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Against All Odds

GETTING AWAY WITH MURDER: How Politics Is Destroying the Criminal Justice System.\o7 By Susan Estrich (Harvard University Press: 162 pp., $19.95)\f7 ; JURISMANIA: The Madness of American Law.\o7 By Paul E. Campos (Oxford University Press: 198 pp., $23)\f7

July 12, 1998|EDWARD LAZARUS | Edward Lazarus is the author of "Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court" (Times Books)

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.

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