BOOKS-ON-LAW/Book Reviews - February 2001; v.4, no.2

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Washington Jurists on JURIST Part II


  • Ball, Milner S. Called by Stories: Biblical Sagas and Their Challenge for Law. Review by Chief Judge Karen G. Seinfeld (Washington Court of Appeals, Division II).
  • Curtis, Michael Kent. Free Speech, "The People's Darling Privilege." Review by Judge Robert S. Lasnik (U.S. District Court for the Western District of Washington).
  • Harriger, Katy J. The Special Prosecutor in American Politics. Review by Judge Susan R. Agid (Washington Court of Appeals, Division I).
  • Purcell, Jr., Edward A. Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America. Review by Judge Barbara Jacobs Rothstein (U.S. District Court for the Western District of Washington).
  • Teitel, Ruth G. Transitional Justice. Review by Chief Judge Mary Kay Becker (Washington Court of Appeals, Division I).
  • Yarbrough, Tinsley E. The Rehnquist Court and the Constitution. Review by Justice Richard B. Sanders (Washington Supreme Court).
  • Talkback

Brandeis on Federal Courts
by Barbara Jacobs Rothstein

Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America
Edward A. Purcell, Jr.
New Haven, CT: Yale University Press, 2000
Cloth: $40.00
Pp. 448
ISBN: 0300078048

In his sweeping, dense, and fascinating work, Edward A. Purcell, Jr. traces the momentous social, political, and jurisprudential changes of the first and to a lesser extent the second half of the 20th Century through the narrow lens of one seminal Supreme Court case, Erie R.R. v. Tompkins (1938), and its author, Justice Louis Brandeis. Or, perhaps it is the other way around. One is never quite sure, as Brandeis and the Progressive Constitution moves effortlessly from the macro influences of the Industrial Revolution, the Labor Movement, the Great Depression, and the nationalization of American corporations to the micro manipulations of the single justice, his alliances and animosities, his empathy for the working classes, and, perhaps above all, his distrust of the elite and self-perpetuating power of his fellow federal judges.

As a focal point, Professor Purcell offers the reader the relatively arcane legal concept of diversity jurisdiction, which became during this era one of the most divisive questions of the ever-evolving law governing the constitutional balance of power. While most law students since have studied Erie for the desiccate proposition that federal courts in diversity actions should apply state law to substantive questions, Purcell breathes life into the case that otherwise appears an essential but dry and papery chapter of American jurisprudence. To this end, Purcell modulates among the themes familiar to any student of law or politics: the struggle between the states and the federal government, between the legislative and judicial branches, between powerful minority and majority factions, and between the competing ideals of consistency of the system and fairness to the individual.

To these familiar themes Purcell adds, however, the elements that many law school courses eschew: personality and history. Purcell uses finely wrought details surrounding Brandeis's life and his Erie opinion, and leads us on an intimate tour from his upbringing all the way through to the Supreme Court chambers as Brandeis musters the votes and the will for the Erie majority.

Purcell also gives us the bigger picture, of not just what was happening at the Supreme Court, but what was happening around the country. He traces the growth of both national corporations and the nascent labor movement. When these forces met in the federal courts, as they frequently did, the labor movement's goals were consistently thwarted by the seemingly absolute hold the powerful national corporations had on the judiciary. While focusing on a single opinion, the Erie decision, Purcell challenges the reader's concentration with multiple, perhaps infinite, distractions. In this way, the work becomes one not of just legal, but of historical and sociological significance as well.

Sign of the Times

Purcell begins his exploration with a chapter titled "The Premise of an Age," which sketches in broad strokes the phenomenal changes that took place in the United States after the Civil War and Reconstruction, leading up to 1938 when the Erie decision came down. The first chapter starts with the phrase, startling to today's ear, "Legalized race-based slavery," as if to introduce the reader from the outset to the most infamous example of judicial fallibility. For the next one hundred pages or so, Purcell's exposition of the federal bench is barely less severe. As workers increasingly looked to state and even federal regulators for workplace protections, legislatures, fueled by the Progressive movement, were highly responsive. In many cases, however, standing between the generally disadvantaged and often immigrant workers and the laws and regulations designed to protect them were the federal courts. As Purcell points out, the federal bench, drawn almost exclusively from the elite corporate bar, was extremely protective of national corporations. Federal courts routinely used injunctions to force striking laborers back to work, declared that state agencies' attempts to set rates for common carriers and public utilities were takings under the Fifth and Fourteenth Amendments, and ruled that laws banning yellow-dog contracts were prohibited under the Constitution's Contracts Clause. During this time, the Supreme Court was increasing both the scope of its authority and the tools available to imprint its conservative, pro-business values on the national political landscape.

Perhaps the federal courts' most effective tool was the expansion of diversity jurisdiction. Purcell convincingly points out that diversity jurisdiction, created by the first Congress in the Judiciary Act of 1789, had evolved to favor national corporate defendants. Corporate defendants could force local plaintiffs seeking tort damages into federal courts often hundreds of miles away. Resourceful and highly paid defense attorneys could manipulate their clients' options through the practice of forum-shopping.

But the ultimate support enabling the federal courts to exercise their authority to favor national corporations came from the 1842 case of Swift v. Tyson, which Purcell sets up as the Plessy v. Ferguson (1896) of diversity jurisdiction. Swift had held that federal courts sitting in diversity could develop and apply their own federal common law to substantive questions of "general," as opposed to "local," law. The distinction between "general" and "local" remained vague. Federal courts took advantage of this fuzzy line to appropriate control over a significant amount of disputable territory. The case thereby allowed the federal courts, populated by elite judges drawn from law firms with little grounding in the harsh realities of working life, essentially to adjudicate questions of labor conditions, workplace tort law, and matters affecting the working class, sometimes even on matters as to which Progressive state legislatures arguably had already spoken. Swift added insult to diversity jurisdiction injury, allowing judges to operate under the rubric of "federal common law" and the corporate defendants to benefit from the socio-economic biases of their brethren on the bench. State courts, with their popularly elected judges, were more closely associated with the Progressive movement and the working class than federal courts. Plaintiffs suing corporate defendants rarely could take advantage of state forums, however, because actions filed in state court were usually removed. Not only did diversity jurisdiction place an administrative and procedural burden on working class plaintiffs, but also through the development of the federal common law it imposed a substantive legal barrier to relief.

The Winds of Change

For almost one hundred years, Swift governed how the federal courts adjudicated matters brought in diversity actions. Perhaps in the early years of Swift's reign the fledgling national corporations needed a protector for the young and experimental phase of their development. They found one in the federal bench and the federal common law. Yet, at least by the 1930s if not sooner, many felt that the courts were still carrying out a mandate that no longer suited the times, and that the federal judiciary was increasingly out of step with the demands of an industrialized age.

Take this background. Add to it the suspicion of the unchecked growth of big business arising from the Great Depression; a quarter century of judicial nullification of Progressive congressional workplace reforms, such as minimum wage and maximum hour laws; years of regularly issued injunctions and rulings emasculating the burgeoning labor movement; and President Franklin Roosevelt's infamous Court-packing plan. One then has the recipe for almost certain revolution within the court system. As Purcell points out, this revolution came in the form of Erie R.R. v. Thompkins.

Erie overturned Swift. It held that federal courts must apply the substantive law of the forum state in diversity actions. Brandeis, as Purcell discusses in the chapter "The Judge as Human," was a man whose sympathies lay with the underdog. His opinion in Erie could not be separated from this fact. He designed Erie not simply to return substantive legal decisions to the states, but to check the discretion and authority of his fellow judges, who had for fifty years used the federal common law in cooperation with national corporations to curb the rights and freedoms of labor, tort plaintiffs, and those with fewer resources. Certainly a paean to Justice Brandeis, Purcell's exposition is nevertheless candid about the dubious legitimacy of the opinion's constitutional foundation and the transparency of Brandeis's motives.

