BOOKS-ON-LAW/Book Reviews - February 2000; v.3, no.2

Contents | Reviews | Talkback || Archive || Books-on-Law Home
  • Chang, Robert S. Disoriented: Asian Americans, Law and the Nation-State. Reviewed by Margaret Y. K. Woo.
  • Hirshman, Linda R. A Woman's Guide to Law School. Reviewed by Jennifer Gerarda Brown. Reply by Linda R. Hirshman.
  • Przybyszewski, Linda. The Republic According to John Marshall Harlan.Reviewed by Calvin R. Massey.
  • Weinstein, James.Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine. Reviewed by Jan A. Neiger.
  • Talkback

Battle Between Civil Rights and Civil Liberties
by Jan Alan Neiger

Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine
James Weinstein
Boulder, CO: Westview Press, 1999
Cloth: $65.00 / Paper: $24.00
Pp. 256

In the last decade, an outpouring of hate-speech literature has emerged, either exposing the threats to free speech in our society or urging states to adopt legislation in an effort to suppress hateful ideas and expression.Often, the academic and popular literature is replete with extremists on each side of the debate offering little or no credence to the opposition.

The passion emanating from both sides is not surprising. The debate over the breadth of First Amendment principles is a conflict over two deeply held values: the right to free speech and the right to be free from discrimination. A welcome and refreshing addition to this fray is James Weinstein's Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine. Weinstein's new book provides readers with a wide-ranging and revealing account of free speech principles in a thoughtful, frank, and balanced manner.

While much of the recent hate-speech literature has focused on racist speech, Weinstein accepts the daunting task of tackling the issue of pornography as well. He equally divides each of his chapters between these two subjects. Whether reviewing current regulations on pornography and hate speech or examining arguments advancing broader hate speech and pornography laws, Weinstein is quite effective and insightful in his approach. In doing so, he takes on the usual suspects, appreciating their concerns and recognizing the merits of some of their arguments, but eventually dismissing their call for broader hate speech and pornography laws.

It should be noted, though, that Weinstein paints with too broad of a brush in lumping all free speech critics into the same category with Catherine MacKinnon, Andrea Dworkin, Charles Lawrence, and Mari Matsuda and referring to them as "radicals." To be sure, while often zealous, misguided, and sometimes narrow thinking, many of those seeking exceptions to free speech principles are well intentioned and harmless. Indeed, society likely would be better off if basic behavioral and civility standards found their way into community life.

Aside from this minor objection, Weinstein's book is a pleasure to read. It is a fine work of free speech history and contemporary issues facing this nation. It should be read by anyone interested in an honest and practical discussion of the dynamics between civil liberties and civil rights.

The Free Speech Doctrine

Hate Speech is divided into three parts. The first part of the book is dedicated to providing readers with a sufficient understanding of the basics of the free speech doctrine. The goal of these three chapters is to educate readers in a manner that will allow them to evaluate the various claims and charges that critics have made of the doctrine.

Weinstein does a yeoman's job in summarizing the free speech doctrine and guiding readers through the rules established by the Supreme Court. He accomplishes this task with great clarity and ease. In doing so, Weinstein explores the governing rules and the type of speech found outside First Amendment principles, and explains why certain hate speech and pornography laws are unconstitutional under the current doctrine.

Of particular importance in these chapters (and resonating throughout the book) is Weinstein's insistence that any exceptions to the free speech doctrine should be viewed with suspicion and caution.Hate speech and pornography laws pose a danger, claims Weinstein, because they may be used against the very same people they were designed to protect. For example, the "fighting words" exception, which found its way into our legal lexicon with the approval of the High Court in 1942 with Chaplinsky v. New Hampshire, was used in the 1960s by law enforcement officials to prosecute antiwar protestors; and group libel laws, established in the 1950s to protect citizens of any race or color, were used by southern officials to suppress the protests of civil rights protestors.

Weinstein notes that nothing has changed today:

The prohibition against content discrimination peculiar to U.S. free speech doctrine is a conscious reaction to persistent misuse of various speech regulations against radical dissidents prosecuted not because their expression realistically posed any danger to interests that the laws legitimately sought to protect but because their ideas offensively challenged the status quo. In this regard, it is noteworthy that the only case in which a musical recording was declared obscene involved attempts to suppress the sexually vulgar music of a black rap group under Florida's obscenity laws. (144)

These experiences are not unique to the United States. Weinstein cites several examples in other countries where broad hate speech laws backfired and were used selectively to prosecute minorities rather than the conduct and groups for which the laws were enacted.

The Doctrine's Preference for Liberty over Equality

The second part of the book spends time investigating claims that the free speech doctrine "systematically discriminates against the interests of women and minorities." (67) In the chapters that follow, Weinstein examines two particular complaints: (1) the rich and powerful have made exceptions to the free speech principle to protect their own interests while ignoring the concerns of women and minorities; and (2) free speech maintains the status quo and stifles social progress and equality. The author concludes that both statements are grossly overstated.

Weinstein agrees that the free speech doctrine is not ideologically neutral. Instead, "the very structure of free speech doctrine is seen to prefer democracy's commitment to liberty over its guaranty of equality." (92) But because we "live in a country that is committed to public discourse," he argues that the doctrine fails to give equality any special immunity for "fear that reducing protection to speech that attacks constitutional norms will lead to unprincipled decisions as well as a stagnant society." (90) Rather, while unrestrained public discourse will not quickly or even inevitably lead to enlightened social progress, "overtime, unfettered public discussion will lead to a fairer and more just society than will government control over the content of public discourse." (106)

But what is the consequence of this supposed favoritism?Weinstein is sympathetic to the argument that the preference of liberty over equality simply perpetuates and reinforces gender and racial inequality. He suggests, however, that the free speech doctrine is at best a single piece of the inequality puzzle, since it generally "mirrors deeper inequalities resulting from capitalism or popular prejudice." (104) Only where the doctrine has perpetuated the interests of the rich and powerful, and in particular the inequality of access to the influential media such as the High Court striking down campaign financing laws limiting contributions that individuals and corporations could make (Buckley v. Valeo [1976]) can free speech principles be fairly blamed.

Weinstein, though, too quickly dismisses the notion that other media now available to the larger population (such as public access television and the Internet) are curbing the enormous advantage that the wealthy and powerful have in the media. The Internet has proven to be a powerful tool in generating free exposure to events and in assembling mass protests. The movie The Blair Witch Project owes much of its success to the guerrilla-marketing effort and word-of-mouth campaign found on the Internet, and the recent failure of the World Trade Organization Conference in Seattle was partly due to the ability of protestors to coordinate their activities by means of web sites and e-mail.

