BOOKS-ON-LAW/Book Reviews - September 1999; v.2, no.7

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Contents
  • Foster, Kenneth R., David E. Bernstein & Peter W. Huber, editors.  Phantom Risk: Scientific Inference and the LawReviewed by Margaret A. Berger.
  • Garner, Bryan A.  The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate CourtsReviewed by Charles R. Calleros.
  • Jacobs, James B. & Kimberly Potter. Hate Crimes: Criminal Law and Identity PoliticsReviewed by H. Richard Uviller.
  • Korobkin, Laura Hanft. Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of AdulteryReviewed by Milner S. Ball.
  • Lawrence, Frederick M. Punishing Hate: Bias Crimes under American Law.   Reviewed by H. Richard Uviller.  Reply by Frederick M. Lawrence.
  • Tiersma, Peter M. Legal LanguageReviewed by Francis J. Mootz III.
  • Talkback
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Reviews

Making It Worse: "Hate" As an Aggravating Factor in Criminal Conduct
by H. Richard Uviller

Punishing Hate: Bias Crimes under American Law
Frederick M. Lawrence
Cambridge, MA: Harvard University Press, 1999
Cloth: $39.95
Pp. 288

Hate Crimes: Criminal Law and Identity Politics
James B. Jacobs & Kimberly Potter
New York, NY: Oxford University Press, 1998
Cloth: $24.95
Pp. 224

It is very difficult to argue a moral position.  It can be restated, perhaps with greater vehemence; it can be re-enforced by naming other scholars -- perhaps more illustrious than the proponent -- who have espoused a similar thesis.  But a moral proposition cannot be rhetorically demonstrated.  In these pragmatic, secular, and realistic times, neither reference to a deity nor to utility nor to universal intuition will readily provide the wanting authority to put the contending thesis across.  This is not to say that some very entertaining pursuits of moral tenets are not possible, nor to denigrate the thoughtful insights of our contemporary moral philosophers.  I mention it only because it is reassuring to hear an acknowledgment from one who is about to take you through a moral argument that the journey is perilous.  It is ultimately disappointing to follow a guide who mistakes his own notion of common sense for eternal principle.

Here is the moral question: Is a crime aggravated if it is motivated by racial or religious bigotry?  Does the petty offense of defacing a wall become a more serious offense if the graffiti is a swastika or an insulting reference to race?  Or, to the extent that the displayed bigotry is a crude political expression, does it deserve special immunity against criminal contemplation?  Is murder raised in gravity where the motivation is hatred of people in a defined and especially vulnerable group, rather than, let us say, personal antagonism, cold-blooded contract, or the perverse gratification of taking human life?  And, if so, how is that special category to be defined? Do misogyny or homophobia rank with racial or religious hostility?  The moral question is not free-floating.  In the last two decades, about 80% of American jurisdictions have enacted laws that, one way or another, take bigotry as enhancing criminality.

Add-on Punishment is Appropriate

Hard questions, one might have thought.  Professor Frederick M. Lawrence knows the answers -- and they are perfectly clear.  He has written a short book (not his first publication on the subject), called Punishing Hate: Bias Crimes under American Law.  Laden with pious platitudes and the comfortable certainty that his moral conclusions are shared by all right-thinking people, Professor Lawrence’s submission suffers from vacant definitions, cavalier assumptions, dubious distinctions, and an occasional lapse of command over the relevant legal doctrines.  Harsh words, regrettably.  But let me offer some examples of each of these weaknesses.

Right at the top, the author admits he shares "the deeply felt intuition that bias crimes are in some sense worse than otherwise similar crimes that lack bias motivation." (ix)  He takes as his task (despite collegial discouragement) confirmation of the shared intuition by "firm theoretical, philosophical, and legal grounding." (Id.)  Unfortunately, with his self-evident intuition in his pocket, Lawrence does not take his grounding much beyond reiteration and elaboration.

As a creature of the '90s, the concept of a "bias crime" requires some thoughtful definition.  Lawrence tries, but the product is disappointing.   "A bias crime," he says at one point, "is a crime committed as an act of prejudice." (9)  That might be enlightening if we knew what an "act of prejudice" is.  Proceeding with the undertaking, Lawrence informs us: "A bias crime occurs not because the victim is who he is, but rather because the victim is what he is." (Id.; author’s emphasis.)  Does that mean that, when the bank teller is shot because he is the teller, he suffers for what he is?  And Lawrence has some understandable difficulty explaining why sexually motivated crimes against women are not within the definition (such as it is) of bias crimes.  Actually, the generally unsatisfying treatment of the matter of delineation undermines the author’s thesis.  If these crimes cannot be defined by something better than a "substantial motivation" to enact hostility to members of some socially defined category suffering from " a recognizable social pathology within the culture" (11), serious questions involving the principle of legality are raised -- questions not fully recognized by the author.

As far as cavalier assumptions go, arguing that the greater harm of bias-inspired attacks justifies amplified punishment, Lawrence asserts: "As unpleasant as a parallel assault is, the rational person would still risk being victimized in that manner before he would risk the unique humiliation of a bias-motivated assault." (62)   I, for one rational person, cannot imagine that I would more readily submit myself to a severe beating by a group of thugs who thought I had "dissed" them by a direct glance than I would to the same beating because I was the first person of my race to cross their path.  When it comes to serious injury, the extent of the injury all but eclipses the "unique humiliation" of the motive that accompanies it.   Or consider the confident assumption underlying this: "Because racial harmony and equality are among the highest values held in our society, crimes that violate these values should be punished and must be punished specifically as bias crimes.   Similarly, bias crimes must be punished more harshly than crimes that, although otherwise similar, do not violate these values." (167)  Ipse dixit!   Conjugal love is highly valued, but divorce is not a crime.  At times, the rhetorical support for these assumptions descends to the simple level of polemic: Enactment of a bias crime law, Lawrence informs us, "denounces racial hatred, and to fail to do so gives comfort to the racist." (169)

In the dubious distinction category, Lawrence insists on distinguishing crimes motivated by racial animus from those in which a selection of victim was made on the basis of race but without any evidence of emotional hatred.  Lawrence concedes that scholars have ignored the distinction, and acknowledges that the Supreme Court saw little use in it when they passed upon a "discriminatory selection model" statute in Wisconsin v. Mitchell (1993).  He also supplies examples of the two categories, which do little more than demonstrate the difficulty of making the call, as he appears to concede when he writes, "the majority of bias crimes can not be unambiguously placed in one category or the other." (35)  There is a difference, surely, but in the light of these difficulties, one would expect a more convincing demonstration of the need to draw such an uncertain line.

Lawrence’s slippery grasp of operative principles of law is manifest in his confusion regarding the relationship of mens rea and motivation.  He writes: "But the key factor in identifying an actor as a bias criminal is the motivation for his conduct, what is known as mens rea in criminal law doctrine." (3; Author's italics)  No, motivation is not known as mens rea, a term that refers to criminal intent or unlawful purpose, not to the activating reason for the conduct.   The confusion persists.  Considerably later, Lawrence (who has a regrettable penchant for dividing various things in twain) again notes: "This second tier mens rea for bias crimes involves motive. . . ." (95)

Finally, it must be noted that Professor Lawrence’s generally disappointing level of analysis is not enlivened by a graceful style.  As an example of his disagreeable, klunky, pedantic prose -- of elusive import -- consider the following sentence: "Punishment not only signals the border between that which is permitted and that which is proscribed, but also denounces that which is rejected and announces that which is embraced." (167)  But perhaps the section that most seriously undermines the merit of the book is the Model Bias Crime law that Lawrence submits in conclusion.   Dividing the crime into two degrees (according to his preferred mode), he defines the first degree as any crime, motivated in substantial part by ill-will, etc., based on race, color, or religion, or engaged in (and here comes the thirteenth chime of the clock) "with the knowledge that it is virtually certain that his conduct will be perceived by the individual victim or victim target group to have been motivated in substantial part by ill-will, etc."  This first degree of the crime has the effect of raising the underlying crime "two levels" of severity.  For all his understanding of the demands of virtue, Professor Lawrence has given insufficient attention to the vice of unchargeable penal definition.

"Repeal is the Best Remedy"

James B. Jacobs and Kimberly Potter have taken a very different, and far more successful, approach.  In their even shorter book, Hate Crimes: Criminal Law and Identity Politics, they undertake to reexamine the concept of "hate crimes" and the assumptions that launched the prevalent laws against them, and to offer a critical analysis of the flaws -- in terms of coherence and social policy -- afflicting the statutory corpus.  Their conclusion: an ill-conceived venture, driven by "identity politics," ultimately more harmful than helpful in the troubled world of race and crime. Boldly, they propose no fix; general repeal is the best remedy.

