Law & Fiction Special

• Essay: Pierce O'Donnell, "Elvis Lives! . . . At Least in Court"
• Posner, Richard A. Law and Literature: The Revised and Enlarged Edition. Reviewed by Jerome McCristal Culp, Jr.
• Shapiro, Fred R. Jane Garry, editors. Trial and Error: An Oxford Anthology of Legal Stories. Reviewed by Marianne Wesson.
• Siegel, Barry. The Perfect Witness. Reviewed by Mary-Christine Sungaila.
• Wesson, Marianne. Render Up the Body. Reviewed by Nadine Strossen.

• Abel, Richard L. Speaking Respect, Respecting Speech. Reviewed by Timothy C. Shiell.
• Ludwikowski, Rett R. Constitution-Making in the Region of Former Soviet Dominance. Reviewed by T. Jeremy Gunn.
• Talkback

Elvis Lives! . . . At Least in Court
by Pierce O'Donnell

The shrill ring abruptly terminated a refreshing snooze at my desk.  Blinking twice at my watch, I saw that I had slept through my secretary's departure -- not to mention another billable hour.  After three more rude rings, I grabbed the receiver.

"Yeah?," I grumbled.

"Casey Kane, please."

I was startled.  The voice was faintly familiar.  Not one that I had heard recently, but I'd heard it before.

"Casey Kane?"

"Ah, yeah." I sat up in my chair and tried to regain my professional voice.   "Yes."

"The lawyer?"

"Last time I checked," I quipped as I looked up at my California State Bar certificate hanging on the wall.   I'd been a trial lawyer for a quarter-of-a-century, litigating in the Augean Stables of Hollywood.

"Well, good.  I'd like an appointment to discuss a problem."

That voice -- a distinctive drawl flowing slowly from a Jack Daniels-laced mouth.  I racked my brain trying to make the association.

"Do I know you?"

"Probably, but we've never met before."  My curiosity was sufficiently piqued.

"Okay, I give up."

"I'm Elvis.  Elvis Presley."

Oh, great, I thought.  Another nut case.  I vowed once again that I would not answer my own phone.

Ever since I had won Alex Kozinski v. Sports Irritated, I got ten of these calls a week.  Who would have imagined fame because of a $5,000,000 plagiarism verdict against a powerhouse magazine for filching a federal appellate judge's playful Internet article on snow-boarding?  The fact that Court TV televised the trial -- and I appeared on Larry King and Oprah -- had made me the "Hot Shot Lawyer Du Jour."   It didn't help when my grateful client told Peter Jennings that I was a "free lawyer."  My law firm's phones were overwhelmed for weeks.

Ever since, I had been asked to represent some of the looniest people on the planet: writers plagiarized via "telepathetic" thefts by television networks, inventors of "Celebrity Sweat," and a thirty-something novelist who really wrote Gone With the Wind.   Now I had a dead man.  I'd blow off this latest lunatic like all the others.

"Gee, Mr. Presley.  I don't think we'll be able to meet."

"Why not?," Elvis pressed.

"I'm real busy."

"I'll pay you," he replied without hesitation.

Nice try, I thought.  Original.  Very disarming.

"That's not the issue, sir."

"Well, I don't need much time.  I'll pay you $25,000 for a one-hour consultation."

"When are you available?," I instantly inquired.

"Well, how about right now?  I'm sitting in your reception area."

Twenty-five thousand dollars later, I was numb.

I had just met with someone who looked, talked, and walked like Elvis.  A young Elvis.  God, he even sang like The King.  His "Love Me Tender" sounded as good, if not better, than what I have heard hundreds of times.

This guy was the spitting image, right down to the mop of slicked back hair, pale blue suit, sequined shirt, and alligator boots.   I'd never seen Elvis in the flesh, but I'd watched the Ed Sullivan Show appearances and a lot of his movies.  Boy, he was the best Elvis impersonator I ever saw.

His "problem," he confided, was that no one would believe that he was in fact Elvis Presley.

"I'm trying to do a movie about where I've been the past 20 years," he stated wearily.

"Really?," I asked in my most sincere tone.  For $25,000, at least I could appear to be sympathetic.

"But the studios won't make a movie -- or even a measly development deal.   The lawyers keep telling the Suits that they'll get sued."

"By whom?"

"By me?"

"You?"

"Yeah, by my estate."

"Your heirs?"

"Elvis Presley Enterprises, Inc. sues everybody and anybody who claims to be Elvis and tries to film a movie, perform in a nightclub, or make a commercial."

"Really?"

"After I died, Lisa Marie's lawyers registered my name as a federal trademark.  So I can't use my own name."

I shook my head and pursed my lips to register my disapproval.

"Even worse, Tennessee passed a law giving my heirs the exclusive right to control the commercial use of my name, image, and likeness."

"We have a similar Bella Lugosi Law in California," I interjected, "but there is an exception for motion pictures."

"Not clear in Tennessee, the studios' mouthpieces claim.  No one wants to take the financial risk of spending $100 million on an 'Elvis is Back' movie and then getting slapped with an injunction in Memphis."

"How did they do the Flying Elvises in Honeymoon in Vegas?"

"A license from my family," Elvis shot back.

"What about the First Amendment freedom of expression?," I asked.

"Good question, counselor.  You'd think that a guy could impersonate himself in a movie, wouldn't you?"

"It's un-American!," I exclaimed, caught up in the emotion of the moment (and wanting to give a good account of myself for my $2,000 per minute fee).

"Yeah, man," Elvis sighed, frustration etched on his pale face.

"By the way, you seem very knowledgeable about this area of the law," I noted.

"When I disappeared, I went to law school."

"Law school?," I asked incredulously.

"Yale.  President Clinton and I hung out together when he returned for alumni reunions.  Pretty good sax player, my man Bubba!"

"Any other problems you want to discuss?"  Elvis still had time left on the clock.

"Elvis Presley Enterprises is telling everyone that I'm an imposter -- a fraud.   I want to sue for libel."

"You can't."

"Why not?"

"Dead men can't sue for damages to reputation."

"But I'm not dead!"

"I know, but . . ."

I caught myself.  Was I losing my mind?  Here I was giving legal advice to a dead man sitting in my office and sipping a Diet Coke.  If I didn't have that tuition payment due at Georgetown, I'd be taking a steam bath at The Eureka Club.

"Gosh, Elvis.  Can I call you Elvis?"

"Please . . . Casey?"

"Of course.  Look, you may think you're alive -- and believe me, you look very much alive to me."

Apparently comforted by my reassurance, Elvis settled back on the couch.

"They don't want you alive.  There is a whole "Dead Elvis" industry out there. There's over 18,000 Elvis Presley web sites!  Putting it bluntly, pal, you're worth far more dead than alive."

"Maybe I could change some of the historical facts -- fictionalize my story."

"That's tricky.  Believe it or not, there's such a thing as defamation by fiction."

"What?"

"Yeah, some courts have allowed lawsuits for libel of real persons falsely depicted in a novel or other work of fiction."

"A movie, too?"

"Well, probably, since most movies are fictional."

"How do you know all this stuff?"

"I just read Chief Judge Richard Posner's book, Law and Literature. He has a section on this topic."  I reached for my bookshelf.   "Here, pages 382 to 389."

"Gawd," Elvis sighed after slowly reading the text.  "That's heavy."

"So, if you appear in a movie and falsely depict living people in your life -- or even yourself -- you could get sued."

Elvis pulled himself up and slid to the edge of the couch.

"Let me see if I've got this straight.  I can't portray myself in a movie about my own life.  Nor can I fictionalize part of the story.  And I can't sue my ingrate relatives for defaming me?"

"Unfortunately, Elvis, that appears to be the case.  The sad reality is that you shouldn't have died."

"But I'm not dead."

Our meeting was over.  This had been the most bizarre hour in all my years of law practice.  This client was bonkers, but believable.  What a shame that the Elvis people wouldn't let him do his thing.  He'd make one hell of an Elvis!

Elvis was a decent fellow, too.  He'd just given me a cashier's check for $25,000, and all he got was an hour of disappointing legal advice.  But he didn't complain -- or ask for his money back.  A standup guy.  How refreshing, I mused, as Elvis shook my hand heartily.  I'd had clients who paid me $1,000 for advice they liked and complained about the bill.

"Can I buy you a drink?"

"Thanks for the offer, Casey.  I'll take a rain check.  I've got a dinner date with Marilyn."

"Marilyn?"

"Marilyn Monroe.  We're dining at the Brown Derby."

"Order the chocolate soufflé," I suggested.  "It's a house specialty."

"Thanks, Casey."

"Oh, Elvis?"

"Yes."

"Can I have your autograph?"

Pierce O'Donnell, a partner in O'Donnell & Shaeffer, LLP in Los Angeles, is a nationally-renowned trial lawyer who specializes in intellectual property litigation.  He has represented numerous studios, television networks, book publishers, authors, screenwriters, directors, producers, composers, and actors, including MGM/UA, NBC, New Line Cinema, and Faye Dunaway.  O'Donnell wrote (with Dennis McDougal) Fatal Subtraction: How Hollywood Really Does Business (Newstar Press, 1992, 1996), a best-selling account of his landmark victory for Art Buchwald against Paramount Pictures that prompted Forbes to dub him "the new Perry Mason in Hollywood."  O'Donnell co-wrote the feature motion picture "Home Team," starring Steve Guttenberg, which will be released next year.

Editors' Note: For further commentary on Elvis, see Albert Goldman, Elvis (McGraw-Hill, 1981).  For additional commentary on defamation by fiction, see Rodney A. Smolla, Suing the Press: Libel, the Media, and Power (Oxford University Press, 1986), pp. 138-159, and "Symposium, Defamation in Fiction," 51 Brooklyn Law Review 223 (1985).

Render Up the Body
Marianne Wesson
New York, NY: HarperCollins, 1998
Cloth: $24.00
Pp. 326

Whatever you think about the death penalty, a system that will take life must first give justice.
     -- American Bar Association President John J. Curtin, Jr. (1991)

When I was finally through grading my last student paper at the beginning of the summer, I began my much-needed vacation by reading Professor Marianne ("Mimi") Wesson's captivating, thought-provoking novel, Render Up the Body.  It proved to be not only an entertaining "beach book," whose pages one turns very fast, but also an engaging illumination of legal issues surrounding the death penalty and habeas corpus, whose insights and questions leave a lingering impact long after the last page has been turned upon its highly satisfying (i.e., plausible, but unpredictable) ending.

