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?"
Because they see the system up close, lawyers do understand, at some level, that much of what they do and say is part of an act. And some of the most timely passages in Campos's little polemic deal with the strangely disorienting effect of such role-playing. In reality, "American courts are now gigantic bureaucracies, processing more than thirty-million lawsuits per year, with all the attendant evils that mark enormous, anonymous government institutions." But from the "breathless analysis" of the latest trial on talk- show television to the "equally starry-eyed reportage of the latest joint plurality opinion of the Supreme Court" in the New York Times, we nurture a "remarkable romanticism that surrounds the cultural ideal of law."
Law and lawyering have taken over more and more cultural authority, displacing religion, tradition, and common sense. And Campos worries that as a result "the habits of the legal mind and the structure of legal argument" have become the dominant tone of public discussion. This has real costs: " Lawyers are often impelled by their professional obligations to become something akin to emotional prostitutes; that is, to be persons whose public personae require the simulation of inauthentic affective states as a condition of their compensation. . . . A lawyer trying a case must always be ready to express what seems like genuine outrage at the drop of the proverbial hat." This style of presentation has now infected political debate, dominated by "emotional pyrotechnics from amateur litigators." Yet "those who imitate the professional personae of lawyers are usually unaware that lawyers are almost always faking it." Or maybe -- as Campos suggests about the talking heads who appear on such television debate programs as Crossfire -- they know it all too well and cheerfully take up the game, as "the simulation of outrage has become a seemingly permanent part of the broader political culture."
Campos himself seems determined to step back from feigned outrage. But his usual way of doing so is to switch from lawyerly fulmination to professorial vaporing. He rattles on for pages and pages about the cultural crises feeding the legal crisis: "Secular materialist rationalism has become the unofficial religion of the American cultural and political elites" and with this " contemporary collapse . . . of both traditionally religious and overtly political forms of metaphysical belief, our law tends more and more to become both the patriotism of the deracinated and the de facto faith of the apostate. " Jurismania is a book that has no time for Blackstone or the Federalist Papers but does manage to draw into its exposition James Joyce, Franz Kafka, and Michel Foucault -- to say nothing of Friedrich Nietzsche, who appears eleven times in fewer than two-hundred pages.
There may be a serious point here, but Campos can't quite bring himself to be serious about it. If the hypertrophy of the legal system is fed by the atrophy of traditional beliefs, then why doesn't Western Europe experience more of these legal symptoms than the United States? And if the ultimate problem is loss of faith, then shouldn't we be preaching the return of religion rather than the reform of legal procedure? These obvious questions are never even broached in Jurismania. Rather than stare into the abyss of modernity and experience the abyss staring back at him, Campos retreats into irony. Near the end, he refers to his own book as "this wordy and useless polemic." Still later he confesses the futility of his own undertaking: "To believe the rationalist illusion can be swept aside by reasoned argument is itself a rationalist illusion."
But postmodern irony has its limits, too. Jurismania describes the phenomenon very well: "Sophisticated legal academics prefer to affect a jaded, world-weary cynicism." But "let the Supreme Court touch on the scholar's ideological bete noire, or the local zoning board threaten to put a McDonald's across the street from his house, and all that postmodern ennui in the face of . . . essentially meaningless language games goes right out the window. . . . Professor X, who on most days sounds like a cross between a Chicago Alderman and Michel Foucault, is transmogrified into a hybrid of Perry Mason and Christopher Columbus Langdell [dean of Harvard Law School in the late nineteenth century] and duly unleashes a torrent of sanctimonious formalism in the service of his rediscovered ethical zeal."
Does this tell more about the hypocrisy of the law professors or about the silliness of their affected postmodernism? Campos doesn't say, retreating instead to the pose of the outsider: "If it were my job to parcel out, on the basis of circular justifications and instrumental guesses, a daily portion of the violence of the state, I, too, might become extremely adept at maintaining the intense levels of sophisticated double-think that get the normatively committed law professor through the day." And since Campos proudly conceives himself not to be "normatively committed," he can get through his day with his sense of humor intact.
In fact, however, those who pride themselves on their disdain for the " normative commitments" of justice often betray a secret kinship with those who demand justice "even if the heavens fall." Both stand aloof from the challenges of life in this world. Both postures are, in that sense, academic luxuries. And these days, neither is quite serious.
In his column in the Denver Post, published in late January, Campos held that letting the independent counsel make such a to-do about the Lewinsky case was, after all, just another symptom of "jurismania." That's consistent with the argument that we shouldn't let obsessions with perfect justice threaten more immediate, practical concerns. But it is also consistent with world-weary cynicism and postmodern ennui. And it is even consistent with the fact that, as Jurismania acknowledges, "the vast majority of law professors are left-liberal Democrats who can be counted on to vote, however grudgingly, for Bill Clinton." For all his iconoclastic posturing, Campos has more in common with that "vast majority" than he likes to admit. But his Jurismania remains in many respects a witty and instructive book.
Jeremy Rabkin teaches in the department of government at Cornell University.