• Bamberger, Michael M.  Reckless Legislation: How Lawmakers Ignore the Constitution.  Review by Robert S. Peck.

• Bandes, Susan A., editor.  the passions of law. Review by Lynne Henderson.

• Gottlieb, Stephen E.  Morality Imposed: The Rehnquist Court and the State of Liberty in America. Review by Eric J. Segall.  Reply by Stephen E. Gottlieb.

• Meiners, Roger E. & Andrew P. Morriss, editors.  The Common Law and the Environment: Rethinking the Statutory Basis for Modern Environmental Law. Review by Robert R. M. Verchick.  Reply by Andrew P. Morriss & Roger E. Meiners.

• Mink, Gwendolyn. Hostile Environment: The Political Betrayal of Sexually Harassed Women. Review by Joan Kennedy Taylor.

• Talkback

Environmental Law, The Pre-quel
by Robert R. M. Verchick

The Common Law and the Environment: Rethinking the Statutory Basis for Modern Environmental Law
Roger E. Meiners & Andrew P. Morriss, editors
Lanham, MD: Rowman & Littlefield Publishers, 2000
Paper: $24.95
Pp. 279
ISBN: 0847697096

Environmental law's "second generation" has debuted, but it looks more like the pre-quel than the sequel.  For those who have not followed our story closely, in the years B.E.D. (Before Earth Day), the dark forces of industrial and agricultural pollution sullied the land, leading to smoggy cities, burning rivers, and toxic suburbs.  The reactive powers of the market and the common law appeared to be no match.  So, in the 1970s, a federal fleet of powerful acronyms – NEPA, RCRA, CERCLA, and many others – were dispatched to clean up the country's air, land, and water.  Thirty years later and despite much success, frustration with the fleet's inefficiency and gratuitous complexity grew.  A group of brainy economists and politicians proposed a new, leaner, "greener" generation of environmental law, this time based on . . . the reactive powers of the market and the common law.

Roger Meiners and Andrew Morriss's book, The Common Law and the Environment, joins the trumpet call of this next generation.  Meiners and Morriss offer a collection of essays that argue in various ways for a rollback of federal environmental regulation and a revitalization of state control, market principles, and the more flexible common law.  The debate is important.  The federal government's rule-based approach to environmental protection is today being torcqued and tweaked by those inside and outside of Washington's Beltway.  The Environmental Protection Agency's recent "Project XL," for instance, now allows, under certain conditions, polluters to replace traditional "command and control" requirements with rules of their own making, taking into account risk trade-offs and cost savings.  Just exactly how – or if – the current nostalgia for small government can translate into environmental protection remains to be seen.

Unfortunately, The Common Law and the Environment, sheds only moderate light on the topic.  The book's contributors, who include such property-rights advocates as Henry N. Butler, Jonathan R. Macey, David Shoenbrod, and Bruce Yandle, too often avoid the hard issues, preferring pro-market diatribe to honest discussion.  While there are some interesting insights and statistical analyses to be discovered, readers are advised to keep their ideologue-detectors cranked to "high."

A Box of Their Own

According to the editors' acknowledgments and introduction, The Common Law and the Environment is supposed to be about thinking – as many business professionals now say – outside the box.  The collection of essays does follow from an economic forum organized by the conservative Political Economy Research Center (PERC), based in Bozeman, Montana.  But the editors stress that PERC arranged the event for "purely academic" reasons and had no "particular expected outcomes" in mind.  The published essays intend to question regulatory orthodoxy and to show how common law principles can "allow ordinary people to play key roles in protecting their environment." (xiv)  Unfortunately, the essays' one-track thesis of  "market is best" traps the contributors in a box of their own. 

The essays are organized into four sections, titled "Reviving the Common Law," "The Environment under the Common Law," "The Institutions of the Common Law," and "Perspectives on the Shift away from the Common Law."  In the first section, David Shoenbrod takes the current administrative regime to task and argues for a revival of common law principles within local legislation.

The second section offers empirical research and case studies that purport to show how well the common law can handle environmental issues with little or no statutory help.  Indur M. Goklany "string[s] together data" from various environmental reports to argue that air pollution levels would have decreased substantially without the Clean Air Act and EPA's busybodying. (28)  Roger E. Meiners, Stacey Thomas, and Bruce Yandle in their essay deconstruct the oft-cited story of Cleveland's Great River Fire in the summer of '69, recasting the common law as hero, not villain.  Roger Bate recounts a campaign of British anglers who successfully used a strategy of common law challenges to protect their country's rivers.  For me, these narratives make up the most interesting part of the book, although as I argue later, the suggested "lessons" to be learned do not always follow.

The third section offers historical and theoretical contexts for the common law debate, along with attempts to link it with modern issues.  David Schmidtz uses historical case studies, à la Robert Ellickson, to show how property rights-based regimes can be used to preserve land.  Andrew Morriss tells how the 19^th Century common law in the United States escaped the jaws of civil-code reformers.  Jonathan Macey and Henry Butler argue for a "Matching Principle" that would help decentralize environmental law.

The final section asks how our traditional legal system could have in the 1970s veered so far off the common law track.  Todd J. Zywicki argues it was a confluence of interests shared by Big Business and Big Activism.  Jason S. Johnson believes the administrative state was pushed by those who would have otherwise lost in judicial balancing tests.  In the book's final essay, Jeffrey J. Rachlinski partly attributes centralized federal standards to the efforts of  large polluters who were seeking safe harbors from tort liability.

Throughout the writings, everyone basically agrees on two things: the free market is good and the environmental regulatory state is bad.  Occasional differences do crop up.  For some the regulatory state is loathsome, while to others it is merely "phony" or "impossible to comprehend," but everyone is on the same page of this requiem.  David Schoenbrod, a law professor and a scholar at the Cato Institute, puts it succinctly when he says that modern administrative law "has done a terrible job with pollution control." (3)  The essays offer just enough trashing of the environmental regulatory scheme to remind readers of what they so often miss on public radio.  The administrative state is the product of Ivy-league do-gooders who did not understand the real world.  It is unabashed, undemocratic, and unpredictable.  Worse, it is overly intellectual and elitist.  Schoenbrod even quotes Yale scientist David Gelertner's assertion that today's intellectual elite (and you know who you are) absolutely "loathes the public." (7)  That all of this comes from critics whose names end in "Ph.D." should give us pause.  But let's get to the arguments.

Has the Common Law Lost Its Mojo?

The contributors to this book argue that the common law has been marginalized and weakened by the more powerful administrative state.  Essentially, the essays recommend that we either ditch the federal statutes and rely mainly on common law litigation, or ditch the federal statutes and replace them with a network of diverse state and local laws.  But although the writers purport to examine the common law honestly to improve and expand what it does best, they ultimately prove unwilling to pry open the hood of current tort law and give it the diagnostic treatment it so deserves.

In contrast to their treatment of the regulatory state, the contributors imbue the common law with almost supernatural healing powers.  Andrew Morriss argues that common law judges are better because they are more likely to represent the standards of the community and to act out of "experience," rather than "the force of their intellect."  They are not hobbled by each new scientific theory because lawyers have economic incentives to make the record clear, concise, and relevant.  For Goklany, common law judges are capable, almost single-handedly, of balancing the needs of society against the costs to individuals (and without all those late-night meetings and comment periods).  Common law judges are experimental.  They are incremental.  And, oh yes, they are endlessly, tirelessly efficient.

Thus, Rachlinsky would convert EPA's air standards to recommendations and let polluters decide for themselves whether it makes more sense to pay to meet the recommendations or be sued.  Morriss goes even further, suggesting that Congress should have dropped the agency concept years ago and left stewardship to the common law completely.  "Fifty state court systems continuously processing environmental cases . . .," he beams, "may well have an advantage over one legislative body . . . considering environmental subjects." (154)

I will concede that with perfectly informed citizens, omniscient experts, and frictionless courts, tort law tends toward efficiency.  But we do not live on Planet Coase.  In our world, the common law has extraordinary limitations for anyone interested in broad-scale environmental protection. First, polluted populations (many of them poor) have to find lawyers to take their cases.  To take advantage of economies of scale, they may have to form plaintiff classes, an option disfavored by many courts in the environmental context because of difficulties in establishing commonality and procedural practicality.  And because contingency fee rules do not adequately reward a lawyer's risk in class action cases, our hopeful plaintiffs may have trouble convincing their lawyer to press toward trial.