Jacobs and Potter state their thesis clearly at the outset: hate crime laws were not passed by the federal government and the majority of states in the 1980s because of a lacuna in the criminal law.  "Insufficient or unduly lenient criminal law," they dryly observe, "is not a problem that afflicts the United States." (5)   Nor, the authors insist, is there any reason to believe -- despite the persistent clamor -- that the incidence of crime motivated by bigotry is on the increase.   Rather, hate crime laws were passed to "send a symbolic message of support to certain groups" by imposing more severe punishment for criminal conduct directed by prejudice against certain legislatively selected categories. (5-6)  The message, however, as the authors argue throughout, is confused, conflicting in some aspects with principles of free expression, and, in the last analysis, unlikely to have much effect on the problem (such as it is) of bigotry as a motivating factor in criminal conduct.   "[C]riminals" they point out at the start, "inherently are less amenable than other citizens to societal norms of tolerance and equality and to demands for a higher level of civility.  It is one thing to purge our core political and social institutions of discrimination and bigotry [by laws of another sort altogether] and another to transform our criminals into equal opportunity offenders." (8)  Later they amplify: "The message that hate crime laws communicate to this group [the criminals] is just one of a constant barrage of condemnation and threats beamed at criminals.  It would take some heroic assumptions to believe that bigoted and anti-social criminals and potential criminals, if they are listening at all, will be any more responsive to this message than they have been to all the other threats and condemnations contained in criminal laws that they regularly ignore." (68)

To the extent that commentators (Frederick Lawrence among them) seek to justify hate crime laws as "protecting" historically oppressed and persistently victimized groups, Jacobs and Potter offer some sobering numbers. (17)  A rather small proportion of violent crime is interracial (20%).  Fifteen percent of these violent crimes are black on white, only 2% the other way around.  Ninety-two percent of murdered African-Americans and two-thirds of white victims are killed by members of their respective races.  Robbery has the highest proportion of interracial actors (37%) and of these, the overwhelming number are black on white (31% as compared with 2% white on all other races combined).  If cross-racial hostility is proportionally distributed both ways (as I suppose it to be), many more blacks will find themselves more severely punished by the hate crime laws than whites.  This gives a rather perverse twist to the supposed purpose of the laws to "protect" historically oppressed peoples.

Another point that escapes the attention of Frederick Lawrence is noted cogently by Jacobs and Potter.  Even if racially motivated crime can be deemed aggravated, insurmountable problems impede application.  Framers and advocates have conceived of a universe of three, maybe four races; four, maybe five religions.  So racial animus is as simple as the distinction between black and white, Jew and Christian.  In fact, "Asians," to take an example, includes a multitude of ethnic, tribal, national, and religious groups who are just as likely to bear each other ill-will as the members of some exogenous group.  Suni and Shiite Muslims have no love for each other, nor do the various bands of people that might be grouped as Hispanic.  If hate crime laws are designed to penalize prejudice, the authors ask, what is to be done with the hostility between American and Caribbean blacks?  "Interracial," it turns out, is as difficult to define as bias itself.

Why are we launched on this course?  Jacobs and Potter go to some lengths to refute the popular myth that we are suffering from an "epidemic" of bigotry, expressed in criminal conduct.  They document the prevalence of the claim. Since the mid-1980s, politicians, journalists, and scholars, along with advocacy groups, have expressed the belief that there has been an alarming spread of hate-motivated violence across the United States, growing to epidemic proportions (in the inescapable metaphor).   The lack of statistical support for the claims, the distortion of what incomplete and unreliable data there are -- especially by academic writers -- is stunning.   Drawing their own conclusion from the shaky reports, the authors discern a "very small" number of hate crimes (thus classified by reporting law enforcement agencies), most of which are low level offenses, and they find no significant fluctuation whatever over the years studied.

The crux of the authors’ thesis is this: "Fundamentally, the hate crime laws are symbolic statements requested by advocacy groups for material and symbolic reasons and provided by politicians for political reasons." (65)  They are, moreover, the product of what the authors call "identity politics," a socially corrosive subset of politics, referring to the political inducements to self-definition -- and, necessarily, the conceptualization of the rest of society as "the other" -- in terms of divisive characteristics.  "Identity politics," Jacobs and Potter maintain, "is fueled by a sense of resentment based upon victimization, discrimination, and disadvantage.  What gives a group its character, status, and identity is its perception of mistreatment by the white, male, Christian, heterosexual ‘majority’ as well as by other minority groups." (66)  Hate crimes laws, of course, were readily, and thoughtlessly, passed by politicians who seized upon what appeared to be a cost-free means of declaring their opposition to bigotry.  In fact, as Jacobs and Potter convincingly argue, costs are considerable.  "By redefining crime as a facet of intergroup conflict, hate crime laws encourage citizens to think of themselves as members of identity groups and encourage identity groups to think of themselves as victimized and besieged, thereby hardening each group’s sense of resentment.  That in turn contributes to the balkanization of American society, not to its unification." (131)

Conclusion

I was of two minds on the hard questions when I picked up these two recent books.   I am now close to full agreement with Jacobs and Potter.  Perhaps the appeal in their approach is that they largely ignore the deontological framework and cast the story in terms of practicality, politics, and symbolism.  By skillful deployment of the powerful factors, they have made the moral argument appear moralistic.

I say close to agreement because I would quarrel with them only on their rather casual sweeping of the minor crimes manifesting categorical antagonism into the repeal basket with the others.  While I readily agree that murder and rape are not aggravated by bigotry, I am not so certain that painting a slogan -- "NIGGERS MUST GO," let us say -- on a wall in a mixed neighborhood is the same as spraying "GO YANKS" on the same wall.  As I have said, it is difficult to argue matters of moral preference.   But it seems obvious to me that murder, rape, and aggravated assault are punished severely enough without adding the bigotry element.  And compared to the gravity of the substantive crime, the motivational impetus is trivial. Not so with minor offenses; trespass and vandalism are multiplied in gravity when the purpose is to express bigotry.

I concede that many of the same problems of defining and grading bias, compounded by First Amendment considerations, pollute current statutes.  But I am not altogether persuaded by the authors’ prudence when they dispose of the issue by saying, simply, "the criminal law is on safer ground, focusing on the extent of damage and defacement rather than the offensiveness of the expressive message." (149)  I might, rather, try to avoid the classification problem by general application, and hope to duck the First Amendment by reviving the somewhat obsolete formula devised by the Supreme Court in the first "fighting words" case, Chaplinsky v. New Hampshire.  My object would be to punish conduct intended to inflict injury or offense or to incite to a breach of the peace by disparagement or hatred expressed toward any identifiable group.  At least in principle, the Supreme Court has approved of punishing expression that is, in effect, aggressive conduct, and I am persuaded that it is unrealistic, as well as unwise, to attempt to restrict the offended victims to premium categories.  This more modest role for the concept of "hate crime" may still have sufficient social utility to be worth a try.

Professor Uviller, a former prosecutor, has been a member of the Law Faculty at Columbia University for over thirty years.  He has taught and written in the field of criminal law and procedure, among others.  His most recent books are Virtual Justice (1996) and The Tilted Playing Field (1999), both published by Yale University Press.

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A Reply to Richard Uviller
by Frederick M. Lawrence

Although one would not know it from his review, Richard Uviller and I certainly agree on one thing: whether bias crimes should receive enhanced punishment is indeed a hard question.  It requires us to estimate harms to individuals that are hard to measure, and to assess harms to groups and society that are hard to understand.  Not surprisingly, therefore, the punishment of bias crimes raises hard questions.  But from there Uviller and I part company, for I believe that these hard questions demand our best efforts for an answer, even if we cannot offer answers with absolute certainty.   Uviller apparently believes that if no certain answers are possible, the criminal justice system may not take special cognizance of bias crimes.  As Geoffrey Hawthorn wrote about the work of Amartya Sen, "we have to reject being precisely wrong in favor of being vaguely right."  Perhaps any effort to gauge precisely the harm caused by bias crimes, and to argue for punishment of bias crimes on that basis, may aim no higher than to be vaguely right -- but that is preferable to ignoring these harms, rejecting the punishment of bias crimes, and thus being precisely wrong.

I will focus on three elements of Professor Uviller’s critique: (i )the assessment of the harm caused by bias crimes; (ii) the proper role of the perpetrator’s motivation in punishing bias crimes; and more briefly (iii) the structure of the model bias crime statute proposed in my book, Punishing Hate.

Measuring the Harms Caused by Bias Crimes

Bias crimes may be distinguished from "parallel crimes" (similar crimes lacking bias motivation) on the basis of their particular emotional and psychological impact on the victim.  The victim of a bias crime is not attacked for a random reason (as is the person injured during a shooting spree in a public place), nor is he attacked for an impersonal reason (as is the victim of a mugging for money).  He is attacked for a specific, personal reason.  A good example is the most recent at the time of writing.  On August 10, 1999, Buford O. Furrow, Jr. fired seventy rounds of machine gun fire in the North Valley Jewish Community Center in Granada Hills, a Los Angeles neighborhood.  If what is now alleged is proven to be true, he shot at his victims not because of who they were as individuals, but because they were campers or staff of a Jewish-run camp.  He is said to have told law enforcement officials that he "wanted to send a message to America by killing Jews."

Bias crimes thus attack the victim not only physically but at the very core of his or her identity, causing a heightened sense of vulnerability.  Bias-crime victims tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of isolation.  One study of violence in the work-place found that victims of bias-motivated violence reported a significantly greater level of negative psycho-physiological symptoms than did victims of non-bias motivated violence.  An individual who has been racially stigmatized from a bias crime will often be hypersensitive in anticipation of contact with other members of society whom he sees as "normal," and will even suffer a kind of self-doubt that negatively affects his relationships with members of his own group.  The stigmatized individual may experience clinical symptoms such as high blood pressure or increased use of narcotics and alcohol.

