BOOKS-ON-LAW/Book Reviews - January 2000; v.3, no.1

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Special: Jurists on JURIST

  • Cole, David D. No Equal Justice: Race and Class in the American Criminal Justice System. Reviewed by Justice Adolpho A. Birch, Jr. (Tennessee Supreme Court).
  • Keeva, Steven. Transforming Practices: Finding Joy and Satisfaction in the Legal Life. Reviewed by Judge John C. Godbold (U.S. Court of Appeals for the Eleventh Circuit). Reply by Steven Keeva.
  • Powell, H. Jefferson. The Constitution and the Attorneys General. Reviewed by Judge Louis H. Pollak (U.S. District Court, Eastern District of Pennsylvania).
  • Stith, Kate, and Jos A. Cabranes. Fear of Judging: Sentencing Guidelines in the Federal Courts. Reviewed by Judge Nancy Gertner (U.S. District Court, Massachusetts).

Special: First Amendment Freedoms at the Periphery

  • Strum, Philippa. When the Nazis Came to Skokie. Reviewed by Robert M. O'Neil.
  • Essay. "Lenny Bruce & the Law: A Fantasy" by Ronald K.L. Collins.
  • Talkback
Jurists on JURIST

Attorneys General as Expounders of the Constitution
by Louis H. Pollak

The Constitution and the Attorneys General
H. Jefferson Powell
Durham, NC: Carolina Academic Press, 1999
Cloth: $59.95
Pp. 250

The Constitution and the Attorneys General is an extremely valuable and highly absorbing contribution to the literature of American constitutional law. Superficially viewed, it is a constitutional law "case book," in the sense that it is a collection of a large number (104 to be precise) of opinions on questions of constitutional law. But the opinions are not explanations of how a "case" or "controversy" has been decided, for the opinions are not the harvest of the adjudicative process. Nor are the opiners judges. The opinions are, for the most part, pronouncements ("essays" may be a better word) about the constitutionality of proposed (or completed) actions (or inactions) of the executive branch, and a substantial proportion of these address the interactions of the executive branch and Congress. The opiners are the Attorneys General and, in recent decades, other high officials of the Department of Justice such as the Solicitor General or, since the 1960s, the Assistant Attorney General for the Office of Legal Counsel (OLC).

The author/anthologist of The Constitution and the Attorneys General is H. Jefferson Powell, a professor of law and divinity at Duke. A gifted scholar of constitutional law and history, Professor Powell took leave from the academy in 1993-94, and again in 1996, to serve as Deputy Assistant Attorney General for OLC and then as Deputy Solicitor General. In both capacities, Professor Powell had the good fortune of working with an equally gifted constitutional scholar, his Duke colleague Walter Dellinger, who was, successively, Assistant Attorney General for OLC and Acting Solicitor General. The Constitution and the Attorneys General is the scholarly product of Professor Powell's busy years as a government lawyer.

A Matter of Opinion

It is a singular fact that the Framers felt it necessary to make express provision in the Constitution for the President's authority to ask his chief executive officials for opinions on matters touching on their areas of governmental responsibility. It is a mark of the perceived significance of the opinion clause that it was placed in the very first sentence of Article II, Section 2, right after the clause designating the President commander-in-chief of the nation's armed forces. "The President," the Constitution provides, ". . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." Alexander Hamilton, in the 74th Federalist, stated that he "regard[ed] the clause as a mere redundancy in the plan; as the right for which it provides would result of itself from the office." Joseph Story, nonetheless, observed in his Commentaries on the Constitution that the constitutional provision was "not without its use, as it imposes a more strict responsibility, and recognizes a public duty of high importance and value in critical times." (1833 ed., vol. III, p. 343)

At the establishment of the new government, this "public duty" of rendering opinions evidently was perceived to be of particular importance with respect to opinions on questions of law. As Professor Powell points out, Congress, in creating the post of Attorney General in section 16 of the Judiciary Act of 1789, specified that the law officer was to have two responsibilities "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments."

Writing in 1833, Story observed that the opinion clause "has, in the progress of the government, been repeatedly acted upon; but by no president with more wisdom and propriety, than by President Washington." (Commentaries, supra,vol. III, at 343) Story added: "Mr. Jefferson has informed us, that in Washington's administration, for measures of importance, or difficulty, a consultation was held with the heads of the departments, either assembled, or by taking their opinions separately in conversation, or in writing." (Id. at n. 2)

Washington's most celebrated exercise of his authority to "require . . . opinions" was the catalyst of the first opinion in Professor Powell's book: Attorney General Edmund Randolph's 1791 opinion on the constitutionality of the bill enacted by Congress and awaiting Washington's signature or veto "to incorporate the subscribers to the Bank of the United States." Randolph's examination of the constitutional text led him to the conclusion that, "so far as [the bill] incorporated the Bank, he is bound to declare his opinion to be against its constitutionality." (7)

In seeking advice on whether to sign the bill, Washington did not, of course, confine himself to asking the Attorney General to prepare an opinion. It is familiar history that Washington also solicited the views of the two lawyers heading the chief executive departments, Treasury Secretary Hamilton (the architect of the Bank proposal) and Secretary of State Thomas Jefferson. Their opinions one, predictably, pro; the other, predictably, contra were to become constitutional exegeses of enduring influence, as was the contra view of Congressman James Madison. Randolph's relatively pedestrian opinion was not. Ultimately, of course, it was not the opinion of a cabinet member or a congressman, or even the approval of the First Bank by President Washington, or the approval of the Second Bank by President Madison, that decided the constitutional issue. It was the 1819 decision of the Supreme Court in McCulloch v. Maryland.

The Justices Decline to Opine

Two years after Washington solicited opinions from the senior officers at his administration about the constitutionality of the Bank bill, he had occasion to seek legal advice from another quarter. The ongoing war between Britain and France had generated troublesome questions for a fledgling republic desirous of maintaining neutrality. Could Americans sell ships to the belligerents? Could France fit out warships in American ports? What authority did the United States have to prohibit hostilities along its coasts? Uncertain what answers were mandated by the United States's treaties with France and by international law, Secretary of State Jefferson, at the President's behest, submitted a lengthy series of questions of law to Chief Justice John Jay and his fellow Justices.

In his letter of transmission, Jefferson noted that the questions were of a sort "often presented under circumstances which do not give a cognizance of them to the tribunals of the country." Jefferson went on to point out that "decision [of the questions] is so little analogous to the ordinary functions of the executive, as to occasion much embarrassment and difficulty to them." Accordingly, "[t]he President . . . would be much relieved if he found himself free to refer questions of this description to the opinions of the Judges of the Supreme Court of the United States, whose knowledge of the subject would secure us against errors dangerous to the peace of the United States, and their authority insure the respect of all parties."

But the Justices declined to opine. In their response which was addressed to the President, not the Secretary of State the Justices pointed to "the lines of separation drawn by the Constitution between the three departments of government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to . . ." The Justices went on to observe that "the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments."

And so, the Court having shut the door on advisory opinions, Presidents have since 1793 looked chiefly to Attorneys General and their principal assistants for legal advice.

