Patch, Howard Rollin. On Rereading Chaucer (1948).

June 13, 2008

As for the Lawyer, like all the rest he is the best of his kind, no one can catch him amiss, he makes a great show of being busy but we know little about what goes on in his mind.”

On Rereading Chaucer is one of those scholarly volumes that is written in such a tone that you can imagine a jolly, frosty haired, pipe smoking professor having written it as opposed to a prof who is focused on showing off his brain power. This collection of essays all revolve around Chaucer’s use of humor throughout his body of work (that means even the non Canterbury Tales stuff . . . yes there is writing beyond the Canterbury Tales).

Aside from the fleeting reference’s to the Man of Law’s tale and the fact that Chaucer may have studied law at Inner Temple, there is little law in this book. One essay, however, stands out as having some legal content: “Chaucer and the Common People.” In this chapter, Patch discusses whether Chaucer stood out as a voice for the Common People whom he often depicted, and whether Chaucer used his position at court to voice complaints and request better governance. Patch concludes that though Chaucer’s opportunities for access to court for such matters would be limited, he used his poetry to depict the common person in a sympathetic manner. Its and interesting chapter that serves to delve into Chaucer’s thoughts on governance.


Hilton, Adrian. The Principality and Power of Europe: Britain and the Emerging Holy Roman Empire (1997).

August 29, 2007

The Principality and Power of Europe
“The Union is a creation of law, and is now an autonomous law-making body in its own right, with full and final authority over its citizens. British national law is now subordinate to European law . . .”

UPDATE: My reviews on this blog are based purely on my impressions of the books that I read. I would hate to mislead anyone, so by all means read Mr. Hilton’s response to this item that is in the comments area to get the full story. Cheers.

Adrian Hilton begins his book about Euroscepticism declaring that he should not called xenophobic or accused of bigotry towards Europeans. He’s right, too, no where in this book does he really say he hates Europeans. Instead the book is all about his fear of Catholics. So bigotry towards Catholics is a better accusation.

Hilton’s book is an attack on the United Kingdom’s integration into the European Union, and (while I don’t have a horse in the race) I agree that the EU is a bad fit for the UK. At the same time Hilton’s argument is terribley flawed in that it is primarily based on arguments about the Church of England and the powers of the Queen. These seem, to me, to be very weak arguments to be making about a liberal and autonomous society such as the UK. He argues that because England is a protestant country, it should stay out of the EU because the EU is essentially a Catholic entity. It makes a great conspiracy theory, but doesn’t hold water. He bases this on Pope John Paul II (the book is a bit dated) support of the EU and on his opposition to the Yalta Agreement which subdivided Europe.

He reaches all the way back to Henry VIII’s split with the Rome to assert that England should be autonomous of the EU. He refers to Henry’s statement “This realm of England is an Empire” as legal grounds for Englands independence. What he is overlooking is the ongoing jurisdictional battles that had been occuring between Popes and temporal Princes. Rome claimed that it had both divine and temporal authority (granted at the Council of Chalcedon) over the leaders of Europe. Henry simple wouldn’t play along anymore (for reasons of divorce), but Rome abandoned the policy of asserting the temporal power that it claimed (although it still claims it), and has continued to so. One of his major critique’s is the Pope’s political persona. For example the Pope can address the UN. He claims that no other religious leader has that right, but he fails to realize that the pope is also a head of state and this is what allows him to address the UN. It is disconcerting that Hilton is worried about the Pope’s abilities as a religious leader, but endorses the English law that keeps the Queen and Prime Minister from being ROman Catholic.

To be honest though, I’m way behind on my posting, and just can’t be bothered to delve deeper into this book. Its got some interesting legal history and a very skewed and dated approach to the European Union. Probably, not the best place to begin your research, but hey, its your research – do as you please.

Adrian Hilton

Herrnstein, Richard J. and Charles Murray. The Bell Curve: Intelligence and Class Structure in American Life (1994).

July 27, 2007

The Bell Curve

“Lawyers, for example, have higher IQs on average than Bus Drivers.”

