Commentary

• Erwin Chemerinsky, "Sunlight on the Supreme Court: A Response to the Critics of Closed Chambers"

Special: Jurists on JURIST

• Damaska, Mirjan R. Evidence Law Adrift. Reviewed by Judge Avern Cohn (U.S. District Court, Eastern District of Michigan).
• Garbus, Martin with Stanley Cohen. Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way. Reviewed by Judge Morris S. Arnold (U.S. Court of Appeals, 8^th Circuit).
• Jarvis, Robert M. & Paul R. Joseph, editors. Prime Time Law: Fictional Television as Legal Narrative. Reviewed by Justice Ian D.F. Callinan (High Court of Australia).
• Katzmann, Robert A. Courts and Congress. Reviewed by Judge J. Clifford Wallace (U.S. Courts of Appeals, 9^th Circuit).
• Levit, Nancy. The Gender Line: Men, Women and the Law. Reviewed by Judge Norma L. Shapiro (U.S. District Court, Eastern District of Pennsylvania).
• Talkback

Sunlight on the Supreme Court: A Response to the Critics of Closed Chambers
by Erwin Chemerinsky

Closed Chambers
Edward Lazarus
New York, NY: Times Books, 1998
Cloth: $27.50
Pp. 576

Few books about the Supreme Court, or law for that matter, have generated as much controversy as Edward Lazarus’s Closed Chambers.  Lazarus, a former U.S. Supreme Court clerk, has written a book that is depicted on its cover as being an expose about the Court and its internal processes.  The sub-title of the book is: "The first eyewitness account of the epic struggles inside the Supreme Court."  Underneath Lazarus’s name, the cover of the book declares: "Former Supreme Court Clerk."  The inside of the book jacket proclaims: "Never before has one of these clerks stepped forward to reveal how the Court really works -- and why it often fails the country."

Predictably, some have attacked Lazarus for breaking a code of silence that clerks traditionally have followed.   Professor Richard Painter, in an op-ed piece in the Wall Street Journal, argued that Lazarus acted not only unethically, but illegally as well -- in that he relied on documents that allegedly were taken from the Court without permission.  Judge Alex Kozinski, in a recent article in USA Today, expressed that he had "nothing but contempt for Lazarus."  A scathing review by Kozinski is forthcoming in the Yale Law Journal.

I believe, however, that these criticisms of Lazarus and his book are unfair and misdirected. Lazarus did nothing wrong in writing the book.  Almost without exception, his new material comes from the publicly available papers of Justice Thurgood Marshall or from interviews with other law clerks.  In the entire book of more than 500 pages, there is only one recitation of a conversation with Justice Harry Blackmun, for whom Lazarus clerked, about a case.

Lazarus broke no code of ethics and no law.  The Clerks’ Code of Conduct expressly requires secrecy only during the clerkship, and only provides that a Justice may discipline a clerk who violates its requirements.  It imposes, neither expressly nor impliedly, any on-going duty of secrecy.  Nor is there any evidence that Lazarus illegally removed documents from the Court or ever came into possession of them.

Much of Lazarus’s book is historical, tracing the Court’s handling of capital cases.   Some of Closed Chambers focuses on what occurred in the Court subsequent to his clerkship.  Only a portion of the book concerns events during the 1988-89 Term in which Lazarus clerked. Lazarus is not the first former clerk to write about the Court and discuss the Term of his clerkship.  J. Harvie Wilkinson, now a 4^th Circuit Court of Appeals judge, published a memoir about his clerking experience and Dennis Hutchinson, a former clerk to Justice Byron White, has published a recent biography of him.

What makes Lazarus’s book distinctive is that he is much more critical of the Court than the other authors.  Indeed, Lazarus offers a scathing critique of the Rehnquist Court.  I believe that it is this tone, much more than any secrets Lazarus reveals, that has drawn the ire of Kozinski and other critics.  If Lazarus had written fondly of the Justices and his fellow clerks, I doubt that he would have been subjected to the vitriolic attacks that have been directed at him.

Most reviewers have focused exclusively on the question of whether Lazarus acted improperly in writing the book.  Yet, this focus obscures both the strengths and real problems with Lazarus’s book. Closed Chambers is exceptionally well-written, and presents complex constitutional issues in a manner that should be accessible to a wide audience.  The book contains a wealth of new information.   I already find myself using its revelations in class in teaching cases such as McCleskey v. Kemp and Planned Parenthood v. Casey.

The problem I have with the book, however, is its uncritical assumption of an apolitical court.  The central thesis of Closed Chambers is that the Supreme Court is deeply ideologically divided and that this political schism has caused the Court to be intellectually dishonest.  Indeed, Lazarus describes the problem in apocalyptic terms, seeing the Supreme Court as experiencing a serious crisis.  In his introduction, he describes the current Court as a "nightmare," and writes that the "severity of these divisions [within the Court] has corroded the Court’s institutional culture and driven the Justices to disregard the principles of decision-making -- deliberation, integrity of argument, self-restraint -- that separate the judicial function from the exercise of purely political power.  It is a Court whose inner workings are dangerously at odds with the source of its authority within our constitutional culture."

I find Lazarus’s criticism unpersuasive, however, on many levels.  First, the political divisions that Lazarus describes are descriptively inevitable and normatively not inherently undesirable.  A Court that includes Brennan and Marshall, on the left, and Rehnquist and Scalia, on the right, will be politically split.  Ideological division on the Court is nothing new.  It existed for much of the 19^th Century and certainly for all of the 20^th Century.

Moreover, the evidence Lazarus provides does not prove the extent of the political division that exists in his opinion.  Lazarus focuses primarily on cases involving the death penalty, race discrimination, and abortion rights.  These are the most divisive constitutional issues of our times.  Even if the Court is deeply divided on these issues, that fact does not prove divisions that carry over to other areas of law.   Also, some of the evidence of the ideological division, specifically the hostilities between camps of law clerks, does not necessarily reflect the views of their Justices.  Besides, Lazarus’s evidence is almost entirely from the Court in the years around his clerkship (1988-89), yet he concludes that the Court today is just as ideologically divided.  He provides little evidence of this.

