GIRLS ON THE STAND: HOW COURTS FAIL PREGNANT MINORS

by Helena Silverstein. New York: New York University Press, 2007. 256pp. Cloth. $32.00. ISBN: 9780814740316.

Reviewed by Matthew Wetstein, Political Science Department, San Joaquin Delta College, mwetstein [at]deltacollege.edu.

pp.808-810

In this book, Helena Silverstein, Professor of Government and Law at Lafayette College, attempts to expose how pregnant teenagers navigate the abortion laws intended to provide them a judicial bypass option that avoids parental notification. Her research is designed to challenge the idea that judicial bypass laws represent an effective and rational compromise that gets implemented apolitically (p.16). Silverstein implements a tremendous research design that yields a very well-written book, and the resulting evidence backs up a powerful indictment of street level justice at work.

The book is divided into four main parts. First, Silverstein surveys the legal landscape and the abortion balancing act that parental notification and consent laws reflect. The real heart of the book appears in Parts 2 and 3. Part 2 presents three chapters that examine the implementation of judicial bypass laws in three states: Tennessee, Alabama, and Pennsylvania. In Part 3, Silverstein examines how judicial hearings actually play out, with some particularly harrowing stories recounted in Chapter 7. The book closes with some hypothetical analysis of how the U.S. Supreme Court might analyze some of the judicial work in these three states and closes with a critique of the mythical compromise that judicial bypass laws represent.

The methodology of the book is particularly noteworthy and creative. Silverstein and her team of research assistants made phone calls to courthouses in each of the counties of the states asking a basic question: “I’m calling to find out how a girl who’s not eighteen who wants an abortion can get a judge’s permission to avoid telling her parents” (p.41). From that question, the researchers cataloged a multitude of initial responses, including referrals to a host of pregnancy counseling centers, health departments, legal aid departments, family planning offices, and a series of phone number referrals that produced wild goose chases. On some occasions, the initial phone call yielded an informative and helpful court staffer who could quickly advise the caller on the judicial bypass hearing process. The best performance emerged from Tennessee, a state that has a Court Advocate system in place for pregnant teens, and most of the state workers communicated “detailed and correct information” about the bypass process (p.47).

The bulk of the phone calls, however, led to disquieting results from the perspective of a pregnant teen who fears talking about an abortion with her parents. Many of the court employees who were telephoned either “doubted the existence of or knew next to nothing about the bypass option” in their state [*809] (pp.52-53). According to Silverstein, nearly half of the 222 county courts contacted “demonstrated substantial or complete ignorance about the bypass system” (p.53). In many cases, teens were told they would have to call a lawyer, or would have to call legal aid, even though it is a violation of federal law for such attorneys to handle abortion related cases (p.55). Where court employees demonstrated such ignorance of the bypass route, callers were frequently referred to the phone book to look up their own attorney, to abortion clinics (which typically provided very informed responses about the law), to other states for an abortion, or in some cases, were just simply told there was no bypass option and that the teenager would first have to talk to their parents (pp.53-66).

Chapter 5 reveals that in many cases, court employees and state workers engage in remarkable forms of misconduct that can dissuade a teen from seeking an abortion. Sometimes, callers would require as many 10 contacts over several days to reach an employee for information (pp.74-79). Frequently, callers would get bounced back and forth between different courtrooms, getting the “runaround” from juvenile to probate court and back. Sometimes tracking down an advocate in Tennessee would be difficult because the employees served multiple county courts, or had been on vacation, or recently moved from their post (p.80). Still other calls resulted in a kind of judicial dead end, where a teen might be told the judge does not approve abortion bypass petitions. As one Alabama court employee put it: “you have the right to file [a bypass petition], and the right to file in your initials . . . but that doesn’t mean he will grant it . . . the odds are real slim here” (p.85, italics in the original). As Silverstein points out, such outright judicial defiance is reminiscent of the work of Bradley Canon and Charles Johnson (1999) in their book on judicial implementation.

The lengths to which judges will go to defy implementing bypass laws are exposed in Chapters 6 and 7. It is here that Silverstein catalogs the efforts of Alabama judges to engage in two types of judicial activism that place emotional hurdles in front of pregnant teens who seek abortions. One practice is to require teens to seek pro-life Christian counseling before holding the bypass hearing (pp.100-114). Ostensibly, this is done under the guise of ensuring that a girl engages in informed and rational decision making because they get “both sides” of the abortion debate. However, the reality of “getting the other side” effectively means getting forced religious counseling (p.104). In the cases described in the book, girls are referred to Sav-A-Life Outreach Centers, where they encounter evangelical entreaties along with a strong dose of pro-life messages. In Silverstein’s words, the teens are “subjected to religious interrogation in a setting where proselytizing is the main order of business” (p.113).

