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Contents | Response | Feature Reviews | Reviews | Talkback || Archive || Books-on-Law Home
  • Feature: Two Takes on MacKinnon & Dworkin

Catharine A. MacKinnon & Andrea Dworkin, editors. In Harm's Way: The Pornography Civil Rights Hearings.  One view by Robert Jensen and a second view by Wendy McElroy.

  • Corn-Revere, Robert, editor.  Rationales & Rationalizations: Regulating the Electronic MediaReviewed by Jon Weinberg.
  • Godwin, Mike.  Cyber Rights: Defending Free Speech in the Digital Age.   Reviewed by M. Ethan Katsh.
  • Griffin, Stephen M. & Robert C.L. Moffat, editors. Radical Critiques of the LawReviewed by Margaret Davies.
  • Harris, Myra A.  Legal Research: FUN-damental Principles and Legal Writing: Principles of JuriographyReviewed by Jill J. Ramsfield.
  • Rabban, David M.  Free Speech in Its Forgotten YearsReviewed by Melvin I. Urofsky.
  • Winick, Bruce J.  The Right to Refuse Mental Health TreatmentReviewed by Christopher Slobogin.
Lazarus Responds to His Critics

Disturbing Truths
by Edward Lazarus

My thanks to Ron Collins and David Skover, the editors of Books-on-Law, for allowing me to respond briefly to the panoply of reviews of my book, Closed Chambers.

I won't bother to answer Richard Painter's desperate attack on my ethics, except to ask why he is so pathological in his attempt to trump up baseless allegations and shroud the Court in an impenetrable cloak of secrecy.  Evidently, Mr. Painter does not believe in either public accountability or the standard journalistic practice of protecting sources.  I do.

Nor will I continue the tit-for-tat in which Peter Irons superciliously engages.

As for David Kairys, how does one respond to a review that so obviously misstates my views?  For example, in the heart of his review, he describes me as a fan of "Griswold v. Connecticut and almost any opinion written by Justice John Harlan."   Where does that come from?  Yes, I praise Harlan's trait of gradually accepting as precedent opinions from which he originally dissented.  But I'm a skeptic of substantive due process, including Griswold, because it is dangerously standardless.  And I barely touch on the rest of Harlan's jurisprudence, except to criticize the doctrines of federalism and states' rights that were so central to Harlan's thinking.  Kairys does accurately describe me as an "extreme moderate."   Not surprisingly, that position rankles an avowed leftist such as Kairys.  So be it.

I was disappointed to see that Mark Tushnet spent so much of his review on the issue of the "cabal."  It is others, including Tushnet, who have hyped this part of my book (perhaps 15 pages out of 500) -- not me.  As important, Tushnet's account of my views is almost as unrecognizable as Kairys's.  Although I think law clerks play a larger and more disturbing role than Tushnet (see, for example, our disagreement over Patterson v. McLean Credit Union), I agree with him that they rarely affect the bottom-line outcome of big cases.  Indeed, I specifically discount some common clerk-centric theories about the Court, such as the charge that a Laurence Tribe disciple, Michael Dorf, convinced Justice Kennedy to change his view of Roe v. Wade in Planned Parenthood v. Casey.

My point in Closed Chambers is not to suggest that clerks are puppetmasters, but rather that they (we) mirrored and exacerbated the polarization and partisanship among the Justices -- thereby adding to the breakdown in the Court's decisional culture.  In distorting and exaggerating my claims, Tushnet attacks a ghost of his own creation.

On a more specific level, Tushnet's deconstruction of my account of Patterson is unconvincing and erroneous.  The "timing" of my tale is not off.  It is Tushnet's tale that is mistimed, based as it is on the erroneous premise that the clerk changeover in Kennedy's chambers occurred in February.  Actually, the changeover occurred in early January -- a perfect fit for my account.  In early December, Kennedy wrote Brennan that he expected to join his Patterson opinion, but wanted to see what the dissent had to say.  During the first week of January (not February as Tushnet posits), a changeover occurred in the Kennedy clerk group and a former Scalia clerk took over the Patterson assignment in Kennedy's chambers.  This clerk made it his mission to change Kennedy's mind in the case.  Of course, for the clerk to succeed, Kennedy had to be susceptible to alternative arguments.  And, indeed, he was.  That does not alter or undermine my claim that the work of this cabal-member clerk -- creating a draft opinion on his own (with help from the Scalia chambers) and, thus, presenting Kennedy with an alternative theory of the case -- was a "but for" cause of Kennedy's switch.

Finally, Tushnet's ultimate strawman: the idea that I describe the Court as permanently divided into liberal and conservative camps.  He says that the liberal wing is gone and that its absence matters.  Guess what?  I say that, too (p. 513).  At the same time, I describe a current Court still intractably divided over the key Warren-era issues of race and states' rights.  On this point, the record of the last few terms provides powerful corroboration.

David O'Brien complains about some undocumented assertions.  I don't blame him.   As I forthrightly explain in my book, there is always a trade-off of verifiability for information when using unnamed sources.  I regret that trade-off, but insiders basically won't talk about the Court for attribution.  (Who can blame them, given the heat I'm taking for daring even to develop such sources?)  Nonetheless, I felt sufficiently confident about my sources for Kennedy's assessment of Thomas in Casey and Souter's prognostication about overturning Oregon v. Smith that (unlike other things I was told) I put these in the book.  I agree with O'Brien that, given Thomas's voting record, Kennedy and Souter may have been mistaken.  That does not undermine my claims.

As for factual errors, an immediate mea culpa.  Of course Souter was not a "vocal dissenter" in Smith; rather, he called for Smith's overruling as soon as he got on the Court. I blew that footnote.  The book contains a few other errors as well, and though they are minor, I rue each one.  At the same time, I would say it's remarkable the lengths some reviewers will travel to manufacture errors, and how unforgiving they are of a few errors in 518 pages when their own very short reviews contain numerous exaggerations and misstatements.

Take O'Brien's other alleged mistakes.  I don't agree with O'Brien that the Court's ruling in New York v. United States renders my characterization of United States v. Lopez inaccurate.  New York is a "commandeering" case -- more about the irreducible Tenth Amendment sovereignty of states than about the inherent limits on Congress's power under the commerce clause (though the two concepts are linked). Lopez, by contrast, is a pure commerce clause case, a case about the inherent limits on federal power under the commerce clause even where Congress is not, as in New York (and also Printz), forcing state officials to take specific actions.  In short, Lopez was much more revolutionary than New York and is, just as I claimed, the first case in 50 years to revisit the approach to federal commerce clause power that the Court abandoned in the watershed cases of the New Deal era.

I am hardly alone in this allegedly erroneous view.  Literally dozens of scholars have described Lopez in identical terms, including leading commentators such as Professors H. Jefferson Powell, Barry Friedman, and Vicki Jackson.  The Justices also appear to share my view.  That is why Souter's dissent, recalling the seminal battles of the 1930s, calls Lopez "epochal," while O'Connor's opinion in New York does not even mention the New Deal debate.  Evidently, O'Brien thinks we are all wrong.  Maybe he should read the cases again.

As for Justice Brennan and the certiorari process: I think my characterization (that he did his own cert. work with little help from his clerks) is perfectly fair and accurate, especially given that I spend all of one sentence discussing the matter.   True, his clerks worked on cert. petitions during the summer recess.  So what?   During the term, even in his last years, Brennan very rarely asked his clerks to help with selecting cases.  To the extent O'Brien argues to the contrary, he is simply wrong.  In any case, what is O'Brien's beef -- that I say Brennan's clerks helped him a little and O'Brien thinks they helped Brennan a little more than a little?   This pettiness is unbecoming as well as baffling.

Finally, O'Brien thinks I've exaggerated the importance of October Term 1988 (OT '88).   In so doing, he sets up several false comparisons.  I don't say that OT '88 was more important than the terms of the mid-60s or early 70s put together.  It's true, as O'Brien says, in the early and mid-70s the Court did hand down huge decisions in the areas of abortion, busing, capital punishment, executive privilege, obscenity, and the Pentagon Papers. But not during a single term.  The Pentagon Papers case was 1971 as was Swann, the big busing case.  But Furman was 1972. Roe was 1973. U.S. v. Nixon was 1974.  Gregg v. Georgia was 1976.   The great landmarks of the Warren Rights Revolution were similarly spread out.

OT '88 is a giant for two reasons: first, the sheer number of important decisions across a whole spectrum of legal issues, including several true blockbusters; and, second, the emergence of the "O'Kennedy" Court -- with its new much more conservative majority distinguished by either O'Connor or Kennedy holding the swing vote in the major fields of law.  That configuration has lasted a decade, and shows no signs of abating.

