• Brooks, Peter. Troubling Confessions. Review by George C. Thomas III. Reply by Peter Brooks.
• Kahn, Paul W. Law and Love: The Trials of King Lear. Review by Milner S. Ball. Reply by Paul Kahn.
• Powe, Jr., Lucas A. The Warren Court and American Politics. Review by Jeffrey D. Hockett.
• Slemrod, Joel & Jon Bakija. Taxing Ourselves: A Citizen's Guide to the Great Debate over Tax Reform. Review by Michael B. Lang.
• Weiler, Paul C. Leveling the Playing Field: How the Law Can Make Sports Better for Fans. Review by Roger I. Abrams.
• Wirenius, John F. First Amendment, First Principles: Verbal Acts and Freedom of Speech. Review by Bruce E. H. Johnson.
• Talkback

The Brandeis of the Sports Business
by Roger I. Abrams

Leveling the Playing Field: How the Law Can Make Sports Better for Fans
Paul C. Weiler
Cambridge, MA: Harvard University Press, 2000
Cloth: $29.95
Pp. 367
ISBN: 0674001656

Harvard Law Professor Paul Weiler is one of the premier legal academics in the growing field of sports law. He is also an astute observer of the games we love to watch. His new book, Leveling the Playing Field, may be the best work in the field.

I should issue a disclaimer early in this review. I read drafts of Paul Weiler's manuscript at various stages of its creation at the request of the author. Weiler accepted some of my suggestions, but has correctly rejected others. The finished product is clearly an original and scholarly contribution to the field.

Covering the Spectrum

This book, like Gaul, is divided into three parts. Weiler covers a wide territory, first focusing on the behavior of professional athletes, then on their battles with their employers, and finally on how the club owners' conduct (or misconduct) affects the public welfare. There are other books that have touched on some of Weiler's subjects, but no one else has attempted to cover the full spectrum of the four major professional team sports – baseball, basketball, football and hockey – in a comparative analysis.

This is not an esoteric book, nor a dense display of proficiency in the literature. Weiler writes in a solid academic style, but he is also in touch with facts on the ground. He is a dreamer armed with statistics, perhaps how lawyer Louis Brandeis would have addressed the sports business. This book offers an accessible, comprehensive analysis of the nature of the professional sports enterprise, and presents the author's vision for how it should be reordered. To my knowledge, no one has done this before.

Rich and provocative, some of Weiler's ideas for "leveling the playing field" are ingenious, although others seem a bit unrealistic to me. Nonetheless, there can be no doubt this book will be noticed. Weiler approaches the sports enterprise with confidence, leaving nothing sacred and untouchable. His book covers issues about which people care, our athletic commercial amusements, admittedly an unusual work product for a legal academic.

A Factual & Creative Mosaic

Weiler's book is bursting with facts. He is fluent in sports lore and sports law. He tells some well-known sports stories and some previously unknown tales. I have always been impressed with Weiler's database. The book is a bonanza for lovers of numbers. The text is filled with them. Sometimes they come in a rush, which may leave some readers in the dust. There is a lot here for the informed sports fan to digest.

The factual mosaic and creativeness of Weiler's proposals will make this book both a scholarly and a popular success. In his recommendations, Weiler writes as the voice of the fans, who seem unable or unwilling to use their economic power in their own interest. Writing for a diverse audience creates problems, of course, in style and in analytic rigor. I think Weiler really wants sports law and sports economics academics to read and comment on his recommendations. Ultimately, he wants sports policymakers to put his proposals into effect. At the same time, the general audience of informed sports fans will find the details in his work fascinating and his recommendations thought-provoking.

Reforming the Big Four

Weiler's book is chock-full of inventive, provocative, even audacious, proposals for reforming the four major professional team sports. He is not afraid to take a stand. Weiler's recommendations are creative, if not always convincing. The way to limit ubiquitous sports gambling, he suggests, is to require gamblers to get a governmental license that will "cap" wagers, a somewhat fanciful idea.  Professional athletes should share their salaries under voluntary payroll standards. (He does not explain why the sports unions would ever go along with this.)

Weiler's most extreme recommendation, which he ultimately acknowledges will never happen, is a proposal for federal legislation to break up the four sports monopolies, a suggestion breathtaking in scope. For example, the two major leagues in baseball would be divided into four independent leagues that would compete against one another for the public's attention and patronage. Following the government's intervention, the ills of the sport, such as the dominance of rich franchises over their poor brethren, would be solved by free-market competition. It seems more likely to me that the now fractionalized enterprise would separate into the real major leagues and the pretenders, like the British Football Association's Premier League and the not-so-premier First Division. In any case, it is a wonderful discussion piece for what used to be called the "hot stove league."

Weiler saves his strongest condemnation for the extortion on the public treasury by club owners seeking government financing for new stadiums. Weiler recommends that state and local governments should be prohibited from subsidizing professional sports facilities. Rather, those who benefit from the construction should pay for it. If fans want a better facility, let them purchase an option to buy seats (a personal seat license or "PSL"). Alternatively, government could collect a tax on tickets for this specific purpose; in effect, a user fee. Weiler says that cities and states should "just say no," and, if they can't, Congress should pass a law prohibiting such payments.

The interests that benefit from the status quo in professional sports, however, will man the barricades before the current policy of obeisance to sports is altered. The countervailing economic powers in the sports enterprise – club owners, players, unions, agents, and the media – work out temporary arrangements, then renegotiate them periodically. In general, I am suspicious of congressional intervention. Our elected officials have not demonstrated major league skill in reordering the sports business. For 75 years, Congress left baseball's antitrust exemption, created by Justice Holmes for a unanimous Supreme Court on a particularly bad day in 1922, to remain in place, despite numerous protestations that Federal Baseball was an abomination. Congress reversed that hoary precedent in the Curt Flood Act only when club owners and the players association joined together in a single plea for reform. Congress could serve as the voice of the fans, but it has shown an unwillingness to anger the sports establishment.

Some of the most positive developments in professional sports have evolved unplanned.  For example, as Weiler notes at one point, it was the Major League Baseball Players Association's successful pursuit of baseball free agency which had the ancillary effect of ending the threat of fixing baseball games, because the players were sufficiently well compensated not to need a supplement from the gamblers.

Sex, Drugs, and Salaries

Throughout the text, Weiler's offers perceptive observations. He complains quite correctly, for example, that sexual violence and domestic abuse perpetrated by professional athletes are no different from drug addiction in terms of deserving punishment, although sports commissioners seemingly ignore the former and obsess on the latter. He comes down hard against performance-enhancing drugs, but would deal more leniently with recreational drugs. The former affects the legitimacy of the sports competition; the latter merely involves self-abuse by the athlete. In his chapter on drugs, Weiler retells the Steve Howe addiction saga. I found this poignant episode to be the best-written portion of the book.

Just when the reader might be lulled into thinking that this is just another book on the sports business, Weiler throws another high, hard insight: Players' obscenely high salaries are not to blame for the increase in ticket prices. It is the demand for tickets and the media's seemingly insatiable need for programming that increase management's profits. In turn, players reap the benefits of this largesse through salary negotiations. But hasn't free agency destroyed intra-sport competitive parity? To the contrary, says Weiler. Free agency has enhanced parity and improved the entertainment value of the sports product.  He backs up this conclusion with compelling facts and figures.

Fans may actually think that clubs in a professional league compete against one another. Nothing could be further from the truth. Sure, on the diamond, gridiron, rink, or floor their employees contest the game, but in the boardrooms only cooperation between and among clubs in a league pays off. For those new to the study of the sports business, Weiler dispels some prevailing myths. For example, club owners bemoan their annual losses, but all make money when franchises change hands. In fact, for more than a century club owners have wailed against exorbitant player salaries. For decades, owners colluded to set limits on wages. Even after the baseball players won free agency through arbitration and subsequent collective bargaining, owners colluded until arbitrators enjoined the practice.

For those old hands in the study of the sports enterprise, Paul Weiler's proposals will stimulate debate. This is a book that cannot be ignored. Leveling the Playing Field likely will become the starting point for any discussion of the state of the North American sports enterprise at the turn of the new century.

Roger I. Abrams is the Dean and Richardson Professor of Law at Northeastern University School of Law in Boston. His second book on the business of baseball, entitled The Money Pitch: Baseball Free Agency and Salary Arbitration, was published earlier this year by Temple University Press.

Editors' Note: Professor Weiler is the coauthor (with Gary R. Roberts ) of Statutory and Documentary Supplement to Cases, Materials and Problems on Sports and the Law (West/Wadsworth, 1998).

Troubling Confessions: Speaking Guilt in Law and Literature
Peter Brooks
Chicago, IL: University of Chicago Press, 2000
Cloth: $24.00
Pp. 192
ISBN: 0226075850

Voluntary Human Acts

Aristotle recognized the essential problem in deciding when humans act voluntarily. One example he gave was throwing valuable cargo overboard in a storm to keep the ship from sinking. That act is voluntary, he wrote, because "the doing or not doing" is in the power of the one who chooses. But throwing over the cargo might "in a general way" be involuntary "since no one would choose any such act of itself." (Ethics, Book III, §1)

Acts can therefore be voluntary in a narrow sense of having a choice to do X or not-X, and involuntary in a general sense of not wanting to have the choice of X or not-X. Applying this insight to confessions, John Henry Wigmore, a great scholar of evidence law, pointed out that the choice between the rack and a false confession might not be a pleasant choice but it remains a choice. Wigmore's point was that judging a confession's voluntariness is not a very good way to decide whether it should be admitted into evidence. Instead, he thought we should look at the methods used by the police interrogators without regard to the metaphysical will of the suspect.

But as Professor Peter Brooks (Yale University, Tripp Professor of Humanities and director of the Whitney Humanities Center) makes plain, powerful cultural forces both instantiate and seem to rely on the notion of free will and thus of voluntariness. Even the confession to the inquisitor must be voluntary, at least as a formal matter. The rules governing the Spanish Inquisition required that the confession made under torture "must be repeated the next day without torture, 'voluntarily.'" (155) An observer would be entitled to be skeptical of a "voluntary" confession under these circumstances, but the point is that even inquisitors purport to value voluntariness.

The principle that no one should be compelled to confess a belief led to the Fifth Amendment rule that "no person shall be compelled in any criminal case to be a witness against himself." The doctrinal innovation of Miranda v. Arizona (1966) was to apply this courtroom right to the police interrogation room. Prior to Miranda, the Court had for many years sought to control police interrogation by reading the Due Process Clause to require that confessions be voluntary.

