| Book Reviews |

Chasing Justice: My Story of Free- heartbreak after heartbreak as appel- What sustained Cook during all ing Myself After Two Decades on late courts rejected his claims. Howev- those years was the knowledge that Death Row For a Crime I Didn’t er, thanks to the zeal of the Centurion he was innocent as well as his belief Commit Ministries and its team of lawyers, he in God. But make no mistake: Cook’s was freed and could begin a new life. knowledge and his faith did not pro- By Kerry Max Cook When John Grisham’s The Innocent vide him with confidence. Too many William Morrow, New York, NY, 2007. Man was published last year, readers, people had deserted him and too many 342 pages, $25.95. especially those who are not lawyers, doors had slammed in his face. He found its true account of the wrongful could have little belief in a system that convictions and eventual exonerations had wrongly convicted him and contin- Re v i e w e d b y El i z a b e t h Ke l l e y of two men to be compelling. I recom- ued to fail him. While reading Chasing mended Chasing Justice to a friend of Justice, one wonders how much more The Innocence Project, which is mine, an English professor, who had Cook can endure. Then, a new set- based at Benjamin Cardozo School of just finished reading The Innocent Man back, a new indignity, is visited upon Law, reports that there have been 200 and was overwhelmed, but she said him, and alas, he continues to endure. post-conviction exonerations based on that she couldn’t bear to read another His emotional and physical strings are new DNA testing in U.S. history—and book on the same topic that was also very, very taut, and just when we think the majority of these cases involved so heartbreaking! Yet Cook’s Chasing they will break, he miraculously holds African-Americans. The Death Penalty Justice can be distinguished from Gr- himself together. Information Center reports that, since isham’s book by the sheer power and Kerry Max Cook is angry and bit- 1973, 124 people on death row have authenticity that emanates from a first- ter, but he has every right to be, and it been released and later have been ac- person narrative. Cook does not merely would seem unreal if he were not. Yet quitted, received pardons, or had all enable you to visualize his torment; he Cook’s anger and bitterness do not just charges dropped (DNA was a substan- forces you to share his prison cell with hang in midair; rather, Chasing Justice tial factor in only 15 of those cases). him. We are outraged as a prosecutor exposes all those factors that led to Although the United States has the best distorts and withholds evidence. We the wrongful conviction of Cook and legal system in history, these exonera- are shocked and disillusioned as a trial many others: prosecutorial miscon- tions show that the system is far from judge denies Cook the opportunity to duct, mistaken eyewitness testimony, perfect. Indeed, for all that is good present evidence that has a real pos- junk science, and jailhouse snitches. about our criminal justice system, we sibility of leading to his acquittal. We How many wrongfully convicted men are still haunted and ashamed by sto- mourn the death of his beloved father and women suffer in our prisons to- ries like Kerry Max Cook’s. One reason and brother, who die while he is in- day? Chasing Justice reminds us that is that Blackstone’s words—“Better that carcerated. And we puzzle over Cook’s work remains to be done. We must ten guilty persons escape than that one inability to reintegrate into the world correct the system to prevent wrongful innocent suffer”—have been burned after his freedom has been so painfully convictions in the future. TFL into our national psyche. won. Chasing Justice is a powerful and re- Cook endures not only the agony of Elizabeth Kelley is a criminal defense vealing book that must be read by any- a death sentence hanging over his head attorney in Ohio and has a special one who wants to ensure that wrong- for 22 years but also sadistic treatment commitment to representing individu- ful convictions do not happen in the by guards and fellow inmates. Those als suffering from mental illness and future. Today the author of the book, who might ordinarily dismiss reports mental retardation. She frequently pro- Kerry Max Cook, is a husband and fa- of horrible prison conditions by saying vides legal commentary for Court TV, ther living in upstate New York. Some that the inmate should have thought of MSNBC, and CNN. She can be contact- of you may have seen him on Broad- that before committing the crime ob- ed at [email protected]. way or on television; his story was told viously cannot say that here. Granted, in the play “The Exonerated,” and he prisons are meant to punish, but the provided post-performance commen- conditions and scenes Cook describes tary during the show’s Broadway run. offend any standard of decency. Between 1978 and 1999, however, Some might cite Cook’s 22 years on Cook resided on death row in the state death row to argue that we should accel- of Texas. He was convicted of the bru- erate the appellate process, but it took tal rape and murder of a young woman that long to prove Cook’s innocence, and sentenced to death, even though, and speeding up state-sponsored kill- unlike many others who have been ing will not make us any safer. Texas, The Failure of Corporate Law: wrongfully convicted, he had hard- Cook’s state, is the nation’s leader in Fundamental Flaws & Progres- working trial counsel. Cook endured executions—and also in homicides per sive Possibilities not only the brutality of death row but capita. By Kent Greenfield

