Better living through crime and tort

Boston University Law Review

Volumn 76, Issue 1-2, 1996, Pages 169-191

  Bernstein, Anita ^a  

^a NONE

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EID: 0030528821     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (116)

1. DANY LACOMBE, BLUE POLITICS: PORNOGRAPHY AND THE LAW IN THE AGE OF FEMINISM 5 (1994) ("Feminists replaced sex with sexism as the focus of the pornography debate."). Some other ideological efforts against pornography also fit within my subject, but I have chosen to focus on the feminist attack to keep the example more compact.
2. See generally PETER D. JACOBSON ET AL., THE POLITICAL EVOLUTION OF ANTISMOKING LEGISLATION 34-44 (1992) (connecting legislative reform with increased antismoking sentiment and popular activism); Robert L. Rabin, Institutional and Historical Perspectives on Tobacco Tort Liability, in SMOKING POLICY: LAW, POLITICS, AND CULTURE 111-12 (Robert L. Rabin & Stephen D. Sugarman eds., 1993) (attributing the first wave of tobacco litigation to a series of articles in the Reader's Digest linking smoking to lung cancer); Cassandra Tate, In the 1800s, Antismoking Was a Burning Issue, SMITHSONIAN, May 1989, at 107, 107 (describing the anti-smoking movement early this century, which culminated when ten states prohibited the sale, manufacture, or possession of cigarettes).
3. See generally PETER D. JACOBSON ET AL., THE POLITICAL EVOLUTION OF ANTISMOKING LEGISLATION 34-44 (1992) (connecting legislative reform with increased antismoking sentiment and popular activism); Robert L. Rabin, Institutional and Historical Perspectives on Tobacco Tort Liability, in SMOKING POLICY: LAW, POLITICS, AND CULTURE 111-12 (Robert L. Rabin & Stephen D. Sugarman eds., 1993) (attributing the first wave of tobacco litigation to a series of articles in the Reader's Digest linking smoking to lung cancer); Cassandra Tate, In the 1800s, Antismoking Was a Burning Issue, SMITHSONIAN, May 1989, at 107, 107 (describing the anti-smoking movement early this century, which culminated when ten states prohibited the sale, manufacture, or possession of cigarettes).
4. See generally PETER D. JACOBSON ET AL., THE POLITICAL EVOLUTION OF ANTISMOKING LEGISLATION 34-44 (1992) (connecting legislative reform with increased antismoking sentiment and popular activism); Robert L. Rabin, Institutional and Historical Perspectives on Tobacco Tort Liability, in SMOKING POLICY: LAW, POLITICS, AND CULTURE 111-12 (Robert L. Rabin & Stephen D. Sugarman eds., 1993) (attributing the first wave of tobacco litigation to a series of articles in the Reader's Digest linking smoking to lung cancer); Cassandra Tate, In the 1800s, Antismoking Was a Burning Issue, SMITHSONIAN, May 1989, at 107, 107 (describing the anti-smoking movement early this century, which culminated when ten states prohibited the sale, manufacture, or possession of cigarettes).
5. See generally Paul Aaron & David Musto, Temperance and Prohibition in America: A Historical Overview, in ALCOHOL AND PUBLIC POLICY: BEYOND THE SHADOW OF PROHIBITION (Mark H. Moore & Dean R. Gerstein eds., 1981) [hereinafter ALCOHOL AND PUBLIC POLICY] (examining alcohol policy options). See also John M. Faust, Note, Of Saloons and Social Control: Assessing the Impact of State Liquor Control on Individual Expression, 80 VA. L. REV. 745, 746 (1994) [hereinafter Faust Note] (arguing that public ambivalence about alcohol control "has resulted in the quiet intrusion" of government regulation into "a vulnerable sphere of individual rights").
6. See generally Paul Aaron & David Musto, Temperance and Prohibition in America: A Historical Overview, in ALCOHOL AND PUBLIC POLICY: BEYOND THE SHADOW OF PROHIBITION (Mark H. Moore & Dean R. Gerstein eds., 1981) [hereinafter ALCOHOL AND PUBLIC POLICY] (examining alcohol policy options). See also John M. Faust, Note, Of Saloons and Social Control: Assessing the Impact of State Liquor Control on Individual Expression, 80 VA. L. REV. 745, 746 (1994) [hereinafter Faust Note] (arguing that public ambivalence about alcohol control "has resulted in the quiet intrusion" of government regulation into "a vulnerable sphere of individual rights").
7. I use "melioristic law reform" to mean citizen-driven law reform that proposes changes to the law of both crime and tort. The adjective "melioristic" refers to the hopes of proponents and is not intended to imply that the proposal is necessarily a good idea. For a persuasive critique of law reform, see Richard A. Posner, The Decline of Law as an Autonomous Discipline: 1962-1987, 100 HARV. L. REV. 761, 769-70 (1987) (arguing that traditional justifications for faith in law's autonomy as a discipline have been seriously undermined by a "series of confidence-shattering events," particularly the unforeseen harms of reforms in bankruptcy law, no-fault divorce, environmental regulation, and class actions, among other reforms). "Melioristic law reform" is distinguishable from "cause lawyering." For extensive description of the latter, see generally JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF LAW REFORM AND SOCIAL CHANGE (1978) (examining such law-based social crusades as environmental litigation, consumer protection, civil rights, and social welfare). Scholarly treatments of cause lawyering discuss the theory and practice of achieving social change with the cooperation of an energetic judiciary. Cause lawyering is concerned generally with group-identified allocations of resources. In contrast, melioristic law reform, as I see it, consists of efforts to improve individual behavior through changes in tort and criminal law. Rather than seeking distributive justice via judicial decision, melioristic law reform emphasizes change through the political process at the individual level. These two conceptions of reform reflect their respective eras: Cause lawyering flourished in the expansionist 1970s, whereas melioristic law reform is suited to the current decline of judicial activism.
8. I use "melioristic law reform" to mean citizen-driven law reform that proposes changes to the law of both crime and tort. The adjective "melioristic" refers to the hopes of proponents and is not intended to imply that the proposal is necessarily a good idea. For a persuasive critique of law reform, see Richard A. Posner, The Decline of Law as an Autonomous Discipline: 1962-1987, 100 HARV. L. REV. 761, 769-70 (1987) (arguing that traditional justifications for faith in law's autonomy as a discipline have been seriously undermined by a "series of confidence-shattering events," particularly the unforeseen harms of reforms in bankruptcy law, no-fault divorce, environmental regulation, and class actions, among other reforms). "Melioristic law reform" is distinguishable from "cause lawyering." For extensive description of the latter, see generally JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF LAW REFORM AND SOCIAL CHANGE (1978) (examining such law-based social crusades as environmental litigation, consumer protection, civil rights, and social welfare). Scholarly treatments of cause lawyering discuss the theory and practice of achieving social change with the cooperation of an energetic judiciary. Cause lawyering is concerned generally with group-identified allocations of resources. In contrast, melioristic law reform, as I see it, consists of efforts to improve individual behavior through changes in tort and criminal law. Rather than seeking distributive justice via judicial decision, melioristic law reform emphasizes change through the political process at the individual level. These two conceptions of reform reflect their respective eras: Cause lawyering flourished in the expansionist 1970s, whereas melioristic law reform is suited to the current decline of judicial activism.
9. See infra notes 54-71 and accompanying text. In addition to other critical writings that I will discuss below, work in this tradition includes GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 336-37 (1991) (concluding that without political support, effective implementation mechanisms, and established precedents to lend legitimacy to their decisions, courts have been relatively ineffectual in producing significant social change); see also MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF AMERICAN POLITICAL DISCOURSE at xii (1991) (contending that legalism's preoccupation with rights expresses American individualism but ignores "our traditions of hospitality and care for the community").
10. See infra notes 54-71 and accompanying text. In addition to other critical writings that I will discuss below, work in this tradition includes GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 336-37 (1991) (concluding that without political support, effective implementation mechanisms, and established precedents to lend legitimacy to their decisions, courts have been relatively ineffectual in producing significant social change); see also MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF AMERICAN POLITICAL DISCOURSE at xii (1991) (contending that legalism's preoccupation with rights expresses American individualism but ignores "our traditions of hospitality and care for the community").
11. See ALBERT O. HIRSCHMAN, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY 133 (1991).
12. Nine-tenths of animal species, it is said, are insects that even educated lay persons have never heard of, and a similar proportion governs the American taxonomy of crimes. Thus like most writers who discuss the criminal law, I work with a somewhat blinkered definition of crime, one that overlooks the proliferation of technical crimes and the tendency of lawmakers to criminalize violations of administrative law, to the point where criminal penalties are attached to more than 300,000 federal regulations. See John C. Coffee, Jr., Paradigms Lost: The Blurring of the Criminal and Civil Law Models - And What Can Be Done About It, 101 YALE L.J. 1875, 1880-81 (1992) (internal citation omitted). The idea of "crime" here is commonsensical; consistent with my interest in social problems, I mean to refer to crimes that citizens understand and take into account.
13. The jeopardy thesis "argues that the cost of the proposed change or reform is too high as it endangers some previous, precious accomplishment." HIRSCHMAN, supra note 6, at 7.