Miranda held that statements made during custodial police interrogation are inadmissible unless preceded by warnings that the suspect has a right to remain silent and the right to a lawyer. In a sense, then, the Court sought to free itself from the voluntariness rubric, replacing it with the idea of making an informed choice to decide whether to answer police questions. But it turns out that we cannot escape voluntariness. It continues to be a measure of whether the suspect validly waived his Miranda "rights" (and most do), as well a measure of the coerciveness of the police interrogation techniques that follow the waiver.

An Interdisciplinary Study of Confessions

Using literature, religion, and law, Professor Brooks seeks to uncover the reasons why our culture both needs voluntary confessions and regards them with skepticism. It all goes back to Aristotle. In a narrow way, every suspect who confesses has made a choice, and our system of law and ethics is premised on free-will actors capable of choosing and responsible for their choices. But in a broader way, no one wants to be faced with the choice of relentless interrogation or providing the answers that the interrogators want. Thus, our culture both needs, and is skeptical of, confessions.

The need for confession is almost certainly partly religious in origin, and Brooks explores this connection in depth. He argues that the "institution of confessions by the Roman Catholic Church" in the thirteenth century is "a key to understanding other uses of confession." (90) It is an intriguing claim.

The skepticism about confessions is not just about whether anyone has a satisfactory account of autonomy and voluntariness. It is also partly about the fear that, if the choice is unpleasant enough, the confession might not be the truth. Here, Brooks is right to explore the path-breaking work of Richard Leo and Richard Ofshe in seeking to uncover examples of false confessions and, more importantly, to define the conditions under which false confessions might occur.

But the problem about the truth of confessions goes even deeper. In a post-modern world, what is "truth" anyway? Brooks quotes from J. M. Coetzee: "the self cannot tell the truth of itself to itself and come to rest without the possibility of self-deception." (48) Brooks rejects even this skeptical view as invoking too much of an Enlightenment conception of truth. Brooks accepts the view he ascribes to Freud: "there is no final truth uncovered" by psychoanalysis because the truth "depends very much on the process of its articulation." (53)

Professor Brooks has a real insight here. Most statements used against suspects are written by the police. The extent to which the words are those of the suspect or of the police is unknowable. Though we think of confessions "as preeminently first-person narratives," they are more likely the "product of collaboration between confessant and confessor, analysand and analyst, suspect and interrogator." (143) In what sense does a statement of the suspect in this situation even belong to him, let alone constitute the "truth" about anything? Brooks concludes that the law engages in a kind of "linguistic repression" in its approach to confessions – repressing the "paradox of the confession that must be called voluntary while everything conduces to assure that it is not." (85)

The difficulty with this kind of skepticism, as Brooks appreciates, is that law is about real cases and real people. Unlike Dostoevsky, psychoanalysts, literary critics, and priests, courts do not have the luxury of indulging in metaphysical speculation about the meaning of truth or the stability of human free will. Courts must answer one simple question – whether to admit into evidence the statements made by this defendant to the police. Concerning this question, by his own admission, Brooks has nothing to say: "I am not able to provide an exit from the impasses of thinking I have evoked here" except to "sound an alarm concerning our system's dependence on them." (86)

But if the alarm ultimately is intended to cast "some doubt on the law's language of autonomy and free choice," (74) he is walking a well-worn path. Recent legal scholars who have walked this path include Peter Arenella (39 U.C.L.A. L. Rev. 1511 (1992)), Richard Boldt (140 U. Pa. L. Rev. 2245 (1992)), Michael Moore (73 Calif. L. Rev. 1091 (1985)), Michael Seidman (94 Yale L.J. 315 (1984)), and Stephen Morse, (84 Geo. L. J. 527 (1996)). All of these writers have more to say about the proper role of autonomy and free choice in law than does Brooks. For recent works of philosophy, see Harry G. Frankfurt, Importance of What We Care About (Cambridge University Press, 1988) and John Martin Fischer, editor, Moral Responsibility (Cornell University Press, 1986).

Indeed, Brooks never tells us the ultimate goal of the book, other than scattered observations about cultural ambivalence toward confessions. He does not sustain an argument for more than a chapter. The book rambles, if intelligently. I found myself wishing for more headings, more direction, more continuity. In short, I found myself wishing that the University of Chicago Press (by all accounts, one of the best university presses in the country) had exercised a heavier hand in the editing process.

At the same time, there was something that I really liked about this book, and I think it is the freshness of some of Professor Brooks's insights and the way he puts those insights into words. Because he comes at it from the perspective of an outsider (outside the law), he sees things in different shadings and lights than we do, and he describes them in more nuanced (sometimes pretentious) language. And so I felt I learned from him. He sharpened some things that I knew, and made plain some that were inchoate in my mind – the ambivalence toward confessions, the cleansing effect of Miranda on the taint of coercion, the bond between the confessor and the confessant, and the co-authorship of the confession.  Perhaps the outsider has taught the legal academy some new tricks, or at least a new way of looking at what we thought we knew.

Some Specific Reactions to the Brooks Study of Confessions

The joy of interdisciplinary work is the removal of the largely arbitrary constraints that keep scholars within a narrow thought compass. Brooks provides much joy on that score, particularly his analysis of Rousseau's Confessions, Hitchcock's I Confess, Jorge Luis Borge's "The Shape of the Sword," and several works by Dostoevsky.

The limitation of interdisciplinary work is that it suffers necessarily from a flattening out of the focus; it sacrifices precision for generality; it runs the risk of being superficial or, worse, wrong. I think that particularly true when the author seeks to illuminate an area in which he is not an expert (the law of confessions here) by analogies to areas in which he is expert (literature and religion here). Professor Brooks's legal analysis contains too many errors and omissions for my taste.

Some are obvious. Brooks states that "seven successive Justice Departments" thought Congress' 1968 attempt to overrule Miranda was unconstitutional. (33) This somehow ignores the lengthy and controversial report issued by Attorney General Edwin Meese in 1986 arguing that the statute is constitutional and that it is Miranda that violates the Constitution. (For an excerpt from the Meese Report, see Richard A. Leo & George C. Thomas III, The Miranda Debate (Northwestern University Press, 1998), chapter 7.)

Another obvious error is his treatment of the intense interrogation in Miller v. Fenton (1985). He leads the reader to believe that the Court found the confession involuntary (81-82), which is wrong on two counts. The Court never reached the issue of whether the confession was voluntary, instead reversing the lower court because it used the wrong standard of review on the voluntariness issue. Upon a rehearing, using the proper standard, the lower court once again found the confession voluntary.

Some of his errors are more subtle, more in the nature of omissions or incomplete descriptions. At the end of Chapter 3, for example, Brooks seems to despair that the law of confessions faces the dilemma of pretending that confessions are voluntary or doing without them.  The only way out of the dilemma that he offers is to de-emphasize the role of confessions and to insist that their reliability be confirmed by other evidence.

But the law is not so empty of imagination. In 1963, Yale Kamisar argued that due process voluntariness was mostly about controlling the methods police use to obtain confessions. (17 Rutgers L. Rev. 728) Professor Kamisar's approach, mentioned by Brooks only in a footnote, avoids the metaphysical morass of voluntariness without reducing the role of legitimate interrogation in the investigation of crime. Now that we have the technology to videotape interrogations, it does not take much imagination to come up with a set of rules that would prevent the most serious abuses. Brooks does not venture there.

Professor Brooks ignores the reluctance of the common law to accept in-court confessions, which appears as early as Lord Hale's Pleas of the Crown (1678). Though the rationale is not stated, it is likely based on a belief that the self-harming act of confessing guilt is unlikely to be voluntary – an early example of Brooks's thesis that the law is ambivalent toward confessions.

He closes the book with Colorado v. Connelly (US, 1986). Francis Connelly, a former mental patient, was suffering "command hallucinations" from God either to confess the murder of a young woman or commit suicide. He confessed to a police officer on the street in Denver even as the officer was trying to stop him. The Court found the confession admissible. Brooks says that the Court "accept[ed] Connelly's confession as voluntary." (169) More precisely, the Court, per Chief Justice William Rehnquist, found no legal involuntariness, and simply did not reach the question of whether his confession was voluntary as a matter of psychological free will.

To see why there is no legal involuntariness, one must read the text the Court was interpreting (Brooks does not do this) – the Fourteenth Amendment provision that "No State . . . shall deprive any person of life, liberty, or property without due process of law." The Court held that because the police did not question Connelly, the state did not cause him to confess involuntarily and the state therefore did not deprive him of due process. As the Court put it, the "perception of coercion flowing from the 'voice of God,' however important or significant such a perception may be in other disciplines, is a matter to which the United States Constitution does not speak." Brooks fails to engage, or even mention, this line of argument.

He also largely misses what is interesting about Connelly: why the potential unreliability of the confession does not raise an independent due process claim.  Wouldn't it violate due process to have an unreliable confession introduced whether or not the confession was voluntary? The Court said no. Brooks quotes from Justice William Brennan's dissent, arguing to the contrary, but does not really explore the relationship of reliability to due process in Connelly.

Brooks writes often and well in this book about the elusiveness of "truth" in confessions, and Connelly could have been a capstone argument: the law cares so little about "truth" in confessions that it fails even to value reliability.  Instead, the limp ending of his Connelly analysis is that it shows "an unease" about "the wisdom of holding [confessional speech] to a standard of 'voluntariness.'" (170) That's not much of a payoff.

The biggest disappointment is that Professor Brooks does not adequately engage the real world of police trying to solve crimes, suspects trying to tell exculpatory stories that turn out to be partly incriminating, and courts trying to decide which confessions to admit and which to suppress. In discussing a Borges story involving the confession of treachery to a listener, Brooks notes that Borges and his reader "are left with the problem of what to do with such a confession." There is the appropriate moral response, but also "the problem of the motives of the confession, the search for opprobrium, the desire to have one's interlocutor despise one." Ultimately, Brooks asks whether the law's unambiguous response to bring the villain to justice would "really get to the heart of the matter?" (143)

That depends, of course, on what is the heart of the matter. The law is concerned with factual truth, to the extent it can be uncovered in the world, and with the proper legal judgment based on that truth. Bringing the villain to justice is the only "heart of the matter" about which the law should care. Professor Brooks is after bigger, or different, fish – some moral or ethical context within which to pass a quasi-religious judgment that takes account of the instability of truth and the elasticity of voluntariness. The law simply cannot afford that metaphysical luxury.

Troubling Confessions is nevertheless a useful antidote to some of the narrow thinking about the law of confessions. And it tells a compelling story that many judges, academics, and lawyers know intuitively – our law and our culture are deeply ambivalent about confessions of guilt.

George C. Thomas III, Distinguished Professor of Law, Rutgers University, Newark is the author of Double Jeopardy: The History, the Law and co-author of The Miranda Debate (with Richard A. Leo) and of Criminal Procedure: Principles, Policies, and Perspectives (West Publishing, 1999) (with Joshua Dressler).

