Law and Politics Book Review

SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT

2010-04-19T12:23:00.001-04:00

by Jeff Shesol. New York: W.W. Norton Press, 2009. 656pp. Hardcover. $27.95. ISBN: 9780393064742.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.

pp.136-140

In his State of the Union address on January 27th, 2010, President Barack Obama looked squarely at the six justices of the Supreme Court seated before him and declared, “With due deference to separation of powers, last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” Immediately Democrats from both the House and Senate rose to their feet in enthusiastic applause. As the camera focused in on the stone-faced justices, Samuel Alito is seen mouthing the words “not true” as the three top Senate Democrats, Harry Reid, Richard Durbin, and Chuck Schumer, hovered behind him with wide smiles on their faces. That outburst prompted Chief Justice John Roberts to respond a month and a half later: “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling.” Roberts concluded: “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”

Thus the latest flare up in a long history of skirmishes between presidents, members of Congress, and justices of the Supreme Court – a history that goes back at least to Andrew Jackson’s retort to the 1832 Supreme Court decision WORCESTER v. GEORGIA (31 U.S. 515 1832): “John Marshall has made his decision, now let him enforce it!” Such conflicts are at the core of our constitutional system of separation of powers and checks and balances, and serve to crystallize James Madison’s famous declaration in Federalist #51 that “ambition must be made to counteract ambition.” Indeed, we would be shocked if the three national institutions of American government didn’t butt heads regularly, or even bitterly at times.

Perhaps fittingly, the 2010 State of the Union controversy coincides with the publication of Jeff Shesol’s SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT. Shesol, a former speechwriter in the Clinton administration and author of MUTUAL CONTEMPT, has provided us with the definitive work to date on certainly the most notorious conflict between a president and the Supreme Court – FDR’s failed effort to “pack” the Court in the spring of 1937. While the story of Roosevelt’s court packing plan is familiar to constitutional scholars and historians, it is most likely not widely known among the lay public. Which makes this book all the more important: Shesol has taken a buried piece of [*137] American history on a highly esoteric topic and transformed it into an easy-to-read tale that unfolds like a thrilling novel.

During Roosevelt’s first term, the Supreme Court struck down key parts of his New Deal legislation, including the National Industrial Recovery Act in SCHECHTER POULTRY CORP. v. UNITED STATES (295 U.S. 495 1935), and the Agricultural Adjustment Act in U.S. v. BUTLER (297 U.S. 1 1936). In the summer of 1936, the Court also announced in MOREHEAD v. NEW YORK STATE ex rel. TIPALDO (298 U.S. 587 1936) that New York state’s minimum wage laws were unconstitutional. In each of these cases, the Court relied on various precedents – most stemming from the “liberty of contract” doctrine set forth in LOCHNER v. NEW YORK (198 U.S. 45 1905) – to argue that state and national governments had exceeded their authority to regulate commerce. On the eve of his bid for reelection in 1936, Roosevelt feared that most of the rest of the New Deal (the Wagner Act and the Social Security Act foremost) was now in jeopardy.

Nonetheless, FDR won in a landslide that fall and brought with him an even larger Democratic majority. After a much needed vacation, Roosevelt then plotted with his staff and his allies in Congress to do something about the Nine Old Men. Shesol meticulously recounts the genesis and development of each of the proposed schemes to curb judicial power. Most surprising, perhaps, were the efforts at constructing a constitutional amendment aimed at restricting judicial review of Congress – an act that would essentially eviscerate the powers of the judiciary. By February 1937, Roosevelt had decided on a plan: he would ask for legislation that sought to expand the Court by one member for every justice over the age of 70, for a total of six new justices. Roosevelt argued that the Court was overworked, and fresh blood would help to clear the docket of pending cases. Of course, no one really believed him – not Roosevelt’s allies, not his opponents, and not the general public. In fact, Roosevelt himself never consistently stuck to his own argument; within weeks of his announcement, Roosevelt was advocating for the court packing plan on purely ideological grounds.

In fascinating detail, Shesol explores the major players in this 136-day battle between the executive, legislative, and judicial branches, stopping to provide crucial biographical information on the principles in the conflict or offering insights from diaries and personal letters. By late spring, as support for the court packing plan waned in Roosevelt’s own party, we witness a proud and stubborn FDR unwilling to accept the inevitable, pushing his staff and allies in the Senate to the breaking point. The plan even causes a serious rupture between Roosevelt and his vice president, John Nance Garner, who in the midst of the furor leaves rather abruptly for a fishing vacation in his home state of Texas. He returns only upon learning of the sudden death of Senate Majority Leader Joe Robinson who had led the fight for FDR’s plan. Garner returns to Washington to take up the “cause” of the reform bill in the Senate – and ends up driving the last nail in its coffin.

Just as the wheels were coming off of Roosevelt’s legislation in Congress, a [*138] surprising thing occurs across the street in the chambers of the Supreme Court: a series of 5-4 decisions are announced that uphold crucial elements of the New Deal. On March 29th, 1937, the Court held in WEST COAST HOTEL v. PARRISH (300 U.S. 379 1937) that Washington state’s minimum wage law for women was constitutional, undoing the TIPALDO decision handed down a year earlier and overturning the Court’s landmark ADKINS v. CHILDREN’S HOSPITAL (261 U.S. 525 1923). Several more victories for Roosevelt follow, and by the time the 1936-1937 term ends, the Supreme Court had upheld New Deal legislation no fewer than sixteen times without overturning one law. At the center of the maelstrom stood Justice Owen Roberts, who provided the crucial fifth vote in many of these cases and appeared to have reversed himself once Roosevelt threatened to pack the court. Yet, as Shesol recounts, Roberts had voted to uphold the minimum wage law in PARRISH before Roosevelt made his scheme public. Contrary to opinion at the time, this was not the “switch in time that saved the nine.” Further, Roberts himself argued years after the controversy that his decision in PARRISH was constitutionally consistent with his vote in TIPALDO. In his own mind he had not in fact reversed himself for political or other reasons.

Though Shesol writes with a lay audience in mind, SUPREME POWER nonetheless raises many constitutional, legal, and theoretical questions that professors of law and political scientists should find useful in their classes. The first centers on the difficult question of how much power the Supreme Court really does have in our constitutional system. In Federalist 78, Alexander Hamilton argued that the courts were “the least dangerous branch” simply because they had none of the formidable powers granted to the executive (the power of the “sword”) or legislature (power of the “purse”). Hamilton, perhaps wryly, contended there that courts have nothing more than the power of “judgment.” Courts cannot enforce laws and justices should not “legislate” from the bench. In his majority opinion in U.S. v. BUTLER, Justice Roberts echoed this sentiment emphatically while striking down the Agricultural Adjustment Act: “All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy” (p.183). And yet, the power of judgment is as potent a power as any granted in the Constitution. On several occasions, Shesol quotes Chief Justice Hughes when he was governor of New York: “We are under a Constitution, but the Constitution is what the judges say it is” (p.171). The Constitution says what it says, but the Court tells us what it means. We abide whether we like the decision or not.

But how does the Court decide what the Constitution means? Especially when urgent action is required amid a national crisis? Should the Constitution’s meaning change over time? SUPREME POWER offers a fascinating look into the problem of judicial interpretation, and thereby provides us with a second set of questions worth exploring. Behind Roosevelt’s plan, however ill-conceived and poorly executed, was the fundamental belief that the Supreme [*139] Court’s decisions were a “barrier to social progress” (p.404). According to FDR, the Court held fast to a constitutional interpretation ill-equipped to meet the demands of twentieth-century, industrialized America. Time and again Shesol points to comments by Roosevelt or his Attorney General Homer Cummings which indicate that the Court’s blindness to a muscular interpretation of the government’s commerce powers was a result of the inability to comprehend the very concept of the “living Constitution.” So what should guide justices in their deliberation? Original intent? Precedent? Here we return once again to Justice Roberts, whom Shesol quotes at the very end of the book:

It is, in the end, impossible to know what sways a judge. Even the judges themselves do not always know whether their decisions are driven, in the main, by doctrine or emotion, by the dictates of law or politics or conscience. “Who knows what causes a judge to decide as he does?” [Justice] Roberts once shrugged, reflecting on PARRISH. “Maybe,” he joked, “the breakfast he had has something to do with it.” (p.516)

A third set of questions which runs through SUPREME POWER fasten on the problem of checks and balances. No matter how the justices of the Supreme Court decide what they decide, they ultimately tell the other branches what is constitutional and what is not. Faced with that reality, what powers do presidents and Congresses have to check judicial power once a decision has been handed down? Especially if it derails their political agenda? The answer from SUPREME POWER is: relatively few. Roosevelt and his staff explored just about every one of them – from a series of proposed constitutional amendments restricting the powers of judicial review, to several legislative proposals that would either mandate retirement or alter the ideological balance of the Court by increasing the number of justices. The fact that none of these proved successful is as much a testament to the limits the “political branches” have on judicial power as it is to the clumsy way Roosevelt’s court packing plan made its way over the public airwaves and through Congress.

And yet in the end, Roosevelt got what he wanted: the Hughes Court began to rule in his favor after he turned up the heat. By the end of the Court’s 1937 term, judicial interpretation of the interstate commerce clause had been completely transformed. This fact points to a last set of questions at the core of this excellent book: in the end, SUPREME POWER is a meditation on the Supreme Court’s role in the push and pull of the political process. If Hamilton argued that the courts are the least dangerous branch, he and James Madison also made the case that the courts should be the least “political branch.” But the least political branch does not mean that the Supreme Court is wholly divorced from politics. Roosevelt’s court packing plan drew the Court into the political arena in a way that few events in constitutional history have. After all, here was a popular president, coming off a landslide victory in his reelection bid who knew he had a mandate handed to him through the legitimate mechanisms of democracy. The “unelected” Supreme Court stymied his efforts to give the people what they voted for. Roosevelt had no other choice, to his mind at least, but to simply turn up the political pressure on the members of [*140] the Court. Shesol’s account makes it clear that not one member of the Court greeted Roosevelt’s actions favorably – not even Justices Brandeis, Stone, and Cardozo, the liberal block of the Court who consistently voted to uphold New Deal legislation. Even Roosevelt’s dear friend Felix Frankfurter, who would join the Court several years after the court-packing plan failed, consistently disapproved of Roosevelt’s actions because he felt FDR had dragged the Court through the mud with his plan.

Yet this does not mean that the members of the Court are “apolitical.” In fact, one of the most fascinating elements of Shesol’s account lies in the particular actions of Chief justice Hughes throughout the crisis. As Shesol points out, Hughes had been working behind the scenes nearly since the moment Roosevelt announced his plan to counter the narrative that the Court had fallen behind on its work. On March 21st, as the Senate Judiciary Committee began hearing testimony on the plan, Hughes sent a letter to Roosevelt’s foe, Senator Burt Wheeler, who surprised everyone in the hearing room and beyond by reading it aloud before the committee. Point by point, Hughes refuted Roosevelt’s assertions about the Court’s incapacity. It was a political masterstroke, and it signaled the beginning of the end of the court packing plan.

This brings us back to Chief Justice John Roberts’ comment about whether justices of the Supreme Court should be present at the “political pep rally,” better known as the State of the Union address. If Chief Justice Hughes were summoned to provide Chief Justice Roberts with some advice, he would probably say: don’t have such a thin skin, John. At least Obama is not threatening to pack your court. More importantly, we justices of the Supreme Court don’t make decisions in a vacuum. Yes, we judges get to decide what the Constitution says. The power of judgment will always have political consequences. If I was able to handle FDR, I’m sure you will be just fine.

REFERENCES:
Alexander Hamilton, John Jay, James Madison. 1961. THE FEDERALIST PAPERS, ed. Clinton Rossiter. New York: New American Library.

CASE REFERENCES:
ADKINS v. CHILDREN’S HOSPITAL, 261 U.S. 525 (1923).
LOCHNER v. NEW YORK (198 U.S. 45 1905).
MOREHEAD v. NEW YORK STATE ex rel. TIPALDO (298 U.S. 587 1936).
SCHECHTER POULTRY CORP. v. UNITED STATES (295 U.S. 495 1935).
U.S. v. BUTLER (297 U.S. 1 1936).
WEST COAST HOTEL v. PARRISH (300 U.S. 379 1937).
WORCESTER v. GEORGIA (31 U.S. 515 1832).

HUMAN RIGHTS AND THEIR LIMITS

2010-04-19T12:22:00.002-04:00

by Wiktor Osiatyński. Cambridge and New York: Cambridge University Press, 2009. 262pp. Hardback. £60.00/$95.00. ISBN: 9780521110273. Paper. £21.99/$32.09. ISBN: 9780521125239. eBook format. $26.00. ISBN: 9780511629891.

Reviewed by Lawrence M. Friedman, Law School, Stanford University. Email: lmf [at] law.stanford.edu.

pp.133-135

HUMAN RIGHTS AND THEIR LIMITS is a concise survey of the way the concept of human rights has developed over the years: what it means; what it has come to mean; what is good about the ruling concepts of human rights; and what their limitations are. It is an intelligent overview of a subject that has become a field of its own. There are literally shelves and shelves of books on the subject, and more and more of them pour out of the presses each year.

Wiktor Osiatyński is a professor at the Central European University in Budapest. He is described as a “former director of the Chicago Law School’s Center for the Study of Constitutionalism in Eastern Europe,” and as a sometime adviser to the Polish parliament. In his book, he covers many of the major issues that scholars of human rights take up – the history of the movement, for example. He also examines the rather sterile debate over whether human rights are “universal” (whatever that might mean). He tackles the much discussed (and also rather sterile) issue of whether the human rights movement, in its present form, is “Western” and unsuited to those societies that are not “Western,” and perhaps even that it is imperialism in a thin disguise. He goes into the question of whether rights-consciousness is always a good thing, or whether it can be, at times, counter-productive.

He covers all these subjects well, intelligently, and with moderation. The book begins with a short history of the concept of human rights, tracing its development from the 18th century to the contemporary world. “Rights” originally belonged basically to adult white males. Toward others, there was at most “humanitarianism” and “paternalism” (p.63). The modern forms are, essentially, products of the last few generations. Later chapters of the book discuss the topics mentioned above, and many others: the relationship of rights to democracy, the distinction between rights and needs, the place of so-called “social rights” (health care, housing, education, jobs) in constitutional law and in constitutional practice; and the vexed question of cultural rights and the possible conflict between these rights and other, “universal” human rights.

This is a valuable and well-written book, and it is in many ways a useful addition to what I have already described as an enormous body of scholarship. And yet . . . . somehow, something is lacking. The problem with the literature in general is not quantity, but quality. Or at least quality in one particular sense. The literature, vast as it is, is surprisingly narrow. Most of the books and articles [*134] are written by philosophers, political theorists, and lawyers. This is not bad in itself; moreover, most of them are passionate about human rights, which is also not bad in itself. Undeniably, one can learn a lot by immersing oneself in the oceans of words that these scholars have written. One can learn a lot about the textual history of all those declarations, treaties, manifestoes, and covenants that have sprouted like weeds since the second World War. The literature also tells us about great thinkers of the past and the present, and what they have had to say about the rights of humankind. There are debates on various controversial subjects, as I have mentioned. But what is missing, on the whole, or in short supply, is what one might call the sociological dimension. The human rights movement – the social movement that has inspired this enormous literature – is a massive social fact. But where does it come from? Why has it been so successful (in places)? Where is it going, and why? Why, in this period, unlike all others, do we have a feminist movement, a gay rights movement, a movement of indigenous peoples, a revolt of the handicapped, the aged, prisoners, students, speakers of small languages, and so on?

The cardinal sin of reviewers is to ask for a different book than the one the author has written. I will avoid this in the sense of not finding fault with HUMAN RIGHTS AND THEIR LIMITS. But the sociological question nags at me. What is it about the late 20th century, and the early 21st, that has led so many millions of people, in developed countries, but elsewhere as well, to accept certain doctrines or dogmas, which then become central premises of the human rights movement? What led people to decide that all human beings are and should be equal in law and in society – women as well as men; people of all races and religions; minorities as well as majorities? To many of us, equality of this sort seems obvious, seems right, seems simply just and proper. But did any society in the past think this way? Does any traditional society, in the contemporary world, think this way? What, then, is it about modernity that pushes women – and men – in the direction of gender equality? What gives rise to the struggle – often more or less successful – for the other equalities that lie at the base of the human rights movement?

The answer is far from obvious. Of course it has something to do with democracy; but that simply pushes the question off one notch or so. Does it have something to do with markets, with capitalism? With new ways of communicating – with radio, TV, the movies, and now the web? With tourism, and travel? Or all of these? Perhaps some kind of personality change lies at the root of it; some mutation, as it were, brought about by social and technological change; the development of forms of individualism which were alien to other times and places. The various thinkers, commentators, and philosophers have played a role, no doubt in this transformation. They synthesize and give voice to norms and attitude that bubble up from the muddy chaos of modern societies; but they play only a secondary role, not the primary one that so much of the literature seems to ascribe to them. [*135]

Osiatyński had legal training, and training in social theory. He has concerned himself in his career mostly with social and political thought. His book fits squarely into the mainstream of work on human rights. It is an excellent piece of work. But perhaps there are some scholars out there who are willing to take the next step.

GOD AND THE FOUNDERS: MADISON, WASHINGTON, AND JEFFERSON

2010-04-19T12:20:00.001-04:00

by Vincent Phillip Muñoz. New York: Cambridge University Press. 252pp. Cloth. $85.00/£45.00. ISBN: 9780521515153. Paper. $24.99/£16.99. ISBN: 9780521735797. eBook format. $20.00. ISBN: 9780511590764.

Reviewed by Jacob M. Blosser, Department of History and Government, Texas Woman’s University. Email: JBlosser [at] mail.twu.edu.

pp.129-132

According to Vincent Phillip Muñoz’s compelling new book, the penultimate trinity of Founding Fathers – James Madison, George Washington, and Thomas Jefferson – possessed divergent opinions on religious freedom and the separation of church and state. Contrary to scholars and policy makers who, in their pursuit of original intent, have described the Founders’ rationale for the First Amendment in sanitized, univocal categories such as strict separation or non-preferentialism, Muñoz’s nuanced study shows that three fundamental Founders profoundly disagreed on these issues and, consequently, the quest for a uniform and univocal consensus of Founding opinion on the First Amendment is quixotic. Describing a modern judicial climate in which “the Founders have been invoked time and time again to guide church-state jurisprudence,” Muñoz argues that the repeated conflation of Founding opinion with consensus-bearing univocal and a-historical categories (i.e. all the Founders were strict separationists or, alternatively, non-preferentialists), has resulted in a Supreme Court which has “never gotten the Founders right” (p.206). In contrast, Muñoz’s book aims to “set the historical record straight” by illuminating the contradictory and multivalent First Amendment opinions of Madison, Washington, and Jefferson (p.208).

According to Muñoz, James Madison’s public and private statements on religious freedom and the role of religion in public life advocated governmental noncognizance of religion. Arguing that religious views were inalienable, and therefore excluded from the Lockean social compact, Madison’s position maintained that the government “must be blind to religion” (p.26). Neither preferring religion nor punishing it, Madison’s noncognizance put religious faith outside the realm of state activity.

In contrast, Muñoz maintains that George Washington’s public and private statements envisioned a far different relationship between personal faith and state action. Unlike Madison’s governmental noncognizance of religion, Washington believed in harnessing the moral authority of religion to inculcate civic virtue. Far from being blind to religion, Washington believed that the state could support religions that benefitted the public good and, conversely, limit faiths deemed to be subversive of national civic ends. Importantly, in granting the state a role in the religious life of the nation, Washington avoided denominational sectarianism by appealing to civic ecumenism – any religion that improved the morality of citizens and, thereby, improved the public good, could receive state sanction and support. [*130]

Washington’s use of the civic good as a litmus test for religions that received public support echoed Thomas Jefferson’s belief that the federal government should only assist rationally-based religious groups. Muñoz paints Jefferson as an anticlerical Deist whose wariness of clerical political authority and opposition to orthodox Christian belief included the hope that, within seventy-five years of the nation’s founding, most Americans would be ardent, “rational” Unitarians. Until the national Unitarian conversion, however, Jefferson advocated governmental antagonism toward traditional revealed religion and its clerics. The state, Jefferson argued, could use its authority to restrict orthodox religious belief and limit the political power and influence of clerics while at the same time supporting non-sectarian “rational” religious views. Importantly, Muñoz is quick to point out that Jefferson’s desire to limit religious orthodoxy and champion rational religion directly contradicted his sweeping statement in the Virginia Statute for Religious Freedom guaranteeing the unrestricted freedom of the human mind. Describing yet one more fundamental contradiction in the mind of an American paradox, Muñoz attributes this example of Jeffersonian conscious dissonance to the distance between his philosophical ideals and his lived political reality. Describing Jefferson’s ideas on church and state in terms consistent with his political efforts to reduce governmental support for traditional Christianity, yet inconsistent with his broader philosophical platitudes, Muñoz paints a portrait of Jefferson as fiercely antagonistic to traditional religious exercise.

In describing three views on church state relations that vary from state noncognizance of religion (Madison), to outright state support for civic-minded religion (Washington), to state antagonism for non-rational religion (Jefferson), Muñoz definitely demonstrates the intrinsic multivalency of Founding opinions on the issue. And yet, legal scholars may be deeply troubled by Muñoz’s lack of historical context in describing these three views. While Muñoz grounds his treatment of the Founders’ opinions on religious freedom and church-state relations in a careful, close-reading of several key texts including Jefferson’s Virginia Statue and Madison’s “Memorial and Remonstrance,” his analysis does not go beyond these texts. For example, with very few exceptions, Muñoz completely divorces his analysis from the much larger religious culture of eighteenth-century Virginia. Consequently, the reader is left to wonder why, in a book about the three Virginians’ views of church-state relations, the author says almost nothing about Virginia’s Anglican establishment or the latitudinarian theology it communicated. Ostensibly, both the established church’s polity and its ideology formed and nurtured these founders’ personal religious views and their diverse reactions to church-state relations. While Muñoz clearly shows that Madison, Washington, and Jefferson possessed divergent views, he does not show the cultural or historical justification for their opinions. The reader is left to wonder why Jefferson was so anticlerical. Why was Washington, raised in the same colony as Jefferson, so trusting of clergy to inculcate civic virtue? Why did Madison, also a Virginian, think [*131] governmental blindness to religion was best? The answers to these questions lie in a far greater analysis of Virginia’s religious establishment, its denominational pluralism, and the colony’s pervasive latitudinarian theology. Consequently, while Muñoz is correct to extrapolate differences between Madison, Washington, and Jefferson in key church-state issues, far greater historical context is needed in order to, as Muñoz suggests, “set the historical record straight” (p.208).

Having distilled, with limited cultural context, the differing views of Madison, Washington, and Jefferson, Muñoz applies these views to thirty-five post 1878 First Amendment Supreme Court cases. Examining cases involving both the establishment and free exercise clauses, Muñoz predicts how Madisonian noncognizance, Washingtonian support for civic-minded religion, and Jeffersonian anticlericalism and antagonism of non-rational orthodoxy would have decided cases ranging from prayer in public schools, to public displays of religious symbols, to direct and indirect state burdens upon religion. While highly entertaining, this imaginative exercise assumes that Madison, Washington, and Jefferson’s views on religion can be systematically converted into “legal doctrines” (p.119). Given the fact that these three Founders never expressed their views from the bench but, rather, described them in a variety of public and private papers conditioned and inspired by disparate cultural and historical moments and considering that their own actions often contradicted their written views, one wonders if such opinions bear the weight of judicial doctrines. Nevertheless, it is counter-factually entertaining to imagine Jefferson sitting alongside Justice Black in MCCOLLUM v. BOARD OF EDUCATION or Washington sitting on the Rehnquist Court in VAN ORDEN v. PERRY.

Muñoz’s goal in imagining the Founders’ decisions in contemporary First Amendment cases is, of course, to reiterate the very different state we would live in if only one Founder’s views were uniformly followed. Indeed, the great accomplishment of GOD AND THE FOUNDERS is its demonstration of the multivalency of Founding opinion on religion in public life and the eclectic nature of the Supreme Court’s interpretation of the Founders’ views. In the closing chapter, Muñoz shows that all recent Supreme Court justices have cast votes consistent with all three Founders’ views. Even Justice Scalia, who would have unanimously agreed with Washington in the fourteen First Amendment cases adjudicated during his tenure, would also have found himself, at times, in agreement with Madison and, more rarely, with Jefferson.

In showing the great diversity of Founding opinion among three Virginia founders, albeit with limited historical context, the reader is left wanting more. How did the views of other Founders, from other parts of the country, compare with these Virginians? What other multivalent possibilities for imagining religious liberty and church-state relations did other Founders leave us with? For raising these and other provocative questions, Muñoz’s well-written and clearly-argued text will undoubtedly be beneficial to undergraduate and graduate students of church-state relations. [*132]

CASE REFERENCES:
MCCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1948).
VAN ORDEN v. PERRY, 545 U.S. 677 (2005).

HOMELAND INSECURITY: THE ARAB AMERICAN AND MUSLIM AMERICAN EXPERIENCE AFTER 9/11

2010-04-19T12:00:00.001-04:00

by Louise A. Cainkar. New York: Russell Sage Foundation, 2009. 312pp. Cloth. $35.00. ISBN: 9780871540485.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.

pp.126-128

Louise Cainkar, an assistant professor of sociology at Marquette University, thanks the Arab and Muslim Americans at the outset of her study for “opening their doors and lives to me” (p.xii). The purpose of her work is to demonstrate how the post-9/11 period in the United States affected the aforementioned communities. Her research is based on two waves of surveys and interviews with Chicago-area residents who are Arab and Muslim, one done over the 2003-2004 period, and the other during 2008. The results indicate feelings of insecurity after the September 11, 2001 terrorist attacks. According to Cainkar, these views are the result of behavior towards Arab and Muslim persons together with preconceived stereotypes of members of those groups held by others.

In the initial chapter, Cainkar discusses the reasons for the study and the method of investigation. She lists the direct impact of the 9/11 attacks on the Arab and Muslim communities, which is covered in depth in subsequent chapters. The next chapter seeks to verify the ramifications of the post-9/11 policies undertaken by the U.S. government though open-ended interviews conducted in 2008. Through the stories of Samir and Nora Kulthum, Hala Darwish, Layla, Usama Alshaibi, and Walid, the author is able to give the reader a first-hand look at how Arab and Muslim persons coped with the derisive glances, name-calling, and even hate crimes which targeted them.

