Tuesday, August 20, 2013

A People’s History of the Supreme Court – Peter Irons (2006)

A People’s History of the Supreme Court is modeled after Howard Zinn’s A People’s History of the United States, a book I have not read but have often seen in the bookshelves of friends.  As such this review may be lacking.  It would be interesting to compare the books to one another and see which is more “readable.”  This book clocks in at 531 pages and covers the period between 1787 and 2006.  It mentions every single Supreme Court Justice, but it is less about the personnel of the Court than the cases brought before it.  There are glimmers of greatness in this book, but I must confess that it eventually began to bog me down.  This may be attributed to the fact that I have previously read and reviewed The Brethren, Wild Bill, and The Nine—three books which mine similar territory to this book’s final 130 pages.  Regardless, the first 400 pages were often more interesting than not, and Irons has created a largely admirable work. 

But first, I cannot resist tying in a personal connection.  Few readers of Flying Houses have been with us from the beginning (those inauspicious days of April through July of 2008), but it is worth noting that Irons’s literary agent was the subject of an early post.  “Finally, let me thank some of the people who helped make this book come to life.  My agent, Sandy Dijkstra, found my editor, Jane von Mehren, whose meticulous and thoughtful editing has improved the book immeasurably.” (xix) Now, there are not all that many literary agents.  There are the heavy hitters, and they keep large rosters of writers.  However, I found this mention quite ironic.  Ms. Dijkstra was the only agent to respond to my query on my first novel.  She rejected it, and I attacked her in the post linked to above, which mentioned her derision for the original title of The Joy Luck Club

First, let me note that I am not the same person I was in 2008.  Many changes have taken place and I would probably not be so critical of Ms. Dijkstra as I was in those impetuous days of my mid-20’s.  Second, let me note that my complaints have not abated, and that the publishing industry continues to irk me to no end.  I went to law school in a time of economic turmoil, and I felt that getting a job with a law degree would be easier than getting a first novel published.  My dreams remain intact, however, and soon it will be time to test those waters again.

With that out of the way, Irons opens up his book by explaining that he was an ex-con admitted to Harvard in his mid-thirties.  He went to jail, “serving a three-year sentence for refusing military induction in 1963.” (xvii)  He also was instrumental in reopening the wartime internment cases of Fred Korematsu, Min Yasui, and Gordon Hirabayashi.  In short, Irons mentions these facts in the introduction to the book as a way of setting up the reader’s expectations.  Yes, he is probably going to be taking a “liberal” stance on the cases to be discussed. 

This does not make the book any less valuable, however, because Irons is a very good researcher.  The book opens with what is probably its strongest point of coverage: the Constitutional Convention in Philadelphia, PA in 1787.  For the first 75 pages or so, Irons brings the real “framers” to life and makes it feasible for 21st century readers to understand them and maybe even identify with them.  This part of the book is truly special because there have been numerous debates about the “original intent of the framers” and how to decide cases from a “textualist” perspective.  Irons delves deeply into this material—but not so deeply as to make it a bore.  I have to believe that many Americans would find this portion of the book to be a “page turner,” even though it makes virtually no mention of the English court system or how the American court system would differ.  He does offer up a real stinger to the pro-gun lobby:

“In recent years, advocates on both sides of the ‘gun control’ issue have debated the ‘original intent’ of those who framed the Second Amendment.  Elbridge Gerry, Madison’s adversary in both Philadelphia and New York, offered this defense of the proposed amendment: ‘What, sir, is the use of a militia?  It is to prevent the establishment of a standing army, the bane of liberty.’  Arming the citizens who belonged to state militias, Gerry argued, would deter Congress from establishing a federal army that might oppress or invade the states.  Those who now advocate the constitutional ‘right’ of every citizen to ‘bear arms’ of any kind—from cheap handguns to assault rifles—are well advised to read the debates that led to adoption of the Second Amendment.  Not a single member countered Gerry’s argument that the ‘right to bear arms’ was limited to members of a state militia.  The current opponents of gun control legislation pay little heed to the Framer who spoke most clearly to the ‘intent’ of Congress on this controversial issue.” (75)  

