BOOKS-ON-LAW/Book Reviews - June 1999; v.2, no.6

• Gerber, Scott D. First Principles: The Jurisprudence of Clarence Thomas.   Reviewed by Howard Ball.  Reply by Scott D. Gerber.
• Kibel, Paul Stanton. The Earth on Trial.  Reviewed by Stephen L. Kass.  Reply by Paul S. Kibel.
• Schlag, Pierre. The Enchantment of Reason.  Reviewed by Michael Fischl.
• Thomas III, George C. Double Jeopardy: The History, The Law. Reviewed by Susan N. Herman.
• Tushnet, Mark. Taking the Constitution Away from the Courts.  Reviewed by James O'Fallon.
• Young, Cathy. Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality.  Reviewed by Mary-Christine Sungaila.
• Talkback

Feminism, Equality, and the "Gender Wars"
by Mary-Christine Sungaila

Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality
Cathy Young
New York, NY: The Free Press, 1999
Cloth: $25.00
Pp. 360

Susan Faludi's Backlash: The Undeclared War Against American Women (Crown: 1991) revitalized the women’s movement by revealing how far women still had to go to achieve gender equality.  Now, as the decade closes, it has become fashionable to proclaim the demise of feminism, or at least to call for its retirement.  Last year, the cover of Time Magazine rhetorically inquired: "Is Feminism Dead?," and then, through a series of photographs of Susan B. Anthony, Betty Friedan, Gloria Steinem, and television’s flighty Ally McBeal, proceeded to provide the purported answer (a resounding "yes").  On the book front, Christina Hoff Sommers asks Who Stole Feminism? (Simon & Schuster, 1994) and twenty-something Wendy Shalit argues for A Return to Modesty (Free Press, 1999) in relations between the sexes (which she claims was eradicated by the feminist movement and the sexual revolution).

Ceasefire! is the newest entrant in the race to criticize feminist values and challenge the continued vitality of the women’s movement.  Journalist Cathy Young, a self-proclaimed "dissident feminist" in the mold of Christina Hoff Sommers, Daphne Patai, Katie Roiphe and Elizabeth Fox-Genovese, argues that the women’s movement has hardened along anti-male ideological lines and fostered unfounded myths of gender violence and oppression.  As a result, it is ill-equipped to complete the "unfinished business" of achieving social equity between the sexes.  Young argues that "a philosophy that is not pro-woman (or pro-man) but pro-fairness" is required instead.

The contours of this new philosophy are outlined in a "12-step program" laid out at the close of the book.  Among other things, Young proposes that we:

• stop politicizing the personal wrongs of both sexes;
• cease applying a presumption of sexism to every conflict involving a woman;
• stop obsessing about gender differences;
• narrow the definitions of rape and sexual harassment;
• remove gender politics from the war on domestic violence;
• presume that fathers and mothers are equal parents, even though they may play different roles;
• and stop treating women as a whole, and as a political interest group whose claims are more legitimate than men’s.

Young does not know whether "this philosophy should be called feminism or something else," but she is certain that "[t]he biggest impediment to its development is what passes as feminism today."

It is difficult, however, to buy Young’s conclusion that modern feminism is outdated, no longer required, and an impediment to the achievement of true gender equality.  This is so primarily because the least convincing aspect of her book is her attack on statistical data and anecdotal evidence establishing the persistence of gender inequality.  For example, she dismisses Faludi’s argument that the proportion of women in elite fields such as economics and the natural sciences declined slightly in the late 1980s, by pointing out that the number of female economists actually fluctuated during this period (from 38% to 35%, and back up to 36%) while the proportion of women working in the natural sciences in fact rose (from 20% to 27%).  The few percentage points of difference does not support Young’s charge that Faludi (and feminists generally) grossly overstate statistical evidence in order to foster a myth of female oppression.  Moreover, Young’s argument ignores the larger questions raised by these statistics.  Why are there so few women in these professions to begin with?  Might there not be some link between these low percentages and women’s overall status in society?  In an effort to debunk the foundations of feminist thought, Young fails to see the forest for the trees.

Young does not lay all the blame on feminism.  Toward the end of Ceasefire!, she also criticizes the so-called "men’s movement," asserting that "[l]ike the claims of ‘victim feminists,’ who leap from the fact that adult rape victims are overwhelmingly women to the pronouncement that rape is at the core of the female condition, many ‘masculist’ grievances are a muddled mix of truth and melodramatic exaggeration."  She lays less blame on social conservatives, whom she acknowledges for raising important questions about the divisiveness of radical feminism.  Her primary complaint is that conservatives have hindered the effectiveness of their own efforts by espousing rigid sex-specific standards at the same time as they attack feminism.

By the book’s end, it becomes clear that, in Young’s view, no "movement" can or should finish the work that feminism started.  For her, the personal is not political; it’s simply personal.  As a result, in her opinion, government should not socially engineer sexual equality because to do so would intrude into the personal lives of men and women.  And political discourse should focus on men and women as human beings, not on gender differences.

While Young’s message -- that we are all individually responsible for achieving gender equality -- is instructive, her wholesale rejection of feminism and gender politics reflects a misunderstanding of the amount of work that still needs to be done.  Early on, Young urges that each of us should hold two ideas simultaneously in mind: "That men are more likely to think and act in some ways and women in others, and that every man or woman should be treated as an individual."  This should hold equally true on a societal level: we should be able to address systemic inequalities through law and politics, while also relying on individuals to eradicate more subtle instances of discrimination.  And make no mistake about it -- contrary to Young’s assertion, broad-based inequities do still exist.  In Speaking of Sex: The Denial of Gender Inequality (Harvard University Press, 1997), Stanford Law Professor Deborah Rhode documented these persistent large-scale gender disparities, reflecting a social injustice that, she concluded, is more appropriately addressed by society as a whole rather than just by individuals on a case-by-case basis.

As columnist Ellen Goodman once observed, "People have been writing premature obituaries on the women’s movement since its beginning."  In large part, Ceasefire! is one of them.  But the book is still instructive for those who care about equality.   Its emphasis on individual responsibility for social change reminds us that, to effect such change, we cannot rely on feminism alone.  Achieving true gender equality will require the day-to-day work of individuals, as well as that of widespread social movements like feminism. Ceasefire! is right to emphasize the importance of individual action.  Where the book goes wrong is in concluding that individual action is all that is required.

Ms. Sungaila is associated with Horvitz & Levy LLP, California’s oldest and largest civil appellate firm.  She has participated in a number of women’s rights cases before the U.S. Supreme Court, including Davis v. Monroe County, the Title IX student-to-student sexual harassment case before the Court this Term.   She is an occasional contributor to Books-on-Law.

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Clem’s Lament, Reason’s Hammer, and the Matrix
by Richard Michael Fischl

The Enchantment of Reason
Pierre Schlag
Durham, N.C.: Duke University Press, 1998
Cloth: $49.95 / Paper: $16.95
Pp. ix, 160

When I was a Washington lawyer, I lived in a group house in Upper Northwest with some unforgettable characters: Stu the sweet and spacey medical resident; John the oh-so-serious law student; Bob, the tuba-playing gourmet chef; and of course Gardiner, the free-spirited and frequently stoned chimney sweep.  For a few months in the spring of 1981, things got even more interesting when we were joined by Clem, who came to us straight from central casting to play the "eager but innocent kid from the Midwest" -- a role I confess I’d once played myself.

Clem was in D.C. for a college-credit internship with his hometown congressman and had the great misfortune of timing his visit during our brief but intense "health food" phase.  A 60’s-style natural food market, Hugo’s, had just opened up a short drive from the house, and we had taken to consuming all sorts of organic produce; more bean curd than I care to remember; and legumes and sprouts none of us (not even Bob the gourmet) had previously known to exist.  For his part, Clem was pretty much a meat and potatoes and gravy and Wonder Bread fellow, and it took some doing to wean him from his down-home tastes.  The list of foods we wouldn’t even allow in the house overlapped substantially with his favorites.

In retrospect, he was an awfully good sport and even seemed to be "getting it"-- at least until one Saturday morning when we decided to make a group breakfast and asked him to run to Safeway for a couple of missing items.  As he entered the kitchen upon his return, he proudly announced that he’d purchased "something special" to share with the rest of us.  Our gratitude gave way to horror as he reached into the grocery bag and pulled out a package of frozen breakfast sausage links -- the kind with a list of ingredients that reads like a high school chemistry text.   "Oh, no!" he cried, responding to our collective gasp.   "Don’t tell me these are bad for you too!"

Keeping up with Professor Pierre Schlag's scholarly work can make a law professor feel a bit like poor Clem.  In an extraordinary series of articles published over the course of the past decade, Schlag has taken the legal academy to task for our obsession with normative prescriptions (see, e.g., "Normative and Nowhere to Go" and "Normativity and the Politics of Form"); for our tendency to turn out bench memos and appellate briefs in the guise of scholarly work (see, e.g., "‘Le Hors de Texte, C’est Moi’ -- The Politics of Form and the Domestication of Deconstruction" and "Clerks in the Maze"); and for the many ways in which we try to enlist "the Law" to accomplish these agendas for us (see, e.g., "The Problem of the Subject" and "Law as a Continuation of God by Other Means").  With the publication of the book under review, Schlag has set his sights on a new target: the role of reason in law and legal theory.  Now I am a great fan of this body of work, but in reading The Enchantment of Reason, it was difficult not to react at first with a version of Clem’s lament:  Oh, no, Pierre. Don’t tell us that reason is bad for us too!