Let's look at OT '88's big cases.  In the field of civil rights -- the defining concern of the modern Court -- the Justices did a stunning about-face.  They handed down Richmond v. Croson, fundamentally rewriting the law of affirmative action, and three civil rights rulings (Patterson, Wilks, and Wards Cove) that Congress found so objectionable that it reversed them in the Civil Rights Restoration Act of 1991.  Other big rulings include: Texas v. Johnson (flag burning); Webster v. Reproductive Health Services (abortion); County of Allegheny v. ACLU (establishment clause); Mistretta v. United States (separation of powers); National Employees Treasury Union v. Von Raab (Fourth Amendment and drug testing); Stanford v. Kentucky (death penalty for juveniles); Penry v. Lynaugh (death penalty for the mentally retarded); Teague v. Lane (habeas corpus); Browning-Farris v. Kelko (punitive damages); Caplin & Drysdale v. United States and United States v. Monsanto (due process and the right to counsel); Pennsylvania v. Union Gas (Eleventh Amendment); Price Waterhouse v. Hopkins (gender discrimination); and DeShaney v. Winnebago County Dep't. of Soc. Serv. (affirmative governmental obligations).

Admittedly, OT '88 did not have a single nation-changing case.  I never say otherwise.  Instead, what OT '88 bequeathed was a huge number of very substantial rulings that also set the stage for other substantial rulings to come.  Further, it set the alignment and direction of the Court for the next decade.  Here, too, my own assessment has good company.  The first line of the Foreword to the Harvard Law Review assessing OT '88 reads: "By any standard, October Term 1988 was momentous."

As a general matter, instead of nitpicking, it would have been nice if O'Brien, even for a sentence, had paused to consider the main theme of my book -- namely, the malfunction of the Court's decisional processes.  That so many people, even ones such as O'Brien and Tushnet who have written fine books of their own, react so defensively, almost nonsensically to my book only convinces me that I have succeeded in touching disturbing truths that no one feels comfortable discussing openly and honestly.  That is satisfying indeed.

Feature Reviews

Two Takes on MacKinnon & Dworkin

In Harm's Way: The Pornography Civil Rights Hearings
Catharine A. MacKinnon & Andrea Dworkin, editors
Cambridge, MA: Harvard University Press, 1998
Cloth: $45.00 / Paper: $24.95
Pp. 512 

Signs of Struggle: Voices from the Anti-Pornography Movement
by Robert Jensen

Reading In Harm's Way sparked both joy and despair in me.  On the one hand, the publication of this collection of documents from the feminist anti-pornography movement is an important political and scholarly event to be celebrated.   On the other hand, it is difficult not to feel a deep sadness when reading the book, not simply for the human pain that emerges in the stories of survivors of sexual abuse but also for the culture's continuing indifference to that pain.

In this volume, Catharine MacKinnon and Andrea Dworkin, co-authors of the anti-pornography civil rights ordinance, have collected the hearing transcripts and related documents from the political struggles over the ordinance in Minneapolis, Indianapolis, Los Angeles, and Massachusetts.  The book accomplishes several important tasks.

Unavailable Stories that Matter

First, in the past, this documentary record has been either difficult or impossible to obtain.  Prior to this volume, the transcript of the Minneapolis hearings -- in many ways the founding document of the movement -- has circulated primarily in photocopied form; the only published version came out in England and hasn't circulated widely in the United States.  Transcripts of the other hearings were for all practical purposes unavailable.  These transcripts are important because it was in those hearings that people spoke clearly of the harms connected to the pornography industry.  The record includes testimony of supporters and opponents of the ordinance, but it is the stories of the women and men whose lives have been damaged by pornography that are most compelling and important.  These are the stories that tell us so much about the pornography industry, yet so often go unheard in the debate.

Second, MacKinnon and Dworkin make it clear that the feminist anti-pornography movement is not their work alone.  As authors of the ordinance and much of its supporting theory, the two are central to the movement, of course.  But no matter how much the two have emphasized the grassroots nature of the movement over the years, the movement often is presented as these two individuals, who then become the targets of rather vicious attacks and defamations.  In this volume, MacKinnon and Dworkin assemble the documents that show how, like any truly progressive social movement, the feminist anti-pornography movement is the result of the work of numerous people, primarily women.   From this book we learn who those people are, see the results of their work, and read their words.

Third, the book should put to rest many of the misconceptions about the movement.   I say "should" because some of those misconceptions are the result of purposeful distortion, and no amount of evidence seems to derail the public relations campaign of the pornography industry.  MacKinnon's introductory essay particularly takes on these distortions, such as the common assertion that the feminist movement cut some sort of nefarious deal with right-wing Republicans to push through the ordinance, and offers evidence that plainly refutes such charges.  To date, no accurate book-length account of the movement has been published.  While this volume is not such a narrative history, the documents and the essays of the two editors are an excellent reference, and go a long way toward establishing a reliable history.  In a country with an appallingly short historical memory, the importance of this book cannot be overstated.   Without a permanent, accessible record, the truth about the beginnings of the feminist anti-pornography movement would be increasingly hard to determine, lost to time and victim to the distortions of opponents.

Public Education

But the book's value is not simply scholarly.  Anyone interested in understanding the role of pornography in contemporary society should review the evidence in the book.   My own education on this subject began when I read the photocopied transcript of the Minneapolis hearing.  After that, it was impossible for me to ignore the power of the feminist critique or the importance of pornography as a political issue.  My own work on the subject -- published most recently in Pornography: The Production and Consumption of Inequality, co-authored with Gail Dines and Ann Russo -- would not have been possible without the pioneering work of the women in In Harm’s Way.

The debate about pornography, both within feminism and the wider culture, has been difficult and sometimes divisive.  As I often tell my students, principled people can disagree about appropriate solutions to social problems.  But because of the work of the women in the feminist anti-pornography movement, articulated in the pages of this book, it is clear that principled people -- people concerned not just about their own sexual freedom but about sexual justice for everyone -- cannot ignore the voices of these women.  In Dworkin's words: "You need to listen.  You need to know.   You need to care about the suffering pornography causes and be willing to decide what is fair." (p. 36)

This volume's demand that we listen should be heeded, no matter what one's political position on pornography.

Robert Jensen, a professor in the Department of Journalism of the University of Texas, is co-editor with David S. Allen of Freeing the First Amendment: Critical Perspectives on Freedom of Expression (New York University Press, 1995), and co-author with Gail Dines & Ann Russo of Pornography: The Production and Consumption of Inequality (Routledge, 1998).


The MacKinnon-Dworkin Memory Hole
by Wendy McElroy

In Harm's Way, edited by anti-pornography feminists Catharine A. MacKinnon and Andrea Dworkin, purports to chronicle accurately one of the most innovative legal and political strategies of the last decade.  On this count and others, it fails.

From 1983 in Minneapolis to 1992 in Cambridge, Massachusetts, anti-pornography feminists attempted to bypass federal and constitutional hurdles to censoring pornography by lobbying for local ordinances.  These laws declared pornography to be "sex discrimination" and, thus, not protected by the First Amendment.  The proposed measures permitted women who had been "coerced into pornography" or allegedly assaulted because of pornography to sue in civil court "the maker(s), seller(s), exhibitor(s), and/or distributor(s) . . . for damages and for an injunction."   The definition of "coercion into pornography" was so broad, however, that consent was not deemed to be present even though a woman, who had posed for a pornographer, had also signed a contract and release, had been of age and was fully informed, had been paid, and had performed in the presence of witnesses.

Each ordinance occasioned public hearings at which testimony for and against the measure could be presented to city officials.  In Harm's Way is a self-declared "complete and accurate" record of four of these hearings: Minneapolis, Indianapolis, Los Angeles, and Cambridge, Massachusetts.  In one sense, MacKinnon and Dworkin are extraordinarily well qualified to edit a book on "The Pornography Civil Rights Hearings."  The two women had been hired by the city of Minneapolis in 1983 to draft the ordinance through which the city council hoped to regulate adult bookstores.  This ordinance became the model for the ones that followed, and MacKinnon was intimately involved in arguing for each measure.   However, neither MacKinnon nor Dworkin qualifies as an impartial observer.

Aware of the skepticism their bias would occasion, In Harm's Way declares its objectivity in several places.  For example, on a prominent page entitled "Note on Editing," the editors declare: "We intend these hearings to be as complete and accurate a record of what was said as possible." In Harm's Way does not even vaguely live up to this billing.

The Los Angeles Ordinance Saga

Consider the account of the Los Angeles hearing(s) in which I was personally involved.   MacKinnon and Dworkin offer the transcript of a hearing -- calling it the hearing (my emphasis) -- which took place on April 22, 1985 before the Los Angeles County Commission on the Status of Women.  They neglect to present the details of, or even to mention, three other hearings that occurred with respect to the same proposed ordinance.

A gay rights activist, John Dentinger, and I were the only two people to oppose the ordinance at the first hearing on February 26 (unmentioned by the authors).  We almost did not attend.  John had called several times to find out the date of the hearing, and had asked to be notified by the clerk.  After all, supporters who included MacKinnon, the director Peter Bogdonavich, and radical feminist lawyer Gloria Allred would surely be given time to arrange their schedules.  Nevertheless, it was by chance alone that John learned of the meeting less than twenty-four hours before it occurred.  The Board of Supervisors, who favored the measure, had not bothered to notify the opposition.