From Edmund Randolph to Walter Dellinger

Randolph's opinion on the Bank dealt with issues ultimately determined in the courts. And a number of the other opinions presented in Professor Powell's book dealt with matters subject to judicial resolution in some instances, indeed, the opinions were prepared in the context of pending litigation. Examples are: Attorney General Edward Bates's 1861 opinion affirming President Lincoln's authority to suspend the writ of habeas corpus in the early months of the Civil War (169); and Attorney General Herbert Brownell's 1957 opinion affirming President Eisenhower's authority to employ troops to overcome Arkansas Governor Orval Faubus's obstruction of federal court orders to desegregate Little Rock's Central High School. (347)

The bulk of the opinions in Professor Powell's book, however, deal with questions that like the questions Washington and Jefferson vainly asked the Justices to address appear to be "often presented under circumstances which do not give a cognizance of them to the tribunals of the country." Examples are opinions dealing with the scope of presidential authority to make recess appointments, to exercise the "pocket veto," and to issue or withhold commissions for officers in the armed forces. The majority of these opinions relate, in one way or another, to the degree to which legislation constrains, or compels, action or inaction on the part of the executive branch. These opinions are, therefore, a mix of statutory interpretation and constitutional analysis. The most impressive instance is Assistant Attorney General Dellinger's fifty-six page 1996 memorandum to the general counsels of the various executive agencies on the "Constitutional Separation of Powers Between the President and Congress." (617)

The Attorney General Only Advises the Executive Branch, Not Congress

On January 28, 1820, the House of Representatives requested Attorney General William Wirt "to report his opinion" on a petition that had been presented to the House. On February 3, the Attorney General wrote to the Speaker, setting forth the statutory language requiring him, when requested to do so, to advise the President and the heads of the executive departments. "The Attorney General," Wirt then observed, "is sworn to discharge the duties of his office according to law. To be instrumental in enlarging the sphere of his official duties beyond that which is prescribed by law, would, in my opinion, be a violation of this oath." (13)

Frequent subsequent congressional requests for opinions have been met with similar declinations by Wirt's successors. In 1932, Attorney General William Mitchell, in declining to give requested advice to the Senate, repeated Wirt's words, and then observed that "there has always been a serious question whether the principle [of separation of the three branches] would be violated by a statute attempting to make the Attorney General a legal adviser of the legislative branch, and as a matter of governmental policy the wisdom of constituting as legal adviser of either House of Congress an official of the executive department, who sits in the President's Cabinet and acts as his legal adviser, has always been open to doubt." (284)

Given the Wirt doctrine, it is not clear why Attorney General William French Smith, in 1982, concluded that it was appropriate to write a twelve-page memorandum to the Chairman of the Senate Judiciary Committee "in response to a number of earlier inquiries from members of your Committee concerning S. 1742, a proposal which would withdraw jurisdiction from the Supreme Court to consider 'any case arising out of any State statute, ordinance, rule, [or] regulation . . . which relates to voluntary prayers in public schools and public buildings.'" It should be said, however, that the Smith memorandum is a thoughtful contribution to the extensive (and all-too-often murky) literature addressing the authority of Congress to withdraw, by specified substantive categories, portions of the subject matter jurisdiction of the Supreme Court. (Somewhat surprisingly, the Smith memorandum does not examine the implications of the provision of S. 1742, which would have withdrawn from federal district courts jurisdiction over those cases that were no longer to be cognizable by the Supreme Court).

Tracking the Nation's History

One of the striking aspects of the opinions contained in Professor Powell's book is the extent to which a number of the opinions mirror for good or ill the great themes of the nation's history.

Opinions already mentioned (Randolph's on the Bank, Bates's on the suspension of habeas corpus, and Brownell's on the use of the army to enforce court orders) are cogent illustrations. Other opinions were of comparable dimension: for example, Attorney General John J. Crittenden's 1850 opinion advising President Fillmore that the Fugitive Slave Bill, which awaited the President's signature or veto, was constitutional (74); and Attorney General Robert H. Jackson's 1940 opinion advising President Franklin Roosevelt that he had authority to hand over to Britain a group of over-age destroyers desperately needed by His Majesty's Navy in exchange for the right to establish American military bases in Newfoundland, Bermuda, British Guiana and several Caribbean islands. (307)

Less dramatic but, ultimately, quite as portentous were opinions of Wirt in 1820 (23), Attorney General Hugh S. Legar in 1843 (62), Attorney General Caleb Cushing in 1856 (149), and Bates in 1862 (180), relating to the status, as citizens or otherwise, of free blacks and of Indians. It is notable that Bates, in advising Secretary of the Treasury Salmon P. Chase that a free black resident of Virginia was a "citizen of the United States" within the meaning of the statute setting out the required qualifications of persons who could command American vessels, expressly rejected the contrary opinion of his predecessor Wirt. It is also notable that Bates found little difficulty in distinguishing i.e., very narrowly construing the ruling of the Supreme Court, as announced by Chief Justice Roger Brooke Taney (himself a prior Attorney General), in Dred Scott.

An equally striking phenomenon is the absence of opinions of the Attorney General justifying certain of the major actions that Presidents have taken. There is, for example, no opinion relating to President Lincoln's authority to issue the Emancipation Proclamation. Nor is there an opinion dealing with President Franklin Roosevelt's authority to issue Executive Order 9066 which, in February of 1942, authorized the Secretary of War, and such military commanders as the Secretary might designate, "to prescribe military areas . . . from which any or all persons may be excluded" the presidential catalyst, subsequently ratified by Congress, for the relocation into internment camps of tens of thousands of Americans of Japanese ancestry.

How Much Does an Attorney General's Opinion Weigh?

It is hardly commonplace for an Attorney General to give short shrift to a manifestly pertinent Supreme Court decision as Bates did with Dred Scott. In general, Attorneys General have given decisions of the Supreme Court the deference expected by a tribunal the rationale of whose constitutionally ordained existence is the great Chief Justice's pronouncement that "[i]t is emphatically the province and the duty of the judicial department to say what the law is." The courts have not, however, returned the compliment in full measure at least not in recent decades. Professor Powell points out that "[i]n the nineteenth and early twentieth centuries, the courts and the legal profession generally shared a high view of the significance of the constitutional opinions of the Attorneys General;" but "[i]n the course of the last seventy-five years . . . judges, lawyers and scholars have come to pay less attention to the formally expressed constitutional views of the executive branch." (xvi)

The most colorful instance of a Justice giving little weight to the views of an Attorney General was Justice Jackson's response, in 1952, in the Steel Seizure Case [Youngstown Sheet & Tube v. Sawyer], to the government's reliance on the views expressed by Attorney General Jackson in affirming the constitutionality of President Roosevelt's 1941 seizure of the North American Aviation Company. Professor Powell quotes (336-37) the following colloquy between Justice Jackson and Solicitor General Philip B. Perlman that was a highlight of the oral argument:

MR. JUSTICE JACKSON: . . . I wondered how much of this was laid at my

MR. PERLMAN: Your Honor, we lay a lot of it at your door.

MR. JUSTICE JACKSON: Perhaps rightly.

MR. PERLMAN: I think the statement . . .

MR. JUSTICE JACKSON: I claimed everything, of course, like every other Attorney General does. It was a custom that did not leave the Department of Justice when I did.

Later, in his concurring opinion in the Steel Seizure Case the opinion generally regarded as the most significant analysis of the enormously important constitutional issues presented Justice Jackson was at pains to distinguish the North American Aviation seizure, adding: "I do not regard it as a precedent for this, but, even if I did, I should not bind present judicial judgment by earlier partisan advocacy."

Relatively few of the problems addressed in the opinions of the Attorney Generals have wound up in court, however at least, so far. As noted earlier in this review, most of the opinions address problems that seem to be "presented under circumstances which do not give a cognizance of them to the tribunals of the country." For this reason, in order to obtain a reasonably comprehensive understanding both of the history and of the current multiple roles of the Executive branch, and also of its interactions with Congress, one must look to the constitutional opinions of the Attorneys General as the most prolific source of its legal texture. Auxiliary and interstitial to the United States Reports, they constitute a highly significant second-level repository of constitutional law. In bringing the constitutional opinions of the Attorneys General into the full light of day, and embellishing them with incisive commentary, Professor Powell has performed in exemplary fashion a scholarly task of great value.

Louis H. Pollak has been a United States District Judge in Philadelphia since 1978. Before becoming a judge he taught at Yale Law School from 1955-74 (dean, 1965-70) and at the University of Pennsylvania Law School from 1974-78 (dean, 1975-78).

