• Barthelme, Frederick & Steven.  Double Down: Reflections on Gambling and Loss.  Review by Ronald K.L. Collins.

• F. H. Buckley.  The Fall and Rise of the Freedom of Contract. Review by Kellye Y. Testy.

• Crapanzano, Vincent.  Serving the Word: Literalism in America from the Pulpit to the Bench. Review by H. Jefferson Powell.

• Langum, David J.  William M. Kunstler: The Most Hated Lawyer in America. Review by Ramona Ripston.  Reply by David J. Langum.

• Lessig, Lawrence. Code and Other Laws of Cyberspace. Review by Joel R. Reidenberg.

• Talkback

The Bill Kunstler I Knew
by Ramona Ripston

Like most people pursuing justice, Bill Kunstler was a complicated man.  Americans seem to expect their heroes to be simple and unthreatening.  Kunstler was anything but.

I met Bill Kunstler sometime in 1963, at a dinner party in Great Neck given by some mutual friends.  He dominated the conversation that night, and everyone was enthralled by him. Whether his stories were true or not didn't matter.  He was a first-rate raconteur, telling his tales with flourishes, flair, and embellishments.  His listeners were all extremely liberal.  We hung on Bill's every word about the civil rights movement and the arrests in the South of freedom riders who were part of a campaign organized by the Congress of Racial Equality (CORE).  The goal of the campaign was to challenge the segregation of the waiting and eating facilities in bus and train stations.  To most of the listeners, the stories were fascinating.  To Bill Kunstler, the experience changed his life.

As a board member of the New York Civil Liberties Union (NYCLU), I knew quite a bit about a civil rights case Bill had been handling for the ACLU. Bill spoke about that case as well.  It involved William Worthy, a black journalist from Baltimore who had gone to China in violation of America's travel restriction.  His passport had been confiscated when he returned home.  Worthy later traveled to Cuba and was arrested upon his return for entering this country without a valid passport.  Bill Kunstler represented him through the appeal and eventually won. That case also inspired Bill to become a lifelong fighter for justice.

Just as the Worthy case and what was happening in the South changed Bill's life, listening that night to him describing in excruciating detail what was happening in the South changed mine.  When shortly afterward I was offered a staff position at NYCLU for an infinitesimal salary, encouraged by Bill I couldn't say no.

Failed Journey

The book, William M. Kunstler: The Most Hated Lawyer in America, is more interesting in the failed journey taken by the author than for what it tells us about Bill Kunstler.  A committed libertarian, Professor David J. Langum agreed with Kunstler's desire to fight government oppression but disliked many of the clients Bill represented in that quest.  Langum undertakes to review Kunstler's lifework in detail, but ends his research and the book almost exactly where he started.  Along the way, he is never able to figure out who Bill Kunstler is, although that appears to have been his primary motive at the outset.

To be fair, I should say that I write this review as an admirer of Bill's.  His willingness to forego personal income and luxuries, his energies and creativity, his quest for equality and world peace were all qualities and values that have to be admired.  That he craved public attention, had a huge ego, was a womanizer, and often told exaggerated and conflicting stories about himself make him not unlike most politicians (including our current President), as well as many successful lawyers I have known.

Langum writes about many of the interesting cases Bill took on and the creative legal theories he developed, but he fails to do it in a way that makes the cases nearly as exciting as they actually were.  Bill's autobiography and that of his partner, Arthur Kinoy, tell many of the same stories. When Kunstler and Kinoy tell the tales, however, they are gripping and make one anxious to turn to the next page. This is not so with Langum's book.

Langum does report on some of Kunstler's important legal victories and defeats and some of the brilliant legal strategies he and Arthur Kinoy resurrected, which originally had been developed by the Reconstruction Congress after the Civil War.  He describes in great detail the circus surrounding the Chicago Seven trial and the complexities of the role Kunstler played representing the Attica prisoners in 1971 during and after the uprising.  All of that is quite absorbing.

Bill practiced law for many years with his younger brother Michael, but as the civil rights movement demanded more and more of Bill's time, he was not often at their offices on Fifth Avenue near 42nd Street.  In 1963, Bill and Arthur Kinoy decided to set up the new firm of Kunstler, Kunstler and Kinoy, having Michael deal with the daily requirements of the law firm.  Kunstler and Kinoy were very different, but their strengths complemented each other.  One was the strategist, the other the courtroom implementer.  They became known as "the new KKK" to the delight of their movement clients.

Langum declares in the preface that it is impossible to discuss all of the cases and movements in which Kunstler was involved, and that is true.  But it seems to me that some very important ones were omitted.  I'd like to talk about two.

There is only a very short reference in the book to Freedom Summer, organized in 1964, and no reference at all to the Council of Federated Organizations (COFO), a unified Mississippi movement that sponsored Freedom Summer.  Organized by the ACLU, the National Lawyers Guild, and the NAACP, Freedom Summer was created to attract lawyers who would go to Mississippi to protect COFO workers and college students working to register black voters.  During that summer, three of the participants in the project disappeared: Michael Schwerner, the Summer project director; James Chaney, a COFO worker; and Andrew Goodman, a summer volunteer.  It took authorities many weeks to find the bodies.  That shameful event in American history and the struggle that ensued to punish the perpetrators confirmed for Kunstler that, all too often, justice is illusive.

Another such event was the subpoenaing of anti-war activists in 1966 by the House Un-American Activities Committee (HUAC).  A day before the scheduled hearings, Kunstler, Kinoy, and lawyers from the ACLU and the Guild went to the Washington federal court to ask for an injunction stopping the Committee.  Judge Howard Corcoran enjoined the Committee from proceeding – the first court in history forbidding a Congressional committee from proceeding with a hearing.  By midnight, a hastily convened three-judge appellate court overruled Corcoran's order.  It was, however, the beginning of the end of HUAC.