Modern Postscript: Tracking the Pendulum Swing

The immediate effect of Erie was to curb the scope of federal courts' authority and discretion in diversity actions. The secondary effects legal, social, political, intellectual are the subject of the latter half of the book. Purcell traces the mutations of Erie through the rest of the century through the post-World War II boom, the McCarthy era, the Warren Court, the Cold War, and, eventually, the Rehnquist Court. In modern times, Erie has been analyzed by legal scholars intent on unmooring its significance from Brandeis's values and jurisprudence. Purcell's work is an attempt to return Erie to its author. In this otherwise fascinating triptych, however, the final third of Brandeis and the Progressive Constitution is the least commanding, perhaps for reasons Purcell could not control. At the end of the 20th Century, we still lack the perspective required to track prodigious social, intellectual, and jurisprudential movements, their impetuses and implications, in the same way that Purcell does so masterfully to execute in his treatment of the pre- and post-World War II eras. Nevertheless, the questions Brandeis raised and addressed in Erie remain potent today.

One cannot help but be reminded continually throughout the book that the themes with which Brandeis struggled in the early part of the last century are presciently similar to headlines in today's newspapers. One could replace "national corporations" with "multi-national corporations," "industrialization" with "globalization," "workplace regulation" with "environmental regulation," and many of the same scenes are acted out with different characters on the same stages. In the last ten years alone, the Supreme Court has been unusually active in invalidating federal statutes on principles of federalism. The notion that the federal government, its legislature and courts, is one of enumerated and as Brandeis would have it, limited powers runs through the recent cases of the Court's still-developing federalism jurisprudence. We are reminded that the balance of power continues to evolve. Perhaps Purcell's most prominent point, and one that he expresses authoritatively and convincingly, is that judges cannot, and perhaps should not, either act or be interpreted in a vacuum devoid of context, and that even the most far-reaching and important legal principle means little when extracted from its social, moral, economic, political, and historical framework.

Judge Barbara Jacobs Rothstein is a United States District Judge in the Western District of Washington. Before her appointment to the federal bench in 1980, she practiced law with a private firm in Boston, Massachusetts and with the Consumer Protection Division of the Washington Attorney General's office and served as a King County Superior Court Judge.

Editors' Note: In April of 1998, Judge Rothstein reviewed Virginia G. Drachman's Sisters in Law: Women Lawyers in American History (Harvard University Press, 1998) for Books-on-Law.

For other books, new and old, on Louis Brandeis, see Alexander Bickel, The Unpublished Opinions of Mr. Justice Brandeis (Harvard University Press, 1957); Alfred Lief, The Social and Economic Views of Mr. Justice Brandeis (Vanguard Press, 1930); Alpheus Thomas Mason, Brandeis: A Free Man's Life (Viking Press, 1946); Philippa Strum, Brandeis on Democracy (University Press of Kansas, 1995); Melvin I. Urofsky, Louis D. Brandeis and the Progressive Tradition (Little Brown, 1981); Nancy Woloch, Muller v. Oregon: A Brief History with Documents (Bedford Books, 1996).

Classic Free Speech Struggles
by Robert S. Lasnik

Free Speech, "The People's Darling Privilege"
Michael Kent Curtis
Durham, NC: Duke University Press, 2000
Cloth: $32.95
Pp. 525
ISBN: 0822325292

In this era when the adjective "classic" has come to denote the 1950s (e.g., classic rock, classic television), one might expect Michael Kent Curtis to focus his study on classic struggles for freedom of expression in American history on the many First Amendment challenges during the McCarthy era. It is refreshing to find that Professor Curtis has confined his analysis in Free Speech, "The People's Darling Privilege" to three major events occurring between 1791 (when the Bill of Rights was ratified) and 1868 (when the Fourteenth Amendment was ratified).

These three pivotal events are the Sedition Act of 1798, the suppression of antislavery speech in the years leading up to the Civil War, and the attempts to stop criticism of the Union effort during the Civil War. In each instance, the power of the government was used to punish those in the minority by making their critical speech illegal. In each case the attempt at censorship eventually failed. And Curtis shows how, in all three events, it was the people themselves, not the courts, who rallied behind the freedom of expression and brought an end to the government suppression of ideas. This book treats freedom of speech and freedom of the press as one right. The quotation in the title, Free Speech, "The People's Darling Privilege" actually comes from a speech by a Federalist congressman from Massachusetts (Harrison Gray Otis) who referred to freedom of the press as "the people's darling privilege" when he argued that it would not be threatened by the passage of the Sedition Act.

This is the type of text that should be required reading for judges and lawyers. It is so easy to fall into the mistaken belief that case studies in published opinions are the only useful source of law for analysis of issues such as free speech. For the first hundred years of our country, it was assumed the First Amendment simply did not apply to the actions of the states. While each state's constitution contained some type of free speech clause, most of these were presumed to apply a very restrictive version of free speech or freedom of the press taken from English common law, and not to grant the more sweeping protections found in 20th Century decisions. Yet even before the opinions of Holmes and Brandeis, this country was developing a strong popular tradition of resisting government attempts to censor or suppress speech.

Professor Curtis begins with a fascinating description of how the concept of freedom of expression began to enter the debate in the English Civil War of the 1640s. A group of dissenters, who came to be known as the Levellers, began to assert that certain rights, such as freedom of expression, were natural rights that belonged to every person and that the government could neither grant nor restrict. These ideas were imported to colonial America through groups such as the Quakers, the Radical Whigs and, most prominently, by the authors of Cato's Letters: Essays on Liberty, Civil and Religious. The best example of how these ideals influenced American thinking is the 1735 trial of John Peter Zenger. Zenger's newspaper published criticism of the royal governor of New York. Despite a judge's instructions to find against Zenger, a jury acquitted him. Zenger argued that the jury was free to judge both the facts and the law, and that the publication of such criticism was "the right of every free-born subject to make when the matters so published can be supported by the truth."

The Sedition Act of 1798

There has been no more blatant attempt to crush political opposition in this country than the Federalists' drive to pass the Sedition Act of 1798. It made it a crime to write, utter, or publish any "false, scandalous or malicious writing" criticizing the government, the president, or either house of Congress. Notably absent from protection under the Act was Vice-President Jefferson, a Republican. The Act also had a sunset clause that made it expire in 1800, the year of the next national election. As the Federalists feared, they suffered crushing defeats in the presidential and congressional races of 1800 in no small measure due to popular outrage against their heavy-handed suppression of their political opponents.

Curtis effectively demonstrates how the difference of perspective between one who has the power in his hands versus one who feels the brunt of power upon his shoulders can influence tolerance for free expression. While the Jeffersonian Republicans were the victims of the Federalists' repressive Sedition Act, they soon adopted some of the same posture toward criticism of their regime after the election of 1800. Curtis describes the case of People v. Croswell (N.Y., 1804), where a Federalist editor was prosecuted for libel for his published attack on President Jefferson. With the tables turned, the Republicans embraced the Federalist argument of 1798 that truth was no defense to libel, while Croswell's lawyer, the noted Federalist Alexander Hamilton, sounded like a Republican when he argued persuasively that "truth for good motives and justifiable ends was protected expression." (113)

Antislavery Speech

Curtis suggests there was a possibility that a full and vigorous political debate in the South over the continuation of slavery in the 1840s and 1850s might have led to a political decision to ban slavery, and might have made the Civil War unnecessary. The banning of all attempts to discuss slavery as a political issue, in Curtis's view, proved to be not only a lesson in the futility of censorship, but also in how a refusal to engage crucial matters in political debate inevitably leads to their playing out in a more destructive manner.

