• An open letter from Judge Alex Kozinski on Closed Chambers.

• Agre, Philip E. & Marc Rotenberg, editors.  Technology and Privacy: The New Landscape.  Reviewed by David G. Post.

• Delgado, Richard & Jean Stefancic.  Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment.  Reviewed by David Kretzmer.

• Dyzenhaus, David.  Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar.  Reviewed by Dennis Patterson.

• Estlund, David M. & Martha C. Nussbaum, editors.  Sex, Preference and Family: Essays on Law and Nature.  Reviewed by Ruthann Robson.

• Gormley, Ken.  Archibald Cox: Conscience of a Nation.  Reviewed by Lincoln Caplan.

• Heumann, Milton & Thomas W. Church, editors.  Hate Speech on Campus: Cases, Case Studies, and Commentary.  Reviewed by David Kretzmer.

• McCaffery, Edward J.  Taxing Women.  Reviewed by Janet Spragens.

• Nossel, Suzanne & Elizabeth Westfall, editors.  Presumed Equal--What America's Top Women Lawyers Really Think of Their Firms.  Reviewed by Louise J. LaMothe.

• Olson, Walter.  The Excuse Factory: How Employment Law is Paralyzing the American Workplace.  Reviewed by Marion Crain.

Worthy of Trust?
by Alex Kozinski

As David O'Brien and Mark Tushnet point out, Closed Chambers covers ground already well plowed by Supreme Court scholars. The book's claim to fame is the insider's story, what the cover boasts as "The First Eyewitness Account of the Epic Struggles Inside the Supreme Court." But how much credence can we give Lazarus's eyewitness account? Since there is no way to verify his claims, we must depend on Lazarus's perception and recollection, on the accuracy of his unnamed sources and on his fairness and objectivity in describing events about which he admits having strong personal feelings. Is he worthy of our trust? No.

Take the question of fairness and objectivity. "Never before has one of these [Supreme Court] clerks stepped forward to reveal how the Court really works," crows the book's dustjacket. Since Lazarus is peddling the book as going where no Supreme Court clerk has gone before, you'd think that he'd be prepared for a little criticism. Lazarus, however, has been apoplectic whenever anyone suggests he did anything wrong, accusing his critics of bad faith and character assassination. [See, e.g., Lazarus Letter to the Wall Street Journal, 4/23/98; "Court Chambers' Cabal?," Los Angeles Daily Journal, 3/19/98.] Given Lazarus's penchant for accusing Supreme Court Justices and fellow clerks of hypocrisy, duplicity, perfidy, and gluttony (well, maybe not gluttony), he might show more grace when his own conduct comes into question. His hysterical reaction to legitimate criticisms inspires little confidence in the objectivity of his reporting.

As for the reliability of his sources, consider the "champagne party" supposedly held by the conservative clerks in celebration of Ted Bundy's execution. The incident, reported in the widely distributed preliminary draft, became the subject of countless news reports and political cartoons. See, e.g. Political Cartoon. Yet when conservative clerks denied the incident, Lazarus quickly deleted it, explaining: "I believe it's accurate, but I wasn't there" [Los Angeles Daily Journal, 3/19/98, at 5]. But Lazarus "wasn't there" for much of what he reports as fact. You have to wonder how many other scurrilous incidents, skimmed from the law clerk rumor mill, appear in the book's pages.

Finally, we have a sample of Lazarus's perceptions and recollections in the interview he gave to Collins and Skover. Lazarus was asked about comments Tom Goldstein and I had made suggesting that maybe he had breached his duty as a clerk. Lazarus answered that Tom and I must not have read the book: "I'm pretty confident that when they made those comments [in the San Francisco Recorder], they'd never even seen my book. . . . I strongly believe that Judge Kozinski hadn't, because one of the things that Judge Kozinski was complaining about . . . were aspects of the book that discussed his role in Justice Kennedy's nomination. He seemed to be upset that I had done so. But, of course, that discussion (as is footnoted in the book) comes straight out of Turning Right by David Savage." A quick check of the Recorder article reveals that I was not "complaining" about his discussion of my supposed role in the Kennedy nomination or "upset" about it. My only comment on this point was in response to the reporter's query whether I was the source of that information: "In an interview, Kozinski said, '[Lazarus] never talked to me.'"  I did make other comments critical of Lazarus, but they all related to his egregious breach of duty to the Supreme Court. (The full text of the article is available online at the San Francisco Recorder.) This may seem like a niggle, but it makes you wonder how careful this guy is with his facts, especially when they can't be checked against the public record.

Elegy for an American Hero
by Lincoln Caplan

Archibald Cox: Conscience of a Nation
Ken Gormley (foreword by Elliot Richardson)
Reading, MA: Addison-Wesley, 1997
Cloth: $30.00
Pp. xxii, 585

Twenty-five years ago, Archibald Cox became an American hero when President Richard M. Nixon had him fired as Watergate special prosecutor.  Nixon did so rather than comply with a federal-court order to turn over tape recordings of conversations in the oval office that confirmed Nixon’s abuse of power and his central part in a cover-up of his misdeeds. Cox’s austere public image--bristly gray crew cut and old-school bow tie; Harvard Law school professor married to a granddaughter of deans of both Harvard and Stanford Law Schools--transformed into something noble.  In contrast to the doomed, craven Nixon, Cox became a symbol of American rectitude and of this country’s commitment to the rule of law over arbitrary judgments by men and women.

Cox’s stint as special prosecutor was surprisingly brief: He accepted the job in May of 1973; by November, he was gone.  But it eclipsed his many other accomplishments, including a four-year tenure during the Kennedy and Johnson Administrations as one of this country’s outstanding solicitors general and in a long list of other notable assignments spanning two generations as he came and went from his post as a labor and then constitutional law professor at Harvard.  While the section on Watergate takes up half of Ken Gormley’s biography, Archibald Cox: Conscience of a Nation presents Cox’s role in that constitutional drama as a part standing for a more significant whole.  To Gormley, who is a professor of law at Duquesne University, Cox’s legal career embodies an aristocratic ideal on which this democracy has depended.  It is that people of high capacity and character will put aside personal ambitions in service of their country.  To use a term that has been part of talk about the mission of the legal profession in recent years, for more than half a century--this May, Cox turned 86--he has been a model lawyer-statesman.

Conscience of a Nation makes its case in a delightfully unlawyer-like manner.   The book jacket accurately describes it as "an old-fashioned biography."   Written largely in three sections ("The Making of a Lawyer," "The Kennedy Years," "Watergate and Beyond"), the book is a chronological narrative containing affecting anecdotes about Cox’s development, insightful portraits of Cox and those most influential on him, and compelling sketches of the key events in his career.  The writing is clear, engaging, and jargon-free, in one detail after another revealing the author’s enthusiasm for his subject and determination as a researcher.  Gormley reports, for example, that Cox’s forebear, Roger Sherman, was one of the few Founding Fathers who signed the Declaration of Independence, the Articles of Confederation, and the U.S. Constitution (p. xviii), and that Cox’s patrician wife, born Phyllis Ames, played basketball in their suburban town outside Boston on "The Tired Mothers," which competed against a team from a nearby General Motors plant, among others. (pp. 88-92)

The book contains some minor errors (it’s Charles Nesson, not Nessen (p. 192)) and occasional lapses into wide-eyed mythologizing ("It was an ideal hiding place in the 1920s, where boys and girls could think high thoughts, try out phrases, experiment with daring ideas" (p. 6)).  It shows signs of the author’s trade-offs between access to sources and compensation in the form of settling old scores on their behalf (Elliot Richardson, who resigned as Nixon’s attorney general rather than fire Cox, is a prime beneficiary).  Its most farfetched aspect is a prologue about Cox’s great-grandfather, William Maxwell Evarts, who defended President Andrew Johnson against impeachment charges, as if Evarts blazed the trail that Cox followed of "a great man who never quite became great in the eyes of modern American history books." (p. xxi)   But by any measure, Gormley’s work represents a valuable contribution to legal biography, and is especially fine for a first book.