14. The reference to functionalism, a much-bandied word, requires a bit of definition and a disclaimer. Following Talcott Parsons, I mean by functionalism the belief that aspects of a society interrelate in purposive ways. Thus law reform movements and the doctrines of crime and tort, both social institutions, work together. As a sociological method, functionalism invites study of this working coexistence. In this Paper I use functionalism in this narrow sense. I also share Parsons's view that the center of society is found in institutional structures, even though individual persons make choices that are at least partially free. Institutions help to determine the actions of individuals, and in turn these institutions derive continuity from action. See TALCOTT PARSONS, THE STRUCTURE OF SOCIAL ACTION 106 (1937) (discussing marriage and property as "institutional modes of regulation of conduct"); cf. LACOMBE, supra note 1, at 139 (referring to "the mutually constitutive nature of structure and agency"). I do not agree with much of what has been said in the name of functionalism, including the prescriptive writings of Parsons. See, e.g. TALCOTT PARSONS & ROBERT F. BALES, FAMILY, SOCIALIZATION AND INTERACTION PROCESS 3-5 (1955) (suggesting that the historical increase in the divorce rate in the United States constitutes part of a phase in which the nuclear family transfers a variety of functions to other social institutions); Talcott Parsons, Age and Sex in the Social Structure of the United States, 7 AM. SOC. REV. 604, 610 (1942) (arguing that the social isolation of the conjugal family, of advanced age groups, and of middle class married women can be attributed to the absence of formal age and sex differentiation). For me, functionalism alone does not justify a status quo, and although I approve of the deployment of crime and tort by social movements, I regard the defense of this connection as a task separate from functionalist description.
15. The reference to functionalism, a much-bandied word, requires a bit of definition and a disclaimer. Following Talcott Parsons, I mean by functionalism the belief that aspects of a society interrelate in purposive ways. Thus law reform movements and the doctrines of crime and tort, both social institutions, work together. As a sociological method, functionalism invites study of this working coexistence. In this Paper I use functionalism in this narrow sense. I also share Parsons's view that the center of society is found in institutional structures, even though individual persons make choices that are at least partially free. Institutions help to determine the actions of individuals, and in turn these institutions derive continuity from action. See TALCOTT PARSONS, THE STRUCTURE OF SOCIAL ACTION 106 (1937) (discussing marriage and property as "institutional modes of regulation of conduct"); cf. LACOMBE, supra note 1, at 139 (referring to "the mutually constitutive nature of structure and agency"). I do not agree with much of what has been said in the name of functionalism, including the prescriptive writings of Parsons. See, e.g. TALCOTT PARSONS & ROBERT F. BALES, FAMILY, SOCIALIZATION AND INTERACTION PROCESS 3-5 (1955) (suggesting that the historical increase in the divorce rate in the United States constitutes part of a phase in which the nuclear family transfers a variety of functions to other social institutions); Talcott Parsons, Age and Sex in the Social Structure of the United States, 7 AM. SOC. REV. 604, 610 (1942) (arguing that the social isolation of the conjugal family, of advanced age groups, and of middle class married women can be attributed to the absence of formal age and sex differentiation). For me, functionalism alone does not justify a status quo, and although I approve of the deployment of crime and tort by social movements, I regard the defense of this connection as a task separate from functionalist description.
16. The reference to functionalism, a much-bandied word, requires a bit of definition and a disclaimer. Following Talcott Parsons, I mean by functionalism the belief that aspects of a society interrelate in purposive ways. Thus law reform movements and the doctrines of crime and tort, both social institutions, work together. As a sociological method, functionalism invites study of this working coexistence. In this Paper I use functionalism in this narrow sense. I also share Parsons's view that the center of society is found in institutional structures, even though individual persons make choices that are at least partially free. Institutions help to determine the actions of individuals, and in turn these institutions derive continuity from action. See TALCOTT PARSONS, THE STRUCTURE OF SOCIAL ACTION 106 (1937) (discussing marriage and property as "institutional modes of regulation of conduct"); cf. LACOMBE, supra note 1, at 139 (referring to "the mutually constitutive nature of structure and agency"). I do not agree with much of what has been said in the name of functionalism, including the prescriptive writings of Parsons. See, e.g. TALCOTT PARSONS & ROBERT F. BALES, FAMILY, SOCIALIZATION AND INTERACTION PROCESS 3-5 (1955) (suggesting that the historical increase in the divorce rate in the United States constitutes part of a phase in which the nuclear family transfers a variety of functions to other social institutions); Talcott Parsons, Age and Sex in the Social Structure of the United States, 7 AM. SOC. REV. 604, 610 (1942) (arguing that the social isolation of the conjugal family, of advanced age groups, and of middle class married women can be attributed to the absence of formal age and sex differentiation). For me, functionalism alone does not justify a status quo, and although I approve of the deployment of crime and tort by social movements, I regard the defense of this connection as a task separate from functionalist description.
17. See JOHN H. BARTON ET AL., LAW IN RADICALLY DIFFERENT CULTURES 9 (1983) (explaining legalism as "the belief (and practice) that law should be the principal organizing framework of government and society").
18. For discussion of legal traditions contrary to progressivism and secularism, see HENRY S. MAINE, ANCIENT LAW 7 (Beacon Press 1970) (1861) ("[I]n the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. . . . The only authoritative statement of right and wrong is a judicial sentence after the facts. . . .").
19. The literature on pluralism is vast. For an overview, see Louise Marcil-Lacoste, The Paradoxes of Pluralism, in DIMENSIONS OF RADICAL DEMOCRACY: PLURALISM, CITIZENSHIP, COMMUNITY 128-30 (Chantal Mouffe ed., 1992) [hereinafter RADICAL DEMOCRACY] (collecting the major sources of pluralist thought in philosophy, ethics, and political theory).
20. See JOHN BURY, THE IDEA OF PROGRESS 35-36 (1920) (identifying the origins of progressivism in the first quarter of the seventeenth century).
21. See, e.g. JEREMY BENTHAM, THE THEORY OF LEGISLATION 1 (C.K. Ogden ed., 1931) (1802) (directing legislators to make laws that "establish the unity and the sovereignty" of the principle of utility).
22. See A.W.B. SIMPSON, INVITATION TO LAW 16-17 (1988) (arguing that only recently has law been seen as "an instrument for change, for reform, for improvement, [and] for producing a different sort of society").
23. Antismoking activists crafted criminal bans on smoking by women and by minors, see RONALD J. TROYER & GERALD E. MARKLE, CIGARETTES: THE BATTLE OVER SMOKING 34-35 (1983), as well as absolute prohibition in 14 states during the late nineteenth century, see Tate, supra note 2, at 107. More recently, public-places bans and other criminal-law restrictions have emerged. Tort and products-liability lawsuits against cigarette manufacturers evolved in stages or "waves" beginning in the 1960s. Rabin, supra note 2, at 110. Despite some feminists' assertions that the criminal law does not fit the needs of those victimized by pornography, many activists have sought to expand criminal sanctions. See, e.g., FRANKLIN M. OSANKA & SARA LEE JOHANN, SOURCEBOOK ON PORNOGRAPHY 313-40, 390-92 (1989) (detailing approaches involving obscenity law and nuisance law, but noting the gross underenforcement of obscenity laws and the possible unconstitutionality of nuisance enforcement measures); Lori Douglass Hutchins, Note, Pornography: The Prosecution of Pornographers Under Prostitution Statutes - A New Approach, 37 SYRACUSE L. REV. 977, 1002 (1986) (advocating application of prostitution statutes to pornography suppliers); Robin Morgan, How to Run the Pornographers Out of Town (and Preserve the First Amendment), Ms., Nov. 1978, at 55, 79-80 (enumerating criminal-law strategies, among other approaches). More famous, however, has been a civil rights ordinance crafted by Andrea Dworkin and Catharine MacKinnon at the request of the city of Minneapolis. The statute would allow victims to sue for harms attributable to pornography. On the origins of this celebrated and vilified attempt at law reform, see Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 607-08 (1987) (identifying as the source of the ordinance the "intersection" of efforts by two neighborhoods to eliminate pornographic bookstores and theaters and the personal experiences of women whose lives had been affected by male consumption of pornography). Activists spurred the creation of drunk-driving crimes and highway checkpoints, and after a national campaign helped to criminalize the sale of alcohol to persons under the age of 21. See John R. Ashmead, Putting a Cork on Social Host Liability: New York Rejects a Trend, 55 BROOK. L. REV. 995, 995 nn.1 & 4 (1989). In the history of tort law, antiliquor activists are credited with the creation of dramshop acts. Mary M. French et al., Special Project, Social Host Liability for the Negligent Acts of Intoxicated Guests, 70 CORNELL L. REV. 1058, 1065-67 (1990) [hereinafter Special Project] (explaining the indebtedness of modern dramshop acts to the nineteenth-century temperance movement).
24. Antismoking activists crafted criminal bans on smoking by women and by minors, see RONALD J. TROYER & GERALD E. MARKLE, CIGARETTES: THE BATTLE OVER SMOKING 34-35 (1983), as well as absolute prohibition in 14 states during the late nineteenth century, see Tate, supra note 2, at 107. More recently, public-places bans and other criminal-law restrictions have emerged. Tort and products-liability lawsuits against cigarette manufacturers evolved in stages or "waves" beginning in the 1960s. Rabin, supra note 2, at 110. Despite some feminists' assertions that the criminal law does not fit the needs of those victimized by pornography, many activists have sought to expand criminal sanctions. See, e.g., FRANKLIN M. OSANKA & SARA LEE JOHANN, SOURCEBOOK ON PORNOGRAPHY 313-40, 390-92 (1989) (detailing approaches involving obscenity law and nuisance law, but noting the gross underenforcement of obscenity laws and the possible unconstitutionality of nuisance enforcement measures); Lori Douglass Hutchins, Note, Pornography: The Prosecution of Pornographers Under Prostitution Statutes - A New Approach, 37 SYRACUSE L. REV. 977, 1002 (1986) (advocating application of prostitution statutes to pornography suppliers); Robin Morgan, How to Run the Pornographers Out of Town (and Preserve the First Amendment), Ms., Nov. 1978, at 55, 79-80 (enumerating criminal-law strategies, among other approaches). More famous, however, has been a civil rights ordinance crafted by Andrea Dworkin and Catharine MacKinnon at the request of the city of Minneapolis. The statute would allow victims to sue for harms attributable to pornography. On the origins of this celebrated and vilified attempt at law reform, see Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 607-08 (1987) (identifying as the source of the ordinance the "intersection" of efforts by two neighborhoods to eliminate pornographic bookstores and theaters and the personal experiences of women whose lives had been affected by male consumption of pornography). Activists spurred the creation of drunk-driving crimes and highway checkpoints, and after a national campaign helped to criminalize the sale of alcohol to persons under the age of 21. See John R. Ashmead, Putting a Cork on Social Host Liability: New York Rejects a Trend, 55 BROOK. L. REV. 995, 995 nn.1 & 4 (1989). In the history of tort law, antiliquor activists are credited with the creation of dramshop acts. Mary M. French et al., Special Project, Social Host Liability for the Negligent Acts of Intoxicated Guests, 70 CORNELL L. REV. 1058, 1065-67 (1990) [hereinafter Special Project] (explaining the indebtedness of modern dramshop acts to the nineteenth-century temperance movement).
