Vol. 12 No. 7 (July 2002) pp. 316-317
RESPONSE BY THE AUTHOR, W. A. BOGART, TO BRADLEY C. CANON, REVIEW OF: CONSEQUENCES: THE IMPACT OF LAW AND ITS
COMPLEXITY; REPLY BY BRADLEY C. CANON
RESPONSE BY W. A. BOGART:
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.
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REPLY OF BRADLEY C. CANON:
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.
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