Editors' Note: For a book of related interest, see Richard W. Steele's Free Speech in the Good War: Defining an American Ideal, 1939-1945 (St. Martin's Press, 1999) (re free speech and the Justice Department). See also Russell R. Wheeler's BOL review of Most Humble Servants: The Advisory Role of Early Judges (1997).

Sentencing Guidelines: Misplaced Reform
by Judge Nancy Gertner

Fear of Judging: Sentencing Guidelines in the Federal Courts
Kate Stith & Jos A. Cabranes
University of Chicago Press, 1999
Paper: $17.00
Pp. 304

The Sentencing Reform Act of 1987 (SRA) effected a sea-change in federal sentencing. It replaced two centuries of sentencing practice, in which judges were given broad discretion to fashion the "just sentence," with a regime of mandatory sentencing rules promulgated by a seven member, unelected Sentencing Commission. The change was so substantial that it engendered immediate and extreme reactions. The overwhelming majority of federal judges weighed in against the changes. By mid-1988, 200 courts had declared them unconstitutional, decisions reversed by the U.S. Supreme Court in Mistretta v. United States (1989). One either loved the Guidelines, or hated them. If there were any "in-between" positions - the old system of discretionary sentencing was flawed, but the new guidelines system was not adequate to the task - they were not widely shared, and surely not in scholarly books.

Fear of Judging fills that void. It is a critique of the guidelines to be sure, and a profound critique at that. But it differs from others in a number of ways. First, the authors are seasoned, well-respected participants in the criminal justice system: Kate Stith, now Professor and Deputy Dean of Yale Law School, was an Assistant United States Attorney in the Southern District of New York and a Special Assistant to the head of the Criminal Division of the Department of Justice; and Judge Jos A. Cabranes, now of the Second Circuit Court of Appeals, was a United States District Judge for the District of Connecticut. Second, it is a scholarly volume, breathtaking in the detail it covers, and the research it reflects. Third, the authors approach the guidelines on a number of levels, from concrete details about the workings of the system to an institutional critique about the impact this reform has had on all of the participants in the system and the extent to which it has failed to meet its own goals. The result is not the familiar paean to the good old days of discretionary sentencing, but an informed, scholarly, and compelling analysis.

The Centrality of Judging

The authors' perspective is clear from the outset. Sentencing is about individualized justice. It requires the exercise of moral judgment - not blindness, but "insight," or as the authors note, quoting Aristotle, "the correction of the law where it is defective owing to its universality." (79) No set of general rules, impersonally administered, can accomplish the job. No entirely bureaucratic model can suffice.

Not surprisingly, the book begins with the philosopher Morris Raphael Cohen's observations that periods of "life and flexibility" in legal history alternate with periods of hardening and rigidity, and ends with Vaclav Havel, urging the abandonment of the view that the "world is merely . . . a machine with instructions for use waiting to be discovered, a body of information to be fed into a computer in the hope that, sooner or later, it will spit out a universal solution." (177) The authors plainly hope to usher in a new period of "life and flexibility" in the sentencing guidelines, alongside the rejection of sentencing in the "administrative state." (7) Judging - in the sense of making moral judgments, principled distinctions about and between the human beings - is not a dirty word.

From Substantive Criminal Code Reform to Sentencing Guidelines

The authors set the stage for their detailed analysis of the guidelines with the history of the legislation. Significantly, they begin not with the enactment of the 1987 Act itself, but rather with the decades-long efforts to enact a substantive federal criminal code. The decision to proceed in this way - with sentencing reform, rather than code reform - had important implications for the results. While a new criminal code would have allowed the Congress to make value judgments about where particular crimes fit into the hierarchy of culpable acts, and which characteristics of offenses are relevant to sentencing, sentencing reform delegated those judgments to an unelected Sentencing Commission, what Justice Scalia called a "junior varsity Congress." Mistretta, at 427 While a new criminal code would have meant that juries would pass on the elements of the offense that impacted on sentencing, in a proceeding hedged about with important constitutional safeguards, the SRA made these issues sentencing decisions without substantial procedural protections, and under pseudo-mathematical formulae. The impact on the fairness of the process was clear.

The Illusion of Pragmatism

To many, the Commission's goals seemed neutral enough - to eliminate unwarranted disparity in sentencing, different sentences for defendants whose crimes and backgrounds appeared similar. Moreover, the Commission seemed to go about the task in an eminently pragmatic, non-ideological way, entirely befitting an administrative agency rather than a legislative body. Rather than making value-choices or implementing the philosophical visions of its members, it simply relied on "past sentencing practices" to come up with the Guidelines. (55)

The problem, as the authors note, is that it was not true. The Sentencing Commission did not abide by past sentencing practices in any systematic way. The Commission raised sentences for white-collar crimes and for certain violent crimes, where it was convinced that they were inadequate. Indeed, the categories of cases in which the Commission deviated from the past practices far outnumber those in which it did not. Moreover, the data that its members looked at to determine past practices was skewed. While they analyzed presentence reports, they distilled from those reports only those factors they believed to be salient and correlated them with the judge's sentence. If their goal were to determine what judges' past practices actually were, they would have tried to review what the judges' reasons were for the sentences they gave; but they did not. If their goal were to determine which factors correlated with the judges' conclusions, they would have considered all of the factors noted in presentence reports; but they did not. They merely decided that certain factors should not be relevant to sentencing, notably offender characteristics. Guidelines that announce that age, education, military service, and drug or alcohol dependence are "not ordinarily relevant" embody policy decisions, not empirical conclusions. In this regard, the authors highlight the comments of those close to the Commission who chided it for its manipulation and alteration of data, and its highly politicized fact-gathering process.

Throughout, the Commission invented concepts and approaches unheard of outside of the sentencing regime. The sentencing range was determined by the intersection of two axes - offense level and criminal history. In determining offense level, the Commission decided that the acts for which the defendants must be held responsible include, in addition to those proscribed by statute and/or found by a jury, certain "real offense" factors the Commission identified, like the quantity of the drugs, or the nature of the victim, and other conduct qualifying as "relevant conduct," whether part of the charge or not, whether the subject of a conviction or not. The criminal-history score, too, was defined uniquely by the Commission in ways that differed from the way the United States Board of Parole had done so in the past. While judges technically could depart from the guideline range - when for example, a particular case is atypical or out of the "heartland" - if they did, their actions would be subject to appellate review. Declining to depart, on the other hand, was not reviewable.

The result was clear: A dramatic increase in both the rate of incarceration and the length of sentences served for virtually all offenders. And that result has been exacerbated over time. The majority of the guideline amendments to date have added features mandating an increase in the severity of sentences.

"Diktats" Without Explanation

But while other critics have made these observations, Stith and Cabranes make an additional significant institutional point here. They note that the Commission, unlike other rule-making agencies of the federal government, does not have to provide an explanation for its rules, or respond to criticisms. While it had to publish its rules prior to final promulgation, it was not subject to any other proscriptions of the Administrative Procedure Act (which, for instance, would permit challenges to the guidelines on the ground that they are "arbitrary" or "capricious"). This creates, as the authors describe in perhaps their most biting critique, "diktats" without explanation. (99) And these diktats are then proclaimed in an area - sentencing - that the authors already have suggested is uniquely about moral and ideological judgments least suited to these kinds of announcements, coming from this kind of body.

The Impact on Judging

In addition, the authors maintain, the Commission has supplanted judges, rather than becoming a partner-in-sentencing, whose purpose was to enhance the judicial function. When a judge has no idea why a particular distinction was made, when there is no legislative history or hearing record, she cannot interpret it with any clarity. When no commentary or record defines the facts considered by the Commission to be in the "heartland," she cannot make a reasoned departure decision. The result, according to the authors, is that sentencing jurisprudence is at best, "trivial" and "inconsequential." (94)

And, while the Supreme Court paid lip service to the breadth of the departure authority in Koon v. United States (1996), in truth, when the Court actually applied the supposedly more flexible standards, the district court's authority to depart was as restricted - if not more so - than it had been before. What Stith and Cabranes describe as the hegemony of the Commission continued.