40 | The Federal Lawyer | July 2007 University of Chicago Press, Chicago, IL, 2006. commonly understood as they should discuss the topic, he comes up with 288 pages, $45.00. be. For example, the fact that the eq- the following statement: “Framed in uity holders are in last place when a contractual terms, one can imagine a corporation is in its death throes sug- corporate contract that does not link Re v i e w e d b y Ch r i s t o p h e r C. Fa i l l e gests that, when a corporation is not the residual claim on financial assets bankrupt, the equity holders, sitting on to be distributed in case of liquidation Who gets what as a result of a cor- the ground keeping everybody else in with a sole claim on the attentions of porate bankruptcy? There is an order the air, hold a certain pride of place. the directors.” This is, in part, a simple of precedence, well established in law, We might change the analogy and expression of incredulity that the direc- that is applicable in principle (though think of an airplane in flight. This par- tors’ obligations in normal times, when with differences in practice) whether ticular airplane is subject to only one bankruptcy is not a looming threat, the bankruptcy is a liquidation or a manner of crash—cockpit first. Each of could have much to do with the pos- reorganization. The creditors of the the passengers has a better chance of sibility of insolvency. But incredulity is company have claims against its assets survival than the cockpit-inhabiting pi- not an argument. that are prior to the claims of the own- lot—the equity holders—which makes Yes, we could, as Greenfield sug- ers of equity. In addition, the creditors’ a certain intuitive sense on both sides. gests, “imagine” breaking that link, as claims differ among one another in pri- Anyone in possession of any corporate one can imagine just about anything ority according to the terms of the con- security or instrument has, in principle, else one likes. The point remains, how- tracts by which the corporation’s debts bought into a specific position in the ever, that in the real world, as opposed to them were incurred. passenger-to-pilot continuum—a spe- to the realm of imagination, the his- Imagine a newly bankrupt corpora- cific trade-off of control, return, and torical development of such a link was tion as a seesaw with a much heavier risk. Both in the event of a crash and nonetheless a perfectly rational devel- weight at one end than at the other. The in the more usual event of a flight that opment, and one that we shouldn’t lighter end, accordingly, is up in the air does not crash, each is entitled to the hasten to weaken. and the heavy end is on the ground. In benefit of his or her bargain, and no On another point, Greenfield com- terms of the right to receive a payoff, one is entitled to more than that. plains that existing precedents give a the most senior or best secured debt Of course, in a corporation that has corporation no obligation to obey the instruments have first dibs, and, after a lot of outstanding shares of equity, law. According to Greenfield, courts they are paid, other payments follow the equity holders can’t literally exer- do sometimes “talk about” such a duty, in legally defined sequence, with the cise their piloting prerogative. They but they don’t really mean it. “Indeed, owners of equity sitting on the ground. must do so through surrogates known there is not a single, modern case that At some point, moving down the see- as directors. From such considerations holds directors liable to shareholders saw, the tangible assets of the estate arise two crucial principles of corpo- just because the directors or the corpo- run out. But, if we’re assuming that rate law: (1) that the leading role in ration broke the law.” there is some good will for the ongo- corporate management is played by I suppose his statement is right. ing enterprise, there is still some value the directors, who have a good deal Similarly, I doubt that there is any to be distributed. We can call that point of discretion in how they exercise their modern case that holds doctors liable the fulcrum. leadership; and (2) that the directors to patients just because the doctors The holders of the fulcrum security are expected on the whole to employ acted negligently when treating their are reimbursed by the transformation that benefit to maximize the value of patients. Rather, doctors are liable if of their instruments into equity in the the equity of the corporation. their negligence causes the patient an reorganized company. The next class Advocates of the doctrine known as injury. The same tort law principle ap- of securities after that gets nothing. As “corporate social responsibility”—Kent plies to the relations between direc- the image suggests, the original equity Greenfield is one of them—question tors and shareholders. Why should this holders are sitting on the ground, so or deny these principles. Proponents amaze a former law clerk to a Supreme they’ll always be below the fulcrum. typically come up with a long list of Court justice? I suspect that Greenfield Now, there are few sentences in which “stakeholders” to whom “corporations” is blinded to such an obvious fact by the word “always” literally belongs. (read: directors) are obliged and deny his gleaming vision of the “progressive But, in the rare case when the original the equity holders any pride of place on possibilities” of a new system of corpo- equity holders do recover something, the list. I don’t believe, in general, that rate law that would turn these institu- it is a good indication that the bank- these advocates have much of a case. tions into engines for good and hold ruptcy system was misused. If there Even so, I have to say that they’ve had directors responsible for something was still that much value in the original more capable champions than Green- like bringing about the greatest happi- enterprise, it probably shouldn’t have field is in The Failure of Corporate Law. ness for the greatest number. sought the protection of the court in He brings little new or interesting to The Failure of Corporate Law, then, the first place. the table. is an object lesson in the distortions to The preceding paragraphs state Greenfield barely mentions the in- the human reasoning apparatus that some fairly well-known facts. But the solvency-driven rationale for the cen- implications of these facts aren’t as trality of equity. When he does briefly Reviews continued on page 42