Then one must establish the facts.  That means retaining expensive experts and jumping the very significant hurdles of proving harm and direct causation.  On the blackboard, Morriss's might show that "[f]actual circumstances produce incentives for parties to develop [the] record."  But the reality is that the financial constraints of many plaintiffs' lawyers produce a counter-incentive to limit factual inquires to that which is either affordable or a "sure thing."  An example of factual oversight occurs in the famous Boomer v. Atlantic Cement (N.Y., 1970), a case Meiners, Thomas, and Yandle cite in support of their view that courts can adequately weigh narrow technical issues.  There, a New York court refused to enjoin a polluting cement plant, under the false assumption that no affordable abatement technology existed at the time.  As Zygmundt Plater has pointed out, neither the plaintiff's lawyer nor the judge seemed aware that the low-technology "bag house" was already commonly used in the cement industry to avoid the exact problem at issue.

Even assuming favorable facts, some common law judges still do not consider many environmental disasters to meet the definitions of nuisance as a matter of law.  The state reporters are full of cases, old and new, in which groundwater contamination, leaking landfills, and breached holding ponds were not considered nuisances.

Finally, the common law is not very effective against large, diffuse ecological threats, such as acid rain, that demand more organized, prevention-based strategies.  In his discussion of British anglers, Roger Bate seems to acknowledge the point, but hardly loses sleep over it.  Bates notes, for instance, that Britain's angler activists occasionally review "the latest scares (acid rain, pesticide, global warming)," but usually treat such issues "sensibly" by not addressing them.  If it turns out that acid rain, pesticides, and global warming really are a phantom menace, chalk one up for the common law.  But, if it turns out (as most scientists conclude) that there really are grounds for these latest scares – well, we can be thankful that the EPA is not run by British fisherfolk.  For the most part the contributors to The Common Law and the Environment barely mention these many practical concerns of the common law and show little interest in making courts more accessible or responsive to plaintiffs' needs.  So much for giving "real people" a say in their government's environmental policy.

A Race to the Bottom of What?

Debates about devolution inevitably lead to debates about the so-called "race-to-the-bottom."  The term refers to the progressive relaxation of environmental rules that sometimes occurs when multiple states compete to attract industry.  In the absence of uniform interstate standards (as expressed either in state case law or state statute), a race-to-the-bottom becomes at least theoretically possible.  Because no one wants to be blamed for starting a race-to-the-bottom, those for and against devolution spend a lot of time arguing about the circumstances under which it does and does not occur.  The problem with these debates is that often the participants do not clearly say what it is these states are (or are not) racing to the bottom of.  This confusion, in fact, occurs in The Common Law and the Environment.

One can imagine at least two kinds of ladders a competitive state might be prepared to race down: the Ladder of Economic Efficiency and the Ladder of Environmental Quality.  When Macey and Butler suggest that non-uniform standards among states would not cause a race to the bottom, they do not mean that competitive states will lower their standards and allow more pollution.  On the contrary, they expect that they will and would consider the decline "beneficial," as long as the costs of added pollution and the benefits of added industry were borne locally. (167)  What Macey and Butler do mean is that states will not lower their standards to such a degree that the decline becomes economically inefficient.  That is, states would never lower their standards to such a degree that the benefits of added industry were outweighed by the costs of added pollution.  Here the authors rely on the oft-cited theoretical work of Richard Revesz.

The analysis has two problems, one theoretical and one practical. First, the reasoning assumes that the only direct purpose of environmental regulation is to internalize externalities and to make resource consumption as efficient as possible (meaning that the aggregate benefits of resource consumption are not outweighed by the aggregate costs).  Left out of this justification are minimum health and safety standards for all or most citizens, concerns for distributional fairness, concerns for future generations, concern for environmental benefits that cannot be monetized, and concern for nature as an independent value.  When we are told that 80% of the population favors environmental protection, we know they are thinking of more than internalizing externalized costs.

To their credit, Macey and Butler (unlike other contributors) do acknowledge this point, but they argue that such "moral" concerns are already weighed in the local legislative process.  If moral considerations lose in the legislature, it is only because they are not worth as much to voters when compared to the financial benefits of development.  Unfortunately, this answer does not adequately value the concerns of unfair distribution of harms (which, although important, may not rank high on the local majority's balance sheet) and the moral concerns of citizens located outside the state.  In addition, local industry may exercise undue power at the local level.

The second problem is that even if we accept Macey and Butler's view that efficiency comes first, empirical data gathered by Kirsten Engel suggest that, in the absence of interstate standards, states may indeed slide down the Ladder of Economic Efficiency.  This is because states may misjudge the costs and benefits of new industry, industrial firms wield excessive power in the marketplace, and competing states end up cheating themselves out of optimal results in ways that suggest a Prisoner's Dilemma.  By citing Revesz's theoretical work to argue against a race to the bottom and avoiding Engel's empiricist response, Macey and Butler miss an important opportunity to test the principles of federalism in a more challenging, real-world context.

Goklany also seeks to allay fears of a race-to-the-bottom in his endorsement of more local control in implementing air standards.  In contrast to Macey and Butler, Goklany (in at least part of his essay) is referring to a race to the bottom of environmental quality.  For environmentalists like me, who believe there is more to protect in the world than efficiency, assurances of stable quality standards are appealing.  But it is unlikely Goklany can deliver.  Whatever Goklany's extrapolations of past aggregate pollution levels prove, they do not show that before the 1970s individual states avoided races to the bottom of environmental quality.  The general premise that more affluent economies produce more environmental protection is probably true (although research shows our brave new knowledge economy is not as eco-friendly as we might think).  But that observation does not suggest that states won't "experiment" by selling away their citizens' health in the meantime.

Anyone in doubt need only visit Cancer Alley, Lousiana, where, thanks to Big Oil and inactive courts, impoverished African Americans breath over 600 times the national average of airborne toxins.  And next door, in the Lone Star Laboratory of Texas, Governor Bush five years ago pioneered a "new" air strategy which entailed gutting the state's vehicle-emissions testing program and raiding public environmental funds for $130 million to escape the state's contract with an emissions technology provider.  Today, Texas air is, of course, the most polluted in the country. One day, a strong Texan economy might ride in and straighten things out, but don't bet the ranch just yet. 

You Say You Want a Devolution?

Almost everyone understands that our current environmental regulatory program has problems and needs improvement.  It is too complicated in parts, and it does sometimes choose courses that are inefficient or ineffective.  But there is little reason to believe that a devolution to the common law (either alone or in conjunction with state legislation) can provide the environmental protection that most Americans say they want.  Certainly, The Common Law and the Environment does not successfully make this case.  The past need not be epilogue.

Robert R. M. Verchick is Associate Professor of Law at the University of Missouri, Kansas City, where he writes and teaches about environmental law and environmental justice.  He recently represented the Sierra Club (Thomas Hart Benton Group) as amicus curiae in a federal class-action suit against Amoco Oil Company.

On the theory that any publicity that spells your name correctly is good publicity, we're thrilled with Professor Robert Verchick's review of the volume we edited, The Common Law and The Environment (please order your copy today).  He did, indeed, spell both our names right.  And since one of us regularly has his name misspelled, that's no small accomplishment.

Going Downhill Fast

Things go downhill pretty fast after that, however, because Professor Verchick follows the tried and true formula of ideological mud-slinging rather than engaging in pesky stuff such as discussing evidence on the merits.  First, the sponsor of the book and the conference that preceded its publication, the Political Economy Research Center in Bozeman, Montana with which we are both associated, is not a "conservative" organization.  Indeed, a real criticism of the list of authors and conference attendees would be that we didn't invite any scholars who would call themselves conservative.  (Several "green" environmental law scholars attended the conference and the papers benefited from their comments.)  We invite readers curious about PERC, and especially its research, to visit its website.

Second, Professor Verchick dismisses a number of the authors as "property-rights advocates."  It is clear from the tone of the review that Professor Verchick was appalled to learn that some of the authors actually think the central institution of the American legal system matters.  We were surprised, however, to find someone like David Shoenbrod summed up as a "property-rights advocate."  Schoenbrod's background includes helping to found the Natural Resources Defense Council and conducting major litigation for it.  That's just the sort of information that might help a reader assess the merits of Schoenbrod's view of the common law's potential.  But, of course, that wouldn't fit Professor Verchick's ideological agenda.