From there, he moves into a discussion of George Washington’s first appointments to the Supreme Court.  This may well be the most hilarious portion of the text.  It is understandable that the Court seems “bush league” because it was in its infancy.  They barely have any work to do at first, and many of the Justices simply failed to show up for work.  Nobody really seemed to care, though.  The Supreme Court was in New York City in those early days.  It is worth noting that Irons writes with an eye towards entertaining “lay readers” (i.e. those that have not studied the primary materials themselves) and at times he writes with literary flair:

“The men Washington placed on the Court, in contrast [to Franklin Roosevelt], were a thoroughly undistinguished lot.  One spent time in debtors’ prisons for defaulting on loans; one returned his commission after five days to serve in state office; one never attended a single Court session; one was impeached for political bias on the bench; one was insane; and another was senile.” (86)

Things changed in 1801 when John Marshall took the post of Chief Justice.  Irons mentions that there are more than twenty books about Marshall and practically everything is praiseworthy.  Irons is careful, however, and keeps a critical eye on the Justices, primarily in regards to their views on slavery.  He is very tough on Marshall’s successor, Roger Brooke Taney, whom he denounces as a “racist” perhaps a dozen times, but he is more even-handed with Marshall:

“For almost two centuries, praise for Marshall as a judicial statesman has far outweighed criticism of his role as Chief Justice.  But the historical scale requires some balance.  Marshall was plain and humble in person, yet he was an aristocrat in outlook.  He came from a state [Virginia] that vigorously insisted on its ‘sovereign’ rights within the Union, but he favored the ‘General Government’ in almost every case he decided.  He read the Constitution broadly to protect the rights of property, but narrowly when he addressed individual rights.  Most important, Marshall disregarded his ‘feelings of humanity’ and looked at blacks as property, not as persons.  This last weight on the historical scale strips the mantle of ‘statesman’ from Marshall’s shoulders.” (141)

At this point it seems prudent to consider the usefulness of this book to law students.  There is probably no better book for incoming 1Ls to law school than this, for it covers almost every single case that will be encountered in any course on Constitutional Law.  This is what makes the book largely admirable.  While The Nine may be a more intriguing read because it covers events that most of us are not too young to remember, this book explains the foundations of the major doctrines of Constitutional Law—it is thorough on First Amendment cases and the Equal Protection Clause; it mentions substantive due process in passing; it covers the early Commerce Clause cases in fair detail (but unfortunately fails to mention Wickard, Lopez, Morrison, or Raich); it covers the “laissez-faire” period of the Court and the Lochner decision quite well; and it draws useful distinctions on the voting of certain Justices on the value of precedent and deference to the legislature against judicial “activism” and “voting from the gut.” And the Table of Contents will be useful for law students that wish to gain a more “human” grasp on what is actually being said in the opinions they are studying, for it includes all the cases mentioned.

The coverage of the major Marshall Court decisions is phenomenal.  Marbury v. Madison and Martin v. Hunter’s Lessee are brought to life, and Irons thankfully explains Marshall’s personal role in each, which some professors may mention but may just confuse law students, for the facts behind each case are so bizarre.

His coverage on Chief Justice Taney’s reign is focused squarely on the Dred Scott decision.  I had no idea how complicated the facts behind this case were, but while Irons explains that details on it are sketchy, he does an excellent job of telling the story of how Dred Scott came to bring his case before the Supreme Court.  This is a very long section of the book and probably has the most detailed analysis of any single decision.  This case is not a major point of study in law school, but it is interesting reading. 

He also covers the case Ex parte Milligan in good enough detail that it will prove helpful for law students.  This is a case that is studied more often, and it is these early cases (up through the Slaughterhouse Cases) that make for the most difficult reading in a law school course and accordingly prove to be the most valuable portions of the book.  But what comes across most clearly is Irons’s distaste for Taney:

“Lincoln correctly charged Taney with trying to ‘nationalize slavery’ by his twisted and tortured reading of the Constitution in Dred Scott.  That his opinion was ultimately reversed by constitutional amendment is no consolation to the hundreds of thousands of young men who died after the Supreme Court shot holes through the Constitution.  It is fitting to speak ill of the dead when they committed acts of infamy.  Taney wrote an infamous opinion in Dred Scott, and no later judgments of his judicial ‘greatness’ can remove that stain from the Court’s history.” (184)

Irons also does his best to define what “partisanship” meant in the 19th century, but I must confess that I still find what the parties stood for to be confusing:

