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Contents | Reviews | Talkback || Archive || Books-on-Law Home
  • Feature: Two Takes on The Politics of Law:
    • David Kairys, editor. The Politics of Law: A Progressive Critique (3rd Edition).  Reviewed by Andrew J. Morris.
    • "Counter-Review" by Robert W. Gordon.

  • Exchange on Heterophobia
    • Daphne Patai. Heterophobia: Sexual Harassment and the Future of Feminism. Reviewed by Christine A. Littleton.
    • A reply by Daphne Patai.

  • Exchange on Shifting the Blame
    • Nan Goodman. Shifting the Blame: Literature, Law, and the Theory of Accidents. Reviewed by John C. Goldberg.
    • A reply by Nan Goodman.

  • Delaney, David. Race, Place, and the Law: 1836-1848. Reviewed by Richard T. Ford.
  • Slotnick, Elliot B. & Jennifer A. Segal. Television News and the Supreme Court. Reviewed by Tom Goldstein.
  • Talkback

Two Takes on The Politics of Law

Revisiting Progressive Legal Scholarship
by Andrew J. Morris

The Politics of Law: A Progressive Critique
David Kairys, editor
New York, NY: Basic Books, 3rd edition, 1998
Paper: $20.00
Pp. 738

Fifteen years ago, Critical Legal Studies was hot.  "Crits" were the leading edge of a rising wave of legal progressivism.  They "trashed" conventional legal scholarship; they collected student disciples; and, traditional scholars charged, they even hoped to capture select law schools.  Amid this excitement, Professor David Kairys (Temple University, Law) published the first edition of The Politics of LawThe book became the leading anthology of progressive legal scholarship, and Kairys now has produced its much-expanded third edition.  Rereading The Politics of Law provides a good opportunity to assess the significance of Critical Legal Studies and progressive legal scholarship.

A Tour of Progressive Legal Writing

The essays in The Politics of Law are grouped under three headings: jurisprudence and legal education, specific areas of law (such as torts and property), and thoughts on progressive approaches to law.  Some essays apply philosophical methods to legal problems; some blend legal history and social policy prescription; and some are unadorned political polemics.  Some essays are penetrating and subtle, whereas others are simplistic and utopian.  All are written by authors who consider themselves progressive.  Many of these are true crits, while others are less audacious progressives; and some have graduated to post-critical schools such as feminism, critical race theory, gay and lesbian studies, and personal narrative as scholarship.

Some of the work is superb.  In "The Doctrine of Objective Causation," Professor Morton J. Horwitz (Harvard University, Law) draws on the evolution of the law of causation to support his thesis that American judges have transformed the law into the political instrument of a capitalist class.  Though I find his thesis ultimately unsupported, his technique -- particularly his drawing of political inferences from technical doctrinal changes -- is masterful.

Another stimulating piece is Professor Elizabeth Mensch's (University of New York at Buffalo, Law) brisk "History of Mainstream Legal Thought," a retelling of the ups and downs of American conceptualism.  Mensch has a conventionally realist view of the subject, but her essay is well written and avoids the political reductionism that often mars The Politics of Law.  The book also contains other fine pieces, such as Professor Karl Klare's (Northeastern University, Law) elegant critique of labor law.

Many of the essays are less impressive, however.  Far too often, writers forgo analysis or argument in favor of posturing, a desire to shock, and the peddling of sheer historical nonsense.  Professor Richard Abel's (UCLA, Law) analysis of tort law, for example, is acclaimed in progressive circles, but typifies the incoherence of many of the book's arguments.  His effort to persuade us that tort law is wickedly capitalist and "intensifies social inequality" (454) depends on a series of bizarre assertions about a pre-capitalist era of spontaneous communal caring.  Abel believes that this halcyon era was ended by the introduction of capitalist rules, such as the requirement that tortfeasors compensate victims whom they injure.  To Abel, this was a sinister development, because it extended "the commodity form" to torts and strengthened the acceptance of private property.   It also, Abel asserts, created "a market in sadomasochism." (456)   All of this is incoherent, and not only because of the sadomasochism.  Abel's goal is redistributing income without regard even for the occurrence of an injury.   But injury, it remains fair to say, certainly is a sine qua non for anything that could be considered a "tort" system.

Equally hard to grasp is Professor Lucy A. Williams's (Northeastern University, Law) "Welfare and Legal Entitlement: The Social Roots of Poverty."  Williams's message is that "[l]egal rules, norms, and practices play a central part in maintaining and legitimating poverty in the United States." (570)  This argument is not new, dating back at least to Charles Reich and the welfare entitlement battles, but Williams pushes it to more radical heights.  She adds a heavy dose of identity politics and rejects the welfare movement's embrace of legal rights.  Instead of granting rights to welfare payments, she asserts, the law should eliminate the distinction between such payments and wages paid for work.  She sees both as payments to dependent persons; the only difference is that the law, because of its eighteenth-century system of rights, arbitrarily "privileges" wage workers. (582)  This argument follows, she contends, from the realist premise that legal distinctions are human constructs rather than categories that can be discovered in nature. (575-582)

The Defining Marks of Critical Legal Thought

Although these writers address diverse topics, their shared political outlook stamps their writing with distinctive attitudes and arguments.  Crits and their progressive cousins generally combine bits of legal realism and neo-Marxism to justify a rejection of rights-based, rule-of-law liberalism.  The central idea in critical legal studies and modern legal progressivism probably is the attack on legal reasoning as powerless to limit answers to legal questions.  Like the more skeptical realists, these writers see legal reasoning as crippled by wars among contradictory legal principles.  Legal reasoning is a mirage, Kairys argues (16), or is, as Lucy Williams charges, a conscious sham. (577)  This leads to the important conclusion that legal argument is merely polysyllabic camouflage, "mystifying" decisions that are, in fact, the exercise of political power.  The law is not a set of neutral rules, but an engine of oppression.

These indeterminacy and mystification arguments dictate that legal formalism is both rampant and oppressive.  All legal categories, including rights, are incoherent.   Progressives contend, for example, that the legal concept of property has no meaning other than that conferred by regulation.  They reject the more modest, modern-liberal concern that property rights should be limited in deference to equality, and instead reject any reliance on rights whatsoever.

Thus progressive legal writers follow the realists in rejecting the separation of law and politics.  David Kairys's introduction to The Politics of Law is a readable pr馗is of this well-known argument.  To progressives, the argument supports a general rejection of neutral liberal legal systems in favor of some undefined but state-dominated substitute.  Writers in The Politics of Law not only reject the traditional separation of public and private, they pummel it tirelessly.   This collapsing of the public and private, the legal and political, is central to their world view because it vindicates the left's traditional rejection of private ordering. (497 et seq., 559-60)  To progressive writers, the very idea of private ordering, like the idea of rights on which it depends, is incoherent.  This advances well beyond the modern liberal discomfort with private ordering as merely offensive to egalitarian sensibilities.

Finally, the writers in The Politics of Law repeatedly embrace a defining tenet of postmodernism -- that objectivity is impossible, and reality is only a human construct.  This dictates that all perspectives, whether on moral or empirical questions, are equally valid.

The Paradoxes of Critical Legal Thought

These views may seem to flow in a smooth line, but they contain contradictions that are utterly fundamental -- and apparently invisible to the writers in The Politics of Law.

One example is the book's tireless pounding on formalism.  As in many such attacks, this generally involves setting up straw caricatures and ritually putting them to the torch.  The contradiction, however, is that these writers are themselves hard formalists.  To them, political concepts -- hegemony, oppression, capitalism, alienation, false consciousness, class domination -- are sufficient to generate legal answers.  Indeed, the arguments in The Politics of Law repeatedly boil down to the formula: (1) "The American economic and social order is [insert one: hegemonic, oppressive, capitalist, etc.]; therefore (2) [insert targeted aspect of legal system] is bad."  This certainly fits Elizabeth Mensch's depiction of formalism as the use of a few "general and powerful -- but clearly posited -- conceptual categories" to deduce specific legal rules. (30)

Sometimes this formula is expanded, so that the conclusion about the legal system entails, in turn, a conclusion about practical political consequences.  One would expect that the view that law is indeterminate, and that legal institutions are primarily political, would point plainly to the practical conclusion that the role of law should be minimized.  But, to a person, these writers conclude that the role of the state should increase, and increase dramatically.  Though this is a glaring non sequitur, the writers in The Politics of Law often dodge the issue by simply asserting a future in which the legal system withers away and we achieve a state of non-hierarchical, non-reified, non-oppressed, post-capitalist bliss.  The realists were far better at facing the implications of their critiques.  Rather than resort to ahistorical dodges, they instead followed their doubts about determinacy to the rational next step of direct rule by policy makers with minimal mediation by legal institutions.