Of course, that’s not exactly the point of the book. The Enchantment of Reason doesn’t present an argument against "reason" any more than Schlag's critique of normativity was an argument against "doing the right thing."  But it will almost surely be read as if it did present such an argument; indeed, it was already read that way -- and repeatedly read that way -- by some distinguished scholars who discussed the book at this year’s AALS meeting in New Orleans.  But more on that in a moment.

If I Had a Hammer

What the book does argue is that legal thinkers are -- as the title suggests -- enchanted by reason.  We like what reason does so much that we emulate the little boy who, upon receiving a toy hammer for his birthday, begins to view everything around him as a nail.   So too with the enchantment of reason, for under reason’s spell everything around us begins to resemble something that reason can . . . well, that reason can nail.

Schlag's book is a brilliant and densely argued exploration of the consequences of that enchantment for the professional practices of the legal academy.  We ask a lot of reason.  We ask it to justify our faith in the rule of law.  We want it to serve as the "disciplining mechanism" of the state and, in particular, of the judiciary -- a mechanism "designed to constrain and control a number of human motivations (self-interest, vengeance, hate, love) and certain modes of human interaction (power, prejudice, arbitrariness, sloth)." (20)  A mechanism designed, in other words, to ensure that we are a "government of laws, and not men."

But if reason justifies our faith in the rule of law, what justifies our faith in reason itself?  The stakes are so high that entire forests have died in the service of efforts to answer that question.  Yet Schlag's conclusion is an ironic one: The arguments that would justify our faith in reason don’t live up to reason’s standards.  Those arguments invariably rest on one or more of a series of tricks that, unwittingly or otherwise, flatter the intended audience and/or scare it straight: the "noble scam" (33) (you should embrace reason because it enables important and distinguished legal thinkers to establish the correctness of your most cherished beliefs); the populist leap (you should embrace reason because humans give reasons for their judgments all the time and that many people just can’t be wrong); the ad hominem (or ad porcine) attack (you should embrace reason because scoundrels and pigs reject it); reason’s equivalent to Pascal’s wager (you should embrace reason because it is a safer bet to get you where you want to go); or reason’s equivalent to Don Corleone’s offer you can’t refuse (you should embrace reason because the alternatives -- chaos or unconstrained power or worse -- are mighty unpleasant).

The reasons we offer for our faith in reason thus turn out to be less than reasonable.   Schlag anticipates the classic rejoinder to all of this: "But you are being unfair to reason," the Defenders of the Faith will cry.  "By demanding a reason uncontaminated by belief, you critics are holding reason to standards that are impossible to meet.  We’re talking about human affairs here, and so it is unfair to insist on so stringent a distinction between reason and belief."  Schlag's response to this familiar argument is one of the highlights of the book:

Th[e] demand that reason be distinguishable from belief (in a strong either/or sense) is one that issues precisely from those who have faith in reason themselves. It is they who are so insistent upon maintaining a superior status for reason to what they take to be the other sources of belief -- experience, custom, tradition, insight, intuition, revelation, disclosure, and so on. It is they who insist that reason is entitled to a preferred place in intellectual, political, and legal life. (58; italics in original)

But if reason does a poor job of justifying our faith in reason as superior to other sources of belief, it does an impressive job of obscuring from our view the consequences of our commitment to that faith.  In the context of legal thinking, Schlag observes, reason

can be counted upon to make the other sources of belief -- experience, tradition, perception, and the like -- more precise, more coherent, more integrated.  At the same time, this precision, coherence, and integration is accomplished by abstraction and reduction.  The process of rationalization transforms the manifold meanings of authority, of experience, tradition, perception and other sources of belief into the ordered propositional aesthetic of reason.  The process of rationalization -- of making law rational -- does not merely sort, classify, and organize; it has an aesthetic effect on what is sorted, classified and organized as well.  Something is gained, but something is lost.

Indeed, in this rationalization process, the hold of experience (as experience), tradition (as tradition), perception (as perception) is typically degraded.  And it is easy to see how: to the extent that the raison d’être for experience, tradition, and perception becomes their conformity to reason, they lose their intrinsic power.  The foreign criteria of reason such as coherence and consistency come to displace experience and perception.  When rationalization has completed its work, all sources of belief must be redeemed in the court of reason. (25; italics in original)

As a result, what we get is legal forms that exalt coherence, consistency, precision (and so on) at the expense of richer and more complex understandings.  Like the little boy with the hammer, we focus on targets that reason can reckon with, tend to find them even when they aren’t there, and pretty much ignore the rest of the room.

The Perpetual Reason Machine, or "Reason, Know Thyself"

To be fair, reason and its faithful are not indifferent to this predicament.  To avoid the degradation of experience, tradition, perception (and so on) -- to avoid, in other words, a reason that operates in the same manner as faith or dogma -- reason:

imposes certain requirements on its [own] deployment. . . .  Hence, reason itself requires an examination of the processes by which information and claims are made, expressed, and recalled.  Reason demands an examination of the bases and the grounds for reasons given.  It demands as well correction for biases.  Reason requires as well a certain degree of engagement -- a consideration of not just the reasons for something, but of the reasons against it as well. . . .  All of these self-critical turns are themselves implicit in the very notion of reason. (63.)

Schlag refers to these "self-critical turns" as "critical reflexivity" (64) and acknowledges that critical reflexivity goes some distance toward making reason a potentially self-correcting human activity -- a Perpetual Reason Machine, as it were.

Some distance, perhaps, but not far enough, for critical reflexivity has a host of pitfalls of its own.  To illustrate this point, Schlag invites us to consider a common move in some legal academic circles: introducing one’s argument with a statement like "I am speaking here as a Harvard-educated white male."  As he observes, the statement "brings about a change in the relations of the author, his thinking, and his audience.  Once the author identifies himself as a 'Harvard-educated white male,' the context within which he thinks has now changed to one where both he and his audience understand that his particular ethnic and social identity may have some ostensible bearing in what he thinks." (72)  But why stop the critical reflexivity there?  Perhaps it is even more significant that the speaker is from a working-class family; or that he was raised in the Midwest; or that he is untenured; or that he is longing for approval from his father; or that he really, really wants to teach at Yale; or that . . . you get the idea.

The potentially endless inquiry into the context of argument-generation raises two sets of possibilities, both of them bad.  If you truncate the inquiry, you run the risk that you’ll stop before you identify contexts that warp or bias your inquiry in significant ways.  (The race, gender, and academic pedigree of the speaker may reveal a good deal less about the argument presented than, for example, the fact that the mentor of the author of the article that the speaker is discussing didn’t cite the speaker’s work in his last book.)  But the further you push, the more likely you are to lose sight of the point of your argument -- the object of your inquiry -- in the distraction of endlessly bringing context to the foreground.  Indeed, such "ceaseless critical reflexivity ultimately enshrines itself as the ruling formalism.   There is an ironic sense in which critical reflexivity transforms all contexts into a single context: the search for the contexts of genesis." (65)

What’s worse still -- and here comes one of those astute observations that make reading Schlag’s work such a delight -- today’s critical reflexivity is tomorrow’s rote incantation and just part of the intellectual woodwork by early next year.

What critical reflexivity may at first reveal as an interesting insight into context . . . will eventually retreat into the background where it will once again become a taken-for-granted aspect of context . . . .  Hence, the first time someone announced in a formal scholarly work or presentation, "I am speaking here as a Harvard-educated white male," the statement was probably thought-provoking -- effectively directing the audience’s attention to the relations between social identity of the author and his work.  The audience might have paused to think about the significance of whiteness or Harvardness as an aspect of context.  But through repetition, this act of critical reflexivity, this act of foregrounding, is ultimately retired back into the context.  The self-identification becomes little more than the tired ritual of a familiar and boring political code.  Indeed, for both author and audience, the meaning of "I speak as a Harvard-educated white male" has very likely become "I speak as someone who routinely bores people by identifying himself in his presentations as a Harvard-educated white male." (75)

Reason thus "runs out," in Schlag's felicitous phrase (30), at both ends: It cannot justify our faith in reason and it cannot correct its own tendency to distort or filter out the hugely important dimensions of social life that resist reason’s rule.   But this doesn’t mean -- and he is exceedingly careful not to argue that it means -- that reason and critical reflexivity are pointless.  "It’s just that they are not everything.  And not being everything, they often cannot do the work demanded of them." (75)

So how do legal thinkers respond to this state of affairs?  As a professional culture, we live in a constant state of denial, toiling overtime to make up for the fact that reason won’t do the work we want from it -- hiding behind the curtain, frantically pulling levers and pushing buttons in order to maintain the illusion that reason is still in charge.  Schlag tugs the curtain back to explore the consequences of this state of denial, and they are not pretty: "Reason is made to posit whatever is necessary for law to seem reasoned and rational. . . .  [But b]ecause law cannot be brought into conformity with reason, it is reason that is brought into conformity with law." (17)  The result is that reason "collapses into what it claims to oppose: faith, dogma, prejudice, and company. . . .  The vulnerability resulting from this collapse renders reason a captive to whatever material and social forces predominate.   Reason and thus law itself become vehicles for the rule of the dominant forms of life." (92)

Thus it is that the Defenders of the Faith are revealed as unwitting apologists for the very material and social forces that the rule of law is supposed to tame.