Kunstler & the ACLU

As Langum tells us, Kunstler did not always agree with the ACLU, although he was a member of the board of directors for many years.  The ACLU's defense of the First Amendment when it represented Nazis who were denied a permit to march in Skokie, Illinois, where thousands of Holocaust survivors reside, made Bill quite angry.  Although he felt that the Nazis were entitled to free speech, he did not want the ACLU to represent them.  He never explained, however, how he expected the First Amendment right to be vindicated if those committed to the Bill of Rights were unwilling to take the case.

Whether it was a change of heart or the circumstances of the case is not known, but in the mid-1980s, Kunstler and the ACLU represented a flag-burner all the way to the United States Supreme Court. [Texas v. Johnson]  "I'm a strict First Amendment supporter," he said at the time.

Kunstler was not only a lawyer, but a writer of books and book reviews, including twelve books of poetry.  He was a radio show talk host.  He lived life to the fullest, and by every account, was well pleased with how it all turned out for him.

The accounts of his two marriages – the first to Lotte Kunstler, the second to Margie Ratner – and his love for his four daughters, although not described in detail, do communicate his warmth and compassion on a personal level.

As the author of this book points out, William Moses Kunstler was someone who was both hated and loved.  Hated because he always wanted to upset the status quo; loved because he was fearless in fighting for the underdog.  When he stretched the law to its limits in fighting for freedom and equality, he was a hero.  When he did the same thing for terrorists and murderers, he was scorned.  But Bill was a lawyers' lawyer, regardless of who his clients were.

Did he undertake his causes because of dedication to our U.S. Constitution?  Or, did he do what he did because, as Alan Dershowitz once said, "His support of free speech was because it was a tactic of the left."  Who knows?

Collective Memory

Will he be remembered by lawyers who are today's public interest lawyers?  Perhaps, the question really is: In this time of fleeting fame, will any of us be remembered at all?  Certainly the "Radical Lawyers in Modern America" chapter in the book will give young people starting out in the legal profession today much to think about, even though the law and its relationship to social change is certainly different from what it was in the 60s.

Bill is an inspiration to those of us still fighting for justice and equality.  His energy, creativeness, sense of humor, and love of life are qualities we all strive for.  Bill once said, "Good and evil are always at war  .  . .  the role of good men [and I add women] is always to fight against evil, hoping they can hold the line and not go under."  For some of us, those are the words that keep us going, as we fight each and every day for the rights to which Bill Kunstler dedicated his life.

Ramona Ripston has been the Executive Director of the ACLU of Southern California and the ACLU Foundation of Southern California since September 1, 1972.  She is the first woman to direct the activities of a major ACLU affiliate, the Southern California affiliate being one of the largest in the country with 30,000 members.  She is responsible for all phases of ACLU programs, including litigation, lobbying and education, and she supervises a staff of 36 employees.  Ms. Ripston has written and spoken extensively on the rights of women (including reproductive freedom), as well as the Voting Rights Act, the rights of the accused, poverty and civil liberties, the police and the Constitution, and censorship and the First Amendment.  She has also been recognized as a Woman of Achievement by Women For, and among her many honors she is the recipient of the William J. Brennan, Jr. Civil Liberties Award by the Center for Human Rights and Constitutional Law.

Editors' Note: For more information on William Kunstler, see his autobiography (with Shelia Isenberg), titled William M. Kunstler: My Life as a Radical Lawyer Citadel Press, 1995 updated edition).

William Kunstler was such a controversial person that there are bound to be both Kunstler-haters and Kunstler-lovers, the former desirous that any biography be a slash attack leaving blood on the floor and the latter, the true believers, desirous of hagiographic depiction of sainthood. Indeed, one prospective publisher turned down my manuscript on the ground that it was too even-handed and that sales would be increased if I pleased one of these two crowds completely.  I wanted to write an account of a life as actually lived, however, and I found much to like in Kunstler and some to criticize.

I already have received a review from a Kunstler-hater who criticized me for being insufficiently judgmental in my analysis of Kunstler.  Now, I have this review from a true believer who feels I have made a failed journey because I insufficiently praise the man.  I invite the reader to see whether that characterization is correct.  I do not believe it is.

Ms. Ripston makes several factual errors.  I never stated that I dislike many of the clients Kunstler represented; indeed, that is not my true position.  Many of them I liked, several of them I did not; in either case, those feelings were irrelevant to the biography.  Nor did I omit reference to two matters she scores me for overlooking: Freedom Summer and the 1966 HUAC hearing.  I referred to them briefly, in accordance with the criteria I set out in the preface for which matters I would cover – essentially, how important they were to Kunstler's career.  In fact, in his own autobiography Kunstler gives these two matters relatively little attention.

The central biographical question regarding Kunstler is why a man who was almost childlike in his need for admiration and a sense of belonging went so far in making statements that he must have known would cause public condemnation. Although Ms. Ripston states that I was "never able to figure out who Bill Kunstler is," in fact, I do address that question.  Perhaps a true believer would not care for my answer.

David J. Langum is a professor of law at Cumberland School of Law, Samford University, Birmingham, Alabama.  He has written several books of biography and legal history, and has received the James Willard Hurst Prize in American Legal History and the Caroline Bancroft Prize.  He serves on the board of directors of the American Civil Liberties Union of Alabama.

Serving the Word: Literalism in America from the Pulpit to the Bench
Vincent Crapanzano
New York, NY: The New Press, 2000
Cloth: $27.95
Pp. xiii, 406
ISBN: 1565844122

The Dilemma of Interpretation

American culture is heir to several distinct traditions, all of which converge on the proposition that the authoritative Word is simply to be obeyed.  The Protestantism historically dominant in our culture arose, of course, out of and through the rejection of medieval exegesis and the claims of the medieval Church to interpretive supremacy.

