INTERVIEW WITH STEPHEN J. HERMAN ABOUT HIS BOOK,
AMERICA AND THE LAW: CHALLENGES FOR THE 21st CENTURY
June 1, 2005
How did you come to write this book?
It was 1994 or 1995, and I was working as a judicial clerk, which is a great job, but it’s pretty much a 9-to-5 job, and my wife was working about 15 hours a day as a prosecutor with the D.A.’s Office, so I had a lot of time on my hands. The Contract with America had come out, and there was a lot of public debate about those issues. What really bothered me about the whole thing was that everyone seemed to look at the proposals, I think there were ten of them, one by one. This one’s good, this one’s bad, this one’s okay. Without looking at the whole. Without talking about the inconsistencies. Because there really was no guiding principle in terms of big government versus small government, federalism versus states rights, or whatever was being bandied about by the parties, through the press. The “invisible hand” that was really behind the Contract with America was the consolidation of wealth, power, and authority, unchecked, in the hands of corporations owned and controlled by the elite; insulated, at the same time, from Government regulation, on the one hand, and regulation by the people, through juries, on the other. It was a movement, really, away from a democracy, towards an oligarchy. And, unfortunately, that is really where we are with the “Rove Doctrine” that underlies the Bush Administration today.
So did you start with the Nation of Victims chapter?
I don’t think so. I think that was the center, that I was working toward. But I think I probably started with either the McDonald’s Hot Coffee Case or the Case Against Cigarettes, and the English Rule, because the public discussion, through the media, the pundits, the politicians, et cetera, is just so devoid of any truthful, factual, historical framing that really puts things into perspective. So addressing those issues was probably at the forefront of my mind. And then I branched out into other sexier subjects that were in the news, like the O.J. Simpson Case and the Oklahoma City Bombing, and then started to try to hone in on the Nation of Victims while tackling the philosophical issues like the Constitutional analysis and Free Speech.
What makes this book different?
Well, it’s hard to be objective about your own work, but what I tried to do was to write something that would be clear enough that anyone off the street could pick up the book, and understand it, and get something out of it; but, at the same time, would be sophisticated enough, and have enough insights, that an experienced lawyer could get something out of it too.
Is that why you have such an extensive bibliography?
Yes, that’s part of it. I have seen celebrities or pundits or politicians write these types of manifestos or whatever that set forth their ideas, and they state facts as if they are true, without any footnotes or bibliography, and there is absolutely no way for you to ascertain the credibility of those facts, figures, statistics, et cetera. And I wanted to make sure that, for whatever I said, there was an authoritative example, or footnote, or support. Because I think it makes things more interesting, and more persuasive. But then I also wanted to have a bibliography that any lawyer, or member of the media, or consumer advocate, or lobbyist or whoever could go to, and he or she would have, right there, all of the facts, statistics, studies, quotes, or other “ammunition” that could be used to combat the propaganda and the misinformation, and to bring the facts to light.
How has law in the 21st Century developed since you published the book in 1998?
I’m sure there have been a lot of changes in various aspects of the law, but what I find really interesting, particularly with the advent of the Internet, and the globalization and democratization of information and technology, is striking the appropriate balance between protecting the creator through copyrights and patents on the one hand, versus allowing people to use, and publish, and comment upon information. And then there are all of the practical problems with doing that, even aside from the legal issues. At the same time, though, and unfortunately, we see the same guiding principles behind the Contract with America as the “invisible hand” behind the Bush Administration and its “to the victor goes the spoils” mentality.
What do you mean by that? What is the “invisible hand” you are alluding to?
Look, there is some superficial appeal if you say that we would all be better off if businesses were not so bogged down by Government regulation and bureaucracy. And there may be some superficial appeal in saying that business is stifled because of the risk of the tort system “gone crazy”. But, when you look at it from both sides, the bottom line is: If business is not going to be subject to the checks and balances imposed by the government; and business is not going to be subject to the checks and balances of the people, then who is making the rules? Bernie Ebbers. Jeff Skilling. Hank Greenberg. Kenneth Lay. Dick Cheney. Raymond Gilmartin. Ruppert Murdock. Frank Quattrone. ExxonMobil. Philip Morris. Allstate. Citibank. AIG. Massey Energy. State Farm. I don’t think that’s what most of us would consider a government of the people, for the people, by the people. But that’s the Bush – Cheney – Rove – Norquist – FOX News – Republican Agenda. And the propaganda and the misinformation about not only the legal system, but the government, and the environment, and Social Security, and the War in Iraq, and “family values” or “core values” or other types of “values” is unfortunately just as prevalent, and dangerous, and unchecked as it has ever been.