Law and Politics Book Review

GLOBAL MEDIUM, LOCAL LAWS: REGULATING CROSS-BORDER HATE SPEECH

2009-11-16T01:36:00.001-05:00

by Bastiaan Vanacker. El Paso, TX: LFB Scholarly Publishing, 2009. 264pp. Casebound $70.00. ISBN: 9781593323318.

Reviewed by Robert G. Brookshire, Technology Support and Training Management Program, University of South Carolina. Email: brookshire [at] sc.edu.

pp.841-844

In April, 2000, La Ligue Internationale Contre le Racisme et l’Antisémitisme (LICRA) and l’Union des Etudiants Juifs de France (UEJF), French nonprofits working against anti-Semitism, brought suit against Yahoo!, Inc. seeking to halt the sale of Nazi memorabilia on Yahoo!’s auction site as well as the publication of MEIN KAMPF and THE PROTOCOLS OF THE ELDERS OF ZION in French on web sites hosted by Yahoo!’s Geocities service. Yahoo! responded that, though these activities may be illegal in France, they were not illegal in the United States, that the Yahoo! auction site was intended for an American audience, and that it was not technically feasible to prevent French Internet users from accessing these sites.

The French court in which the suit was brought disagreed, however, and ordered Yahoo! to stop access to web sites and auctions of Nazi material and warn users of Yahoo! France that searches of Yahoo.com might return results that were illegal in France. Yahoo! should also take steps to block the access of French users to material illegal in France.

Yahoo! replied that it was not technically possible to comply with the court’s order, whereupon the court asked a panel of experts to evaluate the technical feasibility of compliance. The panel reported that it was indeed possible for Yahoo! to prevent most French users from accessing its sites. The French judge ordered Yahoo! to comply with his order within three months or face a fine of 100,000 Francs per day.

Yahoo! took steps to mollify the French court, revamping its auction policies to prohibit the sale of items associated with the Nazis and other hate groups, and removing the link to LES PROTOCOLES DES SAGES DE SION. The company also posted the required warning on the Yahoo! France web site, which still may be found in Yahoo! France’s “Conditions d'utilisation du service” page. Yahoo! continued to sell items such as German stamps and coins from the Nazi era as well as copies of MEIN KAMPF through its auction site.

Yahoo! also asked the U.S. District Court in the Northern District of California to declare the French court’s order unenforceable. The Court agreed, Judge Jeremy Fogel writing that the U. S. Court could not enforce a foreign court’s order that chills protected speech. This decision was reversed on appeal, though, in part because the French nonprofits had never attempted to enforce the French court’s ruling.

The Yahoo! case illustrates the knotty problems raised when nations with conflicting laws confront each other on the Internet. In GLOBAL MEDIUM, LOCAL LAWS: REGULATING CROSS-BORDER HATE SPEECH, Bastiaan Vanacker investigates how [*842] nations with hate speech laws can regulate content on the Internet, particularly content hosted in the United States. Vanacker, on the faculty of the School of Communication at Loyola University in Chicago, has updated and expanded upon material he first addressed in his dissertation at the University of Minnesota.

Vanacker does not settle on a single definition of hate speech; rather, he defines five components those seeking to regulate such speech must take into consideration: the medium, the content, the target, the context, and its effects. With regard to the medium of speech, for example, printed or spoken expressions are often less regulated than activities such as cross burning or marching. Taking context into consideration means that a comedian’s act may receive greater latitude than a politician’s address. When governments regulate hate speech, these restrictions are often justified based on its potential harmful effects. The interplay of these five dimensions means, among other things, that arriving at a clear consensual definition of hate speech is difficult if not impossible.

In his first chapter, Vanacker brings his five dimensions to bear on an analysis of U.S. case law relevant to hate speech, most of which would be classified simply as First Amendment cases. He also reviews the theory or philosophical justifications for free speech beginning with John Stuart Mill, including a broad array of modern writing on the subject.

The second chapter reviews recent cases in the United States concerning speech, especially hate speech, and the Internet. Beginning with RENO v. ACLU, which challenged the Communications Decency Act of 1996, and culminating with PLANNED PARENTHOOD OF COLUMBIA/WILLAMETTE v. AMERICAN COALITION OF LIFE ACTIVISTS, Vanacker demonstrates that courts have sometimes taken the medium and the context of speech into consideration when evaluating the level of protection to be given to speech online. He shows that courts have nevertheless been reluctant to create a consistent doctrine concerning speech on the Internet. Hate speech is generally viewed as protected by U.S. courts.

As Vanacker shows in his third chapter, most other countries, particularly in Europe, have the opposite approach, with international treaties and national laws prohibiting hate speech. The European Union has made efforts to restrict hate speech within its member countries. Germany has extensive limits on hate speech. France’s Pleven law prohibits incitement of discrimination or violence based on nationality, race, religion, or ethnicity, and a newer law prohibits Holocaust denial. Britain’s Race Relations Act prohibits speech in which “hatred is likely to be stirred up against any racial group,” though prosecutions under the act are rare.

The American laissez faire approach to hate speech clashes directly with European regulations on the Internet, as Europeans can both create and access hate speech web sites hosted in the United States. Vanacker describes legal challenges by both governmental and nongovernmental actors in Europe to hate speech appearing on the Internet in the fourth chapter of GLOBAL MEDIUM, LOCAL LAWS. He reviews the Yahoo! case outlined above and its aftermath, as well as challenges to [*843] CompuServe and other Internet service providers. German and European Union telecommunications laws have been put in place in attempts to regulate speech that is illegal in their jurisdictions but with only limited success. Britain has tried a different approach. The Internet Watch Foundation (IWF), a nonprofit agency, maintains a hotline for complaints about illegal online content. Though mostly concerned with child pornography, the hotline has taken action against racist content by asking service providers to remove material hosted on their servers. The IWF has had only limited effect outside the U.K., however.

In chapter five, Vanacker presents his recommendations for normative criteria that could form the basis of international hate speech regulation. His first proposal is that any regulation should respect the layered structure of the Internet. This idea is borrowed from a NOTRE DAME LAW REVIEW article by Lawrence Solum and Minn Chung. Solum and Chung present a modification of the International Standards Organizations Open Systems Interconnection (OSI) Model. In contrast to the OSI Model’s seven layers (application, presentation, session, transport, network, data link, and physical), Solum and Chung’s model consists of six layers: content, application, transport, Internet Protocol, link, and physical. Solum and Chung argue that any regulation of the Internet should respect this layered structure, so that attempts to regulate content, for example, should not be enforced at lower layers. The French court in the Yahoo! case sought to violate the integrity of the Internet’s layers, for instance, by asking Yahoo! to restrict access to content by examining users’ Internet Protocol addresses.

The second of Vanacker’s criteria is that nations should respect local Internet regulations arrived at through a representative democratic process. At what point should regulators attempt to enforce their rules? Vanacker, following Jonathan Zittrain, identifies four loci of control: the source of the content, the source’s Internet service provider (ISP), the destination of the material, and the destination’s ISP. If any of these loci reside within the regulator’s jurisdiction, this is where the regulation should take place. In addition, Vanacker suggests that regulators can appropriately seek enforcement of content from providers outside their jurisdiction if the content is deliberately targeted at an audience within the regulators’ authority.

The final principle Vanacker presents is that regulation should be effective. By this, he means that regulation not only should work, but that it should not be overly broad, it should be technically feasible, and the content being regulated should be illegal, with content providers having the ability to appeal judgments against them.

In his final chapter, Vanacker applies his three principles to many different proposals made by scholars, governments, and Internet companies to regulating hate speech. He finds that most fail to be consistent with these principles. Vanacker recommends, in addition to the regulation of content providers and ISPs within their jurisdictions, the creation of hotlines similar to those in Britain, regulating search engines, and working with American anti-hate groups and ISPs to [*844] remove objectionable content. These strategies would limit the availability of hate speech in places where it is illegal while further research on the nature, extent, and effects of online hate speech is conducted.

Generally, Vanacker’s arguments are compelling, as he thoroughly examines the arguments for and against every point of view he discusses. American civil libertarians will take issue with the basic premise that speech on the Internet requires some kind of regulation, but Vanacker is really more concerned with how European and other regulators may regulate the Internet, not whether they ought to do so.

Computer professionals will take issue with Vanacker’s principle that regulations should not violate the layered structure of the Internet. The layers that Vanacker describes are merely a logical model of how the Internet works. Much of the hardware and software that we use daily, such as firewalls that block viruses and filters that winnow out valid e-mail from spam, “violate” this layered structure. From a technical point of view, there is no convincing reason why Internet regulations should be more respectful of the OSI model than is ordinary hardware or software. The loss of this criterion does not negate the validity of his other principles, however, as each stands independently of the others.

GLOBAL MEDIUM, LOCAL LAWS is a significant book not only because of its subject, but also because it illuminates the larger problem of international regulation of the Internet. As it continues to grow in importance as a vehicle for commerce and communication, the Internet will generate complex problems that challenge various nations’ fundamental legal principles. Bastiaan Vanacker has made a significant contribution by his clear, penetrating analysis of a particularly knotty example of the kinds of issues we will be confronting in the future.

REFERENCES:
International Telecommunication Union. INFORMATION TECHNOLOGY OPEN SYSTEMS INTERCONNECTION BASIC REFERENCE MODEL: THE BASIC MODEL. http://www.itu.int/rec/T-REC-X.200-199407-I/en/

Solum, Lawrence B. and Minn Chung. 2004. “The Layers Principle: Internet Architecture and the Law.” NOTRE DAME LAW REVIEW 79 (April): 815-948.

Zittrain, Jonathan. 2003. “Internet Points of Control.” BOSTON COLLEGE LAW REVIEW 44 (March): 653-88.

CASE REFERENCES:
PLANNED PARENTHOOD OF COLUMBIA/WILAMETTE, INC. v. AMERICAN COALITION OF LIFE ACTIVISTS 290 F.3d 1058 (2002).

RENO v. ACLU 521 U.S. 844 (1997).

YAHOO! INC. v. La LIGUE CONTRE LE RACISME ET L’ANTISÉMITISME, 169 F. Supp. 2d 1168 (N. D. Cal. 2001).

THE EVOLUTION OF THE FOURTH AMENDMENT

2009-11-16T01:35:00.001-05:00

by Thomas N. McInnis. New York: Lexington Books, 2009. 334pp. Cloth $80.00. ISBN: 9780739129760.

Reviewed by Raymond G. Kessler, Department of Criminal Justice, Sul Ross State University. Email: rkessler [at] sulross.edu.

pp.837-840

Many observers of the Fourth Amendment suspect that its protections have declined since the Warren Court days. Thomas McInnis’ book confirms that observation. Each chapter, except the first, starts with an illustrative case and ends with an “Illustrative Case Reprise.” With these sections, the author attempts to provide greater insight into some of the main points of the chapter. Some readers may find this feature helpful. Others may find it less so. All chapters except the first and last have helpful “Conclusion” sections.

Chapter 1 is a Prologue. As suggested by the title, the goal of the author is to trace the evolution of the Fourth Amendment in Supreme Court caselaw through 2007. McInnis contends that the Court has struggled, and continues to struggle, to provide consistency and predictability in its Fourth Amendment decisions.

The second chapter provides a short review of the historical background of the adoption of the Fourth Amendment, and the Supreme Court’s early treatment of the Amendment. The law developed slowly, and by the end of the nineteenth century, the Court heard only five Fourth Amendment cases. In its decisions in the early 1900s the Court began developing what McInnis terms the “traditional model.” According to this model, the Fourth Amendment dictates a strong preference for warrants. The two clauses of the Amendment are linked and warrantless searches are unreasonable unless they fall within a few well-delineated “reasonable” exceptions. At first, other than consent, these exceptions required arrest or search probable cause and some exigent circumstance. In chapters 3 through 7, all the landmark cases and important doctrinal changes are discussed.

One of the most interesting parts of the book involves the Warren Court and how, in spite of its liberal reputation, it laid the doctrinal groundwork that later Courts used to cut back on the traditional model and an expansive view of the Fourth Amendment. Although the Warren Court greatly expanded Fourth Amendment rights, it created some precedents that would later be used to limit those rights. CAMARA v. MUNICIPAL COURT (1967) and SEE v. CITY OF SEATTLE (1967) did not involve searches for evidence of crime - only building and other city code inspections. Those decisions, however, allowed warrants to be issued without probable cause or individualized suspicion, and ignored the particularity requirement. A rationale that approved searches under a highly flexible and subjective reasonableness approach became established. Reasonableness was tested by balancing the degree of intrusion on rights against the government interest. The traditional approach of a strong preference for [*838] ordinary search warrants, with limited categorical exceptions with probable cause and/or exigent circumstances, was ignored.

Even more problematic was the Court’s decision in TERRY v. OHIO (1968). Again, the Court used the balancing approach and, for the first time, allowed warrantless searches and seizures without consent in ordinary criminal cases on less than probable cause to search or arrest. Prior to this time, exceptions to the warrant requirement required consent, arrest or search probable cause and/or exigent circumstances. Probable cause was no longer a central feature of exceptions to the warrant requirement. Only Justice Douglas dissented.

McInnis defends these three decisions by arguing that they were motivated by the Court’s desire to ensure that the government practices involved were covered and limited by the Fourth Amendment. Of course, the Court could also do this by striking down the government action in all three cases. By validating stop and frisk and in failing to put strict limits on the reasonableness approach, the Warren Court set the stage for later conservative Courts, under Chief Justices Burger, Rehnquist and Roberts, to limit the protections of the Fourth Amendment.

The reasonableness approach spawned an even more toothless test termed “special needs.” Under this approach, the Court, for the first time allowed a search of an individual’s home without a warrant, consent or exigent circumstances. The special needs of a probation system allowed search of a probationer’s home on a reasonable basis for the search (GRIFFIN v. WISCONSIN, 1987). However, later, (e.g., FERGUSON v. CHARLESTON, 2001) the Court seems to have put some teeth in its special needs doctrine.

According to McInnis, the traditional approach with its emphasis on warrants, limited exceptions to the warrant requirement, and probable cause has now largely been reduced to empty rhetoric. It has been replaced by a reasonableness approach that is so flexible and fluid that it has become a “slippery slope rather than bedrock” (157). The preference for warrants is now cant which has been replaced by a reasonableness approach that opens the door for a multitude of searches and seizures without warrants, probable cause or even individualized suspicion.

McInnis notes that in addition to expanding the reasonableness approach at the expense of the traditional preference for warrants, post-Warren Courts have used a number of doctrinal techniques to curtail Fourth Amendment protection. The doctrine of standing has been limited to restrict defendant’s ability to invoke the Fourth Amendment The definitions of a “search” and “reasonable” and/or “legitimate” expectation of privacy have been limited. Bright-line rules that benefit law enforcement have been drawn up to replace case-by-case analysis. New exceptions to the exclusionary rule and the general preference for warrants have been created. Existing exceptions have been expanded. The exclusionary rule is now viewed as a judicially created remedy, the only purpose of which is to deter police misconduct. Judicial integrity has been long forgotten. Further, the rule will be applied only [*839] when the deterrent effect outweighs the “costs to society.”

Another interesting point is how many of the decisions and doctrines used to erode the traditional model came from liberal Justices. In addition to the Warren Court cases discussed above, Justice Blackmun, not often accused of being a conservative Justice, laid the groundwork for the special needs test in his concurrence in New Jersey v. TLO (1985). Not even the current Court’s most liberal Justices (Stevens, Breyer and Ginsburg) seem to be ardent protectors of the Fourth Amendment. McInnis notes that in the six Roberts Court decisions he analyzed, the Court was unanimous in the five supporting the government position.

McInnis also notes that the Court is caught in a vicious circle. Over many years, various “Courts have also recognized that often the inability to follow the law was due to the complexities of law the Court has developed, not the government’s desire to flagrantly violate the law” (290). To compensate for this, the Court has created more exceptions to the exclusionary rule and doctrines to justify government action when the mistakes could be deemed understandable.

The final chapter discusses the future of the Fourth Amendment. In a telling quote, McInnis notes one the great controversies of law and politics in this country. He writes: “Individuals may disagree with the positions of the post-Warren Courts that we have more to fear from criminals [and terrorists] than an overbearing government, but that is the conclusion they reached” (290).

As in other areas of the law, a badly divided Court has failed to provide consistent theory and results. Stare decisis and consistency seems to be of little importance to either liberals or conservatives. Another example, released after publication of the book, is ARIZONA v. GANT (2009). Ad hoc and subjective decision-making can be expected to continue. Anti-terrorism efforts, including the USA Patriot Act, and technological advancements, including new surveillance tools, will create new challenges to Fourth Amendment values. The Roberts Court can be expected to continue the reasonableness approach and give preference to security and order concerns.

Further, McInnis notes criticism of the traditional model and support for reasonableness approaches, but does not spend enough time on these issue. Justice Scalia (concurring in CALIFORNIA v. ACEVEDO, 1991) and others, (e.g., Amar 1994) argue that the Framers did not intend to create a preference for warrants. McInnis does not give enough time to the argument that the purpose of the warrants clause is only to prevent the issuance of general warrants--a British practice hated by the colonists. Warrants insulated British officials from liability, and the Framers wanted to make sure that general warrants would not provide such immunity in the future. Further, it can be argued that unlike the current rudderless reasonableness approach, a principled reasonableness approach that seriously respects Fourth Amendment values is closer to the real purpose of the “unreasonable searches” clause. [*840]

This is a very valuable work for students of the Fourth Amendment. It is well-documented, has an Index, Table of Cases, and an extensive Bibliography. McInnis’ work is relatively easy reading and covers the landmark cases in a concise but clear manner.

REFERENCES:
Amar, A.R. 1994. “Fourth Amendment First Principles.” HARVARD LAW REVIEW 107: 757-819.

CASE REFERENCES:
ARIZONA v. GANT, 556 U.S. ___, 129 S.Ct. 1710 (2009).
CAMARA v. MUNICIPAL COURT, 387 U.S. 523 (1967).
CALIFORNIA v. ACEVEDO,500 U.S. 565 (1991).
FERGUSON v. CHARLESTON,. 532 U.S. 67 (2001).
GRIFFIN v. WISCONSIN, 483 U.S. 868 (1987).
NEW JERSEY v. T.L.O., 469 U.S. 325 (1985).
SEE v. CITY OF SEATTLE, 387 U.S. 541 (1967).
TERRY v. OHIO, 392 U.S. 1 (1968).

BENCH PRESS: THE COLLISION OF COURTS, POLITICS, AND THE MEDIA

2009-11-16T01:32:00.002-05:00

by Keith J. Bybee (ed). Stanford: Stanford University Press. 2007. 240pp. Cloth. $29.95. ISBN: 9780804756778.

Reviewed by Michael McCann, Department of Political Science, University of Washington. Email: mwmccann [at] u.washington.edu.

pp.831-836

Keith Bybee’s edited volume makes a unique contribution to the study of judicial politics. The unifying theme of the book is the tension between the “two faces of judicial power” – one reflected in the principle of judicial independence, the other in concerns that courts must be limited by other branches of government and/or accountable to “the people.” Scholars at Syracuse University conducted the Maxwell Poll to probe how these contradictory commitments play out in public opinion and then organized a conference bringing together scholars, judges, and journalists to discuss their implications for US legal culture. Among the most important implications discussed by the authors is a concern that the citizenry increasingly views courts as “political” or partisan in character, thus undermining the foundations of their legal authority and perhaps the authority of law generally.

The book organizes the essays written for that conference in a simple, sensible format. It begins with a superb introduction by the editor. Bybee outlines the core themes initially by reference to the tension between Hamiltonian arguments for “complete independence of the courts” and the Anti-Federalist fear of a politically insulated judiciary. He then offers a fairly detailed discussion of the Maxwell Poll findings that American citizens tend to confirm both the ideals of judicial independence and the facts of increasing judicial politicization, which is related to a variety of other complexities in opinions about courts and judges, some but not all of which split markedly along partisan lines. One of the more interesting and important dimensions of this complexity concerns the mass media, which is both the routine source of public knowledge about judicial practice and for many a causal force contributing to growing perceptions that judges act on their policy preferences rather than enacting law. “The poll results not only illuminate the contradictory contours of public opinion but also suggest that the public’s beliefs are closely related to the way in which the media covers the courts” (p.2). Hence the volume’s clever title. One virtue of this pithy but substantively rich introduction is that a reader can quickly form solid judgments about whether to continue reading all or parts of the book.

Part 1 includes two scholarly reflections on the arguably increasing public perception that judges “talk law but do politics.” Charles Gardner Geyh’s initial chapter documents the historical rise of efforts to ensure public confidence in the courts by regulating the appearances of judicial impropriety. He notes that concerns about judicial impartiality grew with the emergence of image-based, sound-byte obsessed mass media and their impact in shaping public [*832] perceptions of courts as results-oriented and partisan. The parallels between this trend in mass media and the concurrent development of legal realism among elite jurisprudes goes unexamined in the essay but are worth reflection. In any case, Geyh shows that the ABA responded with the Canons of Judicial Ethics, now enforced in all fifty states, requiring judges to eschew appearances of impropriety and to safeguard against perceptions of partiality. These modes of regulation arguably undercut free speech rights of judges and prevent them from speaking out in the marketplace of ideas so they can in turn be judged. Geyh doubts the regulations will be relaxed and suggests that this may be a good thing.

G. Alan Tarr’s Chapter 2 extends Geyh’s concerns by confronting the “hyper-politicization” (p.53) that has attended state judicial elections. Tarr shows how flirtations with “merit selection” processes at the state level during the 1960s and 1970s have succumbed to an upswing in judicial elections over the last thirty years; 39 states use elections for selecting or reelecting state Supreme Court justices (p.54). Moreover, these judicial electoral campaigns, and the sensationalistic press that follows them, have become increasingly “noisier, nastier, and costlier.” While not all elections fit this image, Tarr suggests that the public perception of a few high profile ugly elections tends to be generalized. “The perception that judicial decisions generally reflect judicial predilections or idiosyncrasy rather than simply the legal merits of the case weakens considerably the rule-of-law argument for judicial independence” (p.67).

Together, these first two essays sound alarms about the declining sense that traditional norms associated with judicial independence and [*833] impartiality are withering. Moreover, “. . . . the genie cannot be put back in the bottle,” notes Tarr (p.69). The only question is how we make the best of a trying situation, which is the subject of the remaining essays.

Part II offers four essays written by sitting judges and together provide something of a reassuring response that, despite politicizing influences of money, public pandering, and media sensationalism, judges can sustain perceptions of integrity, independence, and impartiality. Alabama Supreme Court Justice Harold See leads off with a very thoughtful, subtle, well supported discussion comparing judicial selection processes in the US, focusing on who does the selecting and the restrictions on the appointment. He then assesses the selection methods according to the relative “independence” and “quality” of judging that they generate. See finds that popular election of judges has its upsides as well as downsides; the choice between appointment and election is a matter of “tradeoffs.” He argues that money and organized power of interested parties influence all selection processes, and cannot really be excluded. At least popular elections increase publicity and transparency that might expose undue influence or bias in ways that backroom politics does not.

In Chapter 4, James E. Graves, Jr., a Justice on the Mississippi Supreme Court, tends to agree with See that all judicial selection processes are subject to political influence. But Graves suggests that judicial independence and impartiality are less determined by how judges are selected than how judges choose to play their roles once they don the robes. He offers a substantial reflection on the impact of BROWN v. BOARD OF EDUCATION to illustrate how courts can use the mass media to educate the citizenry in civic virtue. John M. Walker, Jr., Chief Circuit Judge of the US Court of Appeals for the Second Circuit, advances a similar argument in Chapter 5 through this “thoughts on the Roberts and Alito hearings” and the federal judicial selection process generally He agrees with Graves about the responsibility of judges to decide cases through impersonal reasoning, and he argues for a “new partnership” between the media and judges that helps the public understand the distinctive differences between legal reasoning and political preference.

Joanne F. Alper, a Virginia Circuit Court judge, concludes the section with Chapter 6. She goes further than others in underlining that it is imperative for the public to understand what judges actually do, i.e. that judges become effective by displaying intellect, patience, and fairness that reduces their biases or result-oriented inclinations. She draws on her own experience as a judge in Virginia. In that state, judges are selected by legislators in the General Assembly assisted by a Joint Judicial Advisory Committee, a process that facilitates the public campaigning of judges without the financial costs and other downsides of popular election. In short, “proponents of Virginia’s system of legislatively electing judges emphasize that this process maintains judicial independence, ensures that judges rely solely on the law, not politics or popular views, and maintains the public’s high regard for Virginia’s judiciary” (p.144).

Given that Part I lays much blame on the mass media while authors in Part II hold out much hope that judges can more effectively use the media for legal education, Part III provides a fitting forum for journalists to weigh in on the related issues. In Chapter 7 Mark Obbie, a former reporter turned journalism professor, looks at how two leading national newspapers reported on the Supreme Court nomination of Justice Samuel Alito to assess the extent of “results-oriented legal journalism.” The author finds that half of the news accounts displayed the latter tendency and failed to report much that is relevant to law. He thus makes a plea for improved journalism. While his proposed solution is vague, Obbie’s study is full of interesting textual quotations from news coverage; it offers splendid (if missed) opportunities for engaging with Justice Walker’s earlier cheery claim that “the confirmation hearings for . . . Justice Alito were for the large part dignified and conducted with respect for the judiciary and the nominee” (p.128).

Dahlia Lithwick, senior editor and legal writer for Slate.com., examines the quality of legal reporting on the Internet in Chapter 8. Not surprisingly, she observes that the Internet offers a wider array of potential sources of information and perspectives about courts than do conventional news sources. If one looks at most people’s actual usage practices, however, the information sources they tap tend to be quite narrow and limited. The Internet thus can be a great resource for information that facilitates open [*834] dialogue for those willing to invest and work. But it also can debase public understanding and discourse, creating the illusion of reliable information. The essay ends with an optimistic view of the democratic potential of the Internet and, again, an ode to responsible choices. “As is so often true in a democracy, the choice is ours to make” (p.184).

In Chapter 9, Tom Goldstein, another senior reporter and journalism professor, offers a more skeptical view about the prospects for developing better communication between media and courts, or reporters and judges. While things can be improved, he underlines a fundamental “distance” and tension between the message that judges want to communicate and the more disruptive commitment to “exposure” that makes reporters unreliable allies or megaphones for judges’ messages. “Better coverage,” he argues, is not the same as the “more positive coverage” that judges want. The essay draws widely on journalistic experience and anecdotes, and it is a welcome contribution. Finally, the Afterword by Anthony Lewis, the renowned former columnist for The New York Times, suggests that the present balance between contrasting views of courts – as at once impartial and yet political – is likely to yield toward an increasingly more skeptical view that privileges focus on judicial results over reasoning. Like others, he blames the problem more on public misunderstanding or ignorance rather than informed opinion. If there is a silver lining, he concludes, it is Americans’ normative commitment to judicial independence.

Overall, the book is remarkably cohesive in its thematic focus. It is also well organized, generally well written, and largely free of academic jargon. The essays are uneven, as is typical in such volumes. In particular, even my cursory summary of the essays makes clear that there is a palpable tension between the complex institutional analysis of the issues at stake offered by some authors (mostly scholars), on the one hand, and the wispy odes to “responsibility” and moral choice offered by judicial and journalistic professionals, on the other hand. Some readers might complain that the book is seriously lacking in the type of more systematic, rigorous analytical and empirical inquiry that is common in extant scholarly study. But one could also view this as one of the book’s strengths. For one thing, the collection provides unique interpretive insights into the intersubjective worlds shared by the most important producers of legal knowledge in contemporary mass society. The paucity of sophisticated institutional analysis and inclination toward self-regulating, “responsibilizing” responses offered by judges (except for Harold See) and reporters that the book documents exposes the narrow logics of official law talk in action, and these themes are a great starting point for critical discussion in the classroom.

Moreover, the book could provide a great point of departure for engaging with a variety of studies by socio-legal scholars in a course on contemporary courts and politics. For example, it would be interesting to interrogate the alarm expressed by this book about the politicization of high courts in light of John Brigham’s fascinating argument about the institutionalized “cult” of deference to the Supreme Court as final authority (1987). Or, for something very [*835] different methodologically and epistemologically, the work by Jim Gibson and his colleagues (Gibson 2008; Gibson, Caldeira, and Baird 1998) on judicial legitimacy and public opinion would be a fascinating basis for developing further the themes raised by Bybee’s book. Each of these different types of studies offers reason to question whether the legitimacy of courts is fragile. At the same time, it would be interesting to put this book into conversation with research on media coverage of legal practices outside of appellate or high courts. For example, how does media coverage of ordinary civil disputing and the related rhetoric about a “litigation crisis” (see Haltom and McCann 2004) parallel, amplify, or conflict with media coverage of high courts? Or how might popular perceptions of high courts be affected by popular culture – by movies, novels, television, lawyer jokes, and the like (see McCann and Haltom 2008; Sarat, Douglas, and Umphrey 2005; Galanter 2005)? This book does not directly engage these or other relevant literatures, but there is great potential for doing so in the classroom.

Finally, this reviewer found it surprising that nearly all the essays treated the tension between images of judges or courts as either inherently legal or political, impartial or partisan, independent or politically interdependent, as vexing “problems” that needed to be overcome or solved. A dark sense of moralistic anguish and apprehension about the status of judges, courts, and the rule of law shrouds much of the volume. None of the essays embraced the tension as either inescapable or desirable. To his credit, Professor Bybee, the editor, raises this point briefly at the end of his Introduction, which leads me to wish that he had contributed a longer essay of his own. He notes that many socio-legal scholars have convincingly contended that law, or legal ideology, thrives precisely by sustaining such contradictions or tensions (Scheingold 1974; Ewick and Silbey 1998). Such a recognition that wariness and faith, skepticism and trust, can coexist in healthy ways seems somewhat foreign to most essays, except Bybee’s, however. But, again, this omission makes the book a potentially fascinating text for study of how contemporary knowledge about courts is reproduced in public legal discourse and how it matters for politics.

REFERENCES:
Brigham, John. 1987. THE CULT OF THE COURT. Philadelphia: Temple University Press.

Ewick, Patricia, and Susan S. Silbey. 1998. THE COMMONPLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago: University of Chicago Press.

Galanter, Marc. 2005. LOWERING THE BAR: LAWYER JOKES AND LEGAL CULTURE. Madison, WI: University of Wisconsin Press.

Gibson, James L. 2008. “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and ‘New-Style’ Judicial Campaigns.” AMERICAN POLITICAL SCIENCE REVIEW 102 (#1, February): 59-75. [*836]

Gibson, James L., Gregory A. Caldeira, and Vanessa Baird. 1998. “On the Legitimacy of National High Courts.” AMERICAN POLITICAL SCIENCE REVIEW 92 (#2, June) 343-358.

Haltom, William, and Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago: University of Chicago Press.

McCann, Michael, and William Haltom. 2008. “Ordinary Heroes vs. Fallen Lawyers: Public Interest Litigation in the Movies,” LAW AND SOCIAL INQUIRY. Vol. 33: 4, 1043-1078.

Sarat, Austin, Lawrence Douglas, and Martha Merrill Umphrey (eds). 2005. LAW ON THE SCREEN. Stanford, CA: Stanford University Press.

Scheingold, Stuart S. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. New Haven, Ct: Yale University Press.

BEFORE EARTH DAY: THE ORIGINS OF AMERICAN ENVIRONMENTAL LAW, 1945-1970

2009-11-16T01:30:00.001-05:00

by Karl Boyd Brooks. Lawrence, Kansas: University Press of Kansas, 2009. 288pp. Cloth $34.95. ISBN: 9780700616275.

Reviewed by Wesley T. Milner, Department of Law, Politics and Society, University of Evansville, wm23 [at] evansville.edu.

pp.827-830

As we quickly move toward the pivotal United Nations Climate Change Conference in Copenhagen this December, there is increasing debate over environmental degradation and the law that is emerging to combat it. In most environmental law classes, the opening bell usually sounds around the first Earth Day in 1970, if not a couple of years before. School children around the country know that this special day comes every spring and cajoles us to focus on mother earth and how to protect the fragile ecosystem. Since that rallying call, most of the well-known (or notorious, depending on your position) legislation has been forged in Washington and state capitals around the country. In their popular text, Kubasek and Silverman (2007) point out that over two dozen federal laws were indeed implemented in the decade from 1969 to 1979. These include the National Environmental Policy Act, Federal Clean Air Act, Federal Water Pollution Control Act, Clean Water Act, Federal Safe Drinking Water Act, and Superfund (CERCLA). Even the venerated National Resources Defense Council still argues on their website that environmental law “. . . has only been around since about the time of the first Earth Day.”

In a work that proudly admits it is swimming against the current, Karl Boyd Brooks argues that the twenty-five year period before 1970 is a pivotal era of legal wrangling that has previously not been fully examined. Following the early work of William Hurst (1964) who studied the lumber industry in 19th century Wisconsin, Brooks attempts to expose just how, when and where this American environmental law was created immediately after WWII. He proposes to accomplish this not by focusing on Washington and the federal register, but rather by looking at individual actions of local and state players, such as lawyers, judges, clients/interests and elected officials. Further, he contends that an environmental history of environmental law needs to explain how the field links people and nature since both have affected the outcome.