I accompanied John Dentinger to the Hall of Administration on February 26.  When the ordinance came up on the agenda, floodlights flicked on as cameras prepared to roll.   Aware of having to handle opposition in the media's eye, the Commissioners refrained from taking any precipitous step.

A second county hearing (also unmentioned by In Harm's Way) was scheduled for March 26.  This time, however, a substantial number of women from FACT (Feminists Against Censorship Taskforce) appeared.  They had not been informed of the first hearing and they intended to make up for being silenced.  In the face of such concerted and public opposition, the supervisors arbitrarily and without notice refused to hear any public testimony.  The ordinance was referred back to the Women's Commission for "revision."  Meanwhile, Betty Brooks, the head of FACT, was so outraged that women had taken time off work to testify, only then to be told to "go home," that she delivered an impassioned speech to the media in the corridor outside the Hall of Administration.

I did not attend the third hearing, reported as the hearing in In Harm's Way.  Although In Harm's Way states that "[n]otably, Wendy McElroy was listed third of those who were to speak against the ordinance at the Los Angeles hearing, but she did not present herself to speak," neither John nor I was informed of the April 22 session.

On June 4, the L.A. Board of Supervisors held yet another hearing at which many women showed up to oppose the measure.  Those who opposed the ordinance -- not those who supported it -- were taken to an outside hallway and told that only a few would be allowed to speak.  Thanks to the assertiveness of Betty Brooks, each woman was ultimately allowed to testify.  At the fourth hearing, Ramona Ripston of the ACLU commented on how the ordinance stripped women of rights; a Jewish woman spoke of Nazis who burned books; a member of the U.S. Prostitutes' Collective argued eloquently that the ordinance would create violence against sex workers; among the opponents, John Dentinger almost caused a riot when he tore pages of "obscene material" out of a Bible.

None of this testimony is in In Harm's Way.  Nor is there any analysis of the surrounding politics.  For example, who was and was not notified of the April 22 hearing?  What pivotal events happened in the hallway outside?   What rules did the Board of Supervisors arbitrarily change at the last moment?   Instead, there are blanket statements in the dual introductions, such as MacKinnon's bald-faced declaration that "[t]he opponents of the civil rights laws . . . did not openly defend pornography."  I openly defended pornography.  John openly defended pornography.  MacKinnon requested and received copies of our transcribed testimony on the spot.

The Untold Story of the Minneapolis Ordinance

The Los Angeles hearings are the only ones of which I have personal knowledge.   Consider, however, a written account of the original Minneapolis measure.  In that city, the rapidly executed and debated ordinance found opponents unprepared.  In The New Politics of Pornography (1989), Donald Downs describes the "path-breaking, orchestrated" first hearing in which "the council reportedly asked a prominent local evangelist to cancel his plan to testify . . . because they didn't want his political spectrum identified as a supporter."  Downs outlines MacKinnon's "political tactics" and her shoddy treatment of the opposition at the first hearing, during which anti-pornography "activists exerted enormous, perhaps, unprecedented, pressure on the council" which led it to abandon the usual procedure by which it enacted civil rights laws.  The council also ignored pleas to delay and provide more discussion from the mayor, the Civil Rights Office, the Library Board, and the City Attorney's Office.

Although two versions of the ordinance were passed, the first (December 1983) is the only one reported in the MacKinnon-Dworkin chronicle.  The second ordinance of July 1984 was a more moderate measure enacted after opponents, who created a Task Force on Pornography, had been given time to enable a balanced debate.  The second measure, which occasioned sixteen sessions rather than the three reported by MacKinnon-Dworkin, is not mentioned in In Harm's Way, perhaps because it was not promoted by anti-pornography activists.  Nevertheless, a transcript of a press conference dated July 25, 1984 is provided, with the clear implication that it refers to the first ordinance passed, rather than the second.  In the end, both ordinances were vetoed by the liberal Mayor Donald Fraser.

In Conclusion . . .

Ultimately, all the other ordinances failed as well.  For the final measure reported by In Harm's Way -- that of Cambridge, Massachusetts -- the Women's Alliance Against Pornography managed to force a referendum which led to the measure's downfall.  Thereafter, the U.S. Court of Appeals for the Seventh Circuit unanimously struck down the Indianapolist ordinance in American Booksellers Association v. Hudnut (1985). The Supreme Court refused to grant cert.

In Harm's Way claims: "Not a word of testimony by opponents to the ordinances has been cut."  Perhaps, in the light of such a careful selection of material, editing was not necessary.  The book is not a "complete and accurate record."   It is incomplete.  It is inaccurate.

Wendy McElroy is the author of XXX: A Woman's Right to Pornography (1995), Sexual Correctness: The Gender-Feminist Attack on Women (1996), and The Reasonable Woman: A Guide to Intellectual Survival (1998).  She is a lecturer and free lance writer whose work has appeared in such diverse periodicals as The National Review, Penthouse, and Marie Claire.


Revising Radicalism
by Margaret Davies

Radical Critiques of the Law
Stephen M. Griffin & Robert C.L. Moffat, editors
Lawrence, KS: University Press of Kansas, 1997
Cloth: $45.00 / Paper: $25.00
Pp. x, 337

If I were a formalist about the correct or proper usage of words, I would probably begin this book review by referring to the several Oxford English Dictionary definitions of "radical" ("Of or pertaining to a root or origin;" "A basis, a fundamental thing or principle").  Having appropriately defined the terrain of the "radical," I might continue my comments by measuring or adequating the various definitions of "radical" found in the book against my authoritative definition.  In the process, I might find that few of the articles are faithful to the proper denotation of "radical" in their treatment of the term, and that some in particular seem to use it to indicate the degree of political departure from the norm of liberalism, or the quantity rather than quality of a critical approach.  (Does it criticize the law just a little bit, or a lot?)  I would perhaps note a lack of overall consistency in the understanding of what a radical critique of law might look like, and mention one or two chapters that take a more analytical, one might even say rigorous, approach.  I would probably have something to say about Richard De George’s argument that radical "in any of its senses . . . implies fundamental change" (p. 195), noting that this is a popular and debased understanding of the term.   "Radical" implies fundamental analysis, but not necessarily fundamental change.


Luckily, however, I am not a formalist, but a postmodernist -- meaning that I do not believe that it is all that easy to determine what in a theory of ideology is "of the root or origin," and what builds upon that supposed basis.  Thus, unlike Patricia Smith, I do not believe that early feminist activism can so clearly be labeled as liberal, and therefore not radical (p. 143).  As others have argued, even liberal feminism contains the seeds of a fundamental challenge to liberalism (Jaggar, Feminist Politics and Human Nature (1983), p. 28).  In any case, I suspect that the inclusion of women in public life was, a century ago, regarded as a fairly "radical" move, however that term is understood -- even though we now regard mere inclusion and equality as established methods of change, and therefore not radical.   Liberal and radical cannot always be so easily distinguished.  Nor do I believe that any critique is able to isolate one stratum of fundamental issues, the analysis of which will explode the foundations of our most cherished institutions.   Beginnings are not simple, but complex.  Axioms are rarely axiomatic in any mathematical sense.  Thus a critique which is "radical" in one dimension (say, its approach to the creation and distribution of wealth) might actually conserve existing assumptions about another sphere of human existence (say, patriarchal power relations).  Legal theorists are well aware, for instance, that "radical" feminism has been criticized for failing to challenge assumptions about race and class, even as it goes to the root or origin of gender and patriarchal power structures.  I am not saying that radical feminism is not radical, just that it is necessary to be reflective about what can actually be achieved by adopting a particular theoretical point of departure.  Each "radical" critique will have its own limitations and its own blindnesses.  It is, therefore, unsurprising that it is relatively simple to show that "radical" critiques preserve in some way existing ideology, as many of the critiques of "radical" thought in this book attempt to show.  But this does not necessarily mean that the theory in question is not "radical," much less that it is "muddled" (see Joseph Ellin’s contribution, which presents very simplified versions of feminism and other critical legal approaches in an attempt to discredit them).

Thus, there is no easy categorization of theory into radical or non-radical, no "essential" radical or non-radical.  These reflections lead me also to the conclusion that the proper classification of something as truly radical or not is itself something of a waste of time, and insofar as the authors engage in this project (and some of them do, with or without defining "radical") they deflect attention from the more useful questions about what a theory achieves politically and socially, what it challenges, and what it leaves untouched.  Having said that, these practical objectives are admirably fulfilled by many of the essays in this volume, especially those which discuss the detail of feminist theory (Emily Gill, Patricia Smith, and Diana Meyers), of critiques of criminal punishment (Joan McGregor, James Doyle, and Randall Curren), and of hate speech (Thomas Simon and David Adams).  Situating a book such as Radical Critiques of the Law is, therefore, a difficult task, because one begins by asking "radical according to what context, and whose definition?"


