BOOKS-ON-LAW/Book Reviews - October 1999; v.2, no.8

Contents | Reviews | Talkback || Archive || Books-on-Law Home
  • Conrad, Clay S.  Jury Nullification: The Evolution of a Doctrine.   Reviewed by Randy E. Barnett.
  • Posner, Richard. The Problematics of Moral and Legal Theory.   Reviewed by Anthony J. Sebok.
  • Smith, Jeffery A. War and Press Freedom: The Problem of Prerogative Power.   Reviewed by Christopher N. May.
  • Uviller, H. Richard. The Tilted Playing Field: Is Criminal Justice Unfair?   Reviewed by Robert Weisberg.
  • Talkback

The Fate and the Promise of a Free Press in War Time
by Christopher N. May

War and Press Freedom: The Problem of Prerogative Power
Jeffery A. Smith
New York, NY: Oxford University Press, 1999
Cloth: $45.00 / Paper: $19.95
Pp. ix, 324

This richly documented work chronicles the history of restrictions imposed on the American press in the name of "self-preservation" and "national security" during the 200-year period from the adoption of the First Amendment through the 1991 Gulf War.   Arguing that the Press Clause was originally intended to "deny the legislative, executive, and judicial branches any power over the press" whether in the form of "prior restraints or subsequent penalties initiated by government," (35) the book traces the erosion of this absolutist First Amendment ideal caused by the emergence of "a presidential-military protectorate shielded by secrecy and suppression." (viii)

The author, a Professor of Journalism and Mass Communication at the University of Iowa, shows that "in the first two hundred years of the Bill of Rights, many presidential-military mistakes and misdeeds were covered up in the name of safety." (227)  He urges that while government enjoys a limited right to conceal legitimate defense secrets, once information becomes public, even the most compelling national interests are better served by journalistic self-restraint than by official suppression.  Professor Smith believes that unrestricted freedom of the press is far less dangerous than allowing executive-imposed secrecy -- particularly in a nuclear age.  While "in theory, press freedom can cost lives," writes Smith, "in reality the incompetence and unsound policies journalists should be exposing are the most serious hazards in the domain of national security." (Id.)

An Absolutist Ideal

War and Press Freedom is divided into three parts.  Part I -- "Intentions and Interpretations" -- outlines the Framers’ notion of a limited government in which the executive’s powers, including those pertaining to war and defense, were narrowly circumscribed.  The First Amendment was meant to play a critical role in this "self-correcting governmental scheme" (12) by ensuring that federal officials were subject to the continuing and uninhibited scrutiny of the press, even with respect to military matters.  Moreover, the President was given no power to control reporting on military affairs and any attempt to assert such authority would run afoul of the Press Clause.  Professor Smith suggests that this scheme was subverted from the outset through a combination of factors, including: executive claims of an inherent "presidential-military power;" Congress’s enactment of sedition laws and its conferral of emergency powers on the President; and the judiciary’s failure to adopt and enforce an absolutist reading of the First Amendment.  "For better or worse, the Bill of Rights left the ultimate decisions on war news and opinion to the independent press, but the country often has allowed the sword to be mightier than the pen." (25)  Professor Smith condemns the Supreme Court’s First Amendment jurisprudence for having allowed the government effectively to suspend the Speech and Press Clauses whenever these guarantees are said to conflict with the "higher law" of national survival or security. (65)  Part I concludes by urging a restoration of the Press Clause based on "what history has shown, that citizens have more to fear from their governments than their governments have to fear from them." (72)

The Anatomy of Repression

Part II -- "‘Higher Law’ in Practice" -- offers a meticulously researched, war-by-war account of federal interference with the press from the era of the French Revolution through the end of the Cold War.  Despite the book’s subtitle, not all of these restraints have involved the exercise of "prerogative power," a term that usually refers to discretionary action taken by the executive without statutory or clear constitutional authority.  While executive or military officials unilaterally imposed many of the restraints, others were expressly authorized by statute.

The press restrictions described in War and Press Freedom may be divided into five main categories (the categories are mine, not Professor Smith’s).  The first involves statutory prohibitions under which journalists were punished after the fact for having published material prohibited by law.  Notable examples include the Sedition Acts of 1798 and 1918, and the Smith Act of 1940.  Although these efforts were typically upheld by the courts, they sometimes proved politically disastrous for the administrations that employed them, as Presidents John Adams and Woodrow Wilson quickly discovered.

A more common restriction has consisted of prior restraints designed to block the press from disseminating information within its possession.  In the Civil War, for example, the military took over the telegraph and censored transmissions, initially without statutory authorization.  During World War I, the government, using authority given to it by Congress, seized and imposed censorship on the nation’s telephone, telegraph, and submarine cable systems.  And, in virtually every war in which the United States has been engaged, including the 1991 Gulf War, military commanders have imposed varying degrees of censorship on reporters in the field; those who ignored these military review procedures have been subjected to detention, court martial, dismissal from the war zone, and/or loss of their press credentials.

A third type of interference has entailed measures to prevent the press from ever acquiring information in the first place.  Such restraints have included censorship of letters written by soldiers; Harry Truman's December 5, 1950 order requiring all executive branch officials to clear public statements on military policy with the Defense Department; executive classification schemes that shield government documents from public view; and excluding or delaying access by the press to a theater of war.  One of the most dramatic instances of access denial occurred during the 1983 invasion of Grenada.  As Professor Smith vividly recounts, the U.S. Navy created an exclusion zone around the island, which it enforced by Navy aircraft that fired on a charter boat carrying reporters to Grenada.  Navy pilots were ordered to sink the boat if necessary, but tragedy was averted when the vessel turned back after two sets of warning shots had been fired.  Later, during the 1989 invasion of Panama, the Defense Department delayed press access until the principal fighting was over.

Fourth, the executive and the military often have relied on ostensibly voluntary systems of censorship through which the press, rather than the government, is responsible for curtailing war news.  During World War I, for example, the cabinet-level Committee on Public Information issued self-censorship guidelines for print and film media that were edited by President Wilson.  The guidelines were voluntary in theory, but failure to comply could result in the loss of newsprint supplies or a ban against a film’s export (without which a film could not make a profit).  In World War II, the Office of Censorship issued codes of self-restraint for newspapers, magazines, radio broadcasts, and newsreels.  Though voluntary, the codes were backed by threats of punishment in the form of revoked press credentials, export restrictions, espionage or sedition prosecutions, and pressure on news organizations to fire uncooperative reporters.   These threats have worked so well, according to Professor Smith, that the press often has served as a sycophantic partner of government in keeping the people in the dark.

Finally, the executive branch increasingly has interfered -- by resorting to secrecy, dishonesty, and deception -- with the press’s ability to report news accurately.   The Supreme Court has recognized that the First Amendment protects the public’s right to know about certain government proceedings, such as criminal trials.   Though the Court has not addressed this issue in the context of information relating to war and national defense, Professor Smith views deliberate government interference with public access to such information as being antithetical to the Press Clause.  The Kennedy administration’s dealings with Cuba, the escalation of the war in Vietnam, the secret bombing of Cambodia, the invasion of Grenada, the Iran-Contra affair, and the Bush administration’s invasion of Panama were all shrouded in lies concerning the existence of or justifications for these armed interventions.  As Professor Smith emphasizes, it is one thing for executive and military officials to use deceit to shield facts from the enemy; it is another thing to employ deception to withhold information from the American people -- information which, like the bombing of Cambodia or the invasion of Cuba, is often quite well known to the enemy.