25. Antismoking activists crafted criminal bans on smoking by women and by minors, see RONALD J. TROYER & GERALD E. MARKLE, CIGARETTES: THE BATTLE OVER SMOKING 34-35 (1983), as well as absolute prohibition in 14 states during the late nineteenth century, see Tate, supra note 2, at 107. More recently, public-places bans and other criminal-law restrictions have emerged. Tort and products-liability lawsuits against cigarette manufacturers evolved in stages or "waves" beginning in the 1960s. Rabin, supra note 2, at 110. Despite some feminists' assertions that the criminal law does not fit the needs of those victimized by pornography, many activists have sought to expand criminal sanctions. See, e.g., FRANKLIN M. OSANKA & SARA LEE JOHANN, SOURCEBOOK ON PORNOGRAPHY 313-40, 390-92 (1989) (detailing approaches involving obscenity law and nuisance law, but noting the gross underenforcement of obscenity laws and the possible unconstitutionality of nuisance enforcement measures); Lori Douglass Hutchins, Note, Pornography: The Prosecution of Pornographers Under Prostitution Statutes - A New Approach, 37 SYRACUSE L. REV. 977, 1002 (1986) (advocating application of prostitution statutes to pornography suppliers); Robin Morgan, How to Run the Pornographers Out of Town (and Preserve the First Amendment), Ms., Nov. 1978, at 55, 79-80 (enumerating criminal-law strategies, among other approaches). More famous, however, has been a civil rights ordinance crafted by Andrea Dworkin and Catharine MacKinnon at the request of the city of Minneapolis. The statute would allow victims to sue for harms attributable to pornography. On the origins of this celebrated and vilified attempt at law reform, see Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 607-08 (1987) (identifying as the source of the ordinance the "intersection" of efforts by two neighborhoods to eliminate pornographic bookstores and theaters and the personal experiences of women whose lives had been affected by male consumption of pornography). Activists spurred the creation of drunk-driving crimes and highway checkpoints, and after a national campaign helped to criminalize the sale of alcohol to persons under the age of 21. See John R. Ashmead, Putting a Cork on Social Host Liability: New York Rejects a Trend, 55 BROOK. L. REV. 995, 995 nn.1 & 4 (1989). In the history of tort law, antiliquor activists are credited with the creation of dramshop acts. Mary M. French et al., Special Project, Social Host Liability for the Negligent Acts of Intoxicated Guests, 70 CORNELL L. REV. 1058, 1065-67 (1990) [hereinafter Special Project] (explaining the indebtedness of modern dramshop acts to the nineteenth-century temperance movement).
26. Antismoking activists crafted criminal bans on smoking by women and by minors, see RONALD J. TROYER & GERALD E. MARKLE, CIGARETTES: THE BATTLE OVER SMOKING 34-35 (1983), as well as absolute prohibition in 14 states during the late nineteenth century, see Tate, supra note 2, at 107. More recently, public-places bans and other criminal-law restrictions have emerged. Tort and products-liability lawsuits against cigarette manufacturers evolved in stages or "waves" beginning in the 1960s. Rabin, supra note 2, at 110. Despite some feminists' assertions that the criminal law does not fit the needs of those victimized by pornography, many activists have sought to expand criminal sanctions. See, e.g., FRANKLIN M. OSANKA & SARA LEE JOHANN, SOURCEBOOK ON PORNOGRAPHY 313-40, 390-92 (1989) (detailing approaches involving obscenity law and nuisance law, but noting the gross underenforcement of obscenity laws and the possible unconstitutionality of nuisance enforcement measures); Lori Douglass Hutchins, Note, Pornography: The Prosecution of Pornographers Under Prostitution Statutes - A New Approach, 37 SYRACUSE L. REV. 977, 1002 (1986) (advocating application of prostitution statutes to pornography suppliers); Robin Morgan, How to Run the Pornographers Out of Town (and Preserve the First Amendment), Ms., Nov. 1978, at 55, 79-80 (enumerating criminal-law strategies, among other approaches). More famous, however, has been a civil rights ordinance crafted by Andrea Dworkin and Catharine MacKinnon at the request of the city of Minneapolis. The statute would allow victims to sue for harms attributable to pornography. On the origins of this celebrated and vilified attempt at law reform, see Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 607-08 (1987) (identifying as the source of the ordinance the "intersection" of efforts by two neighborhoods to eliminate pornographic bookstores and theaters and the personal experiences of women whose lives had been affected by male consumption of pornography). Activists spurred the creation of drunk-driving crimes and highway checkpoints, and after a national campaign helped to criminalize the sale of alcohol to persons under the age of 21. See John R. Ashmead, Putting a Cork on Social Host Liability: New York Rejects a Trend, 55 BROOK. L. REV. 995, 995 nn.1 & 4 (1989). In the history of tort law, antiliquor activists are credited with the creation of dramshop acts. Mary M. French et al., Special Project, Social Host Liability for the Negligent Acts of Intoxicated Guests, 70 CORNELL L. REV. 1058, 1065-67 (1990) [hereinafter Special Project] (explaining the indebtedness of modern dramshop acts to the nineteenth-century temperance movement).
27. Antismoking activists crafted criminal bans on smoking by women and by minors, see RONALD J. TROYER & GERALD E. MARKLE, CIGARETTES: THE BATTLE OVER SMOKING 34-35 (1983), as well as absolute prohibition in 14 states during the late nineteenth century, see Tate, supra note 2, at 107. More recently, public-places bans and other criminal-law restrictions have emerged. Tort and products-liability lawsuits against cigarette manufacturers evolved in stages or "waves" beginning in the 1960s. Rabin, supra note 2, at 110. Despite some feminists' assertions that the criminal law does not fit the needs of those victimized by pornography, many activists have sought to expand criminal sanctions. See, e.g., FRANKLIN M. OSANKA & SARA LEE JOHANN, SOURCEBOOK ON PORNOGRAPHY 313-40, 390-92 (1989) (detailing approaches involving obscenity law and nuisance law, but noting the gross underenforcement of obscenity laws and the possible unconstitutionality of nuisance enforcement measures); Lori Douglass Hutchins, Note, Pornography: The Prosecution of Pornographers Under Prostitution Statutes - A New Approach, 37 SYRACUSE L. REV. 977, 1002 (1986) (advocating application of prostitution statutes to pornography suppliers); Robin Morgan, How to Run the Pornographers Out of Town (and Preserve the First Amendment), Ms., Nov. 1978, at 55, 79-80 (enumerating criminal-law strategies, among other approaches). More famous, however, has been a civil rights ordinance crafted by Andrea Dworkin and Catharine MacKinnon at the request of the city of Minneapolis. The statute would allow victims to sue for harms attributable to pornography. On the origins of this celebrated and vilified attempt at law reform, see Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 607-08 (1987) (identifying as the source of the ordinance the "intersection" of efforts by two neighborhoods to eliminate pornographic bookstores and theaters and the personal experiences of women whose lives had been affected by male consumption of pornography). Activists spurred the creation of drunk-driving crimes and highway checkpoints, and after a national campaign helped to criminalize the sale of alcohol to persons under the age of 21. See John R. Ashmead, Putting a Cork on Social Host Liability: New York Rejects a Trend, 55 BROOK. L. REV. 995, 995 nn.1 & 4 (1989). In the history of tort law, antiliquor activists are credited with the creation of dramshop acts. Mary M. French et al., Special Project, Social Host Liability for the Negligent Acts of Intoxicated Guests, 70 CORNELL L. REV. 1058, 1065-67 (1990) [hereinafter Special Project] (explaining the indebtedness of modern dramshop acts to the nineteenth-century temperance movement).
28. Antismoking activists crafted criminal bans on smoking by women and by minors, see RONALD J. TROYER & GERALD E. MARKLE, CIGARETTES: THE BATTLE OVER SMOKING 34-35 (1983), as well as absolute prohibition in 14 states during the late nineteenth century, see Tate, supra note 2, at 107. More recently, public-places bans and other criminal-law restrictions have emerged. Tort and products-liability lawsuits against cigarette manufacturers evolved in stages or "waves" beginning in the 1960s. Rabin, supra note 2, at 110. Despite some feminists' assertions that the criminal law does not fit the needs of those victimized by pornography, many activists have sought to expand criminal sanctions. See, e.g., FRANKLIN M. OSANKA & SARA LEE JOHANN, SOURCEBOOK ON PORNOGRAPHY 313-40, 390-92 (1989) (detailing approaches involving obscenity law and nuisance law, but noting the gross underenforcement of obscenity laws and the possible unconstitutionality of nuisance enforcement measures); Lori Douglass Hutchins, Note, Pornography: The Prosecution of Pornographers Under Prostitution Statutes - A New Approach, 37 SYRACUSE L. REV. 977, 1002 (1986) (advocating application of prostitution statutes to pornography suppliers); Robin Morgan, How to Run the Pornographers Out of Town (and Preserve the First Amendment), Ms., Nov. 1978, at 55, 79-80 (enumerating criminal-law strategies, among other approaches). More famous, however, has been a civil rights ordinance crafted by Andrea Dworkin and Catharine MacKinnon at the request of the city of Minneapolis. The statute would allow victims to sue for harms attributable to pornography. On the origins of this celebrated and vilified attempt at law reform, see Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 607-08 (1987) (identifying as the source of the ordinance the "intersection" of efforts by two neighborhoods to eliminate pornographic bookstores and theaters and the personal experiences of women whose lives had been affected by male consumption of pornography). Activists spurred the creation of drunk-driving crimes and highway checkpoints, and after a national campaign helped to criminalize the sale of alcohol to persons under the age of 21. See John R. Ashmead, Putting a Cork on Social Host Liability: New York Rejects a Trend, 55 BROOK. L. REV. 995, 995 nn.1 & 4 (1989). In the history of tort law, antiliquor activists are credited with the creation of dramshop acts. Mary M. French et al., Special Project, Social Host Liability for the Negligent Acts of Intoxicated Guests, 70 CORNELL L. REV. 1058, 1065-67 (1990) [hereinafter Special Project] (explaining the indebtedness of modern dramshop acts to the nineteenth-century temperance movement).