Nonetheless, Weinstein correctly points out that the clash between liberty and equality cannot be solved simply by seeking out the primacy of one value over another. The issue is much too complicated for such a simplistic and ideological approach. An absolute view on either is neither practical nor constitutional. Instead, Weinstein calls upon people on both sides of the debate to scrutinize carefully the regulation at issue, and judge (as best we can) whether the hate speech and pornography bans will serve or obstruct equality, whether they will chill expression that otherwise would promote racial and general equality, and what impact they will have on the entire body of the free speech doctrine.

Harms Caused by Hate Speech & Pornography and Merits of Suppressing Speech

Before embarking on the above journey, the harms caused by hate speech and pornography need to be identified and any proposed restrictions need to be assessed to determine how effective they would be in eliminating the identified harms. In Part three, Weinstein turns to these issues and does his best work. In the final chapters, Weinstein explores the merits of hate speech and pornography regulations and assesses whether the free speech doctrine should be modified to permit the suppression of sexually explicit material and racist ideas. Interwoven throughout the final part of Hate Speech is an insightful exercise on the weighing of the costs and benefits of incorporating additional exceptions to the free speech doctrine.

There is little to quibble with in these four chapters. Weinstein is successful in examining and dissecting the possible harms associated with hate speech and pornography. These harms are discussed in greater detail in the appendix, where Weinstein documents the various scientific studies related to pornography (there is an absence of studies on the harm caused by hate speech)and the criticisms and merits of those studies. These alleged ills are well known: promoting racist and sexist beliefs, causing psychic injury, promoting and causing illegal acts of discrimination and violence against minorities and women, and silencing women and minorities.Weinstein concludes, however, that studies have failed to demonstrate with certainty the linkage between sexual violence and discrimination to hate speech and pornography.

While recognizing that many of the ills allegedly associated with hate and pornography are offered with no concrete evidence, Weinstein acknowledges that the possibility of such harms is a cause for concern. And he does agree that legislation would protect individual dignity, shape and maintain societal values, and "demonstrate to women and minorities that those in power at long last have begun to take their concerns seriously and reassure them that our lawmakers do not share the degrading view of them portrayed in such material." (138)

But at what cost? To be sure, one of the more troubling aspects of broad speech and pornography laws is that they will be applied against those groups they were designed to protect. And not only would such laws likely be applied discriminatorily, but Weinstein asserts as well that:

Like the death penalty for drug "kingpins," hate speech and pornography legislation can be seen as just another quick fix that Americans are so fond of splashy, superficial remedies that do nothing to address the complex issues underlying large societal problems but may well detract from finding real solutions. (155)

The analogy may be overstated. Nonetheless, Weinstein raises a fundamental question, one that free speech critics have failed to answer:Would broad hate speech and pornography laws have any real impact in bringing about racial or gender equality, or are such laws simply a cosmetic remedy to a perceived problem?

Solutions for Combating Hate Speech and Pornography

To combat the lack of civility and tolerance in our society, Weinstein stays faithful to his First Amendment principles by offering constructive solutions without infringing on individuals' free speech rights. Some of these remedies are already in place, but should be pursued with increased vigor. In particular, Weinstein calls for greater enforcement of civil rights and domestic violence laws to help alleviate the harms suffered by minorities and women.

For example, Weinstein believes that the free speech doctrine can permit, through properly drafted regulations, the prohibition of much of the so-call fighting words and hate speech found on college campuses. In particular, he opines that public colleges and universities should focus on Title VII's prohibition against discrimination on the basis of race, color, sex, religion, or national origin rather than aiming at racist speech. But such a solution is not so easily achieved.

In a matter involving Northern Kentucky University, the court said that "[t]he fact that the range of speech or expressive conduct prohibited by the [school's sexual harassment] policy overlaps the range prohibited by Title VII and Title IX, is not necessarily determinative of whether the sweep of the policy impermissibly extends into the region protected by the First Amendment." Booher v. Bd. of Regents, Northern Kentucky University (E.D. Ky., 1998) As critics of the free speech doctrine often ignore, "Title VII is only a statute, it cannot supersede the requirements of the First Amendment." UWM Post, Inc. v. Bd. of Regents of the Univ. of Wisconsin System (E.D. Wis. 1991), p. 1177.

Weinstein also submits that counterspeech and vociferous condemnation by both the government and private individuals of racist and sexist views can go a long way in showing that the majority does not share these same views, making visible to others the possible harms associated with racism and sexism, and providing a missing voice to the debate. Indeed, he calls upon the government to subsidize those who otherwise do not have the resources to counter hate and pornographic speech (although he does not go into great detail on how this could be realized), and to begin educational campaigns to raise public consciousness about the possible harms associated with this type of speech and conduct.


Weinstein paints a detailed picture of the conflict between civil rights and civil liberties in our nation today. But perhaps it is time for us to paint a new picture one that focuses not on laws and judges, but on ethics, respect, and civility. Simply put, women and minorities will not be empowered by measures that suppress free speech rights. And hate speech will not be erased until our children are taught to value equality, diversity, and appropriate behavior. "Good values," says University of Maryland's Gary Pavela, "are molded by habits." Synfax: Weekly Report (Dec. 20, 1999), p. 927.

That said, we can take some guidance from Federal Reserve Board Chairman Alan Greenspan, who offered the following simple message on success, character, and civility to graduates at Harvard University:

But learning and knowledge and even wisdom are not enough. National well-being, including material prosperity, rests to a substantial extent on the personal qualities of the people who inhabit a nation.

At the risk of sounding a bit uncool, I say to the graduating class of 1999 that your success in life, and the success of our country, is going to depend on the integrity and other qualities of character that you and your contemporaries will continue to develop and demonstrate over the years ahead. A generation from now, as you watch your children graduate, you will want to be able to say that whatever success you achieved was the result of honest and productive work, and that you dealt with people the way you would want them to deal with you.

Jan Alan Neiger is Assistant Chief in the Education Section of the Ohio Attorney General's Office. He received his J.D. from The Ohio State University College of Law and his Ph.D. in Higher Education Administration from Bowling Green State University. The opinions and observations in the Review are the author's, and not necessarily those of the Attorney General of Ohio.

Editors' Note: For Books-on-Law reviews of related interest, see David Kretzmer's review of Must We Defend Nazis? (1997) and Robert M. O'Neil's review of When the Nazis Came to Skokie (1999). See also Richard Weisberg's review of The Law Under the Swastika (1998).

A Guide to the "Goodies"
by Jennifer GerardaBrown

A Woman's Guide to Law School
Linda R. Hirshman
New York, NY: Penguin Books, 1999
Paper: $14.95
Pp. vii, 290

In his work on theories of evolution, Steven Jay Gould has urged people to focus on changes in the overall range of variation in biological systems. By this, they purportedly will see that certain processes over time have the effect of shrinking disparities, making the occurrence of extremes less likely. In Gould's famous example, the decline of the .400 hitter in baseball is balanced by improved batting averages for the weakest hitters. If observers were to look only at the very best batters in the major leagues, they might draw inaccurate conclusions about the overall quality of batting in professional baseball, because they would miss important developments at other points in the distribution.

