Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom By Cynthia Lee (New York University Press, 275 pages, $37.95) Should a husband who kills his wife after discovering her in bed with a lover get off at trial by arguing that he was “provoked”? Is this defense � provocation � unfair to women? And does it favor killers who are immigrants from cultures where it is more acceptable to go berserk after discovering adultery? Is the defense racially discriminatory, because it is not available when a defendant kills in response to racial insults? More generally, should African-American murder defendants be allowed to focus their trials on the centuries of race discrimination in America? In Murder and the Reasonable Man, George Washington University Law School professor Cynthia Lee asks these and other questions about the criminal defenses of provocation and self-defense. She looks at these defenses, and criminal law in general, from the distinctive perspective of “outsider studies”: Critical Race Theory, Critical Gender Studies, Queer Studies, and the like. These are schools of thought led by professors who believe that struggles over race, gender, and sexual orientation are at the center of American life. These professors hold strong opinions about law: They see it as a starkly political tool, barely distinguishable from those who create and enforce it. And they see American law as a right-wing tool, forged and wielded by the “dominant” class. At the level of legal theory, their views line up with what is loosely called legal postmodernism. Though these professors see themselves as outsiders, they are unmistakable insiders in the academic world. Off-campus, some of them have crusaded for change in the real world of courtrooms, homes, offices, and factories. There, they have had some definite success. Obvious examples are the upheavals that feminist professors triggered in the laws of rape, sex discrimination, and sexual harassment. It is in this spirit that Lee points her outsider guns at criminal law. She focuses on the requirement that defendants who plead provocation or self-defense show that their apparent crime � usually, killing a human being � was “reasonable.” Killing might be reasonable because, for example, the defendant was fending off a deadly assault � Holmes’ “uplifted knife.” It might be reasonable because the defendant lost his head, and self-control, when he discovered his wife in an act of infidelity. Lee’s particular concern is the fairness of the reasonableness requirement to defendants and victims who are not white, male, and heterosexual. Lee begins her work with the assertion that the United States is pervasively racist, sexist, and homophobic. To Lee, “racism has played and still plays a dominant role” in the United States, and it is a given that “we are all racists” � if not consciously, then unconsciously. Against this background, Lee develops the book’s thesis, which is that the reasonableness requirement makes provocation and self-defense “havens for racism, sexism, and homophobia.” This is because the requirement gives juries the chance to apply the beliefs of what Lee calls the “dominant culture.” This culture “privileges” a view that is white, male, heterosexual, and American-born. Murder and the Reasonable Man assumes that jurors’ views about what is “reasonable” follow from the jurors’ race, sex, and sexual orientation. This assumption reflects the postmodern beliefs that law is whatever the powerful decide it is, and that the views of the powerful are determined (not merely colored, as many of us might think) by their immutable characteristics. Therefore, when law takes the form of a jury verdict, the jurors’ immutable characteristics determine the law. Lee also argues that bias is built into the defenses themselves. For example, permitting the wronged husband to assert provocation illustrates the law’s male bias: Although the same defense is available to women, it is men who more often kill their partners. And because the law, in turn, denies the provocation defense to defendants who kill in response to insults, including racial insults, it “privileges” whites over African-Americans. Murder and the Reasonable Man proposes some specific reforms. Lee would alter the legal elements of the defenses, for example explicitly recognizing racial insults as provocation. In certain cases, she would permit African-American defendants to turn their trials into verdicts on “the history of discrimination against Blacks in America,” on the theory that this history could show that defendants acted “reasonably” when they killed. She also proposes gender and race “switching” instructions that specifically tell juries to think as if the defendant or victim were a different race, gender, or sexual orientation. Lee also advocates requiring juries to consider what she calls positive and normative reasonableness. She explains that positive reasonableness consists of what jurors really think: “the majority view” that would emerge from “an imaginary poll of American attitudes.” Normative reasonableness, on the other hand, is what “society ought to recognize as reasonable.” Lee believes that considering both kinds of reasonableness would push jury decisions toward what “is actually just.” Murder and the Reasonable Man provides an instructive review of provocation and self-defense, and makes a good argument that these defenses could use some updating. The book’s descriptions of particular cases bring these doctrines to life by emphasizing their effects on real defendants and victims. The book also raises valuable questions about the proper meaning of reasonableness, a much-discussed topic that has significance far beyond criminal law. Lee makes her arguments by discussing cases that her readers will agree sound howlingly unfair. She also cites statistics that suggest these injustices are not rare. Lee is confident that her readers will share her dismay at this evidence, agreeing with her about what is “eminently reasonable,” as well as what is “repulsive,” “shocking,” and “outrageous.” To this extent, she writes a fairly conventional brief for legal reform. These are, for example, the methods the civil rights movement used on the road to Brown v. Board of Education, showing case by case why the system itself dictated equal treatment of African-Americans. Like those reformers, Murder and the Reasonable Man appeals to the authority of a single “correct” and obviously reasonable moral position. To Lee, that position is that the Western anti-discrimination principle should be universal, and that this principle condemns racism, sexism, and homophobia as wrong and unreasonable. But Lee’s useful work with cases and statistics is overshadowed by the bulk of her book, which speaks in the discourse of outsider studies. In this dialect, Lee writes about the “dominant narrative” and about rules that are “gendered” or reflect “patriarchy.” She labels outcomes she does not like “privileging,” she complains that women who lose in court are “silenced” or rendered “invisible,” and she charges that her opponents would “turn back the clock.” This kind of talk may be fine for some purposes, but in an argument for legal reform, it is worse than useless: It positively alienates much of the audience a reformer should want to reach. Even to fluent speakers of outsider studies, it does nothing to persuade. Murder and the Reasonable Man uses words like racism, patriarchy, and so forth the way a cartoon formalist judge uses traditional legal concepts: by simply asserting that these general concepts dictate the desired results in concrete cases. To really decide those cases, though, lawyers still need to do the mundane work of arguing specific facts, cases, and principles. In short, it is hard to see how this discourse will persuade anyone who actually needs persuading. Signs that Lee is preaching to the converted appear as early as the book’s acknowledgements. These tell us that the author previewed her work in the warm confines of various “People of Color” conferences, but mention no presentations in potentially chillier settings. Another sign is the authoritative status that Murder and the Reasonable Man gives to the writings of such leading lights of outsider scholarship as Lani Guinier, Catharine MacKinnon, and Cornel West, as well as to popular feminist writers such as Susan Faludi. In the same vein, Murder and the Reasonable Man treats storytelling as a genuine form of legal argument. The stories are first-person narratives about oppression suffered by law professors from schools such as Harvard and Columbia. These stories pass for legal argument because of the same postmodernist tenets I just noted: that truth itself varies with the speaker’s viewpoint, and that the speaker’s characteristics � especially race, sex and sexual orientation � determine that viewpoint. These same beliefs explain why Lee sets out her own characteristics at the beginning of her book, identifying herself as a “progressive Asian-American law professor who cares about issues concerning race, gender and sexual orientation.” She explains why her own characteristics, and pure intentions, are so important to her argument: because I “write from a particular subject position.” Lest we miss the point, she says bluntly, “I do not purport to represent the truth in these pages” and “I do not mean to suggest that there is one normative truth.” This should bring alert readers up short. Isn’t the main point of Murder and the Reasonable Man � the whole point of outsider studies � that racism, patriarchy, and such are wrong? And wrong for everyone? But if that is so, how can you also say that the book’s anti-racist message “does not purport to represent the truth”? These are good questions � and they are old hat to critics of outsider studies. As these critics point out, if “truth” varies with the identity of the speaker, then there is no right answer about what is “reasonable,” and there is no right answer about racism and sexism. And it follows that there is no reason to prefer feminism over, say, high-testosterone patriarchy. It also means that no one has any business telling anyone else what is true for them � even, for example, that racism is a bad thing. Philosopher Thomas Kuhn said that, when reading a new thinker, one should look for the apparent absurdities in her work and ask why a sensible person wrote them. I tried to heed Kuhn’s advice here. I confess, though, that I know of no way to reconcile Lee’s fervent attack on racism with her disclaimer that her views “do not represent the truth.” Is this simply a moral reformer’s nod toward fashionable views of truth � a case of virtue paying homage to vice? Absent an answer, Lee’s own postmodernist beliefs disarm her in the fight against racism; they also rob her of the right to say what the law should consider reasonable. It often is unfair to question a book for what it chooses not to do, but sometimes a theme looms too large to ignore. You just can’t write a life of Captain Ahab without noting that business about the big whale. The contradiction at the center of Murder and the Reasonable Man is that kind of unacknowledged theme. Which brings me to a related question that the book raises, but shies away from: Since reasonableness varies with the speaker, who gets to decide what it means? Someone has to, but if bigotry is as pervasive as Murder and the Reasonable Man contends, surely the question cannot be left to juries. Yet neither can the answer be to replace jurors with equally prejudiced legislators or judges. Lee bumps up against this point, but disappointingly, comes up with no alternative to leaving reasonableness decisions to juries. Attention to this “who decides” question also would have improved Lee’s proposal to instruct juries about normative reasonableness. Normative and positive reasonableness look distinct only if one ignores the “who decides” question, because the two differ only if we can identify a source for what we ought to believe that is independent of what we do believe. Murder and the Reasonable Man does not discuss who will dictate this ought. Despite these oversights, this book can be articulate and insightful. It makes some persuasive points about “problems in the application of the reasonableness requirement in provocation and self defense doctrines.” To the extent the book adopts the methods of outsider studies, however, it ceases to persuade, or even really try. Murder and the Reasonable Man does raise useful questions about outsider studies � primarily by illustrating some of its inherent flaws. The first question is how far this movement, so hot on campuses, should be permitted to extend its influence to the world beyond campus walls. Andrew J. Morris is a partner at the D.C. office of Mayer, Brown, Rowe & Maw.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.