Third, it is clear that Professor Verchick doesn't care much for "economic efficiency."  He expounds at length on the point, accusing a number of the authors of spending too much time arguing for efficiency as a goal.  Readers of the review are thus likely to come away with the impression that a major theme of the book is promoting some vision of economic efficiency.  This is simply false.  Economic arguments are not the same as efficiency arguments, and the authors in our book spend relatively little time discussing efficiency questions.  There are lots of economic arguments presented, but these have little to do with the simple-minded "efficiency" straw man Professor Verchick discusses.

Failing to Address the Evidence

The major problem with the review, however, is its failure to address the evidence presented in the book about the relative records of statutory and common law approaches.  Here are just a few of the bits of evidence Professor Verchick fails to address:

• Air quality in the United States, on every measurable scientific criterion, was improving long before the federal regulation of air pollution. (Goklany)

• The advent of federal air pollution regulation did not change the shape of the trend toward improving air quality, suggesting that federal regulation made little difference. (Goklany)

• A relatively small number of English anglers have played an important role in improving the quality of England's rivers and, thereby, protecting fish through a voluntary organization that brings common-law actions against polluters. (Bate)

• The infamous 1960s burning of the Cuyahoga River that prompted the federal Clean Water Act was the result of the failure of a statutory regime that classified the river as an industrial river and blocked private attempts at forcing a clean up. (Meiners, Thomas, and Yandle)

• Environmental pressure groups, like the Sierra Club with which Professor Verchick is associated, behave just like other political interest groups in seeking special favors in legislation and regulations. (Zywicki)

What does Professor Verchick have to say about this evidence?  Not much.  Roger Bate's chapter on the English experience cleaning up rivers with common-law suits is dismissed because it doesn't address acid rain or global warming. True, nor does it address the problems of the European Union's common agricultural policy either – and that's just about as relevant a criticism.  We think most environmental problems need to be tackled individually and at the source: identify the reason for the problem and address that by holding actual polluters responsible for violating property rights.  If property rights are not providing much environmental protection, that is also worth exploring, rather than assuming Al Gore or some other member of the best and the brightest will rush to the rescue in an electric car.  (And, we should note, the Clean Air Act hasn't done such a hot job of dealing with acid rain and global warming either.)

What about Goklany's evidence, the most comprehensive review of historical air-quality data undertaken to date?  Verchick doesn't have much to say about that either.  The truth about the "burning" of the Cuyahoga River?  Silence again.

Instead of dealing with the evidence, Professor Verchick raises some rather peculiar points.  Unrelated to anything in the book, he blasts Texas for having "the most polluted" air in the country, and he hopes that a "strong Texas economy might ride in and straighten things out."  (Admittedly, one of us lives in Texas and the other went to school there, so perhaps that's the connection.)

The State of the Environment in Texas

Fortunately, Professor Verchick's hopes have been realized!  After all, economic progress means cleaner environments, and the economy in Texas has been doing quite well.  According to EPA data, from 1995 to 1997, sulfur-dioxide emissions in Texas fell by 17.1%, while emissions for the nation as a whole increased by 11.2%.  Similarly, nitrogen-oxide emissions in Texas fell by 23.6% while rising 8.2% nationally (see "The Texas Index of Leading Environmental Indicators 2000").  Indeed, Texas has been outperforming the rest of the nation in air pollution reduction in recent years, except for particulate emissions.  Similarly, the Toxics Release Inventory shows a 44% decline in releases in Texas from 1988‑1997.

Should we then cheer Governor Bush and condemn the Clinton/Gore administration?  Professor Verchick doesn't.  But doesn't the data show that Bush cleaned up what must have been an environmental mess inherited from his Democrat predecessor, liberal darling Ann Richards?  To attribute such changes to personalities is a large part of environmental rhetoric today – platitudes and reliance on statements about who "cares" the most, rather than hard‑nosed analysis of the law and the scientific evidence. 

We doubt either that Ann Richards is to blame for bad air or that George W. Bush is to be hailed for the large reductions in air pollution in Texas in the last several years.  Why?  Because the forces at work at more complicated than sound bites and personalities, as the authors in our book attempt to investigate.  For example, as any law professor who actually checked the structure of Texas' government would know, the governor of Texas has almost no direct say on air pollution regulation (or much else).  Finally, Texas is part of the United States (in our atlas, anyway), and so covered by the federal Clean Air Act. Those pesky facts again!

A Quick Response to the Theories of the "Environmental Justice" Movement

Professor Verchick also makes what he obviously thinks is his killer point: what about Louisiana?  We must admit, this was an unanticipated challenge, since, because of a unique cultural heritage that includes a civil code, Louisiana has about as little claim to having a common-law legal system as anyplace in the United States.  Nonetheless, we're game to try to respond.  The issue, here, is our purported failure to address poor air quality caused by "Big Oil and inactive courts" and its impact on "impoverished African Americans."  This charge is undoubtedly related to Professor Verchick's claimed association with the "environmental justice" movement, because it certainly isn't related to anything in the book.

The merits of the theories of the "environmental justice" movement weren't addressed in our book but here's a quick response: Professor Verchick's much-vaunted federal pollution-control legislation is a significant part of the process of locating facilities that produce environmental externalities, and has been for more than thirty years.  It's hard to imagine how the common law, rather than federal statutes, is shown to be inadequate by the failure of those statutes to produce an appropriate distribution of such facilities.  Further, the available evidence suggests the "environmental justice" movement has little to do with the environment or justice.  This isn't something anyone takes on in our book, but in The Promise and Peril of Environmental Justice (1998), a book published by the decidedly non‑conservative Brookings Institution Press, Christopher Foreman finds little empirical support for the notion of environmental racism.  (See this website for a review of this important book.)

But what about Louisiana?  As was the case with Texas, a quick check of our atlas showed Louisiana is definitely part of the United States!  Chalk up another success story for the Sierra Club and the Clean Air Act!  But, wait – people in Louisiana are still breathing air with "600 times the national average of airborne toxins."  (Is anyone alive there?)  We guess thirty years hasn't been enough time for federal regulations and Sierra Club citizen suits under the Clean Air Act to whip that problem. They'll probably get to it Real Soon Now.  Moreover, if the problem in Louisiana is really "Big Oil's" influence (and Todd Zywicki explains in his chapter in the book that such influence really does exist), we have a sneaking suspicion that the branch of the government most likely to be influenced by "Big Oil" isn't the judiciary.  Indeed, "Big Oil" might just have better representation in Washington, D.C., than all those impoverished people in Louisiana do, and so "Big Oil" just might have more influence over decisions made by federal regulators than it does over local bodies close to the affected citizens.  If that's so, does bumping stuff up to the federal level clean up the air or facilitate regulatory capture?

Most importantly, the "environmental justice" crowd, of which Professor Verchick says he is a part, misses the real story of markets and the environment.  As per-capita income rises, people become more interested in environmental protection.  Why?  Because poor people worried about their next meal usually aren't worried about getting sick in twenty years or saving endangered species.  It is only in a country made rich by markets that people can afford to engage in such high-minded battles.

Professor Verchick winds up his review with a clever play on a line from the Beatles' song Revolution 1.  Like much of his review, it's cute.  Unfortunately, also like much of his review, it is entirely beside the point.  Indeed, he had listened to the song more carefully than he read our book, he'd have discovered that Revolution was John Lennon's answer to the 1960s version of people like him.  Oh well, you know, we all want to change the world  .  .  .  .

Andrew Morriss is Professor of Law and Associate Professor of Economics at Case Western Reserve University, Cleveland, Ohio.  Roger Meiners is Professor of Law and Economics at the University of Texas at Arlington.  Both are Senior Associates at the Political Economy Research Center, Bozeman, Montana.

Hostile Environment: The Political Betrayal of Sexually Harassed Women
Gwendolyn Mink
Ithaca, NY: Cornell University Press, 2000
Cloth: $21.95
Pp. x, 150
ISBN: 0801436443

The furor over Paula Jones's sexual harassment suit against President Bill Clinton caused many people to reevaluate their views of what sexual harassment law is and should be.