Gould's argument has some salience in legal education as well.The flurry of law school rankings has increased in recent years, many in response to U.S. News and World Report's annual review. To this group of evaluators we can now add Linda Hirshman, a former law professor and now professor of Philosophy at Brandeis University, who has written A Woman's Guide to Law School. This lively, sometimes gossipy, guide will prove helpful to many women considering law school. But, I fear Hirshman's intense focus on law review and the women who qualify may cause the book unintentionally to mischaracterize some schools and misguide the women who turn to it for advice. Attention to the full range of outcomes may provide a more accurate picture.

Some Good Advice

There are many things to appreciate about Hirshman's guide.Mostly, she gives advice that, for many women, will be quite useful. (Much of the advice would also be good for men, by the way, but like many books directed to women, Hirshman's advice is likely to be dismissed by prospective male law students so much the better for their female classmates.) She adopts the tone of a trusted aunt (structurally cooler than a mother), someone who has been around the block a few times and has a dry, wise, no-nonsense view of an otherwise mystifying world. She will permit no illusions on the part of her pupil, though if the reader decides to persist in this plan to attend law school it will be with her eyes wide open, her intellectual ammunition ready, and her emotional armor firmly secured.

Hirshman dissects a host of subjects for her reader, all with the intent of revealing the inner workings of legal education and demystifying the LSAT, law school applications, course catalogs, and interviews at prospective schools.She also deconstructs so-called "Socratic" questioning in the first year, all with the goal of reducing stress once students have matriculated. Others have written about these subjects before, but Hirshman integrates a wider variety of subjects, and with such wry humor that readers may hear and understand from Hirshman what they would never have read in law review articles or other feminist critiques of legal education.

Open that Summer Camp, Professor Hirshman

One of the greatest strengths of this book lies in Hirshman's periodic discussion of the law. To illustrate her points about the way law is taught, she gives her readers brief examples from the law of Torts or Contracts. These are lively and accessible introductions to "the 'Law' in Law School" (8) that many readers will find substantively helpful, both for appreciating what they might be getting into and for actually understanding course work once they're in. The examples are detailed enough that they give readers a realistic taste of first-year subjects. When Hirshman asks her readers whether these examples are interesting to them, she provides a good measure for "fit," because a reader who is uninspired by these clear but intriguing hypotheticals is not likely to find law school very engaging, either.

Perhaps even more importantly, if a reader can retain some of the detail in Hirshman's tutoring, she'll have a leg up with respect to certain subjects, e.g., citations forms, distinctions between state and federal courts, the historical origins of procedure and practice, and the relationship between courts and legislatures. Hirshman is an effective tutor because she makes clear to her readers that she's on their side; she encourages them to believe that these fundamentals are more straightforward than they might think. Hirshman is thinking about offering young women "a short course in law school before they start the first year, so that the first-year classroom won't be so surprising." (270) This is a good idea, and the book demonstrates that Hirshman would teach such a course with skill.

The "Femscore" Rankings

Hirshman's goal is to help her readers find law schools where they can "succeed." Although she acknowledges that women subscribe to various definitions of success (2), the book makes no bones about its working definition. Hirshman implicitly adopts the view she attributes to an unidentified professor at the University of Chicago: "Most of the goodies around here go to twenty percent of the class, who emerge in the first year. The other eighty percent spend the next two years licking their psychic wounds." (4) In this world, the way to "succeed" is to avoid "just being in the undifferentiated 80 percent" of the student body (5); law review is a "rough" measure of that success (23). Hirshman thus perpetuates a "winner take all" approach, even as she warns women to take note of it in the law schools they consider. (43)

The centerpiece of Hirshman's book is her "Femscore Ranking for Women," an analysis that groups law schools by median LSAT (as reported in the 1995 U.S. News and World Report Law School Rankings) and ranks them within these groups according to their "Femscore." Each school's "Femscore" is the sum of three figures: (1) "female faculty," the percentage of tenured or tenure-track faculty that is female, according to the schools' 1997-1998 catalogs; (2) "female students," the percentage of the classes of 1996 and 1997 that is female; and (3) "female success," the percentage of the general subject-matter law review that is female, expressed as a percentage of the women in the eligible full-time classes of 1996 and 1997. I stress the form in which Hirshman presents "female success," because (as Hirshman acknowledges) it effectively weights the third factor more heavily than the other two, and sometimes with perverse results.

Take, for example, the two top-ranked schools in "status category #1, schools with median LSATs of 166 or above." (139) Duke, ranked #1, has a female faculty measure of 20%, a female student measure of 40%, and a female success rate of 128%, which means that 51.2% of the law review is female. New York University, an extremely close second in the rankings, measures 20% for female faculty, 44% for female students, and 122% for "female success." Because NYU has a higher percentage of female students, though, even the lower "female success" measure means that 53.7% of the law review is female.So, although NYU has a higher proportion of female students (44% vs. 40%), a higher proportion of females on law review, and an equal proportion of female faculty, Hirshman perversely ranks NYU second. If "female success" were expressed as a simple percentage of the law review that is female, it would not only be weighted equally with the other two factors, it might yield more intuitively appealing results; in this example, NYU's "Femscore" would be 118 and Duke's would be 111.

This example shows that Hirshman's methodology can penalize schools that have higher numbers of women students. If schools started to game the "Femscore" ranking system as some currently do the U.S. News and World Report's system, they would have incentives to admit fewer women with higher credentials, hoping that a higher percentage of them would make law review. An extreme hypothetical may illustrate the point: A school where women made up 20% of the faculty and only 10% of the student body might not feel very "women-friendly," but if the law review were 20% female, this school would soar to the top of Hirshman's rankings, with a "Femscore" of 230 (20% female faculty + 10% female students + 200% female success). In practice, schools would probably not act upon these perverse incentives even if they were to arise, because Title IX prohibits sex discrimination in admissions.Still, the example may reveal something about the values that underlie Hirshman's system and the validity of the rankings in less extreme cases.

Moreover, Hirshman does not address the fact that, in other contexts, if an historically oppressed group has better than average outcomes, we sometimes use this as evidence of discrimination. So, for example, if African-American homeowners have lower default rates than Whites on mortgages with a particular lender, this may show that the lender is discriminating against the African-Americans, lending only to the financially strongest of the group. Or if police searches of vehicles turn up contraband at a lower rate with African-Americans than with Whites, this might be used as evidence of racial profiling inordinately frequent car stops of African Americans. So too, an unlikely but theoretically possible reading of Hirshman's data could be that the most "woman-friendly" schools the schools where women make law review in disproportionately large numbers are actually the schools discriminating against women in admissions.

