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

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Contents

  Special: Brownmiller's Back

  • "Demystifying the Women's Liberation Movement for the Next Generation," a review by Mary-Christine Sungaila of Susan Brownmiller'sIn Our Time: Memoir of a Revolution.

  • "Past & Present: An Interview with Susan Brownmiller" (transcript & audio feed ).

  Reviews

  • Ball, Howard. Prosecuting War Crimes and Genocide: The Twentieth Century Experience. Review by Ronald C. Slye.

  • Levy, Leonard W. Origins of the Bill of Rights. Review by Neil H. Cogan.

  • Williams, Joan. Unbending Gender: Why Family and Work Conflict and What to Do about It. Review by Katharine K. Baker. Reply by Joan Williams.

  • Wise, Steven M. Rattling the Cage: Toward Legal Rights for Animals. Review by Henry Cohen.

  • Talkback
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Special: Brownmiller's Back

Demystifying the Women's Liberation Movement for the Next Generation
by Mary-Christine Sungaila

In Our Time: Memoir of a Revolution
Susan Brownmiller
New York, NY: Delacorte Press, 1999
Cloth: $24.95
pp. 330
ISBN: 0385314868

Feminism, as author Naomi Wolf puts it, "can be defined as women's ability to think about their subjugated role in history, and then to do something about it." 20th Century feminism swept America in two distinct waves. In the first wave, led by Elizabeth Cady Stanton and Susan B. Anthony, women gained the right to vote. Then, after a "post-feminist" period in which early suffragists were decried as "man-haters" out of touch with the needs of contemporary women, feminism re-emerged by way of an even more powerful second wave. During the golden age of modern American feminism from the 1960s to the early 1980s, women revolutionized the law and society's treatment of them by redefining rape and domestic violence, giving sexual harassment a name and legal remedy, and securing reproductive rights and equal opportunities for women in the workplace and at school.

Now, as we drift through another purportedly "post-feminist" era, the leaders of the second wave have returned to pass on the tools of change to a new generation. Their method of choice: histories and memoirs that not only document the gains they achieved, but chronicle how they achieved them, thereby providing a blueprint for the next wave of feminists to use in engineering further social change. The Feminist Memoir Project: Voices From Women's Liberation (Crown, 1998), an anthology of 32 essay-length memoirs by radical feminist activists, was the first of these volumes designed, as the editors note, "to stand against historical forgetting" of the rebirth of feminism and to assist in "the renaissance of a U.S. women's movement." In the last month, this tract has been joined by historian Ruth Rosen's The World Split Open: How The Modern Women's Movement Changed America (Viking, 2000) and the documentary history edited by Rosalyn Baxandall & Linda Gordon, Dear Sisters: Dispatches From the Women's Liberation Movement (Basic Books, 2000).

Setting the Record Straight

Amidst this new spate of memoirs, journalist Susan Brownmiller's frank, insightful, dense, and detailed eyewitness account stands out. For one thing, as the book's title denotes, it is a memoir "of" the feminist revolution itself, not of any single participant in it. Concededly, it is "written from the partisan vantage point of a participant-observer" (and not just any "participant-observer" one of radical feminism's stars, whose 1975 classic Against Our Will (Simon & Schuster) reconceptualized rape as a crime of male power). To provide a comprehensive picture of the feminist experience, however, the narrative interweaves the voices of 200 other activists who toiled alongside Brownmiller. (Of course, in selecting and organizing these narratives, the author necessarily imposes her own views, but the net effect is salutary: filtered through Brownmiller, the participants' scattered voices gain cohesion, while still serving to recreate the excitement of the movement's heady times and its members' "consciousness-raising" epiphanies.)

Brownmiller does not claim to be writing a manifesto for the next wave of feminists to follow. Instead, Brownmiller claims that she "set out to write this memoir with a sense of urgency," to record "much of the movement's history [that] had already been lost or distorted." In short, she wrote the book to set the record straight about an unparalleled time of social change. In the process, however, she writes an account that is likely to play a crucial role in reinvigorating the next wave of feminism.

Charting the Course of a Messy and Undisciplined Movement

Because the movement grew organically, out of consciousness-raising groups and the civil rights race struggles, a linear narrative of its progress is impossible. As Brownmiller astutely observes: "This is how things happen in movements of social change, in revolutions. They start small and curiously, . . . a barely observable ripple that heralds a return to unfinished business of prior generations. If conditions are right, if the anger of enough people has reached the boiling point, the exploding passion can ignite a societal transformation. So it was with the Women's Liberation Movement in the latter half of the Twentieth Century." To craft a readable narrative out of this explosive time of social change, she describes the movement's "big events" (e.g., the Miss America pageant protest, the Ladies Home Journal sit-in, the founding of Ms. Magazine, and the emergence of groundbreaking feminist works by Betty Friedan, Gloria Steinem, Kate Millett and herself) alongside the day-to-day protests and social struggles. She then organizes these events according to the movement's primary issues and accomplishments. Among these are the legal recognition of abortion rights, improvements in medical research and health care for women, victim-centered changes in rape law and the institution of rape crisis centers, the battered women's movement, and sexual harassment and anti-discrimination laws.

In addition, Brownmiller includes comprehensive and illuminating descriptions of the movement's legal battles, most notably Roe v Wade (1973) and the evolution of sexual harassment law. Professor Nadine Taub, the director of Rutgers' women's rights clinic, who litigated one of the first landmark sexual harassment cases, neatly sums up how the caselaw (and indeed, the entire movement) developed: "A few women. . . stuck their necks out."

Internal Struggles amidst Extraordinary Achievements

As Brownmiller acknowledges, "nothing in our women's movement was ever accomplished without severe emotional depletion and fractured personal relations." She does not whitewash over these controversies. Instead, alongside the movement's accomplishments, she documents its internecine struggles from confrontations between lesbian feminists and their heterosexual counterparts, to activists' personality conflicts and struggles for power, and ultimately to the "pornography wars" of the early 1980s that led Brownmiller, disappointed in the anti-pornography crusade's failure, to retire as a public spokesperson for the movement.

One of the deepest and most frequently recurring rifts is the one between the movement stars who garnered media attention (such as Gloria Steinem and the author herself) and those who believed the movement should speak with one collective voice. These rifts were part of a larger battle over "who owned feminism, or who held the trademark to speak its name," as well as a fight for individual glory.

"Consciousness-Raising" for the Next Generation

Precisely because Brownmiller shows the flaws of the feminist movement's leaders and icons, and describes the way in which individual and small-group actions sparked a wildfire that spread across the country, she makes feminism accessible to the next generation. She leaves the impression that the second wave of feminism was orchestrated by ordinary women fumbling towards equality one protest and publication at a time. Have something to say about women's experience? Self-publish it in your own magazine. Want to change the law? Testify before the legislature or participate in test cases designed to expand the law's reach. Want to challenge the media's portrayal of women? Stage a sit-in at a national women's magazine and read a list of demands, as Brownmiller and her colleagues did at the Ladies Home Journal.