“(The change in party labels requires a brief digression to avoid confusion.  The Federalists changed their name to the Whig Party between 1836 and 1856, when they became the second Republican Party, adopting the name of their former opponents.  The Jeffersonians who first called themselves Republicans abandoned that name in 1828—after using the hybrid title of Democratic-Republican for several years—to become the Democrats.  If this sounds confusing, it is.  But the nineteenth century saw a proliferation of party labels, including Free-Soil, Liberty, Union, American, and Anti-Mason.)” (122)

The next major point the book takes on is Plessy v. Ferguson.  This will be more useful than the coverage on the Dred Scott case because it is arguably more infamous for its precedential value.  (Irons also covers the Yick Wo v. Hopkins case and explains its facts quite well.) While the story of Homer Plessy is not quite as entertaining as that of Dred Scott, it is interesting to know that he could “pass” as a white man and that he actually wanted to get arrested so that he could challenge the separate accommodations for whites and blacks at the time.  Here, Justice John Marshall Harlan is the only dissenter in the case, and he emerges as one of the more noteworthy Justices and not just because his grandson would take up the post 44 years after he retired.  Again, Irons turns a critical eye on an apparently “liberal” justice that is worthy of praise:

“The notion of a ‘color-blind’ Constitution has enormous appeal as a guiding principle.  But there are dangers in substituting slogans for hard, realistic analysis.  Harlan’s famous sentence [‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’] has been ripped from its context by those—including Supreme Court justices—who have wielded it in recent years as a weapon against affirmative action and other ‘race-conscious’ remedial laws and programs.  Those who quote the ‘color-blind’ sentence invariably fail to quote the sentences that preceded it in Harlan’s opinion.  ‘The white race deems itself to be the dominant race in this country,’ he wrote.  ‘And so it is, in prestige, in achievements, in education, in wealth and in power.  So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.’
Harlan stated in these sentences the reality of race in 1896.  Whites held the reins of power, which they used to whip blacks into submission.  Harlan does not deserve scorn for acknowledging this reality, however much it reflected the ‘pride of race’ that he celebrated.  He had no more desire for ‘social equality’ with blacks than Justice Brown.  He was, after all, a man of his times, the son of slave owners and a man of superior prestige, education, wealth, and power.  But he was not a racist like Chief Justice Taney.” (230-231)

Irons makes a similar point about Abraham Lincoln, quoting from a speech where he says that he is not for social equality with blacks, though he is definitely against slavery.  This is surprising and some of these glimpses into the realities of the times are another factor that make this book worth reading. 
However, around this point, Irons switches his focus to the First Amendment, and Oliver Wendell Holmes, Jr. and the Schenk case in 1917.  He focuses on the “incitement” cases during World War I in First Amendment jurisprudence for quite a while, perhaps because of his own skirmishes with the law in the 1960s.  While this coverage is good, it is at this point that the Court’s decisions began to speak more for themselves than coverage on them.  There is quality coverage on Holmes as one of the greatest Justices in history, and also Louis Brandeis.  But, at least in my course in the First Amendment, our professor covered these cases in such fine detail that Irons’s descriptions amounted to little more than a nostalgia trip. 

He does cover the New Deal cases in excellent detail—the Schecter Poultry v. United States, West Coast Hotel v. Parrish, and National Labor Relations Board v. Jones & Laughlin Steel Company cases are quite important in defining the contours of the Commerce Clause, and law students are likely to find Irons’s emphasis of the importance of these decisions useful.  But it is also at this point that I began to lose interest in the book and “went through the motions.”  Of course, I was excited for the year 1939:

“Born in Minnesota in 1898 and raised in Washington state, William O. Douglas went east as a young man to Columbia Law School, where he taught after graduating at the top of his class [Not exactly—see Wild Bill review].  He moved to Yale’s law faculty in 1928, joining the ‘legal realists’ who looked behind judicial doctrine to explore the social, political, and economic forces that shaped the law.  Douglas staked a claim in the growing field of public and corporate finance, and Roosevelt picked the young professor to head the Securities and Exchange Commission.  Word got around that Douglas was a card shark, and he soon became one of the president’s ‘poker buddies’ and a New Deal insider.  Ironically, the only four senators who voted against his confirmation opposed Douglas as a ‘reactionary tool of Wall Street.’
William Douglas joined the Court at forty, the youngest justice since Joseph Story.  He stayed for thirty-six years, the longest tenure of any justice.  Douglas came to the bench without a well-defined judicial philosophy, and left as he came.  Much like the woodsman he was, Douglas avoided the beaten path and blazed his own trail.  Raised in poverty and struck by polio as a child, he developed a visceral sympathy for society’s ‘outcasts,’ including Communists and criminals.  He shared Frankfurter’s expansive view of due process and Black’s ‘absolutist’ devotion to the Bill of Rights.  Douglas was often criticized for failing to articulate a coherent judicial philosophy.  Certainly he never followed the narrow—but divergent—path from which Frankfurter and Black rarely strayed.  But there was an animating principle behind the twelve hundred opinions Douglas wrote over more than three decades.  ‘Our starting point has always been the individual, not the state,’ he wrote in 1958.  However far he wandered from the beaten path, Douglas never lost sight of his judicial lodestar.” (328-329)

So I really cannot complain about the coverage of Douglas, except that it is short and mentions nothing about his personal life.  There is also a nice quote about Justice Brennan:

“Perhaps the warmest tribute came from a former law clerk, Richard Posner, now a notably conservative federal judge.  Justice Brennan’s lasting influence, Posner wrote, stemmed less from his ‘commitment to a doctrine’ than from ‘the emanation of a warm, generous, and good-hearted person.’” (474)

There is not much else I can say about this book.  I think I have made my points relatively clear.  There are better books to read about the Court in the 20th Century, but I have not read anything as compelling as this on the 18th and 19th century Court (though I have not been very interested in reading anything about it also).  Irons chief focus seems to be racism and later on, affirmative action programs, sprinkled in with the two major gay rights cases in 1986 and 2003.  He ends in 2006, largely focusing on the Guantanamo Bay cases, and barely mentioning Chief Justice Roberts and Justice Alito.  As I mentioned in the review for How Judges Think, this book may be due for a revision.  It is unfortunate that Irons does not mention Buckley v. Valeo, but any description of the Court that includes 2010 will include Citizens United and any mention of that case requires reference to Buckley.  This book was already revised once, however, and it is unclear that much could be added, though the opinions handed down by the Court this past summer certainly fall in line with Irons’s predictions regarding the path of gay rights.  Jeffrey Toobin did an excellent job on Citizens United and the Affordable Care Act Cases in The Oath so there is at least good reading material out there.  Irons work as a scholar of the “ancient history” of the Court is what makes this book most special, and though I have not read Zinn’s famous volume, I am sure this stands up alongside it fairly well. 

Tuesday, August 13, 2013

How Judges Think - Richard A. Posner (2007)

Oeuvre rule: I have read dozens of judicial opinions by Judge Posner of the 7th Circuit and almost every one of them has been a good read.  I even remember reading one obscure bankruptcy decision which was very entertaining because he went out of his way to highlight the frivolity of the litigant's claims.  He has been a federal judge for more than 30 years.  He has written a formidable number of books and law review articles.  His name is synonymous with "economic analysis" and "law."  He was made to serve on the Supreme Court, but was never nominated because he could not be counted on to "vote along party lines."  He also teaches at the University of Chicago Law School and blogs at http://www.becker-posner-blog.com/.

Last year I applied to be his law clerk.  I applied to about 100 other judges.  Almost all of them sent rejection letters.  A couple actually sent invitations to interview.  Judge Easterbrook (Posner's colleague on the 7th Circuit) sent a postcard rejection.  Posner was the only judge who failed to respond.

And who could blame him?  After all, I sent him my rejected 40 page note on the plight of temporary workers in the wake of the Great Recession, and added, at the end of my mail-merged cover letter, that I was a huge fan of his.  I've heard he likes to have clerks with backgrounds in engineering and science.  So I completely understand.  And I would not be so petty as to criticize How Judges Think based on the mere failure of a response.