Mechanisms of Denial, Part I: Nailing the Author with the Performative Contradiction

It is the mechanisms that enable our denial of this predicament that fascinate me the most, and they were on full display at this year’s AALS meeting in New Orleans, when The Enchantment of Reason was the topic of discussion at the Law and Interpretation Section program.  The panel included Pierre Schlag; Lawrence Solum (Loyola Law School of Los Angeles), Ed Rubin (University of Pennsylvania Law School), and Jeremy Paul (University of Connecticut Law School).

Full disclosure: (1) Jeremy is one of my oldest and dearest friends, and we are co-authors of a recently published book on law school exams.  (2) I am an unabashed admirer of Pierre Schlag's work.  (3) Because of a recurring ear infection, I was unable to attend the annual meeting this year.  But at Jeremy’s urging, I secured a tape recording of the program in question.  Accordingly that recording --- rather than any first-hand knowledge of what from the sound of it was an extraordinarily lively and provocative session -- is the source for the observations that follow.  (4) And as long as I’m at it, I am a Harvard-educated white male and have been boring audiences with critical reflexivity for years -- though I didn’t know it had a name until I read Schlag’s book.

But I digress, for my topic is not confession but denial, and one way that legal academics attempt to tame Schlag's work is by raising the specter of the performative contradiction.   A common objection to his critique of normativity was that, in telling us not to be so normative, he was being normative himself, and his critique was thus portrayed as a perfect example of exactly what it was he was endeavoring to critique.  Likewise, in the panel discussing The Enchantment of Reason, Professor Solum made much of the fact that Schlag's arguments against reason were themselves reason-based arguments.

Now this is a pretty nifty move; among other things, it permits the person making it to use the expression "performative contradiction" and thus to suggest to the audience that he or she has actually read and even understood Habermas.  At its most banal, it is a sort of "intellectual estoppel" -- the legal academic’s equivalent of "but so are you."  Yet, as anyone who is familiar with his work would expect, Solum’s version was far more serious and formidable:

If The Enchantment of Reason is anything, it’s reasonable.   It’s a book that’s filled with arguments and counter-arguments, with careful parsing of positions.  It studiously avoids emotional appeal, and it does not attempt to make its points by inducing mystic visions.  Thus we might ask . . .: Why hasn’t Pierre committed himself to the standards of reason by employing them in his critique?  Why doesn’t The Enchantment of Reason illustrate reason’s self-correcting power -- the ability of reason to limit its own ambitions to those than can survive its own critical scrutiny?

The claim, then, is not merely that Schalg is estopped from criticizing reason because he relies on it himself, but that his own arguments demonstrate reason’s capacity to overcome precisely the problems and predicaments that he outlines in the book.

That’s one way of looking at it.  But for another way, let’s return to our little boy with the toy hammer.  Imagine that shortly after his mother has told him for the umpteenth time to stop hammering things, he sees her hanging a new family portrait on the living room wall and using (you guessed it) a hammer to drive in the picture hanger.  "No fair!" he cries.  "How come you get to use a hammer and I don’t?!"  The mother’s obvious response -- that it’s okay to use a hammer to hit some things (e.g., nails) but not other things (e.g., your sister) -- is likely to be lost on a lad who is obviously in the thrall of his hammer and thus anxious to deploy it just about everywhere.

Likewise, Schlag's point is not at all that reason is bad or that one should never use it; it is rather that it does some things well, other things less well, and still other things dismally.  And what it does remarkably well is to analyze and criticize arguments of the sort that legal academics routinely deploy as they defend their faith in or deployment of reason.  But it doesn’t follow from this that reason can do all or even most of the other things we demand of it.

The rub, of course, lies in distinguishing the one situation from the other.  And just as the little boy’s hammer can’t tell the difference between a nail and a sibling, neither can reason provide us with a formula or a solution.  If one is enchanted by reason, of course, then only a reasoned distinction will do, and in the absence of a reasoned distinction every deployment of reason will look pretty much the same.  It is thus the enchantment of reason that would lead one to equate Schlag's arguments with the practices he is challenging -- and thus, ironically enough, it is the enchantment of reason that gives rise to the appearance of a performative contradiction in his work.

Mechanisms of Denial, Part II: The Killer Question (Redux) and the Matrix

When it comes to big-time denial, however, it is difficult to beat the question that killed critical legal studies: What would you put in its place?  Here’s Professor Rubin:

A final problem [with The Enchantment of Reason] . . . is that we’re not really given an alternative.  We’re not really told . . . what’s the method that should be used instead.  But I think the problem with this is not an obligation to be constructive; I don’t think a scholar has an obligation to be constructive. . . .  The problem is knowing what you yourself are doing if you don’t take a stand on some alternative approach.  It’s not that it’s impermissible . . . . It’s just very difficult to hold your own perspective in focus if you haven’t stated what it is that you would oppose to reason -- if you haven’t said what you would do in terms of . . . making a commitment to emotion . . . or a commitment to tradition or a commitment to practice or some other kind of thing where at least this would serve to fix the critique a bit.

To be sure, Professor Rubin deserves great credit for attempting to defend the question rather than merely assuming that it deserves an answer, for among legal thinkers the question is more frequently deployed as an imperial command: "For your criticisms to be taken seriously, you must tell us what alternative you have in mind."   Yet as the italicized passage in the above quotation confirms, the reason Rubin gives for even his relatively modest insistence on an answer reflects a number of the assumptions, structures of thought, and practices that Schlag is criticizing: that the scholar who questions the role of reason in American legal thought is "opposed" to reason; that there is a strong either/or distinction between reason (on the one hand) and emotion, tradition, or practice (on the other); that anything of importance is accomplished when a law professor publicly plights his troth with (say) practice and against (say) reason; and so on.

But I’ve said all this before; if you have any interest, you might take a look at "The Question That Killed Critical Legal Studies."  I have a different point to make here, and it is that there is a far more difficult and interesting question that our obsession with What would you put in its place? permits us to ignore.   As I was drafting this review, I had a rare date with my spouse -- for all its joys, parenthood can really clip your wings -- and we went to see the movie The Matrix.  (If you haven’t seen it but plan to, you may want to put off reading the rest of this review, for I’m about to give away important parts of the plot.)

The action takes place about two centuries hence.  In the interim, mankind has finally succeeded in creating Artificial Intelligence, and -- predictably for the genre -- humans and machines have been at war with each other ever since.  At some point, humans "scorched the sky" in a way that permanently blocked most sunlight, in the hope of denying the machines the solar power on which the machines were dependent.   The machines have had the last laugh, however, and are using human beings as the replacement battery.  To that end, humans are harvested and stored in a sleep-like state in millions of individual pods, from which their bio-electricity and body heat are tapped and transformed into a energy source to fuel the machines.

Thus far, this is the ordinary stuff of science fiction.  But the hook lies in the fact that the brains of the captive humans are wired to "the Matrix" -- a software program that generates a cyber-kinetic reality, set in 1999, in which the wired ones actually think they are living their lives as free people.  They experience the full range of sensory experience -- taste, smell, touch, etc. -- and the lives they lead are pretty much like the lives we lead today.  (In one of the movie’s other clever twists, it is revealed that an earlier version of the Matrix had simulated a utopian world, but "entire crops were lost" because the human brains rejected the illusion of perfection and kept trying to wake up from their captive slumber.)

The movie’s heroes are a small group of humans who have escaped from their pods and who have set about the task of liberating mankind.  This is a daunting prospect against virtually impossible odds: Apart from one city located near the earth’s core, the rest of humanity lies in captive slumber, the fact of their imprisonment concealed from them by the Matrix.  Our heroes and others like them fly about in the sewers of deserted and desolate cities by means of cold, cramped, and dingy hovercraft.  They are constantly under attack by the machines’ seek-and-destroy "sentinels."   They can enter the Matrix via their own computer program -- this is what they must do in order to find new recruits among the slumbering captives -- but within the Matrix they encounter "agents" of considerably superior strength who have no purpose but to seek them out and kill them.

The question that The Matrix repeatedly asks is this: Are you better off in captive slumber, believing and feeling that you are living a more or less comfortable life at the end of the Twentieth Century?  Or are you better off knowing that that life is only an illusion -- the product of a computer program pumped into the brains of slumbering captives -- even if there is precious little prospect of doing anything to change that state of affairs?

Substitute "the enchantment of reason" for the computer program, and you’ve got a question for which there is no easy answer.  Reason certainly isn’t going to answer it for us.  But if it turns out that we prefer error to enlightenment, we ought at least to have the courage to stop pretending that it is the other way around.

Richard Michael Fischl is Professor of Law at the University of Miami in Coral Gables, Florida.  He has written before about the mechanisms of denial -- see "The Question That Killed Critical Legal Studies," 17 Law & Social Inquiry 779 (1992) and "Privileged Positions," 17 Law & Social Inquiry 831 (1992) -- and more recently is co-author (with Jeremy Paul) of Getting to Maybe: How to Excel on Law School Exams (Carolina Academic Press 1999).

Editors’ Note: For Professor Schlag’s Books-on-Law review of The Stanley Fish Reader, click here.

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Autrefois Double Jeopardy
by Susan N. Herman

Double Jeopardy: The History, The Law
George C. Thomas III
New York, N.Y.: New York University Press, 1998
Cloth: $50.00
Pp. xii, 349

The Double Jeopardy Clause is an interpretive challenge.  Read literally, the guarantee that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb" suggests that it might be constitutional to put a person into jeopardy of limb once (cutting off the hand of a thief or the foot of a reckless driver, perhaps), and leaves the reader to wonder why retrial is permitted following reversal of a conviction on appeal.  The language does not tell us whether offenses are the "same" if their elements overlap, if they are based on the same conduct, or only if they are completely identical.