While these options may seem a bit much for some, they do send a uniform message: If you think the treatment of women is discriminatory or unjust, do something about it. One person can make a difference and, if conditions are right, may help spark an entire social movement. As Carol Hanisch (the activist who coined the movement's touchstone phrase, "the personal is political") notes in her Feminist Memoir Project essay: "the Women's Liberation Movement was pioneered by ordinary women (like me) with no special access to money or halls of power . . . . [This is just one of] a few . . . historical truths women need to grasp in order to gain insight and courage to push on to women's liberation . . . so that instead of being intimidated by the activism of the 1960s, [young women] will realize that they are basically like us and that, like us, they, too, can make change."

What Next?

If the book falters at all, it is in failing to recognize that a third wave of feminism has already begun. Brownmiller acknowledges the impact of the Anita Hill-Clarence Thomas hearings in 1991 and the U.S. Supreme Court's recognition of same-sex sexual harassment protection in Oncale v. Sundowner Offshore Services, Inc. (1998). But she does not recognize any other feminist achievements of the 1990s for example, the Supreme Court's extension of employer liability for sexual harassment by colleagues and supervisors, its recognition of student-on-student sexual harassment, and the federal government's passage of the Violence Against Women Act.

Brownmiller also completely omits reference to the contributions of new feminist authors. In particular, she fails to mention Susan Faludi's Backlash: The Undeclared War Against American Women (Crown, 1991), which documents a "powerful counter-assault on women's rights" and an intense societal resistance to the advances toward gender equality achieved by the women's movement. Together with the Hill-Thomas hearings, this volume renewed feminist activism.

Brownmiller ultimately concludes that "feminist theory [went] as far as it could go in the twentieth century." But she also identifies obstacles to equality that remain to be toppled in the 21st Century: "inadequate day care, the Glass Ceiling, inflexible working conditions that [make] it difficult to balance work and family life." With her book and the legacy of the modern women's movement as inspiration, women just might re-mobilize to topple these and other remaining barriers to gender equality.

Ms. Sungaila is associated with Horvitz & Levy LLP, California's oldest and largest civil appellate law firm. She has participated in a number of women's rights cases before the U.S. Supreme Court, including Brzonkala v. Morrison, the Violence Against Women Act case before the Court this Term. Her last contribution to Books-on-Law was a review of Cathy Young's Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality (Free Press, 1999).

Editors' Note: For a Books-on-Law review of related interest, see Leslie Bender's review of Judith A. Baer's Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton University Press, 1999) and Baer's reply. See also Judge Norma L. Shapiro's review of Nancy Levit's The Gender Line: Men, Women and the Law (New York University Press, 1998).

See "Past & Present: An Interview with Susan Brownmiller" (transcript & audio feed ).

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Reviews

Treating Animals as Persons
by Henry Cohen

Rattling the Cage: Toward Legal Rights for Animals
Steven M. Wise
Cambridge, MA: Perseus Books, 2000
Cloth: $25.00
Pp: 362
ISBN: 0738200654

Chimpanzees and bonobos (pigmy chimpanzees) are the species closest to humans. Our DNA and that of chimpanzees is more than 98.3 percent identical. In fact, "[o]f the DNA that actually does something, humans and chimpanzees share, on average . . . more than 99.5 percent." Our brains are similar too. Chimps can use language, do simple arithmetic, invent tools, exhibit self-awareness and empathy for others, and mentally represent objects so as to pass Piaget's "Stage 6 object permanence test."

Yet, during the 20th Century, mainly because of human predation, the number of chimpanzees has declined from 5 million to only 200,000, or perhaps as few as 120,000. We make some of them spend their entire lives isolated in steel-and-concrete cells, infected with AIDS, never seeing natural light or engaging in normal social interactions.

The solution? According to Steven M. Wise, it is for the common law to treat chimps and bonobos as persons, not as things. As persons, these relatives of ours would have the same legal rights as young human children or profoundly retarded adult humans, as that is who they most resemble mentally. The apes would not, that is, have the right to vote, but they would have the right not to be caged, infected, tortured, vivisected, and all the other lovely things we do to them in the name of science. If you read Rattling the Cage, I think you will be persuaded.

I should say right away that the book contains few descriptions of the horrors we inflict on chimps, bonobos, or other nonhuman animals; Wise gets that mostly out of the way in the first few pages. He writes in an entertaining, breezy style, and discusses many things besides animals. Before explaining chimp psychology, for example, he provides some background on human developmental and cognitive psychology. But rather than writing a dry textbook chapter, he tells us about his own kids.

Law, Philosophy, and Psychology

The first 118 pages of Rattling the Cage actually provide a nice introduction to legal history and philosophy, from biblical times to the present, and include a unique explanation of how the common law works. (I would consider this book as a gift for a young person contemplating law school, even for those not particularly interested in animal rights. It will give them an idea of what they are getting themselves into, though I would assure them that they will not be required to memorize the Hohfeldian correlatives, to which Wise devotes a bit too much space unless, of course, your object is to deter them from attending law school).

Discussing law, philosophy, and psychology, Wise doesn't really get to chimps and bonobos until the final third of the book, though he keeps us informed where he is headed throughout. Why does he take this approach? Because, I believe, he wants to persuade readers not merely with logical arguments. He wants us to experience a paradigm shift, a new gestalt, in the way we view animals.

We are used to viewing nonhumans as lesser beings on the Great Chain of Being. The Great Chain of Being was, from ancient Greek philosophy until Darwin, one of the "most potent and persistent presuppositions in Western thought." "It worked like this [Wise explains]: An infinite number of finely graded forms were arranged along the ladder. Creatures who were barely alive occupied the lowest rungs. Above them ranged the sentient beings. . . . Rational beings inhabited higher rungs. . . . Above them, looming incredibly high, dwelled an infinite number of spiritual and divine beings. The lower-rung dwellers were designed to serve the higher-rung dwellers." (emphasis added) The Great Chain of Being, said Stephen Jay Gould, was "explicitly and vehemently antievolutionary."

Meanwhile, the Great Chain of Being underlay the common law's view of animals. Then, after Darwin demonstrated that the universe was not designed for humans, the "Great Chain snapped and a door cracked open to the possibility that at least some animals might logically transcend their legal thinghood."

But the common law relies on precedent. Whether or not it any longer makes sense logically or legally to consider a human in a permanent vegetative state a "person," but an intelligent nonhuman primate a "thing," that is what the old cases did, and that has been reason enough for modern judges to do the same. But the common law does develop, and many judges consider principles and policies and well as precedents. Wise spells out those that they might consider.

"Chapter by chapter," Wise writes toward the end of the book, "I have constructed the individual building blocks of the legal personhood of chimpanzees and bonobos: the anachronism of the present legal thinghood, the meaning of legal rights, the critical importance of liberty and equality to justice, how the common law changes, and the nature of these apes. Now it is time to do what lawyers do: get to work assembling these blocks into the dignity-rights that will convince fair-minded judges that the time has come to end our tyranny over these apes."