Uviller may feel that he would suffer no more from a bias-motivated assault aimed at him because of his race than he would a parallel assault.  He may even be right.   But, were this the case, he certainly would be unusual among victims of bias crimes.  His argument here is not against mere assertions as he suggests, but rather with numerous victim studies that are discussed and cited in Punishing Hate.   Uviller either failed to read these sections with care, or chose to ignore them.

Similarly, the impact of bias crimes on the target community -- that is, the community that shares the race, religion, or ethnicity of the victim -- is not based on mere assertion, but on sociological and psychological studies.  Members of the target community of a bias crime experience that crime in a manner that has no equivalent in the public response to a parallel crime.  Not only does the reaction of the target community go beyond mere sympathy with the immediate bias-crime victim, it exceeds empathy as well.  Members of the target community of a bias crime perceive that crime as if it were an attack on themselves directly and individually.  Furrow’s attack at the Jewish Community Center in Grenada Hills was in fact an attack on Jewish-Americans throughout the country and was perceived in that manner.  This additional harm of a personalized threat felt by persons other than the immediate victims of the bias crime differentiates a bias crime from a parallel crime and makes the former more harmful to society -- again, not based on assertion but on documented studies upon which Punishing Hate draws.

When I claim that bias crimes cause a greater harm than parallel crimes to their victims, target community, and the community generally, and thus should received increased punishment, it is no more necessary to show that this is a universally shared view than it is elsewhere in the criminal law.  Does everyone agree that an assault with a deadly weapon deserves greater punishment that an assault that causes precisely the same physical harm to the victim but is accomplished without this weapon?  The answer, of course, is that it does not matter.  The argument for the enhanced punishment of aggravated assault would proceed by an assessment of harm to individuals and the society more broadly.  Assessment of the impact of bias crimes in America provides ample support for enhanced punishment.

Motivation as an Element of the Crime

Some scholars have criticized bias-crime laws for impermissibly straying beyond the punishment of act and purposeful intent to reach the punishment of motivation.  Their argument rests on the assertion, apparently accepted by Uviller, that motive can be distinguished from mens rea -- that is, that motive can be distinguished from intent.  Certainly there is a formal distinction between motive and intent: intent concerns the mental state provided in the definition of an offense in order to assess the actor’s culpability with respect to the elements of the offense, whereas motive concerns the cause that drives the actor to commit the offense.

The formal distinction between intent and motive, however, does not hold the weight that some would place upon it, because the decision as to what constitutes motive and what constitutes intent depends on what is being criminalized.  Criminal statutes define the elements of the crime, and a mental state applies to each element.  The mental state that applies to an element of the crime we call "intent," whereas any mental states that are extrinsic to the elements we call "motivation."  The formal distinction, therefore, turns entirely on the elements of the crime.  What is a matter of intent in one context may be a matter of motive in another.  There are two equally accurate descriptions of a racially-motivated assault: the perpetrator possessed (i) a mens rea of purpose with respect to the assault along with a motivation of racial bias; or (ii) a mens rea of purpose with respect to the parallel crime of assault and a mens rea of purpose with respect to assaulting this victim because of his or her race.  The defendant in description (i) "intends" to assault his victim, and does so because the defendant is a racist.  The defendant in description (ii) "intends" to commit an assault, and does so with both an intent to assault and with a discriminatory or animus-driven intent as to the selection of the victim.

Because both descriptions are accurate, the formal distinction between intent and motive fails.  Whether bias-crime laws punish motivation or intent is not inherent in those prohibitions.  Rather, the distinction simply mirrors the way in which we choose to describe them.

The Model Bias Crimes Statute

A final word about the Model Bias Crime statute proposed in the final chapter of Punishing Hate.  The organizing scheme of the proposed statute, consistent with the modern approach of criminal laws such as the influential Model Penal Code, is culpability.   A first degree bias crime is one committed with purpose to commit a bias crime or knowledge that it is "virtually certain" that the harms of a bias crime will occur.  "Virtually certain" appears to be the offending language from Uviller’s point of view.  Would Uviller similarly criticize the Model Penal Code’s definition of "knowing" conduct for result crimes, which requires that the perpetrator be "aware that it is practically certain that the conduct will cause such a result"?

But I forget -- Uviller likes his certainties absolute.  Nothing else will do.   I accept practical certainties, both for purposes of a perpetrator’s mens rea and for purposes of assessing harm in determining criminal punishment.   Better vaguely right than precisely wrong.

Frederick M. Lawrence is a professor of law at Boston University.

Editors’ Note: For a listing of hate crime laws, go to 1999 Hate Crimes Laws and Statement re: 1999 Hate Crimes Prevention Act.

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Converting Unknown Risk into Phantom Risk
by Margaret A. Berger

Phantom Risk: Scientific Inference and the Law
Kenneth R. Foster, David E. Bernstein & Peter W. Huber, editors
Cambridge, MA: M.I.T. Press, 1993 (Paperback Edition, 1999)
Paper: $22.00
Pp. 457

Phantom Risk: Scientific Inference and the Law consists primarily of scientist-authored case studies of fifteen agents that were suspected of harming human health and became the subject of extensive and expensive tort litigation.  The volume is edited by Kenneth R. Foster (professor of bioengineering at the University of Pennsylvania), David E. Bernstein (law professor at George Mason University), and Peter W. Huber (Manhattan Institute).  The editors contribute summaries of the litigation at the end of each section, analyze the scientific and legal context in which these controversies arose, and in a final chapter offer recommendations on how the legal system should deal with scientific disputes.  Of course, the book’s title tips the reader to the contributors’ and editors’ findings: each of the risks surveyed turns out to be a phantom risk, meaning that no reliable scientific evidence shows a causal connection between exposure and harm.

Scientific Expert Proof Must Be Screened

The editors’ conclusion -- that the huge costs of toxic tort litigation are so unwarranted that the legal system must develop mechanisms for excluding marginal or unreliable scientific evidence -- is very much in line with current mainstream thinking. Phantom Risk went to press in 1993 just as the United States Supreme Court granted certiorari in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). Daubert’s test for admitting scientific testimony in federal courts mirrors much of the discussion in Phantom Risk.  Daubert recognized the trial court as the "gatekeeper" who has the obligation to exclude expert scientific testimony unless it is the product of scientific reasoning and methodology.  Indeed, Dauberts celebrity -- it has been cited more than 3000 times, and has its own database -- undoubtedly explains why Phantom Risk was reissued as a paperback in 1999.  The book not only substantiates the rationale for Daubert, but also dispenses scientific information of the kind Daubert requires a trial judge to consider in deciding whether the proffered expert proof is "ground[ed] in the methods and procedures of science."

But troubling questions unfold between the lines of Phantom Risk. Is the evidentiary standard advocated by its editors in the public’s best interest?   Does it check costly and uncalled for litigation, or does it jeopardize the prevention and discovery of risks that are not phantom but real?  Do judicial decisions that terminate toxic tort litigation serve justice by eliminating the most egregious cases, or do they prevent reform by relieving just enough pressure so that we can avoid having to confront the failings of our present system?

What Is a Phantom Risk?

The case studies in Phantom Risk survey some of the preeminent scientific controversies about causation that have entered the courtroom via tort litigation.   Among the topics discussed are whether weak magnetic fields or environmental pollution cause cancer; whether spermicides or Bendectin cause birth defects; and whether adverse health effects can be attributed to exposure to dioxin, PCBs, chemical pollutants, trichloroethylene, low levels of asbestos or nuclear fallout.

The contributors’ comments and the editors’ essays are instructive about the various ways in which science seeks to determine whether exposure to a particular agent causes adverse health effects.  The editors’ opening chapter provides an overview of how epidemiological and animal studies deal with causation issues, and also offers a succinct account of how consensus is reached within the scientific community.   This chapter prepares the reader for the far more detailed scientific discussions in the case studies, and furnishes helpful background information for the "intelligent lay reader" -- to whom the book is addressed -- about the problems courts face in toxic tort litigation.  The scientists’ accounts are temperate, well-reasoned, and informative.  The contributors typically proceed by first providing background material on the nature of the alleged hazard -- such as its composition and use and history in the marketplace -- and then examine and critique the various scientific studies that have tested a hypothesized link between exposure to the agent and particular health consequences.

The contributors candidly explain why the agents they discuss fell under suspicion in the first place.  Unlike other works authored by Peter Huber, the originator of the "junk science" label, Phantom Risk is much less polemical.   The accounts acknowledge that many cases arose because of controversies within the scientific community.  For instance, the chapter on spermicides recounts that, by April 1982, three articles (one in the Journal of the American Medical Association) had suggested a possible link between spermicides and birth defects.  This background makes understandable Wells v. Ortho Pharmaceutical Corp. (N.D.Ga., 1985), a non-jury case in which a federal judge awarded damages of over $5 million (somewhat reduced on appeal) to a child born in 1981 with severe and multiple birth defects.  Although Wells is at times trotted out as Exhibit A in proving that the federal courts were inundated with "junk science" prior to Daubert, Phantom Risk acknowledges that the initial studies by respected scientists "did raise the spectre of a serious problem . . . [that] only in the hindsight of later work" proved to be unfounded. (431)

Similarly, case reports and some early studies raised questions about the safety of Bendectin, the morning sickness remedy alleged to cause birth defects.  These raised considerable concern, especially because Bendectin was manufactured by the same company that had marketed Thalidomide. Daubert was one of the last of the Bendectin cases.   Dioxin, the controversial ingredient in Agent Orange, came under suspicion because it was shown to cause serious toxic effects in animals, including birth defects and cancers.