The Impact on Disparity

It would be one thing if this systemic cost - to judges, to defendants, to the fair meting-out of punishment - had resulted in a meaningful decrease in unwarranted sentencing disparities, which the Guidelines were supposed to effect. According to the authors, it has not. First, there is a lack of coherence about what "unwarranted disparity" means. It is not possible to identify what disparity is warranted and what is not warranted without understanding the purposes the sentence is designed to accomplish, something the Commission declined to do. It is not surprising that no meaningful empirical studies on the reduction of inter-judge disparity either pre-dated or post-dated the guidelines. While the Commission's 1991 study on disparity concluded that there were significant reductions, that study was flawed, and failed to address a central cause of disparity - i.e., departures, on government motion, for giving "substantial assistance" to the authorities.

Towards a Common Law of Sentencing

In conclusion, Stith and Cabranes propose changes at two levels. The first level suggests changes in the interstices of the existing system, on the theory that the Guidelines are, for the foreseeable future, firmly entrenched. The second proposes more profound changes, should there be a new wave of fundamental reform some time in the future. Their goal is not to go back to the bad, old days, but to create a system of guidelines that would enhance the judicial function, and not replace it.

On the first level, they propose expanding those guidelines defining the grounds for departure, without specifying the magnitude of departure required and without conditioning a departure on the approval of any party. Likewise, they urge the Commission simply to identify the factors warranting an adjustment in sentencing, and suggest the values for them, rather than establishing mathematical formulae. An appellate court then would review lower court decisions for the reasonableness of their application of the guidelines. Presumably, although the authors do not spell this out, the increased flexibility would be accompanied by explanatory material, what the Commission intended by the guidelines, the issues it considered, and the purposes it hoped to effect.

The authors further suggest that the Judicial Conference should use its committee process to create sentencing rules of practice and procedure to address the due-process concerns raised by the guidelines - requiring certain procedures to determine facts at sentencing, certain burdens of proof, and amending Rule 11 to require that the defendant be apprised, prior to his plea, of the facts the government intends to rely on at sentencing.

On the second level, which the authors dub "starting anew" (168), they would create a sentencing commission of members selected by the Judicial Conference, whose charge would be to create truly advisory guidelines using their judicial knowledge and experience. Judges applying these "guidelines" would be obliged to give reasons; appellate review could be sought by either side. In this setting, the authors suggest, a federal common law of sentencing would develop, which would address the pre-1987 concerns about unprincipled, discretionary sentencing decisions.

The authors' proposal is interesting, but does not go far enough. It fails to take into account the legacy of this Guidelines' regime. A common law of sentencing would not have emerged pre-Guidelines even if these reforms - reasons, appellate review - had been implemented in 1987. But it would develop now. There is no question that, even if the Guidelines were to be eliminated tomorrow, they have changed the way we look at sentencing, and have created a common framework for discussion. The common law of sentencing that the authors envision likely would take these Guidelines as the starting point. Judges then would articulate and refine them - this time based not on false statistics or administrative fiat, but on the experiences of judging.

Judge Nancy Gertner sits for the United States District Court in Massachusetts. She is the co-author of The Law of Juries (Glasser Legalworks, 1997), and presently teaches federal sentencing at Yale Law School.

The Balance That Will Relieve Us
by John C. Godbold

Transforming Practices: Finding Joy and Satisfaction in the Legal Life
Steven Keeva
Contemporary Books, 1999
Cloth: $24.95
Pp. 234

The dust jacket describes this book as "a source of inspiration and revitalization for lawyers." Lawyers will read it and profit. Many of us feel in at least some degree the separation between professional and personal life, and seek a balance that will relieve us. But, having read Transforming Practices, and having admired both its content and clean, clear writing, I laid it aside with a slight sense of disappointment. I have several caveats.

Failure of the Legal Profession

Steven Keeva, the senior editor of the American Bar Association Journal, provides a description of the state of our profession that is unduly harsh. His fundamental premise is that our profession is riddled with failures of aim and of achievement. Keeva tells of brutal competition, disloyalty, and staggeringly long hours. He describes the emphasis of lawyering as earning money, the name of the game as winning, and trust as a mirage. He depicts the lawyer's separation from friends and family, from his or her law firm, from life as people live it, and even separation from the law as an exercise of self. Keeva views law practice as dehumanized and lawyers as having lost spirituality; indeed, he is especially concerned at loss of spirituality.

Contribution of the Profession

Transforming Practices barely tips its hat to the compelling contribution that the legal profession makes to our social order. The profession is central to the processes that keep our society intact and reasonably orderly, and it permits us to live together in security and with appropriate self-assertion. Yes, the profession has its shortcomings. But lawyers are core performers in maintaining the thin wall between an orderly society and a society without order or security.

In performing their core function, and in addition to it, lawyers contribute in ways too numerous to catalog. Lawyers strengthen and improve their communities, churches, and civic life. They take an active interest in community affairs. In nearly every city or town, the community looks to lawyers for leadership, and lawyers respond to that call. We tend to denigrate participation in government by calling it "politics." But the lawyer joins in the affairs of government, and can create respect for it.

Members of the bar recognize their obligation to accept pro bono matters, often beyond trivial disputes. Lawyers accept appointments to represent criminal defendants accused of horrible crimes, often in an inflamed community that already considers the defendant guilty, and the lawyer may have to decide whether women, Afro-Americans, and persons from the lower economic levels of the community were systematically excluded from serving on the grand jury that indicted the client and the petit jury that convicted him. Lawyers accept civil rights actions by persons wrongly treated by our society who are unable to find representation by other sources, and by doing so they put their profession at risk. Lawyers serve as mentors and teachers for the young and less experienced.

Keeva somewhat hesitatingly accepts that in every community there are lawyers who demonstrate value and commitment, but he finds them missing from most law firms and from the academy. For the most part the only criterion he leaves them is earning money. This is too harsh.

Proposed Remedies

The book's objective is largely directed at the lawyer who is to be changed, even transformed, by introspective thoughts and actions. It tells us how to engage in contemplation, and how to conduct meditation and yoga; it emphasizes walking and controlled breathing. We are instructed in the importance of "mindfulness" of life, a concept drawn from Buddhist backgrounds, not easily explained but perhaps best understood as one's attentiveness to and recognition of the world about him.

A holistic practice of law is recommended, in which the lawyer seeks not only to relieve suffering and conflict but also to heal rifts that keep people in pain and denial. Relief to the client by damages, injunction, and other usual redresses to make the client whole are approached as only part of a solution to the client's needs. Major aim is to be directed at helping him let go of anger and fostering forgiveness, and to understand the perspectives of others. A chapter is devoted to The New Client, who is to enjoy a spiritual bond with the lawyer.

Omission of Remedies External to the Lawyer

I do not doubt the positive effects of an inward search for transformation. But, however valuable for some persons, others will resist these methods, or find themselves unable to achieve the results they seek. This brings me to my second caveat. The book misses an invaluable opportunity to address the ways in which a lawyer may achieve inspiration and revitalization by his actions external to himself. The lawyer can find inspiration and revitalization in the kinds of activities that I have described, which in fact are being carried on by many members of our profession. The lawyer can lift his life by acts done in the world outside himself. Introspection is not the only avenue.

No Injuries to Client's Interest

Moreover, the book does not make clear that counsel's efforts in search of a balanced and less demanding life may not interfere with responsibilities counsel has been retained to undertake. The client's needs and demands may require total commitment of time, thought, and energy. The experienced lawyer is familiar with a need for an injunction over the weekend, the suit that must be filed at once, the contract that must be drafted now. The book encourages the lawyer to think more, walk more, work less, and relax more. One seeking to transform himself cannot let his efforts to improve himself and achieve more tranquility cause injury to his client's cause.

