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SV: Why did you write this book?
AHK: When you look at how the law developed, it was not simply a matter of spinning out theories. It was a massive human drama. I got fascinated by all of it--Sir Walter Raleigh being condemned to death for treason on the basis of a letter with no live witnesses against him, and how the public outrage about it led to a right to confront accusers, which is now the backbone of our criminal justice system . . . So I began to write about it just for the sake of writing. My wife and I didn't call it a book at first. We called it my project. But we knew it was going to try to be a book, and finally it became one.
SV: Many individuals seem to denigrate the law-whether by harmless lawyer jokes or actions in Congress or state legislatures to limit lawyers. You go out to celebrate the law. Why?
AHK: I think one of the great triumphs of our culture is our legal system. There is a lot of negativism about the law, but I think to a large extent that has to do with the fact that the law deals with very difficult, unpleasant aspects of human relationships. . . . It deals with the garbage of society in many ways. But I think that our culture has established a legal system unprecedented in its fairness and in its efficiency in handling the most difficult problems society has.
SV: A great problem with the law is its increasing unintelligibility. Why don't we have today such lines as Oliver Wendell Holmes's "No one has the right to cry fire in a crowded theater" or [Potter Stewart's] "I can't define obscenity, but I know it when I see it"?
AHK: There may be two reasons for that, maybe more. One is: the law over time naturally becomes fragmented and complex because we have a system of precedents, and so, as case after case after case is decided, they build on prior cases. The quote you just gave from Holmes is, I believe, from the United States v. Shenck in 1918, which was really the first important First Amendment case we had. Holmes was plowing new ground and, of course, it is more natural and easier to use basic metaphors when you are starting out than it is 70 years later when you are building on a pile of precedent. Another reason that is very specific is that about 25 or 30 years ago, the Court started a practice of turning opinion writing essentially over to law clerks. The judges decide the cases, they edit the opinions, but the basic writing of the opinions is by young recent law school graduates. They are brilliant people who love to play with abstract concepts, but they have relatively limited life experiences and are not poets. I think that produces abstract, difficult-to-understand opinions.
SV: You have an epilogue about the O.J. Simpson case. You say it is not "the trial of the century," it is "the trial of the next century." Why?
AHK: The Simpson trial is unprecedented in terms of the intensive, minute-by-minute examination of it that went on by virtue of this amazing technology we now have. I say it may be the prototypical trial of the 21st century because obviously that technology will improve, and we'll get more and more used to using it, and I think the trend is toward more open courts, which in most ways is a good trend. In the coverage of the Simpson case, we were probably getting a glimpse of the future.
SV: Well, the future is terrifying to me because I think the only sovereignty that is going to be left in this world is technology. I am reminded of the old Groucho Marx line, "Are you going to believe me or what you are seeing with your own eyes?" Who are we going to believe in the courtroom-what the arguments are, or what technology is doing to the minds of people? AHK: The perception is the reality. We got perceptions from TV coverage of the Simpson trial that may not square with reality, in the same sense that our perceptions about what happened in the history of the law are distorted by time. Those perceptions are the reality we deal with. It is what people think about the Simpson case that has the impact. If everybody thinks that the verdict is wrong because they don't understand, let's say, the requirement of proof beyond a reasonable doubt, then that's the way the Simpson case goes down in history-as a scandalously wrong verdict.
SV: Some journalists say they went into journalism because of inside work, and there was no heavy lifting. Why did you go into the law?
AHK: I think really, Sandy, I went into the law not because of any understanding of what being a lawyer would be like. One of the things that drove me to go into the law was I thought I could control my life. . . . It was only after I got to law school that the great attraction the law has for me occurred, and I realized that the law was not a code or a set of technicalities but was, as Holmes said, really the study of countless life stories. Storytelling is the essence of it. So I became enamored of it for itself after I went into it.
Sander Vanocur is currently a professional-in-residence at The Freedom Forum and is at work on a video series on Congress and the media. He has covered national and international beats since 1958 in positions at The New York Times, The Washington Post, NBC News, and ABC News.
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