Brooks is very straightforward from the start in laying out a number of key questions that he will spend the next 200 pages answering. Though he is an historian, lawyer, and former state legislator, the author approaches the subject like a social scientist. He argues that the primary changes in legal thinking and action came long before elected officials weaved them into statutory fabric. This is in keeping with John Adams’ assessment of the American fight for independence and revolution where citizens changed their hearts and minds even before the war commenced. [*828]

Much of the first chapter is spent recounting (and setting up the straw man for) all the numerous scholars and texts that stubbornly hold on to the notion that virtually all environmental law commenced after 1970. Chapter Two painstakingly goes back to the early days after World War II to seek the real origins of the seed planting for environmental law. In Missouri, the transition to peace from the protracted depression and then years of war provided prosperity and opportunities for creative environmental lawmaking. These included the Fish and Wildlife Coordination Act (FWCA) and the new procedures crafted by the Administrative Procedure Act (APA), both enacted in 1946. The progress in legal principles and political practices in the first five years of the postwar era would propel the country through the early years of the turbulent Cold War and toward securing these victories in the mid to late 1960s. Here, Brooks reverts to his historical roots and highlights a number of pioneers from the trenches in state conservation departments to the halls of Congress and U.S. Fish and Wildlife offices. Key to the success of this early experiment was the emergence of a fledgling coalition consisting of returning veterans and civilians affluent enough to enjoy pastimes such as hunting and fishing. Representatives, such as Willis Robertson from Virginia, played a pivotal role in promoting the environment and adeptly fought President Truman’s development strategy of placing federal dams throughout the Missouri, Columbia and Mississippi watersheds.

Chapter Three delves into the weeds of environmental lawmaking by focusing on the minutia of the administrative state. Brooks notes that the administrative state had expanded from necessity and design in order to address the aftermath of depression and world war. Administrative critics pushed for more open procedures on agencies and judicial review of agency policies to protect constitutional rights (especially concerning property, due process, equal protection, and liberty). Brooks provides numerous examples of how lawmakers empowered administrators to regulate the environment across the country. The intense and increasing interactions of the various players (e.g., state administrators and politicians, Congress, federal judges, citizens, and federal natural resource agencies) forged the basic building blocks for environmental law making. Further, the judicial review stemming from APA “. . . empowered a wide range of citizens to use administrative law to make some of America’s most important environmental law during the Cold War era” (p.58).

Chapter Four illustrates how rising pressure on natural resources, coupled with increased concerns for public health, empowered local and state governments to regulate private behavior. This new federalism ushered in dramatic laws especially focused on air and water quality. Brooks further argues that federal and state statutes during this period actually (if not unintentionally) altered the judicial branch. Judges from state benches to the Supreme Court found that guarding constitutional rights resulted in their playing a more salient role in environmental lawmaking. Here, the author paints an informative and entertaining picture of the epic battle between Justices William O. Douglas and Felix Frankfurter concerning the [*829] proper relationship between federal courts and executive agencies.

Chapters Five and Six examine the nationwide spread of environmental concerns and the subsequent push for national regulations to address the increasing impact of post-World War II life in the U.S. Notwithstanding his acknowledgement of Rachel Carson’s seminal work in 1962, Brooks is consistent in his argument that the heavy lifting was actually performed by Carson’s predecessors (e.g., Aldo Leopold 1949) well before the early 1960s. While Carson may have jettisoned environmental concerns into popular culture, the transformation of American society was already well underway. Here, he raises three cultural shifts that occurred before 1962: the proliferation of outdoor recreation, the expansion of suburbs, and the flowing of prosperity to a wide swath of the population. This consumer frenzy slowly galvanized some citizens to question seriously post-war consumption and land use practices. Brooks chronicles a number of successful writers (from popular magazines to novels) who adeptly exposed the dilemma of this rampant and wasteful growth.

Because of the borderless nature of pollution, average citizens and lawmakers soon realized that even creative state approaches to regulation were not sufficient, and national rules would be needed to impact real change. Disputing noted scholars such as Richard Andrews (1999) and Richard Lazarus (2004) who argue that states and local players rightly ceded power to the nationalization of environmental law, Brooks maintains that this process of nationalization was well underway during the 1960s. Further, the 1962 Federal Water Pollution Control Act Amendments simply continued the national process that was started in 1948 and accelerated in 1956. The author continues in meticulous fashion to relay a number of convincing victories from California’s pacesetting statewide air quality regulation in 1959 to President Johnson’s signing of the 1963 Clean Air Act, which itself was modeled on the water quality act from two years before.

One such story undergirding Chapter Seven highlights a lone, crusading, environmental lawyer representing the Idaho Wildlife Federation. In unlocking the extensive files of Bruce Bowler, Brooks exposes a sixty-year career that helped forge American environmental law. Bowler and others like him from the Northwest in the 1950s and 1960s defined the new arena of law. This included, “citizen standing to participate in administrative and judicial proceedings; national pollution control standards enforced by state action; natural resource agency democratization; ‘public interest’ broadened to encompass environmental objectives; mass media scrutiny of environmental issues; and a political movement that crossed state lines, stretched partisan boundaries, and blurred older economic and ethnic divisions” (p,149).

In his penultimate section, Brooks turns his sights away from politicians and the rank and file citizenry to the existing legal profession and its training grounds. He draws upon a disparate group of well-known practicing attorneys and law professors from around the country to drive his point home once again that environmental law was not an immediate phenomenon in 1970, but rather an [*830] example of incremental and nuanced change that had emerged from a quarter century of hard work. In examining these scholars’ and practitioners’ writings, Brooks provides rather convincing evidence that the conventional wisdom was even being challenged 40 years ago.

Brooks finally closes not with a bang, but with a whimper. While his writing is cogent throughout, he concedes that environmental law (whether or not the reader is convinced that it developed long before 1970) is perhaps not up to the challenges of the twenty-first century. During this period of emerging environmental law and “awareness,” citizens continue to buy large vehicles, contribute to urban sprawl, consume large amounts of energy, patronize corporations that waste natural resources, and require a lifestyle of comfort and leisure that is simply unsustainable. Having said that, he does issue a call to arms to the next generation of environmental lawyers and concerned citizens. Overall, this substantial work will no doubt excite environmental historians and policy wonks, but is not necessarily applicable to undergraduate environmental studies students or freshmen law school attendees.

REFERENCES:
Andrews, Richard. 1999. MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY. New Haven, Connecticut: Yale University Press.

Carson, Rachel. 2002. SILENT SPRING. Boston: Houghton Mifflin.

Hurst, Willard. 1964. LAW AND ECONOMIC GROWTH: THE LEGAL HISTORY OF THE LUMBER INDUSTRY IN WISCONSIN, 1836-1915. Cambridge, Massachusetts: Belknap Press of Harvard University.

Kubasek, Nancy and Gary Silverman. 2007. ENVIRONMENTAL LAW, 6th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall.

Lazarus, Richard. 2004. THE MAKING OF ENVIRONMENTAL LAW. Chicago: University of Chicago Press.

Leopold, Aldo. 1949. A SAND COUNTY ALMANAC. New York: Oxford University Press.

THE SUPREME COURT’S ROLE IN AMERICAN INDIAN POLICY

2009-11-09T01:42:00.001-05:00

by John H. Vinzant. El Paso: LFB Scholarly Publishing, 2009. 188pp. Hardcover. $62.00. ISBN: 9781593323301.

Reviewed by Renee Ann Cramer, Program in Law, Politics, and Society, Drake University. Email: renee.cramer [at] drake.edu.

pp.823-826

The value in this book lies in its attempt to bring federal American Indian law into the conversation scholars have about the role of the Supreme Court in policy-making. As such, specialists in American Indian law would be better served by reading any of the several other volumes on the Supreme Court and federal Indian law currently published (Canby 2009; Duthu 2008; Getches 2004), or the recent classics in the field (Wilkins 1997; Wilkins and Lomawaima 2002; Williams 2005 ), but students of judicial policymaking interested in seeing a novel application of their debates, or interested to learn a bit about federal Indian law, may want to pick up this slim volume.

Vinzant clearly elaborates the competing views on the question of judicial influence on policy. His introduction summarizes the arguments made by Dahl, Chayes, Horowitz, Rosenberg, and Melnick; and his second chapter introduces the relationship of the debate over judicial activism and restraint to questions of the proper role of the Supreme Court in policymaking. This introductory chapter is a nice, if not exceedingly nuanced, literature review of the field. Vinzant closes the chapter with a question and an interesting and compelling claim. He asks, “What conditions exist for effective judicial influence?” (19). And he answers, “I utilize a study of Indian policy and focus on two specific areas: tribal legal and political protections from individual state power and the creation of the federal trust responsibility to determine judicial effective influence” (ibid). His reason for focusing on Indian policy is compelling; as he points out, such a focus “provides an opportunity to examine changes in federal policy goals, the use of precedent, and an unbroken chain of years of judicial involvement” (ibid.). And, in the next four chapters, as a corrective to what he views as a shortcoming in the literature Vinzant engages in textual analysis of key Indian law doctrine from four periods in the history of US-Indian relations.

In other words, Vinzant’s work rests on the assumption that federal Indian law is a unique lens through which to view the debate over the proper role of the Supreme Court. This is a novel approach within federal Indian law scholarship, which usually seeks to understand what the Court is doing, and why, and how it impacts reservations and tribal peoples, not how these understandings contribute to theories and understandings of the Court.

Prior to such an analysis, though, Vinzant’s third chapter, a “Brief History of Federal Indian Policy,” offers a survey necessary for anyone not already grounded in the history and reality of tribal politics and law. He cites from [*824] standard and well-accepted sources: Paul Prucha, Vine Deloria, Jr., and Charles Wilkinson, and tells a rather uncontroversial story of American Indian law and politics.

Throughout the remaining chapters, Vinzant notes the tension that the Supreme Court has encountered in adjudicating much tribal law, the tension between assimilation and separatism. As Stephen Cornell’s work has aptly shown, not only has the Supreme Court encountered this tension, but so have legislators, tribal governments, and reservation residents. In many views, this tension is the over-riding paradigm within policymaking for/against/with/on American Indian populations. Vinzant argues that the Court’s decisions have clearly responded to shifts in legislative intent regarding assimilation and/or separatism, and that when legislative intent has been clearer, the Court’s latitude in policymaking has been constrained. However, since a constrained Court also relies heavily on precedent, and precedent on issues of American Indian law is famously confused and diverse, we have a paradox – a Court seeking constraint with unlimited precedent upon which to draw, especially in the absence of clear congressional intent, or, more likely, in the presence of untenable Congressional intent.

It is the presence of untenable Congressional intent, and Vinzant’s lack of attention to it as a matter of later jurisprudence, that might be disturbing to a close reader of American Indian law. While at times the clear intent of Congress is to aid tribal self-governance, at other times the clear intent is disenfranchisement and forced assimilation. Rob Williams has famously written that the Rehnquist Court is the most racist, anti-Indian Supreme Court in American history; certainly a similar argument could be made about several of the Congresses that have taken up American Indian issues. I would like Vinzant to make more of the disparity between Congressional intent and justice in regards to tribal issues than he does. In fact, a more normative focus would be welcome in general, as he argues that one of the goals of the book is to “improve” policymaking, but the definitional aspects of such an improvement are lacking.

Vinzant’s subtle and nuanced treatment of the trust relationship and the doctrinal strands developing (and deviating from) such a relationship is quite good. I would like to see an extension of that nuance to his treatment of judicial policymaking in this realm, in general.

But, as a whole, this book is not about American Indian law, and his treatment of the cases, though often nicely done, is truncated. A reader would get a good sense of doctrinal development, and a deep treatment of one or two aspects of federal Indian law, from this book, but the point of the manuscript is not to illuminate Indian law. It is, rather, to illuminate judicial policymaking. Using tribal law as a focal point, Vinzant intervenes in the Dahl-Rosenberg-Melnik debate, and finds the following:

1. Clear expressions of Congressional intent will make it less likely the Supreme Court will engage in effective policymaking.
2. The presence of competing tribal/state interests will make it more likely that the [*825] Court will effectively influence policy and side with state interests.
3. Clear expressions of court precedent will make it less likely the Court will engage in effective policymaking (33).

I am not certain that these findings will surprise many Court scholars, just as I am not certain that his analysis of Supreme Court Indian law will surprise many Indian Law scholars. This book, then, is a useful introduction to both topics, but not the final word in either. It is clearly not meant for specialists, but for the general, interested reader. I imagine its effective use in a variety of classroom settings.

And herein lies a larger trouble.

I would feel comfortable assigning this book an in introductory class on judicial policymaking, or on federal Indian law, with the enormous exception of how poorly edited it is. This is not a critique I enjoy making, and I try not to nit-pick texts; however, the sheer number of truly horrendous typographical, punctuation, and grammatical errors make this book nearly un-assignable. I could not imagine the hypocrisy of asking my students to attend to these details, while assigning a book that clearly does not. The book is part of a series in Law and Society edited by Melvin Urofsky; the poor copy-editing reflects badly not only on the author (who did not attend to galleys, clearly), but also on the series itself. If subsequent editions are published, I urge the author and editors to rectify the significant copy-editing errors, starting with the last page, on which the text reads, “This dissertation attempted to identify factors” (171). Attention to fixing these details would have made the volume more accessible to general readers interested in American Indian law, and judicial policymaking.

REFERENCES:
Canby, William C. Jr. 2009. AMERICAN INDIAN LAW IN A NUTSHELL. San Francisco: West Publishing.

Chayes, Abram. 1976. “The Role of the Judge in Public Law Litigation.” HARVARD LAW REVIEW. 89:1281-1316.

Cornell, Stephen. 1988. RETURN OF THE NATIVE: AMERICAN INDIAN POLITICAL RESURGENCE. New York City: Oxford University Press.

Dahl, Robert A. 1957 “Decision-Making in a Democracy: The Supreme Court as a National Policy Maker.” JOURNAL OF PUBLIC LAW. 6 (Fall): 279-95.

Deloria Jr., Vine. 1969. CUSTER DIED FOR YOUR SINS: AN INDIAN MANIFESTO. New York City: The Macmillan Company.

Duthu, N. Bruce. 2008. AMERICAN INDIAN LAW: THE PENGUIN LIBRARY OF AMERICAN INDIAN HISTORY. New York City: Viking Adult.

Getches, David. 2004. CASES AND MATERIALS IN FEDERAL INDIAN LAW. San Francisco: West Publishing.

Horowitz, Donald. 1977. THE COURTS AND SOCIAL POLICY. Washington DC: Brookings Institution. [*826]

Melnick, R. Shep. 1983. REGULATION AND THE COURTS: THE CASE OF THE CLEAN AIR ACT. Washington DC: Brookings Institution.

Prucha, Francis Paul. 1984. THE GREAT FATHER: THE UNITED STATES AND THE AMERICAN INDIAN. Lincoln: University of Nebraska Press.

Wilkins, David E. 1997. AMERICAN INDIAN SOVEREIGNTY AND THE UNITED STATES SUPREME COURT. Austin: University of Texas Press.

Wilkins, David E. and K. Tsianina Lomawaima. 2002. UNEVEN GROUND: AMERICAN INDIAN SOVEREIGNTY AND FEDERAL INDIAN LAW. Norman: University of Oklahoma Press.

Wilkinson, Charles F. 1987. AMERICAN INDIANS, TIME, AND THE LAW. New Haven: Yale University Press.

Williams, Robert Jr. 2005. LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA. Minneapolis: University of Minnesota Press.

RETHINKING ASYLUM: HISTORY, PURPOSE, AND LIMITS

2009-11-09T01:40:00.000-05:00

by Matthew E. Price. Cambridge and New York: Cambridge University Press, 2009. 290pp. Hardback. $80.00/£45.00. ISBN: 9780521881166. Paper. $32.99/£17.99. ISBN: 9780521707473.

Reviewed by Kevin R. Johnson, University of California, Davis School of Law. E-mail: krjohnson [at] ucdavis.edu.

pp.819-822

RETHINKING ASYLUM is a provocative effort to reconceptualize the law of asylum and refugee protection in the West. Offering a politically savvy look at an area of law that deserves just such attention, the book showcases the strengths of its author, Matthew Price, who is trained in both political science and law.

Price’s basic premise is that the principal function of asylum law, which is designed to provide relief to refugees from certain kinds of persecution, is – and should be – to allow governments to express political value judgments about the governments from which the persecuted flee. The book thus embraces “the political conception of asylum – as limited in focus to persecuted people, as expressing condemnation of the persecuting regime, and as linked to a broader strategy to reform that regime” (p.26).

While focusing on the political messages sent by asylum decisions, Price arguably undervalues the humanitarian impacts of the narrower asylum policies that it advocates. Importantly, the “expressive character” of asylum (p.72) that Price defends is at odds with the approach taken by human rights advocates, as well as the general trend of international asylum law in the post-World War II period (p.85). For example, he at one point belittles the humanitarian approach to asylum as serving the purpose “to receiving states [as nothing more than] moral self-satisfaction” (p.94). The conflict between the political versus the humanitarian approach to asylum replays itself throughout the book.

The first two chapters of RETHINKING ASYLUM lay the foundation for the subsequent analysis. Chapter 1 offers a detailed legal history of the “political roots” of asylum law from ancient Greece to the present. Chapter 2 defends the expression of political judgments by governments about other governments through grants and denials of asylum.

Grounding the analysis in the expressive political function of asylum, Chapter 3 considers the definition of “persecution” for purposes of asylum. Endorsing a narrower definition of “persecution” than human rights advocates generally do (“‘[P]ersecution’ should be defined as serious harm inflicted or condoned by official agents for illegitimate reasons” (p.135, emphasis added), the chapter reviews some “hard cases,” including the treatment of rebels seeking to overthrow a government and persons who flee civil war, a condition that raises the “fear of opening the floodgates” to hordes of foreigners (p.131).

Chapter 4 analyzes whether persecution by private parties, which is at issue in the much-publicized cases of women [*820] who flee domestic violence or fear female genital mutilation, should give rise to cognizable claims of asylum. RETHINKING ASYLUM would limit eligibility for asylum based on persecution by private parties to only those instances in which government is unwilling (as opposed to unable) to provide protection (p.155), such as when the state refuses to protect women from domestic violence.

Chapter 5 proceeds to analyze the “toolkit” available to governments in dealing with refugee flows, including asylum, temporary protection, and refugee admissions. Unfortunately, Price fails to consider some of the oft-criticized inadequacies of some of the tools in the kit, such as the foreign policy bias in the overseas refugee admissions program in the United States. Chapter 5 insightfully demonstrates how more liberal asylum grants and increasing numbers of claims have contributed to the growth of political pressures in recent years for aggressive (and excessive) curbs on “asylum abuse,” including detention, filing deadlines, limits on work authorization, corroboration requirements, and many others. Put differently, more liberal - some might say more reasonable - treatment of asylum claims has produced a political backlash of sorts.

Chapter 6 reiterates the book’s conclusions.

RETHINKING ASYLUM convincingly demonstrates that governments have historically used asylum to express disapproval of regimes that they want to condemn for foreign policy reasons. However, it assumes but does not establish that this is a good thing in modern times. During the Cold War, for example, the United States and most of the Western nations politicized relief to persons fleeing persecution in other nations. Persons fleeing the old Soviet Union, Cuba, and the rest of the Eastern bloc, including athletes, entertainers, or true political refugees, generally received relief while most similarly situated persons fleeing the U.S. government’s authoritarian allies, such as El Salvador, Guatemala, and Haiti, generally did not. Price acknowledges this history (pp.6, 24) and the great human costs of “underprotection” of asylum-seekers (p.91), but surprisingly appears to use this historical experience as a blueprint for the expression of future political value judgments by governments about enemy regimes.

RETHINKING ASYLUM offers few true justifications besides past practice, except for the utilitarian and the politically expedient, for restricting asylum to its expressive political function. Consequently, Price never squarely addresses the all-important normative question whether asylum decisions should rest primarily on the political message the receiving nation is sending to the world about the sending country by a grant of relief. Given the state of international law, such a justification seems necessary.

Contrary to the book’s gospel, international law seeks to restrict the precise political expression by states in asylum decisions. The United Nations Protocol Relating to the Status of [*821] Refugees (Jan. 31, 1976, 19 U.S.T. 6223, 606 U.N.T.S. 267) incorporates the ideologically neutral definition of “refugee” from the United Nations Convention Relating to the Status of Refugees (July 28, 1951, 19 U.S.T. 6260, 189 U.N.T.S. 137): a “refugee” must have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion . . . .” Through the Refugee Act of 1980 (Pub. L. No. 96-212, 94 Stat. 102), U.S. immigration law incorporates the Protocol’s definition of refugee, with the Act’s legislative history making it crystal clear that ideological and geographical litmus tests, the bread-and-butter of governments seeking to express political judgments through grants of asylum, should not be part of asylum decision-making (Anker and Posner).

Despite the dictates of international and domestic law, U.S. asylum decisions reflect foreign policy bias. Put differently, as RETHINKING ASYLUM advocates, the U.S. government has often used asylum as a tool for expressing political views about particular governments. (Johnson; Kenney and Schrag; Ramji-Nogales, Schoenholtz, and Schrag). This fact, however, does not make it right, much less legal. That states use asylum to express foreign policy judgments remains an important insight, whether or not one agrees with the government’s use of asylum for those ends. Rather than bring the law within international norms, RETHINKING ASYLUM seems to suggest that the proper course is to bring the law into line with the states’ conduct.

Two issues not raised by the book – nor by many other scholarly works on asylum – need to be addressed for those observers truly interested in reforming asylum law. First, any asylum system can only be fully and properly understood as part of a nation’s overall system of regulating immigration. If the immigration admissions system for a nation is overly restrictive given the level of demand to immigrate to that country, noncitizens seeking modes of lawful entry will exert pressures on the asylum provisions of that system. For example, if a noncitizen is living in the midst of a civil war but has limited employment skills and no family ties in the United States, coming here lawfully is extremely difficult to do and to seek asylum may be one of few available options. In that way, efforts to pursue asylum may be symptomatic of deeper structural problems in an immigration system.

Although not considering more far-reaching immigration reforms, RETHINKING ASYLUM condemns the current migration systems in the Western world and states bluntly that, “[b]y and large, the West’s migration policy is indifferent to the reality of a brutal, dangerous, and grossly unequal world” (p.245). The book, however, fails to try to improve the impacts of those tough immigration policies but instead would make asylum law more, not less, indifferent to the real world consequences.

Second, RETHINKING ASYLUM leaves the reader to wonder what role racism, as well as plain vanilla nativism and xenophobia, plays in the formation of the backlash against “asylum abuse.” In a time when many asylum-seekers are people of color as that term is generally understood in the United States, most observers would claim that racism plays some role in the backlash. One could look at this racism and suggest that nations should (1) fashion policy to [*822] further racist sentiments (a tactic that seems consistent with narrowing asylum to avoid the backlash but would be inconsistent with worldwide efforts to eradicate racism), or (2) ignore such invidious sentiments (and perhaps even send a message that the nation does not condone or promote racism by pursuing a humanitarian asylum policy that is based neither on ideology nor foreign policy and, for that matter, the race of the applicants). The issue, which is at the core of the debate over immigration and asylum the world over, requires acknowledgement, consideration, and analysis.

REFERENCES:
Anker, Deborah, and Michael Posner. 1981. “The Forty Year Crisis: A Legislative History of the Refugee Act of 1980.” 19 SAN DIEGO LAW REVIEW 9-89.

Johnson, Kevin R. 1991. “A ‘Hard Look’ at the Executive Branch’s Asylum Decisions.” 1991 UTAH LAW REVIEW 279-360.

Kenney, David Ngaruri, and Philip G. Schrag. 2008. ASYLUM DENIED: A REFUGEE’S STRUGGLE FOR SAFETY IN AMERICA. Berkeley: University of California Press.

Ramji-Nogales, Jaya, Andrew Schoenholtz, and Philip Schrag. 2009. REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM. New York: NYU Press.

CONDUCTING LAW AND SOCIETY RESEARCH: REFLECTIONS ON METHODS AND PRACTICES

2009-11-09T01:36:00.001-05:00

by Simon Halliday and Patrick Schmidt (eds). Cambridge, UK and New York, NY: Cambridge University Press, 2009. 304 pp. Cloth. $85.00/£55.00. ISBN: 9780521895910. Paperback $32.99/£19.99. ISBN: 9780521720427. eBook format. $26.00. ISBN: 9780511537271.

Reviewed by Mark Kessler, Department of History and Government, Texas Woman’s University. Email: MKessler [at] twu.edu.

pp.814-818

In this useful and creative book, Simon Halliday and Patrick Schmidt present edited transcripts of oral histories conducted with twenty-eight prominent socio-legal scholars about the methods they employed in conducting twenty-one major research projects. Chapters focus on the joys, dilemmas, and methodological challenges experienced in research projects producing such well regarded monographs as Robert Kagan’s REGULATORY JUSTICE, Malcolm Feeley’s THE PROCESS IS THE PUNISHMENT, Lawrence Friedman’s THE ROOTS OF JUSTICE, John Heinz and Edward Laumann’s CHICAGO LAWYERS, Alan Paterson’s THE LAW LORDS, Keith Hawkins’ ENVIRONMENT AND ENFORCEMENT, John Conley and William O’Barr’s RULES VERSUS RELATIONSHIPS, Sally Engel Merry’s GETTING JUSTICE AND GETTING EVEN, Tom Tyler’s WHY PEOPLE OBEY THE LAW, Gerald Rosenberg’s THE HOLLOW HOPE, Michael McCann’s RIGHTS AT WORK, Austin Sarat and William Felstiner’s DIVORCE LAWYERS AND THEIR CLIENTS, Yves Dezalay and Bryant Garth’s DEALING IN VIRTUE, Patricia Ewick and Susan Silbey’s THE COMMON PLACE OF LAW, Hazel Genn’s PATHS TO JUSTICE, John Braithwaite and Peter Drahos’ GLOBAL BUSINESS REGULATION, and John Hagan’s JUSTICE IN THE BALKINS. Other chapters explore methodological issues in research described in frequently cited articles in law and society –Stewart Macaulay’s “Non-Contractual Relations in Business,” David Engel’s “The Oven Bird’s Song,” and Doreen McBarnet’s “Whiter than White Collar Crime.” These chapters are placed between an introductory essay, “Beyond Methods – Law and Society in Action,” written by the book’s editors, and a conclusion written by Herbert Kritzer, “Research is a Messy Business – An Archeology of the Craft of Sociolegal Research.”

In their introductory essay, the editors suggest that a primary goal of this book is to create “a useful resource for junior researchers of various intellectual interests and methodological approaches” (p.8). Among other things, they hope that the interviews, conducted with scholars who describe important research projects from the very beginning of the law and society movement to the present, demonstrate that “uncertainty and ambiguity are not products of a particular age of a field, but are ever present.” Further, the editors write that they “hope that these interviews will help lessen the anxieties that attend this condition” (p.13). In pursuing these modest goals, the volume [*815] surely succeeds. Halliday and Schmidt place the interviews within the well-known framework of legal realism, comparing and contrasting “law on the books” with “law in action.” They write that “[j]ust as early sociolegal scholars exposed the gap between law in the books and law and action, so we might, as a scholarly community, consider the gap that inevitably exists between research methods and the realities of research” (p.2). In applying this framework, the editors highlight aspects of the interview transcripts that illuminate the fact that research projects – research in action – do not always follow the scripts we learn in methods textbooks – research on the books. Rather, the stories told in this volume about well known and respected research projects show “what it feels like to be out in the field,” the “social realities of conducting research,” providing “a window into the lived reality of research,” a reality suggesting the “imperfect path of the research process” (pp.1-2). Scholars at various stages of their career and with varying levels of research experience learn, or perhaps relearn, important lessons of doing research, especially field research, that include the reality that ambiguity, difficulty, uncertainty, messiness, and doubt are the norm in major research projects, especially those charting new directions. Readers learn to expect the unexpected, look for serendipitous opportunities, realize that completed research projects may only scratch at the surface of the topic, and that many scholars experience a certain level of disappointment with the depth of what they learn. Interviews in this collection show that scholars producing important work may continue to feel, even after years since publication, a sense that their projects were not completed. Malcolm Feeley, for example, felt that his research on misdemeanor courts could have benefitted from more interviews with more participants in different roles. These types of lessons, Halliday and Schmidt write convincingly, suggest that “research methods need to be demystified and understood as social practices” (p.4).

Interviews throughout the book are beautifully crafted. The questions are excellent, helping the scholars to reflect thoughtfully on their projects, often from the initial idea to their conclusion. The narratives provided by the researchers are often warm, extremely engaging, very human, revealing, and sometimes touching. This, I believe, is a tribute to the interviewers as well as to the thoughtfulness of self-reflective interview subjects with a striking ability to see the significance of their methodological choices. Interviews communicate quite clearly important characteristics of successful scholars, such as great excitement about the research enterprise, enthusiasm in the search for truths, humility regarding the tasks of research and their own accomplishments, and a genuine love of learning. Along with significant insights about the research process generally, such as Tom Tyler’s suggestion that “the theoretical framework is what really matters in a project” (p.143), readers will benefit from excellent suggestions and advice anchored in concrete projects. David Engel, for example, suggests that scholars seeking to learn about typical social processes in places like “Sander County,” the subject of his research, interview key figures such as beauticians, bartenders, and funeral parlor operators, who occupy significant [*816] roles in the community that may not appear to be central when the researcher first appears on the scene. Several scholars offer important practical suggestions, such as to take notes on interviews shortly after conducting them, and offer advice on the intricacies of site selection, gaining access to interview subjects, and issues of access, trust, and interviewing across lines of racial, ethnic, and class difference.

Interview transcripts also produce interesting personal anecdotes. For example, Malcolm Feeley initially planned to title his study of misdemeanor courts “Substantive Justice and the Adjudicative Ideal.” One day as he struggled to describe the significance of his findings to StantonWheeler, he said “I’m trying to say that no one is so concerned about the sentence because what’s going on here is that the process is the punishment.” Feeley quotes Wheeler as responding, “That’s your title” (p.48). Gerald Rosenberg tells a story of being personally devastated after presenting a paper as a graduate student on a panel at the annual meeting of the APSA on his controversial findings regarding law’s ineffectiveness in producing social change. Rosenberg was so shaken by the criticisms of what later became THE HOLLOW HOPE, and by being what he perceived to be the sole focus of the discussant and audience criticisms, that he had trouble rising from his chair when the session mercifully ended. At this moment, two compassionate scholars that he had not met previously, Lee Epstein and Larry Baum, consoled the shaken graduate student and gave him a “pep talk.” Many of us can relate to a disappointing public talk about our work. Graduate students and junior faculty scholars may find that such stories help them to prepare for potentially nuanced receptions for their research. Indeed, how scholarly work is initially received in preliminary forms and the researcher’s reaction to commentary may play important roles in the research process.

While there is much that we can learn from the interviews in this volume about practical issues in research, especially field research projects, the editors miss opportunities to place these interviews in a broader framework and, thus, raise more fundamental questions about the research process and its products. They write in the introductory essay that some who read their manuscript suggested that these interviews could be employed in developing a sociological study of law and society research. They resisted, they write, because their ambitions were more modest. This is disappointing, even if understandable, because the lack of a broader framework narrows the insights that readers may derive from the interviews that are presented. In their essay, the editors introduce the notion that research methods may be viewed as “social practices,” but this notion is not developed further. If they use this concept in ways similar to philosophy of science, such as in the work of Bruno Latour (1988), analyses of research method would focus attention on the social impact of research products. Developing a view of method as social practice, for example, may have important implications for how we view the role of research in either discovering or, alternatively, constructing social reality.

The question of how social research, and indeed how law itself, relates to “reality” and whether or not quotation marks [*817] should be placed around the term reality have been intensely discussed and debated within the law and society community. Tensions between objectivity and subjectivity, positivism and post-positivism, empiricism and interpretation, have all been explored in socio-legal studies. These debates, which should be of interest to junior and senior scholars alike, are not represented in this volume, despite the fact that scholars interviewed for this project, as well as other prominent socio-legal researchers, have divergent views on such questions. At the very least, readers without an historical view of the law and society movement might not realize that, at the same time that much of the research described in this book was conducted and published, questions were raised about objectivity, empiricism, and positivism in socio-legal studies by such scholars as David Trubek (1984), David Trubek and John Esser (1989), Austin Sarat (1990), and Christine Harrington and Barbara Yngvesson (1990), along with a host of scholars associated with critical movements in legal studies. Indeed, some of the scholars interviewed for this book raised important questions about traditional methods of research and the assumptions underlying their use.