In Chapter 3, the author traces the history of immigration policies affecting those of Mideast descent. One interesting finding from this chapter is that approximately half of the 1.5 million persons of Arab ancestry emigrated to the United States over the last forty years, and that as many as one-third of the total mosques in the country were constructed since 1990. There is no question that American attitudes toward Arab and Muslim citizens changed as a result of the 1967 Arab-Israeli conflict and its aftermath. Later, the 1979 Iranian revolution, the 1990-1991 Gulf War, and the 1993 bombing of the parking garage at the World Trade Center in New York contributed to the social construction of these persons as “radicalized.” Cainkar makes the comparison between Arab and Muslim Americans in the post-9/11 environment and the manner by which Japanese Americans were regarded before and after the Pearl Harbor attack in December 1941.

Chapter 4 goes into detail about how policies put in place by the George W. Bush administration negatively affected thousands of Arab and Muslim Americans. For instance, more than 1200 persons belonging to these groups [*127] were rounded up and arrested following the 9/11 attacks, with one person held in custody for as long as five years. Further, mandatory interviews with representatives from the Federal Bureau of Investigation stigmatized large segments of the Arab and Muslim communities. Additionally, as a consequence of the 2002 Absconders Initiative by the Immigration and Naturalization Service, thousands of non-citizen aliens were deported. Perhaps the most extensive policy had to do with special registration, whereby almost 130,000 non-immigrant aliens had to be photographed, fingerprinted, and questioned; this policy led to the deportation of more than 13,000 persons. Enhanced border security, ethnic profiling, and the surveillance procedures adopted as a part of the original USA Patriot Act are also discussed.

Chapters 5 through 7 depict how those of Arab and Muslim background reacted to government policies and individual behavior toward them. Over half of the more than one hundred people sampled in the 2003-2004 surveys claimed that they experienced acts of discrimination. For Arab and Muslim families, this meant keeping children home from school for periods of time, avoiding certain locales such as shopping malls, and even altering friendships. Though organizations like the American-Arab Anti-Discrimination Committee kept tabs on violent acts taken against Arabs and Muslims, Chicago-area groups such as the Southwest Organizing Project helped in the effort to guard mosques from desecration. Among the segments of the Arab and Muslim communities most targeted for abuse in the post-9/11 milieu were women who chose to wear traditional head dress, referred to as hijab. Indeed Cainkar discovers that twice as many Arab and Muslim women as men felt unsafe in certain places following the terrorist attacks on the World Trade Center and the Pentagon.

The Conclusion presents some positive outcomes for Arab and Muslim Americans as a result of what they endured in the years following 2001. For one, many members of these groups emerged with a renewed sense of religious faith. Further, the government policies and disgraceful behavior toward them demonstrated the value of organizing to retain or recoup rights. Lastly, an augmented awareness of anti-Arab and anti-Muslim sentiments became necessary to prevent the spread of hate messages and actions. The author recommends that, in the same manner as “African Americans, Native Americans, Latinos, Jews, Catholics, women, and other groups have challenged legal and customary barriers to social, economic, and political equality in the United States, so must Arab and Muslim Americans” (p.279).

Cainkar’s book may be compared with several others written on related topics over the past four years. In their 2006 coauthored work, Yvonne Haddad, Jane Smith, and Kathleen Moore (2006) portray Muslim women at home, work, and play in America. Jocelyne Cesari (2006; 2009) offers cross-national comparisons of the treatment of Arab and Muslims in democratic countries. Two books released in 2007 and 2009, respectively, offer case studies of the latter communities from the individual and group perspectives. Perhaps the study that comes closest to Cainkar’s in content is that by Geneive Abdo (2007). [*128] At 256 pages, this study is significantly shorter than Cainkar’s (325pp); the Abdo work focuses on persons of Arab ancestry from four distinct nations of origin, as opposed to the thirteen nations of origin encompassed in the persons surveyed in the present text.

Though a groundbreaking study due to its inclusiveness, the Cainkar book does have a few shortcomings. For instance, there is an inaccurate date identifying the fall of the Soviet Union (1990 as opposed to the end of 1991). Next, the placement of the chapter with the more recent interviews at the front of the text (Chapter 2) rather than after reviewing results of the 2003-2004 surveys is confusing. On the latter point, the author could have furnished the reader with more extensive findings from the aforementioned surveys in an appendix or presented data from these surveys in a more balanced fashion.

Since Cainkar’s book was released late last year, there have been a few recent developments of pertinence to her study. For one, President Barack Obama has made several efforts to improve ties with the Muslim world, the latest of which is naming an American envoy to the Organization of the Islamic Conference. Second, in advance of the 2010 census, Arab leaders in California have launched a movement to have Arab citizens write in their true ancestry rather than checking “white.” These seemingly divergent actions are actually consistent with two points made by Cainkar. On the one hand, greater tolerance by Americans toward the Arab and Muslim communities globally will help integration of these groups within the United States. On the other hand, the effort by the latter groups to assert their Americanness should not lead to a disappearance of ethnic or religious heritage.

REFERENCES:
Abdo, Geneive. 2007. MECCA AND MAIN STREET: MUSLIM LIFE IN AMERICA AFTER 9/11. New York: Oxford University Press.

Barrett, Paul M. 2007. AMERICAN ISLAM: THE STRUGGLE FOR THE SOUL OF A RELIGION. New York: Picador.

Cesari, Joselyne, editor. 2009. MUSLIMS IN THE WEST AFTER 9/11. RELIGION, POLITICS, AND LAW. New York: Routledge.

Cesari, Joselyne. 2006. WHEN ISLAM AND DEMOCRACY MEET: MUSLIMS IN EUROPE AND THE UNITED STATES. New York: Palgrave Macmillan.

Haddad, Yvonne, Jane Smith, and Kathleen Moore. 2006. MUSLIM WOMEN IN AMERICA: THE CHALLENGE OF ISLAMIC IDENTITY TODAY. New York: Oxford University Press.

Malek, Alia. 2009. A COUNTRY CALLED AMREEKA: ARAB ROOTS, AMERICAN STORIES. New York: Free Press.

THE REDISCOVERED SELF: INDIGENOUS IDENTITY AND CULTURAL JUSTICE

2010-04-06T01:05:00.001-04:00

by Ronald Niezen. Montreal: McGill-Queen’s University Press, 2009. 240pp. Paper. $24.95. ISBN: 9780773535305. Cloth $95.00. ISBN: 9780773535299.

Reviewed by Anthony J. Connolly, Law School, Australian National University. Email: tony.connolly [at] anu.edu.au.

pp.122-125

In the suite of essays comprising THE REDISCOVERED SELF, Ronald Niezen, professor of anthropology at Canada’s McGill University, offers an intriguing, multi-layered conception of the development of indigenous identity and the associated development of indigenous rights over the past two decades or so. On his account of things, the contemporary struggle for indigenous rights is a key component of a broader struggle to refine, communicate and defend the very identity of indigenous peoples as distinct social entities in the face of an increasingly cosmopolitan and homogenising world order. For Niezen, this broader struggle plays out most interestingly through its strategic engagement with the discourse and practice of national and international law, through its use of cutting edge modes of communications technology, and through its transnational collaborative orientation. The indigenous peoples of the world are forging a new conception of themselves – they are rediscovering themselves, in Niezen’s terms – and are achieving significant political success through their creative use of contemporary discourses, technologies and institutions.

Niezen’s book gives us a comprehensive, engaging and accessible view of this complex pattern of activity which in this and his earlier (also excellent) book, THE ORIGINS OF INDIGENISM: HUMAN RIGHTS AND THE POLITICS OF IDENTITY (2003), he terms indigenism. Niezen’s indigenism is a worldwide political and cultural movement of relatively recent origin which has relied upon and which continues to rely upon the discourse and practice of post-war international human rights law in fashioning its concepts, ideology and political strategies. In this book, Niezen takes us beyond the largely legal and political orientation of his earlier study of indigenism by exploring, in addition, its technological and mass cultural dimensions.

The project of indigenism is not, of course, without its risks. The maintenance of a collective identity in the 21st century is not a given for indigenous peoples (or anyone else for that matter), but rather an ongoing and highly contingent struggle, to be won or lost. A significant part of the value of this book lies in Niezen’s subtle sense of the myriad tensions and contradictions which inhabit this enterprise of a traditionally minded culture utilising the artifacts of modernity in pursuit of itself. One of these tensions lies in the collaborative forging of a globalised indigenous identity by geographically circumscribed indigenous groups in order to further their own local cultural and political ends. In order to become more fully who they specifically and uniquely are – in order to gain local autonomy, in the full [*123] sense of the word – indigenous peoples are reinventing themselves as members of a more general – generic, even – indigenous collective at the international level. Indigenous groups have gained and continue to gain power to better protect their own local cultural and political interests by being subsumed to some extent in the worldwide indigenous rights movement. But this subsumption threatens to efface their uniqueness within the global indigenous community of peoples and to render them something other than what they were (and are).

Whether the alteration of local identity in response to the development of an international identity and the pursuit of political empowerment is a good thing or not, or inevitable or not, are questions Niezen does not directly address – and it is not clear that he should or even could credibly do so. This is because on the terrain of his thinking about these issues the very ideas of local and global, specific and general, and, more importantly, culture and its boundaries are put under enormous pressure. Indeed, it is, I take it, one of Niezen’s key aims in writing this book to destabilise readers’ ordinary ‘common sense’ conceptions of how things are in the sphere of indigenous rights and culture. This is especially evident in Chapter 4 with its incisive analysis of ‘common sense’ judicial takes on the concepts of culture and tradition in the Canadian aboriginal rights jurisprudence. For Niezen, things are just not as simple or as clear cut here as they might seem. It is a function of our thinking about the social world that our concepts are contingent, contestable and unstable. We need to be more pragmatic and politically aware in how we construct and utilise them.

In any event, in forging a global identity, indigenous peoples have recognised that if they are to be effective, they need to engage strategically with and utilise a range of non-indigenous phenomena including law, technology, the media, and popular culture. This generates, says Niezen, a second significant risk in the project of indigenous rediscovery and self-determination – that of being appropriated by or assimilated into the very cultural and political matrix from which indigenous peoples seek to distinguish and liberate themselves. As he says (at p.8) “the importance of one’s distinctiveness as the central source of one’s worthiness of respect does not sit comfortably with the idea that one’s expressions of difference are arrived at through accommodation of the ideas and expectations of (often dominant) others.” Engagement risks co-option. This is not a new idea, but Niezen gives it a fresh spin, spending much of the book mapping the challenges posed here, the proposed solutions formulated by indigenous peoples in response to these challenges, and the successes and failures of several of these proposals – particularly within the Canadian context of his own personal and professional acquaintance. For example, Chapters 2 and 4 of the book convey a strong sense of the hazards faced by indigenous peoples in engaging with the discourses, practices and institutions of non-indigenous law, both national and international. Chapters 3 and 5, on the other hand, focus on the complexities of indigenous engagement with contemporary information and communications technologies and their audiences. In all cases, there are opportunities to achieve important things which are at the same time great hazards to be navigated through carefully. [*124]

Much of the tension involved in the rediscovery of the indigenous self arises out of what Niezen terms ‘the politics of indignation’ (no pun intended, I take it). This ‘politics’ comprises a complex set of psychological, sociological and political strategies of cultural representation on the part of indigenous peoples, designed to engage and activate compassion and political action amongst the largely non-indigenous and middle-class public of mainly Western nation states. Drawing on the notion of the politics of shame which he utilised to good effect in THE ORIGINS OF INDIGENISM, Niezen points out how, in order to generate the requisite indignation of the general public about the state of indigenous affairs and by virtue of that indignation gain public support in the cause of indigenous self-determination, indigenous peoples are called upon to distinguish themselves and their claims from the many other groups and claims pervading the media and cyberspace. The paradox inherent in this, though, is that by optimally communicating in this manner the depth and distinctiveness of their historical suffering and political need, indigenous peoples only perpetuate pre-existing stereotypes of themselves as politically and culturally ‘damaged’ – perhaps even beyond repair. Apart from actually misrepresenting the cultural and political vibrancy of those indigenous groups, this tactic acts to undermine in the eyes of the general public their claims for recognition as a viable culture capable (and worthy) of exercising rights of self-determination. The more they represent themselves as uniquely and profoundly traumatised by colonisation in order to distinguish themselves and evoke concern from a non-indigenous public, the more they rationalise the denial of the very rights they are seeking. A dilemma, then, representative of the many Niezen identifies over the course of the book.

Though the ‘self’ in question in the book’s title refers predominantly to the collective self-identity of indigenous groups around the world who over the course of centuries have suffered the attempted erasure of their identity as distinct and distinctive peoples through the mechanisms of colonialism, it also invokes the individual self identities of the members of those groups who have each inherited the psychical consequences of that large scale process. Part of Niezen’s skill as a theorist and communicator of ideas is his capacity to implicate the personal in his discussion of the social. One of the most exciting and refreshing aspects of this book for someone familiar with the indigenous rights literature arises out of his talent for transcending the traditional theoretical orientation of the indigenous rights literature towards the institutional by demonstrating the personal consequences of struggling for and realising these rights. This book at various points conveys a strong sense of what is at stake for real people in the striving for cultural justice. This is most evident in Chapter 6 in which he courageously and sensitively reflects upon the historical, political, economic and ideological factors associated with youth suicide clusters within certain indigenous communities in Canada. In conceiving of these clusters as (amongst other things) pathological symptoms of the non-recognition of indigenous rights, Niezen vividly links the personal and the local with broader legal and political issues at both the national and international levels. [*125]

Lawyers, philosophers and political theorists engaged in the field of indigenous rights will not have had as much contact, perhaps, with this aspect of contemporary indigenous life as anthropologists, sociologists, medics and psychologists working in the field. Niezen’s book provides an opening for the former into the concrete realities of the indigenous rights struggle and makes clear the complex links between what we might conceive of as a ‘higher level’ human rights practice in the legal and political spheres and the day to day lives of many indigenous people on the ground. Chapter 6 provides only one illustration of this book’s capacity to cross and to provide pathways for others to cross disciplinary boundaries. This is a book richly and confidently informed by law, political science, anthropology, psychology, sociology and media studies. Its inter-disciplinarity arises out of Niezen’s finely honed and beautifully articulated sense of the interrelatedness of the subject matters of the various disciplines – personal psyche, group culture, political struggle, legal practice, contemporary mass culture, and global communications. It will appeal to and be of great value to readers – whether they be theoretically or practically oriented – across a range of disciplines.

REFERENCES:
Niezen, Ronald. 2003. THE ORIGINS OF INDIGENISM: HUMAN RIGHTS AND THE POLITICS OF IDENTITY. Berkeley, CA: University of California Press.

ADMINISTRATIVE TRIBUNALS AND ADJUDICATION

2010-04-06T01:03:00.001-04:00

by Peter Cane. Oxford, UK, and Portland, OR: Hart Publishing, 2009. 312pp. Cloth. $110.00/£55.00. ISBN: 9781841130095.

Reviewed by Robert J. Hume, Department of Political Science, Fordham University. Email: rhume [at] fordham.edu.

pp.119-121

Peter Cane’s ADMINISTRATIVE TRIBUNALS AND ADJUDICATION works as a general introduction to the subject of administrative adjudication, even though Cane’s special interest is the Australian legal system, and really a single institution, the Australian Administrative Appeals Tribunal (AAT). Cane states that he originally intended to write a book about the AAT, but broadened his focus to include administrative tribunals in the United States and the United Kingdom. The result is a more general account, one that explores the common features of administrative tribunals across systems, as well as the variety of approaches to their design.

The subject of the book is administrative tribunals, which are quasi-judicial organizations, located outside of the judicial branch, which play a central role in the administration of government policies. It is difficult to make generalizations about administrative tribunals because their forms and functions are so variable. However, tribunals typically resemble courts in form and, in function, decide how to apply government policies to particular cases. Perhaps the most familiar areas in which administrative tribunals operate are in immigration and social security policy, but tribunals are in fact quite common features of bureaucracies.

The book is organized in the format of a legal handbook, with chapters devoted to the history of administrative adjudication, different models of adjudication, and variations in the forms, functions, and purposes of administrative tribunals. The book is not thesis-driven, nor does Cane formally test hypotheses regarding these tribunals. Instead, Cane presents a precise, richly detailed account of administrative organizations, grounded in an impressive survey of the administrative law literature and Cane’s own observations.. Such a detailed account is valuable because, as Cane notes, there is not much literature outside of Australia about what administrative tribunals do, even though these organizations process countless claims each year and contribute substantially to the development of public policy.

The main cases that Cane examines are the Australian, British, and American systems, with some brief attention also devoted to France. These comparisons are appropriate because the legal systems in the first three countries are so closely related, while the French system provides a point of contrast. The comparisons are also instructive because the four systems present distinctly different models of administrative adjudication. At one extreme is the British system, in which the jurisdictions of courts and tribunals essentially [*120] overlap. At the other end is France, in which decisions of administrative tribunals are not reviewable by courts. In between are the American and Australian systems, in which the functions of administrative tribunals are distinguished from those of courts but adjudications remain subject to judicial review.

The system receiving the most attention is the Australian system, specifically the Australian Administrative Appeals Tribunal (AAT). Cane is upfront that one of the purposes of his book is “to introduce to a wider audience in the common-law world some of the distinctive features of Australian public law and legal institutions” (p.viii). However, Cane is also persuasive that Australia belongs at the center of a book on administrative tribunals. More than other systems, Australian law clearly distinguishes the work of tribunals from that of courts, which puts the work of tribunals in sharper focus. The Australian system has also, in the AAT, created what is surely the premiere administrative tribunal, at least among the nations that Cane studies.

What sets the AAT apart from other tribunals is the fact that it is an administrative tribunal of general jurisdiction. Other systems typically permit administrative appeals only to specialist tribunals. In the United States, appeals tribunals tend to be embedded within the same organizations as the original decisionmakers. The Board of Immigration Appeals, for example, reviews the decisions of immigration judges but does not review administrative decisions on other matters, such as social security policy. Once an agency has conducted its internal review, in the United States a tribunal decision is then subject to judicial review, with judges typically determining whether the primary decisionmakers followed appropriate procedures when rendering their judgments, or if the administrators have interpreted their governing statutes permissibly. There is no higher level of administrative review in American law, although administrative policies are of course subject to correction by Congress.

The AAT is unique, then, in that it is an independent tribunal which conducts merits review of the decisions of other organizations. Unlike judicial review, which tends to focus on administrative procedures, the emphasis of merits review is on whether administrative decisions are “correct or preferable.” The AAT can engage in more extensive fact-finding than the original decision-maker and vary or substitute the original decision instead of remanding it. In this respect, the AAT functions similarly to appeals tribunals in American law, except that the AAT is a generalist institution that reviews the actions of multiple organizations, and that American tribunals typically afford more deference to the original decisionmakers.

Although Cane’s primary interest is in Australian tribunals, he gives equal weight to the British
and American systems, with particular attention devoted to how the three systems differ. The primary benefit of these comparisons is to put into sharper relief, and thereby clarify, the theoretical underpinnings of each system, as well as their costs and benefits. For example, Cane shows how each system is grounded in a different understanding of the separation of powers. The [*121] Australian system has the most formal separation: not only are courts strictly prohibited from performing non-judicial functions, but courts have also prohibited non-judicial bodies from performing judicial functions. The American system, in contrast, is more functional, with agencies performing a variety of quasi-legislative and quasi-judicial functions.

The least developed portions of the book are the sections on France. Cane acknowledges that these sections are brief but really they are too brief to offer much insight, amounting to no more than a handful of pages in the entire book. Since Cane presents France as a theoretically important counterweight to the Australian, British, and American system, it would be helpful to have at least a few more pages to clarify the theoretical framework he outlines.

This concern is minor, however, compared to how much else the book has to offer. Readers will come away impressed with the breadth of research that Cane has conducted on these tribunals and the care with which he details the differences among them. The sections on American and British law are very thorough and will serve as a useful introduction to readers who are unfamiliar with administrative tribunals in these countries. For more experienced readers, the sections on Australian law are likely to be the most valuable contributions of the volume.

Above all, Cane’s book serves as an important reminder of how much work administrative tribunals do and yet how little we understand about their behavior. Hopefully Cane’s work will encourage additional research into these organizations. Administrative tribunals process the claims of countless individuals each year, in substantively important areas of policy, yet so far these organizations have received far less scholarly attention than courts. We know very little, for example, about whether the personnel who staff administrative tribunals tend to behave more like judges or other administrators. Tribunals might resemble courts, but if administrative judges are loyal to their organizations and concerned primarily with the implementation of particular regulatory programs, one might fairly question whether the thousands of claimants who are processed by tribunals are receiving adequate due process, especially since most tribunal decisions receive, at best, cursory judicial review. Cane is not primarily concerned about addressing these types of normative questions, but his work does make clear that administrative tribunals are too important to be ignored.

EMERGENCY POLITICS: PARADOX, LAW, DEMOCRACY

2010-03-29T17:19:00.001-04:00

by Bonnie Honig. Princeton and Oxford: Princeton University Press, 2009. 218pp. Cloth. $26.95/£18.95. ISBN: 9780691142982. eBook format. $26.95. ISBN: 9781400830961.

Reviewed by William Corlett, Department of Politics, Bates College. Email: wcorlett [at] bates.edu.

pp.114-118

Addressing legal scholars, political theorists, local activists, and other stakeholders in democracies, this remarkable book explores the paradoxical rhythms of progressive change and resurgent conservatism. Building upon her earlier work, especially POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS (1993) and DEMOCRACY AND THE FOREIGNER (2001), in ways that encourage living hospitably among strangers, Honig’s “linked essays” (p.10) supplement our understanding of “universal human rights, the agency of law, [and] faith in progress” (p.140).

Readers just beginning to recognize Bonnie Honig as a “must-read” scholar at the crossroads of legal studies and political theory will find an opportunity to catch up. Readers already familiar with Honig’s work will find a consolidating position on “overliving” (p.10), living life beyond bare necessity, as she prepares to “take us back to the Greeks” (Derrida, 2000:73) in her forthcoming ANTIGONE, INTERRUPTED. And, because Honig always brings new people to the table, all readers will benefit from her notable addition here of Moses Mendelssohn and Franz Rosenzweig to a discussion of what living more democratically can require of progressive lawyers, administrators, social movements, and other political agents.

Honig asks how we live with ourselves and others after making the impossible decisions sometimes required by emergency situations, especially when survival is it stake. Drawing on her earlier work, Honig resists the starkness of choosing between the needs of life and the added benefit (overliving) made possible by a politics she associates with Arendt (p.10). Honig develops a “doubled meaning of survival,” inspired by Derrida’s “sur-vivre.” Derrida distinguishes merely extending life (“plus de vie”) from that “something else” (“plus que vie”) that can attend a struggle to survive (Derrida, 1985: 25).Derrida recalls this distinction when asked about the survival of his work, sometimes through translation, especially in the United States. In this interview, he points out that a translation of his work can do so much more than extend the life of his corpus because “all sorts of other texts” are required to produce a translation. The survival of his work amidst critics (plus de vie) in France, for example, differs from and yet relates to the survival of his work in translation (plus que vie), in the United States. Honig finds Derrida’s distinction useful for drawing together the life and death struggles that we associate with everyday practices, on one hand, and the “surprise extra” that comes from extraordinary political activity when we get it right, on the other. She wants us to keep everyday needs in the picture as [*115] we pursue our political goals in an “agonistic mutuality of mere and more life” (p.11).

Honig uses the “mere life- more life” distinction to announce the central paradox of the book: folks who are so often asked to be “we the people” (more life) are also always necessarily a “multitude,” a sometimes heap of disaggregated, if not unruly, interests (mere life). In other words, the just-getting-by (not dead yet) that we associate with everyday life is necessarily imbricated with the “surprise extra” required by politics in its best Arendtian sense. Honig approaches the “daily” recurrence of this paradox from a “tragic perspective” (p.16), so as to remind readers of “our noncentrality in the universe” (p.11). “Overliving” is never all about us; it always already carries a remainder.

Honig would have political and legal theorists live with this “paradox of politics” by addressing it critically, as opposed to devising ways of overcoming it. She distinguishes her agonistic approach from two well-known attempts to transform the unruly multitude into a deliberative citizenry. The “democratic legitimation” (p.16) approach, which would require citizens to develop a more general will out of their everyday particularistic wills, tempts Seyla Benhabib to seek a universal “moral standpoint,” according to Honig. And the “constitutional democracy” approach tempts Jürgen Habermas to seek a “thin constitutionalism,” one which views “rule of law” and “popular sovereignty” as “mutually constitutive, not antagonistic,” because they make each other possible in time (p.31). Honig writes against these “solutions” on the grounds that they mask the “impurity” (p.38) of even the most successful political experiments. Impurity, infelicity, and undecidability are always in play in Honig’s “emergency politics.” Building on the work of William Connolly, she seeks to acknowledge “the remainders of all forms of life by actively but not uncritically supporting the efforts of new identities to come into being without prior guarantees about the rightness or justice of their claims” (p.39). This leads her to analyze the “emergent rights claims” readers might associate with LGBT rights, the right to doctor assisted suicide, and animal rights.

The two chapters that work through these claims are framed by the work of Moses Mendelsohn’s critique of so-called Enlightenment “progress.” Resisting Kantian cosmopolitanism, Mendelsohn argues that advances are always attended by setbacks. By extending new life to Mendelsohn’s counter-Kantian text, Honig shows how everyday materials at hand – the excess mentioned above – often complicate the universal pretensions that she associates with even the more critical forms of deliberative democracy, such as Habermas’s. Framing this chapter entitled “Emergence” with Mendelsohn’s sobering reflections as “a Jew living in Berlin under Frederick the Great” (p.42), Honig urges a distinction between “right-as-symbol” (which offers formal inclusion) and “the actual behavior of a right” (p.55) (which often spells exclusion). But – and this is her point – just as inclusionary gestures, such as Kantian Enlightenment progress, exclude, so can those excluded insist upon inclusion. Honig props open the door to law and politics by reminding us [*116] that people claiming odd new rights that do not seem to fit are part of how rights actually operate. In her phrasing, “New events can occur in all their overliving novelty because the right-as-symbol is an ideological one . . . not an accurate representation of a right’s behavior (p.56). The companion chapter, “Decision,” illustrates this potentiality in a vivid discussion of emergency politics, including fascinating work with the politics of the legal technicality, which honors the discretionary acts of U.S. Assistant Secretary of Labor, Louis Freeland Post, when he released detainees locked up after the Palmer raids.