An originalist approach is no more satisfying, because the history of the language and intent of the Double Jeopardy Clause are murky, and because criminal law and procedure have undergone radical transformation since the common law set out rules about the meaning of being autrefois acquit.  (The number of crimes has exploded from the six or seven of the 13^th Century to some 7,000 current offenses, as estimated by Michael Moore, while the relative roles of legislature, prosecutor, and judge have changed dramatically.)

A functional approach requires defining the range of values the Clause is to serve -- to protect finality?  to prevent prosecutorial overreaching or harassment?  to prevent aborting trials?  to guard the right to trial by jury, including jury nullification? -- and what to do when those values do not coalesce.

It is for those reasons that the Supreme Court’s double jeopardy jurisprudence has been seesawing wildly.  The Court has generated a list of its double jeopardy values, continually quoting Justice Hugo Black's statement that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States (1957)  But applying the Clause’s language has proven controversial.  A dramatic new approach to defining "same offense" as involving the same conduct, formulated in 1990 (Grady v. Corbin), collapsed three years later as the composition of the Court changed. United States v. Dixon (1993)  The Court’s struggle to distinguish when civil penalties are actually criminal in nature, and thus place a person in "jeopardy," United States v. Halper (1989), Montana Dept. of Revenue v. Kurth Ranch (1994), similarly lasted only a few years until the Court decided that successive proceedings on matters the legislature denominates as "civil" are generally allowed. Hudson v. United States (1997); United States v. Ursery (1996)

Professor George Thomas III proposes to clean up double jeopardy law by stripping down the Double Jeopardy Clause in two ways.  First, he discounts most of the concerns Hugo Black identified as double jeopardy values.  Some of the goals listed, such as preventing prosecutorial harassment, might be relegated to the Due Process Clause; others might not be legitimate interpretations of the Constitution at all.  Second, Thomas would simplify constitutional analysis by asking only one question about double jeopardy: what did the legislature intend?  The legislature, Thomas argues, is the only possible final arbiter of what constitutes an "offense," of when offenses are the "same," when an offense is "life and limb jeopardy" (as opposed to a civil proceeding), and when jeopardy is final, because the legislature has the ultimate authority to decide what is blameworthy and how heavily to punish blameworthy conduct.

The Supreme Court has been gravitating in this same direction.  Under current law, the Court has awarded the legislature final power to define "same offense" for purposes of deciding when multiple punishments are allowed, Missouri v. Hunter (1983), on the theory that the legislature may impose as many or as heavy penalties as it wishes for prohibited behavior (subject only to the limitations of the guarantee against cruel and unusual punishments), and therefore it does not matter whether the penalties are strewn over more than one statute.  But the Court has not allowed the legislature to decide that similar "offenses" may be charged in successive proceedings, as Professor Thomas would prefer.  Similarly, the Hudson case defers to Congress to decide whether a nominally civil proceeding should be treated as an offense, but reserves the right to overrule Congress in extreme cases.  Thomas would not allow space for this exception.  Following his categorical imperative of legislative intent, Thomas would also allow the legislature to authorize prosecutors to appeal acquittals on legal grounds, and then retry defendants without any judicial check.

Professor Thomas’s guiding principles in adopting his legislative prerogative approach are explicitly laid out and fervently defended.  First, Thomas argues that in constitutional interpretation, "hard-edged rules" (a phrase repeated insistently) are generally desirable; "soft" rules, standards, balancing tests, and functional analyses are all manifestations of legal realism (or its equally evil twin, natural law) and are to be avoided whenever possible.  Second, Blackstone's wisdom should be taken as a key to the meaning of the Double Jeopardy Clause, although concededly not as a key to the framers’ intent.  Third, Hugo Black’s "soft" principles need not be allowed to blur double jeopardy analysis because they do not truly represent double jeopardy values.  Finally, the Double Jeopardy Clause should be interpreted in isolation from other constitutional provisions.  (In dismissing Westin and Drubel’s suggestion that, in the hierarchy of double jeopardy values, the highest value is protecting a defendant’s right to trial by jury, including the corollary right to jury nullification, for example, Thomas simply asserts that the jury trial right belongs to the Sixth Amendment, not the Double Jeopardy Clause. Considerations exiled to the Due Process Clause disappear from the discussion without a trace.)

These principles lead Professor Thomas to minimize the role of the court in constitutional interpretation, and to act on his evident trust of legislatures.   Throughout the book, Thomas exhibits almost no concern about whether legislatures will themselves overreach, or whether they will adequately control prosecutors to prevent their possible overreaching.  This seems to be both the result of and the inspiration for his belief that such matters are irrelevant to the Double Jeopardy Clause.

I found it disconcerting in reading Thomas’s otherwise careful and learned analysis that he simply declines to discuss many of the values that have led even the current rights-averse Supreme Court (including, as Thomas notes with some chagrin, Antonin Scalia) to stop short of letting double jeopardy mean whatever the legislature wants it to mean.   It is like watching a tug-of-war where most of the members of one team have been ejected, ruled ineligible to play.  The result is no longer in much doubt.

Professor Thomas concludes, for example, that the legislature must be allowed to authorize successive criminal proceedings.  As long as the legislature can decide when offenses are the "same" for purposes of punishment, it defies the wording of the Double Jeopardy Clause to hold that two offenses which were the "same" if charged in one proceeding (thereby allowing cumulative punishment) are not the "same" if charged in two proceedings.  Thomas calls this a "unitary" reading of "same offense."

Justice Scalia, on the other hand, believes that the legislature should not be permitted to authorize successive criminal proceedings at will.  Justice Hugo Black’s credo explains the need for some constitutional limitations here.   Prosecutors, if authorized by a willing legislature, could separately charge and prosecute a defendant for premeditated murder, then for felony murder, then for manslaughter, and even, if the legislature were so inclined, for discrete statutory offenses of "killing" and "causing the death of another."  The Court still believes that some check is needed to ensure that the legislature cannot abuse criminal suspects in this way.  As with the civil/criminal distinction, the Court treats the constitutional guarantee as a judicially held string, albeit a loose and slender one, that the Court could use if a legislature did allow redundant offenses to proliferate and thus gave prosecutors too great an opportunity to practice a prosecution until perfect.

The current Court scarcely needs to be pushed in the direction of deferring to legislative will about criminal law and procedure.  The Bill of Rights provides a series of judicial checks on legislatures (and prosecutors) where political checks may be weak and individual liberty is at stake, as tends to be the case in the area of criminal justice.  In my view of constitutional interpretation, Professor Thomas’s quest for hard-edged rules misses the point that rights need to be soft enough to ooze and fill vacuums of political accountability wherever they arise.

In Professor Thomas’s account, the legislature may not be very dangerous to liberty, but it is chronically unclear.  Therefore, Thomas proposes using some double jeopardy principles to create presumptions for interpreting legislative intent, focusing on blameworthiness as his lodestar in trying to create a unified double jeopardy theory.   As an alternative to the Blockburger definition of "same offense" (offenses are not the same if each has at least one unique element), Thomas would analyze statutes to evaluate whether their blameworthy elements are the same, using Joel Feinberg’s harm principle.  Thomas acknowledges that this is a soft rule, which it indeed is.  Analyzing cohabitation and adultery statutes, for example, Thomas concludes that they are the same offense because each has as its "blameworthy element" sex outside marriage.  But wouldn’t it be equally plausible to interpret the statutes as defining different harms with different victims -- adultery as an offense against one’s spouse, and cohabitation as an offense against the community, by undermining the institution of marriage?

This is one area where Professor Thomas, like Justice Scalia, shows that his hard-edged rules are not always contrived to disadvantage defendants (although they have that effect more often than not).  It is also interesting that this is one of the few places where Thomas evinces concern about the good faith of legislators.  He points out that because Blockburger is so formal, a legislature could easily avoid its strictures by adding another (possibly bogus) element to any offense.  But if he is seriously concerned that a legislature might try to evade double jeopardy restrictions, why would he then allow the legislature to overcome his presumption by simply being clearer about its intent?

Professor Thomas also relies on a blameworthiness principle to propose an "acquittal-equivalent" rule to replace the Court’s rules about mistrials and dismissals.  This semi-soft rule would find an aborted proceeding to count as jeopardy only if the evidence before the finder of fact would have proved legally insufficient and thus should have resulted in an acquittal.  This speculative inquiry disdains the possibility that the jury might have refused to convict, possibly nullifying the law, and acted as a check on the prosecutor, again showing that it is easier to be hard-edged if you chop off problems that might have caused a mess.

After years of writing articles on double jeopardy law, Professor Thomas has made a herculean effort in pulling his ideas (some of which have evolved over time) into book form.  One strength of the book lies in its wide-ranging and gracious attention to the double jeopardy theories of other scholars.  His knowledge of history and case law is also comprehensive.  Among other discussions I have not recounted here, Thomas provides a rare and interesting attempt to tame the problem of "act-tokens" (or how to divide an incident into counts).  For me, his attempt to provide a comprehensive, tidy account of the Double Jeopardy Clause is unsuccessful.  But as Thomas’s own discussions of the work of others show, it is always easier to critique a model than to build one, especially when there is disagreement about which parts belong in the model and how big they should be.

Professor Thomas’s model reduces the Double Jeopardy Clause to a very hard-edged but hollow thing that ultimately contains little or nothing other than the requirement that judges and prosecutors follow the legislature’s law.  If constitutional interpretation is to be nothing more than statutory construction, why have a Double Jeopardy Clause at all?