29. Antismoking activists crafted criminal bans on smoking by women and by minors, see RONALD J. TROYER & GERALD E. MARKLE, CIGARETTES: THE BATTLE OVER SMOKING 34-35 (1983), as well as absolute prohibition in 14 states during the late nineteenth century, see Tate, supra note 2, at 107. More recently, public-places bans and other criminal-law restrictions have emerged. Tort and products-liability lawsuits against cigarette manufacturers evolved in stages or "waves" beginning in the 1960s. Rabin, supra note 2, at 110. Despite some feminists' assertions that the criminal law does not fit the needs of those victimized by pornography, many activists have sought to expand criminal sanctions. See, e.g., FRANKLIN M. OSANKA & SARA LEE JOHANN, SOURCEBOOK ON PORNOGRAPHY 313-40, 390-92 (1989) (detailing approaches involving obscenity law and nuisance law, but noting the gross underenforcement of obscenity laws and the possible unconstitutionality of nuisance enforcement measures); Lori Douglass Hutchins, Note, Pornography: The Prosecution of Pornographers Under Prostitution Statutes - A New Approach, 37 SYRACUSE L. REV. 977, 1002 (1986) (advocating application of prostitution statutes to pornography suppliers); Robin Morgan, How to Run the Pornographers Out of Town (and Preserve the First Amendment), Ms., Nov. 1978, at 55, 79-80 (enumerating criminal-law strategies, among other approaches). More famous, however, has been a civil rights ordinance crafted by Andrea Dworkin and Catharine MacKinnon at the request of the city of Minneapolis. The statute would allow victims to sue for harms attributable to pornography. On the origins of this celebrated and vilified attempt at law reform, see Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 607-08 (1987) (identifying as the source of the ordinance the "intersection" of efforts by two neighborhoods to eliminate pornographic bookstores and theaters and the personal experiences of women whose lives had been affected by male consumption of pornography). Activists spurred the creation of drunk-driving crimes and highway checkpoints, and after a national campaign helped to criminalize the sale of alcohol to persons under the age of 21. See John R. Ashmead, Putting a Cork on Social Host Liability: New York Rejects a Trend, 55 BROOK. L. REV. 995, 995 nn.1 & 4 (1989). In the history of tort law, antiliquor activists are credited with the creation of dramshop acts. Mary M. French et al., Special Project, Social Host Liability for the Negligent Acts of Intoxicated Guests, 70 CORNELL L. REV. 1058, 1065-67 (1990) [hereinafter Special Project] (explaining the indebtedness of modern dramshop acts to the nineteenth-century temperance movement).
30. For example, pornography defenders historically have rebuffed prohibitionists on the basis of causation. Catharine MacKinnon argues that this linear understanding of causation - "in the 'John hit Mary' sense" - ignores the silencing effect of pornography. CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 156-57 (1987) (complaining also that "atomistic linear causality as a sine qua non of injury" is a standard that prevents gender equality from developing).
31. See Robert W. Drane & David J. Neal, On Moral Justifications for the Tort/ Crime Distinction, 68 CAL. L. REV. 398, 402-03 (1980) (describing the public/private distinction, criticism of it, and its intuitive appeal).
32. ALCOHOL AND PUBLIC POLICY, supra note 3, at 10-11 (discussing the transition and showing how public policy has embraced the view that over-consumption is a disease).
33. In 1604 James published his "Counterblaste to Tobacco": Tobacco is a filthy weed and the custome is lothsome to the eye, hatefull to the nose, harmefull to the braine, dangerous to the lungs, and in the blacke stinking fume thereof, neerest resembling the horrible Stigian smoke of the pit that is bottomelesse. MICHAEL GROSSMAN & PHILIP PRICE, TOBACCO SMOKING AND THE LAW IN CANADA 1-1, 1-6 (1992) (internal citation omitted).
34. STEVE ALLEN & BILL ADLER, JR., THE PASSIONATE NONSMOKER'S BILL OF RIGHTS 22-23 (1989) (equating smokefree public spaces with freedom and rights generally, and objecting to the idea of smoking as a "right").
35. Although they are "popular with the conservative constituencies that traditionally favor legal restrictions on sexual expression of all kinds," anti-pornography laws have been drafted by feminists who "oppose traditional obscenity and censorship laws." Lisa Duggan, False Promises: Feminist Anti-Pornography Legislation, 38 N.Y.L. SCH. L. REV. 133, 133 (1994).
36. In an "information age," of course, activists cannot escape awareness of parallel or related efforts, and so they confront the question of how closely to ally with one another. Though alliances do result, melioristic law reform is always centrifugal, tending toward more dispersal. When they choose to disperse powers, reformers accept the risk that giving legal weapons to more actors will lead to abuses. Sometimes this inclusion of others is reluctant. See, e.g., MACKINNON, supra note 17, at 203 (explaining her choice of civil-law rather than criminal-law strategy); see also id. at 283 n.52 (discussing other benefits of a civil enforcement model). Other times reformers have few qualms about sharing power, as is the case with antismoking campaigns. See JACOBSON ET AL., supra note 2, at 19. Two Australian activists have written approvingly about dispersal as a strategy, adding that "the dominant culture" legitimizes antismoking efforts by redefining smoking as a public health issue rather than a personal right. ROLAND EVERINGHAM & STEPHEN WOODWARD, TOBACCO LITIGATION: AFC V TIA: THE CASE AGAINST PASSIVE SMOKING 16 (1991).
37. One philosopher discusses the creation of extralegal sanctions as a necessary social process. Edna Ullmann-Margalit, Revision of Norms, 100 ETHICS 756 (1990).
38. Michael Lewis contends that shame is both "species-specific" and the most psychically significant emotion we possess. MICHAEL LEWIS, SHAME: THE EXPOSED SELF 2 (1992) ("[I]t encompasses the whole of ourselves . . . ."); see also Jonathan Alter & Pat Wingert, The Return of Shame, NEWSWEEK, Feb. 6, 1995, at 21, 22 (observing that social control through shame is reemerging as a communitarian value after suffering a decline during the 1950s and 1960s).
39. Michael Lewis contends that shame is both "species-specific" and the most psychically significant emotion we possess. MICHAEL LEWIS, SHAME: THE EXPOSED SELF 2 (1992) ("[I]t encompasses the whole of ourselves . . . ."); see also Jonathan Alter & Pat Wingert, The Return of Shame, NEWSWEEK, Feb. 6, 1995, at 21, 22 (observing that social control through shame is reemerging as a communitarian value after suffering a decline during the 1950s and 1960s).
40. Put another way, the highest probability that a criminal will be apprehended and successfully prosecuted occurs when there are the greatest numbers of costly police, prosecutors, judges, and defense attorneys. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 225 (4th ed. 1992).
41. John Braithwaite goes further. Agreeing that shame and stigma do much of the work of criminalization, he argues that shame and stigma ought to do much more of this work, and criminal justice, a professional domain for lawyers, government employees, and theorists, ought to do less. To Braithwaite, the professionalization of crime control helps to explain increases in crime rates in recent decades. JOHN BRAITHWAITE, CRIME, SHAME AND REHABILITATION 26 (1989) ("Professional criminology, in all its major variants, can be unhelpful in maintaining a social climate appropriate to crime control because in different ways its thrust is to professionalize, systematize, scientize, and de-communitize justice.").
42. Compare id. (arguing that expansion of shaming can improve the function of the criminal law) with Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880, 1883-84, 1943-44 (1991) (characterizing shaming practices used in American sentencing and rehabilitation as futile and potentially cruel).
43. An early study of this phenomenon, undertaken in the late 1950s, assessed the effect of being sued for malpractice on the careers and personal lives of physicians. Richard D. Schwartz & Jerome H. Skolnick, Two Studies of Legal Stigma, in THE OTHER SIDE: PERSPECTIVES ON DEVIANCE 103, 111-12 (Howard S. Becker ed., 1964) (finding no correlation between being sued for malpractice and the continued success of the defendants' medical careers). The experience of the two of three movements where tort actions have been brought shows that opprobrium can also be deployed as a counterreform measure. See Rabin, supra note 2, at 124 (describing how tobacco-seller defendants systematically portrayed plaintiffs as unattractive and noting that in one case the defense introduced evidence that the plaintiff was "a heavy drinker [who] lived with other women while he was married [and] had trouble holding a job") (internal citation omitted). Courts construe dramshop acts to deny recovery to plaintiffs whose intoxication causes injury to themselves, despite broad language allowing a claim by "any person injured." This narrow construction, apparently grounded in moralism, exists apart from contributory negligence, or skewed versions of comparative negligence, both of which favor defendants. Special Project, supra note 16, at 1069. Andrea Dworkin argues that because victims of pornography have been kept out of the courts and thus out of American public life, they do not hear one another's accounts and remain in a state of isolated shame. ANDREA DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN at xxvii-xxviii (rev. ed. 1989) (protesting the use of the word "anecdotal" to describe the few accounts of pornography-related abuse that have become public, because it trivializes the experience).