Paradigm Shift

Wise then gets us started, and makes a persuasive case that chimps and bonobos should be treated the same way as humans with the same degree of mental autonomy again, as young human children or profoundly retarded human adults. To do otherwise is to discriminate arbitrarily on the basis of species. It is the individual qualities of a being that should determine his legal status not his race, sex, or species.

What about other nonhuman animals? Wise does not consider them until his epilogue, when he writes that he "never meant to imply that chimpanzees and bonobos are the only nonhuman animals who might be entitled to the fundamental legal rights to bodily integrity and bodily liberty. Judges must determine the entitlement to dignity-rights of any nonhuman animal the same ways they determine the entitlements of chimpanzees, bonobos, and human beings according to autonomy. Autonomy, of course, arises from minds."

These might include orangutans and gorillas; one of the latter who was trained in sign language tested at an average IQ level of 80. "Bottlenose dolphins have passed the mirror self-recognition test. The songs of humpback whales may be constructed from a complicated syntax. Both elephants and African gray parrots use mirrors to help them search for objects. Dogs have demonstrated Stage 6 object task permanence. . . . New Caledonia crows regularly use hooks and tools that they manufacture to a high degree of standardization to aid in the capture of prey. . . . Because we have no time to investigate any of these claims here, they must remain tantalizing clues." Wise may concern himself with them after "[t]he decision to extend common law personhood to chimpanzees and bonobos . . . arise[s] from a great common law case."

Although Rattling the Cage seeks to create a paradigm shift in the way we view animals, it is essentially a conservative book. This is because of Wise's focus on animals' human-like intelligence. A more radical approach to animal rights would argue, as Jeremy Bentham did more than 200 years ago, that "the question is not, Can they reason? nor, Can they talk? but, Can they suffer?"

If the capacity to suffer were the criterion for rights, then Wise would have to discuss the subject of meat-eating, which, after all, is a far greater cause of animal suffering than scientific experiments on primates. Eight billion animals are now slaughtered in the United States for food each year, most after spending their entire lives in horrible states of confinement.

But I do not criticize Wise for not writing a different book. He has taken what he views as a realistic approach to changing the law "cognition," he writes, "is a very big deal because the fundamental legal rights of animals . . .depend upon it." Time will tell if he is right.

Henry Cohen is a legislative attorney with the Congressional Research Service of the Library of Congress, and is the book review editor of The Federal Lawyer. This review is scheduled to appear in the March/April, 2000 issue of The Federal Lawyer, and is published here with permission.

Editors' Note: Other books dealing with the subject of animal rights include Gary L. Francione's Rain Without Thunder: The Ideology of the Animal Rights Movement (Temple University Press, 1996) and his Animals, Property and the Law, with William M. Kunstler (Temple University Press, 1995).

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Power, Gender, and Juggling the Work/Family Conflict
by Katharine K. Baker

Unbending Gender: Why Family and Work Conflict and What to Do about It
Joan Williams
New York, NY: Oxford University Press, 1999
Cloth: $30.00
Pp. 338
ISBN: 0195094646

In the first of several well-placed cartoons in Joan Williams's new book, Unbending Gender, a bell-bottom clad, 30-something woman, slouched on a couch, sits talking about a couple she knows: "They have this arrangement. He earns the money. She takes care of the house." This was funny when originally published in 1977 and it is still funny today, and therein lies the problem that Joan Williams attacks. Thinking about the gendered division of market and household labor as somehow novel is funny, because it is absurd to think that gendering the division of labor could be novel, and it is absurd to think that such a gendering could be novel because of the pervasiveness of domesticity. Domesticity, as Williams defines it, is a "gender system, comprised most centrally of both the particular organization of market work and family work that arose around 1870, and the gender norms that justify, sustain and reproduce that organization." (2)

Domesticity's organization of market work and family work involves two entrenched norms: the ideal worker norm, pursuant to which the ideal worker works an inflexible full or over-time schedule (40+ hours a week) in order to provide for a family, and the domestic caretaker norm, pursuant to which the good domestic caretaker is a fully flexible parent, who ensures that children are protected from the alienating world of the market and socialized with the skills and values necessary to ensure middle-class status. The ideal worker norm and the domestic caretaker norm are at once mutually exclusive and mutually re-enforcing. No one person can satisfy each simultaneously (inflexibility and flexibility are antonyms), but neither can any one person who wishes to have children enjoy the benefits of one norm without relying on someone else to fulfill the other. An ideal worker does not have the time or flexibility to caretake, so someone else must do it for him. An ideal caretaker does not have the time or flexibility to compete in the workplace, so she must rely on someone else for financial support.

Williams believes that both norms must be eradicated, but she argues that once the ideal worker norm is eliminated, the caretaker ideal will fold automatically. As men are freed from market work, domestic work will become a shared responsibility.In this review, I will suggest that although Williams's analyses and proposals are bold and important, her plan to eliminate the ideal worker norm overestimates the importance of gender, while her belief that the caretaking norm will collapse underestimates the importance of gender. In short, the ideal worker norm may exist as much for economic reasons as for gender reasons, and the ideal caretaker norm may exist more for gender reasons than for caretaking reasons.

Attacking the Ideal Worker Norm

Williams's legal strategy focuses on eradicating the ideal worker norm by attacking both the stick and the carrot that allow the ideal worker norm to maintain its strength. The stick that forces workers to conform to an overworking ideal is the threat of marginalization. Employers demand inflexibility and maximum hours by refusing to promote or adequately compensate workers who work less than the ideal norm. Part-time workers and even workers who are only willing to work 35 hours a week (and no more) are marginalized at work. They receive worse assignments, worse pay for their effort, and little chance of advancement. Anyone who is personally ambitious and/or concerned about providing for a family cannot afford to be hit by the stick of marginalization.

The carrot that encourages workers to conform to the ideal worker norm is financial security. Such security allows ideal workers to provide for their family, but it also endows them with market power as individuals. If the family breaks up, the individual ideal worker retains the great majority of the market endowment that he has built. The current maintenance and child support rules, although they force him to share some of his income, allow him to keep most the fruits of his labor. Unlike the domestic caretaker, who by taking emotional and physical care of her children renders herself vulnerable, the ideal worker takes care of himself while he takes financial care of his children.

Williams offers legal solutions that should help eliminate both the carrot and the stick. To eliminate the carrot, she proposes a combined maintenance-and-child-support income-sharing scheme through which the standards of living in both divorced households will be equalized while the children are dependent, and for a period of time after the children's dependence. This post-dependence compensation period should be the equivalent of one year for every two years of marriage. This ensures that older wives remain entitled to a share of their husband's income even if their children are grown.