The Bell Curve is a mammoth study of the effects of intelligence on social trends. Herrnstein and Murray seek to show that intelligence is the relevent predictor for things such as socio-economic status and unemployment. They then use their study to propose public policy based on this information; they claim this with help to destratify the rising high IQ upper class from the low IQ underclass. They were able to get a lot of press for this massive book by including a completely irrelevant section on ethnicity and intelligence (I’ll bet you can guess what they said). It’s fascinating reading if you can stomach 600 pages of statistics laden writing. If your like me and can only cope with the most basic of math then it is a book that takes some amount of dedication, and in the end might not be worth the trouble.

Before I hit on the law, I’d like to try and come to grips with what I found to be the major flaw of the book. There is nothing new in this discussion, it has been rehashed much better elsewhere. I think that the authors make some basic assumptions in their work that can’t be justified, and this is one of the things that has made the text so controversial. They fail to take into account basic cultural things that I just can’t conclude (even after their extensive proofs) don’t come into play more. For example, they attempt to show that IQ is for the most part set at birth and is not effected by years of education. However, the flaw is that they treat all education as equal. The result is that they assume two people with high school diplomas are similarly situated. This just isn’t the case. My high school education from Thomson High School in Thomson, GA prepared me much better for the SAT (a test they specifically address) than say a student at M.S. Palmer High School in Marks, MS. It doesn’t have a thing to do with the intelligence or race of the students in Marks. It has everything to do with the amount of opportunity embodied in the two different school systems. In the same way they show that Asians have a higher IQ than whites, especially in the area of maths. However, the cultural background emphasizes math and that sort of thinking. Thus culturally math is taught (if you don’t believe me have a look at Chinese school children and their abacuses). I don’t dispute that some portion of IQ may be genetic, but the study seems lacking to show that it works to the extent the authors claim. It excludes that the brain tends to be a muscle that can be exercised and can be developed.

The author’s claim that the main purpose of their book is to address public policy concerns, so I’ll leave all the nature versus nurture talk to the pros. As this is a law blog I’m going to run down the policy that they suggest and its legal implications. For this purpose I’ll simply accept their assertions about intelligence and get to the meat of what they suggest, which I at times find more problematic than their genetics discussion.

First, I think it should be pointed out that the authors are quite naive when it comes to the results of what they suggest. Early on they give a brief summation of the ways in which IQ has been used in the past to disadvantage ethnic and racial minorities. These include immigration policies as well as sterilization laws that were passed in the early 20th century (see Buck v. Bell a 1927 case in which Oliver Wendell Holmes upheld sterilization laws: “Three generations of imbeciles are enough”). Thus the authors are certainly aware of the dangers that racial differentiation have proved to cause in the past. But later the authors, before giving their racial data, seem to be dismissive of the history of racism in the United States. They state, “We cannot think of a legitimate argument why any encounter between individual whites and blacks need be affected by the knowledge that an aggregate ethnic difference in measured intelligence is genetic instead of environmental.” It seems to me that a Havard professor and a Bradley Fellow at the American Enterprise Institute might realize that in the US (and the world in general) “legitimate arguments” aren’t often used to support racism. I agree that study of such things can be extremely important scientifically, but when they begin to base public policy around it, they tread on the exact ground that our forefathers did in cases like Buck v. Bell and risk retrograde motion in society’s achievements.