Gwendolyn Mink, a professor of political science at U.C. Santa Cruz, is distressed by much of this re-evaluation, and particularly with the role that prominent feminists played in defending the president, and has written this book to meet two goals: to "demystify the law by telling the story of where it came from and what it aims to do" and to answer "the insidious blows" (viii) that the feminists in question have dealt to the rights of sexual harassment plaintiffs.

Professor Mink's thesis: although it has been established that sexual harassment calls for legal redress, complaining targets face such a "regime of disbelief" (77, 115) that there are negative personal consequences for any woman who makes a legal complaint.  While the issue, Mink says, is that women should be fully heard, she often seems to imply that their unsupported word should be believed – saying, for instance, that the standard that the offense should seem harassing to a reasonable person "does insult a woman's knowledge of her own harm." (77)

Indeed, her analysis of the first Supreme Court decision in this area, Meritor Savings Bank v. Vinson (1986), suggests that the Court should have relied on women's feelings by holding "that if a woman complains about it, the sexual conduct was by definition offensive, and if she was offended by it, then she was harassed.  A complainant may have to cross other thresholds to gain legal remedies for her harassment  .  .  .  but the complaint itself would dispel questions about whether she suffered harassment in the first place.  The Supreme Court did not adopt this approach in Meritor." (69)

The Personal as Political

The book is in four chapters, the first of which personalizes the issue by describing Professor Mink's own experiences in graduate school at Cornell during the late seventies, a time when she sometimes felt belittled by students and teachers, not only as one of the few women in her graduate field but also because she was half-Japanese.  (Although it is nowhere stated explicitly, Mink is clearly the daughter of Congresswoman Patsy Mink (D.-Hawaii), who occasionally appears in a footnote.)  During her first year, a man whom she identifies only as a "senior faculty member" and by an alias made passes at her at a department party, made racial slurs when she refused a date, and some years later gave her a poor but passing grade on her comprehensive exam in his field – after hostilely showing that he remembered their previous encounter.  Later she found two other students had similar experiences, but only with the help of Professor Theodore Lowi (to whom this book is dedicated) was a departmental letter of apology finally written to all of them.

Mink felt belittled and disbelieved by most of the people she talked to during the years this took.  She sees her experience as illustrating the damage that can be done to reputation and feelings by such reactions, and says it led her to take no action when sexually assaulted by a superior a few years later.

The rest of the chapter discusses the development of the concept of sexual harassment – moving from a May 4, 1975, rally on behalf of Carmita Wood (a former lab worker who was denied unemployment benefits because she quit her job to avoid sexual advances) through the acceptance of the elements set forth by the Equal Employment Opportunity Commission (EEOC) in 1980 in describing two forms of sexual harassment, "harassment that makes submission a condition of employment (quid pro quo) and harassment that creates offensive and intimidating employment conditions (hostile environment)." (29)

How the Law Developed

In chapter 2, Professor Mink discusses the actual development of the law.  From 1974 to1980, the courts struggled toward the view that quid pro quo sexual harassment was indeed a form of the sexual discrimination forbidden by Title VII.  The first four cases to assert this idea – Barnes v. Train (1974), Corne v. Bausch & Lomb, Inc. (1975), Miller v. Bank of America (1976), and Tompkins v. Public Service Electric & Gas Co. (1976) – were all lost in the lower courts on three grounds: that sexual matters are private, that they involve both genders, and that they were not employment practices governed by Title VII.  One 1976 appellate case, Williams v. Saxbe, provided a new analysis, however: that when "sexual favors were demanded of women and not men (or vice versa) [it] turned sexual extortion into sex discrimination" if there were consequential objective economic harm. (47-48)  The Williams Court also found that the company was  liable because the supervisor used company-delegated power to retaliate.  Barnes, Corne, Tompkins, and Miller were appealed, and all won on appeal.

Hostile environment harassment (which Mink says makes up 90% of sexual harassment) was harder to establish, as it relies on a concept of subjective harm.  There were two precedents utilized – the quid pro quo cases above, and a 10-year record (1969-1979) of EEOC decisions in race-based complaints of workplace intimidation, one of which had been affirmed by a federal appeals court (Rogers v. EEOC [1972]).

The EEOC

Guidelines delineating sexual harassment as a form of sex discrimination were issued in 1980; soon after that, the D.C. Circuit Court of Appeals in Bundy v. Jackson (1982) ruled that, as in cases of racism, practices that create an intimidating or humiliating environment alter the "terms and conditions of employment" in a discriminatory manner forbidden by Title VII.  Four years later, the Supreme Court also incorporated these racism precedents and the EEOC Guidelines in its decision in Meritor.  Meritor declared that psychological harm as well as economic harm was proof of harassment.

The next Supreme Court case, Harris v. Forklift Systems (1993), held that the psychological harm required stopped short of a nervous breakdown – repeated, severe, or pervasive behavior that a reasonable person would find to be harassing was all that was required.  Two cases in 1998 extended employer liability in hostile environment cases.

Chapter 3 is primarily an analysis of two pieces of legislation – the Civil Rights Act (CRA) of 1991, and the Violence Against Women Act (VAWA) of 1994.  Mink discusses the CRA's reinstatement of the disparate-impact test for discrimination set forth in Griggs v. Duke Power Co. (1971), which had been watered down by a series of Supreme Court decisions.  She also tells us about the monetary remedies for intentional discrimination (including sexual harassment) that were proposed as a needed incentive to women to come forward and complain, as well as an incentive to employers "to prevent and stop sexual harassment and other forms of sex discrimination." (96)

After the CRA's passage was sparked by the furor over the treatment of Anita Hill by Congress, EEOC complaints increased and other sexual harassment scandals became public, such as Tailhook and Robert Packwood's behavior.  But, Mink recounts, Meritor's test of sexual behavior as being manifestly unwelcome "created a loophole" (103) that was an incentive to women not to use the law, because defendants tried to show that women's sexual history indicated they could not have been offended.

This was changed by the 1994 VAWA, which introduced new evidence rules, including one that made a sexual harassment plaintiff's sex life generally inadmissible, thus extending the logic of the federal criminal rape shield rule (Evidence Rule 412) to civil sex offenses.  Evidence Rule 415 allows evidence of prior sexual assault in civil suits, which Mink admits has been attacked as "mandating highly prejudicial 'propensity' evidence that undermines a defendant's rights" (108), but assumes that courts have been careful in applying it.  She deplores the fact that the VAWA's constitutionality has been challenged, and fears that the rights of women in general are unpopular and therefore in jeopardy ("our employment, education, and gender violence rights depend on favorable political majorities"). (113)

Have Feminists Hurt Harassed Women?

Chapter 4 brings the story back to President Clinton's woes and the reactions to them.  Professor Mink carefully details Jones's allegations, the legal steps taken, the breaking of the Monica Lewinsky stories, the White House defense campaign, the reactions of leading feminists, and Judge Susan Webber Wright's dismissal of the case – and Mink provides, as well, her own disagreements with that ruling.  Feminists, she says, "propelled public discussion of sexual harassment backwards to the 1970s, when courts insisted that sexual harassment was about sex, not about inequality." (135)  Mink, who has written a book on welfare, is especially scornful of the idea that Clinton was defended as having done "a good job for women," since welfare reform was "his principle women's policy" and it "tramples poor single mother's rights, including their privacy rights, enforcing their inequality as citizens and as women."  (137)

Professor Mink's conclusion is that such apostasy has made possible a rollback of the law.  Now, it will be harder to "correct" the 1998 Supreme Court's decision in Gebser v. Lago Vista Independent School District through an amendment to Title IX.  (Gebser established that harassed individuals in schools may not sue the school district in which the incidents took place.)  Furthermore, the law is less likely to be responsive to poor women.  The end of the book repeats the idea that has appeared throughout: "Sexual harassment provisions are useless to women whose sexual harassment is not believed.  And they are useless to women who will not tell of their harassment because the personal and political costs of doing so remain extreme." (140)

Missing Arguments

What is missing from Professor Mink's brief is a real statement of the criticisms that have been mounted against sexual harassment law.  She pays lip service to some of them – the civil libertarian's concerns about the new rules of evidence, the potential for false charges and frivolous suits brought on by the prospect of monetary damages, the rules some employers have put in place to curtail dating, and the chilling effect that strictures on sexual behavior may have on male/female relationships.  But then, Mink either ignores these issues thereafter or briefly dismisses them with a contrary assertion.  The issue of free speech, for instance, is disposed of in two sentences: "Many key issues await resolution in future litigation, however.  For example, are there First Amendment limitations on what sexual harassment law may prohibit?" (41)

This points to what I see as a key issue. Hostile Environment tries to give us the prevailing feminist legal theory of sexual harassment without Catharine MacKinnon.  MacKinnon has claimed credit for creating sexual harassment law.  Her book Sexual Harassment of Working Women (1979) was circulated in draft to a number of lawyers working on the early quid pro quo cases, and she herself was co-counsel on Meritor.  It is MacKinnon's grand scheme – that the law must be used positively to help women, and that the concept of equality before the law must be challenged as fatally flawed because law has been skewed historically to preserve male domination over women through a system of forced sex – that underlies her view of how discrimination law should be used to punish sexual speech.  Mink uses language that recalls MacKinnon's views ("Until the political environment supports women's use of sexual harassment law, men's everyday use of sex to enforce women's inequality will continue." [77]), but leaves MacKinnon's theory to be implied, not stated.