Nevertheless, Herbert Kritzer does an excellent job in his concluding chapter of looking across the interviews and project descriptions for common themes – how research evolves, the challenges of data collection, the importance of writing as part of the research process, the benefits and difficulties of collaborative work – and drawing reasonable conclusions. In this chapter, he focuses on the distinction between quantitative and qualitative research, suggesting that the best trained socio-legal scholars will be trained in both types of methods. This is a useful insight, but does not address the notion of method as practice, nor does it question what we produce in our quantitative, qualitative, and interpretive research. Do we provide descriptions and explanations of social reality? Or is that reality constructed by that which we study, law for example, and by the research that we produce? If research and method are “social practices,” what do those practices produce?

CONDUCTING LAW AND SOCIETY RESEARCH is a stimulating book that provides important suggestions and advice regarding how one conducts research and about the habits of mind one may seek to develop to sustain an outstanding program of research. Although important questions regarding the role of socio-legal research are left relatively unexplored, there is much to be learned from the research experiences described in the skillfully edited interview transcripts.

REFERENCES:
Harrington, Christine B. and Barbara Yngvesson. 1990. “Interpretive Sociolegal Research,” 15 LAW & SOCIAL INQUIRY 135.

Latour, Bruno 1988. SCIENCE IN ACTION. Cambridge: Harvard University Press.

Sarat, Austin 1990. “Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-empiricist Sociology of Law.” 15 LAW & SOCIAL INQUIRY 155. [*818]

Trubek, David M. 1984. “Where the Action Is: Critical Legal Studies and Empiricism.” 36 STANFORD LAW REVIEW 575.

Trubek, David M. and John Esser 1989. “ ‘Critical Empiricism’ in American Legal Studies: Paradox, Program, or Pandora’s Box?” 14 LAW & SOCIAL INQUIRY 3.

PROPERTY RIGHTS AND NATURAL RESOURCES

2009-11-09T01:19:00.001-05:00

by Richard Barnes. Oxford: Hart Publishing, 2009. 472pp. Hardcover. £60.00/$110.00. ISBN: 9781841135892.

Reviewed by Daniel H. Cole, R. Bruce Townsend Professor of Law, Indiana University School of Law – Indianapolis. Email: dancole [at] iupui.edu.

pp.806-813

Aristotle, writing in the Fourth Century BCE, remarked that goods held most in common receive the least care. In other words, unowned or open-access resources tend to be over-exploited, degraded, and sometimes destroyed. During the course of the twentieth century, Aristotle’s observation became known as the “tragedy of the commons.” Decades before the biologist Garrett Hardin (1968) coined that expression in his eponymous 1968 article in Science, economists including Jens Warming (1911), Scott Gordon (1954), and Antony Scott (1955) had analyzed the problem in the context of open-access fisheries. Subsequently, economists (including Clark 1973 and Umbeck 1981), legal scholars (including Ellickson 1991 and Cole 2002) , political scientists (including Ostrom 1990 and Sened 1997), anthropologists (including Ensminger 1990 and Hann, ed., 1998), and historians (including Merrill 2002 and Richards, ed., 2002) developed a large, if not always well integrated, literature on the application of property regimes to natural resources. In particular, much has been written about (a) “common pool resources,” which, because of physical or economic attributes, such as size, mobility, or the expense of bounding, defy ownership or control by a single individual or even a single state, and (b) the means by which states or groups of resource users have sought, successfully or unsuccessfully, to avert commons tragedies through the application of private, common, or public ownership regimes, domestic or local regulatory systems, or hybrid property and regulatory regimes. Somewhat surprisingly, given the international scope of many common pool resources, little attention has been paid, until now, to the international legal dimensions of commons problems and solutions.

Richard Barnes, Senior Lecturer in Law at the University of Hull, fills the gap admirably with his superb new book, PROPERTY RIGHTS AND NATURAL RESOURCES. A more accurate title might have been “Sovereignty, Property Rights, and Marine Resources” for Barnes’s book is concerned exclusively with the extension of sovereignty and property rights to marine resources. Land and air resources are not included. But the book is no less valuable for its narrower focus, which is hardly narrow at all. Marine resources give Barnes plenty to write about. His 400-page treatise is a comprehensive, detailed, and eminently readable history and assessment of international legal regimes developed over the centuries to facilitate sovereignty-based conservation of scarce marine resources, including through the use of private, common, or hybrid property regimes. In addition, the book provides an accessible and nuanced survey of theories and justifications of private property, as well as a chapter comparing domestic marine fishery [*807] management systems in various countries.

The first part of the book rehearses general theories and justifications of property. There is not much here that is novel but the exposition is lucid and useful, particularly for readers previously unacquainted with those theories and justifications. Barnes canvasses all of the major theories and justifications, including both positive and natural law-based theories of property, and justifications based on liberty interests (protection from the state), economics, and “propriety.” Certain specific points in his exposition might be questioned. For instance, he asserts quite confidently (on pages 22-9) that excludability is the sine qua non of property. Although some legal scholars (such as Merrill 1998) would agree, others (such as Fennell 2009) have argued that other rights of property, such as alienability, are every bit as fundamental. There are also a couple of outright errors in Chapter 2’s section on economic approaches to property rights (the Pareto efficiency criterion does not in fact require interpersonal utility comparisons; and the combined Kaldor-Hicks efficiency criteria do not generate the Scitovsky Paradox). But Barnes is hardly the first legal scholar to make technical errors in describing economic concepts.

One element missing from the opening chapters is a clear delineation of the types of property systems. Barnes uses the terms “private property,” “common property,” and “collective property,” as if they were self-explanatory. In fact, they are not. Confusion often arises among various property categories, particularly between common property (res communes) and state/public property (res publicae), and between common property and nonproperty (res nullius). Barnes, himself, conflates common property and open-access at one point in Chapter 4 (p. 153) (although he quickly corrects himself by noting that common property “may resemble private property” if access is limited to one group of co-owners, which is the case by conventional definition). In fact, most common property is private property, in that it is privately owned by a group of owners. It is distinguished from not from private ownership per se but from individual private ownership. More to the point, common property is not characterized by the absence of the right to exclude, as Barnes’s suggests – and if that’s what the court held in the case he sites, then so much worse for that ruling – but by joint ownership of the right to exclude non-members of the ownership group (among other rights) (see Cole 2002, p. 11). The complete absence of the right to exclude is, rather, the hallmark of open-access (res nullius). Understanding that crucial point would have helped Barnes when, later in the book, he attempted to define just what property regimes applied on the high seas. Instead of recognizing that complete non-exclusivity on the high seas denoted a system of non-property (which actually denotes the absence of any property system), Barnes falls into a needless debate (with O’Connell 1982, 1984) as to whether it was a regime of common property, public property, or non-property (p. 167). A resource that is common to all is not common property but non-property.

In Chapter 3, Barnes addresses the “public functions” of property rights. In this context, when he uses the term [*808] “property,” it is implicit that he is referring only to private property, as distinguished from public or common property. Had he established a clear typology of property systems prior to Chapter 3, Barnes could have distinguished the public functions of private property from the public functions of public property. That said, the chapter provides an important discussion, especially in the light of existing international legal regimes, of first-, second-, and third-order public interests. Among the first-order public interests is a guaranteed minimal level of subsistence, regardless of who holds what property rights in resources. Second-order public interests include institutions that are required to secure the social order, including sovereignty and jurisdiction. Property itself, Barnes asserts (p. 112), is rooted in the social order. Finally, third-order public interests include more society-specific institutions designed to achieve domestic aims and ambitions, including for example freedom of expression and guarantees of due process. At the end of Chapter 3, Barnes suggests that the public functions of property are marginalized in most accounts of property, which focus on its libertarian private function. However, Barnes’s own account of public-interest regulation of private property rights is incomplete for neglecting the substantial challenges posed by public choice theory (for example, Buchanan and Tullock 1963 and Olson 1965). Moreover, in discussing the plenary legal communities that impose public interest restrictions on property, Barnes focuses exclusively on the State and the international community, ignoring local resource user groups, which he clearly knows (given his citations to Ostrom 1990) are capable, at least sometimes, of successful collective action to protect scarce resources. In addition, when discussing the “public functions” of private ownership in Chapter 3, as well as “stewardship” duties in 4, Barnes misses an opportunity to introduce a strong and ancient common-law basis for property duties in the form of nuisance law. Such a discussion would have come in handy later in Chapter 6, where Barnes notes limitations on sovereignty, akin to nuisance law, imposed by international law: states must ensure that activities within their jurisdiction or control do not cause damage to other States or the environment outside of their borders (p. 236).

Chapter 5 provides an overview of the influence of property concepts on the historical development of the international law of the sea. That law, Barnes notes, is rooted in two concepts in inherent tension. One is freedom on the high seas, based on a conception of no sovereignty, jurisdiction, or property. The other is a notion of state sovereignty over coastal seas and resources, which has extended over the centuries from near-shore areas. Importantly, as Barnes notes back in Chapter 4 (p. 135), the extension of sovereignty up to 200 miles from the shoreline (the “exclusive economic zone” or EEZ) was based not on physical excludability of ocean resources but on the proxy of “legal excludability.” The move from physical to legal excludability was both historical and political. The first treatise writers on international law, including Hugo Grotius, believed that property rights could not exist in something, like the [*809] ocean, that could not be “seized or enclosed.” Thus, Grotius described the ocean – inaccurately, according to the Roman typology of property systems – as “common property in perpetuity” (p. 171) (again, goods that cannot be controlled by anyone or any group exclusively do not constitute common property but non-property or open-access (res nullius)). In contrast to Grotius, the English jurist John Selden believed that the sea was both divisible and potentially bounded by identifiable geographic features, such as islands or outcroppings of rocks. As a consequence, at least some parts of the sea could be – indeed, must be – bounded to protect the sovereign interests of those who controlled adjacent lands (p. 175). Selden’s notion of the mare clausum or closed sea, though apparently at odds with Grotius’s mare liberum (open sea), nevertheless recognized the traditional importance of free navigation and fishing on the high seas, that is, those areas not immediately adjacent to sovereign territories. Thus, Selden distinguished between open-access high seas and sovereign-controlled – public property or Crown (private) property? – “inner seas” or coastal waters.

With the rise of the European “Great Powers” in the eighteenth century, pressure increased to legally enclose coastal waters. What Barnes does not explain was that this pressure was exacerbated by mercantilist economic theories (which are sometimes manifested even today), according to which economic growth is a zero-sum game between sovereigns seeking to maximize domestic growth (at the expense of other sovereigns). They do this by protecting domestic producers from foreign competition and promoting exports. Mercantilism increased pressure to extend sovereignty, jurisdiction, and property rights over ocean resources that increasingly were valuable for trade, particularly fisheries. So, the extent of coastal waters subject to legal enclosure expanded, as Barnes notes, in accordance with the “cannon-shot rule.” Sovereignty extended as far as a canon ball could be shot from the shore. Barnes claims that this approach was consistent with the notion of res nullius, according to which the ocean could become property by “effective occupation” (p. 184). It is not clear how the ability to fire a cannonball, however inaccurately, up to three nautical miles from the shore constituted “occupation.” Nevertheless, as Barnes explains, the cannon-shot rule was firmly entrenched in international law by the time of the American Neutrality Act of 1794, which claimed a three nautical mile zone of sovereign control around the US coast (p. 185).

Even more significant for the future development of international law was the customary practice of the Scandinavian countries to assert, without any actual occupation, sovereignty over coastal waters extending two to six leagues from the shore for the exclusive use of domestic fishers. By the middle of the twentieth century, states were claiming “territorial seas” extending from a few miles to as far as 200 miles from shore. Barnes notes that these claims were mostly premised on domestic, rather than international, law (p. 197). Nevertheless, he locates support for the claims in the writings of various jurists, including Grotius, Puffendorf, and Bynkershoek. One big difference between these twentieth-century claims and earlier claims was the focus of concern not with the ocean itself but with marine resources [*810] including fish and sea-bed minerals. Barnes explains that this shift had technological origins with the rise of offshore drilling in the 1920s. “Economic and political drivers, combined with a technological capacity to exploit the mineral resources of the seabed, gave rise to claims to exclusive economic jurisdiction over the continental shelf” (p. 199). The Truman Proclamation of 1945 clearly articulated a “reasonable and just” claim of contiguous nations to natural resources found in or under seas covering the continental shelves. After all, those resources could not be adequately conserved without the cooperation of those contiguous nations. Part IV of the 1982 Law of the Sea Convention ultimately codified the extension of state sovereignty over waters above the continent shelf.

Meanwhile, concern over fisheries and fishing rights led to a further extension of state sovereignty that ultimately led to the international legal codification of 200-mile Exclusive Economic Zones (EEZs). Barnes explicates the history, including conventions, treaties, and international legal disputes over fishing rights, that led up to this codification. The “catalyst” was, once again, the 1945 Truman Proclamation, which included a unilateral claim by the American government to exclusive rights to exploit resources in coastal seas. This Proclamation, Barnes notes, did not constitute international law, but it spurred other states to make similar claims (p. 206). For instance, in the Santiago Declaration of 1952, Chile, Ecuador, and Peru recognized one another’s 200-mile EEZ. In fact, the newly independent and developing countries pushed more strongly than the traditional maritime powers for more extensive sovereignty over coastal waters. The traditional powers, for the most part, sought to maintain minimal coastal state jurisdiction. By 1978, Barnes reports (p. 214), 23 states had claimed 200 nautical mile exclusive fishing zones, and another 38 had claimed exclusive economic zones. Although the 200 nautical mile limit is “something of an accident,” without “geographical, ecological or biological significance” (p. 283), Article 56 of the 1982 Convention on the Law of the Sea expressly recognized the EEZs. At the same time, however, Article 56 imposed duties on sovereigns asserted EEZs, including the duty to use the “best scientific evidence” to avoid over-exploitation of resources in the EEZ (p. 284). Barnes acknowledges, however, that the Convention lacks the enforcement mechanisms needed to give teeth to this requirement, which explains why massive over-fishing in territorial waters continues (p. 284). This observation simply reflects the fundamental challenge of virtually all international legal regimes, which is enforcement.

To this point in his book, all of the historical developments Barnes describes are focused on the extension of state sovereignty over marine resources. He devotes Chapters 6 and 7 to explanations, respectively, of how the extension of sovereignty (a) could be viewed as establishing property in marine resources (at least as between sovereigns) and (b) satisfied a prerequisite to the institution of private property regimes in marine resources. In Chapter 6, Barnes acknowledges that sovereignty is a power of governance or “exclusive regulatory authority” rather [*811] than property per se. But he asserts, as the legal philosopher Morris Cohen (1927) did more than 80 years before him, that property and sovereignty are closely related terms. Whereas Cohen stressed the governance quality of property, establishing the owner with sovereign-like qualities, Barnes stresses the ways in which sovereignty orders property-like relations between nations (p. 223). Like Cohen, Barnes ultimately concludes that property and sovereignty “amount[] to much the same thing” (p. 274). But, in contrast to Cole (2002, pp. 708), Barnes does not posit that government regulation of access to and use of marine resources itself constitutes a shift in property regimes from res nullius by res publica. Barnes does, however, agree that territorial sovereignty is, like property, “comprised of [Hohfeldian] jural relations” (p. 228). It includes the right to exclusive possession, against other sovereigns and their citizens, the right to use the resources and to benefit from their use.

Not all traditional property rights are encompassed by assertions of sovereignty over natural resources. Although Barnes does not use the precise phrase, sovereigns have a “public trust” responsibility to their citizens not to waste, destroy, or alienate irrevocably marine resources subject to state sovereignty. In addition, international law imposes additional conditions on sovereign management of marine resources within their exclusive control, including a nuisance-like requirement that states, in managing their resources “do not cause damage to the environment of other States or of other areas beyond the limits of national jurisdiction” (p. 236, quoting Principle 21 of the 1972 Stockholm Declaration). International law also requires States to engage in notice and consultation with other states that might be affected by their management of shared natural resources, such as cross-boundary fisheries.

In Chapter 7, Barnes discusses the scope of property rights in territorial seas and substantive international legal limitations on sovereignty/property rights in territorial seas, including for example, the right to “innocent passage” of ships through territorial seas (p. 259). Like easements or rights of way on land, “innocent passage” is not an unconditional right, but is subject to the laws and regulations of the sovereign coastal state relating to navigation, resource conservation, pollution control, scientific research, customs, etc. (p. 260). Most importantly, Barnes notes, “[a]s coastal State sovereignty extends to the territorial sea it follows that the State may implement property systems in this zone in the same way that it can in respect of its land territory” (p. 261). In other words, the State can convert its public property into private, or partly-private, property. Privatization of marine resources in the territorial seas is most commonly seen with respect to fisheries, oyster beds, and offshore oil leases.

Chapter 8 focuses on the various property regimes that states have deployed to more efficiently exploit and conserve marine fisheries in territorial (that is, sovereign) waters. His descriptions of the several types of input controls, territorial use rights, individual quotas, community development quotas, and stock use rights in fisheries are clear and very useful, as are his descriptions of how those various types of property regimes are variously used in countries [*812] like Australia, Canada, Iceland, New Zealand, and the United States. As Barnes notes, in none of these countries do property rights in fisheries amount to “full ownership.” They may be limited in scope, in duration, in alienability, and in use. In Cole’s (2002) terms, they amount to partial privatization of public rights in fisheries. Thus, they are a hybrid property regime. But this does not render them ineffective. Barnes finds that, generally speaking, they are sufficient to create incentives for fishers to more efficient exploit and conserve the fisheries.

In sum, Richard Barnes has written the most extensive and detailed book to date on sovereignty and property rights in marine resources under international law. Regardless of quibbles over certain details, Barnes has done a masterful job of combining theory and history to explain how international law has gradually expanded sovereignty and property rights to one of the two great global commonses: the oceans (the other is the global climate). As such, it makes a great contribution to the larger cross-disciplinary literature on the emergence of property rights in natural resources. It should be read by every legal scholar, economist, and political scientist interested in common pool resource problems.

REFERENCES:
Buchanan, James and Tullock, Gordon. 1963. THE CALCULUS OF CONSENT. Ann Arborn: University of Michigan Press.

Clark, Colin W. 1973. “Profit Maximization and the Extinction of Animal Species.” JOURNAL OF POLITICAL ECONOMY 81: 950-961.

Cohen, Morris R. 1927. “Property and Sovereignty.” CORNELL LAW REVIEW 9: 8-30.

Cole, Daniel. 2002. POLLUTION AND PROPERTY: COMPARING OWNERSHIP INSTITUTIONS FOR ENVIRONMENTAL PROTECTION. Cambridge: Cambridge University Press.

Ellickson, Robert. 1991. ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES. Cambridge, Mass.: Harvard University Press.

Ensminger, Jean. 1990. “Co-Opting the Elders: the Political Economy of State Incorporation in Africa.” AMERICAN ANTHROPOLOGIST 92: 662-675.

Fennell, Lee Anne. 2009. “Adjusting Alienability.” HARVARD LAW REVIEW 122: 1403-1465.

Gordon, H. Scott. 1954. “The Economic Theory of a Common Property Resource: The Fishery.” JOURNAL OF POLITICAL ECONOMY 62: 122-142.

Hann, C.M. (ed). 1998. PROPERTY RELATIONS: RENEWING THE ANTHROPOLOGICAL TRADITION. Cambridge: Cambridge University Press.

Hardin, Garrett. 1968. “The Tragedy of the Commons.” SCIENCE 162: 1243-1248. [*813]

Merrill, Karen R. 2002. PUBLIC LANDS AND POLITICAL MEANING: RANCHERS, THE GOVERNMENT, AND THE PROPERTY BETWEEN THEM. Berkeley: The University of California Press.

Merrill, Thomas W. 1998. “Property and the Right to Exclude.” NEBRASKA LAW REVIEW 77: 730-755.

O’Connell, D.P. 1982, 1984. THE INTERNATIONAL LAW OF THE SEA, 6th ed. London: Longmans, Green & Co.

Olston, Mancur, Jr. 1965. THE LOGIC OF COLLECTIVE ACTION. New York: Schocken Books.

Richards, John R. (ed). 2002. LAND, PROPERTY, AND THE ENVIRONMENT. San Francisco: ICS Press.

Scott, Antony D. 1955. “The Fishery: the Objectives of Sole Ownership.” JOURNAL OF POLITICAL ECONOMY 63: 203-215.

Sened, Itai. 1997. THE POLITICAL INSTITUTION OF PRIVATE PROPERTY. Cambridge: Cambridge University Press.

Umbeck, John. 1981. A THEORY OF PROPERTY RIGHTS: WITH APPLICATION TO THE CALIFORNIA GOLD RUSH. Ames, Iowa: The Iowa State University Press.

Warming, Jens. 1911. “Om ‘grundrente’ af fiskergrunde,” NATIONALOKONOMISK TIDSSKRIFT 495-506, translated in P. Andersen 1983, “On Rent of Fishing Grounds: a Translation of Jens Warming’s 1911 Article, with an Introduction,” HISTORY OF POLITICAL ECONOMY 15:391-396.

PROPERTY IN THE MARGINS

2009-11-01T20:17:00.001-05:00

by A.J. van der Walt. Portland, OR: Hart Publishing, 2009. 294pp. Paper. $70.00/£35.00. ISBN: 9781841139630.

Reviewed by Mihaela Serban Rosen, Institute for Law and Society, New York University. Email: mihaela.serban [at] nyu.edu.

pp.802-805

PROPERTY IN THE MARGINS explores the dynamic between stability and change in property regimes during periods of transformation, aiming to understand how this dynamic opens up spaces for uprooting inequality and injustice. The book shares with current property theory literature its conceptualization of property as power and as social relationship, as well as its normative thrust. It stands apart because it attempts to theorize property from a marginality perspective, and because of its comparative approach. The book focuses on eviction from the perspective of those at the margins of society and property distribution patterns. The primary method is legal analysis of eviction laws and cases in South Africa, Germany and the United Kingdom. In all three countries, at stake is the centrality of property in the rights paradigm: "a set of doctrinal, rhetorical and logical assumptions and beliefs about the relative value and power of discrete property interests in the law and in society" (p.27).

The book’s structure is straightforward: seven chapters, the first three setting out the theoretical approach of the book, the next three the substantive case law discussion – eviction in landlord tenant law, eviction of unlawful occupiers, and limitations on eviction in other contexts – and the last the conclusions and implications for change. The book also includes complete tables of cases and legislation, bibliography, abbreviations list and a useful index. Although the bulk of the book focuses on the three countries mentioned above, cases discussed in various sections also come from Australia, Canada, the European Court of Human Rights, the European Committee of Social Rights, India, the Netherlands and the United States.

The preface situates the book within the context of recent, mostly North American property theory, the origin of the book in the specific post-apartheid South African transition, and the hypothesis that the success of protections against eviction indicates the strength of the rights paradigm. The first chapter discusses in depth the South African context, the history of apartheid and its impact on property, in particular the need for significant changes in wealth distribution through removing apartheid era policies on access to land, natural resources, and freedom of movement. The key issue in the South African context, van der Walt notes, similarly to other transitions, is the simultaneity of peaceful political change and meaningful social and economic transformation. The theoretical framework of the book is Karl Klare’s concept of transformative constitutionalism, the idea that existing rights are protected but also restricted within a constitutional framework that demands and enables significant reform, thus allowing a broad enough framework [*803] for both stability and change. The first chapter also reveals one of the weaknesses of the book, namely the assumption that the intertwining of law and politics through open-ended, policy-oriented, contextual interpretations of the law are to be expected in periods of transition, yet the positivist separation of law and politics predominates under “normal” circumstances.

Chapter 2 analyzes in detail the rights paradigm, the centrality of ownership and property interests, and distinguishes between the civil law and common law models of property. In both traditions there exists the idea of absolute ownership, the rights paradigm is abstract and hierarchical, and they have similar rhetoric and values underlining property. However, while civil law systems, which draw from Roman law and include South Africa’s private law, have an overarching, supreme, abstract and acontextual notion of ownership, common law systems rely upon conflicting claims on possession to solve property conflicts, rather than a single, absolute title that will always trump any conflicting interest or claim. The chapter ends with a brief introduction to paradigmatic landlord-tenant cases in the three countries studied: BRISLEY v. DROTSKY (South Africa), the 1993 German Landlord-Tenant case, and the QAZI case (UK). Comparative property law is a relatively under-populated area, so this type of cross-system comparison is particularly welcome.

The third chapter focuses on eviction in the rights paradigm, mainly in the civil law model of property. It presents similarities between civil law, common law and South African law regarding the right to evict, largely defined by landlord-tenant laws adopted in most countries after the Second World War to protect tenants from exploitation. Van der Walt notes that even dramatic restrictions imposed on landlords nonetheless fail to undermine the landowner’s property rights in two ways: usually, only lawful occupiers such as tenants are protected, and not unlawful ones such as squatters. Second, even this protection usually turns on factors that are within the landlord’s control, such as non-payment, rather than external factors, such as the personal circumstances of the tenant. Courts in both common and civil law systems do not have discretion to look into the occupier’s circumstances, hardship or to take into account the general context. The chapter becomes truly interesting with the author’s analysis of eviction as a political tool during apartheid in South Africa, such as the way it was used to relocate entire communities, the changes to eviction law during apartheid, and their post-apartheid impact. Van der Walt illustrates his points by discussing the post-apartheid case law on eviction and the distinctions between the lower courts’ approach of eviction as a decontextualized tool, versus the Constitutional Court’s and other high courts teleological approach.

The fourth chapter presents in detail eviction in the landlord-tenant law of the three countries, as well as the key doctrinal debates. The statutory intervention in landlord-tenant relationships post-Second World War set out a tension between private law, favoring ownership and landlords, and statutory law, favoring tenants. The question for van der Walt is whether statutory protections against unfair, arbitrary or unlawful evictions change [*804] the rights paradigm. In all three countries, he concludes, landlord-tenant law qualifies the rights paradigm to various extents, mainly through imposing extensive due process controls over the termination of the lease and the eviction procedure. Substantive restrictions postponing or sometimes preventing eviction also exist, the most extensive of which is when tenants’ circumstances are taken into account. In all three countries, there is significant doctrinal resistance, rather than political conservatism, against major shifts in the rights paradigm. Without going into more detail here, I will only note that the case law analysis is informative and would be very useful for class discussions on comparative law and politics. However, the South African and UK sections of this chapter were very ambitious in scope, and as a result details were plentiful, but the overall picture was not always entirely clear.

Chapter 5 discusses eviction of unlawful occupiers, specifically three categories of active unlawful occupation: politically inspired urban squatters, anti-eviction protection in South African land reform law, and the situation of gypsies and travelers. Van der Walt takes a brief tour through the Dutch, German, English and American political squatting, and points out that although the rights paradigm has not been changed, housing laws in Western Europe were amended because of the political squatting movement. Similarly, post-apartheid land reform laws in South Africa introduced some very promising regulation and a major shift in anti-eviction area, yet the rights paradigm remains strong. In general, unlawful occupiers are more vulnerable than lawful ones, yet they do enjoy protection from eviction, at a minimum due process protection. It is only substantive protections such as the impact of eviction on occupiers that pose a serious challenge to the rights paradigm.

Chapter 6 deals with limitations on eviction in other contexts: acquisitive prescription and adverse possession, public access to private property, significant building encroachments, and the differential protection afforded to weak owners. They are discussed as examples of restrictions on the right to exclude and evict, thus questioning the rights paradigm. In the case of acquisitive prescription and adverse possession, bad faith possession leading to ownership is an indication that the security and exclusivity of ownership is sometimes sacrificed for other policy goals, such as legal certainty or economic efficiency. Public access to private property, such as equal access to public accommodations in the U.S., diminishes exclusivity as a core characteristic of property ownership. In cases of significant building encroachments in most countries compensation, rather than demolition, is the usual result. However, these cases still fit within the rights paradigm, according to van der Walt, since owners could have been spared had they looked after their property diligently, which fits with the autonomy language that underlies the rights paradigm. The real challenge to the rights paradigm is the differential protection of weak owners, in other words the weaker protection of rights held by some persons, such as black property owners in apartheid South Africa, or in forms unknown to Western law. [*805]

The concluding chapter reviews the findings of the book and opens up some interesting points for further analysis. Van der Walt’s broad conclusions regarding the strength of the rights paradigm is that ownership and similar property interests are not nearly as strong as the rhetoric of the rights paradigm might suggest – in some areas, eviction seems to have become a discretionary right that could be denied. Furthermore, this perspective from the margins needs to complement the traditional view of property if progressive change has a chance of happening. The author himself draws the line of when fundamental change happens when the “absolutist assumptions” and personal autonomy logic of the rights paradigm are undermined. Ultimately, his proposal for achieving progressive social change in property regimes depends upon de-centering property and further exploding the identified gap between the ideology and practice of property, a promising future area of research.

The book is outstanding on a number of levels: clarity, organization, questions raised, extensiveness and depth of comparative analysis of property law and doctrine, copious footnotes, and wide-ranging sources. The audience for this book is primarily legal academics, and to a lesser extent law and politics specialists, primarily those with an interest in the law and politics of transition and comparative study of courts. This is not, however, a socio-political or social scientific study, although it poses some of the same questions as studies of impact of law. Although van der Walt understands property as a fundamentally social and political institution with specific historical and cultural roots, this book is mostly a doctrinal analysis, with the political, historical and sociological forces serving as background. It is worth noting two of the inherent legal biases in the book: the reification of property and the silence of those at the margins of property, whose presence is felt only through the cases. Finally, even though the stated purpose of the book is property in times of transformation, the comparison is not with other transitional societies, but with “stable” ones, moreover covering fairly well known countries and cases. These are not essential problems, however. The book is a useful addition to the literature on property theory through its marginality perspective and comparative breadth, and to the broad genre of literature on transitions.

REFERENCES:
Klare, Karl. 1998. “Legal Culture & Transformative Constitutionalism.” 14 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 146-88.

CASE REFERENCES:
BRISLEY v. DROTSKY 2002 (4) SA 1 (SCA) (South Africa).

BverfGE 89, 1 (Besitzrecht des Mieters) [1993] [Landlord-Tenant Decision of the German Federal Constitutional Court].

HARROW LONDON BOROUGH COUNCIL v. QAZI (2004) 1 AC 93 (United Kingdom).

ILLEGAL, ALIEN OR IMMIGRANT: THE POLITICS OF IMMIGRATION REFORM

2009-11-01T20:15:00.000-05:00

by Lina Newton. New York and London: New York University Press, 2008. 240pp. Cloth $65.00. ISBN: 9780814758427. Paper $22.00. ISBN: 9780814758434.

Reviewed by Karen A. Woodrow-Lafield, Maryland Population Research Center, University of Maryland College Park. Email: WoodrowLafield [at] cs.com.

pp.795-801

This well-written and insightful book provides an interesting synthesis on the content and patterns of Congressional debate in the making of immigration policies. Newton examines how the official rhetoric about immigration reforms holds a set of narrative types matching policy options associated with images or social constructions of groups to whom reform measures would accordingly direct either rewards or punishments. Many social scientists, professionals, and practitioners have become knowledgeable of many aspects of the Immigration Reform and Control Act of 1986 (IRCA) and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA or IIRAIRA), and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (also known as the 1996 Welfare Reform Act, PRWORA, or PREWORA). Newton contributes to understanding immigration reform in the 1970s, 1980s, 1990s, what these laws involve, how these laws were made, and why immigration reform continues to be on the agenda. Despite considerable attention from policymakers, there is an accumulation of perceived and real inadequacies, failures, and brokenness, along with unanticipated consequences.

The published record from the Congressional floor serves as a database for Newton’s systematic discourse analysis, as she extracts specific narratives of the IRCA and the IIRIRA debates and contrasts the “causal stories” of 1984-1986 and 1994-1996. The “immigration problem” was defined as the focus of the Select Commission on Immigration and Refugee Policy (SCIRP) (1978-1981), because policymakers had not anticipated the considerable volume and heterogeneity of post-1970 legal immigration. This corresponded with the 1965 changes to the Immigration and Nationality Act which led to more Asian migration, but European flows were already lessening as Latin Americans were dominating U.S. immigration. With minimal statistical infrastructure for discerning quantity, dynamics, and consequences of immigration, U.S. policymakers have grappled with difficulties in shaping immigration policies and responding to demands of the public and interest groups, especially in regard to problems of illegal immigration.

Noting that IRCA passage was exceptional given the recessionary period of the early 1980s and both historical patterns and contemporary public opinion toward policies of immigration-restriction, Newton portrays IIRIRA as extending and expanding upon IRCA enforcement provisions and PRWORA restrictions on [*796] benefits for immigrants and defining both legal and illegal immigration as problematic from a fiscal cost standpoint. The IRCA was meant to solve the illegal immigration problem through provisions for granting legal temporary status for long-term residents and certain agricultural workers with capability for adjusting to lawful permanent residence, intensifying border enforcement, and imposing sanctions to promote employer responsibilities. It was only after enacting IRCA that Congress would seek to improve the legal immigration system and respond through the Immigration Act of 1990 (IA1990) to various demands for increased legal immigration of workers, family members, and others.