Editors' Note: Other books by Professor Brooks include Law's Stories: Narrative and Rhetoric in the Law, edited by Peter Brooks & Paul Gewirtz (Yale University Press, 1996).

For related Books-on-Law commentaries on the law of confessions, see Yale Kamisar's Killing Miranda in Baltimore: Reflections on David Simon's Homicide and Charles D. Weisselberg's Exploring "Institutional Schizophrenia" in Baltimore: Reflections on David Simon's Homicide.

It is flattering to have my book, Troubling Confessions, reviewed by such an expert in the law of confessions as Professor George C. Thomas III, and I appreciate the favorable things he has to say about it. His strictures, I think, arise mainly from the very different premise he brings to study of the subject. "The law is concerned with factual truth, to the extent it can be uncovered in the world, and with the proper legal judgment based on that truth," writes Professor Thomas.  "Bringing the villain to justice is the only 'heart of the matter' about which the law should care." That certainly is not the premise of my book, which is concerned with the role of confession in law, literature, and culture; with the uses we make of confessions; with our ambivalent attitudes toward confessions. But I also think Professor Thomas's view of the law here seems chillingly restrictive: is it only (his italics) concerned with "bringing the villain to justice?" Shouldn't it be concerned with how this occurs? Shouldn't it want to think about how it conceives human agents who have fallen afoul of the law, and how it wants to treat them?

"It all goes back to Aristotle," writes Professor Thomas, who faults me for not saying enough about "the proper role of autonomy and free choice in law." But I argue that the "free will" approach doesn't get us very far. I am supported in this view by some authoritative commentators on the question: Chief Judge Richard Posner, for instance ("the faculty of will approach . . . leads nowhere") and Professor Joseph D. Grano ("it probably would be best for the courts to drop the overborne will language. . . . Given the absence of an analytic construct of the will as an entity that can be coerced, the term arguably adds nothing.) (See my discussion of these questions in relation to Culombe v. Connecticut (1961), in Chapter 3 of Troubling Confessions.)

The purpose of my book was to urge that other approaches to the rich and layered question of confessions might bring some illumination to a form of human speech act that has proven slippery, elusive, and difficult of analysis over centuries of legal commentary. I explicitly eschew an attempt to write legal policy, which is not my field.  Professor Thomas seems to wish I had written a law review article instead of the book I did write; that is, of course, understandable. But, I think his list of "errors and admissions" in my book derives from that basic category error: I don't give full discussion of all the cases I mention, and don't pursue all their doctrinal issues (e.g., Miller v. Fenton (1985), Colorado v. Connelly (1986)). On the other hand, with some cases, I provide a far fuller reading – of their rhetoric, their language, their conceptual difficulties – than is the case in most legal scholarship concerned mainly with doctrine. My discussion of legal texts attempts to set them in cultural context.

Finally, Professor Thomas reproaches me for not venturing to propose a "set of rules that would prevent the most serious abuses" of police interrogation – rules requiring and governing the videotaping of interrogations. This would surely be a good idea (one I do mention), but I was concerned to describe a current state of practice, its history, its implications.  And to the best of my knowledge, it is the case that only two states (Alaska and Minnesota) currently require videotaping of all criminal interrogations. Alas.

Peter Brooks is Tripp Professor of Humanities and Director of the Whitney Humanities Center at Yale University. His publications include The Melodramatic Imagination (Yale University Press, 1976; reprint, with a new introduction, 1995), Reading for the Plot (Alfred A. Knopf, 1984; reprint Harvard University Press, 1992); and Psychoanalysis and Storytelling (Blackwell, 1994).

Taxing Ourselves: A Citizen's Guide to the Great Debate over Tax Reform
Joel Slemrod & Jon Bakija
Cambridge, MA: MIT Press, 2^nd edition, 2000
Cloth: $29.95
Pp. xii, 348
ISBN: 0262194295

Taxing Ourselves is an excellent antidote for this year's tax reform sound bites. Not that Professors Slemrod and Bakija spend much time on this year's favorite tax cut subjects – marriage penalty relief, estate tax repeal and pension reform. Instead, they provide valuable background and context for those who want to think seriously about real tax reform.

An introductory chapter summarizes concerns about the current tax system and the promise of, and objections to, both radical tax reform proposals and proposals for fixing the current income tax. The next four chapters provide background on the U.S. tax system and tax policy principles, thus setting the stage for an excellent discussion of fundamental tax reform in Chapters 6 through 8. A short final chapter, entitled "A Voter's Guide to the Tax Policy Debate," contains short sections designed to vaccinate the reader against the worst excesses of tax reform advocacy. These sections have titles like "Make Sure the Numbers Add Up," "The Devil is in the Details," and "The Tax System Can't Encourage Everything." You get the idea. If you've read the rest of the book, you can probably skip this final chapter.

Economic Data & the Current Tax System

One important feature of this work is the wealth of economic research it summarizes and makes accessible to the general reader. Much of this material is in extensive appendices and notes, but some has also been effectively incorporated into the text. For example, Chapter 2 looks at the role of income taxes in raising revenue for the federal and state governments, compares this role with the role of income taxes in foreign countries, and examines how this role has changed over the years. The international comparison is especially striking; taxes represent a lower percentage of gross domestic product in the United States than in nearly any other advanced country. The difference, however, seems to result not so much from a difference in the role of income taxes in the various countries (which all have income taxes), but from the much larger relative amounts of consumption taxes collected in other countries. Does this mean that a federal-level consumption tax is in our future, not as a substitute for the income tax, but as an additional tax? Maybe not, but Chapter 8, "Building a Better Income Tax," does examine a proposal that would combine enactment of a value-added tax with substantial income tax rate reductions that would eliminate or simplify the income tax for millions of taxpayers.

Chapter 2 also briefly describes both the economist's conception of income and the U.S. income tax system. This discussion is generally easy to follow and appropriate to the book's goals.  Nonetheless, the current focus on possible estate and gift tax repeal makes one wonder why gifts and bequests as a possible income item are not mentioned at all. Also, given the important simplification policy underlying the 2-percent floor on miscellaneous itemized deductions, this should probably also have been mentioned.

Basic Tax Policy Criteria

Chapters 3, 4 and 5, entitled "Fairness," "Taxes and Economic Prosperity," and "Simplicity and Enforceability" respectively, are the policy core of the book. Each of these chapters starts with a colorful anecdote illustrating how the policy issue has at one time or another captured the public's imagination. The "Fairness" chapter then makes the important point that equity often comes at the expense of increased complexity. This theme is more fully developed in the "Simplicity and Enforceability" chapter and reappears in specific examples throughout the book. For example, the authors suggest that a larger standard deduction might achieve "rough justice" in a reformed tax system that still included many itemized deductions. (197)

The "Fairness" chapter presents important concepts of economics in layman's language.  These include horizontal equity ("equal treatment of equals") (51), vertical equity ("the appropriate degree of tax progressivity") (75), the benefit principle ( the idea that one's taxes should be commensurate with the benefits one receives from government), and the ability-to-pay principle (the idea that one's tax burden should depend on one's ability to bear the burden).  While the authors do discuss whether fairness principles should be based on comparing families or individuals with each other (the marriage penalty is a subset of this issue), they make no attempt to tackle the thorny question whether "ability to pay" should be based on what one consumes and/or what one's income or wealth is. This issue, while perhaps as elusive as other fairness concepts, is nonetheless important in thinking about the choice between an income tax and a consumption tax. Ultimately, however, the authors seem to regard standards of fairness as largely a matter of ethics and politics. They even discuss polling data on what Americans think is fair.

Of course, any discussion of fairness depends on knowing the incidence of the tax involved, that is, who bears the actual burden of paying the tax. Slemrod and Bakija explain tax shifting (one group shifting to another group through changes in prices or wage rates the burden of a tax the first group nominally pays) and discuss the current research on the subject.

Two longer-term aspects of equity – intergenerational equity and transitional equity – enter into the debate about the relationship between the tax system and economic prosperity, the subject of Chapter 4. The authors note that even if a new tax, such as a value-added tax, might be fairer and/or more economically advantageous than our income tax, changing systems might be unfair to some people. Yet, compensating those who would otherwise suffer losses in the transition might end up being both extremely complex and unfair. The question then is whether a change in the tax system would be likely to have long-term economic benefits that would justify such costs. The authors emphasize that this is different from looking at the tax system's impact on short-term economic fluctuations resulting from business cycles, the economic effects of budget deficits or surpluses, and decisions about how much government should do. That is, the structure of the tax system is a separate question from deciding how much revenue should be raised or how much the government should spend. The authors emphasize this distinction when looking at flat tax proposals, some of which would require much higher rates than proposed to raise the same revenue as the current income tax.

Slemrod and Bakija's look at how taxes affect the economy begins with a review of historical U.S. data and comparative data for 25 industrialized countries. Such data show no clear relationship between the overall level of taxes and the economic performance of an economy.  They then turn to data on specific choices that taxes may affect. This information is also inconclusive. Neither savings nor labor-force participation seem greatly affected by taxes.  At a theoretical level, the authors note that this reflects ambiguity about whether the substitution effect (work becomes less attractive because taxes reduce the return) or the income effect (taxes reduce your pay so you need to work harder for what you want) is the more powerful. The authors also discuss the impact of taxes on entrepreneurship, international competitiveness, education and training, and jobs, as well as the connection between rates and the revenue raised and the responsiveness of taxpayers to opportunities for tax avoidance. They argue that moving toward neutral tax treatment of economic activities is the tax policy that will bring the greatest economic benefits. They also explain that economic gains may be achieved at the cost of reducing the system's progressivity, which tends to undermine the system's efficiency.

The Simplicity and Enforceability chapter provides data showing both the complexity of the income tax and the costs of compliance. The authors note, however, that it is not complex for everyone and that much of the complexity results from pursuing other goals, such as achieving fairness (a poll tax would be much less complex), measuring capital and business income properly, and taxing individuals instead of collecting all taxes through businesses. Other sources of complexity, such as special tax preferences and a host of phase-ins, phase-outs and floors, seem harder to justify. According to the authors, this morass encourages taxpayers to "repackage things to their advantage," the end product of which is complexity in planning transactions as taxpayers seek to exploit rate differentials through tax arbitrage. (147) This leads to tax avoidance (legal tax reduction planning) and tax evasion (which is illegal), both of which can affect economic activity (especially in areas conducive to tax sheltering, such as real estate).