Hirshman might argue that if a woman can get into such a school despite its discriminatory admissions, she might stand a better chance of succeeding there than at a school with less discrimination in admissions but fewer women on law review. Moreover, she might argue, Title IX should permit us to assume that 100+ "female success" rates are driven not by sex discrimination in admissions, but by a friendly and nurturing atmosphere that permits women to shine, outperforming men in the first year.

Still, I wonder about the shelf-life of Hirshman's rankings.Already, 1996 statistics seem out of date. The percentage of the faculty that is female can change in a short period of time, for better or worse.Schools can go on hiring sprees or lose a bunch of women in just a few years, as Hirshman warns her readers. (158) Also, the composition of the student body can fluctuate dramatically.

But even before those figures become obsolete, the rankings suffer from a deeper flaw: the weight Hirshman gives to law review membership means that the rankings virtually ignore the experiences of women outside that elite group. Granted, the data to measure woman-friendliness for the "undifferentiated 80%" would be harder to come by, and Hirshman has worked creatively with what she could get (she complains repeatedly about a lack of cooperation from law school deans in her efforts to compile more thorough, qualitative data about women's experiences, and she very helpfully shares with readers the questionnaire she sent to the deans). But, what about those women at the other end of the range of outcomes? Women who come to Hirshman's guide looking for advice about how to choose a law school ought to contemplate the possibility that they won't be willing or able to "succeed" by Hirshman's definition. Some might choose to reach for a school that admits them off the waiting list, where their incoming credentials suggest they will be lucky to earn grades in the middle of the class.Other than the probability of making law review, what other measures of "success" might such women use to evaluate schools?

Other important measures of woman-friendliness would ask about outcomes for women who come to a school in the bottom quartile of the class (according to LSAT and undergraduate grade point average). Do they (a) flunk out; (b) graduate in the bottom quartile but fail the bar; (c) generally exceed their dismal predictors by grading out of the bottom quartile, ending up closer to the middle of the class; or even (d) occasionally make law review? This more inclusive approach would ask what programs are in place at a given school to assist students who are having academic difficulty (Hirshman's survey asks about this (279), but the text does not address it at any length). It would ask about bar passage rates, which are certainly available in a general form for each school, if not by gender. Raising the prospects of women in the middle and bottom quartiles of law school classes would promote women's material advancement, consistent with Hirshman's goals.

My general concern with Hirshman's guide, then, is that even if women "succeed" proportionately to their numbers in law schools, eighty percent of women law students will be among the "undifferentiated."Hirshman spends so much energy telling readers how to stay out of that group that she offers them very little in the way of advice about how to "survive and succeed in law school" conditional upon their presumptive "failure" in round 1 of the game.

One Woman's "Success" is Another Woman's Sell-Out

No doubt about it, law school is a rough-and-tumble game with strange rules, Hirshman tells her readers in a spirit of generous candor.The women most likely to succeed (the "ideal candidates" for law school (6)) are naturals at the game or quick learners who can "retool" themselves to play by these new rules. (24) This creates a tension between ex-post and ex-ante goals that Hirshman does not sufficiently address.

That is, at times it seems that Hirshman can't quite decide whether she wants to create a group of women law students who will "succeed" according to the "unreconstructed [read traditional, male] norms" that currently dominate legal education (24) OR a group of women who will challenge those standards, demand a different approach, and create new ways of "succeeding" in the law. I think she wants both of these things, but she's realistic enough to see that each woman who actually attends law school may face some trade-offs between these goals.

She's pragmatic enough focused on the material here-and-now that the trade-off is pretty simple. If success under the unreconstructed standards is a necessary, incremental phase toward a new set of standards more influenced by women's presence in law school and law practice, then it is an incremental step she definitely wants women to take.

But she doesn't pay close enough attention, it seems to me, to the costs of that effort and the "success" that flows from it. It's an empirical question, of course, whether the women on law review tend to militate for change in legal education. Perhaps they are no less likely to do so than their lower-ranked classmates. I suspect, however, that privilege within a system makes a critique of that system simultaneously more credible (statements against interest are generally given particular weight) and more difficult.

Self-Screening or Scaring Away?

One of Hirshman's goals is to create a group of well-informed consumers who will give law schools the proper incentives to compete for women's business, trying to build reputations as women-friendly places.The trouble is that the unintended effect of the book may be to narrow the pool of women consumers to those less likely to demand a change in legal education.

Some of Hirshman's early discussion about "ideal candidates" for law school, for example, counsels self-screening.Hirshman stresses that "law school is not for everyone," and women should "look closely" at whether they should go at all. (6) This is good advice, but I fear Hirshman's Hobbesian descriptions of law school (e.g., "A lot of law school is about dominance" (131)) could cause more self-screening than is optimal, either for the individual women or for the larger interests of women in law. True, the women who persist in their plans to attend law school may enjoy it more, on average, and possibly get higher grades. But the profession as a whole, and law schools in particular, won't change as quickly if the malcontents go elsewhere.

Women who don't like law school, who chafe and struggle with the status quo, are often the ones who emerge to change the face of the law.Some of them come back to teach law with the conviction that they will do it differently. I want some of these women to go to law school, even if (perhaps, if I'm candid, because) they won't graduate at the top of their classes or get high paying, prestigious firm jobs. I'm afraid that Hirshman's book may reinforce the unfortunate view that these women are somehow illegitimate outsiders because they are not playing the game. Why, for example, should it "surprise" her that many of the women she interviewed "did not want to talk in class, edit the law review, or work for a Wall Street firm"? (6)

The desires she found instead sound pretty reasonable to me, but Hirshman lists them with a tone of distinct disapproval: "They wanted to be left alone in class rather than have to defend their answers in a high-pressure exchange, to have time for socializing rather than edit the law review, and to work in public interest jobs, as union-side labor lawyers, or in firms that don't require 'more than forty hours' a week." (6) In what seemed to me a highly uncharitable view of her fellow women, Hirshman says: "I wonder how many of the idealistic public interest students I interviewed are actually thinking their boyfriends or husbands will fill the money bill, although they'd be reluctant to admit it." (18)

In Hirshman's view, the women who want to be quiet in class, who aren't interested in the law review or big-firm jobs, are alienated and marginalized. She wants women to use their disagreement with the "existing law school order" as an opportunity for reform. To her credit, she devotes the final two pages of the book to changes her readers might want to make in law school once they've enrolled, including changes in pedagogy and course content. (271-72) By this time, however, I'm afraid that any potential rabble-rousers have abandoned plans for law school altogether; they're sending away for applications to Ph.D. programs in English or Philosophy.