The specific narratives and counter-narratives that Newton finds woven in the IRCA debates were the Government-Off-Our-Backs Narrative, the Family Farmer Narrative along with the Corrupt Agriculturists Counter-Narrative, the Anti-Discrimination Narrative (two versions), and the Undeserving Illegal Narrative along with the Deserving Illegal Counter-Narrative. For each, she details the target group, narrative portrayal, target-group construction, narrative policy solutions, and anticipated policy tools based on Schneider and Ingram’s theory on social construction of target populations (1993, 1997). For both IRCA and IIRIRA, she notes the actual immigration policy tools conformed closely to theories based on social construction of the target groups, some coercive, some punitive, and some rewarding. The causal story that Newton finds for 1984-1986 is the classic “push-pull” immigration story in which illegal immigrants are pushed from home to abroad for jobs for which U.S. employers are seeking migrant workers, i.e, a systematic theme for immigration dynamics. Newton finds that the IRCA policy outcomes were not straightforwardly correlated with political power and public images of target populations, as predicted by Schneider and Ingram. Instead, legislators successfully challenged public images that were not fixed and created social constructions as they chose to argue for certain treatments for members of target groups and for including others beyond that group. For example, the Family Farmer Narrative allowed for emphasizing that others, such as food processors and truckers, would benefit from agricultural worker provisions. There were both neutral and contentious constructions and IRCA deemed as deserving those who had worked in seasonal agricultural services for only 1-3 years. Although the agricultural worker provisions were primarily supported by agribusiness, after IRCA, Mexican migrant workers became evident in even very rural Midwestern areas with inadequate local labor force pools.

For new and old scholars of immigration, Newton’s discussion of the early 1990s contexts will be interesting, as she sets forth passage of California’s Proposition 187 and implications for federal policy design based on an ideology of the undeserving. IIRIRA was a reversal of the climate underlying IRCA and the IA1990. In reaction to conservative ideology about the role of government, IIRIRA focused on both illegal immigration and requiring responsibility for family members for the support of sponsored legal immigrants. Beyond IIRIRA itself, immigrant access to federal aid [*797] programs was reinstated shortly thereafter and again in 2002. Newton found several narratives in the IIRIRA debates: the Zero-Sum Narrative, the Pathologies of Federalism Narrative, the Criminal Alien Narrative, the Lawless Border Narrative, and, again, the Government-Off-Our-Backs Narrative, but her analysis indicated only one true counter-narrative, the Cure-Is-Worse-Than-The-Disease Counter-Narrative. Mentioning critiques of border deterrence measures as futile, she gives the causal story for 1994-1996 as portraying illegal immigrants as taking advantage of a border that was not adequately enforced in order to seek jobs and benefits in the United States. Curiously, social scientists were already finding that migrants were altering behavior by staying longer to avoid crossing the border due to intensified enforcement (Massey 1998; Massey, Durand, and Malone 2002; Mexico-U.S. Binational Migration Study 1998). Following this shift and increased labor demand, the unauthorized population increased dramatically during the late 1990s (Bean, et al. 2001).

The book draws nicely upon core reports of the bipartisan Commission on Immigration Reform (1993-1998) and the report of the National Academy of Sciences panel on the Demographic and Economic Effects of Immigration (1996-1998), with sponsorship by the CIR, but findings and recommendations of the Mexico-United States Binational Migration Study (1995-1997), also CIR-sponsored, are omitted. The CIR was chartered to study illegal immigration, but its mission was amended to include legal and illegal immigration. Its work was simultaneous with Congressional debate leading to IIRIRA, and there were detailed briefings to Congressional staff (Gimpel and Edwards 1998). CIR recommendations against restricting legal immigrants’ access to welfare benefits would not be followed. Newton states “lawmakers actually did the opposite of what was recommended: they cut off benefits to legal immigrants (including many classes of refugees), and they did not wait for functional evaluation of existing border initiatives before calling for their expansion.” (pp. 62-63) Nor did Congress take action on CIR recommendations to reduce yearly immigration levels and give higher priority to spouses, minor children, and parents, and eliminate nonnuclear preference categories, to create an electronic eligibility verification system through computerized registry of Social Security numbers, to emphasize enculturation and naturalization of immigrants, and to make admission of parents contingent upon a legally enforceable affidavit of support.

IIRIRA did establish pilot programs for employer verification, including the Basic Pilot that became the national voluntary program in 2003 known as E-Verify. Reading Newton’s sections about the employment verification debate is enlightening. Along lines of the “Cure Is Worse than the Disease,” one legislator used the phrase “camel’s nose under the tent” to express concerns that such a program might evolve into police state tactics threatening individual privacy. Evaluations also flagged the problems of false positives, infringing on due process and the right to work, and prevalence of identity fraud. There was eventually action on CIR recommendations to increase the efficiency and integrity of the naturalization process and to emphasize [*798] the importance of substantive understanding of the basic concepts of civic participation. The Bureau of Citizenship and Immigration Services in the Department of Homeland Security (DHS) introduced the new naturalization test in 2008 with goals of standardization, fairness, civic learning and patriotism. I note here a small mistake (p. 172) that implied the DHS as encompassing the Departments of State and Justice.

As a demographer of undocumented migration and legal immigration, I am intrigued by this analysis of official immigration discourse. My perspective is that research guides policy formulation to some degree, and that sounder policy-making would follow from sharpening this link and from more research about unauthorized migration and populations, propensities to naturalize, immigration multipliers, propensities to return migrate, and demographic and economic impacts of immigration in the long run. An unofficial, illegal, unauthorized, or illicit population has long been resident, and IRCA provisions under which three million unauthorized aliens were legalized over 1988-1991 proved to be only a temporary solution because illegal migration persisted. Many others later became or may yet become IRCA beneficiaries due to outcomes of class-action lawsuits over application eligibility. We are reminded by Newton’s quotations that several legislators viewed the legalization program as a one-time thing, and, in extending legal status, some legislators were reasonably well informed in their discussions of numbers of unauthorized aliens, numbers who might receive legal status under IRCA provisions, and subsequent family reunification and impact on U.S. population growth (pp. 87-88). Congress seemed to recognize statistical needs, mandating various reports (on legalization, employer sanctions and border enforcement) and “a recurring ‘immigration impact’ report” that was to serve as foundation for the formation of immigration policy” (Gordon 2002). Recent debates on immigration reform also included considerations of long-run impacts (Lowell and Bump 2006). I am concerned that Newton’s discussion of unauthorized estimates might lead a reader (or legislator) to too easily accept existing unauthorized estimates and to misinterpret the methodology. Current estimates are not any better in quality than ones made in the 1980s and 1990s by government and other demographers, and the unauthorized population could turn out to be higher, as found for 1980 and 2000, or lower, than now estimated. Simplifying, two sets of aggregate population statistics are compared, that is, foreign-born population and legal foreign-born population, to derive residual unauthorized population statistics. Although unauthorized residents are included in the census, there is not an unauthorized count from the census as Newton implies (p. 151), which is a crucial point because some scholars and advocates argue for basing apportionment on legal residents only.

The control and abatement of unauthorized immigration may be perceived by some as an “intractable social policy issue” (p. 39), based on proven inadequacy of past policies, but others perceive the value of blended policies on trade, migration, and border enforcement to address the specific and unique relationship of the U.S. first with [*799] Mexico, the primary origin of U.S. unauthorized migrants, and possibly with other nations. Many experts explicitly attribute unauthorized migration from Mexico to U.S. failure to even consider structural adjustment subsidies, social harmonization policies, and provisions for labor mobility and immigration reform in shaping the 1994 NAFTA agreements (Massey 2009; Massey, Durand, and Malone 2002). With “migration as a non-starter in NAFTA discussion” (Newton, p. 152), this U.S. strategy of emphasizing border enforcement with only partial economic integration, both legal and illegal immigration from Mexico accelerated after NAFTA, and a disadvantaged population has resulted from unilateral militarization of the US- Mexico border (Massey 2004).

Newton considers race and national origin in the immigration discourse. Which individuals are deserving of an immigrant visa for lawful permanent residence, and which individuals are undeserving of such admission or of receiving public benefits toward assisting with settlement and economic wellbeing? Although Mexicans outnumber Chinese, Filipinos, and Indians, those groups are sizable, and these governments, their ethnic organizations, and individuals are concerned with many of the same issues as in the case of Mexico. Newton notes the limits of a policy discourse racialized on Mexican origin and with a social construction of the “Mexican Other” as “Permanent Foreigner.” Defining Mexicans residing in the United States involves a maze of circularity, ambiguity, and invisibility (Bean et al. 2001), but the Mexican presence is unmistakable. Politicians have also defined non-Mexicans (Haitians, Guatemalans, Iraqis) as “problem” groups. Mexican immigrants have been stigmatized and disadvantaged in contemporary immigration policy, and Mexicans would benefit considerably from another legalization or regularization program, as they did from IRCA provisions.

Contrary to what would be expected from Schneider and Ingram’s theory that newly legalized immigrants benefiting from IRCA would then possess “deservedness,” the IIRIRA meant they were still undeserving until they became naturalized citizens. An unprecedented era of naturalization commenced just as IIRIRA passed, leading to remarkably high levels of citizenship. Micro-level explanations of economic motivation and the family reunification incentive are relevant, but the massive mobilization toward citizenship also occurred for achieving political incorporation in response to IIRIRA’s emphasis on citizens as deserving.

In the wake of IRCA and IIRIRA with its reversal of meaning of legal immigrant status, not surprisingly, many organizations, both restriction-oriented and immigrant advocacy-oriented, emerged, adding to existing organizations and think tanks and becoming highly engaged in efforts to influence the politics of immigration reform. Newton’s work may be helpful in resolving the tussle between symbolic or myth-based arguments and using science for public policy toward maximizing the public good. In one sense, organizations might promote more balanced treatment of different immigrant groups, as opposed to [*800] strategies playing to emotions and fears about immigrants.

Is Newton’s assessment of discourse on immigration and immigrants helpful in gauging the chances of comprehensive immigration reform during the next year or the next decade, possibly including due process protections and alteration of unpopular aspects of a deportation-driven enforcement system? I think she provides some pieces to the puzzle of the immigration reform debate and hints at the broader matrix. Americans value due process and they have realized that deportation orders may affect friends, neighbors, and U.S. born citizens. Many experts are convinced comprehensive immigration reform is needed and varying levels of consensus are found as to such specific measures as legalization or status regularization for some of the 11-12 million unauthorized migrants currently present, establishing a temporary worker program, providing for employer capability in hiring legal workers, and border controls (Massey 2007; Mangan 2008). Much evidence indicates costly, technological enforcement strategies, e.g., the Secure Border Initiative (GAO 2009), will not stop unauthorized migration without broader North American economic integration (Massey 2009).

One hopes Newton continues her focus on immigration politics because this book is worthy reading for faculty, students, practitioners, and researchers from law and political science, sociology, social work, government, public and international affairs, and public administration. At a minimum, I think readers will surely find this book enlightening and appreciate its depth, logic, and detail, but I suspect most will regard the book as an outstanding addition to their library. As Americans, immigrants and natives, we can find affirmation in the embracing of citizenship by millions over 1997-2008 despite the episode of punitive policy that IIRIRA represented.

REFERENCES:
Bean, Frank D., Rodolfo Corona, Rodolfo Tuirán, Karen A. Woodrow-Lafield, and Jennifer Van Hook. 2001. “Circular, Invisible, and Ambiguous Migrants: Components of Difference in Estimates of the Number of Unauthorized Mexican Migrants in the United States.” DEMOGRAPHY 38(3): 411-22.

Gimpel, James G. and James R. Edwards, Jr. 1998. THE CONGRESSIONAL POLITICS OF IMMIGRATION REFORM. Boston, MA: Allyn and Bacon.

Gordon, Linda W. 2002. “The Potential and Limitations of Reporting to Congress: The Triennial Report on Immigration,” 2002 PROCEEDINGS OF THE AMERICAN STATISTICAL ASSOCIATION, Section on Government Statistics [CD-ROM], Alexandria, VA: American Statistical Association: 1209-15.

Lowell, B. Lindsay, and Micah Bump. 2006. PROJECTING IMMIGRANT VISAS: REPORT ON AN EXPERTS MEETING. Institute for the Study of International Migration, Georgetown University. October. [*801]

Mangan, Katharine. 2008. “Immigration: A Campaign Primer.” THE CHRONICLE OF HIGHER EDUCATION, March 21. B10.

Massey, Douglas S. 1998. “March of Folly: U.S. Immigration Policy After NAFTA.” AMERICAN PROSPECT 37 (12): 22-33.

Massey, Douglas S. 2004. Review of WHO ARE WE? THE CHALLENGES TO AMERICA’S NATIONAL IDENTITY, by Samuel P. Huntington. POPULATION AND DEVELOPMENT REVIEW 30 (3): 543-548.

Massey, Douglas S. 2007. “When Less is More: Border Enforcement and Undocumented Migration.” Testimony before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. Committee on the Judiciary, U.S. House of Representatives, April 20.

Massey, Douglas S. 2009. “A Better Way to End Unauthorized Immigration,” Miller-McClune.com, January 10. http://www.alternet.org/story/118048/

Massey, Douglas S., Jorge Durand, and Nolan J. Malone. 2002. BEYOND SMOKE AND MIRRORS: MEXICAN IMMIGRATION IN AN ERA OF ECONOMIC INTEGRATION. New York: Russell Sage Foundation.

Mexico-U.S. Binational Study on Migration. 1997. BINATIONAL STUDY ON MIGRATION BETWEEN MEXICO & THE UNITED STATES. U.S. Commission on Immigration Reform and Secretaría de Relaciones Exteriores, Mexico, printed in Mexico.

Schneider, Anne, and Helen Ingram. 1997. POLICY DESIGN FOR DEMOCRACY. Lawrence: University Press of Kansas.

Schneider, Anne, and Helen Ingram. 1993. “Social Construction of Target Populations: Implications for Politics and Policy.” AMERICAN POLITICAL SCIENCE REVIEW 87 ( 2): 334-47.

U.S. Government Accountability Office. 2009. SECURE BORDER INITIATIVE: TECHNOLOGY DEPLOYMENT DELAYS PERSIST AND THE IMPACT OF BORDER FENCING HAS NOT BEEN ASSESSED. GAO-09-896. Washington, D.C.: U.S. Government Printing Office. September.

CHOOSING LIFE, CHOOSING DEATH: THE TYRANNY OF AUTONOMY IN MEDICAL ETHICS AND LAW

2009-11-01T20:13:00.001-05:00

by Charles Foster. Oxford: Hart Publishing, 2009. 200pp. Paperback. £22.50/$45.00. ISBN: 9781841139296.

Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza, garruego [at] unizar.es.

To weigh up the relevance of the many advances in technology and biomedicine in recent decades has become, to some extent, a common place. These advances have been accompanied by equally transcendent changes in the dominant social and cultural values, which, among many other consequences, have led to the reconstruction of the law governing the biomedical context, and especially the patient-doctor relationship, mainly in terms of fundamental rights. For example, Article 1 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention) declares that “Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine”. But they are also the cause of many tensions in different areas of the Law. This assertion would be especially true for Constitutional Law and fundamental rights theory, due to the nature of most of the issues involved.

In this sense, lawyers are prompted to give from the existing Law precise juridical answers to the dilemmas and new scenarios derived from those advances which are expected to fit those changing cultural and social values. It has to be stressed, however, that most of the time those answers must be provided, if possible, from juridical structures which were not created to face the new biomedical challenges. Let us think, for example, about the many new problems arising from the perspective of fundamental rights such as the right to life, to physical and moral integrity, to privacy, and to freedom of religion or beliefs.

This is the framework of CHOOSING LIFE, CHOOSING DEATH, by Charles Foster, in which he engages in an “assault” on the alleged pre-eminence and hegemony of the principle of autonomy in the English medical law context. Accordingly, the intention of the book is to examine “the extent to which autonomy is already the ruling principle in English Medical Law,” to propose other different principles that should come into play, mainly non-maleficence, beneficence and justice, and to indicate “how those other principles might affect the law” (p.6). With this purpose, Foster examines some of the most relevant issues in English Medical Law according to the following thematic structure: “Before life” questions, “Between birth and death” issues, and “After death” problems. [*792]

The first part of the book is thus devoted to the principles that, in Foster’s view, rule and should rule English medical Law. In this sense, the first chapter (“Autonomy, Challenging the Consensus,” pp.3-15) is intended to set out the elements of a “fundamental critique of the extraordinary status of autonomy,” while the second (pp.17-19) suggests other principles different from autonomy that should contribute to medical ethics and medico-legal debates. It has to be stressed, however, that the reader should not expect a deep analysis of the meaning and legal implications of principles, such as non-maleficence, beneficence or justice, as that is not the intention of the author; principles which, according to Foster, are almost “ignored and at great cost” and are expected to play a fundamental role in his book. Finally, Chapter Three (pp.21-28) examines, almost exclusively, and defends, the doctor’s and even administrative staff’s conscientious objection clause especially in abortion procedures.

The second part of the book, dealing with “Before Life” biomedical issues, opens with a focus on “Reproductive autonomy” (pp.31-39). Based on previous case-law, Foster examines the questions of whether one should be required to reproduce (Blood and Evans) and whether you should be entitled to have a child in three different contexts: adoption (with special attention and critique of how the criterion “best child interest” is understood), prisoners [ELH and PHB v UK, ECHR (1997)] and assisted reproduction procedures. The final purpose would be, according to Foster, “to make the point that once we step out the medical world we do not expect autonomy to have the last word” (p.38). He then addresses the problematic question of “Abortion” (pp.41-54), beginning with the assumption that “There is no reason to distinguish a foetus in utero and a child ex utero” (p.53). Finally, Foster also explores “Questions raised by reproductive technology” (‘pp.55-62), following the same line of reasoning with the exposition of different case-law material and with special attention to the issues raised by genetic selection.

In the most extensive section of the book, part three, Foster deals with different biomedical matters, grouping them with the generic title of “Between birth and death.” Chapter Seven examines, again departing from real case-law such as the Sue Axon case, some of the problems posed by “Confidentiality” (pp.65-82) in biomedical law. Chapter Eight is devoted to “The Law of Consent” (pp.83-125), which Foster defines as the “fundamentalist heartland of traditional autonomy” (p.82). The chapter opens with the examination of a diverse set of cases, including REEVES v. COMMISSIONER OF POLICE OF THE METROPOLIS (relating the duty to prevent suicide), R. v. BROWN and OTHERS (concerning consensual sadomasochist sexual intercourse) and the so-called caesarean section cases. Foster then moves to the analysis of some problems of the decision making process in the medical context, such as the information required by the exigency of informed consent prior to any intervention in the health field, the limits of consent, the problems posed by Biobanks, and the complex issue of capacity with special attention to children. [*793]

Chapter Nine, entitled “Litigation, rights and duties” (pp.127-132), begins with examination of issues relating to litigation in English tort Law but then moves to the doctor’s duty to treat a patient and the allocation of resources in a public and universal healthcare system and some questions connected – for example, whether a right to demand a certain treatment exists. “Medical research on humans” (pp.133-142) considers the issue of medical research carried out with both competent and incompetent human beings and raises questions regarding the law governing these matters in the UK, the Oviedo Convention and the Helsinki Declaration. It also treats some problematic and controversial cases, such as those depicted in SIMMS v. SIMMS and in some clinical trials carried out by the pharmaceutical industry in the Third World.

The closing chapter of this section (pp.143-161) is devoted to the question of end of life decisions (euthanasia, assisted suicide and advance directives) and, as in the abortion case, Foster’s principles framework is clear from the outset: the principle of sanctity of life and the primacy of the fundamental right to life, which, although controversial, is considered by the author as a “usual and logical hierarchy” as a consequence of the factual argument that “unless one has life, one has nothing to which any article 8 right can attach”(pp.147-148) In exploring this issue, Foster adopts the classical distinction between “the withdrawal of life-sustaining treatment and the performance of an act whose intention is to bring about death,” which is simply described as “the deliberate execution of a patient” (p.149), and shows a clear worry for the questions connected with “competence” and “free choice” in such a complex context.

The final part, “After Death,” is structured in two chapters. Chapter twelve, “Transplantation” (pp.165-171), focuses on live donor transplantations and especially underlines some issues arising when the donor is an incompetent person and the question of whether those donations which imply the death or serious harm to the donor should be allowed. Chapter thirteen (“The ownership of bodyparts,” pp.173-180) describes the main contents of the English Human Tissue Act 2004.

When reading Foster’s book, one should be aware of some special features which are not usually present in what it could be called a “classic” piece of academic work. It has to be underlined, however, that to write an unusual book was Foster’s original intention, at least accordingly to the views and opinions he expresses throughout.

From a strictly stylistic point view, Foster’s anthropomorphic discourse concerning the principle of autonomy, to which most of the time he refers as a real being, is notable. However, problems arise as many times the reader might have the impression that far from being a mere literary device, this anthropomorphic way of writing seems manipulative, a problem which increases as soon as these formal questions are connected to issues concerning the book’s essence. It is not only that the author’s discourse can be perceived as unidirectional, as he continuously presents autonomy as a being with authoritarianism, egocentric or dictatorship manners (autonomy is for example described as “ruthless,” “fat and [*794] brutal in power”), while the other “contenders for a voice” are always described as humble, positive and just looking for their place without pretending to monopolize the bio-legal debate. The really problematic question is that the reader would probably expect much more evidence and juridical reasoning to sustain such vigorous criticism. In this sense, legal argumentation should not be dangerously subordinated to or abandoned to mere “logic,” “decency” or “common sense” (compare, e.g., pp.89, 148). This is obvious, too, when examining the questionable use and content Foster gives to the principle of justice, the appellation usually made to beneficence, non-maleficence and justice or some inconsistencies present in his work.

Furthermore, sometimes the reader could have the feeling that the image of the principle of autonomy provided and criticised, is a deformation and exaggeration of the implications and possible meanings of the principle of autonomy in a democratic context characterized by the recognition and protection of fundamental rights and freedoms, as well as of other constitutional principles, goods and values. This intuition could be extended too to the alleged “tyranny” of the principle in the medico-legal debate and in the medical Law.

In the end, it could be argued that all the questions articulated in the book, which are many and problematic indeed, and which according to Foster are attributable to the “hegemony” of the principle of autonomy, are most of the time constitutional issues, where what it is at stake are constitutional rights, values and principles; fundamental rights, by the way, which can be conceived and interpreted in different ways. Some clearly diverge from the conception of autonomy portrayed by the book. Of course, in a democratic context, the solutions provided by the Law and its interpretation by the Courts are open to criticism, but one should never miss the point. In this context, the general impression is that Foster would probably feel more comfortable in a medico-legal context where heteronomous criteria had a more prominent voice, as it happened when “old fashion medical paternalism” ruled medical Law.

CASE REFERENCES:
SUE AXON v THE SECRETARY OF STATE FOR HEALTH (The Family Planning Association: intervening) [2006] EWCA 37 (Admin).
The Caesarean Section Cases:
ST. GEORGE’S HEALTH CARE NHS TRUST v. S [1998] 3 All ER 673.
Re MB [1997] 8 Med. LR 217.
ELH and PHB v UK [1997] 91 A-DR 61.
REEVES v. COMMISSIONER OF POLICE OF THE METROPOLIS [2000] 1 AC 360.
SIMMS v. SIMMS [2003] 1 Fam 83.
R. v. BROWN and OTHERS [1993] 2 All ER 75.

JUDGE MADE FEDERALISM: THE ROLE OF COURTS IN FEDERAL SYSTEMS

2009-11-01T20:10:00.001-05:00

by Beniamino Caravita di Toritto, Jutta Kramer, and Hans-Peter Schneider (eds). Baden Baden, Germany: Nomos Verlagsgesellschaft, 2009. 260pp. Paper. $61.00/€49.00. ISBN: 9783832942229.

Reviewed by Kirk A. Randazzo, Department of Political Science, University of South Carolina. Email: randazzo [at] mailbox.sc.edu.

pp.788-790

Many political issues around the world arise because of the relationship between superior and inferior governmental units in federal systems. Lacking appropriate political solutions, these issues often enter the judicial arena through specific litigation. For many scholars, questions concerning federalism and judicial decision-making are extremely important. Yet, few examinations exist that focus on federalism across multiple institutional environments. Thankfully, Professors di Toritto, Kramer, and Schneider – and their edited volume, JUDGE MADE FEDERALISM: THE ROLE OF COURTS IN FEDERAL SYSTEMS – provides insights taken from several countries.

The book is organized around country-specific chapters, with authors providing details pertaining to important constitutional and federalism questions within the specific jurisdiction of their courts. The countries represented include Italy, South Africa, Spain, Great Britain, Germany, Russia, Australia, Canada, the United States, and Austria. Additionally, a final chapter focuses on questions of federalism as they manifest in common law versus civil law countries. Without discussing each chapter individually, let me comment on a few notable examples to illustrate the types of information provided in JUDGE MADE FEDERALISM.

The book begins with a chapter written by Beniamino Caravita di Toritto on the Italian Constitutional Court and its role in recent constitutional reforms. Professor di Toritto notes the myriad of problems involving questions of federalism since the constitutional reforms of 1999 and 2003. For example, several substantive areas of law are covered by concurrent legislation from the central State and the Regions. The resulting confusion has allowed the Italian Constitutional Court to modify “the relationship between the central State and the Regions, based on the relation [of] fundamental principles” (p.26). These fundamental principles include a) detail legislation; b) a sense of bargaining in the Court’s jurisprudence; and c) more involvement of the Regions in the political decision making procedures of the central State.

Nico Steytler then discusses questions of federalism in the Constitutional Court of South Africa. Here, Professor Steytler notes that in the past ten years, the Court has adjudicated several important federalism questions and has stressed that each question was approached “from a position of judicial neutrality, neither for nor against national or provincial government” (p.27). Rather, Professor Steytler argues that when the Constitutional Court renders decisions, “the pragmatics of good governance [*789] become the overriding concern, namely as it most basic level, the ability to deliver services in terms of the law” (p.40).

In examining the Constitutional Court of Spain, Miguel A. Cabellos Espiérrez makes a distinction between two different types of decisions. The first type seeks to “establish doctrine in relation to the major concepts on which the autonomic system is based” (p.43). These include autonomy, the structural principles of the autonomic system, and the relationship between legal orders. The second type of decision focuses on competences in specific areas. Professor Cabellos Espiérrez also notes the somewhat unique legal system in Spain, where “either the State or an Autonomous Community may challenge the norms, provisions, and resolutions of the other body, and one Autonomous Community may also initiate such challenges in relation to another” (p.44). One additional issue that confronts the Spanish Constitutional Court involves substantial delays with decisions. As Professor Cabellos Espiérrez explains, “as a result of these delays, the resolution of a conflict of jurisdiction frequently arrives when the norm under appeal has already been in effect for many years, and in many cases when the damage done cannot be repaired” (p.61).

In the United Kingdom, devolution to Scotland, Wales, and Northern Ireland came following referenda in 1998. As Robert Hazell explains, while these regions operate under the sovereignty of the Westminster Parliament, there are “different sets of powers and functions” granted to each and “very different constitutional designs of the Scottish Parliament, National Assembly for Wales, and Northern Ireland Assembly” (p.66). Yet, the three regions are supposed to litigate ‘devolution issues’ before the Judicial Committee of the Privy Council as required by legislation. However, “in the first six years of devolution no division of powers cases have been referred to the courts” (p.66). Consequently, as Professor Hazell explains, “in the absence of court judgments, the Law Officers provide opinions which are treated as authoritative” (p.67). One of the primary explanations provided for a lack of litigation involves the “Labor-led administrations in London, Edinburgh, and Cardiff, and that this harmony will break down once there are governments of different political persuasions” (p.77).

Jutta Kramer’s essay focuses on questions of federalism in Germany, and notes that “the federal system is submitted to judicial review not only by the Federal Constitutional Court but also by the sixteen Constitutional Courts of the Länder” (p.89). Consequently, it is not unusual to encounter a wide variation of decisions pertaining to federalism at both levels, which sometimes deviate from each other. Additionally, Professor Kramer notes that “the Länder more often challenge the Federation before the Federal Constitutional Court arguing that that Federation has legislated on matters of their exclusive competence” (p.89). The overall conclusion from Professor Kramer’s examination is that the “German Federal Constitutional Court is neither a real promoter of unitarisation nor of decentralization of competences within the German federal system. It rather tries to interpret the Basic Law as narrow as possible” (p.97). [*790]

Hans-Peter Schneider’s examination of Germany focuses on three principles of judge made federalism – loyalty, solidarity, and subsidiarity. He notes that “the German Basic Law provides for no less than five different procedures which can be used in order to take federal disputes between the Federation and the Länder to courts (p.99). As a result, “this vast range of competencies of the courts in federal matters has caused an enormous bulk of decisions dealing with the relationship between the Federation and the Länder or with the constitutional relations of the Länder amongst themselves” (p.99). According to Professor Schneider, the principle of loyalty dates back to the first German Empire established by Bismarck and requires levels of government to “treat each other with respect, kindness, and favor” (p.100). The principle of solidarity is based on the fundamental structure of Germany as a social state. Finally, the principle of subsidiarity means “that matters should be handled by the smallest or the lowest competent authority, so that a central authority should have only subsidiary functions performing only those tasks which cannot be performed sufficiently and effectively at a more immediate or lower level” (p.103).

While I enjoyed reading each of the country-specific essays provided by the various authors, there is one minor (and I stress minor) criticism I could levy against the entire edited volume – the lack of a single, organizing theme. Without such a theme, the essays seem to reflect a simple collection of country anecdotes related to federalism. The inclusion of a well-articulated theoretical framework or organizing theme could have brought the disparate chapters together in a more cohesive volume. It is possible that such a theme is present in the book’s introduction. However, that introduction is written in German – a language which is foreign to me. This raises an interesting question concerning the editors’ choice to offer an introduction in German. It is not clear why this choice was made, perhaps to broaden the appeal of the book to audiences outside the United States. Unfortunately, it seems that a bilingual volume is more likely to reach a narrow audience (i.e. those who are fluent in both languages) rather than a broad set of readers.

Despite this criticism, I believe this is a well-written book that accomplishes an important goal – to help explain how judges in various institutional environments adjudicate disputes involving questions of federalism. For those scholars interested in this topic, I would recommend this volume.

THE JUROR FACTOR: RACE AND GENDER IN AMERICA’S CIVIL COURTS

2009-10-27T09:59:00.001-04:00

by Sean G. Overland. El Paso, TX: LFB Scholarly Publishing, 2008. 178pp. Cloth. $62.00. ISBN: 9781593323288.

Reviewed by Randolph N. Jonakait, Professor of Law, New York Law School. Rjonakait [at] nyls.edu.

pp.780-787

A civilized society needs a civilized means of resolving disputes. Juries are at the heart of our method. Hundreds of times every day juries make decisions that affect not only the lives, fortunes, and futures of individuals and organizations but of society generally. Even so, while anecdotes about juries abound, good research about how juries, our most direct form of participatory democracy, reach decisions is scarce. By presenting new data about juror decision-making in civil cases, Sean G. Overland’s new book, THE JUROR FACTOR: RACE AND GENDER IN AMERICA’S CIVIL COURTS, provides a valuable, but limited, addition to the research literature.

Dr. Overland, a trial consultant who assists clients with case strategy and jury selection, precedes that data with a solid summary of jury research. He reports that most studies conclude that “jurors do a very good job of understanding case evidence and using that evidence to reach decisions” (p.4), and that judges agree with the jury verdicts in a large majority of cases. Furthermore, while it may seem intuitive that the racial and gender composition of juries will affect the verdicts, “most of the academic research on juror decision-making has reached the rather surprising conclusion that jurors’ personal characteristics, including their race, gender, socioeconomic status and so on, have relatively little, if anything, to do with their verdicts in most trials” (p.11). Instead, studies consistently show that “the most powerful determinant of a juror’s verdict in both civil and criminal cases is the strength of the competing evidence. . . . . Several studies have confirmed that the litigant that presents the strongest case is likely to prevail, regardless of any other factors that might affect jurors’ decision making, including the demographic composition of the jury” (p.12).

Overland notes that researchers do not have access to jurors during trials. Instead, data are usually derived from one of three alternative sources. All have their limitations.

Interviews following the completion of juror service are time-consuming and expensive, depend on jurors’ memories and self-reported perceptions that may be faulty, and usually yield sample sizes too small for statistically significant results.

Trial simulations or mock trials, the most common source of data on jury decision-making, can control variables, such as the evidence presented, in order to study factors of interest, such as the demographic characteristics of the jurors. Many such studies, however, have used convenience samples of research participants, most often college [*781] students, who do not accurately represent the pools from which real jurors are drawn. The quality of the evidence presented in mock trials varies widely, from brief, written descriptions of a trial to more lengthy audio and videotaped presentations. In contrast to an actual trial, the mock jurors do not make decisions with real-world consequences, and many of the studies collect information from the individual participants without having them deliberate in panels. Consequently, doubts exist about whether the information gathered from mock trials really applies to actual trials.

