and listen to jurors reduce complex issues using simple and clearly erroneous heuristics. (In one complex causation case involving drug-induced birth defects, one juror stated "an equal number of experts on each side means the evidence is balanced.") So, What's the Point? But, whether the chapters are interesting is not the same as whether they are useful to lawyers, laypersons, or psychologists. Unfortunately, the most captivating chapters of Legal Blame are little more than anecdotal accounts of result-oriented jurors and good advice about how to frame a case. Metaphors and analogies can be persuasively employed. Creating a story that portrays a person's behavior as deviant makes it easier for the juror to blame that person. Encouraging jurors to be "active decision-makers" empowers jurors and allows them to tap into the various extra-legal forces that drive a layperson's determination of fault. It is the sort of information the best trial lawyers may intuitively know, or have already learned by experience or by reading any of the numerous texts on effective trial advocacy. Even for the neophyte trial lawyer, however, Legal Blame offers little in the way of substantive advice that could not be found in a more focused and direct work. The evidence Professor Feigenson provides supports his theory of total justice, but one is left wondering what the point of Legal Blame is. Is it intended to bolster support for and justify jury trials as Chapter 8 would indicate? Is it intended to guide social psychologists in their research of group decision-making? Is it intended to help lawyers understand how most effectively to frame a legal theory? According to the dust jacket, "Legal Blame explains psychology in a way that is understandable to nonpsychologists and the law in a way that is understandable to nonlawyers. This book is for forensic psychologists, practicing students, lawyers and anyone interested in learning about the psychology of legal persuasion." Psychology understandable to lawyers is of little use for psychologists, and quite likely, of little interest to lawyers. Law understandable to psychologists is of no use for lawyers and quite likely, of little interest to laypersons. In the end, Legal Blame appears to be a work written without a particular audience or purpose in mind, and consequently, a work of little use to anyone in general. My review may appear harsh. But as a trial lawyer, I always believed that trial by jury was the best method ever devised to dispense justice. And serving as a juror since becoming a judge only solidified my opinion. Professor Feigenson does not seem to share my basic trust in jurors and, thus, Legal Blame fails to educate. Elaine Houghton has served as a judge on the Washington State Court of Appeals, Division II, since 1993. While in private practice, she was named Trial Lawyer of the Year by the Washington State Trial Lawyers Association. Judge Houghton is grateful to her law clerks, Jason Burnett and Ramsey Ramerman, who also read Legal Blame and provided valuable insights. Editors' Note: For a Books-on-Law review of related interest, see generally Randy E. Barnett's review of Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press, 1998) by Clay S. Conrad; and Marion Crain's review of The Excuse Factory: How Employment Law is Paralyzing the American Workplace (Free Press, 1997) by Walter K. Olson. See, as well, Justice Holmes' review of C.G. Addison, The Law of Torts (Little, Brown, & Company, 1870) followed by Professor Thomas Grey's commentary. ———————————————————————Skip the LSAT & Bag the Bar by William L. Downing Law 101: Everything You Need to Know About the American Legal System The first year of law school leaves an indelible mark on those who submit themselves to its ministrations. Besides absorbing a lot of detail about a vast array of legal disciplines, the good law student before long has morphed into a being that approaches all issues by thinking like a lawyer. In theory, that does not mean contentiously, but rather with a heightened appreciation for the subtle complexities of life and the law. In Law 101: Everything You Need to Know About the American Legal System, Professor Jay M. Feinman sets out to give the lay reader all the benefits of that first year of law school without the tedium, the terror, and the sleep deprivation. The premise and the promise of this book embody a paradox. The premise is that it really is not so difficult for lay people to gain a working understanding of the proper analysis of the many controversial legal questions that swirl about in the public eye. It is Feinman's promise, however, that once this skill is mastered, suddenly the answers to those questions do not seem as simple as the ones arrived at by gut instinct, self-interest, or peer pressure. A comment made in introducing a