Not all feminists agree with MacKinnon's view that our overwhelming issue is the sexual subordination of women to men.  Some feminists are concerned about censorship and the impact of many sexual harassment decisions and policies on freedom of speech – positions that have been developed by First Amendment experts such as Professors Kingsley Browne of Wayne State University Law School, Eugene Volokh of UCLA Law School, and Nadine Strossen of New York Law School (and National President of the ACLU).  Yes, this also implies concern with the rights of accused men.  A '90s feminist group, Feminists for Free Expression, suggested a standard for harassment in its amicus brief in Harris v. Forklift that severely disagreed with the principle of reliance on simple offensiveness endorsed by Mink: "Title VII liability should be imposed only for a pattern or practice of speech or conduct targeting a specific employee or employees which a reasonable person would experience as harassment, and which has demonstrably hindered the employee in his or her job performance."

Professor Mink does a good job of demystifying the law.  Still, it is not quite clear how far she would go to secure the rights of sexual harassment plaintiffs.  Perhaps, some of the feminists whose speaking out has caused her so much concern were merely noticing that some approaches to sexual harassment law were not what they had originally understood the law to be, but were becoming punishment for male sexuality itself.

Joan Kennedy Taylor is a board member and former co-chair of the legal committee of Feminists for Free Expression.  She is the author of  "Sexual Harassment and the First Amendment," CommLaw Conspectus, v. 4 n. 2(1996) and What to Do When You Don't Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment (New York University Press, 1999).

Editors' Note:  For a Books-on-Law review of related interest, see Christine A. Littleton's review of Heterophobia: Sexual Harassment and the Future of Feminism (1998) and the author's reply.

Reckless Legislation: How Lawmakers Ignore the Constitution
Michael A. Bamberger
New Brunswick, NJ: Rutgers University Press, 2000
Cloth: $32.00
Pp. ix, 224
ISBN: 0813527325

Some years ago, as Congress was in another of its periodic fits to address the campaign-finance issue, I was asked to brief a number of Senators on the relevant First Amendment case law.  After running through the 1976 Buckley decision and its progeny, several of these Senators returned to the floor to participate in the ongoing debate on the Clinton administration's proposed bill.  As I watched on C-SPAN, I was surprised to see one Senator from the briefing stand up and offer an amendment that indisputably violated the Supreme Court's teachings.

I confronted the Senator as he stepped off the floor, asking whether anything I had said made sense to him.  His reply surprised even as jaded a veteran of the legislative wars as I am: "It did.  Now my constituents will believe I am even more for campaign finance reform than anyone else, given how far my proposal goes.  Should it pass, though, I will never have to live under it because someone like you will have the courts invalidate it."

Such conduct is at the center of First Amendment litigator Michael A. Bamberger's beef.  Legislators typically take an oath to uphold and defend the Constitution, only to jettison those high ideals when faced with an opportunity to pass politically desirable legislation or a need to position themselves against future political attack.  In Reckless Legislation, Bamberger asserts that such irresponsible conduct is harmful to our system of government and, in particular, compromises our courts when judges are forced to strike down blatantly unconstitutional legislation enacted because it commands popular sentiment.

Bamberger believes that legislators should know and act better.  Given the resources available to them in terms of staff, counsel, expert government agencies, and the authority to conduct full-fledged public hearings, he asserts that the phenomenon should be a rare one, rather than a common one.  He has no solution to the ill he tackles, but writes this book as a plea that even he must realize is likely to be ignored in today's toxic political environment.

The Quest for More Sure-Footed Constitutional Grounding

The inspiration for the book is what Bamberger describes as "an increasing willingness by both state and federal legislators, particularly when dealing with issues that have raised political emotions and thus carry with them risks to political careers, to pass laws disregarding constitutional violations in those laws or to dismiss doubts about constitutionality as not being their concern."  The assertion about increased frequency is made without documentation and makes one wonder whether it is accurate.

Certainly, in earlier periods of American history, as Professor Michael Kammen detailed in A Machine that Would Go of Itself (Knopf, 1986), the Constitution was treated by politicians with high-flown rhetorical respect that did not necessarily translate into lawmaking fidelity.  Bamberger does begin the book with a  "brief  historical overview," which is largely devoted to a civics lesson on judicial review for the uninitiated.  What would have been helpful would be to place Bamberger's plaint in historical context.  Surely, there is no dearth of examples of laws passed by federal and state legislators that could not be reconciled with constitutional commands.  Congress has long been prone to act when it determines a need, even if the solution does not necessarily square with constitutional niceties.

Yet, sometimes such actions are the stuff of statesmanship.  Should the New Deal Congress have given up on its program of economic recovery after the Supreme Court struck down its early efforts? Bamberger unfortunately does not consider the legislature's plight during the New Deal.  The structure of his argument against enactment of laws deemed unconstitutional, however, appears to suggest that a legislature should be held to a similar standard as is a lawyer: not to put forth legislation where there is no bona fide argument that the law will survive judicial scrutiny or where existing precedents against it, if any, have not been impaired by subsequent decisions.  If this is indeed his position, one wishes he had addressed arguments in favor of allowing a political body somewhat greater leeway than a lawyer or in granting the legislature an appropriate role in fomenting new constitutional interpretations.

A Faith in Legislative Hearings

A number of laws enacted in recent times provide the prism through which Bamberger makes his case about legislative irresponsibility.  First, he looks at the various ways legislatures attempted to limit pornography on the Internet.  He describes these laws as examples of inadequate hearings that led to the passage of an invalid law. 

At the federal level, the Communications Decency Act (CDA) was enacted and then invalidated by the U.S. Supreme Court in Reno v. ACLU (1997).  Bamberger treats this result as preordained and the CDA as "a prime example of the impact of recklessly passed legislation," because of the expense incurred by the public-interest plaintiffs (and powerful media organizations) who challenged the law.  If this seems a meager price to pay for reckless legislation, Bamberger properly suggests that too often there are not organizations with the means to challenge a law, leaving it on the books as a rogue that could fracture future constitutional jurisprudence.

It is difficult, though, to fathom how better public hearings would have altered the legislative result, despite Bamberger's confidence that it would have.  The extreme partisanship that generally characterizes modern legislative contests results in show hearings, made-for-television ambushes of witnesses who oppose the Chair's position, and a typically acidic view of claims about constitutionality.  Even if the hearings conducted in the case of the CDA had been more meaningful and given the legislators a stronger sense of the technology involved, as Bamberger urges, there would still have been steadfast support for the far-from-frivolous arguments the government advanced in court that the wild and wooly terrain of the information superhighway required special regulatory treatment.  A politician with an eye toward the next election would not risk being labeled pro-pornography, no matter what the hearing discovered.  Bamberger acknowledges that a more-informed hearing process might not always alter the result, but finds no fault in such error because the correct path toward wisdom would be pursued.

Following Bad Advice Forgiven

For that reason, later in the book, he forgives Congress its indiscretion in enacting the Religious Freedom Restoration Act (RFRA).  He notes that the "constitutional advice it received included respected scholars on both sides of the issue."  Nonetheless, he finds it obvious that the law would ultimately be invalidated because "both the language of the RFRA itself and the debate leading to it challenged the constitutional prerogatives and supremacy of the Supreme Court."  The claim appears remarkable, especially in light of the substantial scholarly opinion (including mine) that supported RFRA's constitutionality.