The essence of the justification set forth by the Southern states to suppress abolitionist speech was that it might incite slaves to revolt and harm their masters. When Hilton Helper published The Impending Crisis in the South: How to Meet It, he argued that slavery was an economic and moral burden on Southern states and that the great majority of Southern whites would benefit by eradicating slavery. While Helper's book focused primarily on use of the ballot box and other democratic means for change, it did warn that if these areas were closed off by the states, a violent revolt could occur. When John Brown's bloody raid at Harper's Ferry occurred in 1859, abolitionists in general and Helper in particular were blamed. A North Carolina grand jury indicted all Republican endorsers of Helper's book, including the governor of New York. The Northern states refused to recognize these indictments as legitimate.

Curtis makes the historical point that not all suppression of antislavery speech occurred in the South. In fact, in the 1830s there was more censorship and mob violence directed to abolitionists in the North simply because that's where most of them were. The tragic slaying of journalist and minister, Elijah Lovejoy, in Alton, Illinois in 1837 was the height of this repression via mob violence. Yet it also was a crucial turning point wherein the North began to see the slave system of the South as a direct threat to Northern liberty and security. In addition, even the right to petition Congress was brought within the ambit of the threat of prosecution, and a gag rule for Congressional debate on slavery proposed. The North began to realize that its citizens and legislators were sacrificing important civil liberties to protect a Southern institution that was a creeping cancer on the nation.

Antiwar Speech in the Civil War

The least well-known struggle for freedom of expression brought to light in this book is the reaction of the Lincoln Administration to criticism of the Civil War in the North. As with the Jeffersonian flip-flop when the Republicans of 1800 came to power, after the Republicans of 1860 won the presidency and the congress and the Civil War began the Union felt it could not tolerate any anti-war speech by prominent Democratic officials. The argument used to justify prosecuting and imprisoning a Democratic politician and former Congressman who criticized the war and President Lincoln in a speech was a variation of the same argument used by the South to suppress abolitionist writings. President Lincoln himself, in noting that shooting deserters was essential to maintaining the Union force, argued, "Must I shoot a simple-minded soldier who deserts, while I must not touch a hair of a wily agitator who induces him to desert?" (341) Substitute "slave" for "soldier" and "rebels" for "deserts" and this is the exact argument used by North Carolina to justify imprisoning abolitionist preachers who spoke out against slavery.

Professor Curtis points out with great historical detail that the actions of President Lincoln and his military commanders repressing political opposition to the war caused a great outcry among the people and among several prominent Republicans who recognized the inherent contradiction of this suppression of political dissent. One Republican senator (Lyman Trumbull) told a skeptical crowd, "We have been the advocate of free speech for the last forty years, and should not allow the party which during the whole time has been using the gag to usurp our place. We are fighting for the restoration of the Union, and the preservation of the Constitution, and all the liberties it guarantees to every citizen." (329)

Curtis is sensitive to the unprecedented pressures under which President Lincoln labored in a rebellion within the country. Curtis is, however, justifiably critical of Lincoln's adoption of the same "bad tendency" theory that was always used by the party in power to stifle any criticism of its actions. The Federalists argued that the belligerent acts of France justified the Sedition Act of 1798. The South argued that the attacks on slavery were in effect an attack on the Constitution, which specifically recognized the legality of slavery, and on the sovereignty of the states themselves. And, as Curtis points out, the wars of the 20th Century also produced extraordinary government actions under the guise of emergencies that resulted in such anti-democratic acts as the internment of Japanese-Americans during World War II. (348)

Modern Lessons

Professor Curtis raises a warning to those who believe today that certain types of speech, such as racist or sexist expression, should not be within the scope of protected free speech because it is hurtful to groups or individuals. Yet, he never comes right out and calls this new political correctness what it is another example of groups that were long powerless using their newfound political power to suppress their adversaries. It is a great strength of this nation that courts that have upheld the rights of the Klan to march in public cite decisions supporting African American protests in civil rights cases. The key lesson Curtis imparts is that articulated by Justice Jackson in West Virginia Board of Education v. Barnette (1943): "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein."

The importance of training today's and tomorrow's leaders in the judiciary, the bar, the Congress, and the executive branch on the struggles endured during the first 100 years of our nation cannot be overemphasized. Without an understanding of the foundation of our freedoms, we can lose the tether of history that ties a concept such as "free speech" with the reality of how it affects our lives. Curtis is nowhere more on target than when he observes: "Politicians, lawyers and judges have a special duty to protect free speech. But free speech is too important to leave exclusively to judges, lawyers, and politicians. It belongs to the American people." (21)

Judge Robert S. Lasnik sits on the United States District Court for the Western District of Washington. He previously served as a King County Superior Court Judge. He has a master's degree in journalism from Northwestern University and chaired the Washington Bench-Bar-Press "Fire Brigade" which works to resolve free press/fair trial conflicts.

Editors' Note: For a Books-on-Law review of related interest, see Melvin I. Urofsky's review of David M. Rabban's Free Speech in Its Forgotten Years (Cambridge University Press, 1997).

The Rehnquist Court's Constitution
by Richard B. Sanders

The Rehnquist Court and the Constitution
Tinsley E. Yarbrough
New York, NY: Oxford University Press, 2000
Cloth: $35.00
Pp. 306
ISBN: 0195103467

The Rehnquist Court and the Constitution begins in "Philadelphia, Mississippi, site of the 1964 murders of three civil rights workers at the hands of Ku Klux Klansmen and local police." (ix) From there, it leads to Reagan's and Bush's Supreme Court appointments and a densely written summary of the major areas of jurisprudence touched upon, if not shaped, by the highest court since William Rehnquist became its Chief Justice in 1986.

Professor Tinsley E. Yarbrough, it seems clear, is not from Philadelphia, Mississippi, in body or spirit. And his applause for the direction the Court has taken over the past fourteen years often has the sound of one-hand clapping. Yet, the book is mostly factual in nature, representing a Herculean effort to digest a myriad of cases, issues, and concerns that have percolated up for resolution. This work is work.

I often found myself not so much reading between the lines but rather adding a few of my own. The origin, opinions, and future of this Court provoked my thoughts, questions, and tentative answers as the pages turned.

The Appointments & the Asides

First comes discussion of the presidential nominations. Reagan's failed nominations (Robert Bork and Douglas Ginsburg) almost rival in notoriety those which passed (O'Connor, Scalia, and Kennedy). Such was a comment not only about those individuals selected, but also those who did the selecting. Politics, special interests, and pragmatism often found voice in the White House and Senate at the expense of principled decisionmaking, or a search for same.

Here I think Professor Yarbrough gives President Reagan too much credit when he suggests the President purposefully used his appointment power to control "judicial appointments to perpetuate and expand [the administration's] conservative human rights legacy." (x) If that were his purpose, he fell short. The appointment of Sandra Day O'Connor seems more plausible as simply an effort to appoint the first woman to the bench, rather than an effort to identify the person best suited to carry forth an ideological agenda. Her pro-choice views, as evidenced by public acts in the Arizona legislature, were well documented during her confirmation process. And her later votes in the Court on that issue turned out perfectly consistent with her background, yet equally at odds with Reagan's pro-life rhetoric.