Several trends emerge from Professor Smith’s detailed historical account.   One is a general shift from statutory restrictions on the press to restrictions based solely on executive prerogative.  The other is a decreasing reliance on attempts to block the press from publishing material in its possession in favor of policies designed to keep the media from obtaining information in the first place.   The book also reveals that, regardless of their form, government restrictions on the press usually serve not to protect lives or military secrets but to shield officials from the consequences of their mistakes, improprieties, or incompetence.  To cite but one of many examples, during World War I American troops in Europe lacked adequate food, medicine, clothing, and military equipment.  General Pershing, who had been unable to resolve the problem through official channels, hoped that an informed public might force the government to redress the situation.  He asked the War Department to relax censorship restrictions so that journalists could report on the supply shortages.  The secretary of war denied the request.

Taming the Dog of War

Part III of War and Press Freedom -- "The Risks of Repression" -- offers a compelling, if at times rambling, argument in favor of restoring complete press freedom in the war setting.  Even if one does not accept Professor Smith’s absolutist reading of the Press Clause, these final two chapters make a highly persuasive case for adopting such an interpretation as a matter of sound public policy.

First, such a policy would be of benefit to the military establishment itself.   Too often censorship of the press has prevented civilian and military leaders from discovering corruption, incompetence, or inefficiency in the armed forces.  As with the inflated body counts and civilian massacres in Vietnam, lower level officers often have incentives to lie to their superiors or cover up wrongdoing.  A number of distinguished American generals, including Dwight D. Eisenhower and William Westmoreland, have acknowledged the importance of permitting journalists wide freedom even in the theater of war.  Looking back on his years in Vietnam, Westmoreland wrote: "In the constant search for the negative, the press served as a kind of adjunct to my Inspector General and informed me of many matters that I otherwise might have missed." (213)  In addition, there is reason to believe that troop morale is improved when soldiers know that the people back home are aware of their accomplishments and of the conditions that they face.

More importantly, the accurate reporting of war constitutes a powerful force for peace.   Indeed, wartime censorship has often been imposed in order to preserve "public morale" -- a tacit recognition that if the people knew what a war was really like they might no longer support it.  As television brings battlefield scenes into millions of American living rooms, war is stripped of its heroic trappings and revealed as a drama of human suffering.  A free press will make it more difficult for the United States to engage in war, particularly where American troops are at substantial risk.   If a specific conflict is viewed as being both just and necessary, realistic pictures of hostilities may make the public even more hawkish; but, when support is weak to begin with, accurate reporting may cause that support to evaporate.  As Professor Smith writes, "If the United States government asks citizens to give up their resources and risk their lives for a war, then they deserve to have the pertinent information on the conflict so that they can discuss the options free of constraints. Individuals who are well informed are unlikely to fight for inconsequential reasons or to tolerate egregious errors in the armed forces." (224)

In addition, to the extent that the United States does engage in war, the existence of accurate press coverage may shape how hostilities are conducted, to the benefit of troops and civilians alike.  President Reagan’s media manager, Mike Deaver, noted that "television has absolutely changed our military strategy" and predicted that "we will never again fight a major ground war." (203)  When NATO intervened in Kosovo, the war was fought exclusively from the air, with only minimal loss of NATO personnel.  The so-called "CNN effect" may even reduce the extent to which casualties are inflicted on an enemy.  The Bush administration abandoned its pursuit of the Iraqi army at the end of the Gulf War partly because of the public’s reaction to viewing what appeared to be a mass slaughter of fleeing Iraqi troops on the "Highway of Death."  Press impact on the "etiquette" of war was also evidenced by NATO’s use of carbon dust to cut off electrical power in Serbia, a tactic that contrasts sharply with the mass civilian deaths inflicted by the Allied firebombing of Dresden and cities in Japan during World War II.

Allowing the press accurately to report war news poses little actual risk to the success of conducting military operations.  As Professor Smith notes, standards of journalistic ethics and fear of popular reprisal restrain the press from revealing true military secrets.  If anything, he suggests that the press has been too accommodating in suppressing information.  In World War II, the press kept the atomic bomb a secret; had there been prior public discussion, the bomb might never have been dropped on Hiroshima and Nagasaki.   Journalists declined to disclose the existence of secret U.S. espionage flights over Russia and China prior to the crash of the U-2 spy plane in 1960.  They also cooperated with the Kennedy administration in suppressing or heavily editing stories about preparation for the Bay of Pigs invasion of Cuba in 1961.  When Iran seized hostages at the U.S. embassy in Tehran, journalists did not reveal that some U.S. diplomats had escaped to the Canadian embassy.

Moreover, since the government frequently uses the media to disseminate false information that will confuse the enemy, even if the press does disclose a genuine military secret, the enemy will have difficulty distinguishing the truth from what Winston Churchill referred to as its "bodyguard of lies." (206)  Before the ground invasion of Iraq, Newsweek published a map showing a possible flanking attack that General Norman Schwarzkopf was planning to use as a surprise.  General Colin Powell told Schwarzkopf not to be unduly upset by the article, for "[o]ther magazines are full of maps showing other battle plans."  The published map did not cause Iraq to alter its deployment of forces, and the planned flanking attack proceeded successfully.  In wartime, the marketplace of ideas is likely to be so crowded that truth may go unnoticed.

Finally, Professor Smith notes that censoring the press in wartime is not only difficult but also often futile.  During the Gulf War the government’s censorship scheme broke down as numerous reporters escaped from escorted military pools.   While some were later caught, friendly American units sheltered others.  With advances in technology, reporters are no longer dependent on access to easily censored telephone, telegraph, or cable lines.  In Kosovo, for example, a Los Angeles Times reporter relayed stories of NATO’s bombing of civilians by using a portable satellite telephone. (L.A. Times, June 20, 1999, at A1)  Even when the government is able to seal off a theater of war, as it did in the first few days of the Grenada and Panama invasions, the facts will usually out.

In light of the indispensable role played by a free press and the futility of imposing censorship, Professor Smith recommends that the government and the press reach an accommodation through which journalists would accept self-imposed limits that are "mutually agreed upon and truly intended to protect themselves and solders." (226)  Following the Gulf War, the Department of Defense and media representatives did just this.  The "Statement of DoD Principles for News Media Coverage of DoD Operations" set forth nine principles for open and independent combat coverage.   A separate policy, entitled "Principles of Information," sought to protect the public’s right to know by stipulating that the Defense Department would not withhold information "to protect the government from criticism or embarrassment" but instead "only when disclosure would adversely affect national security or threaten the safety or privacy of the men and women of the Armed Forces." (226-227)  The success of these policies will depend on the Pentagon’s willingness to abide by them.  There is reason to be skeptical.  After the Grenada invasion, the government created a Department of Defense Media Pool to be sent to future trouble spots.  However, when the United States later invaded Panama, the Pentagon failed to honor the arrangement.  Mutually agreed upon principles and policies are thus no substitute for constitutional or statutory guarantees that are judicially enforceable.  Yet given the federal courts’ longstanding deference to the executive in the field of military affairs particularly in time of war, there may be no better alternative.