This proposal will do nothing to address the problem of child support for never-married mothers, and it glosses over the substantial problem of reconstructed households. (Is a father responsible for nothing if his ex-wife remarries rich? Is he responsible for extra if his ex-wife re-marries someone with less money and several children? What if the father re-marries rich? Must the children of the first marriage suffer financially if their father has more children with a different wife?) Nevertheless, the proposal is an important step on the road to diminishing the alarming income differential between divorced men and divorced women with children. It forces fathers of young children to pay for the caretaking that allows those fathers to live as ideal workers, and it forces older husbands to share responsibility for women whose caretaking enabled them to be ideal workers. Men may think twice about investing so heavily in work once they realize that they cannot necessarily take the fruits of their labor with them. Thus, Williams's proposal decreases the size of the financial carrot that currently supports the ideal worker norm.

To eliminate the stick supporting the ideal worker norm, Williams offers sex discrimination doctrine. She suggests using both the Equal Pay Act ("EPA") and Title VII of the Civil Rights Act to combat marginalization of the part-time worker. Both statutory attacks will require demonstrating that the part-time workforce at any given workplace is comprised predominantly of women, while the non-marginalized workforce is comprised predominantly of men. To proceed under the EPA, part-time working women will have to establish that they do substantially similar work to their full-time counterparts; they are just paid less. Williams suggests that the key to winning these suits will be convincing courts that it is appropriate (and possible) to focus on and ascertain "effort per hour" instead of hours per week. If one compares the effort per hour of part-time and full-time workers, one often finds substantial similarity. Therefore, Williams argues, they should be compensated comparably.

Williams insists that using the effort-per-hour theory will be easier than the heretofore unsuccessful attempts to bring comparable worth claims, but she acknowledges the limitations of EPA suits. First, if the employer can prove that the pay differential is based on any factor other than sex, the employer has a defense. Second, if notwithstanding the comparable effort, the quality or quantity of the work is different, then the employer has a defense. Third, the EPA applies only to wages; it does not prevent discrimination with regard to benefits or promotion. Thus, even if women win comparable effort suits under the EPA, they may still be marginalized by benefit and promotion compensation systems that subordinate part time workers.

Discrimination claims under Title VII, which can challenge both a promotion track and an employer's decision not to allow part-time work, will require establishing that marginalization of part-time workers is unnecessary. In addition to proving disparate impact, female Title VII plaintiffs will need to gather persuasive evidence that a particular workplace can be restructured to accommodate and promote part-time workers. Part-time workers will not be demanding identical pay; they will be demanding proportionate pay: compensation and promotion systems that allow them to be comparably paid and climb the ladder, albeit at a slightly slower pace than a full-time colleague.

Williams also suggests using Title VII to challenge male physical norms (cockpit designs, weight-lifting requirements, etc.). In addition, she advocates amending various social insurance programs, including Unemployment Insurance, the Family and Medical Leave Act, ERISA, and Social Security, to cover part-time workers. Finally and most simply, she advocates changing the Fair Labor Standard Act norm from 40 to 35 hours per week, and increasing the pay required for overtime.

Feasible Flexibility?

This last set of proposed legislative changes are legally unproblematic and quite important. Williams makes a compelling argument that a feminist agenda must include restructuring the workplace. Certainly, her legislative proposals can be considered important early items on that agenda. The extent to which her litigation strategy can affect the change she advocates is more questionable. In order for suits to succeed under either Title VII or the EPA, plaintiffs must be able to establish that flex-time and part-time are as economically feasible as full time. Citing examples from various flex-time-friendly companies that have decreased absenteeism and turnover rates while increasing productivity and employee satisfaction, Williams demonstrates her strong faith in the economic feasibility of flexibility.

I wished I shared her faith. In suggesting that we must measure work in terms of effort per hour and restructure the work-place in order to accommodate flexible schedules, Williams assumes that the relationship between effort and output is a linear function. She assumes that if a person who works three hours produces 3X, a person who works six hours produces 6X. In some jobs, this is certainly true. Indeed, in some jobs, as she notes, there is evidence that stress and burn-out make the six hour worker produce closer to 5X. But there is also a strong possibility that in some jobs the relationship between effort and output is actually a convex function, because there are increasing returns to effort. If this is the case, then if the person who works three hours produces 3X, the person who works six hours produces something more like 7X. There are two areas, in particular, where we might expect to find these increasing returns to effort. The first is in fields requiring intellectual work; the second is in fields requiring extensive social interaction.

Consider some examples. Who would you rather have organizing a major document production, one paralegal working 40 hours a week, or two paralegals working 20 hours a week? Which HMO would you rather belong to, one in which all the doctors worked 50 hour weeks most of the time, or one in which each doctor worked every other week? Assuming equal managing ability, which is going to be better managed, a law school in which the deanship is held by one person, or a law school in which the deanship is time-shared?

In the above situations and many others, it makes sense to think that the full-time worker is worth more than the sum of two part time workers. For jobs like document management, we pay a paralegal not just to organize material, but to retain knowledge (about the material) that she will ultimately be able to communicate to us. Not only will the organization system likely be more cohesive if only one person administrates it, there will only be one person to ask if something seems to be missing or askew. The more time she is available, the better her opportunity to communicate the information that she retains. For services like medical care, many of us would rather belong to an HMO with full-time doctors, because we want to maximize the chances that a doctor who knows us, our children, and our medical histories will be there when we need to call. We may want this so much that we are willing to pay extra for it. The full-time doctor may, therefore, earn more per hour because the service she provides is better than the service provided by the part-time doctor. As employees, many of us we would also rather be managed by one person than two because, however arbitrary we may think most deans are(!), we have a sense that, if the job is split between two different people, decision-making will be even less consistent and less sensitive to the interpersonal dynamics that make management difficult.

In fairness to Williams, the convexity of the function between input and output may not be inherent in intellectual work or in work requiring significant social interaction. It may be that we have just thought about work all wrong. Maybe we have sized our jobs too big. After all, some jobs do require two paralegals. Many people now never see the same doctor twice in a row anyway. Most deans now have a cadre of Associate Deans. If, as Williams seems to think, the ideal worker norm exists as much for gender reasons as for economic reasons, then we should be able to think of ways of re-organizing most jobs and entire professions in order to diminish the amount of time required of each individual worker.

Given the examples offered above, however, there is ample room for skepticism. Can we expect two people to organize and manage material as efficiently as one person can? Won't consumers always prefer a service provider (doctor, lawyer or accountant) who is more available? Are we willing to sacrifice the benefits of centralized managerial decision-making? Our jobs may have gotten too big for one person, but that does not mean that we can easily or efficiently subdivide those jobs indefinitely. Skepticism about our ability to downsize jobs casts doubt on Williams's litigation agenda if the ideal worker norm makes economic sense, sex discrimination doctrine will not work. It is only if comparable efforts per hour do render comparable outputs (regardless of the hours worked), and it is only if the workplace can be re-structured in ways that will maintain current levels of efficiency, that the sex discrimination claimants will prevail. In short, therefore, a major problem with Williams's proposal is that the ideal worker norm may make economic sense.