Lack of reflection about theoretical and political assumptions can lead to conceptual insularity.  Another way that this is manifested in Radical Critiques of the Law is that there is little non-United States content in the book, and less reflection about what that means for the book.  If legal theory lived up to its own aspirations as a strand of philosophy, this would not matter.  Philosophy is traditionally supposed to be universal.  Of course, philosophy is no more universal than cuisine, dancing styles, language, or art.  (And unlike Ellin’s characterization of "perspectivism" (p. 216), I do not regard my evaluation of socially constructed truth as absolute -- it also emanates from a particular philosophical background, and has its limitations).  The perceptions emanating from the United States about what is central in legal theory are not even those of other English-speaking common law cultures, let alone non-English-speaking non-common law cultures -- although the U.S. perspective can at times be very helpful in contributing to debate in other jurisdictions.  (I use the word "culture" deliberately to emphasize that both philosophy and law are culturally specific, and are like cultures in that they normalize particular modes of behavior or thought.)  Again, I do not think that the cultural specificity of the book is in itself a problem; we all have a cultural (racial, gender, class, etc.) background which finds expression in our ideas.  The issue, as far as I am concerned, is the lack of general reflection that the radical critiques in question are radical according to the norms and presuppositions of U.S. mainstream and alternative ideology, together with a disquieting tendency in some cases to equate the culturally specific with the universal.

Bearing these comments about the overall project in mind, however, I should say that the book is otherwise successful in its presentation of a variety of theoretical positions -- some critical of established legal institutions, and some critical of the critiques.   The interaction between the authors is refreshingly direct, and many of them offer analyses of their subject matter that are thoughtful, interesting, and novel.  Most valuable from my own point of view is that each essay provoked me in some way to re-examine my own ideas about the nature of radicalism in the socio-legal context.   The diversity displayed by the essays is a strength, because this reaction occurred on a number of levels, in relation to different questions, and in response to politically different positions.

Margaret Davies, Senior Lecturer of Law at Flinders University of South Australia, is author of Asking the Law Question (1994) and Delimiting the Law: "Postmodernism" and the Politics of Law (1996).  Her scholarly interests include feminist legal theory, postmodern legal theory, and the philosophy of property.


The First Amendment Meets the Net
by M. Ethan Katsh

Cyber Rights: Defending Free Speech in the Digital Age
Mike Godwin
New York, NY: Times Books, 1998
Cloth: $27.50
Pp. 317

An organizer of single-sex online discussion forums at a community college is accused of discrimination.

An online journalist/publisher accuses a White House aide of domestic violence, then retracts the accusation, and is still sued.

The author of a short story posted on a newsgroup is charged with threatening an individual whose name was used for one of the characters in the story.

The Communications Decency Act limited "indecent" expression online.

Cyber Rights is Mike Godwin's account of these and other cyberspace-related challenges to free expression in recent years.  Godwin, staff counsel to the Electronic Frontier Foundation, has probably been involved with First Amendment issues in cyberspace for a longer period of time than anyone else.  While much of the book focuses on cases and presents a legalistic analysis of them, Cyber Rights is also Godwin's manifesto on the role and position of the First Amendment in cyberspace.   As such, it is both a useful eyewitness account of an early period of our accommodation to a networked environment and a policy assessment concerning the future regulation of online speech.

Experience & the Life of Law

Godwin twice quotes Holmes's famous comment that "the life of the law has not been logic; it has been experience."  At this point in time, we are still experiencing a new relationship with information and with novel capabilities for processing, organizing, storing, and distributing it.  Thus, we are fashioning doctrine while we are acquiring experience, trying to design standards, and also striving to understand what this new environment means.  It should not be surprising that there have been more than a few missteps along the way, as we apply the logic of past communications models to an environment with which we have very little experience.

Basing his understanding of cyberspace on the extensive experiences he himself has had online, Godwin is understandably critical of legislators and others who have had little or no contact with cyberspace, but who have attempted to put regulations in place.  He sees a new regulatory framework as unneeded and inappropriate; unlike other forms of communication, the online environment can often self-regulate by allowing those who are aggrieved and harmed by speech to respond and obtain redress.

While we may know what cyberspace is now, it is much less easy to feel confident about what cyberspace will be in the future.  Cyberspace is not simply a place where everyone gets a printing press, where we are all publishers, and where the costs of distributing information to any locale at anytime become insignificant.  That cyberspace is a place where the economics of publishing are different from what they have been in the past is undeniable and, indeed, is one of its most attractive features. But cyberspace presents us with a whole range of novelties.  We have, for example, not only new tools but a place where assumptions and expectations about the use and value of information may be quite different from the assumptions and expectations that exist in a print environment.  We have, in a sense, a new culture as well as new technology.

Individual Empowerment?

It is hard to disagree with Godwin that the online environment thus far has empowered individuals, and made it possible for them to reach mass audiences in a way that was not feasible in an age of print.  The Internet and the World Wide Web have worked to give those without large economic resources novel capabilities to communicate and to establish associations and organizations.  But it is also true that we have limited experience with the electronic environment, and that this is an environment in which capabilities and patterns of information use can change overnight.  How confident can we be that the power of the individual online, and the ability of the individual to control the flow of information will be as great five or ten years from now as it is today?

Even if most of the legal controversies that have occurred thus far have been resolved in a way that protects individuals who wish to express themselves, and even if the medium today seems inherently First Amendment-friendly, one should be cautious about assuming that anything having to do with cyberspace will last indefinitely.  The Net is not a physical edifice -- not even, at its core, wires, hardware, or anything tangible.   Rather, it is a set of agreements and protocols for moving information among computers, agreements that are embodied in software and changeable through the revision of lines of code.  (See, for example, Extensible Markup Language (XML)http://www.w3.org/XML/ and The X-Files are Coming, http://www.umass.edu/legal/xml.html).  It is a place -- as Nicholas Negroponte's book, Being Digital (1995), reminds us frequently -- where the arrangement and movement of bits matters more than the arrangement and movement of atoms.  Bits are more manipulable than atoms, but they are also less permanent.  This is the attraction of the digital world, yet it is also reason for one to be cautious.   Consider, for example, the following three aspects of the online environment that might be of concern to anyone interested in protecting rights of expression.

Rights-Friendly Environment?

One goal of law is to add stability and predictability to a less than steady institution or society.  Justice Louis Brandeis once went so far as to argue that "in most matters it is more important that the applicable rule of law be settled than that it be settled right."  In the electronic environment, however, our experience tells us that nothing is settled with finality.  As communications cycles are shortened and as networks enable users to overcome constraints of time and space, the pace of change accelerates, information transactions multiply, new products are created, and new relationships are formed.

We should be aware that all of the technological forces working in support of an expanded and enhanced communications environment may not necessarily support the legal framework of the First Amendment.  By this I mean that while cyberspace appears to be expression-friendly, it is less clear that it is rights-friendly.  Constitutional rights are assumed not to change continuously, and the rights model, something durable and authoritative, has been strongly supported by print, a technology that fixed an experience in time and space on something tangible.

The expression-friendly part of cyberspace is fairly obvious.  The online environment appears to be beyond the hold of those who formerly could exercise control and who may still wish to exercise control.  The doctrine of prior restraint, for example, seems impossible to enforce, given the ease of copying and moving copies beyond state borders.  If the patterns of the last five years continue, the law may begin to reflect our experiences and various "rights" will be recognized.  But it is somewhat early to declare victory.  The examples of government interference that Godwin describes have involved much ignorance and incompetence by Godwin's adversaries.   They may get smarter.  In addition, the gods of cyberspace (in the online world, the gods are software programmers) thus far have been kind to individuals wishing to distribute information.  If, for some reason, these gods become less benevolent, it is unclear how much support will be found in what Thomas Emerson labeled "the system of freedom of expression."

Publisher Independence?

Constitutional rights are about the state-citizen relationship.  The citizen, as Godwin points out, has been finding the global network to be empowering.  The state, on the other hand, senses vulnerability and has reacted with heavy handed responses like the Communications Decency Act.  What needs to be considered as the First Amendment is applied and interpreted, however, is not only that state control is being relaxed and individual opportunities for communication are expanding, but that there is a reworking of citizen relationships with newly appearing groups and institutions.  The network may be friendly to individuals, but it is also highly supportive of group formation, and new interaction patterns among all these entities are emerging.

The networked environment is one in which there is a reshaping of the individual's relationship with the state, and also one in which there will be new relationships with and dependencies upon non-state institutions.  The person connected to the network may be acquiring many of the capabilities for distributing information that were previously possessed by companies that had a printing presses, but the online user/publisher may not have the independence enjoyed by those who owned all the means of production and distribution.  It is too early to assume that the online publisher who can distribute information to anyone anywhere, free of governmental interference, is in the same position as the small or large independent newspaper owner of the past.