44. An early study of this phenomenon, undertaken in the late 1950s, assessed the effect of being sued for malpractice on the careers and personal lives of physicians. Richard D. Schwartz & Jerome H. Skolnick, Two Studies of Legal Stigma, in THE OTHER SIDE: PERSPECTIVES ON DEVIANCE 103, 111-12 (Howard S. Becker ed., 1964) (finding no correlation between being sued for malpractice and the continued success of the defendants' medical careers). The experience of the two of three movements where tort actions have been brought shows that opprobrium can also be deployed as a counterreform measure. See Rabin, supra note 2, at 124 (describing how tobacco-seller defendants systematically portrayed plaintiffs as unattractive and noting that in one case the defense introduced evidence that the plaintiff was "a heavy drinker [who] lived with other women while he was married [and] had trouble holding a job") (internal citation omitted). Courts construe dramshop acts to deny recovery to plaintiffs whose intoxication causes injury to themselves, despite broad language allowing a claim by "any person injured." This narrow construction, apparently grounded in moralism, exists apart from contributory negligence, or skewed versions of comparative negligence, both of which favor defendants. Special Project, supra note 16, at 1069. Andrea Dworkin argues that because victims of pornography have been kept out of the courts and thus out of American public life, they do not hear one another's accounts and remain in a state of isolated shame. ANDREA DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN at xxvii-xxviii (rev. ed. 1989) (protesting the use of the word "anecdotal" to describe the few accounts of pornography-related abuse that have become public, because it trivializes the experience).
45. See JACOBSON ET AL., supra note 2, at 13 (noting that many antismoking laws are "self-enforcing"); Note, A Perspective on Non-Legal Social Controls: The Sanctions of Shame and Guilt in Representative Cultural Settings, 35 IND. L.J. 196, 249 (1959-1960) (asserting that guilt sanctions "are self-enforcing and require much less expenditure of effort than would legal sanctions alone").
46. TROVER & MARKLE, supra note 16, at 52-60. The authors add that this perception continued to climb even when newspapers started to run fewer stories about new measures. Id. at 62-63 (but noting that, in spite of the decline, the issue of the harmful health consequences of smoking remained in the public arena).
47. Rabin, supra note 2, at 126-27.
48. This point about multiple inputs suggests that Rabin comes to judgment too hastily. Discussing law-based responses to the problem of cigarette harm, Rabin contrasts the successful "public health perspective" informing criminal and quasi-criminal bans with the failed "individual rights perspective" behind tort litigation. Id. at 111. My view of melioristic law reform precludes this kind of relative assessment, as I see new crimes and torts as parts of a larger movement rather than end points; thus it is always hard to tell which measures have succeeded and which failed. In any case I regard "the individual rights perspective" as integral to melioristic law reform. See infra Part I.C.3.
49. Richard Randall describes the social value of pornography in terms of its stigmatization. By indicting pornographic portrayals of women as deviant, feminists have helped "sharpen or reinforce what is acceptable or favored" sexually. RICHARD S. RANDALL, FREEDOM AND TABOO: PORNOGRAPHY AND THE POLITICS OF A SELF DIVIDED 265 (1989); see also lisa Lottes et al., Reactions to Pornography on a College Campus: For or Against?, 29 SEX ROLES 69, 84 (1993) (describing disapproval of pornography among college students surveyed). One survey, done in the mid-1980s, found that 56% believed that exposure to pornography causes rape, and 54% believed that exposure to pornography causes other forms of sexual violence. EDWARD DONNERSTEIN ET AL., THE QUESTION OF PORNOGRAPHY: RESEARCH FINDINGS AND POLICY IMPLICATIONS at ix (1987). Although these majorities are narrow, they would not have been identifiable before the feminist campaign. I offer my own impressions about the declining acceptability of pornography among elites infra at text accompanying notes 56-60.
50. Richard Randall describes the social value of pornography in terms of its stigmatization. By indicting pornographic portrayals of women as deviant, feminists have helped "sharpen or reinforce what is acceptable or favored" sexually. RICHARD S. RANDALL, FREEDOM AND TABOO: PORNOGRAPHY AND THE POLITICS OF A SELF DIVIDED 265 (1989); see also lisa Lottes et al., Reactions to Pornography on a College Campus: For or Against?, 29 SEX ROLES 69, 84 (1993) (describing disapproval of pornography among college students surveyed). One survey, done in the mid-1980s, found that 56% believed that exposure to pornography causes rape, and 54% believed that exposure to pornography causes other forms of sexual violence. EDWARD DONNERSTEIN ET AL., THE QUESTION OF PORNOGRAPHY: RESEARCH FINDINGS AND POLICY IMPLICATIONS at ix (1987). Although these majorities are narrow, they would not have been identifiable before the feminist campaign. I offer my own impressions about the declining acceptability of pornography among elites infra at text accompanying notes 56-60.
51. Richard Randall describes the social value of pornography in terms of its stigmatization. By indicting pornographic portrayals of women as deviant, feminists have helped "sharpen or reinforce what is acceptable or favored" sexually. RICHARD S. RANDALL, FREEDOM AND TABOO: PORNOGRAPHY AND THE POLITICS OF A SELF DIVIDED 265 (1989); see also Iisa Lottes et al., Reactions to Pornography on a College Campus: For or Against?, 29 SEX ROLES 69, 84 (1993) (describing disapproval of pornography among college students surveyed). One survey, done in the mid-1980s, found that 56% believed that exposure to pornography causes rape, and 54% believed that exposure to pornography causes other forms of sexual violence. EDWARD DONNERSTEIN ET AL., THE QUESTION OF PORNOGRAPHY: RESEARCH FINDINGS AND POLICY IMPLICATIONS at ix (1987). Although these majorities are narrow, they would not have been identifiable before the feminist campaign. I offer my own impressions about the declining acceptability of pornography among elites infra at text accompanying notes 56-60.
52. The exact origins of the designated driver are unclear. Compare Edwin Diamond, Guns and Poses, NEW YORK, Dec. 6, 1993, at 32 (calling concept "another Hollywood-Harvard [School of Public Health] collaboration") with Jerry Keller, Applause and Anger, BEVERAGE WORLD, May 1994, at 4 (taking credit for the concept on behalf of "the beer industry"). Undisputed, however, is the secondary nature of this creation: The designated driver arose in the United States only after activists had fashioned crimes and torts.
53. The exact origins of the designated driver are unclear. Compare Edwin Diamond, Guns and Poses, NEW YORK, Dec. 6, 1993, at 32 (calling concept "another Hollywood-Harvard [School of Public Health] collaboration") with Jerry Keller, Applause and Anger, BEVERAGE WORLD, May 1994, at 4 (taking credit for the concept on behalf of "the beer industry"). Undisputed, however, is the secondary nature of this creation: The designated driver arose in the United States only after activists had fashioned crimes and torts.
54. This competition is related to confusion over when law ends and non-legal forms of ordering in society begin. For discussion of this question, and a good resolution, see Brian Z. Tamanaha, The Folly of the "Social Scientific" Concept of Legal Pluralism, 20 J. L. & SOC'Y 192, 212 (1993) (protesting against pluralists' use of the word "law" to describe "lived patterns of normative ordering"). Commenting on a draft version of this Paper, my colleague Richard McAdams notes that extralegal and legal sanctions interrelate in another way: In a law-centered society, attempts to revise prominent laws can provide momentum and publicity for struggling social movements. By taking on the venerated First Amendment, for instance, feminists ensured attention and generated discussion.
55. On feminist concerns, see infra note 74 and accompanying text. On anti-legalist concerns as stated by Mary Ann Glendon, see infra notes 67-71 and accompanying text.
56. "Forget law, educate - as if law is not educational," Catharine MacKinnon wrote, describing tersely this strain of questioning and criticism. MACKINNON, supra note 17, at 223.
57. The theme of humorlessness is often explored in popular writing about melioristic law reform. Antismoking efforts, feminist crusaders, and antiliquor activists are mocked in, respectively, CHRISTOPHER BUCKLEY, THANK YOU FOR SMOKING 3 (1994) (satirizing antismoking activists as "dedicated haters"); FLORENCE KING, WHEN SISTERHOOD WAS IN FLOWER 1 (1982) (recounting the narrator's story of being "shanghaied into the feminist movement"); and the 1932 Broadway melodrama, Carry Nation; see also SAMUEL L. LEITER, THE ENCYCLOPEDIA OF THE NEW YORK STAGE, 1930-1940 at 114-15 (1989) (describing the nineteenth-century temperance fanatic of the title who attacked saloons with a hatchet "after receiving what she claimed to be a divine revelation"). Also blowing in the zeitgeist are "feminazis," a Benson & Hedges ad campaign that ridicules public-places bans, and the rock group DAMM, or Drunks Against Mad Mothers. As a counterreform tactic, calling law reformers humorless - especially if they happen to be feminists - seems effective, or so I concluded after my research on the creation of sexual harassment law. Anita Bernstein, Law, Culture, and Harassment, 142 U. PA. L. REV. 1227, 1278 n.248, 1306-07 (1994) (noting the prevalence of anti-feminist rhetoric that chastises feminist women for being "humorless," "joyless," and "puritanical").
58. The theme of humorlessness is often explored in popular writing about melioristic law reform. Antismoking efforts, feminist crusaders, and antiliquor activists are mocked in, respectively, CHRISTOPHER BUCKLEY, THANK YOU FOR SMOKING 3 (1994) (satirizing antismoking activists as "dedicated haters"); FLORENCE KING, WHEN SISTERHOOD WAS IN FLOWER 1 (1982) (recounting the narrator's story of being "shanghaied into the feminist movement"); and the 1932 Broadway melodrama, Carry Nation; see also SAMUEL L. LEITER, THE ENCYCLOPEDIA OF THE NEW YORK STAGE, 1930-1940 at 114-15 (1989) (describing the nineteenth-century temperance fanatic of the title who attacked saloons with a hatchet "after receiving what she claimed to be a divine revelation"). Also blowing in the zeitgeist are "feminazis," a Benson & Hedges ad campaign that ridicules public-places bans, and the rock group DAMM, or Drunks Against Mad Mothers. As a counterreform tactic, calling law reformers humorless - especially if they happen to be feminists - seems effective, or so I concluded after my research on the creation of sexual harassment law. Anita Bernstein, Law, Culture, and Harassment, 142 U. PA. L. REV. 1227, 1278 n.248, 1306-07 (1994) (noting the prevalence of anti-feminist rhetoric that chastises feminist women for being "humorless," "joyless," and "puritanical").