discussion of the constitutionality of affirmative action could well serve as the book's epigram: "The issues are simple to state but difficult to solve." One senses that the author would like nothing better than to see the column of undecideds increase when public opinion polls are taken on issues such as flag burning laws, the Miranda rule, handgun control, punitive damage awards, and a host of others. The Curriculum Professor Feinman, Distinguished Professor of Law at Rutgers University, provides in this book the full catalog of required first year courses. In separate chapters, classes are presented ("seriatim" is a word Feinman would not use, and neither will I) in constitutional law, civil procedure, torts, contracts, property, criminal law and criminal procedure. One hands-down advantage this book has over getting a legal education the old-fashioned way is that the reader faces no possibility of getting called on to recite by Professor Kingsfield. This does not mean that Professor Feinman abandons the Socratic method altogether. His text is generously sprinkled with thought-provoking questions, all right, but he kindly goes on to answer them himself. "Does constitutional law require that everyone be treated equally?" he inquires, and then waits a beat. "No, it doesn't," he responds, and then goes on to distinguish the guarantee of equal protection of the laws. Perhaps the best use of this rhetorical device is the pattern query which appears in each chapter: "Why do we need constitutional law?", "Why do we need civil procedure?", "Why do we need tort law?" and so on. There are answers and they are good ones, as Professor Feinman demonstrates how historic, social, and economic factors have shaped each area of the law and how they also provide a shifting contemporary context. The Course Level Certainly, there are many elitists in academia and the judiciary who glory in the secret mysteries of the law. Not Feinman. He believes the law could and should be accessible to all. In this wholly commendable view, the law is not at its most engaging when it stays stuck on the lofty plane of grand principles and Latin phrases. When, instead, it is seen as a mechanism central to the resolution of issues in the lives of real people, it becomes for all approachable, graspable and, ultimately, respectable. So, Professor Feinman skips the academic hypothetical and serves up stories of real people, introducing or reintroducing the key characters in some important legal dramas. Should the delusional Daniel M'Naghten be held responsible for killing the Prime Minister's secretary? Should Helen Palsgraf's freak accident give her a good claim against the Long Island Railroad? Should those who failed to come to the aid of Kitty Genovese be criminally liable? And what should McDonald's have had to pay for seventy-nine year old Stella Liebeck's coffee burns? It is the author's intention to get the reader to see how the law has grappled with those "should" questions and arrived at answers through the balancing of competing goals of society. The reader is then prepped for grappling with the next questions that spin off from these. Answers begin to come less easily as the reader comes to appreciate the force of the arguments to be advanced on both sides. The people involved in the events leading to the 1980 U.S. Supreme Court case of World-Wide Volkswagen Corp. v. Woodson play an important role in Feinman's discussions. The Robinson family was moving their home from New York to Arizona when, somewhere in Oklahoma, their Audi was struck from behind by a drunk driver. The Robinsons' gas tank burst into flame and several family members were seriously injured. While it was the issue of personal jurisdiction that eventually brought the case to the Supreme Court, Feinman uses these underlying facts to address a wide range of procedural and tactical matters. In a good example of Professor Feinman's craft, he explains tort liability's central concept of "duty" by neatly laying out the societal values that are in tension: "If Audi did not owe a duty to passengers, it would have much less incentive to manufacture safe cars. Conversely, if it owed a duty to compensate people who were upset by hearing about the accident on the television news, its liability would be overwhelming." (127) The Teaching Style These legal lessons are presented in a style that is nearly always engaging and very often humorous. The author suggests that the "reasonably prudent person" is something of a nerd whom most of the rest of us would usually find annoying, and that a synonym for tortfeasor is "the bad guy." He offers brisk sentences like "Life is complicated" and "Property covers a lot of ground." For the most part, Feinman writes with confidence and creativity, giving old subjects a fresh perspective. He asks the reader to think