I first heard about this "novel of suspense," as it is designated on its title page, thanks to an interview of Professor Wesson (University of Colorado, Law) on National Public Radio, on which she periodically comments about criminal law issues.   I was immediately intrigued by the book, Mimi Wesson's first novel, on many levels.   First, I admire (and, I admit, envy) any law professor who can write not only scholarly and lawyerly works, but also fiction.  Second, I was pleasantly surprised to learn that Wesson, a former prosecutor, had written a novel whose central character is an attorney, also a former prosecutor -- representing a Death Row inmate who has been convicted of rape and murder.  Wesson raises troubling questions about the fairness of the criminal justice process, the enormous discretionary power of prosecutors, the death penalty, and the severe limits on the habeas corpus remedy that one would more likely expect to hear from, well, an ACLU lawyer.  To be sure, some leading ACLU lawyers have worked as prosecutors, and Wesson herself has been appellate counsel to a Death Row inmate.  In short, one of the most valuable aspects of the book is that its author and its characters defy the stereotypes that are too often imposed upon actors in the criminal justice system.

High as my expectations about the book were, after hearing the author's engaging NPR interview, they were exceeded by the book itself.  It was both more entertaining, and more educational and thought-provoking, than I had hoped.  I would have considered it an excellent read just on the basis of its engrossing plot and vivid cast of characters.   Likewise, I would have considered it an eye-opening experience just on the basis of its discussion of important legal issues -- not only about habeas corpus and capital punishment, which are central to the book (as signified by its title, the English translation of habeas corpus) -- but also myriad others, including matters of evidence, lesbian/gay rights, free speech, federalism, and professional responsibility.

On the level of entertainment, the book spins a suspenseful, intelligent, multi-layered story.  It also depicts a colorful array of characters, including a smart, likeable, and relatively complex protagonist, attorney Cinda Hayes.  While the personae of Cinda and others are not developed in depth, they are still sufficiently interesting that I hope to learn more about them in future novels.

The most troubling and serious legal issues, at the heart of the novel's dramatic tale, revolve around a central but insufficiently-known aspect of our criminal "justice" system, which most non-lawyers (as well as many lawyers) would consider shocking and unjust.  As set out in the Author's Note at the outset of the book, this "feature of the law in most American jurisdictions" is "the unavailability of habeas corpus or any other remedy for those who claim to have been convicted despite their innocence."  More shocking still, even if someone has been convicted of a capital crime and is on Death Row awaiting execution, exculpatory evidence, indicating that s/he did not commit the crime, will likely not even trigger any further judicial review, let alone a release.

Even putting aside substantive questions about the inherent (un)constitutionality, (in)justice, or (im)morality of administering the death penalty at all, procedural questions nevertheless abound about the fairness of the methods for imposing and reviewing capital sentences in the U.S.  These questions should be of concern to all conscientious Americans (and, in particular, to all members of the legal profession) including those who support the death penalty as a substantive matter.  Indeed, many death penalty proponents are particularly concerned about rectifying the procedural unfairnesses that now plague the administration of capital punishment in the U.S., since they want executions to proceed promptly, but only when the defendants are actually guilty and have had an adequate opportunity to present their defenses. [See, e.g., 141 Cong. Rec. S817 (daily ed. Jan. 11, 1995) (quoting Senator Arlen Spector, a former district attorney who supports the death penalty, criticizing the Supreme Court's refusal to stay an execution of a defendant who had produced evidence of his innocence, and warning against such impositions of the death penalty in "a callous or unreasonable fashion").]

Having debated the most ardent defenders of the death penalty in this country, I have not encountered one who advocated executing individuals who did not actually commit the crime in question.  And yet, that is exactly what is happening in America, thanks to constraints on the availability of habeas corpus relief.  [See, e.g., Linda Greenhouse, "Execution Stay Denied Man Who Texas Concedes Did Not Kill," New York Times, Jan. 3, 1995, sec A, p. 13.]  Moreover, thanks to recent, politically-driven, developments in the "war on crime" -- including fewer and shorter avenues of appeal, fewer public resources for the representation of indigent defendants, and more capital offenses and prosecutions -- the numbers of innocent people on Death Row will continue to grow.  [See Fox Butterfield, "The Nation: Ambivalence? Incompetence? Fairness?; Behind the Death Row Bottleneck," New York Times, Jan. 25, 1998, Sec. 4, p. 1 ("the number of people on death row nationwide has been growing by an average of 100 to 150 a year, and has reached a record of 3,269").]

A 1996 report by the U.S. Justice Department itself documents that scores of innocent Americans have been unjustly imprisoned.  Even more frighteningly, a 1997 report by the Death Penalty Information Center ("DPIC"), "Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent," documents 69 cases of innocent people who had been sentenced to death since 1973.  Indeed, recent research indicates that there may well be a greater risk of erroneous convictions in capital cases than in other criminal cases, and that the documented cases of such errors are only the tip of the iceberg.  [See Samuel Gross, "The Risks of Death: Why Erroneous Convictions are Common in Capital Cases," 44 Buffalo Law Review 469 (1996).]

Emphasizing the key, chilling legal fact that animates the plot in Render Up the Body, the DPIC report decries the recent "dramatic narrowing of the opportunity . . . to raise newly discovered evidence of one's innocence," noting that "[s]ome courts have now taken the position that it is permissible for executions to go forward even in the face of considerable doubt about the defendant's guilt."  These rulings contrast starkly with the Model Penal Code, which the Supreme Court cited as an example of an acceptable death penalty law in its 1976 decision holding that some such laws would pass constitutional muster.  [Gregg v. Georgia, 428 U.S. 153, 193 (1976).]   The Model Penal Code bars the death penalty whenever there is any doubt about the defendant's guilt. [See sec. 210.6]

Although the American Bar Association never has opposed the death penalty per se, the ABA has long studied and criticized the implementation of that ultimate, irrevocable penalty, advocating procedural reforms that minimize the risk that innocent persons may be executed.  In the face of mounting evidence that death penalty jurisdictions (including the U.S. government) have been implementing procedural "reforms" that moved in the opposite direction, in February, 1997, the ABA concluded that "fundamental due process is now systematically lacking in capital cases."   Accordingly, it called for an immediate and indefinite moratorium on any executions until death penalty jurisdictions brought their procedures into full compliance with ABA standards, including the assurance of competent counsel.  Of most relevance to the theme of Wesson's novel, the ABA called for "enhancing . . . courts' authority . . . in . . . habeas corpus proceedings."

Render Up the Body is the perfect book for a hard-working law professor or student who might feel guilty about taking time off for a purely pleasurable reading experience.   While it goes down as delightfully as any frothy, forgettable best seller, it also has real staying power, effectively raising serious questions about our criminal justice system that cannot and should not be forgotten.  The book is unlikely to turn a hard-core champion of capital punishment into an abolitionist, but it is likely to prompt support for the types of procedural reforms that the ABA has endorsed.  Indeed, Wesson herself has said that writing the novel -- which in turn was prompted by her appellate representation of a Death Row inmate, to whom she had to explain that his claims and proofs of innocence were legally irrelevant -- "has caused me to reexamine my own commitment to finality at the expense of accuracy."  [Transcript of NPR Weekend Edition Sunday, April 19, 1998]

Selected References:

The epigraph quote is taken from "Hearings before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary," U.S. House of Representatives, 102d Cong., 1st Sess. at 447 (1991).

Re: the severe limits on Habeas Corpus remedies, see, e.g., Panel Discussion, "Capital Punishment: Is There Any Habeas Left in This Corpus?," 27 Loyola University Chicago Law Journal 524 (1996).

Nadine Strossen, Professor of Law at New York Law School, has written, lectured, and practiced extensively in the areas of constitutional law, civil liberties, and international human rights.  Since 1991, she has been President of the American Civil Liberties Union, the first woman to head the nation's largest and oldest civil liberties organization.  Professor Strossen is also on the Board of Editorial Consultants of Books-on-Law.

Trial and Error: An Oxford Anthology of Legal Stories
Fred R. Shapiro & Jane Garry, editors
New York, NY: Oxford University Press, 1998
Cloth: $30.00
Pp. xi, 475

The publication of an anthology is, among other things, an occasion for the critic to disparage the inclusions and lament the omissions of the editors.  I doubt that this admirable new anthology by Fred R. Shapiro and Jane Garry will escape the common fate of such works; any reviewer can easily expend 2000 words on such criticisms.  But haven’t we had enough of that sort of thing recently with the fallout from the Modern Library’s "100 Best Novels" list?  I for one have heard enough why I, Claudius?, why Zuleika Dobson?, and why not Absalom, Absalom or White Noise? in the last six weeks to last me a lifetime.  I’ll resist the temptation to take that tack here.

Shapiro and Garry do a fine job in the Preface of explaining and defending their principle of selection.  They looked, we are told, for "stories focused squarely on legal institutions, legal rules, or legal actors."  Most of the selections are fiction, evenly divided between excerpts from novels and short stories; there are also three works of journalism and two "borderline" pieces.  Only work originally written in English was included and, with the exception of stories by Elizabeth Jolley and Nadine Gordimer, all of the work originated in the United Kingdom or the United States.

Many of the editors’ choices are provocative in this context and (to this reader at least) quite a few are unfamiliar.  There’s not a single piece here that isn’t worth reading -- faint praise, you might think, but praise that cannot be bestowed on some collections.  The editors say they wished to eschew chestnuts in favor of less-familiar works, but apparently some edict requires that no anthology of fictional works about the law may omit Dickens’ famous description of Jarndyce v. Jarndyce from Bleak House (1853), or some part of Melville’s revered and inescapable Billy Budd (1891).

The latter tale of the hapless sailor and his tormented Captain still contains many mysteries, even after a century of analysis.  Much has been written about certain aspects of the tale: for example (in a debate between Richard Weisberg and Richard Posner) whether Vere misapplied naval law, and (by Robert Cover) whether his predicament is meant to symbolize that of Melville’s father-in-law, Lemuel Shaw, who as Chief Justice of the Massachusetts Supreme Judicial Court voted to return fugitive slaves to their owners.