Second, I was largely unpersuaded by the alleged evils that he sees in the Court.   Lazarus repeatedly proclaims that the Court is failing to honor the line that separates law and politics.  In his conclusion, Lazarus writes of "the corruption of the judicial process."  He says that in Webster v. Reproductive Health Services, "the reach of politics into the province of the Court had jumped these natural bounds.  In our many political actions outside the Court, we have come to see and to treat the Court as but yet another purely political, indeed, quasi-legislative institution for forwarding our respective agendas."

Yet, Lazarus never defends what line he thinks should separate law and politics.   I am highly skeptical of such a divide, except as a matter of judicial method.   Judges, unlike legislators, should not be lobbied or influenced by external pressures, such as campaign contributions.  In this sense, I believe in a line separating law and politics.  Lazarus, however, makes no allegations of improprieties in this regard.  Rather, Lazarus has some unarticulated sense of the types of issues that courts should deal with and the types of arguments that should appear in judicial opinions.

Lazarus’s book rests on a very uncritical and undefended acceptance of a legal process approach to law and the Supreme Court.  At the very least, I would criticize Lazarus for not defending this ideological vision.  Moreover, I disagree with Lazarus: the Supreme Court inevitably must and should make value judgments in determining the meaning of constitutional provisions.  The legal process school, which was so influential during the 1950s and 1960s, has somewhat faded from acceptance because it fails to recognize the extent to which it is and should be the role of the Court to make value choices in the interpretive process.

Many of the other harms identified by Lazarus seem questionable.  He criticizes the Justices for relying too much on law clerks.  Yet, his narrative of many cases shows the opposite: Justices highly engaged in the process of deciding cases, negotiating with colleagues, and drafting opinions.  Lazarus criticizes Justices for circulating opinions to some, but not all of the other chambers.  This, however, violates no rule and seems a way of addressing another of Lazarus’s concerns: fragmented decisions without majority opinions.

Still, despite these criticisms, I tremendously enjoyed reading Closed Chambers.   More than a decade ago, The Brethren exposed some of the inner workings of the Court.  It offered inside information about Justices and cases. Closed Chambers has done much the same thing for the next decade of the Court’s work.  Both books also focus attention on the desirability of the enormous secrecy surrounding the Supreme Court.  The two works left me convinced that a great deal more openness is desirable, however much the Court wishes to the contrary.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Law and Political Science at the University of Southern California Law School.  He is the author of three books -- Constitutional Law: Principles and Policies (1997); Federal Jurisdiction (2d ed. 1994), and Interpreting the Constitution (1987) -- and many articles about constitutional law and federal jurisdiction.  He is also the author a much longer review of Closed Chambers forthcoming in the Yale Law Journal.

Editors’ Note: Books-on-Law has kept its focus on the continuing debate in legal circles about the virtues and vices of Closed Chambers.  In May 1998, Books-on-Law ran a special issue on Closed Chambers, featuring an audio and print interview with Edward Lazarus and six commentaries on the book.  The June 1998 issue continued with a critique of Closed Chambers by Judge Alex Kozinski.  The following month, Books-on-Law published Edward Lazarus’s response to his critics.

Reviews

Prime Time Law: Fictional Television as Legal Narrative
Robert M. Jarvis & Paul R. Joseph, editors
Durham, NC: Carolina Academic Press, 1998
Cloth: $32.50
Pp. xii, 315

Prime Time Law is a collection of seventeen essays on the legal system and lawyers as they have been portrayed on television.  It is edited by Nova Southeastern University Law Professors Robert M. Jarvis and Paul R. Joseph.   Although I found the essays to be intelligent and thought-provoking, the more I read of them the more I was left with the impression that television remains an immature, superficial, and ephemeral medium by comparison with cinema.  This impression was in no way diminished by the generally uncritical advocacy of the programs the essayists discussed.

For example, in his essay on "The Defenders," David Papke refers to the fact that its developer, Reginald Rose, had written the teleplay for "12 Angry Men," and later adapted it for the film of the same name starring Henry Fonda and directed by Sidney Lumet -- all without pausing to contrast the focused intensity of that film with the diffuseness and elongation that the commercial imperatives of an extended series demand.

In almost every instance, the programs discussed (despite the lengthy periods for which they ran) fall short of films that have dealt with similar issues.  In his informative essay on Westerns, Francis Nevins starts with "The Cisco Kid" and "The Gene Autry Show" and concludes with "Gunsmoke."  He makes no comment on the failure of all of these to produce a character remotely approaching Gary Cooper’s anguished and isolated sheriff in High Noon, or the naïve, well-intentioned law man of the wild west played by James Stewart, who ever afterwards sailed under the false colors of the man who shot Liberty Valance.

Examples can be multiplied.  It cannot be doubted that "LA Law," John Brigham’s subject, had as many followers in Australia as it had in the United States.  In my home State, students at the University of Queensland put stickers on their windscreens proclaiming "UQ LAW" in the same style of lettering depicted at the beginning of each television episode.  The more impressionable young lawyers in big firms sometimes mistook their duties for roles in the series.  No one can likely take issue with the contributor’s statement that "LA Law" shifted the attention of the public from the drama of the criminal courts to the bargaining process and the civil courts.  Yet, neither "LA Law" nor any other television series dealing with civil justice has come up with as moving and powerful a drama as The Verdict, starring Paul Newman, notwithstanding the total implausibility of the issue upon which the whole film turns -- an appellable rejection of a clearly admissible copy of the admission statement to the defendant hospital.  The film had everything: conscience, ethics, high-level corruption, religion and redemption.  It had more of this in its running time of under two hours than "LA Law" had in hundreds of hours.