Their jumping off point for their public policy claim is employment law. They note that both Congress and the Supreme Court (Griggs v. Duke Power) have made it illegal to use intelligence testing in hiring practices, and that this costs the economy up to $80 billion a year. This is due to hiring inefficiencies, which they claim could be beat with an IQ test. I grant intelligence testing is an effective way of determining whether a candidate will be suitable for a job. However, as the authors pointed out early on, this tradition has a history of manipulation. Thus the Supreme Court held that a test should have to do with the skills involved on the job and not general intelligence. Herrnstein and Murray dispute this logic by claiming that general intelligence tests tend to predict job performance better. As you might guess affirmative action also draws their fire, and probably rightly so. They explain the convoluded system which is used to determine whether a business is discriminating or not. But they also forget to put the system in historical perspective, and that we are still feeling the effects socially and culturally of past racism. The systems heart is in the right place, its just an inefficient way of producing the correct results. Thus they point out that the Civil Rights Act did not create a sudden change in blacks being in jobs, but just because those jobs are open to blacks doen’t mean that Blacks have been trained for them. In 1965 education was so ineffective for minorities that the effect of affirmative action would be impossible to feel immediately. The program seeks long term results in changing trends of disadvantage among minorities, who are not as ingrained in the upper eschelons of culture. Thus, they propose a thought experiment in which if all employment laws were abolished would the reader begin to discriminate. Two problems with this experiment. First, they have numerous times pointed out that the average reader is probably well educated and most likely and academic, so no the average reader probably wouldn’t, but the reader isn’t the average American. Second, They have told us statistically that intelligence is the best predictor of job preformance and that statistically a white person is more likely to be the more intelligent person – but suddenly the reader isn’t supposed to use that information. It follows right along with their willing naiveite when looking at racial problems. Essentially, the authors choose to ignore a history of discrimination, which we still feel the effects of today. The government hasn’t fixed the problem, but there is something empty in the authors suggestion.

They also attack the education system. I love this boneheaded quote from way up in the Ivory Tower, “on the whole, America had already achieved enough objective equalization in its schools by 1964 so that it was hard to pick up any effects of unequal school quality.” It is amazing that the South, just integrated had suddenly reached school equality. There are still large portions of the Southeast where de facto segregation still occurs which robs public (black) schools of tax support, because property taxes are voted down while people send the extra money to support private (white) schools. I’m not suggesting that anything illegal is happening, but it seems to me that a declaration of school equality is a bit of a premature and that it occured in 1964 exhibits some sort of backward thinking. They point out the inefficiency of such acts as Elementary and Secondary Education Act of 1965 and project Head Start. But even these don’t seem to get the fairest of shakes. For example they discuss how Project Head start works in the short run, but not in the long run. They never address whether this could be a failing of the environmental parameters. A child with intelligent parents is in that environment all the time, a child that is in the Head Start program shows improvement, but when the program ends backslides. This says to me that thereis an advantage to a continuing nuturing and developmental environment. They also point out that there is a neglect of gifted children through funding, but thi seems bit problematic – if there are so few really gifted and their chances of success are already greater, then why spend extra money on them, especially since they are less likely to be a burden to society (wouldn’t this create more of the stratification they claim to oppose?). They suggest that as a solution that 1. the federal government should support programs that enable all parents to choose the school their child attends; 2. A federal prize scholarship program; 3. reallocate some portion of existing elementary and secondary school federal away from the disadvantaged and to the gifted. My main concern is their reliance on the federal system to effect change in state education systems. I’ll not deny some of these may be helpful, but the state system is where change should be made inorder that all children in that state (not just the ones who have parents with enough gumption to send them to a better school) get a better education.

They also investigate affirmative action in Higher Education. Specifically addressing affirmative action in Law Schools and the evidence that came out of Georgetown University by an impromptu study by law student Timothy MacGuire. I must say that I agree with their assertions on affirmative action. While, initially it was to correct racial abuses, it is now used to enrich university life. That being said it should be reformed so that universities “cast a wide net in seeking applicants.” Giving advantage to disadvantaged students, instead of race based advantages, which are becoming obselete in university systems.

