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Contents | Reviews | Talkback || Archive || Books-on-Law Home
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Contents
  • An Exchange on Voluntary Euthanasia:
    • Otlowski, Margaret. Voluntary Euthanasia and the Common Law. Reviewed by Marc Spindelman.
    • A reply by Margaret Otlowski to Marc Spindelman.

  • Halliday, Terence C. & Lucien Karpik, editors. Lawyers and the Rise of Western Political Liberalism. Reviewed by Richard L. Abel.
  • Hoeflich, Michael H. Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century. Reviewed by Ernest Metzger.
  • Hutchinson, Dennis J. The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White. Reviewed by Robert S. Peck.
  • Mink, Gwendolyn. Welfare's End. Reviewed by Martha A. Fineman.
  • Payne, James L. Overcoming Welfare: Expecting More from the Poor and from Ourselves. Reviewed by Martha A. Fineman.
  • Posner, Richard A. Law and Legal Theory in England and America. Reviewed by Stephen Guest.
  • Roberts, Bari-Ellen with Jack E. White. Roberts vs. Texaco: A True Story of Race and Corporate America. Reviewed by Elizabeth Chambliss.
  • Schrag, Philip G. & Michael Meltsner. Reflections on Clinical Legal Education. Reviewed by Stephen Wizner.
  • Talkback
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An Exchange on Voluntary Euthanasia

The Risks of a Neat Theory of Euthanasia
by Marc Spindelman

Voluntary Euthanasia and the Common Law
Margaret Otlowski
Oxford, England: Clarendon Press, 1997
Cloth: $135.00
Pp. xiii, 564

Throughout Voluntary Euthanasia and the Common Law, University of Tasmania Law Professor Margaret Otlowski writes about death and dying in terms of personal "autonomy" and "self-determination."  This is no surprise; others have written this way before.  But, as an approach, it is not without risks.

To think about death and dying in terms of personal "autonomy" and "self-determination" risks diverting attention from the ways in which death and dying are social experiences that individuals do not undergo in radical isolation.   It also can lead us to overlook the ways in which "autonomous" and "self-determining" choices individuals make about how to live and die are shaped by a variety of factors -- such as age, class, race, sex, sexual orientation, and disability -- that make individuals who they are in society.

In short, to think about death and dying in terms of personal "autonomy" and "self-determination" can pull our gaze away from the wider social contexts within which individuals make choices among the options they have at their disposal, including (were it available) the option to end their lives through active voluntary euthanasia (AVE) or physician-assisted suicide (PAS).

Professor Otlowski willingly hazards these risks in Voluntary Euthanasia and the Common Law without conceding that they may well complicate her theory of "autonomy" and "self-determination."  Hers is a neat theory, which confidently animates the analysis of her book, a book in which Otlowski offers us an ambitious proposal for the reform of laws prohibiting AVE and PAS.  If enacted, this proposal would, in certain circumstances, place some control over the time and manner of our deaths into our own hands -- or should our own hands be unable to do the job, into the hands of our willing doctors.  As Professor Otlowski explains: "[t]he main argument in support of the legalization of active voluntary euthanasia [and, I add, PAS] is based on the principle of autonomy or the right to self-determination[,]" according to which, "each person has value and is worthy of respect, is the bearer of basic rights and freedoms, and is the final determinant of his or her destiny." (189)

Striking a Chord

"Destiny."  The notion resonates.  So do "autonomy," "self-determination," "respect," "right," and "freedom," along with the other high-minded and pleasant-sounding words Professor Otlowski incants in talismanic support of her call to legal reform.  These words and the concepts they conjure up are the notes that, played together, strike a perfect major chord in the liberal imagination.  Although the sound of that chord may soothe and reassure us, pleasing words alone are finally no more helpful in deciding whether to lift or maintain the present bans on AVE and PAS than are frightening and ugly words -- e.g., "murder," "killing," and "private killing" -- that some opponents of legalized AVE and PAS have been known to intone.   To determine what shape our public policy on AVE and PAS might take, we should situate these words and concepts within the thorny complexities of social context.

Along with other proponents of AVE and PAS, Otlowski doesn't totally deny the importance of social context.  But with her confreres, she resists acknowledging the extent to which focus on social context may directly challenge the neatness of her theory of "autonomy" and "self-determination."  Professor Otlowski most notably attends to social context by promising us "safeguards" and "regulations."  We can enact safeguards and regulate the practices of AVE and PAS, Otlowski maintains, and thereby ensure that, when an individual chooses to end his life with a physician's help, he will be doing so in an "autonomous" and "self-determining" fashion.  While the particular safeguards and regulations Otlowski gives us in her reform package aren't precisely those that others have advanced, the contours of her legislative prescription are taken from the same basic mold.  Nor is Otlowski the first proponent of the practices candidly to admit that if AVE (and, again I'd add, PAS) were "legalized, there will be some risk of unwilling casualties as a result of error and abuse[,]" (236) by which I assume she means that some lives will inevitably be sacrificed under her proposal in the name of "autonomy" and "self-determination."  But more of all this later.

There are no major theoretical breakthroughs in Voluntary Euthanasia and the Common Law.  Its strengths lie elsewhere.  Professor Otlowski effectively compiles and synthesizes a striking array of legal and non-legal materials, valiantly marshaling them to craft the strongest argument she can for the need, and changing climate, for reform of laws banning AVE and PAS.  This, in my opinion, is the most important contribution Otlowski's book makes to the academic literature and it is, I should say, no mean feat.

Paving the Way: The Cox Case

Professor Otlowski paves the way for her legislative proposal by advancing a pointed critique of the status quo, under which AVE and PAS are prohibited on the books, but only rarely punished in practice.  She adverts, among other things, to the inconsistency, the injustice, the inequality, and the hypocrisy of this situation which, she maintains, "threaten[s] to undermine public confidence in the law and bring it into disrepute." (149)  These are serious charges that demand serious responses.  And serious responses there have been, literally scores of them over the years.  Otlowski considers none of them persuasive.

I'd be far more impressed by the force of Professor Otlowski's pointed critique were it always as thorough as one would expect from a scholar generally as careful as she in a book as comprehensive as hers.  Unfortunately, her critique is not always as thorough as that. Consider in this regard the pertinent details of her portrayal of the celebrated English case of Dr. Nigel Cox -- a case that, she writes, "has highlighted the potential criminal liability of doctors who fulfill a patient's request for active euthanasia[,]" and "has forced a re-evaluation" of the "inconsistencies which exist between medical practice and the strict letter of the law[.]" (3)

"In September 1992, Dr Cox, a consultant rheumatologist . . . was convicted of the attempted murder of one of his patients," explains Otlowski. (Id.) The patient, a 70-year-old terminally ill woman "who had been a patient of Dr Cox for 13 years, had rheumatoid arthritis, complicated by gastric ulcers, gangrene, and body sores. She was crippled from her condition and in great pain." (144)  The patient had "repeatedly asked Dr Cox and others to kill her." (Id.)  "When other pain-killing measures failed to bring relief, Cox administered a large dose of potassium chloride[.]" (Id.) "[T]he patient died within minutes." (Id.)  Although Cox "maintained that his primary intention was not to kill his patient but merely to relieve her suffering[,]" (id.) he didn't dispute he administered the deadly dose.

The judge presiding over Cox's trial directed the jury that "if the injection was given by Dr Cox for the primary purpose of ending the patient's life (as distinct from being primarily aimed at the alleviation of the patient's pain and suffering) he must be found guilty." (Id.) "After 8 hours of deliberation, the jury, several overcome with emotion and weeping, reached a majority verdict of 11-1 against Cox on what the judge had described as the 'most clear and compelling evidence.'" (Id.)

The trial judge sentenced Cox to a 12-month prison sentence, but suspended it "in recognition of the fact that public interest would not be served by immediately jailing the consultant[.]" (Id.)  The judge "described the situation as one in which the consultant had allowed his distress over the suffering endured by his patient to overcome his professional duty." (Id.)  "[S]uch conduct can never be legally excused[,]" the judge remarked, proceeding, "[h]owever, sometimes it can be explained." (Id.)

When the doctors' regulatory body, the General Medical Council's professional conduct committee, considered Dr. Cox's case, the committee "reprimanded and admonished [him], but gave him permission to continue working as a hospital consultant." (304)   Commenting, Otlowski observes: "This is unquestionably a very lenient outcome and suggests that the committee sympathized with, if not condoned, the doctor's actions." (Id.)

Complications

At first blush, I was greatly moved by the facts of Cox that Otlowski presents.   On further reflection, however, I grew unsure why the Cox case should have forced a "re-evaluation" of the current state of the law respecting AVE and PAS.   I may be missing something, but I'm not persuaded that the leniency Cox was accorded was so woefully inadequate that it ought to lead us to contemplate and adopt a major law reform program like Otlowski's.  If Professor Otlowski disagrees, which she surely must, it's easy enough to understand, for example, why she remarks that the trial court could have treated Cox more gingerly than it did.  What is curious, however, is that having taken that step (and similar ones), Otlowski does not come out and flatly condemn the prosecution, conviction, sentence, and professional discipline that Cox endured.  I cannot say for certain, but perhaps Professor Otlowski's hesitation bears some relation to the fact that the dosage of the drug Dr. Cox administered Mrs. Boyes, potassium chloride, has no "pain-relieving qualities[,]" and that it is, consequently, "difficult to avoid the conclusion that that the doctor's intention was to kill the patient" (and not merely to relieve the patient's pain). (183 n.232)

As Professor Otlowski tells the story, Cox is admittedly a troubling case.   But when we add some considerations that Otlowski does not fully explore, Cox becomes much more troubling than she seems prepared to recognize.  After several readings of the trial court's "summing up" to the jury -- a source on which Otlowski, herself, relies -- I began, for example, to wonder: What, if anything, are we to think about the trial judge's observation to the jury that Cox and his patient, Mrs. Lillian Boyes, had "developed an unusually strong bond of affection and mutual respect, one that you may think transcended the normal bond between doctor and patient[?]" (R. v. Cox, 12 B.M.L.R. 38 (1992))  How, if at all, should we regard the following rhetorical question, posed by the trial judge when charging the jury on motive: "Could there be any doubt in anybody's mind that if [ending Lillian Boyes's life] was Dr Cox's primary purpose, he was prompted only by his personal distress, the distress of Mrs Boyes's family and her own frequently expressed wish to have her journey through this veil of tears brought to an end[?]" (Id.)

Anyone familiar with the literature in the field will immediately know that my musings about aspects of Cox that Otlowski does not delve into, scarcely aim in novel directions: Among others, did the physician "over-identify" with his patient and her plight?  Was he adequately trained in standard, available palliative care techniques?  Did he use such techniques before resorting to his final "cure"?  Was the patient clinically, but treatably, depressed?  A number of commentators have pursued exactly these lines of inquiry in sources that Otlowski includes in her wonderful bibliography.  Thus, I find myself wishing Otlowski had chosen to confront them, as well as their implications for her guiding theory of "autonomy" and "self-determination," in the context of an actual case like Cox.  Otlowski does not avoid such subjects entirely.  But neither does she ultimately waver from her guiding theory.

Context Redux

I have not pressed on the additional facts of Cox, or the lines of inquiry that they raise, intending to cast aspersions on the overall integrity of Professor Otlowski's scholarship.  I have done so because I believe those facts and lines of inquiry demonstrate that it is not a simple matter to write about death and dying in terms of "autonomy" and "self-determination," even in a moving case such as Mrs. Boyes's.  It may be seductive to regard Mrs. Boyes's "death wish" as a reflection of "autonomy" or "self-determination," but unless and until we know more about her -- her history, her relationships, and her world, in a word, her "context" -- there's something fictive-seeming about the notion that her death was a neat exercise of her "right" or "liberty" to "autonomy" or "self-determination."

Through an examination of an individual case like Cox, we can thus establish that there are shortcomings in thinking too abstractly about death and dying in terms of "autonomy" and "self-determination."  Through an examination of an individual case, we can begin to illustrate the importance of social context for a theory of "autonomy" and "self-determination."  But this isn't the only approach that's available.