Moving to the world stage, “Orientation” turns to Jewish philosopher Franz Rosenzweig as a counter-text to Carl Schmitt on the “state of exception.” Schmitt’s approach to sovereignty sparks debates which normally include Hannah Arendt and Giorgio Agamben. But Honig’s emergency politics takes exception to the State as the ultimate “decider” of exceptions. Current debates are versed in the language of developing norms and viewing sovereignty as the right to make exceptions. But Honig, countering Schmitt’s take on the “miracle” of state sovereignty, offers the (counter) “miracle” presented by Franz Rosenzweig as displacing the norm-exception binary. When discussing the miracle of Bilaam’s “talking ass,” the animal who reveals human cruelty in NUMBERS 22:28, Honig cites Rosenzweig explaining that “All the days of the year...Bilaam’s talking ass may be a mere fairy tale, but not on the Sabbath,” and then explains more fully on her own the conditions under which this miracle might be said to occur:

that the hearer be in synagogue, on the Sabbath, on the specific Sabbath in which the portion of the Torah that is supposed to be read is the one containing the story of Bilaam’s ass, that the hearer be one of at least ten community members, in a community of similarly oriented hearers, that the reading not be theatrical, citational, or ironic, and so on and so forth. If these conditions are met, miracle may happen, which is to say, an event may be staged in which the human encounters the divine. If not, the hearer hears what can only strike him as . . . a fairy tale. (p.106)

Honig’s riff on the Rosenzweigian “miracle” resonates along and across cultural boundaries to include, for one of many examples, William Connolly’s suggestion of how a “militant electorate” might have interrupted everyday life at work and in the streets after BUSH v. GORE (p.108). Against “decisionist” approaches to state sovereignty, Honig issues this reminder: “the people when bound together can arrogate to themselves the rights of states” (p.111).

This possibility means, then, that for Honig there is no “doer behind the [sovereign] deed” (p.108), a move which makes “we the people” a potential force, but one which is at the same time entwined with the demands of everyday life. Honig gathers the threads of these carefully arranged chapters to distinguish her position on the international stage from Benhabib’s neo-Kantian cosmopolitanism. In this final chapter, entitled “Proximity,” she develops Rosenzweig’s duty of neighborly love in the direction of Derridian hospitality.

Derrida (2000:77) distinguishes, as an antinomy, unconditionally accepting unknown strangers and being more [*117] mindful of political boundaries (“conditional hospitality”). For Derrida, the law of unconditional hospitality reminds us that all borderlines mark the violence of their inscription, whereas the more familiar laws of conditional hospitality signify the necessity of drawing these inside-outside lines. His work addresses the “insoluble,” “non-dialectizable” and “antinomic” relation of these forms of hospitality.

Alerting us to the “heterogeneity” of these kinds of hospitality, Honig achieves a creative blend of Rosensweig and Derrida to build a case for “full hospitality to refugees and other nonimmigrant border crossers simply because they are here” (p.130). This requires taking a “both-and” approach to the (mere life) of democracy’s universal rights, agentic law, and faith in progress, on the one hand, and the (more life) infelicitous impurities of its counter-politics, on the other. Neither option – patrolling or ignoring borders – is obviously the right one, but under the right conditions keeping both options open carries the promise of a “miracle.”

And yet what happens to the “and” in the “both-and” relation of mere life and more life? Citing her award-winning earlier work, which also benefits from Derrida’s discussion of the “nuclear traits” of writing in general, Honig emphasizes what she calls “the force of rupture” (1993:95). But here we might ask if by privileging rupture on the horizon of meaning, Honig does not distract us from the violence of inscription which attends so much of our world-making, including neighborliness. Her work with “overliving” should be, I think, more attentive to all that exceeds the tension between mere life and more life. For example, when the hospitable Levite butchers his concubine in JUDGES 19:23-30 (cited by Derrida, 2000:154-55), does her violent death not haunt the “agonistic mutuality of mere life and more life” going on among the men? The double meaning of “survival,” designed to avoid stark contrast between mere life and more life, should not be exchanged too easily for the antinomic double meaning of hospitality. In other words, Honig’s work with Rosensweig and Derrida draws our attention to treating undocumented residents as citizens “because they are here.” But her inspired plea for hospitality must not allow us to forget possible violence on the part of citizens. Examples might include heteronormativity, imperialism, or overconsumption; in many cases, these forms of violence drive the newly arriving people from their homes in the first place.

Honig stands nevertheless in an enviable position to explicate the possibility of “miracles” and other “surprise extras” that can come from political life. Her wide reading, intellectual commitment to cross-cultural negotiation, and marked ability to explain her position clearly, combine to transform these “linked essays” (p.10) into a sustained argument for retrieving democracy. EMERGENCY POLITICS builds a compelling case for the twin motion of rupture and maintenance in any political experiment. Honig’s careful work enriches our understanding of democratic politics and asks us to remain vigilant after apparent political victories, while reflecting and perhaps acting upon what it means to look away when faced with impossible choices. [*118]

REFERENCES:
Derrida, Jacques 1985. “Deconstruction in America: An Interview with Jacques Derrida,” edited by James Creech, Peggy Kamuf, and Jane Todd, CRITICAL EXCHANGE 17 (Winter 1985). Pp. 1-33.

Derrida, Jacques. 2000. OF HOSPITALITY. Standford University Press.

Honig, Bonnie. 1993. POLITICAL THEORY AND THE DISPLACEMENT OF POLITCS. Cornell University Press.

Honig, Bonne. 2001. DEMOCRACY AND THE FOREIGNER Stanford University Press.

Honig, Bonnie. Forthcoming. ANTIGONE, INTERRUPTED.

CASE REFERENCES:
BUSH v. GORE 531 U.S. 98 (2000).

THE ROLE OF ATTORNEYS IN COURT ORDERED MEDIATIONS IN NORTH CAROLINA: THE PILOT PHASE

2010-03-29T17:17:00.001-04:00

by Elizabeth Ellen Gordon. Lewiston, New York: The Edwin Mellen Press, 2009. 164pp. Cloth. $99.95/£64.95. ISBN: 9780773448094.

Reviewed by Rosalie R. Young, Public Justice Department, State University of New York at Oswego, Emerita, email rosalie.young [at] oswego.edu.

pp.111-113

Elizabeth Ellen Gordon, associate professor in the Department of Political Science and International Affairs at Kennesaw State University in Georgia, documents attorney response to the North Carolina court-mandated mediated settlement conference (MSC) pilot program. Superior Court judges can require an MSC where the plaintiff has made a claim of at least $10,000 in a non-domestic civil case. Gordon describes the pilot program in 1992 and 1993 when she was part of the evaluation team at the Institute of Government at the University of North Carolina at Chapel Hill. The North Carolina General Assembly had requested that the Administrative Office of the Courts conduct an assessment of the MSC program. Although the program brought only marginal changes to legal practice and case disposition times, litigant response was favorable. In 1995, the program was expanded to all North Carolina superior courts.

The Institute of Government study drew data from five sources: surveys of litigants, certified mediators, and members of the North Carolina State Bar Association whose addresses were in the pilot areas;, observations of 31 mediated settlement conferences:, and court records. Summary data are available in an appendix and these are referred to throughout the book. Gordon also includes brief case descriptions which help to clarify her material.

Although the goal of this very readable volume is to clarify attorney reactions and roles, the author also provides clear descriptions of the goals, theory and philosophy of both ADR (Alternate Dispute Resolution) in general and mediation in particular. Especially valuable is her recognition of the contrast between the adversarial nature of legal practice, where attorneys are trained to advocate zealously for their clients, and the goals of mediation, which focuses focus on cooperation, the voluntariness of participants, and “win-win” conclusions.

While the MSC is closer to mediation than litigation, it differs in some ways. In traditional mediation, the clients are the primary participants and the focus is often on future relationships. In MSC cases, there may be no post-case relationships. In traditional mediation, litigant interaction and communication is a primary goal, but in the MSC lawyers control the process as they do in traditional legal negotiations. Despite lawyer control, the majority of litigants viewed mediation as positive and fair. Mediators were often viewed as willing listeners. Thus lawyers were able to maintain control while improving client [*112] satisfaction, two positive results for attorneys.

Gordon describes the development of the MSC program including a brief discussion of the influence of programs in Florida and Maine on North Carolina which closely followed the Florida model for civil mediation. The reader leaves the volume with a better understanding of both mediation and the mandated mediation settlement conference program in North Carolina.

North Carolina attorneys were involved with the program from its inception. A relatively small group of activist North Carolina Bar Association leaders and judges, widespread interest in mediation by the public and bar, and the success of the Florida mediation program were important factors in the development of the MSC. Supporters of the program met with many local bar associations. The Bar sought and received the endorsement of the North Carolina Supreme Court before taking the proposal to the North Carolina General Assembly. Objections from the Court would have derailed the plan. This process made the MSC appear to be noncontroversial and routine. Gordon explains the success using Herbert Jacob’s model of routine policy development (pp.34-41). Important factors were the lack of cost to the state and the proposal for a pilot program with an expiration date involving 13 of 100 counties. (As noted above, in 1995 the General Assembly approved the statewide implementation of MSC giving superior court judges the right to order mediation.

Gordon suggests that lawyer involvement was a political move which led to both ready acceptance of the MSC program and its minimal impact on the court system and the practice of law in North Carolina. While the stated goal was to increase case efficiency for both the courts and legal practitioners, surveys demonstrated only minimal change. Average case length decreased slightly, while settlement rates remained constant at about 90 percent. The basic legal pattern of a civil dispute remained, although the mediation might have altered the timing of settlement negotiations. The deadline of a mediation order or a conference date may promote settlement.

Gordon questions whether the MSC program was the result of the ADR movement, efforts at court reform, or privatization. She suggests that with MSC mediation has adapted to the legal environment without transforming the legal system. Lawyers remain in charge and neither voluntary participation by litigants nor the empowerment of disputants is a key goal. As is typical of lawyer-initiated court reform, the role of lawyers remains intact and change has been marginal. The MSC provides a new role for the lawyer, since at least initially all certified mediators were required to be experienced lawyers. She concludes that the MSC is not traditional privatization because it does not substitute a private action for a public activity. Instead the MSC is a mandated private dispute resolution device which at times replaces another private device, lawyer to lawyer negotiation. Gordon suggests that with the MSC the state sanctions private dispute resolution. Court mandates and determination of standards for mediator certification demonstrate public control, but disputant right to select mediators, the lack of judicial oversight of the fairness of the settlements, and disputant responsibility for paying mediators make court ordered [*113] mediation a “mandatory private enterprise” (p.109).

Despite MSC policies, during the research period settlement conferences were not always mandated for eligible cases by judges. Gordon noted that the mandate was often ignored by disputants or delayed beyond the specified dates. Some judges refrained from issuing a mediation order if either lawyer objected. Only rarely were penalties imposed for non-compliance by the judiciary.

The active involvement of lawyers in developing the program and setting standards has led to minimal change. Gordon notes, “lawyers set up the program and gave themselves starring roles” (p.100). However, she suggests that these modifications at the margins should not result in a dismissal of the mandated mediated settlement conference program. She argues that litigants are now more involved, more satisfied, and better educated about the civil justice system. Secondly, both mediation training and the activity of certified mediators have spread knowledge of traditional mediation activities to both attorneys and litigants, including the discussion of emotional concerns and the benefits of compromise. Finally, she suggests that mediation is generally seen as a positive concept by the public which frequently views the American justice system with skepticism.

In this brief volume, Gordon offers the reader an understanding of traditional mediation, mandatory mediation and the origins and initial implementation of the mandated mediated settlement conference in North Carolina. Her seven chapters concisely raise issues relating to the lawyer’s role and mediation values, the history of MSC, lawyers’ views of medication, the impact of mediation on attorney attitudes, the reasons why attorneys support MSC, the effect of mediation on the private practice of lawyers, and a concluding chapter on the impact of the mediated settlement conference.

Despite these positives, the volume has several serious limitations. First, most of the copious references date to the 1990s and earlier. At that time there was only limited research on court mandated mediation. As Gordon notes in her “Epilogue,” there has been considerable research since the implementation of the mandated MSC in North Carolina which could have profitably been added to her book. Secondly, the reader is left wondering what has happened in North Carolina since the mid 1990s. According to a brief summary on the North Carolina Court System website, disputants are now offered a “dispute resolution menu” from which to choose, including mediated settlement, neutral evaluation, arbitration and summary jury trial. Mediated settlement is the default if the parties do not make an active choice.

REFERENCE:
Jacob, Herbert. 1988. SILENT REVOLUTION. Chicago: University of Chicago Press.

MEDIATED SETTLEMENT CONFERENCE PROGRAM. http://www.nccourts.org/Courts/CRS/Councils/DRC/MSC/Default.asp

ZONES OF TWILIGHT: WARTIME PRESIDENTIAL POWERS AND FEDERAL COURT DECISION MAKING

2010-03-29T17:16:00.001-04:00

by Amanda DiPaolo. Lanham, Md.: Lexington Books-Rowman and Littlefield Publishers, Inc., 2009. 262pp. Cloth. $75.00/£44.95/€51.95. ISBN: 9780739138335. Paper. $29.95/£18.95/€21.95. ISBN: 9780739138342.

Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov.

pp.107-110

Amanda DiPaolo, assistant professor of political science at Middle Tennessee State University, explains how in her first year of doctoral work at Syracuse University her teaching assistant duties were changed radically from Western Traditional Political Philosophy to Constitutional Law, “a topic I knew nothing about.” I think it is often the case that someone tossed into a new area can ask fundamental questions that might escape more seasoned academics. For DiPaolo, the dispute over the exercise of war powers by President George W. Bush after 9/11 caused her to wonder how federal courts weighed the merits of broad presidential power over the need to protect individual liberties. Examining the initial decisions by the Supreme Court in HAMDI (2004) and HAMDAN (2006), she did not see what some might have expected: deference to the President. Instead, the Court deferred to Congress and determined whether President Bush’s actions had been legislatively authorized.

DiPaolo then wondered if Justice Robert Jackson in his concurrence in YOUNGSTOWN (1952) “had been right all along. Does the Court defer to the political branches when they work together, even if it means our protected rights will be limited?” What should the Court be doing: grounding its decisions on what the Constitution provides, including rights available to individuals, or look to see if the two elected branches are on the same page? If the latter, this type judicial analysis should be of concern. The President and Congress could act in ways flatly unconstitutional, as when they enact sedition laws that punish individuals who criticize the three branches. Should courts routinely acquiesce to these joint judgments?

This abstract question took specific shape in 2006 during the hearing to confirm Samuel Alito as Justice of the Supreme Court. Senators on the Judiciary Committee asked him how he would evaluate presidential action to engage in warrantless foreign security surveillance. He suggested that a starting point would be Jackson’s concurrence and its three categories: “where the President acts with explicit or implicit congressional approval, where the President acts and Congress has not expressed its view on the matter one way or the other, and the final category, where the President exercises executive power . . . in the face of explicit or implicit congressional opposition to it” (p.1). Did the decision by President Bush to authorize warrantless surveillance fall in the last category because it violated the Foreign Intelligence Surveillance Act (FISA) of [*108] 1978, which required a warrant from the newly created FISA Court? DiPaolo adds: “What is interesting about Justice Alito’s answer is that he did not mention the Bill of Rights, or, more specifically, the Fourth Amendment’s protections against unreasonable search and seizure” (p.1). If Presidents and lawmakers jointly decided to violate the Fourth Amendment, would the Court be satisfied that they had both agreed to that policy? Under such conditions, the Court ignores the Constitution.

What DiPaolo finds in reviewing court cases on the war power is that the judiciary, “more often than not, will defer to the political branches of government when they are working together. This means that the Court has been less influenced by rights provisions and more concerned with the separation of powers, or congressional approval, of executive actions.” Under this analysis, rights-based claims “take a backseat” to judicial deference to the agreements worked out by the President and Congress (p.2).

Consider what happened during World War II when President Franklin D. Roosevelt issued an executive order to remove about 110,000 Japanese Americans from their homes on the west coast and place them in detention camps inland. About two-thirds were U.S. citizens. Congress passed legislation to support Roosevelt’s action. This is Jackson’s first category: the President acting with explicit or implicit congressional approval. In a decision widely condemned today, the Court in KOREMATSU (1944) upheld the detention policy. The Court said it adopted the standard of “strict scrutiny” in this case, but in fact it failed to apply that test because it deferred wholly to military judgments, with or without evidence to support the removal. The strict scrutiny standard requires independent judicial judgment, which did not occur in KOREMATSU. As DiPaolo points out, “a separation of powers approach to wartime judicial decision-making offers less protection to individuals than looking at the case through rights-based language and by answering the constitutional questions presented before the courts” (p.4).

Jackson’s concurrence in YOUNGSTOWN, while generally admired, creates a number of serious constitutional problems. DiPaolo identifies one: courts upholding actions by the federal government simply because the two political branches agree on policy. With that approach the Constitution goes out the window. A second problem is that the three categories are at most an initial orientation. Jackson admitted that his model was “over-simplified.” Try applying it to Bush’s warrantless surveillance plan. Critics objected that the plan violated FISA and therefore belonged in Jackson’s third category, where presidential power is at its “lowest ebb.” Defenders insisted that the plan was fully covered by the Authorization for Use of Military Force (AUMF), enacted shortly after 9/11, and deserved to be in the first category where presidential power “is at its maximum.” DiPaolo regards Jackson’s framework “as a useful guide for the adjudication of war-powers cases” (p.19). It is useful if the Supreme Court is looking for an easy and unprincipled escape. Often it is of no use in protecting constitutional rights and of no use in resolving a [*109] constitutional dispute, as is evident from Bush’s warrantless surveillance.

Chapter 6 focuses on free speech, and it is here that the Jackson concurrence is conspicuously dangerous. Just because the President and Congress endorse a particular policy does not mean it is constitutional and does not excuse the courts from exercising independent judgment. In reviewing cases involving the exercise of free speech during emergencies and wars, DiPaolo emphasizes that courts “often decide these First Amendment cases by answering the constitutional questions in contrast to my earlier case studies, where a separation of powers framework is prominent” (p.162). She covers the sedition laws of 1798, World War I, and the Smith Act of 1940, and also the years of repression during the investigations by Senator Joe McCarthy and the Cold War. The performance of federal courts during these periods was highly uneven, exhibiting little evidence of the judiciary acting as a reliable “guardian” of individual liberties. For DiPaolo, when individual rights, “guaranteed by the Constitution, are limited by executive action, we expect judicial challenges to be adjudicated using a rights-based discourse” (p.199). Reliance on the separation of powers model “is a way to protect both the Judiciary and the Constitution itself from overzealous justices who in a time of great panic might grant too much authority to the Executive, thus potentially damaging rights enumerated in the Constitution beyond repair after the end of hostilities” (p.199). In essence, DiPaolo would rather the courts avoid deciding cases when they see no independent role for themselves and must defer to decisions by elected officials or the military.

In several places I wish that DiPaolo had explored the source of presidential authority more carefully. It is true that Justice Grier in THE PRIZE CASES (1863) upheld Lincoln’s blockade of the South, but he did so only with the understanding that the country was in a civil war, not in a military conflict with another country. He said explicitly that the President “has no power to initiate or declare a war either against a foreign nation of a domestic State.” During oral argument, Richard Henry Dana, Jr. for the White House agreed that the President’s power did not include “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.” DiPaolo states that President Harry Truman “relied on authority from the U.N. rather than from a congressional declaration of war” (p.20). The UN Charter never envisioned the UN Security Council as a substitute for “authorizing” war. The President cannot through the treaty process (the UN Charter) strip Congress of its constitutional power to declare or authorize war. In various places DiPaolo suggests that Presidents must rely on their “own enumerated constitutional powers” (p.28). This notion of a constitution of enumerated powers appears elsewhere in the book (pp.5, 9). The framers never intended to limit each branch to express powers. Each branch has a broad variety of implied powers, including the implied power of Congress to investigate, the implied power of the President to remove department heads, and the implied power of federal courts to invalidate the actions of the two political branches and the states. [*110]

At the end of the book DiPaolo offers this thought: “In my suggesting that the Executive must find institutional legitimacy from a source outside its own authority granted in the text of the Constitution, I echo the likes of Richard Neustadt who several decades ago argued that the power of the president is found in the Executive’s ability to persuade” (p.213). The position of Neustadt, according to DiPaolo, was “restated by Arthur Schlesinger, Jr. who suggested that the power to manage the vast, whirring machinery of government derives from individual skills as persuader, bargainer, and leader” (p.213). However, both Neustadt and Schlesinger supported Truman’s unilateral decision to go to war against Korea. There was no effort to “persuade” Congress. Neustadt and Schlesinger were among the academics who glorified presidential power and had no interest in the constitutional system of legal constraints and checks and balances. See my article, “Scholarly Support for Presidential Wars,” in the September 2005 of PRESIDENTIAL STUDIES QUARTERLY (available at http:www.loc.gov/law/help/usconlaw/pfd/Fisher.scholars.pdf).

I agree with DiPaolo that, if the courts defer to Congress, “it is up to Congress to again reassert itself in reclaiming power away from the Executive.” In such cases “the courts will follow suit by reaffirming the need for the Executive to seek, and achieve, some sort of congressional approval of its war-powers policies” (p.214). This type of congressional reassertion requires lawmakers to understand the powers and duties of their institution and to take steps to protect legislative interests. Unfortunately, the record over the last six decades reveals a Congress regularly lacking in institutional awareness and will. Academics can help by explaining to students that structural checks are essential in protecting individual rights and liberties.

REFERENCES:
Fisher, Louis. 2005. “Scholarly Support for Presidential Wars.” 35 PRESIDENTIAL STUDIES QUARTERLY 590-607.

CASE REFERENCES:
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).

THE PRIZE CASES, 2 Black (67 U.S.) 635 (1863).

YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

MATERIAL LAW: A JURISPRUDENCE OF WHAT’S REAL

2010-03-29T17:15:00.001-04:00

by John Brigham. Philadelphia: Temple University Press, 2009. 240pp. Cloth. $54.50. ISBN: 9781592139644. Electronic Book. $54.50. ISBN: 9781592139668.

Reviewed by Joseph Reisert, Department of Government, Colby College. Email: jrreiser [at] colby.edu.

pp.103-106

In MATERIAL LAW, John Brigham aims to illustrate and develop the “constitutive” conception of law he introduced in his earlier work, THE CONSTITUTION OF INTERESTS. In contrast to the “instrumental” conception of law, which, in Brigham’s characterization, views law as the outcome or product of political processes, the constitutive conception holds that the law is not only a consequence, but also a cause of political and social action and even of individual and collective self-understandings. In nine wide-ranging and eclectic chapters, Brigham illustrates the ways in which law is “part of the process by which people construct all sorts of things” (p.viii). Rather than articulate a linear and tightly unified argument seeking to define the constitutive conception, the individual chapters develop the main theme episodically and discursively, offering various examples of “places and things [that] are fashioned by law” (p.viii). Although the contrast Brigham seeks to develop, between instrumental and constitutive conceptions of law, is tantalizingly suggestive, it was also frustratingly elusive.

MATERIAL LAW is divided into three parts, of three chapters each, although the unifying themes linking the chapters grouped together were sometimes difficult to perceive. The first part, “Theorizing Material Life,” is said to describe “the ways material life has been theorized, or examined” (p.xiv). The first chapter, “The Map and the Territory,” describes the intellectual journey which led Brigham to adopt his constitutive theory of law. Chapter Two, “The Public in the Womb,” argues that abortion law has “changed the meaning of human life in the United States” (p.24). Justice Blackmun’s opinion in ROE v. WADE “gave the fetus official recognition in public policy and law,” Brigham observes, and in the wake of ROE, pro-life activists brought the unborn from obscurity to “political prominence” as they sought measures to protect fetal life (p.27-28). In “Habeas Corpus at the Temple,” the third chapter, Brigham “explores mortality and individuality on the Supreme Court and the significance that bodily images of the justices have for law in general and the death penalty in particular” (p.49); in short, the chapter narrates the changing of the Court’s membership during the fifteen years from FURMAN v. GEORIGA (1972) to MCCLESKEY v. KEMP (1987) and the concomitant changes in its death penalty jurisprudence.

The chapters comprising Part Two, “Constituting Legal Spaces,” explore a number of sites where law “constitutes the terrain by setting the stage for conflict, for politics, and for social life” (p.75). “Law’s Neighborhoods” [*104] juxtaposes Robert Ellickson’s study of conflict and dispute resolution among ranchers in Shasta County, California, ORDER WITHOUT LAW, with the author’s own study of political conflict and decision-making in the Lower East Side of New York. Ellickson had found that the ranchers settle many of their disputes informally, without recourse to formal, legal institutions such as courts and the police. Brigham endorses Ellickson’s sociological approach, but objects to the idea that “the law” exists only or even characteristically in legal rules and the actions of public officials. Where Ellickson finds a limited role for the institutions of the law, Brigham contends that the informal norms that constitute the ranchers’ community are themselves law. Turning to his own work in the Lower East Side, Brigham finds that “law constitutes forums for politics, legal forms shape political claims, and law influences political positions” (p.88). Thus, in Brigham’s account, squatters “explicitly and consciously redefine the meaning of eminent domain,” while middle class homeowners invoked park rules against camping in their effort to have the homeless removed from Tompkins Square Park (p.94). After insinuating that the squatters’ bourgeois opponents invoked the law to mask the self-interestedness of their behavior, Brigham disclaims any intention to “uncover a true politics behind the mask of the law” (p.94). He aims, more modestly, “to understand the ways in which law, in the form of parks department rules, community boards, forms of housing, and claims of right determines the sort of politics that is possible” (p.94). But this aim seems too modest, for how could political actors make claims without reference to positive law and abstract norms?

Chapter Five, “De Facto Discrimination and the Double Standard” offers a sharply critical indictment of the Supreme Court’s treatment of racial discrimination, culminating in the accusation that the Roberts Court has “placed the constitution firmly on the side of the white resistance” (p.103). In Chapter Six, Brigham examines a series of “occupied territories” in the United States: 1960’s-era Harlem, Indian reservations, the Commonwealth of Puerto Rico, and the federally administered Hispanic land grants in New Mexico. In each case, he finds a disjunction between the formal, institutional legal system and the lived practices of the “occupied” peoples.

In Part Three, “Materializing Law,” Brigham depicts the “material forms law takes.” This description aptly characterizes the topic of Chapter Seven, which links the changes in the architectural design of courthouses, away from the grand and monumental towards the efficient and bureaucratic, to changes in the institutional practice of the law. Modern courts, he argues, “minimize claims on justice in favor of improved process” (p.167). “In place of the lawgiver and the blindfolded maiden holding the scales, we have computer systems frameworks and video monitors,” writes Brigham; the result is an “environment dominated by technical expertise with few links to the normative practices of the culture generally” (p.167). Correlation is not causality, of course, but the linkage Brigham draws is suggestive nonetheless. By contrast, Chapter Eight discusses “the commodity form as law” (p.169), and Chapter Nine, [*105] globalization and its relationship to the study of law.