The second hurdle that confronts young women in some bypass hearings is the appointment of “guardian attorneys” who represent the interests of the unborn fetus. With the presence of such attorneys, a hearing that routinely takes 30 minutes can stretch as long as four hours (pp.117-119). As such, pregnant teens who might have had to endure a difficult struggle against misinformation [*810] and hostility in getting access to the court, end up facing a hearing that presents hostile witnesses and hostile questioning from an avid pro-life attorney in front of a judge who is willing and ready to voice his/her own pro-life views. In such circumstances, the naked attitudinal behavior, so prominent on the U.S. Supreme Court, is just as vividly on display in a trial court setting.

Silverstein’s work provides a healthy dose of skepticism about the “myth of rights” surrounding bypass laws, and in doing so, echoes the work of Stuart Scheingold (1974) some 30 years ago. The flaw here is that Americans typically think of courts as upholding rights, and that courts help ensure that social change occurs. This mythical understanding gets exposed when examining the judicial bypass as closely as Silverstein has. The reality that pregnant teens often face is different from the perceived objective application of the supposed right to which they are entitled. Faced with hostile judges and ignorant court employees, teens and their attorneys frequently endure outrageous courtroom behavior to “go through the motions” to get the result they want. Pro-choice attorneys and their clients may face an extremely uncomfortable process, lengthy questioning, hostile witnesses and judges, but challenging them and raising constitutional objections would only harm their cause with the next pregnant teen (p.171). The result is that attorneys in such cases choose “pragmatism over principle,” and constitutional challenges to such practices as guardian attorneys or pro-life Christian counseling do not get raised (p.171).

Silverstein’s book should be read by a wide group of scholars and students. The book has obvious appeal for courses in gender studies, law and society, women and the law, and judicial process. The book is a wonderful example of how empirical research techniques can be used to address an emotionally laden topic from a completely new perspective. It is a skillfully executed work that has much to say about abortion policy at the “street level.” I recommend it highly.

REFERENCES:

Canon, Bradley, and Charles A. Johnson. 1999. JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT (2nd ed). Washington, DC: CQ Press.

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

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© Copyright 2007 by the author, Matthew Wetstein.

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THE SUPREME COURT IN THE AMERICAN LEGAL SYSTEM

by Jeffrey A. Segal, Harold J. Spaeth, and Sara C. Benesh. New York: Cambridge University Press, 2005. 424pp. Cloth $85.00/£55.00. ISBN: 9780521780384. Paper $28.99/£21.99. ISBN: 9780521785082.

Reviewed by David Klein, Woodrow Wilson Department of Politics, University of Virginia. Email: dek5b [at] virginia.edu.

pp.804-807

As massively and deservedly influential as it is, Segal and Spaeth’s THE SUPREME COURT AND THE ATTITUDINAL MODEL (both editions) contains some stylistic tension. At its core is a forceful argument targeted at academic specialists and backed by sophisticated empirical analyses. This core is not readily accessible to undergraduates or other general readers; nevertheless, it is accompanied by much that appears to be aimed at precisely those audiences and is of less value to the specialists reading it for its central argument. THE SUPREME COURT IN THE AMERICAN LEGAL SYSTEM, which brings the talents of Sara Benesh to the authorial team, can be seen as an attempt to resolve this tension. Without unduly simplifying either the argument or evidence of SCAM, THE SUPREME COURT IN THE AMERICAN LEGAL SYSTEM concentrates on reaching non-specialists, providing an overview of judicial process and politics and spreading the word of attitudinalism. In this respect the book is a rousing success. It also seems intended to go beyond SCAM in another way, by more thoroughly situating Supreme Court politics within the larger judicial system. Here, too, it is successful, but not, I think, as completely.

Longer and denser than most textbooks in this area, the book is divided into four large sections. The first introduces the legal and attitudinal models and presents an attitudinally-tinged tour of Supreme Court history. The second section surveys procedural rules and contains much that is relevant to trial courts in a book that otherwise tends to focus more on appellate courts. In the third and fourth sections, the authors turn to individual courts, spending a chapter each on state, federal district, and federal circuit courts before turning to four chapters on the Supreme Court. The substantive topics in these two sections include selection, agendas and caseloads, decision making, and, at the Supreme Court, opinion assignment and writing. The book concludes with a single chapter on the impact of judicial decisions.