Reagan's appointment of Anthony M. Kennedy was also understandable in other than ideological terms. Kennedy followed the rejected or withdrawn nominations of Bork and Ginsburg; his nomination evidenced a political weariness on the part of a Chief Executive, tired of the struggle to impact the Court with someone upon whom he could count for any sort of principled consistency.

President Bush's appointments were equivalent to those of Reagan, but by reverse twist. No doubt Clarence Thomas, put forth as the best qualified man, would have been left behind but for his race; yet, with the possible exception of Scalia, he seems the most intellectually creative of them all. Although meriting little attention in the mind of the author, it was Thomas who has shown himself open to reconsideration of the Court's earlier dismissal of the Privileges or Immunities clause (Saenz v. Roe (1999)). It was Thomas who demonstrated his openness to extending the Ex Post Facto clause to civil actions. See Eastern Enterprises v. Apfel (1998). And it was Thomas who showed an awareness of the natural law antecedents to our Constitution. In short, the real story behind Thomas may have been left untold, screened from view by Anita Hill and the color of his skin. But it would be an interesting story to tell, and contemplate, in another volume.

Professor Yarbrough captions David Souter, Bush's other nominee, "The Stealth Candidate." (19) But that only fits if one assumes Bush was either driven by ideological consistency to slip one by, or simply mistaken because he was oblivious to facts presented during Souter's confirmation hearings. In point of fact, Souter has often been a foil to Thomas, just as O'Connor and Kennedy have been to Scalia. How can one explain five Republican appointees so often divided against themselves if they were selected to advance a single purpose? Such an explanation better fits the Democrat nominations of Breyer and Ginsburg who seem to share a complementary and consistent Weltanshauung. But the text finds no fault with devotion to that agenda.

Then there are asides, often fascinating ones, along the way.

Scalia's view that lawyers advancing "bad ideas" deserve "clunking on the head" (42) is surely one to find favor with this reader, as is his defense that "the devil makes me do it." (43) However, when it comes to clunking O'Connor on the head as well, Scalia has apparently found one unable or unwilling to rise to the level of his intellect by taking it in good fun, or trading "clunks" of her own. Then there is the cadre of law clerks who fill a writing vacuum fully occupied by the Justices themselves in earlier years. This cannot help but dilute the rigor of opinions not crafted from the outset by an experienced member of the Court.

The Decisions

Of course, the meat and potatoes of the Rehnquist Court are the decisions it renders. Yarbrough sees some themes and directions, which will be encouraged or retarded by future appointments in years to come.

One such is the "double standard," (101) whereby constitutional rights associated with economic activity are rendered poor cousins to those which are not. I hadn't seen that term used in this context before, nor does it appear Professor Yarbrough is particularly troubled that there is a double standard. But the term is a good one that hits the nail on the head. The "double standard" originated in Justice Stone's "Footnote Four" to the United States v. Carolene Products Co. decision, handed down in 1938 shortly after the Court bowed to political coercion highlighted by President Roosevelt's Court-packing scheme from which followed the fabled "switch in time that would save nine." (105) Yarbrough apparently agrees that the Constitution should be more protective of speech, elections, and "insular minorities," rather than one that places all human endeavors, economic and otherwise, on a level playing field. And he must regret recent decisions as chipping away at this article of New Deal faith, "signaling a major rebirth of Supreme Court solicitude for propertied and commercial interests that may await only the election of another Republican president." (104)

Another "threat" is the prospect of restoring the status quo ante by reining in the Commerce Clause. United States v. Lopez (1995) "is potentially the most significant" evidence of this renewed effort to limit the sweep of the clause in any respect whatsoever since the New Deal explosion of the unchecked regulatory state. (106) Lopez also highlights the fragile division between the tenuous majority of Scalia, Thomas, Kennedy, Rehnquist, and O'Connor versus Souter, Stevens, Breyer, and Ginsburg in firm dissent. But I am less alarmed (if alarm we should have) than is Yarbrough, perceiving Lopez as more an effort to hold the line than restore that which preceded Roosevelt's political mischief.

Due process is another area of concern: too much or too little. The Court gives the author pause that there will be too much when it comes to economic concerns, too little when it comes to speech, abortion, and the rights of the accused. But a reinvigorated Takings Clause is seen as a convenient text-based exception to a general narrowing of due process protections against unwarranted governmental intrusion into private affairs, saving preferred rights in property from an ebbing tide which would otherwise sink all ships.

A separate heading for "Abortion Protests" (204) perhaps unintentionally makes Justice Scalia's point, put forth in his recent abortion protest dissent in Hill v. Colorado (2000), an opinion which postdates publication of Yarbrough's work. Justice Scalia critically concludes abortion is now a constitutional category all of its own, as "the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice." (120 S. Ct. 2480, 2503) In that context, at least, Scalia emerges as the Court's preeminent civil libertarian.

The religion clauses and criminal justice are each the subject of a searching review of recent precedent. Free exercise and establishment of religion seem somewhat of a muddle, yet recent decisions appear to be the best the Court can do for now, in an area which has perplexed it in the past. As for criminal matters, Justice Thomas seems exceedingly reluctant to press upon the states a high standard of constitutional review; this is most notable in Kansas v. Hendricks (1997), which authorized the indefinite "civil" commitment of so-called sex predators. So too, he and Justice Scalia are more than tightfisted with prisoners' rights, perhaps out of a concern for a federalism not to be found within the literal text of the 14th Amendment.

Given Professor Yarbrough's development of the background of individual Justices and his in-depth survey of their opinions once on the Court, I think he could have easily added a thoughtful and thought-provoking chapter setting forth his views on what makes each tick and what may be the ultimate ratio decidendi that internally links and distinguishes the views of each on various subjects. Such guidance from a scholar like Yarbrough would be a helpful benchmark against which to judge and better understand past and future opinions and their implications. Here I think the author's slant or any slant would be helpful.

But apart from that, the author has done quite a remarkable job of collecting the pieces, if only to invite the work of the reader when it comes to putting them together. Our new President will doubtless write the next chapter.

After twenty-six years of private practice involving extensive civil rights litigation, Richard Sanders was elected Justice of the Washington Supreme Court by special election in 1995 and was reelected to serve a full term of six years in 1998. His favorite passage in the Washington State Constitution is: "[G]overnments . . . are established to protect and maintain individual rights." Const. art. I, ァ 1.

Editors' Note: Other works by Professor Yarbrough concerning the Court and its members include his Mr. Justice Black and His Critics (Duke University Press, 1988) and his John Marshall Harlan: The Great Dissenter of the Warren Court (Oxford University Press, 1992).

For a Books-on-Law review of related interest, see Kermit L. Hall's review of A People's History of the Supreme Court (Penguin, 2000) by Peter H. Irons.

No One Right Way to Justice
by Mary Kay Becker

Transitional Justice
Ruti G. Teitel
New York, NY: Oxford University Press, 2000
Cloth: $35.00
Pp. 304
ISBN: 0195100646

On October 8, 2000, peace had been restored to the streets of Belgrade after the fall of Slobodan Milosevic. The New York Times reported a spectrum of local sentiment as to what should happen next to the former tyrant. "As far as I'm concerned, turn Milosevic over to the criminal tribunal in The Hague for all the crimes in the wars from 1991 to 1999," said one unemployed young man. "No," said an even younger state employee, "We should leave him alone because what's gone is gone and the past is finished." "There is no sense in punishing Milosevic. It would only cause problems," said a doctor. "Becoming powerless is already the greatest humiliation for him. How can we punish him more?" But a street market vendor disagreed: "How can you say that? Milosevic brought us to the abyss, and he has to be tried." And her husband, a farmer, said Milosevic should be hanged: "He has humiliated us all."