July 2007 | The Federal Lawyer | 41 Reviews continued from page 41 old-fashioned, undiluted Benthamite J. Edgar Hoover, the and deport anarchists to their country act-utilitarianism can inflict. Looking at of origin—primarily the Soviet Union. any action from every possible point of FBI’s director under sev- In those days, deportation actions were view—and considering how the action assigned to the Department of Labor, affects everyone’s interests—is simply en Presidents, became, and Palmer had to convince Secre- an impossible task, whether for moral- tary of Labor William B. Wilson of the ity or for jurisprudence, whether for as Kenneth D. Ackerman soundness of his plan. Wilson and his bearers of witness, for irresponsible lieutenants initially viewed Palmer’s ac- rakes, or for corporate directors. We tions as an unwarranted power play are humans, not gods, and we do best writes, “perhaps one of and rejected Palmer’s requests to start when we work from quite particular the deportation process. But Palmer el- projects, duties, and loyalties. Litigation the most hated men in evated Hoover from a special assistant serves a social purpose best when it is in the Justice Department to the head aimed at righting not abstract wrongs American history.” Ack- of the department’s newly created Rad- but specific injuries, and directors can ical Division, and Hoover worked with set their own course sensibly when the erman’s Young J. Edgar Secretary Wilson’s immigration chief, law instructs them to use their business Anthony Caminetti, to change Wil- judgment (allowing for some side con- will not restore the direc- son’s mind and allow the deportations. straints) for the good of the owners of Hoover and Caminetti succeeded, and the equity they represent. TFL putative troublemakers were deported, tor’s former reputation. including the fiery Emma Goldman. On Christopher Faille is a financial cor- Nov. 7, 1919, and Jan. 2, 1920, thou- respondent for an Internet-based news young Hoover to reorganize the Justice sands of people were arrested in a service and is a member of the Con- Department’s bureau of investigation. brutal fashion and held without bail in necticut bar. He maintains a blog, Stone (later a Supreme Court justice) cramped quarters. “Pragmatism Refreshed,” at cfaille. was disturbed by the series of raids on Although Hoover and Caminetti blogspot.com. so-called Reds that Attorney General A. directed the raids, they did not publi- Mitchell Palmer had launched in 1919 cize their involvement in them. Palmer Young J. Edgar: Hoover, The Red at the end of the Wilson administration. basked in Hoover’s success and con- Scare, and the Assault on Civil Stone was also concerned about the templated a presidential run in 1920. At Liberties bureau’s incompetence under Warren first, the public supported the arrests, G. Harding, who had followed Wilson but then, after Communist revolutions By Kenneth D. Ackerman and preceded Coolidge as President. in Germany and Hungary collapsed, Carroll & Graf Publishers, New York, NY, 2007. To Stone, Hoover, a 29-year-old Justice and steel, coal, and police strikes in 466 pages, $28.95. Department attorney with a reputation the United States failed, the Red Scare for diligence, was just the person to put cooled and Palmer became an object of the bureau on an honest and constitu- ridicule. Most of the people who had Re v i e w e d b y He n r y S. Co h n tional footing. been detained were released and Palm- Stone, however, was unaware that er disappeared from the political scene. In 1959, “The FBI Story,” a movie Hoover had been the mastermind of Hoover, of course, never gave up the that starred Jimmy Stewart, portrayed the “Red Raids.” Attorney General battle against the “enemy within.” the Federal Bureau of Investigation at Palmer had foolishly entrusted the task In addition to providing generous its professional best. Just a few years to Hoover, and this is a major focus evidence of Hoover’s involvement in later, however, as investigative report- of Ackerman’s book. Hoover hid his the Palmer raids, Ackerman provides ers began to reveal the bureau’s mul- direct involvement in the raids, and, excellent portraits of the lawyers who tiple problems, the FBI lost its Jimmy over the years, he minimized his role alerted the public to the harm to civil Stewart cachet. As a result, J. Edgar in them and maximized his surprise at rights that Palmer’s actions caused. Hoover (1895–1972), the FBI’s director their virulence. Ackerman considers Clarence Darrow was one such lawyer, under seven Presidents, was no longer Stone’s choice of Hoover to have been even though he failed to persuade the viewed as a hero; he became, as Ken- a “dreadful mistake.” Supreme Court to overturn the convic- neth D. Ackerman writes, “perhaps one Ackerman clearly succeeds in estab- tion of his client Benjamin Gitlow for of the most hated men in American his- lishing his claim. In 1919, Palmer was criminal anarchy. And Felix Frankfurt- tory.” Ackerman’s Young J. Edgar will almost assassinated by an anarchist, er, then a professor at Harvard Law not restore the director’s former repu- who was never identified but was sus- School, risked his career by bringing tation. pected of being a Russian Bolshevik. habeas corpus actions on behalf of the In 1924, Harlan Fiske Stone, attorney Capitalizing on post-World War I un- radicals and made a lasting negative general under Calvin Coolidge, asked rest, Palmer developed a plan to seize impression on Hoover.