about contract law by giving the example of placing an order at a McDonald's drive-through window. Then he explains why, under the objective theory of contracts, crossed fingers behind the back cannot void a promise. Even when one is not totally certain it is not an oversimplification, it is delightful to contemplate such plain talk as "Contract law . . . is concerned with what will be . . . . Property law, on the other hand, deals with what is . . . . Tort law looks to what was." (172) It is only in the lesson on criminal procedure where Professor Feinman seems to lose some of his verve and his nerve. In this area (one of the few he seemingly has not taught at Rutgers), he inexplicably reverts to the traditional casebook devices of case citations and quotes. It is almost as if, with the end of the school year fast approaching, he is running to the shelter of the law library and those "dust-covered, leather-bound tomes of precedents" he had earlier disparaged. Forgetting the human drama of his subject, he tries to cram details and, in so doing, runs a risk of imparting misleading information about such unnecessary fine points as the availability of nolo contendere pleas, preliminary hearings and Batson challenges. The Campus As a survey course, Law 101 maps a lot of real estate. It has been said that after learning arboreal species identification in law school, the typical lawyer goes on to a practice that involves minute examinations of twigs and branches. Court rules, administrative code provisions, specific statutory language, and controlling legal authority become the dense foliage on the tree up which he or she will professionally bark. This book provides an uncommon and edifying opportunity to get the full, unobscured forest into one's field of vision. Many readers will find most valuable Feinman's observations about historical trends in the law. These comments place in a helpful context his descriptions of where the law stands at present and where it may be headed. For example, he points out that freedom of contract and its companion principle, freedom from contract, are not what they once were. As our society has evolved, it is now more clearly perceived that "choice in a contractual setting always operates against a background of legal policymaking." (177) Similarly, he suggests that much of property law – with its feudal origins – may be in the process of becoming obsolete in a world in which more property is intangible than tangible. "[P]roperty law is not about things" he writes, but rather is "about the allocation of value in society." (209) The Student Body Law 101 belongs on the required reading list for all those who would benefit from gaining a broad but not too deep knowledge of the workings of the law. At a minimum, this group includes prospective lawyers and journalists, as well as any other young person who aspires to a policy making or opinion shaping position. Besides picking up a fair bit of useful legal detail along the way, such a reader will gain an appreciation for how our traditional societal values mix with an evolving public policy and get applied to real life dramas to produce the subtle complexities of the law. Even for those who have already arrived at such positions, a few evenings spent with this breezy volume should provide a timely sabbatical on a campus affording a splendid view of the luxuriant forests of the law. William L. Downing has been a King County Superior Court Judge since 1989. He serves as Chair of the YMCA High School Mock Trial Program, Co-Chair of the Washington Supreme Court Committee on Pattern Jury Instructions, and is Chair of Washington's Bench-Bar-Press Liaison Committee. Editors' Note: For a Books-on-Law review of related interest, see Francis J. Mootz III's review of Legal Language (University of Chicago Press, 1999) by Peter M. Tiersma. ———————————————————————Talkback JURIST would like to hear your reaction to our reviews: ————————————————————————————— JURIST: Books-on-Law™ is edited by Ronald K.L. Collins and David M. Skover of the Seattle University School of Law. Board of Editorial Consultants: Raj Bhala, George Washington University Law School; Miriam Galston, George Washington University Law School; Kermit Hall, Utah State University; Yale Kamisar, University of Michigan Law School; Lisa G. Lerman, Catholic University of America School of Law; Christine Littleton, University of California at Los Angeles Law School; David M. O’Brien, University of Virginia Department of Government and Foreign Affairs; Judith Resnik, Yale Law School; Edwin L. Rubin, University of Pennsylvania Law School; Steven H. Shriffrin, Cornell Law School; Nadine Strossen, New York Law School; David B. Wilkins, Harvard Law School. Administrative Assistant for Books-on-Law: Ms. Nancy Ammons © Ronald K.L. Collins and David Skover, 2001. |