Critical legal scholars betray their claimed realist heritage in other ways as well.   Realists were driven largely by an interest in the practical effects of legal rules and, consequently, in empiricism.  But crits show no interest in testing their views against facts.  To the contrary, many would deny that such testing is possible, because they deny the possibility of objectivity.  This denial collides resoundingly with their own passionate belief that oppression is rampant. (e.g., 548)

But if there is no objective reality, why do the pages of The Politics of Law drip with moralism?  An obvious example is Professor Kimberle Crenshaw's (UCLA, Law) essay, "A Black Feminist Critique of Antidiscrimination Law and Politics."  While she probably is the most self-indignant of a pretty huffy lot, she also is a fervent believer that reality is only a construct and that objectivity is merely the "reification of white male thought." (377)  The problem, of course, is that this view of objectivity entirely undercuts the idea that any moral high ground can exist at all -- or that her indignation can ever be justifiably righteous.

"The Personal is Political" Goes to Law School

The contributors in The Politics of Law show no interest in tackling these contradictions.  This may be because, in the end, these progressives are playing a very different game from other writers who inhabit our law schools.  The progressive writers are political activists first and last -- intent on "transformative lawyering" (581) -- with little apparent interest in real legal systems.  They want to cut through the intermediate phenomena of rules, institutional limits and such, and directly reach their desired policy ends.  But that is not what any known concept of law permits, to the extent that "lawyers" want to remain distinct from anyone else.

Easier to Be Critical Than Correct?

Given these political goals, it is no surprise that recent progressive writing has failed to affect the path of the law (except to spawn still more "outsider" writing).  This contrasts sharply with legal realism which, as Elizabeth Mensch points out, was modified and absorbed into the academic, jurisprudential, and judicial mainstream.  This failure of progressive legal scholarship is no accident, because many progressive writers, especially critical writers, apparently do not care to be taken very seriously.

Many still favor pose over argument; even the tone of their writings often is guaranteed to alienate readers not already in their camp.  For many critical writers, posturing -- "trashing," as the crits call it -- and provoking outrage is essential to the progressive experience.  A good example is Professor Duncan Kennedy's (Harvard University, Law) "Legal Education As Training for Hierarchy," another essay honored by the crits as one of their charter documents.  But this tone, like the political formalism that also marks these essays, is obviously unproductive, if one's real goal is to persuade.

If you pick up The Politics of Law already convinced that American society is a "chronically racist, sexist, homophobic and jingoistic one" (709), and convinced that those political beliefs are suitable premises for deciding legal questions, then you may agree that a conventional legal system is an intolerable obstacle to fixing fundamental political wrongs.  But if you do not already hold those views, the book offers little to persuade you. The Politics of Law can be great fun.   It does not, however, suggest that, in a generation, writers struggling with the real problems of the American legal system will have to reckon with leftist legal thought of the late twentieth century.

Andrew J. Morris, B.S., J.D., University of Virginia, B.C.L. Oxford University, is a trial and appellate litigator at Mayer Brown & Platt in Washington, D.C.  He writes occasionally on common law and legal theory.

The Real Politics of Law
by Robert W. Gordon

Andrew J. Morris pictures The Politics of Law (edited by David Kairys) as a strident and incoherent left-wing rant.  With only a few exceptions, he says, the authors agree that American society and its law are so oppressive as to be unreformable by means of a "conventional legal system."  Yet, paradoxically, they believe that a "dramatically" stronger state can end this oppression.  And they undermine both positions by adopting a post-modernist stance that "objectivity is impossible and reality is only a human construct," which leads them to disdain empiricism and renders their moralism meaningless.

I must disclose at the outset that I am a contributor to The Politics of Law.   But, until I was asked to respond to Morris’s review, I had not read most of the other essays in this edition.  Having now read them, I can report that they bear almost no resemblance to Morris’s account of them.  The 32 essays are too many and varied to summarize.  But let me tell you about just a few of them.

A Sampling of Five Essays

Elliott Currie's "Crime and Punishment in the United States" (382-409) begins by pointing out that, compared to other industrialized nations, the U.S. has both incredibly high violent crime rates and draconian sentences (in actual time served).  He takes aim at conservative "myths:" that the justice system is "soft on crime," that prison reduces violent crime, that prison "pays" by producing social benefits greater than its costs, and that nothing else -- especially social policies directed to reducing poverty -- works.  His critique is careful, rigorous, and entirely empirical: comparative criminological research explodes the myths.   Massive increases in incarceration result in only modest improvements in property crime rates, no improvements in violent crime rates.  He proposes expanding alternatives that have been proved effective in the U.S. or elsewhere: use the justice system for prevention as much as punishment, invest in intensive supervision of juveniles and treatment for drug offenders, get illegal guns off the street, prevent child abuse and neglect, help to integrate the working poor into society through income supplements.

David Cole, "Two Systems of Criminal Justice" (410-433) points out that any justice system must balance the competing values of convicting the guilty and providing due process and fair play to the accused.  Our system, he says, eases this task by limiting its generous package of constitutional rights to the privileged.  The fact that most people arrested for crimes are minorities makes it easier for middle-class people to adopt a policy of "lock-‘em-up-and-throw-away-the-key."  The law protects homes from unlawful search and seizure, but allows police to stop and frisk anyone on the street.  The law gives rights to jury trial and post-trial appeals, but provides almost no money for defense counsel and rejects appeals based on counsel’s "ineffective assistance," even when lawyers have conducted trials drunk or drugged or asleep.  The law forbids race discrimination in juries, but allows peremptory challenges that accord prosecutors effective power to strike black jurors.   The law provides longer sentences for crimes committed by blacks (e.g., crack cocaine dealing and use) than by whites.

William H. Simon, "Contract versus Politics in Corporation Doctrine" (511-538), critiques a field of academic research and teaching.  The field of corporate law focuses its attention on techniques for controlling managers’ abuses of discretion at the expense of shareholders and creditors; recently, it has come to believe such controls are best supplied by capital markets and the threat of take-overs.  This focus, Simon argues, diverts attention from Americans’ historical concerns with corporations as aggregations of concentrated political and economic power.  Simon recalls the "economic republican" tradition that aimed to keep enterprises small in scale, limited in capital, egalitarian in internal structure, cooperative in business alliances, relatively independent from domination by distant suppliers of credit, and rooted in local communities.  He sees prospects for revival of some republican values, especially those connecting corporate action to the interests of workers and communities, in the rise of pension-fund intermediaries representing employee-investors and in new methods of skilled flexibly-specialized production that give incentives to firms to widen worker participation and investment.

Janet Halley, "Gay Rights and Identity Imitation" (115-46) is a brilliant theoretical meditation on identity politics and the attractions and perils attaching to legal strategies claiming that a group such as gays or lesbians is "like" a despised or subordinated race.  Such claims, she argues, usually assume that the group has a shared identity deriving from common authentic characteristics or experiences.  As she points out, however, such "coherentist" assumptions are usually false: many group members reject the claim of identity and the rights of those asserting it to "represent" the group.  Some identity claims are "minoritizing" (we’re distinct from you, e. g. because we have immutable genetic characteristics), some "universalizing" (we’re like you, just another set of variations on realizing human traits and potential).  Halley wants to embrace some "like race" arguments and reject others; particularly, she rejects "immutable characteristics" claims for gays and lesbians, which imply that if members of the out-group could change, they should (e.g., gays should become straight; blacks, white; women, non-child-bearing).

Rand Rosenblatt, "Health Law" (147-71) is a virtuoso short survey of a vast and complicated field.  Rosenblatt sets forth three models of health care that have successively dominated health law and policy.  These are "professional autonomy" (law should protect the authority and autonomy of doctors), "modestly egalitarian social contract" (law should enforce some degree of universal and affordable access to health services), and "market" models (law should enforce and deregulate contracts between competing insurers/HMO’s and employers/consumers that define benefits, quality, practice patterns, and patient remedies).  Rosenblatt concentrates his critique on the newly-dominant market models, which tend to fragment groups into young-and-healthy-member low-cost plans and high-cost high-risk plans, to provide too few mechanisms for ensuring rewards to high-quality care and prevention rather than skimping on care, and to shut consumers out of representation in bargaining.  He ends by proposing legal policies that integrate the three models to take advantage of market incentives and managed-care economies, while re-structuring the system to ensure quality competition and to guarantee access.