But this is not going to make the "best books of Flying Houses" list for one reason and one reason only: it has very limited appeal for a mass audience.  This book is made for law students, professors, law school administrators, judges, lawyers, and anyone who has been faced with the thankless task of poring over law review articles.  Occasionally, it is interesting enough for lay readers, but the proof is in the acknowledgments:

"I have incorporated material from the following articles of mine, though with much revision and amplification: "The Role of the Judge in the Twenty-First Century," 86 Boston University Law Review 1049 (2006) (chapters 3 and 4); "Judicial Behavior and Performance: An Economic Approach," 32 Florida State University Law Review 1259 (2005) (chapter 5); "Reasoning by Analogy," 91 Cornell Law Review 761 (2005) (chapter 7)...." (379)

And six other articles.  So while yes, Judge Posner is an extremely hard worker and probably one the most (if not the most) prolific writers in the history of American law, it appears that he writes his articles with an eye towards incorporating them into a book (though I did read one funny article by him called "Goodbye to the Blue Book" that may not have found its way into a book).  As one recent law graduate told me when I was a 1L, "Posner writes with an eye to being published in casebooks."

Posner begins the book by discussing 9 theories of judicial behavior (attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalist) and whether judges's decisions are best explained by the political preferences they bring to their cases, largely focusing on the idea that "liberal" judges are appointed by Democrats and "conservative" judges are appointed by Republicans.  Some of this is confusing because it may be difficult to say what separates a "liberal" decision from a "conservative" one.  Of course there are easy cases like Goldberg v. Kelly (a Justice Brennan-authored decision requiring evidentiary hearings prior to the termination of public assistance benefits) and Citizens United (a Justice Kennedy-authored decision allowing corporations to make virtually unlimited expenditures in the area of campaign finance), but as noted in my previous review, certain areas such as criminal procedure do not always allow for such neat "left/right" categorization.

Posner then goes on to discuss the judge as a labor-market participant.  While Posner's reasoning on the matter is sound, it underscores how esoteric this book can get:

"Each bit of information the judge received that bore on that truthfulness [of a witness] would be likely to alter his prior probability [a pre-inquiry estimate of a witness's truthfulness], but not erase it; the prior probability would affect the posterior probability [a post-inquiry assessment of a witness's truthfulness], as in Ω(H/x) = p(x/H)/p(x/~H) x Ω(H), the simplest version of Bayes's theorem.
Ω is odds; the left-hand side of the equation is the posterior odds that some hypothesis, H, is true; the last term on the right-hand side of the equation, Ω(H), is the prior odds; x is the new information obtained in the course of the inquiry; p is probability, and p(x/H)/p(x/~H), the first term on the right-hand side of the equation, is the ratio of the probability that x would have been observed even if H was false (~H). (So if those two probabilities were the same, the new information would not alter the odds; it would be a case of multiplication by 1.)" (66) (brackets mine)

While I may have made that more confusing with my bracketing, it was the simplest way I could sum up what is unquestionably the most unreadable portion of the book.  Thankfully, Posner does bring it down to a more human level:

"Suppose the hypothesis is that the witness--let us say the plaintiff in a sex discrimination suit--is testifying truthfully, and that before she begins to testify the judge sets (almost certainly, unconsciously) the odds that she will be telling the truth at 1 to 3, which is equivalent to a probability of 25 percent (1 out [1+3]).  She testifies, producing new information, x.  Suppose the probability that x would be observed if she was telling the truth is .6, that while the probability that it would be observed if she was not telling the truth is .3, so that the ratio of the two probabilities is 2.  When this "likelihood" ratio is multiplied by the prior odds of 1 to 3, the result is posterior odds of 2 to 3 (1:3 x 2 = 2:3), which is equivalent to a 40 percent probability (2 out of 5) that the witness is telling the truth." (66)

I will not comment any further on Bayesian theory.

I could go through the rest of the chapters and summarize what each one is about, but that would be boring and a needless waste of time.  You may read the Introduction or the Conclusion to the book if you would like a bite-sized morsel of it.  Like any good law review article, it is systematically and structurally precise.  Posner does not exactly come out and say, "I am a pragmatist," but it seems clear that he favors the "pragmatic" behavioral model of the judge over the others.