Transition from tyranny to freedom is a recurring experience in human history. How should societies deal with their evil pasts? This is the question Professor Ruti Teitel poses at the beginning of her book on transitional justice. Her answer is pragmatic: it depends on the circumstances. To American lawyers and judges this conclusion may seem unremarkable, but Teitel is participating in a conversation in academic circles. She is arguing against the proposition that there is a single ideal model of transition (and incidentally, also against the proposition that law is indistinguishable from politics). She would like to see the courses taken by newly liberal countries evaluated in their own historical context rather than measured against a theoretical ideal. And I believe she wants to show that an older, stable democracy such as the United States does not constitute the only possible expression of a modern liberal State.

Teitel is a native of Argentina who currently resides in Manhattan, and is a professor of Comparative Law at New York Law School. She has studied closely many of the modern transitions in Eastern Europe and Latin America. She looks at these transitions from an American perspective, beginning with the common intuition that the rule of law means stare decisis adherence to known rules, and continuity over time. But stare decisis does not serve well as a guiding principle in a country whose people have just thrown out an oppressive regime and an immoral legal system along with it. Yet, if the new regime passes new laws and establishes new courts, is it just to use those new laws to punish agents and collaborators of the old regime whose conduct was not illegal at the time?

"Illiberal" Tactics by Newly Liberated Societies

Professor Teitel's contribution to this ancient dilemma is to name and discuss a variety of processes a society can use to reconstruct itself without necessarily sacrificing the rule of law to transient political purposes. When it is unthinkable for a newly liberated people to adhere to the legal system they have just displaced, their break with the past may take a form that an established democracy would regard as illegitimate. For example, in the United States courts generally defer to legislative bodies for lawmaking. In our common understanding, legislatures are more democratic and have greater competence to fashion broad rules that will be widely accepted. In contrast, one transformative response in Eastern Europe has been the creation of constitutional courts that engage actively in lawmaking and do not hesitate to decide "political questions" that an American court would refuse to take on.

Teitel explains reasons why, in a time of transition, activism by the courts may promote democracy rather than undermine it. Active litigation that serves to define the powers of the new political actors is a visible contrast to the non-enforcement of constitutional charters under Communist regimes. Access to the courts through litigation is itself a form of participation in the fledgling democracy. A high-profile role for a constitutional court moves the country more quickly to a rights culture. Judicial decision-making in the transitional period may actually be faster and more representative of the will of the people than the legislature is, if the legislative process is slowed down by inexperience or compromised by past associations with the oppressors. Finally, assigning responsibility for the sins of the old regime may be a more immediate need than the enactment of general legislation; if so, the case-by-case method of the courts may be better adapted for that task.

A second example of an "illiberal" response by a newly liberal society is what Teitel refers to as "militant democracy" the attempt to guard from within against subversion of the new democratic system by its old or new enemies. Consider, for instance, regulation to suppress a political party that espouses anti-democratic principles. Germany took such action twice in the postwar period, banning the neo-Nazi party in 1952 and the German Communist Party in 1956.

A third and even more problematic example is "lustration" the administrative practice of investigating, publicizing, and purging from public employment those individuals with ties to the former Communist Party and the state security apparatus. Lustration, a word derived from the Latin word for "purification," has been used most notably and controversially in former Czechoslovakia and Germany. The constitutional court of Czechoslovakia, while limiting the scope of the new regime's lustration policy, has upheld it as justified by the extraordinary needs of the transitional period. Teitel acknowledges that purges and list-making are more like a reenactment of totalitarianism than a move away from it. But like the Czech court, she is unwilling to denounce lustration categorically as unacceptably political and arbitrary during a transitional period. In her view, such measures result from the people's grappling with the profound question of who is responsible for past repression, and deciding to extend the blame for a totalitarian society beyond the individual rulers to their many collaborators.

Americans, Professor Teitel points out, had experience with similar measures during the reconstruction period after the Civil War. President Lincoln envisioned a gentle scheme of universally applicable, forward-looking loyalty oaths expressing consent to the new government. His short-lived plan was followed by the more punitive requirement for "ironclad oaths," whereby the ability to hold public office was conditioned on swearing a backward-looking oath attesting to past allegiance to the Union. Congress steadily removed these political disabilities, and the ironclad oaths were largely gone by 1878. Teitel observes that similarly, the European lustration measures are typically circumscribed by time limits of five or ten years. And the courts have limited the reach of the disqualifications by rules of law including narrow construction, proof of knowing participation, elimination of irrefutable presumptions, and the right of appeal. In Poland, for example, a new law would have disqualified people from serving in the new judiciary if they had engaged in "political decision-making under the prior regime." The Poland Constitutional Court struck down the law as too vague to apply.

Truth Commissions & Trials

Other forms of transitional justice are reparations, trials, and commissions of inquiry. Reparatory justice is perhaps the most common form of transitional justice in modern times. Trials help to establish the discontinuity between the past system and its successor by creating a dramatic and lasting record of state tyranny. In some cases, military persecution against the population has been so widespread as to defy the capacity of the criminal justice system to address it trial by trial, leading to the establishment of commissions of inquiry.

Professor Teitel shows how, in Latin American and Africa, truth commissions have striven to dispel the policies of "night and fog" by assembling a history of the "disappeared." "Every detail is recounted in bare fashion without literary license. In plain, matter-of-fact language, the unbelievable is made believable. The greater the detail, the stronger the counterweight to prior state silence. The more precise the documentation, the less is left to interpretation and even to denial." The truth, as set down by such an inquiry, may not only help to individualize the responsibility for atrocities, but also create a historical consensus. As illustrated in South America, one reason why amnesty may justly be given in exchange for official apologies is to prevent competing accounts from subverting the truth about the past. Reconciliation based on widespread agreement that what happened in the past was wrong can help to achieve the political consensus necessary to going forward.

Trials are the mechanism we look to in stable democracies to measure the accountability of particular individuals for wrongdoing. In transitional periods, Teitel says, trials serve the additional purpose of giving the community a legitimate ritual opportunity through which to understand and share their experience of the old regime. But there is a substantial risk that the use of trials will undermine the rule of law rather than promote it if, for instance, the State engages in selective prosecution or "show" trials without a well thought-out moral basis for its prosecution policy.

Professor Teitel's account of the modern use of trials suggests that the citizens of Yugoslavia who are willing to forget the past are likely to prevail over those who want to see Mr. Milosevic subjected to harsh punishment. The modern trend with criminal trials is toward limited sanctions short or suspended sentences, pardons, or amnesty. In Teitel's view, using the trial to clarify and describe a wrong, while refraining from the heavy penalties imposed in ordinary times for crimes of violence, can be an acceptable response to the dilemma of attributing individual responsibility for a systemic wrong. Even in ordinary times, she writes, "the rule of law is not predicated on a fully enforced criminal justice, and the reasons for forbearance are often, as in transitional times, political." She makes the point that amnesty, no less than punishment, is an exercise of sovereignty, showing where the political power lies. And like punishment, amnesty can be abused if exercised arbitrarily. Subjecting an amnesty or clemency policy to a democratic process can help to make it a legitimate form of transitional justice.

Teitel successfully demonstrates that where the goal is to usher in a lasting democratic system, there is no single correct response to a state's repressive past. But she also steers away from endorsing a transitional approach to justice that is entirely ad hoc. That direction tends to lead to the rhetoric of Robespierre ("We must smother the internal and external enemies of the Republic or perish with it."). As Teitel sees it, the important thing is to turn to legal processes that are gradual, orderly, peaceful, and deliberate. Embracing law's symbolism as well as its rationality enable a society to transcend the political impulses of the moment and come more surely and safely into ordinary time.