42 | The Federal Lawyer | July 2007 Young J. Edgar also presents in full Justice Department in 1917.” Ackerman Democratic Branch. According to detail an unsung hero of the opposi- thus cites no evidence that Hoover’s Rosen, the idea that unelected judges tion, Louis F. Post, a newspaper edi- mother was African-American, but uses protect minorities is not just a romantic tor who had risen to prominence as the “legend” that it is “possible” that myth; it is undesirable. Rosen disagrees campaign manager for reformer Hen- she was to take Hoover to task for his with both the conservative view that ry George in his 1886 candidacy for harassment of civil rights leaders. One courts are packed with activist judges mayor of New York City. Post’s liberal would think that there is enough well- rendering unpopular decisions and the record impressed President Woodrow established negative material about liberal view that courts should inter- Wilson, who installed the editor as an Hoover to allow Ackerman not to cite vene to curb that timeless enemy—the assistant secretary in the Department an unsubstantiated rumor. tyranny of the majority. But Rosen’s po- of Labor in 1913. Post reluctantly ap- Young J. Edgar, despite its flaws, sition is anything but a middle ground proved Attorney General Palmer’s ac- does point out the dangers associated or a compromise between these two tions against Emma Goldman and with hiring zealots to protect the coun- dominant schools of thought. Instead, initially did not formally object to the try from supposed terrorists. Perhaps Rosen takes a position that is, in many raids that Hoover organized. Assuming this example of the harm caused by ways, more radical than these. He be- the position of acting secretary of labor abuse of authority and violation of the lieves that our courts historically have in 1920, however, Post rescinded 80 public trust can be a lesson for today. assumed—and must continue to as- percent of the outstanding deportation TFL sume—a subsidiary role in interpreting orders that had resulted from the raids. the Constitution. Palmer and Hoover struck back, induc- Henry S. Cohn is a judge of the Con- Rosen’s first principle is that defer- ing a congressional ally to introduce necticut Superior Court. ence and democratic values go hand an impeachment proceeding against in hand. In Rosen’s view, deferring to Post. Post avoided impeachment by The Most Democratic Branch: Congress is usually the best way to testifying at a committee hearing that How the Courts Serve America effectuate the will of the people. If, there was a lack of factual basis for the however, Congress is “failing to rep- deportations that Hoover sought. Post By Jeffrey Rosen resent the wishes of the majority” on left the Labor Department and resumed Oxford University Press, New York, NY, 2006. a particular issue, then the Court may his writing career, later supporting the 238 pages, $25.00. effectuate the will of the people and Progressive Party’s nominee, Robert not defer to Congress, and that is why LaFollette, for President in 1924. Rosen, in the title of this book, calls the Although Ackerman proves his Re v i e w e d b y Ju s t i n F. Ma rc e a u judiciary “the most democratic branch.” anti-Hoover thesis, Young J. Edgar is If Congress has not spoken on an issue not as nuanced or polished as the au- Jeffrey Rosen believes that Supreme and the public is divided, then, Ros- thor’s last book, Boss Tweed, which I Court decisions tend to mirror public en believes, the courts should restrain reviewed in the August 2005 issue of opinion, and that this is a good thing. themselves and “leave the ultimate The Federal Lawyer. Young J. Edgar The Supreme Court’s recent decision resolution to political actors,” because consists of short chapters and is pep- in Massachusetts v. EPA, for example, “courts are most likely to act foolishly pered with numerous asides in foot- found that global warming may require when they wrongly believe that they notes. Ackerman presents Hoover as the federal government to take pro- alone can save the nation from a dis- the epitome of evil and his opponents tective action. At the same time, polls pute that the political branches are un- as incapable of error, thereby giving indicate that more than 85 percent of able to resolve.” Rosen sums up his the book the flavor of a lawyer’s brief. Americans view global warming as a argument in the book’s epilogue, enti- Ackerman is also not always fair in his likely problem, and more than 60 per- tled “Constitutional Futurology,” in this use of evidence against Hoover. In the cent view it as an immediate and seri- way: “No matter what methodology footnote on page 42, for example, he ous problem. Rosen sees this as no co- they choose, judges can best promote notes that “[t]here is a theory that Ed- incidence, and, in The Most Democratic democratic values by consistently and gar was born to an African-American Branch, he argues that the Court’s bas- straightforwardly practicing judicial mother and adopted by the Hoovers, ing its decisions on public consensus deference—that is, by avoiding judicial based on discrepancies in certain birth helps to fortify its legitimacy. Do Su- unilateralism.” and census records. But this has not preme Court decisions in fact mirror In order to avoid reaching this con- been substantiated, and the genealo- public opinion, and should they? troversial crescendo of deference too gist who investigated the claim be- Just asking this question might have abruptly, Rosen first analyzes the his- lieves it to be false.” Yet, on page 408, resulted in a failing grade in my high tory of backlashes and acceptance that Ackerman writes, “Edgar’s legend—a school government class, a class that followed certain key decisions made plausibly gay man who harassed gays, provided a healthy dose of the no- by the Supreme Court. Specifically, a possible descendant of an African tion the United States has three sepa- Rosen divides his discussion into five American who harassed civil rights rate and equal branches of govern- parts: (1) the history of judicial defer- leaders ... is a far cry from the young ment. But this is exactly the edifice eager beaver who came to work at the that Rosen challenges in The Most Reviews continued on page 44