59. The theme of humorlessness is often explored in popular writing about melioristic law reform. Antismoking efforts, feminist crusaders, and antiliquor activists are mocked in, respectively, CHRISTOPHER BUCKLEY, THANK YOU FOR SMOKING 3 (1994) (satirizing antismoking activists as "dedicated haters"); FLORENCE KING, WHEN SISTERHOOD WAS IN FLOWER 1 (1982) (recounting the narrator's story of being "shanghaied into the feminist movement"); and the 1932 Broadway melodrama, Carry Nation; see also SAMUEL L. LEITER, THE ENCYCLOPEDIA OF THE NEW YORK STAGE, 1930-1940 at 114-15 (1989) (describing the nineteenth-century temperance fanatic of the title who attacked saloons with a hatchet "after receiving what she claimed to be a divine revelation"). Also blowing in the zeitgeist are "feminazis," a Benson & Hedges ad campaign that ridicules public-places bans, and the rock group DAMM, or Drunks Against Mad Mothers. As a counterreform tactic, calling law reformers humorless - especially if they happen to be feminists - seems effective, or so I concluded after my research on the creation of sexual harassment law. Anita Bernstein, Law, Culture, and Harassment, 142 U. PA. L. REV. 1227, 1278 n.248, 1306-07 (1994) (noting the prevalence of anti-feminist rhetoric that chastises feminist women for being "humorless," "joyless," and "puritanical").
60. The theme of humorlessness is often explored in popular writing about melioristic law reform. Antismoking efforts, feminist crusaders, and antiliquor activists are mocked in, respectively, CHRISTOPHER BUCKLEY, THANK YOU FOR SMOKING 3 (1994) (satirizing antismoking activists as "dedicated haters"); FLORENCE KING, WHEN SISTERHOOD WAS IN FLOWER 1 (1982) (recounting the narrator's story of being "shanghaied into the feminist movement"); and the 1932 Broadway melodrama, Carry Nation; see also SAMUEL L. LEITER, THE ENCYCLOPEDIA OF THE NEW YORK STAGE, 1930-1940 at 114-15 (1989) (describing the nineteenth-century temperance fanatic of the title who attacked saloons with a hatchet "after receiving what she claimed to be a divine
61. A good example of this type of leader, although his work is not discussed here, is Ralph Nader. For a summary of his activities in melioristic law reform, see Murray Fisher, Ralph Nader, Consumer Rights Crusader, PLAYBOY, Jun. 1992, at 53, 53 (noting that Nader switched tactics from agitation to participation by placing his name on the 1992 presidential ballot).
62. Candy Lightner, first the grieving mother-against-drunk-driving and later the worldly public figure who took a job lobbying for the liquor industry, exemplifies this choice. Walt Wiley, Candy Lightner's New Cause, SACRAMENTO BEE, Oct. 18, 1994, at B1 (listing the organizations Lightner has affiliated herself with, including the Beverage Institute, Americans Against Crime, and the American-Arab Anti-Discrimination Committee).
63. Dworkin and MacKinnon have been so widely mocked and challenged that a Time magazine writer referred to them as the A1 Sharpton and Louis Farrakhan of the women's movement. Lance Morrow, Men: Are They Really That Bad?, TIME, Feb. 14, 1994, at 52, 58 (also noting that MacKinnon and Dworkin are "convenient targets for antifeminists"). Many writers put themselves forward as new, revisionist feminists, who would cure the excesses of their predecessors. See, e.g., RENE DENFIELD, THE NEW VICTORIANS: A YOUNG WOMAN'S CHALLENGE TO THE OLD FEMINIST ORDER 10-11 (1995) (arguing that young women are abandoning the women's movement because it clings to an oppressive vision of womanhood); CAMILLE PAGLIA, VAMPS AND TRAMPS: NEW ESSAYS 107 (1994) (titling one chapter "The Return of Carry Nation: Catharine MacKinnon and Andrea Dworkin"); CHRISTINA H. SOMMERS, WHO STOLE FEMINISM? HOW WOMEN HAVE BETRAYED WOMEN 275 (1994) (foretelling the demise of the "gender feminism" of Susan Faludi, Gloria Steinern, and others, in favor of a new wave of "equity feminism" that wisely abanE dons "militant gynocentrism and misandrism").
64. Dworkin and MacKinnon have been so widely mocked and challenged that a Time magazine writer referred to them as the A1 Sharpton and Louis Farrakhan of the women's movement. Lance Morrow, Men: Are They Really That Bad?, TIME, Feb. 14, 1994, at 52, 58 (also noting that MacKinnon and Dworkin are "convenient targets for antifeminists"). Many writers put themselves forward as new, revisionist feminists, who would cure the excesses of their predecessors. See, e.g., RENE DENFIELD, THE NEW VICTORIANS: A YOUNG WOMAN'S CHALLENGE TO THE OLD FEMINIST ORDER 10-11 (1995) (arguing that young women are abandoning the women's movement because it clings to an oppressive vision of womanhood); CAMILLE PAGLIA, VAMPS AND TRAMPS: NEW ESSAYS 107 (1994) (titling one chapter "The Return of Carry Nation: Catharine MacKinnon and Andrea Dworkin"); CHRISTINA H. SOMMERS, WHO STOLE FEMINISM? HOW WOMEN HAVE BETRAYED WOMEN 275 (1994) (foretelling the demise of the "gender feminism" of Susan Faludi, Gloria Steinern, and others, in favor of a new wave of "equity feminism" that wisely abanE dons "militant gynocentrism and misandrism").
65. Dworkin and MacKinnon have been so widely mocked and challenged that a Time magazine writer referred to them as the A1 Sharpton and Louis Farrakhan of the women's movement. Lance Morrow, Men: Are They Really That Bad?, TIME, Feb. 14, 1994, at 52, 58 (also noting that MacKinnon and Dworkin are "convenient targets for antifeminists"). Many writers put themselves forward as new, revisionist feminists, who would cure the excesses of their predecessors. See, e.g., RENE DENFIELD, THE NEW VICTORIANS: A YOUNG WOMAN'S CHALLENGE TO THE OLD FEMINIST ORDER 10-11 (1995) (arguing that young women are abandoning the women's movement because it clings to an oppressive vision of womanhood); CAMILLE PAGLIA, VAMPS AND TRAMPS: NEW ESSAYS 107 (1994) (titling one chapter "The Return of Carry Nation: Catharine MacKinnon and Andrea Dworkin"); CHRISTINA H. SOMMERS, WHO STOLE FEMINISM? HOW WOMEN HAVE BETRAYED WOMEN 275 (1994) (foretelling the demise of the "gender feminism" of Susan Faludi, Gloria Steinern, and others, in favor of a new wave of "equity feminism" that wisely abanE dons "militant gynocentrism and misandrism").
66. Dworkin and MacKinnon have been so widely mocked and challenged that a Time magazine writer referred to them as the A1 Sharpton and Louis Farrakhan of the women's movement. Lance Morrow, Men: Are They Really That Bad?, TIME, Feb. 14, 1994, at 52, 58 (also noting that MacKinnon and Dworkin are "convenient targets for antifeminists"). Many writers put themselves forward as new, revisionist feminists, who would cure the excesses of their predecessors. See, e.g., RENE DENFIELD, THE NEW VICTORIANS: A YOUNG WOMAN'S CHALLENGE TO THE OLD FEMINIST ORDER 10-11 (1995) (arguing that young women are abandoning the women's movement because it clings to an oppressive vision of womanhood); CAMILLE PAGLIA, VAMPS AND TRAMPS: NEW ESSAYS 107 (1994) (titling one chapter "The Return of Carry Nation: Catharine MacKinnon and Andrea Dworkin"); CHRISTINA H. SOMMERS, WHO STOLE FEMINISM? HOW WOMEN HAVE BETRAYED WOMEN 275 (1994) (foretelling the demise of the "gender feminism" of Susan Faludi, Gloria Steinern, and others, in favor of a new wave of "equity feminism" that wisely abanE dons "militant gynocentrism and misandrism").
67. John Stuart Mill adverted to the complexity of "liberty" when he wrote that "when society is itself the tyrant - society collectively over the separate individuals who compose it - its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates." J.S. MILL, ON LIBERTY 4 (Blackwell's 1948) (1859).
68. See, e.g., ALLEN & ADLER, supra note 21, at 18-19, 22-23 (explaining that the non-smokers' rights movement has achieved legislative successes, even in the face of the powerful tobacco lobby, because there is no cognizable right to smoke).
69. In this sense debates over melioristic law reform resemble the discourse about political correctness, voluminously reported in the media during the early 1990s, when representatives of each side called themselves beleaguered and their opponents tyrannical. For a compilation of essays supporting and opposing "political correctness," particularly in educational settings, see DEBATING P.C.: THE CONTROVERSY OVER POLITICAL CORRECTNESS ON CAMPUSES 1 (Paul Berman ed., 1992) (attributing the first shot in the debate to a 1990 New York Times article).
70. This tension in the feminist anti-pornography movement appears as a constitutional dilemma: First Amendment-type freedom to produce and consume pornography thwarts women's efforts at gaining full political, social, and economic equality. MACKINNON, supra note 17, at 166 ("Equality for women is incompatible with a definition of men's freedom that is at our expense.").
71. See JACOBSON ET AL., supra note 2, at 16-17 (calling this tactic "clearly more effective than continued reliance on contesting the scientific evidence"). For an attack on this counterreform device, see EVERINGHAM & WOODWARD, supra note 23, at 26 (reprinting sections of an advertisement published by the Tobacco Institute claiming "little evidence and nothing which proves scientifically that cigarette smoking causes disease in non-smokers").