I enjoyed John Denvir’s essay on "Rumpole of the Bailey."   As an Australian practicing in a profession divided between barristers and solicitors as in England, I was immediately on more familiar ground.  It is no doubt valid to point out, as the author does, that Rumpole’s clientele comes from a relatively non-threatening class with a morality akin to that of Robin Hood rather than such real life hard men as the Kray brothers.  To be critical of John Mortimer on that account, however, is to misunderstand the nature of the practice of a barrister (in a profession divided between solicitors and specialist advocates) who should have retired, but who has nothing else to occupy his time and still has the need to support himself and his wife.  The Timson family is the only sort of clients he can attract.  The work that he does, requiring formidable cross-examination skills and a profound knowledge of human nature but almost no knowledge of the law, is the only sort of work for which he is fit.  There is at least one Rumpole at every Bar throughout the common law world.   Rumpole would, I suspect, be flattered, if a little disconcerted, to learn that he had been compared in this essay to the patrician Gregory Peck as Atticus Finch in To Kill a Mockingbird.

Most of the contributors make the point that the television programs they discuss, which (apart from Rumpole) are exclusively programs produced in the United States, are concerned with heavy moral issues and typically topical ones.  I would have been even more interested in discussions which explored the question whether such a topicality has contributed to the ephemeral nature of many of the programs.  Often the morality gets in the way of action and character development; this is a point I think Dawn Keetley might have made with some force in her discussion of "Law and Order."  As interesting as this contributor’s views on crime and its causes might be, "Law and Order" does not strike me a suitable vehicle for their dissemination.

Indeed if there is one observation that can fairly be made about most of the essays, it is that their authors are too intent upon seeing, as a ground of approbation within a particular series, a moral line that coincides with their own -- or its absence as a ground for criticism.  Gail Levin Richmond acknowledges the success of "Matlock," but criticizes it for failing to crusade for social justice.  Not only does the introduction of a social justice issue have a capacity to distort plots unless very skillfully handled, it may also cause a series to be populated with stereotypes, rather than with people whose characters develop as the story progresses.

This brings me to another unfavorable contrast between television series and the cinema.  There are some social justice issues subtly touched upon in the film version of Scott Turow’s Presumed Innocent, but the real story of the jeopardy of its major protagonist, and the incongruity of his predicament as the prosecutor under prosecution himself for murder, is cinematically realized in a brilliant way that television could only envy.

It is interesting that Richard Clark Sterne quotes, in his essay on "NYPD Blue," Kozoll’s observation that doing episodic television "is like raising a retarded child."  This is a theme that I would like to have seen developed by reference to the films to which I have referred.  Indeed, to read this selection of essays is rather like embarking upon a course of lectures about how society should be organized and regulated, and the respects in which popular television has failed to carry out the reforming and educative role each author seems to believe it should.

Similarly, as a former practitioner at a Bar of specialist advocates, I find extraordinary the criticism by Susan Beth Farmer of one episode of "Hill Street Blues" as being unrealistic and having an ethically troubling story line (because, for a time, a defense lawyer has acted as prosecutor).  In the United Kingdom and Australia, it is regarded as not only ethical but also highly desirable that specialist advocates practice as both defense counsel and prosecutors.  Even allowing for jurisdictional differences, the criticism seems to me to be misconceived, and just another example of the misplaced moralizing characteristic of the essays.

In choosing "Perry Mason" as his subject, Norman Rosenberg has taken a difficult one, difficult principally because of the banality and predictability of each episode.  As "Perry Mason" is part of the entrenched culture of television, no doubt it need be mentioned; but it really warrants a footnote rather than an essay.

"Situation Comedies" by Robert M. Jarvis and "Soap Operas" by Rod Carveth can be grouped together.  In the former, the author makes a good point that humor has not always fared well in television legal dramas, although "I Married Joan" and "Bachelor Father" turned out to be great successes spawning many imitators.   Jarvis also makes the point well that the ’70s were far too preoccupied with issues for humor to have much place in portrayals of the legal system.  I am reminded that, when I started at the Bar thirty-three years ago, its pre-eminent criminal practitioner said to me in a criminal trial: "Whether the Judge laughs, your opponent laughs, the jury laughs, even the accused in the dock laughs, you don’t even smile."   There isn’t much room for humor in a real-life criminal courtroom.  That might be why, with few exceptions usually in series more about situations than the legal system, successful attempts at humor are rare.

In the essay on day-time "Soap Operas," Rod Carveth points out that in those series the interest lies more in the complicated personal lives of the lawyers than in the law and the courts in which they practice.  Soap-opera lawyers are, he says, different from their evening counterparts.  They are less ethical.  They tend to practice on their own, and they represent natural persons rather than corporations.   The author effectively acknowledges that everything -- the plot, the situations, and the relationships -- needs to be tailored for a perceived simpler and less sophisticated daytime audience.

The ingenuity of Paul R Joseph ("Science Fiction") in associating a legal theme with science fiction is much to be admired but is rather stretching the envelope beyond the most elastic of its corners.  But I did like this essay a great deal because it was one of the few with some humor in it.  This author did make a serious effort to compare television with films.

I was disappointed that no essay was written on the gritty "Prime Suspect" series, in which Helen Mirren starred as the brilliant English detective simultaneously fighting crime, her male peers and inferiors, and a legal system she saw as unduly favoring the guilty.  The five lengthy episodes of that series about vicious and perverted murderers served as the perfect dramatic antidote to the whimsical, relatively harmless criminality of Rumpole’s clientele.

One thing this book does demonstrate is the fertility of American television in introducing legal themes into some unlikely areas: space travel, westerns, sitcoms and soaps.  That has not happened in Australia, nor I believe, to the same extent in the United Kingdom.  There may be four reasons for this: the particular role of the American courts in settling hot, exciting issues arising under a Bill of Rights which neither the United Kingdom nor Australia has; the less diverse and smaller viewing market in both of these countries; the presence in each of at least one totally funded public broadcasting company, which produces little fiction as opposed to public affairs programs; and, in the case of Australia, the availability of only three free-to-air commercial television channels.