Slemrod and Bakija conclude from a wealth of data that "widespread evasion endangers the fairness" of the system and "has a substantial economic cost," (156) thus explaining the need for the IRS. After discussing the merits of greater enforcement efforts and noting 1997 and 1998 Congressional hearings about IRS misbehavior, which led to enforcement limits such as a shift in the burden of proof to the government in some tax cases, the authors blame Congress for handing the IRS "a very difficult if not impossible task." (160) This is appropriate since many of the claims made at the Congressional hearings have since been discredited. (This is not mentioned.) The authors then discuss the features of a tax system that facilitate enforcement, such as low rates, collecting taxes at the business level, compliance incentives, and simplicity and transparency. These features, however, are more often found in tax systems that are less fair or have other drawbacks.

Examining Reform Proposals

Chapter 6 examines three elements of so-called "flat tax" proposals, a single tax rate, a consumption tax base and a clean tax base, that is, one without a lot of special tax preferences for specific activities. The authors note that these elements of fundamental reform need not be enacted as a package. Indeed, the single rate or the clean base could become part of the income tax.

The authors note that those advocating a single rate often advocate a single low rate that is unrealistic because it would shift the tax burden substantially from those with very high income to middle and lower income taxpayers, depending in part on the size of any initial exemption. A single rate would, however, facilitate a business-based collection system, such as with a value-added tax, and reduce the incentive for certain kinds of tax planning. Nonetheless, they regard the prospect of either a consumption tax or a clean base as much more important.

Slemrod and Bakija explain that a consumption tax is imposed only on what the taxpayer consumes, whereas an income tax is imposed on income that is either consumed or saved. A consumption tax thus bears less heavily on the saver or, as they explain, a consumption tax, unlike an income tax, is neutral as between current and future consumption. This is certainly an important point, but it is not clear why this is the right comparison. From a fairness (ability-to-pay) rationale, this comparison seems like the wrong one. The response of economists to this point is apparently to look at a lifetime comparison and conclude that a consumption tax from that perspective is not as regressive as might initially appear. But, as Slemrod and Bakija explain, from this perspective, the consumption tax is still likely to be regressive unless bequests (and gifts?) are treated as an act of consumption by the decedent (and donor). (How many politicians advocating consumption taxes will support including such treatment in their proposals?) Furthermore, this comparison reflects ability-to-pay standards that are income-based, not consumption-based.

Slemrod and Bakija assume we might get some economic boost from moving to a consumption tax, limited by the fact that our income tax already fails to tax much savings because of, inter alia, reduced capital gain rates and pension-related provisions. Eliminating the tax on savings would also eliminate distortions in choices among different types of investments. How do we get from our income tax to these benefits of a consumption tax? Slemrod and Bakija provide a good general account of the transitional problems of this move, the effect of which would be a one-time tax on holders of existing wealth. While such a tax, being very efficient, would offer economic benefits, it is politically undoable. Unfortunately, transition rules to protect holders of existing wealth would probably be complex and lead to tax planning (speeding up or delaying transactions to fall on the right side of the transition rule).

Most of Slemrod and Bakija's discussion of a clean tax base in Chapter 6 centers on tax preferences for specific activities or expenditures, particularly the larger itemized deductions. Such tax preferences, which are a source of tremendous complexity, are viewed as a regressive and inefficient way to subsidize activities. By reducing the tax base, such preferences require much higher rates on whatever income is taxed. The authors argue that such preferences can only be justified as either (1) providing a "more accurate measurement of well-being," as might be said of the deduction for medical expenses, or (2) encouraging or discouraging "an activity with significant externalities," as might be said to some extent of the deduction for charitable contributions. (185) Slemrod and Bakija offer insights on the housing tax expenditure (the mortgage interest deduction without inclusion of a home's rental value in income) and its consequences, as well as weighing how it would fare in a consumption tax and whether elimination of the interest deduction would affect housing prices.

The general discussion of a consumption tax in Chapter 6 leads into Chapter 7's analysis of four major versions of a consumption tax: (1) a retail sales tax, (2) a value-added tax (VAT) (imposed on the sales revenue of a business less the cost of purchases, other than labor, by the business), (3) the Hall-Rabushka flat tax (which is a value-added tax with a deduction for wages and salaries coupled with an individual wage tax), and (4) a personal consumption tax (imposed on all income of an individual less net new savings). Each of these is described, along with possible variations.

While the authors attach weight to the economic benefits of any form of consumption tax, they note that comparing our current income tax with any pure version of a consumption tax will tend to result in overstating the simplification and enforcement benefits of the consumption tax and may overstate its economic benefits. Why? Our income tax is hobbled by a large number of special provisions that add complexity, make enforcement more difficult and reduce the tax base.  The authors do not believe a consumption tax would be entirely immune from the pressures to add such special provisions, noting the complexity of existing State sales tax exemptions.  Each exemption increases the rate required to raise the needed revenue, with the increased rate making avoidance and evasion more attractive and enforcement more expensive. The experience in other countries indicates that these factors alone make a retail sales tax at a rate of more than 10 percent virtually impossible to enforce.

While the authors point out that a VAT would be easier to enforce because each business has an incentive to make sure that its suppliers have paid the tax so that it can receive a credit for the taxes it pays to the suppliers, the VAT like the retail sales tax is difficult to make progressive. The Hall-Rabushka tax, being equivalent to a VAT, suffers the same drawback. A true personal consumption tax could be made progressive, but might well be more complicated for individuals than the current income tax. The question left on the table is whether any of these would achieve enough in the way of positive effects to justify its enactment.

This brings Slemrod and Bakija to Chapter 8, "Building a Better Income Tax." Moving beyond cleaning the base, they provide a modest discussion of integrating the corporate and individual income taxes to eliminate the double taxation of corporate income and the idea of indexing the tax system for inflation, both of which would represent major improvements in the tax system's neutrality with respect to economic activities. Slemrod and Bakija acknowledge that neither of these reform ideas seems to have any political legs. The treatment of capital gains and savings incentives (such as IRA provisions, which are a consumption-tax aspect of our income tax), however, have been the subject of continuing controversy. The authors provide a valuable review of these debates.  Where does this all lead? Elimination of complexity in areas like phaseouts and the alternative minimum tax, improving the filing process, and moving to a cleaner tax base with a single low rate for the vast majority of individuals (as with the Gephardt "10% Tax") would all offer simplification and possible economic benefits without radical change. Or perhaps, the authors suggest, it is time for the United States to join most of the rest of the developed world by enacting a VAT, using the revenue thus raised to remove millions of individuals from the income tax system. The combination could be adjusted to achieve the desired level of progressivity.

A Final Note

Slemrod and Bakija are economists. Their expertise is evident throughout Taxing Ourselves. Nonetheless, some sections of the book would have benefited from review by a tax law expert, particularly one with some historical perspective. For example, although the authors note the ability-to-pay argument for the so-called marriage penalty (referred to as the "marriage tax") (81-81), they do not discuss how the current joint-filing system arose as a historical response to the spread of spousal income-splitting from the original community property states to other states, an important piece of the story. Similarly, the book ignores any non-economic rationale for the deduction for state and local taxes, such as constitutional concerns or federalism policies. There are also mistakes in the description of the U.S. tax system, some substantive, such as the incorrect statement that gains from the sale of owner-occupied housing that exceed the $500,000 that is untaxed may "also go untaxed if you buy another home of equal or greater value," (37) and the depreciation example (46) (the first-year depreciation should be $200 rather than $100). Others are more technical, such as the failure to note that the phase-out of some itemized deductions is only partial. On the whole, however, these are minor blemishes in a generally excellent work that merits wide readership.

Michael B. Lang is a Professor at the University of Maine School of Law, Visiting Professor at the University of Miami, and Fellow of the American College of Tax Counsel. He co-authored Federal Tax Elections (1991) and is co-compiler of the Index to Federal Tax Articles.

Editors' Note: For another tax-related review on Books-on-Law, see Janet Spragens' review of Taxing Women (University of Chicago Press, 1997) by Edward J. McCaffery.

First Amendment, First Principles: Verbal Acts and Freedom of Speech
John F. Wirenius
New York, NY: Holmes & Meier Publishers, 2000
Cloth: $34.95
Pp. 342
ISBN: 0841913838

John F. Wirenius is a First Amendment hedgehog. He contends that the existing case law defining the scope of federal constitutional protection for freedoms of speech and of the press is an incoherent and "bizarre mess." In his book First Amendment, First Principles: Verbal Acts and Freedom of Speech, Wirenius offers a single, consistent First Amendment standard to replace the "series of pigeonholes" (73) developed during the last century by the judicial foxes of the United States Supreme Court.

The United States, argues Wirenius, "prides itself on the centrality it accords freedom of speech, and yet our First Amendment jurisprudence ranges across the broadest possible spectrum. It allows the suppression of some speech without any but the most cursory judicial review, holds the suppression of other kinds of speech up to mild scrutiny, and exposes a third set of speech categories to very exacting scrutiny indeed." (72) Wirenius proposes a "verbal act" test, which he says separates the content of speech, protected by the First Amendment, from the dangers posed by speech, which may form the basis of liability.

But will the courts adopt the "verbal act" formula and rationalize future First Amendment jurisprudence? As the late Sir Isaiah Berlin noted in his famous essay, The Hedgehog and the Fox (1953), there is a "great chasm" between hedgehogs, those thinkers who relate everything to "a single, universal, organising principle," and foxes, "who pursue many ends, often unrelated and even contradictory" and "related to no moral or aesthetic principle."

Chaplinskyism Attacked

An attorney in New York City's Office of the Corporation Counsel, Wirenius blames the constitutional incoherence on "a half century of Chaplinskyism" (181) resulting from Justice Murphy's throwaway comments in Chaplinsky v. New Hampshire (1942), that "certain well-defined and limited classes of speech" – including "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting words'" – were not entitled to the full constitutional protections of the First Amendment because they were of "slight social value" when balanced against "the social interest in order and morality." Interestingly, the same Court also invented the "commercial speech" exception to the First Amendment in Valentine v. Chrestensen (1942). As a result, the overwhelming bulk of the Supreme Court's modern First Amendment caseload, from New York Times v. Sullivan (1964) to Miller v. California (1973) and R.A.V. v. City of St. Paul (1992), as well as more recent decisions such as Reno v. ACLU (1997), Greater New Orleans Broadcasting Association v. United States (1999), and United States v. Playboy Entertainment Group (2000), may be seen as an extended commentary on, and retreat from, some offhand comments made by the justices in two careless wartime opinions.

Chaplinsky is the chief target of First Amendment, First Principles. Notably – given that a later chapter (224-287) criticizes the arguments of Catharine MacKinnon and Andrea Dworkin in their crusade against pornography – Wirenius treats Chaplinsky in its historical context as a World War II-era "hate speech" case (to use the modern terminology) and thus the product of the same hydraulic pressures that sent Japanese-Americans to prison camps in Korematsu v. United States (1944). (75-92) He also discusses other Supreme Court "hate speech" decisions that predated current political correctness, including Terminiello v. Chicago (1949), Feiner v. New York (1951), and Beauharnais v. Illinois (1952), applauding Justice Douglas for his rejection of the "heckler's veto" in Terminiello and his holding that speech that "induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger" is entitled to full constitutional protection.

