Contents

• Two Perspectives on Stein:
  
  Stein, Nan. Classrooms and Courtrooms: Facing Sexual Harassment in K-12 Schools. One view by Julie Goldscheid & Yolanda S. Wu, and a second view by F. Carolyn Graglia.
• Dworkin, Ronald. Sovereign Virtue: The Theory and Practice of Equality. Review by Erwin Chemerinsky.
• Forell, Caroline A. & Donna M. Matthews. A Law of Her Own: The Reasonable Woman as a Measure of Man. Review by Lyrissa Barnett Lidsky.
• Friedan, Betty. Life So Far: A Memoir. Review by Kristina Zarlengo.
• Reingold, Beth. Representing Women: Sex, Gender, and Legislative Behavior in Arizona and California. Review by Irene E. Stewart.
• Sherwin, Richard K. When Law Goes Pop. Review by Laurie L. Levenson. Reply by Richard K. Sherwin.
• Thornhill, Randy & Craig Palmer. A Natural History of Rape: Biological Bases of Sexual Coercion. Review by Lynn Hecht Schafran. Reply by Randy Thornhill & Craig Palmer.
• Talkback

Two Perspectives on Stein:

The term "sexual harassment in schools" can strike fear in the hearts of parents and school administrators. It also continues to cause confusion in the general public – as the media sensationalizes stories like the six-year old boy who kissed a girl on the cheek or the elementary school teacher who had an affair with a student. Amidst the cacophony of hysteria and misinformation, Nan Stein's book, Classrooms and Courtrooms, stands out as a voice of common sense and reason.

In a clear, readable manner, Stein sets out to demystify the topic and to provide a broad audience – parents, students, educators, policy-makers, researchers, lay people – with concrete information about how students experience sexual harassment, what legal standards apply, and what responsibilities schools have to prevent and remedy sexual harassment of students. Not only does Stein largely achieve that goal, but she also manages to bring out important nuances and ambiguities that arise when adult legal concepts are applied in school settings. The book may not have all the answers, but it does provide a useful foundation for anyone who wants to take a serious look at sexual harassment in K-12 schools.

What Surveys & Lawsuits Tell Us

Stein begins the book with a comprehensive summary of the major surveys documenting sexual harassment in schools. In so doing, she aims to illustrate the widespread and public nature of sexual harassment in schools. The introductory chapter is most compelling when Stein lets the students speak for themselves. For example, she quotes student responses to a 1993 Seventeen survey detailing their personal experiences with sexual harassment. To bring home the reality behind numbers and statistics, there's nothing like reading a 14-year old's description of being harassed and of how she coped. Contrasted with those quotes, Stein's recitation of the survey findings becomes a bit dry. But, she does helpfully point out the limitations of each study, and highlights the main themes that emerge – that sexual harassment in schools is commonplace and that targets of harassment do not remain passive. She also makes the valid suggestion that survey research be expanded beyond proving the existence of sexual harassment to include longitudinal studies, analyses of what interventions work, and inquiries into the nature of the relationship between the harasser and the target.

Moreover, Stein devotes a chapter to descriptions of the major lawsuits and administrative complaints filed by students alleging sexual harassment. This chapter is most effective in further illustrating students' actual experiences. Lawsuits can be a fertile source of stories, but they do not necessarily shed light on the proper legal standards, as Stein recognizes. She appropriately warns that the rulings described in her book are often contradictory, as courts in different jurisdictions have generated varying approaches to the novel issues presented in school sexual harassment cases.

The biggest shortcoming in this chapter is the result of unfortunate timing. The Supreme Court decided Davis v. Monroe County Board of Education (1999), a major school sexual harassment case, after the book was written, and Stein addresses it only in a short epilogue. In Davis, the Supreme Court applied the liability standard developed in teacher-to-student sexual harassment cases to student-to-student sexual harassment cases. Under that standard, schools are liable for money damages if a school official with authority to take corrective action knew about the harassment and acted with deliberate indifference. If Stein had had the benefit of the Davis decision before writing this chapter, she could have done away with lengthy descriptions of various lower court rulings and focused more on how the factual scenarios in those cases illustrate what happens in our nation's schools.

The omission of Davis also means that the book does not address key questions facing schools and hashed out in the courts today. Since Davis was decided in May 1999, courts have struggled over how to apply the new liability standard: Who in a school district can be charged with knowledge of sexual harassment? What does it mean for a school to act with deliberate indifference? Do complaints have to be filed with the School Board President, the Superintendent, principal, and/or a teacher? Does the answer to the last question depend on the age of the students involved? Does a school act with deliberate indifference when it conducts a shoddy investigation? What about well-meaning school officials who nevertheless have no clue about how to handle sexual harassment complaints? What amounts to deliberate indifference when a school has a teacher with a history of sexually harassing students? The answers to these questions – to the extent that the responses may reflect any consensus at all – carry important implications for school administrators, students and parents. It is a shame that we do not have the benefit of Stein's thinking on them. In particular, the school-based recommendations at the end of the book would probably read differently if Stein had been able to incorporate the Davis test.

Is Bullying Sexual Harassment?

One of the most interesting chapters in this book deals with bullying, which Stein believes is a more developmentally appropriate term to use when dealing with elementary-aged children. We share Stein's concerns about the challenges posed by using legal terms in discussions with young children. Stein attempts to create a point of distinction by differentiating sexual harassment from bullying, pointing out that "sexual harassment is against the law whereas bullying is not." (49) Described by Stein as an antecedent of student-to-student sexual harassment, bullying among children begins at a young age, is acknowledged by teachers and parents, and often goes unchecked. According to Stein, much of bullying is same-sex, but bullying is more likely to be labeled as sexual harassment if it consists of boy-girl or girl-boy interactions. She suggests that, as a result, certain instances of bullying may end up being litigated as sexual harassment; furthermore, characterizing bullying as sexual harassment may actually hinder educators' ability to engage children in understanding and dealing with both phenomena.

Stein suggests that educators and parents might avoid demonizing little boys by talking about bullying vs. teasing, rather than using the adult term sexual harassment. She would hope that the use of such developmentally appropriate language might enable children to learn how to treat each other with respect. Unfortunately, this distinction may minimize the fine line between bullying and sexual harassment. While Stein's efforts to develop language that can assist in promoting dialogue and reducing sexual harassment are valuable, we must not lose sight of the fact that some harassment of young children, whether cross-gender or same-sex, does in fact rise to the level of sexual harassment. All too often, behavior that is sexually harassing is dismissed as bullying. The facts of the Davis case provide a stark illustration: the perpetrator in that case, a fifth grader, pleaded guilty to sexual battery after subjecting Lashonda Davis to unwanted sexual contact. It would be unfortunate if Stein's efforts to encourage communication had the effect, undoubtedly unintended, of making it more difficult for young women and girls to report incidents of sexual harassment for what they are.

Confusion Surrounding the Term "Sexual Harassment"

As in the workplace, the term "sexual harassment" is often thrown around schools and used inaccurately. Students often misuse the term – for instance, boys say "your skirt is sexually harassing me" – and school officials can overreact due to their fear of lawsuits. One result is that well-meaning legislators can pass state laws or regulations that do more harm than good. Stein uses the example of California's Education Code, which requires schools to develop, post, and mail home a sexual harassment policy, stating that students who have "committed" sexual harassment may be suspended and expelled. Stein critiques that law for assuming that the posting of a policy is sufficient and for containing no requirement that the policy be translated into languages other than English; she also notes that preventive provisions requiring education and training were removed from the final bill. She does not say whether California's law is unique or unusual, but the implication is that it is not.

Stein also takes on the issue of false accusations. She points out that there are no studies examining this in the K-12 context, but studies done in higher education have shown that fabricated accusations are few and far between. Stein also mentions that she has a theory that K-12 students may incorrectly use the term "sexual harassment" when they mean sex discrimination, because they realize that they can get school officials' attention right away. This is an intriguing theory, and we would have liked to have seen a more in-depth explanation of it, perhaps with examples and suggestions for how to deal with the phenomenon.

Sexual Harassment & the First Amendment

Stein clearly has an abiding interest in protecting students' First Amendment rights. She aptly points out that courts routinely have restricted students' free speech, and notes that when students inaccurately use the term "sexual harassment," they ironically invite further censorship. Conversely, the First Amendment is often invoked to justify sexist and harassing behaviors, such as the circulation of "slam books" and various lists that demean girls through sexual innuendo.

The most compelling aspect of Stein's First Amendment discussion is her observation that school officials often apply the First Amendment in a gendered way. Boys' off-color behavior is tolerated as part of school culture, but girls who engage in raunchy behavior get censored. Stein illustrates her point with examples from around the country and from her own experience – local school officials allowing senior boys to streak naked, yet wanting to crack down when senior girls appropriated the tradition. Repeatedly, she finds that the gender of the offending students played a key role in determining how the First Amendment should be applied. Invariably, girls were punished more severely for engaging in the same behavior as boys (e.g., mooning), or school officials came down on boys and girls only after girls started engaging in the behavior (e.g., wearing T-shirts with sexual innuendos). This double standard reveals how perniciously sex discrimination continues to be embedded in our society.

School Responses to Sexual Harassment

Probably two of the most useful chapters for school officials are those discussing schools' responses to sexual harassment. Stein provides a thorough overview of approaches schools have taken and the limitations of many of those approaches. For example, she discusses the advantages of asking the target of sexual harassment to write a letter to the harasser; though Stein highlights the benefits of that approach, she cautions correctly that it should not be applied in a formulaic manner and should not be expected alone to resolve the situation. Importantly, Stein emphasizes that the technique should not be used as a substitute for vigorous school response: after all, to ask the target to write a letter runs the risk of placing the responsibility for stopping harassment on the victim.

Stein's discussion of protective orders also provides an important perspective on school responsibilities. Teen-dating violence is increasingly recognized for its impact on young women's lives, and schools should be aware of the circumstances in which the institutions may be a part of a criminal justice response. Just as the workplace may become a site for violence between adults in intimate relationships, the school can become implicated in violent dating relationships between teens, and may be incorporated into a protective order. Stein rightly emphasizes schools' responsibilities to do what they can to reduce the risk of violence at school, whether or not the state permits teens in dating relationships to avail themselves of protective orders.

Overall, Classrooms and Courtrooms provides a concise, accessible, and valuable resource for all those concerned with sexual harassment in schools. Combining summaries of empirical data and legal standards with policy analyses and recommendations, the work helps to raise the awareness of teachers, administrators, parents and students about this important problem. In the end, the book could provide another important step in the manifold efforts to end sexual harassment and to promote equality in education for all students.

Julie Goldscheid is acting legal director and Yolanda S. Wu is a staff attorney at the NOW Legal Defense and Education Fund. The authors of this review have litigated a number of cases involving sexual harassment in schools, and have worked with Nan Stein to provide background information on the topic to courts around the country. NOW Legal Defense and Education Fund co-sponsored the 1993 Seventeen Magazine Survey written by Nan Stein and the Wellesley College Center for Research on Women.

Do Our Schools Need a Civility Code Imposed by the Federal Judiciary?
by F. Carolyn Graglia

In Inequality: A Reassessment of the Effect of Family and Schooling in America (Basic Books, 1972), Christopher Jencks concluded that children seem to be far more influenced by what happens at home than in school. Furthermore, they may be more influenced by what happens on the streets and on television than in school. All this indicates, he said, that the character of a school's output depends largely on a single input – namely, the characteristics of the entering children. Reading Nan Stein's Classrooms and Courtrooms from the perspective of one who attended elementary through high school in the public schools of a New Jersey factory town in the 1930s-1940s, I had to conclude that the characteristics of many schoolchildren have deteriorated greatly over the past six decades. But, how could it be otherwise?