But on this rereading I found it is a different question that puzzles me.  The energy of the tale lies in the tension between Billy’s legal guilt and his moral innocence; without this opposition it would not be nearly so powerful a story.  We must be meant to understand that Billy, tortured by his speech impediment, can bear no moral responsibility for the manner in which his arm shoots out "quick as a flame from a discharged cannon at night" and inflicts a fatal blow on Claggart.  Since he cannot speak, his strong arm must contradict Claggart’s false accusations.   But is it not extravagant to absolve Billy from all accountability?   This is not to say his act was not mitigated by provocation, or even perhaps excused by some mental aberration, but can he be blameless as an "angel," as Vere describes him?  Most commentators are considerably more skeptical about claims of "unconscious" bodily actions when they arise in contemporary cases. And am I the only reader who finds that Melville’s description of Starry Vere’s cruel predicament rather labors the obvious?  It somehow puts me in mind of Oscar Wilde’s remark about Dickens’ The Old Curiosity Shop: that it takes a heart of stone of read about the death of Little Nell without laughing.  I don’t want to laugh at the virtuous Captain Vere, but I do rather wish he’d just get on with it, which I’m certain is not the effect the author intended -- and to be fair, perhaps not the effect induced in more reverent readers.

Once the chestnuts have been consumed (I note my unconscious mind is trying to trick me into breaking my promise and lamenting the editors’ failure to include any of the remarkable stories of Charles Chestnutt), there is plenty of variety in subject matter, as well as a feast of styles.  Part of the fun of such a collection is trying to discern the recurring themes that cross categories of genre and period, as well as the familiar compartments of gender, race, and sexual orientation.  A few stood out for me, as I read.

The life of the law is not logic, but experience.  Holmes was describing the judicial enterprise, and not quite in those exact words.  But the maxim has greater application, and sometimes it is jurors, those illogical experienced conscripts, who bring it to life.  Susan Glaspell’s 1917 A Jury of Her Peers (a candidate for near-chestnuthood thanks to the efforts of feminist law-and-lit scholars), although not set in a courtroom, describes the mental processes of two women who have by chance become the de facto tribunal for deciding the fate of another woman.   In a courtroom in our time this story would have acquired a framework of jargon: domestic abuse, learned helplessness, jury nullification.  There is nothing wrong with that, but Glaspell’s story is the more exciting and revelatory for its innocence of such justifications.

William Faulkner’s 1940 story Tomorrow relates an episode of authentic jury nullification by a single holdout juror in a homicide case.  It’s a tale to break the heart.  In what must surely be one of the saddest pieces of dialogue ever written, a character who has lost the only thing he’s ever cared about -- a child -- apologizes for his violent reaction thus: "I been expecting it. I reckon that’s why it taken me so much by surprise."  The narrator’s uncle, the lawyer whose victory is thwarted by the holdout, says at the beginning of the tale that the case is the only one he ever lost in which right and justice were on his side.  The story concludes with the uncle insisting to the juvenile narrator, who has been stung by his uncle’s defeat, that the boy would have done the same thing as the holdout juror.  "Don’t ever forget that," he says. "Never."   The story between compels us to agree with both of the lawyer’s assessments of the moral dimension of the case.  Faulkner’s subtlety here provides an instructive contrast to Melville’s heavy-handedness.

The law grinds exceeding fine, generates comical complexity, and takes its own sweet time to do so.  In this age when thrillers set in courtrooms fly off of bookstore shelves, one of the law’s best-kept secrets is the stupefying tedium that attends even the most notorious legal proceedings.  Bleak House’s description of the "trickery, evasion, procrastination, spoliation, botheration, and false pretenses of all sorts" that characterized the Court of Chancery is too funny and quaint to be alarming today.  But those who imagine things were never again so prolix after Parliament passed the Judicature Act must read Greenhouse with Cyclamens, Rebecca West’s astonishing 1955 account of the Nuremberg Trials.

West somehow manages, in a lively and engaging report, nevertheless to make the hellish boredom of the trials a tangible presence; the reader’s eyes begin to droop in stunned protest even as they leap to the next sentence.  The eight judges, she writes "were plainly dragging the proceedings over their consciousness by sheer force of will"; the interpreters "twittered unhappily in their glass box like cage-birds kept awake by a bright light"; and "the ventilation of the court was bad, and the warm air rose to the gallery, so in the afternoon the VIPs were apt to doze."   Yet West’s powers of description are not deployed for their own sake, for she eventually ties the ennui of the participants to a more universal observation.   "A machine was running down," she writes,

West was describing, of course, one of those rather frequent events known as the "Trial of the Century," but John Barth gives us, in his 1956 novel The Floating Opera, a more workaday dispute in the form of a contest over the estate of one Harrison Mack. Mack has left behind considerable wealth, a wine-cellar full of pickle jars containing his feces, and seventeen wills of varying content.  As the contents of the wine cellar suggest, Mr. Mack was not altogether of sound mind when he died, and the litigation has to do with which of the wills was the most recent at the time he lost his wits, and whether its rather eccentric contingencies have been satisfied.

Barth’s protagonist Todd Andrews, who represents Mack’s son, finds the baroque proceedings "an edifying spectacle."  "I have no general opinions about the law," he explains, "or about justice, and if I sometimes set little obstacles, little books and slants, in the path of the courts, it is because I’m curious, merely, to see what will happen."  Often considered one of the first postmodern novels, The Floating Opera puts on display the legal realist roots of the postmodern attitude toward law.  Andrews investigates the politics of the justices of the appellate court, counts heads, and concludes that if he can hold off an appeal until after the off-year elections he and his client can win.   Not logic, but experience, you see.

The law is an ass.  One would be hard-pressed to find in this collection an example, other than the Faulkner story and the excerpt from Harper Lee’s 1960 To Kill a Mockingbird, of a fictional narrative that reflects respect or affection for the legal process.  At its best the law is, as in the pieces by Elizabeth Jolley and Agatha Christie, a backdrop for the victory of a clever but unscrupulous underdog over the powerful but slow-witted.  At its worst it is corrupt, as in James Alan McPherson’s 1969 courtroom farce An Act of Prostitution, or racist, as in Ernest J. Gaines’s 1993 A Lesson Before Dying and Sterling A. Brown’s 1946 And/Or.  It produces psychotic episodes (Philip Roth’s 1959 Eli, the Fanatic), savage sentences (George Eliot’s 1859 Adam Bede, Robert Louis Stevenson’s 1894 The Weir of Hermiston), and shattered relationships (Sue Miller’s 1986 The Good Mother).

We can hear in these narratives an implicit echo of the postmodern critique of law: it is not a science, not a discipline, not a profession, but only a jumbled and corrupt set of arrangements designed to increase the wealth and power of those who are members of the guild, and to mystify and exclude those who are not.  Prepared by this chorus, it is easy to mock the voice we encounter late in the book of Harper Lee’s Atticus Finch, gravely instructing Scout and Jem that the remedy for a racist jury’s condemnation of an innocent black man to death is to "change the law . . . so that only judges have the power fixing the penalty in capital cases."  Finch despises racism, but in his mind it will always be separate from the legal system, which would surely produce justice if those he calls "trash" could be excluded from participation.   Today his naiveté seems staggering, even to one not persuaded by the arguments of postmodernism.

Defenders of the legal process are plentiful, if sometimes beleaguered, in academic and journalistic forums.  West, in her Nuremburg piece, finally praises the trials after rehearsing their many shortcomings.  But one looks in vain, in this excellent anthology or any other, for convincing voices in fiction that are neither naive nor cynical about the law.  It is strange that this institution, which permeates English-speaking (and especially American) culture so thoroughly that we cannot imagine ourselves without it, attracts so many critics and so few defenders in the territory of fiction.

Still, hard truths are here spoken, and spoken well.  It behooves us to hear them.

Marianne Wesson is Professor of Law, Wolf-Nichol Fellow, and President’s Teaching Scholar at the University of Colorado, as well as an occasional legal correspondent for National Public Radio.  Her most recent work is a novel, Render Up the Body (HarperCollins 1998), and she is working on its successor.

———————————————————————

Truth, Justice & the Adversarial System
by Mary-Christine Sungaila

The Perfect Witness
Barry Siegel
New York, NY: Ballantine Books, 1998
Cloth: $24.00
Pp. 346

In the overcrowded genre of legal thrillers, Los Angeles Times crime reporter Barry Siegel's first novel stands out. Perfect Witness is different than most of the other popular novels of its genre; it is neither a stereotypical courtroom drama nor a slick, undemanding read a la Scott Turow, John Grisham, or Brad Meltzer.  Instead, it offers an entertaining, extended riff on the methods and madness of our adversarial system of justice.  By exploring the inherent conflicts among truth, fairness, and justice -- as well as the manner in which the criminal justice system resolves them -- the novel achieves what most thrillers do not.  It makes you think.  Hard.  About both the purpose of the justice system and our role as lawyers in it.

Character development is not Siegel's strong suit.  In the context of this legal thriller, however, that doesn't much matter.  After all, the main character is not a person at all, but the justice system itself.  The human characters are therefore largely unimportant (and, frankly, unmemorable).  They primarily serve as catalysts for the moral, ethical, and legal dilemmas the novel seeks to explore.  That said, characters are still necessary set-dressings and vehicles for storytelling.  Some basic understanding of them is required before one may explore the larger issues raised by the novel.

Greg Monarch left his central California hometown of La Graciosa, and his law practice with old friend Ira Sullivan, to pursue his ideals.  Like many freshly minted lawyers, he wanted to make a difference.  He moved to Florida, and took one criminal case that caused him to hightail it back to La Graciosa and eventually mire himself in simple, nonadversarial trust-and-estates work.  His impoverished client, who had always proclaimed his innocence of the murder charge against him, was sent to the electric chair.  Why?  Because wet-behind-the-ears trial lawyer Monarch neglected to subpoena the ballistics expert who could establish that the bullet in the victim could not have been fired from his client's gun.  When the prosecution failed to call the expert (who was included on the prosecution's witness list), and dismissed him to his vacation, Monarch and his client were left holding the bag.  A series of appeals proved unsuccessful.  Monarch had not been so incompetent as to deprive his client of his constitutional right to counsel, and nothing the prosecution did amounted to cognizable misconduct.