Domestic Men?

Another problem with Williams's proposal is that the caretaker norm may maintain its grip because it makes gender sense. As indicated above, Williams believes that once the ideal worker norm is eradicated, men will be freed up and expected to participate more in family work. As support for her hypothesis, she cites studies of men indicating that they would rather work less and be paid less in order to have more time with their family. But throughout the book, she presents abundant evidence suggesting that men will resist domestic work.

In the elucidating historical discussion that opens the book, Williams describes how the notion of men's and women's separate spheres (men working outside the home and women working inside it) originated as a means of maintaining gender hierarchy. When women were legally defined as inferior to men, there was less of a need for to define women's work as inferior. As women gained more legal rights, including the rights to own property and to earn wages without a man's permission, men's authority as men was threatened. By creating starker and more hierarchical distinctions between men's and women's work, men were able to maintain their authority. Thus, the distinction between men and women shifted from status to function. Men and women became defined by what they did.

The feminist movements of this century have fought to erase the separate-spheres distinction, but virtually all studies of contemporary households make clear that while women have, in some places, entered men's place of work, men have refused to enter women's. Williams gives ample evidence of this. She describes numerous working class men who strongly resist doing caretaking or housework and openly concede their belief that housework is women's responsibility. She perceptively explains how middle class men, though they tend to be less blatant in their rejection of egalitarianism, maintain gender hierarchy by refusing to accept responsibility for domestic work. There is increased tension in middle class households when homework is not done, dinner needs to be made quickly, and laundry is not folded. Men could accept responsibility for alleviating that tension. Often, they do not.

Williams is not blind to men's domestic resistance. Indeed, she explains it beautifully. "The shift [from working class to middle class] in justification [for male resistance to household work] is the transition from the language of status to that of emotion, from an open acknowledgment of male entitlements to one that justifies them as the optimal path to self-fulfillment for women as well as men." (16) The optimal path to self-fulfillment for middle class men is work. For middle class women, self-fulfillment appears to require a balance between home and work; but by refusing to participate equally at home, men can render their wives' balancing acts improbable, if not impossible. As Williams has explained elsewhere, men may be able to define their self-fulfillment solely in terms of work because they know that their wives will end up performing the caretaking work if they do not.

Williams does not ask men to re-evaluate their path to self-fulfillment. Surprisingly, she simply accepts that "men are psychologically unable to risk marginalization at work." (235) The most likely cause of this "psychological inability" is gender identity, however, and that same gender identity makes men "psychologically unable" to accept domestic work as their own. This means that, even if men are permitted to work fewer hours, women will still shoulder the majority of the caretaking and domestic work. Indeed, men may continue to accept the functional distinction between men and women's work, at least to the extent it exempts them from housework, because they implicitly understand the distinction's hierarchical roots. Thus, eliminating the marginalization of the non-ideal worker will not necessarily eliminate the subordination of the domestic worker.

Taking Power out of Feminist Rhetoric

Williams does not spend much time addressing the subordination of domestic work. This may be because she recognizes that it is hard to address the subordination of domestic work without addressing the power dynamic implicit in the gendered division of labor. Williams resists power rhetoric. She wants to replace power rhetoric with the idea of gender as a force field that pulls men and women in different directions. She believes that a force field metaphor will resonate better than power rhetoric because, as she accurately observes, many women do not feel the pull toward caretaking as wholly negative.

As a strategic matter, Williams's call to take power out of feminist rhetoric may make sense; but as an analytic matter, it is dangerous. Taking power out of the analysis leaves one wondering what is wrong with the force field. What is wrong with the force field is that it requires women, not men, to accept responsibility for the unpaid, low-status work that benefits both men and women.It also allows men to seek self-fulfillment solely in work that brings them status. Williams ignores or denies that the status, which men "need," is likely about power. She seems to believe that domesticity is a gender system without thinking it is a power system. This makes her proposal very palatable, but potentially unrealistic.

The problem with the work/family conflict is not just that women have a hard time juggling it; the problem is also that men refuse to try. Williams gives us strong and perceptive analysis of why the balance is so difficult, and she offers many concrete proposals to help make the balance easier. But, she resists acknowledging what may be the biggest obstacle to progress: men's disinclination to relinquish the status and power that they currently enjoy.

Katharine K. Baker is an Associate Professor of Law at Chicago-Kent College of Law. Her work in family law has focused on the positive and negative aspects of women's caretaking role.

Editors' Note: For two Books-on-Law reviews of related interest, see Janet Spragen's review of Edward J. McCaffery's Taxing Women (University of Chicago Press, 1997) and Norma L. Shapiro's review of Nancy Levit's The Gender Line: Men, Women and the Law (New York University Press, 1998).

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Are Men Pigs?
A Reply by Joan Williams to Katharine Baker

Professor Katherine Baker's review of my book, Unbending Gender, does an extraordinary job of setting out the basics of my arguments in a compressed space. Moreover, Baker raises some thoughtful questions about the feasibility of my two basic proposals: 1) to restructure the market for paid work around the values people hold in family life, and 2) to change our understandings of who owns what within the family, both within marriage and upon divorce.

I appreciate, in particular, Professor Baker's ability to make explicit some points I left unstated, most notably that we need to reconstruct both the ideal worker norm (which defines the ideal worker as someone who takes no time off for childbearing or child-rearing) and the norm of parental care (Americans' current preference for care work by family members, which reflects not only a laudable commitment to personalized care but also our inability as a culture to provide viable and attractive alternatives to this privatized vision).

Enough of what Professor Baker did well. I thank her for the close attention she gave my work. For the remainder of this response, I will address her two major critiques: first, that my proposals for redefining the ideal worker are impractical from an economic standpoint; second, that I let men too easily off the hook in explaining the dynamics of gender and power.

Are Workaholics Efficient? Comparing Realities to Dreams

I contend that "family-friendly" workplaces are economically feasible, arguing specifically for a non-marginalized part-time track that offers proportional pay, benefits, and advancement for reduced-hours work. Professor Baker expresses skepticism about the economic feasibility of this proposal.While it may be true that in some jobs people who work half-time produce 3X for every 6X produced by full timers, Professor Baker claims that, in fields requiring intellectual work and extensive social interaction, there may be increasing returns-to-effort.

Due to space considerations, I will focus on only one of her three examples: "Which HMO would you rather belong to, one in which all doctors worked 50 hour weeks most of the time, or one in which each doctor worked every other week?" She argues that most people would rather see one doctor than be bounced around.

Her example is instructive, because she compares my proposal with the ideal of the current world a cost-efficient HMO with good doctors always ready to help. But honestly, do most people who go to HMOs always see the same doctor? Of course not. This is an ideal we traded off long ago, in deference to other values. HMO patients are always complaining that they never see the same doctor twice. Even if a patient goes to a private practice, the doctor often is not in: he is doing rounds at the hospital, or is teaching that morning, or is in his suburban office, or is attending a seminar (or is at his daughter's school play, and the nurse tells you he is attending a seminar).Virtually every doctor is available a given patient only part-time.