Jennifer Gerarda Brown is a Professor of Law at Quinnipiac College School of Law, Director of Quinnipiac's Center on Dispute Resolution, and a Senior Research Associate in Law at Yale Law School. She is the author of an article proposing the creation of a women's law school, published by the Harvard Women's Law Journal in 1999. Although she has attempted to judge this book entirely on the merits, the author notes that she has known Professor Hirshman for a number of years, and has conversed with her extensively about women in law school.

Editors' Note: For two Books-on-Law reviews of related interest, see Louise J. LaMothe's review of Presumed Equal - What America's Top Women Lawyers Really Think of Their Firms (1998) and Barbara Jacobs Rothstein's review of Sisters in Law: Women Lawyers in American History (1998).


LindaHirshman Replies

Thanks, Professor Jennifer Brown for the"cool aunt" description. Reviewing Woman's Guide in the New York Law Journal, Laurie Berke-Weiss, past-president of the New York Women's Bar Association, suggested another personam: "you do not need a friend if you have Professor Hirshman." In her review, Law Librarian Margaret Arnold confesses, "My first reaction to this book was, 'where was it when I was in law school?'"

Professor Brown, however, comes at the question of women and legal education from a different starting place. She finds a "deep flaw" in ranking law schools according to how women penetrate the "elite" group, rather than how middling women or women in the "bottom quartile of the class" fare.I "leave the standards of success unreconstructed," and will discourage "women who don't like law school, who chafe and struggle with the status quo" from being "the ones who emerge to change the face of the law."

I love criticism from the left, because it means that there is still someone more idealistic than I am. As Sixties feminist Susan Brownmiller put it recently, it's hard to be an activist in a non-activist time. So if a group of disaffected women at the bottom of their class can reconstruct the standards of law school success, I will retire to Switzerland like any sensible Menshevik who lived long enough to see the revolution come.

Some Standards Can't Be Reconstructed

Meanwhile, lawmaking in a democracy dictates a certain consistency and predictability. Learning to predict consistent legal outcomes involves speculating on unforeseen situations, or the so-called "Socratic method." I don't know why female students report so much more pain in the encounter than the guys do. But they do.

We shouldn't change the democratic system in order to make women feel comfortable in Torts. Still, much of the pain, such as the concealment of uncontroversial structural information, comes from unnecessary hazing. My Civ Pro teacher tried to get us to intuit the citation system! The Guide is devoted to reducing the hazing. If women experience disproportionate costs from Socratic dialogue, grinding it down to its irreducible minimum should serve a positive gender agenda. If this be cowardly Fabianism, make the most of it.

How Much Change Does the Proletariat Really Make?

Second, there is a limit to how much social change can be achieved by terrified, ego shattered individuals. By contrast, the entire landscape of American politics has been reshaped in recent years by vociferous, self-assured white men heavily financed by multimillionaire Richard Mellon Scaife. Am I the only law professor in America to admire and envy the influence of the law school-based Federalist Society?

Of my hundreds of subjects, the student who actually managed to effect some change in her institution (the bottom-ranked Northwestern Law School) was the inimitable Michele Landis. Michele was Number One or Two in her class, and getting her Ph.D. She took a hit when her conservative research adviser wrote her a poisonous "recommendation;" yet, she managed to get a great clerkship nonetheless, and, most importantly, spearheaded a movement that put a record number of minority students on the heretofore white-male Northwestern Law Review. Not a single unsuccessful student I interviewed translated her fear and disempowerment into any kind of effective activism within the law school world. They hunkered down in class, consoled one another, and made sure that they took weekends off. The most activist mid-class student was a member of the Appointments Committee at Minnesota Law School. During her tenure last year, Minnesota lost two of its best women teachers to Cornell.

Bulletin: Being on Top is Good

Law schools wouldn't tell me much, but the conventional wisdom is that women are neither at the bottom of their classes nor at the top, and my law review statistics confirm this. In Brown's winner-take-all society, failure to penetrate the top is costly. If most change comes from people like Michele Landis, the male composition at the top guarantees that the existing standards of success will remain unreconstructed.

Finally, listen up, nieces: it's fun to be on top. Why do you think all those rich white men are pouring money into institutions like the Federalist Society that guarantee they'll remain on top? Being on top means you have lots of choices for how you can use your capacities to lead a flourishing life. I don't think "selling out" is flourishing. I believe that a flourishing life is the ability to use politics to achieve a more moderate, even a more just, life for all members of the society, as Michele Landis tried to do. But, if you have no power, you never get a chance to decide that.

Comparing Sizes of Male Offers is Good

Rankings make people squirm, especially when it's a woman holding the tape. But the notion that the Femscore unfairly rewards schools that discriminate in admissions to produce a smaller number of super-qualified women is nonsense. As the Guide clearly states, fewer women has not translated into higher Femscores over numbers: half the success schools had female student bodies at or above the national average, while only a third of the failure schools did.Moreover, pleasant as it seems, I doubt that law schools are so obsessed with the Woman's Guide that they would risk their overall U.S. News ranking by substituting guys with lower LSATs for women in order to gin up their Femscore. (As Professor Brown points out, at least in public colleges, it would be illegal.) Finally, the schools with high Femscores are Northern or Western, public, and integrated. The ones at the bottom are mostly Southern (or in Chicago), private, mostly white, and admittedly conservative.Does anyone really think the women-friendly schools are cooking their books by keeping out all but the top women applicants? Or that the others are being unjustly punished for their gender-liberal admissions policies?

Hoping Some Guy Will Pay the Bills is Not Good

Professor Brown correctly accuses me of disapproving of the dreamers who think money and power don't matter. Right where she senses disapproval, I report that one "only" wanted to make enough money to buy a nice house in San Francisco, an expensive aspiration. (18) Another admitted that she was only going to law school to show potential husbands the high quality of her genetic material so they would pick her to breed. (6) Susan Brownmiller may be writing her memoirs, but I'm still enough of a feminist to think these opinions should be discouraged in my nieces.

Linda R. Hirshman is Allen/Berenson Professor of Philosophy and Women's Studies at Brandeis University. She was, and occasionally still dabbles at being, a Professor of Law, most recently as the Mason Ladd Distinguished Visitor at the University of Iowa Law School. She knows (and still loves) Jennifer Brown from their overlapping relationship with Quinnipiac Law School, where she was a Visiting Scholar.