For all its virtues, however, the effect of the biography is of an elegy for an approach to life and law that was anachronistic from the beginning of Cox’s public prominence, at the end of the Truman Administration.  One story illustrates why. By training and temperament, Gormley argues, Cox was well-suited to be a judge and, according to Arthur Schlesinger (the historian and onetime aide to President John F. Kennedy), "Had Kennedy lived, he would have appointed (Cox) to the Supreme Court." (p. 181)  But Cox could have been a judge, in the view of Nicholas Katzenbach (who served with Cox in the Johnson Justice Department and was attorney general at the time), if he hadn’t been handicapped by a rigid sense of propriety that was a vestige of his privileged background.  In 1965, after helping "coax out of the Supreme Court some of the most significant civil rights decisions of the twentieth century," in Gormley’s words (p. 151), Cox decided to submit a letter of resignation to President Lyndon B. Johnson after he succeeded Kennedy.  Cox’s thinking was that he should give the new president the chance to appoint his own solicitor general or to make plain that he wanted Cox to stay. Katzenbach opposed the idea.  Besides thinking Cox should stay in the job where he had excelled, Katzenbach viewed it as a post he could trade for what he had already said he wanted.  "I am anxious to get the vacancy (underlining the word himself)," Cox had written to a friend about an open seat on the U.S. Court of Appeals for the First Circuit in Boston. (p. 196)  Instead, Cox resigned as solicitor, refused to do any real politicking for the judgeship, and lost out.

The paradox of Cox’s sense of propriety was that, although it limited his personal opportunities and his ability to shape the law (he was no one’s preference to be Watergate special prosecutor either, but was offered the job after seven other lawyers turned it down (p. 231)), it was the source of his authority as a legal counselor.   In that role, Cox felt a tug between two traditions.  On the one hand, influenced primarily by Learned Hand, the eloquent, domineering, and acclaimed federal-appeals judge for whom he clerked after law school, Cox believed in the restraining power of precedent in American law as a prerequisite for its legitimacy.   On the other, Cox viewed the law as a tool for solving problems that history couldn’t anticipate, even if that meant putting precedent aside.  He struggled openly to strike a balance between these conflicting imperatives; the effort won him unusual credibility when he asked for outright change in law or signaled his belief that a shift was due.

As solicitor general in the Kennedy Justice Department, Cox was probably given more deference than anyone who has filled that post since its establishment in 1870.  In cases dealing with reapportionment of state legislatures, when Attorney General Robert F. Kennedy keenly wanted Cox to argue in favor of the Supreme Court's adoption of the one person/one vote standard, Kennedy would not even ask Cox to take that stand because he knew the solicitor didn’t believe it was appropriate in law. (p. 175)  Contrary to Cox’s inclination and prediction, by a 6-to-2 vote the Warren Court adopted the position that Kennedy supported, with the Court’s majority opinion relying on the logic of Cox’s brief.

Gormley warmly captures how Cox’s stubborn, detail-oriented approach to legal decisions had transcendent meaning.  It expressed a reverence for the law and, really, for the legal-process view that was influential at leading law schools (and especially Harvard) until the early sixties when Cox left for Washington, D.C.--the outlook that the legal process has an integrity of its own, and that if lawyers practice with respect for it, the process will yield fair results.

By a generation ago, however, when Cox achieved his status as a hero--"Doonesbury" included him as a character, Hallmark borrowed his words for inspiration on a greeting card--values he thought essential to good lawyering were giving way to ones he scorned, "with shouting attorneys and harsh tactics designed to produce victories at any cost." (p. 231)  If it’s debatable that Cox was an anachronism in the law before then, he was clearly one by the year of his apotheosis. Richard Nixon and many of his fellow miscreants were prominent members of the bar, including two former attorneys general; Watergate sent the legal profession into a tailspin of self-doubt from which it hasn’t recovered.  Properly understood, the title of Gormley’s book is actually ironic.  Cox’s obstinacy about respect for the law reminded admirers of the conscience that the legal profession had lost.

Despite the portrait it creates of a noble hero as an exception to an increasingly ignoble rule, the Gormley biography of Cox allows for optimism at the end, inspiring confidence on the most human level.

Archibald Cox was a lifelong beneficiary of his social class and personal connections.   He didn’t apply for his clerkship with Judge Hand, it was offered him.   He didn’t apply for his Harvard teaching position, it was handed him--and a year later, was turned into a tenured post before he had proven his worth as a scholar.   This life of privilege, reinforced by Cox’s shyness as well as his sense of propriety, made him unendearing except to those who knew him best.  Well into his fifties, he was esteemed and hardly loved. Even admirers of his called him "stuffy." (p. 151)

Yet, as Gormley documents, Cox grew as he experienced disappointment and as he was transformed by controversy.  To Derek Bok, the longtime president of Harvard University, when Cox returned to Harvard in the wake of Watergate he "developed an affection towards people." (p. 397)  In the last span of his career, as he rarely had before, he touched colleagues and students.  With them, he shared his belief in public engagement and his passion for reckoning with the stakes of principle in civic life that are celebrated by Conscience of a Nation.

Lincoln Caplan is editor of special projects for U.S. News & World Report. He is also author of five books, including Skadden: Power, Money, & the Rise of a Legal Empire (Farrar Straus & Giroux, 1993) and The Tenth Justice: The Solicitor General and the Rule of Law (Knopf, 1987).

Editors' Note: The Ann Online web site interviewed Professor Gormley on his biography of Archibald Cox. For some earlier reviews of the book, see Walter Russell Mead, Washington Post, Nov. 9, 1997, Book World, p. 4; Adam Clymer, New York Times, Oct. 19, 1997, sec. 7, p. 41; and Bruce Fein, Legal Times, Jan. 19, 1998, p. 86.

———————————————————————
Back to the Future?
by Marion Crain

The Excuse Factory: How Employment Law is Paralyzing the American Workplace
Walter K. Olson
New York, NY: The Free Press, 1997
Cloth: $25.00
Pp. 378

Walter Olson's The Excuse Factory is a broad-ranging denouncement of post-New Deal employment law.  Building on a foundation laid by Richard Epstein in Forbidden Grounds (1992), Olson turns a libertarian lens on the anti-discrimination laws (including Title VII, sexual harassment doctrine, the Age Discrimination in Employment Act, and the Americans with Disabilities Act).  He does the same with judicially created wrongful discharge doctrine, state human rights legislation, and tort-based employment law doctrine concerning employee privacy rights.  Olson argues that employers are hobbled by an array of complex, vague, costly, and often absurd legal restrictions on their ability to manage and control their businesses.  These restrictions, he argues, stifle productivity and competitiveness, and make compliance impossible even for the best-intentioned employers.