In these cases, and the others discussed in Phantom Risk, subsequent scientific research failed to confirm the causal connection that was initially suspected.  And yet, these preliminary misgivings fueled litigation that often had enormous repercussions.  In the case of Bendectin, the defendant voluntarily took a drug off the market that had been used by over 20 million women, and in the case of Agent Orange the defendants settled for $180 million, a sum which may now seem paltry in light of the amounts offered to resolve the tobacco, asbestos, and silicone breast implant litigations, but which fifteen years ago was the largest such settlement on record.   (Despite the fact that dioxin was never shown to produce cancer in humans, recent newspaper reports of food contaminated with dioxin in Belgium invariably referred to dioxin as a cancer-causing substance.  Phantom risk can have a long life.)

The more stringent evidentiary standard urged by Phantom Risk might have resulted in far faster and less costly resolutions of some of these controversies.   In the Bendectin litigation, for instance, had the Daubert test applied from the outset, the trial court might have excluded the plaintiff’s experts in the very first case on the ground that the early studies were too inconclusive and speculative on which to base an opinion.  In hindsight, this seems desirable because we now know on the basis of extensive research that, at worst, Bendectin is an extremely mild teratogen.   (Epidemiological studies are incapable of proving that something has no effect, and also incapable of detecting very slight increased risks.)

Finding the Causal Link

But suppose Bendectin were less benign; suppose it really did increase certain types of birth defects.  Under the Phantom Risk regime would we ever find out?   Of course, in the case of an effect as pronounced as that caused by Thalidomide, a causal relationship would be noticed.  But suppose the effect is more subtle, and not unique.  Diseases or conditions that have not previously been observed suggest that something new is amiss that needs to be studied.  But it is extremely difficult to detect or substantiate a causal connection between an agent and a disease that is known to affect persons who never had any contact with the agent.  As the editors and authors of Phantom Risk acknowledge, assessing causation with regard to non-signature diseases is a formidable task involving numerous unknowns.  We do not at present understand the etiology of many birth defects, auto-immune diseases, and cancers.

In light of these difficulties in establishing causation, the rejection of tentative hypotheses as insufficiently grounded in science may have its costs.  A point that emerges clearly from Phantom Risk is that at the outset of the controversies it discusses, no one, including the eventual defendants, knew whether or not the agent in question could harm human health.  After research began, it took years and the expenditure of considerable time and money before some sort of consensus arose.  For instance, while it is now firmly established after decades of research that exposure to high concentrations of asbestos is hazardous, the chapter on asbestos notes that considerable disagreement still exists about the health risks posed by exposure at low doses, and exposure to different types of asbestos fibers.  This, despite the fact that the association of asbestos with disease has been noted since the beginning of the twentieth century. (183)

We also recognize that a research agenda typically develops only after, and in response to, litigation.  As we know from the excellent recent book by Professor Joseph Sanders, Bendectin on Trial (1998), that was true with Bendectin; and it was certainly the case with the silicone breast implants, which were never tested before they were put on the market.   Until a problem is noted, funding for research is not likely to be available.   Of course, some testing is required before certain products, like pharmaceuticals, are put on the market.  But these tests may miss long-term effects and the product’s interaction with other agents.  And, of course, many chemicals and other substances -- such as, for instance, genetically altered food -- have never been tested.  The book notes that, by the mid-1980s, extensive testing for human health effects had been conducted on only about 2% of the chemicals in commercial use. (442)

A potential defendant certainly has no incentive to undertake or fund research that may indicate a problem -- if the law operates so that plaintiffs will lose when not enough research has been done, as Phantom Risk proposes.  And potential plaintiffs, under time constraints because of statutes of limitation, and without defendants’ financial resources or access to defendants’ records, are certainly not in a position to undertake scientific studies, especially the large-scale epidemiological surveys that courts find most persuasive in proving causation.

The Evidentiary Solution and Tort Reform

The danger, which the evidentiary solution does not address, is that the more stringently trial courts screen scientific expert testimony, the more likely a plaintiff is to lose the first case on the ground that only tentative and speculative scientific information is available.  This may lead to a vicious circle.  If every litigation is nipped in the bud, the relevant research may never be done, and we may never find out how much risk a defendant’s product poses.  The fear of phantom risk may produce unknowable risk.

The editors of Phantom Risk are not disturbed about this possibility because they doubt that toxic tort litigation serves a useful social purpose; they find that it imposes huge costs without demonstrably reducing risk or compensating victims fairly and consistently. (440)  Furthermore, they believe that the time, money, and effort spent on risk research could be much "more productively directed toward other health issues." (442)  At bottom, these conclusions rest on the editors’ assumption that toxic tort litigation often seeks to impose liability for exposures that are not very risky, or not risky at all compared to the very much larger "everyday risks that are under a person’s voluntary control," such as driving without seat belts, eating a rotten diet, or smoking or drinking too much. (442)

Even if these criticisms of toxic tort litigation are valid, that does not mean that no current risks are real; or that we need not need guard against unacceptable risks in the future; or that it is fair to deny compensation to persons who have been exposed to risk through no fault of their own.  How these concerns should be balanced is not a matter of proof, but of policy.

On its face, the evidentiary approach advocated by Phantom Risk is value-neutral.  But it rests on the assumption that we have more to fear from phantom risk than real risk.  Insistence on a scientific consensus before plaintiffs may introduce any proof of causation, a standard which Phantom Risk seems to endorse (433, 438-439), increases the likelihood that alleged risks will be dismissed as phantom before their true nature can be determined.  The Daubert test, recently revisited by the Supreme Court in Kumho Tire Co. v. Carmichael (1999), is less draconian.  While "general acceptance" in the scientific community is deemed a factor that may be relevant, its significance in a particular case is left to the discretion of the trial court.

Courts should certainly exclude unreliable evidence.  But in determining what is unreliable, they should take into account the reality of how time-consuming and difficult it is to prove causation.  Too stringent an approach threatens to dismantle toxic tort litigation without adequate attention to what our policy objectives ought to be.   Real tort reform, which is certainly desperately needed, will come about only if we confront the issues caused by scientific uncertainty instead of making policy judgments in the guise of evidentiary rulings.

Margaret A. Berger is the Suzanne J. and Norman Miles Professor of Law at Brooklyn Law School, the co-author of Weinsteins Evidence, and author of "Evidentiary Framework" in the Federal Judicial Centers Reference Manual on Scientific Evidence (1994).  She served as Reporter to the Advisory Committee on the Federal Rules of Evidence.

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A Winning Treatise
by Charles R. Calleros

The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts
Bryan A. Garner
New York, NY: Oxford University Press
Hard Cover: $45.00
Pp. xi, 444

On reading Bryan Garner’s new book on writing persuasive briefs, some judges will be tempted to enact local court rules requiring attorneys to study the book and follow its recommendations.  Why?  Because attorneys who follow Garner’s tips will submit briefs that

  • really are brief,
  • pack plenty of punch,
  • appeal to a sense of justice, and
  • quickly, simply, and precisely inform the reader about the nature of the dispute and the relief sought.

100 Tips

Well known for his previous publications and his CLE seminars on legal writing, Garner collected his top 100 tips on writing briefs, first for a CLE seminar and then for publication of The Winning Brief.  The result is a lively and informative book, divided into 100 chapters, each of which explores a narrowly focused topic associated with a writing tip.  These topics -- ranging from techniques for planning a written project to ways in which writing may reflect the author's personality -- are arranged in the book in ten parts that reflect various stages of the writing process.  The tips not only form the chapter titles, but are also conveniently stated on the inside front and back covers of the book.

As Garner concedes in his preface, "[n]ot all the tips are equal." (x)   At first glance, a handful of tips -- like Garner’s advice regarding typeface and indentation -- may seem trivial to some readers.  Others -- like Garner’s strategies for effective issues, preliminary statements, presentation of cases, and conclusions -- are anything but trivial; they go to the heart of persuasive argument.   Equal or not, however, all the tips play necessary parts in forming a complete package of recommendations for effective brief-writing.  As stated by Garner in his preface, although some tips "are intellectually challenging," and "some are quite easy," all are "points that brief-writers need to work on."

Structure of Each Chapter

Each chapter of The Winning Brief follows a similar pattern.  Garner begins by supporting the chapter's tip with "Quotable Quotes," several paragraph-long quotations from distinguished judges, attorneys, academics, and philosophers.  In one chapter, for example, Garner quotes, among others, Voltaire and Richard C. Wydick.  Garner then presents an "Explanation," a summary of his own views on the topic, often only a paragraph or two.  Finally, in most chapters, Garner ends with one or more examples of effective writing that illustrate his tip, or one or more examples of ineffective writing that suffer from having ignored the tip, or both.  Some of the best examples are "before-and-after" illustrations contrasting conventional, sleep-inducing writing with lively revised versions that get quickly to the crux of a matter.