A Whig in Republican Clothing
by Calvin R. Massey

The Republic According to John Marshall Harlan
Linda Przybyszewski
Chapel Hill, NC: University of North Carolina Press, 1999
Cloth: $49.95 / Paper: $19.95
Pp. xii, 286

The first Justice Harlan was, like many men, a paradox. He dissented in The Civil Rights Cases (1883) and Plessy v. Ferguson (1896), where he penned the immortal line of a color-blind Constitution, but he simultaneously validated notions of racial identity by finding no constitutional infirmity in either Alabama's criminal ban on interracial sexual relationships (Pace v. Alabama, 1882), or a Georgia public school board's decision to close a black high school while continuing to operate the white facility (Cumming v. Richmond County Bd. of Education, 1899). He could read the citizenship clause of the Fourteenth Amendment as conferring American citizenship on native-born blacks and Indians, but simultaneously deny that it had that effect upon a native-born child of Chinese parents. (Compare his opinions in Elk v. Wilkins (1884) and U.S. v. Wong Kim Ark (1898) .) He argued passionately in Pollock v. Farmers' Loan & Trust Co. (1895) that the income tax was constitutional but embraced much of the economic version of substantive due process, dissenting in Lochner v. New York (1905), the case that lent its name to the era, only because he thought the law at issue was a reasonable regulation of the liberty of contract.

Linda Przybyszewski, a professor of history at the University of Cincinnati, attempts to explain these paradoxes by an examination of Harlan's constitutional and cultural weltansicht. To do so, Przybyszewski adopts an unconventional biographical organization.We do not begin with Harlan's natal squalls and proceed to plod chronologically through life's travails to the inevitable grave and the biographer's literary eulogy. Instead, Przybyszewski organizes her book into thematic chapters dealing with the forces that shaped Harlan's mature view of the Constitution. Born into a prosperous family of Kentucky Whigs while Andrew Jackson was at the zenith of his presidential power and coming into manhood in the politically tumultuous 1850s, John Marshall Harlan's constitutional vision was ante-bellum Whiggery refracted by the powerful lens of the Civil War. But unlike Oliver Wendell Holmes, Jr., whose Civil War experiences produced a deep cynicism in which the Holmesian brand of legal positivism took root, Harlan grafted the Civil War onto a mythological explanation of America.

Harlan's Myth of America

Harlan's mythic America was endowed with "an egalitarian national mission," rooted in the Declaration of Independence as the constitutive document of constitutional theology, if not constitutional law. This focus on the Declaration of '76 was characteristically Whig, and was coupled with the "notion that the United States had a divinely ordained destiny that placed it outside the usual cycles of history." (62)The idea of national predestination was "built on the Puritans' identification of themselves as God's chosen people." (Id.) In Harlan's time America was, as Justice Brewer declared, "a Christian nation;" or at least it carried a widely-shared and generally accepted Protestant trope. This coupling of religious purpose and national destiny caused Americans "to believe that the United States would usher in an era of perfect liberty." (61-62) To Harlan Presbyterian elder and Bible class teacher, professor of constitutional law at Columbian University (today's George Washington University), Associate Justice of the United States Supreme Court the Civil War was an Augean cleansing that perfected the original egalitarian vision of 1776. Never mind that this was mythological history; it resonated with Harlan's Whig, Presbyterian, Unionist vision. Perhaps some fraction of history is always mythological, and it is quite likely that the fraction is greatest when it comes to our personal histories. We need not be Jay Gatsby to spring from our Platonic vision of ourselves.

Harlan's personal history is emblematic of the process.Raised by slave women and among a household of enslaved laborers, Harlan accepted slavery as a birthright. The personal myth, at least as recounted by Malvina, Harlan's wife of fifty years, was that the Harlan family was the noblest and kindest of slave-owners, never guilty of brutality or any ill-treatment save that of depriving a person of his freedom. In short, as one of Przybyszewski's chapter headings puts it, the Harlan clan had the best type of slave-holders. But even the best of the best, Harlan's father, sired a child by a slave and engaged in fitful slave trading, the odious practice that fractured families and tore the heart out of wretched people. In fairness to Harlan p鑽e, he did not abandon his natural child, but educated him. Nor were his forays into the slave trade always tragic: he occasionally purchased slaves to keep families intact. The personal residue of this family legend was a sense of patriarchy, the noblesse oblige that restrained those of great power from its abuse.

Harlan's mythology was not just personal, however.His father's benevolent paternalism was but one tradition to which he subscribed. He was a nationalist, carrying on the Whig tradition of the American Plan through a strong commitment to an expansive conception of the national legislative power over interstate commerce, and a correspondingly strong commitment to curbing state interference with the national market. He was "orthodox in his religion and formalist in his legal theory." (123) And, of course, he was "prehistoricist in his view of the past" (id), wedded to the notion that America conceived as a nation of Anglo-Saxon Protestants was blessed with a providential mission of bringing ever greater liberty and progress to all who come under American influence.

Explaining the Paradox

Once the nature of these traditions is understood, it becomes possible to see why Harlan's constitutional views, so paradoxical to us, made sense to him. If 19th Century Europeans thought they must shoulder the "white man's burden" to bring Africa out of a perceived primitivism, Harlan thought it was the American Anglo-Saxon's special obligation, even mission, to spread liberty and equality ever more widely. Though no abolitionist before the Civil War, he grafted the abolitionist vision onto his mythic vision of American destiny. To Harlan, the Civil War amendments were designed not only to eliminate explicit bondage, but to eradicate all vestiges of the "civil slavery" in which free black Americans had been imprisoned in ante-bellum America. They were an expression of the Anglo-Saxon character; fidelity to the Anglo-Saxon "race" required that liberty and equality be extended to black Americans.

This focus on racial pride and identity served both as the source of a color-blind constitutional equality and to demarcate the limits on that equality. The Constitution was color-blind but the egalitarian blessings of the Constitution extended only to political and civil rights, not to what the 19th Century lawyer regarded as "social rights." Thus it was that Harlan could conceive interracial sexual relations as a "social right," one left to be defined by social mores translated into law but untouched by the color-blind equality written into the Constitution by victorious Republicans.

Harder to explain is Harlan's evident belief that public education was also a social rather than a civil right (Cumming), while taking the position as a dissenter in Berea College v. Kentucky (1908) that the state could not require a private college to practice racial segregation. Przybyszewski argues that Harlan saw racially integrated public education as creating "social intermixture," a threat to racial identity and thus an aspect of unprotected social rights, while integrated private education was voluntary, unlikely to produce pernicious social effects.Przybyszewski admits the unsatisfactory nature of this explanation by raising the obvious flaws in Harlan's apparent views and concluding that "Harlan preferred to change the subject rather than answer these questions." (109) Of course he did, since his vision of racial equality was driven by racial pride and identity. A constitutional requirement of racial equality that stems from the fine character of white Anglo-Saxons is, as Justice O'Connor said in a very different context, on a collision course with itself. We know it, and Justice Harlan may have known it too, but he could not acknowledge it without destroying his mythic vision of America.