While they seem to appeal to liberal ideas and reforms at some points, at others they take on extreme conservatism. It is like they are a wolf in sheeps clothing or a sheep in wolfs clothing. As a whole their public policy comes up short because it seems not to be a progressive thing as they claim, but instead it is an attempt for them to reclaim some sort of historical life style. They exhibit this throughout the book with simple things such as their attatchment to the term “illegitimate” when referring to children. They base this on anthropological work on primitive cultures. Or when they state that they would like to “return to a state of affairs that prevailed until the 1960s, when children born to singloe women . . . were more likely to be given up for adoption at birth.” Or there assertion that to stop children being born out of wedlock the goverment should give unmarried mothers no recourse to child support and unmarried fathers no recourse to visitation (because obviously the mother is always deserving of the child). It seems they want to have their cake and eat it, too. They talk big about a free society, but at the same time want to revert to a culturally oppressed one, in which the government may regulate less, but society still disadvantages and stigmitizes numerous people. The race implications of the book don’t help. They do have some good policy ideas, but being linked so inextricably to race soils them way too much. Basing any new policy on a study that says that blacks are dumber, no matter how effective the policy is unacceptable. They would probably claim that this isn’t their intention. In fact, they make claims about the fact that people won’t discriminate in light on this information, but they have presented no proof on that front. Racism isn’t as dead as they would have you believe; it is alive and well. Reading objectively, the case for the authors racism is in the book: the inclusion of the section on race and intelligence is irrelevant for proving the point they sought to prove. It was included to be inflamatory. Congrats.

A few other legal tidbits from the book that I might include. There is a bit of Ph.D. elitism going on: The authors mention, as advanced degrees Ph.D.s, M.D.s, and LL.B.s. Don’t they know that we lawyers get J.D.s these days or are they still holding a grudge that we get that Doctorate in three years? Later of course they do pay homage to the fact that lawyers can be of great worth (including those that never see the inside of a court room) by gaining favorable decisions or even through such things as jury selection. They also claim that attorneys are likely to be, on average, one standard deviation above the mean intelligence, but of course we already knew that. They claim that the destruction of the concept of negligence in tort law is based on the egalitarian principle that endorses the redistribution of goods to the underpriviledged. I would like to direct them to Torts I – Negligence. They suggest redoing the criminal law system to make it simpler (against dumbing dowm school books, but for dumbing down the law), they completely overlook why the system is complex in the first place: Justice isn’t easy.

Richard J Herrnstein
Charles Murray

Rushdie, Salman. Midnight’s Children (1981).

June 6, 2007

Midnight’s Children“Mr. Kemal, who is the thinest man Amina Sinai has ever seen, sets off with his curiously archaic phraseology (derived from his fondness for litigation, as a result of which he has become infected with cadences of the law courts) a kind of chain reaction of farcical panic . . .”

Trying to summarize a book by Salman Rushdie in a small paragraph to start a blog article discussing it is just futile. This is due to the multiple competing topics that one could claim to say one of his books is “about.” Midnight’s Children is no exception and may even be the epitome of his layered and complex storytelling. I will take the overt metaphor from the book though, and make the claim that it is about India, but only with the reservation that this is only one of many themes and in a story about fractured land, fractured people, and fractured plots. In fact this is probably to simple. Thus I could also be very happy claiming that it is about fractures. What I won’t do is attempt to tell you what happens in any detail as it would bog down the legal analysis. Instead I will write from the oh so academic stand point that you the reader have already read the book (and if you haven’t you should) and commence with the legal analysis forthwith.

My reading of the novel is that Rushdie presents the law as a magically real experience that attempts to define and control man but in the end causes postmodernesque fragmentation and fracturing instead. This is a theme that I think can be traced throughout Rushdie’s work, but this is my initial foray into this little project so what I present below is more formative than anything else.

Saleem Sinai is Rushdie’s overt metaphor for the state of India, and was born at the exact moment that India gained independence from Great Britain. This can be seen as an initial jumping off point for Magically Real Law. At this moment India became India again, and not the British Colony of India. The magically real aspect is that this is treated as a birth, but does anything new actually exist, are the people suddenly different? Or instead is it simply that the legal matrix has shifted? Rushdie’s answer, I think is that it is only a legal matrix, which attempts to create a concrete existence for the people.