Not altogether independently, concern over the threat "interpretation" poses to the authority of written law is a recurrent theme in the post-Reformation English political and legal tradition.  In the early 18^th Century, Bishop Benjamin Hoadly warned King George I that "[w]hoever hath an absolute authority to interpret any written or spoken law, it is he who is truly the Lawgiver to all intents and purposes, and not the person who first wrote or spoke them." (John Chipman Gray, The Nature and Sources of the Law 172 [1921])  Enlightenment thought, finally, often associated the idea that authoritative texts must be construed with the systems of religious and political oppression the philosophes were seeking to undermine.

In the early Republic, these mutually re-enforcing themes often came together in both religious and legal contexts to produce rather bald rejections of the entire enterprise of interpretation (or construction, there being no systematic distinction between the two terms).  Elbridge Gerry, for example, told his fellow members of the First Congress that "all construction of the meaning of the Constitution, is dangerous or unnatural, and therefore ought to be avoided." (Annals of Congress, vol. 1, 574 [1789])  This impulse, as I suspect most theologians and lawyers would acknowledge, is both understandable and problematic.

Language is manipulable, and when a text has normative significance for a community or in a dispute, the temptation to manipulate its words in the name of interpreting them is always going to be present.  At the same time, interpretation seems inevitable and unavoidable.  Representative Gerry might prefer not to construe the Constitution, just as a religious believer may desire simply to follow the Word of God, but questions arise and disputes erupt.  Authoritative texts demand application – indeed, that is part of what it means to say they are normative – and application involves, without significant exception, interpretation.  How is a community with a controlling Word to satisfy this necessity, and yet avoid the perils of wayward (mis)readings?

An Anthropological Approach to Fundamentalism

Most discussions of these issues take part within such communities – or between culturally adjacent and warring ones – and as a result even the most dispassionate analysis blends into partisanship.  Any brief survey of contemporary American religious and legal writing will, I think, confirm this.  Serving the Word, by the distinguished anthropologist Vincent Crapanzano (CUNY), is a refreshing and illuminating exception. Crapanzano, whose previous field work and scholarship extended from Morocco to South Africa to the Navaho of the United States Southwest, has brought anthropology's tools of sympathetic but detached analysis to one response to the dilemma of interpretation that is widespread in contemporary American religion and law – that is, literalism.

Within the broad religious stream of American evangelical Protestantism, Fundamentalists often appear to outsiders (even fellow evangelicals) the least comprehensible. Committed, like all evangelicals, to Scripture as authoritative, Fundamentalists can seem to turn that commitment into a bizarre fetishism, in which such issues as the adequacy of Noah's ark, as described in Genesis, to the task of holding the animals two by two assumes greater importance than the great themes of Law and Gospel.  "The Pulpit," Part I of Serving the Word, which rests on Crapanzano's extensive field work among Fundamentalists, skillfully interweaves extensive quotation from interviews with his own reflections on the substance and significance of the conversations.  The result is a fascinating examination of the role of biblical literalism in the lived experience and religious faith of Crapanzano's subjects.

Fundamentalism's strongly asserted claim to fidelity to the literal Word of God, Crapanzano convincingly shows, is a comprehensible (if, in his view, flawed) response to the existential need for certainty experienced by its adherents. For the Fundamentalist, the questions of election (by God to membership among the saved) and sanctification go directly to the most basic questions about the value and meaningfulness of human life.  Biblical literalism anchors the individual believer's personal sense of salvation, while providing him or her with a ready means for confronting and managing the challenges to Fundamentalist beliefs presented by the surrounding culture. Non-Fundamentalist accounts of life, history or, for that matter, the meaning of the Bible are displaced by an extension of the Fundamentalist narrative of salvation back onto the biblical texts and outward onto history and society.  Fundamentalist literalism tends to generate a self-understanding that is, at one and the same time, personally warm (Crapanzano repeatedly comments on the hospitality and willingness to talk of the Fundamentalists he interviewed) and intellectually closed.

A Critical Review of Originalism

In Part II of Serving the Word, "The Bench," Crapanzano juxtaposes to his inquiry into Fundamentalist literalism a study of constitutional originalism, the school of legal thought that insists that interpretation of the U.S. Constitution must adhere to the meaning of the original constitutional text.  The differences between the subjects of his book's two sections dictated significant differences in his method of investigation.  Fundamentalism is a long-standing (and expanding) religious movement with millions of adherents; Fundamentalist views on how to read and apply the Bible govern, or are supposed to govern, the entirety of the Fundamentalist's life.  Originalism is a theory or approach (or rather set of related approaches, a fact that Crapanzano nicely lays out) to the proper way to carry out a specific legal task.  Only a minority of constitutional lawyers and judges (to be sure, an important and politically powerful one) are originalists.  Despite all of the talk about the Constitution as the American civil religion, a dubious notion that Crapanzano persuasively analyzes, no one thinks of originalism as a fundamental guide to the meaning of human existence.  In the place of the extensive field work within religious communities and institutions that laid the basis for "The Pulpit," therefore, Crapanzano's basic tool of research for "The Bench" was reading; "I read through literally thousands of pages of theorizing legal interpretation." (275)  And, in some ways most importantly, Crapanzano found that he "share[d] a frame of reference, a culture, a discursive mode, with the lawyers that I did not share with the Fundamentalists." (324).