Judge Mary Kay Becker is the Acting Chief Judge of Division One of the Washington State Court of Appeals. As a college student in 1964-65, she visited Prague and East Berlin and traveled throughout the Deep South of the United States. Ever since, she has respected individuals who, by taking part in the often messy and sometimes dangerous political life of democracies old and new, keep freedom ringing.

Editors' Note: For a Books-on-Law review of related interest, see Ronald C. Slye's review of Prosecuting War Crimes and Genocide: The Twentieth Century Experience (University Press of Kansas, 1999) by Howard Ball. See also see Richard Weisberg's review of Michael Stolleis's The Law Under the Swastika: Studies on Legal History in Nazi Germany (University of Chicago Press, 1998).

Bible Stories Fighting the McCrate Report
by Karen G. Seinfeld

Called by Stories: Biblical Sagas and Their Challenge for Law
Milner S. Ball
Durham, NC: Duke University Press, 2000
Cloth: $49.95 / Paper: $17.95
Pp. 264
ISBN: cloth 0822325012 / paper 0822325241

Is law merely a discipline controlled by rules of theory and principles of systems? Or is it also a method of critical reflection? If the latter, can narrative stories develop our judgement and enhance our ability to act in "unstructured moral and legal spaces"?

In his book of biblical stories, Professor Milner Ball, the Harmon W. Caldwell Professor of Constitutional Law at the University of Georgia Law School and an ordained Presbyterian minister, makes a persuasive argument for the use of stories to enliven the imagination and develop discernment. In doing so, he seeks to modify the view of lawyering that the ABA's McCrate Report reflects. According to Ball, the Report depicts lawyers as "task-consumed problem-solving technocrats," inventorying the necessary skills and values for a lawyer the way "an auto parts store would list the contents of its shelves." (139)

As the campus minister at the University of Georgia in 1966, a time of great turbulence, Ball acted upon his religious principles by welcoming the then unacceptable black students and whites students committed to social justice. This, along with other activist conduct, led to the synod's firing him and to his career move to legal studies, which "enthralled" him. (5) Nonetheless, Ball did not abandon the biblical texts and eventually returned to explore their depths for insights into the law.

Here, Ball utilizes the Moses saga, Rachel's story, and the Gospel according to John to challenge the modern day practice of law. His skillful dissection of these stories provides the reader with new perceptions of the ancient biblical world and its underlying ethical principles. Ball seeks to connect these stories to the notions that (1) practitioners would better serve society by rejecting the dominant "pious and reverential" attitude toward the law; and (2) an appreciation of the world's great literature will help develop an inquiring and challenging attitude, empowering lawyers to use the flexibility in the law to construct arguments to serve the greater public good.

Notwithstanding Ball's brilliant exploration of the biblical texts, the link between the Bible stories and today's world of law is at times remote and forced. He also occasionally reassumes the pulpit, adopting a sermonizing tone as he preaches greater engagement in the struggle for social justice and rebukes the legal profession for its shortcomings.

Moses & the Mouth of Legal Counsel

Professor Ball employs the Moses saga to emphasize what he sees as the failings of the legal establishment authoritative and entrenched in "self-destructive attitudes," such as the position that a lawyer cannot work for the good of multiple parties. But the link between this point and the Moses saga is tenuous. In discussing the story of Moses, Ball focuses on the biblical leader's role as a "mouth." Moses speaks for God because, as Ball explains, if God spoke directly, it would consume the Israelites. Moses also serves as a mouth for the Israelites when he speaks on their behalf to Pharaoh and even, on occasion, to God. Ball likens this to serving as the "Counsel for the Situation," a role he endorses.

The term "Counsel for the Situation," which originated with Justice Louis Brandeis, refers to one who represents the joint interests of several clients who have potentially antagonistic positions but who would jointly benefit from preserving an asset or institution. This, of course, runs counter to the dominant concept of a lawyer as a zealous advocate for one client against all others. And, as Ball acknowledges, "lawyering for the situation is a tricky business" because the lawyer may be representing "a detached vision of his own," not that of his clients. Aware of the hazards of this concept, Ball, citing Geoffrey Hazard, concludes that "an attorney may be entrusted with the role only if he is fully, vulnerably invested in the situation like Moses." (26)

After describing Moses as a chosen, ravaged man of law, who lived in a world of words with an unsettling God and an unsettled people, Ball concludes that that the concern of the Moses story is holiness, not justice. To the extent that Ball views the story as a cautionary tale for today's legal practitioner, his message is ambiguous. It is unclear whether Ball is implying that the Moses saga lacks relevance to those focused primarily on justice, or whether he is proposing that lawyers should be more concerned with holiness and less with justice.

Midwifery, the Clinic Program & Socratic Teaching

Ball uses the imagery of the midwife to explore the biblical text, the role of the lawyer, and the use of the Socratic method as a teaching device. In the Moses saga, Pharaoh directs the midwives to kill the sons of the Israelites. When they defy him, Pharaoh orders the slaying of the Israelite newborns. But the midwives again act humanely and save Moses. They are images of holiness. Similarly, Ball sees Moses as the midwife at the delivery of Israel.

Professor Ball analogizes the clinical programs in some law schools to failed experiments in midwifery. Although these programs provide motivation for the study of substantive areas of the law, there is a risk that the student-lawyer will become self-righteous, tyrannizing and disempowering clients. To serve as a midwife, the students must combine heart and technique to deliver the voices of others rather than imposing their own views on their clients. The successful student will grow in confidence, skill, and sense of vocation.

In an aside, Ball compares midwifery with the Socratic method of teaching law. He concludes that the intense questioning of students, the distinctive feature of the Socratic method, does not aid in delivering students' thoughts. Rather, he views this style of teaching as more similar to the process of osmosis; the professor has an idea that the student absorbs. As Ball vividly explains, "The midwife does not come to work with a fetus tucked away that she inserts into a womb and then extracts so skillfully that the mother thinks it's her own." (59) Instead, according to Ball, a lawyer performing the holy work of a midwife would first draw out and then deliver the thoughts of the students or clients.

Rachel & the Role of Emotion in Law

The second major teaching story in Called by Stories is that of Rachel, who even in her tomb grieves for her children and all the slaughtered children of Israel. Professor Ball sees Rachel's use of tears as more effective and worthy of moving God than Moses' use of words and arguments. In contrast to the Socratic view of appeals to emotion as demeaning or dishonorable, Ball finds a significant role for emotion in law. As he points out, trials are theatre; they appeal to the heart as well as the mind. While acknowledging that the formalities and discipline of the law may be appropriate and necessary, Ball cautions that when emotion is removed from the law, the law risks becoming a tool of the powerful to repress the powerless. Law, argued for its own sake rather than for a moral cause, can be a self-destructive force.

By way of example, Ball details the 1993 International People's Tribunal in Hawaii. The Tribunal addressed the wrongs that the Kanaka Mali people have suffered since 1893, when the United States aided and abetted a coup against the Kanaka Mali's legitimate government, headed by their queen. Ball, along with eight others from six nations, served as a judge and clearly was moved by the evidence that the U.S. government wrongfully annexed territory; committed genocide; diverted water to coastal resorts; and destroyed the language, law, culture, religion and dignity of these native Hawaiians. But Ball regretfully acknowledges that the law did not provide an adequate means of redress: "the tears sound, if they sound at all, in the opinion's details . . ." (97) Nonetheless, merely telling the stories had value in "restoring connections," linking the events to international norms and giving the events a broader meaning.