The Character of Today's Schools

Our very high divorce rates and increases in the illegitimacy ratio (one out of three children today is born out of wedlock) leave large numbers of children to grow up in fatherless homes. Many boys never have had an appropriate male role model, and never have known male authority and discipline – only the authority of a mother who, they know, is often intimidated by them once they reach adolescence. Boys and girls have been socialized for three decades by a culture of sexual permissiveness, as the message of feminist sexual revolutionaries that females should pursue casual sex on the same basis as males has been propagated by movies, television, and the music industry. Three decades that tolerated the ubiquitous expression of vulgarities and obscenities, that promoted sexual promiscuity and ridiculed female sexual modesty and reticence have borne fruit in the behaviors documented in Stein's book. One might conclude that schoolchildren simply have put into practice the lessons so well taught by the popular culture.

Surveys of sexual harassment in schools illustrate, claims Stein, "a widespread endemic phenomenon" (11); it is "rampant" (27), an "epidemic" (47), and "everywhere in our schools." (95)  She cites a survey from a large, urban high school that disclosed that sexual harassment from peers was experienced by 87 percent of the females and 79 percent of the males, and was perpetrated by 75 percent of the students. (121) Another survey discloses the shocking testimony of two girls. A 14-year-old writes: "This guy grabbed my butt. The teacher saw it happen. I slapped the guy and told him not to do that. My teacher didn't say anything and looked away and went on with the lesson like nothing out of the ordinary had happened." (13) A 12-year-old writes: "[T]here were 2 or 3 boys touching me, and trust me they were big boys. And I'd tell them to stop but they wouldn't! This went on for about 6 months until finally I was in (one) of my classes in the back of the room minding my own business when all of them came back and backed me into the corner and started touching me all over." She told the principal and he talked to the boys, but they "came out laughing cause they got no punishment." (13-14)

The experiences of these two girls could not have occurred in the public schools of my youth, because the vast majority of students had been taught at home how they were expected to behave in a civil society, and the schools strictly enforced those expectations. From Stein's account, one can conclude that many students today have no inkling of how one behaves in a civilized society and need basic training in social skills and good conduct – what was once called deportment.

The Sexual Harassment Industry

But is Stein the one to administer this training? Her book usefully describes a problem, and gives the general reader a brief overview of how school sexual harassment law has developed. Yet, Stein is part of the sexual harassment industry that was so well-described in Daphne Patai's Heterophobia: Sexual Harassment and the Future of Feminism (Rowman & Littlefield, 1999). Stein directs research projects on bullying, sexual harassment, and gender violence at the Wellesley College Center for Research on Women. She has written teachers' guides on school sexual harassment, and she has served as an expert witness in several sexual harassment lawsuits.

Stein does try to distance herself from some of the sexual harassment activism described by Patai when Stein criticizes "certain factions of extremists (who are often women) who label anything that they find offensive, raunchy, or vulgar as sexual harassment." (72) But Stein is, nevertheless, willing to use sexual harassment training and the fear of litigation to impose her own feminist views on how schools should be run. And while she concedes that courts "should be the route of last resort for the resolution of the problem" (64), she approves every judicial decision that holds school districts liable for sexual harassment of one student by another (peer-to-peer harassment, as opposed to harassment of a student by a teacher), and criticizes every case that fails to impose liability on a school district.

Schools Held Liable for Peer-to-Peer Harassment

One finishes this book feeling that Stein has little sympathy for teachers (although she was one herself) or for school administrators, and refuses to acknowledge the severity of the problems they face every day. The continuing weakening of the American family has placed unprecedented burdens on schools to do vastly more than educate students. And now with the Supreme Court's decision in Davis v. Monroe County Board of Education (1999), it is settled that school districts will be held liable in compensatory damages for its deliberate failure to prevent the sexual harassment of one student by another. As the dissent in Davis warns, the avalanche of peer harassment suits against school districts will divert scarce resources from the task of educating children.

The difficulty of performing this duty that Davis now has placed on schools to prevent actions that are deemed harassing to peers is compounded by the fact that a school's surveillance activity must be discharged within the myriad of constraints which federal law imposes on school disciplinary actions. Stein herself notes the difficulty of enforcing discipline due to the "absence of students' qualms about swearing at or threatening teachers (e.g., 'You can't touch me!')." (61) A student facing suspension from school, for example, must receive some kind of notice and be given some kind of hearing. And under The Individual with Disabilities Education Act, statutory provisions and Department of Education regulations strictly control what schools can do to discipline students with behavior disorder disabilities.

School Disciplinary Balancing Acts

The hazards schools face in performing these disciplinary balancing acts are evident from Stein's discussion of her own expert testimony for a high school student who prevailed in a lawsuit claiming that his First Amendment rights were violated when his school prevented him from wearing shirts displaying sexual innuendoes. The school's efforts to prevent a hostile sexual environment were misguided, says Stein, because they failed to distinguish "sexually charged" messages like those on the student's shirts from "sexually hostile" messages. (82) She also criticizes schools' efforts to prevent a sexually hostile school atmosphere by monitoring off-campus student conduct. A school, she argues, improperly suspended a male student for leaving a message on a female student's answering machine that included a threat about "shoving a Remington semiautomatic" into "her private parts." (85) Schools, Stein warns, must remember that they can be held liable in damages for punishing students for out-of-school conduct that the schools deem harassing, yet one can easily imagine a court holding a school district liable under Davis for failing to take action when the girl who received this graphic message complained of it to school administrators.

As the dissent in Davis concludes, it is absurd to label as sexual harassment the misconduct of emotionally and socially immature children so as to impose potentially crushing financial liability on a school for its inability to stop all manifestations of such conduct. $500,000 in damages were sought in Davis, an amount that was the bulk of federal funding which that school district had received for the year. Furthermore, there are no damage caps in school sexual harassment litigation under Title IX of the Education Amendments of 1972. This means that the liability imposed on schools by Davis puts schools in a far worse position than that of businesses held liable under Title VII for sexual harassment by their employees, since Congress has placed damage caps on the liability of businesses under Title VII.

Alternatives to the Davis Damage Remedy

All surveys show, says Stein, that most school sexual harassment consists of "sexual comments, jokes, gestures, or looks." (118) She also observes that many victims of harassment are also the perpetrators at other times, and that in the majority of cases the perpetrator was a friend or acquaintance of the victim. It would appear that what is often involved are forms of flirting behavior and clumsy efforts to initiate or revive romantic relationships. Probably no one is getting very hurt by much of this activity, and the draconian damage remedy of Davis is uncalled for.

Absent the damage remedy imposed by Davis, sanctions are still available. As Stein recognizes, a complaint can be filed under Title IX with the Office of Civil Rights of the U.S. Department of Education. While the Office cannot award compensatory damages, it can order districts to pay complainants for the costs of counseling, tutoring, transportation, and tuition at another school. The Office can also require districts to provide sexual harassment training for staff and students. And finally, remedies are available under state law through criminal sanctions and a tort action against the perpetrator. The Davis case, for example, involved allegations of attempted touching, vulgar statements, and an incident where the perpetrator "allegedly rubbed his body against Lashonda in the school hallway in what LaShonda considered a sexually suggestive manner." (119 S.Ct. at 1667) The incidents ended when the perpetrator was charged with, and pleaded guilty to, sexual battery. Because of these incidents, the plaintiff alleged that she could not concentrate on her studies, she felt suicidal, and her grades in school dropped. If a complaint had been filed with the Office of Civil Rights, the costs of whatever counseling, tutoring, and other educational assistance she needed could have been recovered.

Stein's Good Advice Diluted by Her Feminist Advocacy

Stein offers educators the very good advice that they should regard a student's complaint as worthy of investigation, and should be aware that failure to do so conveys a message to students. She also makes what seems the very helpful suggestion that schools respond to complaints about persistent threatening behavior by developing their own versions of temporary restraining orders to keep a harasser away from a potential victim. But much of her advice would subject schools to the feminist remolding that already has gone much too far. Is sexual harassment really endemic in our schools? Can we trust these surveys? In one survey, which Stein discusses, about sexual harassment and sexual violence in a high school, the question on whether the respondent had suffered physical and sexual violence asked, among other things, whether someone "pressured me to do something sexual I did not want to do." (99) How can an answer to that question be meaningful? Most high school girls probably have been pressured verbally to do something sexual that they did not want to do, but most would not call this sexual violence.

The two major surveys on which Stein relies were sponsored by feminist advocacy groups (The National Organization for Women and the American Association of University Women). It was the AAUW that propagated the now-discredited view that schools shortchange girls. As Christine Hoff Sommers has demonstrated in The War Against Boys: How Misguided Feminism Is Harming Our Young Men (Simon & Schuster, 2000), it is not girls, but boys who are not doing as well in school. Girls receive better grades, take more advanced placement classes, are less often in special education, take part in more extracurricular activities, and attend college at higher rates than boys. According to the National Center for Education Statistics, by the time today's high school freshmen leave college, males will receive only 41 percent of bachelor's degrees.

The feminization of our schools has made them very uncongenial to many of the boys, who are expected to act more and more like girls – hence, the skyrocketing use of Ritalin to control boyish rambunctiousness. Classrooms and Courtrooms is replete with warning flags that Stein would use sexual harassment training as a tool to feminize the classroom further in pursuit of feminist androgyny. She tells us that such training should infuse a concern for "social justice and democracy" (94) into schools, and teach students to "critique the sexism of the curriculum, hidden and overt." (112) One can be certain that her definition of social justice and sexism is based on the feminist assumption that there are no meaningful biological differences between men and women, and that any recognition or discussion of such differences is unjust and sexist and, therefore, constitutes sexual harassment.

She tells us, for example, that it is sexist for a high school to express greater concern to stop the girls from streaking naked outside the cafeteria windows during lunch than to stop the boys. Similarly, she objects to the punishment of girl cheerleaders for violating their agreement not to engage in "unladylike behavior" (in this instance, by "mooning" male baseball players). Stein considers the phrase "unladylike behavior" to be "vague and ambiguous" (76), but it is probably only ambiguous to a feminist who believes, like Stein, that schools must be careful to protect girls' First Amendment rights to be as raunchy as boys. This is the feminist point of view that Stein would incorporate into her sexual harassment training. Rejected is the point of view that it is females who set and enforce the moral standards of society, and that revival of female sexual modesty and reticence would end the sexual misconduct in our schools much sooner than any sexual harassment training will do.

An Alternative to Feminist Remolding

How far Stein would go in remolding our schools appears from her discussion of bullying in elementary school. Within the concept of "bullying," she includes "gender-based exclusion," giving as an example the repeated enforcement of game rules by boys and girls to keep the opposite sex from joining in their games. (58) She then argues that bullying is sexual harassment and that, since sexual harassment is against the law and bullying is not, bullying events can be framed as sexual harassment for litigation purposes. Armed with this analysis, she can warn school districts that, in order to prevent sexual harassment, they must force girls and boys to play with each other. Stein cites research findings that elementary school boys "regard girls as a group as a source of contamination." (55) Perhaps they do. That view will change soon enough, but until it does we would be wise to respect the desire of young boys, and girls as well, to play largely within their own sex.