Brigham admirably aims to situate his contribution within a larger critical tradition in law and within the law and society movement in particular. To that end, he adverts frequently to the work of other scholars working within these traditions, and he discusses autobiographically the effect his encounter with these ideas had upon his own life and intellectual development. To a reader already deeply immersed in the law and society literature, the allusions and biographical references may provide clarity and serve to orient them in the intellectual terrain Brigham inhabits. To this reader, however, many of the life details were intrusive and distracting – do we really need to know about the “chicken salad plate” served at the 1995 annual meeting of the Law and Society Association? (p.196) – and the numerous allusions to others’ contributions, more confusing than clarifying.

Brigham repeatedly invokes “liberal legalism,” legal realism, and behavioralism in political science as his dialectical opposites, though he does not so much use these as terms of analysis but as epithets; the views he would reject are not so much sketched as gestured towards. Apparently, the legal liberal takes an abstract, universalistic picture of how society ought to be, and enacts legislation or wins favorable court rulings to re-shape society according to that image. By contrast, Brigham’s “constitutive work in socio-legal scholarship looks at the way relations among people are formed by or with reference to law” (p.17). Some of the individual chapters, most notably Chapters Four and Six, effectively illustrate ways in which law can be seen as entering into the self-definitions of individuals and communities.

Nevertheless, it was difficult to perceive the larger, conceptual lessons Brigham aimed to draw from these case studies, in part because Brigham offered neither a sustained articulation of his own outlook nor provided a detailed and sympathetic critique of his intellectual adversaries. More fundamentally, it is not clear that the contrast between constitutive and instrumental conceptions of law is likely to yield any radically new insights into the nature of law, because each perspective entails the other. Law can only work as an instrument for the shaping of a society to the extent that its normative directives constitute the people it governs. Likewise, norms that constitute regular patterns of behavior are only intelligible in light of the ends or purposes at which they aim; whether a constitutive norm has emerged from the ground up, out of the practice of a community, or has been enacted through the agency of a single lawgiver, action-guiding norms always entail a picture of how society ought to be.

Readers already well versed in the law and society literature will find in MATERIAL LAW some provocative observations and piquant theoretical claims; readers from outside the subfield looking for a first taste of the law and society literature would best seek their nourishment elsewhere. [*106]

REFERENCES:
Brigham, John. 1966. THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS. New York: New York University Press.

Ellickson, Robert. 1994. ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES. Cambridge: Harvard University Press.

CASE REFERENCES:
FURMAN v. GEORGIA 408 U.S. 238 (1972).
MCCLESKEY v. KEMP 481 U.S. 279 (1987).
ROE v. WADE 410 U.S. 113 (1973).

DILEMMAS OF MODERNITY: BOLIVIAN ENCOUNTERS WITH LAW AND LIBERALISM

2010-03-08T15:34:00.000-05:00

by Mark Goodale. Stanford, CA: Stanford University Press, 2009. 264pp. Cloth. $65.00. ISBN: 9780804759816. Paper. $24.95. ISBN: 9780804759823. E-book $24.95. ISBN: 9780804769884.

Reviewed by Raul Sanchez Urribarri, Department of Political Science, Tulane University. E-mail: sanchezu [at] tulane.edu.

pp.100-102

To what extent do liberal principles and values – as defined, understood and shaped by the different actors that participate in the development of a global liberal discourse and the legal institutions that accompany it – shape the social consciousness and actual experiences of indigenous communities and peoples in different contexts, especially in Latin America? In his newly published work, DILEMMAS OF MODERNITY: BOLIVIAN ENCOUNTERS WITH LAW AND LIBERALISM, Mark Goodale addresses this and other related questions in a sophisticated and cogent manner. The book is the product of a decade of sustained research efforts to observe, document and evaluate the role and meaning of liberal principles in different instances of social and political life in contemporary Bolivia. The result is an extensive and thought-provoking ethnographic study of law and liberalism in this (still) understudied country, which challenges traditional understandings of the topic while building upon a wide array of works from several disciplines.

The analysis focuses on the remote area of Bolivia’s Norte del Potosí, an inaccessible location where one would not expect law and liberalism in their different manifestations to be actively sought and experienced by potosinos, but instead resisted or, at best, inconsequential. However, Goodale compellingly shows that this is not the case, exploring patterns of intention rooted in the country’s longstanding liberal project, dating back to the moment of its foundation as an independent nation-state in 1825. Thus, the book focuses on explaining “the ways in which specific kinds of social practices in Bolivia reveal a set of dilemmas at the heart of the modern project itself, dilemmas that appear in stark relief through both legal practices and contemporary struggles over the meaning of the legal-ideological principles through which Bolivia emerged in the early nineteenth century” (p.53).

The book is well organized, along seven chapters. The introduction and Chapter 2 offer the theoretical underpinnings of the work: Whilst the former succeeds in summarizing and introducing the argument, the latter further develops a thorough understanding of how liberalism, as a pattern of intention, continues to shape modern Bolivia. According to Goodale, Bolivian Law from the start placed the individual at the center of the country’s project and developed a logic of rights to regulate the individual’s relations vis-à-vis the state, establishing a structure that has endured in Bolivia despite remarkable [*101] social, economic and political changes over the country’s history until today. The subsequent chapters then provide a detailed view of how the linkages with liberalism shape individual and social experiences. Chapter 3 discusses how transnational legal principles rooted in liberal values influence local practices. The chapter challenges common assumptions about the role of courts, judicial institutions and legal actors in Latin America, and invites scholars to jointly consider other modalities of rights adjudication present in the region. This analysis is particularly relevant after the approval of the new 2009 Bolivian Constitution, which explicitly and officially recognizes the existence of separate ‘general’ (ordinaria) and indigenous jurisdictions (Bolivian Constitution, Second Part, Title III, JUDICIAL BRANCH AND PLURINATIONAL CONSTITUTIONAL TRIBUNAL, arts. 178 ss.), and creates a new Plurinational Constitutional Tribunal, with the ability to solve conflicts between these jurisdictional orders (2009 Bolivian Constitution, article 202). Next, Chapter 4 explores disparate perspectives on gender, in which local cultural values and principles stand in opposition to the global legal discourse and the values that inspire it; whilst in Chapter 5 Goodale offers an analysis of how the human rights ideological framework is adapted or ‘vernacularized’ through local practices and developed, not only as a strictly juridical discourse, but also as a moral parameter. Chapter 6 discusses local understandings of development, as the inhabitants of Norte del Potosí meet and confront different instances of modernity brought about by different projects targeted at improving their socio-economic conditions.

Finally, in the book’s conclusion, Goodale ties the argument up and briefly considers what is, perhaps, the most important question that remains after reading the book: What is the true nature of the recent political reforms carried out in Bolivia? Do they stand in contraposition to the liberal project that, following the book, serves as a core pattern of intention for the country’s social, political and economic development? The arrival of Evo Morales (2005) to the presidency has catalyzed ongoing social and institutional transformations backed by the overwhelming support of Bolivia’s indigenous majority and a broader social coalition, leading to the subsequent creation and approval via referendum of the 2009 Bolivian Constitution. Scholars have tried to explain the different social, political and legal implications of these changes (see, for example, Postero 2006). To Goodale, it is still early to draw any conclusions, but consistent with his explanation, the new revolution also incarnates, at least to some degree, the values of liberalism. I find this approach particularly valuable; it not only helps to evaluate Bolivia’s most recent transformations, but also presents an alternative paradigm to study other political projects emerging in the region, including Ecuador and Venezuela, countries with which the process of changes share some core common aspirations of social justice and inclusion, and which have also been channeled through democratic politics (though their actual commitment to democracy, and even what democracy entails in these countries, are contested issues).

Clearly, Goodale’s is an important book for Legal Anthropologists – especially [*102] those interested in the role and impact of Western notions of modernity and liberalism in contemporary Latin America. In this sense, the book joins other recent works about indigenous politics and social transformations in the region, such as Speed (2007). Moreover, this book is also provocative and essential for those who work in other subfields, and who are also seeking to understand the role of the law and human rights vis-à-vis local practices, within and beyond the understudied Andean context. DILEMMAS OF MODERNITY sheds additional light on the relationship between the rise of a transnational human rights discourse, inspired in liberal values and with universalist aspirations vis-à-vis both the longstanding existence of prior liberal projects carried out by state elites in search of modernity, and the existence (and persistence) of local cultures and their localized claims. Goodale’s effort to advocate for a nuanced understanding of this process offers valuable lessons for judicial and legal reform practitioners or policy advisors crafting democratization agendas. In this sense, the book adds to works from scholars in other connected disciplines, such as Sieder’s edited volume, MULTICULTURALISM IN LATIN AMERICA (2002). Well researched and clearly written, the book is a welcomed addition that will be especially useful for graduate education and research across several subfields.

REFERENCES:
REPÚBLICA DE BOLIVIA: CONSTITUCIÓN POLÍTICA DEL ESTADO DE 2009. Revised at: http://pdba.georgetown.edu/Constitutions/Bolivia/bolivia09.html, on January 30, 2010.

Postero, Nancy. 2006. NOW WE ARE CITIZENS: INDIGENOUS POLITICS IN POSTMULTICULTURAL BOLIVIA. Stanford, CA: Stanford University Press.

Sieder, Rachel (ed). 2002. MULTICULTURALISM IN LATIN AMERICA: INDIGENOUS RIGHTS, DIVERSITY AND DEMOCRACY. London, UK: Palgrave Macmillan.

Speed, Shannon. 2007. RIGHTS IN REBELLION: INDIGENOUS STRUGGLE AND HUMAN RIGHTS IN CHIAPAS. Stanford, CA: Stanford University Press.

THE WOMEN’S MOVEMENT AGAINST SEXUAL HARASSMENT

2010-03-08T15:27:00.002-05:00

by Carrie N. Baker. New York: Cambridge University Press, 2008. 286pp. Hardcover. $83.99/£47.00. ISBN: 9780521879354. Paper. $25.99/£17.99. ISBN: 9780521704946.

Reviewed by Lori A. Johnson, Department of Political Science, Mercer University. Email: Johnson_la [at] mercer.edu.

pp.96-99

Catherine MacKinnon has described the development of sexual harassment law as “legally led social change” through which “anti-sexual harassment law impelled social awareness of those issues rather than the reverse.” Though not necessarily intended as such, Carrie N. Baker’s book, THE WOMEN’S MOVEMENT AGAINST SEXUAL HARASSMENT, offers a carefully researched and well-written empirical test of MacKinnon’s assertion. Specifically, Baker uses social movement theory to explore how women from varying racial, economic, educational, and geographic backgrounds used diverse resources and strategies to shape public policies against sexual harassment.

THE WOMEN’S MOVEMENT AGAINST SEXUAL HARASSMENT is an important contribution to the scholarly literature on sexual harassment. It belongs in the same category of original and creative explorations of this topic like Kathrin Zippel’s THE POLITICS OF SEXUAL HARASSMENT: A COMPARATIVE STUDY OF THE UNITED STATES, THE EUROPEAN UNION AND GERMANY; Theresa Beiner’s GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW; Anna-Maria Marshall’s CONFRONTING SEXUAL HARASSMENT: THE LAW AND POLITICS OF EVERYDAY LIFE; and Mia Cahill’s THE SOCIAL CONSTRUCTION OF SEXUAL HARASSMENT LAW. While there is some overlap with these academic works, especially in chronicling the historical origins and development of sexual harassment law, Baker’s use of social movement theory is an important distinction.

Upon first reading Baker’s book, I thought it would be an interesting addition to my Women, Law & Politics course. One of the themes of this course is the comparison of women’s political efforts to obtain equality (through grassroots action, legislation and electing women to office) with their legal efforts (individual and class action litigation and the development of common law). My intention with this theme was to explore questions involving the politics of law and social change that I had encountered as a graduate student through books like Gerald Rosenberg’s THE HOLLOW HOPE and Michael McCann’s RIGHTS AT WORK. One good thing about how long it has taken me to submit this review is that I have now had a chance to teach the book in my course and can add some reflections about that experience as well. [*97]

As Baker points out in the Introduction, women in America have been “fend[ing] off the sexual demands of those wielding economic power over their lives” since colonial times (p.1). It was not until the mid-1970s, however, that they began calling it “sexual harassment.” Part I of the book, which is arranged chronologically, explores how activists first articulated sexual harassment as a form of sex discrimination. Part II examines the growth of a social movement against sexual harassment in the late 1970s. Part III traces the impact of the growing movement on public policy, including the first Supreme Court case in 1986, as well as the backlash against sexual harassment that followed in the late 1980s and early 1990s.

The first chapter chronicles six legal cases alleging sexual harassment filed under Title VII between 1971 and 1975. In only one of these cases, brought by Diane Williams and decided in the D.C. District Court by Judge Charles Richey, did the plaintiff prevail. Baker offers details about the circumstances of both the winning and losing cases, and the reasoning used by the judges to decide the claims. She also connects the beginning of the movement against sexual harassment to the civil rights movement by showing how several of these early African American women plaintiffs relied on networks of civil rights organizations for support and legal representation. Especially interesting in this chapter was her inclusion of media reaction to the WILLIAMS case, much of which mocked Judge Richey and trivialized the decision (p.22).

The next chapter offers a detailed account of the grassroots collective action of Working Women United (WWU) and the Alliance Against Sexual Coercion (AASC), which raised awareness among women, assisted women who had experienced sexual harassment and conducted empirical research on the phenomenon. WWU organized in Ithaca, New York, in response to the denial of unemployment benefits to Carmita Wood, an administrative assistant at Cornell University. Women who had been working in rape crisis centers organized AASC in Cambridge Massachusetts. Through in-depth interviews with many of the participants, Baker is able to give the reader a real sense of the personalities of those involved and the ebb and flow of each organization over time.

After discussing subsequent legal developments around sexual harassment in the workplace and in education, the book details the role blue-collar women and union workers in non-traditional occupations played in the growing movement. This group of women succeeded in getting regulations against sexual harassment from the Department of Labor and broadening the legal definition of sexual harassment to include “hostile environment” claims. These chapters offered a fascinating case study for my students in the contrast between political and legal strategies, as well as liberal and radical feminism. As we were discussing Baker’s description of AASC members who “placed sexual harassment within a broader critique of capitalism, patriarchy and racism,” one student raised his hand to ask a question. “I don’t understand,” he said, “why would anyone criticize capitalism?” It was certainly a “teachable moment.” [*98]

While later chapters presented important evidence documenting how the growth in the importance of women’s rights, the development of feminist theory and coverage in the popular media shaped the progression of the movement against sexual harassment, my students tended to react to these chapters as a series of “this happened, then that happened, then something else happened.” These chapters would have perhaps been more accessible if they had been organized differently, or connected more effectively to the general points about social movements that Baker discusses in the Introduction and Conclusion.

One of the more interesting class discussions from these chapters focused on the Equal Employment Opportunity Commission (EEOC). We compared the role that Eleanor Holmes Norton played as head of the EEOC during the Carter administration, especially how she pushed for the development of the influential EEOC guidelines on sexual harassment, and the impact of Ronald Reagan’s appointment of Clarence Thomas as her successor at the EEOC. Students recognized this as a noteworthy example of the importance of not ignoring the work of administrative agencies, whether in the context of political or legal activism, in achieving social change.

Subsequent chapters offered an engaging and detailed account of the political, social and legal backlash against the emerging concept of sexual harassment from both the right and the left in the 1980s. Despite this backlash, Baker concludes that “the history of the movement against sexual harassment is in many ways an incredible success story” (p.177). Yet women continue to report high rates of sexual harassment in education and in the workplace. This reality offered another opportunity for students to think about what it might take, in terms of political and legal strategies, for women to achieve equality.

Perhaps because of my previous work as an employment lawyer, I have looked for books in my courses that would help students appreciate the personal stories behind legal cases. SEXUAL HARASSMENT AND THE LAW: THE MECHELLE VINSON CASE, by Augustus B. Cochran, worked well for that purpose in this course, although students found it singularly dissatisfying that after the Supreme Court’s decision, the case settled on secret terms, without ever having a trial. Never mind the empirical reality that the vast majority of civil cases do, in fact, settle. CLASS ACTION: THE STORY OF LOIS JENSON AND THE LANDMARK CASE THAT CHANGED SEXUAL HARASSMENT LAW, by Clara Bingham and Laura Leedy Gansler, chronicles the 23-year saga, involving three trials and multiple appeals, of the first successful sexual harassment class action case, brought by a group of women miners in Minnesota. What I considered a great book for helping students understand some of the real costs of a litigation strategy, was for my students simply “too much reading.” So I have had to content myself with viewing “North Country,” the movie starring Charlize Theron which is based on the book, and then discussing how the Hollywood treatment changed the story of the case.

Using THE MOVEMENT AGAINST SEXUAL HARASSMENT in my [*99] Women, Law & Politics course provided a great opportunity for students to not only be exposed to the individual experiences of women who stood up against sexual harassment but also to recognize that real change is often, if not always, the product of the efforts and sacrifices of many different people over sometimes long periods of time. I can definitely recommend it for use in upper level college courses, whether in women’s studies, sociology, legal studies or political science, if you have similar learning objectives.

REFERENCES:
Beiner, Theresa M. 2005. GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW. New York: New York University Press.

Bingham, Clara and Gansler, Laura Leedy. 2002. CLASS ACTION: THE STORY OF LOIS JENSON AND THE LANDMARK CASE THAT CHANGED SEXUAL HARASSMENT LAW. New York: Doubleday.

Cahill, Mia L. 2001. THE SOCIAL CONSTRUCTION OF SEXUAL HARASSMENT LAW. Burlington, VT: Ashgate Publishing.

Cochran, Augustus B. 2004. SEXUAL HARASSMENT AND THE LAW: THE MECHELLE VINSON CASE. Lawrence, KS: Kansas University Press.

MacKinnon, Catherine A. 2005. “The Logic of Experience: The Development of Sexual Harassment Law” in WOMEN’S LIVES, MEN’S LAWS. Cambridge, MA: Harvard University Press.

Marshall, Anna Maria. 2005. CONFRONTING SEXUAL HARASSMENT: THE LAW AND POLITICS OF EVERYDAY LIFE. Burlington, VT: Ashgate Publishing.

McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.

Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Zippel, Kathrin S. 2006. THE POLITICS OF SEXUAL HARASSMENT: A COMPARATIVE STUDY OF THE UNITED STATES, THE EUROPEAN UNION AND GERMANY. New York: Cambridge University Press.

CASE REFERNCES:
WILLIAMS v. BELL, 587 F.2d 1240 (DC Cir. 1978).

STALIN’S POLICE: PUBLIC ORDER AND MASS REPRESSION IN THE USSR, 1926-1941

2010-02-28T22:51:00.003-05:00

by Paul Hagenloh. Washington, DC: Woodrow Wilson Center Press and The Johns Hopkins University Press, 2009. 460pp. Cloth. $45.00. ISBN: 9780801891823.

Reviewed by Matthew Light, Centre of Criminology, The University of Toronto. Email: matthew.light [at] utoronto.ca.

pp.92-95

Over a period of roughly two years in 1937 and 1938, leading figures in the Soviet Communist Party, military, and intelligentsia were accused of a variety of attempts (often spectacularly improbable) to overthrow the government of the USSR. Following a series of sham trials that were staged before the public in Moscow, all were convicted, and in most cases executed. These “Moscow show trials” have fascinated scholars of Soviet politics for years. They form part of a larger series of events often referred to interchangeably but imprecisely as “the purges” or “the great terror.” Yet, although western audiences are broadly familiar with the stories of prominent defendants in the “show trials” such as Kamenev and Bukharin, the fate of thousands of other victims has received far less scholarly and public attention. Indeed, only in the post-Soviet period has newly accessible archival evidence made it possible to gauge the scale of the late 1930s bloodletting. It is now estimated that by late 1938, the Soviet police had arrested approximately a million people, of whom some 700,000 had actually been shot. The vast majority of those killed in these so-called “mass operations” were obscure Soviet citizens whose extra-judicial condemnation and execution by specially constituted police commissions went unnoticed by the foreign journalists (and later, academics) who covered the “show trials” in extensive detail. In STALIN’S POLICE, Paul Hagenloh has written an extremely important book that at last gives due attention to the [*93] humble victims of these large-scale executions and that provides a comprehensive explanation of the political decisions that brought about their deaths. Breaking with earlier students of the period, Hagenloh argues that the mass killings of 1937-38 resulted not from struggles over power within the Communist political elite headed by Joseph Stalin, but rather from Soviet methods of law enforcement that relied on extra-judicial repression of suspect population categories. His book presents great interest not only to Soviet historians, but to all of scholars of criminal justice who are interested in exploring the boundaries between political and non-political violence.

Other scholars of “the purges” have focused on the execution of socially and politically prominent defendants and explained these events either by reference to Stalin’s desire to liquidate all potential rivals and intimidate his remaining subordinates (as in the works of Robert Conquest), or to ongoing conflict between central and regional elites within the Communist Party (as in those of J. Arch Getty). Hagenloh seeks to explain the mass killings of the humble rather than the (so to speak) elite executions of the prominent. On the basis of extensive archival research, he has produced a comprehensive study of the development of Soviet policing methods from the Bolshevik Revolution of October/November 1917 to the eve of World War II. He finds that from the inception of Soviet rule, policing in the USSR was marked by an unstable and tenuous distinction between political policing (aimed at liquidating threats to the state) and ordinary policing (aimed at suppressing non-political crimes). While some within the regime were initially more inclined to recognize a distinction between political and ordinary crime, over the years the contrast was elided, ultimately leading to the re-categorization of even clearly economic acts (such as the theft of state property, or the re-sale of goods sold by the state to consumers) within the political category. At the same time, the Soviet police tried and failed to develop modern methods of law enforcement based on effective detection of crimes and proactive techniques, such as the use of informants to gain information about planned criminal activity. As a result, even in the 1920s, Soviet policing was already evolving a model of law enforcement based on the concept of “socially dangerous” categories of persons. These suspect “contingents” included groups such as homeless youth, recidivists, and later the peasant smallholders known in Stalin’s Soviet Union as kulaks. Members of such groups were frequently made subject to extra-judicial punishment by the police themselves, rather than to trial by regularly constituted tribunals. Once suspect contingents had been identified, they could be subjected to heightened surveillance, removed from major urban areas, and in some cases banished en masse. The Soviet system of mobility controls, which was based on the issuing of travel documents such as internal passports and residence permits for restricted areas, was also a product of the Soviet model of law enforcement, which in Hagenloh’s formulation “relied on interlocking systems of population surveillance and extrajudicial sanctions” (p.224).

By the early 1930s, the stage was set for the decisive triumph of this model of policing. Hagenloh argues that the decisive events that paved the way for the mass executions of 1937-38 were the collectivization of agriculture in the early 1930s and the associated mass “deportation” (internal exile) of kulaks to remote and inhospitable regions of the USSR, where many perished. These operations essentially eliminated the distinction between political and non-political crime and created the precedent for the mass extra-judicial punishment of suspect population “contingents.” This elision of political and non-political crime was then operationally entrenched through the merger of the political and ordinary police within a single administration. (Although Hagenloh does explain the twists and turns of this extremely complicated administrative reform in his text, some diagrams showing the relevant chains of authority would also be helpful.)

Thus, by the mid-1930s all the institutional and conceptual elements were in place for a campaign of mass extra-judicial killing. According to Hagenloh, all that was needed for external events to ignite the regime’s latent concerns about its own long-term survival was the increasing international [*94] tension of the late 1930s (centred on Germany and Japan, but also involving relations with the liberal capitalist states of the West). By 1937, fear of war and invasion had led to increased official anxiety about supposed internal enemies of the regime, such as former kulaks, released prisoners, minor entrepreneurs pejoratively termed “speculators,” members of certain ethnic minorities with ties to hostile foreign powers (such as Germans and Koreans), and members of Russia’s prerevolutionary elites (p.250). Such groups became the designated targets of the “mass operations” that led to so many killings.

For students of Soviet history and politics, STALIN’S POLICE makes important contributions to scholarly understanding of the 1930s. One important finding that emerges from Hagenloh’s study concerns the paradoxes of decision-making in the “mass operations.” On the one hand, police officers instructed to round up “suspicious” elements often had recourse to highly slapdash methods, such as simply rounding up petty traders at a public market for arrest and possible execution as “speculators” (p.260). On the other hand, Hagenloh leaves no doubt that the mass operations were ordered and to a high degree supervised by Stalin himself. Moreover, arrests were carried out by the police largely based on their own internal records of membership in suspicious contingents. External sources of information, such as denunciations by other citizens, played a relatively minor role. Thus, the mass operations represent the systematic and centrally organized deployment of law enforcement data about individuals who were themselves highly obscure, but who belonged to categories the regime judged to be inimical to its survival.

Indeed, the broader message of STALIN’S POLICE that makes it valuable for scholars of criminal justice without a specialized interest in Soviet history concerns the tenuousness of the distinction between political violence and criminal justice on which rests the disciplinary division of labour between political science and criminology. In fact, Hagenloh’s book shows that this putative distinction is highly illusory. It was the Soviet government’s ideologically and institutionally derived understanding of the nature of crime and criminality that led it to continually broaden the concept of political crime by the inclusion of more and more seemingly non-political offenses, and that eventually led the state to construct a criminal justice system based on the quarantining, and in some cases eradication, of dangerous contingents. Moreover, despite the alluring spectacle of political trials of prominent defendants that has bedazzled many observers, Hagenloh shows convincingly that it was the very nature of policing in the USSR that set the stage for the mass violence of 1937-38. Thus, without detracting from the moral significance of the killings of either prominent or humble victims, Hagenloh avoids the temptation to lay them at the door either of the evil genius of Stalin or of the shadowy machinations of party officials. Rather, he explains the violence of those years through a comprehensive narrative centred on specific social policies and law enforcement technologies. Ultimately, this explanation actually increases the relevance of Hagenloh’s findings for students of criminal justice. In particular, some of his findings eerily [*95] prefigure those of more recent studies of trends in law enforcement, most notably the so-called “new penology” identified by Feeley and Simon and based (like Stalin’s policies) on risk assessments based on suspicious population contingents. And of course, in our own post-9/11 age of heightened anxieties, like those of the 1930s, the focus of law enforcement agencies has shifted still more in this direction.

This is a book that transcends disciplinary boundaries and deserves to be widely read by scholars of criminal justice.

REFERENCES:
Conquest, Robert. 1968. THE GREAT TERROR: STALIN'S PURGE OF THE THIRTIES. New York: Macmillan.

Feeley, M. and Simon, J. 1992. “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications.” Criminology 30: 449-474.

Getty, John Arch. 1985. Origins OF THE GREAT PURGES: THE SOVIET COMMUNIST PARTY RECONSIDERED, 1933-1938. New York: Cambridge University Press.