Another aspect of the mythic image informed Harlan's opinions on the problems presented by the vast accumulation of wealth and concentration of economic power that characterized the booming industrialization of the last half of the 19th Century. An article of the Whig faith had been the importance to American prosperity of "governmental intervention to promote economic change and control its course." (183) This remained in Harlan's constitutional vision as a commitment to broad federal power to control interstate commerce. But it did not stop there. Imbued with the free labor ideology of the ante-bellum era, Harlan conceived of economic liberty as the freedom of the individual to pursue his welfare in a climate of free and open competition unfettered by unreasonably meddlesome governmental dictates.

This explained his fierce opposition to the trusts, his willingness to give an expansive reading to the federal power over interstate commerce, and his simultaneous embrace of substantive due process. The Civil War amendments, especially the Thirteenth and Fourteenth Amendments, were not exclusively for the protection of black Americans. It would be interesting to read Harlan's opinion in the Slaughterhouse Cases (1873), had he been a member of the Court when that decision was rendered.Surely it would have been closer to Bradley (or even Field) than Miller. The Thirteenth and Fourteenth Amendments were fused into Harlan's mythology of American destiny; their highest function was to expand freedom and equality. So conceived, they "supported the doctrines of substantive due process and liberty of contract" (184) that Harlan embraced. It is a long-lived canard that the Court in the "Lochner era" was a fierce bastion of a laissez-faire viewpoint. Przybyszewski correctly notes "that the handful of infamous decisions in which the Court struck down police power was vastly outnumbered by decisions in which such laws were upheld. Laissez-faire judges would not have left such a record." (150)

Harlan exemplifies the point, though he is not the only example. In Lochner, Harlan agreed with the majority that due process protected liberty of contract; his disagreement was rooted in his belief that the law regulating the hours bakers could work was justified by the appalling health conditions under which bakers labored. Thus, it was not a jarring note for Harlan to write the majority opinion in Adair v. United States (1908), in which the Court struck down a federal law, enacted after the bitter Pullman strike of 1894, barring interstate railroads from discharging employees because they had joined a union. To Harlan, the justification for invading liberty of contract that was present in Lochner (preserving the health of bakers) was wholly absent in Adair, although Congress saw it clearly enough: preserving a vital interstate transport from crippling strikes that might result in retaliation for a railroad's firing of its unionized workers.Harlan thought his positions were consistent, and no doubt they were (to him), but the economic version of substantive due process has passed on because nobody could write a clear and consistent line between the police power and liberty of contract.

If free labor ideology explained Harlan's acceptance of liberty of contract, it also explained his denunciations of concentrated economic power, exemplified by his acceptance of the validity of antitrust laws, his repudiation of the "rule of reason" in monopolization cases, and his belief that the income tax was valid. Monopolists imperiled free labor by breaking the rules of free and open competition. Concentrated wealth, especially incomes derived from invested capital, was a cancer eating at his mythic image of an America of free laborers, armed with the possibility of individual betterment through hard work. The idle capitalists of Newport and Fifth Avenue were an affront to this sacred vision. Przybyszewski endorses Loren Beth's characterization of Harlan as "the last Whig justice." (183) To be sure, he was a Whig in Republican clothing, but to Harlan the additional garb was just the outer manifestation of the enlarged and enriched mythic image of America that, to him, was the result of the Civil War.

The Last Whig Justice

Przybyszewski has provided a rich, absorbing account of Harlan's complex character. She expressly eschews the hagiographical approach so common to judicial biography.In her introduction, she recounts an episode during her work on the book when, trying to describe her project as an attempt to explain Harlan's inconsistencies, she was interrupted by a young lawyer who sought to explain it all by repeated assertion that Harlan was a "great judge." (1) He may have been great, but Przybyszewski does not really care. She has sought to explain Harlan, and her explanation does not diminish any of the greatness that the beholder of Harlan cares to see in his career.

He was, after all, what I like to remind my law students that all judges are: a lawyer who knew a politician well enough to ascend the bench. In Harlan's case it was Rutherford Hayes who propelled him from relative obscurity and financial crisis as a failed Kentucky politician but competent lawyer to carrier of the Whig tradition into the 20th Century. Harlan was not a New Deal liberal unaccountably born into ante-bellum America. He was very much an ante-bellum liberal, and he applied his ante-bellum liberalism faithfully to the end.

Calvin R. Massey is a Professor of Law at Hastings College of the Law, University of California.


Not Simply Black and White
by Margaret Y.K. Woo

Disoriented: Asian Americans, Law and the Nation-State
Robert S. Chang
New York, NY: New York University Press, 1999
Cloth: $34.00
Pp. 180

The recent arrest of Dr. Wen Ho Lee for allegedly mishandling classified nuclear information has revitalized the issue of the treatment of Asian Americans as perpetual "foreigners." The Lee incident follows on the heel of attacks on Asian Americans in the campaign finance scandal of 1996 and the Senate's refusal to confirm Bill Lam Lee as the Assistant Attorney General for Civil Rights. The persistent questioning of Asian American loyalty and the classifying of Asian Americans by their countries of origin continue despite ュュ (or perhaps because of) the fact that Asian Americans are the fastest growing minority in the U.S. According to the U.S. census, Asian Americans are expected to double to 6.1 percent of the nation's total population by the year 2020.

Professor Robert Chang's book, Disoriented: Asian Americans, Law and the Nation-State, is a timely and much needed meditation on the positionality of Asian Americans in U.S. society. Chang represents the next generation of Asian American legal scholars and activists, speaking out against what has been termed a "white blanket of silence" on issues ranging from internment to immigration, affirmative action to anti-Asian violence. At the root of all these issues, of course, is the perception by mainstream America that Asian Americans, no matter how long they have been in this country, do not really belong. As captured by the accusations of his "American" wife, the fictional Korean American Henry Park is one and the same "surreptitious, B+ student of life, illegal alien, emotional alien, Yellow peril, neo-American, stranger, follower, traitor, spy . . . ."(Chang-Rae Lee, Native Speaker [1995]). Chang's work unravels this image for us, and reminds us that American society can no longer be understood in the dialectics of black and white, or what he calls, "dreams of race in black and white." (11)

Professor Chang's book is separated into three parts, each of which can be read independently of the others. In Part I, he ponders the issues of borders and national identity for mainstream Americans and Asian Americans. In Part II, he proposes the need for a critical Asian American legal scholarship. He ends in Part III with shorter essays on "the move from identity politics as we know it . . . [to] the construction of political identities based on shared political commitments." (109)

Tackling "Foreignness"

Part I contains some of Professor Chang's stronger pieces and more powerful ideas. In that section, he tackles the issue of "foreignness" head on by looking at why and how the classification of "perpetual foreigner" developed. He deconstructs the assimilationist myth by arguing that American's national identity is based on the construction of Asian Americans as foreigners. Mainstream America, he says, defines itself by creating cultural "borders" around the unifying ideology of whiteness. Asian Americans, being non-white, carry around an invisible but perpetual border separating us from the rest of white America. "Foreignness," Professor Chang writes, "is inscribed upon our bodies in such a way that Asian Americans carry a figurative border with us. This border, besides confirming the belongingness of the 'real' Americans, marks Asian Americans as targets of nativistic racism." (40) And this border has operated in positive and negative ways for Asian Americans.