Lawyers, judges, and law professors alike will find Olson's book difficult going regardless of their political leanings, because it lacks the even-handedness and objective tone typical of persuasive writing in law.  Clearly, his target is a lay audience.   In this respect, Olson's work bears little resemblance to Epstein's carefully constructed libertarian case for employment at will and freedom of contract in employment.

Olson's argument is little more than a right-wing diatribe punctuated by descriptions of cases at the margins of employment law.  Using examples culled from cases filed (though not necessarily won, a distinction to which Olson attaches little significance) under employment statutes and doctrines created since the 1960s, Olson casts stones of blame in a scatter-pattern across the legal system.  Legislators, judges and administrative agencies are taken to task for the quantity, vagueness, and complexity of employment law.  Avaricious plaintiff-side employment lawyers, their malingering worker-clients, and misguided law professors are castigated for pushing employment law to the edges of its contours.  And identity-politics movements and their legal arms (the ACLU, NOW's Legal Defense and Education Fund, the NAACP) are blamed for the proliferation of anti-discrimination legislation and the ascendance of mediocrity in employment.   Only employers emerge unscathed.

Olson's case against employment law is seriously undermined by an ad hominem style of argument that relies heavily on sarcasm for effect and slippery-slope strategies for momentum, rather than upon reasoned analysis.  He relies on a disingenuous selection of the bizarre cases that lie at the margins of the employment laws he attacks.   Moreover, he exhibits a tendency to mischaracterize facts even in those cases, and to make broad-brush generalizations about areas of employment law that vary dramatically from state to state.

Olson’s favorite tactic is to describe a case in tones of incredulity rather than analyzing it, as if the description alone were enough to prove his point.  Worse, he frequently mischaracterizes the facts of cases he discusses.  For example, Olson criticizes the court's order prohibiting employees from bringing sexually suggestive reading material into the workplace in a well-known sexual harassment case (Robinson v. Jacksonville Shipyards, M.D. Fla. 1991), implying that the order was an exercise in thought-control since such material might even include novels (pp. 65-66).  In fact, the case involved both conduct and written material considerably more damaging to women's prospects for successful job performance than sexually suggestive novels--pornography hanging on office walls featured a dart board depicting a woman's breast with a "bull's-eye" nipple and a picture of a woman's pubic area with a meat spatula pressed against it.  Women welders testified to physical abuse by their male peers.

Finally, Olson's characterization of wrongful discharge law as having effectively erased employment-at-will (the employer's ability to fire employees for good reasons, bad reasons, or no reason at all) is an overstatement at best.  While nearly all states now recognize the public policy exception to employment-at-will, most have carefully limited it to discharges contravening public policies clearly articulated in the Constitution, statutes, regulations, and judicial decisions.  And while a majority do recognize the implied contract exception to at-will employment, most limit its availability to situations in which employees can show substantial detrimental reliance on employer promises.  A recent North Carolina case, for example, found that moving one's family across the country in reliance on a job offer only to be discharged in a restructuring eight months later did not state a claim (Kurtzman v. Applied Analytical Industries, NC 1997).  A clear promise by the employer may also substantiate the implied contract exception. (Waivers in employee handbooks are sufficient in most jurisdictions to negate any argument that the handbook itself constitutes such a promise.)

Despite these infirmities, Olson's brief against employment law does contain some thought-provoking arguments.  While Olson is clearly no friend to labor unions and no fan of labor law, he correctly points out the correlation between the rise of individual employment rights law and the demise of the labor movement and increasing irrelevance of labor law.  In an uncharacteristic moment of nostalgia for organized labor, Olson observes that "business will miss unions," apparently because unions were less effective than private employment lawyers have been in bringing employers to their financial knees (pp. 237-38).  Olson articulates some appealing reasons why collective action is superior to individual enforcement of employee rights; why arbitration and negotiation are preferable to litigation; and why unions are better watchdogs for worker rights than employment lawyers are likely to be, in terms of efficiency, equity across the entire workforce, and enforcement.  Yet he stops short of proposing the revitalization of the labor movement as an alternative to the growth of individual employee rights.

Even if Olson were seriously proposing the revitalization of unions as an alternative to individual employment rights litigation, the solution would not be complete.   Wrongful discharge law developed in part because the supervisors and managers who are its primary beneficiaries are not covered by the labor laws.  Legally discouraged from collective organization by the labor laws, it is understandable that middle-level employees would turn to individual strategies to advance their rights.  Thus, an amendment to the National Labor Relations Act to include them in its protection would be required if we were to close off the avenue of individual rights enforcement.

Moreover, unions have a mixed record with regard to their treatment of women and people of color.  Without anti-discrimination laws like Title VII and the ADA, there would be no check on union power.  Thus, even if every worker were represented by a union, anti-discrimination laws must continue as a part of the legal landscape.

Finally, one of the main reasons for union decline has been the toothless interpretation accorded to the NLRA and the lack of enforcement power afforded to the National Labor Relations Board.  As long as employers can continue to fire pro-union activists with impunity and conduct coercive anti-union campaigns prior to union elections, it is unlikely that any significant proportion of the workforce will find union representation sufficient anytime soon.

What scares Olson most, though, is the radical potential to transform the workplace and restructure work that he recognizes in laws like the ADA (in particular its accommodation requirement) and hostile work environment sexual harassment doctrine.  He argues that the ADA and sexual harassment law are fundamentally unfair because they require employers to conform the workplace to "the most fragile and sensitive [workplace] participants." (p. 72)  This can only lead, he worries, to a recognition that workers in general are entitled to demand that the nature of work and the workplace itself be restructured in order to accommodate workers' needs and interests (p. 118)--in other words, to a loss of employer control over work and the workplace.

Now it becomes easier to see why Olson believes business will miss unions.  In a nutshell, his case is that identity-politics and the legislative changes which they have wrought hold more potential for radical restructuring of the workplace than the relatively conservative business-unionist labor movement has been able to effect under the "judicially deradicalized" labor laws, in the words of Karl Klare, Judicial Deradicalization of the Wagner Act (1978).  Olson is correct that individual rights litigation is a most inefficient and costly route to change.  Collective representation in the workplace would be far more effective and equitable from the vantage point of workers as well as employers.  The question is whether going back to a time in which a larger percentage of workers enjoyed union representation is likely to move us forward in the right direction, and whether workers would regard an ailing labor movement and toothless labor laws as viable substitutes for individual rights claims.

———————————————————————
They Are All Out of Step Except for (Uncle) Sam
by David Kretzmer

Must We Defend Nazis?
Hate Speech, Pornography, and the New First Amendment
Richard Delgado & Jean Stefancic
New York, NY: New York University Press, 1997
Cloth: $26.95
Pp. xii, 224

Hate Speech on Campus: Cases, Case Studies, and Commentary
Milton Heumann & Thomas W. Church, editors
Boston, MA: Northeastern University Press, 1997
Cloth: $50.00 / Paper: $20.00
Pp. ix, 309

International law has for some time taken the clear position that, not only is it permissible to outlaw racial incitement, it is mandatory to do so.  Liberal democracies with fair records on freedom of expression have enacted laws prohibiting racial incitement and have not slipped down the slope to other incursions on political speech.  And yet, First Amendment purists and the courts in the United States stand firm: no content-restrictions on free speech—and racist speech is no exception.