Coeducation may require a level of social skills and good conduct that too many of our youth now lack. If they do not already have them, schools should be encouraged to adopt and strictly enforce civility conduct standards, although these standards may well be challenged by some parents' assertion of their children's First Amendment rights to be raunchy. But, it would be better to offer students, both boys and girls, the option of attending single-sex schools than to have sexual harassment advisors micromanage our schools to achieve goals far beyond the combating of what can ever legitimately be called sexual harassment. Certainly, the best thing that could happen to some boys – particularly fatherless ones – would be to remove them from a school governed by a feminist refusal to accept that boys and girls differ in many ways, and to place them in schools with teachers, including more who are male, who do not expect boys to behave like girls.

F. Carolyn Graglia, a graduate of Columbia University Law School who practiced with the U.S. Department of Justice and Covington & Burling in Washington, D.C., is now a free-lance writer and the author of Domestic Tranquility: A Brief Against Feminism (Spence Publishing, 1998).

Editors' Note: For a Books-on-Law review of related interest, see Christine A. Littleton's review of Heterophobia: Sexual Harassment and the Future of Feminism (Rowman & Littlefield, 1998) by Daphne Patai (see also Patai's reply).

A Natural History of Rape: Biological Bases of Sexual Coercion
Randy Thornhill & Craig Palmer
Cambridge, MA: MIT Press, 2000
Cloth: $28.95
Pp. 251
ISBN: 0262201259

In a ten-year study of 2,000 male students at Duke University and the University of Massachusetts, Professor David Lisak found that just over 10% freely acknowledged committing acts that met a conservative legal definition of rape, and that most of these men committed multiple rapes. These findings replicate those of many other U.S. rape researchers who find that a small group of offenders has a large number of victims.

To deal with its reputation as the "rape capital of the world," the Southern Metropolitan Local Council of Greater Johannesburg in 1998-2000 conducted a massive study in which 25% of the 2,000 men questioned claimed to have had sex with a woman without her consent by the time they were eighteen. One in every ten men approved of jack-rolling – "recreational rape" in which a township gang seals off a street or school in order to rape all the females on the premises, or kidnaps women from a party or funeral, forcing them into a van and taking them to another site to be raped.

While living with the Yanomamo in Venezuela, anthropologist Kenneth Good learned that men in the village routinely gang-raped any woman beyond the age of puberty who did not have a husband or tried to leave a husband. When Good returned to the village where he did his fieldwork after a trip during which he was reported dead, he found that his native wife had been raped repeatedly.

Why is the percentage of men committing rape so different in these three societies? How do the types of rape differ? Why does one society overtly sanction rape as a means of social control of women? You won't learn the answers from A Natural History of Rape, a much ballyhooed book with a polemic premise: Nature designed men to rape women to maximize the number of children each man fathers. Anything that gets in the way of that thesis is ignored or dismissed out-of-hand. Authors Randy Thornhill and Craig Palmer profess a noble goal (preventing rape), and offer one excellent suggestion for the criminal justice system. But their book left this reader thoroughly perplexed on two grounds. How could two tenured university professors research and reason so badly? And why did the MIT Press publish material that, if offered as expert witness testimony, could be challenged successfully by a first-year law student?

What Makes an Expert?

Consider the following courtroom scenario. At a pretrial hearing in the year 2000, the prosecutor moves that a professor whose specialty is scorpion flies be allowed to testify as an expert on rape victim impact. The professor states that his testimony will be based on a study of human rape victims published in 1975. When the defense asks his opinion about all the research in this area since that date, the professor responds that he considers it irrelevant and will not discuss it. Does any lawyer reading this not know what the defense would say next or how the judge would rule? The professor would be laughed out of court. But judging by A Natural History of Rape, in which a 1975 study on victim impact is a key item of evidence and the subsequent twenty-five years of research on the issue are dismissed by an academic specializing in the study of insects, all is not lost for this professor. He can still publish a book on the subject.

Why Women Don't Like to Be Raped

The authors "proved" their claim that rape is about reproduction with a theory about why women don't like to be raped. They posit that, while evolution designed men to rape women in order to maximize their paternity, women don't like to be raped because it interferes with their choice of who will father their children. They "prove" their thesis through a study published in 1975 of 790 female rape victims, aged 2 months to 88 years, who reported to a Philadelphia hospital emergency room and were questioned once five days after the rape. The victims or their parents/guardians were asked questions about issues such as their fear of being on the street alone, change in sleeping habits and relationships with men. In 1990, Thornhill reanalyzed the data and claimed that the married female victims of reproductive age suffered the greatest psychological trauma. In their new book the authors repeat that claim, assert that reproductive-age women have a special-purpose psychological adaptation "that makes them dislike being raped," and ignore all the research with rape victims subsequent to 1975.

Professor Jerry Coyne of the University of Chicago Department of Ecology and Evolution, who critiqued this book from an evolutionary science point of view in Nature (March 9, 2000) (available after registering as a user) and The New Republic (April 3, 2000), examined Thornhill's reanalysis of the 1975 data and found that the data do not establish what Thornhill claims. But one need not be a specialist in evolution to doubt "experts" who refuse to discuss twenty-five years of research in their field. In 1975, researchers were just beginning to investigate the area of sexual assault, and did not even know what questions to ask or for how long post-rape to keep asking them. Since then there has been a vast explosion of research with child and adult, female and male rape victims that totally contradicts Thornhill's assertions about victim impact.

Far from reproductive age-women having some unique psychological response to rape, it was the research delineating rape trauma syndrome that led to identifying Post Traumatic Stress Disorder, the common response of those who, in the words of the DSM (Diagnostic and Statistical Manual)-IV, have "been exposed to a traumatic event in which both the following were present: A. the person experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or threat to physical integrity. B. the person's response involves intense fear, helplessness or horror." In other words, the many rape victims of all ages and both sexes who develop PTSD have the same response to their ordeal as the war veterans who used to be called "shell-shocked."

Current rape research also reveals another flaw in the authors' analysis – one that should be of particular concern to the legal system: The claim that stranger rape – as opposed to acquaintance rape – produces the most psychological pain. Getting this matter right is important, because it affects sentencing and civil damage suits. Contrary to the stereotype of the stranger rapist jumping from the bushes, the vast majority of rapes are committed by someone the victim knows. The counterintuitive reality is that non-stranger rape is more psychologically damaging than stranger rape because it destroys the victim's ability to form relationships and to trust others or themselves. If my father/stepfather/uncle/cousin/husband did this to me, how can I be safe with any man? How could I have chosen this man to date? I knew him, so why couldn't I have talked him out of it? Non-stranger victims are more likely to keep the rape a secret because of guilt and shame; more likely to be blamed by themselves and others; and less likely to believe themselves deserving of sympathy and professional help.

Inconsistencies & Contradictions

The book is riddled with inconsistencies, contradictions and unanswered questions. Two of the standout gaffes relate to female agency and incest.

Female Agency: The authors claim the reason women don't like being raped is that it interferes with their mate choice. But they never acknowledge that women also have a choice whether to bear and raise the rapist's child. Reproductive success in evolutionary terms means getting one's genes into someone in the next generation who lives to pass them on. Merely inseminating a woman is not enough. The book claims to be premised on how our human ancestors behaved out on the savannah during the Pleistocene, but it ignores the possibility of abortion and the fact that infanticide has been the default method of population control for all human history. This is brilliantly chronicled in Mother Nature: A History of Mothers, Infants, and Natural Selection (Pantheon Books, 1999) by the internationally respected feminist Darwinist, Sarah Blaffer Hrdy. When a woman decides not to raise a child, she may kill it outright or neglect it until death is inevitable. A stunning photograph in Mother Nature shows an Indian woman in traditional dress holding her twin infants. The boy, fed at his mother's breast, is plump and robust. The girl, passed off to the mother-in-law to raise, is shriveled and wizened and died soon after the photograph was taken. Thornhill and Palmer might have tried to argue that, even with infanticide by mothers unwilling to raise a rapist's child, rapists still enjoyed a sufficient advantage in projecting their genes into future generations, for which this behavior was selected. But they cannot, as they do, ignore abortion and infanticide as if female agency never existed.

Incest: Freud's Oedipus theory must be wrong, these authors say, because inbreeding produces unhealthy offspring, and nature therefore has selected against traits producing incestuous desires. But if nature selected against sons wanting sex with their mothers, why did it not select against fathers wanting sex with their daughters? Father/daughter incestuous rape is a deeply destructive reality throughout the world and in all classes. In a recent article about violence against women in Caribbean countries, Trinidad Senator Diana Mahabir-Wyatt stated that there are villages in Trinidad and Tobago where virtually every girl gets her first sexual experience from her father. In the United States, the silence on this issue was broken largely by Marilyn Van Derbur, a former Miss America who disclosed that she was sexually abused by her millionaire pillar-of-the-community father from the age of 5 to 18. When she went public, she discovered that her older sister, too, had been their father's victim. Both suffered terrible psychological damage. If the point of rape from a natural selection point of view is to get one's genes into the next generation, why rape your own daughter who already carries your genes, especially if the children born will be sickly? The authors could have used the ubiquity of father/daughter rape to support their claim that men are hard-wired to have sex with any female they can get their hands on. But since inbreeding is evolutionarily maladaptive, they have to pretend it doesn't happen. The word "incest" does not even appear in the index.

One Excellent Suggestion

Thornhill and Palmer insist that their goal is not to excuse rapists but to prevent rape. It may be hard to square their notion that nature selected for rape-proneness in men with their insistence on men's free will in acting on their genetic heritage. Nevertheless, they do offer one excellent suggestion for rape prevention: incarcerate rapists. This is not facetious praise. Of the few sex offenders reported and convicted, even fewer suffer severe punishment. Minimal sentences of unsupervised probation are commonplace. According to a 1993 study by the Senate Judiciary Committee, The Response to Rape: Detours on the Road to Equal Justice, almost one quarter of convicted rapists are released on probation and another quarter are sentenced to a local jail for only eleven months.

The legal system's failure seriously to punish sex offenders is illustrated by a recent case from Nebraska. Andrew Van Dollen, an eighteen-year-old senior at the state's most prestigious all-male prep school, lured a fourteen-year-old girl to his home on the pretense of a date. His parents were at home.  According to the police reports, over the next three hours he punched her in the stomach, knocked her to the floor, and tore out her pubic hair. He threatened her life and that of her sisters. He demanded that she tell him how much power he had over her.  He stuffed a shirt in her mouth.  He raped her orally, vaginally, anally, and with a miniature baseball bat. Six days later, she reported to the police and was taken to a hospital.  Photographs were taken of her still visible injuries.

Van Dollen was indicted for first-degree felony sexual assault, which carries a maximum sentence of fifty years. He was allowed to plead guilty to a third degree misdemeanor and sentenced to two years probation and treatment with ninety days in jail suspended to be served only if he did not meet the conditions of probation.  The Adult Probation Office recommended probation.  The judge said he based his decision on the defendant's lack of a prior record and the likelihood that he would respond to treatment while on probation.

This rape happened in 1992. In 1993 and 1995, two different women at the defendant's college reported him to school authorities for sexual assault. In 1996, Van Dollen sexually assaulted another fourteen-year-old girl.  Again, he was indicted for a first-degree felony. Again, he was allowed to plead to a third degree misdemeanor. The prosecutor later acknowledged that he did not bother to read thoroughly Van Dollen's file, because even though the police reports detailed the victim's allegations of being raped repeatedly, the prosecutor noted it was a date rape allegation and assumed it had been prosecuted as a misdemeanor with no felony charge ever filed. Fortunately, the Omaha newspapers recognized the defendant's name from the 1992 case and Van Dollen's pattern of conduct was revealed to the court before sentencing.  The second judge imposed the one-year maximum incarceration saying, "You wonder how many women are out there that didn't come forward." The facts in the 1992 case left no doubt that Van Dollen was a dangerous predatory sex offender; but the legal system treated him as a good boy who had a bad day. 