Archival data about actual verdicts along with census data from the trial venues allow researchers to seek correlations between verdicts and awards and the venues’ population characteristics. Such information, however, is limited. Not all jurisdictions’ verdicts are available, and the collected information usually reports only the verdict, the size of any award, and the general type of case. The characteristics of the juries are not catalogued, and the correlations with the census data are valuable only with the assumption that that demographic data accurately represent the jury pools and trial juries. Furthermore, as Overland states, “a major drawback of such data is the lack of any control over the types of cases heard or the evidence presented. . . . [B]ecause these data sets include only the most general information about each trial – typically just a broad classification, such as ‘medical malpractice’ or ‘product liability’ – little or no control is possible over the variations presented in each case” (pp.37-38).

Overland further maintains that much of the research suffers from unsophisticated statistical analyses and concludes that good “data [about jury decision-making] are extremely rare, and this scarcity of reliable data may have led researchers to some incorrect conclusions about the relationship between jurors’ characteristics and their verdict decisions” (p.39). He contends that trustworthy information about civil juries is especially scarce. He concedes that the bulk of research on civil and criminal trials, alike, finds little evidence of correlations between those characteristics and verdicts, but he also reminds us that the majority of jury research has concerned criminal trials. He notes that the decisions jurors make in civil cases may allow juror demographics to play a greater role than in criminal verdicts.

Only a small percentage of filed cases result in a trial on either side of the justice system, but the prosecutor has great control in what criminal cases go to trial. As a result, the evidence in criminal trials usually favors the prosecutor, and, not surprisingly, most often the result is a guilty verdict. In contrast, neither civil party has the predominant power in settling cases. As a result, civil liability verdicts tend to be equally split between plaintiffs and defendants. Since civil cases are often more closely contested than criminal ones, it is possible, as Overland maintains, that “jurors must rely to a greater degree on their own intuitions, experiences and personal judgments when reaching a [civil] verdict, [and] their personal beliefs will have the greatest impact on verdicts” (pp.13-14). [*782]

In addition, in civil cases jurors are often asked to do more than merely determine what happened. In a negligence case, the jurors must decide whether the defendant acted as a “reasonable” person under the circumstances; in a products liability case, the jurors may have to determine whether a product was “unreasonably dangerous.” This qualitative assessment of “reasonableness,” Overland concludes, allows for an “inherent subjectivity in the civil verdict decision [that] opens the door for jurors’ personal views to play a greater role than they might in a criminal trial” (p.44).

Overland’s summary of jury research, its limitations, and the differing nature of civil and criminal verdicts, while unsurprising to those familiar with jury studies, should be of interest to others. The real value of THE JUROR FACTOR, however, is the new data presented about juror decision-making in civil cases. They come from the archives of a litigation consulting firm that runs and analyzes mock trials for corporate clients facing major civil litigation. Through random phone numbers and other similar devices, mock jurors from the actual trial venues were recruited to provide a representative sample of the jury pool. Participants supplied both demographic information and, through multiple-choice questions, their attitudes about such things as politics, lawsuits, and corporations. Then through videotapes or live performances, attorneys presented condensed versions of the evidence to the mock jurors, with presentations varying from one hour summaries to three-day sessions. Finally, the participants answered questions about their reactions to the case including their assessment of who should win.

Three different sets of civil cases, analyzed separately, generated the data. In eight mock trials, plaintiffs claimed that accidents with resulting personal injuries were caused by a design defect in an automobile. In nine trials, plaintiffs alleged that a prescription medicine caused severe side effects that were not disclosed by the manufacturer. And in seventeen instances, plaintiffs argued that an accounting firm’s malpractice caused financial losses.

In all three data sets, a higher percentage of blacks than whites and a higher percentage of women than men favored the plaintiffs, although the differences varied by the case. A multivariate analysis, however, that considered income, education, age, political ideology, and attitudes towards big business and lawsuits showed a more complex picture. Each factor, varying by the specific case, correlated with the verdicts. The strongest factor in each case was the attitude toward business. The more a juror trusted big business the more likely the juror would find for the defendant. The second strongest factor in both the car and drug case was the attitude towards litigation. The less a juror thought lawsuits were an effective way of resolving disputes, the less likely the juror would find for the plaintiff. However, even after other factors were controlled for, race and gender still correlated with the verdicts.

In addition to these mock jury studies, THE JUROR FACTOR also presents new data about the deliberations of juries. Other research has cast doubt upon the importance of deliberations. [*783] These studies show a “majority effect” where the ultimate verdict usually follows the jurors’ first vote, indicating that deliberations after the first ballot seldom affect the outcome.. Overland summarizes one such study that found if the initial ballot favored conviction, the jury convicted in 151 of 160 trials, while if that first ballot favored acquittal, the jury acquitted in 37 of 49 trials.

Overland’s deliberations data comes from post-verdict juror interviews after eleven trials involving an alleged automobile design defect. Nine of the verdicts followed the majority’s first vote, eight for the defense and one for the plaintiff. The other two juries were equally split on the first ballot, and both found for the defendant. Overland also reports that non-white jurors were more likely to switch votes during deliberations than whites, but the correlation was small. No significant correlation was found between gender and vote-switching. In addition, those initially favoring the plaintiff were more likely to change their vote than those first finding for the defendant.

The literature suggests two reasons why jurors may switch their votes. Jurors in the minority might succumb to social pressure and switch their votes. Or jurors may change their opinions as they gain new information and perspectives from other jurors. In Overland’s sample, jurors overwhelmingly said that new information caused their vote change.

Furthermore, Overland suggests that his data may show a “leniency bias” in civil cases. This term comes from criminal jury studies reporting that when a jury is equally split on the first vote, juries are more likely to return a verdict of acquittal. Since the two 6-6 civil splits also ended with defense verdicts, the author suggests that a leniency bias may also affect civil cases.

Classifying a verdict for an automobile company as a leniency bias, however, ought to give pause. The data come from jurors who rendered ten defense verdicts out of eleven. This is not generally representative of civil cases, but seemingly a sample where the evidence strongly favored the defendants, and if so, generalizations from it are suspect. Thus, it does not seem surprising in such a data set to find that jurors who first voted for plaintiffs were more likely to switch their votes than the other group. Surely, if the data had come from trials where plaintiffs won 90% of the time, jurors initially favoring the defense more likely would have changed to favor the plaintiff. That the two equally split juries returned verdicts consistent with the overwhelming majority of the other juries perhaps only shows that those favoring the defense had the better of the arguments, not that a leniency bias was operating.

In contrast, the mock trial data do seem more reliable than the data from many other jury studies, as Overland maintains. “The use of a representative sample of ‘real’ people recruited from the trial venue, combined with real attorneys and realistic courtroom conditions, increases confidence in the validity of the conclusions drawn from an analysis of the data” (p.57). However, while the data from each of the three kinds of trial were reported separately, it is not clear that the data could be validly aggregated in this way. In each set there appear to be multiple, uncontrolled [*784] variables. For instance, the mock trials were held in different parts of the country. Can we assume that jurors with similar demographic and attitudinal characteristics from Bethesda, Maryland, Laredo, Texas, Union County, New Jersey, and Riverside, California (some of the locations for the mock drug trials) all behave the same, so that the data from these disparate places can be validly lumped together? Or do the locations of the jurors matter as many attorneys seem to believe? Overland does not tell us.

The evidence presentations within each set seem to have varied from a one-hour videotape to an extended three-day session with live attorneys. We cannot tell from the presented data whether the differing forms correlated with outcomes. The plaintiffs’ cases were not all the same. For example, in the drug prescription cases, the severity of the claimed injury varied. Moreover, the length of time the person used the drugs, and their pre-existing conditions were not constant among the trials. Overland does not report in detail what those variations were, but it is possible that cases of significant differing evidentiary strengths were presented in this set. For example, if two plaintiffs claimed that a drug caused heart arrhythmia, but one used the drug for a week and had a pre-existing heart condition while another used the drug for a year and did not have the pre-existing problem, jurors, because of the evidence, might react differently to the two cases. Such a possibility could have affected the conclusions reached by Overland. For example, 1% of the Charleston, West Virginia, participants were black, while in Houston 60.8% of them were black. If, however, the Houston evidence presented a stronger plaintiff’s case than did the Charleston one, then aggregating the two might lead to the conclusion that blacks were more likely to favor the plaintiffs when the varying strengths of the cases actually produced the apparent racial effect.

In other words, even though Overland’s mock trials do seem more realistic than many other ones, variables that were not controlled could have affected the data. It simply cannot be concluded that the results Overland found truly apply to actual trials. This is a fundamental issue for mock jury studies generally.

The author, however, certainly wants to conclude that his data are generalizable. He converts regression coefficients into “verdict probabilities.” In the car accident case, for example, he concludes that holding other factors constant, women would find for the plaintiff 49% of the time compared to 32% of the men; blacks would find for plaintiffs at a 22% higher rate than other racial groups; and low income jurors would favor plaintiffs 47% of the time compared to those with high income at only 31%. While the author also concludes that the attitudinal variables produce even more striking differences, he notes, “These are large substantive differences, and directly challenge the findings in the literature that jurors’ demographic characteristics have no effect on their verdicts in civil trials” (p.73).

Certainly such a conclusion has an important consequence for our justice system. If juror attitudes and demographics correlate with verdicts, then lawyers selecting juries will wish to eliminate potential jurors based on these characteristics. Attorneys have to act [*785] with the available information, and information about potential jurors’ attitudes is often limited while demographic factors are often obvious. This leads Overland to ask, “Would striking jurors based on their race or gender – given that those easily observed traits may serve as rough proxies for attitudes – constitute unwanted and unfair discrimination. . . .?” (p.80).

The author then summarizes the Supreme Court cases holding that neither party in either a civil or criminal case can exclude potential jurors based on their race or gender through the use of peremptory challenges, a discussion which should be useful to those not familiar with these opinions. Critics, however, have maintained that the Court’s framework for interpreting and enforcing this principle have made it too easy to circumvent and that lawyers continue to challenge based on race and gender. Perhaps so, but meaningful data on this issue have not been collected.

This issue, however, highlights a difficulty about drawing inferences from mock jury studies. Jurors only serve after having passed the challenge process. Any potential juror who cannot impartially decide a case based on evidence to be presented can be struck for cause. In addition, attorneys have peremptory challenges to strike a set number of potential jurors who have survived the for-cause process. Attorneys can eliminate biased jurors, and this may include those with the kind of characteristics that most strongly correlate with verdicts in jury studies. Furthermore, if jury studies merely produce findings that coincide with the folk wisdom of attorneys, they will have little effect on jury selection. If the intuitions of plaintiff’s attorneys in Overland’s cases, for example, were that whites and those who had favorable opinions of big business were less likely to find liability than others, then their use of peremptory challenges will tend to balance out the defense use of the challenges. Potential jurors whose characteristics most strongly indicate a particular verdict will be eliminated.

And, of course, real jurors do deliberate. While the so-called “majority effect” can be interpreted to conclude that deliberations hardly matter, the data reported here indicate that verdicts in 10% of the cases do not follow the initial ballot, indicating deliberations can affect a large number of cases. Furthermore, the prospect of jury deliberations must be considered. Jurors expect deliberations to be important, and they know they will have to take a stand, justify their position, and perhaps try to persuade others. They cannot expect justifications based on gender, economic status, or ethnicity to be convincing. Instead, what the jurors all share is the trial itself. They expect to discuss that, and this can affect how they pay attention to and process the presented evidence and arguments. As I have written elsewhere, if our system returned verdicts based upon the majority vote after the first ballot, jurors would only have to decide how they were going to vote. “They would not have to prepare themselves to justify their decision or persuade others to endorse it. Surely jurors’ behavior would be different under such a system. Because they would not have to construct defensible and convincing positions from the evidence, they would not have to pay much attention to it. The evidence would have less primacy, allowing [*786] extralegal factors more play. Thus, the expectation of deliberations brings a critical focus on the evidence” (Jonakait 2003: 232).

Several studies support this. Research has shown that after deliberations jurors recall the evidence more accurately than without deliberation. Mistaken views of the evidence by an individual juror are corrected by others. In other words, the jurors debate and focus on the evidence.

Indeed, Overland reports another study that found the composition of the jury mattered in deliberations. More information was exchanged in racially diverse juries than in all-white ones. The author notes, “[J]ust the prospect of deliberating with a heterogeneous group seemed to affect white jurors’ judgments, as white jurors in diverse groups were more lenient toward black defendants in their pre-deliberation verdicts than were white jurors who knew they would be part of an all-white jury deliberation panel” (p.128).

This last finding could be important in a number of ways. It indicates that at least for race, how the information from trial is absorbed may be affected by the prospect of deliberating with a heterogeneous group. Perhaps that dynamic is more extensive. Are the first votes of those who are pro-big business affected when they know they will deliberate with those who hold other views? Are the first votes of women affected when they expect to deliberate with men? If so, mock jury studies that collect verdict preferences when the participants do not expect to deliberate may be overstating any correlations uncovered between the jurors’ characteristics and the outcomes.

We do know a crucial fact about outcomes after deliberations that should not be overlooked. Overland’s data about verdict probabilities suggest that, if twelve women comprised the jury in the car accident case, the jurors would split equally on liability. We know, however, that even when juries must be unanimous, a verdict is almost always rendered. Hung juries are rare. A prediction based on jury characteristics that half the jury would find for the plaintiff and half for the defendant almost always turns out to be false.

We still do not know how mock jury studies relate to real trials or whether the work of jury consultants can affect verdicts, and it is disappointing that THE JUROR FACTOR does not do more to advance knowledge on these issues. The presented mock jury data were not amassed as an academic exercise, but apparently collected to help attorneys representing corporations in real trials. If trials did result, presumably the mock jury data were used to make predictions about specific potential jurors that were considered in the jury selection. What predictions were made? What, if anything, can be said about the predictions in light of verdicts actually rendered? If there were a number of trials, presumably the jury composition on demographics and attitudes were not all the same. Did results vary? If so, how, and how did those variations gibe with any predictions made about potential jurors?

If such additional information were available, it would have been valuable in both assessing the external validity of the jury studies and in learning whether lawyers aided by jury consultants can truly affect verdicts. Even so, however, [*787] Sean Overland’s book presents new, interesting data and summarizes well existing research. Thus, it is valuable to those interested in way juries behave.

REFERENCE:
Jonakait, Randolph N. 2003. THE AMERICAN JURY SYSTEM. New Haven, Yale University Press.

UBIQUITOUS LAW: LEGAL THEORY AND THE SPACE FOR LEGAL PLURALISM

2009-10-27T09:58:00.000-04:00

by Emmanuel Melissaris. Burlington, VT and Farnham, England: Ashgate, 2009. 178pp. Hardback. £55.00/$99.95. ISBN: 9780754625421.

Reviewed by Roger Cotterrell, Department of Law, Queen Mary University of London, UK. Email: R.B.M.Cotterrell [at] qmul.ac.uk.

pp.774-779

It may not yet be true that we are all legal pluralists now. Nevertheless, the concept of legal pluralism – the idea that different kinds of legality co-exist in indeterminate relations in the same social space – is much discussed by legal researchers. An important stimulus for this growing interest lies in the usefulness of legal pluralist theories for those who wish to detach law from any necessary relation to the state. Emmanuel Melissaris, a legal philosopher teaching at the London School of Economics, is among this company. His book, which seeks to theorise the idea of legal pluralism, opens with a brief reference to Islamic Shari’a law in the UK to ask: if all law is state law, or authorised by the state, what is the status of Shari’a as a form of legality? The issue can be generalised: are there forms of legal experience that are highly valued by particular populations but that the state cannot or will not recognise?

In fact legal pluralism has often been discussed in the light of multicultural legal experience, as well as in the context of many kinds of transnational law (law intended to operate across nation state borders) that are now developing and competing for jurisdictional space. Most literature on legal pluralism has been produced by sociolegal theorists or legal anthropologists, and it grounds itself in the sheer empirical diversity of contemporary legal experience – from conflicts of state law and religious or customary law to the interactions of World Trade Organization law, European Union law and national legal systems.

Melissaris’ book is different, however, and more abstract in focus. He aims to provide ‘a philosophical grounding of a social-theoretical approach’ to law (p.4). While he argues that legal theory must now combine philosophical and sociological approaches, and his text draws on a wide range of theory in sociology of law and recent legal philosophy, essentially this is a work of legal philosophy. It addresses the time-honoured jurisprudential issue ‘What is law?’ but in a new context in which, in Melissaris’ view, familiar legal philosophical assumptions no longer hold. Thus, law cannot be understood (as by H. L. A. Hart) from an ‘external’ (observer’s) viewpoint (which, in fact, merely generalises an ‘internal’ view of the legal experience typical of certain kinds of legal systems). Nor is a Dworkinian ‘internal’ understanding of law adequate, because it is unable to see beyond the parameters of its own parochial legal experience. Even critical legal theories fail insofar as they attack orthodox state-focused understandings of law without trying to replace these [*775] with more appropriate conceptualisations of law.

The book’s key argument is that law cannot now be understood solely through state-law experience, which distorts the range of actual and possible legalities. And the state-law concept cannot just be replaced with another uniform concept of law that treats it as existing apart from the state. That would be to impose a single view of legality on diverse kinds of legal experience. Legal pluralist ‘empiricist-positivist’ approaches (p.28) that purport to set out new ‘objective’ indicia of the legal cannot represent the variety of subjective legal experience. That experience is merely distorted or rejected if any universal theory of law is imposed on it. Furthermore, the whole idea of legal pluralism is denied by postulating some single uniform legal conception.

Where then does this leave us? Is a pluralist legal theory possible? Melissaris is sure that it is; indeed, for him, legal theory must be a theory of legal pluralism; any other approach denies law’s reality. The aim is to strip away from the legal all those institutional elements that are merely contingent characteristics of state law. Law resides in shared normative experiences entailing ‘presuppositions on the part of participants concerning their ability in common to transform the world through their normative commitments’ (p.109). These subjective normative experiences are historically situated; they reflect particular understandings of space and time; they are beliefs rooted in specific contexts of co-existence or social interaction; and they combine the empirical and the normative. So law is always sociologically-rooted in particular contexts and in the interactions of specific social networks.

However, if this were all, there would be no way to speak of legality as an idea that traverses these different contexts and subjectivities. There is also, according to Melissaris, a minimal ‘universal sense of law’ (p.5). Speech act theory, on which he relies, suggests the centrality, in the legal, of performative acts that usually give rise to institutional facts; law is basically about the transformation of words into deeds, norms into facts, and vice versa. But because Melissaris is dealing with such an irreducibly foundational level of legality – an extremely ‘thin’ conception of law that can only be fleshed out in particular contexts by particular communities – the discussion becomes opaque and very vague. Mere glimpses of this foundational sense of law appear throughout the text. We are told that ‘some degree of objective rightness’ is built into it (p.56), Kantian norms of autonomy and respect for every moral agent are relevant (p.56), and the development of the legal sense in any context demands participation, democracy and autonomous agreement (pp.58, 71). Law is the product and expression of communal networks of social interaction.

The striking result of the analysis is that state law may or may not be truly law, or may be law only in part, because of its ultimate reliance on force (p.59) and its characteristic blindness to basic criteria, suggested above, that define the necessary bedrock of legality (pp.55, 124). Hence Melissaris suggests not only that legal theory must recognise a different, far more diverse and fluid [*776] legal reality from the one it has traditionally portrayed, but that law’s ties to morality (while it retains its distinctiveness from the latter) require a more critical view of the state’s manipulation of legal forms. This kind of critical thrust also comes across in his condemnation of orthodox legal theory as an expert culture privileging official, professional priorities and juristic views, and consistently devaluing lay legal experience; and in his argument that law, in the broad sense outlined in the book, should be seen as ubiquitous – a part of all aspects of social life – and, as such, essentially a general resource for organising meaningful co-existence rather than a coercive instrument of control.

The book is sophisticated and very thoughtful, but undoubtedly not an easy read. Some sociolegal scholars attracted by the promise of this text to integrate legal pluralist perspectives into legal theory will be disappointed by the lack of empirical detail of contemporary regulatory pluralism. Discussion here is pitched at a very high level of abstraction in trying to address the question of what the concept of law can be taken to be if the challenges of legal pluralism are accepted. The book’s orientation is explained by the fact that the author has entirely avoided the usual sociological approach to legal pluralism, which is to specify a provisional model (or ideal type) of the legal as a basis for organising, describing and comparing the range of proliferating normative regimes or normative aspirations that are increasingly referred to under some such labels as ‘global legal pluralism’ or ‘cultural diversity and law’ (see e.g. Snyder 2002; Berman 2007; Grillo, et al 2009).

Early in his book, Melissaris makes some seemingly critical comments about the scope of sociological inquiry in relation to conceptual analysis: a sociologist aiming at description can, he says, only ‘observe and record regularities, which she will have already picked out by employing a pre-selected concept. . . . In turn, observation will help clarify and refine the concept…. Thus a descriptive sociologist will be able to raise rather modest, context-bound and indexical claims’ (p.9). The legal philosophical project, by contrast, would be to try ‘to account for the concept of law in an a-historical, a priori manner,’ which cannot be done by description and then abstraction (p.9, emphasis in text). Melissaris is clearly attempting to hold on, in some way, to this legal philosophical project of clarifying the concept of law in general. He considers it a necessary project to underpin any sociological enterprise of mapping developing legal pluralism in the form of regulatory regimes beyond state law; hence the search for a ‘philosophical grounding of a social-theoretical approach.’ A century ago Hans Kelsen declared a parallel dependence of sociology of law on a philosophical-juristic conceptualisation of law (see e.g. Van Klink 2009). But now, as then, the claim of dependence may be false (in fact a reversal of the real situation) – and a misrepresentation of the tasks of both sociology of law and legal philosophy.

Reflection on this book’s conclusions shows why. Melissaris’ ‘universal sense of law’ is, on his own admission, very ‘thin’ indeed, and rather obscure and hard to pin down, so much so that this may indicate two basic flaws with his project. The first is that, as a practical [*777] matter, it may simply be premature or unnecessary to try, however tentatively, to suggest ‘the concept of law in an a-historical, a priori manner;’ it may be more valuable to map and explore the diversity of regulatory regimes using merely provisional concepts of the legal that are sufficient to organise specific projects of empirical inquiry. The ‘global legal pluralism’ associated with the increasingly intense interaction, competition and conflict between international, transnational, national, and intranational regulatory regimes is at present both immensely rich and hugely diverse. It is unlikely to shed these characteristics in the near future. So a conceptualisation of this vast regulatory universe surely needs, in itself, to be much richer and fuller, with far more explanatory power, than Melissaris’ universal sense of law; but it should also be purely provisional, and empirically-oriented to rapidly changing and developing regulatory patterns and regimes.

In other words, empirically-focused, contextualised theory, I suggest, is more important than aspirations to portray universals. Sociology of law, as the basic inquiry here, surely needs philosophical assistance along the way. But a fundamental philosophical conceptual underpinning is not needed to make possible the projects of legal sociology in exploring legal pluralism; such projects are already in progress. Nevertheless, Melissaris’ effort to think out an irreducible basic idea of law not dependent on any of the orthodox institutional supports of state law is very stimulating.

A further possible flaw in the project is that its two contrasting aspects may be ultimately incompatible: One aspect involves recognising that legal theory’s task is to participate in and mediate a very open conversation about the nature of legality between communities (or between networks of social interaction – Melissaris rejects any strong sense of community). Legal theory must, therefore, discard its ‘expert culture’ stance and recognise that it is involved in an enterprise of mutual learning from the innumerable subjective experiences of legality in different contexts. The other aspect of the project, however, is to hold to some overall, ultimate (if minimal) universal view of the legal which legal theory can then use as an ‘appellate tribunal’ to test discursively the ‘self-understandings, beliefs and normative commitments’ of conflicting legal orders (p.77). Does legal theory then merely modestly engage in conversations across different normative experiences of legality; or does it still seek to engineer a dominant master narrative of legality to unify the field of the legal?

This uncertainty cannot be removed without confronting a further issue not adequately addressed in this book: what is a legal theory of legal pluralism for? Despite Melissaris’ sensitive discussions of sociolegal theory, his outlook remains that of a legal philosopher. His implicit reason for grappling with legal pluralism as a conceptual problem for legal theory seems to be to address the challenge that legal pluralism poses for legal philosophy’s ability to continue to ponder its traditional central question: ‘What is law?’ The project, then, is surely to save legal theory’s established philosophical universe of conceptual inquiry in the face of challenges that threaten to destabilise it completely. But [*778] sociolegal theorists, for whom conceptual inquiries about law are only part of a larger project of developing social explanation, may be much less interested in Melissaris’ central concerns here.

At the same time, it may not be as clear as he thinks that orthodox Hartian or Dworkinian theory cannot be adapted to apply to non-state forms of law, even if the authors of these theories themselves assume a state-law focus in them. For example, the ‘officials’ who play such a major role in Hart’s concept of law may not need to be state officials; and the ‘community’ that creates its own law in Dworkin’s interpretive theory does not need to be understood (as Dworkin understands it) as the political community of a nation state. So the attack on legal philosophy may not need to be quite as radical as Melissaris thinks if the aim is to harness it to projects of provisional social explanation rather than to continue to search for a definitive conceptualisation of law.

My conclusion, then, is that this very thought-provoking, original and ambitious book skews its inquiry too much towards an assumed need to save certain traditional legal philosophical projects, seen as fundamentally threatened by legal pluralism. In so doing it perhaps neglects more urgent and less parochial concerns that might guide theories of legal pluralism – for example, how conflicts of authority between different legal orders may be understood and usefully addressed; how different forms of transnational regulation may be provisionally categorised and compared to facilitate more orderly relations between them; and how empirical sociolegal inquiries about regulatory regimes might locate those regimes in relation to larger networks of community and the diverse regulatory environments in which they exist.

Nonetheless, Melissaris’ book deserves to be judged in relation to its own project, not others that could be chosen. In pursuing its legal philosophical ambition it provides a wealth of insightful, scholarly and wide-ranging discussion. It deserves to be read by anyone interested in the now vitally important task of exploring the nature of legal pluralism as a contemporary phenomenon, and as a key organizing idea for current theoretical inquiries about law.

REFERENCES:
Berman, Paul S. 2007. ‘Global Legal Pluralism’. SOUTHERN CALIFORNIA LAW REVIEW 80: 1155-1237.

Grillo, Ralph, Roger Ballard, Alessandro Ferrari, André Hoekema, Marcel Maussen and Prakash Shah (eds). 2009. LEGAL PRACTICE AND CULTURAL DIVERSITY. Burlington, VT and Farnham, UK: Ashgate.

Van Klink, Bart. 2008. ‘Facts and Norms: The Unfinished Debate Between Eugen Ehrlich and Hans Kelsen’. In LIVING LAW: RECONSIDERING EUGEN EHRLICH, M. Hertogh (ed). Oxford: Hart, pp. 127-55. [*779]

Snyder, Francis G. 2002. ‘Governing Globalisation’. In TRANSNATIONAL LEGAL PROCESSES: GLOBALISATION AND POWER DISPARITIES, M. Likosky (ed). London: Butterworths, pp. 65-97.

THE LEAST WORST PLACE: GUANTANAMO’S FIRST 100 DAYS

2009-10-27T09:57:00.001-04:00

by Karen Greenberg. New York: Oxford University Press, 2009. 288pp. Cloth. $27.95. ISBN: 9780195371888.

Reviewed by Emily Crawford, Faculty of Law, University of New South Wales. Email: emilyjtcrawford [at] gmail.com.

pp.771-773

Eight years have have passed since the ‘9/11’ terrorist attacks on the United States, and the commencement of the ‘War on Terror,’ involving armed conflict in both Afghanistan and Iraq. These past eight years have been something of a boon to authors, from all disciplines – law, politics, philosophy, religion and spirituality, to name a few. The initial attacks and the international political and legal responses to those attacks – not the mention the mistakes made in those responses – have provided a rich source of material for the scores of books that have been published about these events.

A new entrant into this field is Karen Greenberg’s THE LEAST WORST PLACE: GUANTÁNAMO’S FIRST 100 DAYS. The title derives from the name bestowed on the Guantánamo Bay detention facility by then Secretary of Defence Donald Rumsfeld. It is an apt description for both the facility itself, as well as the general attitude towards detainee treatment that would come to typify US and coalition-run detention facilities, that of trying to get away with the minimum possible standards of treatment.

In her introduction, Greenberg makes it clear that the period of time charted by her book predates the 2002 ‘Torture Memo,’ the abuses that took place at Abu Ghraib, and the stories of torture and mistreatment that came out of Guantánamo itself. Instead, Greenberg focuses on the first months at the facility in Cuba looking at how the site was chosen and how the people on the ground had to implement the policies devised by Washington. From December 21 2001 to March 31 2002, the US military facility at Guantánamo Bay was forced to transform itself from a state of ‘permanent hibernation’ in early 2001. A relic of the Cold War era, the Guantánamo Bay site was considered a low-priority for the American military. Part of the post-Cold War downsizing of the military, Commanders at ‘Gitmo,’ as it was nicknamed, were given instructions to ‘keep the lights on’ – run the facility at a minimum, and not ask for nor expect anything but basic funds with which to finance operations.

The events of September 11, 2001 were to radically transform the base. Greenberg charts the three month period where the military at Guantánamo were forced to hastily prepare a high-security detention facility for a rapidly increasing number of Taliban and al-Qaeda prisoners transported from Afghanistan. The speed with which the facility had to be brought to operational capacity was demonstrated in the appalling institutional short-comings the facility experienced during its first months; those running the camp were not told that their Muslim charges would require [*772] Korans, specific foods prepared in specific ways, or that the prisoners would need culturally-dictated hygiene facilities and practices.

In limiting herself to this first 100 days, Greenberg attempts to see if the ‘groundwork’ for later events in Iraq and Guantánamo itself – such as the abuse at Abu Ghraib prison – were sown in these first months in Cuba. What emerges from the book is a devastating picture of lost opportunity – soldiers on the ground who wanted to treat the battlefield detainees humanely but were stymied by confusing and contradictory instructions from above; officers who believed that ‘principled humanitarianism’ was fundamental to operations in Guantánamo Bay, who believed that observing the Geneva Conventions was the only logical and sensible way to operate, but who were ignored and often deliberately countermanded by those higher up the military and political hierarchy.

It is easy to see the seeds of Abu Ghraib in Greenberg’s account – not through the negligence of the military commanders, but through the subversion and outright exclusion of military input into Gitmo – that the bureaucracy in Washington were pulling the strings, often against the instructions of the persons having to implement the plans. When instructions were provided, they were frequently vague and unhelpful – such as the infamous edict that the US would be guided by the Geneva Conventions and their comprehensive protections, but not bound by them. Greenberg shows us the confusion that this ‘policy recommendation’ produces amongst a group of people used to operating within defined parameters and with definite rules. What is particularly sad to read, especially in light of what we now know happened in Guantánamo Bay in later years, is that many of the officials ordered to implement these minimal rules were often entirely reluctant to do so. Greenberg cites examples of how attempts to communicate with the Office of Legal Counsel was met with stonewalling and obfuscation, as Gitmo officials and lawyers tried to refute John Yoo’s statement that the Geneva Conventions were not applicable, and that neither Taliban nor al-Qaeda detainees were POWs; worse still, early requests to contact the International Committee of the Red Cross – standard procedure in situations where battlefield detainees exist – were denied by senior officials.

Greenberg also shows us that for every Rumsfeld, Bush and Lynddie England (the US reservist who was pictured in photos participating in prisoner abuse in Abu Ghraib), there were and are decent and honourable officials trying to protect their country while protecting its dignity and international standing – often having to defy their own government to do so. We are shown the courage and integrity of Michael Lehnert, the facility’s first commander, who struggled to ensure humane conditions for the detainees, often fighting both his own superiors and those serving under him, and Manual Supervielle, Corrections Officer at Gitmo in 2001, who took the initiative to contact the ICRC directly, requesting they visit the detention facilities, and incurring the wrath of the Bush Administration in doing so.

In terms of execution, Greenberg writes in an elegant and thoughtful manner. Though we are aware that she [*773] disapproves the course taken by the US during the ‘War on Terror,’ the book does not proselytise; it is critical, without carping. Greenberg shies away from discussing the relative guilt or innocence of the detainees, choosing instead to focus on those tasked with the unenviable duty of running the most highly publicised and highly scrutinised prison in the world at the time, with little to no guidance on how to accomplish such an endeavour. She presents her narrative in a straightforward, well-structured and logical way, and depicts the protagonists in a respectful and considerate manner. Greenberg gives us a picture of Guantánamo from the ground-up, showing us the functionaries and officials who instituted the policies and procedures that have come to notoriety, and she does so in an approachable and engaging style. The book is accessible for those without a legal background, and fascinating for those with an understanding of the legal machinations that ensued in those first few months following 9/11.

CONSTITUTIONAL PROTECTION OF HUMAN RIGHTS IN LATIN AMERICA. A COMPARATIVE STUDY OF AMPARO PROCEEDINGS

2009-10-27T09:45:00.001-04:00

by Allan R. Brewer-Carías. New York, NY: Cambridge University Press, 2009. 448pp. Hardback. $90.00/£50.00. ISBN: 9780521492027. eBook format. $72.00. ISBN: 9780511460166.