Sharing a frame of reference need not entail sharing a viewpoint, and (as Serving the Word acknowledges in the sentence before the one I just quoted) Crapanzano's analysis of originalism is sharply critical – and often rather personal in tone.  Robert Bork "was in fact an anti-intellectual – an ideologue" and an "extremist." (199; 209) Justice Antonin Scalia's opinion in Romer v. Evans (1996) discloses the "emotional tone – the 'spite' – in which [he] wrote his dissent," (238) and his recent Tanner Lecture reveals his "epistemological naiveté." (260) Originalist scholars who write about the Constitution's historical meaning display a "traditionalism" that may rest on "a desire to justify the status quo (and their position in it), a need for structure, a fear of change, disappointment with the present, a longing, a nostalgia, for the past." (249)  Crapanzano is a sophisticated reader, and many of his specific points seem, to this reader at any rate, well-taken, but the tenor of his discussion irresistibly shifts Part II of Serving the Word away from the anthropological stance of disengaged empathy which pervades Part I even when Crapanzano is critical of the logic or open-mindedness of his Fundamentalist interlocutors.  In substance, "The Bench" becomes, against its author's wishes, an "internal" contribution to the debate over originalism.

Is There a Common Thread?

Crapanzano is well aware of the discrepancy between the tone and substance of the two parts of Serving the Word: in his conclusion, he notes that he "was disturbed by this asymmetry and thought seriously of rewriting the law chapters, or even the chapters on religion." (326)  His comments on why he decided to retain the differences in approach are interesting, but in this review I would like to look at the other side of the question.  In what way is this book about a single topic?  Given the great differences between Fundamentalism and originalism, do they really have anything in common?  As I read Serving the Word, their most significant common thread in Crapanzano's view is not the (roughly) similar view of textual interpretation he believes is held by Fundamentalist believers and originalist judges.  It is, rather, the relationship between their literalism and their moralism.

Crapanzano believes that American society generally is pervaded by a moralizing, individualistic approach to understanding human existence.  "As I have suggested, the dominant idiom by which Americans describe and evaluate their social and cultural reality is moral, not political." (339)  What Fundamentalism and originalism share is a particularly strong form of the general preference for thinking in a "moral idiom." (22)  In each, a vigorous insistence that one is subordinating one's own judgment and will to the commands of an authoritative Word serves in fact as a means of self-vindication, if not self-aggrandizement.

Literalism in scriptural interpretation provides the Fundamentalist with a religious and moral stance that is, by self-definition, irrefutable and infallible. The non-Fundamentalist is, by definition, lost in sin.  Literalism in constitutional interpretation provides the originalist with a rhetorical stance that invests personal moral outrage with supposedly impersonal legal authority.  The non-originalist is, by definition, illegitimately substituting personal preference for constitutional truth.  In both cases, literalism restricts or impairs the ability and willingness to listen to the other, and to seek compromise for the sake of the political community.  Given the vital importance to democracy (as Crapanzano understands it) of openness and willingness to compromise, this raises the question (which Crapanzano as a formal matter does not fully answer) of whether Fundamentalism and originalism are genuinely compatible with democracy.

Commitment & Democracy

This last issue is indeed an important one, although I do not think that it is problem limited to, or even particularly evidenced by, Fundamentalists and originalists.  All strongly-held beliefs resist questioning and compromise; for many, perhaps all of us, there are at least some positions, beliefs, and commitments that simply cannot be waived or ignored.  I do not mean to suggest that there are no differences among individuals or between groups in the ability to cooperate with those with whom they disagree, but the fact that this is often difficult, and at times can be impossible, is one of the moral circumstances of human life.  A fundamental flaw in some of the recent writing on topics such as deliberative democracy is a failure to recognize that conflict sometimes cannot be resolved, save by some method of choosing who will win and who will lose.  Perhaps the most important contribution of Serving the Word lies in the reminder that the practice of democracy requires a constant struggle between personal commitment and political community, not because some of us are defective democrats, but because none of us should be undiluted majoritarians.

H. Jefferson Powell is Professor of Law & Divinity at Duke University.  His most recent book is  The Constitution and the Attorneys General (Carolina Academic Press, 1999).

Editors' Note: Professor Powell's book, The Constitution and the Attorneys General, was reviewed for Books-on-Law by Judge Louis H. Pollak (U.S. District Court, Eastern District of Pennsylvania).  For another Books-on-Law review of related interest, see Dennis Patterson's review of Richard S. Markovits, Matters of Principle: Legitimate Legal Argument and Constitutional Interpretation(New York University Press, 1998).

Code and Other Laws of Cyberspace
Lawrence Lessig
New York, NY: Basic Books, 1999
Cloth: $30.00
Pp. 230
ISBN: 046503912X

Code and Other Laws of Cyberspace is an excellent and thought-provoking look at the regulatory forces shaping cyberspace.  In this visionary work, Professor Lawrence Lessig challenges the myth that cyberspace is incapable of regulation, and he argues persuasively that our notions of liberty and rules are undergoing a transformation as we are forced to make value choices not previously confronted in constitutional theory.  While the focus of his analysis is surprisingly U.S.-centric for a work addressing the global network, Lessig's arguments still have important international appeal.  This book is a must-read for anyone interested in the law of cyberspace and network governance.

Debunking the Cyber-Libertarians

Professor Lessig synthesizes rule-making in cyberspace around four regulatory centers: code, norms, markets, and law.  In presenting this vision, Lessig debunks the view of Internet libertarians who say that the Net is outside the scope of regulation.  Lessig argues, first, that "West Coast Code" (or computer code) is as regulatory in character as "East Coast Code" (or law emanating from Washington, D.C.).  While neither Silicon Valley nor Washington, D.C. has a monopoly on its type of code,  Lessig's point that the very architecture of cyberspace offers control of information flows is profound.  Technical rules and protocols are themselves critical regulators of cyberspace.  In these terms, the "code" becomes the constitution for cyberspace.

At the same time, Lessig points out that "code" is not the sole regulator of behavior in cyberspace.  Social norms form an important aspect of control in cyberspace, whether those norms are formed locally or remotely.  Similarly, market regulation (such as pricing and terms of service) has a powerful and central constraining effect on behavior in cyberspace.  Finally, Lessig points out that law is still present in the equation.  Indeed, he argues that law may regulate the architecture itself (as does the Computer Assistance for Law Enforcement Act), or may change behavioral norms.  Although he focuses on U.S. law, foreign law also may have a direct effect on cyberspace. The French telecommunications law requiring that Internet service providers make filtering software available to subscribers and the European Union's Directive on data privacy are but two examples in which law will affect architectures and information flows on the Internet.