Susan N. Herman is a Professor of Law at Brooklyn Law School and the author of several articles on double jeopardy: "Reconstructing the Bill of Rights: A Reply to Amar and Marcus’s Triple Play on Double Jeopardy," 95 Columbia Law Review 1090 (1995); "Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the ACLU," 41 University of California at Los Angeles Law Review 649 (1994).

———————————————————————
Justice Clarence Thomas's Significance: Much Ado . . .
by Howard Ball

First Principles: The Jurisprudence of Clarence Thomas
Scott D. Gerber
New York, NY: New York University Press, 1999
Cloth: $30.00
Pp. 280

I came to this reviewing task with the baggage of being a lifetime member of the NAACP and, for over three decades, a card-carrying member of the ACLU.  I was concerned about Judge Thomas’s nomination for a number of reasons: his lack of experience; his strong conservative ideological stance on issues ranging from the economy to privacy rights to criminal justice matters; his honesty and integrity; and whether he had temperament for a jurist on the U.S. Supreme Court.  Within a few years, I came to conclusions about Justice Clarence Thomas, and Professor Scott Gerber's well-written book, First Principles, has not changed my mind about the Justice.

For Justice Thomas’s first two terms, I brought my "Supreme Court students" -- upper-class undergraduates and law school students -- to the Court for interviews with the Justice and his law clerks.  These visits were very informative, and the students came away with personal glimpses of the men and women who occupy seats on America’s high bench.  Toward the end of the second (and last) annual conversation with my students, Thomas recollected with great pleasure his days at Yale Law School.  He would, he said, engage in countless conversations with his classmates.   So heated were these conversations about law and politics that the group wound up, almost always, with "cold pizza and warm beer."  Immediately, two students stood up to challenge Thomas’s comments about the bull sessions at Yale.   I quickly caught their eyes and indicated to them -- pleaded? -- not to ask the question we all knew was there.  They got the message, and sat down.

Now my students, as well as the general public, knew that candidate Thomas told Senator Patrick Leahy (D-Vt) that he had never discussed issues such as abortion with his classmates at Yale Law School.  Justice Thomas said at his confirmation hearing: "Because I was a married student and I worked, I did not spend a lot of time around the law school doing what the other students enjoyed so much, and that is debating all the current cases and all of the slip opinions.  My schedule was such that I went to classes and generally went to work and went home."  Asked a perplexed Leahy: "I am sure you are not suggesting that there wasn’t any discussion at the time of Roe v Wade (1973)?"  Candidate Thomas’s answer: "Senator, I cannot remember personally engaging in those discussions."

Interestingly, Professor Gerber admits that nominee Thomas lied to the Senators: "it is not unreasonable to suspect that a desire to be confirmed to the most powerful court in the world was the reason. . . .  That unfortunate circumstance speaks more to the corruption of the appointment process itself than it does to the veracity of . . . Clarence Thomas." (65)  Shame!  How can one so easily discount the fabrications of another?  When I was very little, my mother used to tell me not to lie: "Not telling the truth leads to thievery, and thievery leads to . . . ."   In Thomas’s case, it led to a lifetime position on the U.S. Supreme Court; not quite the result my mother hammered into me.

Traveling home, my students and I spent hours discussing the visit, and especially Thomas’s contradictions.  I have not brought my classes down to see him since then, for there was not much to learn from Justice Clarence Thomas.  Gerber’s book has given me no new perspective on the jurist that compells me to go beyond first impressions.

This is not to say that I have changed my mind about what Thomas said during his confirmation hearings.  There are many who maintain that the end can justify the means; but can a liar have fundamental principles upon which to base decisions?  (I suppose so, yet that is a debate found elsewhere.)

Scott Gerber’s book is a sincere -- and fair -- effort to try objectively to go beyond the dramatic Senate hearings and vicious attacks on candidate-then-Judge Thomas; to explain away the condemnation of the Justice; and to cull Thomas's first principles from his written opinions (mostly concurring), handed down in his first five Terms.

Right off the bat, I have a problem with Professor Gerber’s premise: a Justice’s fundamental principles used to justify her Court decisions can emerge in this short period of time.  Gerber compares Clarence Thomas with Felix Frankfurter, and Thomas comes out ahead of the brilliant, little professor. (3)  It was ten years before a book of Frankfurter’s major opinions appeared, "but the period covered is long enough to justify the effort . . . , considering especially the highly articulate and prolific person who is their author," wrote Samuel Konefsky in his 1949 book introduction [The Constitutional World of Mr. Justice Frankfurter: Some Representative Opinions (Macmillan,1949)]. Gerber then, in as fine an example of chutzpah that I’ve seen since Slobodan Milosevic chastised NATO for accidentally bombing Kosovar refugees, argues that "Justice Thomas is both articulate enough and prolific enough to warrant a book-length study of his first five years on the Supreme Court."

That, dear readers, is a big stretch.  Jurists such as Frankfurter, William O. Douglas, and Hugo L. Black, to name just three, confessed that it took them at least a decade before their first principles were fully developed enough to be drawn on comfortably by them.   Justice Thomas, however, believes that the learning process can be shortened in his case!  He said that it takes "five years to become fully adjusted to the Court." (3)  For me, this comment suggests that Thomas is either a true genius (and the other jurists aren’t) or, as candidate Reagan said to President Carter in the 1980 debates, "there you go again!"

Justices Frankfurter, Douglas, and Black were, respectively: law professor (whose scholarly focus was on the business of the Supreme Court) and human resource manager for FDR; law professor and then-Chairman of the SEC; and lawyer and U.S. Senator from Alabama.   None had prior judicial experience.  All were intellectually astute, and are considered to be among the very top jurists among the 108 persons who have served on the U.S. Supreme Court.

What did Justice Thomas bring to the Court?  Not nearly the kind of experiences that the others brought.  After all, Thomas’s Yale Law School concentration was tax law.  His first job was with a Republican Attorney General, John C. Danforth (later to become a U.S. Senator).  At his request, Thomas was assigned to tax law issues, not civil rights litigation.  Then, he was a business lawyer for Monsanto Chemical before coming to Washington to work in Senator Danfoth’s office.   The Reagan Administration subsequently tapped him for positions in the federal government (first as the assistant secretary for civil rights in the U.S. Department of Education and later as Chairman of the Equal Employment Opportunity Commission).  He served on the U.S. Court of Appeals for the District of Columbia for about a year before President George Bush nominated him to fill the seat vacated by Thurgood Marshall.  He came with those limited experiences, especially the ideological perspectives he adopted when he became a member of the very politicized Reagan Administration team.

Professor Gerber’s book is what he terms a "‘judicial study’ of a particular aspect of a particular Justice's tenure" in order to inform the reader "about how the judicial process works." (5)  The question he raises -- "Why is [Thomas] significant?" -- is immediately answered: "he is significant because of the debate he sparks . . . and because he provides a compelling case study of the anti-formalist thesis that ‘LAW IS POLITICS, pure and simple.’" (6)  In other words, Thomas is signficant because his "first principles" provoke his colleagues and the legal community.  For thirty years, I’ve examined the 108 men and women who have sat on the Court and, honestly, I do not recall such a definition of significance used.

First Principles has three parts.  Part One, "Politics," examines the partisan political attacks -- and the reasons for them -- that Thomas has endured since 1991.  Part Two, "Law," the longest segment of the book, extrapolates Thomas’s political philosophy through a case-by-case survey of his opinions in three broad categories of litigation: civil rights, civil liberties, and federalism.  Part Three, "Law and Politics," ties together the first two segments "in a way that allows readers to appreciate what the phenomenon that is Justice Thomas has to say about the judicial process." (6)

Part One, "Politics," examines Justice Thomas’s life from Pin Point, Georgia to the U.S. Supreme Court, including succinct comments on the many books and articles published pro and con about the jurist’s qualities as a Justice.  Gerber’s view, from the beginning, is that Thomas has received a bad rap from frenzied liberals, while conservative writers believed his opinions are "brilliant." (26).  Clearly, given Gerber’s interesting definition of significance -- provocation -- then I suppose Thomas is a signficiant jurist. Partisan politics was the explanation for the "unusually vitriolic reaction to Justice Thomas." (36)  His ideas, especially the importance of the concept of "natural law," provoked a bitter response from liberals in politics, in the legal profession, and in law schools.  And Gerber himself implicitly identifies other Thomas inconsistencies -- lies? Although nominee Thomas spoke of the critical importance of, and his commitment to, judicial neutrality when deciding cases, Gerber notes that "history -- even Thomas’s own history -- reveals that it is impossible to effectuate this commitment in practice." (43) . . . There you go again!   And again: Gerber describes nominee Thomas’s testimony to the Senate as "pro-defendants rights’ posture. . . ."  For example, he offered support for Miranda v Arizona (1966)." (61)  Yet, look at Part Two’s discussion of criminal justice litigation, and nominee Thomas is a non-person. . . .  There you go again!

There are other troublesome comments by Gerber.  For example, he notes Justice Thomas’s unwillingess "to put his private life on display for a prurient reason or other reasons." (33)  Yet, I have in my prized "judicial" collection a copy of People magazine featuring Clarence and his wife on the cover and, inside, a detailed account of how the two of them, with other close religious friends, prayed together and listened to gospel music tapes during the confirmation's darkest days.  The magazine had photos of the two of them side-by-side on their couch reading the Holy Bible!  "Unwillingness to put his private life on display?" . . .  There you go again!