Less Litigious?

Godwin devotes most of his book to a discussion of the law in various cases that were litigated.  He also acknowledges more than once, however, that there are fewer of these cases than he would have thought there would be.  The Net is clearly not a harmonious environment.  Fights, conflict and attacks on reputation and position are easy to observe.  Yet, very few cases are litigated.  Why?

Godwin argues that there is less need for litigation when many kinds of conflicts can be resolved through the working out of problems online.  The solution to many speech-related conflicts is more speech, and the Net is a place where more speech is easy.   Thus, while the network is an arena for conflict formation, it also provides resources for conflict resolution.  Since it does so, Godwin argues that it is appropriate to defer any governmental action or intervention until it is much clearer that the problem in question is real and severe, and that the network is unable to provide any solutions.

It is true that the network does provide many tools for conflict resolution and undoubtedly will provide more in the future (see Online Ombuds Office, http://www.ombuds.org), and that the case for much governmental action (e.g., the CDA, cryptographic controls) seems weak.  Yet, there are other ways to interpret the relatively low level of litigating.  For example, the assessment by parties of the costs and benefits of litigation may be quite different in a digital world.  Godwin points out that individuals with newly acquired printing presses are not going to have the resources possessed by the publishing companies of the print world.  In addition, among the most precious commodities in cyberspace is time.  Even if the outcome of a quick out-of-court settlement will be less satisfactory than a large court award, the need or desire to exploit available opportunities quickly may outweigh all other concerns.

This is an interesting book coming from one of cyberspace's best known legal figures.   It addresses many of the same stories covered in Jonathan Wallace and Mark Mangan's Sex, Laws, and Cyberspace (1997) and Wendy Grossman's Net.wars (1997), but it gives us an updated and more personal view of them, particularly of the battle over the Communications Decency Act.  For those who spend time in online discussions of legal issues, there will be less that is new here.  But for those whose sense of cyberspace is shaped largely by the traditional media, this will be an excellent counterweight.

M. Ethan Katsh (katsh@legal.umass.edu) is Professor of Legal Studies at the University of Massachusetts at Amherst, and co-director of the Center for Information Technology and Dispute Resolution. He has authored many books and articles about law and electronic technologies, including Law in a Digital World (Oxford University Press, 1995) and The Electronic Media and the Transformation of Law (Oxford University Press, 1989).


The When and Why in Writing about Writing
by Jill J. Ramsfield

Legal Research: FUN-damental Principles
Myra A. Harris
Upper Saddle River, NJ: Prentice Hall, 1997
Paper: $38.00
Pp. 470

Legal Writing: Principles of Juriography
Myra A. Harris
Upper Saddle River, NJ: Prentice Hall, 1997
Paper: $33.00
Pp. 232

Writing about writing is hard.  You have to be good.  You have to be right.   You have to set an example of the kind of thing you want your readers to write.   Each sentence, each phrase, each word choice receives greater scrutiny from scathing and sometimes scurrilous readers.  They pause, wrinkle their brows, and ask, how did this person ever get a writing contract?  They expect perfection.   Worse, they expect their brand of perfection, whether it is honoring Miss Grundy’s rule never to begin a sentence with a conjunction or Mr. Thistlebottom’s rule to put the topic sentence at the beginning of the paragraph.

Joseph Williams exhorts writers to do better than simply recalling favorite seventh grade rules.  "You have to know the rules to break them," he asserts.   As writers, we have to reach beyond word choice and scrutinize such matters as coherence and cohesion, clarity and grace.

In law, the problem is even greater.  As legal writers, we have to research our sources, knowing where to look and how to maneuver strategically through the library.   What does that have to do with legal writing?  Everything.  We have to judge content as we read, looking for analytical patterns, similarities and differences among sources, and salient points that unite into a legal analysis.  We have to read language that defies facile interpretation or translation, offering so many phrases, terms of art, jargon, and twists of syntax.  We have to know where to plow, what to pluck, and when to leave something alone.

Writing for Lawyers

The great problem lies in research strategies and rhetorical awareness.  In law, the ultimate goal is comprehension of the large-scale analysis.  The reader must know a document’s message, must be confident that the materials chosen are precisely those needed for the document’s purpose, and must be able to follow the writer’s path from beginning to end.  Yes, there are sentences and words on the way, but ultimately the writer’s credibility lies in good researching and the peculiar fusion of sources that is legal analysis.

So an author takes a large chance in writing about legal research and writing.   First, who will stop and read about it rather than do it?  Second, what reader will be able to translate any of what she is reading into good legal prose?  We know, writing about writing, that most of our readers would rather just do the research and writing than read about it.  Yet some legal research and writing authors have succeeded in representing what they exhort.  Wren and Wren make each word count; the first edition of the Dernbach is tightly drawn, and Williams is widely accepted.

Generally, however, many of us legal research and writing authors fail.  We see no further than our own propensities and we fail to engage those difficult legal readers.   For example, the great bulk of legal research books suggests a bibliographic approach that teaches where and how to find sources, but not when and why.  The majority of legal writing books suggests formulae for how to write everything from an issue statement to an analysis, but not why. These formulaic approaches rob legal writing of voice, force, and life.  Many students of legal writing feel immediately straight-jacketed and robbed of creativity because these books offer no suggestion for divergence from rules and formulae.

Addressing Legal Research

How, then, can an author engage readers and still keep them flexible and creative?   Myra Harris tries to do both in her new books, one on research and the other on writing.  As a law librarian, she knows whereof she speaks.  How refreshing to have a reference book on research, numbered by sections (4.2.3 - 4.2.8, for example are on the Restatements), and giving equal time to books and electronic sources.  The book itself is proportioned to show that books come first (Chapters 2-4 cover cases, statutes, and secondary authorities), followed by separate but equal chapters on Lexis and Westlaw.  The chapters are generally descriptive, opening with "Terms to Remember," and giving pithy summaries of sources, such as "The U.S.C.A., published by West Publishing Company, is a complete work." (p. 102) and "A treatise is a scholarly description of an area of the law." (p. 159).   But the examination of statutory interpretation gets about a page of discussion and relegates the plain meaning rule, perhaps appropriately, to Dr. Seuss’ "I said what I meant, and I meant what I said." (p. 118)  The book is trying to introduce sources and some aspects of their usage; it is not meant to be an exhaustive reference.  Helpful descriptions of sources follow these terse introductions; a glossary punctuates the text; and appendices offer research problems, edited cases, and sample papers.

The "fun" in the book’s title may be best captured in Chapter 7, "Piecing the Puzzle Together," where Harris suggests strategies and orders for using some of the described sources.  Proportionately, this section on the when and why of researching is relatively small, which means that the book, like so many others, lives primarily as a bibliographic source.  Its indexing system, use of graphics, and its direct tone make the book friendly.  Harris states that the book "is designed to aid the beginning as well as experienced researcher" (p. vii), and the publication states that it is aimed at paralegals.  If the beginner is the primary target, this friendly bibliography may be quite useful.  What is missing for the experienced researcher is greater depth.  One longs for more than two pages on administrative materials and one on international sources.

Addressing Legal Writing

In section 7.3 of Legal Research, Harris foreshadows the trouble in Legal Writing.  While she mentions "the analysis portion of legal writing" (p. 288), she turns quickly to details, spending over half of her discussion on matters such as active voice, topic headings, and that enemy of instrumental writing, "telling a story."  I don’t tell a story when I draft a contract.   Nor do I tell a story when I argue.  I use rhetoric, sometimes classical, sometimes modern, but this genre is not narrative.  Even those who subscribe to the currently popular school of "narrative" in legal writing admit that the concept is metaphorical.  Such advice as "telling a good story" can be not only facile but also misleading to the novice.

Such is the case with Legal Writing.  Its opening sentence, "Like all writing, legal writing is a simple form of communication," (p. 1) betrays the complexity of legal discourse, its analysis portion.  There is no analysis portion in Legal Writing.  Its premise is that "all writing is only a matter of sentences, and we all write sentences one at a time.  Therefore you will never have to worry about more than one sentence at any time." (p. 4)  Such a premise defies over twenty years of work in composition theory, although it remains a popular premise among many lawyers.  (Remember, it is these lawyers whose writing is continuously berated.)

Legal writing is a complex discourse, one that, according to linguist John Swales, owns a lexis, register, genres, phraseology, and conventions all its own.  To make matters more complex, legal readers and writers must both understand traditional norms and analytical conventions and translate them into the "sentences" Harris advocates for the modern reader.  Further, legal writing is a complex process, one that requires novices to rethink the sequences and tasks they use as writers.  Finally, legal writing is a peculiar brand of analysis, one whose patterns derive from classical rhetoric but have been reshaped to those one-page principles of statutory interpretation and the remnants of stare decisis.