As is proper, we learn of the birth of India, but we must first look at the history. Rushdie examines Ghandi’s attempt to defeat the British domination with silence, the British counter of the Rowlatt Act (against political agitation), and Martial Law regulations. These are battles that are occuring not so much between peoples as between legal frameworks. That is not to say that people aren’t affected, indeed they are highly affected in that the law helps to support culture. The metaphor for this can be found when Methwold insists that those that buy his estate live like the English until the exact moment of Independence. In doing this he forces his culture, through a contract, upon the Indian Families that move into to his estate. Not only do they must absorb his culture, but they must also absorb his law. The contract is probably based on the British model, as is the property law that supports it. The larger picture is that after the British leave, the remnants of their legal order doesn’t, and those remnants may not support the underlying culture of the people as well.

The theme again arises in light of the partition of Pakistan from India. It was all occupied by the British, but upon independence there were two countries with competeing views. These two regions, before the British colonization had not existed as any sort of nation state, yet afterwards they had embraced the idea of nationalism. This is a very real thing, but its basis is ephemeral. Time even was suceptible to it as the clocks in Pakistan “would run a half an hour ahead of their Indian counterparts.” These partitions and borders, while real and enforced are only magical divisions and do not reflect the actual layout of the culture and the population. Furthermore they are suddenly Western nation states, thus creating the need for a large legal net as opposed to micro legal systems.

Much of this partition is drawn along religious lines, with India becoming a secular state and Pakistan becoming a Muslim state. But this partition can’t hold up under its own terms, because of the deep religious currents in India. We find this when Ahmed’s assets are frozen by the government because he is a Muslim. It is fought in the courts but only won by bribes, which further exposes contradiction within the law, which is meant to be secure and final. As Nehru consults astrologers for his 5 year plan for his secular state, the legal system for the people becomes just as malleable and susceptable to non legal argumentation. Hindu’s and Muslims clash, but they now clash under the framework of a Western legal tradition. Later in the book, there is an attempt to reorganize India into states of Languages, an analysis of this would follow the same sort of reasoning.

The magically real partioning on the territories then becomes magically real in Saleem who feels himself literally fracturing into pieces. What Rushdie has achieved is showing the consequences of the law on the person or body. The fracture is more than legal, more than mental; it is a physical affliction to the people and the culture. This physicality is repeatedly shown in the main character of Saleem.

Saleem describes his existence in India as one of an “infinity of alternate realities,” but in Pakistan where truth is what the law says it is he is beset with and “infinite number of falsenesses.” The differences in the two cultures can be explained by the differences in the law. Secular law allows for possiblity, whereas theocracy allows only for the binary of truth an falseness. When the law enforces this binary the truth becomes magically real as it is supported by an item that is also magically real (if you accept that the law is a magically real structure i.e. that it comes from nowhere yet we accept it as a solid and binding force). The dichotomy between the two exhibits exactly this point. If the law were a real thing it would be substantially the same in each country, instead the law is created in reaction to the presence or lack of religion exposing the law’s preoccupation with rule and its lack of concern with justice.

These are just really initial thoughts and formulations on a somewhat perfunctory read of the novel. It should be noted that legal themes run through out. On can find criminal law, contract law, family law, tax law, immigration law, and probably scads of other items throughout. Each of these in turn can probably have this idea applied to it and be used as a way of exposing weakness in the system.

Salman Rushdie

Wallace, Irving; Amy Wallace; David Wallechinsky; Sylvia Wallace – The Secret Sex Lives of Famous People (1993)

March 6, 2007

“But sex is part of us all. As the late Justice William O. Douglas of the US Supreme Court put it, ‘The idea of using censors to bar thoughts of sex is dangerous. A person without sex thoughts is abnormal.'”

The Secret Sex Lives of Famous People consists of a series of short biographical sketches about actors, heads of state, authors, sports stars, and various other people situated in the public eye. Each sketch, of course, seeks to shed light upon the more intimate details of that person’s sexual experience. The book contains numerous fascinating tidbits, but needs editing both in that it is too long (491 pages) and that it is packed full of mistakes (e.g. to whom it may concern: William Faulkner is not from Missouri . . . I swear pearls before swine).