Sympathy, Perhaps, But Not Nuanced Understanding

Thornhill and Palmer say nature designed men to rape women, but they also say they wrote their book in response to the suffering of a friend raped many years ago. Their motivation shows sympathy. Sex offender treatment providers say this is the emotion utterly lacking in offenders, the emotion most difficult to instill, and the sine qua non of treatment success. Preventing rape requires a nuanced understanding of why some men rape and most do not. Unfortunately, A Natural History of Rape does not provide it. Anyone wanting insight into this question would do well to begin with Why They Kill (Knopf, 1999), Richard Rhodes's exploration of criminologist Lonnie Athens's concept of "violentization" – how family, friends, community and life circumstance can turn an individual toward violence – and Rhodes's application of that concept to Mike Tyson and the "preppy rapist" Alex Kelly.

Lynn Hecht Schafran is an attorney and Director of the National Judicial Education Program, a project of NOW Legal Defense and Education Fund in cooperation with the National Association of Women Judges. She is co-author of model curricula on "Understanding Sexual Violence" for judges and prosecutors, including a video version to be released shortly.

Lynn Hecht Schafran's review is astounding in the way it misunderstands much of the content of our book. The first clue that this review is written by someone who did not take the time to try to understand it is its title: "Is Rape in Our Genes?"  Not only do we spend much of the beginning section of our book explaining why all behavior is the result of both genetic and environmental factors (and, hence, why no behavior is in our genes), but this is a point made in essentially every major evolutionary work of the past two decades.  Such a misunderstanding of our approach as genetically deterministic is apparent in a number of more specific points made by the reviewer.

A second clue of intellectual laziness on the part of the reviewer is the claim about the central argument of the book.  We do not argue that rape is an adaptation – that is, that Darwinian selection directly favored males who raped women.  In fact, we actually consider no fewer than ten distinct evolutionary hypotheses to explain the existence of human rape today. We, then, describe why eight of these can be rejected on scientific grounds, because they suffer from fatal logical flaws and/or are clearly inconsistent with available data on rape.  We follow with an examination of the two remaining evolutionary hypotheses: rape as an adaptation for reproduction through increasing the number of reproductive-age female mates by force, and rape as a by-product of various evolved differences in men and women's sexuality. The by-product hypothesis posits that men's sexual adaptations for pursuing consensual sex with many partners without commitment, when coupled with women's discriminating mate choice, leads incidentally to rape behavior.  Most emphatically, we do not conclude that human rape is an adaptation. Instead, we conclude that " the question whether rape is an adaptation or a by-product cannot yet be definitively answered . . . " (84)

The criteria actually needed to decide between these two evolutionary hypotheses for rape are discussed at great length in A Natural History of Rape.  In brief, scientific proof of the existence of an adaptation for rape would be conclusive evidence that men possess a mechanism or trait (or multiple mechanisms) that was (were) specifically for promoting rape in human evolutionary history.  The failure to find such evidence would scientifically falsify the rape-adaptation hypothesis. We suggest in our book six candidate psychological adaptations for rape.  Just as the human psychological adaptation for color vision is specifically for assessing color, a rape psychological adaptation would be functionally specific for raping.  To put it differently: A rape psychological adaptation would give rise to maximum motivation to rape when evolutionary historical benefits of rape (copulation with a female of fertile age) exceed evolutionary historical costs of rape (injury, punishment of the perpetrator).

The examples of rape in other countries in Ms. Schafran's review are all consistent with both the rape as adaptation hypothesis and rape as by-product hypothesis.  Cross-cultural variation in the frequency of rape is perfectly compatible with both of these hypotheses, because both see rape as a result of interaction between men's sexual adaptation and the environment.  Changing the environment changes the frequency of rape behavior. This is also why so much of A Natural History of Rape examines why some men rape and others do not, something the reviewer astonishingly claims is not mentioned in the book.

Ms. Schafran wants to toss out the evidence from the important study of rape victims in the 1970s, a move that would be scientifically invalid. This is still the largest study that allows examination of critical predictions of our evolutionary hypotheses about rape victim psychological trauma.  More recent studies, as we mention in the book, have not provided useful data for examining these predictions.  In addition, our ideas about rape victim mental pain following rape are not inconsistent with the existence of post-traumatic stress syndrome.

Moreover, we emphasize that our hypothesis that women have adaptation to avoid being raped, and to experience different forms and degrees of mental pain when raped, is independent of the hypothesis that men have rape adaptation. Such female adaptation is anticipated whether rape is an adaptation or a by-product.

In regard to female agency, it is critical to remember that we consider both the rape adaptation hypothesis and the by-product hypothesis. Although the possibility of aborting or killing an offspring resulting from a rape is one of the numerous factors influencing the reproductive costs and benefits of rape during human evolutionary history, it certainly doesn't rule out the rape as adaptation hypothesis. The fact is that rape, even in societies with modern birth control, does sometimes result in surviving offspring.   But, as we emphasize in A Natural History of Rape, the effect of rape now on reproductive success is not a criterion for distinguishing the two evolutionary hypotheses for rape.

We are very skeptical of the "ubiquity" of father-daughter incest suggested by the reviewer.  However, the evolutionary reasons for the differences in male and female sexualities that explain why father-daughter incest is expected to be much more frequent than mother-son incest is discussed in detail in Chapter 2 of our book.

In conclusion, it is sad that someone with whom we share the goal of ending rape decided to review a book before understanding it. We hope that both the reviewer and readers will take the time and effort to understand what is actually written in A Natural History of Rape before deciding what it has to offer members of the legal profession attempting to prevent this horrible crime.

Professor Owen Jones of the law school faculty at Arizona State University has written a relevant and informed article about our book's relationship to the legal profession.  (See "Reconsidering Rape," National Law Journal, Feb. 21, 2000, sec. A, p. 21.)

Randy Thornhill is Regents' Professor and Professor of Biology at the University of New Mexico, and Craig T. Palmer is Instructor of Anthropology at the University of Colorado.

Life So Far: A Memoir
Betty Friedan
New York, NY: Simon & Schuster, 2000
Cloth: $26.00
Pp. 399
ISBN: 0684807890

"I never intended to write a memoir," goes the apologetic first sentence of Life So Far.  Nevertheless, the book is certainly a memoir, and certainly not an autobiography.  To read the clean, sure prose of Betty Friedan's account of herself is to conclude that she remembers what mattered, and that what mattered is what she remembers.  It's easy to take her word on it: her very public life and the stunning impact of her work as a queen of the American women's movement once fundamentally redefined what matters to American women and men.

Indeed, it is the impact Friedan had on American social life – from the boardroom to the suburban kitchen – that lately has inspired fresh controversy about Friedan.  Life So Far was preceded recently by two books that also purport to tell us what really mattered about Friedan's precipitous rise to fame.

Last year, Judith Hennessee issued her version – Betty Friedan: Her Life (Random House, 1999).  Hennesee showed ample respect for Friedan's remarkable The Feminine Mystique, a book that famously toppled the 1950s' Humpty-Dumpty image of American women's domestic bliss.  Hennessee's biography celebrates the intelligence, prescience, and guts that went into Friedan's foundation and presidency of the National Organization for Women (NOW), and her self-positioning as both household name and feminist potentate.

But, Hennessee did not shy away from Friedan's class snobbishness, or coquettishness with men, or – feminism be damned – her distaste for most women. Strikingly, Hennessee also took a long, hard look at what is known by Friedan's intimates: The Betty Friedan who shocked the American public with a portrait of women as silently, psychologically beating themselves up because they are dissatisfied in a thankless role, and who urged women to liberate themselves from that role, was for most of her adult life very physically beaten up by her husband, Carl. Hennessee revealed that Friedan, the public heroine, was also a domestic victim.

Daniel Horowitz published an earlier life account, Betty Friedan and the Making of the Feminine Mystique: The American Left, The Cold War, and Modern Feminism (University of Massachusetts Press, 1998). Horowitz took facts from Friedan's college years and early career as a labor journalist to indicate that she owed her greatest allegiances to the Left.  For Horowitz, such allegiance was cause to credit feminism for its roots in traditional revolutionary thinking.  He also took it as cause to chastise Friedan for diminishing the importance of her true roots when she became a best-selling author, famous for being the kind of political activist that is also, and emphatically, just another suburban mommy. Among his materials were Friedan's FBI files, which contained such clues as her failed attempt to join the Communist Party while a student at Smith.

Perhaps even more than a memoir, then, Life So Far is a defense. "I got really annoyed," continues Friedan in her opening muse, "when those self-appointed biographers started contacting me.  . .  . I sensed then – and was proven right – that the unauthorized biographies they would publish about me would be in large or small part false, mistaken, sensational and trivializing." (13-14) That Friedan decided to tell it all her own way does little, however, to still the agitation surrounding her story.

The Personal vs. the Political

"What I am sure of," Friedan writes, "is that ideology has to come from personal truth, has to test against real life." (13) But her book certainly does not reconcile tensions between the political, public Friedan – a fearless crusader – and the personal Friedan, even though the personal and the political certainly were tightly interlaced in her life.  For instance, she says her husband was especially likely to beat her on days just prior to her television appearances and trips to Washington. 

Indeed, most of Friedan's companions saw her personal and public personae as almost identical.  "[A]s friends, my publisher, my agent couldn't help but be aware of some of the difficulties in my marriage," she euphemistically recalls, "they'd keep reminding me, 'It's so important for your book that you are a good wife and mother.' They even had me take along pictures of my kids when I was on television or giving a lecture." (146) Once the TV cameras rolled, she would lament women's self-silencing and isolation, their dissatisfaction with domestic life. During her trips to Washington, she remembers, she would try to sway leaders on the importance of women's issues while wearing heavy makeup to conceal bruises on her face.

Friedan ultimately did divorce her husband in 1969. She remembers it as finally bringing her convictions home. "How could I reconcile putting up with being knocked around by my husband with calling on women to rise up against their oppressors?  On the one hand, I was strong.  Nothing ever fazed me in organizing the women's movement.  Even the bomb threats [that were directed at the site of a book reading] didn't really terrorize me.  Divorce, however, did." (224)

Once she had braved her divorce, however, fresh tensions arose. Deeply interested in her romantic involvements with men, even "depressed" if she had no date on a Saturday night, she was sad to discover her high status was hard on romance. (28) During a hike in the remote California hills with one potential lover, the two encountered a girl scout troop that recognized Friedan, then fawned over her.  The affair never developed, and Friedan wistfully guesses their failure was due to her success. "My high profile could be pretty threatening to men." (313)

When Friedan did settle into a post-divorce romance, it was with a married man. Did she have compunctions about their effect on his marriage, show concern over its impact on her lover's wife? Oddly enough, the wife in question was acquainted with Friedan, and acquainted with the situation. Odder still, it was this wife's approbation of the affair that made Friedan end it.  Without a fracturing marriage, without a devastated wife, it would seem, Friedan's affair with a married man made no sense.

While Friedan conducted a public life that broadcast sure, clear messages about men and women, Friedan the private woman was always – both before and after her troubled marriage – a woman no less attracted to the rivalries of love than to its harmonies.  Her complicity in her own suffering does not escape her notice. "I've always been uneasy, politically, about the battered wife issue because I knew from personal experience that it wasn't that simple.  When it was happening to me, if I am honest about it, I think I colluded in it. . . .  I know I am blaming the victim, even if the victim was me, but I think I accepted the abuse because I didn't have the nerve, somehow, to get out, or make it clear that I would get out." (166) 

That's a heretical statement for many of the feminists who have succeeded Friedan.  No matter. Heresy among the ranks of the sisterhood is no novelty for Friedan.  Nor does she always remember her activist sisters kindly.  While happy to praise Gloria Steinem in passing, she also opposes Steinem's brand of feminism, a kind she dubs "radical chic" and deems over-abstruse.