We can investigate the implications of social context for a theory of "autonomy" or "self-determination" by posing, more generally, questions such as these: Shall we assume that a lack of health insurance or other means of paying for available, but sometimes pricey, medical (including palliative) care has no bearing on what "autonomy" or "self determination" means?  That individuals really make "autonomous" or "self-determining" decisions to end their lives through AVE or PAS when they cannot afford to purchase an existing, alternative release from the pain they're suffering?  While these and questions are vital ones, they receive no systematic and satisfying treatment in Voluntary Euthanasia and the Common Law.

In the end, Professor Otlowski may be correct that the current legal regime is imperfect.  But when I ask, "Would a regime with her proffered modifications be any less imperfect?", I'm not awfully reassured by Otlowski's tentative response.   Discussing some of the risks of legalization, she writes, it is "quite possible that legalization would not in fact produce more mistakes and abuse than non-legalization." (236)  This is a rather weak statement coming from a rather strong proponent of AVE and PAS.  And it seems implicitly to accept the possibility that legalization would, in fact, produce more mistakes and abuse than non-legalization.  It is well enough that it does.  As philosopher John Arras cautions, "whatever choice we make, whether we opt for a reaffirmation of the current legal restraints or for a policy of legitimation and regulation, there are bound to be victims." (John Arras, News from the Circuit Courts: How Not to Think about Physician-assisted Suicide, 2 BioLaw S:171, 184 (July-Aug. 1996).)

I respect the candor of Professor Otlowski's admission that the price of her plan will be paid, in part, in the coin of human lives, wrongly taken.  I really do.  All the same, nothing Professor Otlowski writes in Voluntary Euthanasia and the Common Law convinces me that that price is not too high a one for any -- or all -- of us to pay.

Marc Spindelman is the Reginald F. Lewis fellow at Harvard Law School.

Editors’ Note: This book and related books have been reviewed elsewhere online.  Other newly published books in this area include Gerald Dworkin, R.G. Frey & Sissela Bok, Euthanasia and Physician-Assisted Suicide (Cambridge University Press, 1998); Sue Woodman, Last Rights: The Struggle over the Right to Die (Plenum Publishing, 1998); and Linda L. Emanuel, editor, Regulating How We Die: The Ethical, Medical, and Legal Issues Surrounding Physician-Assisted Suicide (Harvard University Press, 1998).  We plan to have additional reviews on this topic in forthcoming issues.

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A Reply to Marc Spindelman
by Margaret Otlowski

It appears that I have not been able to convince Marc Spindelman of the need for law reform in relation to active voluntary euthanasia.  This is, however, scarcely surprising: those who are opposed to legalization are unlikely to change their position on the strength of the arguments of a proponent.

The Cox Case

While I respect the views of others, even when they may differ from my own, I do take issue with Mr. Spindelman's comments regarding my coverage of the English Cox case.   This case (together with many others from a number of common law jurisdictions) was discussed for the purpose of demonstrating the operation of the criminal law in practice: in particular, to highlight the irrelevance, under criminal law principles, of a patient's request for assistance to die, and of the doctor's motive in providing that assistance.

The Cox case holds special significance because it represents one of the rare instances where prosecution of a doctor for performing active voluntary euthanasia resulted in conviction and the imposition of a custodial sentence, albeit fully suspended.   This contrasts with the outcomes of many of the other cases, in which the doctor has been acquitted once the jury's sympathies have been engaged, although often on spurious grounds, against the weight of the evidence.

The failure to discuss the intimate details of the Cox case and further probe and speculate with regard to the interactions and relationships in the manner suggested is not, as Mr. Spindelman acknowledges, because of lack of appreciation of the significance of the social context in evaluating the ethics and morality of such conduct.  Rather, such analysis was not undertaken because it was not of direct relevance to the criminal prosecution and outcome of that case.  Of course, the "merits" of active voluntary euthanasia in a particular case will depend on a whole range of factors, including many of the points raised by Mr. Spindelman, and these are dealt with in my book in the context of outlining directions for legislative reform, particularly in relation to the inclusion of safeguards.

The difficulty is that the existing legal framework does not encourage any consideration of the circumstances of the case.  In fact, such analysis is irrelevant in the criminal law context, provided there is evidence of an intention to kill the patient and of active assistance leading to the patient's death.  Indeed, the whole purpose of critiquing the operation of the criminal law was to demonstrate its inadequacies arising from the very narrow analysis upon which it proceeds.  If we value informed, balanced, and dispassionate decision-making with regard to the administration of active voluntary euthanasia, this can only be achieved by embracing a policy of legalization and regulation, and by encouraging a culture of good professional medical practice that treats active voluntary euthanasia as a measure of absolutely last resort.

The outcome of the Cox case rested on the clear and unequivocal direction to the jury that demanded a conviction if the jury found that Dr. Cox's primary intention was to kill his patient.  This was a case where the jury, although clearly comprising persons who were sympathetic with Dr. Cox's situation (several jury members wept when the verdict of 11-1 against Dr. Cox was delivered), felt duty bound to apply the law as directed, on the basis of the evidence before them which the judge had described as "clear and compelling."  There may well be valid questions raised about the surrounding circumstances of the Cox case as Mr. Spindelman suggests.  The significant point is that, even if Dr. Cox's practice of active voluntary euthanasia had been exemplary and beyond criticism on ethical or professional grounds, the case would have proceeded in exactly the same way as there is presently no legal basis under the criminal law for distinguishing between euthanasia practiced in a manner which is ethically acceptable and that which is not.  Active euthanasia constitutes murder irrespective of the circumstances.

I would also suggest that the difference in outcomes in such prosecutions does not reflect the quality of the conduct in question.  For example, in the U.S. case of People v. Sander (unreported, NY Times 10 March 1950), it was far from clear that the patient had actually requested such assistance, yet Dr. Sander was acquitted.   What the Cox case achieved was to highlight the legal vulnerability of doctors who act on compassionate grounds in ending the lives of their patients.   Irrespective of the circumstances, doctors are not immune from criminal sanction, and it was on this basis that the call was made for a re-evaluation of the criminal law prohibition.

Risks of Legalization

The other aspect of Mr. Spindelman's review to which I would like to respond concerns the issue of risks associated with legalization of active voluntary euthanasia.  Mr. Spindelman is quite correct in his reading of my work that I have avoided overstating the advantages of legalization and have duly acknowledged that there are risks involved.   The thrust of this work was to argue that there are powerful reasons why the law must be reformed, including arguments based on personal autonomy and self-determination of patients, as well as the protection and support of the medical profession.  It is true to say that it was not an argument principally premised on the need for legalization of active voluntary euthanasia as a means of minimizing the risk of abuse as there was no firm evidence at the time, empirical or otherwise, on which such a claim could justifiably be made.  My book does, however, make the claim that there is no evidence to indicate that legalization would increase the incidence of unacceptable conduct, and suggests that there are good grounds for believing that the risk of abuse would in fact be reduced.

Notably, since the book was completed, there has been mounting evidence to support the view that legalization of active voluntary euthanasia would diminish the risk of abuse.   First, there is research in the Netherlands undertaken as a follow-up to the 1990 Remmelink study, which documents a decline in the percentage of cases in which life was ended without the patient's explicit and concurrent request (from 0.8% to 0.7% of all deaths).  That study found no evidence of a diminution of standards in the practice of active voluntary euthanasia (see Van der Maas et al, "Euthanasia, Physician Assisted Suicide and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995" 335 New England Journal of Medicine 1699 [1996] ).

Second, support for this proposition can be drawn from empirical research in Australia based on the Remmelink study, which revealed a much higher incidence in that country of unrequested active euthanasia than for active voluntary euthanasia (3.5% of all deaths compared with 1.8% for active voluntary euthanasia), and far in excess of the figure for the same category in the Netherlands (0.7%) (see Kuhse, Singer & Baume et al, "End of Life Decisions in Australian Medical Practice" 166 Medical Journal of Australia 191 [1997] ).  This can be largely attributed to the illegality of the practice and the lack of openness on the issue, with the consequence that doctors are often taking this decision upon themselves.  The evidence just noted validates the view that legalization and regulation of active voluntary euthanasia would in fact reduce the risks of abuse.  It certainly bears out the more qualified claims I have made in my book, and can only enhance what is already a compelling case for reform.

Margaret Otlowski is Senior Lecturer in Law at the University of Tasmania, Australia.  She has written numerous articles and papers on the subject of euthanasia, and has contributed to other books, including I. Hunt & L. Burns, editors, Quality of Death: Euthanasia in Australia (1966).  Her research interests extend, as well, to other aspects of law and ethics of health care, including genetics, artificial conception, and surrogacy.

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Reviews

Lawyers for Liberalism: Axiom, Oxymoron, or Accident?
by Richard L. Abel

Lawyers and the Rise of Western Political Liberalism
Terence C. Halliday & Lucien Karpik, editors
New York, NY: Oxford University Press, 1998
Cloth: $65.00
Pp. 379

This collection of eight case studies, sandwiched between theoretical essays by the editors, is really two different intellectual projects that appear mutually contradictory.   The editors and one contributor (Burrage) make a bold ideological claim (in the two senses of being strongly judgmental and only loosely related to evidence) that modern western legal professions constituted, and were constituted by, the liberal political program.  The eight case studies, by contrast -- four pairings of a historian and a sociologist writing about France, England, Germany, and the United States -- offer detailed, nuanced accounts of the complex ways in which lawyers and legal professions at different times have supported, opposed, or simply ignored liberalism.

Lawyers as Liberals

The editors (an American and a French sociologist) begin by arguing that scholarship on the legal profession has emphasized the market at the expense of politics.  I would ask which orientation is more fruitful?  Which captures more of the daily activities of lawyers, both individuals and collectivities?  The editors claim that all eight case studies "converge on this simple, strangely neglected, proposition: politics matter."  Of course -- who ever denied it?  The questions are, how much?   When and where?  And how?  They assert that "the raison d'黎re of [American] bar organization in the late nineteenth century may be attributed as much to the desire to upgrade the administration of justice as to self-regulate the profession."  As much?  By what measure?  And what about the first half of the twentieth century?  These are empirical questions not answered by assertion.

But the methodological point is secondary to the editors' ideological position.   This is hard to pin down, because they make sweeping claims and then include a weasel word that protects them from criticism but also makes the point uninteresting.   Lawyers "have been among the builders of the liberal state and society."  Political liberalism "is a useful heuristic rule to follow for describing and explaining lawyers' political action."  (My emphasis in both quotes.)

Sometimes this seems little more than axiomatic.  But elsewhere it elides into disturbingly ambiguous propositions.  "The autonomy of legal professions as a political project is reciprocally tied to the rise of liberal political systems."   Bar "autonomy cannot be separated from the relative autonomy of judges and courts;" and, vice versa, "the viability of an autonomous Bench could scarcely be conceived without an autonomous Bar."  But what is judicial autonomy?   Who selects judges?  From what backgrounds?  For how long?  Subject to what discipline?  Who defines their roles?  Is their "independent" pursuit of formal rationality causally related to opposition to the state?  "It remains an open question . . . how far a court system that is relatively autonomous in matters of commercial adjudication can convert that independence into measures of autonomy for decisions on cases that have political implications."  Have lawyers always favored judicial independence?

And what do lawyers mean when they claim "independence" for themselves?   Do they really mean total deregulation of the legal profession?  The United States tried that for half a century, beginning with the Jacksonian period; no other legal profession has emulated that experience.  Indeed, although the editors follow Burrage in condemning "Mrs Thatcher's attack on the professions," all the Conservative Government proposed was to free lawyers from the state power they used to protect their monopolies.  And when lawyers invoke "independence," how can we know whether they are motivated by politics or greed?  Indeed, the editors concede this: "Politics matter, but inseparably from issues over supply of legal and judicial services."

When they discuss the case studies, the editors concede that American "lawyers have been key players on both sides of the campaign to remove courts from the orbit of partisan control." (emphasis added)  English "Benchers, a self-perpetuating oligarchy of Bar leaders, activated the regulatory powers of the Bar -- admission and discipline -- to muzzle the most outspoken 'spokesmen' for liberal causes."  In the aftermath of the French Revolution, "a section of the Bar had emerged which refused to admit to the importance or necessity of belonging to the Bar.   The willingness to be incorporated within the corporate actor had disappeared, and with it went one of the conditions of the Bar's collective autonomy."  The "noble aspirations of the mid nineteenth-century [German] profession" toward political liberalism "dissolved by the 1920s, when the pressure of overcrowding, and the competition over jurisdiction between higher- and lower-status lawyers, led to an ignoble scramble for self-defence."  If that is so, their ideological point collapses, as they concede in their conclusion: "bar autonomy is not an instinctive social value for lawyers. . . . The bid for autonomy may not exist or it may disappear."