Those who framed the Constitution sought to chain the dog of war both by requiring that Congress make the decision to initiate hostilities and by limiting military appropriations to a maximum of two years.  As the 20th Century closes, it is clear that these mechanisms have proved no match for an imperial presidency that now claims the power to make war entirely on its own initiative.  Yet War and Press Freedom leaves the reader with some cause for optimism.  Television and other technological innovations have made the press an increasingly powerful tool by which "We the People" can contain executive war making.  Though these developments have not succeeded in chaining the dog of war, they provide hope that the dog may at least be tamed.

Christopher N. May is the James P. Bradley Professor of Constitutional Law at Loyola Law School in Los Angeles.   He is the author of In the Name of War: Judicial Review and the War Powers since 1918 (1989) and Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative (1998).

Editors' Note: A review of Professor May’s book, Presidential Defiance of "Unconstitutional" Laws, appears in the March, 1999 issue of Books-on-Law.

(Almost) The Best of All Worlds of Criminal Law
by Robert Weisberg

The Tilted Playing Field: Is Criminal Justice Unfair?
H. Richard Uviller
New Haven, CT: Yale University Press, 1999
Cloth: $27.50
Pp. ix, 314

Richard Uviller describes himself as a "post-modern Realist" in the world of criminal justice.  That odd, ostensibly paradoxical phrase makes sense if you restate it in more modest terms.   Uviller looks at the received rules and doctrines of modern criminal law (mainly criminal procedure).  He probes for underlying intellectual coherence and finds it wanting.  In the manner of a 1970s Critical Legal Studies scholar, he notes that most distinctions are arbitrary, that most cut-off points for policies are indefensible by abstract logic or even utilitarian analysis, and that many of the courts’ express aspirations of principle seem hypocritical.  He then attributes most of this incoherence to the inertia of political and cultural history or to the intractability of public opinion; or else he switches tone from disappointed idealist to wizened pragmatist who simply does not expect crystalline logic in human affairs and who can, after (brief) intellectual struggle, accept the evolution of values and practices as good enough.   He then returns to the specific doctrinal issues under review and proposes modest, sensible reforms that admittedly do nothing to restore or establish grand logic, but nevertheless mitigate some of the dangers of the illogic.  The result is a literate, worldly, mature, occasionally whimsical argument for marginal reforms in criminal justice.   By the end, we think of Uviller as "post-modern" only in a very genteel way, a Rortyan pragmatist with even a touch of Burkean respect for evolved custom.

High-Tech Searches and Benign Inquisitions

Ever wary of empirical assertions lacking empirical proof, Uviller questions whether the supposedly deterrent function of the Fourth Amendment’s exclusionary rule has any effect on police behavior.  With a bow toward textual history, he finds no basis for the presumptive warrant requirement for searches.  But he finds that the warrant rule has served us pretty well, and worries only that we have not used technology to ease the getting of warrants as much as a good incentive scheme would require, and that we have allowed the rules for warrantless searches to grow too complex to guide the police.   So, he suggests, let us enhance our capacity for electronic and oral warrants, and, as a trade-off, somewhat augment the requirements of detail in warrant applications; and then let us reform warrantless searches by reading into the rules the sort of interest-balancing (taking into account the gravity of charge, depth or destructiveness of search, importance of evidence sought, availability of less intrusive means, and degree of privacy invaded) that the courts have eschewed under the pretense that they have devised categorical rules.

Uviller is happy to ditch the Miranda requirement so long as we vigorously monitor interrogations for coercion, and his method for doing so is oddly simple: Limit the power of interrogation to the relatively spontaneous immediate exigencies of the on-the-scene or arrest encounter; only permit interrogations "limited in time and occasion to the natural exchange attendant on the initial encounter or the unprovoked initiative of the defendant himself." (201)   The wry language of that very phrase itself conveys Uviller’s comfortable sense that some logic of received practice or common sensibility can do what abstract theory cannot.  But as for the phase between immediate restraint and trial, Uviller would shift to the continental system and have all interrogation done by a magistrate.   (Uviller, like many critics of the American system, is tempted by the inquisitorial system, but feels no need to worry about categorical replacement or grand harmony -- he would just borrow eclectically.)  Indeed, he would require the defendant to face the magistrate’s questioning.  The privilege against self-incrimination?  He would retain it; it has served us long, if not well, and he would apply it, but narrowly.   The defendant need not, of course, respond to the magistrate’s questions; but, to reverse Griffin v. California (1965), we should let a jury draw what conclusions it would like from his silence.

Uviller insists he need yield to no one in wariness about prosecutorial misconduct, but he believes that most prosecutors are honorable and are perceived so by the public.   Indeed, in one of his numerous creative justification-hunts for rules, he invokes the self-reinforcing public stature of prosecutors to explain the rule that they may not personally vouch for the defendant’s guilt.  To do so, he argues, would undermine their image of professional integrity -- their professional ideal of disinterestedness.  Though he worries about the lawlessness of prosecutorial charging discretion, and though he recognizes that executive branch charging guidelines are legally unenforceable, he avers great faith in them.  Conceding that he is the sort of ceremony-lover who is "moved by occasion," he believes that the ritual of subjecting prosecutors to fealty to aspirational guidelines, however vague, will powerfully chasten their behavior.

A Logic of Double Jeopardy

Uviller is especially vexed by double jeopardy, arguing that one look at the dual sovereignty rule or at the complexity of manifest necessity and staged mistrial rules shows how incoherent these are.  We cannot, he laments, decide whether the purpose of the rule is to spare the defendant the agony of the process or the enhanced risk of conviction, and the notion that the swearing in of the jury marks the "attachment" of jeopardy he finds baffling.  But the basic rule is there, and again he suggests some coyly serious-looking reforms.  If by some odd means the defendant, perhaps through bribery of the jury, has never really been exposed to conviction in the first place, let the defendant face retrial even after acquittal.   If he never faced risk of conviction in fact, it should not matter that he might have felt that he did.  And Uviller also is tempted to consider the California rule of freer interlocutory review to somewhat equalize the power of the adversaries to appeal adverse judgments of law; but then, thinking aloud, he concedes that he does not want appellate courts shadow-managing jury trials.

Uviller is a spare-parts-scavenging workshop tinkerer.  He is bothered by the greater opportunity afforded defendants to benefit from a trial judge’s legal mistakes, but notes that the cause has to do with the extraneous force of double jeopardy.   So if he cannot too drastically limit double jeopardy protection, he suggests as his tinkering alternative that trial judges exercise a presumption in favor of admitting challenged evidence, whoever the proponent.  If the prosecution wrongly benefits, the defendant can still appeal.  If the defendant wrongly benefits, at least the prosecution suffers the lesser harm of some gratuitous exculpatory evidence rather than the greater harm of loss of legitimate inculpatory evidence.