Sadly, as I often mention when discussing Vladimir Nabokov's thoughts on Thomas Mann, Posner does not have kind words for my favorite Supreme Court Justice:

"Law is a methodologically conservative profession, and 'bad boy' rhetoric such as [Jerome] Frank's advocacy of psychotherapy for judges or Fred Rodell's proposal that the practice of law be made a crime and courts be replaced with administrative agencies including a 'Killing Commission to apply its laws about what are now called murder and manslaughter,' like the antics of the 'crits,' ensured that these scholars would not receive a fair hearing.  That the only avowed legal realist to become a Supreme Court Justice--William O. Douglas--flouted perfectly sensible norms of judging (FN 46) also helped to give realism a bad name." (112-113)
("Here is a sampling of criticisms of Douglas--none by conservatives.  'His [Douglas's] opinions were not models; they appear to be hastily written; and they are easy to ignore.'  L.A. Powe, Jr., 'Justice Douglas after Fifty Years: The First Amendment, McCarthyism and Rights,' 6 Constitutional Commentary 267, 269 (1989).  The carelessness of Douglas's opinions was rooted in his 'indifference to the texture of legal analysis, which arises from an exclusively political conception of the judicial role.' Yosal Rogat, 'Mr. Justice Pangloss,' New York Review of Books, Oct. 22, 1964, p.5.  'Douglas was the foremost anti-judge of his time.' G. Edward White, 'The Anti-Judge: William O. Douglas and the Ambiguities of Individuality,' 74 Virginia Law Review 17, 80 (1988).  Douglas 'refus[ed] to judge in tax cases.'  Bernard Wolfman, Jonathan L.F. Silver, and Marjorie A. Silver, 'The Behavior of Justice Douglas in Federal Tax Cases,' 122 University of Pennsylvania Law Review 235, 330 (1973))." (FN 46)

Posner is generally a very witty writer, but it can be difficult at times to mine through the seeming intellectual elitism of his prose to realize that what he is writing is actually funny.  But other times, he frames the law in a way that laypersons will understand:

"Versions of judicial modesty include [James Bradley] Thayer's principle that statutes should be invalidated only if they are contrary to any reasonable understanding of the constitutional text and Holmes's 'can't helps' or 'puke' test: a statute is unconstitutional only if it makes you want to throw up." (288)

I will make one final point about How Judges Think: while it is probably going to attract little interest from those outside of the "profession," it is good reading for law students, and it will probably be slightly more interesting than your average law review article or casebook reading assignment.  Most law students will probably find the final section of the book, where Posner discusses the political nature of the Supreme Court, to be most entertaining.  He gives brief (but always intriguing, given the level at which his mind is operating) remarks on most of the Justices then sitting in 2007, and delivers a pretty thorough review of Justice Breyer's book Active Liberty.  He also criticizes Justice Kennedy's constitutional philosophy:

"Justice Kennedy's opinions in Lawrence v. Texas (the homosexual sodomy case) and Roper v. Simmons [the juvenile death penalty case] make only limited efforts to ground decision in conventional legal materials.  They could not do more, operating with nondirective constitutional provisions and in the teeth of adverse precedent.  They are appeals to moral principles that a great many Americans either disagree with or think inapplicable to homosexuals or juvenile murderers.  The approach is consistent, however, with the judicial philosophy that Justice Kennedy expressed in the interview from which I quoted in chapter 9, when he said that 'all of us have an instinctive judgment that we make...You make these quick judgments...Judges do the same thing...But after you make a judgment, you then...have to see if that...accords with your own sense of ethics and morality.  And...[you have to understand] that you have the opportunity to shape the destiny of this country.  The framers wanted you to shape the destiny of the country.  They didn't want to frame it for you.'  This is the most powerful judge in America speaking, and, if we may judge from his decisions, meaning what he says--that the framers of the Constitution wanted Anthony Kennedy to shape the destiny of the country in accordance with his own sense of ethics and morality, though it strikes many as quirky." (310-311) (first brackets mine)

While the book reads fairly well from beginning to end, its genre likely falls into "legal theory," and so most readers may pass a chuckle when Posner goes off for five pages about Chief Justice Roberts's "umpire analogy" to judging, but few will stick it through to the end.  Through no fault of its own is the book dated (there are at least four major cases, involving Anna Nicole Smith, the Affordable Care Act, Campaign Finance, and gay marriage, on which Posner likely has something to say), but it is one that is a prime candidate for a "new edition." 

