Although Paul Craig Roberts, a nationally syndicated columnist and Hoover Institution fellow, and Lawrence M. Stratton, a fellow of the Institute for Political Economy, are trained in economic and legal analysis, they have written a book that seeks to appeal to civic virtue at the popular level. They do so mainly by weaving together dozens of anecdotes and case studies into a narrative of governmental abuse of power that packs an emotional, as well as intellectual, punch.

The authors’ thesis is that America is slipping into tyranny because Americans have forgotten the importance of holding government accountable to law, and because they have become “emotionally and intellectually disconnected from the long struggle to establish the people’s sovereignty over the law.” The first third of the book traces the rise and fall of the rule of law in English and American jurisprudence, beginning with the “Rights of Englishmen”: a common-law concept of natural rights that predates our own Bill of Rights. These rights, including the right to property, the prohibition on retroactive liability, and the right against self-incrimination, were established centuries ago in Alfred the Great’s codification of the common law (circa A.D. 800) and the Magna Carta of 1215; in 21st century America, they are being undermined by a growing public demand for law and order.

Roberts’ and Stratton’s examples of this worrisome trend are well researched and moving. For instance, they first take issue with the rise in “strict liability” crimes—crimes that do not require proof of malicious intent or evil motive. They cite, among other cases, the prosecution of Exxon for the Prince William Sound oil spill in 1989 and that of Charles Keating for misrepresentations made by salesmen during the savings-and-loan scandal. Exxon was charged with questionable violations of laws that were not intended to apply to unintentional conduct, including discharging hazardous substances and killing migratory birds without a permit. Although President Bush’s attorney general, Richard Thornburgh, acknowledged that the felony charges made “a unique case which requires some innovative legal approaches,” Exxon pled guilty and paid a $125 million fine to avoid a risky trial and the possibility of far greater damages. Likewise, Keating was indicted and tried under the “novel legal theory” that he was criminally liable for fraudulent representations made by his bond salesmen, despite his having been unaware of them. After-four-and-a-half years in prison, Keating was freed by a federal judge who held that his conviction violated the constitutional prohibition against ex post facto laws. Roberts and Stratton argue that justice is the goal of the legal system. Wisely, they do not hazard a definition of “justice”; like Pilate’s “truth,” notions of justice are largely in the eye of the beholder. Two thousand years of Western jurisprudence have not improved on the Roman jurist Justinian’s adage that “Justice is the firm and continuous desire to render to every man that which is his due.” The dialogue breaks down over what is due to us. Chief Judge Richard Posner of the Seventh Circuit Court of Appeals, a leading economic legal theorist of the Chicago School, observes that the most common meaning of the word “justice” is efficiency. “When people describe as unjust convicting a person without a trial, taking property without just compensation, or failing to make a negligent automobile driver answer in damages to the victim of his negligence, this means nothing more pretentious than that the conduct wastes resources.” But efficiency does not explain many of society’s oldest prohibitions. Posner notes that it is not obviously inefficient to allow suicide pacts, to force people to give self-incriminating testimony, or to flog prisoners, but these acts offend the sense of justice of many Americans and are consequently illegal. “[T]here is more to justice than economics,” he concludes. “There may well be definite although wide boundaries on both the explanative and reformative power of economic analysis of law.” The impact of Roberts’ and Stratton’s argument lies in the fact that the authors, although skilled economists, have nonetheless refrained from viewing every corruption of power as an economic problem with an efficient solution. Instead, they use economic theory as a tool to prove that the optimal legal system is one that maximizes the efficient search for truth.

The authors admirably stand up to the prevailing winds of postmodern relativism (or, more accurately, spit into them) by emphatically declaring, “The function of justice is to serve truth. . . . Consequently, the foremost task of a justice system is to establish the truth or falsity of the charges levied against the accused.” Roberts and Stratton take the quest for truth, expressed as factual accuracy, as their moral compass while they navigate the darkening thickets of the law. They contend that plea bargaining corrupts because it severs prosecution from its proper emphasis on the factual accuracy of the charges a suspect pleads to, thereby reducing public confidence in the justice of the sentences imposed. Forcing attorneys to divulge their clients’ secrets under threat of prosecution, as in the case of Charles Keating’s law firm, whose 400 lawyers each had his personal assets frozen by federal prosecutors as “abettors” to Keating’s alleged fraud, corrupts because, without the security afforded the accused by attorney-client privilege, defendants are loath to tell their whole story to their counsel; the outcome is “convictions resulting from a lack of access to legal knowledge, not from wrongdoing.”