On discovery, Uviller somewhat whimsically tinkers with the possibility of greater symmetry -- to impose greater disclosure burdens on the defense.  He wonders why more states have not adopted California’s relatively open mutual disclosure requirements.   In the end, he thinks that the Jencks and Brady rules have things about right.  At the same time, more whimsically but more vigorously he poses a way of borrowing civil pleading rules for criminal law to address a related concern about the defense being able to mislead or get too morally post-modern about constructing truth.  To reduce the range of possible duplicitous or unethical behavior by defendants, he would require the defendant to give a formal "answer" to the indictment or information with at least a bare recital of refutational claims or affirmative defenses, and at least make it available for "impeachment."

The Resources of Defense

Uviller is particularly aroused by bail.  This is especially interesting, because he otherwise doubts that the wealth of the defendant matters all that much.  He believes that skills among defense lawyers are pretty randomly distributed among the well-paid private bar, the low-paid local defense lawyer or appointees, and the county public defender, and that most defense lawyers get the resources they need within the limits of legal investigation.  Rather, he believes, the most serious constraint on defense lawyers is precisely the set of legal limits on defense investigation, of which more below.  But bail drives him batty, largely because he thinks judges are arbitrary and unfair in essentially denying release under the guise of setting bail, when they set bail they know very well the defendant cannot pay.  With charming self-deprecation, Uviller says he hates the subject because it arouses his wrath beyond his power to suggest practical solutions.  But if he could, he would break the process into two steps -- first, have a self-binding decision by the magistrate that the defendant should or should not be allowed out on reasonable bond; then, if the answer is yes, ensure that the bond is achievable.

As for the legal limits of defense investigation, Uviller toys with the notion of giving defendants interrogation and search power; but quickly conceding the impracticality of any such notion, he comfortably finds solace:

The defense boasts nothing comparable to the government’s authority to pry evidence from the uncooperative, to go into private spaces -- legally -- look around and take what they need.  It’s a comparative disadvantage of major proportions, no doubt about it.  The disparity is not, however, unfair.  It is not unfair because it is the product -- the necessary product -- of the differing roles of prosecution and defense.  The affirmative obligations of the state, as the surrogate for the injured (as well as for the rest of us law abiders who have been indirectly offended), to bring the responsible predators and malefactors to justice demands that they be given the authority to pursue evidence.  The defensive position, while often fortified by counter-offensive, is essentially responsive.  Investigatory license is reduced by the reduction of responsibility of initiation. (291)

In other words, the constant in his equation is that the prosecution bears the burden of initiation and proof; it is thus only fair that it have the power to investigate; in any event, the constitutional limits on those powers seem inapt as applied to defendants, even if society were to tolerate defendants doing searches and seizures.  By this combination of policy, principle, history, whatever, we treat the asymmetry as foundational and allow certain asymmetries to follow logically.  As usual, Uviller ambivalently looks back to foundational principles and stops, delicately, at the threshold between deeper norms, venerable precedent, and entrenched social perception.

A Comfortable Jurisprudence

The real question of the book is, what is a fair trial?  Uviller questions the notion of the "level playing field."  It is not level now; it never will be; and it never should be.  Fairness and equality are not the same thing, because at various points in the prosecution, and for various reasons, the two sides are not similarly situated.  So, in a dash of legal process rationalization, Uviller says that if each side gets the power "appropriate" to its function at a particular stage," then the process is fair.  "An unfair disadvantage . . . is a disabling impediment inappropriate to the task of the party suffering it." (21)

One last issue threatens Uviller’s equilibrium: Worrying over the rules of defense ethics, he wonders how we can forbid the defense lawyer to put on false testimony, yet allow her to aggressively cross-examine and undermine the credibility of a prosecution witness she knows to be telling the truth.  Uviller finds himself left with "one of those hateful creatures, a logical anomaly. . . . There is, I believe, no satisfactory release from this ethical dilemma." (253)  What he calls "permitted contention contrary to belief" is still distinguishable from suborning perjury.   In a remarkably self-assuring finesse, Uviller says, however: "Perhaps the best way out -- and one must be found -- is to console ourselves by noting that the impeachment of [the truthful witness] does not entail creation or preservation of false evidence as such, but only the unwarranted inference to mendacity from admissible evidence on the issue of credibility." (253-54)  But, why is it that throughout this book a source of consolation "must be found?"  Uviller concedes that he hates the distinction, but fears that the logical entailment of trying to rectify it would be the demise of the whole structure of American criminal justice.

This book is, at bottom, an argument that theory is, unfortunately, futile, yet also, happily, unnecessary.  Seeking some metaphysical grounding to resolve political or empirical debates, he purports to imitate the courts in their search for "overarching public values," but warns that we will soon "find ourselves down on our knees, prospecting for transcendental nuggets." (17)  Uviller somewhat disingenuously puts us through the exercise of this prospecting, but ends up, with suspicious ease, accepting the second-best opportunity of marginal reform in the name of common sense.

Robert Weisberg is Edwin E. Huddleson, Jr. Professor of Law at Stanford University and co-editor of Criminal Law: Cases and Materials (Little Brown-Aspen 1996).

Editors’ Note: Professor Richard Uviller wrote a review for last month's issue.  See also reviews of related interest by Yale Kamisar and Charles D. Weisselberg.

In Defense of Jury Independence
by Randy E. Barnett

Jury Nullification: The Evolution of a Doctrine
Clay S. Conrad
Durham, NC: Carolina Academic Press, 1998
Paper: $22.50
Pp. xxiii, 311.

Often when a book comes out, even a very good book, you can be content just to read the review.  That way you not only know what the book says, but the reviewer will tell you what is wrong with it as well.  Besides, if its subject is something about which you care sufficiently to read the review, you probably think you already know enough to hold a knowledgeable opinion.  Perhaps, after reading the review, you can tell those with whom you disagree that they should read it, but you don't really have to.

Clay Conrad's Jury Nullication: The Evolution of a Doctrine is different.  It is the most important book written on jury nullification since Lysander Spooner's masterful work Trial By Jury was published in 1852.  It is extensively researched and balanced.  The enjoyment of reading it stems as much from the beauty of Conrad's writing as from the comprehensiveness of his analysis and the fascinating and important nature of his subject.

Particularly if you are a law professor, you must read the book, and not just this review.  For the proper role of the jury lies at the heart of almost everything we teach students.  Should or should not juries be limited to finding facts?   Should they be unconcerned with the justice of the laws they are charged with applying to those facts?  Whether you think you approve or disapprove of jury nullification, unless you read this book, you are not going to have an informed opinion about it.  Before reading Jury Nullification, I thought I knew a lot more about this issue than I did, even though recently I had read Spooner's work.