OVERCOMING HISTORICAL INJUSTICES: LAND RECONCILIATION IN SOUTH AFRICA

2010-02-28T22:47:00.002-05:00

by James L. Gibson. New York and Cambridge: Cambridge University Press, 2009. 328pp. Hardback. $85.00/£45.00. ISBN: 9780521517881. eBook format. $68.00. ISBN: 9780511537363.

Reviewed by Neil Vidmar, Duke Law School. Email: VIDMAR [at] law.duke.edu.

Justice Perspectives in South Africa’s Continuing Transition to Democracy

OVERCOMING HISTORICAL INJUSTICES is the third volume of James Gibson’s important empirical investigation of the attitudes of South Africa’s multiple racial groups as that country began its transition to democracy. The book cannot be fully appreciated without reference to the first two volumes.

Gibson and Amanda Gouws, OVERCOMING INTOLERANCE IN SOUTH AFRICA (2002), was based on a representative survey, conducted in 1996 and 1997, that explored the tolerance attitudes of the various diverse South African racial and ethnic groups during the transition from apartheid. Tolerance of the different opinions and behaviors of persons who are perceived as members of out-groups is an essential requisite of the success of democratic institutions. South Africa has great diversity: Africans (divided into many tribal and ethnic groups), Whites, Coloreds, and persons of Asian origin. Moreover, as Gibson and Gouws pointed out, the legacies of the colonial past, apartheid, and the long history of violence between these contesting groups did not bode well for a democratic society. A central finding of their research was that the perceived threat posed by other groups was the major element in intolerance. The research provided grounds for a pessimistic outlook regarding a successful democratic transition.

The second book, Gibson, OVERCOMING APARTHEID (2004), was based around a second survey conducted in 2000 and 2001 that explored the attitudes of South Africans following the Truth and Reconciliation Commission’s frank exploration of atrocities committed by all sides and the provision of amnesty for some of those who committed the acts and were willing to come forward and admit their deeds. Despite the resistance and misgivings of many South Africans of all racial groups, Gibson’s data showed, with many qualifications, that the Commission clearly was successful in certain respects. While the majority of Blacks, Coloreds and people of Asian origin had long argued that apartheid was a crime against humanity, a majority of whites also came to that realization (albeit about one in four whites did not accept this view). The Commission also uncovered wrongful acts committed by the African National Congress and the Inkatha Freedom Party. The data suggested that the revelations of the Commission helped lead to a common understanding among most South Africans that many sides committed wrongs. Acceptance of these facts may be seen as “partial reconciliation.” [*89] Partial reconciliation is the correct phrasing because none of the different South African groups showed much change in their political tolerance, but at least many came to accept the institutional legitimacy of the Commission and showed some appreciation of human rights. The degree to which this occurred was moderated by education and other factors. Gibson also recognized that Nelson Mandela and Bishop Tutu played important roles in whatever was achieved by the Commission.

Before turning to OVERCOMING HISTORICAL INJUSTICES, I need to acknowledge that I do not claim professional expertise in the subject of South Africa; and reading through all three books was an educational process for me. However, as a social psychologist I have been engaged in the empirical study of the various dimensions of “justice” for more than three decades. OVERCOMING serves as an outstanding empirical field exploration of that topic in a context that not only has major implications in South Africa’s transition to democracy, but from my perspective has wider implications for our understanding of how people view justice and injustice.

Competing historical claims to land can be divisive issues within countries and the cause of wars between countries. They are especially salient in South Africa because the apartheid system and its colonial predecessor expropriated the vast majority of land for the white minority. Today, the competing claims for land threaten political and economic stability. Thus, as Gibson points out, the reconciliation of land claims poses conflicts between legality and the multiple dimensions of justice: distributive, retributive, procedural, and restorative justice. These major dimensions also implicate “disinterested” justice because both sociological and psychological research has shown that people care about justice for persons with whom they identify even if they have no direct material interest in the dispute. Given the diversity of groups within South Africa, including distinct tribal groups within the African category of racial divisions, “social identity theory” is implicated in many ways relating to justice judgments.

The new South African constitution makes provisions for restoring land ownership or compensating for it through legal means. But this has been a slow process that has engendered complaints from different interest groups with the consequent threat of land invasions and continuing civil disruptions. The land claims pose difficult questions about who has entitlement. Are there exceptional circumstances such as a desperate squatter who, if ejected from her current living space, has no place to live with her family? To what degree and under what circumstances should the different bases of claims prevail? Should non-Western concepts of land that are focused on tribal or communal belongings prevail over individual, or private, constructions of property? Running through these questions is the underlay of continuing intolerance and negative reactions to amnesties granted under the Truth and Reconciliation Commission.

Gibson explored these issues through a representative face-to-face survey undertaken in 2004 that lasted around 85 [*90] minutes. The survey encompassed the various racial and tribal groups of South Africa. Both probability and quota sampling were required to obtain an accurate portrait of attitudes and beliefs. Implementing the survey was no mean feat as it encountered the problems of language, culture and low response rates by whites. An important feature within the survey was a series of experiments using variations of vignettes to assess attitudes in the context of specific problems. One set of vignettes involved an inter-racial conflict between a squatter and a white owner of the land that was resolved by legal or extra-legal means. Another set of vignettes involved either a racial or intra-racial dispute over a parcel of land that varied in the degree of legal legitimacy of the claim based on one disputant’s argument of forced removal from the land in the 1980s.

Some of the findings uncovered in the research are not encouraging. Gibson concludes that the sense of victimization by certain groups appears to have become more, rather than less, widespread over time. Other findings demonstrate complex, differing perspectives on historical injustices. For example the data showed that most South Africans of every racial group believe that individual property rights ought to be protected. Yet, perceptions of squatting implicate mixed views associated with group interests and perceptions of historical injustices. The findings suggest that some perceived injustices can be ameliorated if the losing party, in this case a squatter, is seen as receiving procedural justice. Acceptance of procedural justice was strongest among Blacks who had adopted a South African identity. However, those who held to ethnic identities cared less about procedural justice.

Land disputes based on historical versus contemporary rights claims present similar problems. As Gibson acknowledges, the most obvious finding was that the politics of land restitution and redistribution are deeply shaped by race, with Blacks wanting to take the past into consideration while Whites do not. Moreover, while Whites tend to highly value property rights, Blacks “are more organically” tied to land. Indeed, group identities, not surprisingly perhaps, have a great deal to do with how people perceive land issues. Persons with strong group attachments were more likely to [*91] focus on historical injustices, strongly suggesting that land issues and group identities are interwoven. Large proportions of population were still deeply concerned with land reconciliation and considered it an unresolved issue. Many of the differences in attitudes were couched in symbolic terms rather than through direct self interest. My brief reading excursion into continuing land disputes in South Africa in 2009 indicates that land reconciliation is a complex problem involving corporate business interests as well as the problems explored in Gibson’s vignettes, but public attitudes play an important role in institutional legitimacy.

OVERCOMING HISTORICAL INJUSTICES is a significant book, particularly when viewed in the context of Gibson’s preceding volumes. It empirically examines relations between concepts of justice and the legitimacy of political institutions. Moreover, in contrast to much of the empirical research on justice which has tended to focus on one form of justice to the exclusion of others, often in contrived simulation experiments, Professor Gibson has managed to show the interdependence of attitudes about distributive, retributive, procedural and restorative justice when they are examined in the context of a very serious political context, in this instance land reconciliation. It sets a higher standard for scholars in political science and other social sciences who investigate problems in relation to justice behavior, group identity theory, and legitimacy of democratic institutions.

REFERENCES:
Gibson, James L. 2004. OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? New York: Russell Sage Foundation.

Gibson, James L., and Amanda Gouws. 2002. OVERCOMING INTOLERANCE IN SOUTH AFRICA. New York: Cambridge University Press.

THE ENDURANCE OF NATIONAL CONSTITUTIONS

2010-02-28T22:43:00.002-05:00

by Zachary Elkins, Tom Ginsburg, and James Melton. New York: Cambridge University Press, 2009. 270pp. Hardback. £50.00/$85.00. ISBN: 9780521515504. Paperback. £17.99/$28.99. ISBN: 9780521731324. eBook format. $23.00. ISBN: 9780511636530.

Reviewed by Beau Breslin, Department of Government, Skidmore College. Email: bbreslin [at] skidmore.edu.

pp.83-87

A decade ago, political scientists from around the world were stunned by an email that questioned the dominance of certain methodological approaches within their discipline. Sent anonymously by “Mr. Perestrioka,” the “manifesto” was actually a series of questions meant to challenge the relevance of the discipline’s flagship journal – the AMERICAN POLITICAL SCIENCE REVIEW – and the leaders who governed the parent organization, the American Political Science Association. Mr. Perestroika’s critique was broad and stinging, but he (or she) reserved his most powerful assault for the discipline’s lack of methodological pluralism. Referring repeatedly to the value of qualitative studies, the author wondered whether political scientists were making a “mistake by ignoring diverse knowledges and methodologies present in the study of politics” when placing such a premium on quantitative analysis. “Where is political history, International history, political sociology, interpretive methodology, constructivists, area studies, critical theory and last but not the least – post modernism?” he asked. Why is it that most of the journal articles found in APSR are “incomprehensible,” he wondered? In the end, Mr. Perestroika called for sweeping reform, the “dismantling of the Orwellian system that we have in place in APSA” and the emergence of a “true Perestroika in the discipline.”

Perhaps falling short of sweeping reform, it is nonetheless true that the famous email did eventually lead to significant changes in the discipline. Among the most important changes is a renewed appreciation that methodological pluralism contributes to our understanding of political phenomena. We can view the political world through multiple methodological lenses and come away with a more nuanced, and more interesting, image. We should study the institutions of politics, as well as the behavior of political actors, from multiple perspectives.

In THE ENDURANCE OF NATIONAL CONSTITUTIONS, Mr. Perestroika’s central message in support of methodological pluralism has reached the realm of constitutional thought. Long dominated by the fascinating theoretical work of individuals like Charles McIlwain, Walter Murphy, Stephen Elkin, Jon Elster, Sotirios Barber, Sanford Levinson, John Finn, and many others, the study of constitutions (and, here, I am not talking about the study of constitutional interpretation or judicial politics) has always welcomed the qualitative analyst. Rarely, though, has it embraced the [*84] quantitative scholar. Zachary Elkins, Tom Ginsburg, and James Melton, however, take an interesting theoretical question – why do some national constitutions endure while others do not? – and attempt to locate a mostly empirical answer. The book is most certainly a work of constitutional theory, and yet it is imbued with rich and persuasive quantitative analysis. While not flawless, it is one of the most interesting constitutional studies produced in the last few years.

The book is “the first from the Comparative Constitutions Project, a long-term research initiative with the goal of understanding the origins, characteristics, and consequences of written constitutions for most independent states” (p.xi). The authors have collected the constitutions of almost every national regime since the late eighteenth century. It is an impressive collection, to be sure, and it will serve constitutional scholars well over the next decade or more.

From these data, Elkins, Ginsburg, and Melton concentrate on a single component – a temporal component – of constitutional history and practice. “Why,” they ask, “do some constitutions endure, whereas others do not?” (p.2). In Chapter 1, the Introduction, we are told that there are two competing theories as to why some constitutions succeed and others fail. Most scholars assume that the failure of constitutional texts derives largely from environmental factors – the regime’s economy tanks and thus the text is thrown out, or the political situation begins to unravel and a new constitution is constructed to give some stability to the region. In other words, the authors suggest, constitutional endurance is largely tied in the political science literature to the particular political, social, economic, and geographic environment of the regime. Elkins, Ginsburg, and Melton, are not so sure. They believe that the design features of a constitution – what the text actually includes and how the text was originally drafted – have as much or more to do with the endurance of a constitutional instrument as do environmental factors. “Design choices matter,” they insist (p.10).

The body of the short volume consists of eight chapters and a short Conclusion. The first half of the book is largely theoretical, while the second half includes the quantitative test of the authors’ hypothesis and several chapters devoted to comparative case studies of constitutional endurance. Chapter 2 examines a series of questions related to the longevity of constitutions. One of the interesting conclusions the authors uncover, and one that they announce early in the book, is that Thomas Jefferson’s famous estimate that the life-cycle of a constitution should last roughly nineteen years is startlingly accurate. It is indeed true that over the past two centuries the average life span of the constitutional form is nineteen years. As such, the authors choose an interesting frame for the second chapter: the debate between Jefferson and Madison on the value of constitutional renewal. This familiar frame helps us to see more clearly the importance of understanding the rate of constitutional mortality around the world and through modern history.

In addition to framing the central questions in a familiar theoretical and historical context, the authors also [*85] present a distinctly comparative lens. Throughout the entire work, and especially in the case studies at the end, the authors regularly refer to various constitutional illustrations. This, too, is helpful, especially for the student of the American constitutional text, for the authors mostly contrast the characteristics of all constitutional documents to the American example. In Chapter 3, the authors ask some of the fundamental questions about constitutions: what are they? What do they typically say? What functions do they perform? At this point, the authors wade into one of the more interesting debates in constitutional theory: what counts as part of the “constitution.” Elkins, Ginsburg, and Melton recognize the influence of the more comprehensive view – the small “c” constitution that is more accurately referred to as the constitutional order – though they admit that for the purposes of their study they are particularly attracted to the large “C” constitutional text. Next, the authors turn to more subtle, though no less fundamental, questions: how should we distinguish constitutional replacements from constitutional amendments? How do we characterize constitutional change from regime change? All of these explorations are necessary for the later discussion of what factors most likely will contribute to constitutional longevity.

Chapter 4, “What Makes Constitutions Endure,” is a pivotal chapter. It is here that the authors sketch the preconditions for constitutional endurance. They argue that “flexibility” (the extent to which constitutions are adaptable through the amendment and modernization process), “inclusion” (the extent to which constituencies were invited and voices were heard at the drafting stage and the extent to which parties embrace the constitution during its run), and “specificity” (the extent to which the design of a constitution is detailed), are the principal measuring sticks in predicting constitutional mortality. In their words, “three design choices help facilitate constitutional endurance. Flexibility, inclusion, and specificity result from the constitution-making process itself, but are also features of ongoing practice. All three mutually reinforce each other to produce a vigorous constitutional politics in which groups have a stake in the survival of the constitution” (p.89). Accordingly, they hypothesize: “constitutions are more likely to endure when they are flexible, detailed, and able to induce interest groups to invest in their processes” (p.89).

Chapter 5, “Identifying Risks to Constitutional Life,” is in many respects an extension of the previous chapter. The goal of this portion of the manuscript is to identify the risk factors – both in terms of the actual design features of the text and the possible environmental pressures – that might doom a constitutional document. The authors, that is, will introduce those design qualities and environmental factors that logic tells us may lead to constitutional collapse. They are particularly attuned to such design characteristics as the detail or scope of the actual text, the inclusion of voices that support the central tenets of the document, the ease with which the constitution might be amended, the protection of constitutional review, and the relationship between executive and legislative power. As for environmental factors, the authors focus primarily on [*86] regime change, transitions in leadership, constitutional difficulties in neighboring states, historical legacies, and economic crises.

Chapter 6 tests the hypothesis that constitutions will endure when their designs are “flexible and detailed,” and they are “able to induce groups to invest in their processes” (p.89). The authors make clear that they are testing hypotheses related to design, not to environment (though they do not ignore environmental factors altogether). Using statistical modeling and a dependent variable described as the mortality rate, these scholars conclude that environmental factors play a role in the longevity of constitutional examples, but that design features play an even greater role in the life or death of a regime’s fundamental law. The degree of inclusivity, for instance, impacts longevity: “constitutions that are subject to public ratification,” the authors conclude, “are eight percent more likely to survive than those that are not” (p.139). Similarly, the more detailed the constitution is, the more it stands a chance of survival. The same is true with regard to the ease of amendment: the easier it is to amend, the better chance it has to endure. Oddly, though, the models also suggest that the existence of mechanisms for constitutional review (typically in the judicial system of the regime) has a deleterious effect on constitutional endurance. The general conclusion we are left with – that constitutional drafters can maximize the possibility that their document will survive if they are careful about what goes into it – does not do service to the subtle lessons about constitution-making and normative political theory that this book reveals.

The final two substantive chapters try to give some context to the findings. These comparative case studies are really thumbnail sketches of roughly similar constitutional situations, all aimed at testing the particulars of the authors’ general theory. India and Pakistan are compared in Chapter 7, as is the United States and France, and China and Taiwan. In Chapter 8, the authors compare Haiti and the Dominican Republic against Thailand, as well as Mexico against Japan. The authors make some general conclusions using the case studies, but the insights presented by this methodological approach are far less impressive than the ones that came out of the quantitative analysis. There just is not a lot there in these two- or three-page sketches. The case studies are the weakest part of the monograph.

One of the book’s virtues may also be its signature vice. Indeed, the scope of the project is most impressive: the authors reviewed literally hundreds of constitutions in preparation for this study. And yet not all constitutions are exactly comparable, and the authors largely fail to acknowledge that. The theoretical work of Walter Murphy is illustrative here. Murphy argued that constitutions should be placed along a continuum between those that are more or less authoritative and those he called shams, which are mostly ignored by political leaders, not worth the parchment they are written on. The difference between an authoritative constitution (like in the United States) and a sham (like that which governed the former Soviet Union) is significant and could account for differences in mortality rates. Should political leaders in polities constituted by sham [*87] documents scrap those constitutional texts in favor of different ones? Does it make sense for the tyrant to draft a new Constitution when the one he has does not really control his ambitions and impulses anyway? Thus to place all constitutions in the same data set and treat them all more or less equally does not account for these rather important variations.

The same is true if we apply Nathan Brown’s crucial work on nonconstitutionalism to THE ENDURANCE OF NATIONAL CONSTITUTIONS. In CONSTITUTIONS IN A NONCONSTITUTIONAL WORLD, Brown examines the constitutions of most Middle Eastern regimes and concludes that they are fundamentally different than the ones we take for granted in Europe and the Americas. He argues that these texts are nonconstitutionalist in that their principal function is to enhance the power of the state rather than limit or control that power. These fundamental laws, Brown insists, are not shams, they are authoritative in every sense of the word; and yet they differ in arguably the most critical way from the constitutionalist instruments of the West whose primary purpose is to constrain the authority of political leaders and their institutions. I can just imagine Brown, like Murphy, gently pointing out to the authors of ENDURANCE that these subtle distinctions matter.

THE ENDURANCE OF NATIONAL CONSTITUTIONS is nonetheless an important book. The authors ask the right questions about the temporal issues that hover over all constitutional polities. No other volume examines as closely the risks associated with constitutional longevity and the design characteristics that make a nation’s fundamental law survive. As such, students of constitutionalism, constitutional theory, and comparative politics will learn much from reading this work. What is more, the authors accomplish their task in a way that adds legitimate methodological variety to the extant literature on constitutional thought. They engage scholars in the importance of constitutional texts by embracing a statistical and quantitative language that so many political scientists prefer. Indeed, they cross methodological boundaries that have, to this point at least, been difficult to traverse. Somewhere out there Mr. Perestroika is smiling.

REFERENCES:
Brown, Nathan J. 2001. CONSTITUTIONS IN A NONCONSTITUTIONAL WORLD: ARAB BASIC LAWS AND THE PROSPECTS FOR ACCOUNTABLE GOVERNMENT, Albany, NY: SUNY Press.

Murphy, Walter F. 1993. “Constitutions, Constitutionalism, and Democracy,” in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD, ed. Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, and Steven C. Wheatley, Oxford: Oxford University Press.

A SIMPLE COMMON LAWYER: ESSAYS IN HONOUR OF MICHAEL TAGGART

2010-02-28T22:39:00.002-05:00

by David Dyzenhaus, Murray Hunt and Grant Huscroft (eds). Oxford and Portland, OR: Hart Publishing. 2009. 328pp. Hardcover. £45.00/$90.00. ISBN: 9781841139234.

Reviewed by Deidre Bourke, Faculty of Law, University of Auckland. Email: dbou001 [at] aucklanduni.ac.nz.

pp.78-82

A SIMPLE COMMON LAWYER is a new text dedicated in honour of the late Mike Taggart, Alexander Turner Professor of Law at the University of Auckland and one of New Zealand’s foremost public and administrative law specialists. Loved by a generation of students, of which I count myself lucky enough to have been one, Mike won numerous awards for both his teaching and publications including the New Zealand Legal Research Foundations JF Northey Memorial Prize (best law book) twice, and Sir Alan Barker Prize (best published article). This text presents a collection of essays written by Professor Taggart’s friends and colleagues. Each chapter focuses on a different aspect of his work and takes an in-depth look at the issues raised by his research. The result is a broad collection of essays that deal with subjects as diverse as the constitutional relationship between Australia and New Zealand, to the treatment of human rights cases, and legitimacy of the rule of law.

Professor Taggart was particularly interested in examining how administrative law as a field was responding and changing as a result of internationalisation, privatisation and the growth of human rights. In an environment where the courts are increasingly moving away from their traditional role, tightly constrained by reference to the intentions of Parliament, Professor Taggart felt that transparent justifications were essential (p.102 and see Taggart 2003). He sought normative principles, attempting to map the expansion or rather reinvention of public law under these pressures. Just as Mike Taggart’s research addressed leading issues of the day and sought to identify the core values underpinning administrative law, the essays in this text tackle key questions such as: What principles can be identified in public law? How can the law be more clearly articulated? What are judges and the courts really trying to do? What should the scope of judicial review be? Where is the public/private law divide?

A Simple Common Lawyer will appeal not just to those in the legal community but to anyone wishing to understand how public law works or critically consider how it should work. If two issues stand out amongst the essays, then it is consideration of the changing public/private law divide and how this should be dealt with, and the treatment and impact of human rights cases on administrative law. In bringing together a diverse collection of authors, the text ensures that a range of perspectives and arguments are brought to bear on the topics addressed. This is especially appropriate given the controversial and political nature of the issues considered [*79] and makes for an all the more interesting and thought provoking read.

Several essays examine the public/private law divide: the impact that globalisation and new right ideologies; the role of the modern state; and the application of public function tests. In Chapter 5, Carol Harlow argues that deregulation, privatization and globalisation has led to hollowed out decentred states that nevertheless maintain significant control through mechanisms such as contract, regulation, shareholding and the hybridisation of bodies (p.80). Harlow asserts that what has emerged is a state that remains highly authoritarian but better able to disguise its ‘controlling tendencies’ (p.97). She is concerned that this ‘Hidden Paw’ of the State is far less accountable, as traditional command and control enforcement models are increasingly substituted by private law values and systems of enforced self-regulation. Specific aspects of this new more regulatory, yet controlling, state are considered. One highly topical issue discussed is the changing relationship between the state and the marketplace. Harlow draws attention to increased state intervention in private markets following of the recent ‘bail out’ packages of the banking sector in the United States, the ‘nationalisation of bad debts’ and corresponding expansion of Treasury’s powers in this area as a result. She also witnesses changing concepts of risk and security following in the wake of 9/11 and growth of a new more powerful uncontrolled ‘surveillance state’ (p.93). Harlow argues that the state remains profoundly interventionist and regulatory, and that it “often verges on despotic” (p97). She is highly critical of the ability of private law to fulfill public functions in this context.

In a later chapter, Janet McLean examines the corollary of this: the potential extension of public law norms to private bodies. McLean discusses the challenge administrative lawyers now face in attempting to determine where and how far the law should tread in this new more highly privatised environment: should public law norms be extended to private bodies? She argues that the extent to which privatsation has caused a crisis can be measured by examining the development and use of public function tests. The extension of public law norms to private bodies is controversial. McLean notes that judges struggle with the methodology in this area and that decisions are increasingly split or inconclusive, as all-or-nothing determinations regarding whether a function is public or private result in decisions that are “uncongenial to the common law way of thinking” (p.199). A recent House of Lords case, YL v BIRMINGHAM CITY COUNCIL [2007] is used to demonstrate the dilemma. In that case the majority was concerned that if a care home was found to be performing a public function, then it would be considered a public authority for all other purposes, while the dissenting judge was concerned that if the home was not performing a public function then few checks and balances would be in place even though the decision makers were making key determinations regarding the care of highly vulnerable patients. McLean goes further however than simply considering how lawyers and the courts are dealing with issues such as this to ask the bigger, perhaps more pertinent question: if [*80] public function tests essentially attempt to determine the role and nature of the state should this determination even be a matter of law – or is it one best left to politics?

The scope of the courts and the role of judiciary are issues raised in several chapters, and many of the authors hold very different views on this subject ensuring a range perspectives and arguments are canvassed in the text. Sir Anthony Mason for example defends “Australian exceptionalism,” or the narrow application of judicial review, which does not extend to merits review, is highly sceptical regarding the utility of legitimate expectations and takes a narrow view of WEDNESBURY unreasonableness. Mason explains that the position results from an emphasis in Australia on the importance placed on separation of powers, so that the role of judges is more limited, and the courts avoid trespassing on administrative decision-making. This also helps explain the country’s hesitancy to adopt a Charter of Rights in preference of adherence to majoritarian democracy. It is argued that the balance of power rests most appropriately with elected politicians rather than unelected judges. Grant Huscroft and Paul Rishworth also address this issue in their chapter ‘You Say You Want a Revolution’: Bills of Rights in the Age of Human Rights,’ where they argue that rights issues are best left to the political process where robust debate can occur and insist there is no evidence to suggest judges are any better at upholding rights (p.149). Conversely in Chapter 4 Sian Elias notes the important role courts play as an impartial arbiter between citizen and state, increasing the level of openness and accountability. Such essays deal with core issues for public law: What is the role and nature of the state? What is the relationship between law and morality? What is the correct balance to strike between the role of the judiciary and of the Executive? How are rights best protected?

Human rights cases and the impact they are having on administrative law is another controversial topic addressed in the text. Human rights cases raise interesting challenges for public law, as they have the potential to broaden significantly the law in this area. In Chapter 6, Murray Hunt notes that in countries without a formal constitution, such as New Zealand and the United Kingdom, human rights adjudication takes place mainly through administrative law and as a result the traditional rules and principles for judicial review have been extended (see pp.01-2 for a discussion of this expansion: the evolution of ‘mandatory relevant considerations,’ introduction of balancing tests, and the increased ability of courts to delve into matters of policy or revisit questions of fact). Hunt argues this broadening constitutes an identification of “real grounds” of review finally capable of ensuring that substantive principles of good administration are applied where the ‘judicially manipulable’ WEDNESDBURY standard could not (p.106). A key issue of debate is whether public law as a whole should be broadened or whether bifurication, or a division between human rights cases and the rest of administrative law is preferable so that grounds remain narrow and constrained elsewhere. Hunt’s chapter takes an interesting look at issues such as judicial activism and deference, the duty to give reasons and [*81] culture of justification, the lack of clarity in relation to proportionality tests, and relative institutional competence. The rule of law, separation of powers, and the importance of the neutrality of the courts between citizen and state all loom large in this debate.