Some Lawyers Sometimes Are Liberals: France

That proposition cannot be gainsaid, nor is it trivial.  Law contains an ineradicable potential for liberalism.  Most of the time it remains mere possibility -- an ideal to be invoked at professional meetings and law school graduations, and in defense of professional privilege.  But I believe fervently in its power, which I sought to document in my book Politics by Other Means: Law in the Struggle Against Apartheid, 1980-1994 (Routledge, 1995) and which the UCLA Program in Public Interest Law and Policy seeks to nurture in law students.

The eight case studies offer invaluable insights into the circumstances under which and the extent to which lawyers pursue and oppose the liberal project.

David Bell condenses his superb book Lawyers and Citizens: The Making of a Political Elite in Old Regime France (Oxford University Press, 1994), documenting the complex ways in which French avocats supported the independence of the parlements from the crown, formed the first ordres des avocats, championed the cause of the Jansenists, and engaged in what today would be called "cause lawyering" (cf. Austin Sarat and Stuart Scheingold, editors, Cause Lawyering: Political Commitments and Professional Responsibilities [Oxford University Press, 1998)]).  Bell acknowledges, however, that he focused on "the most influential members of the Paris Bar," necessarily a minority of avocats, and that the Paris ordre "imposed an increasingly harsh discipline on its members."  Hence what the editors present as a core institution of civil society can be just as hostile to liberalism as the state.   Furthermore, the ordre self-destroyed in the decades just before and immediately after the Revolution, and for much of the nineteenth century it was little more than an organ of the state.

Lucien Karpik also condenses his book Les avocats: Entre l'Etat, le public et le march XIIIe-XXe si鐵le (1995; English translation forthcoming), offering it as proof of his ideological position: "French lawyers are among those collective actors who fashioned the liberal state as well as the liberal society, and in so doing constructed themselves as a judicial and political actor dedicated to liberal action." (emphasis added)  But though he paints a broader historical canvas than Bell, his evidence fails to support the ideology.  He notes that in the single most celebrated case in French history, the Dreyfus affair, "lawyers were missing from the debate"; furthermore, few lawyers "supported the aspirations of the working class and, once in power, they tended to adopt a socially conservative position on popular demands, combining the often violent repression of labour strikes with timid social legislation."  Is it helpful to call a politics that represses and excludes workers (and women, and racial, religious, and ethnic minorities) liberal?  Karpik accepts at face value lawyers' pretensions to "disinterest" (whereas Bell warns that "one can hardly expect the careers of ordinary lawyers to correspond with much exactitude to the ideal portraits sketched out in these panegyrics").

Karpik's "theory" verges on mystification.  No "economic, social or political cause seems to account for" "lawyers' active attachment to the liberal model of action."  Rather "it was in accord with a certain collective identity and a certain political society."  Sometimes he indulges in a typically French academic wordplay I find meaningless: "In a single movement, lawyers both constituted the public and claimed to be its representative."  Karpik also seems afflicted by the romantic nostalgia against which we have been cautioned by Robert Gordon ("`The Ideal and the Actual in the Law': Fantasies and Practices of New York City Lawyers, 1870-1910," in Gerard W. Gawalt, editor, The New High Priests: Lawyers in Post-Civil War America [Greenwood, 1984]) and Marc Galanter ("Lawyers in the Mist: The Golden Age of Legal Nostalgia," 100 Dickinson Law Review 549 [1996]), bemoaning that the profession "is now slowly breaking up," its "political logic . . . progressively replaced by the logic of the market."   But if this is so, there is no necessary connection between lawyers and liberalism.

Some Lawyers Sometimes Are Liberals: England & Germany

Michael Burrage extols English professions as "little commonwealths . . . little republics," bravely resisting the statism of Mrs Thatcher as they did that of Charles II.  It is certainly paradoxical that a Conservative government should have attacked the privileges of natural supporters such as lawyers and doctors.  He rejects the Conservatives' own explanation that "professions merely happened to be in the way of a government that was singularly resolute in its determination to cut public expenditure" because "the reforms go far beyond what was required for the purpose of limiting public expenditure."  "Market competition is also not much of a guide" because it sometimes was "explicitly rejected."  (But the fact that cost-cutting and market ideology do not explain everything does not mean they explain nothing.)  Burrage argues that Thatcher was simultaneously seeking to increase market competition and state control; but this is unsurprising -- markets often are constructed by states.

His central contention, however, is that the professions "were probably the first, and have usually been the most durable, expression of civil society's attempt to organize itself."  He seems to feel that the defense advanced by seventeenth-century professions remains morally compelling today: "whenever a group of leading practitioners . . . gives reasonable evidence that they represent that occupation, they should be granted appropriate powers to govern it"; "professions should thereafter be left to define the public interest in all matters that fall within their jurisdiction"; and, "unless they could demonstrate an overriding public interest, governments should thereafter only interfere in their affairs with the express consent of their governing bodies."  Consequently, he condemns the Lord Chancellor's 1989 Green Papers on lawyers for having "anticipated, even celebrated, the end of sovereign, self-governing professions."  But they did nothing of the sort.  They proposed to open higher court advocacy to solicitors -- just as much a profession as barristers -- and real property transactions to licensed conveyancers (a more professionalized group than those who conduct such transactions in many other countries). Withdrawing state protection from the monopolies of barristers and solicitors hardly "continue[d] the process of state centralization at the expense of . . . self-governing bodies."  It is simply untrue that "solicitors were discouraged from handling legal aid clients as part of their general practice . . . ."  Burrage claims that "the special targets of the reforms were invariably the original, independent, fee-for-service professions."  But these had already surrendered much of their autonomy by relying on legal aid.  Perhaps most disturbing about this paean to the legal profession is his deliberate blindness to its persistent class, race, and gender bias.  These "little republics" would not have admitted either me (a Jew) or Burrage (from a working class background) as long as they enjoyed "independence."

Wesley Pue offers a view of the English Bar that is totally different, perhaps because it is firmly grounded in historical research rather than ideology.  Nineteenth century radicals, far from seeing the English legal profession as the champion of liberalism, condemned lawyers as "ruffians . . . whose business it is to do injustice," and "corruption No. 2, doing the work of No.1."  Although a few barristers represented notorious litigants, most never handled political cases and "the organized Bar showed little inclination to political unity, much less towards cohesive political action."  "The one marked exception to all of this" was that "the Inns of Court sought to exclude, silence, or expel any barrister whose politics -- and particularly whose professional actions -- exceeded the relatively narrow bounds of acceptability which circumscribed the political, social, and professional status quo."

The essays by Dietrich Rueschemeyer and Kenneth Ledford (the latter condensed from his book From General Estate to Special Interest: German Lawyers 1878-1933 [Cambridge University Press, 1996]), as well as the conference papers by Hannes Siegrist (not included in the volume), tell the depressing story of the Prussian bar, which championed liberal ideals in both the profession and the state for the first three-quarters of the nineteenth century, only to succumb to economic protectionism and anti-Semitism and embrace Nazism a half century later.  This makes the editors' identification of lawyers as the "universal class" no more plausible than Hegel's own claim for state officials, or Marx's for the proletariat.  Internal conflict and selfish behavior "revealed lawyers, and sub-groups of the bar, to be merely another of the many special-interest groups that struggled to survive in the Weimar political landscape."

Some Lawyers Sometimes Are Liberal: Bankruptcy & Legal Aid

Terence C. Halliday and Bruce G. Carruthers, drawing on their book Rescuing Business: The Making of Corporate Bankruptcy Law in England and the United States (Oxford University Press, 1998), review the well-known involvement of the professional elite in the progressive movement for judicial reform, which sought to separate law from politics.  But when they turn to their own case study of the 1978 revision of the Bankruptcy Code, the story becomes more complex and ambiguous.  Interested parties included referees, federal judges, the banking and insurance industries, low-level bankruptcy lawyers, litigators, elite bankruptcy experts, national, state, and local bar associations, and the two political parties.  These did not invariably advance liberal ideals.  Indeed, a "system of political and personal patronage . . . permeated . . . consumer and business bankruptcies. . . . [F]ederal district court judges (who themselves were often 'political' appointees) had complete discretion to appoint bankruptcy judges or 'referees,'" who "in turn appointed trustees to sell or abandon the assets," who "had their little fiefdoms of patronage, since they had discretion to retain lawyers as counsel, together with appraisers, auctioneers, accountants, and others."  This account (taken from a Brookings Institution report) contradicts the authors' functionalist conclusion that "the resolution of lawyers' internal struggles facilitates formal rationalization in the courts" and thereby "make the courts safe for the powerful, with their correlative effects on court legitimacy" and "reinforce the independence of the courts from majoritarian (that is, legislative) and imperative (that is, executive) influence. . . ."  Indeed, the authors acknowledge "the rather inconvenient fact that the federal judges opposed making the courts safer for the powerful" and that "undue identification of the courts with big business will render them unpalatable to other parties.

Finally, Michael Grossberg sketches the history of the American legal aid movement in the first third of the twentieth century.  Although this might seem evidence of lawyers' commitment to liberalism, he offers two essential qualifications.  First "legal aid was then, as it has remained ever since, a rather marginal movement among American lawyers."  Practitioners tended to be women and ethnic minorities (excluded from other roles), and law students; those who embraced social reform "became a source of the movement's persistent marginality."  Second, legal aid illustrates "some of the limits of legal liberalism" by sanctioning "adversarial solutions for those who could pay, and alternative forms of dispute resolution for those who could not."  Legal aid lawyers claimed "to eschew the standpoint of the partisan and approach more nearly that of the impartial judge, and to render aid to those who appear worthy."  This anticipates by two decades the Nazi "peace through law" conception of legal aid (see Udo Reifner, "Individualistic and Collective Legalization: The Theory and Practice of Legal Advice for Workers in Prefascist Germany," in Richard Abel, editor, 2 The Politics of Informal Justice [Academic Press, 1982]).  American legal aid generally declined criminal defense, bankruptcy, and divorce.  It assured private practitioners that "every precaution has been taken not to take from any lawyer any business which he may wish to handle for the usual or reasonable lawyer's fee."  Thus, legal aid tended to expose the illiberalism of the vast majority of lawyers as well as the limits of a specifically legal liberalism.

Lawyers & Liberalism: A Complex Relationship

Law and lawyers have a complex relationship with political liberalism.  Most lawyers, most of the time, claim to be apolitical in their professional roles and are collectively apathetic.  A tiny band devote their lives to the liberal cause, making a major economic sacrifice, accepting outsider status, and often suffering persecution by the organized profession.  The latter sometimes supports liberal ideals, sometimes displays deplorable cowardice, and sometimes is complicit in attacks on liberalism.   The bar tends to favor capital against labor and to reproduce class, race, and gender bias against its members.  Legalism places its own, fundamental, constraints on liberal ideals.  Yet liberalism has so few defenders it must seek whatever support it can derive from law and lawyers.

Richard L. Abel is Connell Professor of Law at UCLA and author and editor of numerous books and articles on the legal profession, most recently Lawyers in Society: An Overview (University of California Press, 1995) and Lawyers: A Critical Reader (New Press, 1997).
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The Brief Attraction of Roman Law
by Ernest Metzger

Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century
Michael H. Hoeflich
Athens, GA: University of Georgia Press, 1997
Cloth: $40.00
Pp. x, 207

It takes a special eye to describe the influence of Roman law in common-law countries.   On the continent there is more evidence to wade through, but the storyline is easier to follow: a court, kingdom, or nation looks to Roman rules because of the rules’ antiquity, genius, availability, or comprehensiveness.  A Roman-based jurisprudence or "legal science" develops, with the result that the positive law, the decisions of judges, and most of the juridical writings carry the same Roman hallmarks.  A person takes for granted that a Roman-law influence is there, and that it matters.  To describe the same influence in a common-law country, a person has to show where it is and how it matters.  Michael Hoeflich (University of Kansas Law) has published a collection of essays which does this superbly.