Technology and Its Discontents

According to Wirenius, the "curse" of Chaplinkyism has been aggravated by the Supreme Court's failure to understand, and in some cases its fear of, new technologies, prompting a proliferation of yet more categories of semi-protected and unprotected speech. (106-111) Broadcast speech, for example, has long been denied the same press freedom that newspapers and magazines have traditionally enjoyed, while in Turner Broadcasting System, Inc. v. FCC (1994) cable newscasters were offered a halfway house to complete First Amendment freedom. Wirenius claims that cable telecasts are "judged under settled principles of First Amendment jurisprudence" compared with the "relaxed standard" applied to abridgements of broadcasters' freedoms of speech and of the press. (111) In fact, the Supreme Court's Turner decisions – and cases such as Denver Area Educ. Telecommunications Consortium v. FCC (1996) – are a mixed bag for cable media and grant fewer protections than Wirenius's gloss would suggest.

Because of these technological (or more precisely, legal) false starts, the freedom of expression that we take for granted today is of recent vintage for certain media and, even where it exists, is still riddled with irrational exceptions. For example, Wirenius notes that until 1952 the Supreme Court held that cinema was only entertainment and thus could be censored by government agencies without any First Amendment violation, and that not until Erznoznik v. City of Jacksonville (1975) did the Court grant movies full First Amendment rights (although that ruling was undermined a year later in Young v. American Mini Theatres, Inc. (1976), which allowed municipal zoning laws to replace the old licensing system). (184-192)

One of the more interesting chapters in this book is entitled "Caught in the Net" (182-223), which addresses the judicial controversy over whether the Internet would be permitted to develop as a medium of expression protected fully by the First Amendment or whether it would be crippled by the Communications Decency Act's regulations banning indecency. To a large extent, as Wirenius recognizes, this was a battle over whether courts should respond to the risks of a new and largely unknown communications technology with fear of change or, instead, with Justice Holmes' recognition in his dissent in Abrams v. United States (1919) that the First Amendment "is an experiment, as all life is an experiment."

To an even larger extent, however, the case was a battle over pigeonholes. If the Internet were analogous to a radio or television station, the CDA would probably be upheld. If the new technology were simply village green writ large, then the Court would likely allow it to grow and develop without governmental interference.

As Wirenius observes, the United States government argued in its defense of the constitutionality of the CDA that if a federal agency could constitutionally ban radio stations from evening broadcasts of George Carlin's "seven dirty words" in FCC v. Pacifica Foundation (1978), then Congress certainly could protect children by outlawing "indecency" on the Internet. Wirenius declares that the Supreme Court, surprisingly, got it right in Reno v. ACLU (1997), when it struck down the CDA on First Amendment overbreadth grounds, although he singles out for special commendation (213-217) Judge Dalzell's very thoughtful and sensitive opinion in the three-judge district court ruling in ACLU v. Reno (E.D. Pa. 1996). The CDA decisions, he concludes hopefully, "could well portend that our legal culture is (in this sphere at least) preparing to grow up, to reach the time when, at last, the medium is not the message." (222)

Clear and Present Danger

In this book, following upon the success of Reno and the demise of the CDA, Wirenius proposes to tidy up the remainder of freedom of expression jurisprudence with a "unified field theory" of the First Amendment. (122) What is his proposed replacement for the incoherent case law he attacks?

Surprisingly, Wirenius advocates widespread adoption of the "clear and present danger" test first proposed by Justice Holmes in his opinion for the Court in Schenck v. United States (1919), which affirmed the Espionage Act convictions of two socialist pamphleteers, and in two other Espionage Act decisions, Debs v. United States (U.S. 1919) and Frohwerk v. United States (1919). According to Holmes, the anti-war pampleteers could be convicted notwithstanding the First Amendment if their words "are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent."

This suggestion is surprising, because, as Wirenius himself acknowledges, the Schenck test is widely criticized by civil libertarians. Even Holmes himself, in later dissenting opinions such as Abrams, apparently recognized that the test required refinement.  "The main flaws," Wirenius suggests, "appear of course in the test's application – how little sufficed to establish a clear and present danger, and the ease with which intent could be shown." (38) Also, a version of it (the Learned Hand utilitarian calculus) was the basis for the widely-criticized decision by a plurality of the Court in Dennis v. United States (1951), which affirmed Smith Act convictions of Communist Party officials.

For Wirenius, however, Schenck, Abrams, and Dennis are merely steps on the road to the "unified field test" that he proposes. The ultimate refinement is Brandenburg v. Ohio (1969), which Wirenius believes expresses "the essential meaning of the First Amendment." (225) Brandenburg was yet another "hate speech" case, in which the Court overturned the conviction of a Ku Klux Klan leader for an incendiary racist speech, and held that the First Amendment does not permit the government "to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action or is likely to incite or produce such action."

Verbal Acts versus Speech

Brandenburg provides Wirenius with the concept of the "verbal act." If speech is mere speech, he says, it should be absolutely protected from liability. If it is a "verbal act," however, all speech, any speech, can be penalized, regardless of content. "A verbal act takes place when the very utterance of speech inflicts harms," he writes. "It is not based on disapproval of the message, but on the incidental effects of the communication in the particular context." (141) Wirenius rejects the various balancing tests repeatedly devised by the Court, except where competing constitutional interests are involved.

The result is an elegant formula, which would make any hedgehog proud. The test first asks whether the utterance creates a "clear and present danger" or risk of a substantive evil. Second, is the evil something that government can act upon? (Both of these tests, frankly, are easy ones to satisfy.) The final hurdle is proof that the speaker specifically intended the evil result.

Wirenius takes pains to show how his "verbal act" standard provides constitutional protection equivalent to current First Amendment tests applicable to antitrust, defamation, obscenity, symbolic speech, fraud, and threats. (135-156) Brandenburg is noteworthy, as well, because with few exceptions (the so-called "Hit Man" case, Rice v. Paladin Enterprises (4^th Cir. 1997), comes immediately to mind), it has provided for almost thirty years a largely stable and widely-accepted framework broadly encouraging political dissent and other speech liberties.

Questions Relating to Its Application

But can these incidental harms, which Wirenius believes may be a proper basis of both criminal and civil liability, be separated so easily from the communicative message, which for him remains constitutionally protected? As a practical matter, would courts and juries properly apply his specific intent test to protected speech in controversial cases such as Auvil v. CBS "60 Minutes" (9^th Cir. 1995) or Texas Beef Group v. Winfrey (5^th Cir. 2000), where plaintiffs sue over statements that are not even false but allegedly result in huge damages? In this regard, it is not comforting that the Brandenburg formula has rarely been tested.

How would the Wirenius formula be applied in circumstances presented by the reverse image of Brandenburg, where liability for speech is not directly at issue but the defendant's activities are closely brigaded with speech? For First Amendment lawyers, such lawsuits are raising troubling questions, yet the applicable Supreme Court case, Cohen v. Cowles Media Co. (1991), has provided no guidance for lower courts and largely ignores the constitutional interests involved. Thus far, recent newsgathering liability cases such as Shulman v. Group W Productions (Cal. 1998), Sanders v. American Broadcasting Companies (Cal. 1999), Food Lion, Inc. v. Capital Cities/ABC, Inc. (4^th Cir. 1999), and Bartnicki v. Vopper (3d Cir. 1999) have yielded confusing and inconsistent results.

Is the Wirenius test, moreover, even relevant in analyzing the issues raised by cases such as Nelson v. McClatchy Newspapers, Inc. (Wash. 1997), which considered whether a newspaper can be held liable under an apparently neutral employment statute that effectively bans editorial independence? Similarly, does the Brandenburg verbal act doctrine tell us anything about whether the Boy Scouts' decision to terminate a gay scoutmaster and to claim an anti-homosexual agenda is protected by the First Amendment, as the Court held in Boy Scouts of America v. Dale (2000)?

Tidying up past mistakes may be less important than avoiding future First Amendment messes. The arguments advanced by Wirenius are fascinating and deserve the close attention of First Amendment lawyers and scholars. Unfortunately for Wirenius, however, American constitutional law has always been case-driven, and its rules are largely the product of Supreme Court politics and the whims of shifting Court majorities, including Justice Brennan's justly famous "Rule of Five." True to their common law roots, American judges have decided First Amendment controversies with little regard for theory or even consistency.

For lawyers and advocates, whose skills are needed to explain these complicated concepts to courts, the arbitrariness of the ancient writ system persists in this "pigeonhole" mentality, which seeks the certainty of courtroom victory in easy analogues. Inevitably, decades and even centuries of hard cases result to some extent in bad, and even bizarre, law. The American legal system was devised by foxes, and is run by foxes.

Porcupines as Hedgehogs

The debate over the proper regulation of speech in a democracy, with its inconsistent and messy results, is as old as the Republic.  Each case is a metaphor. In 1799, William Cobbett, the arch-Federalist editor of Porcupine's Gazette, was sued for libel in Philadelphia by Dr. Benjamin Rush, a signer of the Declaration of Independence, for criticizing Dr. Rush's reliance on bleeding and mercury during recent yellow fever epidemics.

At the trial, Cobbett claimed a constitutional right to discuss a "public question" about a "public character." In opposing this argument, attorney Joseph Hopkinson, representing Dr. Rush, acknowledged that "no subject of political enquiry . . . has excited more anxiety among the people of every free country; there are few subjects that have employed more able pens, or received more frequent discussions in every possible form of argument than the Liberty of the Press – and yet perhaps, there is no subject now more remote from a general understanding or settled opinion."

Yet while Americans, as Norman Rosenberg noted in Protecting the Best Men: An Interpretive History of the Law of Libel (University of North Carolina Press,1990), "debated the precise nature of libel laws" they "found no pressing need to develop . . . more precise legalistic arguments." (55-56) In the intervening two centuries, the First Amendment still remains encrusted with pigeonholes. Chances are, Americans will continue to avoid precision, and their courts will eschew the elegant formulas devised by Wirenius.

Yet, in an increasingly interconnected world, distrust of democracy has not disappeared. Indeed, governments and élites everywhere fear the loss of control represented by a worldwide system of freedom of expression. Perhaps the forces of regulation and oppression will finally force Americans to refine their First Amendment tests as they defend traditional freedoms of speech and of the press.

And Pigs, Too?

The invention of the Internet, a medium promoting chaos, has raised the stakes considerably. Freedom of expression is potentially a worldwide phenomenon. Regulation anywhere is potentially regulation everywhere.  As Judge Dalzell warned in ACLU v. Reno (E.D. Pa. 1996), "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig."

