Lieberman, Jethro K.

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digitalcommons.nyls.eduFaculty Scholarship Other Publications1981Book Review of Partisan Justice, by Marvin E.Frankel.Jethro K. LiebermanNew York Law School, jethro.lieberman@nyls.eduFollow this and additional works at: http://digitalcommons.nyls.edu/fac_other_pubsPart of the Legal Profession CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion inOther Publications by an authorized administrator of DigitalCommons@NYLS.Recommended Citation27 New York Law School Law Review 695–697 (1981).PARTIsAN JUSTICE. By Marvin E. Frankel, New York, New York: Hilland Wang, 1980. Pp. IX,134.Reviewed by Jethro K. Lieberman*In our adversary culture, it is only to be expected that one targetof attack will be the very fact of adversariness. Critics are many; somehave fashioned scathing, venomous assaults on the adversary practiceand even its theoretical principle." Almost invariably, these critics sug-gest as remedy a wholesale reformation and reorientation of the justicesystem, motivated by an Eastern vision of social harmony and self-crit-icism - "China chic." They seem to conclude that all will be well if wecould, as a society, sit down and, as Lyndon Johnson was fond of quot-ing, "reason together." They do not dwell on the price. Indeed, thesingular strength of the adversary system is measured by a central factthat is usually deplored: The overwhelming majority of those accusedin American courts are guilty. Why is this strength? Because its oppo-site, visible in many totalitarian nations within the Chinese and Rus-sian orbits, is this: Without an adversary system, a considerable num-ber of defendants are prosecuted, though palpably innocent. And noone would claim, I daresay, that a system is fairer or better that man-ages to do that. In short, the strength of the adversary system is not somuch that it permits the innocent to defend themselves meaningfully,but that in the main it prevents them from having to do so.This strength is, however, also a weakness. Only because defenselawyers are independent of the state and the ruling political partiesand are permitted, even encouraged, to defend fiercely and partisanlydo we ensure that the state will be loath to indict those whom it knowsto be innocent. This result, the good and proper result, is largely invisi-ble. We rarely see who is not indicted, we never see those whom a pros-ecutor, or even a governor or president might like to prosecute but can-not. By contrast, the visible result is usually ugly: We see the class ofcriminal defendants, largely guilty, in whose behalf defense lawyerswill exert every strategem to defeat the state's case. These strategemsare always irritating, frequently unseemly and seedy, and sometimesdownright dangerous to the public at large.The issue is, then, whether attempts to reform the adversary sys-tem as practiced - the browbeating and humiliation of witnesses, thesuppression of facts, and, on the civil side, the interminable delays and*Legal Affairs Editor, Business Week. B.A. 1964, Yale University; J.D. 1967, HarvardLaw School.1. See, e.g., A. STRICK, INJUSTICE FOR ALL (1977).NEW YORK LAW SCHOOL LAW REVIEWabuse of discovery -will dilute and ultimately destroy it. In otherwords, is it impossible to be "a little bit less adversary," as it is to be"a little less pregnant"?This is the question that Marvin E. Frankel, former United StatesDistrict Judge, Columbia Law School professor, and now practicing at-torney, addresses in his admirably succinct and elegantly written essay,Partisan Justice.2 After thirteen years, some of them evidently exas-perating, on the bench in the Southern District of New York, Frankelwonders whether we can as a society tolerate a system in which practi-tioners frequently make a mockery of the ideal embodied in the word"justice." This is, however, no simple-minded analysis, as anyone fa-miliar with the literature will know.3 He does not condemn the adver-sary system as an abstraction, does not propose its abolition, does notrecommend excluding anyone from its protective mantle. He does sug-gest that "the finer forms of dirty tricks have not over the centuriesserved on balance to further the worthy ends of the masses of people"4Some half the book is an adroit summary of the deficiencies of theadversary system as practiced. In Frankel's view, the system pits notonly the parties and the lawyers against each other, but also the judgeagainst all. The author proposes to cure the distortions the system en-genders by changing some of the rules of professional conduct. He citessome that he helped develop as a member of the American Bar Associ-ation's Commission on Evaluation of Professional Standards (theKutak Commission).5 One rule, for example, would require the lawyerto refrain from participating in the introduction of evidence known tobe false or substantially misleading. So seemingly simple and straight-forward a rule has prompted howls of alarm from the bar since thebook was published, however, and the Kutak Commission has a doggedfight on its hands to sell even a watered-down version to the ABAHouse of Delegates in Febryary, 1983.In the criminal arena, Frankel suggests a new social contract:Abandon the "fiction" of Miranda v. Arizona6 that suspects can "intel-ligently" waive their rights to be questioned without counsel and pro-vide lawyers to all people taken into custody; let them, furthermore, bequestioned "before," or possibly "by," an impartial magistrate.7 At the2. M. FRANKEL, PARTISAN JUSTICE (1980).3. The book is largely drawn from articles previously published and widely noted,usefully edited into a cohesive whole. Id. See Frankel, The Adversary Judge, 54 Tsx. L.REv. 465 (1976); Frankel, The Search for Truth: An Umpireal View, 123 U. PA. L. REV.1031 (1975).4. Id. at 7.5. Id. at 80.6. 384 U.S. 436 (1966).7. M. FRANKEL, PARTISAN JUSTICE 98 (1980)..[Vol. 27BOOKS REVIEWEDsame time, permit the prosecution later to comment on a defendant'srefusal to answer questions and "to argue (for example) that a storygiven by the defendant at that subsequent time should be found to befabricated." 8 Frankel also suggests re-examining our, theoretically,highly punitive sentences, which add considerable pressure to defenselawyers to get their client off by any means fair or foul.In the civil arena, Frankel tackles the jury trial in complex cases,the cumbersome rules of evidence that make it sometimes impossiblefor a jury to follow the logic of testimony, the fetish of the "continuouslive trial,"' and also briefly argues for a host of alternatives to thecourts themselves. He concludes by recommending a greatly-enlargedLegal Services Corporation (LSC), which he would rename the Na-tional Legal Service to supply "to anyone who applies the assistance ofcounsel paid (or paid for) by the community."10 These words were pub-lished in 1980. Two years later, the LSC, a vehicle now open only tothe indigent, is fighting for its life.Partisan Justice is eloquent and crisp; as a summary of the issueit is an exceedingly useful guide. But it provides no blueprint, no battleplan. Ultimately it is a precis or preface. It does not analyze the pres-sures that would beset the practitioner in an altered system, the forceof the tremors that changes in the codes governing practice would setin motion, or the imbalances that would be struck. For example, woulda requirement that lawyers not mislead a court in ways now allowed beobserved or enforceable; reassure the public or defendants; force moreplea bargains or fewer? Would such a change lead some attorneys toretire from practice and others to enter; or would it increase or de-crease the number of fair-minded and honorable law school graduateswho become assistant prosecutors? Questions such as these Frankelfails to analyze adequately. None of this is to say that Frankel iswrong; only that what he has most usefully provided is assertion, notproof.8. Id. at 98-99.9. Frankel believes courts ought to experiment with videotape, as some have begun todo. Id. at 109.10. Id. at 124.1981]

Book Review of Partisan Justice, by Marvin E. Frankel.

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Book Review of Partisan Justice, by Marvin E. Frankel.

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