The Question of Anglo-American Use

Hoeflich is not concerned with the question of the extent to which Roman learning penetrated the common law itself.  He writes instead on how English and American legal scholars (principally of the nineteenth century, but including Buckland, Pound, and Charles Sherman) used Roman materials and ideas.  In many ways the subject is more engaging than the related question he does not address.  This is because, as he argues, the jurists he discusses often used Roman materials for reasons that were more intellectually defensible (or at least a good deal more interesting) than simply to provide authority for a rule.

One can take as an example Francis Lieber, a law professor born in Berlin but who taught for a time in South Carolina.  In 1839 Lieber published a book, Legal and Political Hermeneutics, which was typically civilian in both its aim and its ambition: he attempted to set forth principles of textual interpretation which would apply universally to all legal documents.  He sought to achieve universality by showing that the principles were valid not only in the Roman and civil law but in the contemporary common law as well.  His resort to civilian materials is noteworthy notwithstanding the fact that, as Hoeflich argues, his method was in keeping with a natural-law tradition that was past its time.  It is noteworthy, Hoeflich suggests, because Lieber’s use of civilian materials shows that the common law did not have what he needed: precise canons of interpretation with the requisite vocabulary.

The Intellectual Appeal of the Roman Law "System"

Hoeflich offers several reasons why Roman and civilian materials were useful or attractive.  Some reasons do not come as a surprise -- particularly the appeal of the Roman "system."  In some classical and Byzantine sources, Roman law is presented according to a rudimentary system in which individual rules are not simply set out one after another but arranged in a network according to their relation to one another.  So far as two rules share a common element (as delict and contract share the notion of obligation), they are treated the same, and vice-versa.  By the nineteenth century the Roman system had undergone and was undergoing further refinements, and it is not surprising to discover that English and American jurists found the system intellectually attractive, being based on a sounder taxonomy, and perhaps even being more "democratic" (allowing less room for the caprice of judges) than their own sources.

But Roman and civilian sources could be attractive for less obvious reasons.  John Austin made ample use of civilian vocabulary, supplanting common-law vocabulary, in his attempts to give a structure to the common law.  Yet, in using civilian vocabulary, he did not necessarily use the civilian institutions that that the vocabulary signified.   Hoeflich suggests that Austin avoided the language of the common law in order to free himself from the many irrelevant accretions of meaning that the language had suffered, but at the same time did not feel constrained to observe -- or was ignorant of -- the nuances of the civilian vocabulary he substituted.  In this way Austin could build a set of abstract principles that he hoped might apply to any legal system.

Historical or Comparative Value

Toward the end of the nineteenth century, the study of Roman and civil law was seen as less useful to the improvement of Anglo-American law, and came to be used more as a subject of historical and comparative research, as well as a pedagogic tool for law teachers.  This is very much the state of affairs of Roman law study in the present day, though Hoeflich finds that even this aspect of civilian study suffered following German aggression in two world wars, a decline in the study of Latin, and the attraction of the physical sciences.  It is only very recently that talk has again appeared of a new pan-European legal science, a return to a pre-codification jus commune for private law.  Hoeflich mentions this movement briefly in closing.  Such a movement would, of course, bring England closer to Roman and civil law than it has ever come.

It is a remarkable turn of history that, as Hoeflich suggests, interest in systematization of the law in England should have waned after 1875, and yet there should now be an enormous renewed interest in systematization, based in the main on civilian ideas.

Ernest Metzger is a Lecturer in Jurisprudence at the University of Aberdeen, Scotland.   He is the author of A New Outline of the Roman Civil Trial (Oxford University Press, 1997), and editor of the forthcoming A Companion to Justinian’s Institutes (Duckworth and Cornell University Press, 1998).  He maintains a Roman Law Resources website.
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An Enigma Wrapped in a Mystery
by Robert S. Peck

The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White
Dennis J. Hutchinson
New York, NY: Free Press, 1998
Cloth: $30.00
Pp. 577

Uniform declarations of outsized praise have become de rigueur when a U.S. Supreme Court justice retires.  In recent years, the retirements of Justices Lewis Powell, Thurgood Marshall, William Brennan, and Harry Blackmun were greeted with exaltations about their accomplishments and wisdom, particularly from constituencies who delight in the guidance provided by the stars these justices placed within the pages of the U.S. Reports.  While few would begrudge the honors bestowed on Brennan and Marshall for their constitutional contributions, the same level of hoopla, more objectively, may have been more of a stretch in the cases of Powell and Blackmun.

Similar bells of adulation, however, did not ring when Justice Byron White left the bench in 1993 after thirty-one years on the high court.  To be sure, President Clinton noted that White had had "a truly remarkable life," but remained restrained in his acclaim even in that career-ending moment.  No doubt, Clinton’s reticence reflected the antipathy that several core Democratic constituencies hold toward White for his dissents in such important decisions as the self-incrimination case of Miranda v. Arizona (1966) and the abortion landmark of Roe v. Wade (1973), as well as his opinion for the majority in the Georgia sodomy case of Bowers v. Hardwick (1986).

Justice White was probably untroubled by the comparative lack of attention he received in the media upon retirement, and proud of the difficulty commentators had in assigning an ideological pigeonhole to him as a justice.  He never sought to be a champion for some group of devotees.  He had spent a lifetime, largely unsuccessfully, avoiding publicity and avoiding the enunciation of or identification with a judicial philosophy.   Only in retirement may he have achieved both those goals.

White's attitude toward public attention, and perhaps toward even an ideological identification, can be traced to his formative experiences as a nationally acclaimed football star, according to University of Chicago law professor and former White law clerk Dennis J. Hutchinson's new biography of the justice, The Man Who Once Was Whizzer White.  The work ethic, disdain for the press, and diffidence for explaining himself -- all of which he developed during the 1930s as a football superstar -- stayed with him throughout his life.

Like Measles in a Crowd

A natural athlete who excelled at all sports and led his college basketball team to the National Invitational Tournament, White burst onto the sports scene as a freshman star at the then-perennially weak University of Colorado football team.  Although White was a two-way player who also punted for the team, it was his spectacular running ability that earned him the moniker "Whizzer" White that he so disliked.  During his freshman year, one reporter noted that White could "go thru a broken field like measles in a crowd."  White's stellar play earned him All-American honors and a second-place finish in the Heisman Trophy voting during his senior year; his runner-up status was largely attributable to sportswriters' bias against Western teams during years when the Ivy League dominated college football.  Still, White's 246.3 average for all-purpose yards during the 1937 season was not eclipsed until now-National Football League star Barry Sanders surpassed it in 1988 for Oklahoma State.

Byron White also excelled in academics, which resulted in a Rhodes scholarship.   While study in England beckoned, the NFL's Pittsburgh Pirates (later Steelers) also made an enticing and electrifying offer: a then-unheard of salary of $15,800 -- twice the salary of the league's top star, Washington Redskin quarterback Sammy Baugh.  The salary offer was a national sensation, comparable in more modern terms with the American Football League's outsized offer to Joe Namath in order to steal some thunder from the NFL and put fans in the seats of their stadiums.  The offer, made without contact with White, guaranteed that the young star would be under constant -- and, to him, uncomfortable -- media attention.  After a period of indecision, White finally accepted both offers, delaying his departure to Oxford to the off-season in order to play in the NFL, where he lived up to his billing by leading the league in rushing his first two years.

Whizzer White's football career (which, after a short-lived retirement, continued with the Detroit Lions for another two seasons at the same time he was earning top honors at Yale Law School) dominated his life.  Indeed, Hutchinson devotes more than a quarter of the book to football.  White, however, maintained that he wanted to put that chapter of his life in the past.  Hutchinson's book title derives from a story about lunch with a few colleagues when White was the new deputy attorney general in the Kennedy Justice Department.  A waitress pouring coffee looked at her customer and inquired, "Say, aren't you Whizzer White?"  White paused long enough to drink some coffee and modestly replied, "I was."

Justice White, in fact, could never outrun this past.  When reporters recalling his gridiron heroics would call his judicial chambers to confirm the correct spelling of "Whizzer," White's secretary, Jane Pike, would tell them that the justice spells it "B-Y-R-O-N."  Though this telling anecdote did not appear in The Man Who Once Was Whizzer White, it is exemplary of White's attitude toward his on-the-field accomplishments and his resentment of the moniker that stuck to him and now, ironically, graces his biography.

Law Career Starts on a High Note

Byron White began his legal career with a prestigious post as a law clerk to Chief Justice Fred Vinson.  Still, his football fame (which other writers have suggested may have been a factor in his selection as a law clerk by the former semi-pro baseball-playing Vinson) remained with him.  Vinson could not resist calling White his "all-American law clerk" and, apparently oblivious to his clerk's contempt for his nickname, inscribed a photograph to "Whizzer" and addressed a post-clerkship letter "Dear Whizzer."

Returning home to practice law, the Denver press doted on White.  Even his quite ordinary passage of the Colorado bar examination merited a newspaper headline.  He used that fame to build his practice.  Though he has always been a halting speaker (his only "B" in college was in public speaking -- the grade was said to have been a gift), Colorado Democrats tried unsuccessfully to recruit White for political office.  White was realistic about his electoral chances: he thought he could be elected once on the basis of his fame, and then never again because of his lack of political instinct or social graces and his unalterable views on policy.

The election of John F. Kennedy to the presidency brought White back to Washington for good.  Kennedy and White had become friends when both were in England, Kennedy with his ambassador father and White at Oxford.  They became reacquainted when White was the naval intelligence officer who investigated the P.T. 109 incident that gave rise to Kennedy's image as a military hero.  White had helped the Kennedy campaign in Colorado and was rewarded with the number-two position at the Justice Department.   When Kennedy's first opportunity to appoint a Supreme Court justice occurred, White was his only choice.

On the Court

After initially describing Justice White as a dissenter on the Warren Court, Professor Hutchinson focuses his attention to White's judicial career on three different and arbitrary years of his service: October Terms 1971, 1981, and 1991.  The selections are telling in some regards; they demonstrate White's consistently limited vision of the judicial role, emphasizing deference to the legislative process and a nearly slavish devotion to the record and earlier precedent.  Hutchinson also shows that White kept his eye on the long-term, slowly building support and a majority for his views (such as the good-faith exception to the exclusionary rule).

Yet, much like the description of Whizzer White's gridiron exploits, there is a surprisingly bloodless quality to the events and decisions rendered in this book.   This distance and inability to convey a personal portrait of the long-serving justice is, in part, a function of Byron White's curmudgeonly personality.  The justice refused to cooperate in his former clerk's biographical project.  This refusal was consistent with longstanding White policy.  When announcing opinions from the bench, White repeatedly declined to elaborate on the holding or meaning of the case.   It was simply "affirmed" or "reversed."  If further elaboration was needed, it could be found in the actual opinion.  In fact, when asked upon retirement whether he planned to pen his memoirs, White indicated that he already had -- in the volumes reporting decisions he had written over the years.

Another difficulty White presented to his biographer was his insistence that his job was to decide cases and not to create constitutional theory or entries for Bartlett's Famous Quotations.  It was no compliment when White told a 1971 Term clerk, "You write very well."  For the justice quickly added, "Justice Jackson had that problem, too."  It was White's belief that attempts to achieve eloquence interfered with and skewed the real tasks of the Court.  He preferred pedestrian prose.  When clerks attempted to edit White's opinions into more memorable declarative sentences, White would reedit their work into the unwieldy sentences that he found more true to the limited task that deciding cases entailed for him.

Professor Hutchinson attempts to overcome the difficulties presented by a subject who eschews easy characterization by emphasizing nuance.  His careful parsing of White's involvement, decisions, and approach to issues does much to surmount the obstacles his enigmatic subject presented, but still does so imperfectly.  To portray that White was very much the lovable curmudgeon, Hutchinson relies upon the declarations and demonstrations of affection that friends and former clerks hold for White.  Too often, though, the effect is merely an insistence that White is likeable; take our word for it.  A reader needs something more.

It may be, however, that Professor Hutchinson's subject, by temperament and devotion to personal privacy, may be too difficult a study for any description of personality.   Certainly, Hutchinson's thorough research and obvious attempt to avoid hagiography is laudable.  (He also extensively and, perhaps too fully, recounts the caustic criticism that some have held for Justice White’s judicial work.)  But for what is likely to be the only judicial biography of a man who participated in some of the most important decisions of the Court and who often led the Court in the number of majority opinions authored in a term, a better sense of the man might be desired.