Her critique is sometimes considered.  Steinem's magazine, Ms., often printed articles recommending that women liberate themselves in part by stopping to try to please men with their looks. Such an agenda was silly to Friedan, who insists to this day that it's nice to look nice, and that the point of feminism is to get women on equal footing with men in society, not change the way they look.  For Friedan, whatever connection personal appearance may have to political rights is always secondary, and there was no sense in Ms. trying to get the tail of private life to wag the dog of social parity.  Friedan belies her own point, however, when her critique of Steinem turns petty.  When Friedan once went to have her hair done in a posh New York salon, she recalls, she found Steinem there, freshly streaked hair under a dryer, holding an issue of Vogue in front of her face to avoid being seen. (250)

The Ordinary Woman Standard

Friedan directly defends against Horowitz's Leftist take on her biography.   "A deconstructing male historian," she writes of him, tried to "dismiss my credibility in writing The Feminine Mystique by claiming it was all a communist plot . . . and insisting that I never was a real suburban housewife.  But that isn't true. My experience with Communist dogma had given me a healthy distrust of all dogma that belied real experience." (111)

It is a confusing defense, since Friedan is dogmatic in her own right. Her kind of dogmatism lies in insisting on a politics built on broad principles, common sense and middle class values: feminism for the mainstream.  It's a view that leaves Friedan with little tolerance for sexual politics, lesbian-identified feminism, even women's studies programs. So although Friedan's views are strictly majoritarian, they in no way represent the majority of feminist activists.

Nevertheless, Life So Far makes it hard to know how Friedan became so wrapped up in identifying herself as ordinary. Already at Smith she shone, raising eyebrows for her outspokenness on socio-politics of her day in the student newspaper that she edited.  She went on to graduate study at Berkeley, where she was the first woman to win the most prestigious and coveted fellowship in psychology.  Friedan then refused the award due to her boyfriend's promise that they would have to split up if she accepted, since he could never match her accomplishment and would not stand for having a girlfriend who outranked him. Is it that refusal that made her an ordinary woman? 

Is it ordinary that anyone – woman or man – would interpret the perpetual rejection of a magazine article as a sign that the article was of the utmost importance?  That's what Friedan concluded once.  Indeed, she was so encouraged by the rejections that she quit free-lance writing, although she badly needed the income it generated, and started taking a bus into New York City three times a week to do research on a book that built on the article. (Meanwhile, she continued caring for her three children and putting dinner on the table.)  She eventually folded those editors' rejections into support for her book's thesis that certain sentiments about women were actively being silenced in America.  The extraordinary book was, of course, The Feminine Mystique.  All the women's magazines published the articles they once had rejected, and Friedan became an overnight celebrity.

In the wake of the book, she rose to presidency of NOW. Why, then, was she later forced out of that caucus? She explains: "My strengths lay in inspiring and leading the masses and fighting the external enemies. But I was easily outfoxed within the movement and I wasn't so good at fighting for power." (255)  And so it goes.  An extraordinary woman insistent on her normalcy, intent on saving the world outside, and radically at odds with the world nearest her.

Insight Into an Icon and a Movement

Life So Far is in no way the extraordinary achievement that The Feminine Mystique was. But it is wonderful and deeply valuable to have Friedan's account of herself.  This is so because of her charming prose and unflappable poise, to be sure. But the book is also great for what's missing: any sound reconciliation of this feminist's personal and public worlds, and any concession of the bottom line that women's rights must be forwarded palpably rather than symbolically.  If there be any reconciliations within Friedan's memoir, they come from between the lines.

Perhaps unwittingly, she demonstrates that articulating the trap of social status, like women's in the early 1960s, never means becoming free of it. That the feminine mystique afflicted its foremost diagnostician is perhaps the most powerful possible illustration of its force. 

As for Friedan's dogmatism, her stubborn insistence that fundamental rights need to be secured before women's rights activists should turn their focus to more symbolic forms of oppression still keeps her busy today. It makes her outraged that the USA "is the only advanced nation besides South Africa without a real national child care program." (370)  It makes her suspicious of trends in modern feminism.  "To me, all the emphasis on criminalizing pornography and sexual harassment and even rape is way out of proportion," she writes. "I was incensed when they had all those marches to 'take back the night.'  It's the day we have to work on.  Once we get real equality and equal pay and economic control of our lives, we can take care of the night." (377)

If Friedan's view of women's rights is fixated, even narrow, how remarkable that even that vision has yet to be realized after three decades of ardent women's rights activism.  And how obvious that without such a broadly inspiring view as Friedan's, we never could have gotten this far.

After earning a Ph.D. in English and Comparative Literature at Columbia University, then working for a year as a free-lance writer, Kristina Zarlengo enrolled at Boalt Hall, where she is currently a second-year student. Ms. Zarlengo's work has previously appeared in the San Francisco Chronicle, Lingua Franca, and Salon magazine.

Editors' Note: Ms. Friedan's memoir drew some criticism when it was first released, including criticism from Carl Friedan. See Letter-to-Editor, New York Times, July 16, 2000, sec. 7, p. 3; The Philadelphia Inquirer, July 6, 2000.

For a Books-on-Law review of related interest, see Mary-Christine Sungaila's review of In Our Time: Memoir of a Revolution (Delacorte Press, 1999) by Susan Brownmiller; see also her Books-on-Law interview (2/21/00) with Ms. Brownmiller.

Representing Women: Sex, Gender, and Legislative Behavior in Arizona and California
Beth Reingold
Chapel Hill, NC: University of North Carolina Press, 2000
Cloth: $55.00 / Paper: $19.95
Pp. 338
ISBN: cloth 0807825387 / paper 0807848506

Beth Reingold, an associate professor of political science and women's studies at Emory University, has written an informative and provocative book exploring the idea, often asserted, that the more women we elect to public office, the more women's interests will be served. As Reingold persuasively argues, our societal discussion about women's representation has oversimplified greatly what women's interests are and who best represents those interests. Her conclusions about women representing women are quite surprising.  This book will appeal to anyone interested in sweeping away political and gender stereotypes in favor of reality-based thought.

This book began as Professor Reingold's dissertation, and is the culmination of a decade's work.  In 1990, she selected California, with only 16 percent female legislators, and Arizona, with 30 percent female legislators, as fertile grounds for testing the idea that larger numbers of women in elective office would lead automatically to better representation of women and women's issues. Reingold interviewed most of the female legislators in the Arizona and California State Legislatures and a representative sample of the men. She followed the interviews with a written questionnaire, then reviewed statistics on legislation proposed and passed, electoral returns, and past studies on female legislators. Because the most important source of information for this book – the interviews – is ten years old, some of Reingold's conclusions are outdated.  Her main discussions and conclusions, however, are bold and new.

Professor Reingold asks hard questions: What are women's issues? About what issues, in the polls as opposed to researchers' theories, do women consistently register more concern than men?  Assuming there are identifiable "women's issues," do female legislators voice more concern about these issues than their male colleagues?  Do female legislators introduce and push to passage more legislation concerning "women's issues" than their male colleagues? In the end, does having more women in public office mean women will be better represented?

The resulting study covers a very broad range of topics and arguments. So much so that Reingold's thread of thought sometimes gets lost within the warp and weave. At base, Reingold persuasively argues that political strength does not necessarily lie in numbers. For instance, she found that the women of the Arizona legislature were no more likely to act for women than were their California counterparts, despite the much larger numbers and power of female legislators in Arizona. Reingold concludes: 1) there is no common set of "women's issues" about which women care significantly more than men; and 2) sex is a poor predictor of legislative behavior, so larger numbers of women in legislatures will not necessarily translate into better policies on any assumed set of "women's issues."

Challenge to Prevailing Thought

Since 1975, the percentages of women occupying elected offices at every level of American government have increased slowly but steadily. For instance, in 1998 in Arizona, women were elected to the top five statewide offices – governor, secretary of state, attorney general, treasurer, and superintendent of public instruction. In California, a record number of women were elected to the state senate.  Media pundits proclaimed the advent of a "woman's world" where "women's interests" would be increasingly prominent on the legislative agenda.  They opined that increased numbers of women in office had reached critical mass, allowing those women freely to address "women's issues."

It's not just the media.  Many political science researchers have concluded over the years that there are an identifiable set of "women's issues," and that female legislators do "make a difference" on those issues.   Many researchers also assume that in institutions where female legislators do not make a difference on women's issues, it is because women are so few in number that they cannot dare to take a prominent stand on such issues for fear it might marginalize them in future elections or current internal political maneuvering.

Reingold brings a breath of fresh air into these tautological debates. She challenges the standard assumptions about women's goals and functioning in public office. Contrary to public "wisdom," Reingold found female legislators were, overall, not much different from their male colleagues (particularly, colleagues within the same political party) in terms of their policy stances and voting records on women's issues.  She found that this lack of differentiation is not due to male dominance in the political arena, but rather due to more concrete and practical pressures – women are elected/reelected by both male and female constituents, and so must represent both their interests; political parties exert pressure toward more liberal or conservative agendas, and this political reality overrides any gender-specific agenda; women are divided on how to best represent women's interests; and the need to be collegial, efficient, and provide reciprocity when dealing with the other legislators blunts special-interest efforts.

What Are "Women's Issues"?

Professor Reingold, very logically, first asks what it is female legislators are supposed to achieve – what are "women's issues?"  Numerous surveys and a considerable amount of experimental research show that the American public consistently attributes different skills, traits, and issue competencies to male and female candidates. Voters tend to believe men are better at dealing with foreign affairs, maintaining law and order, and formulating economic or fiscal policy.  In contrast, voters believe that women are better at handling issues of social welfare (especially on behalf of children or the poor), education, health, and the environment. Also, they are expected to have more interest and expertise in issues surrounding abortion, sexual harassment, sexual assault, and domestic violence.  The underlying assumption is that women's life experiences better prepare them, and encourage them, to take action on these "women's issues."

The really wonderful aspect of this study is that, instead of relying on shop-worn assumptions based on gender stereotypes, Reingold takes the bold step of examining hard data.  Polls show women voters do not differ that much from men on such issues as women's equal rights or abortion rights.  Statistically, women voters only appear to be somewhat (approximately 9%) more liberal/pacifist than men on international affairs, gun control, death penalty, social welfare policies, some civil rights issues and environmental protection, with the biggest difference lying in environmental protection.  Indeed, the differences among women voters on various political issues are generally larger than the differences between men and women voters.

In the legislatures, the same pattern applied.  In 1990, the Arizona legislature had more women than the California legislature. Yet, contrary to the "strength in numbers" theory of women's representation, the Arizona female legislators displayed more diversity in legislative agenda and less difference from men in willingness to represent women than the numerically inferior female California legislators. Reingold theorizes that Arizona female legislators were too numerous, too secure with the number of high ranking positions they had achieved, and too diverse in their political thinking to consider themselves a cohesive group and organize as such.  They could not, and did not, define a core group of "women's issues" to coalesce around. California female legislators on the other hand, at least in 1990, were still so small in number that being in the state legislature seemed relatively remarkable and encouraged them to recognize their common interests (i.e., agree on what they considered important "women's issues") and band together across political party lines to work on those issues. In fact, in 1985 they formed the Women's Political Caucus to do just that.