Delgado & Stefancic's book is a valiant attempt to debunk traditional First Amendment attitudes on the issue of racist speech.  It joins the growing body of writing on free speech by critical theorists such as Catherine MacKinnon and Mari Matsuda.

In Part I, the authors discuss the harm caused to victims of racist hate speech, as well as the harm caused to women by pornography.  They repeat the suggestion--originally advanced by Delgado in his seminal 1982 article in the Harvard Civil Rights-Civil Liberties Review--that a tort suit might provide the appropriate remedy in some cases, given the harm caused by direct racist insults.

In Part II, Delgado & Stefancic deal with "First Amendment Realism."   They critically discuss the attempts made on some American campuses to enact student conduct codes that prohibit slurs and disparaging remarks directed against persons on the basis of their race, ethnicity, religion, gender or sexual orientation.  They then proceed to review the depiction of the major American minority sub-groups of color in popular culture.  The authors remind us that many manifestations of racism are not seen as wrong until later times, and claim (rightly, I would contend) that when applied to evils such as racism, which are deeply imbedded in the culture of a society, the marketplace of ideas theory is seriously deficient.

The rest of the book includes chapters refuting the traditional First Amendment arguments against restrictions on racist speech; a chapter on the problems facing judges; and a final chapter on whether defending Nazis really strengthens the system of free speech.  Not surprisingly, the conclusion is that it does not.  As the authors put it in the concluding words of the book: "Sometimes, defending Nazis is simply defending Nazis."

Heumann & Church's book is a traditional source-book.  The first part includes standard American free-speech fare, such as Schenck v. U.S. (1919), Whitney v. California (1927), and Brandenburg v. Ohio (1969), as well as the leading hate speech cases in Collin v. Smith (the Skokie affair) (7^th Cir., 1978) and R.A.V. v. City of St. Paul (1992).  The main contribution, however, is in the second part, which includes the opinion of the Federal District Court for the Eastern District of Michigan in Doe v. University of Michigan (1989), declaring the speech code of the University of Michigan unconstitutional, together with illuminating case-studies on the way hate speech was handled on four American campuses.  These case-studies complement the discussion on speech codes in chapter 4 of the Delgado & Stefancic book.  The final part includes readings from Mill and Marcuse, and parts of a Duke Law Journal article by Professor Charles R. Lawrence III, arguing for restrictions on hate speech on campuses, as well as the reply published in the same journal by the President of the ACLU, Professor Nadine Strossen.

The questions posed by the editors at the end of each chapter are well thought out.   On the whole, the book provides a good source for a basic college course on the hate speech issue.

My one major reservation about Heumann & Church's book is that it contains no comparative materials on the way racist speech is dealt with in international law and in other liberal democracies.  Such materials would certainly enrich the discussion of students.

In contrast, Delgado & Stefancic do make an attempt to learn from comparative research.  Chapter 4 of their book includes a brief section discussing international law and the law in some other countries.  In Chapter 8, the authors expand on this discussion by reviewing the actual experience in other democratic countries (i.e., they have laws against racial incitement and the sky did not fall).  Unfortunately, this review is based on one collection of essays, and ignores the growing literature in the field in nations such as Canada and the UK. It is therefore somewhat simplistic.

Delgado & Stefancic correctly state that caution is needed in extrapolating from one society to another.  I am not sure, however, that they themselves always display the caution needed in comparative legal research.  Thus, for instance, it is hard to accept the blithe statement of the authors that "the Canadian Charter protects speech in terms similar to those of its United States counterpart." (p. 98)  The major difference between the Canadian Charter and the American Bill of Rights is that the former expressly concedes that protected rights (including freedom of expression) may be subjected to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."  This clause, which has no parallel in the text of the U.S. Constitution, provided the basis for the Regina v. Keegstra (1990) decision, in which the majority on the Canadian Supreme Court upheld the law against racial incitement.

Delgado & Stefancic are no doubt right in saying that societies need to reach the balance between free speech and restrictions on racist speech in light of their own needs, histories, and ethnic compositions.  Nevertheless, given the disparity between the approaches in the U.S. and in other liberal democracies, I would have appreciated their serious attempt to tackle the following questions: Is freedom of expression in other liberal democracies that have enacted laws against racial incitement weaker than it is in the U.S.?  If so, how does one explain the fact that the range of political discourse in many of these countries seems far wider and more diverse than it is in the U.S.?   If, on the other hand, freedom of expression has not been hampered by the laws against racial incitement, are there indeed factors in the political culture and system of the U.S. that would explain why dangers which have not materialized in other democracies would materialize in the U.S. if such laws were permitted?

According to Delgado & Stefancic, hate speech in the U.S. today is a "central weapon in the struggle of the empowered to maintain their position in the face of formerly subjugated groups clamoring for change." (p. 161)  The ruling elites are unlikely to relinquish protection for hate speech easily, "since it is an effective means of postponing social change." (p. 161)

I find this argument unconvincing, to say the least.  I do believe in the legitimacy of laws against racist speech, since they provide symbolic protection for the right of all persons to live in a community in which they are not subjected to such incitement.  But, I have few illusions about the efficacy of such laws, either in changing attitudes or in providing real protection to vulnerable groups.  It is exceedingly difficult to enforce these laws; moreover, there is little support for the view that, in places in which they exist, they have had an appreciable influence on hate speech.  Therefore, it seems hard to accept that having such laws would spawn social change that is prevented in their absence.  Furthermore, it seems to me that, in some countries, enacting hate speech laws (rather than preventing their enactment) has been part of the strategy of ruling elites to maintain their power. In enacting such laws, elites have attempted to divert attention from their refusal to do anything more substantial about discrimination and prejudice.

While I was not convinced by all of their arguments, and found their book somewhat disjointed and quite repetitive, I remain sympathetic to the approach of Delgado & Stefancic.  As a non-American reading traditional American discussions on the hate speech issue, I have always thought of the well-known story about the proud grandmother who goes to watch her grandson, Sam, marching in a military parade.  "They are all out of step except for Sam," she exclaims.  Is everyone else indeed out of step?  Or is it perhaps (Uncle) Sam who could listen more carefully, and sympathetically, to the music of international law that is setting the step of other liberal democracies?

———————————————————————
Don’t Look Back
by Louise J. LaMothe

Presumed Equal—What America's Top
Women Lawyers Really Think of Their Firms
Suzanne Nossel & Elizabeth Westfall
Franklin Lakes, NJ: Career Press, 1998
Paper: $24.99
Pp. 392

This book is not the kind that a reader would likely want to peruse from cover to cover.  Rather, it is a directory of law firms into which a woman lawyer can dive for spot assistance.  I expect that most of its audience will consist of junior lawyers who are making job choices within a few years of law school graduation or after clerkships.  For the vast majority of law school graduates, however, the book is practically irrelevant, since few law students will have the opportunity to enter the rarified atmosphere of these firms.  These spots are reserved for graduates of prestigious law schools or those who finish at the top of their classes in institutions of lesser reputations.

Thinking back to my own law school graduation in 1971, I would have been delighted to have found a book such as this, giving me some real information.  It is a treasure trove of useful details on the likelihood of making partner, the atmosphere and attitudes of the firm, the flexibility of work arrangements, whether lawyers can successfully balance their work and family lives, and whether any women have advanced to leadership positions in the firm.