Addressing the Future

These two books beg for a third, Legal Rhetoric.  Of all people, the paralegal should be informed of this.  If I had a nickel for every student who had been led to believe that legal writing was simple, just a matter of putting sentences together -- well, you know.  There’s not much wrong with the chapters in the book as they stand.  The reminders on grammar, the short discussions of genres such as the collection letter or the "doctor letter," are friendly enough.  The samples, however, betray the lack of analytical unity.  Analogies appear in descriptive paragraphs that read like "mini-briefs," and the overall structures are hard to identify.  While many lawyers accept this kind of writing -- I read it in memos every week myself -- I do not.  I want recommendations that are justified, overall structures that reflect the law itself.

Of course, these things are hard to teach.  They are especially hard to write about.  A solution is to divide and conquer, but these books continue a sad tradition in our field: separating research (which is analysis) from writing (which is analysis) and leaving out analysis altogether.  No wonder, then, that beginners resist our discourse.  No wonder that they feel that legal writing is just a fancy remedial course.  No wonder that they never master the challenging and complex design questions facing legal thinkers.  If books like this continue to reach the market, they never will.

Ms. Ramsfield is a Professor of Law and Director of Legal Research & Writing at Georgetown University Law Center.  She specializes in teaching legal discourse there and at law firms and government agencies through CLE courses.  She is president of her own consulting firm, working with judges, staff attorneys, law partners, federal attorneys, and associates.  She is also co-author of Legal Writing: Getting It Right and Getting It Written (West Publishing, second edition 1993).


The Influence of Forgotten History
by Melvin I. Urofsky

Free Speech in Its Forgotten Years
David M. Rabban
Cambridge, MA: Cambridge University Press, 1997
Cloth: $34.95
Pp. xi, 404

Like most teachers of constitutional history and law, my discussion of the First Amendment starts with the World War One Espionage Act cases.  I mention the Alien and Sedition Acts, as well as Patterson v. Colorado (1907), but very briefly.   Holmes's "clear and present danger" test is where the action starts.

Professor David Rabban (University of Texas Law School) has been trying to correct this problem for a number of years.  His article on the First Amendment before Schenck v. U.S. (1919) and Abrams v. U.S. (1919), originally published in the Yale Law Journal in 1981, has for many years been a solitary voice in the wilderness, calling on the rest of us to remember that there was a First Amendment, and related court cases, before 1919.  Now he has expanded that article into a book that not only looks at the earlier court cases, but far more importantly at the radicals and scholars who forged an intellectual justification for speech protection long before the war.  While I would quibble with Professor Rabban on some issues, I think he has done a magnificent job in explicating his theme.   Nonetheless, I am not entirely convinced by his case.

Chafee’s Revision of Holmes

Brevity obviously prevents a full elaboration of a carefully conceived argument, but in brief Rabban argues the following points.  Holmes in Schenck did not put forward a speech protective notion in his clear and present danger test, but rather dressed the old Blackstonian notions of punishment after publication and bad tendency in a somewhat more elegant prose.  In doing so he ignored serious work done by Theodore Schroeder, Ernst Freund, Roscoe Pound and others, as well as the highly speech protective opinion of Learned Hand in the 1917 Masses case.  He also passed over the experience and ideas about speech put forward by radical groups such as the IWW.

Then along comes Zechariah Chafee, Jr., who in his famous article, took Holmes's non-protective clear and present danger test and stood it on its head.  Relying on Chafee's advocacy masquerading as history (and faulty history at that), Holmes and Brandeis could then develop the speech protective jurisprudence that reached its most eloquent statement in Brandeis's Whitney opinion (1927), and was eventually adopted in full by the Warren Court in Brandenburg v. Ohio (1969).  Rabban also has little admiration for the founders of the American Civil Liberties Union, whom he characterizes as johnnie-come-latelies to the cause of free speech, and who under the leadership of Roger Baldwin had a very limited view of First Amendment protection.

As Professor Rabban puts it so succinctly, "Legislation affecting speech preceded the Espionage Act, legal decisions preceded Schenck, scholarship preceded Chafee, and defense organizations preceded the ACLU."

Holmes, despite the great homage paid to him by so many, does not come off as a particularly attractive defender of free speech, although few could hold a candle to him in prose, and his dissent in the Abrams case is still a clarion call for the First Amendment.  But the same Holmes wrote the following: "For the legislature absolutely or conditionally to forbid public speaking in a highway or park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house."  Holmes wrote those words while on the Supreme Judicial Court of Massachusetts, and still stood by them in the Schenck case.

Professor Rabban credits the transformation of Holmes into a free speech hero to Chafee, who took the clear and present danger test and reinterpreted it in a way that Holmes at first did not recognize.  Learned Hand, however, understood what Chafee had done right away.  "You have, I dare say, done well to take what has fallen from Heaven and insist that it is manna rather than to set up any independent solution."   Rabban's case that Chafee deliberately distorted the past history of free speech decisions, that he gave Holmes’s phrase a meaning its author had not intended, and thus allowed Holmes and Brandeis to set off on a new course, is well documented.  It is the core of this book, and is, at least in my mind, rather convincing.

A Question of Influence

My quibbles with Rabban are more in the line of his historic analysis.  That cases had been decided (very few of them speech protective), that a radical tradition existed (albeit among a very small part of the population), and that some writers had attempted to develop a more protective rationale -- all this is true.  But how much influence did they have?  When Holmes and his colleagues looked at precedent in 1919, they totally ignored what few speech-protective cases existed.  The fact that the IWW had developed a sort of proto-modern speech argument may be true, but very few people in the United States, and especially the bench and bar, gave credence to anything connected to the Wobblies.  Learned Hand's Masses opinion, while now elevated to iconic status, was immediately reversed by his own circuit and totally ignored by the Supreme Court.  Moreover, when Hand met Holmes on a train and tried to explain his reasoning to him, the latter did not even grasp what Hand meant.  Schroeder's work was known by only a few, and the work of Freund and Pound did not focus primarily on speech but on other issues, such as the police power.

The question of influence is always a tricky one.  How can we tell that what A said influenced B to act in a certain way, and thus cleared the path for C to happen?   While Holmes and Brandeis may have used Chafee's article and distortion of clear and present danger as a rationale for changing their minds, Holmes never really developed his ideas much beyond the marketplace analogy of his Abrams dissent.  Rabban is surely correct in his claim that Brandeis rather than Holmes moved First Amendment jurisprudence along the path it would eventually take, but I differ with him in how much of that credit goes to Chafee.  I think Vincent Blasi's explication of Brandeis's speech opinions, especially Whitney, shows not only how much beyond Chafee Brandeis had gone, but how much those ideas derived from other sources.

In the end, I asked myself how much change can we expect in the teaching of the First Amendment because of Rabban's book.  The answer, I am afraid, is not that much.   Personally, I will take some time to lay out Rabban's arguments, and I will urge that my students read this fine book, but that will all take place in the first day's lecture.  I will raise the issue, as above, of how much influence these cases and writers had, and conclude that there is little evidence to show they substantially affected the great 1919 opinions.  Rabban has done an excellent job in finding and laying out the cases, the writers and the ideas.  But he has not convinced me -- at least not yet -- of the influence they may have exerted.

Melvin Urofsky is the director of the Center for Public Policy and a professor of history at the Virginia Commonwealth University in Richmond.  The author or editor of more than thirty books and over a hundred articles, he has concentrated in recent years on American constitutional and legal issues.  His latest work is Division and Discord: The Supreme Court under Stone and Vinson, 1941-1953 (1997) [reviewed by Judge Susan Leeson in the April 1998 issue of Books-on-Law].

Editors' Note: For additional commentary on Free Speech in Its Forgotten Years, see Albert A. Foer, "Heroes of the First Amendment," Washington Post, Nov. 16, 1997, "Book World," p. 4, and Marjorie Heins, Book Review, New York Law Journal, Nov. 28, 1997, p. 2.  Professor Rabban's book was selected as a book of the year by the American Library Association.


Can Mental Patients Afford Rights?
by Christopher Slobogin

The Right to Refuse Mental Health Treatment
Bruce J. Winick
Washington, D.C.: American Psychological Association, 1997
Cloth: $59.95
Pp. 432

The right to refuse psychiatric treatment, in particular the right to refuse psychotropic medication, has long been the flash-point of mental health law.  At its extremes, the controversy pits the specter of medical strait-jackets against the image of psychotic people decompensating in the streets.  Claims that patients will rot with their rights face off against allegations of state-sanctioned brainwashing.

In The Right to Refuse Mental Health Treatment, Professor Bruce Winick University of Miami Law school) both dispassionately summarizes this debate and significantly advances it.  In making the case for a robust right to refuse treatment, his book provides a mammoth compendium of caselaw and constitutional jurisprudence.  But it also stimulates the reader with interdisciplinary musings that add greater depth to the traditional autonomy-based arguments for the right to refuse.