Reviewed by Julio Ríos-Figueroa, División de Estudios Políticos, CIDE. Email: julio.rios [at] cide.edu.

pp.767-770

The amparo proceeding is a Latin American extraordinary judicial remedy specifically conceived for the protection of constitutional harms or threats inflicted by authorities or individuals. In common law countries such as the United States, the protection of human rights is assured through the general judicial actions and equitable remedies that are also used to protect any other kind of personal or property rights or interests. In contrast, in Latin American civil law countries the constitution and special legislation explicitly regulate the judicial remedies available for rights protection, such as the amparo proceeding. These constitutional and statutory regulations can be quite detailed, including, for example, the general rules of procedure and standing to file amparos, the definition of the competent courts to hear this type of cases, the specific constitutional rights that can be protected, and the legal effects of judicial decisions in amparo suits.

The explicit aim of Allan Brewer-Carías’ book is to highlight the recent trends and identify variations in the constitutional and legal regulations on the amparo proceeding in nineteen Latin American countries and the Phillipines (p.8). In twenty-two chapters, one of Latin America’s most important constitutional law scholars displays his legal erudition describing different relevant aspects of the amparo suit. To complement the picture, numerous footnotes include comments or text from judicial decisions in different countries where judges’ interpretations have shaped the contours of the amparo proceeding, for instance broadening access to this instrument or expanding the range of rights that it protects. In addition, Brewer-Carías constantly inserts commentaries comparing amparo’s characteristics with equivalent legal instruments available in the United States, such as the injunction and other equitable and non-equitable extraordinary remedies like the writ of mandamus, prohibition, and declaratory legal remedies. This book is thus a valuable reference guide to lawyers, legal scholars, and social scientists interested in the judicial protection of rights in Latin American countries, whether they have previous knowledge of the civil law tradition or not.

Describing in quite good detail yet in an accessible manner the constitutional and legal characteristics of a rather complex judicial remedy across nineteen countries is an unquestionable accomplishment of this book. The down side is that the book offers minimal analysis on the causes and the [*768] consequences of the interesting cross-national variations that the author aptly uncovers. At different points, Brewer-Carías mentions in passing that, notwithstanding the richness of the legal construction of the amparo proceeding, the problem of the effective protection of constitutional rights remains in Latin America, “basically because of the absence or restricted independence and autonomy of the Judiciary that many countries still have” (p.238). But Brewer-Carías does not pursue this kind of insight systematically, for instance assessing the performance of amparo in countries where there is a higher degree of judicial independence in comparison with countries where such independence is lacking or deficient. This lack of analysis may be an opportunity for the social science reader interested in understanding why judges in some Latin American countries more actively protect rights than in others: the book can be a rich mine of interesting hypotheses and future empirical research. In the reminder of this review, I focus on some cross-national variations in the amparo proceeding that may be of interest to political scientists.

In Chapter XVI, Brewer-Carías deals with the injuring actions of public authorities that can cause harms or threats and thus are subject to be challenged using an amparo. A section of this chapter focuses on whether individuals can challenge judicial decisions using an amparo on grounds that their constitutional rights had been violated. This so-called “judicial amparo” is not allowed in most Latin American countries; but seven countries do accept it – i.e. Mexico, Colombia, Guatemala, Honduras, Panama, Peru, and Venezuela. Colombia is an interesting case because the judicial amparo was explicitly allowed in a law passed a few months after the enactment of the Constitution of 1991. A year later, however, the Constitutional Court declared the judicial amparo unconstitutional because it was considered against the principle of the intangibility of the res judicata effects. But in 1993 the same Court readmitted the tutela (as the amparo is called in Colombia) against judicial decisions when issued as a consequence of an arbitrary exercise of the judicial function (p.321). In sum, some countries allow amparos against judicial decisions, others do not, and still in others this decision has been shaped jurisprudentially.

The amparo against judicial decisions is politically relevant for a variety of reasons. In Mexico, for instance, a formally federal country where only federal courts can hear amparos, the judicial amparo has been considered the Trojan horse through which the federal courts and the federal government concentrated power vis-à-vis their state counterparts (see, e.g., Baker 1971). Notice that, as shown in Brewer-Carías’ book, among the countries where the judicial amparo is allowed, Venezuela is also a formally federal country. Has the judicial amparo served the same political ends in Venezuela as in Mexico – to undermine federalism, concentrating decision-making power in the federal courts and government? The amparo against judicial decisions can also affect the degree of internal judicial independence, the independence of lower court judges from their hierarchical superiors. Given that judicial amparos have to be heard by superior courts, sometimes the Supreme [*769] or Constitutional Court, how does this affect the behavior of lower court judges? In countries where the judicial amparo is allowed, and where the top of the judicial hierarchy controls the career of lower court judges, the effect on internal independence may be especially strong. Is this supported by the evidence? Brewer-Carías’ book can be a good start for looking at potential countries where such questions can be examined empirically.

Another topic of particular interest for social and political scientists is the justiciability of economic and social rights. Brewer-Carías deals with this topic in chapter eleven, and in fact he considers it “the most important question regarding the justiciability of constitutional rights by means of the amparo” (p.240). He focuses on the right to health to highlight the different roles of the amparo in guaranteeing it. While practically all Latin American constitutions include the right to health, the fact is that the justiciability of this right has not had the same solution across the region. Brewer-Carías distinguishes four trends in Latin America: (i) countries in which amparo suits for the right to health have been dealt with considering it a collective right, as in Argentina; (ii) countries in which those amparos have been dealt with by connecting the right to health to the right to life and the social security obligations of the state, as in Colombia or Costa Rica; (iii) countries in which courts have granted limited protection of the right to health by subjecting the state’s policy on the matter to the availability of funds, as in Chile; and (iv) countries in which courts have rejected amparo claims for the right to health, as Venezuela (pp.248-248).

These trends identified by the author are interesting and may be the basis for further empirical research. For instance, previous research has suggested that a broad access to rights protection tools such as amparo is crucial for influencing the way in which constitutional judges deal with this type of amparo (e.g., Wilson and Rodriguez-Cordero 2006). Is it the case that countries with broad access to amparo, or countries where amparos have the widest scope and extent, are also the countries with higher levels of justiciability of social and economic rights? Another interesting avenue for political scientists is that of compliance with court decisions, especially in cases of social and economic rights where compliance implies important financial burdens on the state. As Brewer-Carías points out, the political conditions for the enforcement of social, economic, and cultural rights have been the focus of discussion in contemporary constitutional law and also most recently of social science studies that aim to explain cross-national variation in levels of justiciability of those rights (e.g., Gargarella, Domingo, and Roux 2006; Brinks and Gauri 2009).

The consequences of allowing amparos against judicial decisions, or the effectiveness of amparos for protecting social and economic rights, are but two examples of the questions that may be pursued by exploiting the different legal characteristics that are found in Latin America regarding this peculiar instrument for rights protection. Brewer-Carías’ book is a useful reference guide to navigate through this legal labyrinth. It may be also a good starting point for empirical investigations on whether the de jure differences regarding this legal [*770] instrument have any effect on the actual lives of Latin American citizens.

REFERENCES:
Baker, Richard D. 1971. JUDICIAL REVIEW IN MEXICO. A STUDY OF THE AMPARO SUIT. Austin, TX: Texas University Press.

Gargarella, Roberto, Pilar Domingo, and Theunis Roux (eds). 2006. COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES. AN INSTITUTIONAL VOICE FOR THE POOR? Great Britain: Ashgate.

Brinks, Daniel and Varun Gauri (eds). 2008. COURTING SOCIAL JUSTICE. JUDICIAL ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN THE DEVELOPING WORLD. New York: Cambridge University Press.

Wilson, Bruce M. and Juan C. Rodríguez Cordero. 2006. “Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics.” COMPARATIVE POLITICAL STUDIES, 39 (3): 325-351.

THE NEW BRITISH CONSTITUTION

2009-10-27T09:43:00.001-04:00

by Vernon Bogdanor. Oxford, UK, and Portland, OR: Hart Publishing, 2009. 334pp. Hardback. $90.00£45.00. ISBN: 9781841131498. Paper $35.00/£17.95. ISBN: 9781841136714.

Reviewed by Richard A. Cosgrove, Department of History, University of Arizona. Email: rcosgrov [at] u.arizona.edu.

pp.763-766

In this interesting volume Vernon Bogdanor, Oxford political scientist and author of numerous valuable books on modern British constitutional theory and practice, offers the argument that British entry into Europe in 1973, in conjunction with a number of varied constitutional changes since 1997, has created a new British constitution. This thesis is well developed, although at various points in the analysis the author concedes that his evidence is subject to contrary interpretation. Nevertheless this work provides a thorough dissection of contemporary political and constitutional issues that merit careful consideration.

What was the old constitution? In the author’s view this constitution rested upon two classic statements: Walter Bagehot, THE ENGLISH CONSTITUTION (1867) and Albert Venn Dicey, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (1885). Bagehot had emphasized that the fundamental elements of the constitution included the union of executive and legislative authority, not their separation, and the subordination of judicial power to parliament. Dicey furnished the evidence that the central constitutional principle since 1688 was the sovereignty of parliament. I have no doubt that if Dicey lived today he would admit that his constitution no longer existed. Strasbourg, devolution, and an altered House of Lords would have caused Dicey endless dismay. Anyone familiar with Dicey might well imagine the furious jeremiads from north Oxford at the demise of the old constitution. In this respect, therefore, Bogdanor stresses rightly that political turmoil has spurred constitutional change in the past (1688, 1832, 1911), but the advent of this new constitution has not occasioned political drama on the same scale.

In the first pages the author lists conveniently the changes since 1997 that define the new constitution. Most of these changes have attracted little public discussion except perhaps in the changes to the House of Lords. Bogdanor explains the new order as changes in public law only; private law has no role in the constitutional revolution. This point is not a criticism, but it is to prepare the reader that technical issues of private law are nowhere to be found.

Another issue to ponder is the conventional description of the constitution as historical, one that has evolved over the past eight centuries. What criteria are necessary for the creation of a new constitution, or should changes more readily be explained as part of a larger historical pattern? As Bogdanor concedes, in another half century what seems revolutionary now may well seem not nearly so dramatic. [*764] In 1655, for example, a truly revolutionary constitution had appeared, but by 1665 the traditional one had reasserted itself triumphantly. Constitutional analyses in Britain frequently focus on debut and attenuation, so the question of what temporal guidelines are appropriate always requires consideration. In this sense, therefore, the issue of defining what is old and new becomes paramount.

Bogdanor devotes an entire chapter to the issue of devolution, arguing correctly that, by the Diceyan standard, parliamentary sovereignty has vanished. Dicey believed that sovereignty was like pregnancy; either you were or were not, and there was no middle ground. Devolved bodies now handle the internal governance, but England has no similar institution. The grant of devolved authority, it is usually argued, must necessarily destroy parliamentary sovereignty. Yet, in the past Britain has combined the two without philosophical or juristic debate. The Stormont government in Northern Ireland from 1921 to 1972 enjoyed special devolved powers without creating much of a stir. The point here is that devolution has perhaps not created such a revolutionary change as many had anticipated. Voter turnout in Scotland and Wales seems to indicate that the electorate has accepted the change without an outpouring of fervor.

The transition of the House of Lords from an hereditary to a predominantly elected body attracted the most public attention but was not the result of public demands. The abandonment of a strict hereditary principle after centuries no doubt makes a substantial change in constitutional arrangements. Some transformation of the Lords has loomed since 1832, and the Parliament Act of 1911 began the process of restricting the Lords’ power, a process continued after World War II. In addition, as Bogdanor himself suggests, the 1999 legislation that was intended as a first step to reform the upper house thoroughly has apparently lost momentum and a decade later has dropped from public consciousness. So, once again, does this process contribute to the formation of a new constitution or does it represent an evolution that reaches back into the British past?

Old versus new also bears upon the author’s reflections on the referendum. The first and only fully national referendum in the United Kingdom happened as long ago as 1975 when the British voted on whether to ratify entrance into the European Community. While not a government-sponsored initiative, the Peace Ballot of 1934 did solicit a national vote on a single issue. A single referendum, or perhaps two, has hardly won a place for this electoral device in ordinary political or constitutional calculation. Five referendums since 1997 have affected the devolved areas of Scotland, Wales, Northern Ireland, London, and the English northeast. Voter participation has generally been underwhelming; success in taking the pulse of the various constituencies, therefore, has proven tepid.

Most commentators in the past have assumed the referendum will check radical legislation (this was Dicey’s view), but the fact remains that no one can ever anticipate the outcome. Most often each side to an issue fears the referendum [*765] because they believe that the vote will go against them. The checkered history of ballot initiatives in the United States does not generate optimism that the vox populi represents the apex of political wisdom. Five regional referendums have occurred since the advent of the Blair government in 1997. Four have approved the ballot issue, while only one has resulted in a negative decision (the proposed assembly for northeastern England). Other referendums have appeared imminent, such as a vote on the euro, but now no additional appeals to the electorate seem pending. If the Conservative party replaces Labour in the near future, it is doubtful whether the Conservatives will employ this electoral strategy. Does the referendum now play such a significant role in British politics that it helps define a new constitution? Each reader of this volume will decide for her/himself; Bogdanor presents the relevant evidence in an impartial fashion on the referendum’s complex issues.

The author then turns to the vexed question of whether, in view of the recent constitutional changes, it is time for the United Kingdom to adopt a written constitution. Bogdanor envisions such a document more as a statement of principles rather than a detailed enumeration of rights and obligations. That some elements of the unwritten constitution survive from the reign of Henry II in the twelfth century and occasionally from precedents from the Anglo-Saxon era present special challenges to such an enterprise. In the nineteenth century, efforts to enlist support for the codification of the common law failed miserably. Whatever the theoretical arguments in favor of this project, the practical aspects are formidable.

Who would have the responsibility for drafting such a document? Who would ratify it? And who would possess the authority to change this grundnorm? These questions admit of many practical (and some impractical) solutions, and the author notes the many areas where legitimate disagreement might exist. His conclusion is that a written constitution does not seem likely anytime soon, but if it occurred this surely would reinforce the new constitution thesis. Without it, the new constitution argument is greatly weakened.

The centerpiece of the new constitution is the Human Rights Act of 1998. The author argues for the centrality of this statute because it permits appeals beyond the British courts to Strasbourg, and this process undermines parliamentary sovereignty. Further, Bogdanor anticipates the Act will increase the work of the judiciary because judges will have to review legislation [*766] in order to decide whether a particular act comports with the rights provided in the 1998 Act. The implications of the Human Rights Act are spelled out with rigor and clarity. It is this issue that supports best the enunciation of a new constitution.

Once again, however, the reader may well reflect that prior to the nineteenth century the common law had developed primarily through judicial legislation. Only in the era of Benthamite reform did judicial deference to statute become ascendant. A return to a renewed form of judicial review without fear of parliamentary authority raises anew the question of evolution versus revolution in the contemplation of a new British constitution. The longer the historical perspective taken, the less convincing becomes the new constitution argument.

In the end, therefore, the reader will face the problem of semantics. The book presents an extended, sophisticated meditation on contemporary constitutional issues. Each one is explained fully and fairly. Does the evidence, no matter how extended the account, justify the appellation of a new constitution? Even the author seems ambivalent, calling the new creation a work in progress. Fifty or one hundred years from now, how will this argument look? Will Bogdanor’s documentation fit into the seamless pattern of constitutional evolution, or will our era truly appear to have contained such meaningful change as to justify the term new constitution? At this point I doubt whether a final judgment is possible. What I have concluded, however, is that the book will interest scholars in the field of British constitutional history: past, present, and future.

CITIZENS, COURTS, AND CONFIRMATIONS: POSITIVITY THEORY AND THE JUDGMENTS OF THE AMERICAN PEOPLE

2009-10-19T14:10:00.001-04:00

by James L. Gibson and Gregory A. Caldeira. Princeton, New Jersey: Princeton University Press, 2009. 200pp. Hardcover. $65.00/£44.95. ISBN: 9780691139876. Paperback. $24.95/£16.95. ISBN: 9780691139883.

Reviewed by Richard L. Vining, Jr., Department of Political Science, University of Georgia. Email: rvining[at]uga.edu.

pp.759-762

In CITIZENS, COURTS, AND CONFIRMATIONS, James L. Gibson and Gregory A. Caldeira provide a rich and compelling examination of the relationship between public knowledge, salient events, and popular opinion of the United States Supreme Court. They frame their study as an examination of changes in attitudes about the Supreme Court in response to the nomination of Judge (now Justice) Samuel A. Alito, Jr. It is, however, far more extensive than that suggests. The book is in many ways a primer on more than two decades of exemplary work by its authors bolstered with new and unpublished survey data. CITIZENS, COURTS, AND CONFIRMATIONS is a significant contribution to the literature on judicial politics. Its findings are interesting and unique, and it provides a number of insights likely to prompt further studies of courts and the citizenry.

The authors focus on changes in attitudes about the Supreme Court as a function of exposure to the confirmation fight over Samuel Alito. They elaborate a theory of “positivity bias,” with citizens forming and maintaining positive views of the Supreme Court once exposed to symbols of the judiciary (e.g., courtrooms, robes) and that bias coloring their opinions of courts and judges. Gibson and Caldeira argue that this bias is fostered when judicial institutions and judges (or potential judges) are framed in a judicious, or legal, manner rather than as ordinary political actors. That is, citizens are inclined to support courts and judges when they are perceived to be “different” than politicians. The authors explain that confirmation hearings are salient events that cultivate such an effect, reinforcing the “differentness” of courts as opposed to legislators and executive branch officials. They address these topics throughout the book, especially in its latter half.

To test positivity theory, Gibson and Caldeira present a wealth of descriptive data and model results. Their data are primarily derived from three wave panel survey results from 2001, 2005, and early 2006. The outcomes of the latter two surveys are previously unpublished and, as the authors explain, likely provide the first opportunity to measure shifts in public opinion immediately surrounding a salient event involving the Supreme Court. These surveys also allowed the authors to revisit issues of public knowledge and institutional legitimacy with which they have long been associated.

Chapters 2 and 3 include extensive discussions of public knowledge of [*760] courts and perceptions of their legitimacy, respectively. Chapter 2 in particular provides novel findings, presenting survey results that contradict the long-held belief that citizens are mostly ignorant about the Supreme Court. Gibson and Caldeira demonstrate that this conventional wisdom is rooted in flawed survey techniques and questions removed from the knowledge needed to evaluate judicial institutions. The authors are highly critical of surveys that rely on a “recall approach” (p.21) to assess whether citizens are informed, arguing that recognition when provided with options (i.e., a “multiple choice” strategy) is a more suitable test of citizen knowledge (p.23). These important findings are sure to raise eyebrows, and should encourage scholars to reevaluate how they measure and discuss approval and awareness of courts.

Chapter 3 revisits earlier work by Gibson and Caldeira, together and separately, that examines the legitimacy of courts in the United States and elsewhere. Both broad support for the Supreme Court as an institution (“diffuse support”) and support of its output/activities (“specific support”) are evaluated. The findings support the notion that “to know courts is to love them, or at least to respect them” (p.122). Caldeira and Gibson have tread this ground before, but in CITIZENS, COURTS, AND CONFIRMATIONS they further explore the determinants of citizens’ perceptions of courts’ legitimacy. They find that neither partisan polarization nor ideology have a significant influence on citizens’ acceptance of the Supreme Court. In an era when the Court is alternately labeled either a hotbed of liberal activism or a defender of Goldwater/Reagan conservatism, it is interesting that neither partisan affiliation nor ideological predispositions tend to determine diffuse support. Caldeira and Gibson’s findings suggest that both ends of the ideological spectrum value the Court and that neither side’s “batting average” is so low that it dismisses the institution altogether. These findings speak to the theory of positivity bias, with the court loved or at least respected across partisan and ideological divides. If the Court is broadly accepted, exposure to its trappings and symbols should increase that esteem. Whether that is so is given more direct attention in Chapters 4 and 5.

With the groundwork laid in the first three chapters, Chapter 4 explicitly discusses the Alito nomination. How did citizens form opinions about Alito? Was the process consistent with the theory of positivity bias? Using survey data, Gibson and Caldeira conclude that popular opinion about Alito was, in general, a result of broader ideological conflicts rather than specific policy areas. Large swaths of the public were uncertain how Alito would vote on key issues and did not see his confirmation as a major threat. In addition, Gibson and Caldeira find that loyalty to the Court was directly correlated with support for Alito. These results are consistent with positivity bias, with Alito given the benefit of the doubt and profiting from the reputation of the institution he would join. The authors interpret this in part as support for the idea that framing matters, with citizens’ existing attitudes “shaping evaluations of contemporary events” (p.94). Those inclined to support the Supreme Court as an institution were less likely to support or oppose Alito on policy grounds. This [*761] has important implications for the confirmation process and the nominees involved in it. If the focus is kept on the “judiciousness” of a nominee, presidents and other supporters may be able to suppress partisan gamesmanship. Of course, that is easier said than done. It may, however, speak to why nominees generally enjoy a “presumption of confirmation” (Shapiro 1990) in the absence of damning evidence.

In Chapter 5 the authors further test positivity theory by using survey data to assess the relationship between messages about Alito and public opinion of the Supreme Court. They examine the effect of exposure to television advertising about Alito and its impact on opinion of the Supreme Court. Gibson and Caldeira conclude that, contrary to the expectations of positivity theory, exposure to such advertisements decreased support for the Supreme Court. They attribute this to the tendency of such advertisements to make the Court appear a political rather than legal institution. As framing theory dictates, if courts are seen as analogous to presidents and legislators they may face similar fluctuations in popularity.

While this is an innovative approach, it does not control for other sources of information to which respondents were exposed. For example, based on their survey results the authors assume that their respondents are primarily cable news viewers. However, they are unable to control for the news programming or other stimuli observed by their respondents. It is not hard to imagine that cable news channels reinforce positive or negative messages about a nominee. Controlling for such factors is obviously difficult, especially if not included in the relevant wave of survey questions, but not doing so invites the question whether too much influence is attributed to television commercials per se. It is possible that the commercials reflected the broader debate about Alito and fairly represent messages received by the survey respondents. Unfortunately, that is unknown. The authors also assert that advertisements portrayed the Court as political despite civil confirmation hearings (p.119); however, one of the memorable events from the hearings (and the one most often replayed on television) was Alito’s wife in tears as she fled the committee room during discussion of his supposed racial biases. That politically notable moment or others may have influenced public opinion as much as any commercial(s). Although their model controls for attention to the Alito nomination and an assessment of its fairness (p.111), those measures might or might not sufficiently account for stimuli beyond television advertising. Regardless, the model results in Chapter 5 are interesting and provocative.

Based on the findings in Chapter 5, the authors make significant concessions about the accuracy of positivity bias in the formation of opinions about the Supreme Court. I am not sure whether such a retreat is entirely justified. Any decline in public support for the Court may have been temporary, and it may be that a subset of the Court’s detractors reversed their opinions once Alito joined the High Court and the sky did not fall. Any such determination, however, will have to wait until the next book (or article). Positivity theory merits further examination by these authors and others. [*762]

If there is a fault with the book, it may be that it relies quite heavily on the claim that the Alito nomination was responsible for the observed shifts in attitudes. Gibson and Caldeira say the attitude changes they measure were the “spillover” from “a single nominee” (p.125) but the Court continued to work throughout Alito’s confirmation process , and he was the third Supreme Court nominee within four months. Any combination of these events could affect public opinion and awareness of the Supreme Court. It is possible that the public was weary of another partisan confirmation battle after the relatively contentious Roberts nomination and the utter failure of Harriet Miers as a nominee. We cannot know how Alito would have been treated as a lone nominee during the Court’s summer recess, with the confirmation process playing out in relative isolation from other Supreme Court activities. More effort to account for the context of his nomination, and thereby discount other contemporaneous events, would have been appropriate.

Any scholar or citizen interested in the interrelations of courts and public opinion should read CITIZENS, COURTS, AND CONFIRMATIONS, and it will surely find its way on to the syllabi of numerous graduate courses on judicial politics. The findings in Chapter 2 about public knowledge of courts stand as a vital counterpoint to decades of conventional wisdom about a citizenry generally ignorant of the functions, members, and role of the Supreme Court. The critique of survey methodology is also worthy of attention from scholars in a variety of fields. The framing theory discussed by the authors (p.11, pp.65-70), with political frames of legal actors set against frames defined by “judiciousness,” is not the central focus of the book, but is ripe for further exploration. Positivity theory and the related findings will no doubt be the starting points for many future works on the public, courts, and salient judicial activities.

REFERENCES:
Shapiro, Martin. 1990. “Interest Groups and Supreme Court Appointments.” NORTHWESTERN LAW REVIEW 84: 935.

THE EUROPEAN CIVIL CODE: THE WAY FORWARD

2009-10-19T14:08:00.000-04:00

by Hugh Collins. Cambridge: Cambridge University Press, 2008. 288pp. Hardback. $110.00/£55.00. ISBN: 9780521885805. Paperback. $39.00/£19.99. ISBN: 9780521713375. eBook format. $32.00. ISBN: 9780511474255.

Reviewed by Bogdan Iancu, Faculty of Political Science, University of Bucharest; Alexander von Humboldt Research Fellow, Faculty of Law, Humboldt University of Berlin. E-mail: bogdan.iancu [at] rewi.hu-berlin.de.

pp.751-758

One of the characters in Dostoyevsky’s THE POSSESSED, Stepan Trofimovich Verkhovensky, declaims incessantly throughout the narrative that he will never forswear “those noble ideals,” albeit no one ever asks him to renounce a thing. Moreover, one never comes any closer to understanding what more concretely, their nobility aside, those ideals were about. European Union constitutionalism has unfortunately offered, for quite some time now, a like spectacle of ridicule, irrelevance, exaltation, and obscurity.

Average voter turnouts to the European Parliament polls seem fated to be, by every new election, “the lowest ever,” and local campaigns are, at any rate, disputed on purely national issues. Whether the newest waves of Enlargement have managed to export constitutionalism eastward is still much in question (see Sadurski, Czarnota, and Krygier 2006). In the case of the two most recent enlargees, Romania and Bulgaria, several reports by the Commission (the two countries are under continued quasi-supervision, through the Cooperation and Verification Mechanism) note the slowing pace of meaningful reforms immediately upon EU accession in January 2007. The full measure of the dissatisfaction in Brussels has to be read between the lines of toneless Eurospeak. Appropriately so: since the Commission directed and monitored the Accession process, including the implementation of the so-called “political conditionality,” full honesty would mean admitting failure. But a November 2007 report by a Commission expert argued convincingly that Romanian reforms, in the crucial areas of fighting corruption and judicial organization, had by then already receded to the level of pre-accession year 2002 (De Pauw 2007). These matters are not ancillary or tangential to the operation of the common market, which depends on a modicum of cross-national legal predictability and homogeneity of foundational values and institutions to function properly. It relies, for instance, on independent, impartial, and competent national judiciaries. Yet, if the Union must export “democracy and rule of law” to its new outposts but proves structurally unable to do so, this bodes ill for the state of EU constitutionalism and of European integration more generally. An implication would be that Europe should have perhaps remained an exclusive business club, with membership restricted to the finest of gentlemen. [*752]

Most recently, the Reform Treaty, heir to the luckless “European Constitution,” suffered a heavy legitimacy blow. The Second Senate of the German Constitutional Court has declared unconstitutional, by unanimous decision, the “accompanying law” (Begleitgesetz) to the Act Approving the Treaty of Lisbon. Ostensibly, the Court demanded only that the domestic law be redrafted to strengthen the participative rights of the Parliament (Bundestag) and Federal Council (Bundesrat) with respect to several more dynamic-expansive European lawmaking and treaty amendment procedures. But the argument and general tenor of the reasoning are unusually sobering, even blunt, and reach much deeper. For the first time, the Court derives expressly from the “eternity clause” of Article 79 (3) in the German Basic Law a number of areas, concerning “the political configuration of essential economic, social, and cultural life relations,” whose determination is said to be constitutionally reserved to the nation state (use of military force and criminal law, fiscal and educational policy, and the like). The European Union level of democratization is described as insufficient to justify an extension of the Union attributions beyond the current state (as the court observes, the European Parliament does not instantiate the basic democratic principle of voter equality). At the same time, an attempt at further democratization would be unauthorized from the standpoint of German constitutional law. Europe seems thus relegated in perpetuity to a state of status quo limbo or trapped in a constitutional “double bind” (see Schönberger 2009; Halberstam and Möllers 2009). The paragraphs in which the court expresses doubt as to whether procedural innovations in the Treaty of Lisbon, such as involving “representative” associations and the “civil society” in the decision-making, can substitute for the current EU democracy deficit, seem charged with subdued irony. Such reservations and worries, perhaps even a measure of sarcasm, are fair and justified. Constitutional experiments with corporatist solutions in recent European history (in pre-WWII Italy, for example) did after all prove misguided. To be sure, since constitutionalist emotions and unquestioned attachments to “noble ideals” run high in matters European, the decision was also acrimoniously attacked (in the special issue of the GERMAN LAW JOURNAL, one can even read that the Court “moans” an argument). But the Lisbon Judgment has received, on the whole, balanced and mostly sympathetic coverage in the public and academic debate. Moreover, the Federal Constitutional Court enjoys almost unquestioned authority in Germany and sterling prestige in the rest of Europe. The ruling will certainly have an echo.

It is often argued that critics of European constitutionalism, bounded by their obsolete referential framework (i.e., classical democratic liberalism), simply fail to grasp this “sui generis,” sophisticated and progressive new kind of constitutional democracy (polycentric, non-hegemonic, experimental, network-based, and so on). There is a measure of truth in the assertion, since the evolution of the EC/EU has followed, at different times and often simultaneously, different evolutionary paths which cannot be reduced to any one dimension, be it federal constitutionalism, inter-governmentalism, or supranationalism [*753] (see Peterson and Shackleton 2006). Nonetheless, Union institutions adopt elements of classical liberal constitutionalism for purposes of self-legitimization (e.g., fundamental rights jurisprudence and increasing references to “the common constitutional traditions of the member states” by the European Court of Justice), and the Union undertakes to “constitutionalize” through “political conditionality” its new members. Inasmuch as these trends are relevant, it seems only fair to apply to the European Union processes and institutions the yardsticks they have chosen. One must then assess failure in the inherited conceptual frameworks of liberal constitutionalism and Enlightenment rationality, unsophisticated though they may be.

Yet, despite all mishaps and shortcomings, no critic in political society argues that the construction of a united Europe should be given up because the Union malfunctions. Nor should anyone, of course, but the essential problem remains: the European project suffers from an endemic lack of legitimacy, and yet a remedy is unapparent under the current circumstances.

The long parade of constitutional horribles was necessary not only to introduce our proper topic but also in order to clearly comprehend the stakes. In THE EUROPEAN CIVIL CODE: THE WAY FORWARD, Hugh Collins argues that the source of our current predicament lies in misdirected constitutionalization processes. He also seeks to offer an alternative legal solution, from the opposite direction of justification. This is a momentous task, which renders the book timely and highly relevant. It also recommends a volume written by a private law specialist to a broader academic audience. His book is, one could say, a defense of private law European constitutionalization. This is no easy feat, also since variations on the theme of “societal constitutionalism” still have, at least from the perspective of most public law academics, an oxymoronic ring to them (see Grimm 2009).

Professor Collins opines that, while the European project is in dire need of legitimization, elitist attempts to provide closer political union by imposing grand projects on a reluctant populace are bound to fail: “grand constitutional schemes for a federal union will be interrogated and found sorely lacking” (p. 3). Rather, it is by means of an Economic Constitution (the “constitution of everyday life,” as he calls it) that grassroots legitimacy would arise at the level of regular social and economic interactions between people. Instead of fraudulent grandstanding, he proposes more focus on the legally mundane and quotidian. He gives for instance the example of the package holiday, a humble practice which did much more to accommodate ordinary Europeans with difference than all the constitutional rhetoric from Brussels. This kind of social practice translates into purely private law relations with a trans- or supra-national legal dimension. Fostering and cementing such lower-level social and economic ties would lead in his view to a genuine transnational civil society by “open[ing] up the possibilities for transnational networks between citizens to become denser and form part of the routines of everyday life” (p.19). In time, he believes, this would provide a solid [*754] foundation for more fundamental political institutions.