I would sum up this publication as timely, stimulating, and comprehensive.  It is a thoughtful attempt to analyze the role of prime-time television series with legal themes.  Its major flaws are that it contains too little humor and too much earnestness.  Having said that, I would still commend the book to court groupies and junkies, lawyers who watch television, and writers who want to write successful television series.

Justice Callinan is a Justice of the High Court of Australia, author, and playwright.  His first novel, The Lawyer and the Libertine, was published in 1996.  A second novel, under the provisional title Louise and the Coroner’s Conscience is to be published in 1999.  His first play, "Brazilian Blue," is being made into a film commencing production in 1999.

Tough Talk: How I Fought for Writers,
Comics, Bigots, and the American Way
Martin Garbus with Stanley Cohen
New York, NY: Times Books, 1998
Cloth: $25.00
Pp. 288

I do not know Martin Garbus, but I would very much like to.  And if I ever need a lawyer to defend me (which I very much hope I will not), I want to have one with his zeal, energy, tenacity, courage, and intellect.  His new book is a tale of a life well-lived (and still being lived) in the law; the number of important cases and causes célèbres with which he has been associated is almost beyond belief.  Moreover, his work is, as we have learned to say, most accessible: Stanley Cohen’s fine descriptive prose, engaging style, and evident attachment to his subject matter make the book a page-turner even for the uninitiated reader.

Mr. Garbus takes us on an illuminating trip through decades of combative lawyering, mostly in defense of those primary liberties (why do you think they put them first?) contained in the Free Speech and Press Clauses of the First Amendment.  From his defense of Lenny Bruce, who tragically died of a drug overdose before he learned that his conviction had been overturned, to his opposition to political correctness on today’s college campuses, Garbus’s commitment to freedom of expression has progressed with the fervor of a jihad.  Harassed, jailed, beaten, and shot at in the American South for his defense of free speech and other civil liberties, he found himself reviled and rejected by many of his co-religionists when he came to the defense of Nazis whose right to march in Skokie, Illinois, was famously if temporarily thwarted by local authorities.  The defense of the Nazis’ rights cost the ACLU fully 20 percent of its membership, and more than once Martin Garbus had to pay dearly in direct and personal ways for his extraordinary devotion to free expression.  For example, his involvement with Daniel Ellsberg before and during the Pentagon Papers case brought him to the brink of being indicted on serious criminal charges.   He was involved in the defense of some of those prosecuted in the wake of the siege at Wounded Knee, and Kathy Boudin and Salman Rushdie have been among his high-profile clients.

The prospective reader should know that, while there is a lot of talk about law in Mr. Garbus’s book, it is not presented in the desiccated argot that unhappily characterizes a typical legal brief.  The book is a story, and it reveals a lot of personal detail about the protagonist and his adventures.  It contains, moreover, not a few observations of a social and political character.  Among the most interesting of these are Mr. Garbus’s ruminations on the class differences between some of the people who figure in his narrative.  His astute observations, for instance, about the social distance between Lenny Bruce and his lawyer Ephraim London (both Jews) are arresting, as are his comments on the kinds of experiences that separated a fundamentalist preacher from a local Mississippi judge (both Southerners).  Mr. Garbus’s apprehensions about being in the South even today are not something that he chooses to disguise (he offers the standard Easterner’s trope about the South as a place of "contradictory moods"), but he also allows that he was on the receiving end of more vituperation because of his stand on behalf of the Nazis in Skokie than he was because of his civil rights activities in the South.

The kind of First Amendment fundamentalism that Mr. Garbus claims for himself is not as commonly encountered today as it once was.  As Mr. Garbus points out, freedom of expression is under attack in the oddest of places -- namely, on our college campuses, an ill omen if there ever was one.  He reports a confrontation with the implacable Catharine MacKinnon, in which she described defenders of pornography as "First Amendment wimps"; and among the most poignant of Mr. Garbus’s anecdotes concerns an argument that he had with his young daughter about the appropriateness of a speech code at Brown University.

Truth to tell, however, Mr. Garbus’s own commitment to free speech principles is not exactly without its limits.  He makes a revealing slip, I think, when he calls MacKinnon part of "the far right of the feminist movement," a characterization that is not just manifestly false but peculiar in perhaps both senses of the word.   Mr. Garbus may suffer from the pathology that makes it virtually impossible for liberals to perceive enemies on the left.  Mr. Garbus also shrinks from extending First Amendment protection to commercial speech, and even intimates a skepticism about the First Amendment’s application to limits on expenditures on behalf of political candidates.  Perhaps these are apostasies of which Mr. Garbus will, on mature reflection, repent.  Or perhaps they are simply manifestations of an ineradicable anti-capitalist animus.

However all that may be, Mr. Garbus has certainly shown an inclination to spread his First Amendment gospel to those nations of Eastern Europe only recently freed from Communist tyranny.  He participated in the framing of the new Czechoslovakian constitution, and a Czech newspaper dubbed him the "Thomas Paine of Prague," a sobriquet that any friend of liberty would be most honored to bear.  For the most part, Mr. Garbus deserves that moniker, despite his notable lapses, which we can hope he will some day soon repair.

Editors’ Note: Other books by Martin Garbus include his Ready for the Defense (Farrar, Straus & Giroux, 1971) and Traitors and Heroes (Atheneum, 1987).  Mr. Garbus appears in the forthcoming documentary by Robert B. Weide, Lenny Bruce: Swear to Tell the Truth, which airs this summer on HBO.  See also his "When the Censor Was in the Statehouse," New York Times, September 20, 1998, sect. 2, p. 27.