Part Two, "Law," shows how Justice Thomas justified his concurrences and dissents through reaching judgment by "discovering" the underlying principles of natural law employed by the Founding Fathers: individualism and inherent equality in the Declaration of Independence.  These inform Thomas in his judicial decision-making in the three areas of constitutional law discussed by Gerber: civil rights, civil liberties, and federalism.  As Gerber notes, one discerns Thomas's commitment to equality that translates, in civil rights litigation, into a "liberal originalism," the "color-blind" Constitution concept. (193)  This translates into dissents when the Court majority tends to accept, after "strict scrutiny" is employed, affirmative action programs.  (Gerber errs when he said that the voting rights cases were the most important cases for Chief Justice Earl Warren. (83)   In actuality, Warren said Baker v Carr (1962) was the most important case during his tenure.)  In civil liberties cases (especially criminal justice litigation), Thomas is his own conservative originalist, not a clone of Justice Antonin Scalia.   In federalism cases, Thomas views the litigation from the perspective of the states’ "reserve powers" in the Tenth Amendment.  This attitude comes across as follows: "We The People, really means We The States."   Even Gerber disagrees with Thomas’s reading of history on this score.

Part Three, "Law and Politics," is the book’s brief conclusion.   Gerber argues that the partisan attacks on Thomas, both as nominee and as Justice, were based on his natural law jurisprudential perspectives: liberal originalism in civil rights cases, and conservative originalism in civil liberties and federalism cases. (193)   Given the strength of his commitment to these values, Thomas is a lightning rod for critics of originalism; but, notes Gerber, Thomas is no-one's clone.  He is his own man: "He writes for himself in these areas." (162)

Certainly, Professor Gerber has given us a good, somewhat objective account of Thomas’s first five years on the Court.  Does he warrant a book describing his first principles?  Probably not; although, if you are interested, then Gerber’s book is OK.

Kweisi Mifume, the president of the NAACP, uttered those remarks, and argued that the civil rights organization should use its valuable resources to accomplish other goals.  Since Thomas arrogantly boasted to my students that he will still be sitting on the high bench when their grandchildren visit the Court forty years down the road, one should not give up on the Clarence Thomas matter.  The history of the Court shows that many of the jurists did modify their early views of substantive legal and political controversies.  (See, for example, the jurisprudential changes in Justices Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and David Souter, to name but a few of Thomas’s peers.)  There is, then, time enough for Thomas to grow into the job of Justice of the U.S. Supreme Court.  After all, he has been on the Court eight terms -- and there are, by his own estimate, another three plus decades or so to go!  What is the Amish saying about wisdom coming late?

Howard Ball is Professor of Political Science and University Scholar at the University of Vermont and an Adjunct Professor of Law at Vermont Law School.  He has published almost two dozen books and dozens of articles on law and politics, including A Defiant Life: Thurgood Marshall and the Persistence of Racism in America (Crown, 1999).  He has just completed a book, entitled Prosecuting War Crimes and Genocide: The Twentieth Century Experience, for the University of Kansas Press (forthcoming September, 1999).  He is presently concluding a book titled Bakke!, and will soon begin research and writing on the law and politics of personal autonomy in America.

Editors’ Note: Professor Balls’s most recent book -- a biography of Thurgood Marshall -- was reviewed for BOL by Professor Gerber.

NB: To the best of our knowledge, neither Professor Gerber nor Professor Ball knew that one was reviewing the other’s book.

———————————————————————
Ball Makes My Point for Me: A Reply
by Scott D. Gerber

As readers of Books-on-Law may recall, I reviewed Professor Howard Ball's book A Defiant Life: Thurgood Marshall and the Persistence of Racism in America (Crown, 1999) in last month's issue.  Apparently, Ball's review of my book First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999) -- about which I had no prior knowledge -- was supposed to appear in the same issue.  Perhaps because of the press of Ball's other commitments, however, it did not.  Consequently, I was quite nervous when I read an "NB" after my not-gushing-but-not-negative-either review of Ball's book that he would be reviewing my book after my review of his book appeared in print.  I even sent one of the editors of Books-on-Law an e-mail to this effect the moment I read the NB.   That editor replied, reassuringly, that I was worrying about nothing.  Imagine my concern, though, when I received an e-mail from the other editor several weeks later with the subject line "Solicitation for Reply to Review."  "Ball must have trashed my book!," I thought just before I opened the e-mail.

He didn't.  Ball calls my book "well-written," "objective," "sincere," "fair," and "good."  Justice Thomas doesn't fair nearly as well.  In fact, Ball's piece is less a review of my book about Justice Thomas than it is a diatribe against the man.

Before I turn to my most important substantive point about Professor Ball's review -- the issue of Justice Thomas's "significance" -- I feel it necessary to address a few minor points of disagreement that I have with Ball's interpretation of my argument.   Again, however, it is worth repeating that Ball doesn't say much about my book, although he does say a lot about Justice Thomas.  Because the editors of Books-on-Law have asked me to keep my reply brief -- 1,500 words or so -- I will present my quibbles about Ball's quibbles in outline form.

1.  I never say that Thomas is a "better" justice than Felix Frankfurter was.   I simply say that "Justice Thomas is both articulate enough and prolific enough to warrant a book-length study of his first five years on the Supreme Court" (3), and I compare my book to Samuel Konefsky's book about Justice Frankfurter's first ten years on the Court [Samuel J. Konefsky, editor, The Constitutional World of Mr. Justice Frankfurter: Some Representative Opinions (Macmillan, 1949)].  I also acknowledge that many people will likely disagree with my statement.   Ball certainly does.  I must add here, though, that Ball's choice to equate my remarks about Justices Thomas and Frankfurter to the war criminal Slobodan Milosevic's statement about "accidentally bombing Kosovar refugees" is, at a minimum, in poor taste.  The same may be said of Ball's decision to refer to Frankfurter as a "little professor."  After all, what does Frankfurter's height have to do with anything?  More substantively, Professor Ball -- a political scientist -- fails to appreciate that there is a vast literature in political science that recognizes that the first five years of a Supreme Court justice's tenure is a unique time in that justice's service on the Court: the so-called "freshman" or "acclimation" period.  I discuss this literature at length in Appendix I of my book.  (Additional political science issues involving Justice Thomas's voting behavior are discussed in Appendix II.)

2.  There have not been "many books and articles published pro and con about [Thomas's] qualities as a Justice."  There have been some articles that have addressed specific aspects of his jurisprudence, but my book is the first and only book-length treatment.  The other books have focused on his confirmation battle with Anita Hill.

3.  Chief Justice Earl Warren considered Baker v Carr (1962) a landmark case because of its impact on voting rights.  So does Justice Thomas.

4.  Professor Ball misunderstands the Conclusion to my book.  I do not say that Justice Thomas is a consistent natural law theorist and that this explains the attacks against him.  As I remarked in a February profile of my book by the editors of Books-on-Law, Justice Thomas is "consistently inconsistent."  He decides civil rights cases through the natural rights principles of the Declaration of Independence, and civil liberties and federalism cases through Borkean originalism.  I consider this finding to be among my most important.  I'm surprised that Ball missed it.

5.  Reviewers should not use an author's research without attribution.  I was pleased, for stylistic reasons, when I uncovered NAACP president Kweisi Mifume's retort that "We can never change Clarence Thomas."  Ball uses that retort as the centerpiece of his concluding remarks.  I would have appreciated a page citation to my book.

6.  I never "admit" that Justice Thomas "lied" about anything.   I simply say, on several occasions, that it would not be "unreasonable" for others to conclude that he did (see, e.g., 65-66) -- and Professor Ball states repeatedly that he believes that Thomas lied (repeatedly) -- but I don't know.  After all, I wasn't in the room with him and Anita Hill, or in the pizza parlor with him and his Yale Law School classmates.  (NB: Fred Graham likewise tried to get me to say during my appearance on his TV show, Supreme Court Watch, that Justice Thomas "lied."  I wouldn't bite then, either.)

All of the above leads to my most important substantive point about Professor Ball's review.  My thesis is not, as Ball seems to think, that Justice Thomas is "significant" because he "provokes" people. ( He certainly provokes Ball.)  Rather, my thesis is that "an examination of Justice Thomas's acclimation period on the Supreme Court reveals -- perhaps better than an examination of any other justice could -- that judging and writing about judging are inherently political activities." (6)  Frankly, it would be difficult to imagine a clearer illustration of the theme of my book than Ball's review:  Ball's partisanship, which he acknowledges from the opening paragraph, jumps off the page/computer screen.

There is also Professor Ball's claim that Justice Thomas is not significant enough to write about. I can only say that many people disagree.  Indeed, my publisher, New York University Press, decided to reprint the book after it had been on the market for only three months; furthermore, I have had more than five hours of television time devoted to it -- not bad for a university press manuscript -- and no less a figure than David Remnick approached me after the book was published about the possibility of my writing a follow-up for The New Yorker.  I asked Justice Thomas if he would be willing to submit to such a profile when I met with him after he had read my book, but he has a blanket rule against on-the-record interviews.  (Which leads me to wonder how Ball can so freely discuss what Justice Thomas said to him and his students.)  Who can blame the man when people react to him like Ball does?

Scott D.Gerber, Ph.D., J.D., is Senior Research Scholar in Law and Politics at the Social Philosophy and Policy Center and author of, most recently, First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999).

