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Bar News - June 17, 2005

Book Review ~ It's Legal But It Ain't Right: Harmful Social Consequences of Legal Industries

Edited by Nikos Passas and Neva Goodwin (University of Michigan Press, 2004) (ISBN: 0-472-09869-1)

Reviewed by Lawrence J. Gillis

As members of the Bar, we certainly appreciate that an activity’s being "legal" is not the same as its being "legitimate." Depending on our individual ethical topographies, the examples that come to mind might include guns or gay marriages or Seabrook or abortion.

The obverse is also true: being "illegal" may not be the same as being "wrong." Consider theVolstead Act, or perhaps the 1993 Fischer-Spassky chess match in Yugoslavia, or maybe the growing of some industrial hemp out on the back forty.

As its contribution to this particular continuing dialogue in the marketplace of ideas, the University of Michigan Press has put together a collection of well-written essays on some (perceived) wrongs that are either simply tolerated or which exist beyond the current reach of the law.

The list of legal-but-wrong activities the essayists come up with here includes many of the usual suspects: cigarettes, arms, gambling, cheap food, pesticides, Enron-style antics and pharmaceuticals.

Ones that I don’t usually go to sleep worrying about are also here: dealers in antiquities, as well as mercenaries. I can’t remember the last time I talked about mercenaries, but there they are, large as life. Frankly, I didn’t know that mercenaries were legal. I thought they went out of style about the time of the Hessians who fought George Washington.

Some of the analysis here is off-puttingly academic, using such phrases as "negative externalities" or "asymmetrical environmental regulations." Once you get past this ponderous language, however, the insights and conceptualizations are pretty useful. For example, did you know that dumping toxic waste in third world countries can properly be viewed as a form of "price subsidy"? This is because that particular societal "cost" is not reflected in the price of goods sold in the developed countries, where the toxic wastes are rigorously controlled.

One of the cures that the editors suggest is that "industries must internalize the costs they are now avoiding…. Prices must tell the truth." The editors acknowledge, however, that some things cannot be quantified into the final prices. For example, the looting of the museums in Iraq after the fall of Saddam Hussein—for sale to the dealers in antiquities, mentioned above—seriously muted the historic sense of purpose of the Iraqi people, a "cost" that is simply beyond measuring.

Some of the cures that the editors come up with may concern us, and we must look at them carefully, one by one, as well as viewing them as a package. Some are puzzling, such as calling for "establishment and consistent enforcement of national and international standards." Congress obviously has some national authority under the Commerce Clause, but sovereignty concerns cannot be so easily dismissed in international matters.

Sometimes, the essayists’ own agendas inadvertently reveal themselves, with the use of phrases that have a profound and unintended resonance. For example, a New Hampshire reader will sit bolt upright in the chair upon reading that "culturally reinforced resistance to taxation and government intervention" may well be one of the reasons why "certain industries engage in egregious, large-scale antisocial activities." Silly me: I thought the problem was that corporations are profit-seeking missiles, behaving exactly as designed.

We all learned to be curious (and cautious) about anyone who cites himself as an authority in an argument he is making. One of the editors here does so, seven times citing himself by referring to scholarly articles he has written over the years. Also, one other authority mentioned is a book titled, Crapped Out: How Gambling Ruins the Economy and Destroys Lives. As I said above, every author must have a catchy title; this book is published by "Common Courage Press," a publisher previously unknown to me, but also having a catchy name. It is located in Monroe, ME. I used Mapquest and checked out Monroe: it is located east of Jackson, Maine and is due south of Newburgh Village—not quite sure where that is. In any case, this book is cited as an "authority."

These minor caveats aside, this book is worth reading. If keeping current on the finer points of the Internal Revenue Code is making you lose your focus, try this book.

After 33 years in the courtrooms of New Hampshire, Lawrence J. Gillis has retired from the practice of law (voluntarily, but thanks for asking). He now teaches college-level legal courses on a part-time basis.  His website is:


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