Reformulating Client's Needs

Finally, the book encourages the lawyer to reach beyond the client's expressed needs and desires, to help the client reappraise and, perhaps, reformulate his needs. Of course, counsel must question, advise on terms and achievability, and point out difficulties. But the suggestion is that counsel should use his professional and human skills not only to achieve what the client wants, but also to help him determine, then obtain, whatever the client needs for some semblance of well-being. This objective, the text submits, serves the client by putting his best interests forward, and it lifts humanity by moving it incrementally toward greater wholeness.

This assumes that the lawyer has the wisdom and skill to know the client's needs better than the client himself and should advise him concerning those needs, and that the client should reformulate his needs to accord with those that the lawyer feels are best. The book describes with approval the example of a lawyer retained to represent a man in the sale of his company. He goes beyond the details of the sale, and persuades the client that in the interest of his family, as the lawyer perceives those interests, he should not sell his company at all. The suggestion that counsel has an obligation to persuade his client to reformulate his needs into what the lawyer feels he ought to need is heady stuff.

To sum up, this is a well written and challenging book, especially stimulating to the lawyer whose practice has ceased to be joyful and uplifting. It will help that lawyer adjust to his work and his life.

I wish that the emphasis upon failures of our profession were softened and the range of the book broadened to recognize that the lawyer may find revitalization through acts done in the world at large, as well as reformation within himself. Also, it should recognize that the lawyer, in pursuit of revitalization, cannot thereby damage his client's interests. Furthermore, I have expressed my doubts and adhere to them that a lawyer is obligated to persuade the client to reformulate the needs that he has expressed in the matter for which the lawyer is retained, and to lead the client to reformulate his needs to accord with the needs that the attorney feels that he ought to have.

The Honorable John C. Godbold is Senior Circuit Judge in the U. S. Court of Appeals for the Eleventh Circuit. He was Chief Judge of the Eleventh and Fifth Circuits Courts of Appeal, and a former Director of the Federal Judicial Center. A writer and a lecturer on writing and oral argument, Judge Godbold received the Edward J. Devitt Distinguished Service to Justice Award in 1996.

Editors' Note: For reviews of related interest, see Richard L. Abel's review of Lawyers and the Rise of Western Political Liberalism (1998) and Robert W. Gordon's review of Craftsmanship and Character: A History of the Vinson & Elkins Law Firm of Houston, 1917-1997 (1998).

by Steven Keeva

I'm honored that a jurist of Judge Godbold's reputation and accomplishments has chosen to review my book, and quite pleased that he found Transforming Practices to be a "well-written and challenging" work. But, I am also baffled by some of his criticisms, which suggest to me that he has evaluated the book on terms other than its own.

In pointing out, for example, that I neglect to mention the good works lawyers do - works with which I am intimately familiar as a legal journalist - he fails to realize that "tip[ping] my hat" to the profession's "compelling contribution" would have made little sense in the context of the book I wrote, a book whose purpose seems to have eluded him.

A Different Intent

My purpose was not to persuade attorneys that, in spite of the overwhelming evidence of a widespread malaise in the profession, they should feel good about the contribution they can make. It was something quite different: to offer a new explanation for the high levels of unhappiness among lawyers, and to show how a small but growing number of attorneys are not just coping in the face of daunting systemic obstacles, but are finding rich new sources of meaning and pleasure in their work.

The lawyers I profile are excellent lawyers. Most are quite successful, financially as well as humanly. Every one of them, without exception, described to me a kind of aridity in today's profession that requires a great deal of inner work to surmount. But, collectively, they demonstrate that rich rewards are within reach for those who are willing to ask the right questions and open themselves to new possibilities.

Oddly, Judge Godbold fails to acknowledge that the bulk of Transforming Practices is devoted to these profiles, which together convey a very positive view of what the profession, at its heart, has to offer our society.

Quite the Opposite

For reasons beyond my understanding, Judge Godbold reads into my book a suggestion that simply is not there: that lawyers should reformulate their clients' stated needs in accordance with their own needs. In fact, the example he uses to support his contention actually supports the opposite conclusion.

It's a story told by David Link, who until recently was dean of Notre Dame Law School. The story comes from his days as a partner with Winston & Strawn in Chicago, where one of his first assignments was to help in the sale of a local trucking company. An expert in tax law, Link was asked to devise a tax plan that would save the seller money.

The first time Link met the client was on the day the man came to the office to meet with the partner in charge of the case, as well as with Link and a third partner, named Charlie, who'd been asked to put together the sales and transfer documents.

The partner in charge called on Link first, asking him what sort of plan he'd come up with. The response was a dazzling display of slides and flowcharts that clearly impressed the client.

It was Charlie's turn next. But he had nothing to show. Why? Because, he said, he couldn't do the work without talking to the client, and finding out what he really needed. "He's sitting across from you," the partner in charge said tersely.

Charlie asked the man if he really wanted to sell his company. He said he did; after all it he'd been offered two million dollars more than the company's appraised value. "But what are you going to do with your life?" Charlie asked. "You're in the trucking business."

Link looked across the table and noticed tears streaming down the client's face. It turns out his father started the company in a ramshackle garage on the South Side of Chicago. He, and then his son, built it from there into a successful concern. In fact, he didn't want to sell it at all, and chose not to. The firm lost money, but as Link points out, the client told everyone who would listen that Winston & Strawn is the best law firm in town because it has lawyers like Charlie.

Charlie did not, as Judge Godbold would have it, "persuade the client that in the interest of his family, as the lawyer perceives those interests, he should not sell his company." Charlie's only presumption was that the client was a multifaceted human being - a man with feelings, a family, and a past, one he could not view as a mere "case." Link says the incident changed his whole approach to practicing law.

External Sources

Finally, Judge Godbold errs when he says my emphasis on an "inward search for transformation" neglects the value of external sources of satisfaction for lawyers. Contemplative practices are only a small piece of the picture. Of the book's fourteen chapters, three - on law as a healing profession, service, and listening - are all about sensitizing oneself to the opportunities that present themselves daily in the external world, opportunities to serve others and improve people's lives in myriad ways.

Steven Keeva, assistant managing editor of the American Bar Association Journal, has won numerous awards for feature writing. He also has taught legal affairs reporting at Northwestern University's Medill School of Journalism.

Blueprint for Reform
by Adolpho A. Birch, Jr.

No Equal Justice: Race and Class in the American Criminal Justice System
David D. Cole
New York, NY: New Press, 1999
Cloth: $25.00
Pp. 218

It is, indeed, an inherently dangerous undertaking to address issues of "justice" and "equality" at the same time. For on the one hand, there are those poised to extol the system and its relationship to the two concepts. On the other hand, there are those, equally committed, who are ready roundly to condemn the system and all of its applications. Thus, the writer who addresses both concepts at once becomes a hero to some and a zero to others.

But Professor David Cole knifes through the murky convergence of justice, equality, race, and class with incisiveness. On a critical note, my understanding of Cole's work was hampered somewhat by his failure to clearly define for the reader precisely what "justice" and "equality" mean as he uses them.

The Tension in "Equal Justice Under Law"

Most of us agree that biases (class, gender, ethnic) permeate every fabric of life as we know it, and Cole accurately asserts that the politics of law and justice are often fueled by the same distinctions. Acknowledging the criminal justice system is not exempt, Cole posits the overarching issue as the reconciliation of the tension in "Equal Justice Under Law" between the concept and the reality. He treats that issue with the jurisprudential and often empirical profiles he offers.

One cannot escape the innuendo of the street "a good lawyer can get you out of anything," "the rich never go to jail" to paraphrase two. Cole, however, moves beyond innuendo and anecdote to knowledge based upon empirical data. Other problems in criminal justice simply establish that the system is but a microcosm of the larger society, which itself is riddled with discriminations based upon race, class, and gender. Cole suggests that to solve the problem of manifest unfairness, we must first acknowledge and then eliminate the double standard. Yet, he concedes that, even if such were possible, the problem would persist.