As this book demonstrates, Wirenius is a passionate defender of the values of free speech and free press, no matter whose ox is gored.  He challenges freedom's enemies – from anti-pornography zealots promoting a sexist ideology to anti-corporate liberals arguing for reallocations of speech rights in hopes of triggering reallocations of wealth – and demonstrates how the First Amendment has radically transformed traditional American social systems, eliminated or reduced old-fashioned prejudice and hatreds, and promoted both equality and freedom together. (310-316) Freedom, he says, means "embracing . . . the chaos – the pains and losses as well as the satisfactions and rewards – of life." (329)

Perhaps the global village needs such a hedgehog to save us from the roasters of pigs.

Bruce E.H. Johnson, a partner in the Seattle office of Davis Wright Tremaine LLP, handles defamation and privacy defense and has represented members of the media in several major First Amendment cases. He has degrees from Harvard University (B.A.), Yale University (J.D.), and Cambridge University (M.A.). In 1999-2000, Mr. Johnson served as Chair of the American Bar Association's Media and Defamation Law Torts Committee, Tort and Insurance Practice Section.

Editors' Note: For other Books-on-Law reviews related to the First Amendment, see "Dissent Injustice and the Meanings of America: An Online Exchange with Steven Shiffrin"; Ronald Collins & David Skover reviewing Censorship and Silencing: Practices of Cultural Regulation (Getty Trust Publications, 1998), edited by Robert C. Post; C. Thomas Dienes reviewing Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us (The Free Press, 1999) by Bruce W. Sanford; Chris Finan reviewing Bookleggers and Smuthounds: The Trade in Erotica, 1920-1940 (University of Pennsylvania Press, 1999) by Jay A. Gertzman; see also our General Index of Reviews (under Free Speech).

The Warren Court and American Politics
Lucas A. Powe, Jr.
Cambridge, MA: Harvard University Press/Belknap
Cloth: $35.00
Pp. xi, 566
ISBN: 0674000951

Professor Lucas A. Powe's book would be of considerable interest to students of the judiciary even if its sole virtue were the deftness with which Powe organizes and analyzes the unusually large number of important decisions that the Supreme Court rendered during the controversial tenure of Chief Justice Earl Warren. In this respect, Powe is deserving of comparison to such eminent chroniclers of the Court's history as Henry Abraham, Alfred Kelly, and Winfred Harbison.

The book's purpose, however, is as ambitious as its scope. In writing a comprehensive (and accessible) history of the Warren Court, Powe "attempts to revive the genre of Supreme Court scholarship that focuses on the relationship between the Supreme Court's decisions and national politics." (xiii) The interrelations between law and politics found in the writings of such legendary political scientists as Edward S. Corwin, Alpheus T. Mason, Walter F. Murphy, and Robert G. McCloskey, he notes, all but vanished with the spread of behavioralism during the 1950s and 1960s. Since then, the only alternative to reductionist analyses of judicial behavior that emphasize the attitudes of individual justices has been the legalistic scholarship of the nation's law professors.  Powe, a Professor of Law at the University of Texas, observes that the training and socialization of the members of the legal academy predispose them to ascribe a nominal role to political events in explaining judicial outcomes and behavior.

The Legal View

Indeed, Powe identifies as his main target the "dominant legal view" that "the Warren Court was implementing a theory of constitutional adjudication that Justice Harlan Fiske Stone had laid out in Footnote Four of a 1938 decision, United States v. Carolene Products." (214) In that footnote, which appeared one year after the Court had abandoned its position of judicial activism in defense of the property rights of businesses and employers, Stone suggested that there might be non-proprietarian contexts in which the Court should relax the presumption of constitutionality that it now accords to economic legislation: when challenged legislation appears to violate a specific prohibition of the Constitution, such as those of the first ten amendments; when legislation restricts effective participation in the democratic process; and when laws are directed at "discrete and insular minorities," that is, powerless groups against whom the majority is prejudiced.

Powe understands the attractiveness of this explanation. "All the [Warren Court's] cases involving African-Americans, criminal defendants, and the poor generally fit within Footnote Four with no difficulty." The footnote also "seems to fit two other major areas, [namely,] reapportionment and free speech." In view of the fact that these areas represent a "huge amount of the Court's constitutional work," he says "it is no wonder that the conventional wisdom . . . has associated the Warren Court with Footnote Four." (488)

Powe, however, identifies certain problems with the dominant legal view that warrant its reconsideration. Most obviously, the momentous decision in Griswold v. Connecticut (1965), where the Court acknowledged a right to privacy not grounded in the explicit language of the Constitution and struck down a Connecticut law prohibiting the use of contraceptives, does not correspond with any of the principles articulated in Footnote Four. Furthermore, between 1957 and 1963, the Court retreated from its earlier liberal rulings regarding the freedom of speech of political dissidents. Indeed, the Court's validation of governmental efforts to ensure domestic security suggested that the justices "wanted no part of thwarting the anticommunist program in any form." (135) Powe also regards as significant the fact "that only once in Warren's sixteen years did an opinion of the Court cite Footnote Four – and that too was a footnote." (489)

A Political Interpretation

The "alternative . . . (if less complimentary) reading of the Warren Court decisions" that Powe puts forth has the justices "worrying [not] about constitutional theory" but about "reaching results that conformed to the values that enjoyed significant national support in the mid-1960s, a period when Americans believed the nation was capable of anything." (215) Specifically, he regards the Warren Court as "a functioning part of the Kennedy-Johnson liberalism" of that era. (494)

This explanation of the Warren Court's performance would account for the constitutional decision-making that fits the principles of Footnote Four. After all, "Footnote Four offered a judicial ideology that paralleled Kennedy-Johnson liberalism. First, it expanded rights under the Mae West assumption that one can never have too much of a good thing. Second, and fundamentally, like the Great Society, it focused on those most in need of help." (489) Emphasizing the justices' responsiveness to current national values also accounts for the Court's withdrawal of constitutional protection for political dissidents after 1957 (which followed a period of intense criticism from cold warriors in Congress) and its dismantling of the domestic-security program, beginning in 1963 (after "[r]ed-baiting had lost its political salience nationally"). (213)

Powe's thesis even accommodates the Griswold decision, since the privacy ruling took aim at the values of "the pre-Vatican II Catholic hierarchy." Along with the Court's other chief targets – "the white South, . . . rural legislators, the local criminal justice system, and those remaining few who believed domestic communists were a threat to the nation" – old-line Catholicism represented an impediment to the nationalization of liberal values (the leitmotif of the Kennedy and Johnson presidencies). (493-94) Indeed, so pure was the strain of Kennedy-Johnson liberalism in the Warren Court's rulings, according to Powe, that "[t]he best description of the era is that all three branches of government believed they were working harmoniously to tackle the nation's problems. It was simply a matter of determining which institution was best-suited to handle a specific problem, and each went forward in its own way knowing the others also were seeking complementary results." (214)

Antecedent Arguments

At this point, readers familiar with the literature of the field of judicial behavior will recognize that Powe's analysis, while reflecting Corwin's and McCloskey's general belief in the interconnectedness of law and politics, is more redolent of the work of Robert Dahl and Martin Shapiro. Like Powe, Dahl and Shapiro link the Supreme Court to identifiable elements of the American political system: Dahl emphasizes the relationship of the Court to the policies of the dominant national alliance, while Shapiro regards as more than coincidental the confluence of Supreme Court decisions with the interests of particular constituencies. (Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker [1957]; Martin Shapiro, Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence [1964])

One might even characterize Powe's book as a response to Shapiro's account of the Warren Court. Shapiro regards that Court, which "was controlled by Roosevelt appointees," as a group of individuals who sought to benefit the New Deal coalition "of union members, the poor, Negroes, and liberal intellectuals." (Martin Shapiro, The Supreme Court: From Warren to Burger, 190 [1978]) The problem with this explanation is that the main elements of the New Deal coalition – southern plantation elites and the working classes of the industrialized North – were bound together, in large measure, by compromise (read, inaction) on the matter of racial justice. The Warren Court's first major ruling – the celebrated desegregation decision, Brown v. Board of Education of Topeka (1954) – rather than supporting the New Deal coalition, in fact struck at the roots of that alliance. As Powe might emphasize, African-Americans became central players in Democratic party politics only after civil rights issues caused the collapse of the New Deal coalition in the mid-1960s.

Of course, if Powe identified Kennedy-Johnson liberalism as the sole explanation for the behavior of the Warren Court, he, too, would be unable to account for Brown. Powe, however, focuses on the ideology of the New Frontier and the Great Society because the most liberal justices of the Warren Court – Earl Warren, Hugo Black, William Douglas, and William Brennan – became part of a consistent liberal majority only after Arthur Goldberg replaced Felix Frankfurter in 1962. Powe's general argument, which strongly echoes the views of Robert Dahl, is that the Warren Court consistently strove to be "in full harmony with [current] national values." (123) Like Dahl, Powe finds an explanation for Brown in the supposed affinity between the Court and the contemporary governing alliance on the matter of civil rights.

The Warren Court as an Independent Actor

Powe's argument, however, is vulnerable for the same reason that Shapiro and others have criticized Dahl – desegregation did not appeal to the Eisenhower administration. Powe acknowledges "Eisenhower's personal unease about Brown." And he observes that "when [the President] spoke at all, [he] expressed concern over the 'great emotional strains' placed on the white southerners; he never endorsed the Court – not his job – nor did he rebuke the southern leaders for attacking the Court." (74) But Powe attempts to demonstrate the administration's support for civil rights by emphasizing that the President apparently "gave his personal okay" to the Department of Justice to request at the reargument of Brown in 1953 that the Court overrule the separate-but-equal doctrine enunciated in Plessy v. Ferguson (1896). He also notes that, "[w]ithin an hour of Warren's announcement, the Voice of America broadcast the decision to Eastern Europe in thirty-four different languages." (35-36)

The justices, however, probably believed (and with very good reason) that the Eisenhower administration did not support desegregation. Philip Elman – who served as an assistant in the Solicitor General's office in both the Truman and Eisenhower administrations, and who, as Frankfurter's former law clerk, stayed in close touch with the justice during the desegregation controversy – suggests that Eisenhower administration officials resisted involvement in Brown. He also contends that they discouraged Assistant Attorney General J. Lee Rankin from volunteering a position on the unconstitutionality of segregation during oral argument. (Philip Elman, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History [1987])

On the off chance that the notoriously garrulous Frankfurter failed to inform his colleagues of these salient points, Eisenhower himself made the Chief Justice well aware that the Court would be acting independently in rendering a desegregation order. As even Powe notes, while the Court was considering Brown, the President informed Warren at a White House dinner "that southerners were not bad people, just concerned lest their 'sweet little girls be seated alongside some big black bucks.'" (36)