Monarch then tried working for the county prosecutor's office back home in La Graciosa, thinking that he would be paid to excavate the truth in that job.  Instead, he discovered that his interests and those of the district attorney's office were incompatible.  The office was more interested in obtaining convictions, while Monarch was often consumed with exculpating the innocent.  He ultimately returned to practice with Sullivan, concentrating on work that took him as far away from the adversarial process as possible.

But then Sullivan, who had always led a charmed life, suddenly suffers a personal tragedy and spirals downhill, leaving the practice to Monarch.  Things go so badly for Sullivan that one day he winds up in jail facing a murder charge and the death penalty.  His counsel of choice: Monarch.  Our hero thus gets the opportunity to make up for his past mistakes.  Must he foresake his ideals and accede to the adversarial system in order to get his innocent client and friend off, or can he play by his own rules and still prevail?

Monarch faces almost insurmountable odds, including his former colleague district attorney Dennis Taylor's ambitions, his client's own memory lapses, flaky and disappearing corroborating witnesses, and, most significant of all, the perfect witness for the prosecution.  As Sullivan himself notes early on, Sandy Polson is a formidable witness precisely because she is so adept at dissembling: "Master of lying with a straight face. . . .  She's something.  No nerves.  Never blinks, never apologizes. . . .  Don't you see, Greg?  In the old days, in our office.   She's what we always wanted.  She's the perfect witness."  In the book's first half, that perfect witness lands Sullivan in jail and on death row.

It is then up to Monarch to get Sullivan released, following a post-conviction investigation and hearing that fill the novel's more interesting second half.  In so doing, Monarch enlists the aid of strong, capable Assistant United States Attorney Kim Rosen, local reporter Jimmy O'Brien, police investigator Roger Kandle, . . . and the perfect witness, Sandy Polson.  He is also forced to confront a number of moral and ethical issues, as well as the more flawed aspects of the legal system.

When Monarch first interviews his client Sullivan in jail following his arrest, he "slips into the calculated mode of the criminal defense attorney."  His goal: "Control the client's dialogue. . . .  Don't ask your client for the full story, don't ask if he's guilty, don't let him tell you. If you know the whole truth, you can't play the game. . . .  Then you explain the law to your client, and wait for him to supply a story that fits."  The game, of course, is the trial.  The ultimate goal?  Winning.  As Judge Marvin E. Frankel once observed in Partisan Justice (Hill & Wang, 1980), however, the system's focus on winning can encourage the type of ethical lapses Monarch describes: "[E]very lawyer knows that the 'preparing' of witnesses may embrace a multitude of other measures, including some ethical lapses believed to be more common than we would wish. . . .  [T]he process often extends beyond helping organize what a witness knows, and moves in the direction of helping the witness to know new things. . . .  [S]hort of criminality but still to be condemned is the device of telling the client 'the law' before eliciting the facts -- i.e., telling the client what facts would constitute a successful claim or defense."

Monarch faces another ethical dilemma when a witness who purportedly corroborates Sandy Polson's testimony contacts him and asks for his help, claiming that he is being forced to say things that are not true.  The problem: the witness is represented by counsel.   Monarch contacts the witness' attorney to get permission to speak with him; but the attorney, who is more interested in plea bargaining his client out and being rid of the case, refuses.  In an effort to zealously represent his client, and perhaps gain some exculpatory evidence, Monarch nonetheless visits the witness in jail.  It all turns out badly for Monarch and his client.  His ethical transgression understandably lands him in trouble with the state bar, and the dimwitted witness (expertly coached by both the police and Sandy Polson) helps sink Monarch's client at trial.

The series of events leaves the reader questioning the wisdom of a system that embraces (admittedly necessary) procedural rules over truthseeking functions.  What would you do if you knew of a similar potentially exculpatory piece of evidence, but by virtue of the ethical canons could not obtain it?  At the intersection of zealous advocacy, ethics, and morality, the answer is not so easy.

From the first day of law school, students are told that truth and justice are not necessarily the same thing in the adversarial system. "Truth is not the end the courts seek. Truth is nothing more than a means of achieving an end, justice. The disclosure of material facts is not the only means of achieving justice." (Stephan Landsman, editor, American Bar Association Section of Litigation Readings on Adversarial Justice: The American Approach to Adjudication (West/Wadsworth, 1988)).

Monarch has that lesson drummed into him as well. He knows the truth is that his client is innocent, but nonetheless his client has been convicted.  In order to make the result reached by the justice system conform to the truth, Monarch might have to use unorthodox methods.  He might have to cajole witnesses, suggest appropriate testimony, and solicit the testimony of a "perfect witness" whom he knows has willingly and flawlessly perjured herself before.  Do the ends justify the means?   If the result equates with the truth, does that somehow excuse his conduct?   Or does it make him just as morally reprehensible as the prosecutor who originally engaged in the same type of conduct in order to convict an innocent man?

When I used to complain to the circuit judge for whom I clerked that a result in a case just did not seem "fair," he would point out that fairness and justice were not always the same.  "What is fair might not always be just," he would say.   Sometimes, however, fairness and justice merge: if the state's method of obtaining evidence is so unfair as to violate the Constitution, then a conviction will be overturned.  In order to release his client, Monarch must unmask police misdoings, not prove the truth of the matter (i.e., that his client did not in fact commit the crime for which he was sentenced to die).  This raises the question: Why is the truth not enough?  In this era of narrowing post-conviction relief, Sullivan's predicament raises troubling questions about the wisdom of winnowing down avenues of relief, and ways of letting the truth about a person's culpability emerge.

There are lawyers' lawyers, and there are lawyers' thrillers.  Perfect Witness is a legal thriller for lawyers.  The questions it raises about the adversarial system of justice -- and a lawyer's purpose and role within it -- resonate long after the novel has been set down.

Ms. Sungaila, a former white collar criminal defense lawyer, is associated with Horvitz & Levy LLP, California's largest appellate firm.  A nationally recognized expert in the areas of gender bias and women & the law, she served as counsel of record for amicus curiae The Southern Poverty Law Center before the U.S. Supreme Court in U.S. v. Lanier (1977), and this Term serves as counsel of record for amicus curiae NOW Legal Defense and Education Fund in Davis v. Monroe County.

Law and Literature: A Misunderstood Relation
Richard A. Posner
Cambridge, MA: Harvard University Press, second edition, 1997
Cloth: $45.00 / Paper: $18.95
Pp. 416

One Ring to rule them all, One ring to find them,
One ring to bring them all and in the Darkness bind them.
     -- J. R. R. Tolkien, Fellowship of the Ring 75 (Ballantine
        Books, 1965)

Everything reminds Milton Friedman of the power of money; everything reminds Ken Starr of sex; everything reminds Richard Epstein of property; everything reminds Bill Bennett of possible moral decline; and everything reminded Thurgood Marshall of the importance of justice.  The belief that one can distill diverse rationales into a single factor has been common in law and literature.  It is not a secret to legal academics that when Richard Posner examines a problem he sees the fine hand of economics.  He reads much of the great literature of Western Civilization, and he writes about economics.  He sees law, and he writes about economics.  He sees sex, and he writes about economics.

Richard Posner, Chief Judge of the Seventh Circuit of the United States Court of Appeals, is a significant contributor to academic discourse.  He writes on law about everything from torts to adoption.   No doubt, his major contribution has been his numerous articles, books, and commentaries on the use and applicability of economics to legal decisions and to judging.   These works have made important contributions -- as much for what they don’t say as for what they do.  For Posner has the ability to take important ideas to their often-fruitless extreme.

Essentially, Judge Posner is convinced that economics intrinsically does and should play a central role in organizing and responding to legal concerns in a market economy.   When he originally extended that conviction to literature, his ideas were surprisingly well received -- despite significant criticisms of his style, his understanding of law or human behavior, and his ability to interrogate literature.  [See, e.g., Peter Teachout, "Lapse of Judgment," 77 California Law Review 1259 (1989) and Stanley Fish, "Don't Know Much About the Middle Ages: Posner on Law and Literature," 97 Yale Law Journal 777 (April 1988).]  In the first edition of Law and Literature, Posner denied the power, possibility, or centrality of narratives in persuading, educating, or enriching legal decision makers.   This is an interesting perspective from one who is undoubtedly the most significant purveyor of the Chicago-style neoclassical economics narrative.  Yet, it may be predictable -- to Posner, economics is not a narrative, but just the truth.

Judge Posner's economics narrative is very conservative, and even occasionally libertarian, but it is not always wrong.  Indeed, as I note later in this piece, I support some of the political lessons that Posner attributes to economics.  My main point, however, is that Posner 's major contribution to legal discourse is exactly the same as what he finds contemptuous, emotional, and unpersuasive in the narratives of others.  Posner's narrative cannot persuade those who do not agree with him; and the power of his narrative -- like the narratives of critical race scholars or traditional law and literature scholars -- is about the unverifiable claims of justice.  Justice is chaotic.  Judge Posner believes that to accept such a narrative truth is destroy the possibility of law, but he is wrong.

The second edition of Law and Literature is revised and enlarged to take account of some of the changes in the field of law and literature since the original publication.  Much that is new in this edition explores the contributions of outsider scholarship to the expanded law and literature discourse.  Critical Race Theory, Feminist Theory, and Queer Theory are the subjects that Posner examines with respect to Law and Literature.  Posner divides these contributions into two areas: narratives of oppression of "supposed" truth, and fictional accounts that glorify and victimize people of color, women, or sexual minorities.

This review focuses on Posner’s dismissal of these contributions to legal discourse.  To begin, I respond to Posner's claim that economic thought ought to be substituted for the lessons of literature.  Posner argues that social science (by which he means economics) is always a better guide to appropriate legal policy than the literary alternative that he views as emotional.  In essence, this is a recodification of the central idea in his academic and judicial work, and it is the thread that holds the book together.  Then, I demonstrate how Posner applies these lessons to judicial decisions.  I will look at one of Posner's decisions to suggest that it is not altogether clear that even economically sophisticated judges can do what he wants them to do. Finally, I examine Posner’s unwillingness to engage outsider scholarship, and what that incapacity bodes for the law and literature movement in general.