By beginning most chapters with several quotations that cumulatively exceed the space devoted to his own explanations, Garner might invite criticism that he has violated his own advice in Tip 75 to "avoid voluminous quotations." (296)  Such criticism, however, would be misplaced. Garner’s selection and editing of quotations are masterful; each quote richly deserves its place at the beginning of the chapter.   As a result, each tip opens with eloquent, often powerful, and always pithy tidbits of wisdom that I genuinely looked forward to reading.  In each Explanation, Garner then confidently states his own view, using the preceding quotations as a platform from which to restate his tip and to explain the reasoning for his advice.  Thus, Garner uses the Explanations not just to repeat ideas in the quotations, but to synthesize them, to expand on them, and sometimes to quibble with one of them.  The interplay between the Quotable Quotes and the Explanations is illuminating and often entertaining.

Structure of the Book: The Price of Simplicity

By presenting his views in the form of discrete, narrowly defined tips, Garner runs the risk of oversimplification or even inconsistency.  After all, like the law itself, rules or conventions of writing are simply reflections of policies, strategies, and objectives, and the rules or conventions should be sufficiently adaptable to work flexibly in a variety of contexts.  As a consequence, some matters of persuasive writing are best dealt with in a sophisticated discussion of the tensions between competing objectives, rather than in seemingly unrelated, narrowly circumscribed tips.

For example, in Part C of The Winning Brief, in which Garner gathers tips relating to the task of "Marching Forward through Sound Paragraphs," Garner presents Tip 20: "Break up long, complex sentences. Shoot for an average sentence length of 20 words." (108)  Then in Part D, Garner presents tips addressing the task of "Editing for Brisk, Uncluttered Sentences," including Tip 40: "Keep your sentences to one main thought, but combine related sentences if doing so will minimize choppiness." (182)  Read side by side, the explanation and examples in these two chapters seem at odds with one another.  Of course, the advice in each could be synthesized into a single, more comprehensive discussion of sentence length with compatible recommendations for different writing situations.  But, at least in this case, Garner’s compartmentalized approach precluded a consolidation and synthesis of his points.

This criticism, however, is a minor one, and it relates to an isolated instance in the book.  For the most part, I very much appreciated Garner’s strategy of expressing his views in bite-sized tips and examples.  In most cases, moreover, Garner has presented related tips consecutively, allowing him to relate the tips to one another and to use one to build upon the foundation of another.  Finally, in his preface, Garner astutely warns all readers to apply flexibly their own judgment to his advice: "Notice that I call them ‘tips.’  They’re guidelines, not dogmas.  Although I feel strongly about the advice here given, you are sure to encounter situations in which you'd be better off ignoring it." (x)

Colorful Illustrations and Bold Tips

Most of Garner’s tips are uncontroversial, and he graciously acknowledges -- through his Quotable Quotes -- that he is not the first to advocate them.  Even so, he expresses them particularly well, often providing a fresh and especially persuasive explanation or example for a conventional tip.  For example, in explaining the seemingly unremarkable tip that writers should "[p]lan every writing project by breaking it up -- and carry it out in stages" (3), Garner illustrates his point with a colorful paradigm, borrowed from one of his CLE lecture colleagues, English Professor Betty S. Flowers.  The "Flowers Paradigm" encourages writers to follow a four-stage process called "madman-architect-carpenter-judge," in which the writer allows ideas about general approaches to flow freely in the madman stage, holding at bay the judge, who is too quick to squelch creative ideas through knee-jerk editing and criticism.  After the madman has ranted and raved, the architect plans the structure of the draft, and the carpenter begins the writing process by building the draft.  Only then is the judge permitted critically to review the draft to suggest improvements, partly by ensuring that the draft conforms in all respects to Garner’s 100 tips. (4-6) Although one can find various expressions of similar ideas about the writing process in many books and articles, few of them are as memorable and evocative as the Flowers Paradigm.

Neither is Garner the first author to stress the importance of stating clearly the nature of the dispute at the outset of the brief, as he does in Tips 3 and 13: "Begin the architectural planning by stating the issues. . . . If you don't open with explicit issue statements, sum up the issues and your theme in a brief ‘Preliminary Statement.’" (21, 80)  His examples for those tips, however, are worth the price of the book.  In one, the Petitioner's Preliminary Statement in its brief to the Supreme Court in the well known BMW punitive damages case, BMW v. Gore, expertly summarizes in two paragraphs why the award of punitive damages must be reversed.   In another example, Garner contrasts two Statements of the Case in appellate briefs in the same appeal.  The first, a dense lone paragraph, is perfectly conventional and written in well constructed sentences.  But it puts most readers to sleep, and it loses those who are still awake in a thicket of numbers and other details.  The second statement divides fewer lines of text into three paragraphs and instantly conveys the big picture without becoming mired in details. (23)  These and other examples are strikingly illuminating.

But Garner is even better when he sticks his neck out and creatively proposes writing strategies that are not yet conventional -- but should be.  For example, Garner persuasively argues for a citation style that strikes a balance between the footnote-heavy style of law reviews and the conventional style of citing to authority in the text of briefs.  To support this recommendation, Garner marshals a greater than usual volume of Quotable Quotes, Explanation, and Examples, but his advice is summed up nicely in the tip itself: "Put all your citations in footnotes, while saying in the text what authority you’re relying on. But ban substantive footnotes." (Tip 22, at 114)   In other words, Garner sensibly advocates that brief writers enjoy the uninterrupted flow of prose made possible by dropping long citations to footnotes, while maintaining the discipline to omit substantive discussions if they are not sufficiently important to include in the main text.  Where not precluded by local rules or a particular judge's expressed preferences, Garner’s disciplined use of footnotes makes a lot of sense and ought not be rejected solely for the sake of tradition.

Perhaps the best example of Garner’s creativity is his series of tips on stating issues.  In his explanation for Tip 8, Garner emphasizes that writers should state "the deep issue," one that recognizes the "deep structure of the case." (49)  For example (mine, not his), the question "whether the employer committed an unlawful employment practice under Title VII of the Civil Rights Act of 1964" is superficial, rather than "deep," because it doesn’t incorporate the specific legal standards or facts on which a determination of unlawful employment practice will depend in this case.  In contrast, "a deep issue is the ultimate, concrete question that a court needs to answer to decide a point your way. . . . The deep issue is the final question you pose when you can no longer usefully ask the follow-up question, ‘And what does that turn on?’" (49)

Revised to a better but still conventional form, the Title VII issue statement would ask a more specific question, such as: "Did Malloy create a hostile working environment for his female employees by making repeated and unwelcome sexual advances, in violation of Title VII of the Civil Rights Act of 1964?"  But Garner goes further, unconventionally advocating that the issue statement begin with a number of declarative sentences, so that:

  • the reader can understand the legal and factual premises to the ultimate question,
  • the ultimate question can capture the essence of the dispute with maximum specificity, and
  • the issue suggests a conclusion based on syllogistic reasoning. (48, 68, 74)

At the risk of applying Garner’s advice imperfectly, I offer a passage from my own book on legal method and writing, intended to illustrate Garner’s advice on deep issues -- as he discussed deep issues in an earlier journal article:

Title VII prohibits an employer from engaging in sex discrimination that alters conditions of employment, such as by selectively creating a hostile working environment for female employees.  Malloy repeatedly directed unwelcome sexual requests to three female employees. Malloy thus discriminated on the basis of sex because he did not bother his male employees.  Did Malloy’s discriminatory conduct also amount to a hostile working environment for the female employees sufficient to alter their conditions of employment?

This issue statement explains to the reader that Title VII requires a change in terms or conditions of employment as well as proof of discriminatory conduct.  It also summarizes legal standards that recognize creation of a hostile environment as one way of altering conditions of employment.  It further states facts that establish sex discrimination, thus leading to the deep issue: whether the facts satisfy the second requirement of altering conditions of employment through a hostile-environment theory of liability.

Garner’s idea about including factual and legal premises in declarative sentences to set up the deep issue is not entirely original with him.  He credits a passage from a 1967 publication by Frederick B. Wiener for planting the seed. (67-68)   Nonetheless, it is Garner who fully developed the idea and who has the persuasive power to turn today’s sensible but unconventional idea into the conventional wisdom of the next decade.

A Place on the Shelf

Although A Winning Brief is designed for practicing attorneys and would not be suitable as the exclusive text for first-year students, it is a terrific reference for writing instructors, and it would be a fine text for students in an advanced brief-writing seminar.  In writing this book, Garner has practiced what he preaches, because he advocates his tips persuasively. Indeed, on several topics Garner has converted me to his views.  A Winning Brief will occupy a prominent place on my bookshelf, and will influence me in the next revision of my own book.

Charles R. Calleros is Professor of Law at Arizona State University.  He is the author of Legal Method and Writing (Aspen, 1998) and numerous articles on topics ranging from teaching techniques to civil rights.

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Law as Language
by Francis J. Mootz III

Legal Language
Peter M. Tiersma
Chicago, IL: University of Chicago Press, 1999
Cloth: $26.00
Pp. vii, 314

The jacket of Professor Peter Tiersma’s book illustrates the problem inherent in a linguistic study of legal language.  The jacket features a legal document in fine print, with an overlay of a magnifying glass that brings some of the indecipherable words into focus.  The problem, of course, is that a scholar conducting a linguistic study of language does not have access to a distinct "magnifying glass" that can posit language as an object; he can study language only with language.

Tiersma attempts to avoid the most difficult problems of self-reference that follow from the "interpretive turn" in social studies by pursuing a carefully delimited project.  He argues that legal language has diverged from ordinary language, and therefore can be assessed by comparing it to ordinary language.  His thesis is that "legal language can and should be much less arcane and ponderous, and much more understandable, than it now is." (6)  In other words, he argues that legal discourse should employ ordinary language to a much greater extent if law is to serve its social purposes.