The book is actually ripe with legal tidbits (it is too ripe with them for me to even list them all) including everything from divorce suits to laws about sex to bizarre tort claims. However, a theme can be found in the pages even if it is unintended by the authors. The book is organized alphabetically instead of chronologically so tracing the theme throughout the pages is like a puzzle, but if put together correctly it paints a picture of how laws dealing with sex (mainly through family law) have evolved from early church rule in the matter to state adoption and legislation. Furthermore, it shows how the state (up until recently I would argue) has legitimized the traditional sex roles that came from the origins of family law within the church. The state has drawn those traditional mores foward into modern society, but not just in the realm of family law. For instance obscenity laws often serve to enforce societies views on sexual morality instead of actually outlawing items that are so offensive that they are dangerous. A prime example of this is one of the prongs in the US Supreme Courts formulation of what obscenity is for First Amendment purposes: whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest. By using “contemporary community standards” the court allows a community to decide on the level of deviancy from norms (it also allows for things to be constitutional in some places and not others, which is to say the least problematic).

This theme of legitimation by the state in the book is counter balanced by a steady theme of subversion. Subversion of sexual norms were traced throughout history from Popes to heads of state to political activists. Interestingly, this subversion is unlike most political activism, which is often explicit and pronounced. Sexual subversion is usually private due to the nature of the relations, and it only takes on an activist role once it has been exposed to the scandal sheets. Of course this isn’t the rule, both Rasputin and Marquis de Sade (who both have chapters in the book) were quite outspoken subversives for their own ideas about sex. However, it has only been very recent that there have been outspoken and widespread sexual movements that show some sort of solidarity. These movements still suffer from the norms that the state seeks to enforce through of family law, obscenity laws, and other avenues, thus many who would speak do not due to the stigmatizing effects that this sort of legitimation entails.

This is not to say that all restrictions on sexual activity should be repealed, but instead for us to question the true motives of restrictions and whether they serve a purpose that goes further than enforcing the majority’s moral code.

Below I have listed some of the more memorable law related moments from the book as well as a list of Lawyers, Law Students, and Judges that had their own chapters:

Law Moments

  • Father Divine was arrested in Georgia and booked as “John Doe alias God.” He later proved his divinity when a New York Judge who had sentenced him to 6 months in Jail died of a heart attack.
  • Napolean refused to allow punitive legislation against homosexuality.
  • Farouk I painted all of his cars red and then made it illegal for any other cars to be that color. This way he could speed without police interference.
  • Errol Flynn was involved in a saucy little statutory rape suit. He was aquitted.
  • When 10-years-old, Billie Holiday was sentenced to a Catholic Reform school, because she was raped by her neighbor the much, much older Mr. Dick.
  • J. Edgar Hoover said, “I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.”
  • Marie Stopes testified at her divorce trial that her husband “was never effectively rigid.”
  • Oscar Wilde pressed charges against a Marquis who accused him of homosexual activity. The Marquis then showed that he could prove it. Wilde dropped the charges and had to flee the country to escape prosecution.

Lawyers, Law Students, and Judges

  • Giovanni Jacopo Cassanova
  • Charles Dickens
  • Honore Balzac
  • James Boswell
  • Mahatma Gandhi
  • William Gladstone
  • Johann Wolfgang von Goethe
  • Aly Khan
  • Martin Luther
  • Guy de Maupassant
  • Marquis de Sade

The Secret Sex Lives of Famous People
Irving Wallace
Amy Wallace
David Wallechinsky

Dworkin, Ronald – Freedom’s Law: Moral Readings of the American Constitution (1996)

February 2, 2007

“The moral reading proposes that we all – Judges, lawyers, citizens – interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice.”

Ronald Dworkin presents, in this volume, a series of essays that he uses to highlight what he calls a “moral reading” of the constitution. This moral reading requires the jurist (or whoever else might be working with the document) to interpret the abstract terms of the Bill of Rights “on the understanding that they invoke moral principles about political decency and justice.” He sets this type of reading up as the opposite of an original intent type reading, the abolition of which seems to be his project. My initial and primary problem with his ideas is that he holds that there is no middle ground between the two readings, and bases it on the fact that no one has yet really defined any sort of reading. I find this to be a bit misleading. Intent is important when we look at the law, and this is why “legislative intent” is so often examined when courts must rule on statutes. The Constitution is a historical document and the intent of the framers is quite important when interpreting it, but that should not be the only factor as the document has grown and must grow to deal with new legal quandaries that the framers would not have or could not have had in mind. Dworkin ignores any sort of balancing test that would allow for a mixing of different views to bring about justice.