While Bamberger adopts the view of the Supreme Court in City of Boerne v. Flores (1997) that the statute was an illegitimate legislative attempt to reverse a constitutional decision of the Court, he ignores the argument put forth by advocates that RFRA was merely a civil-rights statute that granted claimants greater rights than the Constitution did, without abridging others' rights.  This stance – that the First Amendment's religious freedom guarantee is a floor but not a ceiling that limits Congress in granting greater rights – is similar to that which helped sustain voting and civil rights statutes going beyond the guarantees of the 14^th Amendment.  Even though Bamberger concedes that Congress could have adopted the same view based on the advice it received, he contends that the congressional action on RFRA was "constitutionally harmful."  

Harmful, Even If an Open Question

Similarly harmful in Bamberger's view was congressional enactment of Title II of the Omnibus Crime Control and Safe Streets Act of 1968, which provided that a confession in a federal case "shall be admissible in evidence if it is voluntarily given."  18 U.S.C. 3501.  The provision was designed to reverse the impact of Miranda v. Arizona (1966) and is the subject of a pending U.S. Supreme Court case, Dickerson v. United States.  Since its enactment in 1968, the provision has been given no effect by the Justice Department because of the uniform position taken by succeeding administrations that the law was not valid.  In Dickerson, the Court has been asked to decide whether a voluntary confession may be admitted into evidence in the government's case‑in‑chief, notwithstanding a violation of the Miranda rules.

Bamberger gives little credit to the argument being propounded to the Court that the statute is a permissible legislative restructuring of a non-constitutional prophylactic rule, which happens to sweep more broadly than the Constitution requires.  That may indeed be the Court's ultimate view, but the answer is sufficiently in doubt to have attracted many briefs and commentaries that make the question a very live one.  If the Court abandons Miranda, it is unclear what Bamberger's view would be.  Was it a valid exercise of congressional power, if ultimately upheld?

On the other hand, if the disputed section were invalidated by the Court and Congress defiantly reenacted it, Bamberger would be on more secure ground that Congress had precipitated a constitutional crisis by asserting a new power of cancellation over the Court's constitutional decisions.  He does not, however, explore these issues.

A Legitimate Complaint, But a Bare Start

In the end, Bamberger describes a very legitimate complaint: lawmakers too often enact statutes without adequately considering or willingly obeying constitutional requirements.  It is an abdication of their responsibilities to put hard decisions they wish to avoid on the courts and then, as they often do, decry the results as the nullification of popular laws.  The cycle is a vicious one that threatens the independence of the judiciary and harms our system of government.

There is much more that can be explored in this area.  Reckless Legislationonly makes the barest start.  Perhaps no bright line can be drawn between legitimate legislative experimentation and crass constitutional offense.  Nor can some barricade be erected in the form of a constitutional impact statement that could deter illegitimate lawmaking.  Instead, we may only have a right to expect that politicians will be politicians.

Robert S. Peck is senior director for legal affairs and policy research at the Association of Trial Lawyers of America and an adjunct professor at Washington College of Law, American University. His most recent book is Libraries, the First Amendment and Cyberspace (2000).

Editors' Note: For an earlier contribution to Books-on-Law by Robert Peck, see his review of The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White (Free Press, 1998).

For three Books-on-Law reviews of related interest, see Judge Louis H. Pollak's review of The Constitution and the Attorneys General (Carolina Academic Press, 1999), Christopher May's review of War and Press Freedom: The Problem of Prerogative Power (Oxford, 1999), and William C. Banks' review of Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative (Greenwood Press, 1998).

Morality Imposed: The Rehnquist Court and the State of Liberty in America
Stephen E. Gottlieb
New York, NY: New York University Press, 2000
Cloth: $40.00
Pp 320
ISBN: 0814731287

A vexing problem for legal scholars is how to write about constitutional law in a post-realist world.  Although the Supreme Court continues to use the rhetoric of text, history, precedent, and structure to explain its results, those traditional sources of constitutional doctrine rarely justify the Court's decisions.  Instead, as the legal realists observed eighty years ago, and the critical legal scholars reminded us twenty years ago, it is the Justices' personal political preferences that generate the results in most constitutional cases.  A scholarly discussion of those preferences, as opposed to the doctrine articulated in the decisions, is rarely the subject of academic commentary, however.

Professor Stephen Gottlieb's new book Morality Imposed: The Rehnquist Court and the State of Liberty in America, is a post-realist attempt to make sense of the relationship between the Justices' political judgments and the Court's constitutional decisions.  Professor Gottlieb is not concerned with the nuances of traditional legal doctrines, but instead with the real-world effects of the Court's decisions.  This attempt to draw connections between the Justices' political values, the Court's decisions, and the consequences of those decisions, is an admirable one that deserves significant attention.  Unlike most contemporary scholars, Gottlieb takes seriously the implications of his observation that "[a]ll the justices' conclusions are based on politically charged philosophic assumptions, not interpretive canons." (52)  Unfortunately, Professor Gottlieb's liberal agenda and politics get in the way of a comprehensive and fair evaluation of the Rehnquist Court.

Who Are the Justices?

The first chapter of Morality Imposed provides short biographical sketches of each of the Justices.  The purpose of this chapter is realist to the core; to give the reader an understanding of who the Justices are, where they come from, and the experiences that shaped their world views. This chapter provides some interesting insights.  For example, Gottlieb points out that four of the Justices attended college at Stanford, and five received their law degrees from Harvard.  A majority of the Justices taught in a law school, and seven of the nine come from one of the two coasts. According to Gottlieb, "there is no heartland on the Court." (2)

In this opening chapter, Gottlieb attempts to highlight some of the important experiences of the Justices that he argues affected their jurisprudential outlooks. For example, he discusses Justice Scalia's strict Catholic upbringing; Justice O'Connor's failure to secure employment after graduating from Stanford; Justice Thomas' experience with poverty and discrimination as a child; and Justice Ginsburg's success as an advocate and litigator for women's rights.  After reading this chapter, I thought Gottlieb was well on his way to making good on his promise to write a book about the Supreme Court that would connect the personal values and experiences of the Justices with their decision making.  Unfortunately, the rest of the book is devoted more to a critique of many of the important conservative decisions of the Court than to a full exploration of how the Justices' personal backgrounds and experiences led to those decisions.

Culture Wars

Chapter 2 argues that there are strong philosophical divisions between the Court's conservative wing (Rehnquist, Thomas, Scalia, O'Connor, and Kennedy), and the more moderate wing (Stevens, Souter, Breyer, and Ginsburg).  This "yawning philosophic gulf" has led to "culture wars" among the Justices. (44)

According to Gottlieb, the conservative Justices have abandoned the following two important and influential assumptions of the Anglo-American tradition: people are entitled to make their own decisions unless they injure others, and people and courts should avoid injuring people unnecessarily.  Morality Imposed argues that this betrayal explains the "conservative shift across constitutional law in areas like religion, speech, race, abortion, capital punishment, redistricting, eminent domain and economic regulation . . . ." (45)  This is a lot of weight for two philosophical ideas, but Gottlieb works hard to press the connection and tie it to individual cases.  Although he is not always persuasive, the attempt to unify the Court's decisions by reference to these two central assumptions is original and provocative.

Chapters 3-5 discuss the Court's conservative Justices, and Chapters 6-8 explore the more liberal wing.  Much of the book is written in a we (liberals) versus they (conservatives) style, although Gottlieb candidly admits that the liberals on the Court are really moderates, and Justices Kennedy and O'Connor at times vote with the moderates and against the conservatives.  Despite these concessions, Gottlieb overgeneralizes the similarities among the conservative Justices, and overstates the differences between the conservatives and the liberals.  It is only at the beginning and end of the book that Gottlieb makes clear that there really is no liberal wing of the Court left.  The remainder of Morality Imposed reads as if there were two clearly opposing camps constantly at war.

Gottlieb also inexplicably groups together for discussion in one chapter Justices Scalia, Kennedy, and O'Connor.  There are significant ideological differences between O'Connor and Scalia, however, and the reader is left to wonder why Gottlieb did not link Justice Scalia with Justice Thomas, given the similarity of their voting behavior and personal ideologies.