These are two major accomplishments, and Professor Winick succeeds at them better than anyone who has gone before.  At the same time, practitioners and academics may be left with a somewhat vacant feeling at the end of the book.  Some of the more exciting theoretical issues connected with the right to refuse -- issues that also have practical implications -- are given short shrift or left out entirely in Winick’s discussion.  The bottom line remains, however, that this book is a necessary addition to any mental health law library.

The Tome in Brief

The first section of the book (consisting of seven chapters) canvasses the characteristics of common and not-so-common psychiatric treatments: psychotherapy, behavior therapy, psychotropic medication, electroconvulsive therapy, electronic stimulation of the brain and psychosurgery.  Winick does a superb job gathering together the empirical literature on each treatment, with the ultimate goal of discerning its relative intrusiveness, including the extent to which it causes irreversible effects.   With some caveats regarding behavior therapy, he concludes that the treatments should be ranked as they are listed in the first sentence of this paragraph (from least to most intrusive).

The second section of the book (eight chapters) focuses primarily on the possible constitutional bases for a right to forego these treatments.  Among them are the First Amendment theory that psychiatric treatment interferes with mental processes; the substantive due process argument that mental health modalities infringe bodily integrity, mental privacy, and individual autonomy; the Eighth Amendment argument that treatment can be punishment; the contention that treatment can conflict with religious freedom; and the equal protection claim that mental patients are entitled to the same informed consent protections that other patients enjoy.  Winick concludes that the first two theories are the strongest foundation for a right to refuse, and that they require the state to demonstrate a compelling need for coercively using any psychiatric treatment other than psychotherapy and non-aversive behavior therapy.

The last two chapters of this section flesh out the types of state interests that might be compelling and the means the government may use to implement them.  Chapter 15 explores the scope of the government’s police power to protect others and its parens patriae authority to care for those who won't care for themselves in a host of situations, ranging from civil commitment to restoration of competency to stand trial to the prison context.  Chapter 16 advocates that, even when the government's need to treat is compelling, only treatment that is therapeutically appropriate and the least intrusive way of achieving the government's objective may be imposed involuntarily.

The final section of the book, on evaluating and implementing the right to refuse (four chapters), is the most original.  The first chapter in this section bolsters the case for a right to refuse by pointing to empirical literature suggesting the therapeutic value both of allowing patients to choose their treatment and of sustaining a dialogue between patient and doctor.  Referring to this line of reasoning as an example of "therapeutic jurisprudence," a heuristic that he helped develop with David Wexler in the early 1990s, Professor Winick concludes that "[t]he right to refuse treatment, rather than frustrating treatment, may . . . actually advance the goal of successful therapy and rehabilitation."

In the next chapter, on informed consent, he builds on this idea in making the case for a presumption of competency when the patient is assenting to "conventional" treatment (the latter a label that apparently includes medication) recommended by the doctor.  Conversely, Professor Winick implies that the competency presumption should not apply when the patient is consenting to "experimental" or particularly intrusive treatments.  He also believes that, when the person is refusing treatment, the level of competency required should be inversely related to the intrusiveness of the treatment.  Winick was one of the first to suggest that the level of competency might vary depending upon whether the person is assenting or refusing, and he usefully elaborates on that idea here.

The final two chapters of the book deal with the procedural mechanisms for implementing the right to refuse (e.g., court process v. internal reviews) and the "future of the right to refuse." In the latter chapter, Professor Winick argues for greater use of advanced directives that allow competent patients to dictate treatment should they become incompetent and for ethical guidelines from mental health profession organizations that implement the constitutional and therapeutic principles he has outlined in the book.

Dodging the Hard Issues?

The primary criticism of this book -- and the only significant one -- is that the bulk of it is devoted to solidifying relatively uncontroversial points.  The Supreme Court has made clear in Washington v. Harper (1990) and Riggins v. Nevada (1992) what the lower courts have long recognized: that the Constitution grants mental patients a right to refuse treatment subject only to compelling state interests.  Similarly, except for the small fringe who believe in the therapeutic state, mental health professionals have never advocated forcible treatment of competent individuals who are not dangerous and who can take care of themselves.

Thus, much of the content of The Right to Refuse Mental Health Treatment, while extremely erudite about both constitutional doctrine and the psychosocial literature on treatment and patient psychology, is an elaboration of accepted wisdom.  Professor Winick devotes much less space to the real fighting issues in the right to refuse debate: Who is competent? Who is dangerous? Who can take care of themselves?  And who gets to decide these issues?  Consider each of these questions in turn.

The typical refusing patient in a mental hospital is one who denies he is mentally ill, or thinks he’ll get better without treatment, or claims he isn't suffering and wonders why he should have to put up with the side effects of medication.  At the same time, he may hear voices that aren't there, believe he can save the world with his secret pendulum, or babble incoherently from time to time.  Is such a person incompetent?  The typical doctor will say yes.  The typical libertarian might well say no, on the ground that "mental illness" is in the eye of the beholder and that the patient is better than the doctor at comparing the pain of his symptoms with the pain of Thorazine.

Professor Winick largely ducks this debate, declaring simply that he would require "some evidence suggesting that the patient’s expressed choice is the product of pathological delusions or hallucinations or was based on intrinsically irrational beliefs or clearly irrelevant reasons."  "Pathological delusions," "intrinsically irrational beliefs" and "clearly irrelevant reasons" are not defined.  Although he makes convincing normative and practical arguments for a presumption of competence, Winick tells us very little about what might rebut that presumption.

Consider now the dangerousness exception to the right to refuse.  Winick would permit forcible treatment of competent individuals outside the prison and competency restoration contexts only when they present a clear and present danger to others.   While the reason for this narrow exception is clearly explained (based primarily on First Amendment doctrine), its implementation is not explored.

Does the clear and present danger language require a near certainty of violence, as a disciple of John Stuart Mill might desire?  Or would a probability that the patient will harangue and jostle other patients suffice?  Professor Winick cites several cases holding that treatment purely for administrative convenience is inappropriate, but doesn't venture a stance on the common phenomenon of the "nuisance" patient, who can cause considerable inconvenience, fear, and occasional minor physical harm to patients and staff.

Further, if only imminent danger justifies coerced treatment of competent individuals, the increasingly popular option of outpatient commitment using forced medication may not be possible, since that type of commitment seems to be aimed not at prevention of imminent harm (which probably can only be accomplished through detention) but at prevention of deterioration that might eventually lead to imminent harm.   Although the emasculation of outpatient commitment for this purpose may be a good result, Winick does not give us his views.  Indeed, he does not speak at all of outpatient commitment, despite its important connection to the right to refuse debate.

Similar questions can be asked about the scope of the state’s parens patriae authority.  Can the state forcibly treat people to prevent suicide or forestall decompensation that will render the individual unable to care for self?  Professor Winick avoids this question altogether, apparently assuming that the answer must be no unless the person is incompetent.  But, of course, the fact that someone wants to commit suicide or is seriously self-neglectful is often viewed as indicative of incompetence.  Again, it would have been useful to know under what circumstances, if any, Winick thinks so.

This issue is also important independently of one’s definition of competency because of Professor Winick’s stand on advanced directives.  While he would allow an advanced directive to be overridden on police power grounds, he would not allow its annulment on parens patriae grounds.  With this view, if a person indicated while competent that he never wanted to be hospitalized or medicated again, and subsequently became incompetent and suicidal or seriously self-neglectful, would the state be powerless to prevent his death?  Perhaps the answer to this question would depend upon whether the person specifically stated in his advanced directive that he be allowed to die.  Even in that case, however, we may not trust people's ability to anticipate the nuances of future occurrences sufficiently to permit state inaction in the face of self-harming behavior.  Because advanced directives in the mental health context can have such controversial consequences (relative to standard medical situations), some further discussion of the parens patriae power from a theoretical perspective would have been helpful.

There remains the issue of which entity should be authorized to decide who is incompetent, dangerous to others, and dangerous to self.  Professor Winick does a very good job describing the various procedural options, and his point that giving the patient a voice matters not just procedurally but therapeutically is well taken.  He also believes that if negotiation and mediation between the doctor and the patient fail, "right-to-refuse-treatment disputes must be resolved by more formal judicial or administrative processes."  Unfortunately, the all-important next question is not answered.  When is an administrative determination sufficient?  And when non-judicial review is permissible, is a review that only involves the treatment staff an adequate administrative process?

To some patient advocates, the answers to these last questions are more important than the substantive issues explored above, given the slippery nature of concepts such as competency and dangerousness.  Although courts may be no better than hospital staff at being sensitive to patient rights, a panel composed of independent professionals might well be.  A book that is likely to be very influential on right to refuse issues might have taken a definitive stand on this issue.

Much Left to Ponder

Bruce Winick has given us a truly monumental tome on one of the most important issues in mental health law, and it may be unfair to take him to task for not doing even more.   For its prolifically footnoted treatment of the constitutional and policy arguments alone, The Right to Refuse Mental Health Treatment deserves to be read by every mental health professional and lawyer who works in the field.  The fact remains that, while Professor Winick has materially advanced our thinking about the right to refuse treatment, he has left us with plenty still to ponder.