Roberts and Stratton are clearly out to prove their case; they do it well, making, along the way, some gutsy and highly entertaining claims. “Junk bond” financier Michael Milken was jailed on nonexistent criminal charges. Hoteliere Leona Helmsley was a “victim of Rudolph Giuliani’s ambitions,” convicted on the basis of suborned perjury. J. Edgar Hoover was a misunderstood defender of civil rights who set “high standards” for FBI ethics. If their work has a flaw, it is the authors’ proclivity to pamphleteer rather than present a balanced, cogent case. Stratton and Roberts overstate their argument, and thereby weaken it, by parading their list of horribles as if there were no countervailing forces acting to restrain Leviathan, while eschewing discussion of those checks (principally in the form of fee-shifting provisions in actions brought by or against the United States) that do exist. For instance, one of the authors’ favorite statutory whipping boys—the Clean Water Act—includes a provision allowing judges to award reasonable litigation costs, including attorney and expert fees, “to any party, wherever the court determines such award is appropriate.” Also absent is any reference to the Equal Access to Justice Act passed to curb the litigious urges of the federal government. The act allows plaintiffs who prevail to be awarded fees and costs in civil actions brought by agencies and officials of the federal government if the citizen can prove the government’s position was not “substantially justified.” Congress passed the act to ameliorate the harsh common-law rule (derived from the ancient English jurisprudence of which the authors seem so fond) that the sovereign’s fisc is not liable to judicial levy.

And while Roberts and Stratton liberally quote Henry Hyde’s imprecations against civil-forfeiture abuses, that legislator’s crowning achievement on behalf of governmental accountability—the Hyde Amendment—extended the terms of the Equal Access to Justice Act to criminal enforcement actions brought by the federal government that are found to be “vexatious, frivolous, or in bad faith.” Recently, a federal court in Massachusetts levied Hyde Amendment sanctions against the Environmental Protection Agency for bringing false charges under the Clean Water Act against Riverdale Mills Corporation and its controlling shareholder and operations manager, James Knott. EPA agents had conducted an unannounced inspection at Riverdale Mills’ Northbridge, Massachusetts, plant, in 1997 to check pH levels in the plant’s wastewater discharge. Knott allowed them on the premises on the condition that he accompany them to test wastewater at the plant’s two testing manholes. The agents nonetheless took levels at one manhole surreptitiously, then returned twice with search warrants for further testing based upon the illegally obtained test results. Although pH levels at the first manhole, which was located on Riverdale Mills property, were substantially lower than the EPA’s minimum standard, the levels at the second manhole, on public property, were acceptable. The EPA chose to prosecute anyway, ignoring the fact that Riverdale was in compliance with EPA standards by the time its wastewater flowed onto public property. Worse, Riverdale had evidence that someone —presumably an EPA agent— had changed readings at the second manhole from acceptable to illegal levels. “In the absence of evidence of an illegal wastewater discharge into the public sewer at Manhole #2, the government persisted in the presentation of evidence to the Grand Jury,” federal judge Nathaniel M. Gorton wrote.

The defendants’ humiliation at being criminally prosecuted was intensified when the United States Attorney and the EPA issued a Press Release following the indictment which stated that [Riverdale Mills] and Knott were knowingly polluting the rivers of the Commonwealth.

Although the EPA dropped the charges after it became apparent that they could not substantiate their case, Judge Gorton held that the agency’s conduct was “clearly vexatious” and ordered the government to pay Riverdale nearly $70,000 in attorneys’ fees and costs. Thankfully, decisions like United States v. Knott are becoming more frequent; with the rising tide of federalism and respect for states’ rights evident in many recent Supreme Court decisions, there may yet be hope where some of the issues raised by the authors are concerned.

Roberts and Stratton conclude with a well-intentioned but sketchy few pages entitled “Prospects for Reform.” Their summation, while deceptively simple, is devastatingly accurate: “The plight of American democracy is beyond the reach of legal reform alone. . . . Without an intellectual rebirth, a revival of constitutionalism, there is no hope for American democracy.” That justice is the end of the law, and that the law emanates from the will of the people, are categorical imperatives that cannot be proved or disproved by means of popular election, legislative debate, or trial by jury. Yet it is on these slender threads that the Framers of the Constitution and the Bill of Rights hung the integrity of the republic. A signer of the Declaration of Independence, John Witherspoon, put it most saliently: “A republic, once equally poised, must either preserve its virtue or lose its liberty.”

Roberts and Stratton are to be commended for this fine short work and should be exhorted to expound on its themes in future, more substantive volumes. But God help us if it takes two economists to remind us that “the law is reposed in the bosoms of the people and not in the will of the state.”


[The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice, by Paul Craig Roberts and Lawrence M. Stratton (Roseville, California: Prima Publishing) 183 pp., $24.95]