Posner opens up the book with an exclamation point--one of the few in the text--and closes on a powerful salvo, which nicely summarizes his raison d'être:

"For that recognition [that legalism is not the path to reform] to take hold, however, will require a change in the way in which law is taught in law schools.  Realism about judges is sorely lacking there.  Law is taught as if judges were second-class professors, professors manqué--legal analysts lacking the specialized knowledge of the law professor.  The motivations and constraints operating on judges, and the judicial mentality that results, are ignored, as if judges were computers rather than limited human intellects navigating seas of uncertainty.  As a result students are not taught how to present a case to a judge in a way that will strike a responsive chord.  The curious judicial passivity that results from judges' being accustomed to simply decide whatever is brought to them to decide, rather than to initiate anything, has made most judges shy about telling lawyers how they should be presenting cases to maximum effect, thus helping themselves by helping the judges.  The nation needs a better bridge between bench and bar, and its construction must be largely the work of the law schools." (377)

Ultimately that is who will get the most out of this book: law school administrators and practicing lawyers.  While it is highly doubtful that every judge possesses as masterful an intellect as Posner's, I am sure they would find many of his comments to be accurate.  I am sure that by reading this book, and taking out some of the "pro tips" he offers, one could become a better attorney.  Or you could at least learn how not to screw up an amicus curiae brief if you happen to teach at Yale.  

Friday, August 9, 2013

Anna Karenina - Leo Tolstoy (Transl. Richard Peaver and Larissa Volokhonsky) (1877)

I am very pleased to present our newest writer on Flying Houses, Juan J. Perez.  He has reviewed a book for me that is somewhat famous.  I openly admit that I am a tyro when it comes to Tolstoy.  I have read part of The Death of Ivan Ilyich, but I have generally favored the Russian writers that adopted America as their new homeland.  I do not know very much about the political climate in Russia in 1877, but I am guessing this book reflects it accurately.  This review, on the other hand, focuses on matters of the heart, or the "doomed romance" aspect of the novel.  Juan has written an excellent review, and if he feels up to it in a few years I will welcome a review of War and Peace.