On its own terms, the book is a success.  Some legal documents (standard form contracts, statutes, formulaic wills and trusts, etc.) are easily lampooned for their verbosity, redundancy, complexity and archaisms.  Tiersma’s book provides an accessible and helpful reminder of this fact by identifying some of the worst examples of legal language and providing general explanations of how these examples are sustained in modern legal practice.  But this theme is old news.  I can’t imagine that there is a lawyer, judge or law professor today who would advocate using cumbersome and archaic language instead of so-called plain English, even if their practice involves all too frequent relapses.  Legal language is like an ornate pastry: we know that often it is impressive in appearance but disappointingly lacking in substance, yet we can’t help reaching for it again and again.

Tiersma’s effort to avoid certain topics in the interest of simplicity and focus is not entirely successful.  In his Acknowledgments, he admits that his linguistic approach necessarily leaves out the important insights of literary theory, rhetoric and semiotics, and he concedes that he gives only brief attention to the important linguistic topic of the pragmatics of meaning.   At the risk of appearing to be a spoil sport by reviewing the book that he expressly chose not to write, I want to identify how his uncontroversial plea for a renewed commitment to using plain English in legal discourse uncovers more difficult and subtle problems.

Origins of "Legal Language"

Professor Tiersma’s first three chapters trace the tangled history of Anglo-American legal language.  He attributes some, if not many, of the bizarre characteristics of legal language to historical contingencies, such as William the Conqueror’s triumph at the battle of Hastings that resulted in the ascendency of Law French in the English courts.  This historical recounting is succinct and interesting, but of course every language is a product of historical contingency and social pressures.  Tiersma’s point is that the history of legal language reveals that it is particularly subject to "inertia and linguistic conservatism" and that it "foreshadows the resistance that the profession has shown -- even today -- to reforming its language." (28)

To his credit, he rejects the "conspiratorial" explanation of the distinctiveness of legal language as the sole factor in this historical development, concluding that legal language is not just an "argot," or special code, to hide meanings from the general public. (107)  It is convenient to believe that lawyers have invented and maintain a strange and baroque language solely to ensure that only initiates to the profession can participate in their dialogue.  "Reality, as usual, is more complex," (87) Tiersma rightfully concludes, even if lawyers do have a "penchant for setting themselves apart." (53)  He proceeds from a discussion of historical origins to an examination of the nature of legal language and an analysis of some of the sources of "linguistic conservatism" that cause legal language to diverge from ordinary language.

The Nature of Legal Language

Professor Tiersma makes clear that he regards "legal language" as a "sublanguage" rather than a language distinct from ordinary English. (142-43)   Moreover, he emphasizes that this sublanguage is not unitary, but rather is diverse and fluid in response to different cultural contexts, as revealed by the particular uses of legal English in India. (4, 135)  Nevertheless, his guiding premise is that the sublanguage of legal discourse diverges from ordinary English in "far more" ways "than the technical languages of most other professions." (49)

In my view, Tiersma does not offer a convincing demonstration that legal language is linguistically conservative in unique ways.  He expressly compares the retention of Law French in England long after French ceased being spoken, to the retention of Latin by the Roman Catholic Church, but this brief allusion is never explored.  Additionally, he does not convincingly demonstrate that legal language exhibits particular deficits that can be identified and corrected by simple recourse to ordinary language.  The legal profession uses language to demarcate its membership, to create an aura of mystery, and to require a certain degree of educational initiation as a barrier to easy entry by outsiders, but Tiersma alludes to the similar social purposes served by dialects in ordinary English.  I’m not persuaded that the deployment of the Queen’s English against someone speaking cockney is dramatically different from a lawyer’s bluster.

Professor Tiersma’s book is at its best when he abandons the theme that legal language diverges from ordinary English in unique ways and concentrates instead on explaining how the institutional and social role of legal discourse shapes this professional idiom.  He should have spent more time explaining, for example, that judges use passive constructions in order to bolster their claim to objectivity and to generate maximal rhetorical force within the guiding ideological constraints of the legal system, (76) and that linguistic conservatism is a natural result of a text-oriented practice that is legitimized by an ideology of following the rules laid down prior to the dispute in question. (95-97)  At these points in his discussion, his experience as a linguist and law professor helps shed light on the particular contours of legal discourse, opening lines of inquiry into the role of legal language in securing legitimacy for the legal system.  Unfortunately, these investigations do not play a central role in the book.

The weakest part of the book is Tiersma’s brief discussion of the interpretation and meaning of legal texts.  He adopts soft versions of intentionalism (texts mean just what their authors intended them to mean) (125) and positivism (texts are autonomous documents and so ambiguities and gaps in meaning can be overcome only by moving beyond interpretation). (132)  Ironically, these ideological commitments that he appears all too ready to accept as a background institutional fact have played important roles in shaping our baroque and verbose legal language.  The wrongheaded commitment to "fixing" meaning in "autonomous" texts naturally results in lengthy, formal documents that all too often prove to be inadequate to the unrealistic demands placed on them at a later date.

Legal Language and Social Norms

In truth, Professor Tiersma’s book is not about the nature of legal language; rather, he makes a normative claim about the social function of legal language.  Because he treats this claim as an assumption, though, it remains unexplored and undefended.  Most broadly phrased, he contends that members of the public should be able to understand legal texts, and he postulates this norm as a sufficient criterion for assessing legal language. (241)  If legal documents such as contracts and wills can readily be understood by members of the public, lawyers will not be able to do what is "best" for the client without the client’s complete understanding and assent.  Unlike "teenagers obscuring discussion of sex or alcohol so that their parents will not understand them, lawyers should have nothing to hide from their clients," he insists. (138)

Tiersma’s plea for using ordinary English in legal texts is grounded in common sense, rationality and democratic sentiments, and so hardly can be considered objectionable.  His argument draws on foundational aspirations that clients who retain lawyers and members of the public subject to statutes and regulations should be empowered to exercise their individual autonomy rather than being subjugated by a specialized discourse that they do not understand.  But this is where a subtle discussion of the role of lawyer as advisor is necessary.  There is no standard baseline of "ordinary English" that can adequately convey the meaning of commercial contracts, regulations regarding welfare benefits, constitutional rights and land conveyancing to the diverse persons affected by these legal documents.

The principal role of a lawyer, at least in my experience, is to translate the relatively uniform language of law to the particular language used by the client.  My clients included small trade contractors, large construction companies, and professional firms.  Even within the relatively narrow world of commercial clients I discovered that the most demanding part of my job was to speak to each client effectively.  When my wife (also a lawyer) and I purchased our house, we retained a lawyer to walk us through the closing documents and explain their purpose and effect.  Documents written in plain English would require some explanation even for highly educated lawyers who are unfamiliar with the specific commercial and social context in which the documents operate.   Lawyering cannot be reduced to drafting clear texts that literally speak and act for themselves.

Tiersma is mindful of this reality.  "The hope that every man can be his own lawyer, which has existed for centuries, is probably no more realistic than having people be their own doctor. . . .  In fact, as our society and laws become ever more complex, lawyers will be more essential than ever." (213)  He concedes that "it would be foolhardy for most people to represent themselves in a complicated legal matter, even if legal language were as straightforward as it could be." (97)   But he still argues that the reform of legal language is an important goal.   "Aiming at full comprehension by every member of the public may be overly optimistic, but there is every reason to make statutes and other legal documents clearer than they have been in the past.  This benefits not just the public, but the legal profession itself." (213)  If his normative plea boils down to the principle that, at a minimum, lawyers should be able to understand the meaning of legal documents so that they may serve as effective translators for the public, then to that I can only offer an "Amen."

Ordinary English as Consumer Protection

Professor Tiersma admits that lawyers and judges have made productive strides recently to use ordinary English, although one unfortunate side effect of clearer expression may be a tendency to increase the complexity of the statute or contract, thereby exacerbating the need for lawyer-translators. (215)  Even if lawyers unavoidably must act as translators, Tiersma remains dissatisfied with legal language.  The application of the norm that he defends most strenuously is that "consumers should understand the most important provisions of the documents that they sign." (241)  Unlike other legal documents, consumer documents such as mortgages, financing agreements, and insurance policies continue to be complex and barely decipherable by lawyers.  More important is the fact that a team of lawyers at a large corporation drafts the standard form agreement that is signed by a consumer who has only a general understanding of the document and who acts without the advice of a lawyer.  Because consumers have no realistic access to the services of a lawyer-translator, the use of ordinary English appears to be a plausible method for ensuring full and voluntary consent to the standardized terms of such transactions.

Even here I question whether the use of ordinary English is the optimal solution.   The insurance industry has faced regulatory initiatives designed to make policies easier to read, but there are costs to this approach.  If "ordinary English" means only clarity of expression, then the insured is still faced with a document dealing with a complex and sometimes technical topic.  If "ordinary English" includes a requirement of simplicity, then insurance carriers will feel aggrieved when a clever lawyer for an insured is able to exploit an "ambiguity" that will be construed against the non-drafting party.