Translating Constitutional Values for Cyberspace Regulation

The recognition that technical code is not static leads Professor Lessig to an insightful discussion of the capability of government to regulate and of the ways constitutional values may be translated for cyberspace regulation.  He argues that open code, as opposed to proprietary code, reduces the capacity of government to impose requirements on citizens. At the same time, while open code might make it harder for government to control the myriad of software developers around the world, open code can also facilitate the capability of government to impose particular software modules for products sold in its territory.

This ambiguity reflects in some measure the translation problem that Lessig brilliantly identifies.  He points to tough choices that are due to latent constitutional ambiguities.  But, he treats these issues strictly from an American perspective.  Foreign legal systems do not have the same difficulty, however, in reconciling free speech values with other concerns.  Although particular ambiguities may be a very American phenomenon, the translation of governance values to cyberspace will be a universal problem.  Other countries, though, may have a far easier time adopting new governance values and rules for cyberspace than the United States.

The Privatization of Law-Making

As Code explores the transformation of cyberspace, Professor Lessig observes a deeply significant and troubling trend toward the privatization of law-making. His example of the anti-circumvention rules in copyright law is quite telling.  Rather than protect intellectual property directly, the law protects code by making it illegal to alter technical safeguards for copyrighted works.  In effect, this legal protection of technical code enables the copyright owner to customize or privatize intellectual property rules specifically through technical means.  This is a particularly disturbing trend, since the rules for cyberspace involve public issues, not merely issues of purely private concern.

Privacy issues in cyberspace highlight this trend.  Lessig, however, seems to focus too narrowly on intrusive conduct and the constitutional protections against state invasions of privacy.  Data privacy includes a broad range of fair information practice standards ranging from transparency requirements to restrictions on secondary uses of personal information.  Lessig omits discussion of these critical features of data protection and the lengthy public debate going back to the 1970s.  Perhaps as a consequence of his narrow view, he assumes that privacy is a marketable value and appears to ignore the widely adopted position outside the United States that data protection is a basic right of citizenship.  This explains, for example, his sanguine view of  P3P, a protocol still in development that would enable web sites to disclose their privacy practices and allow web surfers to filter sites according to those disclosures.  Yet, this solution advances the privatization of law-making in cyberspace, rather than promoting public debate on the content of privacy rights.

The Dual Sovereignty of Cyberspace

Code offers an insightful analysis of sovereignty that reflects on this dilemma of law-making.  Cyberspace creates a dual sovereignty.  Citizens are subject both to laws of a physical place and the rules of cyberspace.  Professor Lessig contends that this duality creates perpetual competition between rule-sets.  Given this, he reaches a logical conclusion, that governments will and should reassert their power to regulate.  If cyberspace activity produces undesirable impacts on the citizens within a physical territory, the sovereign government of that physical territory legitimately can intervene, and arguably would be remiss in not intervening.  The difficulty, however, arises in whether and how the sovereign can act effectively.

Oddly, Lessig seems overly optimistic at times about the power of code to resolve social conflicts and overly pessimistic about the capability of governments to regulate the architecture of cyberspace.  He claims, for example, that despite dual sovereignty, cyberspace rules tend to win over real-space rules.  Yet, as cyberspace issues become more important in real space, the economic and social stakes provide higher incentives for governments to exert themselves upon cyberspace participants.  Both marketing and law enforcement pressures are eroding anonymity on the web and, with this erosion, governments increase their capability to target regulatory action.

Perhaps to counterbalance the optimism, Lessig concludes on a rather dark note.  He believes that cyberspace structures are political and, as a result, political institutions should be involved in the decision-making.  Still, he argues, society is not yet capable of resolving conflicting values in cyberspace, because courts are ill-equipped to deal with constitutional ambiguity, legislatures have lost public trust, and technical code writers ardently seek to avoid policy debates.  Lessig's pessimism seems especially dark in the Internet's international context. For the constitutional ambiguities and the perception of legislative betrayal may not be as stark outside of the United States.

All in all, Code and Other Laws of Cyberspace makes an outstanding contribution to the debate on rights and regulation in cyberspace.

Joel R. Reidenberg is Professor of Law and Director of the Graduate Program at Fordham University.  His work in information technology law focuses on rule-making in cyberspace and on data privacy issues.  Among other books and articles, he is the author of "Resolving Conflicting International Privacy Rules in Cyberspace," 52 Stanford Law Review (forthcoming).

Editors' Note: For a conversation with Professor Lessig about his latest book, see Gary H. Anthes's Computerworld interview (2-7-00).  For a Books-on-Law review of related interest, see Keith Aoki's review of Andrew L. Shapiro's The Control Revolution: How the Internet is Putting Individuals in Charge and Changing the World We Know (PublicAffairs, 1999).

Imagine two sensible men gambling against insane odds.  They know they will fail, yet they continue, gleefully.  They lose, big time.  And when they do, the casino accuses them – based on bizarre charges – of cheating. Next, our anti-heroes find themselves facing the prospect of a Kafka-like criminal trial where law counts for little and where a verdict hinges on the best told tale.  A national newspaper then runs with the story, virtually convinced of the brothers' guilt.  When it's over, three hellish years later, a judge dismisses the case at the request of the prosecuting attorney.

Rather like life in a post-modern play.  Or to put it differently, our two gamblers stumbled into the Twilight Zone, that "middle ground between light and shadow," between the "pit of man's fears, and the summit of his knowledge."  But Rod Serling's "fifth dimension" this is not. It is a far stranger place – it is the wild world of Frederick Barthelme and Steven Barthelme, co-authors of Double Down.