Misleading Descriptions & Inaccurate Characterizations

This sample of five of the 32 essays is representative.  Some of the pieces are theoretical, some about a field of doctrine (contracts, property, procedure, labor law) or policy (environmental law, police practices, welfare law).  All are critical of existing practices, which almost all rely on empirical studies to describe. And almost all propose practical, realizable alternatives rooted in already current -- though mostly exceptional or experimental -- doctrines and institutions, or in historical precedents or the social-democratic policies of other countries.

If Morris’s general descriptions of The Politics of Law are misleading, his specific comments are often inaccurate, too.  Richard Abel does not sentimentalize a "pre-capitalist era of spontaneous communal caring"; he simply says that in pre-industrial societies of face-to-face relationships there is no "accident" law: most misfortunes are attributed to divine or natural causes or to intentional wrongs.  Morris completely misses Abel’s main points: that our tort system fails to realize effectively any of its three goals of safety, compensation, and moral judgment; and that some of those goals would be better promoted through stronger administrative risk-regulation and universal social-benefit provision.

A Critique of Pure Fantasy

Morris’s primary critique, however, is that "Critical" legal theorists reject "rights-based, rule-of-law liberalism" and its distinction between "public" regulation and "private" property and "private ordering."  They "attack . . . legal reasoning as powerless to limit answers to legal questions."  They believe law is "socially constructed," which to Morris is the same as denying "objective reality" and claiming all values are relative.  They despise law, but want to expand the power of the state, hoping the legal system will "wither away."  Because they have no faith in any "real" or "conventional legal system" as a remedy for social ills, they have no solutions to "real problems."

If you actually read this book, with its hundreds of pages of sober social description and reform proposals, and nowhere even a hint that the state and law will wither away, you’ll see that most of Morris’s critique is pure fantasy.  But Morris does correctly identify a common theme of many authors (Aoki, Freeman, Gordon, Horwitz, Klare, Mensch, McUsic, Simon, Williams and especially Singer), which is that the law’s distinctions between (quasi-natural) private rights of property/liberty and public "regulation" of those rights are contingent and socially constructed.  For The Politics of Law authors, however, the implication of this insight is that a "conventional legal system" can achieve fundamental change -- not by "dramatically increasing" state power, but by efforts redirecting legal agencies to redefine and redistribute the rights of "private" orderers.

Should labor organizers have a legal right to enter an employer’s plant to organize its workers?  Many states say no, because the plant is the employer’s "property."  Others say yes, because an employer’s bundle of property rights does not include the right to exclude labor organizers: they have a property right of their own, a limited-purpose easement much like a neighbor’s or the public’s easement across an owner’s land to a public beach.  In some states, if organizers enter the plant and refuse to leave, the owner may summon state force (the police, the army) to eject them.  In others, if managers bar the organizers at the door, the organizers may summon state force to insist on access to their property (the easement).

Should compilers of a computerized data-bank be able to exclude users from access to that data?  If users won’t pay the charge, should the compilers be able to call upon state force (injunctions, criminal copyright enforcement) to deny them access?   Should some users -- researchers, satirists, inventors -- still be able to make "fair use" of the data for free?  If the compilers build electronic fences to keep non-paying users out, may users hack through the fences, and what will the state do to them if they do?  Should wives raped by their husbands be able to call upon the law for damages or restraining orders or criminal punishment, or are these "family matters" outside law’s domain?  In each case, the legal system creates the regime of liberty/property rights, then (selectively) backs up the rights-holders with state force.  The choice of whom to call the rights-holder, and thus of whom to back up and how, is always one of legal policy.

Privileging a Default as "Natural" or "Neutral"

Morris is one of many people who dislike this kind of analysis because he wants to privilege one regime of legal "rights" as natural and neutral, and label any changes to that natural regime as "regulation."  Unlike libertarians, he’s willing that some "property rights . . . be limited in deference to equality," so long as we’re all clear that we’re making an exception to our general natural-rights regime, and don’t do it too much or too often.

The "critical" perspective of The Politics of Law authors is that there is no such natural default regime of rights.  The actual legal system has in force myriads of such regimes. Its choices of whom to protect, and by what means, vary considerably from one field of regulation to another and over different liberal-democratic societies.  They have shifted constantly over time, sometimes attaining medium-term stability, sometimes (as in the labor, intellectual-property, and spousal rape examples given above) hotly contested.  They may seem natural to those accustomed to them; but changes in them come to seem natural too.  They are in this sense "socially constructed."  This doesn’t mean, as Morris seems to think, that they are imaginary phantasms.  They are real, and real people are benefited and hurt by their enforcement or non-enforcement.

Morris wants to assert that his position is the obviously correct, sensible, centrist position for a believer in liberal rights and "conventional" legal systems.   Unhappily for him, his view that property rights are natural, rather than the artifices of legal policies, has had to swim upstream against the current of sophisticated thought since Hume and Bentham.  If you think some rights are natural, you have to say what you think they are.  Some natural-law thinkers like John Finnis and libertarians like Richard Epstein are still trying to theorize natural default regimes of liberty/property rights; some legal economists are still trying to set up schemes for initial definitions and assignments of rights that will maximize "efficiency" or "wealth."  But these enterprises command little agreement from others; and, anyway, all conflict with one another.  If Morris thinks he can do better, he is invited to try.

The Politics of Law is chock full of interesting pictures of today’s legal system and challenging proposals for its reform.  I strongly recommend that you ignore Andrew Morris’s attempt to caricature, demonize, and trivialize them, and instead engage with their substance on the merits.

Robert W. Gordon is Johnston Professor of Law and History at Yale University.

Exchange on Heterophobia

Sex Wars Redux: Fear and Loathing in Massachusetts
by Christine A. Littleton

Heterophobia: Sexual Harassment and the Future of Feminism
Daphne Patai
Rowman & Littlefield, 1998
Cloth: $24.95
Pp. xvi, 276

We can assume that in this book, Professor Daphne Patai (University of Massachusetts at Amherst) aims to be provocative (what else explains the main title?), and hits the mark.  If she intends much more than that, however, the project must be deemed a failure.

Let me place my potential biases up front.  I teach employment discrimination, including sexual harassment, in a major law school; moreover, I regularly teach undergraduates in a highly regarded women’s studies program.  I am frequently asked to lecture on, write about, investigate claims of, and counsel alleged victims and perpetrators of sexual harassment.  Thus, I am an "expert" on sexual harassment, and might well be included in the category of feminists who, according to Patai, have a stake in extending sexual harassment regulation far beyond its "appropriate" boundaries.

Nonetheless, I would welcome a rigorous and nuanced account of the ways in which current anti-harassment efforts all too often fail to achieve justice for both women and men, whether as accusers, accused, or affected third parties.  Judges, given an overly rich diet of often disgusting but simultaneously titillating graphic sexual detail, overlook more mundane forms of discrimination; employers formulate ever more elaborate and confusing internal grievance systems more concerned with preventing liability than with preventing harassment; campus administrators take months (even years) to conclude investigations, thereby leaving both accuser and accused in a limbo of uncertainty, fear, and potential abuse.  Certainly a close and critical examination of current sexual harassment law and anti-harassment practices is sorely needed.  Unfortunately, this book does not begin to fill the bill.  It is, to coin a phrase, both over- and under-inclusive -- filled with the very hyperbole, hostility, and bias Patai decries in what she terms the "Sexual Harassment Industry" (or "SHI"), and dotted with odd lacunae papered over with unsupported, and sometimes downright implausible, conclusions.

Attacking the Wrong Straw Woman

SHI is, of course, a construct of Professor Patai’s.  It seems to contain all of the campus sexual harassment coordinators and anti-harassment activists and educators she dislikes or disapproves of, without any stated criteria for inclusion.  Since the category contains exactly what Patai wishes to attack at the moment and nothing else, it provides no information to the reader and no vantage point (except Patai’s of course) from which to evaluate her critique.