One source Hutchinson chose not to mine were remembrances by former law clerks published in law reviews, which are replete with anecdotes about the justice's rough competitiveness on the Supreme Court basketball court and his humanity.  Perhaps a prudent sprinkling of more of these tales throughout the book might have tempered the often harsh, rigid, and uncompromising portrait that emerges from The Man Who Once Was Whizzer White.

Robert S. Peck is Senior Director for Legal Affairs and Policy Research at the Association of Trial Lawyers of America and a member of the adjunct faculty at American University's Washington College of Law.  He is the author or editor of seven books, including The Bill of Rights and the Politics of Interpretation (West Publishing, 1992).

Editors’ Note: For another judicial biography in Books-on-Law, see Judge Nathaniel Jones’s review of Mark Tushnet’s Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991.
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Deconstructing Dependency
by Martha Albertson Fineman

Welfare's End
Gwendolyn Mink
Ithaca, NY: Cornell University Press, 1998
Cloth: $21.00
Pp: 180

Overcoming Welfare: Expecting More from the Poor and from Ourselves
James L. Payne
New York, NY: Basic Books, 1998
Cloth: $26.50
Pp: 243

Welfare's End and Overcoming Welfare add to the vast and still growing literature addressing the deficiencies of the American welfare system and the need for its reform.  By the latter part of the 20th Century, the United States had pieced together a safety net for poor families with children -- its roots in the New Deal and Great Society, and its growth spurred by the entitlement rhetoric of the 1960s decisions of the United States Supreme Court that limited state discretion in determining eligibility.  Almost no one was satisfied with the system as it had evolved.   Dissatisfaction set the stage for some serious tampering in 1995, when the "new" Democrat in the White House was complemented by a conservative, but reform-minded, Republican majority in the 104th Congress.

Ending Welfare As We Know It

President Clinton first proposed "ending welfare as we know it" during the 1992 Presidential campaign.  Strengthened work requirements became the centerpiece of reform as evidenced in the draft of the 1994 Work and Responsibility Act.   Republicans enthusiastically welcomed the President's defection from old style liberal policies and contributed their own visions for reform.  Their ambitious "Contract With America" became the blueprint for the Congressional elections of 1994 -- its attacks on welfare leading to the stark harshness of the Personal Responsibility Act of 1995.  The final product of this bipartisan impetus toward reform was the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 [H.R. 3734, 104th Cong., 1st Sess. (1996), Pub. L. No. 104-193, 110 Stat. 2105 (1996)], signed by President Clinton on August 22, 1996.

The final legislation eliminated the entitlement status of Aid to Families With Dependent Children (AFDC), replacing it with a fixed funding system in which eligible poor single parent families are no longer guaranteed governmental cash assistance.  In addition, the extent of the states' tolerance for the plight of those in need of assistance is statutorily limited; with few exceptions, the 1996 Temporary Assistance for Needy Families block grant scheme imposes a cumulative lifetime cap of five years receipt of welfare assistance.  The individual states may set shorter lifetime cap periods, and a number of states have taken advantage of this option.  The Act also imposed work requirements and limited aid to young mothers and immigrants.  Further, it allowed the states to deny additional cash assistance to families that have more children while receiving welfare payments.

The Rush to Reform

Among the more interesting (and depressing) aspects of the reform was the manner in which it moved through the political and legislative process.  The very real problems with the welfare system were hyperbolically presented to media and the public, transforming the initial impetus to help poor families on the part of earnest critics of the system into a stampede to discipline single mothers led by opponent conservatives and moralists.  The distortions and misrepresentations constructed a seemingly deserving target for the bipartisan blitz that followed, a reform frenzy that radically diminishing the country's commitment to its poorest and most vulnerable citizens.

How informed were the participants in this process?  In his Introduction to Overcoming Welfare, James Payne informs us that at the height of the welfare reform debate, he obtained a copy of the final Senate version of the measure.  It was 1,027 pages long.  Payne concluded that, in spite of the idealistic (and necessary) declaration that the bill had been read twice before being placed on the Senate calendar, "[n]o one could have read this measure even once."

Gwendolyn Mink, author of Welfare's End, might respond that it would not have mattered if every single Congressperson and staff member had diligently read the entire legislation.  Details were not what mattered, and facts carefully gathered by those opposing reform (including Mink and other members of the Women's Committee of One Hundred) accounted for little in the debates.  Ideology and symbolism were the driving forces, and there was a political consensus as to the basic nature and direction reform should take.  The objective was to stop the welfare "dependency" of single mothers by forcing their participation in the tried and true anti-poverty institutions of marriage and workplace.

Moralism in the Politics of Welfare Reform

In a Chapter entitled "How We Got Welfare Reform," Mink points out that Democratic Congresses and Republican Presidents amended welfare policy six times between 1967 and 1988, "fanning public hostility toward mothers who are single and poor" as they went along.  Mink substantiates her contention that moralism has always been (and continues to be) the template for welfare policies and politics in this country.   Historically, benefits were conditioned upon acquiescence to social controls, controls that often required recipients to concede privacy and dignity in order to demonstrate that they were "deserving" as well as in need.

The moralistic impulse was threatened in the 1960s when the Supreme Court, in a series of decisions, established an entitlement to welfare.  Mink interprets this as imposing a scheme of "cooperative federalism," in which the Supreme Court invoked the national rights of individuals as a check on the moralistic regulations imposed by the states.  In the years that followed, greatly increased welfare roles, concern with states' rights, and the tendency to make the race of the recipient a political issue combined to rally "whites against Blacks, Congress against the Court, and taxpayers against recipients."  We are left with the legacy of these divisions and they have distorted current policy.

States' Rights, Federal Mandates: Disciplining Poor Single Mothers

As Mink demonstrates, far from restoring states' rights or backing off from moral objectives, the current reform reinforces at the federal level the historic moralism that has shaped our policy from the beginning.  In fact, as she points out, the states are both compelled to do certain things in exchange for their block grants and prohibited from doing other things as a condition of receiving the funds.  Of particular interest is the fact that states are prohibited from offering more generous or more equitable terms to their recipients than are stipulated in the federal Act.

Mink characterizes the reform as manifesting a "new federal partnership" with sinister tendencies.  She describes the "political consolidation of moralistic authority [that] will disable poor single mothers' citizenship, deepen inequalities among women, and derail progress toward gender justice," the creation of "a moral straightjacket, conceived and enacted to disjoin rights from welfare and thus to intensify the disciplinary function of social policies affecting poor women."  Mink is particularly concerned with the current reform's positioning of marriage as the panacea for poverty and perceived societal decline.

Patriarchy is clearly in ascent.  As Mink astutely points out, when marriage is not a realistic possibility, the gendered hierarchy of that institution in its traditional form is nonetheless contrived in other ways.  Male economic responsibility for female economic dependency is assured, imposed through privacy violating paternity proceedings and rigorous child support collection measures.

If these patriarchal innovations fail, the final fallback is to mandate maternal market work.  Mink condemns this requirement as communicating to a poor single mother that "if she doesn't participate in a father-mother family, she surrenders her right to care for her children."  The charge is that our politicians seem willing to do anything, even jeopardize the future well-being of young children, to avoid public responsibility, to make dependency a private, a personal, rather than a collective concern.  The very title of the Act -- The Personal Responsibility and Work Opportunity Reconciliation Act -- highlights these goals.

Searching for an Alternative Vision

I am very sympathetic to Mink's position that our current state of welfare policy is punitive and inappropriately punishes single mothers and their children.  I think that at this point in our history, however, we need more than assertions (or even statistical and empirical demonstrations) of unfairness.  Even if clearly apparent, arguments that the reform will have dire consequences for welfare recipients will fail to make the case that it should be undone.  In the policy and political arenas, welfare dependency has been deemed an unqualified evil, and measures designed to end individual reliance on it judged an absolute good undertaken for the benefit of the recipient as well as the public.  Furthermore, for large numbers of people, marriage and/or maternal work don't seem like punishments.

Mink attempts to make the positive case for welfare by arguing that mothering is work entitled to public subsidy.  She argues for reconceiving welfare as the "income owed to persons who work inside the home caring for, nurturing, and protecting children."  This assertion of a social right to welfare is related to Mink's rather generous and unrealistic reading of certain constitutional provisions, although she correctly recognizes that realistically the fate of poor single mothers is a political issue.

Given the state of the political landscape, it is unlikely that the rehashed rhetoric of the welfare rights movement is likely to turn things around in favor of single mothers' rights to stay at home with their children at taxpayers expense.  Nor will Mink find it easy to rally allies to her cause.  The general perception that work is good and dependency is bad, even for mothers, has made for some strange bedfellows in pursuit of reform.  Mink herself details the way that middle class feminist objectives in regard to work dovetailed with those who had more traditional concerns.  Wage work was cast as a desirable and appropriate expectation for all women, including poor single mothers.   Work leads to independence and is imposed for the recipient's own good.   Progressives and conservatives were united in the belief that economic independence was not only ideal, but was also attainable.

Really Ending Welfare

Wider in its scope than Mink's Welfare's End, James L. Payne's Overcoming Welfare takes on all sorts of governmental programs, not only direct assistance to families with children.  Using platitudes, homilies and anecdotes, he constructs a unitary vision by which to judge any and all governmental means-tested programs.  In his sites are caught disability, feeding and nutrition programs, as well as job training and educational programs for low-income children.

Payne characterizes these programs as "giveaway" or "hand-out" schemes.  This rhetoric reflects the nature and captures the tone of the widespread popular resentment against the poor that spurred the punitive welfare reform Mink so starkly describes.  Part of this resentment is directed at the government, perceived as inefficient and ineffective by privateers such as Payne.  He ideally would replace what he views as the present corrupt, publicly centered and controlled scheme with a private, volunteer-based system of "expectant giving."

Looking to the 19th Century for Answers to the Problems of the 21st

Payne's book is a paean to 19th Century charity theorists such as Octavia Hill, who is credited with espousing "a more excellent way of charity" by cautioning that money was not the answer to helping the poor.  Payne summarizes the theory of charity that informs his vision for the 21st Century thus: "[e]ffective help . . . required genuine, voluntary personal relationships between helper and helped, not giveaways of material assistance . . . . [A]id was future oriented, directed at improving the character of recipients and their ability to thrive and achieve . . . emphasiz[ing] arrangements of two-way giving, where some contribution or effort was expected in return for the assistance given."

These ideas are reduced to catch phrases and simplistic aphorisms.  Expectant giving is defined as a situation in which assistance is given with the definite expectation that the needy person will "do something constructive in exchange for the help rendered."  Handout programs, by contrast, are examples of "sympathetic giving," a destructive scheme governed by "how much sympathy or pity we feel for the recipient . . . reinforc[ing] dysfunctional behavior and attitudes and undermin[ing] the pride and self-confidence of recipients."

Replacing Government With a "Brave New World" of Voluntary Charity

Payne concludes that governmental programs of relief have difficulty accomplishing expectant giving.  He characterizes existing, as well as past, programs as evidencing a "built-in bias toward giveaways."  While he views governmental programs as "on the wane," he concedes they remain politically powerful.  Payne is convinced, however, that governmental assistance programs are losing their intellectual and moral support, and are ripe for displacement by his system of expectant giving.

Not surprising, an underlying article of faith in Payne's scheme is the belief that the voluntary community will rise to the occasion when government is rightly pushed out of the social service business.  He envisions a system of voluntary charity that "will rely on the imagination and intelligence of vast numbers of people . . . smarter than any pharaoh, king or senator could ever be."  He is confident that these anticipated masses will "create a system of social assistance that will quite surprise us."   Payne is critical of those who are skeptical about a voluntary scheme.

Not only does Payne believe that masses of volunteers will rush to aid the poor, he is confident that the poor can also do much to help themselves.  He describes what he calls the "static fallacy" to explain the perpetual attraction of sympathetic giving, noting the tendency of policy makers to exaggerate the importance of existing programs by assuming that recipients would make no adjustments to a reduction in benefits.   In this context (as well as in several others), Payne illustrates his point by drawing an annoyingly simplistic analogy between dilemmas within the vast and complicated welfare system and the actions of some earnest small business person.

Bakers and Benefits

The baker Payne concocted to introduce the concept of the static fallacy believes that "he keeps his customers from starving to death," a conclusion which would be true "only if his customers had no capacity to find other supplies."