In the last few years, jury nullification has been brought to the forefront of legal consciousness by Paul Butler's provocative contention that African-Americans jurors should exercise their power to free black defendants regardless of their guilt.  Though his suggestion was condemned by many law professors and others, there is much more to the issue of jury nullification than was revealed during this recent controversy.  As Conrad makes plain, at the time of the founding of the United States and for many decades thereafter, the power of juries to pass upon the justice of the criminal laws was generally believed to be central to constraining the abuse of governmental power.   This right was surrendered only gradually, as the bar and bench were professionalized and the positivist conception of law took root in America.

The Myth of Racist Nullification

Conrad meticulously, but concisely, narrates the origins and historical development of this right and how it came to be supplanted, though it has never completely disappeared.   This is, however, just the first half of his project.  In the second half, he discusses the current debate over jury nullification and pays special attention to the objections commonly made against it.  For example, he devotes a whole chapter, entitled "Scapegoating the Jury," to the belief (widely held by law professors) that jury nullification was responsible for thwarting the prosecution of whites who had victimized blacks in the South after the Civil War.  He analyzes this issue with care, discussing the paucity of available data to support such a belief and the particular examples of racist juries that are often cited.  He concludes that:

It is unrealistic to claim that racist juries have never been seated, or to deny the risk of a jury returning a racist verdict in occasional cases.  Racist verdicts (such as the verdict in the Emmett Till case) have occurred, and will in all likelihood occur in the future, whether by bench or jury.  However, statistics and history fail to substantiate claims of the widespread use of racist jury nullification in cases involving widespread violence.  Nor do they show the jury as being more racist than other decision-makers in the criminal justice system -- prosecutors, judges, police, attorneys.  Instances of unalloyed racist nullification are extremely rare, and even these low numbers can be further reduced without affecting the jury's power to nullify in an appropriate case. (186-87)

Consider this one fact: when federal prosecutors started enforcing civil rights and criminal conspiracy laws in the South, they obtained convictions from juries drawn from the very same pool of voters as then comprised state court juries.  This strongly suggests that juries were not the crucial variable in those state trials that resulted in acquittals for white defendants.

A Defendant's Right Tempered by Instructions

Conrad, a criminal defense attorney in Texas, proposes ways to guide jury decision-making when considering the justice of laws, as it is guided when weighing evidence of the facts.  He contends that a decision to challenge the justice of a law should be left solely to the defendant; but the challenge involves a risky strategy since, as with the insanity defense, a defendant must implicitly admit his technical guilt.   When such a challenge is brought, an explicit acknowledgment of a jury's right to assess the justice of the laws would enable judges to help guide its exercise by giving appropriate instructions.

Conrad then discusses the role that jurors should play in death penalty cases, how jurors should act conscientiously today while still honoring their oaths, and how under current rules lawyers should appeal to the existing power of nullification when defending clients.  While I enjoyed and greatly profited from these last three chapters of the book, most law professors can become well-informed on the intellectual and practical issues by reading the first 200 pages.

Rather than summarizing Conrad's arguments and evidence, the rest of this review addresses an issue that he does not emphasize: how "jury independence" (the term that Conrad uses in the book, and that he and I prefer to "jury nullification") fits within our constitutional structure.  On this issue, I write not only as a law professor, but as a former prosecutor in the Cook County State's Attorney's Office in Chicago, and as someone who wanted to be a criminal lawyer from the age of ten and who desired to be a prosecutor from the first year of law school.  I still attend reunions of former prosecutors to see my old colleagues-in-arms. I never wanted to be a federal prosecutor; rather, I always wanted to be a state prosecutor, so that I could prosecute murders, rapes, and armed robberies.  And I was also very fortunate to become one while these crimes were still the primary focus of local prosecution.   That is not true any more.

Dealing With Unjust Laws

I could not be a prosecutor in good conscience today because of the vast amount of time and resources now spent prosecuting such unjust laws as those that prohibit the use of intoxicating substances or the possession of firearms.  Because I am proud of the time I spent as a prosecutor, the thought that I could not today be a prosecutor, or strongly encourage my students to be prosecutors, saddens me greatly.  But what can be done about such a situation?

Each of us has our own opinion about the justice of particular laws, even some laws supported by a majority of the electorate.  Short of allowing the legislature always to have the last word, how and where in our legal institutions do we distinguish the just from unjust laws?  Do we simply consult professional philosophers, or rely upon government judges to make these decisions?

The way that many in the founding generation thought to do it was by means of jury independence.  As one anonymous author wrote in the 1776 pamphlet published in Philadelphia: "That Juries ought to be judges of the law, as well as facts, should be clearly described [in a constitution]. . . .  A man cannot be guilty of a good action, yet if the fact only is to be proved . . . and the Jury not empowered to determine in their own minds, whether the fact proved to be done is a crime or not, a man may hereafter be found guilty of going to church or meeting."   How, then, does jury independence fit within our constitutional structure?

Popular Check vs. Popular Rule

Jury independence is best thought of as another check in a system of checks and balances.  Originally, we did not have a system in which the people -- or a majority faction, as the Framers would have called them -- directly ruled us.  The Framers greatly opposed direct democratic rule.  What they devised instead was a representative republic with democratic or popular checks.  In this scheme, "the people" initially consented to form a government, and then checked its operation as long as that government lasted.  Accordingly, the Framers conceived of each branch of government exercising its own collective judgment; then, that judgment was "checked" by the people.  How did that popular check work?

In the legislative branch, the legislators were supposed to exercise their judgment.   The judgment of senators, originally appointed by state legislatures, was checked by the House of Representatives whose members stood for popular election every two years.   In the executive branch, members of the electoral college were supposed to exercise their judgment as to who would make a good President, but their judgment was checked by the fact that, like the members of the House, they were popularly elected.

In the executive branch, the grand jury stood between the prosecutor and the citizen, while citizens could sue government officials for trespass -- and demand money damages from a civil jury -- if they searched or made an arrest without first obtaining a judicial warrant.  The existence of an armed populous or general "militia" was thought to be a check on a standing government army commanded by the President.

In the judicial branch, judges were to exercise their judgment, but how was the judgment exercised by unelected and life-tenured judges supposed to be checked by "the people?"  And how were individual unjust statutes that emerged from Congress or the abuse by the executive branch of its discretionary enforcement powers checked by "the people?"  This check was thought to be jury independence.

Notice how structural changes made in the intervening 200 years have moved us away from popular checks on judgment and towards more direct popular rule.  We now have the popular election of senators.  We quickly replaced the independent judgment of the electoral college with popular voting.  Grand jury indictments have been undermined by the availability of "informations" issued by judges.  Government officials now cloaked with sovereign immunity from civil suit have little incentive to seek warrants.  The general militia was supplanted by "select militias" or the states' national-guard units that are now formally and functionally a part of the national standing army.  All this has been accompanied by the gradual reduction of juror independence.  Rather than operate as a popular check on legislation, jurors are now supposed to follow the rules laid down by the legislature and simply assess whether the facts are as the executive branch officials allege them to be.

These changes have resulted in a major shift in the way we view government.   Instead of conceiving of it as a separate and potentially dangerous institution that is the servant or agent of the people and whose independent judgment is constrained by popular checks, government has come to be conceived as embodying the will of the people itself.  Identifying the will of government with that of the people themselves, however, legitimates the exercise of enormous power by government officials to do what they will -- independently of justice and the rule of law, or even of true popular consent.  And this shift has also allowed majorities and minority factions to gain control of the legislative branch to get their way at the expense of the rights of their fellow citizens, unimpeded by the sort of check provided by jury independence.