———————————————————————
Hard Problems Unsolved
by Stephen L. Kass

The Earth on Trial
Paul Stanton Kibel
New York, NY: Routledge, 1999
Paper: $19.95
Pp. xxii, 152

Easy problems get solved.  Hard ones linger and become more urgent as their difficulty is perceived.  In the environmental field, the most difficult issues are now international.  Having made significant strides over the past twenty-five years in containing, if not solving, their domestic environmental threats, the United States and other developed nations have come to realize that the planet cannot be saved without the help of the far more numerous developing nations.  At the same time, citizens of even the poorest countries have begun to demand a livable environment as part of the fundamental human rights promised by their new constitutions and international conventions.

Saving the global commons is hard -- some would say close to impossible -- at a time when the earth’s climate, atmosphere, oceans, freshwater, animal life, and land are threatened by the geometrically increasing demands of a growing human population that hungers for equality and previously undreamed-of standards of living.  To succeed, the developed nations must not only clean up their own pollution, but must also lead, cajole, and assist the developing world to pursue rapid economic development without similarly destroying the earth’s shared resources.  This is a task that requires the U.S. both to curtail its own indulgent lifestyle and to make financial assistance available to poorer nations in an era when direct aid is no longer fashionable.

Solving domestic environmental problems is also hard, particularly in the developing world.  Many governments are faced with growing populations demanding improved living standards; with the need to compete in a global marketplace that discourages protection for local industry; with an international financial community that demands stringent fiscal measures and reduced social expenditures; and with the challenges of a democratic political process that is called upon to respect human rights, improve health care, provide jobs and housing, maintain civilian control of the military, and deal firmly with internal or external security threats.  Under these circumstances, it is tempting to see the environment as a luxury (as did the U.S. and Europe for most of their industrial growth).  Yet, the demand for environmental protection is surprisingly powerful in developing countries, where citizens often rely directly on the land, sea, and forests for their livelihoods and traditional ways of life.  Most governments have now recognized that they ignore the environment at their peril, both domestically and internationally, even when they lack the financial and institutional capacities to protect their nations’ natural resources.

Understanding the role of the U.S. and the European Union in confronting these issues is hard, too.  We have a highly developed legal system, a political process that reflects (with the notable exceptions of gun control and campaign finance reform) the electorate’s overall priorities, an unfettered press, advanced technical skills, and a sufficiently strong economy to address most environmental issues if we so choose.   Yet, we still fall significantly short in dealing with our own environment, and are often willfully blind in dealing with global resources.  Whether the U.S. should insist that other nations follow its standards for environmental assessment or permitting is not at all clear.  Nor is it clear that the environmental trade-offs made by the U.S. (or the E.U.) are necessarily appropriate for nations at different stages of development, with different legal systems, cultures, and environmental priorities.

Earth on Trial is Paul Stanton Kibel's attempt to address some of these issues and, more fundamentally, to educate the public about the role of environmental law in mediating between economic development and resource protection both in the U.S. and internationally.  The book is a lightly edited collection of twelve articles previously published by Kibel in various journals from 1994 through 1996 (with one piece from 1998).   It provides ample evidence of the difficulty of stitching together topical articles for different audiences into a coherent whole that still speaks with freshness and insight after the moment has passed.  In Kibel’s case, this task is made more difficult by his stated goal -- "to develop new writing strategies to bring the law-ecology debate into the public space" and, thus, to help the general public understand that natural resources, pushed too far, exact their own revenge on societies that refuse to accommodate nature or to curb overreaching public and private institutions.

Unfortunately, neither the book as a whole nor the individual essays are up to this challenge.  This is a pity because Kibel’s goal is admirable, his advocacy on behalf of the environment heartfelt, and his subject timely.  He also combines his environmental passion with a commitment to social justice in America’s cities and the need to alert the American public to the environmental challenges facing the developing world.  Intentions aside, however, the book’s title and preface promise more than the essays are able to deliver, in part because of the range of subjects covered and in part because of the author’s reluctance to explain both sides of these difficult issues before proceeding with his own advocacy.

The trouble begins with the essays selected for inclusion in the book.  Nearly half of them deal with a single subject -- logging -- either in the U.S. or abroad.   Had it been explored in depth, this would have been a worthwhile undertaking in itself, for the implications of deforestation are immense and the complexities of fashioning effective institutions to preserve forests and their associated flora and fauna are daunting.  Instead, Kibel provides short takes on logging controversies in the U.S., Canada, Russia, Vietnam, and parts of the Pacific Rim, but makes little effort to compare these separate experiences or to assess them in terms of either the worldwide timber industry or the kinds of legal or policy options that have proven most effective in protecting forests while facilitating economic development in nations or communities dependent on timber for income.  Of these articles, the most useful for American readers is probably the description of Canada’s failure to enforce its own domestic laws, or to honor its international treaty commitments, so as to protect the forests of British Columbia.  The brief discussion of Vietnam’s efforts to reforest a nation still feeling the effects of agent orange also rekindles memories of the damage our nation caused during that shameful war.

The balance of the book has no clear structure, and presents considerable material that seems dated after four or five years.  Four essays deal with domestic U.S. environmental issues, two of which (the attack on the Endangered Species Act and the neglect of our urban environment) are reasonably well summarized and worth repeating for general readers not already familiar with these subjects.  Kibel’s proposals for encouraging environmental equity in metropolitan regions, however, should not be mistaken for feasible or effective programs.  The remaining two U.S.-focused essays deal with free speech in the environmental (or consumer) context and the need for environmental impact statements (EISs) for U.S. governmental actions abroad.  These important, and often overlooked, subjects are treated so superficially that readers may be misled.   Kibel fails, for example, to explain the fundamental difference between prior restraints on commercial speech (held suspect under the First Amendment) and damages for misleading statements, or to point out that, while courts have failed to require EISs for actions abroad under the National Environmental Policy Act, a Presidential Executive Order (and, arguably, customary international law) have required such assessments for many U.S. governmental decisions that significantly affect the global commons.

A final cluster of essays deals with international trade and the environment.   This, too, is a complex subject that has divided environmental and free-market advocates around the world.  It is here that Kibel’s essays suffer most from the passage of time, as well as from a surprisingly narrow focus.  Among the most important disputes in this area during the past decade has been the extent to which nations can, consistent with their free trade obligations under the General Agreement on Tariffs and Trade (GATT) and the rules of the World Trade Organization (WTO), impose domestic environmental standards on imported goods manufactured (or natural products harvested) by another trading nation.  Free-trade proponents worry that "environmental" requirements of importing states may be used as disguised tariffs or other measures to protect domestic industry.  Environmentalists fear that free-trade principles could invalidate hard-won domestic legislation protecting U.S. (or global) natural resources.

These issues have been fought out during the past decade in a number of highly publicized disputes, including the recent "shrimp/turtle" dispute before the WTO and the approval of the North American Free Trade Agreement (NAFTA).  Kibel’s discussion focuses on the early stages of each controversy and, by so doing, omits subsequent developments that might help his readers see the issues in a different light.

The shrimp/turtle dispute involved the efforts of the U.S. to help save globally endangered sea turtles by requiring commercial shrimp vessels to use "turtle excluder devices" (TEDs).  U.S. shrimpers have been required to use TEDs since the late 1980s, and in the early 1990s Congress amended Section 609 of the Endangered Species Act to direct the State Department to issue regulations banning the import of shrimp from countries that do not impose similar requirements on their fishing fleets.  The State Department responded by banning the import of shrimp caught by vessels without TEDs, but limited that ban to portions of the Western Hemisphere, where most nations had agreed to require TEDs.

Kibel’s discussion deals with the challenge, brought before the U.S. Court of International Trade by several California-based environmental groups, to both the geographic limits of the State Department’s import ban and to the Department’s vessel-by-vessel approach (which permitted the importing of shrimp from TED-equipped vessels even if the nation in question did not require all commercial vessels to be so equipped).  Kibel applauds the Court’s decisions, invalidating this vessel-by-vessel approach and requiring immediate worldwide application of the TED requirement, but notes that this environmental victory may not survive a WTO challenge brought in early 1998 by four Asian nations contending that this unilateral U.S. action was illegal under international law.

In fact, the international litigation (not described in Kibel’s book) resulted in an April, 1998 decision by a WTO Dispute Settlement Panel that Section 609 and the implementing State Department regulations constituted "unjustifiable discrimination" against trade with nations not requiring TEDs.  The Panel’s decision was affirmed in November, 1998 by the WTO's Appellate Body, which largely upheld the legitimacy of Section 609 and its implementing regulations but found that the U.S. had failed to consult with its trading partners or to explore the feasibility of alternative measures to protect sea turtles before taking unilateral action to pursue an otherwise reasonable environmental goal.  America’s insistence (as a result of the domestic litigation described by Kibel) on immediate worldwide application of its import ban and the ban's application even to TED-equipped vessels from countries without similar regulatory programs were singled out by the WTO as evidence that the U.S. had pursued its environmental goals in a manner that violated its GATT obligations.  The Appellate Body implied that, had the U.S. made greater efforts to include its trading partners in the development of the TED program (or reasonable substitutes), the import ban might have been sustained.

Kibel’s final essay is on NAFTA and its satellite Commission on Environmental Cooperation (CEC), which he rightly describes as having limited powers to compel NAFTA parties to enforce their domestic environmental laws.   Nevertheless, the CEC and its companion Joint Public Advisory Committee (JPAC) represent important first steps in the development of a regional environmental review body.  The CEC’s initial decisions, while cautious, suggest that it could, in time, grow into an important voice for hemispheric cooperation on environmental issues and a stimulus for improved domestic environmental enforcement by each of the NAFTA parties.