Two chapters (2 and 3) consider the actual state of play, the evolution of European legal institutions towards a common private law framework. Current developments are found sorely wanting. On the one hand, EU law has a strong deregulatory bias, by virtue of the mutual recognition principle, as developed by the ECJ. In the 1979 CASSIS DE DIJON case, the Court held that a German restriction of the minimum amount of alcohol in spirits (25%, which prevented the importation of a French blackcurrant aperitif) constituted a “measure equivalent to a quantitative restriction” and was therefore in breach of Art. 30 in the EC Treaty. This is the European analogue of the so-called “Dormant Commerce Clause” in US constitutional law. On the other hand, whereas negative integration (removing national regulatory barriers to trade) is aggressively carried out, in Europe – unlike in the case of legislative powers of the US Congress under the Commerce Clause – there are serious institutional and legal hindrances to positive integration. Due to this imbalance, “race to the bottom” and social dumping worries are, in principle at least, more credible. Furthermore, sectoral harmonization regulatory measures at the European level proceed haphazardly and inconsistently. They produce therefore incoherent effects as they impact national legal systems. Collins shows (on a general note, the volume is at its best when it descends from abstract theorizing to concrete examples) how the collision of national private law and European regulatory measures has disruptive effects on national private law systems. He gives, for instance, the example (pp. 58-61) of an Austrian case, which concerned Simone Leitner, a ten-year old who went with her parents on holidays, with a package tour deal. She contracted food poisoning, thus ruining the family vacation; parents sued the tour operator upon return, trying to recover also for the pain and suffering caused by the food poisoning. But Austrian law does not provide compensation for non-material damages. The Austrian court referred the case to the ECJ, seeking a ruling as to whether the European Directive on Package travel, travel, package holidays, and package tours was relevant. The Court in Luxemburg held that Community law requires compensation for loss of enjoyment of the holiday as a form of non material damage. This conclusion rested on a comparison of Member State private law systems, most of which do accord non-material damages. Collins notes that a number of problems derive from the ruling, both in terms of methodology (since this comparative law exercise raises questions as to the limits of the ECJ competence) and effect (since it may level down to the European minimal standards potentially more generous national ones and introduces in Austrian private law an alien principle of uncertain scope, which sits uncomfortably in its new home).

The solution, it is argued, could only lie in the crystallization of a distinct European Economic Constitution, i.e., “the basic legal structure that shapes civil society . . . [and] comprises property entitlements, familial rights and obligations, and rules governing transfers of assets” (p.94). In this vein, [*755] the Treaty of Lisbon defines Europe as a “social market economy.” The structural balance implied by an “economic constitution” can be drawn in a number of ways. One can entrench a certain economic configuration in the political constitution; leaving aside the conspiratorial undertones, this is the basic analytical truth in Charles Beard’s famous tract. The permeation of fundamental rights-provisions into the realm of private relations can also be constitutionally mandated (the so-called “horizontal” or “third-party effect” of fundamental rights). At the sub-constitutional level, an equivalent function is served by regulation, taxation, and fiscal policy. Collins argues that the economic constitution can and should also be determined by means of the fundamental private law rules governing basic social relations; thus the need for a European Civil Code. He acknowledges that many would have reservations with respect to the idea of private law as an economic constitution, since “private law has the appearance of apolitical, or even pre-political, rules that have little bearing on the grand schemes of justice and power that provide a constitution for society” (p.101). However, it is argued, systemic transformations in modern law have led to the result that private law has departed from a purely “corrective justice” type of reasoning in terms of vindicating entitlements or rights and remedying private wrongs. Nowadays, “private law has been infected with the goal-oriented reasoning of regulation” (p.111). Collins believes that a “rights discourse” (as opposed to a purely instrumental, policy- and welfare-oriented pattern of justification) would be more appropriate for private law courts to tackle these new tasks and reason through the policy implications of their decisions.

Cultural and cultural-legal fears of codification are addressed and deflected in two chapters (5 and 6). One needs to take such fears seriously, as there is a basic tension or ambivalence in modern codification. Codification projects are creations of the Enlightenment and, while they bear the promise of unencumbered reason, they also suffer from the hegemonic tendencies of rationalistic hubris. Bentham’s hope, for instance, to produce a Pannomion, the code of all codes, in which there would be “no terrae incognitae, no blank spaces: nothing is at least omitted, nothing unprovided for” has a chilling side. But Bentham himself meant no harm by it. Contrariwise, he thought he was only helping the English liberate themselves from the obscurantist pretensions of the common law – “Judge & Co.” – and live by the dictates of reason (namely, his). On a related note, a European Civil Code sounds very much like yet another technocratic-dystopian mega-project, bestowed by Brussels upon the reluctant masses and forced on the still very diverse private legal systems. According to Collins, we need not fear, as his proposed code would be a code of principles, not rules. The aim is not market harmonization but an Economic Constitution, “agreement on the general principles of the European Social Model in its application to social and economic relations in civil society” (p.134). This more limited or more foundational purview would consequently allow for justifiable qualifications and a measure of diversity in terms of actual application. The practice of the European Court of Human Rights of leaving national systems a “margin of appreciation” in terms of balancing and qualifying Convention rights is presented as a [*756] successful human rights counterpart. Collins argues persuasively that all national legal systems have, not only a “welfarist” side (i.e., oriented towards material welfare and the satisfaction of individual wants and preferences), but share also a strong commitment to “perfectionist” reasoning – i.e., the pursuit of “the good life” and a quest for the philosophical “Ought.” Since national private law systems and the tradition of private law reasoning are “embedded in the perfectionist idea that it is possible to discover what is right and good by means of a rational inquiry” (p.165), a code of principles could to a certain extent become the common denominator. A code of principles would resonate with, rather than displace the various national legal systems.

The last three chapters cover the mechanics and practical implications. The Code is to be implemented as a Directive. Since Directives are legislative acts that bind Member States to a result only and are not self-executing, this would allow the code to serve as a second-order rule of interpretation, rather than simply preempt national codes (much like a constitution, in that way too, ventures Collins at p.239).

In closing, I have a few bones to pick with this overall powerfully argued, well written, and instructive book. I suspect that Professor Collins’ version of private law European constitutionalism shares with Stepan Trofimovich and the European constitutional projects the downfalls of noble but undefined idealism. The proverbial devil is however always in the details.

True it is, that few now believe the rules of private law to be “apolitical” or “pre-political,” that is, “natural” and “objective,” “given.” Blackstone famously defined property as “an absolute and despotic dominion,” whose “true and solid foundation” was to be found in Genesis 1:28, “whatever airy metaphysical notions may have been started by fanciful writers upon this topic.” Since the turn of the last century we know better, and it has become impossible to read such passages without a certain respectful amusement and maybe melancholy, such as one experiences in front of an antique. It is also true that private law and private law adjudication have acquired a policy dimension. But to take this reality and turn it into an express policy prescription requires a big leap of faith (much like, to use the logic of Collins’ own vocabulary, acknowledging an “infection” should not lead to cheerfully spreading diseases).

Collins believes that regular courts deciding private law cases have the requisite aptitudes to balance (first-hand, non-referentially, and as a rule rather than the exception) rights, principles, and values (such as will compose his code). He places much faith, throughout his book, in the public law human rights jurisprudence of national constitutional courts and the European Court of Human Rights. If those courts do such a wonderful job on human rights, he reckons, then so will private law courts when navigating their own brand new, ready-made European kingdom of ends. But this does not follow. In the public law literature, the question of methodology in balancing is still very contentious. It does not form the object of general agreement, as the reader [*757] gleans from Collins’ presentation of the issue. Moreover, even if it were granted, purely for the sake of argument, that the methodology of human rights balancing meets with universal acclaim, in Europe at least it is systemically accepted that this task is more political in nature than “ordinary” adjudication. The acceptance results in distinct institutional mechanisms (explicitly politicized appointments, short terms of office, often non- renewable, organizational separation from the regular court system, and so on). It is not quite the same thing to grant ordinary judiciaries the power to juggle with imponderables and let them keep their tenures and current, relatively autonomous, systems of professional organization to boot.

The content of the proposed code is unapparent. The repeated suggestion that this is not the author’s attribution, since he only proffers the possibility of a project of a code founded on the common principles of European private law systems, is not fully convincing. If the aim were so modest, it would hardly justify the effort to the author and expense to the press. True, a few concrete examples and suggestions are cursorily given. For instance, it is proposed (pp.249-250) that the Code should deal with “externalities” by giving consumers protected expectations that the goods have not been produced under conditions of servitude or regarding the environmental qualities of purchased goods. A right of “affected” businesses (such as nearby shops or motels) is also suggested to “point out to damage,” in the case of plant relocations, even in the absence of a binding agreement. These are ambitious proposals and one would like to read more about how they would work in practice. Last but certainly not least, current codification projects and initiatives (such as the Common Frame of Reference) are heftily criticized throughout the volume, since they surreptitiously introduce a political agenda in the disguise of a technocratic exercise. Therefore, one wants to know in detail how Collins’ European Civil Code will be drafted. Collins has brought a heavy burden on himself. Namely, if one pursues a clearer task, such as harmonizing civil law so that the market would operate more efficiently (what he calls a “welfarist” project), leaving the drafting to the experts seems more justified. Whether the task as such is legitimate is another matter. But if one is a more of a “perfectionist” and wants to constitutionalize European civil law and write a “constitution for everyday life” with human rights, and principles, and justice for all, the reader is wont to know who should compose the convention and what the procedure should look like. All well-mannered people of sound intellect and good will can agree on a set of pertinent principles, goals, aims, and aspirations, especially if they are pitched at a high enough level of generality (this observation goes as well for the remarks above on the dearth of methodology). The problem is how we reconcile these principles into some kind of workable legal arrangement. But, insofar as any hints can be detached from the general discussion, they are not promising. Autonomous agreements with broad participation (alas, the discrete but resilient charm of corporatism) are advocated for drafting standard form contracts and the creation of a European Private Law Institute, modeled after ALI, is prompted (the lures of Eurocracy, perhaps). [*758]

This is an interesting and stimulating reflection on an important topic. It can be read with much benefit by all those interested in the subject of legitimizing through law the European Union. Collins has undoubtedly justified a general need for THE EUROPEAN CIVIL CODE, and reading such a passionate and eloquent defense of continental-style codification written by a Professor of English Law is already quite exciting. The reader awaits, however, a full vindication for the second part of his book title: THE WAY FORWARD.

REFERENCES:
Beard, Charles. 1913. AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES. New York: Macmillan.

De Pauw, Willem. 2007. EXPERT REPORT ON THE FIGHT AGAINST CORRUPTION/COOPERATION AND VERIFICATION MECHANISM, available at http://www.economist.com/media/pdf/romaniacorruption.pdf .

Grimm, Dieter. 2009. “Gesellschaftlicher Konstitutionalismus-Eine Kompensation für den Bedeutungsschwund der Staatsverfassung?” in FESTSCHRIFT FÜR ROMAN HERZOG ZUM 75. GEBURTSTAG 68-81. München: C.H. Beck.

Halberstam, Daniel and Christoph Möllers. 2009. “The German Constitutional Court says: ‘Ja zu Deutschland!’” 10 (8) GERMAN LAW JOURNAL 1241-1258.

Peterson, John. and Michael Shackleton. 2006. THE INSTITUTIONS OF THE EUROPEAN UNION. Oxford: Oxford University Press.

Sadurski, Wojciech, Adam Czarnota, and Martin Krygier (eds.). 2006. SPREADING DEMOCRACY AND THE RULE OF LAW?: THE IMPACT OF EU ENLARGEMENT ON THE RULE OF LAW, DEMOCRACY, AND CONSTITUTIONALISM IN POST-COMMUNIST LEGAL ORDERS. Berlin: Springer.

Schönberger, Christoph. 2009. “Lisbon in Karlsruhe: Maastricht’s Epigones at Sea.” 10 (8) GERMAN LAW JOURNAL 1201-1218.

CASE REFERENCES:
LISBON CASE, BVerfG, 2 BvE 2/08, from 30 June 2009, available at: http://www.bverfg.de/entscheidungen/es20090630 (German) and http://www.bverfg.de/entscheidungen/es20090630_2bve000208en.html (English).

REWE-ZENTRAL AG v. BUNDESMONOPOLVERWALTUNG FÜR BRANNTWEIN (CASSIS DE DIJON CASE), Case 120/78, [1979] ECR 649; [1979] 3 CMLR 494.

SIMONE LEITNER v. TUI DEUTSCHLAND GMBH & CO. KG, Case C-168/00 [2002] ECR I-2631.

PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW

2009-10-19T14:05:00.000-04:00

by Armin von Bogdandy and Jürgen Bast (eds). Oxford, UK: Hart Publishing, 2006. 910pp. Hardback. $230.00/£116.00. ISBN: 9781841134642.

Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza. Email: garruego [at] unizar.es.

pp.745-750

In recent years, and as a logical consequence of its Constitutional implications, the European integration process has progressively become a matter of Constitutional Law. For example, recall the signing of the Maastricht Treaty in 1992 and its consequences in terms of political, doctrinal and juridical debate, including the intervention of some of the European Constitutional Courts and diverse Constitutional reforms carried out to accommodate internal Constitutional Law to the new European Union Law provisions. Or think, more recently, about the failure of the so called “Constitutional Treaty” and all the legal and political debate it generated and the subsequent current ratification process of the Lisbon Treaty.

This is the framework of the voluminous coral work, PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW, a book which, as the editors, Armin von Bogdandy and Jürgen Bast, express in its Preface, departs from the assumption that, although there is no European Legal document designed as such, a European Constitutional Law currently exists. In this sense, and using the editors’ words, there would be good reasons “to treat the European Union’s current primary law as constitutional law. After all, it establishes public power, legitimates legal acts, provides a citizenship, protects fundamental rights and regulates the relationships among legal order as well as between law and politics.” Of course, such a controversial assumption is only possible within the framework of a more problematic assertion that “constitutional law is conceivable without a State, a Nation.”

When approaching this volume, the reader should be aware that it reflects the state of the European affairs by the end of 2004 (a second revised edition is expected by the end of 2009), and therefore paying very special attention to the failed “Constitutional treaty,” from the perspective of “German-speaking scholarship,” which collects various methodologies and differing “political approaches to integration.” The book is structured in five parts, the first one dealing with the definition of the field of European Constitutional Law, the second with institutional issues, the third treating individual rights, the fourth examining diverse constitutional aspects of the Union’s economic law, and the final one entitled “On finality.

Part I of the book, “Defining the field of Constitutional Law,” opens with the chapter devoted to “Constitutional Principles” (Armin von Bogdandy). As stated supra, the contribution does not discuss whether the current Union’s primary Law can be considered as the [*746] Constitutional Law of the Union, but departs from the premise that it is the Constitutional Law of the European Union. From this foundation and within the framework of the importance of the development of a “doctrine of principles,” the purpose of the chapter is to identify and to clarify the core principles of the European Union’s Constitutional Law – founding principles analogous to article 20 (1) of the German Constitution, or article 1 of the Spanish Constitution. With regard to the use of national Constitutional principles and relating national jurisprudence, and as the Member States’ and the Union’s Constitutions face the same central problems, it would not be necessary to renounce any comparison, but a simple transfer of contents would not be adequate. In this sense, the Union is not a State, and, therefore, its structuring principles must reflect this by purifying its content from those elements which only apply to a State – a good example of this is the discussion on the possible meaning of the principle of democracy. After examining the so-called founding principles relating to supranational authority (equal liberty, the rule of law, democracy and solidarity), the chapter focuses on the balance between unity and diversity by analyzing those principles promoting unity and those protecting diversity, and concludes with an examination of the principle of loyalty and the federal balance.

Chapter Two, “Federalism and Democracy” (Stefan Oeter), deals with the nature and future prospects of the EU by comparing the then current situation with the German discussion under the 1876 Constitution and other federal and confederal experiences. The contribution ends by analyzing the unavoidable question of where a people of a common European polity come from and, in this context, observes that the decisive virtue of the current European Constitution is that it would be a Constitution in constant change and residing somewhere between federal statehood and confederation. Such a “compound constitution” would preserve, in Oeter’s view, “the peaceful coexistence of the divergent peoples of Europe without depriving them of the advantages of a deepened co-operation in Federal forms” (p.86). According to Oeter, the European “compound of Constitutions,” due to its hybrid or ambivalent nature, would have the undisputable advantage of allowing a gradual progress towards further integration “without compromising the place of genuine ‘statehood’” (p.91). This feature should be understood as a “potential treasure,” whose deviation from traditional forms of Statehood organised in federal forms would be anything but accidental. In this context, the long term objective of the Union would depart from the continued existence of the different peoples of Europe with their own language, culture and historical experience and, therefore, would require an “extremely high degree of tolerance, individually as well as socially.” This constitutional tolerance would be a characteristic feature of the Union inextricably linked to the construction of the “European Constitution,” a Constitution which, in the author’s opinion, Europe already has and which “corresponds rather well to its current state” (p.93).

Chapter Three, “National Constitutional Law relating to the European Union”(Christoph Grabenwarter), explores the transformations experienced by national Constitutional Law due to the integration process – accession to the European Union and the continuing [*747] confrontation with the Union Law and its developments. After examining the relationship between Union Law and national Constitutional Law – classifying the member States in three different groups: those where European Law enjoys full primacy over national Law, those where European Law has limited primacy, and those where national Constitutional Law takes primacy over European Law – the contribution focuses on central contents and principles of the national Constitutions, such as the question of sovereignty, the structural safeguard clauses, decentralization, national parliaments and fundamental rights. Within this framework, Grabenwarter investigates the way in which the member States pursue specific strategies in order to cope with increasing European integration.

The fourth chapter, entitled “The Constitutional Role of Multilateral Treaty Systems (Robert Uerpmann-Wittzack), is an application of the concept of “international supplementary constitution” to the European Union. International supplementary Constitution could be defined as “a multilateral treaty system that acts alongside the constitutional order of a community” and that can fulfill various functions, such as gap filling – as for example the role played in the area of human rights by the European Convention of Human Rights with regard to several European countries. Therefore, the study deals with the constitutional effects of multilateral treaty systems within the Union’s legal order; in other words, the multilateral Treaty systems which the European Union and the European Community have integrated into their own legal regime so that they have become parts of the European Constitutional Law. In this sense, Uerpmann-Wittzack focuses on the role played by the European Convention on Human Rights and the Treaty system of the World Trade Organization and the question of whether both have acted as international supplementary constitutions with regard to European Law. In Uerpmann-Wittzack’s opinion, the European Community has an ambivalent attitude in this field that could be explained by the statu nascendi of its constitutional order, which, although it cannot do without supplementary constitutions, as long as the European Constitutional order has not established itself, “the Community will endeavour to play down the significance of international supplementary constitutions and to place its own claims to autonomy in the foreground” (p.178).

Chapter Five, “Pouvoir constituent – Constitution-Constitutionalisation” (Christoph Möllers) – should have probably been the opening chapter of the book, as it explores the meaning of the concept Constitution and its possible application to the European integration process. Möllers attempts to expose different traditional meanings of that concept and examine their applicability to the integration process departing from two premises. On the one hand, “a meaningful contemporary use of the constitutional concept cannot ensue without a historical-systematic referral to its meanings.” On the other, the function of Constitutions will be understood as “the reciprocal connection of politics and law” (p.184). Möllers first analyses the historic-systematic development of the constitutional concept around two different traditions, which are not contradictory but are both present in the [*748] member States’ current constitutional systems: the foundation of a new political order or “order-founding constitutional tradition” – American and French revolutionary traditions – and the juridification of the already existing governmental system or “power-shaping constitutional tradition” – German and British traditions. Möllers then moves to a discussion of the constitutionalisation of the European Union in order to arrive at the construction of the three levels of meaning of the concept: normative, formal, and descriptive. Within this conceptual framework, it would be evident that in a democratically demanding sense, the European Union lacks a Pouvoir Constituant, although it would be to some extent plausible to speak of the European Treaties as a formal Constitution of Europe, as the “law-making norms” at the European level. However, and as the author stresses, the written aspect of a Constitution is precarious when referring to the European Treaties for a “variety of reasons that can be traced back to the continuously functioning intergovernmental origins of European Law” (p.210). Yet, as Möllers points out when speaking about the supremacy of the Treaties, “the ‘metaphor’ of the European treaties as a Constitution takes a concrete legal meaning,” although not exempt from difficulties (p.212). Within this conceptual framework, the chapter ends with an assessment of the so-called and failed “Constitutional Treaty.” These reflections close under the very expressive heading, “Constitutional Honesty: The Constitutional Treaty as a Semantic Constitution” (p.226).

Part II is devoted to the institutional structure of the European Union, the distribution of competences and its legal instruments. In this context, Chapter Six (“The political Institutions,” Philipp Dann) focuses on the institutions of the European Union under the assumption that, although it can be considered “a moving object,” the institutional development of the Union can be analyzed as “variations on a fixed tune . . . shaped by a generally unchanged tune or, as might be the more appropriate term in this context: structure” (p.229). On this basis, Dann gives account of the institutional setting of the Union within the conceptual framework of “the system of executive federalism,” that is to say, a system of interwoven competences by which Union and Member States are knit together in the tasks of law-making and driven into an institutional dynamic of co-operation” (ibid). On examining the question of the legitimacy of the Union’s institutional system, Dann finally concludes by proposing the new label of “semi parliamentary democracy” (p.276) to refer to the European Union. On the other hand, Chapter Seven (“The European Constitution and the Courts,” Franz C. Mayer) examines the relationship between the highest courts and tribunals, both at European and domestic levels, and Chapter Eight (Armin Von Bogdandy and Jürgen Bast) focuses on the vertical order of competences, outlining its main features and presenting some aspects of the order of competences contained in the failed Constitutional Treaty.

Jürgen Bast’s analysis of the “Legal Instruments” (Chapter Nine) of the Union, departs from a broad concept of law which encompasses both individual measures and nonbinding statements and, consequently, from an understanding of law-making which applies to all kind of acts independent of [*749] their general or individual nature and of their binding or nonbinding character. Bast focuses on those instruments that are valid under the founding treaties, which means that primary law itself, the so called complementary law and international instruments that are part of the Union’s legal order are not addressed. This second part of the book ends with Antje Wiener’s contribution (Chapter 10) on “the emergence of ‘soft’ institutions such as ideas, social and cultural norms, rules and routinised practices and their impact on the evolution and success of the institutions of constitutional law” (p.421).

Part III is devoted to Individual Rights and opens with the work on “Union Citizenship” by Satefan Kadelbach. Beginning with an examination of both the history and the legal concept of the Union citizenship, Kadelbach then investigates its elements in order to identify “the reasons for its negative evaluation in legal writing to date” (p.455) and concludes with his considerations on the future of Union citizenship. Jürgen Kühling examines the issue of “Fundamental Rights” and its protection in the European Union by analyzing the different phases experienced by the protection of fundamental rights at the Union level and the existing legal doctrine on the matter as, though still in the very early stages, a strong fundamental rights discourse “might compensate” to a certain extent the “weak” democratic legitimacy of the Union (p.516). The chapter concludes with some proposals on institutional amendments. This part of the book closes with the study of “Fundamental Freedoms” (Thorsten Kingreen), a German term which refers to the free movement of goods, workers and capitals and to the freedom of establishment and to provide services.

Finally, while Part IV deals with the Constitutional Aspects of Economic Law (“The Economic Constitution,” by Armin Hatje, and “Competition Law as Part of the European Constitution,” by Josef Drexl), Part V closes the volume with some reflections On Finality, which open with the chapter by Ulrich Everling, “The European Union between Community and National Policies and Legal Orders.” Ulrich Haltern’s work (“On finality”), explores the possible European future horizons through the analysis of law “as it stands.” From his perspective, although finality seems to be related to political action, and law in contrast “is inevitably turned to the past,” law is not just a body of rules, it is “a social practice, a way of being in the world . . . that points not only to a community’s past and memory, but to its future and hopes as well . . . A polity imagines itself in part through law” (p.729). Haltern assesses the failure of European Law to create and maintain a collective identity and explains the partial failure of different “artefacts,” such as cultural elements, like the flag or the anthem, or documents such as the European Charter of Fundamental Rights, or the European Court’s jurisprudence on fundamental rights and Union citizenship, by using “consumer aesthetics.” However, the exploration then moves to the great potential evident in the Court’s doctrine, as in Haltern’s view, “the Court’s changing human rights and citizenship discourse [is] indicative of a major shift in law’s role in the quest for human identity” (p.730).

As the reader can see, PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW [*750] constitutes a deep and thorough examination of most of the issues involved in the always complex and controversial European Union’s constitutional debate, whose richness is impossible to give account of in this necessarily short review.

LAW AND SOCIETY IN THE SOUTH: A HISTORY OF NORTH CAROLINA COURT CASES

2009-10-12T11:52:00.000-04:00

by John W. Wertheimer. Lexington: The University Press of Kentucky, 2009. 292pp. Cloth. $50.00. ISBN: 9780813125350.

Reviewed by Tara W. Stricko, Department of Political Science, Kennesaw State University. Email: tstricko [at] kennesaw.edu.

pp.742-744

LAW AND SOCIETY IN THE SOUTH provides a detailed examination of legal cases regarding a variety of issues concerning civil rights in North Carolina. The book is divided into three main time periods: slavery and the civil war, the turn of the century and world wars period, and the civil rights movement. John W. Wertheimer examines a number of court decisions in each era and contrasts varying outcomes in an attempt to divine how judicial decision-making was affected by the broader social and political environment. The substantive research question driving this book (external social influences on court decisions) is interesting, but this reviewer has substantial methodological concerns with the execution of the study.

Although federal courts (especially the United States Supreme Court) are most commonly remembered for landmark civil rights decisions, Wertheimer persuasively argues that it is the decisions of state courts that most directly affected daily life in the south. A wide range of cases are examined, including: divorce, interracial marriage, de jure housing segregation, the evolution of personal conduct, public nuisance laws, literacy tests, and school desegregation. Time and again Wertheimer argues that the decisions of judges in such cases were most often influenced, not by the law, nor the specific facts of the case, but by societal factors, such as common norms, class conflict, public outrage, and political pressures.

The book opens with three chapters exploring various domestic issues. The BARDEN (1832) and SCROGGINS (1832) cases provide conflicting rulings on grounds for divorce in North Carolina during the nineteenth century. Both Jesse Barden and Marville Scroggins brought divorce petitions alleging that their wives gave birth to “mulatto” babies. Interestingly, Barden won and Scroggins lost, although the Barden birth took place before the marriage, and the Scroggins birth after the marriage. STATE v. ROSS (1877) was a governmental challenge to an interracial couple, while STATE v. DARNELL (1914) was an attempt to enforce housing segregation during roughly the same time period. The ROSS case involved the efforts of a former slave (Pinkney Ross) and his white wife Sarah to live in North Carolina, a state that did not recognize their interracial marriage performed in South Carolina. William Darnell challenged a local statute prohibiting all races from buying property on streets that had a different racial majority. In all these cases, Wertheimer connects particular outcomes with general attitudes towards social and racial issues. [*743]

Wertheimer then explores issues that are broadly cultural, rather than explicitly racial in nature, in PENTUFF v. PARK (1927) (teaching evolution in schools) and CARPENTER v. BOYLES (1938) (drinking and other questionable conduct in roadhouses). Finally, LASSITER v. NORTHAMPTON COUNTY BOARD OF ELECTIONS (1959) and STATE v. BRAXTON CHAVIS (1980) concern literacy tests and voting rights and segregated schools respectively. The CHAVIS case is particularly interesting as it involves schools segregated in three ways, with white, black, and Native American systems. Even more surprising is the strength with which the Lumbee Indians (a small ethnic minority rumored to be descended from the lost colony of Roanoke) fought for continued segregation.

Wertheimer takes a qualitative case study approach in this book. That choice is both a strength and a weakness of the work. The case studies are in-depth, thorough, and very interesting. But the studies lack a rigid empirical framework other than the overarching argument that legal decisions are affected by law and society. For example Wertheimer’s discussion of the “mulatto” babies divorce cases is reminiscent of the type of strategic decision the U.S. Supreme Court made in MARBURY v. MADISON (1803). A complicated, strategically calculated decision whose true motivation, while widely agreed upon, is difficult to prove definitively. Wertheimer argues that the difference in legal outcomes in SCROGGINS and BARDEN was actually a carefully crafted move on the part of wealthy judges with high social status to preserve the permanency of marriage from the assault of the less secure middling working set, since each class had its own uses for marriage and a different utility payoff in making unbreakable unions. Although he does an admirable job of supporting that argument, it would take an examination of many more such cases to support stronger and more definitive conclusions.

Another methodological concern is a lack of case selection justification. Since there is no clear theme among the cases other than being racial issues decided by North Carolina courts, the reader is left wondering: “why these particular cases?” In the beginning of the book, Wertheimer mentions that the project developed out of student essays written for an undergraduate class. But that selection criterion is not nearly enough; a stronger rationale is needed. One suspects that Wertheimer had reasons for picking these specific cases out of all the topics explored by students, but unfortunately there is no detailed explanation, and the reader is left to make his or her own assumptions.

This book will appeal to readers who are interested in a detailed explanation of specific cases in North Carolina’s history. Although its utility at generalizing is limited, the author has done a good job of thoroughly explaining his detailed interpretation of events. This study is also valuable as a broad overview of a small sample of civil rights cases. The cases would be an ideal platform for beginning a deeper study of specific civil rights topics. Finally, this book would have great utility as a text for an upper-division seminar for undergraduates. It is well-written, interesting, and is sufficiently accessible to allow undergraduates to connect with the material. [*744]

CASE REFERENCES:
CARPENTER v. BOYLES, 213 N.C. 432 (1938).
JESSE BARDEN v. ANN M. BARDEN, 14 N.C. 548 (1832).
LASSITER v. NORTHAMPTION COUNTY BOARD OF ELECTIONS, 360 U.S. 45 (1959).
MARBURY v. MADISON, 5 U.S. 137 (1803).
PENTUFF v. PARK, 194 N.C. 146 (1927).
MARVILLE SCROGGINS v. LUCRETIA SCROGGINS, 14 N.C. 535 (1832).
STATE v. BRAXTON CHAVIS, 45 N.C. APP. 438 (1980).
STATE v. DARNELL, 166 N.C. 300 (1914).
STATE v. ROSS, 76 N.C. 242 (1877).

© Copyright 2009 by the author, Tara W. Stricko.

FAULT LINES: TORT LAW AS CULTURAL PRACTICE

2009-10-12T11:45:00.001-04:00

by David M. Engel and Michael McCann (eds). Stanford, CA: Stanford University Press. 2009. 408pp. Cloth $80.00 ISBN: 9780804756136. Paper $27.95. ISBN: 9780804756143.

Reviewed by Paul Parker, Department of Political Science, Truman State University. Email: parker [at] truman.edu.

pp.737-741

Why does India have a “tort deficit”? Why has medical malpractice litigation increased in Japan over the past several decades? Why have lawsuits against big tobacco succeeded in the United States, but not in the United Kingdom? Why can I get insurance against losses that result from my tortious behavior, but not against losses that result from my criminal behavior? Why is sexual harassment considered civil rights law, and not tort – and with what consequences? Why was it better for a pedestrian in 1890’s Denver to be injured by a tramway than a railway, and what does the difference say about the legal culture?

These are some of the questions that are addressed in this collection of 16 chapters. Noting that “Scholars use the term culture in many different ways,” the editors go on to say, “culture is not a separate variable to be isolated and studied for its independent causal significance, but rather it refers to the discourses, logics, and norms that structure and render meaningful the practices of humans in various social contexts. . . . Culture, we might say, is practical meaning-making activity at work.” (pp.5-6) As indicated by the questions above, this meaning-making varies across time and across country.

In “Law, Liability, and Culture” (Chapter 1) David Nelken provides a synthetic treatment of culture (what is culture? what is the appropriate unit of legal culture?) and contrasts interpretive and positivist approaches to the use of “culture” as a variable. Positivists encourage comparative scholars to treat culture as a “second-order” variable, something of a leftover category after scholars have paid close attention to structural differences between countries (citing Prosser 1995; see also, Elkins and Simeon 1979). Rather than reduce culture to an isolated variable to explain legal differences, the interpretive approach “seeks to use evidence of legally relevant meaning-making activity and attitudes as an ‘index’ of legal culture” (p.33). Geertz (1973), Friedman (1994) and Nelken (1997) are three examples of interpretive approaches cited in which institutions, structure, and culture are not separated, but their intertwinings explored and explicated (pp.34-5).

The methodological mindset of readers will matter to their own meaning-making of these essays. Of India, Marc Galanter states, “Not surprisingly, the virtual absence of tort litigation is associated with an absence of institutional features for facilitating such litigation” (p.55). The positivist may be tempted to bypass culture and go directly to the institutional features that he describes: “Neither contingency fees nor legal aid are present . . . . Lawyers’ role does not [*738] include investigation and fact development,” and there is not a dedicated tort bar, owing to general lack of specialization and institutional supports (p.55). There is also an institutionalized system of ex gratia compensation –“without acknowledging any obligation or entitlement” – that appears to displace the compensation function of a tort suit. And structural barriers to litigation play prominent explanatory roles in later chapters, as discussed below. But as Nelken writes in Chapter 1, for cultural theorists, such “Institutions themselves are an expression of culture” (p.35).

