TWO BOOKS CRITIQUE U.S. LEGAL SYSTEM

"In our history, racism has clearly made it too easy to convict people. But
it can also make it too hard. ~he man who raped me when I was 21 deserved
to be punished without regard to race or racism. Whatever happened to him
in his life, he was still responsible for what he did to me."

At once coolly analytical and emotionally supercharged, it is an
extraordinary statement, especially because of who said it: Susan Estrich.
In 1988, she was the national manager of the Michael Dukakis presidential
campaign, doomed by the candidate's soft-on-crime shrug after a black
murderer named Willie Horton, enjoying a weekend pass from a Massachusetts
prison, violently raped a Maryland woman.

Now a law professor at the University of Southern California, Esirich
serves up more surprises in her new book, "Getting Away With Murder: How
Politics Is Destroying the Criminal Justice System" Harvard University
Press, 161 pages, $19.95). Surveying the post-O.J. Simpson legal landscape
with acuity, she covers much of the same territory as Colorado law
professor Paul F. Campos in his new book, "Jurismania: The Madness of
American Law" (Oxford University Press, 198 pages, $23). While Estrich Is
not as cheerfully iconoclastic as Campos - legal academics, he says,
inhabit "an irony-free zone" - they share common, sometimes startling,
insights.

For example, Estrich, long a liberal's liberal, admits that a central
objection to the death penalty (disparate racial impact) "doesn't even
persuade me anymore," and reflects the currently fashionable "abuse
excuses" claimed by battered wives and children. Campos, coming from
everywhere on the political spectrum, contends that law professors of a
certain age suffer from a collective case of arrested emotional
development" in their continuing worship of the Warren Court.

American jurisprudence, these books suggest, has become so dysfunctional
that the old liberal-conservative labels have lost their meaning. It's not
yet clear where the new lines will be drawn. But when the stones crashing
through the windows of legal academia are being tossed not by the
lawyer-hating public, but rather by two respected members of the
priesthood, the legal elites inside and everywhere should not only take
cover, but take note.

Picking through the vast tangled web of American jurisprudence, both
authors conclude that the law that seems to be working best is the law of
unintended consequences. In a chapter titled "The Long Shadow of Willie
Horton," Estrich argues that mandatory sentences have Americans spending
"more and more money locking up less and less violent people." Moreover,
some of the most violent criminals are actually freed by mandatory
sentencing laws, when courts or legislatures move to reduce the prison
overcrowding they cause.

The mania to regulate all human interaction, driven by legal theories
Campos calls "a form of mental illness," has led to the absurdity' that the
same act may be at once protected and prohibited. For example, a T-shlrt
with a sexist slogan worn by an employee is protected under the First
Amendment, and also actionable for creating a hostile environment.

On some issues, these books almost echo each other. For example, Estrich on
the politics of crime: Today, Democrats outdo themselves to prove that they
are just as tough as Republicans. Everyone has learned the lesson of Willie
Horton. No one tells the truth, and the political dishonesty is distorting
and destroying the system."

Campos on Clinton "cracking down" on drugs already illegal under previous
laws: "It would in truth make more sense for the President to announce he
has undertaken to perform a ritualistic dance, designed to drive away the
evil drug spirits. After all, It is just conceivable, empirically speaking,
that the Evil Drug Spirit Dance might work. We know the legislation isn't
going to work."

Checked-by: (Joel W. Johnson)