"A New World of Law":JFK's Words in Context

The increasingly heated debate over foreign policy between John McCain and Barack Obama has refocused attention on a few words from JFK's inspiring inaugural address of January 20, 1961: "Let us never negotiate out of fear. But let us never fear to negotiate" [for the complete online text].

It is unfortunate that few commentators go on to JFK's fuller elaboration of the point.

Let both sides explore what problems unite us instead of belaboring those problems which divide us.

Let both sides, for the first time, formulate serious and precise proposals for the inspection and control of arms—and bring the absolute power to destroy other nations under the absolute control of all nations.

Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths, and encourage the arts and commerce.

Let both sides unite to heed in all corners of the earth the command of Isaiah—to "undo the heavy burdens ... and to let the oppressed go free."

And if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor, not a new balance of power, but a new world of law, where the strong are just and the weak secure and the peace preserved.

There is much to consider here for our very different foreign policy challenges, but none more important, (or less quoted to my knowledge) the the amazing metaphor of "a beachhead of cooperation," invoking a military invasion, but here one pushing back not an army but a "jungle of suspicion" toward a world primarily defined by the rule of "law."

Michael Rossman, FSM Hero dies at 68

Photo credit: Paul Fusco, 1964

One of my personal heroes, Berkeley Free Speech Movement leader and lifetime community activist Michael Rossman died in Berkeley last week at the age of 68 from Leukemia (read the NYTimes obituary by Margalit Fox). The handsome and charismatic Berkeley graduate student looked a bit like Jack Kerouac. While never reaching quite the height of rhetorical power that his colleague Mario Savio achieved, Rossman was a stable "everyman" who spent much of the last three decades teaching science to Berkeley elementary school students.

Like other '60s activists, Rossman had family roots in the "old left." His father, who moved the family to Northern California in the 1950s, was the editor of the Labor Herald, the newspaper of California's Congress of Industrial Organizations.

Crime and Contracts Up, Debt, Property, Corporations, Public Law and Family Law Down, Torts Even

Thats the take away from a nice piece of empirical work conducted by Kritzer, Brace, Hall, and Boyea, "The Business of State Supreme Courts, Revisited," Journal of Empirical Legal Studies, Vol. 4, Issue 2, 427-439 (July 2007). The research updated work led by JSP's own Bob Kagan, specifically, "The Evolution of State Supreme Courts, 1870-1970," (with Bliss Cartwright, Lawrence M. Friedman, and Stanton Wheeler." Stanford Law Review, Vol. 30, p.121. Kagan and his colleagues, showed that the century had seen tremendous change, with a steep decline in business related litigation, and real property disputes, and an increase in torts, criminal law, public law, family law, and estates.

The recent research by Herbert Kritzer and his colleagues, documents that this long term decline in business litigation has reversed for at least one kind of dispute, non-debt contracts. It also shows that the growth areas of the 1970s have all reversed save for one, criminal law.

As noted by Guido Calabresi in a recent lecture, tort law thrives in a society becoming more social democratic, contracts in a society becoming more liberal (in the deregulatory sense) and criminal law in a society becoming more collectivist. Our new order, one where both contracts and crimes rise in their prominence (and state supreme court dockets are only one measure of that), requires further theorization (although my Governing through Crime, offers a theory of the crime part).

Less Torts, More Contracts and Crimes?

I'm not referring to actual events, but to the modes of legal governance we bring to the always complex stew of relationships and conflicts in American society. At a provocative lecture this week at Berkeley's Law and Economics workshop, legendary legal theorist and 2nd Circuit Judge, Guido Calabresi outlined an intriguing theory of how modes of legal governance (my term, not his) vary with the relative political economic organization of society. Calabresi, citing Leon Lipson, suggested a historical explanation for the rise of tort law in the mid-20th century US. The more social-democratic the policies of a society, the more tort law. In contrast, as a society turns more individualistic it embraces more contract law. As a society turns more collectivist, it embraces more criminal law. Tort law, and its adjunct like workers compensation, constitute a middle ground where individual parties receive compensation based on collective values.

Judge Calabresi went on to declare tort law alive and well. But in retrospect, we can see that tort law and other forms of loss spreading and compensation like insurance, has come increasingly under attack by legislation and in the courts over the last several decades. When Calabresi's famous book, The Cost of Accidents, was published in 1970, social democratic policies in the US were at their high point. Since then we have experienced a considerable turn back to market individualism (often identified by the term "neo-liberalism"). Consistent with the Calabresi/Lipson thesis, we have seen a resurgence of contract law as a form of social ordering (think how often one clicks such an agreement), which was being declared almost "dead" in the 1970s.

Yet if our society is becoming more individualistic, how do we explain that criminal law (that agent of collectivism) is also on the rise? (For the claim that it is, see my book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007)).