Law and Literature posits at two points:

Judge Posner believes that economics is more useful than literature in making legal decisions.  First, he contends that many fields of law are, in essence, applied economics.  The examples he gives are drawn from antitrust, remedies, corporate and securities law, pension law, environmental law, labor and employment law.  Second, he claims that much of law can be mapped onto economic concepts.  He wants us to remember that he is not arguing economics is universally applicable to every problem, but that it is the key in this time to providing judges with the certainty required to make decisions.  In essence Posner sees that the answer to be provided to the realist question, "What is behind the law?," is "Economics." (295-302)   By rejecting Romanticism's entreaty to emotion and the possibility of a "free lunch," Posner contends that lawyers must accept rational thinking and good legal analysis. (298-299)  Posner finds no theory better or more workable than economic thinking to describe human interactions in legal spheres.  The alternative proposed by traditional law and literature scholars fails precisely because it relies on sentimentality instead of analysis. Emotion, sentimentality, and literary style have their place -- but not in legal analysis.

How does Posner come to these conclusions?  By way of precision, answers, and theory.  He assumes that economics provides "definitions that enable economic phenomena to be modeled in exact terms."  It is this precision -- in contrast to the sloppiness of literature and Romanticism -- that Posner desires the law to embody.   The example that he gives, however, is troubling.  "The layman's 'cost' is too vague for this purpose [i.e., modeling the world in economic terms]; the economist's 'opportunity cost,' 'long-run marginal cost' and 'average total cost' are precise." (297)

Precise to whom?  To the judges and jurors who try to use such concepts?  Or to the legal academics that use the theories to tell us what is efficient?  [In this regard, see Jerome McCristal Culp, Jr., "Judex Economicus," Law and Contemporary Problems, vol. 51, Autumn 1987.]  What are we, as lawyers, judges or jurors, to do with the answers provided?  Should lawyers defer to economist to decide what negligence means?  When legal economists tell us that negligence is a socially most productive form of tort liability, or that strict liability is in general more efficient, do we alter our interpretation of tortuous activity in the courts?  When legal economists change their minds, and conclude that either strict liability or negligence may be efficient depending on the circumstances, how has the precision of economics provided law with more answers?

Judge Posner contends that, by directing us toward the right questions, economics may help the law move in the "appropriate" direction; but, as our recent history with tort law suggests, small changes in the models used may change the answers we get from these questions.  The precision that Posner finds in the narrow world of economists is inapposite to the practical questions that judges, law professors, and lawyers have to answer.  If judges, lawyers, and legal academics are better at estimating layman's cost (given the evidence they have to assess in the courtroom), requiring them to estimate what economists would under a particular economic model provides only the illusion of precision, at best.  Calling something "opportunity cost" or "long run marginal cost" does not make it precisely so.

Posner assumes economics is superior to literature because it provides answers.   He comes to this conclusion by assuming that he can model human behavior sufficiently to make claims about legal situations and ignore the tautological aspect of such definition.  Opportunity cost may have an exact economic meaning, but what that is in a particular situation is often unclear, even to the sophisticated.  [Only consider the debate among law and economics scholars over social cost. Compare Ronald Coase, "The Problem of Social Cost," 3 Journal of Law & Economics 1 (1960) to Robert Cooter, "The Cost of Coase," 11 Journal of Legal Studies 1 (1982).]

Economics has an admittedly narrow perspective on human behavior, and as drawn by Posner the economic question is not refutable.  Such a perspective about human behavior, however, is but one of the many assumptions that Posner believes he has the perspicacity to make.  Judge Posner assumes that he can describe all the "important" choices facing legal participants, and can therefore make decisions about the motives and actions of legal participants.  For example, he informs his readers: "Sexual harassment by superiors of subordinates . . . is a form of extortion that is nonconsensual, and it is inefficient.  Because it reduces the output of both worker and supervisor and forces the employers to pay higher wages to workers to compensate them for the unpleasantness of the workplace." (192)  Though compensating risk differentials is a widely held perspective in economic literature, how large they are and whether there are other compensating factors in sexual harassment have to be estimated.

Judge Posner assumes that all the benefits of sexual harassment accrue to the harasser, although some of the costs are spread between the harassee and the employer; therefore, those employers cannot benefit from sexual harassment in the workplace.  Do some companies use sexual harassment as a form of discipline, thereby increasing the production of women who are not harassed?  (Even if the narrow wealth-maximization is what motivates employers, Posner's interpretation of sexual harrassment is flawed.  It is possible for employers to have more complicated objectives functions, including the pleasure of keeping particular groups of employees in their "proper places.")   For some employees with significant choices this may not be important, but for poor women and even well-to-do women who want to progress up corporate or academic ladders, sexual harassment and increased productivity may be necessary atmospheres that have to be accepted.

In essence, the danger of Judge Posner's worldview is his confidence in the ability of economic theory to provide a template to human behavior.  Otherwise, despite market failures, sexual harassment would be much less prevalent then it is in the American workplace, and its recent reduction would not have required a substantial use of legal regulation.  To make this argument is not to reject Posner's conclusion that some sexual harassment is inefficient, but to highlight the unstated assumptions that drive him to his narrow world-view.

Ultimately, Judge Posner believes that judges can do a better job of judging by applying economic principles.  (But Posner is just one judge, and he can't be everywhere making sure that economic decisions are correctly understood and applied.)   This belief is at the heart of his inability to hear what critical race, queer, and feminist scholars write.  Since these scholars do not accept Posner's assumptions about human nature, they must fit into the emotional, unreasoning, anti-intellectual ghetto that Posner reserves for people who reject his worldview.  Since emotion, passions, and sentimentality have no place in the law, any efforts by critical race scholars, queer theorists, and feminists to integrate their concerns into the law are doomed to failure.

Finally, Judge Posner contends that there is no real alternative theory to economic theory.  If you don't make the assumptions he makes, the law becomes indeterminate, and there is no rule of law.  Any theory that does not make economic assumptions is not pragmatic enough for judges to use. All other theories are inferior, because the answers are likely to be impregnated with emotion.  Quite ironically, there is a great deal of emotion in his rejection of critical race theory, queer theory, and feminism.

When a critic claims so vociferously that emotion is irrelevant, we might be tempted to suspect that the claim is not about the object of criticism alone, but partially about the critic himself.  Posner's view of the dangers of emotion and the lessons of literature are always inscribed with his fear of the unacknowledged and hidden emotions that he claims to have conquered.  (One is tempted to psychoanalyze Posner's claim, at 70 New York University Law Review 556, 572 (1995), that his judicial biography cannot be written.)  Indeed, the very essence of Posner's fixation on economics is to tell an emotional story about the power of the status quo.  Posner's use of economics is a lullaby sung to comfort us into the sleep of acceptance.  The smugness, certainty, and tunnel-vision of this lullaby are, in their essence, emotions.  But, instead of emotions of change, they are emotions of the status quo.

Part of Judge Posner's charm is his audacity.  He has written as much or more than any other legal scholar of his generation.  Moreover, a significant amount of that work concentrates on the style and greatness of common law judging.  The great advantage of having done this is that he can find support for a number of diverse views of the law in his work.  If you accuse Posner of failing to consider the limitations of economic models on a particular decision, he responds by showing that he did in a particular argument.  Now, I want to ask whether the lessons Posner asks us to draw from law and literature and law and economics can be applied to his work as a judge.

I am going to be unfair to Judge Posner's work.  Due to the space limitations of this review essay, I am going to write about only one case.  I do this for several reasons.  The case I will discuss is at the heart of his jurisprudential mission -- torts -- an area in which I also teach and occasionally write.  Further, the case I have chosen is relatively easy to understand.  Moreover, one of Posner's favorite strategies is to examine a part of a body of work, and attribute all of the sins of world to it.  I thought a kind of reverse "scapegoatism" tells a different story of power in the legal academy.  In order to be generally true of Judge Posner's opinions, what I say here needs a more thorough analysis.  But, the point I want to emphasize is that Posner does much the same thing, and almost never acknowledges his omissions.  Another objection to my approach may be to argue that Posner does not really believe that judges should use economic theory.  Indeed, Judge Posner claims in one of his recent books, Overcoming Law (Harvard University Press, 1995), that he is a Pragmatist open to divergent views.

The case I want to discuss is Konradi v. United States (919 F.2d 1207 (1990)).   Robert Farringer, a rural postal delivery person, struck and killed a driver in another automobile on his way to work.  The question for the U.S. Seventh Circuit Court of Appeals (reviewing the district court's grant of summary judgment) was whether the U.S. Postal Service is vicariously liable for Farringer on his way to work.   Postal rules required rural postal delivery persons to use their vehicles to deliver the mail, to proceed to and from work by the most direct route, to use seatbelts, and to carry no passengers while commuting to work.

In his opinion for the Court, Judge Posner explicitly proposes to apply the lesson taught to us by Professor Steven Shavell (Harvard Law) ["Strict Liability versus Negligence," 9 Journal of Legal Studies (1980)] that activity level, as well as precaution, can affect the appropriate tort policy.  In essence, Shavell's argument is that, in order to minimize the number of accidents where people can alter both the number of times they do something (activity level) and how careful they are in doing it (the amount of precaution), sometimes it is important to make the actor care about how much they do an activity (in this case a move from negligence to strict liability).  In looking at the question of whether to apply vicarious strict liability to the Post Office, Posner asks whether such a standard would encourage the Post Office to take account of the activity level of their enterprise (in this case, to take account of how much driving is done by their employees).

Sometimes, I try to teach Shavell's concept in my Torts or Economic Analysis of Law classes.  It is a difficult concept for even the very bright students I have taught at Duke, Rutgers, NYU, and Miami.  This case is excerpted in my current torts casebook. Judge Posner does a very good job of explaining this concept.  His analysis, however, is confusing -- and ultimately unpersuasive to the other judges who shared the three-judge panel with him.

Judge Posner suggests three reasons for believing that the Post Office's vicarious liability for the accidents of its postal drivers on their way to work may influence its employees' activity level.  First, because rural delivery persons are now required to use their automobiles to deliver the mail, they are more likely to drive to work rather than using car pools or public transportation.  This rationale seems trivial, however, in comparison to other potential issues involved in this activity.  Will delivery persons drive more frequently after work because they cannot minimize their driving by making stops to pick up dry cleaning or their children at daycare and school?   The impact of making people drive their vehicles to and from work by the most direct route without stopping is unclear without a good deal more evidence.  Posner finally agrees, but he gives an impression of precision which is impossible with the facts presented.