The Gender Line: Men, Women and the Law
Nancy Levit
New York, NY: New York University Press, 1998
Cloth: $35.00
Pp. 293

The Gender Line is an interesting and important book. It makes four principal points, all messages of value in any consideration of the role of gender in our society.   They are: (1) Gender separation is embedded in social institutions, including the law.  Generally, people incorrectly believe that men and women are fundamentally different in interests, inclinations and abilities; but, these differences are overstressed by research and reporting of such research, and the extent to which such differences are biological or culturally developed is mostly unknown at present.  (2) Men are harmed by gender role stereotypes perpetuated by legal constraints and excluded from nurturing and caring roles.  (3) The focus of feminist legal theory needs to shift to include, not vilify, men.  The omission of men is an important aspect of popular hostility to feminism.  (4) Modern feminism should reject factionalism among feminists, and turn to egalitarian concepts avoiding gender role stereotyping of men as well as women, including men as potential allies and rejecting them as enemies.

The very chapter headings suggest the book’s comprehensive themes -- Gender Separatism; How Courts Enforce Gender Separatism; Making Men: The Socio-Legal Construct of Masculinity; The "F" Word: Feminism and Its Detractors; Feminist Legal Theory and the Treatment of Men; Reconstructing Images of Gender in Theory; Remaking Gender in Practice: Looking Forward.  The exploration of masculinity in the social sciences includes a comprehensive review of men’s movements (religious, reactionary and even pro-feminist) and a helpful review of feminist legal theory (liberal feminism, cultural feminism, radical feminism and post-modern feminism).

Professor Nancy Levit (University of Missouri-Kansas City Law School) declares: "This book is about legal ideology, but it is not a conventional jurisprudence or legal philosophy book, because the conversation it contemplates can neither begin nor end with law."   That is certainly true, since the discussion of law is confined to about a dozen significant cases, with great emphasis on the significance of the recent Virginia Military Institute (VMI) litigation in U.S. v. Virginia (1996).   There the Supreme Court ultimately held that the Constitution’s guarantee of equal protection precluded Virginia from reserving to men the unique educational opportunities VMI affords.  Virginia had shown no "exceedingly persuasive justification" for excluding all women from the VMI citizen-soldier training.

Levit points out, however, that the Supreme Court’s heightened review standard still did not make single-sex programs categorically unconstitutional.  Even in a majority opinion written by a female justice, she claims "there lingers a soft theory of gender separation," in contrast to Brown v. Board of Education (1954) where racial separation implied inherent inequality.  The author discusses the VMI district and appellate court opinions at length to show the present pervasiveness of accepted socio-moral stereotypes regarding material differences between the sexes.   Even so, this book is not primarily a legal analysis; it is an excellent source of interdisciplinary literature on biological and cultural sex differentiation.   Seven-hundred-and-forty footnotes refer to a wealth of legal, jurisprudential, psychological, sociological, and popular media references to gender issues to support the thesis that gender sameness is more significant than supposed gender differences.

To use judicial jargon in reviewing a book replete with feminist jurisprudential jargon, there are problems both substantive and procedural.  Substantively, in discounting biologically occurring sex-related differences, there is a fleeting acknowledgment of differentiated anatomy and physiology but a total failure to discuss the significance of pregnancy as unique to females.  Children - male and female - still require breeding in a female uterus for most of the period of gestation, even if modern science has lessened the need for male participation in reproducing the species.   "Pregnancy" does appear in footnotes referring to different schools of feminist thought, but in the text the peculiar female role in reproduction is alluded to only in terms of the right to choose an abortion.  There is no recognition that some women like to have children, or that reproduction of the species is a basic, male and female, human instinct.

There is little mention of the mating instinct or heterosexuality (references to feminism in regard to homosexuality abound).  Professor Levit ignores principal reasons for hostility to feminism.  Many women accept the concept of women’s rights without considering themselves "feminists" because they like heterosexual activity; many are married to a member of the opposite sex for love; and many, in the words of Justice Ginsburg, find physical differences between men and women a "cause for celebration but not for denigration of the members of either sex or for artificial restraints on an individual’s opportunity."  The author will win new female as well as male adherents to her view of feminism by arguing against the hostility to men that she concedes has been a part of much feminist activity.

Procedurally, there is a limited group to whom this book will appeal.  It is not a book for the ordinary lay person.  The author intends it for people who have at least some interest in gender issues.  Most of the early text presumes a familiarity with feminist philosophy or requires use of a dictionary ("epistemological," "heuristic," "reify," etc.).  The argument is on a high, but conclusory, level with limited specific examples of broad generalized statements, except for an extended discussion of a few significant nineteenth-century cases.  Neither is most of the text intended for philosophers; not that it is devoid of intellectual content, because it is not. It is very learned, but the appeal to feminist theorists that "there is a huge group of natural -- and necessary -- allies" in men is well expressed in the fourteen-page introduction, and much of 248 pages of text might seem elementary or repetitive to experts in the field of gender stereotyping.

The author describes the book as an invitation to men, whether feminists or not, to explore the ways conventional gender roles harm men.  Women, as well as men, should accept the invitation.  She advocates recruiting men to care about, and work toward eliminating patriarchy; but her call for "reason, civility, action and unification" will appeal to women as well.  The most important group to read Professor Levit’s book, however, will be law students.  It should be compulsory reading in preparation for law study to stimulate and inspire individuals aspiring to learn to construct a society more egalitarian than we now know.  It should be reading of choice for those perpetual students of law, the judges, to give us a fresh perspective on what we do, why we do it, and whether and how we should change in drawing the Gender Line.

Editors’ Note: For other reviews of books on women and the law, see Judge Barbara Jacobs Rothstein’s review of Virginia G. Drachman, Sisters in Law: Women Lawyers in American History (Harvard University Press, 1998), and Louise J. LaMothe’s review of Suzanne Nossel & Elizabeth Westfall, Presumed Equal--What America’s Top Women Lawyers Really Think of Their Firms (Career Press, 1998).