Rather than assessing how the CEC has worked in practice, Kibel proposes the creation of an independent environmental commission with supranational legislative and enforcement powers over the U.S., Canada, and Mexico (modeled on the European Commission established by the Maastricht Treaty).   His discussion ignores the forty years of post-war unification underlying the E.U., the intense debates and referenda throughout E.U. countries that preceded the Treaty’s ratification, and the multitude of political, economic, social, and legal reasons why Canadian, Mexican, and U.S. citizens would reject a similar degree of unification.  While common environmental standards and enforcement techniques would be welcome in North America, they are surely less important, for each of the three countries, than addressing the urgent social, economic, and institutional challenges that threaten to undermine their internal unity (Canada), their stability (Mexico), or their prosperity and world leadership (U.S.).  As the shrimp/turtle controversy illustrates, tunnel vision, even with respect to the environment, only makes it harder to understand the real challenges to a sustainable environment in a world still struggling with poverty, inequality, and lawlessness.

Stephen L. Kass directs the Environmental Practice Group at the New York City law firm of Carter, Ledyard & Milburn.  He is also an Adjunct Professor of International Environmental Law at Pace University Law School, and since 1986 has written the regular "Environmental Law" column for the New York Law Journal.

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A Reply to Stephen Kass
by Paul S. Kibel

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Overruling Marbury
by James M. O'Fallon

Taking the Constitution Away from the Courts
Mark Tushnet
Princeton, N.J.: Princeton University Press, 1999
Cloth: $29.95
Pp. xii, 242

On the face of it, Professor Mark Tushnet's call for an end to judicial review would appear to be revolutionary.  But Taking the Constitution Away from the Courts is, in tone and style, far from a manifesto.   Rather, it is a closely, even densely, argued case for the proposition that we don’t get much good from judicial review, and we might be somewhat better off without it. Hardly a call to the barricades.

In broader focus, Professor Tushnet’s subject is constitutional thought away from the courts, which goes on whether or not the courts exercise judicial review.   Sometimes other political actors exercise constitutionally constrained but judicially unreviewable powers.  Sometimes the exercise of a constitutionally informed judgment results in not doing something that, if done, would have been judicially reviewable.  Beyond the acts of officials, considerations of constitutionality may affect how ordinary citizens direct their political energies or their votes.   Constitutional thought, in the form of claims regarding what the Constitution requires, pervaded the recent impeachment controversy, even though the only judicial involvement was the Chief Justice in the unfamiliar role of presiding at a trial.

Perhaps the most basic agenda of the book is to advance an approach to constitutional issues that Professor Tushnet identifies as populist constitutional law.  It is populist in encouraging broad engagement with issues of constitutional principle.  No special weight attaches to the way that courts deal with those issues, beyond whatever adherence the cogency of the judicial argument may attract.

One of Tushnet’s key moves is to draw a distinction between the "thick" and the "thin" constitution.  The thick constitution is exemplified by provisions like that permitting the president to call on officers of the Executive Departments for written opinions relating to their official duties.  The thickening provisions are important, but they are rarely the objects of judicial attention, and courts have not done particularly well when confronted with questions regarding them.   The thin constitution is even thinner than one might anticipate.  It is not the Bill of Rights and the Fourteenth Amendment.  Rather, it is the fundamental guarantees of equality, freedoms of expression, and liberty, found in the Declaration of Independence and the Preamble.  It is a measure of the distance that Tushnet would move our constitutional practice that the core of the thin constitution -- the Declaration and the Preamble -- consists of provisions which, by common understanding, have no legal force or effect.

Chapter Two explores the hypothetical problem presented to a senator required to vote on the confirmation of former Senator George Mitchell to the Supreme Court.  The difficulty is that Mitchell served in the Senate when salaries for Supreme Court Justices were raised, thereby engaging the restraints of the Emoluments Clause.  Professor Tushnet’s hypothetical senator reaches two conflicting conclusions: that the Emoluments Clause does prohibit the appointment, even if the congress goes so far as to rescind the raise in Mitchell’s case; and that, all-things-considered, the country would be better off if Mitchell were confirmed.  The burden of Tushnet’s argument, which touches on a range of issues from formalism to the formation of national character, is that a conscientious senator acting on the principles of the thin constitution can vote to confirm.  That particular conclusion is less important than the more general claim that the important values of constitutional government would be preserved in a regime that relied on legislative determinations of the requirements of the thin constitution, in lieu of judicial enforcement of the thick constitution.

In Chapter Three, Professor Tushnet considers whether we can trust public officials to be sufficiently conscientious.  That they cannot be trusted is one of the foundations of judicial review, as exhibited in the parade of horribles which anchors Chief Justice Marshall's argument in Marbury v. Madison (1803).  Tushnet is not persuaded.  He recalls James Bradley Thayer’s argument that judicial review enables legislative shirking of responsibility.  Tushnet calls it the problem of judicial overhang, and cites it for promoting irresponsibility, distorting legislative discussion, and misleading legislators regarding the appropriate form and content of constitutional discussion.

After providing, in Chapter Four, a detailed illustration of argumentative practice under the thin constitution using the issue of religious establishments, Professor Tushnet turns from speculation about how legislators might discharge their responsibility as ultimate (or at least judicially unchecked) interpreters of the thin constitution, to what they would do.  The focus is on how the constitution provides incentives for behavior that is consistent with it, aiming for a self-enforcing constitution.   Tushnet finds that a combination of value-based and structure-based incentives support the self-enforcement of at least the federalism and separation-of-powers provisions of the constitution.  The situation for individual rights provisions is more problematic, which he acknowledges in a hypothetical construction of the circumstances that would support self-enforcement as the general approach to distribution of constitutional responsibility.

Chapters Six and Seven directly take on the practice of judicial review.   Professor Tushnet’s conclusion on the assessment front is that, by and large, judicial review makes little difference.  He notes that even the most visible of judicial decisions, like Brown v. Board of Education (1954) and Roe v. Wade (1973), are not significantly out of line with dominant political positions, undermining the sense of the Court as an engine of political progressivism.   For each progressive result, there is another that moves in the opposite direction, as with the Court’s current attitude towards racial affirmative action.  His conclusion: "On balance, judicial review may have some effect in offsetting legislators’ inattention to constitutional values.  The effect is not obviously good, which makes us lucky that it is probably small anyway."

The problems of judicial review are not resolvable by getting better judges or better theories.  Many of the positive contributions that we hope for from judicial review can be obtained through parallel, but non-constitutional, legal practices, as exemplified in the British legal enforcement of limits on governmental actors.  Appeal to the principles embodied in the Declaration and the Preamble would persist in our political practice, even without the prospect of judicial enforcement.

In the final chapter, Professor Tushnet turns to the affirmative case for populist constitutional law.  He further defines it as "law committed to the principle of universal human rights justifiable by reason in the service of self-government."   He believes that such a commitment has been a consistent, if imperfectly realized, element of our political practice from the beginning, and it is what constitutes us as a people.  The thinness of the populist constitution is a virtue, as it guides principled debate without purporting to impose a particular result.  It clears the way for a principled politics, contrary to the current situation where principle is a matter for courts, and politicians are free to pursue interest.

As I have attempted to provide a fair description of Tushnet’s argument, I have been acutely aware of what I have had to leave out.  The danger in reduction is unusually high, because the argument works at a fairly low level of generality, moving from particular to particular to accumulate a case, rather than throwing a few strategic examples at an abstract proposition.  One of the real virtues of the method is that the particulars are instructive, even if one rejects the overall case.

Professor Tushnet’s arguments against the efficacy of judicial review are familiar and telling, even if they are largely ignored when constitutional scholars are in high rhetorical flight.  The general conformity of constitutional doctrine with dominant political attitudes is clear, even if the causal lines are more problematic than Finley Peter Dunne's prescription (that the Court follows the election returns) would suggest.   An adequate assessment of the effects of the practice would examine what goes on at lower levels of the federal judiciary, as well as in the state courts, but I doubt that the picture would change very much.

Perhaps the most striking aspect of the book is the shift in tone that is marked by the use of the terms "elitist" and "populist."  Tushnet is for the most part a skeptic and an empiricist, but he seems ready to shed those characteristics in pursuit of the populist project.  To be sure, he expresses uncertainty about the outcome of a shift away from judicial review.  There are no guarantees that principle, rather than interest, would dominate populist constitutionalism.  But the uncertainty must be measured in light of the project -- uprooting a practice that has been a key element of our system of governance for two centuries -- and his willingness to embrace that project suggests that skepticism and empiricism have given way to aspiration.

I share the view that much of the work of maintaining the structural constitution can be left, quite safely, in the hands of the political branches.  I have argued, for example, that dormant commerce clause doctrine is best understood as a form of common law, subject to change through ordinary political processes.  But I have also lived for nearly two decades in the land of the initiative and referendum.  I have seen interest, money and duplicity dominate the quintessential populist political process.   In the end, I cannot bring myself to sign on to Professor Tushnet’s cause, though I can encourage everyone to engage his arguments.

James M. O'Fallon is Frank Nash Professor of Law and Associate Dean for Academic Affairs at the University of Oregon School of Law.

Editors’ Note: A review of Professor Tushnet’s Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (1997) may be found here.   Professor Tushnet’s comments on Ed Lazarus’ Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (1998) may be found here.

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© Ronald K.L. Collins and David Skover, 1999.