Second, Posner contends that the driving limitations placed on Farringer may derive from a fear of vicarious liability.  There are, however, nonactivity-level rationales for such policies as well.  It may be difficult to monitor postal employees if they can mix work and nonwork activities.  This may not be associated with activity levels at all, but instead simply with minimizing the costs of monitoring their actions on and off the job.

Third, Posner suggests that the use of the most direct route may increase accident risks, because it does not give delivery persons the option of choosing a longer but safer route.  Though this may implicate the economic-efficiency concerns of judges, it is not an activity level concern.  Farringer's choice of routes is a question of risk.   Risk can be seen as a kind of precaution cost, but it is not a question of activity level.  Choice on the level of risk taken in an activity might influence who ought to be held responsible for an accident.  Posner does not explain this to the readers, and he ultimately decides that all of these questions are unclear and too speculative to come to a definitive decision.

If the ultimate answer is that we don't know enough to tell, why tell this economic story?  Part of the answer is that Posner knows that he is a much better economist than almost any judge or lawyer with whom he is likely to come into contact.  His economic knowledge allows him control over the story that is being told by a case before the Seventh Circuit. Konradi is mostly a narrative about how to think about the question of vicarious liability in economic terms.  This narrative leaves Posner, the economist, in charge of structuring the issues, though it apparently does not educate his fellow judges (who concur in the opinion with relatively short and more directed statements) or the public.

Narratives have power in Judge Posner's judicial writing and his scholarship.   They are cramped visions of the world in which Posner chooses the issues that are important.  Are they typical or representative of the important underlying scheme of the case?  Posner cannot tell you because he does not have enough information.   Posner's narrative in Konradi fails in exactly the same way that he claims the "narratives" of critical race theory, queer theory and some feminist theory fail.  The real question in Konradi is how to make the Post Office responsible for the risk of its enterprise on innocent third parties . This is a question of the limits of deep pockets and notions of justice that go well beyond the issues raised in Posner's narrative.

Judge Posner claims that critical race theory and queer theory largely amount to personal complaints and efforts to see minority members, women, and gay/lesbian/bisexual people as victims.  Posner writes: "But against a background of expanding opportunities for women and minorities, [such theory] seems whiny and self-pitying.   It feeds the stereotype of women and blacks as incapable of rigorous thought."   The question to be asked of Posner's interrogation of these stories is "whiny and self-pitying" to whom?  For Posner, there are only two choices on racial issues for legal academics.  Either they accept his conclusion that all is well in the world, and support the existing legal standards, goals and arguments, or they are "childish" in making unsupported and emotional claims.  If they do the former, they cannot contribute anything of much difference to the intellectual debate; if they adopt the latter, they have simply acted liked the economically spoiled children they are.

Judge Posner cannot understand the complaints about race and the law or the legal academy because they run counter to what he knows is true.  Posner knows that economics proves that racism cannot prevail systematically in the long run, and therefore that the beliefs of Professor Derrick Bell (NYU Law) and others that it does is nonsensical.  Posner knows that racism can exist, and he is willing to oppose its sporadic existence; but he thinks that critical race theorists or feminists who believe that it is more prevalent are like people who believe in the tooth fairy or Santa Claus.  In Posner's mind, the proof of the nonexistence of racism against black people is change in the racial makeup of the legal academy.  To complain about racial slights or continued existence of racial concerns is to live in the world of Louis Farrakhan or a reverse-David Duke.  Race cannot be a measure of analysis, because it cannot alter the appropriate rule of law.  Race is always irrelevant, and when critical race theorists try to make it relevant they become the modern-day equivalent of segregationists.

Judge Posner quotes Professor Martha Minow (Harvard Law) for the point that victim stories prefer "narratives of helplessness to stories of responsibility," yet Posner goes further than Minow.  He finds that all of critical race theory is narratology, and that all of these narratives are stories of helplessness.  The problem with the Posner's acceptance of Minow's dichotomy between victims and responsible individuals is that, in his world, either critical race scholars see everyone as responsible individuals or as helpless victims.

Do all critical race scholars concern themselves with the helpless-victim status of people of color?  The answer provided by the literature is quite clear, and it is no. Indeed, do any critical race scholars of significance believe in themselves as helpless victims?  The whole point of critical race theory is to reject a notion of individual helplessness.  Critical Race Theorists write to challenge those assumptions of socio-economic and political power that Posner so glibly accepts.  When Derrick Bell writes about the permanence of racism, he does not encourage people to wait on the good graces of the white majority or to accept the status quo.  His whole body of work has been to fight the power of the status quo.  People can and do disagree with Professor Bell's thesis, but they cannot as a fair description call it a narrative of helplessness.

Similarly, Professor Patricia Williams (Columbia Law) details the experience of trying to purchase a sweater for her mother's Christmas present at a Benneton store in New York.  Her story is not the silence of the acted-upon helpless victim or the response of the absolute free white male individual.  She does not see the discrimination she faces as either the isolated response of one atomized individual teenager, or the fantasy of an over-imaginative victim asking white individuals to feel sorry for her.  Her point is to infuriate and to press the question of racial unfairness on the very grounds where it is most seldom pressed.  Her narrative alters the landscape, in shaming the managers of that conglomerate.

Posner criticizes Professor Williams's story for not proving its typicality or truth and for her breach of professional ethics as a lawyer to write such a criticism of a major corporate enterprise.  Posner requires of Professor Williams to be civil; to think of the innocent company; to think of alternative rationales for this slight.  In contrast, Williams requires the reader to understand that she will no longer do that.   She is not a victim, but an injured party who is changing the landscape.   Posner understands that when he demands civility, but he cannot see it as oppositional -- because in his world, there is no real possibility of rational opposition.   There is only economics that proves whatever Posner believes at the moment.

Judge Posner cannot hear the narrative of power, because only atomized individuals in their individual activities have real power.  Again, Posner projects onto others his own concerns. For him, the individual is helpless against the power of market economics, and therefore no one has responsibility for the status quo that leaves people of color, sexual-orientation minorities, and many women oppressed in various ways.  The heart of Posner's narrative of law and economics is a lack of collective responsibility and a lack of individual power beyond simple market choice.

I was using Professor Williams's Columbia Law School office one afternoon a few years ago, while she taught her students.  It was shortly after she decided to accept a full-time permanent position at Columbia.  The phone rang and I answered.  The person on the other end of the line said that she was a student at the University of Maryland Baltimore Campus.  She asked to speak to Professor Williams.   I informed the caller that she was out of the office and offered to take a message for her.  She said she was calling to thank Professor Williams for Alchemy of Race and Rights (Harvard University Press, 1991).  She had experienced severe sexual harassment; Professor Williams's book helped her to complain about the harassment, alter the situation, and survive the experience.  She wanted me to express her profound thanks.

This was a random call.  I do not mean to claim it as representative of all students in the country, all female students at University of Maryland, or all students who call her on the phone.  I tell you this story because Professor Williams's book -- and much of critical race theory -- speaks powerfully to many students in many departments.  What they hear is not just the song of emotional support, but the ability to alter the status quo.  I am often buoyed by similar responses to my work.  (In many ways, the best example was a journal entry sent to me by a white student in Professor Bell's class who wrote that two of my articles changed the way she saw race and the law.)

We do speak to some people beside ourselves.  The participants in the academy hear us in many ways.  The theory we use, as well as the facts and the narratives, of critical race theory and feminism and queer theory do alter some people's perceptions.   Judge Posner is not one of them, because he cannot hear the words of the oppositionist except as whining and moaning.

In many ways, this revised and enlarged edition of Law and Literature is impressive.  Judge Posner is obviously a voracious reader, and this book has some thoughtful analysis.  Ultimately, however, he resembles the description of Christianity given by the character playing the future pope in the movie Godfather III.  The future pope depicts Christianity as a stone that has lain in a body of water for two thousand years, yet when cracked open it has not been affected.   Posner has immersed himself in the powerful literary creations of Western Civilization.  He has tried to understand and appreciate them; but, in striving ever to be a law professor and judge, he cannot.  He is unaffected by the power of literature.  This is a sobering fact.  If someone as intelligent as Judge Richard Posner can be immersed in literature and come out unaffected, perhaps he is correct in thinking that literature cannot alter how we do law.

The truth is that literature does affect Judge Posner.  His most important contributions to academic scholarship are narrative stories of some power.  I do not agree with much of that narrative, but I do believe that his work is proof of the opposite of what he claims.  There is a tremendous amount of emotional content to his call for more deference to economic theory in law in support of the status quo. Posner encourages us to bow down before the market and accept the status quo.  This emotion drives his scholarship and its narrative.  Literature has not saved him, but those of us who use literary forms never thought it would.  We have made much less grandiose claims.   We have believed that our stories would persuade some people to think differently about the world.  We have done that -- or else Posner would not feel the need to put us in our place.

I started this essay with a quote from The Fellowship of the Ring about the ring of power.  I did mean to analogize the ring to economic theory.  Some may contend that Judge Posner's work does not support my charge that he believes in just economics.  The truth is that, like for the ring of power, there may be other rings, but they are always subordinate to the power of economic theory.  Clearly economic theory is the ring of power for Judge Posner (though I do not mean to suggest that economics is evil, or that the power that Posner seeks to wield is born in darkness or Mordor).   In a postmodern world, the ring of power is what we make of it. Economic analysis sometimes limits or distorts our vision, but it is not good or bad.  It depends on how law uses it.

Selected References:

For related information, see Jerome McCristal Culp, Jr., Choice, White Supremacy, and Coleman: Philosophy of Economics, Race, and the Law in Brian Bix, editor, Analyzing Law: New Essays in Legal Theory (Oxford University Press, 1998) and Jerome McCristal Culp, Jr., "The Michael Jackson Pill: Equality, Race and Culture," 92 University of Michigan Law Review 2613 (1994).