True, if a law is unconstitutional, the judiciary can strike it down under the doctrine of judicial review.  But if it is "merely" unjust, or unjustly applied to a particular defendant under particular circumstances but is not unconstitutional -- and not every unjust law is in fact unconstitutional -- then there is no judicial check on that whatsoever, so long as juries are not independent.

Who Guards the Guardians?

What of the obstacles that jury independence poses for law enforcement, obstacles that would motivate most current and former prosecutors to oppose its implementation?  If legally recognized by courts, jury independence certainly would lead to the acquittal of some persons who are now being convicted.  Otherwise, why bother to advocate its implementation?  The issue is not whether truly guilty people would escape conviction -- that actually is the proposal, not an objection to it -- but whether the right guilty people would be acquitted: those who have been guilty of violating an unjust law; or those against whom an otherwise just law has been applied unjustly.

Let me begin to answer this by asking whether you think that every law that is both duly enacted and constitutional is just or justly applied in every case?  Of course not, you say.  But if not all laws are just or justly applied, don't we need some institutional method of identifying these situations?  What exactly is the check in our system on the enforcement of unjust laws or the unjust application of otherwise just laws?  Voting against legislators (or elected prosecutors) is one possible check, although I submit that it is not a very effective one -- particularly if it is the majority or a well-organized minority that supports a particular law.  The "public choice" reasons for this are too numerous to examine here.  Suffice it to say that the multiplicity of factors involved in supporting one candidate or party over the other typically swamps any opposition to a legislator's support for one unjust statute.  And this problem is aggravated when both parties support an unjust law, as is commonly the case.

Given the existence of political "market failure," then, how else can we specifically counteract the operation or the enforcement of unjust laws enacted by popularly elected legislatures?  How do you tell whether a law that is duly enacted is unjust or unjustly applied?  What is the institutional mechanism by which that assessment is made one case at a time?  I can think of no other way than by letting individual defendants raise this issue before citizen juries who must then consider the justice of the laws or their application.  Remember, only if a lot of juries concur will general enforcement be inhibited in a serious way.  But if a lot of juries do concur, then that says much about the justice of the law according to the judgment of the people.

For those who object to placing an "unreviewable" discretionary power in the hands of twelve citizens selected more or less at random, jury independence must be put in context.  Right now, legislators exercise the unreviewable power to refuse to enact an unjust law.  If they think a provision is unjust, they have the discretion to refuse to enact it.  Right now, prosecutors exercise an unreviewable power to charge or not charge guilty offenders at their discretion.  They have the discretion to refuse to prosecute an unjust law.  Unless they find the statute under which they are prosecuting unconstitutional, however, judges do not have the discretion to refuse to convict guilty offenders because they believe a law to be unjust.  So where in the judiciary, a co-equal third branch of government, is there discretion to find a particular law unjust, as opposed to unconstitutional, or unjustly applied?  You find this power where the Founders found it: in the jury.

Randy E. Barnett is the Austin B. Fletcher Professor at Boston University School of Law, and author of The Structure of Liberty: Justice and the Rule of Law (1998).

The Flattening of Reason
by Anthony J. Sebok

The Problematics of Moral and Legal Theory
Richard Posner
Cambridge, MA: Harvard University Press, 1999
Cloth: $31.00
Pp. xiv, 320

The Problematics of Moral and Legal Theory pulls together some of Chief Judge Richard Posner's most recent meditations on the practice of philosophy and its connection to the academy and to law.  The style of book is at times brutally honest, extremely funny, and refreshingly personal. The book’s most unusual section is based on last year’s infamous Harvard Law Review article (111 Harvard Law Review 1637) in which Posner mocked not only moral philosophy, but a large number of its leading practitioners.   The article elicited responses from parties offended by its tone and content, and for a while it caused a stir.  Although I am tempted to revisit the question of whether it was fair for Posner to characterize his targets -- the "academic moralists"?-- as either careerists or hypocrites (or both) (69), I want to go beyond the controversy of last year and look at the book’s wider themes.

Judge Posner’s argument is that moral theory cannot make a difference to law.   He initially (and somewhat narrowly) defines moral theory as the analysis of the duties we have to others, by which Posner means the acts that we ought to take in spite of what we want to do if all that mattered to us were our self-interest or sentiments. (4)   His argument has three parts.  The first is that moral theory doesn’t really exist, because its alleged body of knowledge is trivial (that is to say, it makes no practical difference to how people behave).  Second, even if moral theory might have some practical value in general, it has no practical value to law because there are no legal questions to which morality would make a difference.  Finally, Posner argues that what should make a difference in answering legal questions (for he is no nihilist) are questions that have an empirical answer, such as questions of economics, sociology, and psychology.

Posner’s Opening Bid: Moral Theory is Trivial or Nonexistent

According to Posner, moral theory is trivial because there are no interesting moral universals. (4)  Anything that is possibly true is at such a level of abstraction so as to be useless.  The most compelling evidence that he adduces for this claim is that there is a lot of moral disagreement among intelligent people at the retail level, that is, on questions of specific policies, such as abortion and euthanasia.  A second, less compelling argument he presents is that there has been tremendous disagreement between whole societies about fundamental moral questions.

Furthermore, Posner is not sure that there is even a subject to be studied called moral philosophy.  That is not to say that he does not think that there is such a thing as theorizing about morality -- after all, his book is a theory about the phenomenon we call morality.  But a theory about morality might tell us that people don’t act for moral reasons.  This is Posner’s view.  He thinks that people act for a variety of reasons -- specifically, sentiment and self-interest -- which are not affected by arguments about moral theory.  He observes that human action can be completely explained by sentiment and self-interest, and thus moral philosophy is otiose.  The fact it is not needed goes a long way, in his mind, to proving that it doesn’t exist.

The final element in Posner’s argument about the irrelevancy and functional nonexistence of moral philosophy is that it can’t change people’s behavior.   Where a moral duty is set out at some level of specificity (such as, "one ought to support affirmative action"), moral philosophy makes no difference to what people do.  This is for two reasons.  First, he observes that "for every argument on one side of a [interesting] moral issue there is an equally good one on the other side." (41)  But the real reason moral philosophy cannot change people’s behavior – Posner’s second reason -- is that knowing what is moral has little or nothing to do with wanting to do a moral act.  Simply knowing something to be "true" does not produce a reason for action.  A moral "ought" might be true, yet of no practical interest to its knower: as Posner points out, most criminals know what they "ought" to do.  Most people who kill and rob believe that killing and robbing is wrong, "they just don’t want to act on those beliefs." (39)

Posner’s Backup Position: Moral Philosophy Makes No Difference to Law

In Chapter Two, Posner allows that he may be wrong in his global statement about the triviality/nonexistence of moral philosophy and suggests that those put off by the scope of his original claim might be persuaded by its more moderate cousin: "that moral theory has nothing for law." (141)  He argues, for example that "abstract" moralizing in law, such as that recommended by Ronald Dworkin, is pitched at such a high level that where it is true, it is trivial, and where it is non-trivial it is ad hoc. (118)  This is the same argument he made against John Rawls's form of moral philosophy in the first section of the book.  Furthermore, Posner argues that "casuistry" -- the practice of reasoning from "one settled moral intuition . . . or unshakable precedent in one case to a new case" -- does not affect how people act because the legal conclusions it generates are wholly explicable through other, non-moral explanations.  Where casuistry is the ground for a unique result that seems to go against what our self-interest or emotions would want, the result is usually rejected by the law. (128)  This is, of course, a version of the argument, rehearsed above, that moral philosophy is otiose: here, casuistry is otiose, because all interesting legal results can be explained functionally.