Such information is so useful that it would not have mattered to me (as I suspect it does not to its readers today) if the responses gathered were not statistically significant, or if the picture was anecdotal.  Economists remind us that the cost of information is not free, and this volume provides some information that a woman interviewee otherwise would not be able to glean.  The interview process, in my case at least, was opaque.  I had no idea what questions I needed to ask and I know now from years on firms' recruitment committees that no one would have answered them honestly anyway.  While I have the notion that women these days are much more savvy about the questions to ask, the interviewers are still offering pat answers.

The authors' survey posed many more good questions of these women than I ever would have thought to ask when I interviewed at a firm in the 1970s.  And here, due to anonymity, the women actually answered the questions.

After having spent 18 years at one Los Angeles firm profiled in the book, where I was the first woman to become a partner, I've left this world behind, thankfully.  But reading about that firm and the others profiled induced a reverie, a digression, about my own life there and the lives in store for those women who venture into these firms.   The stories related in the book resonate with my own experiences and those I've learned from other women.

The survey’s responses of the women in most firms might seem surprisingly varied to someone who had not worked in this environment.  In my experience, however, this variance is due mainly to the way in which law firms organize staffing and distribute work.  Rather than reporting to supervisors, associates and partners are assigned to several matters at once; they must juggle both the real-time demands of the clients themselves and the often-invented demands of the lawyers senior to them.

Differences in working experiences in turn produce often widely divergent evaluations of the work of the junior lawyers.  Moreover, because evaluation of the quality of associates' work is inevitably subjective, it is prone to contamination from bias.   For junior lawyers at least, the difference between a good and a bad working environment at most firms is simply the support provided by the more senior lawyers with whom they are working.  Good experiences tend to create good feelings while bad ones result in the predictable opposite.

If one addition were to enhance the book, it would be an even larger group of respondents.  In my own former firm, I noticed that only one of ten women partners responded to the survey.  One of the largest firms in Los Angeles was omitted from the book since too few of its women associates and partners responded. Such low response rates can't give the reader much confidence in the results for some firms.  One is prompted to ask: "Why would the other women not even bother to respond?" It is unfortunate that firms did not encourage women attorneys to fill out and return the surveys.  I am suspicious that those who responded were mostly the lawyers with strong feelings one way or the other; the others were too busy or too uninterested to bother.

There is, of course, another audience for this book--the law firms profiled in it and those that consider themselves their "competitors."  Law firms would do well to read much of the volume, comparing how they are doing with other firms, both within the same city and elsewhere.

For firm managers and those who take the long view of the legal profession, the book is a helpful snapshot of our profession twenty-five years after women emerged from law school in significant numbers.  Mostly, it's plus ça change, plus c'est la meme chose.

Having spent most of my career in one or another private firm serving clients in the business world, it constantly surprises me how much law firms lag behind business in the management of their all-important human resources.  At the law firms profiled in this book, much lip-service is paid to retention, but little concrete effort is expended to ensure that women receive support for their lives within and outside the office.

Perhaps this is due to the overriding social constant--family responsibilities have not changed much in the law firm world.  While women had naively expected that things would change when the old partners retired or died, the social system proved much more tenacious than they had assumed.  Earning-power differences due to discrimination in compensation also has a lot to do with it.  Since the complex and subjectively-based compensation structure at most firms provides men with greater earning power, it makes economic sense in families for men to use that power and for women to move to the professional sidelines.  The men who are partners at those firms, even now, enjoy the present model; they have no need to change it.

No matter how "equal" the marriage relationship seems when a couple begins in the working world, once the husband makes partner, the wife is encouraged in many ways to drop out and have children.  Though many of the marriages I saw around me looked quite modern at first, they molted into the old form at this juncture in the professional development of the spouses.  Many more men become partners, and many more women detour for years while their children are at home.  They return to practice eventually, but in widely divergent legal settings. They don't go back to the law firms from which they came.

Is there some visible change in firms after a quarter century, at least?  Of course.  The survey responses show in many firms a developing support for part-time employment.  But while part-time programs exist on paper in many firms, no one really uses them.  According to the National Association of Law Placement (NALP), whereas 90% of law firms in 1996 said that they offered part-time schedules for attorneys, only 1.3% of partners and 4.3% of associates actually worked part-time.  A 1997 study by California Women Lawyers of the state’s fifty largest law firms could find only 35 women to survey.

And what is part-time employment really?  When women demand sane working hours, firms have used this device to exploit woman lawyers rather than restructuring to provide fewer working hours for everyone.  The overwhelming majority of those who choose part-time employment are women, and firms view part-timers, by and large, as "uncommitted" to the practice of law.

Other support is lagging.  While in the business world, telecommuting is accepted in many working environments, it is rare to find a law firm (large or small) without an obsession for "face-time."  Law firms need to understand that working from home, while not for everyone, can add precious hours of real time to a lawyer's day help in these days.  Clients don't care where work is done; other firm lawyers, regrettably, seem to.

While giving such firms their due, my overwhelming feeling in reading this book was to wonder why anyone would want to work in these places.  Of course, that is the wrong question to ask, since it is posed from the wrong vantage-point.  Our professional horizons change as we mature, and what is valuable for us at one point might become stifling later.

I am reminded of a Doonesbury comic strip that was published years ago when I was in law school: "I love the law!" shouts one of the enthusiastic characters.   Truly, the large law-firm life is a young person's job.  As a woman, if you are willing to stay single, give up your opera tickets and any chance for a life, then this can be valuable work for you, and the training can be wonderful if you know how to play the system.  Stay awhile until you have paid off some of your student loans.   Then, move to a saner place.  And don't look back.

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Legitimacy and Objectivity
by Dennis Patterson

Legality and Legitimacy:
Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar
David Dyzenhaus
New York, NY: Clarendon Press
Cloth: $75.00
Pp. 304

In legal theory circles, especially in North America and Britain, one hears more and more about the need for objectivity.  Ronald Dworkin is a good barometer of this tendency.  Of late, he has been preoccupied with objectivity, complaining that postmodernists fail to take it seriously and encouraging all of us to figure out what the law "really" requires.

A review of the law journals reveals that Dworkin’s call has been heard.   Recently, more than a few articles have appeared which, among other things, contrast legal objectivity with other forms of objectivity.  It seems the old Natur/Geisteswissenschaften debate is alive and well.  There is a heavy investment in objectivity.  Clearly more than a few people believe something important turns on linking the true state of the law with a proper account of objectivity.

Outside this debate are people who, like myself, see no point to this endeavor.   Arguing about what the law "really requires" adds nothing to plain vanilla legal argument.  Part of the problem here, of course, lies with legal philosophers.  Many legal philosophers think that there is important work to be done by legal "theory."  But the notion that theory, at least theory conceived as a second-order regulator of first-order discourse, is an idea worth extirpating rather than explicating.  In short, the next move in legal theory will not be a solution to the problem of objectivity; rather, progress will be made by abandoning the objectivity debate (at least in these terms).

David Dyzenhaus’ well-researched and elegant book is an argument for keeping the present form of the objectivity debate alive.  While his book focuses on the legitimacy question by attention to the work of Schmitt, Kelsen, and Heller, the clear premise of the argument is that there is a theoretical lesson to be learned from this review of intellectual history.  Like Dworkin, Dyzenhaus believes that the legitimacy of law is a function of a grounding theory. (p. 8)  A theory of law, so Dyzenhaus argues, is a theory of the legitimacy of law.  To be legitimate, law must have appropriate moral content.  Thus, legitimacy is a matter of a theory of the right moral content coupled with a theory of the connection between moral content and legal content.  Arguments for objectivity are efforts to theorize the distinction between what seems to be the case and what is the case.  Legitimacy is the issue around which this debate takes place in legal theory.