There are solutions to this dilemma, but they move beyond the goal of requiring the use of plain language.  A state regulatory body could mandate policy language and the state courts could develop a body of law interpreting this mandated language.   Alternatively, the courts could further develop the doctrine of reasonable expectations to override even unambiguous policy language when enforcement would disrupt the insured’s reasonable expectations.  Both of these proposals would amount to substantive regulation of the transaction.  Tiersma agrees that a "truly effective remedy" would be a substantive rule of law that people are not bound by form language that an average consumer could not understand. (223)

On the more specific topic of jury instructions, Tiersma mounts a devastating attack.   Unlike consumers with reasonable expectations who enter a transaction with merchants seeking to build market share by pleasing them, jurors enter the bizarre world of the courtroom with little protection against confusion.  Particularly in death penalty cases, there is a strong need for linguists to assist state and federal bodies to create comprehensible instructions that provide reasonable guidance to jurors.  Even here, Tiersma realistically admits that instruction written in ordinary English will not be able to educate jurors completely, but matters of degree can be quite important when lives are at stake. (239-40)

Jury instructions, car leases and wills should be easy for ordinary citizens to understand.  Linguists can play an important role in the democratic project of reforming legal language.  Yet, the fact remains that the evils identified by Tiersma are best countered by effective legal counseling or by substantive public regulation that mandates or overrides overreaching form language.  As to reforming jury instructions, though, he is on target.

Persuasion and Performance in Legal Language

I should end on a positive note, because I enjoyed reading Professor Tiersma’s book and learned a great deal from it.  He powerfully demonstrates the difference between legal language when it is used as a performative (creating contract rights or enacting a statute, for instance) and when it is used to persuade an audience (in oral arguments to a court or jury, for instance).  In the latter case, lawyers show a tremendous level of creativity, flexibility and nuance.  The "persuasion" that occurs when lawyers advise their clients and deliberate with them provides the best example of the virtues of legal language, because it is this persuasion that most dramatically brings the archaic legal performatives to life.   Tiersma recounts Johnnie Cochran’s rhetorical strategies for earning the confidence of the jury in the O.J. Simpson case, concluding that lawyers have the ability to break the bonds of archaic and cumbersome legal language when pressed to do so.  However, I am not convinced by Tiersma’s claim that a similar use of ordinary English in legal documents would have a significant impact in real life, which is perhaps one reason why lawyers and legislators remain unmotivated to change.

Francis J. Mootz III is Professor of Law at Western New England College School of Law in Springfield, MA.   His primary scholarly interest is the relevance of contemporary hermeneutical and rhetorical philosophy for legal theory.

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Is the World Flat?
by Stephen M. Feldman

The Horizontal Society
Lawrence M. Friedman
New Haven, CT: Yale University Press, 1999
Cloth: $29.95
Pp. x, 310

For more than two decades, Lawrence M. Friedman has been one of the preeminent legal historians in America.  With some of his most recent books, such as The Republic of Choice (1990), Friedman has broadened his subject matter, becoming more of a wide-ranging social observer and commentator who, to be sure, stresses the significance of legal institutions but also goes far beyond.  In his latest volume, The Horizontal Society, Friedman turns his gaze not only upon American society but, most ambitiously, upon the world at large.

Friedman begins with two rather commonplace observations.  The first is that we live in a time of individualism.  That we live in an individualistic society, at least in America, is so often noted that it needs almost no elaboration.  We have "a culture of personality, personal satisfaction, and self-realization." (10)   "It is the individual who uses, who buys, who wears the clothes and listens to the music, who goes to the store and gets the goods." (71)  Most of all, though, Friedman emphasizes the importance of choice -- individual choice.  The individual chooses (or at least appears to choose) whom to vote for, what goods to buy, what look to have, and so on.

Friedman’s second commonplace observation is that we live in a time of strong sub-cultural group identities.  This is "the age of multiculturalism," when "identity wars and identity politics" rage around us. (155, vii)  Friedman reels off a series of examples that illustrate how multiculturalism can go awry, leading to ethnic and religious violence, as in Rwanda, Bosnia, and Northern Ireland.

One major problem that Friedman wishes to address is the apparent tension between these two tendencies.  If we are highly individualistic, then how can we simultaneously emphasize our group identities?  And vice-versa, if we concentrate on our group identities, then how can we concurrently stress our individuality?  One major aim of The Horizontal Society is to answer these interrelated questions -- to resolve the tension, so to speak.

Vertical & Horizontal Societies

Friedman approaches this problem through a conceptual apparatus that he calls the horizontal society, which he distinguishes from a vertical society.  In a vertical society, one’s position or status is well-defined in a hierarchical structure that is rigidly fixed; there is little opportunity for individual choice or for movement.   The medieval fiefdom would be a prototypical example: if one is born as a serf, one toils as a serf, and then dies as a serf.

In a horizontal society, the restrictive ties on individuals are loosened so that more movement is possible.  We have more of an opportunity to choose to establish our identities by deciding to belong to a potpourri of groups and organizations, including groups as diverse as nations, religions, clubs, and so forth.  "The ideology of a horizontal world," Friedman explains, is "an ideology of individual wants, desires, and fulfillments, an ideology of choice." (17)  My father might have been a fire fighter and my mother a high school teacher, but I can (supposedly) choose to be whatever I want -- a professor, a doctor, a lawyer, a farmer, or anything else.  I might have been born into one religion, but I can choose another (or no religion at all).   If I am interested in tennis, I can choose to join a tennis club, but if I am interested in bowling, I can belong to a bowling league.  (It is worth noting, though, that Friedman acknowledges that some "components of identity, like ethnicity, are a mixture of choice and social compulsion." (152, emphasis added))

So how does the concept of a horizontal society resolve the apparent tension between individualism and strong group identities?  Friedman argues that in the United States, as well as elsewhere, we have moved from a vertical to a horizontal society.   And quite clearly, as Friedman conceptualizes it, a horizontal society is marked by individualism.  At the same time, individuals in a horizontal society must still have identities.  An individual might appear to choose everything from a spouse to a toothpaste, from a job to this evening's video rental, but the choosing individual still must have social connections and a social identity.  And the means for having an identity, now, is to choose -- to choose from a variety of different groups and organizations that help define one's personality and identity.  "The point is that all this tribalism is a consequence of individualism and is not in contradiction to it.  The individual, let loose from traditional moorings, does not float aimlessly in a sea of products and decisions." (11)  According to Friedman, social and cultural groups and organizations form largely because of the horizontal society: the horizontal society creates a need for these groupings so that individuals can choose their identities (which was unnecessary and, indeed, nearly impossible in a vertical society).

Three points concerning the horizontal society are worth stressing.  First, transitions from vertical to horizontal societies tend to be relative, not categorical or complete.  Second, any particular group or organization in a horizontal society can itself be rigidly hierarchical.  Third, even though individuals in a horizontal society are not strictly bound in their positions, as in a vertical society, they nonetheless can have passionate connections to their chosen groups or organizations.   Indeed, in many instances, an individual might feel greater allegiance to her national, religious, ethnic, and other groups than most people experienced in vertical societies.

The Modern World

Friedman thus provocatively explains two of the most salient tendencies in American society.  Yet, he does not stop there; the book has a second major (and lofty) aim.   Namely, Friedman argues that the horizontal society is not distinctive to the United States or even to Western industrialized nations.  Rather, most of the world either is or soon will be horizontal.  To examine this latter point, it helps to understand Friedman’s method of analysis.  One might have expected Friedman to rely on cultural factors to explain the development of a horizontal society in America.   But as a legal historian, Friedman long has been associated with the so-called Wisconsin School, which tends to explain law and legal culture merely as the reflection of material and social interests.  The law does not lead society; rather society leads the law.  Even though The Horizontal Society takes Friedman beyond the realm of legal history, he nonetheless remains true to this general explanatory approach.   Thus the culture of the horizontal society follows from or reflects the material and social elements of the modern world.

Indeed, the concept of modernity carries as much weight for Friedman as the concept of the horizontal society.  "Western society, or what we call Western society, is arguably not Western at all.  Rather, it is modern society -- urban, industrial, mass-media society.  It is the horizontal society.  It is the society that technology created, and as machines changed the world, ways of thinking and acting changed along with them." (60)  So, for instance, Friedman discusses roads, schools, and "modern means of transport and communication" as forces that produced the modern world. (98)

In terms of communication, Friedman strongly accentuates the introduction of television as a technological, and hence material, change in society that has extensive causal ramifications for culture and politics.  Following Robert Putnam, Friedman notices a decline of "‘social capital’" in the United States, largely because of television.  Television creates lonely viewers rather than active participants -- viewers who sit alone in darkened dens watching instead of doing.  This growing atomization has led to a decline in "‘features of social organization, such as trust, norms, and networks, that can improve the efficiency of society by facilitating coordinating actions.’" (25)  In a horizontal society, people join groups, but many of the groups are, in a sense, virtual: groups or communities where people belong by filling out a form and sending in a check, rather than having face-to-face contact with other group members.  In modern politics, then, we are more apt to have interest and pressure groups (at the local, national, and global levels), groups forged through electronic links instead of through membership meetings and genuine dialogue.