The Canted Playing Field

Professor Cole recognizes that one enters the criminal justice system from a playing field already out-of-level. Because this imbalance permeates society as a whole, the field remains canted. But credit Cole for his effective illumination of the problems associated with unfairness in arrests, indictments, jury selection, trial administration, and sentencing. Credit him for trumpeting the necessity for reform in each area. Credit him for his passion in advancing proposals boldly for resolution of some of the problems. Credit him, too, for being scholarly and unpretentious in expression. But regardless of how erudite the expression, Cole leaves us with the one eternal truth the criminal justice system, whose leadership is disproportionately white and well-off, tends to tolerate disparate treatment accorded to those unlike themselves.

I would describe No Equal Justice: Race and Class in the American Criminal Justice System as a blueprint for reform. It should be on the shelf of every member of bench and bar and of those persons who struggle with us.

Adolpho A. Birch, Jr. is an Associate Justice for the Supreme Court for the State of Tennessee. He is an Instructor in Law at the Nashville School of Law and a Distinguished Jurist in Residence at the University of Memphis, Cecil C. Humphreys School of Law.


Editors' Note: For more about African-Americans in the American criminal justice system, go here; for more from Professor Cole about police brutality against minorities, go here.

First Amendment Freedoms at the Periphery

Skokie in Retrospect
by Robert M. O'Neil

When the Nazis Came to Skokie
Philippa Strum
Lawrence, KS: University Press of Kansas, 1999
Paper: $12.95
Pp. xii, 172

The Chicago area has seen more than its share of racial strife and ethnic tension in the last half century. Soon after World War II, there were days of race riots in Cicero and other communities tensions so severe that the Supreme Court took judicial notice of them in sustaining Illinois' Group Libel Law in 1951. Most recently, over the July 4th weekend of 1999, the lethal rampage of white supremacist Benjamin Smith targeted the village of Skokie, where one of Smith's two victims was brutally shot while strolling on a sidewalk.

Smith's choice of Skokie as a target was hardly accidental. Nor could the publication of Philippa Strum's remarkable case study, When the Nazis Came to Skokie, have been more timely. Though the events on which this book focuses occurred over two decades ago, the racist rampage of last July vividly recalled the symbolic importance of Skokie as a site of ethic tension and the rhetoric of hatred.

This book is much more than a case study, though it surely deserves that designation. It serves in several important ways to enhance understanding of the phenomenon of hate speech, and of the unique degree to which hate speech is tolerated in the United States. Perhaps most valuable is its careful and sensitive analysis of the events that brought Skokie into the courts, and eventually to national prominence, in the late 1970s.

The book begins by setting the stage for the bizarre events that occurred when a group of American Nazis demanded the right to hold a march through the heart of a community that was uniquely averse to the display of swastikas and other Hitler-era symbols because of its very high proportion of Holocaust survivors and families of Holocaust victims. Strum brings to life the special sensitivities of Skokie's most vulnerable residents, and explains why to many of them (including otherwise committed civil libertarians) the proposed Nazi march was not a matter of free speech, but rather of inflammatory conduct that must be prevented at all costs. In the words of one Holocaust survivor then living in Skokie, "Some speech should not be uttered in a society where the government exists to protect the dignity of all." (31) Thus, the Village's denial of a permit, and other restrictions its council later imposed, make much more sense than would be the case without such background and context.

A second singular value of this book is the ease with which it sorts out an exceedingly complex network of litigation, in both federal and state courts, providing a clear and helpful guide for lawyers and lay readers alike. Strum succeeds in making intelligible a bizarre battery of lawsuits some by the Village and one of its citizens, and others by the Nazis who found Skokie even more resistant to their proposed march than they might have anticipated. If the conventional wisdom is that First Amendment values easily prevailed in the Skokie litigation, Strum undermines such facile assumptions by showing how tortuous a course preceded the speech-protective outcome. A different judge or panel, a less effective presentation of evidence or legal argument, or even a different fact pattern, could well have produced an outcome quite different from the one that First Amendment champions often cite as the pre-eminent triumph of an unpopular cause.

A third major contribution of When the Nazis Came to Skokie is its careful and sensitive analysis of the role of the American Civil Liberties Union. Even for an organization long committed to protecting the expression of hateful views, Skokie was a challenge. Many of the leaders of the Illinois chapter were Jewish; they must have shared to a substantial degree the concerns of many Skokie residents about the devastating effect such a march could have on that community and its values. Yet, for the Illinois ACLU, the ultimate question was not one of the rightness or wrongness of the views being advanced by the Nazis, but the potential effect on free expression of a precedent barring such a march because of the hateful views of its sponsor. (In the end, as the author shows, there were mitigating forces, and the ACLU arguably emerged from this searing experience a stronger, as well as a more clearly principled, advocate of civil liberties.)

Once the decision had been made to defend the Nazis, there was no turning back. Yet, the cost for the ACLU (both locally and nationally) of taking and sustaining such a position was to be very substantial, at least in terms of membership and other tangible support. The organization had, just before Skokie, experienced a period of remarkable growth and prosperity not for having shirked tough cases or unpopular causes, but more because the cases it did take on reflected a fairly broad and comfortable consensus among supporters of civil rights and civil liberties.

There was, however, nothing comfortable or familiar about Skokie. The only possible basis on which one could defend the Nazis' right to march in such a community was the belief central to ACLU philosophy, but seldom tested that free speech is only as strong as its ability to protect the vilest of speakers and viewpoints. The appearance of the Nazis in Skokie dramatically tested that belief. Had the ACLU looked the other way, or even claimed (as its harried volunteer lawyers might well have done) that other commitments preempted all available time and talent, a crucial chance to reaffirm that basic belief would have been lost.

Finally, When the Nazis Came to Skokie is a truly remarkable case study. Its chronicling of a very complex set of facts is both vital to understanding what happened in the courts, and exemplary of the case-study medium. The analysis of the relevant legal precedents caps the study. Strum understands First Amendment law extremely well. She properly goes back to what seem today early and quaint antecedents, such as the 1942 Supreme Court decision in Chaplinsky v. New Hampshire that upheld a conviction for the use of "fighting words." That case resurfaced early in the Skokie litigation, despite its relative dormancy for several decades. The degree to which the proposed Nazi march should be viewed as fighting words remained an intriguing issue.

Closely related is an issue that First Amendment experts continue to ponder whether a community could, under Chaplinsky, impose a flat ban on all fighting words uttered in public, or whether it must proceed on a case-by-case basis against those who use such words in ways that threaten immediate and violent retaliation. On one hand, there is the Supreme Court's seeming vindication of vulgar four-letter words in Cohen v. California (1971), while on the other hand there are strong hints in the hate-speech decision of R.A.V. v. St. Paul (1992) that a ban on all fighting words might survive where a viewpoint-specific ban was found contrary to the First Amendment.

In fact, the discussion of the whole issue of "hate speech" is one of the book's major contributions not only because it usefully analyzes relevant court decisions, but even more importantly because it raises serious doubts about the efficacy of laws that seek to enhance civility by barring racist, sexist, anti-Semitic and homophobic rhetoric. Though the author's probable bias emerges from that discussion, she devotes a chapter to the contrary beliefs and assumptions of the Critical Race Theorists. She recognizes that "crits" posit for government a duty to distinguish between "speech that constitutes a valid presentation of ideas, on the one hand, and on the other, speech that is in effect part of a pervasive pattern of subordination."