Refocusing the Debate

If there is any validity to the point that Brown did not reflect the views of the Eisenhower administration, then the main rival to Powe's thesis is, not legal scholarship that emphasizes the Warren Court's attachment to Footnote Four, but the work of Ronald Kahn, who shares with Powe a desire to reconnect law and politics. Responding primarily to political scientists who favor models of judicial behavior that emphasize the personal policy preferences of justices, Kahn argues that the Warren Court was actually engaged in a dialogue with "the wider society and interpretive community" over "the nature of governmental powers, the political process, and the judicial process." Specifically, the Court rejected the dominant pluralist interpretation of American politics put forth by Robert Dahl and David Truman, which held "that individual and group economic, social and educational inequalities are somehow ameliorated (if not completely eliminated) by the American political system." (Ronald Kahn, The Supreme Court and Constitutional Theory, 1953-1993, 22, 75 [1994])

Since Powe believes that "[o]ne problem for a Footnote Four explanation [of the Warren Court] is that the majority justices were not constitutional theorists," one suspects he would suggest to Kahn that even less were the justices political theorists. (215) The NAACP's strong challenge during oral arguments in Brown to the doctrine of judicial deference to legislation, however, indicates that the justices at times cannot help but encounter and participate in substantive debates about the nature of American politics. This consideration, and the consistency of Kahn's thesis with Brown, Griswold, and those cases that fit the philosophy of Footnote Four, warrant the conclusion that Powe's important contribution to Warren Court scholarship is best read with (and measured against) the work of academics who, like him, are part of a larger and worthy effort to draw upon both law and political science to understand the behavior of judges.

Jeffrey D. Hockett is an Associate Professor of Political Science at the University of Tulsa and is the author of New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson (Rowman & Littlefield, 1996).

Editors' Note: For Books-on-Law reviews of related interest, see the special issue on Edward Lazarus' Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Times Books, 1998); Judge Nathaniel R. Jones's review of Mark Tushnet's Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (Oxford University Press, 1997); Howard Ball's review of Scott Gerber's First Principles: The Jurisprudence of Clarence Thomas (New York University, 1999) (& Gerber's reply); and Scott Gerber's review of Howard Ball's A Defiant Life: Thurgood Marshall and the Persistence of Racism in America (Crown Books, 1998).

Law and Love: The Trials of King Lear
Paul W. Kahn
New Haven, CT: Yale University Press, 2000
Cloth: $30.00
Pp. xx, 203
ISBN: 0300078285

As Professor Paul Kahn reads King Lear, we are not to mix politics and love. By mapping his family relations upon his kingdom, Lear destroyed them both.

Law is an achievement, Kahn argues, but it is flawed. Its double nature belongs to the human condition, and we must accept what unalterably is. However, "[f]rom within the law, we dream of a love that is beyond the state." (xix) So, we are ruled by law and captivated by love. But the two are incommensurable. To mingle them is to make a nightmare. We must live with the separation of love and state.

Kahn pursues this argument through a close interpretation of the play. The result is a challenging, often meditative study that makes for fruitful but not quick reading, best done with a copy of Kenneth Muir's 1972 edition of King Lear near to hand.

The richness of detail is instructive; the interpretive framework can be exasperating. I note the former and, in what follows, concentrate on the latter.

The dust jacket bills Law and Love as the second half of a study begun with The Reign of Law: Marbury v. Madison and the Construction of America (Yale University Press,1997). The first book explores law's rule as embodying a Jewish attitude toward law. This one turns to Christianity.  Kahn discovers in Lear "a representation of the universal love for all mankind . . . which is at the heart of the Christian tradition." (xviii) I do not think that the universal love Kahn describes is either represented in the play or present at the heart of Christianity.

A Brief Summary of a Central Theme

Kahn organizes his reflections around the trials he identifies throughout the text, beginning with Lear's examination of his three daughters, Goneril, Reagan, and Cordelia. The king demands testimony of filial devotion to determine the share of the kingdom each daughter will receive. In this trial-like process, he translates his valuation of his daughters' love (family affairs) into the domain of political power (affairs of state and law). In Kahn's view, this is fatal. Trials are no medium for truth, and the state no venue for love.

Like any trial, he says, the opening one in Lear produces not what naturally is, but what testimony allows to be constructed. The father who should have known the truth about his daughters' love invokes a process in which the king cannot see beyond appearances. The process releases his power to make "real within the political order that which he names. But love is beyond the king's power to name." (16)

Having abandoned his power, Lear is left with words that do not perform. He can no longer name the innocent and the guilty. His daughters and sons-in-law struggle among themselves for control of the effective speech of politics.

The shift in power prompts Kahn to examine the relation of ruler to ruled, where law holds dominion. Lear committed himself to a trial procedure. Because even an absolute ruler ultimately depends on his subjects, he must court them in some fashion. He must bind himself to forms – law – that are binding on both ruler and ruled. But both are then bound to constructs in which appearance and order, rather than love and justice, hold sway.

In this political world, determined by the logic of statecraft, Goneril and Reagan become the voice of reason. Lear is driven to another world, to the heath, to madness, to truth, to the understanding that the political order is sustained only by power clothed with the illusion of a "divine foundation." (115)

When Cordelia returns to England at the head of the French army, she rescues Lear. She has him drugged and, as Kahn puts it, dragged back into the political order. However, no political order can accommodate the heath Lear and his truth.  When Cordelia's army loses and Lear momentarily recovers insight, a prison cell and death are the only habitation the lawful order affords.

Kahn says that, on the heath, Lear encounters what really is: universal love outside law, where there are no distinctions between ruler and ruled, judge and judged, and "all are equally deserving." (78) There, "[t]o love purely, all that seemed necessary to politics – the world beyond our necessities – must be stripped away." (77) Pure love "recognizes all of man's potential for evil yet still forgives." (141)

No Forgiveness on the Heath

Such universal love and forgiveness are not represented in the play. Take forgiveness. The only forgiveness is that which Lear begs from Cordelia and Edgar grants Gloucester.

The central events of the heath take place in Act III. Driven by an unforgiving storm to comprehend the suffering of the poor, Lear repents that he had taken little care of them. "Take physic, Pomp," he says, "Expose thyself to feel what wretches feel," and he forthwith encounters Edgar disguised as mad Tom. (Sc. 3, ll. 3-34) Tom is naked. Lear tears off his own clothes. He is at one with the wretched creature, exposed to "the extremity of the skies." (Sc. 3, l. 100)

Whom does Lear forgive? Mankind, for being "a poor, bare, forked animal"? God, for making man so? Tom? Cordelia?

The only candidates for Lear's forgiveness are those who have abused him, his two eldest daughters and their husbands. He holds the daughters in mind, but not to forgive. His first identification with Tom is: "Didst thou give all to thy daughters?" (Sc. 3, l. 48) And shortly he adds: "Now all the plagues that in the pendulous air/ Hang fated o'er men's faults light on thy daughters!" (Sc, 3, ll. 66-67) This is not the counsel of forgiveness.

In a farmhouse, still under the spell of the heath, Lear yearns for a thousand yeomen with red burning spits (Sc. 6, l. 15), and he holds a mock trial of Goneril and Regan. It is not a forgiveness ritual.

No Forgiveness in Act IV

That leaves the sons-in-law. When Lear next appears, in Act IV, he is near Dover, but he is still the madman of the heath. Kahn calls attention to Lear's statement about the newborn who cry at having "come to this great stage of fools." (Sc 6, ll. 180-81) Immediately thereafter, Lear imagines mounting a surprise attack on his sons-in-law: "Then, kill, kill, kill, kill, kill, kill!" (Sc 6, ll. 182-85) No forgiveness for sons-in-law, either.

So, where is "Lear's great act of forgiveness in act four" that Kahn refers to? (157) Kahn must mean one or both of two examples Lear imagines. In one, a man has committed adultery. (Sc. 6, ll. 107 ff.) Lear would pardon rather than kill him. He would have copulation thrive among his subjects as it does among birds and insects. Why? "For Gloucester's bastard son / Was kinder to his father than my daughters / Got 'tween lawful sheets" (ll. 114-16); and "For I lack soldiers." (l. 117) He needs no army for an act of forgiveness.

In the second example, Lear imagines a whore who would be whipped by a constable. The constable should "strip" his own back for lusting to commit with her the act he would punish. (l. 159) Notwithstanding their "robes and furr'd gowns," judges are no less sinners than the judged.

These lines recall the Gospels: "Judge not, that ye be not judged" (Mt. 7:1) (RSV) and "let him who is without sin cast the first stone." (Jn. 8:7) (RSV) They are a charge against the self-righteous powerful. Among those who have rags not robes, "None does offend." (l. 166) Lear would grant amnesty to the guilty powerless, not the guilty powerful.  He would act now as a king should: defending the poor, delivering the needy, and killing their oppressors. (Psalm 72:4). Lear soon imagines attacking and killing his powerful sons-in-law. He has not abandoned judgment to a universal forgiveness.  His judgment has been transformed. The first shall be last, and the last first.

No Incorporeal Love in Theater

On the heath, says Kahn, "Lear's soul expands, through his care for the Fool and Poor Tom, to all the poor and destitute, and finally to all of mankind." (169) At that rarified height, "Lear now loves all because he can love no one in particular." (80)

How can this be so?The heath is a tumultuous, testing wilderness. A raging storm lashes Lear's back. He is cold. He wrestles desperately with insanity (senile dementia?). It is a scene of contracting bodies, not expanding souls. Physicality and particularity take center stage. Lear is fully exposed, completely vulnerable, driven about in the storm, no longer a center of action, now naked and fully companion to the pariah, Tom.

At that moment – in a performance that works – the audience identifies fully with Lear, that old man's old body exposed to us. If the mind runs at all in that moment, it runs not to souls and empty generalities. It runs to bodies: his, ours, those of infants we have brought to life, those of people we have tended, loved and buried. The scene is so physical and so particular – so immersed in the world – it astonishes and hurts.

Professor Kahn says the highest level of love, achieved here by Lear, is "world-renouncing." (141) How could Shakespeare have portrayed a Lear more affirming of the world? What more could he ask an actor to do to this end? What more could he ask of an audience? The abstract, out-of-body love Kahn describes is unrepresented here and at odds with the erotic nature of theater. It is also antithetic to the Christian tradition.

No Disembodied Love in the Christian Tradition

The God portrayed in that tradition could scarcely be more humanistically world-embracing. The Word became flesh . . . . So God loved the world. So does he choose a particular people and deliver them from a particular enslavement into the particular freedom of his law. So does he thoroughly, vulnerably identify himself with them. So does he have a kingdom and send a messiah. So in the Gospels and Epistles is love the complex, contextual love of the neighbor. So does this God engage in local politics, doing what it takes to keep human life human in the messy details of daily struggles and difficult relationships.