So are most lawyers. As I note in the book, one law firm partner in D.C.had been working with an associate when he found out that another partner needed her, and his choices were to continue to work with her part-time or not to work with her at all. He had an epiphany: "Every lawyer works with me part-time." Lawyers and doctors work part-time on every case. It's just a matter of how many cases they take.

This point is the first of three. The second is that an economy that "sizes jobs too big" is one where few mothers hold good jobs. You show me a medical practice where all the doctors work 50- or 60-hour weeks, and I will show you a practice with few doctors who are primary caretakers, and therefore few who are mothers and (since 90% of women have children during their working lives) few who are women. A workplace that requires all workers to be supported by a flow of family work that most men have and that most women lack discriminates against women. In the face of such discrimination, consumer preference is not a defense, even assuming for the moment that it is efficient. (Remember the "but customers like cute stewardesses in mini-skirts" case?)

Moreover, there is ample evidence that such discrimination is not efficient. An enterprise that requires long hours of overwork spends big bucks training workers who then leave when they have children. The accounting firm Deloitte and Touche estimates that it costs them 150% of a professional's salary to replace her: their family-friendly policies (by their estimate) save them $14 million/year in decreased retaining and recruitment costs. An alternative way to eliminate these costs is to stop hiring women. But that has the disadvantage of being illegal.

In short, I readily admit that re-envisioning the economy is heavy lifting; paradigm shift always is. But as we face these challenges, I urge us to remember that current practices are often flawed and inefficient. When we compare the present to the future, we need to compare realities to realities, not realities to congratulatory self descriptions that too often turn out to be dreams.

Gender and Power

I have little space left to address Professor Baker's other major criticism. She argues that, even if we dismantled the carrots and the sticks that currently keep men in the ideal worker role, equal sharing of family work might not result because men may well be "'psychologically unable' to accept domestic work as their own."

Let me clarify: some men are selfish and self-centered; even if we eliminate the "ideal worker or wipeout" gender pressures that currently keep men in the ideal worker role, these men would resist an equal sharing of domestic work.

But others won't. What is scary today is what the nice guys do. Surveys suggest that many men do not want a workaholic lifestyle that leaves them "without a life" and "missing their children's childhoods." They hear their partners' demands for equal contributions to household work as just; they feel a guilt they would gladly part with. Or they feel those demands are inconsistent with their sense (often shared by their wives) that a man who is not "successful" has, in an important sense, lost his manhood. Or that those demands are inconsistent with the gender pressures on them to be successful so that their wives can live up to their ideals of hands-on motherhood. Remember that the average American father earns 70% of the family income. How much choice does he have to quit?

Feminists sorely need an alliance with those fathers who are chafing under our current definition of the ideal worker role. We may be cross with them, but no adult ever indulges every anger. We can be sympathetic, and challenging at the same time that we are exasperated. The issue, as I note in my book, is not whether we need a language of gender and power, but which one we need. To bring parents into coalition, the traditional feminist language of anger against men has important strategic limitations.

I have tried to amuse and perhaps to instruct in a short space. It is time to end this reply with a heartfelt thanks to Professor Baker, both for her sustained attention and for her ability to articulate what it is about the paradigm shifts I propose that will seem, not only to her but to others as well, most challenging and implausible.

Joan Williams is a professor of law at American University and Co-Director of the Gender, Work & Family Project. She is the author of over 35 articles on local government law, property, feminist jurisprudence, family law, employment discrimination, political theory, pragmatism, and legal history. In addition to the book reviewed here, she is co-author (with Curtis Berger) of a casebook, Property: Land Ownership and Use (Aspen Law & Business, 5th edition, 1998).

Editors' Note: Professor Williams' Unbending Gender was discussed on National Public Radio's "Talk of the Nation" (February 16, 2000) and was also reviewed in the Seattle Times (January 23, 2000), among other places.

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Opinions About History
by Neil H. Cogan

Origins of the Bill of Rights
Leonard W. Levy
New Haven, CT: Yale University Press, 1999
Cloth: $30.00
Pp. 304
ISBN: 0300078021

Origins of the Bill of Rights is the thirty-sixth book in forty-two years by Leonard W. Levy, Professor Emeritus at the Claremont Graduate School. A distinguished historian of the Constitution, he has written books about the religion, speech and self-incrimination clauses, and the Fourteenth Amendment, as well as about the concept of original intent. He has edited books about the Congress, the presidency and the judiciary. For Origins of the Fifth Amendment (Oxford University Press, 1968), Levy won the Pulitzer Prize.

In this current work, Professor Levy (now of Ashland, Oregon) surveys many of the rights within the scope of the Bill of Rights. He also examines two protections within the Constitution, the right to the writ of habeas corpus and the prohibition against bills of attainder. The survey includes experiences of the English and the Colonists that informed America's thinking about private limitations upon public power, as well as the debate in the States and the Congress about putting the limitations in writing.

As always, Professor Levy writes with erudition and charm. Reading this book is like sitting down to dinner with a good and wise friend, and delighting as he retells stories with his own particular twists and emphases. Those unfamiliar with the stories will come away much wiser.

Not Systematic & Comprehensive

There are some disappointments, however. Professor Levy says in the preface that he intended the book to be "systematic and comprehensive." Unfortunately, Origins of the Bill of Rights is neither. For example, the author does not cover the free exercise, petition, takings, counsel and bail clauses, among others. It does not cover the Tenth Amendment, a subject of active Supreme Court attention. A comprehensive book would include these protections of liberty. And, for example, sometimes Professor Levy talks about the debate in the Congress, sometimes not a matter of some moment, given the many significant differences between the House and Senate reports. A systematic book would have been more consistent.

There are other omissions that are surprising. There are no footnotes or endnotes anywhere, even to quotations. The table charting the sources of the Bill of Rights is taken from a 1957 work and is no longer accurate. The latest entry in the brief bibliography is for a 1991 book, and the bibliography omits such important books as Professor Akhil Amar's The Bill of Rights: Creation and Reconstruction (Yale University Press, 1998).

These omissions would not be troublesome were Origins of the Bill of Rights a retelling only. It is not. Professor Levy, as he has done in other books, does more than retell. He gives his opinion about the meaning of the covered clauses. Respectfully, I suggest that an opinion requires a book that is more systematic and comprehensive.

Soundness of Legal Opinions

Moreover, the opinion that Professor Levy gives, it often appears, is not only the opinion of an historian, a distinguished historian, but the opinion of a legal historian. He gives us an opinion about what the courts should say about the meaning of the clauses. There simply is insufficient discussion in the book about methods of interpretation and the role of history and intention to be satisfied with the soundness of the opinions Professor Levy gives us.

