Against All Odds

<i> Edward Lazarus is the author of "Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court" (Times Books)</i>

Sitting down with these colorfully titled volumes is like being flanked at a dinner party by two scintillating legal experts overflowing with enthusiasm and insights into virtually every topic within their field of expertise. From the trials of O.J. Simpson and the Menendez brothers to the insanity defense, battered wives syndrome, Willie Horton, the ethics of defense lawyers, Roe vs. Wade, the drug war, race discrimination and the regulation of student athletes, they render one clever, thought-provoking opinion after another--each connected to their personal philosophies of law.

Susan Estrich and Paul Campos agree that American jurisprudence is beset by serious, even potentially catastrophic, problems. Estrich, a professor of law and political science at USC (and manager of Michael Dukakis’ ill-fated run for the presidency), laments the balkanization of our legal culture. Focusing particularly on the criminal law process, “Getting Away With Murder” describes a system that has become a forum for indulging our deepest social divisions--"a lowest common denominator search for false equality"--rather than a place for restoring the ties of trust and good faith that ought to bind up our ever more diverse society.

Campos, a legal academic at the University of Colorado, takes on ever bigger game: our bedrock commitment to the rule of law, which he describes as a peculiarly American obsession that has “come to resemble a form of mental illness.” Led by a diseased elite of law professors and judges, we have yielded, he argues, to a “hypertrophied rationalism,” a belief that our most intractable conflicts will be solved only if we create sufficiently complex legal bureaucracies, apply the right set of rules and procedures and elaborate enough reasons and principles. All this, he tells us in “Jurismania,” is the “self-destructive addiction” into which the denizens of the legal world, like drug dealers acquiring new customers, have successfully led us.

These two authors, who are equally disillusioned with the current state of legal affairs, are radically divided on the question of how to mend our fraying legal system. Estrich believes deeply in the ameliorative power of what she calls politics--by which she means the ability of society to rebuild trust and reach common ground by coming together to find reasonable answers to the issues that so divide us. Hers is a devotion to the “common law” process by which, case by case, a community sets its standards for what is right and just. That process, Estrich writes, can “clothe commonality with the cloak of legitimacy, which a diverse society so desperately needs.”


For Campos, the very process of reasoning together, the belief that we can find rational and explicable solutions, is the enemy. The root of our problem, he asserts, is our failure to recognize the limits of reason in adjudicating serious social conflicts. Instead, we must recognize and embrace the fact that judicial decision-making in the hardest cases is not a matter of rational analysis but the “arational” exercise of power. What we need, Campos proposes, is not more but less of the hubristic notion of a reason-based “common law” to which Estrich is so devoted. (By the same token, Estrich sees Campos-style cynicism as sowing the seeds of the justice system’s present predicament.)

In her engaging style, Estrich trots out a relatively familiar (yet still deserving) list of villains. She has little sympathy for so-called abuse excuses, such as the battered child syndrome employed by the Menendez brothers, the riot syndrome that Damian Williams used to explain his vicious beating of truck driver Reginald Denny during the L.A. riots and claims of drug addiction and spousal battery frequently deployed in less celebrated cases. As Estrich observes, overindulging such defenses inevitably sucks us into a “downward spiral” toward a state where every group or syndrome-sufferer, piggy-backing on the supposed justifications of others, may evade moral and legal responsibility.

For much the same reason, Estrich deplores Johnnie Cochran’s “send a message” argument to the jury of the Simpson criminal trial as well as the advice of some legal academics who have suggested that black jurors vote to acquit nonviolent black defendants, even when guilty, as a protest against our “racist” criminal justice system. Estrich’s point is not that the system is free of racism (she finds plenty) but that such separatist responses invite retaliation and lead inevitably toward chaos.

Estrich’s antidote is old-fashioned. She has democratic faith with a small “d.” She believes the system can heal itself if we take our civic responsibilities more seriously. In the world of honest politics that Estrich envisions, society can agree on a standard of “reasonable” behavior that holds the Menendez brothers accountable for the murder of their parents while excusing true acts of self-defense; juries can serve as an institution that brings us together as citizens of a single nation, not one that reinforces our divisions. We can trust our judges to mete out fair sentences without the hindrance of politically expedient laws such as “three strikes” and the harsh “mandatory minimums” now imposed for drug crimes, and criminal defense lawyers can rediscover and honor the line between zealous advocacy and simply lying for a client.


Estrich proposes some specific adjustments. To bolster the jury as a body representative of our entire community, she would eliminate peremptory challenges, the practice of letting lawyers from both sides reject individual prospective jurors for pretty much any reason. Such challenges allow lawyers to skew the demographics of a jury in ways that they (and those parasitic jury consultants whom Estrich would drive bankrupt) think are favorable to their clients. Instead, according to Estrich, “the first twelve [citizens] who are qualified should serve.”

She would also do away with sentencing guidelines and other constraints on the sentencing discretion of judges. Such laws, Estrich argues, merely transfer power from judges to prosecutors (who make the guideline-triggering decisions about what crimes to charge in each case). These laws also deprive judges of an essential aspect of their jobs, the authority to evaluate each case on its own merits or, as Estrich puts it pithily, “the right to judge.”

It’s easy to be swept away by Estrich’s chatty discourse, well-sprinkled with earnest pleas for replacing mistrust and division with goodwill and common ground. I certainly found myself nodding in agreement at many points. Still, neither bright, well-informed dinner table conversation nor appealing protestations of faith can substitute for hard analysis. Estrich’s slim volume skips too much of that.

Why should we believe that defense attorneys will heed Estrich’s call to police their own ethics and re-enshrine the ideal of a trial as a search for the truth? Supporting evidence is scant. Why should we believe that judges can be trusted to impose fair, rational and roughly consistent sentences? The national experience before the advent of sentencing guidelines was dismayingly to the contrary. In many places, a defendant’s sentence depended more on which judge presided over his case than on the individual circumstances of his crime. And why should we believe that Estrich’s “first 12 qualified” jurors--a group sure to include more oddballs and even racists than under the current system of jury selection--will produce more just verdicts and serve a more patriotic function than the juries we have now?


I have little doubt that Estrich could provide persuasive responses to many such objections. I just wish she had. In their absence, there is always the dour voice of the disbeliever, Campos, sitting on the other side, insisting in his own seductive way that Estrich’s optimism is the worst sort of false hope. We cannot reason through the debates over abortion or physician-assisted suicide, Campos tells us, and judges make fools of themselves when they try. Decisions by largely ignorant jurors have all the rationality of coin flips. The common law is mainly the legal history of pretending to unknowable truths. “Like the fabled donkey imagined by the medieval scholastics, who starves to death because he is exactly equidistant from two stacks of hay and therefore can’t decide rationally to which stack he should go, we demand dispositive reasons for choosing where there are none.” Rather than starve, Campos would have us renounce our faith in reasoned explanations and accept the application of judicial power as, in many cases, “arational” fiat.

The full force of postmodernism is at work here, its sledgehammer of skepticism pounding at the very foundations of what we think of as law. And, as Campos recounts, at times brilliantly, the actors of the legal world, from unethical lawyers to a bickering and divided Supreme Court, give energy to the assault, perhaps unwittingly.

Yet I, for one, cannot bring myself to accept the idea Campos seems to celebrate: that there are no distinctions between better arguments and worse ones, no answers more right than wrong, no difference between power and law. These days, the emperor of law may have been reduced to his undergarments. But the nation will be much better served following Estrich’s attempt to reclothe him in all the finery we can muster than joining Campos in stripping him naked for all the world to see.