Given its broad coverage, the Supreme Court in the American Legal System would serve very well as the primary text for a course on judicial process or politics, especially for an instructor with a behavioral bent. It would also make an excellent supplement to a course on constitutional law. Instructors who prefer to range broadly across topics related to judicial politics should be aware that it does not have much to say about law-and-society subjects like litigation or the legal profession, nor [*805] does it attempt to cover other related fields like law and economics. Furthermore, while the book is admirably clear about the stakes involved in the exercise of judicial power, instructors wishing students to delve deeply into normative debates about judicial review and related topics would need supplemental texts.

The authors make several somewhat unusual choices in the book. Although occasionally taken aback by them, by the end of the book I was persuaded that the choices were sound – even, in one or two cases, inspired. One such choice is stylistic. Many members of the Law and Courts community will recognize the wit and erudition on display here. (Who else would write that justices “are not nanocerebral nonentities slavishly adhering to the diaphanous fabric of ethereal legal principles and doctrine”? [p.323]) Newer and more surprising is the authors’ frankness. I love the confession on p.153 that one of the authors, “having heard nothing about a supreme court election, . . . proceeded to vote for all the women, only subsequently to discover that they were the most ideologically distant from the author’s policy orientation.” Revealing the professional scholar’s human weakness to student readers may have risks but probably pays off handsomely in reader trust and engagement. More importantly, while maintaining a scrupulous ideological evenhandedness, the authors freely share their opinions. In my experience, it is not unusual for undergraduates reading SCAM to come away from it unsure what normative implications they are meant to see. No reader of the new book’s depiction of the “mythology of judging” (pp.16-17) could feel uncertain about what the authors think is at stake. Critical, even sarcastic, commentary is sprinkled throughout the book. While perhaps gratuitous in spots, for the most part it is well calculated to keep readers alert and provoke responses.

A second choice – perhaps surprising in a book about ideological decision making by three authors with a penchant for quantitative studies of behavior – is to devote considerable space to law and history. The treatments of procedural rules, in particular, are so far from cursory as to raise concerns about the patience of lay readers. But patience here would be well rewarded; the discussions are highly engaging and informative, enough so that non-lawyer scholars could find them a valuable reference. That said, I believe there is something of a lost opportunity here, in that excellent discussions of, say, justiciability and jurisdiction are not fully integrated into the book. These come early, and by the time readers reach the chapters on judges’ behavior, especially at the Supreme Court, they may forget them or have trouble seeing what implications they have for decision making.

The authors miss no opportunity to include original statistical analyses, and I think the book is much the stronger for this decision. To test whether “extralegal factors that ought not affect sentencing” (p.209) nevertheless do so in district courts, they present a full regression analysis in Chapter Eight. This is one of the more complex analyses in the book, but statistical tables and graphs appear every few pages in the last several chapters of the book. Naturally, these analyses will present challenges to readers who lack [*806] statistical training and may even alienate some. But they are clearly explained and well integrated into the flow of the book. Moreover, in addition to being interesting in themselves, they send readers a message: If you have a question, you do not necessarily have to rely on others for answers; you can collect some data and find an answer for yourself. It is easy to imagine undergraduate readers of this book being inspired to conduct research of their own.

Both the discussions of technical legal issues and the inclusion of original empirical analyses illustrate an important strength of the book: it refuses to condescend to its readers. For this reason, while I do not suppose that all undergraduates would respond well to it, it would be an outstanding choice for advanced undergraduates who are willing to work and for both law students and graduate students.

Of course, any book occasions some quibbles. To my mind, the book’s recurring references to BUSH v. GORE, while stylistically effective, are somewhat misleading. Even to the most committed attitudinalist, BUSH v. GORE must stand out as unusually egregious, defying as it does virtually any attempt to understand it as an expression of something other than justices’ policy preferences. Furthermore, together with the book’s general emphasis on constitutional law, it may give the mistaken impression that almost all of the Court’s work involves constitutional issues. I think the book would benefit from more attention to other types of law, especially statutory, both in treatments of courts’ dockets and elsewhere. For instance, a discussion of the high barriers to habeas corpus raised by the Antiterrorism and Effective Death Penalty Act of 1996 could add considerably to existing sections on access to courts and comity between federal and state courts.

A related but probably less fair criticism is that the book does not entirely live up to the implicit promise of its title to demonstrate how the Supreme Court fits into the larger legal system. This is not to say that the book stints on other courts or otherwise implies that they are insignificant. The chapters on other courts are thorough and, as noted, often include original data. Furthermore, the authors draw explicit comparisons and contrasts between courts. Importantly, they do not treat the attitudinal model as one-size-fits-all, and they explain clearly why they think it more applicable to the Supreme Court than to others. Nevertheless, this and other comparisons (e.g., of judicial selection and caseloads) are not as effective or easy to follow as they might be if the book’s central chapters were organized thematically rather than by court. And while the authors give some attention to how other courts are affected by the looming presence of the Supreme Court, they could justifiably devote more space to this issue and far more space to the question if and how the Supreme Court is itself affected by the existence or behavior of the other courts.