Of course, the entire point of Dyzenhaus’ review of this corner of legal theory’s intellectual history is to put in question modern legal positivism’s claim that there is no necessary conceptual connection between the content of positive law and morality.  While it may be true that positive law can provide a determinate framework of rules that make social life possible, this justification is "purely instrumental." (p. 11)  Thus, as Dyzenhaus conceives of it, the task of legal theory is not the explanation of law as we find it but the identification of the "ultimate criteria to tell us what legitimacy [of law] is." (p.11)

To take Dyzenhaus’ project on its own terms, one cannot help but notice the deeply metaphysical nature of the position.  The question whether a legal system is "law" is really the question whether what we call "law" is in fact, or really "law."  But, as in the case of Dworkin, one cannot but ask what work the word "really" is doing in the question "is this legal system really legitimate law?"

In his previous book, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Theory (Oxford University Press, 1991), Dyzenhaus took up this question in the context of the South African legal system.  In the work under review, the question is essentially important.  Surprisingly, there is no answer.

For anyone with an interest in the details of the legal theories of Schmitt, Kelsen and Heller, there is no equal in the literature, save the brilliant work of Stanley Paulson.   But Dyzenhaus makes a bold claim.  His assertion is the following: "an exploration of aspects of the Weimar debate on legal and political philosophy gives us both a better understanding of the current state of impasse in political and legal philosophy and a basis for a productive route forward. (p. 17)

I do not believe that Dyzenhaus delivers on this promise.

The premise of the debate between positivism and its other (e.g., Dworkin) is that there is some point to the distinction between legitimate and illegitimate law.   Put differently, Dyzenhaus’ claim is that there is a demonstrable distinction between what we call law and what is in fact law.  This distinction, which is just another version of the appearance/reality distinction, or the objectivity/subjectivity distinction, or the truth/justification distinction has been systematically under attack since the middle of this century.  If the antifoundationalist critique in epistemology and metaphysics means anything, it has to mean that legal philosophers can no longer presume that the debate over the legitimate status of law can continue without due consideration of analytic (and, to some degree, continental) philosophy since Frege.

While history can certainly be instructive, the important question is how we make sense of it.  When the history of legal theory in the late twentieth century is written, books such as Professor Dyzenhaus’ will be seen as the last vestiges of the metaphysical order.  The scholarship is first-rate, the writing vivid, and the story interesting.  But I am not convinced the question of the legitimacy of law—at least as Professor Dyzenhaus explicates it—is worth the effort.

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Privacy, Technology, Law
by David G. Post

Technology and Privacy: The New Landscape
Philip E. Agre and Marc Rotenberg, editors
Cambridge, MA: MIT Press, 1997
Cloth: $25.00
Pp. 325

If there is a subject in the large field at the intersection of law and technology that more vigorously resists easy characterization and summarization than the subject of this book--privacy and technology--I am not aware of its existence.  On the one hand, deep and profoundly troubling privacy concerns seem to lurk everywhere we turn (at least, everywhere we turn on the global network).  To take one example, issues regarding personal privacy have not played (nor should they have played) a particularly significant role in the development of copyright law; but many of the most difficult copyright questions today concern the extent to which "copyright management" techniques, which may allow copyright holders to collect detailed information about the ways in which their information is being used, can and should be deployed.  Sensible discussion of these copyright questions can no longer proceed without a consideration of the implications of such techniques for spheres of personal activity long considered "private."  As another example, encryption policy--a subject, I dare say, that had the attention of virtually nobody a mere five or ten years ago--is suddenly at the center of a vigorous and contentious public debate that impacts not merely our "privacy policy" but the future course of electronic banking and electronic commerce of all kinds.

On the other hand, these omnipresent privacy concerns tend to swim in and out of mental focus, because there is no generally accepted framework for thinking and talking about privacy concerns.  When all is said and done, we’re not even really sure what privacy is.  What Philip Agre describes in this volume as the "notorious difficulty of defining the concept of privacy" has indeed "obstructed the public debate by making it hard to support detailed policy prescriptions with logical arguments from accepted moral premises."   It does not help that much of the privacy policy framework was formulated at a time when the leading thinkers were focused on a problem--comprehensive, centralized, government-maintained, and government-controlled centralized databases of information maintained and controlled by governments--that is itself fading somewhat into the background, supplanted by new concerns about decentralized (and privately-controlled) information sources.  And to cap things off, the conventional pessimistic assumptions about the relationships between technology and privacy--the "Big Brother" scenarios--are themselves no longer as clear as they once were, as we come to see a more nuanced and complex role for technological tools as both threats to and protectors of personal privacy.

The reviewer’s task, when faced with a compilation like the one under review, is not an easy one.  Phil Agre and Marc Rotenberg, two of the leading scholars in this area and active voices in many of the privacy debates now taking place, have put together a diverse collection of writings about various facets of the new privacy landscape.   This volume possesses, as it were, many of the usual virtues and vices of collections of this kind.   Coverage is indeed broad.  Of the ten separate contributions, some cover the evolution, or current state, of privacy law and policy in various parts of the world; others the design and nature of privacy enhancing technologies (PETs); others the administrative, technical, and legal barriers to the widespread adoption of such technologies; and others even discuss some real-world examples of how privacy policy is made and privacy-enhancing systems designed (including an intriguing discussion by privacy-activist-turned-Privacy-Commissioner David Flaherty about how the privacy landscape looks from the "other side").

But like many such compilations, it leaves the reader (at least, it left this reader) feeling somewhat disoriented.  The various chapters have a "strung-together" feeling, with little thematic or organizational unity that might give a more definite shape to the discussion.  Philip Agre's introduction to this volume is a splendid, though dense, introduction to the issues under consideration.   Yet even with this road map, I felt, reading through the contributions, a bit like the blind man trying to understand the elephant from tactile sensation alone--a sense that I was not getting the "whole picture," that I was looking at a few small pieces of an immensely complex jigsaw puzzle that was missing some of its connecting pieces.   (I was disappointed, for example, that there was no explicit discussion in any of the contributions of the potential clash between privacy values and values of free expression.)  Many of the contributions were particularly insightful and helpful about the specific area the author had chosen to place under his or her microscope, others less so.  My very strong suspicion is that other readers will react similarly, while differing in their own assessment of which contributions fell into which category.

This is neither the fault of the editors nor, even, a flaw in the book.  At this point in time, the subject matter is simply too complex, too messy, to expect a neat conceptual framework and clear doctrinal and analytical categories to be imposed on work of this kind.  Being disoriented is not necessarily a bad thing.  Paradigm shifts only occur when a significant number of scholars and thinkers in the field become disoriented and dissatisfied with the current state of the field and the absence of a more comprehensive analytic framework that can illuminate the problems being addressed.   That kind of disorientation is probably a necessary (though not sufficient) condition for the emergence of new theories and new frameworks capable of helping us sort through the many privacy dilemmas produced by the new technological context.