Courts and Congress
Robert A. Katzmann
Washington, DC: Brookings Institute Press, 1997
Paper: $16.95
Pp. 163

Formal communication between the federal courts and the other branches of the national government has been largely nonexistent.  Beginning in this decade, however, there have been a number of inter-branch meetings convened to discuss matters of mutual interest in the area of judicial administration.  These meetings have been useful in improving executive policy and congressional legislation dealing with judicial administration.  The ad hoc nature of these interchanges, however, results in less communication than is desirable in some areas.

In Courts and Congress, Professor Robert Katzmann (Georgetown University) focuses on two of the three branches, and provides a solid introduction to the issues of when and how the federal courts and Congress should communicate with each other on matters affecting both branches of government.  He is concerned particularly with two areas that are ripe for inter-branch communication, statutory interpretation and judicial administration.  Regarding problems of statutory interpretation, for example, Katzmann emphasizes the utility and desirability of communication between the courts and Congress.  The Congress, of course, has the responsibility for drafting statutes, and the courts have the duty of interpreting them when they are not plainly clear.  Yet, Katzmann argues that there is room for the courts "to alert legislators to statutory drafting problems identified in the course of adjudication." (p. 77)

Currently, much of the communication between courts and Congress is indirect.  A judge might give a speech before a professional association, or author a law review article on a topic affecting the judiciary and the legislature.  A recent example of indirect communication from the courts to Congress is Chief Justice Rehnquist’s 1997 Year-End Report on the Federal Judiciary, in which he commented on the delay in confirmation of judicial nominees: "The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote for him . . . or vote him down." [144 Chicago Daily Law Bulletin 2]  Senator Orrin Hatch responded the following week, contending that the delay in confirmation of nominees was due to the President’s slow pace in nominating candidates. [Washington Post 1/11/98]

Yet, sole reliance on indirect communication may not be wise.  As Katzmann documents, even legal opinions (which he considers to be direct communication) may not be read by congressional staff members: "Staff tended only to be aware of 'major' cases such as those resolved by the Supreme Court or those in which a losing party in a case, or a large interest group such as a trade association, sought some sort of legislative relief." (p. 74)

I agree with Professor Katzmann that there is a need for some amount of direct communication between the branches.  Does communication by judges outside of judicial opinions and direct testimony before Congress violate the separation-of-powers doctrine or applicable ethical codes of conduct?  Like others who have considered this question, Katzmann concludes that communication between the branches is neither per se unconstitutional nor unethical: the Constitution, federal statutes, and judicial codes of conduct "do not expressly deal with judicial interaction with Congress, with the full range of circumstances in which judges and legislators interact, directly and indirectly." (p. 89)

Nevertheless, Katzmann calls for caution in direct communications.  Comments about policy matters by sitting judges, he asserts, may affect their future decision-making, or give rise to the impression that they have prejudged issues.  Furthermore, he argues, judges may find that they "will have to make commitments or bargains that run counter to the norms of the judicial process," such as when testifying about the need for funds to implement a judicially imposed remedy. (p. 91)

Professor Katzmann only touches upon what I believe is the most appropriate forum for direct communications between the judiciary and the Congress: an inter-branch organization.  I have been a long-time advocate of not two, but three-branch cooperation.  As far back as 1981, when then-Chief Justice Burger asked me to give preliminary thoughts to long-term problems that would confront the judiciary, I recommended the formation of a three-branch commission that would be responsible for formulating a long range plan to deal with such difficulties.  I had in mind a relatively small working group consisting of judges, lawyers, representatives of Congress and the Executive, and support staff with "not only expertise in the area of the courts, but the wide range talents necessary to provide insight into the dispute resolution problems of the year 2000." [Working Paper, at p. 235]   However, Congress accepted only a compromise of my proposal, in creating the Federal Courts Study Committee.  The Committee on Long Range Planning of the Judicial Conference, however, subsequently adopted my recommendation in its final report.

When the three-branch commission failed to materialize, I next wrote in March 1993 to Chief Justice Rehnquist, Attorney General Reno, Senate Judiciary Chairman Joseph Biden, and then House Judiciary Chairman Jack Brooks, suggesting that "a three-branch conference would be an adequate and effective vehicle for the purpose of establishing a mission for the federal courts."  I did not expect that a three-branch conference would, by itself, solve all problems relating to the judiciary. Rather, I did expect that it would "sharpen the issue[s] for rational resolution."

The first such conference, sponsored by Attorney General Reno, convened on March 7, 1994, with a focus on "the role the federal courts should appropriately play in the United States justice system, along with the practical and theoretical considerations involved when Congress decides to expand federal civil and criminal jurisdiction into areas previously occupied by state law."  In his 1995 Year-End Report, Chief Justice Rehnquist expressed eager anticipation for the second three-branch conference, describing it as a "welcome forum."  Held in January 1996, that conference was hosted by Senator Hatch and Representative Henry Hyde, chairmen of the Senate and House Committees on the Judiciary, and continued the topic of discussion introduced in the initial conference. Unfortunately, the third conference, to be hosted by the judiciary, has still not occurred.

As a result of initial meetings between Attorney General Reno and myself, there have also been a series of quarterly meetings between the Executive Committee of the Judicial Conference of the United States and the Attorney General and her senior staff, designed to provide a forum for communication on "newly emerging issues affecting the judiciary and the Department of Justice."  Chairmen Hatch and Hyde agreed to have similar quarterly meetings after the last three-branch conference.

Direct and official communication among the courts, Congress, and the Executive, in the format that I have outlined above, is the ideal solution to the situation that Professor Katzmann poses.  On matters where the judiciary has expertise and input that would be helpful to Congress, such as judicial administration, representatives of the Judicial Conference of the United States can speak for the judicial branch and provide a comprehensive, as opposed to piecemeal, account of the judiciary’s view.  The congressional representatives are assured of a balanced account that is the product of a wide sample of experience.  At the same time, members of the judiciary can express their views without running afoul of the concerns Katzmann raises.  Because the focus of these inter-branch meetings is not substantive law, but rather judicial administration, there is reduced risk that judges will give an impression that they have prejudged matters likely to occur in litigation or that they will make agreements which restrict their ability to judge future cases.  Adding Executive representation can only strengthen the process.  Considering, moreover, that there have been only two three-branch conferences to date, the inability of the branches to coordinate annual conferences suggests that there may well be a need for a permanent inter-branch institution of the sort that I initially proposed.