Posner concludes the main portion of his argument by testing his hypothesis about the irrelevancy of moral reasoning to law.  He reviews a wide swath of cases that seem to involve moral questions, and concludes that in each, moral reasoning played no role in the determination of the case’s outcome.  For example, in Brown v. Board of Education, no moral principle did any work, because even the idea that racial segregation in public facilities was immoral -- an idea accepted by most, if not all, of the Justices -- was not used by the Court in its decision.  Instead, the Court relied on empirical observations about the effects of segregation on education. (136-37)  In Washington v. Glucksberg and Vacco v. Quill, the "assisted suicide" cases, the Court completely ignored the "Philosophers' Brief" written by Dworkin and five other famous moral philosophers, because the answer to the cases could be found more simply and easily by reference to the costs and benefits of leaving the matter to the legislature. (130-32)   In Roe v. Wade, the Court avoided discussing the moral status of abortion; according to Posner, the decision "went on to treat the right to an abortion as one largely of professional autonomy." (134)  Judicial treatment of affirmative action reflects, in Posner’s opinion, a similar flight from moral theory.  The courts have wisely relied on a series of somewhat incoherent compromises because the nation could not afford the backlash that would result from either the complete abolition or full application of affirmative action. (138-39)  Even Riggs v. Palmer (N.Y. 1889), the favorite example of moral reasoning in law of both Cardozo and Dworkin, was decided, according to Posner, without recourse to moral reasoning. (140)

Posner's Alternative Foundation for Law: Pragmatism

The second half (Chapter Three and Four) contains a practical and theoretical explanation of Posner’s alternative foundation for legal decisionmaking.   Instead of referencing moral theory, judges, lawyers and law professors must attend to "economic and related disciplines," such as sociology, evolutionary biology, and psychology. (211)  "The only sound basis for a legal rule is social advantage, which requires an economic judgment, balancing benefits against costs."   This is what Posner calls pragmatism.

His practical defense of pragmatism involves a diagnosis of the various ways in which the legal profession and the academy can promote the consideration of social advantage in the legal system.  For example, Posner would have liked the Supreme Court to have asked the following question before they enlarged the rights of criminal defendants in 1960's: will these pro-defendant decisions so impair the protection of property and personal safety that a backlash will form to curtail the rights of those we are trying to help? (161)  Posner notes that this is not strictly an economic question, and thus preemptively responds to the complaint that "all" he means when he calls for more empiricism in law is more economics.

When judges ignore the demand of empirical public policy research, Posner believes that they do so at their peril; they then produce decisions like U.S. v. Virginia, the VMI case, in which the Court imposed its own unprovable vision of sex equality on the people of Virginia without considering whether the exclusion of women from an "obscure" military academy actually harms women and, by extension, society (Posner hints the answer is no).  Similarly, in Romer v. Evans, the Court, motivated by its own sentiments and emotions, struck down a law that reflected the majority’s sentiments and emotions -- without asking whether it is to society’s advantage to modestly burden gays and lesbians in the way Colorado did (Posner hints the answer is no). (175-76)  For Posner, empirical research could be used by judges to determine whether the tort system should be replaced by a system of social insurance, or to determine whether the current system of criminal law should be "replaced by a system in which the methods of scientific criminology are used to identify and isolate, or even kill, dangerous people." (208)

The Real Target or Collateral Damage?  Posner v. Legal Concepts

Once one reaches the final chapter, Judge Posner’s theoretical summary and defense of pragmatism in law, the full scope of his philosophical project becomes apparent.   As he notes in the middle of the book, his attack on moral reasoning in law is broader than an attack on just moral philosophy. (141)  Yet even this confession is a bit of a dodge.

Posner’s concession that he is skeptical about morality playing much of a role in legal decisionmaking hides the more important point that his skepticism goes beyond moral concepts.  He is a skeptic about legal concepts, too.  The shift is subtle.   It begins with his critique of H.L.A. Hart early in the second chapter, but does not really pick up momentum until the end of the book.  One might think that Posner would approve of Hart, who was, after all, a great proponent of the separability of law and morality.  But Posner finds very little to like in Hart.  He complains that Hart assumed that law is only the "enactments of positive law," and that is why for Hart "the common law cannot be fitted to the rule of recognition." (93)  Posner complains that Hart does not even have an entry for "common law" in his index of The Concept of Law (1961, 1994). (93)

As a matter of accuracy, I have to point out that Posner has misread Hart.  Hart intended to reconcile the common law with legal positivism by confronting and rejecting John Austin's command theory.  Furthermore, Hart discusses common law reasoning ("communication by authoritative example") in Chapter Seven of his book.   But there is a lesson in Posner’s misreading of Hart.  Much later in his book, Posner draws a contrast between pragmatism in law and positivism.  According to Posner, both the positivist and the pragmatist care about the traditional sources of law: "cases, statutes, administrative regulations, and constitutional provisions," in that both strive to achieve consistency between the past (the sources) and the future (the case at hand). (241)  The difference between the two lies in why they care about consistency.  The pragmatist recognizes that "deciding in accordance with precedent may be the best method for producing the best results for the future." (241)  This means, in other words, that social advantage is promoted by taking heed of what our forebears thought about certain problems, and recognizing that, even if our predecessors were wrong, there are social costs to radical changes unilaterally imposed by courts.  The positivist, on the other hand, is motivated by a further concern: the positivist imagines that the law imposes a duty on judges to conform to a system’s legal sources. (241)  Posner clearly thinks that this additional reason is ridiculous, since he thinks that there are no legal reasons for action that cannot be cashed out as functional, non-legal reasons.  The doctrine of precedent, for example, is rooted simply in the fact that previously decided cases are an excellent repository of practical wisdom about public policy, and surprise can be expensive and unpleasant. (242)

This argument against "legal qua legal" reasons for action is the same argument that Posner launched against moral philosophy in the first half of his book: legal reasons are otiose and they do not motivate action.  Under the pragmatist test set out in Chapter One -- that the sine qua non of a successful theory is that it makes a difference in people’s actions -- legal reasons fail.  Legal reasons (whether rooted in constitutional theory, Blackstone's theory of the common law, or Hart and Sacks’s legal process theory) are as mythical and epiphenomenal as the moral reasons produced by Rawls’s reflective equilibrium, Aquinas's theory of the basic goods, or Mill's harm principle.  Just like morality, according to Posner, legal decisionmaking can be wholly explained by reference to self-interest and sentiment (what he calls, in law, "social advantage" and the "puke test"). (255-56)  As Posner’s discussion of administrative law shows, concepts like "institutional competence" and "separation of powers" are useful shorthand for the pragmatic judge, but any lawyer who actually believes that those concepts have any meaning independent of the consequences they produce is as deluded as a lawyer who believes that the terms "right," "the good," or "fair" have an independent meaning.

