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Courting Justice By David Boies (Miramax Books, 490 pages, $25.95) In Courting Justice, superlawyer David Boies has written a mercury-footed and engaging chronicle of the landmark cases in his career. The prose is singularly lucid and approachable, eschewing both the sophomoric and the esoteric. The tone is admirably balanced, sounding neither of infallibility nor of false modesty. But Boies disappoints in a tendentious recounting and appraisal of Bush v. Gore, which he likens to Dred Scott v. Sanford and Plessy v. Ferguson. His towering talents are worthy of much better. Boies opens with an account of his rapid ascent, reminiscent of a Horatio Alger odyssey. He was born in a northern Illinois farming community. His family moved to Southern California during adolescence. His early educational attainments were suboptimal and fractured, with the exception of debate. At Northwestern Law School, he became a star performer, including editor in chief of the law review. He transferred to Yale Law School to complete his academic virtuoso performance and was then recruited by the premier law firm of Cravath, Swaine & Moore. There, Boies was a major-domo in the defense of IBM against a monopolization suit initiated by the Department of Justice in the sunset hours of the Lyndon Johnson administration by then-Attorney General Ramsey Clark. The case was ultimately dropped in 1982 by Assistant Attorney General for Antitrust William Baxter. Bois also adeptly defended IBM in a private treble-damage action brought by Calcomp, an early sign of his trial lawyer prowess. Boies expounds his five-pointed North Star for litigators. First, underscore your client’s consumer-friendly earmarks and highlight your opponent’s consumer-unfriendly ambitions. Second, attack your adversary’s weak points with energy and doggedness. Fabian tactics might be necessary to defeat Hannibal, but are ill-suited for courtroom conflict. Third, what advantages one side in a trial disadvantages the other. If you command superior resources and diligence, press for an accelerated discovery and trial schedule. Fourth, perspiration in trial preparation is nine-tenths of the winning, but the ability to improvise in the face of the unexpected is necessary insurance. Fifth, the dramatic is indispensable to vivifying your case for a jury, but drama, simpliciter, will not carry the day. Boies’ semi-Decalogue for trial lawyers seems beyond reproach and is fortified by his own spectacular victories. Representing CBS, he captained an Austerlitz-type defeat of Gen. William Westmoreland’s defamation suit alleging that a CBS documentary had falsely accused the American commander in Vietnam of knowingly understating the strength of the enemy. He defended Mike Wallace and CBS in a libel suit brought by Col. Antony Herbert. On behalf of Continental Airlines, he recovered $100 million from American Airlines and $95 million from United Airlines for antitrust infractions. He again represented CBS in foiling a takeover attempt by Ted Turner, and similarly carried the legal torch for Texaco in thwarting a takeover coup de main by Carl Icahn and in resolving a $15 billion judgment against the oil giant by Pennzoil. The New York Yankees boosted Boies’ legal kudos and wealth to clucking heights. As a Cravath partner, he was retained by the inimitable George Steinbrenner in a dispute with Major League Baseball over revenue-sharing. The practice would customarily run afoul of federal antitrust laws as collaboration calculated to dampen competition between baseball clubs. The U.S. Supreme Court, however, had ordained in Federal Baseball Club v. National League, 259 U.S. 200 (1922), that baseball was intrastate commerce outside the orbit of the Sherman Act. That folly was revisited and reaffirmed sub nom., Flood v. Kuhn, 407 U.S. 258 (1972), in an idiomatic opinion by Justice Harry Blackmun. In deciding the case, Blackmun’s reliance on “Casey at the Bat” and “Tinker to Evers to Chance” — more than on the canons of statutory construction — presaged his airbrush constitutional artistry in Roe v. Wade. In any event, Boies expertly litigated and negotiated exclusive merchandise licensing rights for the Yankees worth $95 million outside MLB’s revenue-sharing clutches. In the process, Cravath’s concerns about a conflict-of-interest with the Atlanta Braves’ owner, Time Warner, propelled Boies to depart in 1997 in order to continue to represent the Yankees. From that auspicious beginning, he grew his law practice from a lustrous acorn into a glistening oak under the marquee of Boies, Schiller & Flexner. The bulk of Boies’ memoir elaborates on his most transfixing cases from 1997 to 2000 and on Bush v. Gore. The narrative evokes admiration — if not envy — over the enormous sums collected in attorney fees and damages and his unbroken motorcade of upper-crust clients (although Boies generously devoted time and talent on behalf of a beleaguered woman married to a Guatamalan mogul). He represented the Department of Justice in the Microsoft antitrust litigation, a supreme form of flattery since its Antitrust Division touts itself as the best in the business. Boies acquitted himself with éclat in obtaining a favorable judgment against the monopolist before U.S. District Judge Thomas Penfield Jackson while eliciting