This statement is reflected well in the other essays that comprise this second section. Tom Baker argues that liability insurance practices reflect and reinforce a cultural, moral, disapproval. If we conceive liability insurance as protecting the victim, the exclusion of crime-torts from liability insurance coverage makes no sense; only by considering the moral judgment that no one should profit from crime does this insurance exclusion make sense (Chapter 4). Valerie Hans (Chapter 5) explores the degree to which juries are “Conduits for Culture.” Hans discusses the role that (at times competing) narratives play in shaping juries’ cultural understandings (including those that may conflict with the letter of the law, leading for instance to jury nullification (p.94)). In Chapter 6, William Haltom and Michael McCann analyze how the news coverage frames fast-food and obesity as one of personal responsibility and choice, rather than corporate irresponsibility, reproducing a culture that is skeptical of fast-food litigation, buttressing their previous research on tobacco and the McDonald’s coffee case (2004).

In the third section, “Injury and Identity: Race, Gender, Sexuality,” the contributors explore how tort law creates or reinforces cultural and legal categories often taken as essentialist. Martha Chamallas reveals how William Prosser’s treatise mitigated torts of intentional infliction of harm for inappropriate sexual comments or overtures under the rule “no harm in asking.” Such a rule favored male sexual initiative, while simultaneously the limited use of tort in this area reinforced hierarchy and privilege, allowing “upstanding women” to sue for libel to their good moral character. We now address such harms through sexual harassment law, and Chamallas argues that harms recognized by civil rights law could be imported into tort law to change the concern for honor into a concern for dignity (pp.125-32). White privilege in law is the subject of Jennifer Wiggins’s study of tort from 1900-49. In assuming a white victim/plaintiff, and in the operation of the institutions by white judges and jurors, tort law was “white” (pp.157-58). Wiggins explores how the law’s twin demands of equal treatment and individualized consideration intersect in tort cases with plaintiffs of different races, and how ‘individualized treatment” led to unequal practices. Thus courts reduced damages for African Americans because an injury to a colored man cannot be as great as to a white man (p.162), because blacks have lower life expectancies (p.165), and for more generally racist reasons captured in the statement regarding “the well-known improvidence of the colored race” (p.170).

Part IV, “Issues of Risk and Responsibility,” contains two essays on Britain and two on Japan. Charles Epp [*739] (Chapter 10) discusses how activist lawyers and concentrated media attention changed the English cultural understanding of police misconduct. Structural features again play an important role in how this political battle unfolded, as England’s “loser pays” rule reduced the number of tort suits, and required public aid lawyers’ involvement (p.189). Such suits were aided by a rule of vicarious liability exposing British chief constables to liability for the actions of their officers (p.180), facilitating a change in thinking of abuse as having institutional roots (rather than being the result of “a few bad apples”), thereby facilitating reform.

Structural differences between legal systems play a central role in the other chapters in this section. Central to Lynn Mather’s explanation for a plethora of tobacco suits in the US, contrasted with two suits in Britain, are the financial incentives of the legal profession, and their organization. Fee arrangements including contingency fees and punitive damages encourage more suits in the United States than do the “loser pays” rule and the reliance on legal aid solicitors. Evidentiary rules and a greater ease of class certification also favor suits in the US. Meanwhile, the substantively less-specialized English bar, coupled with the division between barrister and solicitor, are two ways in which the professional organization of the bar contributes to fewer tobacco torts in Britain (pp.205f).

In “Suing doctors In Japan” (Chapter 12), Eric Feldman attempts to disentangle structure and culture to understand both a historically low level of medical malpractice litigation, and the rise in such litigation over the past 30 years. The standard explanation for low rates of litigation in Japan is a culture emphasizing harmony, but structural obstacles – high filing fees and legal retainers, lengthy resolution times – clearly deter suits. So, too, does the standardization of compensation through a “Red Book” of compensation rates for apparently nearly every accident and harm scenario, and the lack of punitive damages (pp.217-18). Recent structural reforms have reduced the claims resolution time, while cultural erosion of trust in elites (including doctors), as well as less secure national health care, have opened the door to more medical malpractice litigation.

Structural differences rooted in culture also assist in understanding differences in compensation schemes in Japan and the United States for mass torts like asbestos exposure. In Chapter 13, Takao Tanase discusses how the bureaucratic-compensation scheme in Japan, akin to workers’ compensation, provides more certain and efficient compensation. Beyond the uncertainty of tort litigation, lawyers’ fees increase transaction costs of those who secure compensation. After considering these structural differences, Tanase tells an illuminating story of how asbestos tort litigation in Japan – which is not precluded by the compensation scheme – produced two large lawsuits rather than thousands of individual lawsuits. He explains this as a result of a legal corporatism in which the Japanese bureaucratic elite, including judges, work more cooperatively with companies for fair compensation; litigation was used to negotiate a global compensation scheme, rather than produce many more lawsuits (pp.245-7). [*740]

The fifth and final section of the text is “Causation, Duty and Obligation.” In Chapter 14, David Engel explores how a Karmic cultural theory of causation in Thailand conflicts with a legal theory of causation, thereby reducing appeals to tort law. By contrast (and consistent with his earlier work (1984)) in the United States Engel finds theories of causation and responsibility differ between old timers and newcomers to a community. Ann Scales discusses how the demands of causation in the American tort system act as “an instrument of obfuscation and oppression,” focusing specifically on gender (Chapter 15). In our culture of personal responsibility, causal events are culturally and legally conceived as atomistic, discrete, and linearly and scientifically related to a harm: “These four aspects of Western causal habits are a veritable menu for defense lawyers in tort cases” (p.271). Scales presents the McDonald’s coffee case as a rape story (e.g., Stella Liebeck “deserved it,” given her behavior), and argues that the FDA’s cavalier attitude toward the testing of drugs for women is sex discrimination which the law of tort marginalizes through discounting of epidemiological studies (pp.280-82). Finally, Joyce Sterling and Nancy Reichman explicate how tort law on the Western Frontier constructed different legal duties for railroads and tramways, effectively subsidizing the railroads of outsider capitalists more than the local trams (Chapter 16).

This brief treatment is necessarily less nuanced than the essays, and a couple essays have not been referenced. In an Introduction, editors Engel and McCann also provide an overview of the essays, their organization of the text into the five sections, and a discussion of the cultural analysis approach used by the contributing authors. Rounding out the book are 18 pages of endnotes, a 31 page bibliography, a list of Cases, Statutes and Agency Reports and an index which is impressive in its scope and integration for an edited collection.

The editors, who have contributed mightily to our scholarly understanding of torts and disputing over the past 25 years, have succeeded admirably in assembling highly accessible essays that demonstrate their assertion, noted above, that “culture is not a separate variable to be isolated and studied for its independent causal significance, but rather it refers to the discourses, logics, and norms that structure and render meaningful the practices of humans in various social contexts” (pp.5-6). On average the essays are highly accessible, and the text will be a welcome addition to legal studies courses with an interpretive approach and among scholars who desire to learn more about tort law in a comparative context through thick description.

REFERENCES:
Elkins, David J. and Richard E.B. Simeon. 1979. “A Cause in Search of an Effect, or what Does Political Culture Explain?” 11 COMPARATIVE POLITICS 127-146.

Engel, David. 1984. “The Ovenbird Song: Insiders and Outsiders and Personal Injuries in an American Community.” 18 LAW AND SOCIETY REVIEW 551-582.

Friedman, Lawrence. 1994. “Is there a Modern Legal Culture?” 7 RATIO JURIS 117-131. [*741]

Geertz, Clifford. 1973. “Thick Description: Towards an Interpretive Theory of Culture,” in Clifford Geertz, THE INTERPRETATION OF CULTURE. New York: Basic Books.

Haltom, William, and Michael McCann. 2004. DISTORTING THE LAW. Chicago: University of Chicago Press.

Nelken, David (ed.). 1997. COMPARING LEGAL CULTURES. Aldershot, UK: Dartmouth.

Prosser, Tony. 1995. “The State, Constitutions, and Implementing Economic Policy: Privatization and Regulation in the UK, France, and the USA. 4 SOCIAL AND LEGAL STUDIES 507-516.

© Copyright 2009 by the author, Paul Parker.

SPEECH OUT OF DOORS: PRESERVING FIRST AMENDMENT LIBERTIES IN PUBLIC PLACES

2009-10-05T00:10:00.001-04:00

by Timothy Zick. Cambridge: Cambridge University Press, 2008. 362pp. Hardback. $90.00/£45.00. ISBN: 9780521517300. Paper. $29.99/ £15.99. ISBN: 9780521731966. eBook format. $24.00. ISBN: 9780511460272.

Reviewed by Jerome O’Callaghan, Associate Dean, Arts and Sciences, State University of New York at Cortland. Email: jerome.ocallaghan [at] cortland.edu.

pp.733-736

Try to imagine the reasons why Martin L. King’s famous “I have a dream” speech of August, 1963 holds such a revered place in American cultural and political history. No doubt one reason is the inspired oratory; another is the text; another is the author. Beyond all that is the size of the crowd, the immediate context of other civil rights protests, and, last but not least, is the location: Washington, D.C.’s National Mall. There are few, if any, more fitting sites for a civil rights event of that magnitude. Would the speech have been the same if delivered outside Union Station in Los Angeles, or at Pike Place Market in Seattle? As Timothy Zick suggests in his new volume, SPEECH OUT OF DOORS, the very meaning of a public speech derives in good part from its location.

Zick argues that the First Amendment free speech guarantee was created in the context of public debate in public spaces. Dr. King’s speech is a direct beneficiary of that free speech commitment. The idea of individuals combining to make their voices heard in parks, on streets, outside government offices, is surely central to the goals of the first amendment, the Bill of Rights, and indeed, the Constitution.

Speech needs protection, and so does a place for speech in public. Zick has undertaken to highlight the importance of location/place/space in the realm of free speech. This may seem quixotic in today’s endlessly networked world; almost anyone, or any fool for that matter, can post a blog, comment on the New York Times web site, or create a web page. We are all broadcasters now; free speech has never been so free; a huge audience is just a click away, and so on. Yet imagine if the world wide web had been available in 1963; Dr. King might have posted his speech to a web site and not bothered with the hassle, the heat of Washington, D.C. – no muss, no fuss. The web generates its own islands of understanding, but it cannot deliver meaning the way that Dr. King delivered meaning on August 28th, 1963. Public meetings and public protests, whether large or small, play an important and inimitable part in the machinery of democracy. In Zick’s terms, physical space trumps virtual space in “proximity, symbolism, emotion and solidarity” (p.4). Take that, Twitter.

In recent years, public space for expressive purposes has decreased in quality and quantity, and Zick provides a thorough review of the various challenges to free speech in public places. The “messy vitality” (p. 201) of public space is in the process of being homogenized – this is the core of Zick’s [*734] concern, and he enlists not just legal observers, but also sociologists, urban planners and architects to support his point. SPEECH OUT OF DOORS relies on an analytical framework where public space is treated as an “expressive topography” subdivided into four categories: Embodied Places, Contested Places, Non Places, and Inscribed Places; one chapter is devoted to each. In addition, he covers Militarized Places, Networked Places and the peculiar situation of college campuses.

“Embodied place” – this is the personal space that matters in face-to-face encounters. It is the space in which leafleters, beggars, pollsters and proselytizers do their business. Contested places are specific sites that amplify the message by virtue of the space itself, or the audience – the classic examples are court houses, state houses, and segregated facilities. “Non Places” – these are places widely used by the public but expressive activity is generally forbidden, typically malls and airports. Inscribed places are “sacred venues” for public democracy; (e.g. National Mall); places having an “outsize influence on public life” (p.187). They are closely controlled via time, place and manner regulations.

For all the ways to slice and dice the space out there, the core of Zick’s concern lies in the array of powerful forces lined up against free speech in public spaces. There is the privatization of public property, the expansion of malls and gated communities, the development of buffer zones, the invention of prison-like free speech ghettoes (supposedly serving as dedicated expressive spaces), the public’s desire for undisturbed convenient shopping, campus administrations containing free speech in public as much as possible, the expanding bureaucracy behind permit requirements, the Supreme Court’s public forum approach (aka instant ossification of public spaces), and the Supreme Court’s routine support for time, place and manner regulations.

Zick has assembled an impressive catalog of erosion of this pivotal democratic right. His examples are impressive and persuasive. Gatherings of world leaders, presidential campaigns and party-political national conventions – these are the events that commonly become “militarized places.” The extent of regulation/control of protest is overwhelming, or at least that is the goal. Militarized places invariably involve lots of concrete, metal fences and barbed wire; that is how officially-designated “demonstration zones” take on the character of a prison exercise yard. This, we are told, is where free speech belongs. Courts have allowed “security” to become a carte blanche for government to avoid contact with protesters. Curfews are helpful too – think of the court-approved 25 block curfew zone established by the Mayor of Seattle after protestors got too close to a World Trade Organization meeting in a downtown conference center.

Once upon a time the Supreme Court was willing to say that some private property was, by virtue of its use, endowed with public purpose, and from that First Amendment obligations followed. The case was MARSH v. ALABAMA, decided in 1946. Thirty years later the Supreme Court voided that approach, and now private property, no matter what its use, no matter how [*735] vast, is exempt from any First Amendment regulation (HUDGENS v. NLRB). This is the rise of the “non-place” in Zick’s scheme, particularly the malls and airports that would normally attract leafleters, pollsters, petition-gatherers, proselytizers and beggars.

Things are not much better on college campuses; universities have followed the trend of regulation of public free speech into certain defined, and often pointless, spaces. This does not sit well with the special place universities hold in relation to the marketplace of ideas. It is reassuring, though Zick does not emphasize the point, that many universities have failed in their attempts to defend free-speech zoning in court.

One of the ironies of the timing of this review is that in the month of August 2009 many news stories were devoted to town hall meetings across the country disrupted by opponents of a new health care reform proposal. Whatever one makes of the politics involved, it is clear that free speech in public spaces can still be “vitally messy” despite the best intentions of those organizing public events. This might relieve some of Zick’s pessimism. In this context, Zick might have discussed the evolution of “flash-mobs” and their potential for undermining the entire regulatory apparatus that has emerged under the time-place-manner doctrine. I would also like to have read his reaction to the KELO eminent-domain case, or more accurately, the backlash to the KELO decision. Likewise his take on the famous neo-Nazi march in Skokie (documented in David Hamlin’s THE NAZI / SKOKIE CONFLICT) would be interesting to read; it would fit perfectly with his brief in this text.

While Zick’s analysis went a long way to persuade me that the encroachment on free speech in public spaces is real and increasing, there are some caveats to consider. He lost me in the chapter on networked places, a chapter with a focus on surveillance (those CCTV cameras proliferating in urban areas) and “sous veillance” (on the street amateur recording of public disturbances, police behavior, e.g., the Rodney King video). He argues that pervasive surveillance has a First Amendment chilling effect, which suggests that the First Amendment guarantees a right to anonymous use of public space. The courts will not go that far, nor would I. If it is legitimate to record my family standing outside a landmark building (as tourists all over the world are wont to do), it seems equally legitimate to record police behavior or misbehavior in that place. Would government officials, including police, have fewer rights to record in that space? The interesting question in my view is not the question of a right of anonymous use, but the question of access to government records. To the extent that government maintains so many record-keeping devices (e.g., there are 4,400 CCTV cameras below 14th Street in Manhattan, not all in private hands), what obligation does Government have to make the recordings available to the public?

One other weak point in Zick’s analysis is his tendency to end chapters with bland and vague exhortations. The net effect is to say: if we all step back and remember the values of the First Amendment, we can do better. Who would disagree? “Courts must ensure adequate breathing space for spatial contestation” (p.132). “A mandatory course for [campus] administration on [*736] the First Amendment might be a sound idea” (p.287). “Protesters must be increasingly media – savvy” (p. 256). “Courts cannot preserve the expressive topography by themselves. Those responsible for the condition of our public physical infrastructure – public planners, zoning officials, architects – must also be aware that their shaping and altering of public places often affects an expressive topography” (p.328). Given his thorough analysis of the relentless encroachment on public space by a variety of forces of modernity, these responses, though logical, were strangely unconvincing.

In the details of Zick’s argument there are some issues to dispute, but in the big picture it is hard to find fault. This is a well-written text, making an important argument about a vital constitutional guarantee. Zick is surely correct when he argues that in American history people take to the streets to stake a claim not just to legitimacy, but to the right to participate in government. Scores of cases featuring Jehovah’s Witnesses and Civil Rights marchers teach that lesson. There is an important legacy there – one that should be guarded with greater care than we see today. SPEECH OUT OF DOORS makes the simple claim that we have squandered a great resource, and it is now time to reverse course.

REFERENCES:
Hamlin, David. 1980. THE NAZI / SKOKIE CONFLICT: A CIVIL LIBERTIES BATTLE. Cambridge: Beacon Press.

CASE REFERENCES:
HUDGENS v. NATIONAL LABOR RELATIONS BOARD 424 U.S. 507 (1976).
KELO v. NEW LONDON 545 U.S. 469 (2005).
MARSH v. ALABAMA, 326 U.S. 501 (1946).

WAR, REVENUE, AND STATE-BUILDING: FINANCING THE DEVELOPMENT OF THE AMERICAN STATE

2009-10-05T00:09:00.002-04:00

by Sheldon D. Pollack. Ithaca: Cornell University Press, 2009. 328pp. Cloth $69.95. ISBN: 9780801447921. Paper $24.95. ISBN: 9780801475863.

Leslie Friedman Goldstein, Department of Political Science, University of Delaware. Email: lesl [at] udel.edu.

pp.729-732

This new book by Sheldon Pollack sets out to tell the story of the politics of the build-up of a taxing capacity in the American State – that is, in the central government of the United States of America. As all Americans know or should know, the initial version of the USA under the Articles of Confederation, did not have a taxing power and did not have the power to enforce any laws. It could request money from each state, as the United Nations today can request dues from each member, but, like the latter, it had no forceful mechanism for extracting that money. By contrast, the contemporary Internal Revenue Service raises $2.5 trillion annually (p.288) and is feared by individual Americans from the lowly to the haughty. How did we get from there to here?

Pollack begins his account with a recapitulation of the descriptions by several theorists who have likened the rise of the modern European state to criminal protection rackets. A warlord gang comes along (in the power vacuum that followed the collapse of the Roman Empire) and extorts money from local residents as payment for refraining from totally pillaging them. Over time, the gang finds it more economical to stay put and extract regular tribute and provide bonafide protection from other potential marauders, as a way of securing its revenue source. These ignoble bad guys, now in charge, become the so-called “nobility” who were later taken over by monarchs in the postfeudal period. Kings rise to power in the early modern period because of technological developments in weaponry that advantage big treasuries and big armies (Chs.1-2). Enter the modern kingly state, later known as the nation-state.

The kingly warrior state began to evolve toward the modern social welfare state as the liberal monarchy of Germany confronted the threat of the rise in popularity of social democracy in the late nineteenth century. In 1883 Kaiser Wilhem I and Otto von Bismarck implemented compulsory health insurance for workers (employers paying 2/3 of the cost, employees the rest), in 1884-5 compulsory accident insurance (paid by employers), and in 1889 comprehensive pensions for the old and/or disabled. In the same decade the monarchy nationalized the railroads and organized a conscript army (p.89). As a system that offered concrete benefits to the mass of the citizenry, and that, as to pensions, tied the benefits to the long-term stability of the regime, the social welfare state conserved existing power relations. Other European powers noticed the successful innovation and copied it in rather short order. By the [*730] 1920s, all of the Western European states were on board (p.92-94). By the early 1930s, the states of Europe were spending more on social benefits than on their militaries (p.95)

So far, Pollack is summarizing the work of other scholars, and he offers an impressive overview of the state development literature. His interest, however, is on how, when and why states manage to build up and institutionalize their taxing, or as he puts it, “revenue extraction” capacity. The short answer is war. A sense of crisis weakens public resistance to paying taxes, and nothing says “crisis” so well as war. The crisis of the Great Depression pales in comparison to the two world wars as a stimulus to rises in tax impositions (pp.94-99). When the war ended, instead of going back to prewar tax levels, the European states each time largely shifted the spending to social welfare benefits (ibid.).

In the remaining two thirds of his book, Pollack offers a careful history, thick with descriptive detail, of the development of the state apparatus – i.e. the governmental bureaucracy, particularly but not exclusively that of the revenue raising forces, of the American national government. He traces the transition from the thirteen separate states, already leagued in war, that declared in July of 1776 that they “are,” although “united” nonetheless “independent.” At some point the thirteen original states began to speak of themselves with a singular verb rather than a plural verb. Although Pollack does not trace the linguistic transition, the political transition from, first, states leagued by war, to then confederated states, to finally a more unified and effective federal state via adoption of the U.S. Constitution is part of the story he unfolds (Chs.4-5).

The revolutionary war created war debt that the impotent Confederation could not come close to paying off. The U.S. Constitution lists the first three powers of the new Congress in Article I, Section 8 as (cl.1) the power to tax and spend for the common defense and general welfare, (cl.2) the power to borrow money, and (cl.3) the power to regulate commerce among the states. The new government, after brief experiments with inheritance taxes (1798-1801) and taxes on land and slaves (1798-1801), settled into a pattern of financing mainly by a combination of excise taxes on so-called luxury items like whiskey and tobacco, sales of public lands, and tariffs. Tariffs far outpaced the rest as a revenue source. The U.S. managed to pay off much of its debt but incurred new debt with the War of 1812. During the war, massive borrowing and massive increases in the level of taxation took place, thus producing new national debt. By 1835 the entire national debt was paid off, but soon there was the War with Mexico, then the Civil War. The Spanish American war goes unmentioned, but Pollack gives World Wars I and II and the Cold War considerable attention.

Each war caused the federal government to raise taxes and to supplement tax revenue by borrowing. The Civil War brought the first, tiny income tax (5% on incomes above $600 per year, graduated up to 10% for incomes above $10,000). It was allowed to expire in 1872. Nonetheless, the significant expansion of the federal bureaucracy that accompanied the war and the high level of federal expenditures triggered by the [*731] war continued after war’s end. Much of the new bureaucracy existed to administer the new veterans’ and widows’ pensions for soldiers of the Union army. In other words, social welfare benefits started to flow to the northern states where the Republican party’s strength lay (pp.234-238). As the South and West increased in political strength toward the end of the nineteenth century, the Democratic party pushed through a 2% flat income tax, so tariffs could be lowered (pp.239-240) . The Supreme Court declared it unconstitutional, and the Constitution was then amended in 1913 to permit an income tax. This time (as during the Civil War) the tax had significant support from many Republicans, including President Taft. After ratification, Woodrow Wilson’s administration then pushed through a very modest and modestly graduated income tax accompanied by a lowered tariff. Income up to $3,000 for single individuals was exempted, and the tax rate on up to $20,000 income was only one per cent. Even then, for the first years of the tax, the exemption was so high that only 2% of households paid income tax (pp.245-246). Naturally, entry into WWI massively pushed up both tax rates and expenditures, but the postwar period, until the stock market crash, brought a gradual shrinkage of both down to prewar levels. President Hoover promoted a boost of income tax rates to deal with the drastic drop in revenue attendant to the Great Depression, and that law passed in 1932. FDR at first resisted political pressure to continue raising rates, but gave in to pressure from his left with the Revenue Act of 1934. In 1935 the federal government introduced both the social security system of old-age pensions and a program of unemployment insurance. It tinkered with the income tax rates throughout the thirties but did not fundamentally alter the system. It was WWII that brought massive changes in the revenue system along with a mushrooming in the federal payroll and size of the military. Federal expenditures went from $9.6 billion in 1940 to $95 billion in 1945, basically a tenfold increase (p.259). In contrast to the sequel to WWI, this time the Cold War came along and kept expenditures up. Not surprisingly the federal bureaucracy stayed commensurately large. Meanwhile, social welfare benefits increased over time, especially during the Lyndon Johnson administration.

Pollack concludes that, despite the parallels to Europe in the connection between war and revenue growth, the United States exhibits important differences. The American system looks much more like a genuine social contract where members understand themselves to be mutually benefiting from the political system that would protect their rights, and does not look like the “protection racket,” i.e., prettified extortion system, described by the scholars of the early modern European state.

This is an overwhelmingly impressive piece of work in terms of its grasp and analysis of a wide range of literatures, but I cannot suppress one complaint about a topic he did not really treat. It strikes me that comparison to the growth of the European kingly state is not likely to be terribly illuminating, because the “American state,” as Pollack calls it, is born of voluntary immigration, revolution against a monarchy, and then [*732] voluntary federation of self-governing smaller states. I have elsewhere urged a comparison of the growth of the U.S. federation with state development of the Dutch federation of the seventeenth and eighteenth centuries and the Swiss federation of the nineteenth century (Goldstein 2001). These too formed voluntarily, in contrast to the German federation and the USSR, both of which grew out of conquest; and they formed independently, in contrast to Canada, Australia, and India, which federated under the shadow of the British imperial power.

The absence of focus on the federal element of the U.S. system produced a commensurate neglect of the non-military aspects of state-provided protection. In this federal union, it is the local state that performs the functions of dispute resolution and apprehension of criminals. Revenue is needed for these. How does the ability to raise revenue evolve at the state and local level? Perhaps Professor Pollack can be persuaded to address these issues in his next book. Until then, we can be grateful for this one.

REFERENCE:
Goldstein, Leslie Friedman. 2001. CONSTITUTING FEDERAL UNION: THE EUROPEAN UNION IN COMPARATIVE CONTEXT. Baltimore: Johns Hopkins University Press.

MULTICULTURAL JURISPRUDENCE: COMPARATIVE PERSPECTIVES ON THE CULTURAL DEFENSE

2009-10-05T00:07:00.001-04:00

by Marie-Claire Foblets and Alison Dundes Renteln (ed). Oxford and Portland Oregon: Hart publishing, 2009. 386pp. Paperback. £22.00/$44.00. ISBN: 9781841138961.

Reviewed by Lee P. Ruddin, LLB, MRes, PgCert, Roundup Editor, History News Network. Email: leepruddin [at] yahoo.co.uk.

pp.725-728

The conflict between law and politics is an age-old one. Add culture and, more specifically, state law and customary law, into the mix, and the clash would appear to be a never-ending one.

Notwithstanding the work of Edward Said, culture was always going to play its part in legal and political proceedings given the increasingly pluralistic world we inhabit today. Yet, no one could have predicted multicultural jurisprudence to have hit the headlines like it has done this past year. News-stands have groaned under the weight of reports from Sharia courts operating in the UK to Italy’s crackdown on its Romani people and the French burqa debate.

While coverage of Taliban-style laws passed by the Karzai government in Afghanistan, public executions by beheading in Saudi Arabia, and a Malaysian woman sentenced to whipping for drinking alcohol have occupied an equally vast number of column inches, it is the phenomenon of competing and conflicting conceptions of equality that is the theme of MULTICULTURAL JURISPRUDENCE: COMPARATIVE PERSPECTIVES ON THE CULTURAL DEFENSE.

“The multicultural character of contemporary society has given rise to myriad political and philosophical questions,” Joke Kusters writes in Chapter Eight (199-227), “which are related to new challenges in legal reasoning” (p.199). “The debate is often emotional as there are political consequences,” cautions Kumaralingam Amirthalingam in Chapter Two (35-60), “mainstream or majority cultural groups fear that the established legal order is threatened while minority cultural groups object to having their norms and value systems marginalised” (p.36). And, as Maneesha Deckha, in Chapter Eleven (261-284), reminds this reviewer, “talking culture can indeed be a ‘tricky business’ given the discourses of racism and colonialism infecting the project” (p.275).

To make matters worse, the very term “cultural defense” (p.325) is a contentious one as John L. Caughey, in Chapter Fourteen (321-334), explains: “If we take the term in its literal form it sounds like we mean that cultural evidence will automatically constitute a defense, that the introduction of cultural evidence will make the defendant either not guilty or less guilty than would otherwise be the case” (p.325).

Indeed, this is what MULTICULTURAL JURISPRUDENCE is about: admissibility of evidence versus a [*726] freestanding defense. Therein, Marie-Claire Foblets and Alison Dundes Renteln offer a monograph containing “provocative essays” (p.3) demonstrating the extensive use of the culture defense in Australia, Belgium, Canada, England, Germany, the Netherlands, Singapore, Spain, South Africa and the United States.

The volume is based on papers presented at the Oñati International Institute for the Sociology of Law. The 2005 colloquium, ‘Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense,’ was originally convened to shift the discussion away from North America to other countries which had witnessed the rise of culture defenses. The events in Western Europe and Asia during the intervening four years support such a bold editorial move and possibly cause for another colloquium and even a further title in the Oñati International Series in Law and Society.

The book is divided into four sections, containing fourteen chapters (co)written by respected scholars from a range of disciplines. The first three essays examine definitional questions, theoretical issues and uses and abuses of the culture defense (“Theoretical Perspectives”: 5-82).

The distinction between justification and excuse when it comes to admissibility of culture as an extenuating factor is a problematic one, but one that Gordon R. Woodman, Kumaralingam Amirthalingam, and Renteln answer with consummate ease. Although their primary objective is to offer conceptual clarifications of the parameters of the strategy of referring to litigants’ cultural background in the courtroom, questions are asked of the courts’ familiarity with ethnography and sufficiency of expertise to handle cases involving cultural issues.

This takes us nicely into our second section which is comprised of country studies that discuss various contexts in which culture defense is raised (“Overview of Countries”: 83-195). Barbara Truffin’s and César Arjona’s chapter (85-120) illustrates the problematic relationship between cultural identity and the penal process in post-Franco Spain. Their methodological study identifies a deficit in terms of “The courts hav[ing] no power or expertise to verify if they are indeed facing ‘an ancestral rule’ or not” (p.119). Simon Bronitt similarly proposes “cross-cultural training for judges and lawyers” (p.126) in Chapter Five (121-144). Though Cher Weixia Chen, in Chapter Ten (247-259), warns against over-reliance on the so-called expert witness who is “vulnerable to abuse” (p.255). While in Chapter Six (145-173), Mirjam Siesling and Jeroen Ten Voorde, raise the problem of the cultural expert being welcomed by a judge – inhibited by the doctrine of interpretative restraint – as a “deus ex machina,” especially in cases concerning honor-related violence (p.153).

This leads us perfectly to Part III (“Specific Issues”: 197-284) and essays concentrating on particular groups. Considerations of space render it impossible to subject all four specific issues (Romani culture, honor killings, ‘Loss of Face’, and gender) to a detailed review. Although conscious not to portray cultural offences as solely targeting women, this reviewer proposes to concentrate on the second of the four [*727] chapters, that of “Honor Killings and the Cultural Defense in Germany” (pp.229-246) (and a contributor who highlights non-Muslim ‘honor’ killings too).

Clearly, the concept of honor must continue to play a large role in jurisprudence, especially in cases of insult, libel and defamation. It must not, however, protect ‘family honor.’ And yet several defendants in Germany who killed in the name of ‘honor’ have been successful in presenting a culture defense, seeing their murder charge downgraded to manslaughter. But as Ann Cryer, British Member of Parliament, said at the ‘Honour Related Violence within a Global Perspective: Mitigation and Prevention in Europe’ conference in Stockholm (7-8 October, 2004):

We should, of course, understand the circumstances of the crime, but we must not allow those circumstances to receive star billing in any discussion or investigation. That place must be reserved for the crime itself and the victim. Murder is murder and legislation – rather than being sensitive – needs to be clear beyond doubt. (Proceedings 2004, p.20).

Maneesha Deckha, author of Chapter Eleven (261-284), is similarly uncompromising here. “The message is clear: culture should not be a euphemism for violence” (p.274). It is interesting to note that Johann Hari, columnist for the Independent, raised the issue of German relativism when One Law for All campaign against Sharia law in Britain was launched in 2008. The campaign calls for the Arbitration Act 1996 to be amended so that all religious tribunals are banned from operating within and outside of the legal system.

This guides us adequately into the fourth area (“Legal Actors”: 285-334) and, more importantly, to Chapter Thirteen (301-319) where Erik Claes and Jogchum Vrielink discuss the struggle between two cultural trends: cultural relativism and the culture of control.

As well as inspiring practitioners to consider the possibility of raising culture defenses in appropriate cases (not to mention encouraging anthropologists to participate and engage in culture defense trials), the book leads the way in this ever-burgeoning field of socio-legal research with a view to both extending its scope and deepening its thrust. All contributors, in conclusion, offer a brief assessment with recommendations/proposals. Brenda Carina Oude Breuil’s, in Chapter Twelve (287-299), is a novel one – considering what Deckha calls the “discursive harm that results through conventional conceptualisations of culture” (p.266) – and the suggestion “to invest more energy in informing children and parents about the criminal law system, rather than focusing on adapting this system to the cultural values of ethnic majority groups” (p.299).

Notwithstanding the interchanging of spellings and linguistic errors throughout or the minor publishing errors after the midway point (pp.183, 194, 227, 247, 245, 319), Foblets and Renteln deserve an accolade for redressing our ignorance regarding to what extent, if at all, cultural imperatives should mitigate punishment in today’s legally pluralistic society. But most nobly of all, they endeavor to end the clash between law and culture. [*728]

REFERENCES:
Proceedings. 2004. European Conference on Honour Related Violence within a Global Perspective: Mitigation and Prevention in Europe. Stockholm, October 2004. http://www.qweb.kvinnoforum.se/papers/KonferensrapporHRV05.pdf