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Vol. 73, No. 7, July 2000 |
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Book Reviews
This Month's Featured Selections
 Stewards of Democracy:
Law as a Public Profession
By Paul D. Carrington
(Boulder, CO: Westview Press, 1999).
306 pgs. $22.40.
Reviewed by Kevin L. Keeler
Fans of the Warren court, particularly those who claim Justice
Brennan as one of their judicial heroes, will not like this book.
Yet it would be a mistake to conclude that Paul Carrington, a
professor at Duke University Law School, is necessarily in disagreement
with many of the substantive values that Brennan and his colleagues
imposed on the nation by their decisions.
One of the main themes running through this book is that the
effective and lasting transformation of society can occur only
with the moral support of the people and an approach to law and
legal institutions that respects the "common thoughts of
men." On this basis, Carrington criticizes earlier U.S.
Supreme Court decisions dismantling legislation intended to protect
workers' rights, and more recent decisions such as those
invalidating laws restricting abortion, flag burning, and commercial
advertising. He views such cases as instances of the "national
class" of meritocrats imposing their values on society by
constitutionalizing issues in order to bypass the democratic
process.
As an important example, Carrington
cites the First Amendment cases invalidating limits on campaign
contributions and limiting defamation claims by public persons.
These cases combine to degrade the political process by making
political campaigns cost-prohibitive for many who are interested
in running for legislative or judicial office, and by diminishing
the ability of candidates and elected officials to maintain their
integrity in the face of disinformative, high-cost, high-tech
campaigns. This very result is then used by the national elite
to justify more court oversight in the political arena.
To illustrate a more democratic approach to law, the first
half of the book is a panegyric of the professional life of Thomas
McIntyre Cooley, a 19th century lawyer, law professor, Michigan
Supreme Court justice, and the founding chair of the Interstate
Commerce Commission. This is followed by shorter encomiums of
Louis Brandeis, Ernst Freund, Learned Hand, and Byron White.
According to Carrington, all these lawyers shared important moral
traits. They were committed to the ideal of popular self-government
and distrusted government by a ruling elite; they subordinated
their personal idiosyncratic morality to values shared by the
public; they were independent and disinterested; they had the
patience to attend to factual details; and they had an eye for
compromise and accommodation.
Unfortunately, law schools do not foster these traits. Instead
of devoting their time to writing secondary source treatises
useful to practicing lawyers, full-time law professors pursue
theoretical issues having little relevance to practical affairs.
Additionally, the cost of a legal education is unnecessarily
high, causing students to expect high incomes to justify their
investment in a law degree. Carrington suggests that these problems
could be remedied by reducing the required years of study and
hiring part-time faculty.
Whether or not one agrees with Carrington's diagnosis
or treatment, I recommend this book to anyone concerned about
the legal profession. It offers by way of example and analysis
the conception of a model legal career dedicated to serving the
public. In this age of cynicism, when many lawyers find themselves
dissatisfied with the practice of law, such a model is welcome.
Kevin L. Keeler, U.W. 1985, is a shareholder
in the Milwaukee office of Beck, Chaet, Molony & Bamberger
S.C.
 Stopping the Train: The Landmark Victory Over Same-Sex Sexual
Harassment in the Workplace
By Edwin B. Martin Jr.
(Mt. Pleasant, S.C.: Corinthian Books, 2000).
173 pgs. $24.95.
Reviewed by Andrea F. Hoeschen
Stopping the Train is a personal account of same-sex
sexual harassment and the indignities of being a plaintiff in
sexual harassment litigation. The author had a well-established
career with Norfolk Southern Railroad when he was transferred
from South Carolina to a terminal in Birmingham, Ala. Once there,
his coworkers, including his immediate supervisor, greeted him
with lewd comments and teasing. Over the next few months, the
teasing escalated to mind games, indecent exposure, and groping.
After becoming nearly incapacitated by stress and panic attacks,
Martin retained an attorney and filed suit under the Federal
Employers' Liability Act (FELA), Title VII of the Civil
Rights Act of 1964, and various state law tort theories.
This book is not a legal text. Martin
writes simply about his personal experience, explaining the legal
technicalities only as necessary to move the story forward. The
account of his litigation will be unsatisfying to attorneys who
are looking for discussion of the development of employment discrimination
law, or the legal strategy involved in a sexual harassment claim.
There is no explanation, for example, of the trial judge's
reasons for dismissing the Title VII claims on Norfolk Southern's
pre-trial motion. There is likewise little discussion of the
significance of Oncale v. Sundowner Offshore Services Inc.,
523 U.S. 75 (1998), in which the U.S. Supreme Court recognized
a cause of action for same-sex sexual harassment, other than
to note that the decision precipitated the ultimate settlement
of Martin's suit. But Martin obviously did not set out to
write a legal treatise. He set out to explain the extreme emotional
toll of being a male sexual harassment victim in a male-dominated
industry, and the indignities that result from pursuing a sexual
harassment claim to trial.
Stopping the Train is an excellent weekend read for
employment discrimination attorneys who may find themselves wondering
why they chose their field, or those who have become detached
from the anxiety that discrimination litigants endure. The book
also is enlightening for potential litigants, both because it
helps dispel a victim's feelings of isolation and self-blame,
and because it presents a very real picture - or warning
- of the potential frustrations and rewards of litigation.
As Martin observes, "There isn't an hour that goes
by on television, it seems, without a court-driven plot. I, like
thousands of other viewers, was duped into believing that what
I saw on television was an accurate depiction of the real thing.
I was wrong."
Andrea Friedenauer Hoeschen, Tulane 1995, practices labor and employment law with Previant, Goldberg, Uelmen, Gratz, Miller &
Brueggeman S.C., Milwaukee.
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