REVIEWSrnSlender Threads ofrnLibertyrnby Steven H. AdenrnThe Tyranny of Good Intentions:rnHow Prosecutors and BureaucratsrnAre Trampling the Constitutionrnin the Name of Justicernby Paul Craig Roberts andrnLawrence M. StrationrnRoseville, California: Prima Publishing;rnm pp., $24.95rnAlthough Paul Craig Roberts, a nationallyrnsyndicated columnist andrnHoover histitution fellow, and LawrencernM. Stratton, a fellow of the Institute forrnPolitical Economy, are trained in economicrnand legal analysis, they have writtenrna book that seeks to appeal to civicrnvirtue at the popular level. They do sornmainly by weaving together dozens ofrnanecdotes and case studies into a narrativernof governmental abuse of power thatrnpacks an emotional, as well as intellectual,rnpunch.rnThe authors’ thesis is that America isrnslipping into tyranny because Americansrnhave forgotten the importance of holdingrngovernment accountable to law, and becausernthey have become “emotionallyrnand intellectually disconnected from thernlong struggle to establish the people’srnsovereignty over the law.” The first thirdrnof the book traces the rise and fall of thernrule of law in English and American jurisprudence,rnbeginning with the “Rightsrnof Englishmen”: a common-law conceptrnof natural rights that predates our ownrnBill of Rights. These rights, includingrnthe right to property, the prohibition onrnretroactive liability, and the right againstrnself-incrimination, were established centuriesrnago in Alfred the Great’s codificationrnof the common law (circa A.D. 800)rnand the Magna Carta of 1215; in 21strncentury America, they are being underminedrnby a growing public demand forrnlaw and order. Roberts’ and Stratton’s examplesrnof this worrisome trend are wellrnresearched and moving. For instance,rnthey first take issue with the rise in “strictrnliability” crimes—crimes that do not requirernproof of malicious intent or evilrnmotive. They cite, among other cases,rnthe prosecution of Exxon for the PrincernWilliam Sound oil spill in 1989 and thatrnof Charles Keating for misrepresentationsrnmade by salesmen during thernsavings-and-loan scandal. Exxon wasrncharged with questionable violations ofrnlaws that were not intended to apply tornunintentional conduct, including dischargingrnhazardous substances andrnkilling migratory birds without a permit.rnAlthough President Bush’s attorney general,rnRichard Thornburgh, acknowledgedrnthat the felony charges made “arnunique case which requires some innovativernlegal approaches,” Exxon pledrnguilty and paid a $125 million fine tornavoid a risky trial and the possibility of farrngreater damages. Likewise, Keating wasrnindicted and tried under the “novel legalrntheory” that he was criminally liable forrnfraudulent representations made by hisrnbond salesmen, despite his having beenrnunaware of them. After-four-and-a-halfrnyears in prison, Keating was freed by arnfederal judge who held that his convictionrnviolated the constitutional prohibitionrnagainst ex post facto laws.rnRoberts and Stratton argue that justicernis the goal of the legal system. Wisely,rnthey do not hazard a definition of “justice”;rnlike Pilate’s “truth,” notions of justicernare largely in the eye of the beholder.rnTwo thousand years of Western jurisprudencernhave not improved on the Romanrnjurist Justinian’s adage that “Justice is thernfirm and continuous desire to render tornevery man that which is his due.” The dialoguernbreaks down over what is due to us.rnChief Judge Richard Posner of thernSeventh Circuit Court of Appeals, a leadingrneconomic legal theorist of the ChicagornSchool, observes that the most commonrnmeaning of the word “justice” isrnefficiency. “When people describe asrnunjust convicting a person without a trial,rntaking property without just compensation,rnor failing to make a negligent automobilerndriver answer in damages to thernvictim of his negligence, this meansrnnothing more pretentious than that thernconduct wastes resources.” But efficiencyrndoes not explain many of society’s oldestrnprohibitions. Posner notes that it isrnnot obviously inefficient to allow suicidernpacts, to force people to give self-incriminatingrntestimony, or to flog prisoners, butrnthese acts offend the sense of justice ofrnmany Americans and are consequentlyrnillegal. “[T]here is more to justice thanrneconomics,” he concludes. “There mayrnwell be definite although wide boundariesrnon both the explanative and reformativernpower of economic analysis ofrnlaw.” The impact of Roberts’ and Stratton’srnargument lies in the fact that the authors,rnalthough skilled economists, havernnonetheless refrained from viewing everyrncorruption of power as an economicrnproblem with an efficient solution. Instead,rnthey use economic theor)’ as a toolrnto prove that the optimal legal system isrnone that maximizes the efficient searchrnfor truth.rnThe authors admirably stand up to thernprevailing winds of postmodern relativismrn(or, more accurately, spit intornthem) by emphatically declaring, “Thernfunction of justice is to serve truth. . . .rnConsequently, the foremost task of a justicernsystem is to establish the truth or falsityrnof the charges levied against the accused.”rnRoberts and Stratton take thernquest for truth, expressed as factual accuracy,rnas their moral compass while theyrnnavigate the darkening thickets of thernlaw. They contend that plea bargainingrncorrupts because it severs prosecutionrnfrom its proper emphasis on the factualrnaccuracy of the charges a suspect pleadsrnto, thereby reducing public confidencernin the justice of the sentences imposed.rnForcing attorneys to divulge their clients’rnsecrets under threat of prosecution, as inrnthe case of Charles Keating’s law firm,rnwhose 400 lawyers each had his personalrnassets frozen by federal prosecutors asrn”abettors” to Keating’s alleged fraud, corruptsrnbecause, without the security affordedrnthe accused by attorney-clientrnprivilege, defendants are loath to tellrntheir whole story to their counsel; the outcomernis “convictions resulting from arnlack of access to legal knowledge, notrnfrom wrongdoing.”rnRoberts and Stratton are cleady out tornprove their case; they do it well, making,rnalong the way, some gutsy and highly entertainingrnclaims. “Junk bond” financierrnMichael Milken was jailed on nonexistentrncriminal charges. Hoteliere LeonarnHelmsley was a “victim of Rudolph Giuliani’srnambitions,” convicted on the basisrnof suborned perjury. J. Edgar Hoover wasrnNOVEMBER 2000/29rnrnrn