Communication among the three branches is vital, and will become more so as problems to be addressed by government become more complex.  It is, of course, up to Congress to make the final decisions on addressing these problems.  Congress is more likely to be effective and to make better decisions, however, if there is a regular interaction of ideas among the three branches.

J. Clifford Wallace is currently a Senior Circuit Judge on the United States Court of Appeals for the Ninth Circuit, for which he served as Chief Judge from 1991 to 1996.  During that time, he was a member of the Judicial Conference of the United States, and was appointed to its Executive Committee.

Editors’ Note: Judge Wallace has written frequently on federal inter-branch concerns.  See, e.g., "The Ninth Circuit Should Not Be Split," 56 Ohio St. L.J. 941 (1995); "Tackling the Caseload Crisis: Legislators and Judges Should Weigh the Impact of Federalizing Crimes," 80 A.B.A. J. 88 (June, 1994); "The Nunn Bill: An Unneeded Compromise of Judicial Independence," Judicature, May 1978, p. 476.

The following sources document the history of the inter-branch commission discussed by Judge Wallace in his review:

• J. Clifford Wallace, Working Paper--Future of the Judiciary, 94 F.R.D. 225 (1981)
• Federal Courts Study Committee, Pub. L. No. 101-650 (1990)
• Judicial Conference of the United States, Long Range Plan for the Federal Courts 126-27 (December,1995)
• Renee M. Landers, "Reporter’s Draft for the Working Group on the Mission of the Federal Courts," 46 Hastings Law Journal 1255 (1995)
• William H. Rehnquist, "1995 Year-End Report on the Federal Judiciary," 19 American Journal of Trial Advocacy 491, 494 (1996)
• Administrative Office of the U.S. Courts, Activities of the Administrative Office of the U.S. Courts: Report of the Director 27 (1996)
• Harlington Wood, Jr., "Judiciary Reform: Recent Improvements in Federal Judicial Administration," 44 American University Law Review 1557 (1995).

Evidence Law Adrift
Mirjan R. Damaska
New Haven, CT: Yale University Press, 1997
Cloth: $27.50
Pp. x, 160

In Evidence Law Adrift, Mirjan R. Damaska, Sterling Professor of Law at the Yale Law School and a graduate of the University of Zagreb, offers to trial judges valuable insights as to the forces underlying the rules of evidence, and to the academic community a provocative view of where it should be going in its periodic reviews of the rules of evidence.  Damaska is one of the world’s leading scholars on comparative common law and civil law evidence.  Trained in the accusatorial (or non-adversary) process, he brings the perspective of a continental lawyer to the adversary system in which common-law adjudication takes place, and particularly to the rules governing the admissibility of the evidence on which decisions are based.  His book is tightly written with copious and sometimes obscure footnotes.

Damaska believes that the evidence rules are on a weakening course.  He begins by describing the institutional environment in which common-law fact finding takes place -- the peculiar organization of the trial court, the temporal concentrations of proceedings, and the prominent roles of the parties and their counsel in legal proceedings.   Damaska calls these the three pillars supporting the evidence edifice; as he describes them, he repeatedly contrasts Anglo-American rules and procedures to continental rules and procedures.  The three pillars, as Damaska views them, rest on the unique features of fact-finding in Anglo-American courts: lay people as judges of the facts, and the prominence of partisan contest.

In the opening chapter, Damaska describes the most distinctive properties of Anglo-American evidence law -- the complexity of the regulations, contrasted with methods of inquiry that prevail in general social practice; the sensitivity to possible misuse; and the effort to structure the fact-finder’s analyses.  Of particular interest is his reference to the principal evidence rule of the War Crimes Tribunal currently at work in The Hague: any relevant evidence that the chamber (i.e., court) deems to have probative value is admissible, and any relevant evidence whose probative value is substantially outweighed by the need to ensure a fair trial may be excluded.

Chapter Two describes the first of the three pillars: the peculiar organization of the trial court in terms of lay adjudicators (the jury) and the divided responsibility between the jury as the decision-maker and the judge as the moderator.  The jury’s receipt of information must be channeled and guarded, he suggests, because it does not have to offer an explanation for its decisions.  He is also of the view, bypassing Fed. R. Civ. P. 52(a) and its state counterparts, that the judge as decision-maker need not give elaborate reasons for his factual findings. (p. 51)

Chapter Three describes the second pillar: a trial that proceeds day-to-day from opening to closing, in contrast to the continental systems’ "episodic style of proceeding." (p. 59)  The concentrated process, which Damaska describes as day-in-court, calls for rather rigid control of the evidence given to the fact-finders, and disallows the opportunity to present fresh evidence, as he labels it, for fear of prolonging the process.  Given a limited database, wandering about in the evidence is controlled by excluding less reliable evidence (hearsay, for example) which would involve too much time for a response.