In contrast, traditional civil libertarians argue that the risks of having government make such judgments outweigh "whatever benefits might flow from a formal condemnation of some speech." The contrasting views about hate-speech laws and bans thus "represent opposing opinions about the ability of the marketplace to differentiate between good and bad speech, as well as about the dangers or benefits that flow from giving the government a power to censor unacceptable ideas." (119)

Perhaps most compelling among the book's many contributions is its explanation of our uniquely American tolerance for hateful speech. Most other countries even the most highly developed democracies put neo-Nazis at least out of business, if not in jail. Canada imposes heavy penalties on virulent anti-Semites. Germany, in addition, requires official permission before one may borrow a copy of Mein Kampf (and is now deeply aggrieved that and other online U.S. booksellers make Hitler's manifesto freely available to German readers).

The American view of hate speech is so distinctive in the world community that it demands a degree of explanation few authors have offered. Strum responds to that challenge. She finds some answers in the unusually early development of our free speech commitment, and others in a rarely articulated "philosophy of citizen responsibility." (127) She also believes that we have been properly skeptical about the potential values of hate-speech laws and bans, while other nations have been far less observant of what in some instances (notably South Africa) have been actually counter-productive consequences.

In the end, the author is not totally convinced that we, as a nation, have answered the ultimate question about tolerating virulent hate speech "can we afford it . . . in a country with a history of religious bigotry, racism and sexism?" It is, after all, barely possible that "American free speech jurisprudence [is] no more than an accident of the wording of the First Amendment and the role of the Supreme Court in interpreting it." Somehow, that does not seem a fully satisfying answer. It is unlikely that many serious readers of this most helpful and timely book would find it so.

Robert M. O'Neil is Director of the Thomas Jefferson Center for the Protection of Free Expression, and Professor of Law at the University of Virginia. He is the author of several books, including Classrooms in the Crossfire: The Rights and Interests of Students, Parents, Teachers, Administrators, Librarians, and the Community (1981) and Free Speech in the College Community (1997). He is also former President of the Universities of Virginia and Wisconsin.

Editors' Note: For Books-on-Law reviews of related interest, see David Kretzmer's review of Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment (1997) and Timothy C. Shiell's review of Speaking Respect, Respecting Speech (1998). See also "Dissent, Injustice, and the Meanings of America: An Online Exchange with Steven Shiffrin," which was published in the November 1999 issue of Books-on-Law

Lenny Bruce & the Law: A Fantasy
by Ronald K.L. Collins

At the Curran Theater he talked about his recent legal escapades
with the fascination of someone who'd just stepped through
a lookinglass and couldn't quite believe what he saw.

Robert Weide

Lenny Bruce (1925-1966), the irreverent comic, is back bigger in this life than in his own.

Earlier this summer HBO aired Lenny Bruce: Swear to Tell the Truth, the Oscar and Emmy nominated documentary by Robert Weide. Meanwhile, a revised version of Julian Barry's 1971 play, Lenny, opened in London. Much of the same interest in the life and legend of the taboo-breaking stand-up comedian prompted Court-TV and E-TV! to release their own "documentaries" a few months back. Even the Museum of Television and Radio recently had a Lenny exhibit, a rare collection of TV performances. So too, there have been new Lenny stories in numerous papers and magazines ranging from the New York Times to Variety.

Now, Fantasy Records is giving new voice to Lenny's life. The same label that distributed most of Bruce's records in the early years has just released Lenny Bruce: Live at the Curran Theater in CD format.

The Curran Theater performance (San Francisco, Nov. 19, 1961) debuted on vinyl in 1971 as a 3-album edited set on the Fantasy label. Except for the small size of the new product, the glory of the old LP set has been revived in the 2-CD package. Variations of some of Lenny's great schticks (e.g., "Christ & Moses" and "Jewish vs. Goyish") are part of the latest offering. And some of his most poignant words of social commentary (e.g., his Adolf Eichmann bit) are likewise included. There are also a few vintage monologues of Lenny recounting his bizarre Philadelphia drug bust, which he beat.

Caveat Emptor

One cannot just play a Lenny Bruce bit and expect to rip at the seams. It's not that simple(minded). Lenny didn't trade in mother-in-law jokes or one-liners. Like a jazz musician, he improvised, he free-formed. Both in style and substance, he liked to mix it up e.g., the political and sexual, the religious and the blasphemous. His comic satire wasn't always linear; his riffs could take off any time and go anywhere. Hence, a little imagination a little suspension from convention always helps.

Above all else, Lenny Bruce liked to expose The Lie, the "should be truth" masquerading as the "what is truth." He crusaded against hypocrisy in all its popular forms. As such, he was no respecter of taboos; he breached them with wild abandon. Even today, his routines can still sting, though time has immunized us somewhat.

Context, real or imagined, was central to Lenny's acts. Thus, for those who attended the Curran that Sunday evening in 1961, they knew the context of his jokes about justice they had just read about his obscenity bust and trial in the San Francisco Chronicle. But where does that leave us, the living, who nearly four decades later don't know what happened to Lenny way back then?

One answer is found in the remarkable 16-page booklet that accompanies the Fantasy CD set. The liner notes (originally included with the LP) were written by the late Ralph J. Gleason (1917-1975). He was the first and finest of all Lenny Bruce commentators. Gleason, who wrote for the San Francisco Chronicle and was affiliated with Fantasy Records, tracked Lenny's comic career almost from its start. He even testified on Lenny's behalf during his San Francisco obscenity trial. In ways often copied but rarely equaled, Gleason's invaluable writings give context to much of the comic and tragic character of Lenny Bruce.

Ralph Gleason's liner notes (coupled with other pieces of history) explain the amazing Curran Theater performance and why what Lenny did on stage that night was so daring, so irreverent, so risky, so funny . . . and, lest we forget, so vital a part of the history of free speech in America. For in the Curran performance Lenny took to the stage to offer comic protest to his recent obscenity arrest this, while tumbling in and out of a variety of stand-up satire on race, religion, sex, and the law.

The Bust

The story begins in a maverick bar (Anne's 440) in the late 1950s. Lenny performed there, at this hip club in North Beach. But that wasn't what got him in trouble. No, it was his comic account of life at Anne's 440 that attracted the blue uniforms. On October 3, 1961, Lenny Bruce brought his "sick comedy" to the Jazz Workshop.

He was cookin'. He loved this city, ever since he played Anne's 440. So why not reminisce about it during his run at the Jazz Workshop? Why not tell 'em about the agent's phone call that brought him to the 440? And so he did, with comic fantasy and flair. Here is a part of that bit as captured on a tape of the Jazz Workshop performance:

Lenny: What kindava show is it, man?

Agent: Well, ya know.

Lenny: Well, no, I don't know, man. . . .

Agent: Well, it's not a show. They're a bunch of cocksuckers, that's all. Damned fag show.

Lenny: Oh, that is a pretty bizarre show. I don't know what I would do in that kind of show.

Agent: Well. . . we want you to change all that.

Lenny: That's a big gig. I can't just tell them to stop doing it.

With that bit (really only a part of it) and others he ripped up the joint. Ralph Gleason and Saul Zaentz (of Fantasy Records) loved it, too.

After the first of two sets, Lenny sat down to chat with Gleason. Soon, Art Auerbach, the owner, came over to break the bad news two cops were there to make an obscenity bust. Once they got outside, a police sergeant turned philosophical: "We've tried to elevate this street. I'm offended because you broke the law. I mean it sincerely. I mean it. I can't see any right, any way you can break this word down, our society is not geared to it." With realist insight, Lenny rejoined, "You break it down by talking about it." Bruce then asked, "How about a word like clap?" Straightening his back, the sergeant rationalized: "Well, 'clap' is a better word than 'cocksucker.'" A quick comic checkmate followed: "Not if you get the clap from a cocksucker."

Lenny was whisked away in a paddy wagon. He was booked on misdemeanor charges for violating Municipal Police Code ァ176 (unlawful presentation of an "obscene, indecent, immoral or impure" performance) and California Penal Code ァ311 (willfully speaking "lewd or obscene" words "in any public place").