Professor Patai’s excoriation of Bernice Sandler, a long-time proponent of equal educational opportunity for women and girls and the recent co-editor of a handbook for campus administrators, faculty, and students, is particularly unfair.  Much of Patai’s critique of anti-harassment training and remediation is that it fails to make women accountable, picturing them as, and indeed encouraging them to become, "perpetual victims, desperate to grasp the helping hand of the law so as to be shielded from the harshness of life, especially from the unrelenting brutality of men[]."  (Again, this is Patai’s characterization of the position of Sandler, her co-editor, and the contributors; the few quoted passages from the book itself are too short and decontextualized for the reader to make any independent assessment.)  Why can’t these women stand up for themselves, asks Patai.

Ironically, it was Bernice Sandler who developed and popularized the most effective self-help tool for a student to use to confront a professor or other person she (or he) believes has engaged in harassment.  Sandler’s suggested three-part letter contains, first, an unadorned description of the conduct; second, the student's feelings about the conduct; and third, a request for action.  In my own counseling of students, I offer this tool routinely.  The exercise of describing the behavior, as objectively as possible, actually does what Patai repeatedly asserts SHI fails to do: it helps the student to distinguish between the trivial and the serious, between clumsiness and offensiveness, between miscommunication and manipulation.

Spinning Trash out of Straw

At this point, the reader of this review might well ask, "But what about the title?"  Indeed, what about it?  I’m tempted to dismiss it as simply a marketing ploy, except for the fact that Professor Patai spends far too many pages attempting to construct a dubious theory that the SHI are out for even bigger fish than cornering the market on sexual harassment policies and procedures in academia.  It appears that they want to (gasp!) abolish the institution of heterosexuality.

Now, for anyone likely to pick up a book with "feminism" in its title, a critique of the institution of heterosexuality is hardly news.  Even in the special context of the academy, this critique has a noble pedigree, including such luminaries as Virginia Woolf (Three Guineas) and Adrienne Rich (Toward a Woman-Centered University).  In order to truly alarm the casual browser in bookstores, Patai must naturalize heterosexuality as it is currently practiced, as though there were no choice except this kind of sex or none at all.  It is this conflated sense of heterosexuality as natural, immutable, and assumed that allows Patai to charge feminism in general, and SHI in particular, with "heterophobia," i.e., "fear of, and antagonism toward, the Other, in the present context men in general, and toward heterosexuality in particular."

I admit that I am particularly tired of having to pledge allegiance to the institution of heterosexuality before I criticize any particular practice that someone deems sexual; but I am even more tired of being accused of hating men because I think women are important in our own right.  Just as one can condemn the selfishness, materialism, and sheer mean-spiritedness of late 20th Century capitalism without giving up hope that a nation with a market economy can support a sense of social justice, one can condemn the selfishness, lack of empathy, and sheer narcissism of people who impose sexually on others without being "anti-sex."  Patai does not seem to recognize the difference.

At one point, she appears to make a distinction, but it is immediately elided.   "My point here is not that a few feminist extremists are making an all-out effort to bring down heterosexuality (though they evidently are doing this).  It is, rather, that the Sexual Harassment Industry, by uncritically adopting the feminist language of ‘power’ . . . is promoting an extremist feminist agenda."

Looking for a Needle in a Haystack

What is extremist about the feminist agenda purportedly promoted by the shadowy SHI, aside from Professor Patai’s characterization of it as anti-sex?  Let’s look at what she calls a "typifying tale."  This is Patai’s interpretation of the Australian writer Helen Garner's critique of the process by which a master at the University of Melbourne, accused of "groping" two women students, was dismissed.

Patai calls this a "rather typical conflict between men and women," although since she fails to specify the nature, duration, or intensity of the "groping," it is hard to agree or disagree with her characterization of this as "typical."   She continues: "Such a struggle, fought stereotypically over the terrain of the female body, extends itself . . . far beyond corporeal geography and rapidly invades the alleged harasser's livelihood, reputation, and family life."  Maybe I’m just one of those feminist extremists, but I am deeply offended by this sentence, which appears to assume, first, that the "groped" women do not experience any invasion of their livelihood, reputation, and family life; and second, that the invasion of these women’s bodies ("corporeal geography") is a more appropriate boundary of struggle than the alleged harasser’s life.

According to Patai, Garner is interested in two questions, both of which she second-guesses.  The first is why the two women students went to the police, rather than attempting to settle the matter in less adversarial ways?  Although Garner doesn’t reach a conclusion, Patai does.  "[I]t seems clear that what happened had much to do with both feminist rhetoric and the instant support given to the students by other women in the college, who resisted more informal solutions."   Again, I am stymied by that vague "groping," but couldn’t this in fact be a crime?  If a stranger jumped out of the bushes and "groped" the students, however briefly, would it be at all surprising that they should look for the nearest police officer?  The fact that they knew the groper might mean that there were "informal solutions" available (Patai does not suggest what those might be, nor whether the University had a reliable internal complaint procedure in place), but says nothing about whether or not a police report is appropriate or over-reactive.

The other question Garner asks is why the master lost his position, "even though on appeal he was found not guilty of indecent assault?"  Once more I am baffled by Patai’s characterization.  Was the master convicted of the crime and the conviction overturned on appeal?  If so, on what ground was it overturned?   "Not guilty" is a verdict, rendered at trial rather than appeal.   Was there something special about the nature of the appeal in this case -- evidentiary rather than procedural?  Or is the Australian court system quite different from ours?  Patai offers no clue. Garner, who knows the characters and is on the spot, so to speak, explains the result in terms of the specifics of the college.   Patai, however, "suspect[s] that the force of feminist ideology played an important role."  How she reaches this conclusion, especially since even Garner did not interview the two women involved, is beyond me; maybe she’s clairvoyant.

Building a House out of Straw

Professor Patai does render detailed and sympathetic accounts of the effects of apparently unsubstantiated charges of sexual harassment on the lives of several very articulate male professors.  These stories do in fact need to be told. It is troubling, however, in a book that takes other feminists to task for telling the story from only one side, that Patai makes little or no effort to be fair to the accusers.

The unfairness that marks these stories also leads Patai into rather obtuse failures of interpretation.  For example, she cites Susan J. Scollay and Carolyn S. Bratt's critique of consensual faculty-student relationships as "improper because (1) they threaten the distance and objectivity the authors consider desirable in education . . .; and (2) they give the ‘appearance of potential favoritism and unfair advantage for the student.’"  She then raps the authors across the proverbial knuckles for what she sees as a contradiction.  "Is an affair with a professor a disadvantage to the student or only to other students?"  Pardon me if I fail to see a contradiction; even in Patai’s characterization of their position, Scollay and Bratt seem quite clearly to be saying it is both.  In addition, regardless of whether or not one believes such relationships -- which are, by definition, not sexual harassment -- should be discouraged, surely it is possible to see that the perception of favoritism can lead to the isolation of the "favored" student by her (or his) peers, thus cutting off an important avenue of learning and experience.  Whether or not this cost is outweighed by the desirability of the affair, it is a real cost to both the individual student and the other members of the class.

Picking the Short Straw

It would be unfair of me to point out the many ways in which Professor Patai misapprehends, misstates, or miscites judicial opinions, statutes, and legal procedures.   After all, she is not a lawyer.  Nonetheless, there are certain passages in which Patai relies on the interpretation of a case or statute for her argument, and these at least should have been subjected to editing by someone trained in law.

Of course, it is hard to know whether to blame the author or the editor for the massive shortcomings of this book.  Patai is not a neophyte.  She is a full professor at a well-respected university, with nine books on her bibliography and prestigious fellowships on her C.V.  Surely she merits the respect of a serious editor who would rein in her wilder leaps to counter-intuitive conclusions and implausible interpretations of others’ work, as well as the unsupported attributions of motive (usually malign) to those with whom she disagrees.  Rigorously edited, this book might not have appeared on shelves quite as quickly; indeed, it might have become a thoughtful article rather than a thoughtless book.  As it stands, Heterophobia may actually tell us more about the specific practices, conventions, internecine battles, and continuing resentments that prevail at Patai’s particular institution than about sexual harassment, feminism, or the future.  It is possible that particular party lines "own" the sexual harassment issue at Amherst in a way that most institutions have outgrown, discarded, or never experienced.  Whether or not Patai has mistaken her small corner of the world for the world itself, however, this book does not admit of any more modesty in its claims than its title.

Christine A. Littleton is a professor at the University of California at Los Angeles School of Law.  Her primary research field is feminist legal theory.  She also writes and teaches in the areas of employment discrimination, disability law, sex discrimination and sexual harassment, and women’s studies.  As an attorney, she concentrates on pro bono appellate work for the California Women’s Law Center, Lambda LDEF and the ACLU.

