Vol. 12 No. 7 (July 2002) pp. 316-317



Professor Canon uses the words "nice", "useful" and "excellent" to describe various parts of CONSEQUENCES in his review (LPBR 12 No. 6, June 2002, pp. 275-277). So a response runs the risk of seeming unduly sensitive to any of his comments about the book. Nonetheless, I do want to make two points in reply.

First, he suggests that "CONSEQUENCES lacks a strong overall theme". Later, he states that "there is virtually no coverage of ... judicial impact research ...". I find these comments puzzling. In the Introduction the book states (p. 6), "Law has achieved many successes in the United States in terms of policy goals .... Yet, subject to some exceptions, such successes were not the product of litigation." These statements, the implications of which are pursued throughout the book, are the "overall theme" of CONSEQUENCES. Analysis of law's capacity to achieve various policy goals and the difficulties of assessing outcomes, including those
produced by courts, is the core of the book.

All forms of law are addressed, in part because so many other works focus only on litigation. However, the consequences of court decisions are by no means ignored. The statement that there is "no coverage of ... judicial impact research" is wrong. Chapter Four discusses six overarching ideas about the impact of law. One of these is the "impact of litigation regarding social change". That part addresses the debates concerning the effects of litigation and social change in general. In addition, all of the five case studies in Part III (punishment and capital punishment, smoking, the environment, pornography, and discrimination) assess the role of litigation in those various areas in detail. Professor Canon may not like the way I went about assessing the outcomes produced by courts. I focused on social change rather than what he describes as "mid-level theories". Although mentioning those theories he puts in a "shameless plug" (his words) for his own book. Promoting one's own work while reviewing other books is fine; not describing those other books accurately while discussing yours is not so good.

Second, he is particularly critical of Chapter Five "Punishment - And Capital Punishment". He states: "Bogart is offended by capital punishment and not too fond of the idea of punishment at all ... is offended by the high rate of imprisonment in the U. S.... [H]is analysis ... falls a bit short of a polemic." The charge that I am "not too fond of the idea of punishment" is almost reassuring since in Canada I am sometimes suspected of being too much a supporter of social order at the expense of the rights of the accused and so forth. In any event, what would it mean to be "fond of punishment"?

What the book does do is examine a

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range of policies to suppress crime: punishment and imprisonment are certainly among them but so are programs to redress the social causes of crime (such as poverty, discrimination, and so forth) and programs aimed at "designing out" situations associated with crime, for example, by restricting access to guns. Chapters Two and Five argue, based on a careful review of the evidence, that America relies too heavily on deterrence and vengeance and punishment regarding many policies and that this fascination with deterrence/vengeance/punishment is linked to that nation's preoccupation with rights. The nation that is the foremost exponent of rights is the country, alone among societies of a similar political tradition that continues to impose the death penalty. Readers can make what they will of this argument. However, I do invite them to read those chapters and then reread Professor Canon's review to decide which is a "polemic"--the former or the latter.

Copyright 2002 by the author, W. A. Bogart.



In response to Professor Bogart's first point, let me note that scholars often approach a subject from different perspectives. This is certainly true of his and my perspectives on studying the impact of law. I reviewed CONSEQUENCES as a political scientist whose main concern is with the impact of judicial decisions. I wrote for a LPBR audience which, to the extent it is interested in legal impact, largely shares this concern. I wanted to describe and evaluate the book for this audience. I did not say that Bogart offered NO discussion of political scientists' research about judicial impact, but in my judgment he offered very little of it. The
book's strengths lie in other approaches.

On his second point, I stand by my judgment that Bogart's presentation of capital punishment and reliance on punishment in general in the U. S. falls "a bit short of a polemic."

Copyright 2002 by the author, Bradley C. Canon.