The Judge

Municipal Court Judge Albert A. Axelrod was the first jurist assigned to hear People v. Bruce. What Lenny and his lawyer did not then know was that Axelrod had little tolerance for foul-mouthed comics. This would become apparent in the few hours it took to conduct this "quickie-trial." No legal points and authorities needed. No expert or lay eyewitnesses required. A grand total of three people testified two for the prosecution and one for the defense.

The prosecution presented disjointed and fragmented accounts of three of Lenny's routines to establish his guilt. The three bits that gave rise to these charges were: (1) "the club was overrun with cocksuckers" bit; (2) "the man in the front booth is going to kiss it" bit; and (3) the "don't come in me, don't come in me" bit. Lenny's first lawyer, Seymour Fried, cross-examined the officers to establish that the state could not satisfy the "dominant theme" and "prurient interest" elements of the Roth v. U.S., 354 U.S. 476 (1957), test. At every turn, however, Fried's objections were overruled.

After a few hours of direct and cross-examination concerning Bruce's act, Judge Axelrod was ready to rule, convict, and sentence . . . even before Lenny took the stand. When the State rested, Fried again raised his Roth-based objections. But an infuriated Axelrod would have no part of it:

I don't need any points and authorities to tell me that this language which was used and which was quoted by the officer and the context in which it was used is obscene. . . . Now, if the Supreme Court takes a different view, that is up to them! But to me, it is obscene and I certainly wouldn't let my grandchildren sit in and listen to a show like this.

With equal judicial acumen, he added: "The opinion of the court is, he's guilty."

A stunned and bewildered Fried pleaded with Axelrod to honor the Roth requirement that a work be considered as a whole and not judged by a few offensive words. To that end, he urged the court to listen to a reel-to-reel audiotape that Bruce had made of his Jazz Workshop performance. Angrily, Axelrod replied: "If you want to play it, that's your right. But if it's anything like the part I've heard already, I'd rather not hear it."

When Bruce took the stand, he protested that he had been misunderstood. But to no avail, except for the Judge's decision to postpone the trial. "I'm going on a two-week vacation to visit my grandchildren after court today, and I assure you I'm not going to use your kind of language," declared Axelrod. He then granted a thirty-day stay.

Mindful of Bruce's upcoming Curran Theater show, Axelrod had some final words for Lenny Bruce: "I'm cautioning you now that if you say anything obscene at your performance, I'll hear about it. . . . [I]f I get a report you have repeated this language, you'd better bring your toothbrush with you when you come to court again."

The Curran Performance

Two days after Axelrod's stern admonition, Lenny tempted fate with comic bravado at his Curran Theater performance. At 8:45 p.m. that Sunday night he walked on stage before an audience of 300 or more, all of whom trekked through torrential rains to hear him. Art Schaefer, his prosecutor, was there, too.

He was free-formin' and ad-libbin,' rip after rip into the judge: "If he hears from somebody . . . that I talked dirty tonight," kidded Lenny, "then I'll be in court again." No matter - he mocked him; he taunted him; he even challenged his heterosexual masculinity by playing on Axelrod's toothbrush remark. "[A] toothbrush is an intimate thing," the sort of thing one brings for an overnight stay.

Lenny flirted with contempt of court. Spliced in between some of his recognized bits were Axelrod spritzes. His aim was to expose in a comic tour de force the moral fault-lines he perceived in the Judge's character. Thus, he portrayed Axelrod as a man without patience or compassion, a judge who reamed a minority welfare recipient for buying a car. Here is a part of that bit as captured on the Curran CD:

Judge: I've given you every break in the world."

Defendant: "But your Honor."

Judge: "Shut-up!"

(Lenny: What kind of power does this cat got? . . . And he keeps yellin'. . .)

Judge: "I don't want to hear that. I've given you every break in the world."

(Lenny: No, you didn't give him every break in the world. If you did, they wouldn't take his car away.)

Judge: "I've given you every break in the world. 90 days."

(Lenny: That's not every break in the world.)

His stream-of-consciousness next flowed to a satirical treatment of the forbidden word for which he had been busted at the Jazz Workshop. Lenny's devious mind had to find a way to say "cocksucker" without saying "cocksucker." Referring to a "vulgar term" that the Court assumed was "related to homosexuals," Lenny mused: "That's funny . . . because I don't know if they're hip to it, that's not only a homosexual practice but the practice of every good wife who is contemporary. . ." He went on and on, playing on dictionary definitions of "sucker" and "cock."

But that was not enough. He had to up the ante; he had to get into Axelrod's face to tweak his judicial nose. His formula: transform the judge's sensitivity about sex talk around his grandchildren to the Judge's insensitivity in having sex with one of his grandchildren. To do that, Lenny had a mind-bender of a comic plan.

In the routine Lenny's ex-wife, Hot Honey Harlowe (the former stripper), is enlisted to entrap the judge by pretending to faint in his presence. So she goes to the courthouse, picks a suitable spot, and waits for Axelrod. Then she fakes a fainting spell. Sensitive to the moment, Axelrod offers to help the ailing lady.

The comic plot thickens when the faint Honey asks Axelrod to take her home. He agrees. They arrive and within five minutes both are in the sack. The following imaginary exchange, as Lenny offered it that night at the Curran, reveals the trap:

Honey: "Will you talk hot to me? Tell me that I'm your granddaughter. . . ."

Axelrod: "O.K., you'll get it, granddaughter."

Honey: "Get up there, Axelrod."

Axelrod: "O.K., sweetie. . . . You didn't think your old man had it, huh?"

After the incriminating romp and sex talk, Honey delivers the coup de gr稍e. She asks Axelrod to fix her hit-and-run case, and he all-too-willingly agrees. Throughout, she has secretly recorded the incestuous pedophilia and the corruption of justice. All that remained was to air the audiotape at prime-time on the Jack Paar show.

That, then, was the Lenny Bruce comic fantasy. The spectacle was comic, in part, precisely because it was so daring. Lenny Bruce tested the law by tormenting those assigned to enforce it. Having done so, he now had to await the consequences. For it was 27 days and counting until "Toothbrush D-Day," until Lenny's return to Judge Axelrod's courtroom.

Judgment Day

Fate was in Lenny Bruce's court. For had he kept his first lawyer, Seymour Fried, and had Judge Axelrod remained the final judge of record, Lenny would surely have been convicted. But fortuna smiled on him in the person of a highly able lawyer who was at the Curran performance. His name was Albert Bendich, who stepped in and changed the course of Lenny's legal history. Bendich an ACLU lawyer with an impressive track record in civil liberties cases made a motion for a new judge and a new trial. He argued before Axelrod that Bruce had not been legally arraigned. Amazingly, it worked! Motion granted. Axelrod was out, a new judge was in, and Lenny Bruce had a second chance.

What happened at the trial that followed is a long and fascinating story. Suffice it to say that thanks to Bendich's keen trial skills and Judge Clayton Horn's liberal jury instructions, Lenny Bruce was found "not guilty" by a jury of his peers.

A few years after the Curran performance, Lenny (hurting for money and sound legal advice) sued Fantasy for royalties and lost. Fantasy Records, Inc. v. Travelers Indem. Co., 283 N.Y.S.2d 473 (N.Y., 1967, filed in 1963). Sometime later, Al Bendich went to work for Fantasy, where he is now vice-president and general counsel. And the amazing story that gave rise to it all continues with the re-release of Lenny Bruce: Live at the Curran Theater. It is, to be sure, the stuff of which (reality-based) fantasies are made.

Ronald K.L. Collins is the Co-Editor of Books-on-Law. He and David Skover are writing a book on Lenny Bruce. A somewhat abbreviated version of this review originally appeared in Legal Times (Nov. 22, 1999) and is reprinted with permission.


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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, Ohio State University College of Law; Yale Kamisar, University of Michigan Law School; Lisa G. Lerman, Catholic University of America School of Law; 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, 2000.