Theirs is a  confessional memoir, the story of the brothers' sometimes exhilarating and frequently awful years in the clutches of Mississippi casinos. It is artfully recounted in the first-person plural, and the second and third person as well.  This true story is told against the psychological backdrop of their early family life in Texas, where values were gleaned from a hard-working father, a loving mother, a family of five children, and a free-spirited approach to life.

Double Down is a book about two losses: the loss of family (father and mother) and the loss of money (earned and inherited).  Two brothers, two losses, two lives spiraling downward into the vortex.  But it is more.  It is a meditation on the thrill and misery of the risks we take to live beyond mere existence.  Think of it, too, as a tract about the human condition and the codes of behavior by which we live, or should live, or by which we cannot ever quite hope to live. As fact so often tumbles with fiction, one of the authors, Frederick, also wrote Bob the Gambler (Houghton Mifflin, 1997), a novel about the gambling life.)

Why Regulate?

Last year, the National Gambling Impact Study Commission (NGISC) attempted to bring rationality into an irrational realm when it recommended that the dangers and risks of gambling be "posted in prominent locations in all gambling facilities."  The Commission also offered 21 other recommendations to protect against the evils of gambling.  One recommendation, a more paternal one, related to "pathological gambling."  Gambling facilities, it urged, ought to be required by law to "refuse service to any customer whose gambling behavior convincingly exhibits indications of a gambling disorder."

Even without the NGISC's findings and recommendations, the National Coalition Against Legalized Gambling could have a field day with Double Down.  For the story of the Brothers-Two (both professors of English) is packed full with examples of the perils of gambling.  Take how these two fifty-something guys squandered their inheritance – that from-the-grave gift courtesy of their father's hard-earned wealth. To them, money was not real, it was a mere "abstraction," something that satisfied their "need for excitement, thrills."  So excited were they that the brothers dropped over a quarter-million dollars at black-jack tables and in slot machines.

"Gambling takes up residence in your imagination."  Sounds like the kind of message heaped on compulsive gamblers by old-time moralists or modern-day therapists.  But no, it was one of many of the Barthelmes' detached observations about their psyches.  Theirs were minds burning with "gambling fever;" minds secretly yearning to lose; the minds of "gambling junkies" determined, against all odds, to beat logic.

"It is as good to lose as to win.  There is only a shadow of difference between them, and that shadow is insignificant."  No Enlightenment logic here.  Yet that is how the two highly-educated University of Southern Mississippi professors saw it as they played their orange chips ($1000) into the a.m. life at the Gulf Coast casinos.  "Losing," they add, "never feels like the worst part of gambling.  Quitting often does."  And so they lost – Frederick alone dropped $23,000 in a single night.  They even relished the "strangely heroic" feeling of losing. 

Is this, then, not the case par excellence for paternalism? .  .  .  for that kind of sound direction their father would have provided if only he had not died?  The plight of the Barthelmes seems to be the situation the NGISC envisioned when it urged lawmakers and casino owners to adopt measures to protect those with "gambling disorders."

For all their confessions, however, the Brothers-Two do not – even in their more sober moments – see the need for much government or private intervention. There is no real social problem here since all that was lost was their own money, which is theirs by right to lose.  It is no different, so the argument goes, than if they had invested insanely in the stock market.  That is the basic point often made by gambling's defenders.  (Of course, their story never gets too complicated because they had no real family who stood to suffer from their reckless gambling forays.)

Double Down celebrates, though in curious ways, the all-too-human desire to engage the casino "carnival" life with its post-modern message: "you have no chance  .  .  .  you will lose whatever you do."  The Barthelmes knew that; they accepted it; and they lived their lives in that high-risk world where the absurd joy is in the playing.  Hence, freedom is the ability to live life for what it is – a crazy crapshoot.  By that measure, the State ought to secure such freedom, not deny it.  For what is freedom if not a gamble?

Casino Justice

Unfortunately for the Barthelmes, the casino riverboat life was not just about the joys of risk-taking and the nonchalant acceptance of loss.  It was also, as it came to pass in 1996-97, about allegations of criminal conspiracy to defraud the Grand Casino in Biloxi.  The formal charge: "conspiracy to cheat the casino by 'acquiring knowledge, not available to all players,' from [a] dealer."  Though they strongly denied all such charges, they were booted from the casino.  So was the blackjack dealer, whose gaming license was suspended while hearings before the state Gaming Commission were pending.  In time, the brothers would twice be criminally indicted for felonies, with a four year penalty for each if convicted.

Like the company towns of yesteryear, casino towns thrive on casino power.  Thus the terrifying realization by the Barthelmes: "When you're treated badly by a large [casino], it makes you angry, but it also makes you think how powerful the [casino] is, how much it contributes to the local economy, to the political infrastructure, to political parties, to campaigns, to judges. Casinos in Mississippi contribute a lot."  Ponder that and you will soon enough "realize how little you count in the grand scheme of things."

Where power is the coin, justice is the exception.  That, at least, is how it seemed to the two English professors who found themselves face-to-face with a criminal justice system more sympathetic to power than people and more concerned with bureaucracy than with determining their guilt or innocence.  The prospect of their trial dragged on and on, with the district attorney offering a "deal" if only they would implicate an innocent blackjack dealer.

To add to the lunacy, Brett Pulley, writing on the front-page of the New York Times [March 7,1999], quoted an unidentified opinion as if it were a verified truth: "According to court documents and people involved in the case, the two men were in the casino  .  . .  when surveillance cameras observed them receiving signals from the dealer and being paid for the hands they did not win  .  .  .  ."  Fact is, they were only accused of such a crime – the presumption of innocence got lost in all the journalistic hype.