July 2007 | The Federal Lawyer | 43 Reviews continued from page 43 ence, (2) cases involving race, (3) cases moments during Rosen’s discussion of on these politically charged issues, about the right to life and the right to certain difficult cases. For example, be- it is certainly a radical position to as- death, (4) cases about politics, and (5) cause of the high level of public sup- sert that the Supreme Court performs cases about civil liberties. As to each of port for segregation during the 1890s, its role best when it defers to Congress the five, Rosen boldly concludes that Rosen describes Plessy v. Ferguson’s (or to the polls) in deciding such con- “courts can best serve the country in 1896 upholding of “separate but equal” troversial cases. For many, just the fact the future as they have served it in the as “an uncontroversial demonstration that some state court judges are elected past: by reflecting and enforcing the of judicial restraint.” Rosen criticizes is worrisome enough. Ratifying pub- constitutional views of the American Plessy as a decision lacking ground- lic opinion as a school of interpretive people.” ing under even the most conservative thought takes this misguided expan- Rosen’s history of judicial deference originalist school of interpretation, but, sion of democracy one step further. provides a fresh and engaging look at given that, according to Rosen, judicial The question of the death penalty some of the early Court’s most famous restraint and deference to the political provides both anecdotal support for decisions. Identifying Chief Justice John will—and not allegiance to any particu- the descriptive part of Rosen’s thesis Marshall as the paradigm of a democra- lar school of interpretive thought—is a (that courts mirror public opinion) and cy-oriented jurist, Rosen discusses the sine qua non of a responsible judiciary, a basis for moral outrage at the norma- political realities facing Marshall at the Rosen approves of the decision, even tive part of it (that courts should mir- time he wrote Marbury v. Madison and if he dislikes the result. That should ror public opinion). Rosen notes that, McCulloch v. Maryland. This discus- raise some eyebrows. Similarly, Rosen in 1972, about 50 percent of the public sion is essential to Rosen’s argument, is forced to concede that Justice Rob- supported the death penalty, and he because no theory of constitutional in- ert Jackson’s dissent in Brown v. Board stresses that, following the Supreme terpretation can be taken seriously if of Education makes “plausible argu- Court decision that year outlawing cap- it cannot adequately justify these two ments for judicial restraint.” In the end, ital punishment, public support for the decisions, as these decisions have be- though, Rosen acknowledges that, “[a] death penalty rocketed to 65 percent. In come givens in our constitutional sys- lthough the point is arguable, Brown Rosen’s view, the Court had no choice tem. Notably, however, Rosen rejects does not appear to be an example of but to correct itself, as it did in 1976, by the common reading of Marbury that judicial unilateralism.” In light of the “[b]owing to the extreme negative reac- treats the courts as the ultimate inter- fact that Brown, like Marbury v. Madi- tion” and allowing the death penalty to preters of the Constitution. son and McCulloch v. Maryland, has be imposed again. This example helps Rosen’s theory also passes a second become a given in our legal system, it Rosen to make his case that courts’ litmus test for interpretive theories: it would probably have been difficult for deference to the polls serves to pre- discredits the Lochner era decisions, Rosen to conclude that the case was serve the judiciary’s legitimacy. Indeed, which initially stood as an obstacle to wrongly decided. something of the same backlash that Franklin D. Roosevelt’s New Deal re- Other examples abound. Rosen ap- occurred in the United States after the forms. In fact, Rosen’s use of the Loch- plauds Justice Holmes’ infamous hold- 1972 decision seems to be emerging in ner era decisions as an example of ing that forced sterilization laws were European countries that have abruptly the vulnerability of an overly indepen- constitutional, stating that the decision (if not democratically) outlawed the dent judiciary is compelling. He points was consistent with the “public enthu- death penalty in order to qualify for out that the Supreme Court’s sudden siasm for eugenics” at the time. Rosen membership in the European Union; change of heart as to the Lochner era criticizes the Court’s unwillingness, the New York Times has reported that cases—popularly known as the “switch in the first case involving partial-birth some Eastern European states are ex- in time to save nine”—may have saved abortion, to accept without question periencing all-time highs in support for the Court. Had the Court failed to ca- congressional findings that “partial-birth the death penalty. pitulate to the will of Congress and the abortions are never necessary to pre- But America’s experience with the President—as Rosen agues throughout serve a woman’s health,” calling it ju- death penalty also reveals the under- the book that it must—it is likely that dicial