Payne applies the static fallacy concept to governmental programs, using the "typical example" of the claim that Social Security keeps the elderly out of poverty.  He claims that this assertion "views the citizen as helpless and unintelligent. . . . [O]fficials seem to assume that millions of seniors would keep gathering around social security offices like sheep, waiting for checks to 'lift them out of poverty' in the absence of a government retirement program."  As this illustration indicates, Payne assumes that individuals will have the foresight and discipline, as well as other resources, to provide for themselves once freed from governmental compulsive programs.

Payne's version of reality has flexible seniors firmly in control of their destinies: "[t]hey could work longer, they could sell assets, they could enlist aid from their children, and, especially, they could start saving more money before retirement."   Payne has faith that these savings would materialize if "the government didn't take away 12.4 percent of their income for the social security program."  Even those readers initially seduced by Payne's self-help rhetoric condemning giveaways and glorifying volunteerism might pause as they begin to see just how radical and unresponsive to the situation of the poor is his scheme to correct our welfare system according to 19th Century philosophy.

What Next?

It is discouraging to realize that, in spite of its radical privatization stance, Payne's position is the one that resonates with current political and popular attitudes.   Mink certainly attempts to explain why the latest undermining of the safety net offends a sense of justice and fairness.  She tries to build a case for welfare by casting mothering as work entitled to compensation.  But, as the debates now stand, Payne seems certain to win the political as well as the rhetorical war.  The platitude that "hand outs don't help, they harm the poor" has attained the status of common sense.  It is consistent with our national myths of individual independence, self-sufficiency, and autonomy.

Until this mythology is effectively challenged, platitudes will suffice in the political realm, effectively displacing arguments for more responsible and equitable policies.  Mink and others who argue for social rights, for expanded and strengthened assistance programs that provide a series of basic goods for all citizens, must figure out ways to engage the public imagination and empathy.  I do not mean to discourage Mink and others who seek to reverse our abandonment of the poor.  There is no more important project for progressive scholars and activists than persuading Americans that we all have a collective responsibility for those who are in need.  In order to articulate a theory of collective responsibility, however, we will have to begin at a very basic level.

I suggest that we begin with an attack on the assumption that dependency is pathological and deviant, rather than an inevitable part of every individual's experience.   Dependency is developmental, part of the process of childhood, often associated with illness and aging.  Dependency is also built into our social and cultural activities: we are dependent as members of families or in other societal institutions.   Deconstructing dependency would expose the real fallacy underlying welfare reform: the belief that independence, autonomy and self-sufficiency are desirable (let alone attainable) for us as individuals or for the compassionate society we would aspire to create.

Martha Albertson Fineman is currently the Maurice T. Moore Professor of Law at Columbia University.  In January of 1999, she will begin at Cornell Law School as the Dorothea S. Clarke Professor of Feminist Jurisprudence.  Professor Fineman developed and runs the Feminism and Legal Theory Project, which will move with her to Cornell.  Her recent book, The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies (Routledge, 1995) considers the rhetoric and symbolism of single motherhood in both the divorce and welfare contexts.
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Richard Posner’s Clarendon Lectures 1995
by Stephen Guest

Law and Legal Theory in England and America
Richard A. Posner
Oxford, England: Clarendon Press, 1996
Cloth: $24.95 / 」17.99
Pp. x, 134

It is time for a short retrospect on Chief Judge Richard Posner’s work.  He has written a vast amount in jurisprudence, and has a wide and formidable reputation.  Indeed, he is one of the most well-known and oft-cited of academics of the legal theoretic sort on both sides of the Atlantic.  But this collection of Clarendon law lectures does not do justice to his reputation, exposing relatively shallow analytical abilities and relative lack of moral perception.  The powers of analysis and moral perception required to speak authoritatively about justice, law, and morality -- and economics -- are, of course, rare as hens' teeth, and so it is no great criticism of the man for me to say it.  But Posner persistently maintains myths that undermine careful thinking on important matters.

What do I mean by all this?  It is that Posner is only a talented journalist besides a competent judge.  His writing style is effortless, and he has amassed an enormous amount of knowledge.  But this is not enough for tackling the really serious and difficult problems he tackles.  Each of the three lectures exposes him.

The first lecture, entitled "Hart versus Dworkin," advances the thesis that there are major differences between the American legal system on the one hand and the "English and Continental legal system" on the other.  The reason is that "positivism" rules in England and the Continent, and this requires that judges not be "political" in outlook, whereas in the United States judges are "political."  The problem with H.L.A. Hart is that he was too much concerned with finding "the concept" of law, and so his theory reflects the "timid" judiciary that exists on this side of the Atlantic, because it is "their" concept of law he wrote about.  And so we get the stiflingly awful comment from Posner that "It is no accident that today’s foremost legal positivist in succession to Hart, Joseph Raz, lives and teaches in England."  (It is not true, either, for Raz spends much of his year at Columbia University).  The lecture says hardly anything about Ronald Dworkin, yet the reader is asked to conclude that Dworkin’s theory of law is a description of "stylised" political arguments by judges in the American higher appeals courts.

The Liberalism of Hart’s The Concept of Law

Hart’s theory can be read at different levels.  Not even too close a reading of Chapter 9 of The Concept of Law reveals that his theory is not intended as just a description of England and the Continent.  We might, for example, pay attention when Hart says that the choice of a conception of law is not a matter of "linguistic propriety."  For Hart gives moral reasons for preferring one conception -- the positivist -- above others.  The main reason is to enable people to recognize that state demands in the name of law are differently identified from the demands of individual moral conviction.  That thesis is the clear liberal voice of Hart’s book, which reverberates throughout his well-known public debates, in particular the Hart-Devlin debate on the enforcement of morality.

How could Posner fail to grasp this point?  Much has been written on it.  But more: the thesis shines forth from that chapter, and from Hart’s debate with Lon Fuller, that this way of looking at things was one stand that could be made against evil regimes, in particular, the Nazi regime.

To accuse Hart of advancing "the futility thesis" -- looking at "futile" matters such as the meaning of words and phrases we use to describe complex social phenomenon -- encourages the lazy and the careerist.  The lazy or unintelligent student can say that Hart’s theory is just "semantics."   And there are a large number of academic careerists, usually of the "post-modernist" bent, who can declare that legal philosophy cannot address "deep questions."  By doing so, they both absolve themselves of engaging within a notoriously difficult field, and free themselves to create whatever category of thought suits the moment (what an economist calls "product diversification").   Both groups are not served by this lack of direction from Posner who thereby contributes to the prevailing superficial jurisprudential culture.

Both Hart and Dworkin have morally normative theories of law.  That is to say, both are invocations to everyone to accept them because of the consequences such acceptance will have for all communities.  Hart’s theory disapproves of a legal system in which the line between the "is" and the "morally ought" is non-existent, say, in the ideal community of Islam.  In such a community, individual conscience is concordant with that of the community as interpreted according to God’s will (all follow "the Way").  In this community, The Concept of Law is regarded as subversive, for it would inveigh people to develop their individual moral convictions, Reformation style.  In other words, Hart’s theory approves the Anglo-Continental-American acceptance of law, but disapproves of others.

Similar Liberal Roots in Hart’s and Dworkin’s Legal Philosophy

Dworkin approves of that system for largely the same liberal reasons, which will come as a surprise to many.  He thinks that liberal reasons relating to the protection of individual conviction are vital, and so his views naturally concern the familiar rights, democracy, and public transparency and accountability.  It is instructive to see how Hart's and Dworkin's thinking applies to the Nazi legal system.  Since their theories are normative, both theories apply there: Hart’s to encourage and approve the thinking "this is law, but too evil to obey;" Dworkin’s to encourage and approve the thinking "this isn’t really law."  (And this latter idea does not involve linguistic impropriety any more than Mick Dundee’s saying, in the film Crocodile Dundee, when confronted by a flick-knife, "Call that a knife?!")

To think that these distinguished philosophers were just providing "stylistic" descriptions of local practices is demeaning to the rich moral insights, well supported by argument, that both produce.  This first lecture is harmful.

Posner’s Fixation with Money

The second lecture is more engaging, because Posner discusses cases with acuity and -- because he writes with such ease and grace -- his accounts are readily and enjoyably assimilable.  You can tell he is more at home with cases, partly because he is a judge and partly because he is talking about his favorite subject, the economic analysis of law.  But his treatment of the topic is disappointing.  Posner would very much like the excesses of the economics in law movement not to be attributed to him, and he wants to show, as he makes clear in his recent book Overcoming Law, that economics has much to offer law.  The problem is that he is too much wedded both to utilitarianism and money.  His primary thrust is that tort and contract are designed to cut the money cost of certain sorts of private activity in society.   Indeed, he says that lawyers are too much inclined to see them as separate categories, because they obscure their common main function -- that of deterrence.

There are well-known criticisms of the idea.  Many are purely descriptive, taking the line that orthodox lawyers do not argue this way (notably Judge Posner!).  These criticisms are important attacks on Posner, given that (as we have seen) Posner thinks that description is a function of legal theory and that his own judgements are fairly orthodox.  But the serious criticisms stem from the normative thrust of his theory.

This is not to deny that economics is part of law.  If we think in a non-utilitarian way about law -- that law is about people’s rights to certain decisions (is that odd?) -- we can see that rights and markets are related in a more intimate way than Posner ever suggested.  The problem becomes one of the justice of the distribution of total resources.  For example, we enter the market with rights, and not have them delivered to us by an imaginary market of rightless individuals (as Posner supposedly imagines).  Certain of these rights -- respect, dignity … it’s all too familiar -- remain with us throughout our lives.

The Morality of Tort and Contract

In tort, if certain of these rights are infringed, we have a right to compensation; that is measured by the amount lost in the infringement, not by its deterrent effect.   We think that people have rights to decisions, in other words, that are not defined by their consequences for economic growth.  Sometimes people consume more resources than they are in justice entitled, and so levels of award will and should reflect the justice, which will be calculated in overall cost to society (the polluter, for example).   Moral rights exist in contracts, too.  I have a moral right not to be browbeaten into an agreement; and so, I have a right not to be bound by it.  I have a right that people (reasonably) keep the trust I repose in them.  I have a right that decisions I make in reliance on another should achieve their (reasonable) expectation.   It is not that the contractual consequences of duress, or loss of expectation, are there to deter.  As with tort, arguments used by lawyers are not of that sort, but of a more distinctly rights-based kind, and this makes better moral sense.  These sorts of questions, which make more sense both descriptively and morally, have been asked by intelligent students and good commentators for years.  Why does Posner not address their concerns?

All this amounts to the following incredulity I have with his writings on economic analysis.  Does he believe, as many of those engaged in teaching economic analysis of law believe (I speak, at any rate, for the United Kingdom), that the wealth effect on society as a whole is anywhere near a serious criterion of justice?  If he thinks law is not about justice, why is he a judge?  These two summaries of my views about Posner may stagger some people in their simplicity, but I have taught a course on the foundations of economic analysis of law for a number of years now.  My students and I dig for depth in Posner, and it is not there.  I feel some heat about this.   Posner, fueled by the prevailing trans-Atlantic culture of the eighties, sold many people a superficial and bankrupt account of legal reasoning.  It is now time to get real.

Cultural Differences between the U.S. and the English Legal Systems

The third lecture is an attempt to make "functional" and "systemic" comparisons between the English and American legal systems.  There are some bland pronouncements about the differences -- English people are more deferent and less aggressive (Posner, without explanation, makes an exception for our soccer hooligans) and Americans "are fighters."  I don’t really know what to make of this sort of thing.  It is a good read, as so much of Posner’s work is, but lacks depth.  And, in his case, it does jurisprudence as a whole a disservice.

Stephen Guest is Professor of Legal Philosophy at University College in London.   He is the author of Ronald Dworkin (Edinbugh University Press, second edition 1997).