Dworkin’s project seems less like an attempt to explain constitutional ideas and more like an assault on conservatives and conservative ideals. In my opinion this assault puts his own credibility into question. His disdain for not just conservative ideas, but also for specific figures becomes overpowering by the end of the book. In the final chapter he quotes, with admiration, Judge Learned Hand, who said, “The spirit of liberty is the spirit which is not to sure that it is right.” Dworkin suffers from being too sure that he is right. I am no constitutional lawyer, but I felt that too often he attempted to shrug off doctrines that he did not agree with as obviously wrong based on the fact that they were conservative in nature. I will try and make this more apparent below in the short discussions of each of his three sections of the book: I. Life, Death, and Race; II. Speech, Conscience, and Sex; and III. Judges.

In the first section of the book Dworkin reveals to the reader the first of his two obsessions in the book: abortion. Of the six chapters the first four cover it directly, the fifth deals with tangentially, and the sixth somehow manages to deal with both abortion and affirmative action at the same time (and abortion is probably mentioned in every other essay in the book). As a result Dworkin seems to repeat himself quite a bit by the end of this section (granted these are collected essays so it has more to do with bad editing than bad writing). Dworkin’s premise is that if one applies his moral reading to the constitution then one will come to the conclusion that Roe v. Wade is (and I remember this word being used somewhere) “obviously” right and that fetuses aren’t Constitutional Persons and thus a state has no right to protect them until the third trimester. I had a few qualms about his argument. First, on a technical note it seems that Dworkin really likes to cite himself as a reference, and I find that inherently problematic. Second, I feel as though Dworkin doesn’t engage with the language of Roe v. Wade at all. Instead, I found that he accepts the result of the ruling, but attempts to write in his own reasoning instead of that which the court used. In other words he justifies it in his own terms. Third, I felt like he did a little dance around the crux of what makes abortion and Roe not just controversial, but also a very difficult subject matter that readily leads to different conclusions for different people. He chooses to frame the question around whether a fetus is a “constitutional person” and twice compares fetuses to corporations (the analogy being that they are a being or a person, but that their rights can’t trump fundamental rights of constitutional persons i.e. potential mothers). He seems to skip, in my opinion, the idea that if we deem a fetus a human being it might very well have rights and that there are reasonable arguments for doing so. Instead he hides the ball by using the term “intrinsic value in human life” and making a misplaced value judgment that a fetus deserves recognition as a person with rights when it is recognizable, or has brain functions, or is viable. I don’t fault him for his opinion on Roe, but I never understood how another person applying the same moral test, might not come to the opposite conclusion based on moral principles? His obvious outcome is tied up in ones personal philosophy, which (and this is my final problem) leads him to then makes an ill-founded establishment clause argument. Essentially: if most Christians believe that abortion is wrong, then banning it violates the first amendment. Most Christians were against alcohol during prohibition (lets assume), but the banning of alcohol was proper function of the commerce clause (as interpreted), thus just because a group supported it it doesn’t follow that it violates the establishment clause. It doesn’t follow that if a state decides that a fetus is human being and has a right to life that this is inherently based on religion because Christians support it. This is not to discount religious involvement in the political arena, certainly any such law would be supported by religious groups, but “support for” is different from religiously based. It really is a question of personal philosophy, and it is not a simple as Dworkin wants one to believe.