In his summary of the Rachel story, Professor Ball discusses an unresolved dilemma also prominent in the Kanaka Mali stories. Rachel's tears, a supplication to God, did not appear to "animate god to perform the role of a better God." Ball responds to this theological concern with an image of speech as an umbilical cord to God; the word of God supplies Rachel with a voice and her tears return within a uterine circulation of expression. Although this image of the people living within the womb of God may satisfy theologians, it does not further Ball's stated purpose to explore the "critical intersections" between these stories and the practice of law. (1)

John's Gospel

In examining the last teaching story, the Gospel according to John, Ball compares and contrasts the trial of Jesus to a trial as we know it. John used the law as a medium for his religious message, enhancing its power by the use of a simple, reserved writing style that avoids hyperbole. As Ball sees it, Jesus is "The Word" and his trial was a trial of a world that did not know the Word. Pointing out the irony of the story, Ball describes the role reversal: the defendant Word is the judge; those who judge Jesus are themselves on trial; and the trier-of-the-case is the reader, from whom John is seeking to elicit belief, not judgment.

With little transition, Professor Ball then jumps into an exploration of the inherent tension facing lawyers. Although the link between the Gospel and this tension is less than obvious, Ball makes some important observations about the dual role of serving a client and simultaneously serving the law and the legal system. To properly serve the client, the lawyer needs independence from powerful forces in society, but to properly serve the higher purpose of the law, the lawyer must be independent from the client. Ball does not resolve this tension; he merely notes that too much distance from the client can lead to a lack of empathy or understanding of the client's interest.

The lesson for lawyers that Professor Ball derives from the Gospel of John relates to freedom freedom to be human, to advance the rule of law to serve those in need, and to use the law as a "medium of the transcendent." Ball concludes, "That the gospel's author writes like a lawyer offers unexpected hope for what 'lawyerlike' can mean." (145)

Called by Stories provides a provocative and original view of the biblical sagas and should be of interest to anyone who enjoys pondering ancient texts and exploring the power of words on the development of a belief system. Although Ball does not provide a formula for dealing with 21st Century legal and ethical dilemmas, his often subtle and deep message has particular significance for judges in our overburdened courts.

Both because of the volume of court caseloads and because of a legal philosophy that emphasizes rationalism over all other considerations, courts often rely on legal fictions and formulas to decide cases. Judges who uncritically accept legal principles and rules, even when they appear to lead to an unjust result, can disclaim responsibility for case outcomes. Called by Stories provides a compelling argument for a renewed scrutiny of our courts' fundamental assumptions about the decision-making process. This book suggests that in law, as in life, the proper ethical response often is complex and murky but the stories of our ancestors, read thoughtfully and with imagination, can provide valuable insights into the dilemmas of our day.

Judge Karen Seinfeld is the Presiding Chief Judge of the Washington State Court of Appeals, Division II, and has served as an appellate judge since 1992.  Before that, Judge Seinfeld served on the Superior Court bench.  Her interest in biblical studies and jurisprudence has been enhanced by conversations with her son Jeff, who has been studying Torah in Jerusalem for the last five years and recently became a rabbi.

Editors' Note: For a new book of related interest, see The Genesis of Justice: 10 Stories of Biblical Injustice That Led to the 10 Commandments and Modern Law (Warner Books, 2000) by Alan M. Dershowitz.

For Books-on-Law contributions by Professor Milner Ball, see his review of Law and Love: The Trials of King Lear (Yale University Press, 2000) by Paul W. Kahn (reply); see also his review of Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery (Columbia University Press, 1998) by Laura Hanft Korobkin.

Ethics in Government: An Oxymoron?
by Susan R. Agid

The Special Prosecutor in American Politics
Katy J. Harriger
Lawrence, KA: University Press of Kansas, 2nd edition, 2000
Cloth: $35.00 / Paper: $16.95
Pp. ix, 325
ISBN: cloth 0700610197 / paper 0700610200

There are two ways to describe this book: (1) Everything you wanted to know (and more) about the institution of special prosecutor/independent counsel, or (2) Independent counsel as a microcosm of American law and politics. For the first 100 or so pages, I thought it was the former. By the end, I realized it was the latter.

In this extremely thorough and well-researched volume, Katy Harriger, an Associate Professor of Political Science at Wake Forest University, explores in depth the murky origins and development of independent counsel as a mechanism for responding to the political and ethical horror of Watergate. She begins with an overview of the most significant government scandals Teapot Dome, tax-case fixing (1951-52), and Watergate and follows with a lengthy description of the reasons for and debates over the special prosecutor provisions of the 1978 Ethics in Government Act. To oversimplify greatly, many of the important political actors of the time believed that Congress had to do something significant to reassure the American people that corruption and criminal activity among high-ranking government officials would be investigated and punished. They latched onto the special prosecutor as an independent agent who would have credibility with the public.

But because of the Watergate Saturday Night Massacre, in which Solicitor General Robert Bork fired Special Prosecutor Archibald Cox on President Nixon's order, most believed presidential appointment of special prosecutors would do little to achieve the goal of restoring confidence in government. Ultimately, the American Bar Association, Common Cause, and numerous legal scholars proposed a mechanism by which a special panel of retired or senior judges from the D.C. Circuit Court would appoint a special prosecutor at the request of the Attorney General. This somewhat circuitous approach was thought necessary to preserve the U.S. Constitution's Article 2 powers of the Executive to enforce the laws (through his Attorney General), avoid the appearance of conflicts of interest, and not run afoul of the Article 3 restrictions on the judiciary. After many challenges, the Supreme Court upheld the statute in Morrison v. Olson (1988). It was able to do so because it took a flexible approach to the separation of powers doctrine, thus allowing executive, congressional, and judicial prerogatives and limits to overlap in ways its earlier cases had condemned.

Law & Sausages

Known as "special prosecutors" before Congress changed the name in 1983 to divorce it from the spectre of Watergate, these independent counsel were charged with investigating and prosecuting government officials found to have violated criminal laws. Some are household names Lawrence Walsh (Iran-Contra), Kenneth Starr (Whitewater/Travelgate/Lewinsky), and Whitney North Seymour (Michael Deaver). But most Americans are, at best, only vaguely aware of the seventeen other lawyers who have been appointed to fill this role during the twenty-one years the independent counsel provisions of the ethics statute were in force. As she describes the cases in which either the President or the Attorney General appointed a special prosecutor, Professor Harriger discusses the way each case developed and the external forces that dictated the outcome more often than not.

In many ways, it is not a pretty picture. As I read about the forces that led to adopting the independent counsel provisions and the investigations those appointed pursued, I was often reminded of the old adage those who love both sausage and law should never watch either being made. Professor Harriger's discussion is open, honest and perceptive. She must have enjoyed writing this book. She does not mince words as she describes the often less-than-high-minded motives, moves, and countermoves of the actors including Congress, the Executive, the press, the Beltway/establishment "elite," and various federal officials. For example, in discussing congressional motives behind ethics legislation, Harriger begins with the following premise: "It is an article of faith in legislative studies that members of Congress behave in ways that will enhance their prospects for reelection." To this end, they take positions they think will appeal to their constituents, but do not feel compelled actually to do anything, because it is the act of taking the position which itself is important. (50-51)

Then, there is the chilling story of Attorney General Richard Thornburgh's machinations that gutted the Iran-Contra investigation and trial. By denying access to classified information that Oliver North asserted was essential to his defense, Thornburgh was able to force independent counsel Lawrence Walsh to drop the conspiracy counts of the indictment, the very charges that were the central core of the Iran-Contra scandal and investigation. The book has many observations and stories like these.