Editors’ Note: Other reviews of Professor Patai’s book include Cathy Young, Reason, vol. 30, p. 69 (February 1999); Carlin Romano, Philadelphia Inquirer, January 24, 1999, sec. H, p. 1.
Reply to Christine Littleton
by Daphne Patai

I appreciate Professor Christine Littleton's willingness to begin by admitting her biases.  It seems, however, that under the guise of doing so she merely parades her credentials.  Her actual prejudices become clear enough in her charge that I have "naturalized heterosexuality" -- evidently a sin to someone such as Littleton who prefers to see it as an "institution."  (Is this, I wonder, akin to the "institution" of bipedalism, also foisted on most humans from birth?)  By this language, Littleton demonstrates her allegiance to the sort of feminism I criticize, which has given us the phenomenon I term "heterophobia."  I devote a good deal of attention in my book to analyzing precisely this turn within feminism, which has led to the social constructionist dogma Littleton embraces.

Although I am relieved by Littleton’s declaration that she doesn’t hate men, this does not alter the fact that many feminists not only interpret heterosexuality as a patriarchal imposition, but also explicitly blame it for virtually all the ills of the world.  Far from being hyperbolic on this point, as Littleton charges, I carefully document, in one chapter called "Heterophobia" and another called "The Authority of Experience," precisely what various well-known feminists have written about heterosexuality.  To pretend that, in drawing out the deleterious implications, I am objecting to their belief that "women are important in our own right," is disingenuous.  I make no such objection, and have in fact devoted several of my earlier books to making that case.

It’s unclear to me, moreover, why Littleton claims that my book is probably the result of peculiarities of the university at which I happen to teach.  Perhaps she is suggesting that strange things happen in rural New England but not in metropolitan Los Angeles.  If this only were true!  In my book, I show how sexual harassment charges are typically egged on by local feminist forces all over the globe, from New York to California, Canada, Hawaii, and Australia.  Only briefly do I describe the policies at my own university -- neither better nor worse than those of most schools.

Why Bother Arguing?

My objective in writing Heterophobia was threefold: 1) to expose the Sexual Harassment Industry (SHI) by a detailed analysis of its development and claims, attending especially to cases based on frivolous and fraudulent charges -- which the SHI treats as insignificant in number and import; 2) to demonstrate that there exists a feminist antagonism to heterosexuality, evidenced in the work of numerous important feminist scholars and teachers, and that this animus, embodied in sexual harassment law, has by now found its way into school and workplace; and 3) to argue that the result is an erosion of freedom of expression and association, as a climate of fear, suspicion, and vigilance clouds the relations between men and women.  My point is that this turn of events is no accident.  It is the fulfillment of a feminist ideology not supported by most women, probably not even by most feminists, but nonetheless enjoying great influence at the present time.

Beyond merely denying my arguments, Professor Littleton does not address these issues.   Nor does she have anything to say about the principles of sexual harassment law (particularly as articulated in the concept of "hostile environment"), which have brought us to the present pass.  I devote considerable space to these laws -- vague, subjective, and highly problematic as they are.  Current sexual harassment law, of course, rests on the contention that sexual harassment is a form of discrimination. I challenge this shibboleth, expose its questionable underpinnings, and depict its negative effects.  I also attempt to explain where these notions came from, and how they managed to get the foothold they now have.  Antagonism toward heterosexuality is a key component in this process, though it is not always recognized as such.

It may surprise Littleton to know that I am not alone in criticizing sexual harassment legislation.  Even lawyers have done so! Jeffrey Rosen, for example, in a New Republic article (December 29, 1997, p. 19) comments that Catharine MacKinnon has "nearly won the war to transform Title VII from a law that bans sex discrimination to a law that bans sexual expression."

The Feminist Attack on Heterosex

What is unusual about my book (in addition to the stories I recount "from the other side," about both men and women accused of sexual harassment by women) is the connection I make between the development of sexual harassment law and feminist attacks on heterosexuality.  In simply denying that this link exists, Littleton seems to disregard the massive evidence to the contrary, thus implying that a very large amount of feminist writing and teaching is having no effect.

My extensive citations and discussion of the way the sexual harassment literature incorporates the rhetoric of misandry indicates that this is far from the case.   Almost daily we are exposed to newspaper accounts about questionable or fraudulent sexual harassment charges.  Grown women argue that little boys must be retrained, and that to say "boys will be boys" is to excuse patriarchal domination.   Meanwhile, among adults, even fully consensual relations have become suspect (despite Littleton’s assurance that these are "by definition, not sexual harassment").  We recently heard Republican politicians speaking the language of "power differentials" as they discussed sex between willing partners, and many universities and workplaces now prohibit such relationships.  Do they know where that language comes from?  Whose interests are served by all this?  Why has there been so little public resistance to the increasing vilification of men unleashed by the Sexual Harassment Industry?  Why are so few heterosexual feminists protesting the debasement of their sexual desires by a feminist literature that tells them they are brainwashed by the patriarchy?

These are among the questions I address in my book.  And I rest my exploration of them on the work of feminists such as the legal scholar Robin West, who writes about "the harms of consensual sex," and Dee Graham, a psychology professor who explains heterosexuality as a "survival strategy" forced on women by the "Societal Stockholm Syndrome."  What I do, in short, is to describe the logic and ideological coherence defining a particular cultural and historical moment, a moment in which sexual harassment legislation is the conduit by which some cracked and clearly heterophobic feminist "theorizing" has entered the mainstream.

Fairness & the Sexual Harassment Industry

Professor Littleton faults my book for being one-sided.  Let’s be precise about what even-handedness means in the world of the sexual harassment crusades.  Bernice Sandler and Robert Shoop’s book (Sexual Harassment on Campus: A Guide for Administrators, Faculty, and Students (1997)), which I analyze in detail, is typical of the several hundred books produced by and for trainers, consultants, lawyers, and policy-makers (whom I call, collectively, the Sexual Harassment Industry).  This literature -- which has as its explicit aim to teach women and administrators how to be hypersensitive, how to recognize the "devastation" wrought by every form of sexual harassment, how to document charges and bring culprits to justice -- rests on a failure to draw distinctions between the trivial and the serious.

We learn from Sandler and Shoop, for example, that sexual harassment runs the full gamut from sexual innuendoes and bantering, to touching (including giving a shoulder massage), asking for sexual favors, leering or ogling, calling women "cutie pie," sending suggestive notes or e-mail, and writing sexual graffiti, right through making light of someone’s experience of sexual harassment, all the way to threats, stalking, and attempted or actual sexual assault.  Typically, there is no critical discussion in these books of problems raised by such all-encompassing definitions, and of the practices to which they are leading in lawsuit-fearing schools and workplaces.   By contrast, there is a mere handful of books questioning the legal arguments for treating sexual harassment as discrimination, and casting doubt on the claims of uniquely grievous harm done to women ("survivors") by men’s sexual or gender-related words or gestures.  Given this imbalance, it hardly seems excessive for me to have devoted two hundred pages or so to a challenge to the prevailing views.

More importantly, little in the way of explanation has so far been available to those who have seen their own or others’ reputations and even careers ruined by flimsy or extravagant charges, and whose due process rights have been cavalierly disregarded.   So common are these experiences today that even feminists accused of sexual harassment -- such as Jane Gallop, to whom I devote a chapter -- declare that most people view a mere accusation as a finding of guilt.  As Gallop has said: "Simply to be accused of a sexual crime is to be forever stigmatized." (Letter to the Editor, Lesbian and Gay Studies Newsletter, July 1993, p. 2)  For such people, my book is one of the few to which they can turn for a detailed analysis, a sustained critique, and a vigorous protest of the feminist-inspired web that has ensnared them.

Daphne Patai is professor of Brazilian literature at the University of Massachusetts at Amherst, where she also spent ten years with a joint appointment in Women's Studies.  She is the author of, among other works, The Orwell Mystique: A Study in Male Ideology (1984), Brazilian Women Speak: Contemporary Life Stories (1988), and, with Noretta Koertge, Professing Feminism: Cautionary Tales from the Strange World of Women's Studies (1994).