Reingold speculates that, as increasing numbers of women are elected to state offices, they will bring with them greater diversity of thought about what "women's issues" are and how to address them, along with a corresponding decrease in willingness to organize collectively to address those issues. She hints at, but does not openly state, the disturbing conclusion that perhaps more women in the legislature will actually reduce effective female representation on women's issues.

Professor Reingold then earns my undying admiration by pointing out the obvious, but often ignored, fact that women are not one big heterogeneous group. Rather, women are individuals with independent thoughts and a multiplicity of life experiences shaping those thoughts. Women's identities and political ideas are forged in crucibles containing more than their gender. So, the good news is that women are humans, too. (If Reingold had made only this point, and no other, I would heartily endorse this book.)  The bad news is that there is no easily listed core group of "women's issues" that women consistently identify as critically important.

Disappointingly, despite concluding that there is no one set of "women's issues," Reingold proceeds to define an assumed set mirroring the traditionally assumed list of woman's issues, and progresses through the rest of her book evaluating legislators' reactions to and performance upon such issues. After Reingold spent so much time and effort convincing the reader there was no one set of "women's issues," this step is intellectually jarring. I eventually accepted that such an assumption was necessary, however, to allow the rest of the study to go forward.

Concern about Women's Issues

Both male and female legislators join with the majority in our society in assuming that there is an identifiable set of "women's issues." Many of the legislators whom Reingold interviewed, both men and women, consistently identified and thought about women as a political group with a set of issues they cared about.  Women legislators, however, perceived women as their most supportive constituency group, and male legislators saw them as either a modest support or one of their least supportive constituency groups.

While neither group of legislators dismissed "women's issues" as trivial or unworthy of political attention, female legislators believed that they and their female colleagues were more capable of handling such issues, or at least more willing to take the lead on them, than their male colleagues. Male legislators, while for the most part maintaining they were perfectly capable of representing women on "women's issues," generally believed female legislators were more concerned and effective on those issues (except the California male Democrats, who generally felt they were just as concerned and effective as their female colleagues).

Because of their identification with their female constituents and their belief that they were better able to service "women's issues," female legislators tended to be more vocal about their concern for women's issues. Such voiced concern, however, does not necessarily translate into effective action.

Effective Action on Women's Issues

At the heart of this book are cold, hard statistics showing that female legislators, like every other politician, can talk about policy goals as much as they like, but in the end are constrained by party politics and other political realities. While the author does not express this conclusion in such stark language, she does get the point across through voluminous statistics and an accumulation of smaller conclusions.

Professor Reingold examined voting records of male and female legislators on the spectrum of "women's issues."  It turns out that male and female legislators of both states, within their own political party, generally voted the same on most "women's issues." On pollution control, public education, employment, the death penalty, equal rights for women, abortion, health care, and minority rights, men and women of the same party exhibited the same, or only very small and inconsistent, voting differences.  Only the issues of consumer rights and child care showed female legislators from both states taking somewhat more liberal positions than their male colleagues in the same party, but still not constituting a large voting difference. The women, as well as the men, tended to be influenced heavily by their party's line on any given issue. In other words, party affiliation, not sex, is a much better predictor of policy preferences and votes.

Another (somewhat) objective measure of how well concern translates into effective representation is the level of activity each legislator exhibits in proposing and introducing legislation of concern to women, mobilizing support for such initiatives, and seeing them through the political process.   In other words, are female legislators likely to be more effective than men, via policy leadership, at making sure women's issues are on the table for discussion?

In the Arizona legislature in 1990, women dominated policy leadership and general activity on "women's issues" and men dominated "men's issues." In California, while both male and female legislators were equally active on men's and women's issues, women legislators tended to take leadership roles regarding women's issues in committee work and other policy shaping initiatives.  In both states, the female legislators seemed to be pursuing activity on women's issues because they were interested, not because they were "ghettoized" into working on such issues.  The end result of all this activity and leadership, however, was not more legislation in favor of women's issues; it merely (as of 1990) put women's issues into active discussion.

Reingold theorizes that legislators' votes are highly constrained by party pressures, but their policymaking activities are much less constrained when setting their own working priorities.  I, as a reader, took the next step on my own and concluded that, due to party constraints, the same ultimate package of legislation would be passed whether the legislature was all male or all female. The only real determining factor was the number of Democrats versus Republicans, with Democrats being more active and successful at representing what is traditionally thought of as "women's issues."

My biggest disappointment was that Reingold did not address how, or whether, Democratic women better serve the traditional list of "women's issues" than Republican women. I suppose that would open up a whole new can of worms – a can that has been opened and consumed many times over in the course of other studies of party politics. Reingold generally chose, instead, to lose herself in the minutiae of statistics and interview responses about such things as women's political management styles.  (One almost believes that some sections of the book were included because Reingold had at one point done the research and, though it did not directly contribute to the core thesis of the book, she could not bear to edit it out.) She does not pull back often enough to make general statements and conclusions.  Perhaps this is because the book is intended for academic rather than popular audiences.

Reasons to Strive for More Women in Public Office

Professor Reingold does, briefly, explore several reasons we as a society should continue to push for more women in positions of political power. Women tend to get "women's issues" onto the table for discussion, at least behind the scenes.  We can hope, but perhaps not count on, those issues to move eventually into enacted legislation.  Reingold also points out that she only looked at two state legislatures in depth. Perhaps, in other legislatures, there are strength and purpose in female numbers.  Finally, Reingold argues there is symbolic value in having the percentage of women in our representative bodies reflect the actual population. Low numbers send the message that women are somehow unfit or unable to participate.  High numbers send the message that women are capable and willing to represent themselves and men.

Conclusions

The argument that larger numbers of women in the legislature will translate into more service to women's issues is revealed in this book as only a simplistic strategy in the continuing struggle to sell the idea of women's right to equal and meaningful political participation.  As Reingold puts it, "it is one thing . . . to demand greater political representation of the 'activities and values associated with women' and quite another to demand greater political representation of women themselves as the only guarantee." (49)

Though Reingold thoroughly, and with quiet delight, explodes the notion that increased numbers of women in office will automatically better women's political representation, she does not expressly offer any alternate paths to that goal. Buried in the statistical tables and the discussion on how men versus women vote on various issues, however, is a very clear message.  The factor that most affects how a legislator votes (and, accordingly, what policy goals they effectuate) is not sex but political party allegiance. Combine this with the fact that women do not agree on what "women's issues" are (and, indeed, more often than not disagree on how to achieve those goals).  This all means that effective representation for women is achieved, not by women picking candidates based on sex, but (gasp!) by women understanding the issues and voting for the candidates that best reflects their points of view.

A refreshing slice of common sense. I recommend this book.

Irene E. Stewart is an attorney practicing in the Los Angeles area. She is an active member of the California State Bar's legislation conference and, on behalf of Women Lawyers Association of Los Angeles, has testified before California State legislative committees regarding pending bills affecting women's interests.

A Law of Her Own: The Reasonable Woman as a Measure of Man
Caroline A. Forell & Donna M. Matthews
New York, NY: New York University Press, 2000
Cloth: $38.00
Pp. 242
ISBN: 0814726763

In this provocative book, Professor Caroline Forell and Ms. Donna Matthews (an Oregon lawyer) argue that existing law systematically undervalues women's experiences of sexual harassment and sexual violence. In essence, the authors contend that law is a "warrior code" that is unduly forgiving of sexual aggression and violence, and they support this contention by showing how "male-centered values" permeate the law of sexual harassment, stalking, domestic violence, and rape. This critique alone would make this work worthy of serious consideration by anyone concerned with the law's treatment of women.

"Male" vs. "Female"

The authors argue that both the traditional "reasonable man" standard and the more modern "reasonable person" standard allow decision-makers to apply male-defined community norms to assess sexual harassment of, and sexual violence against, women. That claim is most persuasive when, as in the case of domestic homicides, the authors support their argument not only with case law analysis and newspaper accounts but with social science research and statistics showing the differential treatment women defendants receive in such cases.  The authors use that combined data to indict the criminal justice system's treatment of men who kill their intimates and of battered women who kill in self-defense.

The authors are on weaker footing, however, when relying predominantly on case analysis, as they do in their discussion of hostile environment sexual harassment law. They tend to conclude their discussions of cases with which they disagree by saying that the judges decided them from a "male perspective."  For example, they find the Supreme Court's sexual harassment decision in Harris v. Forklift Systems, Inc. (1993) to be "directly attributable to the presence of two women on the Supreme Court." But this is mere labeling, not analysis. Moreover, it creates problems for the authors when cases with which they disagree are decided by female judges; in these cases, they are forced to argue that the female judges applied male standards in evaluating the harassing conduct.  Although it is fair to suggest that a judge may not have considered all the relevant factors in a case (including those factors that are critical to women's experiences in the workplace), it is perhaps simplistic to argue that the result stems from the judge's applying a male perspective.  This does not, however, undercut the book's value in illuminating the types of considerations that can and should influence the finding of a hostile work environment under sexual harassment law.

The "Reasonable Woman": A New Legal Benchmark for All?

The most interesting part of the book is its proposed remedy for existing imbalances in the law. Like some other commentators, Forell and Matthews advocate the use of a reasonable woman standard in cases that predominantly affect women.  Unlike other commentators, however, the authors advocate applying the reasonable woman standard to the conduct of men as well as women.  Thus, for example, the relevant standard in a rape case would be "whether, in the same circumstances, a reasonable woman would have believed consent existed." In a domestic homicide, the relevant question would be whether a reasonable woman would have killed her spouse or lover under the circumstances.  Defining the minimum standard of socially acceptable conduct by reference to the reasonable woman is preferable as a policy matter, the authors argue, because it would enhance the law's respect for bodily integrity, agency, and autonomy – values that get short shrift under male-based legal standards.

Thus, the authors forcefully argue that the reasonable woman standard should be used to evaluate both men's and women's conduct.  At first, this proposal sounds counterintuitive.  Even if existing law judges female conduct in accordance with male norms, it is not initially obvious that the solution for this problem should be to judge male conduct by female norms.  Yet the authors convincingly argue that a dramatic paradigm shift is necessary to eliminate the bias in existing law.

Of course, the authors' contention raises both pragmatic and philosophical questions about the operation of the reasonable woman standard.  Is a simple shift in verbal formulas, from a "reasonable person" standard to a "reasonable woman" standard, sufficient to eliminate any underlying gender bias by decision-makers?  The authors convincingly show that the shift from a "reasonable man" standard to a "reasonable person" standard only marginally ameliorated the application of male-based norms.  Further, the authors acknowledge that care must be taken lest decision-makers transform the "reasonable woman" into a reasonable man in disguise or base judgments on sexist stereotypes.  But they fail to define the reasonable woman standard other than to urge that it would enhance respect for female-based norms of bodily integrity, agency, and autonomy.

The authors acknowledge that the standard must be accompanied by a "careful explanation of what the standard means," and they further suggest that the explanation would take the form of expert testimony and carefully worded jury instructions. Nonetheless, their argument would have been stronger had they chosen to provide more concrete examples of exactly what types of expert testimony would be admissible and the exact wording of proper jury instructions. That also would allow direct comparison of the proposed reasonable woman standard with other alternatives – whether, for example, it is better to judge all defendants in domestic homicide cases by the reasonable woman standard (even if the defendant is a man) or whether it is more effective to declare certain "provocations," such as discovery of one's partner committing adultery, insufficient as a matter of law to reduce first-degree murder to manslaughter. But perhaps this is a lawyer's quibble with a book that is, after all, designed to reach a broader audience than simply law professors and practitioners.