unilateralism. And he praises the belly of Rosen’s thesis. Leaving deci- Congress would have approved sub- holding in Bowers v. Hardwick—that sions of life and death to the compli- stantial revisions to the Court, the least sodomy laws were constitutional—for cated process of majoritarian politics is of which would have been Roosevelt’s being “consistent with public opinion,” morally irresponsible. The maneuvering plan to add additional justices who because “51 percent of the respondents and political horse-trading that define were favorable to his legislation. in a Gallup poll approved of” the deci- congressional politics are ill suited to Rosen believes that the Supreme sion when it came down. Finally, Ros- the task of protecting disenfranchised Court should defer to Congress even if en heralds the Court’s refusal to strike people from the will of the majority. Congress enacts legislation that is not down President Franklin D. Roosevelt’s Rosen believes that the will of the ma- authorized by the Commerce Clause internment of Japanese-Americans dur- jority must (and ultimately will) govern, or any other enumerated power. This ing World War II as “an effort to avoid but, in fact, I am not convinced that a position leads to some uncomfortable unilateralism.” Whatever one’s views majority of Americans would support

44 | The Federal Lawyer | July 2007 a proposal to have the Eighth Amend- Indefensible is not fiction. a court officer to hand him the al- ment (or any other constitutional provi- In Indefensible, David Feige periodi- leged murder weapon. “I assume sion) interpreted by a democratic vote. cally muses that, when he was a public this is unloaded?” said Curci, It is possible, therefore, that Rosen’s defender, he could have been doing jacking the slide commando-style thesis of majoritarian interpretation is other things with his life. Although he and pointing the weapon in the itself countermajoritarian and, there- is now a law professor, his 15 years as direction of the defendant while fore, in a sense, self-refuting. a public defender clearly represented half the courtroom ducked. “Uh- Rosen’s thesis is intriguing, but, at a calling, and, at the risk of sounding hhh, I sure hope so, Judge,” said the end of the day, I remain hopeful trite, one can say that he made a differ- a petrified ADA. that my high school civics textbook ence and that he changed lives. Feige was right—the tyranny of the major- is not just smart and well educated; he And Feige appreciates the flair of ity must be checked by the courts. is compassionate and perceptive. As a some of his colleagues, as we see in The Most Democratic Branch calls to public defender he used these qualities the following descriptions: mind Winston Churchill’s famous re- to help his clients, and he now uses mark, “[d]emocracy is the worst form them to give us a colorful and searing In one corner, sitting across from of Government except all those other account of the reality of criminal de- a well-coiffed white guy, is Mur- forms that have been tried from time fense practice. ray Richman, the self-proclaimed to time.” One might add that an inde- Feige does not merely describe the king of the Bronx bar. Murray’s pendent judiciary is the worst way to people he encountered—he names stature in the legal community is safeguard politically unpopular rights, names. He admires some judges, for hard to overstate—he represents except for all those other ways that example, William Mogulescu, “one of rappers (it was his client that have been tried. Rosen is correct that my favorite judges. As difficult as he went to prison in the Puff Dad- history shows that backlashes are likely can be, he is usually thoughtful and al- dy trial) and politicians, hustlers, when the Court pursues constitutional most always fair. But he is also a big and fraudsters, charging them courses that are inconsistent with pub- bully. Moge does what he does be- tens and sometimes hundreds of lic opinion. Adjudication by popular cause he believes that you have to be thousands of dollars for the privi- vote, however, is not the answer. TFL a bully in the criminal justice system lege. He is a self-made guy who to get anything done. To his credit, it’s glad-hands his way through the Justin Marceau is an assistant federal also true that what he wants done is courthouse as if he’s the mayor. public defender with the District of Ari- usually the right thing.” In a sense, he is. zona. But Feige has utter disdain for other people: Already past the age of usual A completely Looney Tunes ju- retirement, Not-a-worry Murray Indefensible: One Lawyer’s Jour- rist, with an Elmer Fudd face, a looks a little like a puffin, re- ney Into the Inferno of American Casper the Ghost complexion, splendent in brash tie and match- Justice and a wisp of hair that seemed ing pocket square. His expensive drawn out of his scalp, Curci double-breasted suit covers a By David Feige was known for his utter unpre- thick midsection, and his hair is Little, Brown and Co., New York, NY, 2006. dictability and his wonderfully combed in a way that suggests a 276 pages, $24.95. inventive vocabulary. Court offi- great deal of attention has been cers and stenographers assigned lavished on every strand. He has to his part kept a running glossa- a wide, round face and twin- Re v i e w e d b y El i z a b e t h Ke l l e y ry of his hilarious malapropisms kly eyes, and he greets people and incomprehensible phrases, with a “howyadoin?” honed by Emile Zola would have written In- such as “dangerosity,” “the psy- years of ingratiating practice. A defensible if he could have created a chic transmogrification of the charmer, Murray brings a win- first-person account of the Bronx pub- Gestalt,” or “assidulosity”—as in ning