While the concept of Asian Americans as perpetual foreigners is not new, nor the concept of whiteness as a constructed property, what is conceptually refreshing is how whiteness as a border can take metaphysical as well as tangible forms, and how it reconfigures in historical terms as well as in the present cultural milieu. "Whiteness," Professor Chang writes, is "a contested terrain and changes over time and space" but is, at all times, "a unifying ideology" for those who successfully classify themselves as white. (18) He supports his thesis by unearthing examples in historical as well as the present contexts. He points out that, in the years following the Civil War and stretching into the early 1900s, workforce racism was directed first against the "not yet white ethnics " (Irish and eastern and southern Europeans), then later displaced onto the "real racial Other" (blacks), and finally transformed into nativistic racism against the "real foreigner Other" (Asians). (18)

Similarly, in the cultural context, "not yet white ethnics" became white and American only through their juxtaposition against Blacks and Asians. This was reaffirmed in movies such as The Birth of a Nation (1915), and The Cheat (1915), both films posing interracial sexuality as a threat to white women, and through women, the family that is America. (12-13)Professor Chang also traces this anxiety to the modern-day setting, as exemplified by the killing of Vincent Chin in 1982. At a time when the Japanese economy overtook the U.S. economy, Vincent Chin was killed by displaced Detroit workers (who had mistaken Chin for Japanese), in part because Chin also had displaced these workers in the attentions of a white stripper. As such, Chang unravels the standard account which "tells a flattened story of race and/or ethnicity that ignores the dimensions of class, gender, nation, and sexuality." (23)

Interestingly, Professor Chang's arguments challenge the trend of recent predictions calling for the demise of the nation-state and the heralding of a borderless economy. He warns that while "borders are porous to flows of information and capital," they are "constricting when it came to movement of certain persons." (28)He astutely notes the persistence of borders as "the developed world used porous borders to extract resources from the rest of the world," (28) but the constricted borders are reasserting themselves (and perhaps recreating themselves) through controls over immigration. Thus, while the world may be imagining new forms of citizenship that transcend the nation state, Chang warns us not to be naive that this new citizenship will be emancipatory. He writes: "With the end of the cold War, immigrants and other outsiders have replaced the threat of communism in the national imagination of the U.S. Nativistic racism polices the border in the new world/local order." (33) Rather, he calls on us to be ever vigilant, to disable this regressive construction of borders, and to ask how borders are systematically policed and for whose benefit and profit.

Critical Asian American Legal Studies

Part II of this book is somewhat distinct from Part I, focusing on an internal debate in the academy on the need to establish a distinctive critical Asian American legal studies. Professor Chang makes the case for such studies because of"nativist-inspired violence and discrimination against Asian Americans, and the racial hierarchy reinforced by the model minority myth." (76) Along with other Asian American legal scholars such as Professors Maggie Chon (Seattle University) and Frank Wu (Howard University), Professor Chang argues for the importance of narratives, especially those about personal oppression, as particularly well suited for persuasive purposes because they can provide compelling accounts of how things are in society. (75) He then intersperses his writings with personal narratives, thus informing the reader, in a way which no other way can, of the experiences of Asian Americans with their "sense of in-betweenness, of being not quite part of the (imagined) national community and yet not belonging to an imaginary homeland." (35) I myself have certainly felt, as other Asian Americans may have, this sense of not quite belonging. My standard narrative is the time when a "real" American at the Library of Congress wished me a happy stay in America.

Professor Chang is certainly knowledgeable about Asian American legal issues, ranging from immigration to disfranchisement to the redress movement, and the model minority or the not-so model minority myths.Within each topic, he writes so as to contextualize and disable "the regressive construction of borders" contained in each of these spheres. Chang classifies Asian American legal studies as following three progressive stages: Stage One Denial of Difference, as evidenced by traditional civil rights work; Stage Two 蔓 Affirmation of Difference, as evidenced by cultural and radical Asian American legal studies; and Stage Three 蔓 Liberation from Difference, as evidenced by the post-structuralist legal scholar. (98)As a Stage Three Asian American legal scholar himself, Chang demonstrates how post-structural Asian American legal studies can challenge limitations caused by categories such as "Asian American" and engage in multiple consciousness as method, thereby emancipating its members. While I do not dispute the need for a distinctive Asian American legal scholarship, I find the classification unduly limiting. It seems entirely plausible (and Professor Chang may agree) that one could be a supporter of traditional civil rights methods and, at the same time, understand the limitations of formal equality.

Construction of Political Identities

Part III addresses the movement from identity politics as we know it to the construction of political identities. Part III raises the most tantalizing questions in discussing "racial cross dressing to open up the space for a conscious manipulation of the boundaries of race," raising implications of multi-racialism as we prepare to enter the new millennium. How to reconcile the multi-racial category with traditional racial experience is one area that is as yet unexplored. I only wish Professor Chang had spent more time and his creative energy in fleshing out some of his ideas in this section.

My major criticism of this book also lies in its strength its separation into three distinct sections. Each section can be read independently and is thoughtful in its focus. Yet, when read together, these sections could benefit from greater coherence and less repetition. Some examples, such as the killing of Vincent Chin and the New York Times poll, resurface in different segments of the book. Yet, precisely because each of these sections is self contained and because they deal with such wide-ranging and important topics, they are perfect for excerpting and use in a variety of courses (from Constitutional Law, Immigration Law, Asian Americans and the Law, Racism and American Law, Critical Race Theory, to American Jurisprudence). As such, then, Professor Chang has made a valuable contribution to American legal and cultural studies.

"Although the border is everywhere, your perspective may render it invisible." (36) Professor Chang makes what was invisible visible, and for that, this book is worthy of study not only by those in cultural studies, but also by any legal scholar interested in the development of law and the shaping of the American identity.

Margaret Y.K. Woo is Professor of Law at Northeastern University School of Law. She was formerly a Fellow at the Bunting Institute of Radcliffe College, and is presently an Associate in Research at East Asian Legal Studies Center of Harvard Law School. She is the recipient of grants from the National Science Foundation and the Ford Foundation, and has spoken widely on issues affecting Asian Americans.

Editors' Note: For a review of related interest, see Frank Wu's review of Thomas Janoski's Citizenship and Civil Society (1998).


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