Exchange on Shifting the Blame

The Transformation of American Fictions
by John C.P. Goldberg

Shifting the Blame: Literature, Law, and the Theory of Accidents in Nineteenth-Century America
Nan Goodman
Princeton, NJ: Princeton University Press, 1998
Cloth: $39.50
Pp. xi, 198

According to historians occupying the "left wing" of Legal Realism -- scholars such as Charles Gregory and Morton Horwitz -- the pivotal period in the history of modern tort law was the early to mid-19th Century.  It was at that time, they argue, that American judges, in leading decisions like Brown v. Kendall (Mass. 1850), abandoned the long-standing common law rule of strict (no-fault) liability and instead required tort plaintiffs to prove that the defendant had acted negligently.  Although scholars in this camp differ over what caused these judges to engineer this transformation, they all maintain that its effect was to "subsidize" business at the expense of injured individuals, by shielding enterprises against substantial liability that they would have incurred had the rule of strict liability continued to govern.

In Shifting the Blame, Nan Goodman (a professor of English at the University of Colorado with a J.D. from Stanford) expands upon the Left-Realists’ historical project by arguing that the very same transformation from strict liability to negligence is evident in leading works of 19th Century American fiction.  Thus, she maintains, one finds in the novels and stories of authors such as James Fenimore Cooper, Stephen Crane, and Mark Twain a preoccupation with notions of fault and prudence.  This parallel, she further maintains, is no coincidence, but rather reflects a broad (albeit incomplete) cultural shift in the understanding of human agency and responsibility away from the older model of cause-based strict liability toward a notion of fault-based responsibility. By identifying and analyzing this parallel, Goodman aims to shed light on both the law and literature of this period.

Literature & Law Depicted

The core of the book is found in Chapters Two through Six, which offer interpretations of numerous fictional works that seek to identify similarities between those works and the developing law of negligence.  Thus, Chapter Two asserts that the interactions of the characters of Cooper’s 1823 novel The Pioneers, particularly between the rugged mountain-man Natty Bumppo and the town father Judge Temple, at first depict a conflict between negligence (Bumppo) and strict liability (Temple); later, their interactions reveal a second conflict between Bumppo’s "democratic" conception of negligence and a more elitist conception, to which Temple finds himself drawn.  Chapter Three argues that early 19th Century stories about sea pilots written by Cooper, Richard Dana, and others -- stories that depict their heroes as demonstrating ultra-serene competence in the face of mortal danger -- aimed to lionize the idea of the "prudent man" that stands at the heart of negligence law.

Chapter Four is mainly devoted to a discussion of Twain’s treatment of steamboat-boiler explosions, which, according to Goodman, shows that he shared late 19th Century negligence law's anxiety over the difficulty of tracing responsibility for mechanized accidents to a single, culpable individual.  Chapter Five focuses on Stephen Crane’s 1899 story The Monster, in which a black driver employed by a white doctor is disfigured and permanently disabled while saving the doctor’s son from a fire, thus raising the issue of the doctor's obligation to care for him.  According to Goodman, Crane’s story brings into sharp focus the tendency of the "no duty to rescue" rule of negligence law to operate to the disadvantage of the disempowered.  Finally, Chapter Six argues that examples of early 20th Century pulp fiction, in which mechanized systems (e.g., signals, switches) threaten to produce disastrous train wrecks that are only averted by the last-minute heroics of railroad employees, reveal a deep-seated insecurity about human agents’ loss of control over an increasingly mechanized world.

Lack of Due Care

Unfortunately, Shifting the Blame is more a testament to the pitfalls than the possibilities of interdisciplinary scholarship.  To be sure, it does contain some interesting information (for example, that Twain was deeply hostile to insurance companies).  It also at times, particularly in Chapter Five, illustrates the complexities associated with attributions of moral and legal responsibility for accidents.   In its overall conception and execution, however, the book suffers from serious defects.

Many of the book’s problems stem from the fact that its reach far exceeds its grasp.  Into the confined space of 175 pages, Goodman attempts to cram analyses of more than a dozen works of fiction, as well as numerous judicial decisions and doctrines, not to mention the history of tort law.  Inevitably, then, her analysis comes across as impressionistic.  Literary works and judicial decisions are frequently taken up and disposed of in a few paragraphs or pages.  Chapter One purports to provide the reader with an adequate grounding in the history of torts in six pages!

Shifting the Blame also contains a number of significant mistakes and omissions.  For example, lawyers will be surprised to learn in Chapter Four that the "but for" test for causation was "rendered obsolete" in the mid-19th Century by the increased complexity of technology, which, Goodman claims, made it difficult to determine which of several actors (e.g., the manufacturer, the installer, the operator) was responsible for causing an accident.  Here Goodman confuses accidents involving multiple necessary causes, which present no grave problems for the "but for" test, with rarer and more difficult cases involving multiple sufficient causes (such as cases involving merging fires).

Likewise, in Chapter Five, Goodman mangles Justice Cardozo's decision in Palsgraf v. Long Island Railroad Co. (NY. 1928) by suggesting that his invocation of the concept of "duty" to deny recovery to Mrs. Palsgraf reveals that "causation [had] lost its salience in determining the nature of human responsibility within the accident context."  (In fact, Goodman is so infatuated with this contrived thesis that she posits a connection between Cardozo’s opinion and Heisenberg’s uncertainty principle!)  Cardozo did not believe that causation had "lost its salience" for accident law, nor that duty ought to serve as a substitute for the elements of causation-in-fact or proximate cause.  Rather, he viewed duty as an independent element of the negligence tort.

More disturbingly, the book conveys the misleading impression that the Left-Realist account of tort history is well-settled, when in fact it is highly debatable, and probably erroneous.  Indeed, leading historians such as J.H. Baker, S.F.C. Milsom, and M.J. Prichard have cast serious doubt on the proposition that pre-19th Century English common law imposed a regime of strict tort liability.  As they have pointed out, tort actions for the negligent performance of duties owed by professionals to their clients, businesses to their customers, neighbors to neighbors, and even strangers to strangers appear to date back as far as the 14th Century.  Moreover, even when the English courts used the language of "cause" rather than "fault" to describe the contours of tort liability, their causal language seems to have incorporated fault-based ideas, as for example in their articulation of the "inevitable accident" defense in cases like Weaver v. Ward (Eng. 1616).

Needless to say, if these scholars are correct, then Professor Goodman’s hypothesis that 19th Century culture gave rise to parallel transformations in law and literature fails: one would instead expect to find substantial continuity in literary treatments of responsibility.  Notwithstanding the direct challenge their works pose to her thesis, Goodman simply fails to confront them.

Responsibility & Reduction

Shifting the Blame is a book at war with itself.  For, as Professor Goodman’s own exploration of 19th Century fiction helps to show, the problem of assigning responsibility for accidents cannot be reduced to the simple opposition between strict liability and negligence.  Because she is committed to applying the Left-Realist thesis, however, even when it clearly does not fit the works she examines, Goodman is forced to provide legal and literary interpretations that are strained and confusing.

Perhaps the most extended analysis in the book concerns Cooper’s The Pioneers.  Yet, as Goodman renders it, the conflict between Bumppo and Temple seems to center not on legal responsibility for accidents, but on the demise of Bumppo’s nomadic way of life (in which man treats nature as a communal resource, lives by the creed that each ought to take only what he needs, and survives by virtue of his courage and physical prowess) and the corresponding ascent of Temple’s "civilized" society, in which man privately owns and develops land, lives in accordance with abstract, formal laws, and has limited use for survival skills.

Professor Goodman claims to connect this opposition to the conflict between negligence and strict liability by noting how Cooper contrasts Bumppo’s courage and prudence with Temple’s lack of these virtues, but the attempt is unpersuasive.  In the first place, it seems decidedly odd to conclude that Cooper employed Bumppo -- the book’s anachronistic character -- to represent the ascendant law of negligence.   Second, the fact that Cooper drew Bumppo (and the sailors in his sea stories) as unusually brave and competent actually seems to cut against their being expressions of the legal concept of negligence.  Legal negligence has always centered around the idea that people ought to conduct themselves with average or ordinary prudence, not the heroism of a Bumppo.

Most fundamentally, Professor Goodman produces precious little evidence to show that the interactions between Bumppo and Temple have anything to do with different theories of legal responsibility for accidentally-caused harms.  In short, Goodman’s thesis only works because she is prepared to find a literary analogue to negligence law in just about any story that features an accident or threat of accident, even when the story says nothing about how liability ought to attach for the consequences of accidents.  Cast as such, her thesis loses its explanatory power.  Thus, instead of offering a counterpart to the robust (albeit dubious) Left-Realist hypothesis that 19th Century individualism gave rise to the substantive legal principle that actors can only be held liable for accidents if they are at fault, Goodman merely asserts the trivial truth that 19th Century culture gave rise to stories featuring accidents and raising issues of responsibility.  (The parallel thesis in law would be the unsurprising and unilluminating claim that 19th Century culture gave rise to laws dealing with industrial and other accidents.)  That she is forced to so dilute her thesis in turn suggests that the Left-Realist hypothesis is as implausible in literature as it is in law.