72. Nadine Strossen described the feminist-libertarian opposition: We adamantly oppose any effort to restrict sexual speech not only because it would violate our cherished First Amendment freedoms . . . but also because it would undermine our equality, our status, our dignity, and our autonomy. NADINE STROSSEN, DEFENDING PORNOGRAPHY: FREE SPEECH, SEX AND THE FIGHT FOR WOMEN'S RIGHTS 14 (1995); see also id. at 59-106 (describing ACLU efforts); SUSAN M. EASTON, THE PROBLEM OF PORNOGRAPHY: REGULATION AND THE RIGHT TO FREE SPEECH 71 (1994) (describing the efforts of the Feminist Anti-Censorship Task Force ("FACT"), and likening the feminist anti-pornography campaign to the fatwa against Salman Rushdie).
73. Nadine Strossen described the feminist-libertarian opposition: We adamantly oppose any effort to restrict sexual speech not only because it would violate our cherished First Amendment freedoms . . . but also because it would undermine our equality, our status, our dignity, and our autonomy. NADINE STROSSEN, DEFENDING PORNOGRAPHY: FREE SPEECH, SEX AND THE FIGHT FOR WOMEN'S RIGHTS 14 (1995); see also id. at 59-106 (describing ACLU efforts); SUSAN M. EASTON, THE PROBLEM OF PORNOGRAPHY: REGULATION AND THE RIGHT TO FREE SPEECH 71 (1994) (describing the efforts of the Feminist Anti-Censorship Task Force ("FACT"), and likening the feminist anti-pornography campaign to the fatwa against Salman Rushdie).
74. See Rupert Cornwell, Out of America: Land of the Free Besotted by Tight Drink Law, THE INDEPENDENT (London), Nov. 3, 1993, at 15 (speculating that the high drinking age may be a holdover from Prohibition, an expression of American puritanism, or a quid pro quo for a lower driving age).
75. See DWORKIN, supra note 29, at 224 ("We will know that we are free when the pornography no longer exists."); cf. Marianne Wesson, Sex, Lies and Videotape: The Pornographer as Censor, 66 WASH. L. REV. 913, 918 (1991) (observing the "significant incidence of . . . instrumental uses of pornography as a tool of coercion, intimidation, and abuse" against women, namely by sex offenders).
76. See Castano v. American Tobacco Co., 870 F. Supp. 1425 (E.D. La. 1994) (alleging that industry altered and misdescribed the nature of tobacco in cigarettes); Irene Scharf, Breathe Deeply: The Tort of Smokers' Battery, 32 HOUS. L. REV. 615 (1995) (arguing that exposure to cigarette smoke can constitute intentional harmful contact).
77. But see Dean R. Gerstein, Alcohol Use and Consequence, in ALCOHOL AND PUBLIC POLICY, supra note 3, at 182, 216-18 (concluding that little recent evidence supports the "imagery that pits drinking against the family," and noting a positive correlation between consumption and income).
78. See generally DAVID BOLLIER & JOAN CLAYBROOK, FREEDOM FROM HARM: THE CIVILIZING INFLUENCE OF HEALTH, SAFETY AND ENVIRONMENTAL REGULATION at vii (1986) (characterizing the "freedom of victims" as morally superior to the "corporate taxonomy" that emphasizes the costs of regulation); BURTON A. WEISBROD ET AL., PUBLIC INTEREST LAW: AN ECONOMIC AND INSTITUTIONAL ANALYSIS (1978) (reconciling economic-analysis perspectives with the goals of public interest law).
79. See generally DAVID BOLLIER & JOAN CLAYBROOK, FREEDOM FROM HARM: THE CIVILIZING INFLUENCE OF HEALTH, SAFETY AND ENVIRONMENTAL REGULATION at vii (1986) (characterizing the "freedom of victims" as morally superior to the "corporate taxonomy" that emphasizes the costs of regulation); BURTON A. WEISBROD ET AL., PUBLIC INTEREST LAW: AN ECONOMIC AND INSTITUTIONAL ANALYSIS (1978) (reconciling economic-analysis perspectives with the goals of public interest law).
80. To some writers, for example, law reform is "part of the inevitable reproduction of the 'order of things'," LACOMBE, supra note 1, at 9 (internal citation omitted); the state constructs social problems and then proffers law reform as their solution, with the aim of achieving greater control. Id. at 10. The apparent pluralism behind melioristic law reform is illusory to those who find a centralizing ideology behind institutions such as schools, the family, and neighborhoods. See STANLEY COHEN, VISIONS OF SOCIAL CONTROL: CRIME, PUNISHMENT AND CLASSIFICATION 77 (1985). Others contend that citizens' power to achieve change is absolutely bounded by caste, "the original sin of superstratification." DON MIXON, OBEDIENCE AND CIVILIZATION: AUTHORIZED CRIME AND THE NORMALITY OF EVIL 65, 73 (1989). Antipluralism, in this descriptive sense, also exists on the right and center-right, most conspicuously in economics-tinged political theory. To take an example from the antiliquor chronicles, one explanation of both Prohibition and Repeal vigorously rejects sociological theses to contend that both the banning and unbanning of the sale of liquor were done to increase tax revenues. Donald J. Bourdreaux & A.C. Pritchard, The Price of Prohibition, 36 ARIZ. L. REV. 1, 2-3 (1994). Similarly, public choice theory, and perhaps rational choice theory as well, is committed to the notion that people have differing tastes, which sounds like pluralism in its description yet conflicts with my claims about the functions of idealism and self-sacrifice in melioristic law reform.
81. To some writers, for example, law reform is "part of the inevitable reproduction of the 'order of things'," LACOMBE, supra note 1, at 9 (internal citation omitted); the state constructs social problems and then proffers law reform as their solution, with the aim of achieving greater control. Id. at 10. The apparent pluralism behind melioristic law reform is illusory to those who find a centralizing ideology behind institutions such as schools, the family, and neighborhoods. See STANLEY COHEN, VISIONS OF SOCIAL CONTROL: CRIME, PUNISHMENT AND CLASSIFICATION 77 (1985). Others contend that citizens' power to achieve change is absolutely bounded by caste, "the original sin of superstratification." DON MIXON, OBEDIENCE AND CIVILIZATION: AUTHORIZED CRIME AND THE NORMALITY OF EVIL 65, 73 (1989). Antipluralism, in this descriptive sense, also exists on the right and center-right, most conspicuously in economics-tinged political theory. To take an example from the antiliquor chronicles, one explanation of both Prohibition and Repeal vigorously rejects sociological theses to contend that both the banning and unbanning of the sale of liquor were done to increase tax revenues. Donald J. Bourdreaux & A.C. Pritchard, The Price of Prohibition, 36 ARIZ. L. REV. 1, 2-3 (1994). Similarly, public choice theory, and perhaps rational choice theory as well, is committed to the notion that people have differing tastes, which sounds like pluralism in its description yet conflicts with my claims about the functions of idealism and self-sacrifice in melioristic law reform.
82. To some writers, for example, law reform is "part of the inevitable reproduction of the 'order of things'," LACOMBE, supra note 1, at 9 (internal citation omitted); the state constructs social problems and then proffers law reform as their solution, with the aim of achieving greater control. Id. at 10. The apparent pluralism behind melioristic law reform is illusory to those who find a centralizing ideology behind institutions such as schools, the family, and neighborhoods. See STANLEY COHEN, VISIONS OF SOCIAL CONTROL: CRIME, PUNISHMENT AND CLASSIFICATION 77 (1985). Others contend that citizens' power to achieve change is absolutely bounded by caste, "the original sin of superstratification." DON MIXON, OBEDIENCE AND CIVILIZATION: AUTHORIZED CRIME AND THE NORMALITY OF EVIL 65, 73 (1989). Antipluralism, in this descriptive sense, also exists on the right and center-right, most conspicuously in economics-tinged political theory. To take an example from the antiliquor chronicles, one explanation of both Prohibition and Repeal vigorously rejects sociological theses to contend that both the banning and unbanning of the sale of liquor were done to increase tax revenues. Donald J. Bourdreaux & A.C. Pritchard, The Price of Prohibition, 36 ARIZ. L. REV. 1, 2-3 (1994). Similarly, public choice theory, and perhaps rational choice theory as well, is committed to the notion that people have differing tastes, which sounds like pluralism in its description yet conflicts with my claims about the functions of idealism and self-sacrifice in melioristic law reform.
83. Professor Lacombe suggests that any theory of the melioristic possibilities of law reform must necessarily grapple with the work of Foucault, who understood the concept of reform as social control disguised as change. Not surprisingly, Lacombe finds in Foucault both refutation of and support for her claims. LACOMBE, supra note 1, at 10 (finding Foucault's definition of reform inconsistent with his descriptions of resistance and the emergence of nontraditional values).
84. See RANDALL, supra note 34, at 220-21 (explaining why prosecution of obscenity crimes is seldom used to control pornography). Moreover, those convicted on obscenity charges often receive only a minimal sentence. 1986 ATT'Y GEN. COMM'N FINAL REP. 370-71.
85. See American Booksellers Assn., Inc. v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986) (holding the statutory definition of pornography unconstitutional because it discriminates on the basis of viewpoint).
86. See STROSSEN, supra note 48, at 15; Jeffrey G. Sherman, Love Speech: The Social Utility of Pornography, 47 STAN. L. REV. 661, 662 (1995) (arguing that gay male pornography should be valued as a social good because it enables its consumers "to lead fulfilling lives").
87. See, e.g., JANE MAYER & JILL ABRAMSON, STRANGE JUSTICE: THE SELLING OF CLARENCE THOMAS 271, 329-30 (1994) (reporting the horrified reaction of Clarence Thomas to accusations that he was an avid consumer of pornography); Sherman, supra note 58, at 685 (suggesting that such dissociation causes psychological harms).