This is, in short, probably not the book for "privacy novices," not the place one should turn for an overview of the field if one is just beginning to think about these questions.  As a starting point for deeper explorations of these complex questions, and a lens through which to view the many dimensions of the privacy and technology conundrum, it is a welcome compilation and should well serve those struggling to bring these problems into clearer focus.

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Desire Unsatisfied
by Ruthann Robson

Sex, Preference and Family:
Essays on Law and Nature
David M. Estlund and Martha C. Nussbaum, editors
New York, NY: Oxford University Press, 1997
Cloth: $35.00
Pp. 349

As a professor at a progressive law school who teaches a course entitled "Law and Sexuality," I incessantly dream of a book that I could assign to my knowledgeable, savvy, and demanding students.  My fantasy text would cover a wide range of sexual issues from a variety of perspectives.  It would be accessible, yet intelligent and provocative.  It would explain the current state of the law, and still would be theoretically sophisticated.  Most of all, this text would stimulate students to question the assumptions implicit in legal restrictions of sexuality.  It would challenge the most dogmatically laissez-faire students to examine which, if any, legal restrictions of sexual practices (sado-masochism, bestiality, gender selective abortion, professor-student sex, cyber-rape?) might be justified and on what terms (liberal consent, communitarian ideals, equality?).

While Sex, Preference and Family attempts to cover such topics and ask such questions, it does not begin to approximate my fantasy text.  In fact, it is not a text I would consider assigning.  For, this collection presents only the most mundane and well-rehearsed arguments concerning "homosexuality," family and gender. Further, it is not even accessible--not because it employs sophisticated language, but because it is boring.  Even more boring than traditional law review articles, which is a fairly high (or is it low?) standard to meet.

Judging a book on the basis of its acceptability as a text for law students may be unfair.  Perhaps this book, like many others, is targeted for readers familiar with the legal landscape and aims to advance the discourse.  Or, as the flap-copy touts, it "clarifies the current debate and points the way toward a less divisive future."  If this is the case, Sex, Preference and Family is even more disappointing.

It presents articles that even a casual reader of law-and-sexuality literature will swear she has perused several other times.  For example, Catharine MacKinnon’s article, "Pornography Left and Right," reviews Edward de Grazia’s Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (1992) and Richard Posner’s Sex and Reason (1992).  MacKinnon’s basic thesis is that both the liberal DeGrazia and the conservative Posner are on the same side of sexual politics--the side against women’s empowerment.  The argument that both liberals and conservatives line up on questions of sex against women’s equality is one that is familiar to any reader of MacKinnon’s works; perhaps Toward the Feminist Theory of the State (1989) articulates it best.

In a similar vein, Richard Posner’s piece "The Economic Approach to Homosexuality," is a rehash of parts of Sex and Reason, the 1992 book reviewed in MacKinnon’s essay.  Sex and Reason garnered attention and provoked many critiques; this revisit five years later adds nothing new.   Likewise, Martha Minow’s piece, "All in the Family and in All Families: Membership, Loving, and Owing," duplicates other published pieces with similar titles, as well as portions of her book Making All the Difference: Inclusion, Exclusion, and American Law (1990).

Certainly, I am not suggesting that any decent book must contain original essays.   The books by MacKinnon, Posner, and Minow each followed the common practice of incorporating material previously published in journals.  Nevertheless, their essays in this anthology, several years after their books, do not furnish new insights. Inspecting "retreads" neither drives "the current debate" nor paves "the way toward a future," however divisive.

Sadly, the collection takes few risks and makes fewer radical points.  Rather than offering a real diversity of viewpoints, it yields a monotonously liberal tolerance that wears thin.  For example, Nancy Rosenblum’s thesis that "appropriately ordered intimate relations reinforce democracy" and her explorations of utopian communities and judicial reactions to the "exotic case" of Mormon polygamy are as dated as the controversies she highlights.  While her legal history is solid, her essay does not advance beyond the historical perspective.

Discussing sexual preference, Stephen Macedo calls for a "judgmental liberalism" favoring the "preservation and extension of bourgeois virtues" for gays.  Macedo relies on conservative gay pundit Andrew Sullivan to promote ‘traditional values" such as monogamy, being "graceful" about coming out, and keeping sex and its discussion private.  He dismisses critiques of such values with a linguistic shrug: "It is extremely hard for me to see why [political theorist Mark] Blasius calls ‘heterosexist’ a set of rules that seem to me nothing more than basic parameters of common decency." (p. 96)  It may be difficult for Macedo to "see," but that is precisely the reason why the anthology should have included such perspectives.

Such diluted liberalism reverberates in Cass Sunstein’s argument that "we" should be "cautious about implementation" of sex/sexual orientation equality, even as "we" stand firm on the principle.  The "we" here envisions a group of presumptively heterosexual persons with the power to extend equality to those sexual-minority "others."  Such a vision squarely excludes a number of readers, including this one.

My objection to the volume is not that I find the inclusion of Sunstein’s and Macedo’s positions reprehensible; it is that a volume with the comprehensive and grandiose title of Sex, Preference and Family should not be so constrained.   An anthology without radical perspectives provides a distorted view of the terrain on which the legal regulation of sexuality occurs.  Granted, the inclusion of pieces by MacKinnon, and to a lesser extent by Janet Halley and William Eskridge, provides some small relief to the stunted liberalism that dominates the collection.  But I question why Posner’s economic minority model is featured while a transgendered analysis of the legal regulation of "sex, preference, and family" is absent.

Adding insult to injury, the editors (both of whom have essays in the book) comment on the pieces the reader presumably has finished.  Comprising more than forty pages, these commentaries rehash the essays in sections of the book without advancing their analyses.  The task of integrating the materials might have occurred in an introduction that highlighted themes and relations, but serves little purpose as "restatements."

Ironically, these commentaries--which are the mainstay of academic conferences in their oral incarnations--explain the weakness of the book   As the preface tells us, the collection "grew out of a conference held at Brown University" in February 1993.  Perhaps these papers deserved a law review symposium issue published the next year.  But they do not merit a 1997 book marketed at a hefty price.

Ruthann Robson is Professor of Law at City University of New York School of Law.   Her most recent book is Sappho Goes to Law School: Fragments in Lesbian Legal Theory, forthcoming from Columbia University Press.

———————————————————————
Waiting for the Sequel
by Janet Spragens

Taxing Women
Edward J. McCaffery
Chicago, IL: University of Chicago Press, 1997
Cloth: $29.95
Pp. xiv, 310

Professor Edward J. McCaffery tells us that he wrote Taxing Women in order to educate the public about the Internal Revenue Code's hidden biases against women, especially working women.  McCaffery (USC Law) describes the Internal Revenue Code as having been "put in place during the patriarchal period of the 1930s, 1940s, and 1950s" and contends that it was intentionally designed to accommodate male-dominated one-earner families.  The author describes himself as "a therapist, aiming to help his client, here society at large, to better understand itself."  He wants us to know that those rules, expressed in the language of neutral tax statutes, aren't neutral at all--that they unfairly stack the deck against working women.  He wants the book to be a "wake up call to those interested in gender justice in America."  To that end, he wants "to do a bit of what used to be called consciousness raising."

What are the gendered secrets in the Internal Revenue Code that society is unaware of, and about which Professor McCaffery wants to raise our consciousness?   One of them, the marriage penalty, is the principal concern of this book.   Additionally, McCaffery describes biases against working women in the social security benefit structure and in the tax code's fringe benefit rules.