John C. P. Goldberg is an Associate Professor of Law at Vanderbilt University.  He is the author of several articles on tort law and legal theory, including most recently "The Moral of MacPherson" (co-authored with Professor Benjamin Zipursky), 146 University of Pennsylvania Law Review 1733 (1998).

A Reply to Professor Goldberg
by Nan Goodman

The Importance of Interpretation

I have been accused here unfairly of many things, but to the count of being "prepared" to find what I was looking for, I plead guilty as charged.  I would note only that being "prepared" to find literary analogues to legal phenomena is not the same as inventing them.  A problem arises only when one is unable to see narrative patterns unless they are explicitly thematized.  Because most fiction is not written in neon, the literary scholar is trained to look for patterns beneath the surface of the prose, or among the stories in a given genre or time period.   The job of the literary scholar, in short, is to interpret, but Professor John Goldberg is threatened by work when it takes an interpretive turn.

Literary Evidence

To Goldberg, literature is not a strong form of evidence.  He would have us look first to the law for a foolproof sense of history and then to literature to confirm it.   This is not good scholarship.  Scholars working in this field consider both law and literature equally, producing a nuanced and variable view of culture.

Professor Goldberg may find it "decidedly odd to conclude that [James Fenimore] Cooper employs Bumppo --the book's anachronistic character -- to represent the ascendant law of negligence," but, this is, pace Goldberg, just what Cooper does.  As my analysis of The Pioneers reveals, Natty is a voice not only from the past, but from the future as well, a Western scout and pioneer.  This makes Cooper’s association of Natty with the ascendant law of negligence odd, but comprehensible.  A careful reader would also have realized that while Natty speaks the language of negligence, he articulates a theoretical, not practical or industry-oriented, version of what it means to take care.  Further, Goldberg decries the characterization of Natty and of Cooper’s sailors as "heroic" when the standard set by negligence is that of the ordinary man, exercising ordinary care.  But the point of my chapter on Cooper's and Richard Henry Dana’s sea stories is precisely that the average man prevails in setting standards of care that constitute a new kind of heroism.

Literary scholars and historians read across texts -- assimilating information in one text and relating it to information in others; Goldberg' s aversion to this is perhaps most striking in his remark about Heisenberg and Palsgraf (NY. 1928).  But in this case one need not stray far from the surface of the texts to note that both Heinsenberg’s theory and the Palsgraf case concern issues of causation and were made public in the very same year.  To argue, further, that I have "mangled" Justice Cardozo's decision by noting that his invocation of duty signaled his neglect of causation is to fail to see that omission can be just as significant as commission; and my point about this case remains unrefuted.  I am, moreover, joined in this interpretation by none other Justice Andrews, who dissented from Cardozo’s decision and makes the same [mangled] point I do.

Dueling Cases

Goldberg invites a match of dueling cases.  He cites Weaver v. Ward (1616) to show that there were cases before the 19th Century that invoked the language of fault.  I never said that such cases do not exist, but simply that the trend toward negligence did not emerge until the start of the 19th Century.   That earlier cases used these words and principles on occasion does not alter my opinion of the existence or timing of this trend a jot.  For overstating and misrepresenting the current state of the "but for" test in my description of this trend, I apologize.

Confession from the Left

Finally the question of politics.  While I do not disavow the leftist label, I do note my differences with Professor Morton Horwitz, the more celebrated villain of Goldberg’s review.  Horwitz takes a more instrumentalist view of law and of history than I do.  I write: "That is, while I too point to the influence of economic conditions on the rise of negligence, I do not argue for the exclusivity or inevitability of their effect.  Rather, in turning my attention to the many literary narratives of accidents, narratives that compete with each other and that tell multiple tales, I hope to identify the contingencies rather than the exigencies of legal history -- the possibility, in short, that legal history, in general, and the notion of liability under negligence in particular, need not have taken the path that it did." (8)

I do not apologize for putting forward a political view of negligence law, nor for identifying it primarily with the first quarter of the 19th Century, nor for finding narratives that substantiate its salience for the culture as a whole.  Nor do I agree with the claim that my findings are trivial.  What I try to show is that stories containing accidents reveal a good deal about our culture's interest in legal and moral responsibility, a subject as far from trivial as any could be.  Professor Goldberg would have me find a "counterpart to the robust (albeit dubious) Left-Realist hypothesis that 19th Century individualism gave rise to the substantive legal principle that actors can only be held liable for accidents if they are at fault."  But literature does not offer a counterpart to this hypothesis, for it does not issue edicts or state the fate of real people in precedent-setting holdings at the end.  It is Goldberg, not I, who has diluted my thesis to suit his need for a world depicted not in images, characters, or plots, but in the blackest letters of black-letter law.

Nan Goodman has Ph.D. in English and American Literature from Harvard and a J.D. from Stanford.  She is Assistant Professor of English at the University of Colorado at Boulder.

Crossing Borders
by Richard T. Ford

Race, Place and the Law: 1836-1848
David Delaney
Austin, TX: University of Texas Press, 1998
Cloth: $35.00 / Paper: $17.95
Pp. 248

David Delaney's Race, Place and the Law is a book about the legal construction of borders and the difficulties of crossing them.  It’s ironic, then, that Delaney crosses so many borders so easily and gracefully.  Two borders come to mind: disciplinary and racial.

Law professors tend to cringe when anyone without a Juris Doctorate writes about law.  Non-lawyers, while perhaps brilliant in their own fields of expertise, often think they know more about law than they really do.  They make mistakes for which we’d fail first year students; they don’t understand the nature of precedent, or the hierarchy of courts, or the relationship between statutory and common law.  They think jurisprudence was permanently suspended in development as of the mid-19th Century, and accordingly criticize "the legal system" for nave views that no one has held since the legal realists discredited formalist legal thought in the early 20th Century.  Even those of us who like interdisciplinarity in theory often hate the results in practice.  We feel compelled to preface our work with the caveat: "We’re trained professionals with years of experience in legal analysis – don’t try this at home."

There’s similar territorialism at work among people of color when it comes to issues of the race.  With a very few exceptions, we worry when our white colleagues, good intentioned souls that they (for the most part) are, write about race.  They tend to be either defensive ("I marched with King in the civil rights movement! I am not a racist!") or embarrassingly polemical, or both.

Delaney effectively transcends these boundaries.  He is an astute student of jurisprudence and legal history.  His account of legal argument and judicial decisionmaking is cogent and sophisticated; his approach to the history of race relations in the United States is both broad and detailed, appropriately engaged but not overly polemical.

Insightful Historical Analysis

Delaney’s detailed historical treatment of cases offers valuable insight into the social and political context in which the cases were litigated.  He provides an account of the political stakes involved and the legal strategies employed in cases that traditional legal analysis treats only as exemplars of abstract legal doctrine.  Many of the disputes Delaney examines are familiar: the Fugitive Slave Act and the landmark Supreme Court opinion in Shelly v. Kraemer (1948), in which the Court held that the judicial enforcement of racially restrictive real covenants is unconstitutional.  But his approach to these cases offers new illumination.

In his treatment of Shelly, Delaney reminds us of the complex system of private racial zoning established by racially restrictive covenants.  He meticulously establishes the broad political stakes that the case involved, and confronts the reader with the inescapable political valence of legal adjudication.

Delaney’s historicist approach to the law is clearly indebted to the Law and Society movement’s admonishment to study "law in action" as well as "law on the books."  This is valuable in and of itself.  But even more striking and more original is his embrace of the "spatial turn" that has taken hold in many of the interpretive social sciences.  With a few exceptions, legal scholars have been slow to appreciate the vein of critical theory that emphasizes the importance of political and social geography.  At the same time, few among the scholars "spatially attuned" to human geography and architecture have given serious attention to legal issues.  This is a shame, because legally defined spaces are remarkably relevant to social organization and political institutions and are therefore deserving of sustained scholarly attention.

The "Spatial Turn"

Spatial strategies of sorting, containment, and organization are indispensable to the legal order.  Delaney demonstrates the central importance of legally enforced territorial sorting to America’s vicious racial hierarchy.  He examines everything from the Mason-Dixon line in pre-Civil War America to the division of metropolitan areas into privately segregated, but publicly protected, enclaves.