“All happy families are alike; each unhappy family is unhappy in its own way.” So begins what Leo Tolstoy was to call “his first novel” with a sentence that has been oft-quoted since its creation. Anna Karenina is truly in a realm of its own. It’s almost akin to a soap opera in that one finds it impossible to take their eyes off the drama unfolding. The comparison might sound insulting to some, but it is only the lowly opinion of a literary fledgling penning his first review. The particular version that is going to be discussed is the translation done by Richard Pevear and Larissa Volokhonsky. If the reviews on the jacket are to be believed, it is a superb translation a cut well above the rest. Still, the main reason it found itself in my book bag was not because of the glowing reviews or even the acclaim the story itself has received, but rather, my desire to educate myself on the classics which with high school had neglected to acquaint me. The English classes in my curriculum were more focused on sending students out of class for juvenile behavior than on Romeo and Juliet or The Great Gatsby. Shakespeare was enjoyed on occasion, but that was on my own, and there was no extent beyond that. That is what led me to peruse the aisles of my local library and grab Anna Karenina without a second thought.
While having heard the name in passing often enough, Tolstoy was very much an enigma to me—something similar to a shadow undulating in my peripheral vision. The introduction in this version gave an enlightening apercu on Tolstoy, his work, and, most importantly, the novel in question. Anna Karenina was written amidst a time of great questioning in Russia. Many publications advocated for ideals such as sexual freedom and communal habitation. Women’s education, enfranchisement, and role in public life were very much debated. As Pevear states, “On all these matters Tolstoy held rather conservative views. For him, marriage and childbearing were a woman’s essential tasks, and family happiness was the highest human ideal….An intentional anachronism, his novel was meant as a challenge, both artistic and ideological, to the ideas of the Russian nihilists.” (ix) Yet, although he essentially despised adultery, Anna was not portrayed unsympathetically.  In fact, Tolstoy’s wife wrote that he had “envisioned the type of a married woman of high society who ruins herself. He said his task was to portray this woman not as guilty, but as only deserving of pity…” (xi)
Anna Karenina’s plot revolves around a vast array of characters and settings that is splintered into eight parts. Part One introduces us to the predicament that is the Oblonsky household. Stepan Arkadyich has been caught having an affair with the family’s former French governess by his wife, Dolly. Despite his best attempts, he is unable gain her forgiveness. He desperately turns to the visit of his sister, Anna Arkadyevna Karenina, as his only hope for salvaging his marriage. Ironically enough, while Anna does indeed convince Dolly to forgive Stiva (Stepan) and take him back, it is this very visit from St. Petersburg to Moscow that introduces her to her folly, Count Alexei Vronsky, a young and handsome officer who is very well regarded in society. It is also during this time that Stiva’s childhood friend, Konstantin Levin, has come to Moscow with the intent of proposing marriage to Stiva’s belle-soeur, Kitty. Unfortunately for Levin, Vronsky has also begun courting her, albeit seeing it as a minor flirtation rather than expressing intent for marriage. Due to this, Kitty rejects Levin for Vronsky which sends a depressed Levin back to the country. However, it seems karma plays a hand in this for, as soon as Vronsky meets Anna, he loses all interest in Kitty and is determined to pursue Anna back to St. Petersburg to woo her. This leaves a very distraught and unresponsive Kitty in his wake and the Shcherbatsky family travels to the country in order to try and brighten her spirits. Back in St. Petersburg, Anna finds herself drawn to a different social circle which is radically different from the virtuous and pious one she used to belong to. It is here where she gives in to Vronsky’s advances and begins her deadly dalliance with him. This does not go unnoticed by her husband or other society people, and it commences a whirlwind of adultery, jealousy, and hypocrisy amongst everyone.
The part that most captivated and enraptured me was Part Seven’s finale, where Anna meets her demise. The style that Tolstoy uses to describe Anna’s stream of consciousness during her last moments flows effortlessly and beautifully. One can practically picture themselves in Anna’s position. “What was he [Vronsky] looking for in me? Not love so much as the satisfaction of his vanity,” she ponders. (762) In what this reviewer believes to be one of the greatest internal dialogues ever written, Anna displays her paranoia at her situation, “ My love grows ever more passionate and self-centered, and his [Vronsky’s] keeps fading and fading, and that’s why we move apart…And there’s no help for it. For me, everything is in him alone, and I demand that he give his entire self to me more and more. While he wants more and more to get away from me…He tells me I’m senselessly jealous, and I’ve told myself that I’m senselessly jealous, but it’s not true. I’m not jealous, I’m dissatisfied…If he is kind and gentle to me out of duty, without loving me, and I am not to have what I want—that is a thousand times worse even than anger! It’s hell! And that is what we have. He has long ceased loving me. And where love stops hatred begins.” (763)  Her mind is completely revealed to the reader and all one can do is read on as Anna’s mental state deteriorates, “Ah, a beggar woman with a child. She thinks she’s to be pitied. Aren’t we all thrown into the world only in order to hate each other and so to torment ourselves and others?”(764)
This brings me to a subject often discussed by critics: was Anna mentally ill? While I am not an authority on the matter, as psychology was never a class of mine, I will say that Anna does indeed seem to display characteristics of mania and schizophrenia. In fact, it is my belief that Tolstoy actually alludes to her mental instability with a line from Anna herself, “’No, I won’t let you torment me,’ she thought, addressing her threat not to him [Vronsky], not to herself, but to the one who made her suffer, and she walked along the platform past the station-house.”(767) What follows is the infamous suicide scene which was foreshadowed in the beginning of the book when Anna was introduced, “And the candle by the light of which she had been reading that book filled with anxieties, deceptions, grief and evil, flared up brighter than ever, lit up for her all that had once been in darkness, sputtered, grew dim, and went out for ever.”  (768)
Many will probably disagree with me on this, but the book should have ended there. Part Eight was admittedly a hastily added part, but it detracted from the book for me a great deal. There was little to no closure for Anna’s death in that section and my annoyance at Levin’s “sufferings” tainted my enjoyment of the book. My desire to finish the book from beginning to end was the only reason it was read. It seemed very odd and out of place for Levin to have such conflicts after all that he has endured and gained throughout the story, which only increased my perplexity and vexation at his supposed woes. Despite a rather unsatisfying end for me, Anna Karenina was a greatly enjoyable book to read. My curiosity is sufficiently piqued for me to go and search out Tolstoy’s War and Peace, which many claim is his magnum opus. Let us hope the owner of this blog does not ask me to review it as well. Adieu, my fellow book lovers.