laughable equivocations and prevarications from Bill Gates. He exonerated Banque Indosuez from charges of wrongdoing. He collected approximately $600 million from defendants guilty of price fixing in the vitamin industry, including Roche, Rhone-Poulenc, and BASF. He deftly represented comedian Garry Shandling to rectify shady self-dealing by Brad Grey, a trusted longtime manager. He toppled W.R. Grace in asbestos litigation on behalf of a New York City real estate giant, Sheldon Solow. He shrewdly bid $405 million before U.S. District Judge Lewis Kaplan to win lead counsel status in a class action against Christie’s and Sotheby’s alleging price fixing of buyers’ and sellers’ fees. Boies ultimately recovered $512 million, and his firm received in excess of $26 million for its legal labors. Then came Bush v. Gore. Boies was recruited by former law-school classmate Walter Dellinger III to present candidate Al Gore’s case before the Florida Supreme Court and to strategize. He was not driven by strong legal or ideological convictions. He elaborates his preference for the Democratic contender in a hyper-succinct 34 words: “I had been impressed with [Gore's] intelligence and judgment. I was also concerned about what a Bush victory would mean for domestic issues including equal rights, the environment, judicial appointments, and the economy.” But few if any lawyers would bypass an opportunity to rub elbows with history, and Boies proved no exception. Lawyers should turn square corners in addressing legal issues vulnerable to demagoguery and glibness. But Boies falls short of the mark. He wrongly insinuates that the 15-member commission created by Congress to resolve the 1876 Hayes-Tilden contest (subject to disapproval by both chambers) errantly awarded all 22 disputed electoral votes to Hayes for partisan purposes and outraged the nation. The consensus among historians, however, is that massive fraud and violence by Democrats justified the commission’s 8-7 party-line decision. The nation was not outraged. Proper procedures were honored. And if Tilden had been elected, the odious Jim Crow era of Plessy v. Ferguson would have arrived two decades earlier. Boies’ Hayes-Tilden inaccuracies and mischaracterizations would be pedantic quibbles if they were not emblematic of his tendentiousness in addressing Bush v. Gore, constitutional law, and the Supreme Court generally. He scolds a 5-4 majority led by Justice Antonin Scalia for staying the manual recount of Florida votes ordered by the Florida Supreme Court under an easily manipulable “intent of the voter” standard for two days pending oral argument and a definitive decision on the merits. The majority reasoned that irreparable injury was threatened by counting votes that could cast a pall over the presidency despite their constitutional infirmities. Boies decries the finding of irreparable injury because it had never been done before. But he neglects to address why a shattering of public confidence in presidential legitimacy fails the threshold of irreparable harm, an especially befuddling omission since Boies believes the absence of popular support for the Hayes-Tilden resolution proved a national disaster. Boies argued Bush v. Gore in the U.S. Supreme Court and lost. He would be less than human if his appraisal of the result did not betray anguishing disappointment. But Boies chronically distorts or omits. The reader is not informed that the Court voted 7-2, not 5-4, to hold the opaque “intent of the voter” standard offensive to the equal protection clause of the 14th Amendment. He ignores that the standard invited highly partisan manual recounters to discern an intent that would invariably benefit their favored presidential candidate, tantamount to flagrant discrimination in vote counting based on party affiliation. A voting machine, in contrast, makes no invidious discrimination in tabulating or retabulating votes. Boies insists that Bush v. Gore violated the rule of law because federalism precedents were dishonored and the majority was swayed to crown candidate George W. Bush with the presidency because of a partisan dislike of Vice President Gore. But the Supreme Court has never held that federalism waters down the equal protection clause. Indeed, it routinely applies strict scrutiny to state laws that discriminate based on race or ethnicity. And the justices who addressed the Article II issue of whether the Florida Supreme Court had usurped the power of the Florida Legislature in selecting presidential electors confronted a choice of deference between different arms of state government, not a choice between federal or state authority. Finally, Boies holds no more evidence that the majority was motivated by a liking for Bush than that the dissenters were motivated by a liking for Gore. Boies ends by celebrating Miranda and Roe v. Wade (coupled with Brown v. Board of Education) as exemplary of the Court’s finest hours, although both decisions wrenched precedents and rested on highly inventive divinations from the constitutional text. Can his white-hot criticisms of Bush v. Gore thus be taken seriously? Despite Boies’ occasional pontificating where knowledge and wisdom is slim, Courting Justice is well worth the price of admission. Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.

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