88. Hudnut, 771 F.2d at 329-30 (conceding arguendo that pornography is as harmful as feminist activists claim); accord ATT'Y GEN. COMM'N, supra note 56, at 324-26 (acknowledging causal relationship between exposure to sexually violent pornography and aggressive behavior towards women). But see LACOMBE, supra note 1, at 81-83 (summarizing conclusions of Canada's Fraser Committee, including its dismissal of the anti-pornography women's movement's claim that violent pornography leads to aggression against women).
89. Special Project, supra note 16, at 1108 (discussing a state court case in which the court limited social host liability to situations when the host directly served the guest); Wiley, supra note 41, at B1 (alluding to Candy Lightner's differences with MADD).
90. LACOMBE, supra note 1, at 139.
91. Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515, 543 (1982) (noting that feminist method seeks to reconstitute experience as theory).
92. On the one hand, consider Medicare savings attributable to premature death, tax revenues, symbolic support of a unifying cultural symbol, and a tame outlet for mild rebelliousness; on the other hand, tobacco subsidies, grave losses in productivity and national health, and the coercive and punishing effects of smoke onto citizens who do not choose it.
93. This is so unless one agrees with MacKinnon's angry suggestion that nearly every political agent not enrolled in her cause is simply a pimp or a collaborator. See MACKINNON, supra note 17, at 204-05 (mentioning feminist lawyers and the ACLU).
94. See Chantal Mouffe, Democratic Citizenship and the Political Community, in RADICAL DEMOCRACY, supra note 12, at 225, 231 (arguing that ideals of citizenship can be consistent with "the priority of the right over the good"); SUSAN M. OKIN, WOMEN IN WESTERN POLITICAL THOUGHT 282 (1992) (arguing that the liberalism/ communitarianism dichotomy, frequently noted in the 1980s, misdescribes liberalism); Quentin Skinner, The Idea of Negative Liberty: Philosophical and Historical Perspectives, In PHILOSOPHY IN HISTORY 193, 202-08 (Richard Rorty et al. eds., 1984) (citing Machiavelli, among others, to contend that modern concepts of liberty are compatible with civic engagement and virtue).
95. See Chantal Mouffe, Democratic Citizenship and the Political Community, in RADICAL DEMOCRACY, supra note 12, at 225, 231 (arguing that ideals of citizenship can be consistent with "the priority of the right over the good"); SUSAN M. OKIN, WOMEN IN WESTERN POLITICAL THOUGHT 282 (1992) (arguing that the liberalism/ communitarianism dichotomy, frequently noted in the 1980s, misdescribes liberalism); Quentin Skinner, The Idea of Negative Liberty: Philosophical and Historical Perspectives, In PHILOSOPHY IN HISTORY 193, 202-08 (Richard Rorty et al. eds., 1984) (citing Machiavelli, among others, to contend that modern concepts of liberty are compatible with civic engagement and virtue).
96. See Chantal Mouffe, Democratic Citizenship and the Political Community, in RADICAL DEMOCRACY, supra note 12, at 225, 231 (arguing that ideals of citizenship can be consistent with "the priority of the right over the good"); SUSAN M. OKIN, WOMEN IN WESTERN POLITICAL THOUGHT 282 (1992) (arguing that the liberalism/ communitarianism dichotomy, frequently noted in the 1980s, misdescribes liberalism); Quentin Skinner, The Idea of Negative Liberty: Philosophical and Historical Perspectives, In PHILOSOPHY IN HISTORY 193, 202-08 (Richard Rorty et al. eds., 1984) (citing Machiavelli, among others, to contend that modern concepts of liberty are compatible with civic engagement and virtue).
97. MARY ANN GLENDON, A NATION UNDER LAWYERS: How THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY 267 (1994).
98. De Tocqueville observed: The spirit of the law, born within schools and courts, spreads little by little beyond them; it infiltrates through society right down to the lowest ranks, till finally the whole people have contracted some of the ways and tastes of a magistrate. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 270 (George Laurence trans., J.P. Mayer ed., 1969) (1835-1840).
99. See id. 257-79 (labeling American society "One Vast School of Law").
100. Most of Glendon's book attacks the proliferation of lawsuits and legalism generally. GLENDON, supra note 67, at 3 ("our law-dependent polity"); id. at 221 (noting critically "an increase in the demand for judicial services") (internal citation omitted); id. at 275 (blaming "legal opinion leaders" for "peddling an idea of law that promised too much"). But near the end of A Nation Under Lawyers she appears to retreat: What is problematic is not the amount so much as the quality of the new law that is being produced; not the number of lawyers so much as the way they imagine their roles; not the rise in litigation so much as the peculiar uses to which the courts are being put. Id. at 274. Elsewhere she simply alludes to malaise. See, e.g., id. at 14 (noting the "great sadness" of contemporary American lawyers).
101. As the political scientist Anna-Maria Marshall has pointed out to me in conversations, Gerald Rosenberg is similarly shortsighted in The Hollow Hope, where he argues that because celebrated Supreme Court decisions like Brown v. Board of Education, 347 U.S. 483 (1954), and Roe v. Wade, 410 U.S. 113 (1973), have had only partial success in furthering the goals of social reformers who brought these cases, it has been demonstrated that "the courts" cannot "bring about social change." ROSENBERG, supra note 5, at 82. Even if Rosenberg's empirical findings are complete and correct (a debated point), law reform movements are not summed up, or encapsulated, in one famous case. The civil rights movement, for instance, used crime, tort, and extralegal sanctions in thousands of settings, and the phrase "Brown v. Board of Education" is often only shorthand, or synecdoche.
102. Andrea Dworkin also mentions Women Against Violence in Pornography and Media Women Against Violence Against Women, People Against Pornography, Feminists Against Pornography, and Women Against Sexist Violence in Pornography and Media. DWORKIN, supra note 29, at 225-26.
103. On FACT, see Nan D. Hunter & Sylvia A. Law, Brief Amici Curiae of Feminist Anti-Censorship Task Force et al., in American Booksellers Association, Inc. v. Hudnut, 21 U. MICH. J. L. REF. 69, 69-75 (1988) (providing history of the organization).
104. See CAROL SMART, FEMINISM AND THE POWER OF LAW 139 (1989) (contending that women's "demand for legal rights is now problematic"); Marianne Wesson, Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography as Speech and Product, 60 U. CHI. L. REV. 845, 871 (1993) (observing the reservations of many feminists about using "male-originated power against continuing male dominance and violence"). Margaret Atwood's celebrated feminist dystopia, The Handmaid's Tale, may be read as an allegory about the same harm to women. Wesson, supra at 848 (interpreting the novel as a critique of the feminist anti-pornography movement).
105. See CAROL SMART, FEMINISM AND THE POWER OF LAW 139 (1989) (contending that women's "demand for legal rights is now problematic"); Marianne Wesson, Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography as Speech and Product, 60 U. CHI. L. REV. 845, 871 (1993) (observing the reservations of many feminists about using "male-originated power against continuing male dominance and violence"). Margaret Atwood's celebrated feminist dystopia, The Handmaid's Tale, may be read as an allegory about the same harm to women. Wesson, supra at 848 (interpreting the novel as a critique of the feminist anti-pornography movement).
106. See Faust Note, supra note 3, at 772-73. More specific objections have been aimed at some drunk-driving laws, whose per se rules about blood alcohol levels make it impossible in many cases for drivers to know whether they are violating the law, and thus constrain behavior in an unprincipled way. See Philip J. Cook, A Sociolegal Problem, SCI., Jul. 29, 1988, at 603, 603 (reviewing SOCIAL CONTROL OF THE DRINKING DRIVER (Michael D. Laurence et al., eds. 1988)).
107. See WEISBROD, supra note 53, at 404-05 (discussing third-party effects of economic behavior).
108. See LACOMBE, supra note 1, at 151 (describing the Enlightenment affinity for defining social systems with reference to the "rights of man").
109. See generally Maria Okonska, Legal Aspects of Passive Smoking: An Annotated Bibliography, 86 LAW LIBR. J. 445 (1994) (cataloguing major works, including EPA study and seminal research first published in New England Journal of Medicine).
110. See Chad Rubel, Why Dog It? Trains Are Better, MARKETING NEWS, Feb. 13, 1995, at 9 (arguing that although Amtrak is castigated as a socialistic failure, it is the federal highway system that deserves this opprobrium).
111. See Sheldon Wolin, What Revolutionary Action Means Today, in RADICAL DEMOCRACY, supra note 12, at 240, 242-44 (describing stasis in American politics, traceable to the founding documents of the United States).
112. See LACOMBE, supra note 1, at 138 (asserting that individual anti-pornography advocates, acting as social agents, formed "new collective identities," and evidence "the enabling quality of the law reform process").
113. See supra notes 69-71 and accompanying text (alluding to feminist division and regrouping over pornography); cf. Lawrence Rand, A Different Road, CHI. TRIB., Feb. 22, 1995, § 5, at 1, 5 (describing Quad A, a spinoff of Alcoholics Anonymous oriented away from religion and offering "a feminine approach to alcoholism"). A class-action lawsuit by nonsmoking flight attendants against cigarette sellers has brought together a group of similarly-situated workers for whom unionization has not been completely successful. Broin v. Philip Morris Co., Inc., 641 So.2d 888 (Fla. App. 1994) (remanding with instructions to reinstate the class).
114. Wolin, supra note 80, at 251-52.
115. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 685 (1990) (Scalia, J., dissenting) (characterizing the distinction as "entirely irrational").
116. Following a suggestion from my colleague Richard Hasen, I am alluding to campaign finance law. In Austin, where Scalia did not prevail, the Supreme Court upheld a statute limiting corporate campaign expenditures, distinguishing corporations from human persons for this purpose. 494 U.S. at 659-60. Explorations of this problem include Federal Election Comm'n v. National Right to Work Comm., 459 U.S 197, 207 (1982) (noting the concern that corporations might exact promises from legislators via strategic use of "war chest" funds); see also CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 209 (1993) (characterizing the constitutional standard for corporate speech as "especially ill-developed").