theatricality to every sen- lic defender’s office during the past 15 “I will sign your subpoenas with tence he utters. And he is utterly years. David Feige’s Indefensible has great assidulosity, Counselor!” unselfconscious—as if he’s com- all the realism that alerted 19th-century pletely forgotten that he’d long readers, including Clarence Darrow, to An old-school jurist, the kind that ago temporarily cast himself in a the injustices, poverty, and social in- wound up on the bench by slip- part written for someone larger, equality of that era. Like many of the ping the right person thirty-eight leaner, and more debonair. great 19th-century novels, Indefensible thousand dollars in an envelope, is a rich collection of portraits—some Curci read Soldier of Fortune with Feige knows above all else that he scathing, others sympathetic—of the great assidulosity and loved noth- and other criminal defense lawyers cast of characters (la comédie hu- ing more than to play with guns. are often hanging by a thin emotional maine) who work in the Bronx Crimi- Once, during an attempted mur- nal Courthouse. But make no mistake: der case, he famously instructed Reviews continued on page 46

July 2007 | The Federal Lawyer | 45 Reviews continued from page 45 thread: of us in the criminal defense bar—is and just use “marriage,” regardless of the daily parade of misery we witness. the sex of the spouses? Andrew Kop- It’s those times that we do ev- It is a world where clients often plead pelman, a professor of law at North- erything right on behalf of a de- guilty just to get out of the courthouse western University, does not address serving client and still wind up and where docket control trumps jus- this question in his book, Same Sex, getting crushed that can drive tice. Clients—whether they are guilty Different States. Instead, he takes a defense lawyers completely over or not—are frequently mentally ill or practical approach to the issue of same- the edge. That’s certainly what mentally retarded. Feige tells a particu- sex marriage. He offers a legal doctrine happened to a lawyer I once larly touching story about Cassandra, for courts to use in dealing with same- knew. one of his longtime clients, whom he sex marriages in our mobile society. turns in to the police—with her con- In this short but comprehensively Standing in front of a gallery of sent—for a jail stay because she needs researched book, Koppelman takes his waiting clients and enervated food, shelter, and medication. readers through the current debate and witnesses, she is rumored to At the heart of it all, we sense that shifting cultural landscape on the issue have done what I’ve wanted to Feige actually likes and enjoys many of same-sex marriage. He asserts that do many, many times after a hor- of his clients, and in turn, we like and the federal Defense of Marriage Act rible, unconscionable ruling: she enjoy them as well. For example, we (DOMA) “is likely unconstitutional” in looked up at the judge and re- can’t help but root for the male client light of the U.S. Supreme Court’s deci- portedly said, plain and simple, to whom Feige lends a suit from the sions in Romer v. Evans, 517 U.S. 620 “Fuck you, you nasty bitch.” It public defender’s wardrobe closet for (1996), and Lawrence v. Texas, 539 U.S. wasn’t under her breath, and it an interview at Victoria’s Secret. 558 (2003). Enacted in 1996, DOMA al- wasn’t the whisper that a lawyer In Indefensible, Feige offers no so- lows all states, territories, possessions, can often get away with. It was lutions as to how to make the system and Indian tribes to refuse to recog- loud and proud and impossible function more efficiently or fairly. In- nize an act of any other jurisdiction to ignore. ... deed, you sense that he believes that that designates a relationship between the problems are too overwhelming— individuals of the same sex as a mar- I don’t know whether the judge that the system is too far gone. Perhaps, riage. DOMA also declares that the tried to hold her in contempt however, Feige has offered his own so- terms “marriage” and “spouse,” as used right then or whether the court- lution: zealously representing hundreds in federal statutes and regulations, ex- room was silent for a second as, of clients and now shining a light on a clude homosexual marriage. Thus, for perhaps realizing what she’d just courthouse that is typical of so many example, when a same-sex couple gets done, or perhaps having second across the country. TFL legally married in Massachusetts (the thoughts about having done it, only state that sanctions same-sex mar- she turned away from the judge, Elizabeth Kelley is a criminal defense riage) the spouses may not file a joint away from her client, and away attorney in Ohio and has a special federal tax return. from the defense table and commitment to representing individu- In Romer v. Evans, the Supreme sprinted toward the exit. What I als suffering from mental illness and Court struck down a provision of Colo- did hear, though, is that she ran. mental retardation. She frequently pro- rado’s constitution that repealed local And when the shocked court of- vides legal commentary for Court TV, ordinances that provided civil rights ficers grabbed her, trying to fig- MSNBC, and CNN. She can be contact- protections for gay persons and that ure out what to do, she struggled, ed at [email protected]. prohibited all governmental action de- and that—far more than disrupt- signed to protect homosexuals from ing the court or even calling the Same Sex, Different States: When discrimination. The Court held that, judge a bitch—was (at least in the Same-Sex Marriages Cross State under the Equal Protection Clause, leg- bizarre world of the Bronx) un- Lines islation adverse to homosexuals