Christopher Slobogin is Professor of Law, Alumni Research Scholar, and Associate Dean at the University of Florida College of Law.  He is a co-author of Mental Health Law: Civil and Criminal Aspects and Psychological Evaluations for the Court (West Publishing, third edition 1998), and has served as chair of the Mental Disability and Law Section of the American Association of Law Schools.  Two of his articles have appeared in symposia issues that Professor Winick has sponsored, and his forthcoming book, Depriving People with Mental Illness of Life, Liberty and Property will be part of the American Psychological Association's Psychology and the Social Science Book Series that features The Right to Refuse Mental Health Treatment.


New Media and Old Debates
by Jon Weinberg

Rationales & Rationalizations: Regulating the Electronic Media
Robert Corn-Revere, editor
Washington, D.C.: The Media Institute, 1997
Paper: $15.95
Pp. xvi, 226

Chief Justice Taft once marveled that "interpreting the law [of broadcast regulation] is something like trying to interpret the law of the occult."  This area of law has always been unsettling, because it is governed by First Amendment rules patently inconsistent with those that govern the rest of the media world.  Further, it's been clear for a while now that the official reasons for the differentiation don't hold up.  Rationales & Rationalizations: Regulating the Electronic Media, edited by Robert Corn-Revere (media lawyer, Hogan & Hartson), declares war on that differentiation; it seeks to discredit all arguments for government content regulation of the electronic media.

Broadcast Regulation, Old and New

The contours of modern U.S. broadcast regulation were set in Red Lion Broadcasting Co. v. FCC (1969), in which the Supreme Court upheld the FCC's "fairness doctrine," which required licensees to cover controversial issues of public importance and provide a reasonable opportunity for the presentation of opposing points of view.  The Court explained that in order to avoid interference on the airwaves, a government agency must limit the number of broadcast speakers.  Because only a lucky few can be licensed to broadcast, the government can require those few to act as trustees or fiduciaries on behalf of the larger excluded community, and obligate them to present views, representative of the community, that otherwise would have no broadcasting outlet.

The broadcast regulatory scheme that Red Lion upheld is in sharp conflict with conventional freedom-of-speech philosophy, and over the past three decades, Congress, the courts, and the FCC have moved away from the Red Lion model in important respects.   In awarding initial licenses, for example, the FCC no longer holds comparative hearings to determine which applicant would best serve the public interest; rather, it has proposed to resolve virtually all such conflicts via auctions.  Congress has abolished the comparative hearing on license renewal.  The FCC has repealed the fairness doctrine.

For all that, though, it's plain that today's regulators don't see broadcasting as governed by the same First Amendment rules as print.  The special status of broadcasting remains.

Consider, for example, the FCC's new children's programming rules.  The agency has established a rule under which television broadcasters can avoid lengthy renewal delays only if they air three hours per week of regularly scheduled, weekly programming between 7 a.m. and 10 p.m. with a "significant purpose" of serving children's educational and informational needs.  Television broadcasters can retain their licenses, with or without delays, only if they demonstrate equivalent service to the educational and informational needs of children, or perhaps demonstrate "such serious economic hardship -- such as bankruptcy -- that might excuse noncompliance."  Those requirements would not survive First Amendment scrutiny under the print model.

The government is now engaging in an ambitious enterprise to define a new set of "public interest" obligations for the world of digital broadcasting -- which is to say, all television broadcasting after the year 2006.  Congress reemphasized in the 1996 Telecommunications Act that digital broadcasters retain an obligation, not shared by speakers in other media, to "serve the public interest, convenience and necessity."  President Clinton has appointed a blue-chip advisory body to explore the public-interest obligations that might be imposed on digital broadcasters. None of this is remotely consistent with the print model for regulation of speech.

On the Attack

Rationales & Rationalizations: Regulating the Electronic Media takes as its central theme the argument that neither the theory of Red Lion nor any other rationale can justify special regulation of the electronic media.  With seven chapters written by Robert Corn-Revere, Robert M. O'Neill, Laurence Winer, and Thomas Hazlett, the book decries the persistence of content regulation notwithstanding the critical attack on Red Lion and the passage of the purportedly deregulatory Telecommunications Act.  It characterizes modern regulatory initiatives as flowing from a government "culture of regulation," and warns that the Internet is in the FCC's sights.  It surveys and rejects justifications, new and old, underlying various forms of electronic mass media regulation.

An early chapter by Professor O'Neill scrutinizes Red Lion, chronicles its history, and suggests that new communications technology will cause the lines separating different media categories to blur in ways that make special First Amendment standards "not only untenable, but actually inapplicable."  A chapter by Mr. Corn-Revere criticizes the idea, championed by then-FCC Chairman Reed Hundt, that the government's ability to impose programming obligations flows from broadcasters' use of a valuable public resource.  Corn-Revere urges that government regulation based on this theory has no justification other than the justification of raw power; it is no more legitimate, he suggests, than an employer's demand of sexual favors from an employee.   If the theory is accepted, Corn-Revere argues, any aspect of government regulation advantaging a communications industry (say, FCC rules encouraging investment in telecommunications networks, which redound to the ultimate benefit of Internet service providers) may be characterized as a government "subsidy" entitling the government to demand specific programming commitments.  This, he continues, is straightforwardly unconstitutional.

A chapter by Professor Winer contests government regulation of broadcast indecency, as well as regulation of cigarette and liquor advertisements and rules mandating educational programming designed to serve the needs of children.  Children, he memorably opines, "are not a universal First Amendment solvent immediately dissolving vital constitutional constraints on government interference with freedom of expression."   A chapter by Professor O'Neill looks at First Amendment "public forum" case law, and concludes that there is no tenable basis for treating individual broadcast stations as public fora subject to access obligations under the First Amendment.  An eloquent chapter by Professor Hazlett criticizes FCC broadcast regulation aimed at correcting market failure.  Even when they address real problems, Hazlett urges, such FCC intrusions usually aggravate the market failures they are intended to remedy.  A concluding chapter by Mr. Corn-Revere attacks what the author refers to as the "triumph of euphemism" at the FCC: the agency secures "voluntary" programming commitments from broadcasters by means of the threat of concrete, unfavorable regulatory action.

The "Limits of Tyrants"

Rationales & Rationalizations is both well-written and witty, and makes some powerful arguments.  The chapter by Professor Hazlett -- the best in the book -- is trenchant and powerful; the chapter by Professor Winer, lively and eloquent.  All too often, however, the book goes for the easy gibe and the sweeping dismissal at the expense of more nuanced, less colorful analysis.

Consider, for example, the book's treatment of the "subsidy" argument.   The core of this argument is the claim that spectrum is government property; that government extends a subsidy to broadcasters in allowing them to use that property; and that government therefore can attach (reasonable, viewpoint-neutral) conditions on that use.  Broadcasters, under this theory, are subject to enforceable public obligations in return for their free and exclusive use of a valuable public resource.  This argument is in many ways problematic; ultimately, I would argue, it is wrong.  But to reject it, it is not enough to declare that it is equivalent to an employer's claim of right to sexually harass.  Nor is it enough, without more, to point out that the government cannot tell citizens what to say in public parks, or to point to certain unconstitutional conditions cases, for an advocate on the other side would simply counter these cases with cases of his or her own.

To address this argument carefully, one has to start with basic questions.  Is spectrum appropriately viewed as government property?  Is it property at all, except by metaphor?  If it is property, is it government property?  The core of the argument is that spectrum is government property, which -- unlike a public park -- has not been opened up to the general public.  Accordingly, the argument continues, the government can impose conditions on its use.  After all, as Professor O'Neill (quoting Justice Rehnquist) reminds us, the First Amendment does not forbid government "to control the use of its own property for its own lawful nondiscriminatory purposes."

My bottom line is the same as the book's on this point:  The "subsidy" argument, carefully understood, does not provide an independent justification for the imposition of content restrictions on broadcasters.  But the book's explanation of that conclusion is cursory.  And its suggestion that the argument would equally well support the imposition of content-based regulation on any speaker whose industry has ever benefited by virtue of government action is unfounded.

Then again, this discussion may evaluate the book according to the wrong standard. Rationales and Rationalizations is not a law review article, and it does not pretend to be.  Rather, it is a manifesto.  Quoting Frederick Douglass's statement that "the limits of tyrants are prescribed by the endurance of those whom they would oppress," the book attempts to end that endurance and thus the culture of regulation that it decries.  As such, it is a valuable contribution to the public debate.

Jon Weinberg is an associate professor at Wayne State University Law School.  He is currently a scholar-in-residence at the Federal Communications Commission's Office of Plans and Policy, working on Internet-related matters.  His views are emphatically not those of the Commission or of its staff.


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