Fumbling Towards Gender Equality

The underlying assumption of A Law of Her Own is that changing to a "reasonable woman" standard will alter social norms about sex and violence. The authors suggest that application of the reasonable woman standard across the board will not only increase empathy for both male and female victims of harassment, stalking, and violence; rather, it will also "re-educate" a certain portion of men about what behavior is expected and help achieve "true equality of the sexes."

This is a bold claim, one that warrants at least some philosophical exploration of the role of law in shaping social norms, especially since some decision-makers are likely to view the application of a reasonable woman standard to the conduct of men as fundamentally unfair.  A Law of Her Own is nonetheless an important book, and the authors' proposals merit sustained consideration by anyone who cares about gender equality.

Professor Lisa Barnett Lidsky teaches Torts, Professional Responsibility, and Mass Media Law at the University of Florida Levin College of Law. Her research typically focuses on the difficulties that tort law faces in providing redress for dignitary injuries, particularly when such injuries are defined by reference to community norms.

Editors' Note: Almost a quarter-of-a-century ago, one of the editors authored an article on the "reasonable man." See Ronald Collins, "Language, History & the Legal Process," 8 Rutgers Law Journal 311 (1977). For Books-on-Law reviews of related interest, see Mary-Christine Sungaila's review of Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality (The Free Press, 1999) by Cathy Young; Christine Littleton's review of Heterophobia: Sexual Harassment and the Future of Feminism (Rowman & Littlefield, 1998) by Daphne Patai (and the author's reply); and Leslie Bender's review of Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton University Press, 1999) by Judith A. Baer (and the author's reply).

When Law Goes Pop
Richard K. Sherwin
Chicago, IL: University of Chicago Press, 2000
Cloth: $27.00
Pp. xii, 325
ISBN: 0226752917

Can the law survive popular culture? Ordinarily, one thinks of the law as the foundation upon which culture is established.  Timeless principles survive fads; the media may report aberrations in applications of the law, but the law itself is immune from popular culture's corruption. In fact, it is the law that must serve as a check on popular passions and practices.

In When Law Goes Pop, Professor Richard K. Sherwin critically examines popular culture's impact on the law. In a detailed analysis of several high-profile cases, Sherwin argues that modern portrayals of the justice system in today's melding of reporting and entertainment have led to unprecedented cynicism about the law and to actual changes in how it functions.  The law is not autonomous.  It is continuously formed and distorted by popular culture.

The implications of this phenomenon are particularly important given the fragility of our laws affecting the relationships between men and women.  For example, if popular culture portrays an accused murderer as a national hero whose greater cause is to prevent racism, the law can lose its force to protect women who are the victims of his violent actions.

Storytelling & the Creation of Courtroom Causes

Sherwin's examination of the impact of culture on the law begins with his presentation of how trials incorporate popular culture. Trials are storytelling. Lawyers create their own reality by telling the story in a way that imparts to jurors the social and cultural blueprint jurors will use to interpret and apply the law.

Trial lawyers "tap into popular stories and images people carry around in their heads."  (24)  Where do their stories and images come from?  From the mass media, of course.   Television, newspapers, movies, sporting events, and even the endless (and mindless) broadcasting of car-chases can influence our culture and thinking. What is going on inside the courtroom has been changing because the media have changed the way we perceive and interpret trials. With this "estheticization" of the real, the law has lost touch with its proper function – to serve as a check on popular passions and ideas.  In other words, law has been losing its legitimate authority because it has become merely a way for popular culture to express itself in the courtroom.

Retelling the trial presentations of great lawyers of our day, Sherwin demonstrates the power of symbolic legal drama. Johnnie Cochran in the O. J. Simpson murder trial takes the jury on a heroic quest for justice against "genocidal racism."  Gerry Spence, famed defense counsel from the trial of Randy Weaver for killing a federal marshal in Ruby Ridge, Idaho, transforms a confrontation with law enforcement into a hero's journey to save American principles.  Jurors are asked to embrace symbols.  The trial is not, as judges would lead us to believe, the application of lasting legal principles to a set of facts; it is a reevaluation of those legal principles reconfigured by today's realities.  Beliefs, not facts, control the courtroom.

As noted by Sherwin, the infusion of popular culture into trials is not a new phenomenon.  The 1859 trial of John Brown posed the tension between Brown's moral aspiration to abolish slavery and the legal reality that he had led a disastrous raid on a federal arsenal in an act of open rebellion. While Brown's cause seemed compelling, his defense was not.  In order to succeed, "[t]he law's truth – about murder, treason, and conspiracy – would [have to] yield to symbolic truth." (80)

Similarly, the law was transformed in the 1907 trial of Harry Thaw for killing Stanford White as the two engaged in a perverse psychological battle for the affections of adolescent Evelyn Nesbit. Thaw reconstructed the trial as a battle for "male honor and female fidelity triumphing over corruption, greed, and the abuse of power." (99)  By doing so, the defense gave new life to an unwritten law: avenging angels do not have the same responsibility for their acts as others charged with the same crime.

Public Personae & Legal Truths

Defense lawyers historically have sought to present the public personae of their defendants – the personae that popular culture has validated – to undermine accusations that these individuals have acted outside the law.  Because of their clients' public personae, counsel are able to argue that their clients' causes are the law, since the clients themselves stand for the principles society wants to embrace.  Thus, Sherwin draws a comparison between the Henry Ward Beecher trial of 1875 and the 20^th Century trial of football hero O. J. Simpson. Beecher could not be an adulterer because America had anointed him as its leading moral and spiritual teacher. O. J. Simpson could not be a murderer because he was our All-American hero, media darling, and magnanimous supporter of worthy public causes.

Through this symbolic narrative, defendants become characters through whom we all fight the evil forces of social injustice. Defendants no longer have motives; they have causes.  Lawyers feed off of society's anxieties and tensions.  They will, therefore, ask jurors to decide the "truth" by focusing on symbolic truths, not necessarily factual truths. And jurors, in turn, will go so far as to fit facts that might otherwise take the story askew into images – and verdicts – that serve the cause.

The impact of such arguments today is even more acute, given the pervasiveness of the media in our lives. Television programming is glutted with "real" and simulated legal shows.  Simulated courtrooms alter their procedures to provide alternate venues where we can all play along with the court's decisions.  As law and entertainment merge, our reliance upon and understanding of legal principles is compromised.  We are accustomed to being manipulated.

When one understands the enormous impact popular culture can have on perceptions in the courtroom, the threat of today's media becomes evident.  We live in an era where "the realm of law [is a] commodity, where images are consumed for whatever immediate payoffs they allow, a realm where law and entertainment become one." (139)  The media have already defined the causes that are just, and outlined courtroom images and proceedings before most members of the public even set foot in a real courtroom.

The Jurisprudence of Appearances

Moreover, "legal spin control has come to be viewed as but another tool in the lawyer's toolbox." (148) By manipulating images of the court in the media and the court of public opinion, lawyers can transform how both judges and jurors interpret evidence inside the courtroom.  Attorneys choose arguments because they are the most "quotable." They spin court rulings both with the hope that errant jurors will be influenced by media coverage and because they know the impact on future juries.  Through all of this, we have developed the jurisprudence of appearances.

Even the Supreme Court has fallen prey to this practice. In a particularly interesting portion of the book, Sherwin relates how Chief Justice Warren Burger in Chandler v. Florida (1981) used shocking pictures of a courtroom in media turmoil from Estes v. Texas (1965) to argue that increased scrutiny of courtrooms could produce fairer trials inside. However, as Sherwin notes, the photographs used in Estes were not from the defendant's trial. They were from his pretrial hearing. At trial, there had been no Roman Circus. There were no lights, no wires, and no technicians.

Both Chief Justice Warren Burger in Chandler and Chief Justice Earl Warren in Estes constructed their decisions upon those images of the courtroom that they wanted to stick in the viewer's mind.  The power of the pictures would overshadow their misapplication. For Chief Justice Warren in Estes, the image was used to argue against cameras in the courtroom. Chief Justice Burger, however, used the image to argue for "confidence-building" images that would come from allowing cameras into well-run courtrooms.  The danger with using images is that they are less real than they are portrayed to be.  The interpretation of the image becomes the reality.

Today's media has a particular hold on how we interpret images.  If television channels focus on the good cop, our immediate interpretation of police in the courtroom will be favorable.  If we are programmed to see police as thugs in uniform, inevitably our perceptions in the courtroom will change as well.

Moreover, as Sherwin notes, cultural manipulation has not had just a minor effect on the courtroom. He fears "the very rudiments of law in the Western liberal tradition seem to be up for grabs: causation, the autonomy and moral responsibility of the individual, and the coherence of reason itself." (169)

Law as a Brake on Popular Sentiments

Sherwin calls for a check on popular sentiments. He argues that it is time for law to serve as a "brake" on the public's intoxication with its passion. Unless we can stem the tide, skepticism and disillusionment with our legal system will only increase.

How do we hold back the rush of skepticism and disillusionment?  For Sherwin, the law can and should provide the rock to which we can cleave when popular currents swirl around us.  The most dangerous thing we have done is abandon this role of the law.

Consider the two versions of the movie Cape Fear produced in America.  The original Cape Fear released in 1962 lays bare the limitations of the law, but ends with its vindication when the hero realizes that the law will be the agency of his antagonist' s punishment. Martin Scorsese's 1991 remake takes a different direction. In the end, justice does not rely on the law, but on caprice and circumstantial forces of nature.

Sherwin is at his best when identifying the problems confronting today's justice system.  His solutions are less clear.  As he states, "[t]here is no quick fix to the challenges we face when law goes pop." (245)  There are steps we can take, however.

Sherwin proposes three. First, there must be recognition of the nature and extent of the problem, as well as the threat that it poses to democracy. We must also reject "media logic" that has legitimized heightened passions and distorted prejudices.  Finally, we must "disentangle legal communication from the distorting effects of commercial broadcasting." (249)

Who Will Hear the Wake-Up Call?

The images we share must be based upon truth and reason. In very concrete ways, popular culture controls the efficacy of the law.  Sherwin's book is an important wake-up call, but one that is likely to go unnoticed by those who need to hear its message most – the media and the public. Only academics are likely to devote the time and energy necessary to sort through Sherwin's philosophical and legal jargon.  The book is a difficult read. At times, even Sherwin realizes that he must bring his analysis back to earth if he wishes to reach his audience.  Buzzwords such as "skeptical postmodern irrationalism" do not readily convey a principle that readers will understand.

Moreover, Sherwin may have underestimated the extent to which the legitimacy of the law depends on its ability to bring order out of the confusion of popular culture by appealing to a shared, lay understanding of our legal principles.  Court proceedings cannot afford to be aloof from popular passions and ideals.  Trials are about people and the crazy things people do.  Given my experience, Sherwin may be underestimating the jury system when he suggests that our decision makers do not understand the genuine realities of the cases before them and cannot distinguish true reality from those perceptions the media program us to have.

As our recent high-profile cases have shown, some jurors can and some cannot separate the factual truth from the symbolic truth.  Although we are all being indoctrinated with media images, it is probably wrong to assume that we are all impacted in the same way.  It is good to keep in mind that many people in our society reject the popular culture and divorce themselves from its influences, including the media.

In this era of multiplying "Trials of the Century," Sherwin has given us all something to think about: Have those dedicated to principles of justice become slaves to popular culture? Are we so indoctrinated that we no longer see the long-term harm of current storytelling?  What is the responsibility, in particular, of those dedicated to the law but with allegiance to represent clients?