The Conservative Justices

The chapters on the conservative Justices follow a similar pattern.  Gottlieb takes them to task for numerous decisions that he claims to demonstrate hostility to individual rights or a fair political process, and then he attempts to connect those decisions to a failure to embrace the two fundamental assumptions discussed above.  One of the weaknesses of Morality Imposed is that, as Gottlieb works through each of the conservative Justices and their individual decisions, he never discusses institutional concerns, and seems to assume that the Justices believe in the wisdom of every statute they failed to invalidate and the correctness of every conviction they did not overturn.

Gottlieb suggests that the conservatives "voted to bar public television stations from editorializing [and] [t]hey barred some publicly funded doctors from advising patients about remedies some of them would have wanted." (85)  As to Bowers v. Hardwick (1986), Gottlieb states that "the Court's conservatives are willing to regulate private consensual behavior and insist that no objective social injury is necessary to justify the regulation." (67)  And, as to Rutan v. Republican Party of Illinois (1990), Gottlieb claims that Justice Scalia "argued that patronage in government service is appropriate despite its coercive impact." (204)

Of course, the Justices do not "regulat[e] private consensual behavior," nor did they vote "to bar public television stations from editorializing."  This failure to distinguish between not invalidating a law and voting in favor of the law in the first instance is not just a rhetorical failure.  Gottlieb argues throughout the book that the conservative Justices are responsible for many great injustices, and our country would be much more egalitarian and democratic if those Justices would just see the error of their ways.  It is doubtful, however, that the Court's decisions have that much influence and, in any event, it is the Congress and state legislatures and court systems that shoulder most of the responsibility for the practices Gottlieb denounces.

Ascribing Motivations

Another problem with Morality Imposed  is that, because Gottlieb never discusses doctrine or institutional concerns in any depth, he understates the difficulty and complexity of the cases he describes and ascribes motives to the Justices they may not have had.  According to Gottlieb, the conservatives dissented in Roe because there "is no right to abort because it involves terminating potential life, and, therefore, there is nothing to balance.  In other words, abortion should be unprotected because it is categorically a moral wrong, not because on balance the harm exceeds the benefits." (99-100)  None of the Justices based their dissenting opinions in the abortion cases on that view, and Gottlieb presents no external evidence any of them embrace it.  As to Herrera v. Collins (1993), where the Court refused to order a new hearing for an inmate on death row based on newly discovered evidence, Gottlieb makes the following comment: "We do not need justices who can look on with equanimity while innocent men are executed with the full warrant of the law, attested by their own signatures." (163)  Of course, we don't know whether the accused was actually innocent, and Gottlieb makes no attempt to explain the concerns that led the Court to conclude that finality is an important institutional goal.

Throughout Morality Imposed, Gottlieb presents short summaries of the decisions he dislikes and suggests that the authors of those opinions have betrayed fundamental commitments to individual autonomy and participatory democracy.  Morality Imposed reads more like a homage to the Warren Court and the good old days of Justices Brennan and Marshall than a fair-handed critique of the current Court.  If a reader is searching for a balanced discussion of difficult constitutional issues, therefore, she must go elsewhere.  On the other hand, perhaps the point of Morality Imposed is that constitutional analysis is political analysis, and the only meaningful way to analyze the Court's decisions is to examine their real-world consequences.  In that sense, Professor Gottlieb is a true legal realist, and he deserves praise for writing a book that embraces that important legal tradition.

Eric Segall is a Professor of Law at Georgia State College of Law.  He is the author of numerous articles on judicial review and constitutional interpretation.

Editors' Note: For other Books-on-Law reviews and exchanges on the Supreme Court, see our Special Issue on Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Times Books, 1998), and Alexander Wohl's review of A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning (University of California Press, 1999).

A vexing problem for writers is how to respond to reviews.  We want to thank the writers for their time, efforts, and especially praise, while avoiding undue harshness toward errors and misunderstandings. I am delighted to thank Professor Eric Segall for his praise for my efforts as a legal realist, but I have to resist some of his criticism. 

Most of Segall's comments are, in fact, in my Preface.  I understood the criticisms my book would draw before I wrote it.  Others had analyzed the doctrinal chaos of the Rehnquist Court at great length, and it hardly seemed necessary to repeat their work, although it surely would have forestalled some of the criticism.

What others had not been looking at were the marshes within the doctrinal fields, the regularities that crossed doctrinal fields, and the way the regularities among them revealed underlying philosophical assumptions of the justices.  When looking at doctrine, it is always possible to describe competing results in perfectly respectable ways. When one finds common assumptions driving inconsistent doctrines or driving changes in otherwise unrelated doctrinal fields, however, the results are more plainly political.

The mantle of legal inevitability has been pulled off the Court before.  But the leaders of this Court struggled hard to put it back, so that doctrinal analysis is particularly insufficient to explain what is happening.

Professor Segall points out that there is a great deal more to say about to Herrera v. Collins (1993).  We could easily write a book about the case.  Regardless of those complexities, there is a huge gulf between a group of justices that would grant a hearing when a man on death row is "probably" innocent, the standard the dissent adopted and the majority rejected, and those who, like the majority, would deny him a hearing even then.  I went looking for the patterns, dictated by relevant philosophical traditions, not just for cases I did or didn't like, and the patterns are there.  Centuries of American thought and western philosophical development have gone into the relationship among democracy, freedom of speech, human autonomy, and protection from arbitrariness in state prosecution.  The dividing line among the wings of this Court runs along every one of these areas.  Even if coalitions are formed on some of the cases, there is a chasm, a critical chasm, in the rationale.

I am mystified by Segall's conflation of the book to a "we (liberals) versus they (conservatives)" approach, since most of the book is dedicated to distinguishing the differences within the wings of the Court.  Four chapters explore the fundamentally utilitarian justices who differ from one another largely in their assessments about the real-world consequences of their decisions.

Equally mystifying is Segall's implicit suggestion that I had missed the "significant ideological differences between O'Connor and Scalia" because I had grouped the discussion of those Justices in a single chapter along with Justice Kennedy.  But the point of grouping the three Justices in one chapter was precisely to emphasize their differences.  That chapter explores fundamentally non-utilitarian, non-liberal, non-democratic modes of thought to tease out the differences among the major conservative approaches on the Court. Thomas gets a separate chapter because, unlike Segall, I think it time to bring him out from Scalia's shadow and start confronting some of his uniqueness and the questions about Thomas' jurisprudence.

Ultimately, the test of my book is whether it works, whether the patterns I see are there for others to see.

Stephen Gottlieb is Professor of Law at Albany Law School.  He has written or edited several books in the fields of constitutional law and jurisprudence, in addition to numerous articles in books and journals.  Moreover, he is active on the Board of the New York Civil Liberties Union, and a member of the New York Advisory Committee to the United States Commission on Civil Rights.

the passions of law
Susan A. Bandes, editor
New York, NY:  New York University Press, 1999
Cloth: $35.00
Pp. 362
ISBN: 081471305X

Emotions have always been part of human experience, thought, and behavior.  But at least since Plato, Western philosophy, science, and law largely have neglected emotions or relegated them to the base and animal parts of humanity.  Reason, we have been told repeatedly, is the key to human progress; emotion is the way to chaos and destruction.  In roughly the past fifteen years, however, emotions have become a respectable subject for philosophers, social scientists, behavioral economists, and (even) legal scholars.  Knowledge about and research on emotions also have gained a hold on  popular intellectual culture with the appearance of Daniel Goleman's best-selling Emotional Intelligence (Bantam, 1995).  In a way, the very notion of "emotional intelligence" has been a wake-up call.

Of course, law is rife with emotional subjects and relationships – dealing, as it does, with issues of politics, justice, morality and power.  Yet, law's clinging grasp on its disciplinary traditions of rationality still means that most legal scholars resist exploring emotion or departing from the standard assumption that emotion and law do not, or should not, mix. 

The "Discovery" of Emotions in Law

Susan Bandes's edited collection of essays on emotions and law – the passions of law – provides a long overdue and strong corrective to the severance of law from emotions.  Bandes has gathered works by a diverse group of leading philosophers and legal scholars into an excellent reader that finally furnish the foundations for discussion of the role of emotion in legal thought.  While the lower case letters in the title suggest a whispering tentativeness about passion and law – or perhaps reflects the subordinate status of emotion in legal discourse and philosophy – the contributors to the book take emotion's role in law very seriously.