Editors' Note:  For another Books-on-Law review of a Judge Posner book, see Judge Jon O. Newman's review of Posner's The Federal Courts: Challenge and Reform.  For other jurisprudence reviews appearing in Books-on-Law, see Dennis Patterson's review of Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar by David Dyzenhaus and the Books-on-Law exchange on Beyond All Reason: The Radical Assault on Truth in American Law by Daniel A. Farber and Suzanna Sherry.  And, in our last issue, see the Stanley Fish review of Impartiality in Context: Grounding Justice in a Pluralist World and Shane O'Neill's reply
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Roberts and Goliath
by Elizabeth Chambliss

Roberts vs. Texaco: A True Story of Race and Corporate America
Bari-Ellen Roberts with Jack E. White
New York: Avon Books, 1998
Cloth: $25.00
Pp. xiii, 285

Billed as "the true story of how a giant corporation was challenged against all odds by one brave woman determined to stand her ground," this is a first-person account of the class action race discrimination suit that Texaco paid $176 million to settle.  Bari-Ellen Roberts, the lead plaintiff and narrator, details her upbringing, ambitions, and career prior to her employment with Texaco (Chapters 1-6); describes her frustration as a financial analyst at Texaco, where she and other African-American employees were subjected to systematic discrimination (Chapters 7-12); and recounts the events of the lawsuit itself, which consisted of two years of stonewalling by Texaco, broken only by the publication of secret tapes capturing Texaco managers making racist remarks and conspiring to destroy evidence (Chapters 13-18).

The most interesting characters in this character-driven account are Roberts herself, who serves as an exemplar of someone who is willing and able to confront racism; Texaco executive Richard Lundwall, who made the tapes implicating himself and others and volunteered them to plaintiffs’ attorneys; and Texaco’s lead defense lawyer, Andrea S. Christensen of Kaye, Scholer, who has hinted that she may sue the publisher for defamation based on Roberts's portrayal ("Texaco Inc. Spillover; Next a Defamation Suit?" National Law Journal, May 11, 1998 at A4).

Roberts's Ability to Confront Racism

Roberts was brought up to feel special -- she credits her father and teachers for this -- and she emerges as an ambitious and hardworking woman who is unafraid of claiming success.  She writes: "I have never been afraid to compete with white people. . . . I learned from an early age that I’m smart enough to meet any standard they set if the rules are fair and consistent.  No brag, just fact."

She first adopted the role of militant in the sixth grade, where her teacher, Mr. Gaston ("the most impressive man I’d ever seen"), talked about Negro history and civil rights.  "Since I had actually been to Mississippi and experienced segregation firsthand, my schoolmates thought I was an authority on the evils of white folks," she recalls.  "It gave me a welcome new cachet beyond my nerdy identity as the smartest kid in the class: I was a pint-sized militant."

As the book progresses, these features of Roberts's identity -- smart, militant -- are crucial to the story.  It is Roberts's continued success at her job that exposes the glass ceiling for African-Americans at Texaco.  It is Roberts's confidence in the face of degradation that enables her repeatedly to take on her supervisors.  It is Roberts's sense of entitlement that gives her the fortitude to sustain confrontation long enough to win allies and, eventually, capitulation from Texaco.  Roberts, in short, is the perfect plaintiff: meritorious, confident, courageous, and committed.

Race without Gender?

What is oddly absent from Roberts's self-portrayal (and her identity?) is gender.   Rarely does she explain her life or its events in terms of gender.  It is if the issue has been excised from the story.  She tells of a pregnancy during her first year of college and her marriage to the father in about five pages.  She drops out of school, supports her husband, has a second child, becomes disillusioned with her husband -- and quickly moves the reader ahead to her graduation with honors from Mundelein College (now Loyola University) in Chicago.

Growing up, all of her heroes are men.  She reveres her father but is highly critical of her mother, despite the fact that by her own portrayal her "proud," "educated," and "tyrannical" mother deserves at least as much credit as her father for believing in her and supporting her ambitions.  Roberts also never complains about the demands of the male career model: long hours, total commitment, hard bargaining, and cutthroat competition.  Instead, she competes matter-of-factly on those terms, and succeeds on them, and demands her due.

It appears, then, that the perfect plaintiff picks her battles.  Roberts marches through this story taking on white men on their own terms.  She succeeds because she is willing to work harder, longer, and more single-mindedly than her detractors.  By her own account, she is willing to sacrifice her health and private life to forward her career and her cause.  And even then, Roberts succeeds only after the defection of Texaco’s own Richard Lundwall.

Lundwall’s Secret Tapes

If Roberts is the perfect plaintiff to lead a class action race discrimination suit, Texaco would seem to be the perfect defendant from a plaintiff’s point of view.   Coming into the lawsuit, Texaco had a bad record "on the environment, on employment, on every issue of social concern," and had just lost a protracted legal battle with Pennzoil.  Moreover, Texaco’s treatment of African-Americans appears to have been blatantly discriminatory, clearly violating even the stingiest rendering of the 1991 Civil Rights Act.  Roberts recounts numerous instances of outrageous discrimination, painting a truly shocking picture of systemic, company-wide racism.   An EEOC investigation found "reasonable cause to believe that [Texaco] failed to promote Blacks in grades 7 through 14 as a class throughout its facilities because of their race."

Yet for all these facts, the reader is left with the impression that Texaco might have gotten away with it if not for the damning tapes delivered to plaintiffs by Texaco executive Richard Lundwall.  Texaco had been uncooperative in discovery, and progress in the case had been slow.  The case was filed in March, 1994, and by the end of January, 1995, Roberts recalls, "not one of our evidentiary requests had been satisfactorily resolved."  Further, Roberts reports that Texaco’s lawyer, Andrea Christensen, told the plaintiffs that "Texaco will never settle."   According to Roberts, Christensen said on two occasions: "Texaco will never, ever throw a bunch of money at a bunch of blacks!  You all can forget that."   (Christensen denies making the statement, but plaintiffs’ lawyers support Roberts's account.)

Texaco’s posture changed only after Lundwall gave plaintiffs’ lawyers the tapes.  Secretly recorded at executive meetings in 1994 and 1995, the tapes captured senior Texaco executives referring to African-Americans as "black jelly beans" and plotting to destroy personnel records that had been requested in discovery.   Plaintiffs’ lawyers gave the tapes to a judge and leaked the story to the New York Times, which published a devastating article on November 4, 1996.  Even then, Roberts recalls, Texaco took a hard line, continuing to send Christensen to settlement meetings over plaintiffs’ lawyers’ objections.  After two weeks of bad publicity, however, and the threat of a nationwide boycott, Texaco "caved in" and agreed to pay $115 million in compensation and $26.1 million in pay increases to its 1400 African-American employees, plus $35 million for an independent task force to monitor Texaco’s treatment of minorities.  At $176.1 million, it is the largest settlement ever won in a race discrimination suit.

Vengeance or Conscience?

The question is: why did Lundwall do it?  An ex-Marine, Lundwall had been with Texaco for 30 years, working his way up from gas station attendant to a management position (senior administrator for human resources in Texaco’s finance department).   Roberts portrays him as "the guy who organize[d] all the [company] tennis and golf tournaments."  Lundwall was "Mr. Texaco."

Moreover, Lundwall was implicated on the tapes.  He and a senior executive, Robert Ulrich, are heard planning the destruction of personnel documents and making a series of racist remarks.  Indeed, Lundwall and Ulrich subsequently were indicted on federal obstruction of justice charges, sparking a debate about the propriety of criminal liability for the destruction of documents during civil discovery. United States v. Lundwall (1998)  (Both defendants were acquitted at trial after four days of jury deliberations.)

The most obvious explanation for Lundwall’s actions is that he sought revenge against Texaco for downsizing him into retirement at 55.  According to Roberts, he only offered the tapes in exchange for help with an age-discrimination suit.  She reports that Lundwall told plaintiffs’ lawyers: "[M]y motives are not as pure as snow.  I don’t want to give these [tapes] to you until you find a lawyer to handle my case against Texaco."  Roberts reports that Lundwall was far more concerned about retaliation from Texaco than his own liability.

Revenge does not explain why Lundwall made the tapes, however, in 1994 and 1995, before he lost his job.  Was he already afraid for his future at Texaco?  Was he simply trying to insure the accuracy of the minutes of the meetings, as he claimed?   (And if so, why keep the tapes secret?)  Or could it be that Lundwall was ambivalent about Texaco’s discriminatory practices and/or the destruction of documents in a lawsuit?

It would be interesting to know what Roberts thinks.  Roberts goes relatively easy on Lundwall, compared to her treatment of other Texaco executives.  She reports that "of all the witnesses from Texaco . . . Lundwall [came] across as the most honest and forthright, disclosing the existence of finance department master books that were at the heart of our never-ending evidentiary tussle with Texaco."  She recalls that "unlike other Texaco witnesses, Lundwall seemed willing to give a direct reply to a direct question about . . . the personnel system."  When Lundwall initially came to her with the tapes, she recalls that he stood in the doorway of her office "with a loopy grin on his face."

Is Roberts leaving room for Lundwall’s conscience?  Does she believe (or want to believe) that Lundwall helped because Texaco was wrong, and not just to avenge his own interests?  Roberts never says so, but she raises the question by treating Lundwall gently in her account.

Christensen and the Limits of Zealous Advocacy

By contrast, Roberts leaves no room for conscience in her portrayal of Texaco’s lawyer, Andrea Christensen.  Roberts portrays Christensen as an unethical lawyer who knowingly concealed evidence in the case.  Roberts suggests, "someone should write a whole book about our legal team’s efforts to pry evidence that we were clearly entitled to out of Texaco and the outrageous techniques that the company and Christensen used to conceal it."  Roberts also reports that Christensen was contemptuous toward her and other plaintiffs during depositions; that Christensen entered mediation and settlement negotiations "in bad faith"; and that Christensen launched a "distorted" personal attack to challenge Roberts's fitness as a class representative.

What is interesting about Christensen, as Roberts portrays her, is whether she actually identified with her client, or whether her combative posture was simply a tactic.   Furthermore, which would be more troubling: to view Christensen, personally, as a bad actor; or to view her as another tough lawyer who was simply doing her job?

It would be interesting to know how far Christensen departed from accepted legal practice in this case.  If she committed no legal or ethical violations, would litigation lawyers view her conduct as outrageous?  Sixth months before Roberts v. Texaco was filed, Christensen and Kaye, Scholer had successfully prevented class certification in a sex discrimination suit against Texaco, squashing the suit "like a tank running over a tin can" ("Tale of the Tapes," American Lawyer, March, 1997 at 64).  If Lundwall had not come forward with the tapes, would Christensen’s tactics have succeeded again?

The Exception that Proves the Rule

What is troubling about this book, and this case, is that what seems like a tremendous victory and example of justice being done is simultaneously an exceptional story: the perfect plaintiff; the blatant defendant; and tape recordings of management meetings that "sounded like a Ku Klux Klan rally."  If discrimination plaintiffs cannot win under these conditions, one wonders what case would be winnable.

Roberts could have made this point, and paid more attention to the overall landscape of employment discrimination litigation.  Most of the time, David misses Goliath, but no one writes a book about those cases.  By focusing only on David’s big win, Roberts perpetuates the myth of the individual warrior as an effective slayer of giants.   The darker moral of this story, however, is that the warrior better have tapes.

Elizabeth Chambliss is a Visiting Professor at the University of Denver College of Law, and the author of a recent article about the dynamics of law firm integration.
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Reflections on Reflections
by Stephen Wizner

Reflections on Clinical Legal Education
Philip G. Schrag & Michael Meltsner
Boston, MA: Northeastern University Press, 1998
Cloth: $49.95
Pages: x, 331

The advent of clinical legal education in the late 1960s and its spread over the following few years to virtually every law school in the United States have been the most significant reform in American legal education since Langdell's invention of the case method at Harvard a century earlier.

In 1968, the Council on Legal Education for Professional Responsibility (CLEPR) was created with an initial grant of eleven million dollars by the Ford Foundation under the leadership of Paul Ylvisaker and William Pincus.  Within six months, Pincus, the President of CLEPR, had awarded grants to nine law schools to create clinical programs.   By the fall of 1971, barely three years after its founding, CLEPR had made grants to 85 of the country's 147 ABA-approved law schools.  Within a few more years, nearly every accredited law school in the country had instituted a clinical program.

In the introductory chapter of Reflections on Clinical Legal Education, Professors Philip Schrag (Georgetown Law) and Michael Meltsner (Northeastern Law) sketch the early history of clinical education, providing a thoughtful overview of the goals of its founders and of the historical, social, and educational concerns that gave rise to the clinical movement.  "Clinical legal education," they write, "was born in the social ferment of the 1960s."  It was a response to the legal rights explosion that had been stirred up by activist lawyers, implemented by a generally sympathetic federal judiciary, and funded in substantial part by the Ford Foundation.   Clinical education was a reform intended by its promoters not only to enrich legal education with professional training, but also to stimulate the law schools to attend to the legal needs of the poor.