Since television and other components of modern technology are spreading throughout the world, Friedman reasons, the world itself is becoming a horizontal society.   "[M]odernity has two faces: it homogenizes and differentiates at one and the same time.  It pulls people apart and pushes them together.  It accentuates ethnic differences, but in the context of a single (and powerful) world culture." (132)

Conclusion: Some Weaknesses

For the most part, I found Friedman’s book to be interesting and persuasive.   Especially in the context of the United States, his analysis is strong.  I am less convinced, though, by his claims about the rest of the world, especially non-Western nations.  Sometimes the book reads as if it were a comparative survey.  Friedman discusses in moderate depth some topic -- let’s say, immigration -- in the context of the United States, and then he only briefly surveys some other societies or nations with regard to the same topic.  These brief surveys are just not enough to carry Friedman’s thesis.  Yet, to do otherwise, to have extensive discussions of non-Western countries, would have required an immense undertaking and would have resulted in a prohibitively long book.  And despite Friedman’s desire to extend his thesis to the entire world, most of the book is truly about the United States and other Western industrialized nations; here, Friedman’s arguments are powerful.   Moreover, to be clear, I do not necessarily disagree with Friedman's conclusions about the non-Western world (in fact, I think he probably is correct), but I nonetheless found that he did not adequately defend his position.

Finally, I must note one other limitation of the book.  Following his Wisconsin School approach, as already discussed, Friedman views culture, including ideas, as reflections of material and social factors.  Culture and ideas do not cause social changes but rather follow behind them.  In contrast, I think culture, including ideas, are far more powerful causal factors than Friedman acknowledges.  Culture and ideas, of course, are not necessarily good; they can be pernicious, such as the racist ideas emanating from the Social Darwinists during the late 19th and early 20th Centuries.   Even so, they matter.  Yet, here is what Friedman says about the Social Darwinists’ racist ideas: "These ideas were . . . a reaction to the turmoil and dislocation of the industrial world. . . .  They were reflections, in other words, of a mobile society and its discontents -- a society becoming more horizontal." (140, emphasis added)

Such a reductionist approach to culture and ideas misses an important part of the picture.  To be sure, the Social Darwinists’ ideas were partly reactions and reflections of industrialization.  But just as surely, such ideas (causally) influenced people, for example, helping to engender movements during the early 20th Century to restrict immigration to the United States.  Plus, such ideas have a genealogy, a history in and from other ideas.  That is, the Social Darwinists' racist ideas partly evolved from the ideas of earlier eras, including Darwin’s theory of biological evolution, Hegel’s philosophical emphasis on the importance of history, Christian anti-semitic dogma, and the American antebellum intellectual defenses of slavery.  In conclusion, then, Friedman’s explanation of the emergence of a horizontal society in the United States and other Western industrialized nations is not wrong; it is just incomplete.  Apart from these weaknesses, though, The Horizontal Society is a sound and provocative book.

Stephen M. Feldman is Professor of Law and Political Science at the University of Tulsa.  His newest book, American Legal Thought From Premodernism to Postmodernism: An Intellectual Voyage, is forthcoming from Oxford University Press.  His previous publications include Please Don't Wish Me a Merry Christmas: A Critical History of the Separation of Church and State (1997).  From 1984-1986, the author of this review was a graduate law student at Stanford; during that time, he took two classes from Professor Friedman.

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Sex and Lies
by Milner S. Ball

Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery
Laura Hanft Korobkin
New York, NY: Columbia University Press, 1998
Cloth: $49.50 / Paper: $18.50
Pp. 247

You will likely remember from law school the tort of criminal conversation.  It is neither criminal nor conversational, but a cuckold’s action for trespass on his property in the exclusive use of his wife’s body.  While it accorded lawyers and judges a way to talk about a betrayal of marriage, it depended upon the silencing of the female leads.  Coverture removed the wife from the courtroom as either a party or a witness, and the pleadings removed her as an active author of adultery.  In the scripted action, the defendant allegedly forced himself upon an offstage provider of sexual services incapable of resisting desire.

Criminal conversation was a trope -- or deliberate lie, or theatrical fiction -- and any juridical trope can be revealing of its social and artistic contexts.  This one becomes so in Professor Laura Hanft Korobkin’s handsomely published Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery. She offers an account of the tort’s introduction at the end of the 17th Century and its evolution to the end of the 20th.  The account tracks the tort's connection to the general evolution in the sexual, political, and economic relationships between women and men, and (her particular emphasis) with developments in narrative genre inside and outside the courtroom.

From a husband’s complaint about trespass, criminal conversation became an action available to wives.  From a story about marital property, it became one of marital relations.  It may now become one of outrage at a husband who keeps his wealth while exchanging an old wife for a new one, or at the new wife for easing into an undeserved life of luxury.

Korobkin argues that the changes in criminal conversation and its uses cannot be understood apart from uses and shifts in narrative, and that the association of law and story in the particular instance of criminal conversation indicates a larger, general "permeability and interaction among legal and literary discourses and those who wield them." (181)  Lawyers and judges use stories, and are in some sense used by them: "literary elements can play a key role in producing changes in the law." (125)

Tilton’s Conversation with Beecher

At the heart of Professor Korobkin's book lies analysis of the notorious scandal in which the writer Theodore Tilton charged that Henry Ward Beecher, moral exemplar and great preacher of his day, had committed adultery with his wife, Elizabeth.  Tilton filed suit in the summer of 1874; the trial ended the following summer with a hung jury; and the uproar occupied public attention throughout.

The trial was both "a paradigm of mid-Victorian American legal process" (90) and "an intensely literary event." (107)  The parties were writers, and their writings played a role.  The lawyers employed sentimentality to draw jurors into identification with the parties, much as Beecher’s sister, Harriet Beecher Stowe, drew the sympathy of readers to the characters in her Uncle Tom’s Cabin.   The lawyers and commentators borrowed freely from contemporary works of fiction.   And two texts proved crucial.

The first text was a letter Elizabeth Tilton had written her husband confessing some sin against him.  She did not state whether it was a sin of longing or of acts.  Nor did she mention Beecher or any other person.

The second text was Charles Reade’s 1866 scandalous bestseller, Griffith Gaunt.   Elizabeth’s letter did state that her writing was the product of a conversion-like experience in reading Griffith Gaunt.  That novel then became key to interpreting the letter, to constructing Elizabeth for the jury (she was present in the courtroom but not allowed to speak), and to arguing about whether she and Beecher had committed adultery.

The evidence, the ways of interpreting it both in court and out, the language used in arguing, and the manner of participating in the event were all bound up with contemporary literature and what the then-available genres made it possible and necessary to say.

Here is a rich lode.  Korobkin mines it productively.

Other Conversations

I would like to have a noncriminal conversation with Professor Korobkin some day about her notion of a separation between "actual fact" and "legal fiction." (161)  She says that, in the "narrativizing process" of litigation, "fact and fiction can be easily and even appropriately interchanged," and she finds this a "disturbing thought indeed." (112-113)  Alternately and, I think, better, she talks about "fictional and factual narratives" (112-113) and "actual" and "legal stories." (163)

If actual fact is, after all, a story -- so that there are factual stories, fictional stories, and legal stories -- an interplay of the three in the process of translating grievances into judicially cognizable terms is not so scary.  The stories attorneys produce at trial are, after all, not free, but shaped by witness testimony, rules of ethics, rules of evidence, an attorney’s theory of the case, and the precedents that may influence appellate courts -- as well as by the modes that the day’s novels, theater, electronic media, and storytelling make available.

I would say: "Don’t be disturbed.  Join us.  With your talents and critical intelligence, you will be welcomed.  You will enjoy yourself.  You also likely will help us discern better what we are doing."  Moreover, I would suggest that she first read Robert Burns’s A Theory of the Trial (1999).  Burns wonderfully advances understanding of courtroom theater with narrative, dramatic and philosophical analysis.

Although Korobkin’s work certainly can be characterized as law-literature, it is better identified more inclusively as interdisciplinary.  It is an interdisciplinary examination of lawyers’ language, especially what lawyers say in court.  Such work is in full flower.  Consider, for example, James Boyd White’s continuing, standard-setting publications on poetry and fiction and their relation to the language of lawyers.  Also consider Ed Larson’s Pulitzer-Prize-winning Summer for the Gods (1997), a history of the Scopes trial that makes brilliant use of Inherit the Wind.

Criminal Conversations comes to us from the English department.  Korobkin is an assistant professor of English at Boston University.  Her book began as a doctoral dissertation, and still bears some of the characteristic wounds of graduate school writing.  But the dissertation was well-guided by an outstanding pair of advisors, Sacvan Bercovitch and Elaine Scarry, and what the work loses by unfamiliarity with some basic, related legal scholarship, it makes up in energy and freshness of approach.  In any event, academic lawyers do not come with clean hands to criticism of the stylistic sins of the writing in other disciplines.  We also have no authority to act as an academic Immigration and Naturalization Service that punishes unlicensed aliens for entering upon our departmental territory.

Professor Korobkin has an infectious enthusiasm for her subject and has written a good book.  I would especially like to read it with a group of lawyers, law students, or judges, and to do so together with three 1999 volumes: Burns’s book; Carol Weisbrod’s splendid Butterfly the Bride: Essays on Law, Narrative, and the Family, which looks at law from an outside, narrative perspective; and anthropologist Sam Schrager’s interesting, delightful The Trial Lawyer's Art.

Milner S. Ball is Caldwell Professor of Constitutional Law at the University of Georgia and is the author of, among others, The Word and the Law (1993) and the forthcoming Called by Stories.

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

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

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© Ronald K.L. Collins and David Skover, 1999.