In canvassing the various arguments for and against bifurication, Hunt examines a number of Taggart’s works defending a bifuricated public law, particularly “Reinventing Administrative Law” (Taggart 2003) where Taggart argued constitutionalism and internationalism was broadening and undermining the classic model of administrative law; and “Proportionality, Deference and Wednesbury’” (Taggart 2008) where he argued for a ‘rainbow of review’ governing discretionary decision making. While Hunt argues against bifurication, and rather for a reconceptualisation of public law to broaden and, in his opinion, strengthen the law and prevent it from becoming ‘seriously retrograded,’ he agrees a clearer concept of due deference and more methodological, structured, and transparent framework is necessary (p.120).

Mike Taggart also had a strong interest in legal history, and the text contains a number of essays of a more historical nature, including chapters on the history of modern jurisprudence of aboriginal rights and one on the killing of prisoners at Agincourt which traces protections for prisoners of war.

Though diverse in their nature, it will be evident that almost all of the essays in A SIMPLE COMMON LAWYER take the authors back to the fundamental question of values in law and the role of the courts in applying those values. Some essays do this by examining the historical development of the law, such as Martin Loughlin’s chapter, ‘Why the History of English Administrative Law is not Written,’ which considers the values underlying Dicey’s rules-based regime. Others, like David Mullan’s chapter, “‘Because I Said So!’ Is That Ever Good Enough? – Findings and Reasons in Canadian Administrative Law,’ tackle the issue more directly. Still other chapters take specific concepts and principles and consider their use and merit today. David Dyzenhaus’ essay, for example, discusses the legitimacy of the rule of law itself, arguing that the concept is a moral ideal that provides legal protections in the form of requirements for natural justice and due process. As such, he argues that the concept provides an important moral resource upon which judges can rely in deciding hard cases.

A fitting tribute to Professor Taggart, A SIMPLE COMMON LAWYER offers an insightful, engaging and diverse collection of essays any public law enthusiast will thoroughly enjoy wading into. All the essays in the book reference, draw on or critique Taggart’s work in detail, and for those left craving still more, a list of Professor Taggart’s scholarly publications is provided in the back of the text.

REFERENCES:
Taggart, Michael. 2003. “Reinventing Public Law” in N. Bamforth and P. Leyland (eds). PUBLIC LAW IN A MULTI-LAYERED CONSTITUTION. Oxford: Hart Publishing. [*82]

Taggart, Michael. 2008. “Proportionality, Deference and Wednesbury.” 2008 NEW ZEALAND LAW REVIEW 423.

CASE REFERENCES:
ASSOCIATED PROVINCIAL PICTURE HOUSES v WEDNESBURY CORPORATION [1948] 1 KB 223.
YL v BIRMINGHAM CITY COUNCIL [2007] UKHL 27.

RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW, AND GLOBAL GOVERNANCE

2010-02-28T22:35:00.001-05:00

by Jeffrey L. Dunoff and Joel P. Trachtman (eds). Cambridge, UK and New York, NY: Cambridge University Press, 2009. 430pp. Hardback. $95.00/£60.00. ISBN: 9780521514392. Paper. $36.99/£19.99. ISBN: 9780521735490. eBook format. $30.00. ISBN: 9780511590559.

Reviewed by Ming-Sung Kuo, Yale Law School. Email: KUO [at] aya.yale.edu.

pp.73-77

Riding the wave of globalization, a global version of constitutional ordering transcending nation-states is being jubilantly envisioned. Echoing these institutional aspirations for constitutional ordering on a global scale, the normative ideals of constitutionalism such as human rights and rule of law are projected onto the world. Apparently a new era of constitutionalism is arriving. However, the transnational parallel between institutions and norms poses more questions than answers. Does it simply suggest a global expansion of constitutional democracy as we know it? Does the new era of constitutionalism herald a paradigm shift in thinking constitutionalism? These are the central concerns not only to policy makers but also to political scientists and legal scholars in the talks of global constitutionalism. RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW, AND GLOBAL GOVERNANCE, edited by Jeffrey L. Dunoff and Joel P. Trachtman, is a timely intervention in attempts to throw illuminating light on the landscape of constitutionalism in the unruly world that we have inhabited and inherited since the dawn of the modern system of international law.

This book consists of three parts, including thirteen chapters and a preface. Each chapter, as well as the preface, deals with practical and theoretical edgy issues of global governance in relation to constitutionalism. There are many ways to characterize global constitutionalism. As reflected in the structure and organization of this book, global constitutionalism opens up three new frontiers for theories of constitutionalism. In the first place is the new frontier of traditional international organizations and other legal regimes, which constitutes the theme of Part II. International organizations and other international legal regimes such as the United Nations (UN) human rights system are traditionally regarded as established and operating under the framework of international law. However, paralleling the pursuit of legalizing international relations (Goldstein, et al. 2001), traditional international organizations and other legal regimes are argued to have undergone or to be undergoing the process of constitutionalization. The foremost example of those that take the path of constitutionalization is the European Union (EU). However, the EU itself is in the process of constitutional transformation (Kuo 2009). Taking up the issue, Chapter 6, “Reframing EU Constitutionalism,” written by Neil Walker, illuminates whether the EU stands as the example or the exception to the current move toward global constitutionalism. [*74]

In addition to the EU regional body, the UN and the World Trade Organization (WTO) are showcases of how constitutional talks spread into traditional international organizations. These two examples are representative. The one has long been taken as a seminal world government; the other is emerging as the most powerful global regulatory regime and which includes a mandatory judicial type of dispute resolution mechanism. Reading these two international bodies through a constitutional lens is not beyond dispute, as reflected in the distinct attitudes toward them in the book. Raising the question whether the UN Charter is a global constitution in Chapter 4, Michael W. Doyle rests the constitutional reading of the UN Charter on the practice of “supranationality” in the UN operations. Defined as the institutional feature that “permits authoritative decisions without continuous [state] consent” (p.115), according to Doyle, supranationality suggests moving the UN regime beyond the definition of traditional international organizations. In contrast to Doyle’s cautious identification of supranationality in the UN practices, Bardo Fassbender (Chapter 5) unambiguously defends a constitutional rendering of the UN Charter by a comparative examination of the Charter and existing state constitutions.

Echoing the duo on the constitutional character of the UN, the collection editors, Dunoff and Trachtman, sing their duet on the WTO. While Trachtman sounds a positive note on the constitutionalization of the WTO in Chapter 8, Dunoff’s focus in Chapter 7 is on the politics behind the move to rethink the WTO as on the path of constitutionalization. Dunoff’s skepticism about various theories to characterize the WTO as a constitutionalized body stands in contrast to Trachtman’s embracing the WTO in constitutional terms. Still, both are concerned with the role of politics in the constitutional discourse regarding the WTO, although Dunoff adopts a critical stance, whereas Trachtman argues from the rationalist perspective of constitutional economics.

In addition to the regional and global organizations as noted above, international human rights regimes stand at the center of global constitutional talks. Less institutionalized and centralized than formal international organizations, such as the UN, the WTO, and the EU, international human rights regimes play an equally pivotal role in the development of international constitutionalism because of their normative importance. This theme runs through Chapter 9, “Human Rights and International Constitutionalism.” In addition to its exemplification of another dimension to the constitutionalization of traditional international legal regimes and organizations, Stephen Gardbaum in this chapter sheds light on the meaning of constitutionalizing international human rights law. With its acquiring higher law status among international treaties, direct effect in municipal legal systems, and the prescriptive role in relation to individuals, Gardbaum attributes constitutional character to international human rights law.

As a point of departure for Part III, the theme of the constitutionalization of international human rights regimes points to the second new frontier opened up by global constitutionalism: the crisscrossing of constitutional systems. [*75] While a constitutionalized international human rights regime seems to attain a higher status vis-à-vis national constitutions, the landscape of global constitutionalism is much more complex than the foregoing hierarchical relationship suggests. As Mattias Kumm notes in Chapter 10, what underlies global constitutionalism is a new “cognitive frame,” within which the nature of constitution is understood. By taking the cosmopolitan turn, Kumm reconceptualizes the relationship between international and municipal legal systems as one involving different constitutional domains, which is to be governed according to constitutional pluralism without being trapped in the monism vs. dualism debate in traditional international law. As a rule of engagement for distinct constitutional domains, constitutional pluralism rests its legitimacy on a complex procedural legitimacy, comprising jurisdictional legitimacy and due process. Notably, the former is embedded in the departure from the idea of sovereignty to the principle of subsidiarity. Kumm emphatically includes electoral accountability and standards of good governance derived from domestic administrative law due process under his twofold conception of due process.

Besides addressing other issues regarding global constitutionalism in putting forward his ambitious cosmopolitan “cognitive frame for imagining public law” (p.262), Kumm’s foregrounding the idea of constitutional pluralism sets the stage for the next two interventions in this collection in how to manage the crisscross constitutional landscape in the global era. In Chapter 11, Daniel Halberstam identifies constitutional pluralism as characteristic of the European legal order and the separation of power in the United States constitutional system. Despite differences, what is common between these two examples of constitutional pluralism is: “the unsettled nature of final legal authority is an enduring and essential characteristic of each system” (p.336). Taking constitutional pluralism seriously, Halberstam proposes constitutional heterarchy as the form of the organization of potential constitutional conflicts among different actors. Instead of grounding the organization of conflict in any hierarchy outside the system, the management of constitutional pluralism is conducted through the values of voice, expertise, and rights within the spontaneous, decentralized, and immanent ordering of constitutional heterarchy. Following this line of thinking, Miguel Poiares Maduro focuses attention on the changing role of the judiciary in the face of constitutional pluralism in Chapter 12. In addition to the required changes of the modalities of judicial reasoning in response to constitutional pluralism, Maduro brings to the fore the role of judicial dialogues in institutional choice. However, Maduro distinguishes between the teloi of the judiciary in the face of internal and external constitutional pluralism. In the context of internal constitutional pluralism where a certain legal order supported by its own political community is supposed, the telos of courts is to maintain the integrity and coherence of that legal order. In contrast, faced with external constitutional pluralism, courts are concerned with minimizing potential jurisdictional conflicts.

Concluding Part III on the crisscrossing of constitutional systems, Samantha [*76] Besson revisits the idea of constituent power in global constitutionalism in Chapter 13, suggesting the blurring of the boundary between international and municipal law. Framing her revised concept of constituent power on the model of the society of states, Besson argues for what she calls demoi-cratic legitimacy in the place of traditional democratic legitimacy. In showing the way out of the democracy deficit facing global constitutionalism, Besson also brings up a fundamental issue: the translation of constitutional ideas into global constitutionalism.

Together with the issue of translation, the causes and effects of the constitutionalization of global governance, which are framed as the question “what is constitutionalization beyond the state?” as the title of Part I indicates, constitute the third new theoretical frontier. In Chapter 1, Dunoff and Trachtman point out the three functional dimensions of global constitutionalism: enabling, constraining, and supplemental. The first two functions correspond to those tied to national constitutions; the third emerges in response to the changing relationship between international and municipal law. Also addressing the changes in the relationship between international and municipal law, Andreas L. Paulus examines the efforts of conceptualizing the international legal system as a constitution in Chapter 3. Departing the formalist position, Paulus urges a constitutionalist understanding of the international legal system under the substantial paradigm of constitutionalism.

Apart from the effects of global constitutionalism, both Paulus’s and Dunoff and Trachtman’s contributions identify the causes of global constitutionalism in the fragmentation of the international legal order. In other words, bringing order to the fragmented international legal system figures as the central concern to global constitutionalism. Echoing the current talks of global governance, Dunoff and Trachtman in their introductory chapter locate the aspiration to global constitutionalism in the context of economic globalization. Taking a different approach, David Kennedy provides critical perspectives on global constitutionalism. In Chapter 2, “The Mystery of Global Governance,” Kennedy recasts global constitutionalism as one among various efforts such as the project of global administrative law and the ideas surrounding new governance in the latest wave to bring the international system under the rule of law. Instead of taking the functional approach, Kennedy relates the emergence of global constitutionalism to the systems of knowledge production. In this train of thought, Kennedy’s intellectual history of global governance raises the same question as the late Thomas M. Franck asks in the Preface, “why constitutionalize?”

Underneath this sixty-four-thousand-dollar question lie more crucial issues fundamental to global constitutionalism: What is the added value for the international legal system to be called a constitution? What exactly is constitutional about current global governance? Is comprehensiveness characteristic of constitutional orders? The exploration of global constitutionalism in this book comes full circle here: Is global constitutionalism different from national [*77] constitutionalism? Are we entering a new era of constitutionalism, or instead are we facing the end of constitutionalism as we know it? These substantive issues regarding global constitutionalism run through the various essays, linking individual chapters to the general discussion on global governance beyond the collection itself. To be sure, none of these issues can be easily settled by a short essay because each of them touches the core of constitutional theories. To address these questions may need thirteen books rather than thirteen chapters in a collection. Still, both the structure of the book and the substantive discussion by each author reflect the width and depth of theoretical exploration that is required to address the diversity and complexity of challenges posed by global constitutionalism.

REFERENCES:
Goldstein, Judith L., Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter (eds). 2001. LEGALIZATION AND WORLD POLITICS. Cambridge, MA: MIT Press.

Kuo, Ming-Sung. 2009. “From Myth to Fiction: Why a Legalist-Constructivist Rescue of European Constitutional Ordering Fails.” OXFORD JOURNAL OF LEGAL STUDIES 29: 579-602.

THE ECONOMIC STRUCTURE OF INTERNATIONAL LAW

2010-02-22T00:26:00.000-05:00

by Joel P. Trachtman. Harvard University Press, Cambridge, MA and London, UK, 2008. 368pp. Hardcover. $55.00/£40.95/€49.50. ISBN: 9780674030985.

Reviewed by Dr. Sideek M. Seyad, Faculty of Law, Stockholm University, Sweden. Email: sideek.mohamed [at] juridicum.su.se.

pp.69-72

There are several academic publications on the application of the theory of law and economics in various branches of legal science, but it is quite rare and far apart to come across on a work dedicated to an economic analysis of the structure of the international legal system. This book, by professor Joel P. Trachtman, is therefore a valuable and timely contribution that fills a gap in this sphere of the legal science.

As acknowledged by the author, it is largely a compilation of articles he had previously published in a variety of law journals. The reproduction of an already published set of articles does not necessarily devalue the usefulness and quality of this book. On the contrary, by investing more time and intellectual energy, Trachtman has presented his thoughts in a more refined and qualitative manner in this book. He aptly describes his book as “an attempt to consolidate, integrate, rectify and extend” his thoughts.

This is certainly an outstanding piece of academic work, examining the complex structure of the international legal system from a law and economic perspective, both in depth and width. In the process of illuminating and highlighting the theory of law and economics of international law, Trachtman skillfully highlights and clearly and critically addresses a mixture of issues which are peculiar to international law. Some of the topics covered relate to treaty-making and jurisdiction, the rise, stability, and efficiency of custom, the establishment of international organizations, and the structure and role of international legal dispute settlement.

The allocation of legal power to States lies at the core of the book. Trachtman’s aim is not to focus on substantive international law issues, such as international environmental law, which in recent times has drawn enormous global attention, but his primary goal is to provide a comprehensive and tangible framework to ascertain and evaluate the formation and application of law in areas such as international environmental law, international trade law and international human rights law.

The issue of jurisdiction in the economic analysis of international law finds a prominent place throughout this book. Trachtman rightly points out that at the core of analysis of international law as a system is the question of jurisdiction. In the field of legal science, a clear understanding of the concept of jurisdiction is thus vitally essential for a variety of purposes such as prescription, adjudication, enforcement, and so on. Jurisdiction is an expression often used by lawyers to determine the nature and scope of allocation of authority. In [*70] layman language, the concept of jurisdiction refers to the manifestation of power or authority.

Trachtman forcefully asserts that even issues of cooperation, very often at the heart of international relations, are nothing more than a subset of the problem of allocation of authority or jurisdiction. He therefore begins with a study of jurisdiction as power and then follows its transfer through custom and treaty, thereafter examining the way States share it through organizations. Through the skillful application of this technique, Trachtman seeks to convince the reader that jurisdiction is the core issue in all of international law.

In further expanding on the issue of jurisdiction, the author declares that the assets traded in the international “market” are not goods or services per se, but assets peculiar to States, namely components of power or jurisdiction. Trachtman further declares that in international society, the equivalent of the market is simply the place where States interact to cooperate on particular issues to trade in power to maximize their preferences. Some of the potential sources of gains from exchange are clearly identified and explained in this work.

In the first two chapters Trachtman skillfully explains why States enter into transactions to form rules of jurisdiction and how such rules are formed and changed. He explains how transactions in jurisdiction take place and refers to customs, treaties and organizations as tools of States to engage in transactions in jurisdiction. Such tools are further developed in the following chapters dealing with allocation of jurisdiction, customary international law, treaties, international organizations and adjudication.

Chapter Three is devoted to ascertaining, by means of an economic analysis, why customary international law binds States. In this context, Trachtman develops a series of hypotheses to show why States tend to comply with customary international law. In situations where States fail to reach an agreement, he claims such a course of action as inefficient. According to his assessment, payoffs resulting from cooperation, such as transactions in jurisdiction, are greater than the payoffs from mutual defections. A similar line of hypotheses is drawn in terms of efficiency and asymmetry.

Chapter Four deals with creating Treaty rules in order to reallocate jurisdiction. They form one of the important sources of international law. Unlike customs, Treaties do not require proof of practice to be accepted as a legal source. They are established to trade in jurisdiction, and the European Union (EU) is a classic example in this context. It is through the medium of a series of international treaties that the allocation and reallocation of jurisdiction between the institutions and Member States of the EU are defined and established. Trachtman, by using the economic analysis theory, examines why Treaties are binding and he reviews the role of efficient breach in the Treaty. In the latter context, Trachtman explains that where the price of a breach is high, compliance will result.

An economic analysis of the role and functioning of international organizations is presented in Chapter Five. This chapter explains why States [*71] belonging to such organizations agree to share jurisdiction. Trachtman specifically pinpoints international organizations, such as the United Nations, World Trade Organization, North Atlantic Free Trade Agreement, EU, and the like, and examines to what extent and how they are designed to discipline the activities of States. He also explains what kinds of legislative authority should reside with these organizations and whether judges should be permitted to strike down national regulatory measures which are supported by reference to the developments in the EU, in particular the Single European Act 1986 and the GATT-WTO.

The conflicts among functional organizations are clearly presented in Chapter Six. In the process of globalization, the territorial limits of States have enormously diminished, and they are increasingly linked inter-functionally in areas such as trade, environment, health, security, finance, and so on.Trachtman suggests that the rules on free trade, for example, cannot operate in a vacuum. They cannot be completely detached from related issues, such as the environment, health or security. Such linkages are subjects of international law where the States try to secure the best concessions by resorting to different transactional forms. There are some interesting examples provided in this book, such as trade and non-trade issues which Trachtman further expands upon, linking trade and human rights in relations between the USA and Burma. An economic analysis to weigh the costs and benefits of such inter-functional linkages is clearly and efficiently highlighted in this chapter.

The last chapter deals with the role of adjudication in international allocation of authority. In the context of international law, the issue of adjudication could arise in a variety of situations, such as between States, between States and citizens, States and international organizations, international organizations and international organizations, and so on. Trachtman also examines the delegation of authority to judges and different kinds of roles they play in the process of dispute resolution.

Trachtman also offers a number of passing remarks that provoke further comment. He refers, for example, to the principle of subsidiarity in the process of economic analysis of international law. This is a well known doctrine to scholars who are familiar with EU Law. This doctrine found its way into the EU through the Maastricht Treaty in 1993 and was further entrenched by the Lisbon Treaty in December 2009. The aim of this principle is to delimit the area of jurisdiction between the institutions of the EU and its respective Member States.

Trachtman appears to portray the EU as purely a catholic society. He further claims that the subsidiarity principle is a product of Catholicism. These controversial and unqualified views need to be further qualified. It must be noted first and foremost that EU of twenty seven Member States is not a homogenous catholic society. Turkey, which is predominantly an Islamic State, is at the door step seeking full membership. Nor is the principle of subsidiarity something peculiar and entrenched only in catholic societies. The principle of subsidiarity is also a concept found and practiced from time [*72] immemorial in many other parts of the world, such as Sri Lanka and India, which also have a distinct and prominent catholic population but are predominantly Buddhist/Hindu societies.

In order to rebut the claim that EU is a pure catholic entity, it is useful to refer to two recent and significant developments in the EU. The euro was introduced in 1999 as the single currency, even though some Member States remain outside this monetary zone. There was much debate on the designing of the new currency, and the proposal from certain Member States to super-impose a picture of the holy Pope in the euro bank notes was shot down by some other Member States. At the time of negotiating the Lisbon Treaty, a small group of Member States suggested making specific reference in the Treaty to Catholicism, but this proposal was dropped as some Member States opposed it. The failure to reach a consensus in both these issues may rebut the assumption that EU is purely a catholic society. In countries like Sri Lanka and United Kingdom, the image of the President and the Queen are often depicted in their respective banknotes, and particularly in the constitution of Sri Lanka there is special reference to Buddhism, requiring the State to promote and protect it. If the EU is predominantly a catholic society, there would not have been any difference of opinion among the Member States to depict the image of the holy Pope in the euro banknotes and to make reference to Catholicism in the Lisbon Treaty as the religion of the EU.

Despite such trivial misgivings, there is no doubt this book is an invaluable and timely contribution to fill a gap existing in the literature on law and economics. I could without any hesitation recommend THE ECONOMIC STRUCTURE OF INTERNATIONAL LAW as an essential purchase to legal scholars and academics interested in application of law and economic analysis to this branch of the law. It will also be an excellent library addition to support any graduate or post-graduate courses specializing in the study of the economic analysis of international law.

COLONIAL PROXIMITIES: CROSSRACIAL ENCOUNTERS AND JURIDICAL TRUTHS IN BRITISH COLUMBIA, 1871-1921

2010-02-22T00:24:00.001-05:00

by Renisa Mawani. Vancouver, UBC Press, 2009. 288pp. Cloth. $85.00. ISBN: 9780774816335. Paper . $32.95. ISBN: 9780774816342.

Reviewed by David Murray, Department of History, University of Guelph, Guelph, Ontario, Canada. Email: dmurray [at] uoguelph.ca.

pp.66-68

Renisa Mawani, a sociologist, tells us in her first chapter that her book pursues the dynamics of European efforts to “civilize” and “deterritorialize” indigenous peoples and Chinese immigrants in British Columbia “by exploring the transnational and intersecting lineaments of colonial projects, the social and juridical knowledges that imperial circuits and mobilities produced, as well as the legal responses and modalities of governance that were inspired and enabled through the colonial regime’s production of competing racial truths” (p.4). This is, to say the least, quite a mouthful and begs the question, what is her key theme or themes?

There was, as Mawani points out, a growing and racially diverse population in the emergent colony (later province) of British Columbia in the mid to late nineteenth century which presented a variety of challenges to the majority European population and those who governed B.C. She believes, in her words, “that placing aboriginal European contact and Chinese migration in the same conceptual lens might illuminate the variegated forms, patterns and rhythms that underpinned colonial encounters and the racial epistemologies and modes of regulation that contoured imperial terrains” (p.7). But what exactly she intends by the use of the term “colonial” is never clarified completely, leaving the reader confused by a range of possible definitions and ambiguities. On p.100, for example, Mawani uses the terms “colonial administration,” “colonial government,” “colonial authorities” and “colonial truths” in a discussion about prostitution in the 1870s. The historian might point out that Canada became self-governing in 1867 and British Columbia joined the federation in 1871 as a fully-fledged province, the year the book begins. There may certainly be arguments to support the presence of a continuing colonial mentality in the new Dominion and in its westernmost province of British Columbia, especially in relation to the treatment of indigenous peoples and Asian migrants, but they need to be made more precisely and historically.

She argues that she is “less interested in producing a conventional historical narrative and more concerned with navigating and building a conceptual argument about the plurality of racisms in the colonial contact zone, one that brings histories of aboriginal-European contact into dialogue with those of Chinese migration” (p.30). Her argument is based heavily on Foucault and other post-colonial theorists. At times the superstructure of theory seems almost too heavy to rest on the more fragile structure of underlying historical [*67] evidence, intriguing though her examples are. In places the theory even threatens to overwhelm the historical examples.

In chapter three on “(White) Slavery, Colonial Knowledges and the Rise of State Racisms,” she begins with an examination of the rise of (white) slavery fears among the European population of B.C. early in the twentieth century, but she states that her real interests are “the racial knowledges, state racisms, and forms of governance they made possible” (p.81). She concludes that the prostitute in British Columbia “was a more ambivalent figure saturated by competing racial truths and targeted by unevenly applied laws and policies” (p.85). Here her argument is more successful, illuminating what she terms “discourses of slavery and prostitution [that] were both muddled and widespread” in the province (p.98).

Mawani also has a unique perspective in discussing juridical truths. She does not generally review judicial decisions or follow specific legal cases, pointing out in her conclusion that “juridical truths about race were not produced in the courtroom alone” (p.209). Instead she incorporates the law as part of her wider argument. For example, she briefly discusses the provisions of the Indian Act passed in the 1870s that sought to remedy aboriginal prostitution through laws and then tells us that when the Canadian government consolidated the Criminal Code of Canada in one act in 1892, the relevant legislation on prostitution was transferred to this Criminal Code in order to punish both Indians and non-Indians alike. Mawani highlights the fact that this did not work in British Columbia, any more than it likely worked elsewhere. In B.C. Indian Agents argued that the law was not likely to be a very effective tool against Indian prostitution. The Dominion Department of Indian Affairs went even further, suggesting that its mandate did not include prosecuting Indians for prostitution offences, whereas it did acknowledge a responsibility to prosecute liquor offences because revenue was involved. The Department’s philosophy was that “where a revenue is derived the work should be done and expenses borne by the Department which benefits from the revenue” (p.101).

The main strength of Mawani’s monograph is her discussion of the wide range and complexity of cross racial encounters in B.C., encompassing labor in the salmon canneries, prostitution and the illegal liquor trade. The prohibition of liquor sales to the Indians was part of the Indian Act, and in B.C. complaints about Chinese men illegally selling liquor to the Indians were commonplace. For Mawani the growing traffic in illegal liquor “consolidated two distinct but related rationalities of government: the moral improvement and advancement of aboriginal peoples and the expulsion and exclusion of Chinese migrants” (p.126). She uses the Royal Commission on Liquor Traffic in Canada (1894) to demonstrate how government officials and missionary agents “created and ordered racial subjectivities” (p.126) Mawani contends that liquor regulation in British Columbia was really another attempt to restrict “interracial proximities in geographical terms” (p.127). [*68]

She does effectively use one legal case from 1906 involving the prosecution of a white man named Hughes for illegally selling liquor to an Indian to illustrate how “the indeterminacies of racial identity” – i.e. the difficulty of actually determining who was and who was not an Indian – confounded the authorities in their efforts to control the illegal trade in liquor to the aboriginal population. Hughes’s appeal against his conviction was allowed after the judge determined that the man who bought the liquor was not an Indian based on contemporary testimony. For Mawani, the Hughes case illustrates that the way “Indianness” was determined, through a “dual emphasis on biology and history,” also underlined how “elusive, fraught and difficult to locate on the ground” such a definition could be (p.177). The definition was crucial to a number of legal cases, especially those arising from prosecutions over liquor offences, and this meant that the continuing ambiguity had serious consequences for the people concerned.