It is particularly important for those concerned with protecting the rights of women to pay attention to how popular culture affects the law.  Popular culture's attitude toward women blows hot and cold.  The media portray women in a myriad of ways, ranging from heroic to willing victims of sadistic abusers.  Given this wide disparity in the media's treatment of women, it is critical for laws to have a firm foundation apart from culture. Sherwin gives us reason to worry about that foundation.

The law has gone pop. The media have seduced, enchanted and confused us. If we are really dedicated to the law, we cannot let images and symbols overtake factual truth.  Yet, if we do not keep in mind the impact cases have on all of us in society, we cannot appreciate and appropriately manage the power of the law.

There are no magic solutions. For now, there is one important step we can take. We must open our eyes to how popular culture is played out in the courtroom.  Popular culture is an important backdrop to our judicial system, but it should not be taking center stage.

Laurie L. Levenson is a Professor of Law and William M. Rains Fellow at Loyola Law School, Los Angeles. She is the author of Media Madness or Civics 101 (1995), and has served as a legal observer and commentator on numerous high-profile trials.

Editors' Note: For additional discussion of the interplay between law and popular culture, see the Winter 2000 Symposium Issue of Nova Law Review. Articles include: UCLA Law Professor Michael Asimow's "Bad Lawyers in the Movies," 24 Nova L. Rev. 533; Paul Joseph's "Pleasantville: An Essay on Law, Power, and Transcendence in our Cultural Mythological Past," 24 Nova L. Rev. 621; and popular crime fiction writer Lisa Scottoline's lecture, entitled "Get Off the Screen," 24 Nova L. Rev. 655.

I am grateful for Professor Levenson’s review. However, I do not share her claim that culture “distorts” law’s “proper function.” Nor do I pit law’s “timeless principles” against media logic and popular passions. Levenson’s dichotomies overlook the social construction of meaning. It is not a question of being “programmed” by mass media, but of adapting to new storytelling practices, preferably with eyes open. The shift to visual storytelling inside the courtroom and in the court of public opinion is significant and inescapable. There are dangers and opportunities when legal meanings are constructed in this way. A new field beckons: the study of law in the image.

Richard K. Sherwin is Professor of Law at New York Law School, where he teaches criminal procedure, jurisprudence, lawyering, and a seminar on law and popular culture. He is currently at work on a book about visual persuasion in the law.

Sovereign Virtue: The Theory and Practice of Equality
Ronald Dworkin
Cambridge, MA: Harvard University Press, 2000
Cloth: $35
Pp. 473
ISBN: 0674002199

Ronald Dworkin has written a brilliant book reflecting on the theory and practice of equality. Actually, he has written two brilliant books, both contained in the same volume.  The first is a very abstract and theoretical discussion of equality likely to be of interest primarily to scholars of jurisprudence and philosophy. The second is a collection of essays on a series of topics that more or less relate to equality, including health care and welfare reform, campaign finance reform, affirmative action, and genetic testing and cloning. These essays are far more accessible and would be of interest to a much wider audience.

Two Books in One

The book is explicitly divided into two parts, one titled "theory" and the other titled "practice." Part I, the first seven chapters (approximately 300 pages), presents a series of essays about equality. Early in Chapter 1, Professor Dworkin introduces two principles that he develops throughout the first half of the book. One is what he terms the principle of "equal importance": "it is important from an objective point of view that human lives be successful rather than wasted, and this is equally important, from the objective point of view for each human life." (5)  The second principle is termed "special responsibility": "though we must all recognize the equal objective importance of the success of a human life, one person has a special and final responsibility for that success – the person whose life it is." (5)

The first half of the book examines these two principles, and argues that they lead to the conclusion that the government has a duty to provide a form of material equality for everyone. The argument is carefully developed and nuanced, and makes a persuasive case for the government's affirmative obligation to create a system of distributing equally society's resources and wealth.

The latter half of the book is quite different.  It, too, is comprised of seven essays, but is much shorter, only about 175 pages. Two of the essays are on affirmative action. The remaining five essays are on health care reform, welfare reform, campaign finance reform, genetic testing and engineering, and judicial review of issues concerning sexual orientation and the right to die.

The problem with the work is its combining these two very different efforts into a single volume. The first half of the book is comprised of a series of essays published previously, sometimes in different form, in scholarly journals. (See "Sources," at 475)  Professor Dworkin has revised them so that they now read as a seamless essay on the theory of equality.  But they are law review articles written in a highly abstract manner, often assuming that the reader is fairly familiar with the jurisprudence literature on equality.

The second half of the book is a series of essays almost all of which were previously published in the New York Review of Books. ("Sources," at 475)  These were written in a far more engaging style, obviously with the intent of reaching a significantly larger readership.  The essays presume no prior knowledge of scholarly literature, and each presents a thoughtful argument on a topic of great social importance. Indeed, each of these essays is completely independent of the others.

Unlike Part I, in which Dworkin has edited his prior writings so that they now read together as a whole, Part II makes little such effort.  This is particularly evident in the two chapters on affirmative action that repeat some of the exact same material. The reader gets the sense that these chapters were placed in this volume with minimal revisions. The essays in this part of the book make few references to each other or to the material in the first half of the book.

An Uneasy Combination

My central criticism of the book is not with its arguments, which are consistently excellent, but with its presentation of both efforts in a single volume.  Only scholars of law and philosophy, and few beyond experts in jurisprudence, will read the first half of the book.  Yet, a wide audience of non-academics might enjoy and benefit from the second half of the volume.  Placing all of the essays in one volume surely will decrease readership for the second half of the book.  This is a shame, because of the power and importance of the arguments that Dworkin makes about topics of such social significance.

Moreover, it is unclear what is gained by placing all of this in a single book.  Dworkin makes almost no use of Part I's philosophical arguments in Part II's discussion of specific topics.  This is particularly surprising in the essays on affirmative action, since Part I develops a powerful argument about distributive justice and the state's duty to act to ensure that all human lives flourish. I had hoped that Dworkin would have used the essays on affirmative action expressly to apply his theory of distributive justice to one of society's most difficult legal and social issues. Although the affirmative action essays in themselves are excellent and insightful, they make almost no beneficial use of the earlier theory.

Similarly, I was surprised that there was not an effort to link the discussion of campaign finance reform to the Part I's more abstract discussion of equality.  A key problem with the current system, as Dworkin rightly points out, is the tremendous advantage it gives to the wealthy in influencing the political process.  His theory of distributive equality seems quite relevant for an analysis of campaign finance reform, but it remains unused.

Perhaps most of all, I was disappointed by the lack of linkage between the two parts in Dworkin's discussion of welfare reform. (Chapter 9, at 320-350)  Part I posits a very persuasive argument for the government's affirmative duty to provide for equal distribution of resources. Such appeals have disappeared from contemporary political rhetoric.  Just 30 years ago, Republican Richard Nixon advocated a negative income tax, and the idea of a guaranteed annual income was much debated at that time.  Today, as Dworkin points out, welfare reform is about decreasing benefits and removing people from the welfare rolls.  I very much would have liked to see Dworkin apply Part I's more abstract theory of equality to a more specific program of welfare rights.  Interestingly, other chapters in Part II are very explicitly prescriptive. For example, he offers a detailed and thoughtful proposal for campaign finance reform. (355-356) But there is not the same effort in the discussion of welfare reform.

The Need for Integration of the Book's Discrete Parts

Dworkin's description of the two parts and their relationship does not comport with the reader's experience. In his introductory chapter, Dworkin writes: "The difference between the two parts lies in the mode of presentation, not in the overall level of abstraction or complexity reached. In particular, the second part does not consist merely in application of theories elaborated in the first: several of the 'inside-out' chapters make important theoretical advances on earlier 'outside-in' ones." (3)

The difference between Parts I and II, however, is very much the mode of presentation and the levels of abstraction and complexity.  Notwithstanding Dworkin's claim, Part II does not appear to apply the theories from Part I.  And I am not sure I quite understand what is meant by "inside-out" as opposed to "outside-in." The reality is that Part I consists of abstract philosophical essays and Part II collects articles on specific contemporary issues.

All of this may be somewhat unfair as a criticism, because it does not deal with the substance of a marvelous book. Yet, it is important because, as a reader who agrees with most of the book, I wish that Part II had been published separately to reach a much wider audience. I also think that this book should cause scholars (including me) and publishers to think very carefully as they issue a book that contains previously published materials. Unless a book is presented simply as a collection of essays, there is a need to edit the materials into a coherent and unified whole. This book does this very well in Part I, but not at all in Part II. The strength of the arguments in Part II surely would have benefited had this occurred more.

Of Welfare Reform and Affirmative Action

That said, the chapters in Part II offer superb arguments on important topics.  Part of their brilliance is Dworkin's analytical ability to separate the issues involved in a complex topic.  For instance, in discussing welfare reform, Dworkin clearly distinguishes several issues that must be dealt with separately: merit (who should receive benefits); level (how much support); administration (how much should be spent deciding a person's eligibility for a particular category of benefits); and dependency (what role should a person's responsibility in caring for others play in determining eligibility and level of benefits). This clear separation of issues is enormously helpful in evaluating welfare reform problems.

Similarly, in discussing affirmative action, Dworkin distinguishes two separate questions. He writes: "The first is an issue of principle: Is affirmative action for blacks unfair because it violates the right of every applicant to be judged on his or her individual merits?" (389) The second, by contrast, "is a matter of policy or practical consequence: Does affirmative action do more harm than good, because it enrolls some blacks in studies beyond their capacities, or stigmatizes all blacks as inferior, or makes the community more rather than less conscious of race?" (389)

Professor Dworkin is correct that separating these questions, too often conflated in debates over affirmative action, helps to clarify analysis.  He then does a superb job of addressing each.

One Surprising Omission: The Relationship Between Equality and Social Class

One final thought: There is surprisingly little discussion of social class and its relationship to equality. The necessary and understandable focus in recent decades has been on inequalities based on characteristics such as race, gender, religion, sexual orientation, disability, and age. This focus, though, largely has obscured consideration of the role of social class and the power of inequalities based on wealth. The reality is that the recent prosperity in America largely has made the rich richer and has widened the already huge gap between rich and poor.  In countless ways, social class is a powerful determinant of one's life experiences and opportunities.

There is surprisingly little discussion of this in a book about achieving equality in society's distribution of resources.  Through much of history, concerns over social class have been dominant.  That likely will happen again and Dworkin's book will be important in those discussions, but could have been even more significant with explicit attention to issues of social class.

I fear that this review sounds more negative than it should.  If so, I offer this conclusion: Professor Dworkin has written a terrific book.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California. He is the author of Constitutional Law: Principles & Policies (Panel Publishing, 1997) and Federal Jurisdiction (Aspen, 3^rd edition 1999), as well as numerous articles.

Editors' Note: Professor Chemerinsky's last contribution to Books-on-Law was a commentary on Edward Lazarus's Closed Chambers (Times Books, 1998). For reviews of related interest on Books-on-Law, see Anthony Sebok's review of The Problematics of Moral and Legal Theory (Harvard University Press, 1999) by Richard Posner, and Stephen Guest's review of Law and Legal Theory in England and America (Clarendon Press, 1996), also by Judge Posner. See also Dennis Patterson's review of Matters of Principle: Legitimate Legal Argument and Constitutional Interpretation (New York University Press, 1998) by Richard Markovits and An Institutional Theory of Law: Keeping Law in Its Place (Oxford University Press, 1998) by Peter Morton.

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© Ronald K.L. Collins and David Skover, 2000.