Other Reviews

Speaking Respect, Respecting Speech
Richard L. Abel
Chicago, IL: University of Chicago Press, 1998
Cloth: $30.00
Pp. x, 282

The central theme of this erudite book is that contests over speech (e.g., Nazis versus Jews and African-Americans) are best understood as struggles for respect.   Professor Richard Abel (UCLA, Law) capably discusses a rich variety of speech clashes.  These include the debates over the MacKinnon-Dworkin anti-pornography ordinance; the Nazis's planned march in Skokie; the fallout around the world over Salman Rushdie's Satanic Verses; the portrayals of homosexuality in the arts and media; the controversy surrounding the Smithsonian Enola Gay exhibit and the Japanese admission of using "comfort women" during their Korean occupation; the divergent interpretations of race in New York City politics; and the varied reactions of international audiences to Stephen Speilberg's Schindler's List.  Abel's aim in these discussions?   To reveal how all speech contests are demands for respect in a "zero-sum" status competition played out in our politics.

Professor Abel's evidentiary approach is argument by example, a style which is at times overwhelming simply in virtue of the sheer numbers of examples he discusses, but his organization is well-conceived and examples well-chosen.  I did find curious the lack of counterexamples or potential counterexamples.  This suggests that, on closer inspection, Abel's thesis may turn out to be either trivially true or empirically false.

The analysis Abel proposes is designed to equip us with a better theoretical framework for responding to speech harms or speech crimes.  Once we understand that these contests turn around the axis of respect, we are better able to appreciate how we can "transcend the often sterile debates between civil libertarians and regulatory enthusiasts" and "devise a remedy that avoids the twin pitfalls of promiscuous tolerance and statist meddling."

Chapter 5 introduces Professor Abel's first foil, the "absolutist position that the State should never constrain speech and must observe strict neutrality as a speaker."  This he calls civil libertarianism.  Abel rejects this response, arguing that speech should be constrained because the fundamental values that speech serves are "ambiguous," "in conflict," and must be "balanced against other values."  Moreover, the state cannot and should not be neutral, since private constraints on speech would then have free rein to corrupt the marketplace of ideas.

Professor Abel's support for his argument is a litany of examples of actual speech regulations from around the world.  He invokes government bans on extortion; blackmail; conspiracy; disclosure of official secrets; defamation; and obscenity, among other examples.  He mentions government regulations concerning time, place, and manner; self-naming; criminals profiting from their crimes; the speech of judges and other legal actors, and more.  Yet, Abel makes no serious attempt to defend or explain any of these laws, or to draw out their underlying rationales or principles.  The reader is not helped, then, to see what other values are in conflict with speech values, and why those values outweigh the speech values.

On the issue of state neutrality, Abel claims that it is "neither possible or desirable."  Here, too, the argument proceeds through a litany of unexamined examples.  Neutrality is impossible because the government takes "partisan positions" against foreign enemies; requires subordinates to follow government policy; attempts to control private actors; attaches strings to its funding for the arts, humanities, media, and science.  And neutrality is undesirable because the so-called "marketplace of ideas" "imposes constraints far more pervasive than those emanating from the state."  For support, another long list of examples: business interests influence speech through political contributions; lobbying; advertising; funding for friendly scientists; controls over book and periodical publishing, radio and television programming, and film, etc.  Apparently, the existence of these private restrictions is morally heinous and calls for governmental intervention -- although Abel offer no specifics about which specific private restraints on speech require intervention or what justifies the government's intervention.  He concludes that "[a]lthough speech has profound value, it can never be free.  Expression is always subject to constraints, public and private."

Chapter 6 presents Professor Abel's second foil, the state regulation or government intervention approach to the "real and serious evils" of pornography, hate speech, blasphemy, media violence, and advertising of harmful products.  Abel rejects this response because it is "always costly, usually ineffective, and sometimes counterproductive."

Argument by example, once again.  The British 1965 Race Relations Act brought "almost as many convictions of black-power advocates as white racists, while the more sophisticated among the latter evaded punishment."  All attempts to trap speech within legal categories fail, as witnessed by the attempts to define sexual subordination of women and hate speech, as well as exemptions for art, ambiguities of motive, and the importance of context.  Regulatory proponents typically fail to establish the necessary causal links between speech and harm, and often do not see that speech not subject to their regulations contribute as much or more to the harms.  Moreover, proscriptions often are easily evaded (as in the case of cigarette advertising) or perversely publicize and valorize the offenders (as in the case of Frank Collins and his Nazi marchers).

One may wonder, if this critique of state regulation is accurate, how was it civil libertarianism was wrong?  If government regulation is misguided, doesn't that leave us with civil libertarianism?  Not according to Professor Abel.

Chapter 7 presents the third, and Abel's favored, response to the harms of speech.   The state should take a side by amplifying "silenced voices" and constructing social settings that "encourage victims to complain through an informal process that evaluates speech in context and makes offenders render an apology acceptable to both victim and community."  This path reduces one harm of speech (disrespect) while minimizing the harms to speech (suppression).

Without articulating or defending any specific proposals, Professor Abel stakes out his moral high ground -- namely, the government should take the side of historically disadvantaged groups.  Since the issue is about respect, the response should be one that equalizes respect.  Thus, "[s]ubordinated peoples must be helped to challenge disrespectful speech," and communities "should regulate speech informally" in order to equalize status, rather than resolve conflicts or settle disputes.  This is accomplished with apologies.  Abel writes, "What do victims want?  They want offenders to acknowledge the injury and apologize."   He thus recommends a structured conversation between offenders and victims in which "those whose words reproduce status inequality" are required to provide apologies that are acceptable to victim and community.

In reading this book, I had hoped to find out more about what legal and moral distinctions and principles are at work in freedom of speech issues, and how the author's approach might actually be implemented.  I was disappointed.  Indeed, these omissions from the book reminded me of the lawyer's adage: "When you don't have the facts on your side, argue the principles.  When you don't have the principles, argue the facts.  And when you can't argue the facts or the principles, bang the table."  In at least three respects, I heard a lot of table-banging.

First, Professor Abel neglects relevant legal and moral distinctions and principles.   For example, he continually slides back and forth between state regulation and private regulation without discussing the legal distinctions and principles separating the two.  When he does (on a rare occasion) refer to a legal concept or doctrine, he does not analyze or apply it, much less attack or defend it.  One example slides over into the next; no attempt is made to address potential or actual differences between them (e.g., differences between English law, Indian law, and American law).  This is quite disconcerting, given the wealth of speech free doctrines that exist in our constitutional system today: fighting words, defamation, captive audience, heckler's veto, quid-pro-quo and hostile environment sexual harassment, overbreadth, undue vagueness, arbitrary enforcement, etc.

Second, Professor Abel appears to pose a false dilemma: we must choose either his apology approach, "impoverished" civil libertarianism, or "excessive" state regulation.  No one seriously defends the absolutist civil libertarianism he attacks in Chapter 5 or the excessive regulatory view he critiques in Chapter 6.  In setting up these straw men, he neglects to undertake the absolutely crucial issue of determining what speech should be regulated and why it should be regulated.  For example, does Abel accept or reject Professor Richard Delgado's (Colorado, Law) proposal that racist speech on public campuses be regulated?  Again, does Abel accept or reject Professor Kingsley Browne's (Wayne State, Law) proposal that hostile environment sexual harassment cases be limited to those that involve acts and are not pure speech cases?  Surely Abel would not submit all cases of speech harm to his informal process of apology; some cases would be so trivial as to be left alone, whereas others would be so egregious as to deserve legal punishment.  Which ones?  Abel is silent on this matter.

Third, Professor Abel ignores the details and implementation of his apology process.   Who would take the complaints, and why should those particular persons or groups be the ones to do so?  Who would determine whether the complaint was legitimate or not, and in accordance with what rules?  Who would determine what apology was appropriate, and whether it was accepted or not?  Answers to such questions are crucial, given Abel's own convincing evidence of our fractured moral community.  When Nazis spew hate about Jews and African-Americans, is there some kind of speech commission they should complain to?  Will the victims of Nazi hate speech be satisfied with a forced apology?  How will this process usefully balance the respect differential in such cases?  Will the system become a tyranny of an "enlightened" elite enforcing their morality on an "errant" public?  Will its encouragement of complaints about speech lead minorities and women to wallow in a victimization mindset, and derail their pursuit of tangible economic and educational opportunities?  Are women and minorities after respect, or are they after something else too, such as economic wealth or political power?

Professor Abel's book has many strengths.  It presents an enormous number of examples of speech incidents, and organizes them in the useful rubric of struggles for respect.  Its notes and bibliography are excellent.  It effectively catalogues many problems with state regulations on speech, and correctly emphasizes the need for informal mechanisms to respond to speech incidents.  Ultimately, however, its neglect of justification and implementation left me unconvinced of its major theses.

Timothy C. Shiell is an Associate Professor of Philosophy at the University of Wisconsin-Stout.  He has published many articles and two books in the philosophy of law, the most recent being Campus Hate Speech on Trial (University Press of Kansas, 1998).

Constitution-Making in the Region of Former Soviet Dominance
Rett R. Ludwikowski
Durham, NC: Duke University Press, 1996
Cloth: $75.00
Pp. 641

The 1990s witnessed dramatic developments in constitutionalism as the formerly communist states of Central Europe, Eastern Europe, and the Soviet republics adopted modern, liberal constitutions.  Professor Rett R. Ludwikowski's study of the constitutional history of this region up to 1995 is a significant contribution to the neglected subject of comparative constitutionalism generally and an invaluable reference work for those wishing to understand current developments.  It is the best and most thorough single-volume work to appear in the English language on constitutional developments in the formerly communist states.

The book examines most, but not all, of the states that fell within the Soviet bloc.   Without providing an explanation for his particular selection of countries, Professor Ludwikowski focuses on Russia, all of the formerly communist states of Central and Eastern Europe (except the German Democratic Republic), and two of the three Baltic countries (Latvia is omitted).  Albania and Bulgaria are included in the study, but none of the other Balkan states is considered.  Of the Transcaucasian states, only Azerbaijan is considered.  Kazakhstan and Kyrgyzstan are discussed, but none of the other three former Soviet republics of Central Asia is included.