was to forgivable. She was arrested and be scrutinized under the “rational basis” charged with criminal contempt By Andrew Koppelman test, but that Colorado’s classification and resisting arrest. Yale University Press, New Haven, CT, 2006. failed to pass even this deferential stan- 204 pages, $35.00. dard of review. The Colorado provision Burnout is a theme that permeates was held unconstitutional because it Indefensible. Feige describes the day in imposed a special disability on homo- the office when he could not take any Re v i e w e d b y Al i s o n M. Sm i t h sexuals that was not visited on any oth- more. He went into a small coat closet, er class of people and because the ar- closed the door, sunk against the wall, Civil unions, domestic partnerships, guments that the state presented could and wept. But then he got up and re- gay marriage—these terms have all not justify the classification. In Law- turned to fight more battles. What been used repeatedly over the past few rence v. Texas, the Court struck down a gnaws at Feige—and, indeed, at many years. Should we dispense with them state statute criminalizing sodomy and

46 | The Federal Lawyer | July 2007 held that the Fourteenth Amendment’s scenery. Unfortunately, Dexter dies in due process privacy guarantee extends Utah. Should Utah recognize the union Alison M. Smith is a legislative attorney to the protection of consensual sex be- validly entered into in Massachusetts, with the Congressional Research Ser- tween adult homosexuals. Koppelman at least to the extent of finding Daniel vice, Library of Congress. She received concludes that Romer and Lawrence automatically entitled to custody of the her J.D. from the University of Dayton “together establish a fairly clear rule: children? Which state has the most sig- School of Law. If a law singles out gays for unprec- nificant interests in the union? edentedly harsh treatment, the court Setting forth four types of dual-state will presume that what is going on is a gay marriages—migratory, evasive, vis- bare desire to harm, rather than mere itor, and extraterritorial—Koppelman moral disapproval.” offers a workable compromise de- Same Sex, Different States also in- signed to balance the interests of states cludes a chapter analyzing the signifi- and those of gay couples. In terms of cance of the “mini-DOMAs” that 40 the above example, Dexter and Dan- states have enacted. A mini-DOMA, as iel’s marriage would be categorized as Koppelman explains, declares that the a migratory marriage, in which, Kop- state enacting the legislation has “pub- pelman suggests, “if an incident can be lic policies against recognizing same- characterized without reference to the sex marriages in other states.” The pri- marriage—if it can be called a ‘paren- mary value of the book, however, is tal right’ or a ‘right to enforce a judg- its clear presentation of the conflict of ment’—then it should be recognized laws or choice of law doctrine as it ap- as such.” Daniel, therefore, should get plies to a state’s recognition of transac- custody of the twins. tions performed elsewhere. Generally, Evasive marriages are marriages out- courts address choice of law problems side a couple’s home state where the by using an “interest analysis” that at- couple has traveled from their home tempts to discern which state has the state for the express purpose of evad- greater interest in the transaction. The ing that state’s refusal to recognize their Restatement (Second) of Conflict of union; such a marriage could be invali- Laws, § 283(2), states that “[a] marriage dated or not recognized if it violates which satisfies the requirements of the the strong public policy of the couple’s state where the marriage was contract- home state. ed will everywhere be recognized as The third category—visitor mar- valid unless it violates the strong pub- riages—are those in which a couple is lic policy of another state which had temporarily present in a state that fails the most significant relationship to the to recognize the marriage. Koppelman spouses and the marriage at the time of believes that, in this instance, the mar- the marriage.” riage should be recognized because to Koppelman suggests that the cur- do otherwise would limit the parties’ rent debate regarding the recognition constitutional right to travel. of same-sex marriages may find anal- The final category—extraterritorial ogies in cases that deal with the rec- marriages—are those in which the par- ognition of out-of-state racially mixed ties have never lived together within a marriages. Koppelman’s discussion of state that prohibits same-sex marriage, the issue is well written and insightful, but their union is relevant to some liti- and, even if the miscegenation cases gation there. For example, assume that do not provide all the answers to ques- Dexter and Daniel had remained in tions that arise with respect to the rec- Massachusetts but that Dexter owned ognition of out-of-state same-sex mar- property in Utah. Upon Dexter’s death riages, they do provide a road map intestate, Daniel should inherit the for arriving at an answer. Consider the property, because, according to Kop- following scenario. Dexter and Daniel pelman, “there is clear authority in fa- are longtime residents of Massachusetts vor of recognition” of out-of-state mar- who decide to marry. After the wed- riages. ding, the couple resides in Massachu- Same Sex, Different States is an setts for another decade or so. During excellent source for all who may be this time, they adopt twins (Bert and interested in the debate over the rec- Ernie). Dexter and Daniel ultimately de- ognition of same-sex marriages in our cide to move to Utah for the beautiful mobile society. TFL

July 2007 | The Federal Lawyer | 47