Kahn mistakes the nature and location of transcendence as the Christian tradition understands it. In that tradition, transcendence is not an apart-from or an out-there. God is beyond in the midst of life, Dietrich Bonhoeffer said, and transcendent in the nearest neighbor's claim upon us.

So does God summon people to join him in practicing love in the world, including politics where love takes form as justice. So does he promise forgiveness, necessary because the practice of love is risky business and not a dream. Hands may be dirtied, even bloodied, and hearts may be broken. Thinking to do good, we may do evil, to others and to ourselves. We can never be sure. We are not God. Absent specific, daily forgiveness of specific sins, we could not take the risks of love and loving action in the world.

For love, Cordelia takes up arms against her native state. Bonhoeffer did much the same in Germany, wished for the defeat of his country, and was executed. For love, some of us take up law.

Kahn quotes two, brief sayings of St. Paul: "[Y]ou have died to the law through the body of Christ" (Rom. 7:4); and "For all who rely on works of law are under a curse" (Gal. 3:10). He cites them in support of his central theory that "[t]he highest truth, and true freedom, exists beyond law" and that "if we cannot transcend law we are irredeemably and irretrievably lost." (xiii)

The Romans statement is made in the process of a lengthy reflection on the relation of Jews and their law to followers of Jesus and their gospel. He is not addressing the law of the state. He is addressing the law of Moses.  Like every other author in the Christian scriptures, he says this law is holy, just, good, and a gift of God.  Indeed, the law is fulfilled in the body of Christ. Near the end of the reflection, he notes that "all Israel will be saved." (Rom. 11:26)

The Galatians statement on works of law is made in a discussion about faith and works.  It is faith that justifies. Kahn says that forgiveness must be obtained by personal action (102) and that Lear's state of universal love is his own achievement. (168) Both statements express examples of what St. Paul means by works; he holds that forgiveness and love are gifts and that they are already given.

St. Paul is no authority for separation of love and worldly law-politics. And neither is Shakespeare. In The Merchant of Venice, in another trial, Portia does not reject law. She practices it. She insists on it. She insists on its fulfillment. Justice and mercy – these forms of love – are not outside of law. They are its fundamentals. "And earthly power doth then show likest God's / When mercy seasons justice." (Act IV, sc. 1, ll.191-92)

Nothing

Lear understandably sought to avoid future strife in the kingdom and to enter upon a peaceful retirement. Perhaps there is fault in his vanity (who "doth love us most") and for the means of displaying it. The sudden storm of his rage at Cordelia and Kent reveals that he is already mad, from age as well as power. Tragically, he cannot hear the meaning in Cordelia's "Nothing."

In the final scene, Lear enters bearing Cordelia's body. It is almost unbearable to the audience. Kahn dismisses the interpretation of the image as suggesting the Pietà because, he says, Cordelia saves no one and there is no resurrection. He misunderstands the Pietà and misses the apperceptive education the play offers.

George Steiner observes that, when Cordelia says "nothing," we hear much more. (Real Presences 212-13 [University of Chicago Press, 1991]) Later, when Lear stands naked on the heath, we see him fully clothed with what Steiner calls "wholly present but unsayable meanings." (Id.) We learn how nothing and nakedness invoke meaning.

At the end, the Cordelia Lear holds no longer is. Like the son Mary cradles in the Pietà, she is nothing. But is nothing more to be seen or heard? The Gospel of Mark ends with three women fleeing an empty tomb "and they said nothing to anyone, for they were afraid." (16:8) (RSV) How read that conclusion of emptiness and of nothing said?

"Thou'lt come no more," Lear says over Cordelia's body, "Never, never, never, never, never!" Then he unbuttons for the last time, and dies repeating: "Look on her, look, her lips, / Look there, look there!" What does he see? What do we?

Kahn says there is "no redemptive message in Lear's life. . . . It is over." (168) He is right. It is nothing. The Pietà, Gospel of Mark, and Lear, take their audiences uncompromisingly to the edge of the unbearable, to the limits of language, to where it is finished.  To make the pilgrimage of Lear is to arrive where nothing can be said. But is nothing more to be heard? "Nothing will come of nothing"? If that is all the audience at last learn from Lear, the audience become the actors and re-perform his role.

I hope for readers of any scholarly writing about Lear – Khan's, mine, or anyone else's – that they have attended or will attend a performance of the play that transports its audience to the heights of tragedy, where only art and the expressive power of human flesh can carry us, and where nice, academic arguments are swept from the mind and matter little or not at all.

Milner S. Ball is Caldwell Professor of Constitutional Law at the University of Georgia School of Law and is the author, most recently, of Called by Stories (Duke University Press, 2000).

Editors' Note: Professor Ball also reviewed Laura Hanft's Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery (Columbia University Press, 1998) for Books-on-Law. By way of related interest: In December of 1998, Books-on-Law published a special issue on law and fiction.

Let me be clear at once: King Lear is not Saint Francis of Assisi. The Lear I find in the play is every bit the suffering body that Professor Milner Ball sees. The love that Lear achieves is hardly the abstract, out-of-body experience that Ball finds in my reading. Lear rages, and he enrages us. He does terrible things, and he suffers terribly. But Lear learns something in his suffering. Ball and I disagree on what it is that Lear learns.

For Ball, Lear learns only what we all already know: that justice should be done; that the powerful will abuse the weak; and that law should be tempered by mercy.  Ball's Lear would today become a public interest lawyer, defending the victims of law's malfunctions and society's preference for the powerful and wealthy. For Ball, love and justice describe a single project, and the only real question is whether you support or oppose this project. Lear starts off on the wrong side, but in the end he is where we all should want him: trying to save the victims, and wreaking justice on the wicked. To explain why the play has such a powerful hold on us, if it relates such a conventional story, Ball can only tell us to go see a good production. There, the silences will overwhelm us with their power, and we will experience the ineffable power of love become justice.

No. King Lear is not an Elizabethan version of A Civil Action. The Lear I see is both grander and more tragic. He does not ask us to increase our charitable contributions at the end of the year; he rages at the conditions of life itself. He holds forth for us the magnificent impossibility of living a simple, well-ordered life within our traditions that include both law and love. Lear leaves us with much to say, for he brings us face-to-face with the deepest puzzles of our lives. Like Lear, we want both to act justly and to love. We, too, find that our political forms are not capable of expressing the capacity of the soul for love.

A Theological Disagreement

Professor Ball and I have a theological disagreement on the scope and meaning of love in the Christian tradition. Ball sees Christian love and legal justice coinciding; I do not. We do not need Christianity to know the demands of justice.  Indeed, the story of modernity is in large part the stripping away of justice from a religious context.  Christianity demands more than justice: it demands that we see ourselves in the other even at the moment of injustice, and see self and other as together redeemed, not through justice, but through love. This does not mean that we can ignore justice. Nor does it mean that this is an abstract love detached from particular individuals. The burden is to love all through each individual, despite his or her failings.

King Lear, however, is not simply a translation of the Christian message into a dramatic form. It is simultaneously deeply Christian and anti-Christian. It shows us a striving for a universal love, but the cost of that love is madness. It tests our capacity for love, and finds that we inevitably fail. It denies us any hope of divine intervention to save us from that failure. This is what I mean when I say that there is no redemption in the play. Of course, the image of the Pietà is there, but it does not transcend the profound "nothing" with which the play ends. This is tragedy, not Christian pastoral.

Lear reaches his universal love not by reading Dietrich Bonhoeffer, but through pain and madness. He does not identify simply with the victims of injustice.  He has already experienced the quick turn by which victimizer becomes victim, just as he knows that the victim would act no better were he to possess the power of law. Lear is the best of kings as the play begins, just as Gloucester is the best of fathers. Both do terrible things; both would have their innocent children dead. This is the nature of justice that the play asks us to confront. These are injustices that no amount of law reform is going to cure. This is man as "the bare forked animal" who must be the object of our love.

Disagreement over Dramatic Tension

Most of all, Ball and I disagree on the dramatic tension of the play. Because Ball thinks he knows both justice and love, there is no unresolvable tension in the play for him. There is only the successful achievement of the correct view, linked to an unfortunate ending. I believe the struggle between love and justice is unending and unresolvable.  I do not claim that love is somehow the truth and law a mere false appearance. We, in the West, are deeply committed to both law and love. Both are true for us. But they are not the same truth. The tragedy of Lear is that he cannot hold on to both. He could not do so when he represented the law at the play's beginning; he still cannot do so when he represents love on the fields of Dover.

Lear learns something beyond justice on the heath. He learns that we do not choose the part we play on this great stage of life, and that man deserves our tears. When Gloucester learns the same lesson through his own suffering of a trial for treason, he proclaims his despair in the famous lines, "As flies to wanton boys, are we to the Gods/ They kill us for their sport." There is not a great deal separating the world-renouncing despair of Gloucester from the forgiveness of Lear. From the perspective of the state, both are mad.  The state needs its defenders; it needs its armies. Lear never forgets this entirely, but throughout Act IV he struggles to overcome the demands of law through a larger love. He fails. At the play's end, Lear is no longer crowned with flowers proclaiming forgiveness.  He is again the instrumentality of justice, executing the murderer of Cordelia.

We do not know at the end of the play whether Lear is better off having been "rescued" from madness on the fields of Dover. That love appears as madness in the state is an old theme. What we have learned is that madness lies in both directions. Kings, too, are madmen. There is no single truth by which to order our lives.

We want some redemption; we want to be saved from this tragedy. But King Lear denies us any hope. There is only death at the end of the play. To believe that there is life beyond death is illusion.  It is an illusion that Lear may need; he dies thinking Cordelia still lives. But we know better.

Ball would come out of the theater with a renewed sense of mission to do justice in the state. For me, Lear does not challenge us to do better; it overwhelms us. Too much of this we cannot take. We, like Lear, fall back into the patterns of law that are the state; we hang on to our illusions. But we also remember that on the fields of Dover, for one brief moment, there was a glimpse of a love beyond law. There, we saw that even the best of our law is a cruel game played by wanton gods who throw us up and cast us down for their own sport. If we can experience this watching the play, we have learned something beyond the limits of justice.

Paul Kahn is the Robert W. Winner Professor of Law and the Humanities at Yale Law School. He is the author of Legitimacy and History: Self Government in American Constitutional Theory (Yale University Press, 1992); The Reign of Law: Marbury v. Madison and the Construction of America (Yale University Press, 1997); and The Cultural Study of Law: Reconstructing Legal Scholarship (University of Chicago Press, 1999).

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