Chapter Four is devoted to the third pillar, describing the control of the process by the parties through counsel, and the implications of this control on evidence gathering and proof-taking.  As Damaska puts it, "the pervasive attachment of Anglo-American justice to party control over fact-finding is related to a distinctive approach to the mission of the legal process . . . [and] the adversary strand in the braid of evidence law is likely to preserve its powerful charm." (p. 75)

Damaska concludes in Chapter Five and an Epilogue with a description of the effect of the weakening of any of these three pillars on the rules of evidence, and the erosion, as he sees it, of the rules as a consequence of this weakening.  In sum: trial by jury is in the decline; trial-centeredness is diminishing; and challenges to party-control of litigation are increasing.  Additionally, the increased use of sophisticated technical instruments in establishing facts and the growing reliance on technical expert opinion are likely to diminish the reliance on the jury as the fact-finder, expand the trial process, and perhaps diminish the role of the lawyer.  Damaska does not predict a precise course for the future of the rules.  He notes only that the "cracking pillars of common law evidence . . . will most likely be repaired -- or replaced -- by domestic masons and by indigenous building material." (p. 152)

The full flavor of Damaska’s views can best be appreciated by reading the several rather elaborate review essays the book has engendered.  The Hastings Evidence Conference in San Francisco in September 1997 devoted a full session to the book, with presentations by Professors Samuel R. Gross and Richard O. Lempert of the University of Michigan Law School; John D. Jackson, Professor of Law and Dean of the School of Law at The Queen’s University of Belfast; Professor Laird C. Kirkpatrick of the University of Oregon School of Law; and Professor J.F. Nijboer of the Faculty of Law, Rijks Universiteit Leiden.  These essays are published in the Hastings Law Journal, Volume 49, Issue 2 (1998).  Professor Kirkpatrick also has published a review in Judicature (November-December 1997) and Professor Nijboer is organizing the Second World Conference in New Trends In Criminal Investigations and Evidence, to be held in Amsterdam in December 1999.

Reviews also worthy of a read are: "Anchors and Flotsam: Is Evidence Law 'Adrift'?" by Professor Richard D. Friedman of the University of Michigan Law School, published at 107 Yale Law Journal 1921 (1998); and "An Outsider’s View Of Common Law Evidence," by Professor Roger C. Park of the Hastings College of Law, published at 96 Michigan Law Review 1486 (1998).

A look of the work of The National Conference of Commissioners On Uniform State Laws’s Drafting Committee to Revise Uniform Rules of Evidence, as well as the agenda of the Advisory Committee on Evidence Rules of the Judicial Conference of the United States -- the official bodies traditionally charged with the responsibility of keeping the rules of evidence up-to-date -- suggests that the rules, rather than adrift, are in multiple channels, sometimes proceeding in the same direction and on occasion crossing one another.  Also of interest in this regard, and confirming the overall stature of the rules, is the work of The Evidence Project, directed by Professor Paul Rice at the American University Washington College of Law, published at 171 F.R.D. 330 (1997).  Moreover, the Litigation Section of the American Bar Association has recently published Emerging Problems Under the Federal Rules of Evidence (1998), which examines whether the Rules are working as the drafters intended.

The Advisory Committee has published a Request for Comment on the proposed amendments to Federal Rules of Evidence 103, 404, 701, 702, 703, 803, and 902. The Preliminary Draft of Proposed Amendments is published at 181 F.R.D. 18 (1998), and at http://www.uscourts.gov/.  A public hearing is scheduled for January 25, 1999, and written comments are due by February 1, 1999 to the Secretary of the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, Washington, D.C. 20544.

As a federal trial judge for over nineteen years, Damaska’s work seems remote to my day-to-day experiences in chambers and the courtroom.  As I see it, the focus in the American system has shifted pretrial.  Therefore, it appears that the rules of evidence play a less prominent role in the American system than in the past.  The pillars themselves, however, are generally sturdy.

The pretrial focus is due largely to the procedural landscape in which disputes are resolved.  The American system facilitates resolution of disputes without trials; indeed, the Federal Rules of Civil Procedure are "construed and administered to secure the just, speedy, and inexpensive determination of every action." Fed. R. Civ. P. 1.  We live in an age of pretrial discovery, summary judgment, and massive settlement efforts on the civil side, and plea bargaining on the criminal side, because judicial resources -- namely, money and time -- are scarce.  This decline in "trial-centeredness" is due in part to the cost of jury trials.  For fiscal year 1998, the estimated average cost per jury-trial day in a criminal case is near $600, and the cost per jury-trial day in a civil case exceeds $700.  Total obligations for jury-trial days in fiscal year 1998 are projected at $50,000,000.  Further, as dockets expand, Congress will continue to foster methods of resolving disputes without trials.

When a case does come to trial, however, vigorous advocacy is unabated.  The Sixth Amendment to the federal Constitution makes certain, on the criminal side, that a defendant willing to take a chance in the courtroom must depend for success, in some considerable measure, on his or her lawyer’s knowledge the rules of evidence.  At best, Damaska offers no more than a better understanding of what is at work in a criminal trial.

As to the civil side, though the vast majority of cases are resolved without a trial, the Seventh Amendment is ubiquitous.  For example, the most protracted and contentious cases in the federal system today involve claims of patent infringement and challenges to patent validity.  And in almost every patent case there is a demand for a jury trial.  As these cases move to trial, a good part of the pretrial effort is devoted to motions in limine based on sophisticated application of the rules of evidence.  Skill in evidentiary matters is a necessity.  While the effort to strengthen the evidence base for expert testimony, as well as the increasing reliance on this form of evidence, is well known, efforts in this area are simply a warm-up for the main event -- trial by jury.

Aside from the need to improve coordination of effort, the only real danger to the rules of evidence as the millennium approaches is likely to come from congressional meddling, as demonstrated by the mischief created by the direct enactment of Federal Rules of Evidence 413, 414, and 415. See Public Law 103-322.

Avern Cohn is a United States District Judge for the Eastern District of Michigan.   He was appointed in 1979 by President Carter.

Where you have the last word...

[on Avern Cohn's review of Damaska, Evidence Law Adrift]

Judge Cohn may be underestimating the continuing importance of the rules of evidence and therefore the need for continual reexamination. He notes that in his experience, the rules of evidence are playing a less important role because of the increasing use of pretrial resolution. I ask the Judge, however, whether he does not recognize that when he sits in chambers with the parties trying to hammer out a settlement, all of the participants including the Judge, are weighing their ability to prove or defend the case based of course on the evidence as defined by the applicable rules. Accordingly, an appropriate line of inquiry suggested by Damaska's book might be how changes in evidenciary rules might facilitate alternative dispute resolution procedures and whether that would be a good thing.

Joseph H. Guttentag
joegutt@aol.com

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