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20 of 22 people found the following review helpful
4.0 out of 5 stars Good positive case, overbroad characterization of opposition, October 6, 2004
This review is from: Un-Making Law: The Conservative Campaign to Roll Back the Common Law (Hardcover)
This is an excellent book on its positive side. I'm deducting a star because Jay Feinman paints his 'opposition' with such a broad brush. (In this respect he's a breath of fresh air next to, say, Michael Moore or Al Franken. Nevertheless that leaves considerable room for improvement.)

Feinman, also the author of the excellent _Law 101_ and a very clear expositor of legal issues, sets out here to defend a century's worth of development in American common law against those who would prefer to turn the legal clock back to 1900 (or before). Among his stated targets: classical liberals, libertarians, conservatives, neoconservatives, and pretty much everybody other than 'progressives'.

As a libertarian myself, I might not be expected to find this sort of thing congenial. But on a few subjects my libertarianism dresses to the left, and at any rate -- more to come on this point -- Feinman's arguments aren't quite as dependent on political ideology as he thinks they are.

The meat of his case is set out in the book's middle six chapters -- two each on tort law, contract law, and property law. In each of these areas, he contends, developments of the last century or so have rendered the common law more protective of the interests of the less wealthy and powerful, and it's important to preserve those advances.

I'm not an easy reader to please on this subject, and Feinman does about as well as it's possible to do: I agree with about two-thirds of what he writes, respect his arguments in most of the rest, and only once or twice feel like hurling the book against the wall. That may not sound like much, but it compares favorably with a lot of other legal commentators.

On tort law, I agree with so much of what he writes that the differences aren't worth discussing. He's right; the common law of torts is working just fine (i.e., as well as law ever does), and it would be mind-bendingly stupid to 'reform' it. (This subject is pretty ideology-independent. For example, my own favored reading of the Second Amendment is somewhere to the right of the NRA's, but I still think making it impossible to sue gun manufacturers is just plain dumb.)

In contract law, the heart of his claim is that twentieth-century liberalizations in interpretation and enforceability have provided protections to consumers who might otherwise (and previously did) find themselves stuck with vastly unfavorable contract terms that in many cases they might not even have read before 'agreeing' to them. Recent developments, he says, have undone those protections, to the detriment of consumers.

Here, too, I agree (he's especially good on the hazards posed by arbitration clauses) but with one misgiving. Feinman likes to pick on Judge Alex Kozinski and quotes him here as a proponent of the idea that 'loose' contract interpretation by the courts could make it hard for parties to a contract to tell with precision just what they were agreeing to.

Well, I don't think Judge Kozinski walks on water or anything, but he's much more sensible than Feinman gives him credit for. And in this case he's raising an entirely valid point -- and one that wouldn't tell one bit against Feinman's own case, if he handled it right. At the very least, I'd have liked to see an acknowledgement of the legitimacy of Kozinski's concern and an argument that modern contract law can address it (which I think it can, and Feinman seems to think so too). At any rate, there seems to be nothing wrong with admitting that there are sound arguments on _both_ sides of the issue, and that this is one of the things that make contract law so difficult.

With property law, we enter more dangerous waters. Feinman starts, wisely, with Wesley Hohfeld's seminal analysis of legal rights and duties, and contends mightily against an 'absolutist' view of property rights. Fine so far, and he racks up lots of points both in his positive discussion and in his counterarguments (e.g. on the subject of John Locke, whose theory of property rights contains an important proviso not generally discussed in the libertarian literature).

But Feinman seems unaware that many of his 'opponents' -- Richard Epstein, for example (whose view of 'takings' Feinman rightly notes is, to put it mildly, not what the framers meant) -- _also_ reject an 'absolutist' understanding of property rights. (Epstein, much to the embarrassment of some of his libertarian fellow travellers, is a utilitarian. Feinman uses 'absolute' to mean several different things, and Epstein would agree that property rights are not 'absolute' according to most of those meanings.) And he seems to find the (crucial) economic role of property rights not worth discussing -- a bit ironically, since he is so keenly aware of the role of economic incentives in getting tort claims litigated.

(Nor is it obvious why Epstein's departure from the framers' understanding of 'takings' is such a disaster, since Feinman himself allows closely analogous departures elsewhere. Our post-_Katz_ understanding of 'searches' is not, for example, limited to strictly physical property, but I don't see Feinman objecting to our extended Fourth Amendment protection.)

I could pick nits about this subject all day, so I'll just say that Feinman's positive arguments are good but would have benefitted from a more nuanced exposition of the views of his opponents. In the absence of such an exposition, I'm not at all sure that his shots are hitting their intended targets.

I think this is true in general of the entire book. Feinman's 'frame story' is that a bunch of conservatives are conspiring to repeal the twentieth century, and there's surely something to this story (whether good or bad). But in the process of telling it, he lumps together people who might be surprised to be found in one another's company.

(The metaphor 'repeal the twentieth century' isn't very apt here. You don't 'repeal' common law; you 'repeal' statutes. And it's true that lots of libertarians and conservatives -- including me -- would gladly repeal a large number of twentieth-century _statutes_. But Feinman's book isn't about statutory law; it's about the common law, with regard to which I don't believe there's any such consensus.)

A more unified approach to political theory would have helped. Feinman buries some of his points about the structure of federalism, and the relative roles of federal and state government, in the later portion of the book, but they'd have been handy in his discussion of torts too (where they're lurking implicitly but not stated clearly).

Also helpful would have been a clear statement that the market and the law go together in human society roughly as words and grammar go together in human language. Feinman doesn't want 'conservatives' to turn the clock back a century, but his own occasional bursts of anti-'market' rhetoric sound as though _they_ hail from around 1900.

On the whole, though, the strength of Feinman's arguments and examples carries the day. The heart of the book _is_ his positive case, and he makes it very well.

Highly recommended, then, despite my deduction of one star. Half the job in public discourse is to get the arguments and counterarguments clearly articulated, and you'll find Feinman helpful in that regard even if you disagree with everything he has to say. But you shouldn't; he's right a lot, and -- despite his anti-'conservative' presentation -- it's possible to agree with pretty much anything he says without changing your political alliances.
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Showing 1-1 of 1 posts in this discussion
Initial post: Oct 14, 2009 4:40:02 PM PDT
W. McGonigle says:
John, I think I want to read _your_ book on the subject, not this one. Great review.
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