For example, the author challenges a statement by Chief Justice Rehnquist, dissenting in Wallace v. Jaffree (1985), that the Establishment Clause merely prohibits the establishment of a national religion. Professor Levy argues that the remarks of several Federalists show that "Congress was powerless, even in the absence of the First Amendment, to enact laws on the subject of religion . . . ." (81) He claims that, of the state proposals for constitutional amendments, the New Hampshire proposal "most clearly revealed the meaning of what would become the equivalent clauses of the First Amendment." (82) He contends that state proposals from other states do not reveal the meaning as well because "advocates of ratification [in those states] swallowed recommendations for amendments whose language they did not necessarily approve." (82) Examining the language of the Establishment Clause, he says: "The point is that the clauses of the First Amendment cannot be taken literally. They do not mean what they say nor say what the Framers meant." (84-85)

Professor Levy marshals much evidence. But he fails to follow a consistent method of interpretation. He fails to argue why his method is superior to those of others, who might be more concerned with language and more concerned with the remarks of other Federalists and Anti-Federalists. He is too intent on convincing us about the meaning of the Bill of Rights, and not just the about the origins of the Bill of Rights.

Despite these criticisms, I applaud Professor Levy for the project he has undertaken and his outstanding contribution to it. He has helped us in Origins of the Bill of Rights and in his other books to understand better our glorious experiment in constitutional and democratic government. In a period of apparently explosive social and economic change, his continuing contribution is needed to our understanding of the proper balance between public and private power. I hope his books and his retellings keep coming.

Neil H. Cogan is Dean of Quinnipiac College School of Law. He has taught and written about federal and state constitutional law, and has litigated First Amendment and other constitutional law issues for more than twenty-five years. He is the editor of The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (Oxford University Press, 1997), of Contexts of the Constitution (Foundation Press, 1999), and of the forthcoming Volume 1 (The Thirteenth Amendment) of The Complete Reconstruction Bill of Rights (Oxford University Press, Summer 2000).

Editors' Note: Other recently published works by Professor Levy include The Palladium of Justice: Origins of Trial by Jury (Ivan R. Dee, 1999) and A License to Steal: The Forfeiture of Property (University of North Carolina Press, 1995). Origins of the Fifth Amendment has been reprinted with a new introduction by Ivan R. Dee (1999).

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

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The Legacy of the 20th Century & the Need for an International Criminal Court
by Ronald C. Slye

Prosecuting War Crimes and Genocide: The Twentieth Century Experience
Howard Ball
Lawrence, KS: University Press of Kansas, 1999
Cloth: $35.00
Pp. 288
ISBN: 0700609776

In his sweeping survey of human atrocities during the 20th Century, Professor Howard Ball has one primary goal to impress upon us the urgent need to create an effective and permanent international criminal court supported by the United States. There are various persuasive reasons for the United States to support such a proposal. While Ball is less clear in explaining and critically analyzing those reasons, his detailed discussion of the 20th Century's gallery of atrocities from the Turkish genocide at the turn of the century to the Rwandan and Yugoslavian genocides at the end remind us of the cost of inaction.

Short on detailed analysis, Ball's book is one that nevertheless deserves to be read. He provides us with brief, but fascinating, historical vignettes of the major atrocities of the last century. Moreover, he effectively uses the voices of the participants, both victims and perpetrators, to remind us both of the incomparable capacity we as a species have for evil, and of the abiding desire we have to confront such evil with justice. While there are more detailed and nuanced books on the individual genocides Ball discusses, there are few books that bring them all together in such a concise and readable way.

"Simplified Stories" That Tell Much

Professor Ball presents his story in the form of historical narrative, which has some obvious advantages. By introducing us to successive genocides and crimes against humanity, he illuminates the depressing characteristics common to all of them. He shows us how those in power undertake sophisticated campaigns to dehumanize a group of people whether they be Armenian, Jewish, Vietnamese, Tutsi, Hutu, Muslim, Croat, Serb, or Albanian. That dehumanization provides fertile ground for even the most ordinary person to commit the most extraordinary crimes. Meanwhile, the rest of the world (yet again) sits idly by. We watch and wait, intervening (if at all) after much of the slaughter has occurred. While there are of course subtle, and not so subtle, differences among the crimes Ball examines, it is depressing to realize how close this "simplified story" comes to describing each of them.

Ball is strongest in his discussion of the first three quarters of the 20th Century the period from the Armenian to the Cambodian genocides. He is a good story-teller, interspersing his historical narrative with thought-provoking contemporary quotations, and providing powerful and harrowing photographs to illustrate the depravity of perpetrators and the humanity of victims. In addition to providing a good introduction to the Armenian and Cambodian genocides, he provides brief histories of World War I and World War II Germany, and of the efforts to hold individuals accountable for war crimes and crimes against humanity after each of those wars.

Ball does the literature of the development of international human rights law a great service by devoting a chapter to the Japanese atrocities before and during World War II. Traditionally, most surveys of the emergence of international human rights law begin with the Nazi genocide and the Nuremberg trials. References to Japanese atrocities and the Tokyo trials are usually brief, generally appended to a more detailed discussion of the Nazis and Nuremberg. Ball joins a small, but growing, group of writers who have begun to focus as much on the significance of the Tokyo trials as the Nuremberg ones. Similarly, Ball highlights one of the largest lacunae in the implementation of international human rights law the failure to hold accountable those responsible for the crimes against humanity committed in Cambodia during the 1970s.

His historical narrative is a fascinating one, reminding us of details of past atrocities that echo in our experience of more contemporary ones. For example, in his discussion of the Turkish genocidal campaign against the Armenians at the beginning of the last century, he describes Turkey's attempt to receive a list of all Armenian policies held by US insurance companies. Such a list would be useful to the state since, as Ball quotes a Turkish official confiding to a disgusted US diplomat, the Armenians "are practically all dead now and have left no heirs to collect the money," and thus the policies escheat to the state. Ball does not patronize the reader and make the explicit connection between the contemporary scandals concerning the complicity of insurance and other companies in the Nazi Holocaust, but the echo is there.

Professor Ball also revives an interesting anecdote concerning the decision of the U.S. finally to support the establishment of a war crimes tribunal after World War II, rather than Winston Churchill's proposal to execute summarily the German high command. Up to the last few months of the war, influential officials in the U.S. government were sympathetic to the British proposal. One of the turning points, according to Ball, was the publicity surrounding atrocities committed by the German army against American soldiers who had surrendered in Belgium. Rather than resulting in a call for blood vengeance, as one might expect, the knowledge of the German atrocities directed against American soldiers led the U.S. Government to shift its support from summary execution to legal process. The reason for the shift to a legal proceeding, according to Ball, was the desire of the U.S. Government to expose to the light of public opinion the details of the Nazi atrocities in other words, the belief that exposure of the truth was as important, if not more so, than retributive punishment. It is an interesting anecdote, given the current proliferation of both international criminal tribunals and truth commissions, the latter supported by some as a mechanism superior to trials for discovering and exposing the "truth" of past atrocities. Ball does not discuss the truth commission alternative that has developed alongside the international criminal tribunals. This is unfortunate, for the valuable story he tells could form the basis for a critical discussion of the advantages and disadvantages of trials and commissions for pursuing justice.