Instrumental and Normative Reasoning

Early on in his book, Judge Posner declares that all reasoning is "instrumental reasoning."  All a lawyer can do is "advise a person, or, for that matter, an entire society about the consequences of alternative paths to the goal that the person or society has chosen." (46)  We cannot reason between goals, which is another way of saying the we do not have reasons for our goals.  In Posner’s mind, individual and social goals stand outside of our system of reasoning: they are facts that can change only when the material conditions surrounding the individual or society changes or when the individual or society is persuaded, through nonrational methods, by a charismatic leader. (85)  This view excludes the possibility that ideas -- as opposed to self-interest or sentiment -- can be reasons for action.

But I take it that normative reasoning, as opposed to instrumental reasoning, takes as its starting point that ideas can be reasons for action.  In a system of normative reason, one wants to know what one ought to do; and the answer to that question is provided by the reasons generated by the norms.  Normative reasoning involves, among other things, the rational reexamination and reappraisal of the goals within a system of norms.  Thus, it is possible that one will come to recognize that what one ought to do is different from what wants to do, and that one might have a reason to do what one had, up to that moment had no desire to do.  All this can occur even in normative systems that do not directly refer to morality -- such as tort law, in which judges and lawyers analyze and reflect on normative concepts such as "causation" and "reasonable."

It may not bother Posner to admit that along with moral philosophy, The Problematics of Moral and Legal Theory jettisons legal concepts and all forms of normative reasoning.  He is convinced that he is not simply recapitulating the postmodern attack on rationalism and conceptualism in Western philosophy because, as he notes in his discussion of Duncan Kennedy and Stanley Fish at the end of the book, the crits are not pragmatists.  They think that because ideas play no ultimate role in our practical reasoning, instrumental reasoning in law or politics will always be hobbled by ideology. (279)  While the postmodern response to Posner’s faith in social science is easy to predict, I think that it is interesting to reflect on one aspect of that response and what it says about the very nature of Posner’s project.

For example, Posner chides Fish for making too much out of "doctrinal aberrance" in First Amendment doctrine.  Posner suggests that First Amendment doctrine is like "the U.S. defense strategy during the Cold War . . . our front line was the Elbe, not the Potomac."  Accordingly, the courts are engaged in a costly battle at the front lines (where lots of worthless speech is protected, worthwhile feelings injured, etc.) "but the home front is secure."  The aberrances are supposed to melt away when one realizes that the goal is not to protect concepts but "the home front." (279)  I assume that Fish (after remarking on Posner’s choice of metaphor) would ask: what does Posner mean by the "home front?"  Ostensibly, Posner is referring to the "core" free speech values that everyone agrees should be protected. Fish might want to know who "everyone" is, and how we know, other than by a priori assumption, that our current cocktail of First Amendment and libel laws really is protecting the core.

I would want to ask a different question.  Assuming (as Posner does) that judges do not directly look to social advantage and try to squelch their own sentiments when deciding these cases, what is it upon which they are relying?  They say that they are using concepts like "liberty" and "honor" when thinking about the First Amendment issue, and they say that they are using concepts like "public figure" and "duty" when considering the libel issue.  It is hard to see how judges are "really" using these categories as proxies for social advantage or their own emotional responses.  It is likely that in many cases there is no simple answer -- certainly not available ex ante -- based on the goals Posner would normally have courts use.  Instead, the judges (and the lawyers and professors arguing about the case) seem to regard the results of these arguments as reasons for their subsequent actions.  The reasons are not an epiphenomenon of the goals.   Instead, the reasons help construct the goals which are then reflected in action.   Contrary to what Posner claims, normative concepts -- some moral, but most non-moral -- actually make a difference in many legal questions.  In fact, they can sometimes be much less indeterminate than either of Posner’s preferred sources of decision, social advantage or the "puke test."


The final impression one has of Chief Judge Posner’s view of the world is one in which judgment has been flattened into two broad, undifferentiated categories unhelpfully called "social advantage" and "sentiment."  Not only does this model fail to give a particularly good explanation of human action, it does not fit with the experience that people have of critical reflection and judgment.  Reasoning within normative activities -- aesthetics, morality, or law, for example -- involves working within systems that have multiple goals, values, and reasons for action.  The utility of normative reasoning is that it recognizes the diversity of ends in life and exploits this diversity by creating a mechanism that provides for reflection and choice -- not just, as Posner would have it, instrumental calculation or unreflective emoting.

Judge Posner is basically a monist.  He would reduce, if he could, all systems of reason down to a single goal, and recast all norms as instruments dedicated towards the achievement of that goal.  I have argued elsewhere that law is not a monistic system of reason; and, I suspect, neither are most interesting normative systems monistic in nature.  The cost of monism for law is that it flattens the conceptual universe in which the lawyer operates: all legal categories (like "duty," "sovereignty," or "cruel and unusual") become mere artifacts of some other, hypothetical super-category (like social advantage) or of mysterious irrational urges.  One need not worship legal concepts, like the formalists, but one can take them seriously and recognize them as having a coherence that is subject to rational reflection and revision.  To borrow Benjamin Zipursky's felicitous phrase, this would be a truly pragmatic approach to legal concepts.  (See "Legal Malpractice and the Structure of Negligence Law," 67 Fordham Law Review 649 (1988).)   As he and John Goldberg have recently pointed out, Justice Cardozo was a pragmatic conceptualist in tort law when he rejected flattening negligence law into the monistic pursuit of social advantage.  (See "The Moral of Macpherson," 146 University of Pennsylvania Law Review 1733 (1998).)  The point of Cardozo's The Nature of the Judicial Process (1921) was to explain how legal concepts (such as duty) interacted with other normative concepts (such as morality).

This is what Judge Posner has missed.  Throughout his book, Posner pays far more respect to Holmes and Nietzsche than to Cardozo and Dewey.  And the price, I believe, is that Posner’s anti-conceptualism produces a strange and unattractive pragmatism.

Anthony Sebok is Professor of Law at Brooklyn Law School and is the author of Legal Positivism in American Jurisprudence (1998).

Editors’ Note: For other Books-on-Law reviews of Chief Judge Posner’s works, go to the review by Stephen Guest, the review by Judge Jon O. Newman, or the review by Jerome McCristal Culp, Jr.  Judge Posner’s latest book is An Affair of State: The Investigation, Impeachment, and Trial of President Clinton (Harvard University Press, 1999).


Where you have the last word...

  • Sebok gets it right. Posner cares as little for legal reasoning as he does moral reasoning. I had not seen that!

    Dennis Patterson
    Rutgers University-Camden
    School of Law

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