No Reason

In the end, the brothers won  .  .  .  if you call three years of anxiety, a criminal indictment, being booked, and paying costly attorneys' fees "winning."  People v. Barthelme never went to trial. So lacking was the case against the two that the prosecutor, relying on the state's own expert, ultimately concluded that "[t]here's simply no reason to believe  . .  .  that there was impropriety on the Barthelmes' part." [The Commercial Appeal (Memphis, Tenn.), Aug. 10, 1999]  Hence, the district attorney asked the judge to drop the matter, which he did.  Case dismissed.

There is, to be sure, far more to Double Down  .  .  .  about family and destination, sorrow and cruelty, life and law, and how sane people sometimes act insanely.  What Double Down lacks is  final answers, categorical imperatives.  Instead, it offers facts wonderfully woven together in ways to make us pause and think about the mysterious fictions by which we live and die.

Ronald K.L. Collins is Co-Editor of Books-on-Law.  His first book, co-authored with David Skover, is The Death of Discourse (Westview Press, 1996).  Their next book together is on Lenny Bruce.  This review appeared recently in IntellectualCapital.com, and is reprinted with permission.

The Fall and Rise of the Freedom of Contract
F. H. Buckley
Durham, NC: Duke University Press, 1999
Cloth: $65.95
Pp. 456
ISBN: 0822323338

In his now famous book, The Death of Contract (1974), Professor Grant Gilmore pronounced Contract dead.  Shortly thereafter, some went on to document that rather ominous claim, most notably Patrick Atiyah, in his extensive two-volume work The Rise and Fall of Freedom of Contract (1979).  Content with sound bites, however, most have done little to consider deeply what Gilmore said after his death announcement.  (For one exception, see Symposium, 90 NW. U. L. Rev. 1 et seq. [1995]).  But the next (and last) phrase of his book is the more ominous one:  "[W]ho knows what unlikely resurrection the Easter-tide may bring?" asked Gilmore.

Let there be no doubt: the Easter-tide is upon us.  Contract is risen!

And whom may we thank for this (not unlikely) resurrection?  The law-and-economics "movement," according to Professor F.H. Buckley, editor of The Fall and Rise of the Freedom of Contract – a play on Atiyah's earlier title. Buckley of George Mason University School of Law has collected a set of essays that were presented originally at six colloquia sponsored by the George Mason Law and Economics Center and the Donner Foundation between November 1996 and December 1997.  Six colloquia in just over one year, including the relatively luxurious academic semester and summer breaks?  Of course.  This is, recall, a "movement" (2, 41) – a movement in which George Mason has played a defining role.

Buckley's collection of essays attests to this seriousness of purpose, both on the part of George Mason as an institution (many of the authors are on the George Mason faculty) and on the part of the individual writers (many of whom are well-known legal scholars, largely working in the law-and-economics genre).  The 22 essays are introduced by Buckley and then organized into six sections: Free Bargaining and Formalism; Bargaining Around Tort Law; Contracting for Land Use Law; Free Bargaining in Family Law; Bargaining Around Bankruptcy Reorganization Law; and Choosing Law by Contracts.  As Buckley's introduction makes clear, the essays not only reveal the revival of Contract as a discipline in its own right, but also extend its applicability to other areas of law which previously were thought to be more the province of state regulation than private ordering.

Contract's Steady March

It is precisely this extension of a contract regime into these other areas where law and economics makes its more controversial stands.  For instance, in "A Contract Theory of Marriage," Elizabeth and Robert Scott apply contract theory to marriage so as to argue that marriage is properly conceived of as a relational contract into which parties can surrender "ex post autonomy" in favor of enhancing "ex ante autonomy." (201)  In other words, you get to choose now, to be prohibited from choosing later.  The Scotts' essay thus asserts an irony that is at the core of law-and-economics reasoning: we must be able to give up our freedom to be free. (203)  In the context of marriage, this means that contracts "not to divorce" should be enforceable on the theory that in giving up the right to be free from marriage, one earns the freedom to make the marriage commitment.  According to the Scotts, high divorce rates are explained by the inability of parties to make such an enforceable commitment, coupled with the "erosion of social norms promoting cooperation in marriage." (236)

It would have been interesting if the Scotts had tested their analysis by inquiring as to whether such relationships (i.e., those in which the parties cannot make any enforceable ex ante legal commitment) experience higher failure rates than those for which at least some legally enforceable commitment is possible.  Gay and lesbian relationships provide a perfect comparison.  Are gay and lesbian relationships more prone to fail than marriage because they are less legally enforceable?  And, are gay and lesbian relationships in jurisdictions that recognize "domestic partnerships" less prone to fail than those in jurisdictions without those options?  Although the Scotts' essay is one of the longer and more fully developed pieces in the book, the closest they come to such an analysis is the (I think overstated) view that the law is "neutra[l] toward the choice between marriage and nonmaritial options." (204)  While there certainly has been some judicial acceptance of the "primacy of private choice" (id.) in intimate relationships (see e.g., Kellye Y. Testy, "An Unlikely Resurrection," 90 NW. U. L. Rev. 219 [1995]; Martha M. Ertman, "Contractual Purgatory for Sexual Marginorities: Not Heaven But Not Hell Either," 73 Denver U. L. Rev.1107 [1996]), the current divisiveness over gay and lesbian marriage shows that anything approaching "neutrality" is a long way away.

An Accessible Dialogue

The Scotts' essay provides a good example of the extension of Contract ideology that is the hallmark of the law-and-economics legal mind.  Indeed, the theme of the book – one neither hidden nor surprising – is that "private" bargaining often should supplant other methods of regulation, and that it should be unfettered except for narrow limits that are necessary to cure "market" failures (transactions costs, information costs, third party effects, and holdouts). (23)

On the whole, Buckley's book provides a solid sample of this way of looking at the world.  Without exception, the individual essays are well-written examples of law-and-economics-informed reasoning.  Moreover, because of the essay (with brief endnotes) format, the pieces are quite accessible.  With the exception of Alan Schwartz's "Contracting for Bankruptcy Systems" (281-300), and Buckley's own "Free Contracting in Bankruptcy" (301-11), both of which appear in Bargaining Around Bankruptcy Reorganization Law (Part V), the text is free of mathematical models and equations.  This avoidance of some of the more technical law-and-economics work is important to ensure a readership that goes beyond those already "in the club."