Mawani ends her book on a more positive note, chronicling efforts in 2005 by the Nisga’a nation and the Chinese Canadians in Vancouver to effect a reconciliation and again the following year when both aboriginal and Chinese war veterans walked together at the head of the Chinese New Year parade. Mawani acknowledges that she has asked a different set of questions to illuminate what she terms “British Columbia’s colonial contact zone” and in the hope that they might “eventually lead to new ways of living and being.” Her book is not an easy read, but it is based on thorough scholarship. The issues of race in late nineteenth century and early twentieth century British Columbia resonate far beyond the borders of Canada’s westernmost province.

THE FOUNDING FATHERS RECONSIDERED

2010-02-22T00:23:00.001-05:00

by R. B. Bernstein. New York: Oxford University Press. 2009. 238pp. Hardback. $17.95/ £11.99. ISBN: 9780195338324.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: rushm [at] wlu.edu.

pp.63-65

R.B. Bernstein’s THE FOUNDING FATHERS RECONSIDERED is a brief, highly accessible and thoughtful analysis of the thought, impact and lives of the Founding Fathers. As he notes in the introduction, he seeks to “brush aside caricatures” that “oversimplify” the Founding Fathers and what that “remarkable, fractious group of statesmen, politicians, journalists, farmers and soldiers tried to do” (p.x).

In the passage that perhaps best summarizes the spirit of this book, Bernstein says:

At a distance of more than two centuries, it remains difficult to disentangle the founding fathers from their principal achievements – the creation of an independent nation, with a vigorous and adaptable form of government and a body of liberties that, they hoped, would be a model for the world. Because these achievements were the product of collective deliberation, we remember the founding fathers as a group: many historians, politicians and jurists have praised them as the most creative and learned gathering of statesmen in American history; among the greatest such gatherings the world has ever seen. At the same time, especially beginning in the second half of the twentieth century, we have come to recognize the founding fathers’ limitations and failings, and we have struggled to balance gratitude with recrimination in assessing them. (p.116)

Bernstein reminds us that the constitution is the result of compromise among heroic, but human characters. Despite its success, the constitution they produced has its flaws. Given the current constitutional crisis in California and the outbreak of shock and public hand-wringing over the special deal cut in the Senate to win the support of Nebraska Sen. Nelson for the health care bill, a book such as Bernstein’s could not be a more timely reminder that the founders’ constitution was designed to control, not perfect politics.

In Chapter 1 (“Words, Images and Meanings”), Bernstein establishes his point of departure. Acknowledging a 1916 speech by Warren Harding as the first recorded reference to the “founding fathers,” Bernstein notes that the reference is protean and includes many characters in addition to the seven key leaders noted by Richard Morris (Franklin, Washington, John Adams, Jefferson, Jay, Madison and Hamilton). Nonetheless, Bernstein uses Morris’ roster as his guide throughout this monograph.

In Chapter 2 (“Contexts: The History that Made the Founding Fathers”), Bernstein discusses a colonial political milieu characterized by a “cautious, transforming egalitarianism” (p.26). He emphasizes the diversity of thought and intellectual traditions that informed the [*64] American enlightenment. Laying the groundwork for a key theme of the book, Bernstein maintains that this diversity and the differences of opinion that it caused among the colonists belie any attempt to suggest that the Founding Fathers adhered to any one, discrete intellectual framework (pp.34-38).

This, I believe, is the most important aspect of THE FOUNDING FATHERS RECONSIDERED. Bernstein eloquently discusses the contributions, struggles, flaws and virtues of the seven key founders throughout the book. However, if there is a constant theme, it is that they were divided over many issues. While they were unified in the common cause of rebellion, they divided (not surprisingly) about the minutiae of constitution making and the philosophical details and interpretations that gave meaning to the new nation’s form of government. Accordingly, at various points in the book, Bernstein takes pains to dismiss notions of a clearly defined, coherent “original intent” of the Founding Fathers.

In Chapter 3 (“Achievements and Challenges: The History the Founding Fathers Made”), the longest of the book, Bernstein elaborates on this theme. He discusses the differences of opinions that arose among the founding generation. Fortunately, the nation was able to overcome them in order to draft the new constitutional order in the wake of the failure of the Articles of Confederation. Bernstein attributes this to the ongoing experiments in constitutional design in the states that informed the discussion that took place among the delegates in Philadelphia (p.50ff). As well, the inclusion of a mechanism to amend the new constitution helped to assuage fears about its allocation of power between the federal and state governments.

Bernstein emphasizes the importance of the shared sense that the constitution was indeed a popular creation. Despite the ongoing tensions and debates about restricting and empowering governments, the necessity of bills of rights, the relationship between church and state and fears about popular rule, the clear sense and evidence of popular input into state and later federal constitution-making ensured that the process leading to the new constitution would enjoy a popular legitimacy that was lacking in legal codes set forth by great lawgivers such as Solon (p.58ff.).

The differences of opinion about the new constitution’s interpretation and application rendered it an “exploding cigar” (p.109). From the outset, Bernstein says, what the founding fathers meant or desired was an ongoing topic of debate and controversy. Beginning with debates between Jefferson and Madison on one side and Hamilton on the other concerning the scope and powers of the federal government and continuing mid- to late twentieth century debates about presidential powers, the conduct of foreign affairs, and the role of religion in public life, Bernstein notes in Chapter 4 (“Legacies”) the folly of trying to divine clearly what the Founding Fathers meant. He concludes Chapter 4 with a final rejection of the notion that we can divine the original intentions of the framers. Citing John Jay, Bernstein says that “attempts to seek guidance from the making of the Constitution are unavailing – because we seek to apply the ideas of framers or ratifiers to questions they could not have foreseen . . . or [*65] because we take them out of context” (p.167).

Insofar as one of Bernstein’s goals is to take the Framers down from their pedestals without knocking them down (p.xi), his discussion of the divisions among them and his resulting assertion that we really cannot discover their one, clear original intent hits his mark. Nonetheless, I found that the book leaves the reader hanging.

He notes in the epilogue that a gap continues to exist between the ideals and the reality of the American experiment. The ends of the experiment are, he notes, to perfect the union (p.176). In achieving his goal of “de-mythifying” the framers, Bernstein leaves the reader wondering how to bridge that gap and what a perfected union would look like. In making a quiet, thoughtful case against the notion of original intent, Bernstein also removes one of the touchstones of American constitutional debate. Without an understanding (or at least, an inkling) of what the framers had in mind in terms of a perfect union, the nation’s constitutional debates that Bernstein describes have no clear direction and the participants in them have no compass.

In fairness, Bernstein does not set out to resolve this problem. Still, it leaves the reader wondering at the end of the book. Overall, THE FOUNDING FATHERS RECONSIDERED is a thoughtful, accessible read that will appeal to broad audiences looking for an introduction to the founding era, the role of the key figures upon whom Bernstein focuses, and the basis for the enduring debates that shape our understanding of the founding era and constitutional controversy.

REFERENCES:
Morris, Richard B. 1976. SEVEN WHO SHAPED OUR DESTINY: THE FOUNDING FATHERS AS REVOLUTIONARIES. New York: Harpercollins.

COMMUNITIES, CRIME AND SOCIAL CAPITAL IN CONTEMPORARY CHINA

2010-02-08T15:46:00.000-05:00

by Lena Y. Zhong. Devon, UK: Willan Publishing, 2008. 256pp. Hardback. £45.00/$79.95. ISBN: 9781843924050.

Reviewed by Xiangfeng Yang, Politics and International Relations, University of Southern California and Ying Li, Department of Politics and Public Administration, University of Hong Kong. Email: xiangfey [at] usc.edu.

pp.59-62

Lena Zhong’s COMMUNITIES, CRIME AND SOCIAL CAPITAL IN CONTEMPORARY CHINA is no common work of criminology. This book boldly explores the origins and effects of social control and crime prevention measures in China by utilizing social capital as a possible framework, thus providing a new perspective to observe the phenomenon. While she uses comparative empirical case studies to test and challenge the applicability of Western criminal theories in the Chinese context, her focus is not limited to the effectiveness of community crime prevention itself. In fact, she vividly captures and presents the changing social capital patterns underlying a broader picture of political and economic transitions in the post-Mao China. Based on a large volume of rich secondary data, Zhong probes the effects of the “Building Little Safe Civilized Communities” (hereinafter, “BLSCC”) program that the government claims to be positive. The surveys and interviews conducted on-location in these communities, however, reveal a different story: effectiveness varies community by community. Linking the nexus with social capital, Zhong argues that the effective enforcement of BLSCC (or, broadly speaking, public social control) lies in both the vertical and horizontal aspects of social capital that have been undergoing profound changes as a result of the broad socioeconomic and political developments in China since the early1980s.

The book is composed of three parts. Part 1 includes Chapters 1 and 2, which outline the issue and provide an overview of the city of Shenzhen where empirical evidence is collected. Part 2 encapsulates Chapters 3, 4 and 5, which include the author’s understanding of Western theories that interpret crime as social phenomena, as well as a review of the customs and disposition of social infrastructure in China. The contrast between Western and Chinese society indicates that the emergence of community crime prevention derived from a complex setting of relational networks and the resources engaged therein, thus exposing the role of social capital. Chapters 6 through 9 constitute Part 3. Social control policies – especially the BLSCC program and Zhong’s field work – are elaborated here to examine how social capital influences the effects of social control or crime prevention mechanisms from a micro perspective. Zhong concludes that social capital matters greatly in facilitating effective community crime prevention mechanisms, as seen especially from the significant impact of the vertical linkages on institution building. Finally, Chapter 9 summarizes the entire [*60] research journey and conclusion, and suggests new directions of future study.

Recent theories in the West on crimes have shifted their research scope from individuals to the community level, and from punitive to preventive measures, although in reality the society and the government pay attention to both aspects. In China, the field is straitjacketed by various political constraints and difficulties in obtaining objective, first-hand data. Zhong endeavors to make up for this deficiency by inserting the conditions of social capital and choosing Shenzhen for her empirical study. Being one of the first experimental reform zones, Shenzhen has seen waves of migrants pouring into the city looking for opportunities. Despite the dramatic change in demographic structure, old segregation policies like household registration (hukou) remain. Indigenous residents, too, may have changed their behavioral patterns and ideological inclinations via their intense interaction with the rest of the region. Hence, tension between the past and present generates dilemmas and contradictions, while traditional ties within and among different actors are mixed with new features. All in all, Shenzhen displays a condensed picture of the problems and trials that have exploded across China, proving the venue is a suitable and smart choice.

There are three identified variables in the surveys and interviews Zhong conducted. The first regards how to positively test the mutual interaction within the community and in what patterns the connections are manifested. The second variable looks at how residents perceive the public security situation. This can be an indicator to measure the relationship between actors of different communities. The third variable invites interviewees to appraise the effectiveness of BLSCC, thereby reflecting the different outcomes owing to the aforementioned disparities.

The main idea and analytical framework are elaborated in Part 2. Modernization has brought about globalization, which, paradoxically and simultaneously, reinforced localism. As the formal social control institutions were exposed as incapable of coping with the deteriorating situation, an appeal of returning to the local community attracted much attention. On the theoretical level, scholars now regard the rising crime rate as a concomitant symptom of modernization rather than an aberration, and a public issue instead of a private affair. Research trajectories have been transferred from an individual to a more community-based or societal level. Under this rubric, many crime prevention models that emphasize strategic partnerships and informal social sanctions as alternatives to punitive measures have emerged. The links between crime prevention and social capital are therefore established. Zhong’s concept of social capital stresses both the networks and a desire to invest in cultivating those networks. Both longitudinal and latitudinal dimensions of social capital are important in augmenting the ultimate sum. The author claims that various crime prevention theories (social disorganization theory, opportunity reduction theory, and broken window theory) prove the strength of social capital in explaining the crime prevention paradigms. Notwithstanding, refocusing on the community does not mean that the role of the state can or [*61] should be excluded. As a matter of fact, the bonding and bridging patterns of social capital already imply an intersection between the society and the state.

After reviewing the Western theories, the final part of the book is dedicated to the Chinese scenario. One of the profound historical impacts of Confucianism is that the Chinese people tend to conceptualize the law as a tool instead of as an institution. Breaches of law can be forgiven in light of “moral merit,” whereas familial relations (or guanxi) are above the law. In terms of the organization of the modern social fabric, Chinese society is an intrinsically and intimately woven collective but isolated from the outside. Zhong agrees with the “ripple” model articulated by Fei (pp.80-82, 84) and the “honeycomb” model elucidated by Shue (pp.82-85). In such a low-mobility environment, interpersonal ties demonstrate strong power. The book parallels the discourse of guanxi in Chinese society to the conception of social capital in the West, and encourages the reader to consider the positive meaning of the word. Guanxi is a tie that extends beyond family or kinship to help maintain the smooth operation of social relations and facilitate reciprocal favors. Individuals and entities believe that guanxi enables them to increase familiarity with and express trust with others, reduce transaction costs and increase the desire to exchange favors. Though the traditional setup of society has disintegrated, the belief in guanxi has never faded.

Given the conventional understanding of interpersonal relations and social values in China, the discourse on crime and social control paradigms echo the ideology underneath. On the one hand, crimes and criminals are often morally judged. On the other hand, the traits of a communist state determine the government’s high sensitivity to crimes that threaten social stability. As such, crackdowns on crime have been put at the top of political agendas. Therefore, household registrations, neighborhood committees, work units and public security organs have been constructed not only to prevent crime but also to accommodate the state’s needs for governance. Household registration drew a sharp line between the urban and rural populations, and helped restrict population flows from the countryside to the cities. For urban residents, as their life was largely regulated by their work units and neighborhood committees, people formed a society of acquaintances with boundaries. This was particularly true before the mid-1990s, when state-owned enterprises constituted the majority share of the national economy. Above the basic infrastructure of social control institutions stand the public security organs, which not only fought real crimes but also functioned to guarantee the corporate security management with grassroots communities. The web was knit tightly, insomuch that the social order was sustained and the segregation among different communities preserved. Interestingly, unlike in the West, although driven by state power, Chinese crime prevention has been community-based.

Yet over the past decades crime rates increased dramatically while patterns of crimes also multiplied. The old mechanisms lost their appeal, and new ways of social control are needed. In [*62] Shenzhen, stern measures were employed to guard public order, while innovation of community crime prevention also emerged. The “Comprehensive Management of Social Order” (hereinafter, “CMSO”) policy set the tone on an all-out scale campaign which mobilized both formal and informal institutions. The BLSCC program took shape as the embodiment of the CMSO campaign in Shenzhen. In addition to emphasis on ideological and legal education, the highlights include mass prevention and management tactics. Situational measures and moral education are imposed upon individual dwellers. Grassroots organs are encouraged or required to cooperate with public police. The migrant population is set as the main target of scrutiny. The state once again plays a crucial role in organizing various societal textures and resources. Zhong hereby convincingly argues that the Chinese crime prevention paradigm cannot be simply explained in the same state-society dichotomy that serves the West.

The variance in the assessments of the BLSCC program also supports one of Zhong’s major hypotheses: all things being equal or similar, a web with good links to connect to other chains is able to function better. In other words, the relations with actors outside the immediate community will increase the “bridging” social capital, hence helping to build a more secure and safer environment. In the end, the author seems to imply that a sound relationship with government significantly affects the final program.

COMMUNITIES, CRIME AND SOCIAL CAPITAL IN CONTEMPORARY CHINA is an insightful and creative study of crime prevention. Both the theoretical implications and empirical discoveries shed new light for future research. Although evidence might be constrained by artificial barriers, the final conclusion deduced from the available data appears convincing. While parts of the book are oddly organized, the overall work is coherent. For further improvement, the book would have been even better if the relations between bonding and bridging social capital could be illustrated more for the sake of the conclusion.

THE SUPREME COURT AND THE IDEA OF CONSTITUTIONALISM

2010-02-08T15:45:00.001-05:00

by Steven Kautz, Arthur Melzer, Jerry Weinberger, and M. Richard Zinman (eds). Philadelphia: University of Pennsylvania Press, 2009. 328pp. Cloth. $49.95/£32.50. ISBN: 9780812241662.

Reviewed by Sonu Bedi, Department of Government, Dartmouth College. Email: Sonu.S.Bedi [at] dartmouth.edu.

pp.55-58

Most work on American constitutional law explores issues of constitutional interpretation and development, legal history, doctrinal or case law analysis, or social and political rights. THE SUPREME COURT AND THE IDEA OF CONSTITUTIONALISM is a provocative and illuminating series of essays that interrogates the very idea of constitutionalism rather than any one particular constitutional theory of interpretation or analysis. According to the editors, “[r]eflection on the character of the politics of constitutionalism is the overarching theme of this volume” (p.4). The ensuing essays do not so much consider the politics but rather the logic, theory, and system of constitutions. That is, what does it mean to have a constitution? What are the central features of American constitutionalism? What is the relationship between a constitution and the people it governs? What is the role of the judicial branch in a well functioning constitutional system? In what ways do constitutions differ in character? These are important questions, ones that, as the editors correctly point out, move “beyond the questions that divide the parties of the day” (p.1). The essays primarily discuss the logic of the United States Constitution,with two essays taking a more comparative perspective. The volume is divided into five Parts.

Part I analyzes the philosophical underpinnings of the idea of constitutionalism. Nathan Tarcov asks us to look to the history of political philosophy in better appreciating what it means to have a constitution. Drawing from Plato’s LAWS and Aristotle’s POLITICS, Tarcov suggests that the mixed regime (or “second best” regime) informs the ancient notions of constitutional government. These notions “are not based on a naïve or idealistic faith in the goodness of human nature . . . on the contrary, they recognize the necessity of countervailing institutions to check the universal human inclination toward tyranny, hubris, and pleonexia” (p.29). Tarcov connects this all-too-familiar logic of checks and balances with the modern idea of constitutionalism, one that incorporates Machiavelli’s take on foundings and the significance of Lockean consent. Rather than seeking commonalities between the ancient and modern ideas, Steven Kautz defends the distinctive liberal idea of constitutionalism, one which privileges the rule of law over private judgment. A core component of this liberal conception is “We the People.” Kautz defends it from classical objections that it is just a partisan description, one that does not rise above a partial conception of justice. In analyzing the alleged “nonpartisan” notion of “We the People,” Kautz seeks to temper the [*56] commitments of liberal constitutionalism.

Part II takes a historical approach to understanding American constitutionalism. These essays all tackle the problem of judicial review. In particular, they explore the textual, philosophical, and historical question of whether the Supreme Court ought to be the privileged interpreter of the Constitution. That is, leaving to one side one’s favored theory of interpretation, what role, if any, should other co-ordinate branches have in speaking upon constitutional issues? All too often we assume that the Supreme Court has the final say in constitutional matters. These essays interestingly question this assumption. Michael Zuckert analyzes this issue by considering three “essential institutions” proposed by James Madison that the constitutional convention ultimately rejected. These included: “a council of revision, a congressional negative on state law on behalf of federalism, and a congressional negative on state laws on behalf of individual rights and justice” (p.57). Zuckert argues that the convention’s rejection of these bodies informs a Madisonian view of judicial review that is ambivalent even paradoxical: the Court “has the implicit duty to be more than a legal institution” but “it has the explicit duty to be nothing but a legal” one (p.77). Leslie Friedman Goldstein looks to two “peaks of excellence in the history of judicial review[:]” “the jurisprudence of John Marshall” and “the decision in BROWN v. BOARD OF EDUCATION (1954).” She argues that we consider these “peaks” not so much on the basis of the reasoning deployed by Marshall or the BROWN court. Rather, our admiration arises because in these instances the Court “correctly discerned and delineated the constitutional principle at stake and . . . deployed the judicial statesmanship required to make the principles stick as a matter of the rule of law” (p.87). James Stoner squarely confronts the question of who has the authority over the Constitution. He appeals to various instances of early constitutional resistance in the face of the Court’s supremacy including the passage of the 11th Amendment overturning the Court’s expansion of federal jurisdiction in CHISHOLM v. GEORGIA (1793) and Andrew Jackson’s veto of the Second United States Bank on constitutional grounds. Stoner draws from these cases to suggest that “constitutional resistance” invariably entails a kind of compromise. As Stoner points out, we must be willing to “admit that there are two sides to most constitutional questions and that the genius of constitutionalism is in acknowledging this fact and providing forms to accommodate it” (p.111).

Part III considers the underlying logic of non-American constitutions. Mark Tushnet’s essay recovers James Bradley Thayer’s “weak-form” of judicial review contrasting it with the “strong-form” practiced in the United States. Countries that practice a weak form of review include New Zealand, United Kingdom, and Canada. For example, the New Zealand Bill of Rights mandates that “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meanings” (p.120). Weak judicial review permits other branches to interpret a constitution. The strong form on the other hand, exemplified by such cases as CITY OF BOERNE v. FLORES (1997), [*57] contends that the Court is the privileged interpreter of the Constitution. No other branch may interpret the Constitution even if the interpretation is reasonable. Tushnet contrasts these types of judicial review and their implications for a dialogical account of constitutionalism in which co-ordinate branches speak to one another. Instead of focusing on the varying intensities of judicial review, Gary Jeffrey Jacobson draws our attention to the relationship between constitutional tradition and the regnant social order. In forcing us to step back from any particular constitution, he distinguishes between acquiescent constitutionalism, a constitutional logic that seeks to preserve social order, and militant constitutionalism, one that seeks to transform it. Counter-intuitively he argues that the United States Constitution is far more preservationist than militant, drawing a contrast to the Indian Constitution. Jacobson argues that whereas the Court in REYNOLDS v. UNITED STATES (1878) pointed out that polygamy was “subversive of good order” the corresponding Indian supreme court decision argued that an anti-polygamy program created “good order.” “The juxtaposition of the defensive rationale of the American Court and the proactive reasoning of its Indian counterpart directs our attention to the contrasting ways in which the two constitutions relate to their respective social orders” (p.151).

Part IV analyzes the tension between democracy and constitutionalism. Larry Alexander revisits the question of what role the Court ought to have in our constitutionalism. He clarifies what is at stake in this debate by making the issue one of institutional competence. “Both ordinary majoritarian legislative decision-making and judicial decision-making are to be judged by how well they perform their tasks. Institutional design, including whether legislatures should be constrained by constitutional limits . . . is a matter of epistemological and motivational superiority, not a matter of moral principle” (p.168). Robert P. Young, Jr. defends a kind of judicial traditionalism or orginalism against what he calls the “Rorschach School” of interpretation. In particular, he sets his sights on Justice Breyer’s theory of “Active Liberty.” While he draws from the Constitutional convention to de-emphasize the role of the judiciary, his essay is less about constitutionalism and more about arguing for a particular theory of constitutional interpretation. Rogers M. Smith tackles the puzzle of democratization and what he calls “juristocracy.” That is, what accounts for the following two seemingly contradictory trends: “the spread of democracy” and “the rise of courts with the power to invalidate national legislation” (p.199). Drawing from Machiavelli’s political sociology of the grandi (the great) and the popolo (the people), Smith suggests that power of judicial review is driven by elites. Elites invest courts with the power to review democratically enacted legislation in order to ensure (at least partially) their “hegemonic status” (p.203). In doing so, they seek to temper the power of democracy.

Part V understands constitutionalism via politics. Keith Whittington’s contribution – which focuses more on the political character of constitutionalism than the other essays – locates the binding nature of [*58] constitutions in political practice. Eschewing a more theoretical approach, Whittington provocatively argues that we “cannot expect constitutionalism to operate outside of politics.” Rather, constraints imposed by constitutions “might fail because of politics, but they also must be maintained through politics” (p.223). Benjamin A. Kleinerman concludes the volume by considering the Supreme Court’s treatment of the constitutionality of cases implicating executive prerogative. He argues that the Court’s decisions in this area perversely contribute to the people’s willingness to pass the constitutional buck. In particular, “the court’s tendency to interpret the Constitution legalistically” to control executive action discourages Congress’ role in deploying the Constitution politically (p.251). Implicating the essays of Part II, Kleinerman laments the identification of American constitutionalism with the privileged role of the judiciary.

Often individual essays in edited collections run on their own tracks with no real sense of the arguments being made by their fellow contributors. Thankfully, this volume avoids such a charge. Given that the essays were drawn from two conferences, a virtue of the book is that the contributors do seem to be responding to and taking into account the arguments of their fellow contributors. This is not simply in direct reference to other essays in the volume but rather a keen sense that the contributors are all exploring a similar constellation of puzzles including the underlying theory of constitutionalism, the rule of law, the privileged status of the Supreme Court, the existence of judicial review, the relationship between the people and constitutionalism, and the character of a constitution. This volume would be of interest to scholars in political science and theory, public law, comparative constitutionalism, and, of course, constitutional law.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
CHISHOLM v. GEORGIA, 2 U.S. (2 Dall.) 419 (1793).
CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).
REYNOLDS v. UNITED STATES, 98 U.S. 145 (1878).

ARRESTING ABUSE: MANDATORY LEGAL INTERVENTIONS, POWER, AND INTIMATE ABUSERS

2010-02-08T15:40:00.001-05:00

by Keith Guzik. DeKalb: Northern Illinois University Press, 2009. 238pp. Cloth. $34.00. ISBN: 9780875804033.

Reviewed by Sawyer Sylvester, Department of Sociology, Bates College, Email: ssylvest [at] bates.edu.

pp.51-54

Keith Guzik’s ARRESTING ABUSE is based on his research into the practice in many jurisdictions of enhancing the criminal prosecution of domestic abuse cases by adopting mandatory arrest policies for the police and no-drop policies for the prosecution.

The process of arrest has always involved wide discretion on the part of the arresting officer, far beyond the determination of probable cause and often influenced by the demeanor of the offenders as well as the personal feelings of the officer about the seriousness of the harm. Discretion on the part of a public prosecutor is even greater, including the sole and unreviewable discretion whether to prosecute at all, despite the nature of the offense or the seriousness of the harm.

Critics of such discretionary practices might suggest that they are especially dangerous in domestic abuse since failure to arrest in these cases leaves the complaining partner at the mercy of the partner about whom a criminal complaint has just been made. Failure to prosecute may have much the same result.

