The Magazine


Mar 30, 1998, Vol. 3, No. 28 • By JEREMY RABKIN
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Paul Campos



The Madness of American Law


Oxford University Press, 192 pp., $ 23

Paul Campos is dizzy from America's excesses of lawyering. He was that way even before the White House decided to unleash its legal team against the legal team the independent counsel had unleashed to investigate the Monica Lewinsky affair. But with the legal maneuverings of Bill Clinton and Kenneth Starr dominating current headlines, the normally staid Oxford University Press has moved with lightning speed to keep Campos's new little volume on the latest wave -- sending out to reviewers, for example, a recent newspaper column in which Campos applies his critique to the ongoing investigations of Clinton's misdeeds.

Although Campos is a professor of law at the University of Colorado, he declares his disdain for both the academic and the lawyerly ways of saying things. He is a man on a mission, or at least a book tour, and he puts his message with shocking bluntness: The excessive demands Americans put on the law have become "a form of mental illness." His new book, Jurismania, is an interesting sketch of the varying ways in which this madness manifests itself. But it may also be, in the end, a symptom of what it decries.

The first exhibit in Campos's pathology report on the American legal system is the trial of O. J. Simpson. Simpson's celebrity and personal wealth meant that "there was essentially no economic barrier to transforming the rule of law from classroom theory into courtroom practice" -- where the academic " emphasis on 'getting it right' . . . produces a distinctive vision of law that is totalizing, relentless, and mostly oblivious to such crass considerations as time, money, and possible limits to the powers of human reason."

So we witnessed the absurd spectacle of a trial where the impaneling of the jury alone "took up far more time than was spent on the debate and ratification of the original U.S. Constitution." Then there followed, along with the endless rounds of testimony and cross-examination, the hundreds of hours spent on "evidentiary rulings, interpleadings, and motions of every conceivable sort." And in the end, "the surviving jurors disposed of the issue at hand with a brisk indifference to the evidence that itself suggested the futility of the whole exercise." The excessive refinements of the legal process have put trials and skillful attorneys beyond the reach of all but the most affluent defendants, and the legal system has turned out to be in actuality far more capricious and inegalitarian than it was before the Warren Court began its procedural revolution in the name of "fairness."

Hardly anyone could dispute Campos's point that the excesses of the Simpson trial are symptomatic of general problems in what law professors call " criminal procedure," the way we undertake the trial of criminals. But Campos's larger point is that our flawed criminal procedure is itself symptomatic of larger trends. The demand for "reasoned decision making" continually drives the substantive requirements of law toward quite irrational extremes. "The hundred-page appellate court opinion, the two- hundred-page, five-hundred-footnote law review article, the thousand-page statute, the sixteen-thousand-page set of administrative regulations" are all monuments to a system that has run amok in its pursuit of "rational analysis." So we post comprehensive notices about forbidden conduct and comprehensive warnings about the risks involved in a product or a procedure, and they turn out to be so obsessively comprehensive that no one can read them -- and they remain filled with ambiguity, anyway. The system "forgets that the more it elaborates itself, the more manipulable the system will become and the more unpredictable the social effects of such manipulations will be."

Meanwhile, we press the most "intractable moral and political issues" onto the courts -- "race and religion, sex and death, all the things one should never bring up in polite conversation" -- and then find out that constitutional law is incoherent. "Of course it is," Campos shouts. "You were thinking that perhaps we lawyers were going to solve some of these problems?"