Not surprisingly, the first generation of clinical teachers, of which Schrag and Meltsner were prominent members, came from the world of public interest practice -- social activist lawyers who had eschewed careers in private practice or legal academia in order to work for social and economic justice.  It was this orientation that motivated their early efforts and pedagogical goals, and that continues to provide a challenge to clinical legal education as it enters its fourth decade.

Learning Through Supervised Experience

Reflections on Clinical Legal Education is an excellent book, highly recommended for both new and experienced clinical legal teachers, as well as for others who wish to know what clinical legal education is all about.  In the book the authors, both experienced clinical educators, reprint six law review articles previously published from 1976 to 1996, together with prefaces to each article and introductory and concluding chapters written for this book.  Two of the articles co-authored by Schrag and Meltsner, "Report from a CLEPR Colony" (1976) and "Scenes from a Clinic" (1978), describe their clinical teaching at Columbia during the 1970s.   One article written by Meltsner, "Feeling Like a Lawyer" (1983), focuses on psychodynamic and interpersonal aspects of lawyering.  An article written by Schrag with colleagues from his clinic at Georgetown, the Center for Applied Legal Studies (CALS), describes the development and use of "The Learning Contract in Legal Education" (1985) as a mechanism for individualizing instruction.  An article by Meltsner and others, "The Bike Leader's Dilemma: Talking About Supervision" (1989), attempts to set out a theory and model for the supervisory relationship in law school clinics and other practice settings.  And a recent article by Schrag on "Constructing a Clinic" (1996), sets forth a blueprint for starting (or restructuring) a law school clinic.

Taken together, these six articles provide an excellent description of the theory and practice of clinical legal education as a teaching methodology, designed to implement the educational goals originally articulated by William Pincus.  These goals include: (1) enabling students to learn the performance of lawyers' tasks through supervised practice ("experiential learning"); (2) inculcating within students a commitment to clients and their causes ("client-centered lawyering"); (3) making students aware of and sensitive to malfunctions in the legal system and injustice in society; and (4) showing students how law can be used to reform institutions and social arrangements.

The authors concede that clinical legal education has been more successful in accomplishing the first two of these goals than in developing new generations of social activist lawyers:

Students wanted clinical education, and they competed for the limited seats that were available.  Increasingly large percentages of them, however, viewed clinics as places to hone skills that would benefit their careers or as refuges from the boredom of large classes and seminar papers, rather than institutions through which they could participate in a struggle to create a nation more firmly grounded in principles of economic justice.

Clinical Education at Columbia: 1971-76

Approximately one-third of Reflections on Clinical Legal Education is devoted to a description of the clinical program that the authors developed and taught at Columbia Law School during the 1970s.  Actually, the "program" constituted several different programs that Meltsner and Schrag designed, tried out, evaluated, and changed, until they were able to say:

We think that we have found a method and a principle by which clinical legal education can offer far more to students than the "skills training" that students and faculty often stereotypically regard as its sole purpose.  Our goal is to offer a high level of legal services to people who would otherwise be unrepresented, while simultaneously maintaining an environment in which every aspect of legal work can be the object of the most painstaking planning, reflection, and review.

In reaching this point, the authors had experimented with law reform test-case litigation, simulation, student practice in a legal aid office, and finally opening their own "in house, live client" clinic, Morningside Heights Legal Services, adjacent to the law school.  Each of these programs involved tutorial supervision, group discussion, and classroom instruction.

As their clinical program evolved, Meltsner and Schrag became increasingly interested in how emotional dynamics and interpersonal relationships affect the process and outcome of legal events and shape the professional identities and values of participants, and they included explicit consideration of issues of self-awareness and group dynamics in their pedagogy.  During this period, the authors also developed a model of student responsibility in which students were encouraged to assume as much responsibility as they could handle for client representation, class meetings, and use of faculty supervisors.   They adopted a non-directive approach to supervision of student casework, intervening only when students' actions (or inaction) threatened to cause serious harm to a client.  While these innovations were, and continue to be, controversial in clinical legal education, every clinical program developed since the 1970s adopted some variation of the Meltsner-Schrag approach to these issues.

Among other innovations introduced by Meltsner and Schrag at Columbia, learning contracts served as a means of advance disclosure to prospective students about the pedagogical methods employed in the clinic students and as a mechanism by which students might define their own learning goals.  Collaboration -- learning to work in partnership with fellow students, and in a learning group with students and supervisors -- was also key.

Schrag and Meltsner present all of this through anecdotal, first-person reports of how various ideas actually played out in the clinical setting.  The anecdotal style of these chapters opens the reader to the experimental nature of the developing program and the thought processes of the authors as they observed, participated in, reflected upon, and refined their clinical program.  We are literally able to watch as Meltsner and Schrag "invent the wheel."

Notwithstanding the authors' satisfaction with what they accomplished at Columbia, they remain troubled by the apparent discontinuity between their teaching and their personal commitment to social reform:

What is the proper relationship between our teaching and the social system in which our students will soon find themselves? . . . We are deeply troubled, for we often believe that we ought to be changing the values of our students, but are instead using our teaching setting and techniques to perpetuate the existing social and economic order.

Feeling Like a Lawyer

In the chapter entitled "Feeling Like a Lawyer," Michael Meltsner (who subsequently became Dean of Northeastern Law School) tells the story of the handling of an actual case by a team in a law school clinic.  Thereby, he demonstrates "the intersection of the legal tasks to be performed and the developmental stages, professional roles, and personal relationships of the group members, both among themselves and between them and outsiders such as clients, witnesses, adversaries, and the like."  Meltsner wrote this essay in response to a critique of the "Columbia School" by Professor William Simon in his 1980 Stanford Law Review article, "Homo Psychologicus."  Simon had written that the work of Meltsner and Schrag, among others, represented a retreat from political reality into a self-contained world more concerned with self-actualization than social issues.

Rather than respond to Simon directly, Meltsner decided to state clearly and concisely what Schrag and he were trying to accomplish in their clinical work.  He used the term "feeling like a lawyer" as a rhetorical device to distinguish their educational goals from the traditional law school objective of teaching students to "think like a lawyer."  "Lawyers," he wrote, "work with people at crisis points."

They must evaluate intentions, credibility and motives and predict behavior all the time.  Yet their education is largely intellectual.  Legitimate needs to protect the analytic and scholarly function have been inflated to the point where significant aspects of the lawyer's role have been excluded from serious consideration.

In a sense, Meltsner and Simon failed to join issue.  Exposing students to the psychodynamic dimensions of law practice need not blind them to social and political realities and the need for lawyers to work for social change.  On the other hand, Meltsner and Schrag themselves, at several points in their book, question the social relevance of their clinical teaching.

The Learning Contract

Since the early 1980s, Professor Schrag has been a member of the law faculty at Georgetown where he founded the Center for Applied Legal Studies (CALS).  Whereas the learning contract had served at Columbia primarily to help prospective students decide whether they wanted to participate in the type of clinical experience offered by Schrag and Meltsner, at Georgetown the learning contract became the central mechanism around which the CALS program was organized.

The learning contract, negotiated between students and supervisors, had four purposes: (1) to disclose students' and teachers' expectations; (2) to individualize instruction; (3) to formalize relationships within the clinic; and (4) to base clinic work on the prior consent of students.  The authors' description of the educational objectives of the CALS program are reminiscent of their pedagogical goals at Columbia: (1) to help students learn to accept responsibility; (2) to improve students' approach to problem solving by encouraging thorough exploration of decisions made on case issues ("practicing law in slow motion"); (3) to teach collaboration; and (4) to encourage independent thinking and idealism by helping students assume responsibility for their professional lives.

In the chapter on the learning contract in legal education, Schrag and his co-authors (all CALS instructors) provide a detailed discussion of the contracting process; a description of how the draft contract (which is re-printed as an Appendix to the chapter) was developed and how it is used in the CALS program; a report on student reactions and the types of issues that have arisen under the contract; and anecdotes about actual "moments" in the clinic involving performance of the learning contract.

Talking About Supervision

Professor Meltsner and his co-authors offer the chapter entitled "The Bike Leader's Dilemma: Talking About Supervision," as "an effort set out a sophisticated supervisory model" for law school clinics and law firms.  Their goal is to describe the process of transmitting professional knowledge, and to examine how law students and young lawyers assimilate professional roles.

The chapter begins with an extended metaphor about a bike tour leader taking a group of vacationing cyclists on a trip through the Swiss Alps.  From there, the authors move to a theoretical discussion of the goals and process of supervision.  Supervision is not simply a hierarchical dyad in which a senior supervisor oversees the production of a discrete work product by a junior and provides the instruction that is necessary for accomplishment of the task.  The process of supervision and the supervisory relationship, properly understood, should serve the additional functions for the neophyte attorney of assimilation of a professional role, professional growth and development over time, and general skills acquisition.

Unlike the other chapters in the book, this chapter consists primarily of a theory and model of supervision, with little in the way of anecdotal examples from the authors' experience that make the other chapters so useful.

Constructing a Clinic

The final chapter of the book, written by Schrag, is offered as a manual for designing or restructuring a law school clinical program.  He describes the restructuring of CALS in the mid-1990s in order to set out and reflect upon the administrative decisions that clinic supervisors must address when they start or substantially modify a clinic.

It is interesting for a long-time clinician who has followed the evolution of Schrag's and Meltsner's views on clinical legal education to note the respects in which the restructuring of CALS reflected what was taking place in other clinical programs that differed from theirs.  Schrag describes the changes in CALS as moving away from psychological theory and group dynamics; devoting less time to group-process discussions and introspection; and using negotiated learning contracts as clinic screening devices.   Instructors have been more involved in students' casework, and more open to expressing their opinions and explicitly guiding students.

In an Appendix to the chapter, Schrag provides a "Checklist of Issues in Constructing a Clinic," setting forth eighteen categories of issues and considerations that must be taken into account in designing a clinic.  This Appendix alone, and the discussion of how it was used in restructuring CALS, is worth the price of the book.

Accomplishments of Clinical Legal Education

The authors conclude quite correctly that the accomplishments of clinical legal education have been significant.  First, clinics have exposed students to the complex professional issues that arise in the practice of law (including the difficulty of assuming responsibility for safeguarding the freedom or property of others); the ethical quandaries that arise in doing so; the role of strategic planning in dispute resolution; and the constant pressure that interpersonal relationships exert on legal outcomes.   Second, many economically disadvantaged individuals have received free, high quality legal services from clinic students.  The authors estimate that, over a twenty-five year period, as many as 375,000 low-income clients have been served by law school clinics.

These accomplishments represent substantial steps toward fulfilling William Pincus's goal of "eras[ing] the artificial barriers which, in the name of a false intellectualism and sterile scholarship, keep legal education and legal service apart."

On the other hand, the authors concede that "with few exceptions, clinics have not systematically altered the legal landscape."  For a variety of reasons, some pedagogical, others having to do with students' pragmatic concerns and seeming lack of idealism, clinical legal education (including that designed and carried out by Professors Schrag and Meltsner) has tended to emphasize professional development over social reform.

It is a virtue of this book that the authors acknowledge and raise the contradictions in their work and that of law school clinicians generally, especially that of teaching students to function effectively in a legal system in which most of them will not use law to challenge social and economic injustice.  The goal of instilling in students the professional obligation of public service and of providing pro bono legal assistance to the poor continues to be unrealized despite three decades of clinical legal education.

It is reasonable to ask why this should be so.  Nearly all law school clinics, including those offered by Schrag and Meltsner, provide students the experience of supervised law practice on behalf of indigent clients, and the opportunity for critical reflection about poverty and the legal problems of the poor.  Students cannot avoid seeing that, but for their efforts, their clients would not have legal representation.   And yet only a very small percentage of students who have participated in law school clinics seek or accept public interest jobs or provide significant pro bono legal services to the poor.

Either the social objectives of those who founded and funded the clinical movement were naive and unrealistic, or clinicians have failed to develop an experiential pedagogy that can instill these professional values in their students.  In this respect, as the authors conclude, clinical legal education "remains a work in progress."

Stephen Wizner is the William O. Douglas Clinical Professor of Law at Yale Law School.   He helped start the clinical program at Yale in 1970 and has been a clinical teacher there for the past 28 years.
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