This is not to say that the picture Professor Harriger paints is altogether negative. To the contrary, the overall impression is one of many political actors with disparate concerns, self-interests, and beliefs converging on a crisis in government and trying to forge a compromise that might restore public confidence in the system. She examines objectively the role of each stakeholder group in reacting to the Watergate crisis, developing the ethics legislation, and pursuing the independent counsel cases. She brings to this examination a pragmatic recognition of the impacts that politics and reality have on lawmaking and its aftermath. She uses the independent counsel legislation and the cases it spawned as a microcosm of the larger conundrum a representative government creates. The genius is in the separation of powers and system of checks and balances that the Framers devised. But, as the experience with independent counsel illustrates, our constitutional system has the tensions and conflicts inherent in a government divided into branches, each with its own somewhat hazy powers and limits.

Solution or Illusion?

Like other legislation, the independent counsel provisions were born of a perceived need to fix a crisis brought to the nation's attention by the press. While the events that led to our recognition of the crisis were specific and spectacular, the problem they revealed is not unlike those behind many legislative acts. Public opinion polls and the press made it clear that something had to be done, and Congress recognized that the people expected them to do it. As usual, the "something" took the form of passing a law on the likely assumption that a new law would calm the clamor, prove that Congress was not just sitting on its hands, and provide a solution. Inherent in this approach is the belief that we are a government of laws. Laws, then, are the accepted way of responding to a dilemma. A review of the events leading up to any of our significant legislation civil rights, health care, labor, securities, and a myriad of others would follow the same pattern as the one Professor Harriger describes.

Then comes the debate over the form the law is going to take. As with the independent counsel statute, everyone with a stake in the outcome (including those who must be perceived as having an interest in it) weighs in. The major actors stake out their positions and, with most significant legislation, constitutional constraints play an important role in defining the limits of what can be adopted. Many debates, compromises, and position papers later, a bill emerges. If the members of Congress perceive it to be something they cannot afford to oppose, as was the case with Ethics in Government four years after Watergate, the act passes by a huge majority. Congress and the other actors move onto the next issue, and those charged with implementing the solution the law take over.

What Is Wrong with Special Prosecutors?

It is with this question that examination of the independent counsel statute gets the most interesting. As Professor Harriger points out, the statute's most fundamental problem is that its drafters assumed that, by appointing an independent entity to bring criminal charges against governmental officials who have engaged in wrongdoing, we could punish them. Too often, we can't. Much of the behavior we find offensive does not fit neatly into the very specific elements of crimes that a prosecutor can charge. It is often unethical or immoral behavior that can only be "punished" by voting the offender out of office, embarrassing him, or subjecting him to public censure. Harringer's review of the actual outcomes of the twenty cases for which an independent counsel has been appointed makes this observation abundantly clear. As a means for charging its targets with crimes and punishing them for criminal violations, the statute is a failure.

Even if the targets of special investigations did commit crimes, the complexities of the system and the interests of other players often have thwarted an independent counsel's efforts to prosecute successfully. For example, often there is pressure on Congress to hold hearings about the same events a special prosecutor is investigating. Congress immunizes witnesses from prosecution to get their cooperation. Once immunized, their statements (and information derived from those statements) cannot be used against them in a criminal prosecution. If the immunized testimony comes before independent counsel can complete the investigation, the evidence is inadmissible in court. Thus, the desire of Congress to make a public inquiry into a scandal may cut the heart out of a criminal prosecution. It is important to recognize that a congressional inquiry sometimes may be a better way of dealing with official misconduct than a criminal prosecution. It can "punish" wrongdoers for ethical and moral violations that, while not criminal, are also unacceptable to the public.

Professor Harriger discusses another significant failure of prosecution by independent counsel as a solution to the problem of official misconduct, a failure that has emerged recently. The public criticism of Kenneth Starr and its perception of his expensive runaway inquiry of the Whitewater/Lewinsky matter have undercut severely our confidence in the independent counsel approach. Congress allowed the law to lapse in 1999 in large part because of the problems this investigation created. Not only did the Starr investigation cost a great deal of money and go on for a long time; it also failed to produce either an impeachable offense or criminal conviction of its major targets.

As the Office of Independent Counsel became an institution, even its primary proponents concluded that it could not do the job envisioned for it in 1978. The legislative "fix" had gone from being a solution to a palliative, a promise replete with false expectations. Perhaps resort to independent counsel is a reflection of the ever-increasing tendency of Americans to use civil litigation and criminal prosecution as the means of solving their problems and disputes. Like special prosecutors, the legal system is dependent on courts to solve problems that are better left to informal, more flexible means. There are many wrongs for which the legal system has no remedies. Passing a new law does not necessarily eliminate politics, tensions, and conflict. It may just create new pressures of its own, and end in the kind of disillusionment that brought about the demise of the independent counsel statute.

Professor Harriger's portrait of the rise and fall of this statute reminds us that relying solely on the rule of law, as constrained by what the legal system can do, is not the way to solve our problems. Just as disappointed litigants have turned to alternative dispute resolution to accomplish what the courts cannot, so we should remember that congressional investigations, public pressure, and the power of the vote may often be better solutions to the problem of official misconduct is than criminal prosecution.

A Critique, Such As It Is

The Special Prosecutor in American Politics is well written, researched, and documented. Professor Harriger (who has written extensively in legal and other journals about independent counsel, constitutional law, and civil liberties) consulted virtually every known source on special prosecutors, and conducted interviews that were interesting and added life to the topic. The index is thorough and quite helpful, as are the footnotes. Harriger's understanding of the law is remarkable for a non-lawyer, and her analysis of the issues is thought-provoking and thorough. In addition to giving exhaustive information about special prosecutors, she teaches the reader a great deal about Article 3 courts, the unitary Executive, the philosophy behind the separation of powers, and the legitimate differing views on separation of power held by those involved in government.

I have only a few suggestions. Because the book is about constitutional separation of powers, a basic civics lesson would help readers who are not well versed in the law to put the first several chapters in perspective. I also found a few word choices annoying, perhaps because I have learned to speak as a lawyer and a judge. In my view, the word "counsel" is both singular and plural, so references to "independent counsels," "defense counsels," and the like were jarring. The same is true of words like "testimonies" and "memorandums." But for these niggling complaints, Professor Harriger writes clearly and succinctly, and organizes a great deal of material extremely well. For those who would hope to understand both the special prosecutor and the fundamental theory of our system of constitutional government, this is an excellent book.

Susan R. Agid was appointed to the King County Superior Court in 1986, and joined the Washington Court of Appeals, Division I, in 1991. She has written two books and numerous articles on legal subjects.

Editors' Note: For a Books-on-Law review of related interest, see Judge Louis H. Pollak's review of The Constitution and the Attorneys General (Carolina Academic Press, 1999) by H. Jefferson Powell.


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JURIST: Books-on-Law is edited by Ronald K.L. Collins and David M. Skover of the Seattle University School of Law.

Board of Editorial Consultants: Raj Bhala, George Washington University Law School; Miriam Galston, George Washington University Law School; Kermit Hall, Utah State University; Yale Kamisar, University of Michigan Law School; Lisa G. Lerman, Catholic University of America School of Law; Christine Littleton, University of California at Los Angeles Law School; David M. O’Brien, University of Virginia Department of Government and Foreign Affairs; Judith Resnik, Yale Law School; Edwin L. Rubin, University of Pennsylvania Law School; Steven H. Shriffrin, Cornell Law School; Nadine Strossen, New York Law School; David B. Wilkins, Harvard Law School.

Administrative Assistant for Books-on-Law: Ms. Nancy Ammons
Technical Assistant for Books-on-Law: Steven Pacillio, Esq.

© Ronald K.L. Collins and David Skover, 2001.