The second section on the book, Speech, Conscience, and Sex, is where Dworkin shines in the volume. He, in this section, does engage with the Supreme Courts rulings on free speech in a way that not only explicates those rulings, but also makes his views clear on them. He begins with a discussion of New York Times v. Sullivan in light of two major trials involving slander and military generals, and follows it up with an essay as to why that sort of freedom is essential to our democracy. He ends the section with a discussion of Academic Freedom, which I think manages to effectively deal with numerous misconceptions that people have about the academic freedom and to make a valuable argument as to why a state should not meddle with researchers in its colleges. But Dworkin really shines in his essay “McKinnon’s Words,” which is an assault on Katharine McKinnon’s book Only Words and her anti-pornography statutes. McKinnon is a well known radical feminist whose project seeks to bring equality through the law. She started out as a Marxist and so her views often embrace very radical alterations in legal structures. In her book, she argues that pornography should be banned because it violates women’s fourteenth amendment rights to “equal protection” by subjecting them to prejudice and objectification which alienates them from the political process. Her argument runs that equal protection should not be sacrificed to the freedom of speech. She also managed to pass two anti pornography statutes one in the US and one in Canada. The one in the US was struck down as unconstitutional, the one in Canada (due to her definition of pornography – which is flawed) resulted in numerous items being banned including a book by critic bell hooks (hows that for irony). Dworkin sees these ideas as fundamentally flawed and I think rightfully so. He argues that it is the value that we place on freedom of speech in this country that allows for the open political process to work, and that for it to work some dubious things must be allowed to be communicated (including pornography with no political value). If the government can ban these items the slippery slope is open and we all suffer due to exclusion from the political process. He also prints his reply to the letter she published as a response to his article when it was originally published. He states that she called his article “ignorant, appalling, shocking, rock-throwing junk” and compares him to “kept writers in pornography magazines.” Now I haven’t read her actual letter, but if Dworkin reports correctly (I think he probably does) then it show McKinnon’s inability to take part in the actual conversation; instead she opts for the fireworks.

The final section of Dworkin’s book is entitled Judges and this is where you find his true colors. The first three chapters deal with the nomination and defeat of Robert Bork by president Regean to the Supreme Court. Bork is Dworkin’s second obsession and is mentioned in most, if not every essay, in the book and mentioned with great disdain at that. Dworkin frames this nomination as an important moment in the history of the court, but I don’t think it lived up to Dworkin’s expectations. Instead, it seems as though Dworkin has some sort of petty vendetta against Bork, and maybe more disturbingly his constitutional theory really begins to shine through as one that only accepts liberal views as valid. He seems shocked that Bork’s nomination was politicized by Regean, but openly seems to endorse liberals voting against conservative candidates based on their conservative views. Then he argues that Congress should vote on the virtue of the candidates constitutional philosophy, but hints that anything but a liberal philosophy should be voted down. This is expanded with his discussion in the next two chapters which cover the Clarence Thomas hearings. He is dismayed that the administration is openly nominating candidates that it hopes would overturn Roe v. Wade. He skips what a lot of people skip when discussing stare decisis: What if the tables were turned and Roe went the other way? Would he be as outraged if a liberal administration decided to appoint justices that would overturn that decision? Probably not because he would think that the decision was inherently wrong, but he won’t extend that sort argument to a conservative point of view (because he refuses to accept any sort of conservative critique as valid). He also discusses the constitutional philosophies of these two candidates as if “no constitutional lawyer” would buy into them, but it should read no “liberal constitutional lawyer.” He so sure that he is right that he fails to see that many of the doctrines are currently working to shape our constitution from the bench, and are by virtue of the fact they are quite relevant.

One final point, something that struck me as strange. He mentions that the “black community” supported Thomas and that after he got to the court some tried to justify their support with the idea that if Thomas didn’t make it then it would just be a white conservative (thus better to have a black conservative). Dworkin argues that it is “more insulting” to blacks to have a black conservative on the bench. I wonder if Dworkin thinks Thomas is not a “credit to his race.” Why shouldn’t Thomas be conservative and black, and more importantly, Dworkin, why should that insult black people in a country that prides itself in a multiplicity of views.

To sum up, Dworkin makes some very interesting arguments and is an important jurist, but he is so lost in his political agenda that the law gets left behind so he can pursue his project against conservatism.

Ronald Dworkin