Mandatory arrest and no-drop prosecution policies have been developed in this context. The former requires police in domestic abuse cases to make an arrest solely on a showing of probable cause, and the prosecutor to go forward in all such cases – even in cases where the abused party recants. The actual criminalization of domestic abuse is unexceptional. After all, the victim of threats and assault is as much a victim of crime as one similarly victimized who is not in a domestic relationship. The exceptional element is the withdrawal of discretion from the agents of the state.

These policies are not without their critics. Some feminists, for example, have suggested that disallowing an abused woman to influence the decision whether to prosecute her abuser is to deny her any agency in the matter and to paternalistically enforce the state’s solution to the problem on her to the exclusion of all other outcomes. And the expanding criminalization of a variety of social problems Guzik feels is yet another example of Jonathan Simon’s concept of “governance through crime” (Simon 2007).

Still, if the end of that “governance” is to reduce the likelihood of the prosecuted domestic abuser reoffending, it must work as an effective deterrent. Guzik observes that what few studies there are of mandatory arrest and no-drop prosecution policies suggest that evidence of their success is quite thin. In addition, he notes that none of the studies has taken into account the [*52] abuser’s own reactions to the experience of arrest and prosecution.

It is not alone what the agents of the state do in regard to the abuser, and the meanings they attach to those acts, but also how those acts are perceived and given meaning by the abuser himself. It is only by considering these meanings that one may then ask whether mandatory arrest and no-drop prosecution policies improve the deterrent force of criminal sanctions. To try to answer that question, Guzik uses a number of techniques to gather qualitative data on the events and perceptions connected to these policies. These include: ride-alongs with police on domestic abuse calls, field research at court hearings, and interviews with thirty individuals arrested and prosecuted for domestic abuse.

Guzik’s observations of police behavior during domestic abuse calls make up the first chapter of the book. He notes that there has been a significant change in the manner in which police deal with domestic violence calls, not only as a result of a high degree of compliance with mandatory arrest policies in place, but also because of general improvement in the organization and education levels of police departments in general. Perhaps such improvements supply a context in which mandatory arrest becomes a more acceptable practice.

The arrival at the scene of domestic abuse by the police is no longer the siren-filled assault it once was. The police tend to be far less confrontational and to introduce the force of the state in such a manner that multiple officers quietly occupy the location and engage in what Guzik calls “the artful distribution of space” (p.31). They separate the abuser from the abused, ensure the safety of officers, and quietly explain why an arrest may or may not be the necessary legal outcome of the events as the police have defined them.

At the end of this chapter, as with all the following chapters, there is a useful discussion section. For the chapter on the police, there is a discussion of the racial implications of mandatory arrest as well as a discussion of “The Gendered Performance of Domestic Violence Policing” (p.48).

In the second chapter on no-drop prosecution, Guzik makes use of the “courtroom workgroup” concept. In this classic bureaucratization of the justice system, the ends of justice are gradually lost in the effort to efficiently process as many cases as possible – an end seen as the greatest good for all parties. Too many cases face courts, prosecutors, and public defenders alike, a problem only made worse by no-drop policies. As a result, it is in the interest of everyone in the “workgroup” to have the accused plead guilty and not go to trial. Guzik describes in considerable detail many of the techniques used to bring this about: aggressive charging, manipulation of bond conditions, and the use of physical evidence in place of reluctant and often unreliable complainants.

A domestic abuser may stoutly protest his innocence at the beginning – and may actually believe it. But the time when that assertion is most crucial is far off, at trial. Long before then, the legal process is engaged in a subtle redefinition of the abuser’s identity and autonomy. First, he is an arrestee, then in jail a prisoner (and if not bonded, [*53] stays that way). At arraignment, he is officially accused and may likely be made subject to a no-contact order, and when he finally meets his advocate, the latter may be more interested in disposing of the case quickly than in trying anything but a sure win. All the while, many will be trying to convince him to cut his losses. And at the end of this process his redefinition of self may have convinced him that he no longer may have much innocence to protest, especially if his vision of innocence has been redefined. As with the previous chapter, the chapter ends with a discussion of the implications of no-drop prosecution for issues of race and gender.

Guzik begins his discussion of the domestic abusers in his study by acknowledging that they can demonstrate a variety of violent and coercive behaviors. Abuse can be “coercive control” alone or with violence, and violence can exist alone or with “coercive control.” Guzik finally selects a typology for his research findings based on one suggested by Michael Johnston (2006) consisting of “situational couple violence” and “intimate terrorism.” Guzik is able, based on police reports, criminal history records, and abusers’ own accounts, to classify 25 of his 30 subjects into one or the other of these two classes.

It is from domestic abusers’ own accounts of their experiences of mandatory arrest and no-drop prosecution that Guzik derives his most interesting and revealing conclusions. The data from these accounts are framed within the context of power but power seen as a social relationship in flux, a relationship in which the justice system usually has the upper hand but which does not deny the abuser all agency. He can resist, create delay, and ultimately play the hole card – insist on a trial, although relatively few abusers do.

Not surprisingly, many abusers faced with the full power of the state, fueled by mandatory arrest and no drop policies, feel that they are being unfairly treated, and for behavior which over time they may have convinced themselves is justifiable. The special procedures of mandatory arrest and no-drop prosecution, together with jail detention, difficult bonding, and no-contact orders, seem to them to be punishment at the beginning of the criminal justice process instead of at the end where it should be. In fact, asserting that their abusive behavior was justified was common to the narratives of Guzik’s subjects. They provided “denials,” “minimizations,” “excuses,” and “justifications” (p.126). But Guzik found in his own subjects two other types of stories: those involving claims of self-defense or other disclaimers of responsibility. In these defenses, the abuser constructs his own identity as a reasonable person acting in response either to a genuine threat to his person or a threat to a traditional masculine identity, a threat by one whom he may have defined as shrewish, manipulative, and irrational.

In the last chapter, Guzik takes up what has to be the most fundamental question, “Does it work?” Do mandatory arrest and no-drop prosecution produce the intended result – desistance from further abuse? Guzik notes that published statistics of recidivism are not encouraging; but, given his small sample, he is less interested in numbers [*54] of failures than in reasons for failure and where hope for success may lie. To find this out he examines the narratives of his subjects as they describe how their lives may have changed after their experience of mandatory arrest and no-drop prosecution. The picture is complex.

Although such policies did effect the immediate removal of the abuser, it was often at the cost of his job and reputation – both of which are iatrogenic to more long-term goals. Interestingly, some men expressed a renewed commitment to religion. But this often only allowed an abuser to create a more pleasing self-image without taking any genuine responsibility for past behavior. Other responses by his subjects, which Guzik refers to as “controlling the self,” freeing the self,” and “fitting the self” he finds equally double edged.

Nonetheless, returning to the distinction he has previously established, Guzik does find more positive outcomes for “situationally violent abusers” than “intimate terrorists,”, indicating that there may be some types of success in some types of abusers. As has been observed by others who have evaluated criminal justice programs, partial success may be the only realistic success one can hope for (Skogan 2006).

In his conclusion, Guzik restates that these mandatory policies are an example of a shift in the way in which domestic abuse is perceived, from a private problem to a public offense. But this shift entails a traditional view of a crime as a discrete event, whereas abuse is more frequently not a single incident of violence but a long subjection to coercive control. The criminal law is practiced in dealing with the former, less capable in dealing with the latter. Still, there are currently practices within the criminal justice system that might have the potential to deal with the ongoing nature of domestic abuse. Restorative justice programs and programs involving continuing court supervision are two that are suggested.

Altogether, this is a valuable book, well written and based on an excellent study. Some may cavil at research involving only 30 subjects. But Guzik makes no pretense that this is a sample from which to formally draw broader inferences. These are simply cases that Guzik mines for all the richness in qualitative data they provide. The implications for social policy he makes on the basis of those data are often imaginative and insightful.

REFERENCES:
Johnson, Michael. 2006. “Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence.” 12 VIOLENCE AGAINST WOMEN 1003-18

Simon, Jonathan. 2007. GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR. New York: Oxford University Press.

Skogan, Wesley. 2006. POLICE AND COMMUNITY IN CHICAGO: A TALE OF THREE CITIES. New York: Oxford University Press.

LEGAL ACCENTS, LEGAL BORROWING: THE INTERNATIONAL PROBLEM-SOLVING COURT MOVEMENT

2010-01-31T23:34:00.000-05:00

by James L. Nolan Jr. Princeton, N.J.: Princeton University Press, 2009. 264pp. Hardback. $35.00. ISBN: 9780691129525.

Reviewed by Salmon A. Shomade, Department of Political Science, University of New Orleans. Email: sshomade [at] uno.edu.

pp.46-50

For those familiar with James Nolan’s 2001 book REINVESTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT, LEGAL ACCENTS could be considered a sequel that only Nolan is best suited to write. In REINVESTING JUSTICE, Nolan provided detailed accounts of the history behind the creation of American drug courts. Therein he detailed the influence of these courts in a social movement that aimed (and still does) to change American jurisprudence. With LEGAL ACCENTS, Nolan has expanded his focus to consider a range of problem-solving courts in six countries. Even for those not familiar with his earlier book, in LEGAL ACCENTS Nolan nicely summarizes the major elements of a drug court and how, along with other similarly specialized courts, they constitute a group of problem-solving courts growing by leaps and bounds in the United States and in five other countries.

In the Introduction, Nolan succinctly explains that LEGAL ACCENTS tracks the growth of an international movement that started with the development of American drug courts and the expansion of the drug court model to other problem-solving courts in other nations mostly, community courts, domestic violence courts, and mental health courts. LEGAL ACCENTS is thus a comparative study in that it relates the similarities and differences between and among various problem-solving courts (also referred to as “specialty courts” or “specialized courts”) as they germinated and developed in their respective cultural contexts in the United States, Australia, Canada, England, Ireland, and Scotland. Nolan specifically explores how actors in the non-U.S. countries adopted the blueprints for U.S. problem-solving courts but “with a curious mix of enthusiasm and concern -- a sort of ambivalence . . . that characterizes international attitudes toward the United States more generally” (p.4). We learn that by using ethnography as his primary methodology, Nolan visited all six countries at least three times. During these research trips, he interviewed major court actors such as judges, magistrates, and sheriffs. He also observed operating court programs, “and spoke with other staff associated with the courts, including probation officers, treatment providers, lawyers, program directors, victim support personnel, medical doctors, evaluators, and, in the case of aboriginal courts, elders and peacemakers” (p.5). In addition, he spoke with government officials who helped create these specialized courts and observed facilities and entities working with these courts, examined data from government reports, legislative debates, court evaluation reports, and publications from many organized groups focusing on [*47] specialized courts, and spent considerable time attending conferences on these courts.

Chapter 1 of LEGAL ACCENTS captures the history and development of problem-solving courts in the United States. In this chapter, we learn that the literature generally focuses on three “interrelated problems (1) of individual offenders, (2) of a troubled court system seeking to regain its legitimacy, and (3) of society more broadly (due, ostensibly, to the failure of other social institutions to handle perennial social ills)” (p.10). Major characteristics of the four major specialty courts – drug courts, mental health courts, community courts, and domestic violence courts – are also discussed in the chapter. According to Nolan, the U.S. now has more than three thousand problem-solving courts with several hundreds more in the planning and implementation stages. As a person who studies drug courts, I am aware that U.S. drug courts alone now number two thousand five hundred, remarkable given the first U.S. drug court was established in Miami in 1989, only twenty years ago.

The focus of Chapter 2 is on the relationship between law and culture and on the process of globalization itself. Citing other scholarly works on globalization, Nolan discusses whether the process of globalization can be characterized as “homogenization” and if “heterogenization” or “localization” is the counterpart to homogenization. Nolan notes that some scholars perceive homogenization “as the process by which American-styled capitalism, mass culture, and consumerist habits are imperialistically advanced in a world that is progressively more interconnected through electronic communications, the Internet, television, and transnational corporations” (p.24). Other scholars see heterogenization or localization as the extent people reject what is perceived as the dominant global culture and reassert their “indigenous practices and commitments to local identities” (p.24). Nolan eschews this seemingly binary choice by arguing, “The reality, of course, is more complex and more interesting than a simple dichotomy such as this would suggest” (p.25). Also in this chapter, Nolan analyzes the concepts of Therapeutic Jurisprudence and Restorative Justice (both U.S. originated theories), and wonders if these culturally embedded theories transfer well outside the U.S. Notably, although these theories originated independently from the creation of the problem-solving court movement, they are now considered the underlying theoretical frameworks for the movement and they dictate many practices utilized in U.S. specialized courts. Nolan concludes the chapter by raising several important questions. For example, he asks, “If a legal product, such as a problem-solving court, is developed in a uniquely American context, is it not intrinsically American to the core? Is it possible to fully extricate the culturally determined qualities of American problem-solving courts -- such as their distinctively therapeutic tendencies – when the programs are transported to other countries?” (p.41)

Some of the questions asked in Chapter 2 are answered in the next three chapters of LEGAL ACCENTS. The focus of Chapter 3 is England and the process by which it developed its problem-solving courts. Since 1998, England has established three types of specialized courts, [*48] drug courts, domestic violence courts, and community courts. Nolan demonstrates that although the U.S. inspired the creation of these courts, there is a great deal of hesitancy adopting therapeutic jurisprudence practices (for example, the demonstrative and theatrical acts of U.S. problem-solving court judges) in English specialized courts. Clearly, such hesitancy is strongly shaped by the cultural underpinnings of the British who tend to be and perceive themselves as more “buttoned up” than their U.S. counterparts. Canada and Australia are the subjects of Chapter 4. Nolan posits that “both Australians and Canadians have enthusiastically embraced problem-solving courts” – each has created the four major specialized courts mentioned above, and more – “though not without critical reflection and restraints” (p.102). Thus, unlike England, both Canada and Australia have more fully embraced therapeutic jurisprudence theory. Nonetheless, these two countries differ from England and U.S. in one important respect. Because of the significant influence of aboriginal populations, they both have aboriginal courts which integrate cultural themes as part of the problem-solving court process. Chapter 5 captures the development of the court movement in Scotland and Ireland. Early in this chapter, Nolan explains that the specialized courts of these two countries not only distance themselves from the practices of their U.S. counterparts but are also wary of their closer neighbor England’s practices. As of 2007, Ireland had only one problem solving court, the Dublin drug court, which began as a pilot project in January 2001. Although Scotland started its first problem-solving courts nine months after Ireland initiated its drug court, Scotland has since created additional specialized courts in the form of domestic violence, youth, and community courts. These two nations’ courts share similar qualities when compared to those of the U.S. but they also have important differences between them. For instance, lawyers participate in the specialty courts of Scotland but are excluded in the Dublin court.

In Chapter 6 while discussing “American Exceptionalism” Nolan isolates what are considered the major features of U.S. specialized courts such as enthusiasm, boldness, and pragmatism, and extensively analyzes how these features contribute to U.S. influence. He also compares these features with what are perceived to be the hallmark features of other nations’ programs namely moderation, deliberation, and restrain. I find Chapter 7 to be the most fascinating chapter. Appropriately titled “Ambivalent Anti-Americanism, Nolan argues that importers of U.S. problem-solving courts’ practices demonstrate the same contradictory attitudes reflected in most global surveys. On the one hand, many people complain about U.S. ideas and customs, but they do not necessarily reject American cultural products. In this context, Nolan notes that these importers “worry out loud about American cultural imperialism, even while they simultaneously import and embrace what is undeniably an American-grown legal product” (p.159). Nolan supports this with several non-U.S. authors’ criticisms of their own nations’ attitudes toward the U.S. For instance, British author Jonathan Freedland offers, “We simultaneously disdain and covet American culture, condemning it as junk food even as we [*49] reach for another helping – a kind of binge-and-puke social bulimia” (p.169). Nolan does not totally spare Americans in this regard. Partly in this chapter and also in Chapter 8, he laments Americans’ dismissive attitudes toward the rest of the world. In Chapter 7, he points out, “[W]hat one finds is a perceived lack of concern on the part of the United States in learning about the interests, practices, and cultures of other places, and a preoccupation among Americans with spreading their own ideas and practices” (p.165). Nolan ends Chapter 8 – the last chapter in LEGAL ACCENTS – on this note: “Americans, . . . as long as they have the blindfold removed, may wish to look more carefully at the criminal justice practices of other countries” (p.196).

Overall, I enjoyed reading LEGAL ACCENTS, and having read and been influenced by REINVESTING JUSTICE, was not disappointed by this “sequel.” I find LEGAL ACCENTS as equally accessible to all readers as REINVESTING JUSTICE was. However, I have a few criticisms. While I believe that Nolan aptly captures the mix of enthusiasm and concern exhibited by his non-US subjects in adapting American problem-solving courts, I feel that he could also have shared with us more instances or contexts when U.S. actors have imported cultural products or norms and their reactions to the imports. Nolan offers his own criticisms on Americans’ attitudes toward the rest of the world, but he does so in a very limited fashion. By more fully comparing the level of ambivalence (if there is indeed any) demonstrated by U.S. actors when adopting other cultural norms in this book, Nolan might, perhaps, deflect any potential criticism that he did not sufficiently critique Americans’ attitudes toward imported ideas, products, or norms.

In addition, although Nolan’s selection of the six countries studied is based on where the problem-solving court movement is most advanced and it helps that these are all common-law jurisdictions, there is hardly any mention of other countries’ activities on specialized courts. For readers interested in learning more about non-Western nations’ efforts in this regard, there is very little information available in the book. To be fair, one book cannot do it all. But an acknowledgment of other non-Western countries’ activities, even if limitedly, could give the book a boost as the definite global study of the “international problem-solving court movement.” Separately, as Nolan himself readily acknowledges in the Introduction, LEGAL ACCENTS is not an evaluation study. The book does not tell us whether problem-solving courts are effective or efficient at what is deemed to be their chief mission. If a reader is seeking to know about “best practices” or which of the six countries studied is the “most successful,” this is not the right place to look.

Nonetheless, this is a necessary and useful book for readers who study problem-solving courts, especially those that track the development as well as the internalization of the movement surrounding the growth of these courts. Those interested in how law and culture can or cannot be successfully imported will also benefit from reading LEGAL ACCENTS. Most specifically, critics of American cultural imperialism – regardless of interest in problem-solving courts – should read this book. These [*50] critics might be surprised about the “difficulty of disentangling law from its cultural roots” (p.196). For readers in all these categories, I definitely recommend LEGAL ACCENTS as a must-read. For others, the book still belongs to the book shelf space containing ready references about noteworthy subjects.

REFERENCES:
Nolan, James L, Jr. 2001. REINVESTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT. Princeton, N.J.: Princeton University Press.

JUSTICE TAKES A RECESS: JUDICIAL APPOINTMENTS FROM GEORGE WASHINGTON TO GEORGE W. BUSH

2010-01-31T23:32:00.001-05:00

by Scott E. Graves and Robert M. Howard. Lanham, MD: Lexington Books, 2009. 128pp. Cloth. $55.00. ISBN: 9780739126615.

Reviewed by Lisa M. Holmes, Department of Political Science, The University of Vermont. Email: Lisa.M.Holmes [at] uvm.edu.

pp.42-45

There have been a number of important books in recent years dedicated to analyzing various aspects of the judicial appointment process. For example, Nemacheck’s STRATEGIC SELECTION analyzed how presidents choose nominees to the U.S. Supreme Court. In PICKING FEDERAL JUDGES, Sheldon Goldman examined presidential agendas in selecting nominees to the lower federal bench. In ADVICE AND CONSENT, Epstein and Segal took on the task of examining each distinct aspect of the appointment process, from vacancy creation through nomination and confirmation. Nancy Scherer’s SCORING POINTS focused on the problematic influence of “elites” in the nomination and confirmation process for lower court judges. In JUSTICE TAKES A RECESS: JUDICIAL APPOINTMENTS FROM GEORGE WASHINGTON TO GEORGE W. BUSH, Scott E. Graves and Robert M. Howard analyze a rarely-examined aspect of the appointment process by focusing on recess appointments to the federal bench.

The recess appointment power had been dormant for a number of years prior to President Clinton’s unilateral appointment of Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit. Gregory’s appointment ushered in a period where recess appointments, although rare, represented some of the most interesting and contentious examples of modern judicial appointment politics. The president’s recess appointment power, however, has received little attention in the literature on judicial appointment politics. Graves and Howard examine the circumstances under which presidents are more or less likely to make recess appointments to the federal bench, and analyze whether the lack of judicial independence associated with a recess appointment is cause for concern. In taking on these questions, Graves and Howard provide an important contribution to the growing scholarship in the judicial appointments area.

Aside from the overview and introduction provided in Chapter 1 and the conclusions addressed in Chapter 6, this book centers around four substantive chapters, each addressing some aspect of the use or implications of the recess appointment power. In Chapter 2, Graves and Howard provide an historical analysis of presidential use of recess appointments by examining all 308 recess appointments to Article III positions from George Washington in 1789 through George W. Bush in 2004. They find that recess appointments are less likely in recent decades, as the efficiency justifications for these unilateral appointments have decreased. [*43] Presidents also have acted strategically, with recess appointments being more likely when the length of time the recess appointee would sit increases. In addition, Graves and Howard find evidence that modern presidents (here defined by FDR’s first presidential term) have acted differently than their predecessors when it comes to recess appointments. Modern presidents with greater partisan support in the Senate, for example, are more likely to make recess appointments than are modern presidents with fewer partisan allies in the Senate, whereas this factor did not influence previous presidents when deciding unilaterally to seat people on the federal bench. Graves and Howard return to the issue of modern presidents and recess appointments in chapter 5.

In Chapters 3 and 4, Graves and Howard turn their attention to the issue of whether judges behave differently during the recess appointment period than they do after they have been confirmed to a lifetime tenured position on the bench. Chapter 3 focuses on the voting behavior of three Supreme Court justices (Earl Warren, William Brennan, and Potter Stewart) who were initially placed on the bench by President Eisenhower as recess appointees. Although the analysis here is confined to the behavior of the three justices for whom voting data are readily available, the results indicate that these justices did temper their voting behavior during their recess appointment period compared to their behavior after confirmation. Prior to confirmation, for example, justices were less likely to vote liberally in politically salient cases, and as well were less likely to rule against the interests of the federal government compared to their voting behavior post-confirmation.

In Chapter 4 (which the authors have written with Pamela Corley), Graves and Howard find similar results in their analysis of the behavior of 14 recess appointees to the courts of appeals. Prior to confirmation, recess appointees were less likely to vote liberally in salient cases. After confirmation, furthermore, circuit court judges were more likely to vote in favor of their ideological preferences than they were prior to confirmation, and as well were more inclined to vote in line with circuit and Supreme Court preferences. Prior to confirmation, the authors conclude that these judges were more likely to vote in ways that would appeal to those responsible for the nomination and confirmation process rather than in line with the expectations of their circuit colleagues or their Supreme Court superiors.

Chapter 5 returns to the questions of when and why presidents use the recess appointment power, focusing in this chapter on the use of this power by modern presidents (here, beginning with the advent of the Truman presidency). The analysis confirms and furthers many of the findings related to modern presidential behavior noted in Chapter 2. Graves and Howard conclude that modern presidents use the recess appointment power in “an opportunistic fashion” (p. 94), when the president is bolstered by stronger support in the Senate and stymied by minority opposition to nominee confirmation. This finding of course makes a lot of sense in the context of the most severe problems that plague the modern judicial appointment process, where even a president with a good deal of support in the Senate may be frustrated by the Senate minority’s filibuster power to [*44] prevent confirmation. The authors also find that presidential popularity in the modern era is negatively related to the use of the recess power and that recess appointments have become less prevalent in general as the modern presidential era has continued.

Graves and Howard offer their conclusions in Chapter 6 by arguing that, at least as far as judicial appointments go, the president’s ability to make unilateral recess appointments is a power whose time as passed. They conclude that the strategic nature of the use of this power (particularly by modern presidents), coupled with the loss of judicial independence as reflected in the recess appointees’ voting behavior, renders the recess appointment power both unnecessary and potentially damaging. Although the analysis of judicial voting behavior is based on a relatively small number of Supreme Court justices and circuit court judges, their findings do indicate that judges behave differently during the recess period than they do after confirmation. From this, Graves and Howard conclude that “there is considerable doubt that the recess appointee during the time of the recess actually provides the appointing president with any great policy benefit” (p. 98). One question the authors leave on the table here is whether the president is greatly benefitting in the long term by recess appointing those who would have unlikely secured confirmation otherwise. An analysis of the likelihood of confirmation (depending on whether the unconfirmed nominee was recess appointed or not) based on the nominee’s personal and professional characteristics as well as the political climate at the time of appointment would help further answer the question of whether presidents get anything valuable out of a recess appointment. The authors’ main conclusions, however, that recess appointments in the modern era are unnecessary, strategically motivated, and problematic to judicial independence are substantiated well by their analysis and findings.

The questions associated with the recess appointment power are likely to be of interest to a wide array of scholars, as well as to those activists, observers, and practitioners interested in appointments to the federal judiciary. This book is written for the scholarly audience, and will certainly be well-received by that audience. The substantive chapters all employ highly sophisticated statistical methods that are appropriate to the questions being asked. The lengthy discussion of the statistical approach in each of the substantive chapters is of course important and would be of interest to scholars in this area. This material, however, makes this book less accessible to the more casual reader interested in judicial appointment politics. Each of the four substantive chapters in this book holds up well on its own – so well, in fact, that some explanations and illustrative examples are repeated in multiple chapters. Some better editing of the book as a whole could have resolved this frustration. In addition, Chapter 3 in particular would have benefitted from better editing in general. The hypotheses in this chapter, for example, are not explained very well, and some of them are contradictory or at the very least worded confusingly. The problem associated with re-reading some of the same examples and stories in multiple chapters in the book is offset, however, by the clear focus throughout the book on the questions related to the [*45] strategic use of recess appointments by presidents and the changes in voting behavior of judges while awaiting confirmation. Relatively minor concerns about editing do not detract from the important contribution that Graves and Howard have made to our understanding of judicial appointment politics, both historically and in the modern context.

REFERENCES:
Epstein, Lee and Jeffrey A. Segal. 2005. ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS. New York: Oxford University Press.

Goldman, Sheldon. 1997. PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN. New Haven: Yale University Press.

Nemacheck, Christine L. 2007. STRATEGIC SELECTION: PRESIDENTIAL NOMINATION OF SUPREME COURT JUSTICES FROM HERBERT HOOVER THROUGH GEORGE W. BUSH. Charlottesville: University of Virginia Press.

Scherer, Nancy. 2005. SCORING POINTS: POLITICIANS, ACTIVISTS, AND THE LOWER FEDERAL COURT APPOINTMENT PROCESS. Stanford: Stanford University Press.