Another strength of Buckley's collection is that the essays were first presented as part of conference panel discussions.  Thus, the pieces in each section actually respond to one another and are not simply being grouped thematically.  The reader receives the benefit of an exchange of views among the participants, rather than just each participant's own view.  This dialogue approach is especially robust and enlightening in the book's final section, "Choosing Law by Contract." (325)  There, Bruce Kobayashi and Larry Ribstein begin the exchange by arguing that choice of law (and forum) provisions in contracts should be fully enforceable to discourage inefficient state laws.  While it is not surprising that the authors conclude that the better course of action is to enforce the contracting parties' choice – what is notable is the explicit focus on social benefit, rather than the parties' welfare maximization, as the animating reason for their recommendations.  Michael Klausner, Geoffrey Miller, and Roberta Romano then, in turn, comment on the Kobayashi/Ribstein proposal, all adding considerably to the analysis, so that the section as a whole becomes much more than a sum of its parts.

On the Difference Between Faith and Reason

The same compliment can be paid generally to the book in its entirety.  It is no small matter to have an accessible and well edited collection of interesting conference papers.  Nonetheless, it should be noted that most of the pieces are derivative of work the authors have published elsewhere, and thus do not make dramatically new contributions to the existing literature.  Furthermore, the introduction to the book, which could have added considerably to its usefulness, is perhaps its weakest feature.  Buckley aims to do more than simply introduce the book's essays in summary form, but succeeds in doing less.

He does less, first, by overstating the case for law-and-economics.  For instance, he claims, "Not merely does law-and-economics scholarship offer a compelling normative explanation for free contracting, but rival theories are unpersuasive."  The only rival theories he then goes on to mention are what he broadly calls "neoformalism" and "Kantian" theories, which he dismisses in the most cursory fashion. (2-6)  Other ways of looking at the world (for starters, critical race and feminist legal theories come to mind here) are not mentioned, let alone revealed as "unpersuasive."  While law-and-economics reasoning certainly has made a contribution to law, and is presently enjoying prominence in the legal academy, there are (and always have been) other things going on.  As Arthur Leff once wrote, "If economic efficiency is part of the common law (and it is), so is fiat justitia, ruat coelum [roughly, let justice be done though the heavens may fall]."  (Arthur Leff, "Economic Analysis of Law: Some Realism About Nominalism," 60 Va. L. Rev. 451, 481 [1974].)

Buckley also mistakenly engages in some too-simple explanations and too-casual observations that make him an easy target for common critiques of law-and-economics reasoning.  He states "only consequentialism (in its law-and-economics form) offers a satisfactory defense of free contracting.  The intellectual revival of freedom of contract therefore coincides with the rise of the law-and-economics movement, and this explains why most of the essays in this book are written from that perspective." (2)  There may be more to the story than that.  Buckley does, after all, live in the house that Henry built, and those who support some of the rival theories that are so "unpersuasive" do not likely pay for it (or this project) – but the right-wing Donner Foundation does. Similarly, Buckley's description of Contract as a "promising game" that we must analyze to make clear why it is "more valuable than baseball or hopscotch" (6) places him squarely into the common concern that law and economics takes the real world and its (often harsh) consequences too lightly.

Finally, Buckley claims that law-and-economics is not necessary a socially conservative enterprise (a claim he did not need to make), and fails miserably.  The best example of that failure is his gratuitous explanation of state laws prohibiting gay and lesbian marriage, which he says are "best seen as a method by which the state, through expressive rules, signals its support for child rearing and future generations, through barriers so mild that they were scarcely seen as discriminatory until recently." (20)  Buckley's unusual defense of market fetters reveals that he has apparently missed the burgeoning incidence of gay and lesbian parenthood, and also has failed to appreciate the unlikelihood that gay and lesbian persons just "recently" realized they were being "scarcely" discriminated against.

In sum, readers of Buckley's collection – particularly those who are not part of the law-and-economics "movement" – will be better off bypassing the introduction and going directly to the essays themselves.  Otherwise, the introduction's rankles are likely to undermine the thoughtful analysis the essays reveal.  Those essays, for the most part, make an interesting contribution to a particular way of looking at the world.  That is in sharp contrast to Buckley's explicit and implicit claims that it is the only way to look at the world.

Despite Contract's conceded rebirth, there is a lot that it cannot do.  Most importantly, a "mature contractual regime does not correct structural social inequality." (244)  Indeed, it might even reinforce it.  But who knows what the next crucifixion might bring?

Kellye Y. Testy is an Associate Professor at Seattle University School of Law where she teaches Contracts, Law & Entrepreneurship, and Economic Justice, among other subjects.  Much of her writing focuses on the intersection of business and commercial law with social inequities surrounding race, gender, class and sexuality.  Her most recent publication is the forthcoming University of Georgia symposium article "Adding Value(s) to Corporate Law: An Agenda for Reform," and she is currently at work on "Buy(h)er and Sell(h)er: Critical Reflections on Contractarianism," to be presented at the upcoming Law & Society Annual Meeting in Miami.

Editors' Note: For a book of related interest, see E. Allan Farnsworth's Changing Your Mind: The Law of Regretted Decisions (Yale University Press, 1999), reviewed in Books-on-Law by Dennis Patterson.  For three brand new books of related interest, see Margaret F. Brinig, From Contract to Covenant: Beyond the Law and Economics of the Family (Harvard University Press, 2000); Elizabeth Cooke, The Modern Law of Estoppel (Oxford University Press, 2000); and David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 2000).

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