His spatial approach to legal issues is relevant far beyond the historical period that this book addresses.  Despite the social and political importance of geography and despite its susceptibility to legally initiated change, legal decisionmakers continue to treat it as immutable.  For instance, in Milliken v. Bradley (1974), a more recent case that Delaney has written about extensively elsewhere, the Court held that judicially mandated school desegregation could not cross jurisdictional boundaries to include a segregated city school system and its surrounding suburbs, because the suburbs, as separate territorial entities, were not legally responsible for segregation within the city limits.  This rationale treats local legal geography (the boundaries of local governments) as fixed and immutable, despite their legally contingent status.  It ignores the political and social context that Delaney carefully reconstructs in earlier historical contexts, in which autonomous local governments became segregated enclaves, not by chance, but with racial considerations playing a key role.  The Milliken decision effectively foreclosed the possibility of meaningful desegregation in many metropolitan areas.

Spatial conceptions tacitly inform a host of legal doctrines.  The very foundation of American federalism requires a host of legally constructed spatialities.  How do the several states exercise jurisdiction?  Consider the notion that business corporations are subject to the jurisdiction of any state in which they "do business" or have "minimum contacts;" or, consider the status of legal residency that determines eligibility for the vote and the receipt of public services.   In both cases, a notion of the legal construction of spatial location must be developed.  It is not enough to refer to physical location: a business corporation has no single physical form and can be incorporated anywhere, while an individual may be physically present and own property in places not his or her legal domicile.  The locations recognized by legal doctrine are created by legal doctrine -- they are made, not found.  Because they are made, they can be remade and made differently.  The decision as to how to make them and whether or not to remake them is a decision with high political stakes.  Although Delaney is less explicit in his treatment of this use of space, it tacitly informs much of the probing analysis in the book.

Delaney’s historical approach is more obvious on first glance than his spatial analysis.  He writes convincingly about the importance of spatial configurations to political regimes, but because historical analysis is much more familiar to the typical reader than spatial analysis, it is the historicism that will jump out.  As a result, the casual reader may come away from the book with the misimpression that a concern with political space is simply a characteristic that Delaney’s historical studies have in common.  The book would be much poorer, however, without the spatial analysis that animates it.

Considering Law and Geography Seriously

Because Delaney’s prose is accessible and his historical narrative compelling, this book repays even casual reading.  Because of its sophisticated spatialist critique of legal adjudication, Race, Place and the Law repays careful study with greater dividends by far.  Along with Nicholas Blomley's Law, Space and the Geographies of Power (1995), Delaney’s book is one of a very few that treats both law and geography seriously.  This is a state of affairs that I expect will soon change.  When it does, Race, Place and the Law will certainly become one of the seminal texts of a new and potentially ground-breaking field of critical legal inquiry.

Richard T. Ford is Professor of Law at Stanford University.  He is one of a handful of scholars developing the field of legal geography, an interdisciplinary hybrid of critical legal theory, social and human geography and interpretive social theory.  He has published in the Harvard Law Review, The Stanford Law Review, Transition: An International Review, and Appendix (an architectural theory journal).  His latest article, entitled "Law’s Territory: a History of Jurisdiction" is forthcoming in the Michigan Law Review.

Editors’ Note: For a book of related interest, see Tom C. Clark & Philip B. Perlman, Prejudice & Property: An Historic Brief Against Racial Covenants (Washington, D.C.: Public Affairs Press, 1948).

The Shrinking Image of the Supreme Court
by Tom Goldstein

Television News and the Supreme Court
Elliot B. Slotnick & Jennifer A. Segal
New York, NY: Cambridge University Press, 1998
Cloth $59.95 / Paper $19.95
Pp. 264

A tone of sorrow pervades this work by Elliot B. Slotnick, associate dean of the Graduate School and associate professor of political science at Ohio State University, and Jennifer A. Segal, assistant professor of political science at the University of Kentucky.   The book demonstrates that network news coverage of the United States Supreme Court -- a "uniquely invisible institution," in the words of the authors (163) -- is brief, infrequent (and getting even more infrequent), and often wrong or misleading.

Through interviews with most of the network news people who have covered the Court over the last generation, coupled with interviews with some of the most thoughtful people who have covered the Court for newspapers, the authors show that the "heyday" of television court reporting is over.  "I think the network television coverage of the Supreme Court has atrophied to the point that it’s not informing the public very much what’s going on," declares Fred Graham, who covered the Court for The New York Times before switching over to CBS. Graham now works for Court TV, which lures a minuscule audience and is barely mentioned in this book.

Network Attention in Former Days

In the 1970s and part of the 1980s -- before it became a "fine-tuning court," in the words of Pete Williams of NBC -- the Supreme Court received robust coverage, and the three major networks all had professional journalists who were also lawyers covering the Court as a full-time beat.   Now, as the authors point out, the Court is deciding fewer and fewer cases, and "since it is a potential source for news less often, it receives, as a matter of course, less attention." (62)  While many reporters, both print and broadcast, aspired to cover that beat during the Warren and Burger Courts, it now considered a "low-priority, visually staid beat." (75)

In its "heyday," as now, cameras were banned from the courtroom.   Indeed, Chief Justice Warren Burger probably had a greater disdain for cameras than his successor, William Rehnquist.   Nonetheless, there seems little likelihood that cameras will be permitted in the courthouse any time soon.  This, the authors note, is "perhaps the most obvious problem faced by television journalism in covering the court." (233)  Not surprisingly, Professors Slotnick and Segal call for opening the Court’s doors to coverage by television cameras "on a limited and experimental basis." (242)

The authors note a "relative paucity of ‘action’ at the Court for long periods of time, coupled with its propensity for backloading announcements of important decisions at the very end of its yearly term and, often, on the same crowded, decision days." (233)  Quite sensibly, they suggest that "attention should be placed on possible alterations of the Court’s decisional calendar with an eye toward spreading the announcement of decisions over a great number of decision days and, as important, avoiding the issuance of multiple decisions on a given news day." (241)

A Court That Cares Little for Attention

These are modest proposals indeed; proposals that have often been made before, and just as often rejected by the judicial powers that be.  The Supreme Court rejects these suggestions at its peril, because in a world of media saturation, the Court needs the media probably as much as the media needs the Court as a beat to cover.  Over the years, substantial evidence suggests the American public is woefully ignorant about the Supreme Court, and the authors correctly conclude that "if a subject is not covered on the nightly news, then, for all intents and purposes for the average American, it does not exist or has not happened." (p 8)  So it behooves the Court to pay attention to -- even to court -- the media, despite the fact that the media does an insufficient job in its coverage.  This inadequacy is well documented in the book.

For the authors, the Court emerges as an institution that "cares little about the attention paid to it by the media or the information that the public gleans about the Court from media coverage."  A general lack of understanding of how the Court operates is compounded by the realities of broadcast news production and the need for punchy, visual stories.  This, the authors correctly assert, "is rife with potential for misreporting." (14)  For instance, they convincingly show how consistently the networks erroneously report a procedure those in the court system take for granted -- the denial of certiorari.

The Book's Weaknesses

For all of its keen insights, Television News and the Supreme Court feels somewhat padded.  A quarter of the book is devoted to a study of television coverage of two newsworthy cases: Regents of the University of California v. Bakke, decided in 1978, and Webster v. Reproductive Health Services, decided 11 years later.  In both of the cases, coverage was substantial, and the authors find that the "fundamental outcomes of these two cases" were presented "accurately, albeit not with great sophistication, nuance or depth." (156)  It asks a lot of the reader to wade through that chapter only to be rewarded with such a conclusion.

Another big chunk of the book is devoted to comparing television coverage of the 1989 and 1994 Supreme Court terms.  From this comparison, the authors conclude that the nature of the networks’ treatment of the Court as a less significant and competitive source of news reflects the continually shrinking Court docket, as well as the triumph of "infotainment as primary criteria motivating network news broadcasts." (181)   This chapter, in particular, could have benefited from interviews with those who actually make the decisions about coverage -- the news directors and news executives.   Why have they decided to devote so little time to the third branch of government?   The authors speculate intelligently on the reasons for which coverage of the Court receives such a low priority, but they would have strengthened their argument had they interviewed the actual decision-makers.

Tom Goldstein, who has been a legal affairs reporter for The New York Times, is dean of the Graduate School of Journalism at Columbia University.


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