The Need for a Nuanced Approach

It is also unfortunate that Professor Ball does not meaningfully grapple with some of the significant and controversial issues he raises. He is more likely to quote from various participants one from each "side" of a particular dispute than provide us with a critical analysis of the issue in controversy. So, he quickly raises the victor's justice criticism of the Nuremberg and Tokyo trials, and just as quickly recounts the counter-arguments made by Justice Jackson and the other Allied supporters of the trials. The specter of victor's justice that hangs over the legacy of Nuremberg and Tokyo deserves a more nuanced approach. Ball also discusses, in a very cursory fashion, the U.S. decision to drop the atomic bomb on civilian targets in Japan a decision that, while still somewhat controversial among Americans, evokes even greater passion overseas. It is hard to expect Ball to go into great detail on such issues given the historical scope of his book, but one wishes that he would have provided more guidance to the reader in order spur further thought. Instead, he generally provides us with a one or two-paragraph treatment recounting different sides of the debates.

It is when Professor Ball brings his narrative up to more contemporary events the genocides in Rwanda and the former Yugoslavia, and the campaign to create a permanent international criminal court that the absence of critical analysis and inquiry is most evident. As with his description of earlier atrocities, Ball here too demonstrates his command of the narrative craft by including powerful quotations and pictures. It is in these discussions, however, that Ball's reliance on newspaper reports and the contemporary statements of politicians and pundits is most apparent. His reliance on the statement of others seems arbitrary at times, and even rises to the level of perpetuating misstatements. For example, he quotes a legal journalist who describes the International Criminal Tribunal for Rwanda as the first "genocide court." Yet, as even Ball himself notes, the Rwandan tribunal's predecessor, the tribunal established for the former Yugoslavia, also has jurisdiction over the crime of genocide, and has even indicted individuals for genocidal acts. While Ball provides a good summary of the complicated history of abuses in the former Yugoslavia reminding us of the Croatian Ustashe (the Nazi puppet regime), and the equally atrocious Serb Chetniks he inexplicably jumps thirty years from the end of World War II to the end of Tito.

First Permanent International Criminal Court

Professor Ball's last two chapters devote a considerable amount of attention to the negotiations leading up to the adoption of a treaty in Rome in 1998 to create the first permanent international criminal court. He is rightly critical of many of the U.S. positions regarding the ICC, including the ultimate fact that the U.S. joined only a handful of other countries (including Libya and Iraq) in voting against the adoption of the treaty. Although his brief description misses some of the subtleties of the American position, it does effectively show how out of step the U.S. is with the rest of the world.

In his analysis of the opponents and proponents of the ICC, Ball sets up a false dichotomy between the use of force and justice 蔓 a dichotomy that he seems to reject in other parts of the book. As he later seems to recognize in his discussion and support of the NATO operation against Yugoslavia in Kosovo in 1999, justice and force are not incompatible. The dispute over the ICC turns less on whether force should take precedence over justice, and more on whether force should be regulated and subject to an international legal process.

While Professor Ball describes some of the major debates surrounding the negotiations to create the International Criminal Court, his discussion is much more descriptive than analytic. This is unfortunate, for there are many unanswered questions, the answers of which affect the viability of the ICC. One wishes that Ball would have discussed in a more organized and critical fashion the many important topics he generally only touches upon in passing.

The Rush to Print

Finally, the book seems to suffer from an apparent desire to rush to print. The Yugoslav atrocities in Kosovo and the NATO response are mentioned both in the beginning and end of the book. While this framing of a narrative with a contemporary and ongoing crisis can be effective, it is apparent from the two treatments that one was written months before the other. The result is a discussion that at times seems out of date not only by the time we read it, but also by the time other portions of the book are completed. For example, the fact that Milosevic has been indicted by the international criminal tribunal in the Hague is a significant step in the 20th Century's attempts to hold individuals, including heads of state, accountable for their crimes. While Ball does mention this fact at some point in his later discussion of Kosovo, it is a fact that does not seem to influence his discussion of the effectiveness of the ad hoc international tribunals, nor his discussion of the controversies surrounding the West's response to the Yugoslav genocides.

It is not just in his coverage of contemporary events where the book's organization seems rushed or arbitrary. The chapter devoted to World War II in Asia and the Tokyo tribunals include sections on the codification of the Nuremberg Principles, the Genocide Convention, and the emergence of international human rights law all topics that belong either by themselves or in another chapter.

Ball's discussion of some of the important legal concepts surrounding the creation of an international criminal court seems to suffer from the same rush to print. At one point, he discusses the important concept of universal jurisdiction under international law, under which any state has jurisdiction to prosecute an individual responsible for a particular international crime. He claims that the Genocide Convention provides universal jurisdiction for those responsible for crimes against humanity and genocide. Leaving aside the fact that the Genocide Convention only covers the crime of genocide and not other crimes against humanity, it is also the case that the Convention does not provide for universal jurisdiction. In fact, Ball quotes the relevant section, which clearly states that only the state in which genocide has occurred or an international penal tribunal has jurisdiction to prosecute such crimes. While it is generally agreed today that international law otherwise does provide for such universal jurisdiction for the crime of genocide, the Genocide Convention is not a source supporting that assertion.

Noble Sentiments & Aspirations

As he approaches the end of his story, Professor Ball appears to argue that law has the power to change human nature. This is a noble sentiment shared by many of us. His embracing of this positive view of human nature is tempered by the contrast between international legal developments and the ongoing slaughters that define most of the 20th Century. As Ball notes, we are still struggling to implement the ideal embodied in Brown v. Board of Education (1954). One hopes that this new century will see us achieve both domestically and internationally the best of our noble aspirations.

While there are some shortcomings to Professor Ball's book, it would be a shame if they detracted from his important message. His book is an important accounting of the human rights record of the species over the last hundred years. As he so powerfully demonstrates, it is a record of which we should not be proud. Yet, as Ball also reminds us, it is up to us in the 21st Century to learn from the mistakes of the past. It is up to us to create institutions and policies ensuring that this century will not be as bloody and atrocious as the last.

Ronald C. Slye is an Associate Professor at Seattle University School of Law, specializing in public international law and international human rights law. He was recently a consultant in international law to the South African Truth and Reconciliation Commission, and has written numerous articles on international law and human rights.

Editors' Note: For a Books-on-Law review of related interest, see Richard Weisberg's review of Michael Stolleis's The Law Under the Swastika: Studies on Legal History in Nazi Germany (University of Chicago Press, 1998).

Books-on-Law published a review of Professor Ball's A Defiant Life: Thurgood Marshall and the Persistence of Racism in America (Crown Books, 1998). Moreover, Professor Ball reviewed Scott Gerber's First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999) for Books-on-Law.

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

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

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

© Ronald K.L. Collins and David Skover, 2000.