The first half of the 600-page book consists of Professor Ludwikowski's historical and legal analysis of the constitutional background of each of the states under consideration.   The second half reproduces the post-1989 constitutions of those states, as well as the 1977 Constitution of the former Soviet Union.  The reprinted constitutions obviously include neither amendments adopted after the book went to press in 1995, nor the new Polish Constitution that was ratified in 1997.  Although the constitutions certainly will be convenient for those wishing to have ready access to the documents, they will be unsatisfactory for those needing to conduct current research.  (Updated versions of the constitutions are available on the Internet.  For example, see the International Constitutional Law site.  Many countries operate their own home pages and include their respective constitutions.)  Readers will have different judgments about the utility of including the constitutional texts.  This reader would have much preferred the inclusion of a thorough index rather than the spotty and inconsistent one that was provided.  Given that the constitutions are included, it would have been of use to the comparativist to have had those texts indexed as well.

Professor Ludwikowski undertakes two tasks.  First, he outlines the constitutional histories of the states under consideration, with an emphasis on the drafting and ratification process of the post-1989 constitutions (chapters 1, 3, and 4).  Second, he compares and contrasts the constitutions under consideration (chapters 2, 5, and 6).

In my opinion, the more valuable part of Constitution-Making is the first segment, which draws into a single volume a great deal of background information about constitutional traditions and recent trends.  The brief historical survey (chapter 1) provides a history of constitutional developments prior to World War II.  It contrasts Poland's long experience with constitutionalism (if not constitutions) to that of Russia's long experience with totalitarian rule.  This survey is, however, quite short.  For example, the discussion of Hungary begins not with the Golden Bull of 1222 (which played a role in Hungary country similar to that played by the Magna Carta in England), nor with the Austrio-Hungarian empire, but with the proclamation of the Republic of Hungary in 1918.  In chapters 3 and 4, Professor Ludwikowski describes seriatim the process of drafting and adopting the new constitutions for each of the countries falling within his study, followed by a short appraisal of the extent to which human rights are respected within the countries.  (His principal source for evaluating human rights standards is the U.S. State Department's annual Country Reports on Human Rights Practices.)

This approach -- moving from the drafting and adoption of the constitutions and then observing the human rights situation -- omits what may be the most important element of constitutionalism: the process of interpretation and implementation of the constitutions.   Just as one cannot possibly understand the significance of the Fourteenth Amendment to the U.S. Constitution by looking at the text and ignoring the civil rights acts, so one cannot understand the meaning of the new constitutions of Central and Eastern Europe without examining the statutes that implement the constitutional norms.  One will understand much more about religious freedom in Russia, for example, by examining the implementation of its Law on the Freedom of Conscience and Religious Associations than by reading Articles 14 and 28 of the Russian Constitution.  Professor Ludwikowski pays little attention to the laws on media, associations, and religion -- all of which are more likely to provide more texture to the meaning of the constitutions than the texts and the drafting histories can provide.

Professor Ludwikowski similarly does not evaluate the decisions of the constitutional courts that interpret the constitutional language.  A standard difference between lawyers trained in the common law and those trained in the civil law is, of course, that the former typically focuses on court decisions construing constitutional language whereas the latter will be more likely to look at the text itself.  Professor Ludwikowski -- a native of Poland who received his legal training at Jagiellonian University in Cracow before coming to the United States in 1982 -- approaches his task as one trained in the civil-law tradition.  His analysis of the different constitutions focuses almost exclusively on the texts of the constitutions.  Inasmuch as the states at issue adhere to the civil-law tradition, Professor Ludwikowski's form of analysis is not inappropriate.  However, such an approach effectively undervalues the potentially significant roles that are likely to be played by the new constitutional courts.

Every constitution included for study in Constitution-Making provides for the creation of a constitutional court.  Unlike the United States Supreme Court, constitutional courts in Europe typically operate separately from the regular judiciary.   Indeed, the constitutional courts -- both in Eastern and Western Europe -- usually are considered to be political (rather than judicial) institutions.  Although the constitutional courts operate differently from the courts in the United States, and although decisions generally are not treated as stare decisis, the European constitutional courts nevertheless have adopted, to a surprising extent, the model of "judicial review" that was first brought to constitutionalism by the American judiciary.  The prestige and effectiveness of the constitutional courts vary from country to country, and one of the most interesting developments to watch will be the extent to which these courts become active and respected players in the political and constitutional lives of their countries.  The constitutional courts in the Federal Republic of Germany and Hungary, for example, are respected institutions that are actively engaged in the constitutional discussions in their states.  In Russia, the first Constitutional Court, which operated until 1993, was highly politicized and the new Constitutional Court has yet to have its full impact felt.

Although Professor Ludwikowski acknowledges, in principle, the importance of constitutional courts, he does not discuss the substance of their decisions.  For example, in what might prove to be the Marbury v. Madison of the Russian Constitutional Court, a 1995 case construing the power of the Russian President to commit armed forces to quell separatist forces in Chechnya, Professor Ludwikowski only mentions in passing that the decision was made and offers no substantive analysis of its importance.  Even when speaking of the German Constitutional Court as a potential model for other European states, Professor Ludwikowski discusses the institutional structure of the Court but none of its decisions.

In anticipating future developments in comparative constitutionalism in Central and Eastern Europe, Professor Ludwikowski -- again revealing his civil-law training -- does not focus on the implementing statutes and constitutional court decisions, but awaits the adoption of more constitutions.  "[T]he final evaluation of postsocialist basic laws [i.e., constitutions] must be postponed until more East-European constitutions are formally adopted."  Ultimately we will need a book that sets forth for the emerging constitutional jurisprudence of Hungary and Poland the type of study that Donald Kommers has provided in The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press, 1997).  One very recent book that furthers this inquiry is a collection of essays edited by Rein Müllerson and others entitled Constitutional Reform and International Law in Central and Eastern Europe (Kluwer, 1997).

Although there are many thriving fields of comparative law, comparative constitutionalism is not among them.  This ought to be surprising because one would imagine that constitutional law should be among the richest and most interesting fields of legal study.  In countries with long constitutional histories -- Great Britain and the United States being the preeminent examples -- it is the constitutions that, more than any other source, establish the legal basis of power relationships among the political institutions and that speak most directly to the rights of the citizens against their governments.

Despite this rich potential, comparative constitutionalism often comes across as dry, unilluminating, and routine.  Comparative constitutionalists catalogue constitutions with regard to such topics as how they are drafted (special convention or legislature), the mechanism for their adoption (popular or legislative ratification), the executive structure they create (parliamentary, presidential, or mixed), the nature of the legislative branch (bicameral or unicameral), whether the judiciary has the power of constitutional review, the division of powers within government (separation of powers or checks and balances), and the relationship between the central and local governments (unitary or federal system).  Factors such as the personality of Charles De Gaulle or the role of Boris Yeltsin are offered as explanations for why one feature or another is adopted.  Such general comparisons and observations, although appropriate, are frequently unilluminating.

Professor Ludwikowski suggests that he was motivated to write his book, in part, by a quest to determine whether a single "constitutional model" has emerged in the states of Central and Eastern Europe.  He answers his question in the negative by saying, somewhat peculiarly, that "no single constitutional model is surfacing in East-Central Europe because the constitutions in this region ceased to be granted."   If Professor Ludwikowski's only point is that one constitutional model was not externally and universally imposed on all of the countries, then his original question was rhetorical and his answer would be trivial.  But this is not, of course, what he is saying.

While it is no doubt true that, with the understandable exception of the Czech and Slovak constitutions, there are wide differences among them, it also reasonably can be observed that there are striking -- albeit not universal -- similarities among them.   The new constitutions, unlike their socialist predecessors, provide for: democracy (governments are to be freely elected by the people), frequent elections, multi-party elections, parliamentary government (on occasion with strong presidents -- and in the case of Russia an extremely strong president), the rule of law, the importance of human rights, and constitutional courts.  Although they differ on many important matters, such as the right of individual appeal to the constitutional court, almost all, on their face, appear to establish liberal constitutional governments.  The constitutions all provide formal guarantees for freedom of expression, religion, and association, although they do so in different ways.

Professor Ludwikowski understands and identifies these similarities.  Yet he concludes, "no single constitutional model is surfacing."  One wonders what he could be implying.  Indeed, it is reasonable to suspect that the differences among the states will be more in their manner of implementation of laws than in the differences of their constitutional texts.  Nevertheless, for a field that continues to recognize Mauro Cappelletti and William Cohen's 1979 casebook, Comparative Constitutional Law: Cases and Materials as a classic work, Professor Ludwikowski's monograph is a significant addition to comparative constitutionalism.

Professor Ludwikowski self-consciously undertook the herculean task of analyzing the dramatic and simultaneous events taking place in more than fifteen countries.  In attempting to bring coherence to an inherently chaotic situation, he wisely does not purport to offer more than he is capable of providing.  He recognizes that his work is essentially an interim study that can be completed only after additional time has passed, developments have sorted themselves out, and after there has been more opportunity for sober reflection.  Professor Ludwikowski wisely advises that "[s]till, as of 1996, without offering some groundless predictions, I cannot tell much about how these constitutions will operate.  [That would need] to be undertaken later."

For the English-speaking reader who wishes to update Professor Ludwikowski's work and to follow current constitutional developments in Central and Eastern Europe, the two most useful sources are the journals East European Constitutional Review and Review of Central and East European Law.  The source on which Professor Ludwikowski relied significantly for reporting on human rights practices in the countries, the U.S. State Department's Country Reports on Human Rights Practices, is updated annually.   Changes in constitutional texts are available, as was mentioned above, on the Internet.

We continue to need in an in-depth study of the path from the adoption of the constitutions to the incorporation of a constitutional way of life through the rule of law.  As Montesquieu said in his Notes on England, "when I visit a country, I do not examine its laws; rather, I observe how it applies the laws it has, for there are good laws everywhere."  The countries will, no doubt, take very different paths in applying their constitutions.  The long-term path now looks very encouraging for Poland and Hungary, and bleak for Belarus and Russia.  Charismatic leaders, constitutional court justices, responsible electorates, and lawyers taking cases on a pro bono basis will all play a role in future developments.  We can only hope that Professor Ludwikowski will continue to play the role of expert observer, and that he will revise and update Constitution-Making -- including discussion of laws implementing constitutional provisions and constitutional court decisions -- as developments become clearer and as the opportunity presents itself for further reflection.

T. Jeremy Gunn is an Executive Fellow at the United