The "marriage penalty" is a short-cut way of referring to the additional tax two single earners often have to pay (or the reduced earned income tax credit refund they will receive) if they marry and file a joint return.  The Internal Revenue Code also contains "marriage bonuses," that is, a reduction in the tax burden (or an increased earned income tax credit) of two individuals as married-filing-jointly taxpayers rather than as singles.  Marriage penalties are usually most acute for couples with relatively equal incomes, whereas marriage bonuses tend to occur where the income of one of the two spouses is significantly higher than the other.  Although unquestionably undesirable, marriage penalties and bonuses are not specific code provisions, but rather mathematical byproducts of a system that also has progressive rates and joint returns.   As such, they are very hard to eliminate.

The issues Professor McCaffery focuses on are real, and he describes them well, using specific examples to make his points clear.  The book also contains an interesting discussion of some of the early Supreme Court cases, such as Lucas v. Earl (1930) and Poe v. Seaborn (1930), which gave rise to the problem.  Notwithstanding these things, however, Taxing Women is, for the most part, more hype than help in dealing with these issues.  Regrettably, in the end, it does not really provide much "value added" to the debate.

In an effort to prove his thesis, Professor McCaffery overstates his case.  His often repeated assertion that the Internal Revenue Code was put in place in the 1930s, 40s, and 50s, for example, suggests that it is a static and unchanging document.  The inconvenient fact, of course, is that over the past thirty years there has been more legislation on tax (including rate structure and marriage penalty issues) than on practically any other subject; and in the current political world, the Internal Revenue Code is now rewritten in major ways almost annually.  As recently as last summer, Congress enacted the Taxpayer Relief Act of 1997, which added more than 500 new provisions to the Internal Revenue Code.  In short, the current Internal Revenue Code is almost unrecognizable when compared to its counterpart from fifty or sixty years ago.

Professor McCaffery is also on thin ice when he claims that features of the tax code were enacted as part of an intentional effort to keep women in the home.  In fact, the answer is hardly that simple.  For example, the immediate catalyst for adoption of the joint return provisions was the problem of geographic discrimination between community property and common law states over income splitting.

Taxing Women is also guilty of understating its case.  It fails to discuss a number of other "neutral" provisions in the Internal Revenue Code that have had an adverse effect on women.  These include many of the divorce taxation rules (such as section 1041, the so-called anti-Davis rule, which shifts the tax on appreciated marital assets entirely to the wife).  They also include the difficult standards that divorced women must meet in order to obtain innocent spouse treatment under section 6013(e)--a status which would prevent their joint and several liability for taxes resulting from their husband's unreported income or unwise investments during the marriage.

My main criticism of Taxing Women is not so much that it is wrong or incomplete, as that it is, well, forgettable.  Professor McCaffery presents his case as if he is the first to discover the marriage penalty and other gender-related tax issues in the Code, and that he is the knight in shining armor who is going to rescue the women of America by bringing all of this to the public's attention.  But in fact, marriage penalties (which comprise most of the discussion in the book) have been in the news for at least two decades.  Moreover, it is not only tax professionals who know about the issue.  Any two-earner family that files a tax return understands the different rate structures for unmarried, head-of-household, married-filing-jointly, and married-filing-separately taxpayers.  Indeed, the short-lived two-earner deduction (enacted in 1981 and repealed in 1986 when the rate structure was flattened) was a response to a public, not professional, outcry over the marriage penalty issue.

The hard part of the marriage penalty is not describing the problem, but figuring out how to fix it.  Here McCaffrey essentially ducks out, stating, "I have no magic solutions," and "I am especially worried that a focus on any particular solution, all of which can be controversial, complex, and particular, might distract from the greater and more permanent task of self-understanding."

The problem Professor McCaffery faced is this: Coming up with a logical proposal to deal with the marriage penalty is not so easy to do.  The devil's choice is between eliminating the marriage penalty on the one hand, or eliminating progressivity and/or joint returns on the other.  The latter are both longstanding fixtures of the income tax and, in the view of many, contribute significantly to distributional fairness of the tax burden.  Indeed, Professor McCaffery's unenthusiastic discussion of the currently popular flat tax proposals--which, for whatever their other merits or problems, would go a long way toward eliminating the marriage penalty--indicates that he is also uncomfortable with a system that gives up these attributes.

To be fair, Professor McCaffery does offer what he terms "tentative" solutions to the problem.  These include permitting/requiring separate filing, a second-earner deduction or credit, more generous allowances for child care, and restructuring the fringe benefit system.  None of these "solutions," however, is discussed in any depth, nor are the very difficult problems of implementing each of the "solutions" canvassed.  For example, allowing married taxpayers to file as individuals introduces a comparable "single's penalty" on single taxpayers vis-a-vis their married counterparts, and also creates complicated issues of allocation of income and deductions; likewise, it discriminates against low-income married taxpayers who must file jointly in order to obtain the earned income tax credit.   (Otherwise, the earned income tax credit could be claimed by a married taxpayer who earns $15,000 a year from making and selling pottery, even though she is married to an attorney-husband who earns $250,000 annually.)

Similarly, the two-earner deduction or credit suffers from the problem that it is distributionally a significant upper-income tax cut, and not a particularly well targeted one at that.  Such a deduction or credit, unless it were incredibly complicated, would have to apply to all two-earner couples, even those who receive marriage bonuses.   The result is that for some taxpayers, it would eliminate all of the marriage penalty; for others, it would remove part of the marriage penalty; and for still others, it would be a windfall that would simply add to the marriage bonus.

Professor McCaffery's best stab at a solution is that we should "tax married women less; tax married men more."  What he means by this, however, is left to the reader's imagination.  In the end, the author goes only so far as to conclude that we ought to do something, although he isn't quite sure what.  He expresses his concern that the current system is contributing to "the disproportionate stress and unhappiness borne by American wives and mothers every day," and that "[i]t is unconscionable to leave this system in place, simply because it is now the status quo.   No law or logic should allow thieves to keep their gains or the abusers of power to maintain the abuse."

Who are the "thieves" or "abusers of power" to whom he is referring?  They are the "forces of patriarchy."  Whew, pretty strong stuff.  Professor McCaffery's readers would, however, be far better served by less infatuation with politically charged language, and more attention to hard-edged solutions to the very real issues he describes.

Taxing Women was written to highlight issues of gender bias in the Internal Revenue Code.  Nonetheless, by simply restating what has long been known without the proffer of a real solution, this book adds little of value to the professional or popular literature.  Professor McCaffery has been thinking about this area of law for a long time, and perhaps is planning a sequel to address these issues.  If so, it could be a valuable contribution to an important policy debate.

See an online interview with Professor McCaffery and the table of contents of Taxing Women.  Other reviews, interviews, and commentaries concerning Taxing Women have appeared in:

• Money, June, 1997, sect. A, p. 29 (interview)
• Publishers Weekly, March 10, 1997, p. 57
• Working Woman, February 1997, # 2, p. 35
• Kirkus Reviews, February 15, 1997
• Ellen Goodman, Boston Globe, April 13, 1997, sect. D, p. 7 (column)
• Edward J. McCaffery, USA Today, April 7, 1997, sect. A, p. 15 (op-ed)
• Sara Eckel, Austin American-Statesman, April 5, 1997, sect. A, p. 13 (column)

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© Ronald K.L. Collins and David Skover, 1998. —————————————————————————————
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