Before proceeding on, I must declare that I was asked to be a contributor to this collection, and attended a conference at the University of Chicago Law School at which most of the contributors presented earlier versions of their essays.  Although circumstances prevented me from contributing, I believed before that point, and believe still, that law must integrate emotional insights to avoid falling into rationalist errors.  My review is influenced by that belief alone. 

All of the contributors to passions have written about some aspect of law and emotion previously, and many of the contributions are derived from these earlier works.  Some of the essays, however, are original to this volume.  At times, the reader unfamiliar with the works may feel as if s/he is coming into the middle of a conversation (which is actually the case, in some instances).  Nevertheless, it is not necessary to have read the earlier works to gain a great deal from the book; the essays are all clearly and accessibly written.  Nor is it necessary to be a jurisprudential scholar to learn much from what is, essentially, a reader on the jurisprudence of emotion.

After a thoughtful and helpful introduction, Professor Bandes categorizes the essays in four sections: "Disgust and Shame," "Remorse and the Desire for Revenge," "Love, Forgiveness, and Cowardice," and "The Passion for Justice."  Given the wide range of approaches and arguments contained in this volume, perhaps this organization was the most sensible.  But the broader themes of the essays appear to be based more on issues such as: emotions and defining crimes or wrongs; emotions and retributive or "restorative" justice; and emotions in establishing legal authority and influencing decision-makers.  Thus, readers might abandon the organization as given, and seek out essays crossing the four categories.  Readers concerned with the definition of crimes would be advised to read not only the essays on disgust, but also that on cowardice.  Similarly, readers interested in issues of  punishment would appreciate the essays on shame, anger, retribution, vengeance, mass violence, and remorse.  Or readers fascinated more by grander jurisprudential questions might select the essays on decisionmaking and law's authority.

What Are Emotions (or "passions")?

No single theory or discourse about emotions exists.  Given the relatively new fields of scientific research into human emotions, there is no consensus yet on what exactly "emotion" is, what "causes" it, and what its effects or functions are.  First, determining what is an "emotion" – rather than a mood, a "passion," a sentiment, a set of physiological reactions, an innate or acquired characteristic, or a combination of feeling, thought, and action – is a difficult enterprise.  Because of this, some of the essayists appear to use several different meanings for "emotion," without fully appreciating the change in bases.  For example, in his essay on vengeance, Robert Solomon first states that the phenomenon is not an emotion per se, but later treats it as one. 

Second, words for emotions may have different meanings to an essayist, or the concept of emotion may relate to a particular school of thought upon which the writer relies.  Toni Massaro introduces some of the competing schools of thought in her essay on shame.  While many researchers seem to treat emotions as short-term psychic bursts, others indicate emotions may be of longer duration.  While some view emotions as non-cognitive, others assert that perception and cognition create emotional states.  Unmentioned, but also relevant, is that emotion affects cognition.  Freudian psychodynamic theories propose that emotions are frequently unconscious or unruly drives stemming form the "id" that need to be suppressed.  Whether emotions are innate or learned remains an area of dispute.  The roles of culture and social learning in determining the nature and expression of emotions also vary according to the theory. 

The essays in passions feature these various schools of thought.  For example, Martha Nussbaum's essay on disgust draws on psychodynamic interpretations, cognitive accounts, and cultural constructions of that emotion. John Deigh's essay on emotional bonding to legal authority appears to depend primarily on psychodynamic theories.  Cheshire Calhoun's essay on romantic love rests on a social constructionist account of the scripting of "romance."  Judge Richard Posner draws on socio-biological functionalist theories of emotions, as well as on the belief that emotions are part of the "primitive" brain.

The preferred school of thought influences the conclusions that a writer reaches about emotions.  For example, thinking that emotions are innate and primitive is likely to lead to a conclusion that reason ought always to trump emotion.  Thinking that emotions are caused by cognition may propel an author to advocate changes in cognition. Believing that emotions have moral valence (such as the hypothesis that anger is the emotion flowing from wrongdoing or injustice) may result in support of an emotional basis for moral judgment. 

Emotions & Law

The essays connect emotions to law in various ways.  General and abstract jurisprudential questions, as well as more specific and practical jurisprudential issues, receive attention in the collection.  Unfortunately, given the wide variety of essays, it is impossible to provide more than a cursory summary of a few connections here. 

In his essay, John Deigh posits that people form an emotional bond to legal authority much in the same way that they form an emotional bond to parental authority, resting his arguments primarily on psychodynamic, or Freudian, theories of  bonding.  Several of the authors appear to accept that anger is the emotion that informs recognition of injustice, drawing primarily on philosophical sources (although Martha Minow also draws on trauma literature in her essay).  All of these works focus on only one aspect of justice, however – criminal punishment.

Lord Devlin's well- known conventionalist moral standard of "outrage, indignation and disgust" to determine whether law should prohibit actions on moral grounds appears in several essays.  The essays on disgust by Martha Nussbaum and Daniel Kahan disagree about whether disgust can ever be a grounds for legal action. Nussbaum argues that disgust should never be a grounds for legal action because no rational reasons can be given for disgust.  In contrast, Kahan argues that disgust can be the only explanation for some legal decisions that we think are correct; rather than conceding that disgust is used only to subordinate and further illiberal legal agendas, he argues that liberals ought to appropriate disgust to their own ends.  Judge Posner sides somewhat with Devlin, writing that "[d]isgust when sufficiently widespread is as solid a basis for legal regulation as tangible harm." (318)

The essays on anger, vengeance, and retribution will be of particular interest to those concerned about criminal punishment, but they are generally useful as soon as one recognizes that anger can play a large role in all disputes, a point noted in Martha Minow's essay on redressing mass violence.  For those familiar with the retribution debates, one essay stands out: Jeffrie Murphy breaks from his long-established advocacy of moral retribution, which he had based in part on anger and resentment.  In his examination of Nietzche's ressentiment – malice, spite, and envy – Murphy concludes that resentment and retribution may not be legitimate bases for punishment.  Danielle Allen's essay on ancient Athenian punishment suggests that anger and retribution are not inexorably linked.  Robert Solomon's essay on vengeance defends anger and resentment as moral reasons to punish.  Minow's, Murphy's, and Allen's works, combined with Austin Sarat's essay on remorse, suggest that the dynamic of anger and retribution is not a direct, one-way, causal affair – but, rather, one related in complicated fashions to other acts and emotions.

Standing apart in some ways from the other essays are a few fascinating excursions into the realm of emotional influences on law.  William Miller's essay on fear and the Military Code of Justice's provision making cowardice a capital offense is an excellent essay on war, history, and the contingency of  judgments about fear.  Cheshire Calhoun's piece suggests that laws such as the Defense of Marriage Act derive not only from homophobia or heterosexism, but also from a vision that links romantic love to heterosexuality and marriage.  Samuel Pillsbury's essay on Harlan and Holmes seeks both to link each judge's emotional make-up to his opinions, and to explicate a way of reading opinions for emotions.

A Great Beginning, But Hardly the End

The study of emotions – and emotions and law – is still new.  While this book provides an excellent introduction to the many areas in which emotion research may be applicable to legal theory and practice, we are only at the beginning of the development of promising and rich fields for exploration.  the passions of law deals almost exclusively with "negative" emotions – so the many needed essays on love, pity, compassion, and happiness have yet to be written.  (There is some such scholarship, including Robin West's Caring for Justice (New York University Press, 1997).)

Readers probably will find themselves asking more questions than discovering answers; moreover, they are likely to disagree with particular assertions and approaches.  But, this is why the book is extremely important and necessary. It is time that we started recognizing and arguing about the roles of emotion in a venture as central to our lives as the law is. 

Lynne Henderson is a professor of law at Indiana University-Bloomington, where she has taught criminal law, constitutional law, jurisprudence, and women and the law.  She is the author of several articles dealing specifically with emotions and the law, including "Legality and Empathy, The Dialogue of Heart and Head, and Co-Opting Compassion: The Proposed Federal Victim's Rights Amendment."  In August of 2000, she joins the faculty of the Boyd School of Law at the University of Nevada-Las Vegas.

JURIST would like to hear your reaction to our reviews:

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