But this is asking more of a book that already accomplishes a great deal. Although not aimed primarily at academics, THE SUPREME COURT IN THE AMERICAN LEGAL SYSTEM contains enough interesting original data (especially in the chapters on lower federal courts) and a comprehensive [*807] enough overview of the behaviorally oriented literature on judging to reward even their attention. More importantly, one could hardly ask for a more engaging, provocative, and challenging book on judicial behavior for a general audience.

REFERENCES:

Segal, Jeffrey A. and , Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. New York: Cambridge University Press.

Segal, Jeffrey A. and , Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. New York: Cambridge University Press.

CASE REFERENCE:

BUSH v. GORE, 531 U.S. 98 (2000).

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© Copyright 2007 by the author, David Klein.

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DEMOCRACY AND LEGAL CHANGE

by Melissa Schwartzberg. Cambridge: Cambridge University Press, 2007. 240pp. Cloth $80.00/£45.00. ISBN: 9780521866521. eBook format. $64.00. ISBN: 9780511282874.

Reviewed by Magdalena Zolkos, Department of Political Science, University of Alberta. Email: zolkoska [at] ualberta.ca.

pp.800-803

In DEMOCRACY AND LEGAL CHANGE, Melissa Schwartzberg takes up the question of (un)democratic consequences of law entrenchment. More broadly, this book is positioned within the terrain of normative complexities involved in the relationship of constitutionalism and democracy. This book makes an argument for the practice of flexible law and against legal entrenchment, as entrenchment is claimed to undermine such crucial democratic principles as innovativeness, legislative activity, recognition of human fallibility and deliberation and engagement in political life.

DEMOCRACY AND LEGAL CHANGE combines the methods of an in-depth historical analysis with a construction of largely a-contextual position on the close and mutually supportive relationship between democracy and flexibility and mutability of law, regardless of the cultural and historical circumstances. Schwartzberg is rather successful at linking the objectives of historical analysis, on the one hand, and of making a statement about the democratically problematic implications of legal entrenchment on the other. Nevertheless, it would have strengthened the methodological position of the book if she had justified at greater length her strategies of (selective) engagement with history for the purpose of ultimately making a general and non-contextual argument.

In the introduction, Schwartzberg situates the concept of legal entrenchment vis-à-vis other notions of legal change (statutory, interpretative, constitutional and revolutionary), and provides a helpful and informative typology of legal entrenchment. She differentiates between formal and time-unlimited entrenchment (pp.8-11), formal and time-limited entrenchment (pp.11-12), de facto entrenchment (pp.12-13) and implicit entrenchment (pp.13-16), and provides thorough explanation and exemplification of each of these types. She also outlines the foundations of her nexus of legal mutability and democracy drawing on such theorists of law as Bruce Ackerman and Jürgen Habermas. Unfortunately, the book does not include a particularly in-depth theoretical engagement with Ackerman’s WE THE PEOPLE or Habermas’ BETWEEN FACTS AND NORMS on the issue of legal (im)mutability. Likely, this would have made this book more attractive from the perspective of constitutional theory and democratic.

The subsequent chapters cover four historical cases of practicing a form of legal entrenchment: Athens in the fifth and fourth century BC; England in the seventeenth century, America in the [*801] eighteenth century and Germany after World War II. Each historical case centers on a particular lesson that can be drawn about the practice of democracy and legal (im)mutability. As regards ancient Athens, for instance, Schwartzberg emphasizes the connection between legal change and innovativeness (the willingness not only to adapt to changeability and challenges of life, but also to create or start anew). The “ideology of pragmatic innovation” (p.31, passim) is regarded in the book as one of the central characteristics of the ancient Athenian notions of democracy and civic identity, as well as an expression of a philosophy of political life as inescapably contingent and unpredictable. However, the Athenian “ability to confront the unexpected with modified rules and institutional novelty” had been also criticized for its alleged effects on the inefficiencies of governance, or instability in alliance forming. In this context, Schwartzberg makes the point that the Athenian counter-example, Sparta, derived its stability of rule and military efficiency from its conservative laws. Schwartzberg provides a detailed and fascinating account of how legal entrenchment was introduced in the fifth and fourth century Athens “primarily as a means of reassuring anxious allies” in moments of political and constitutional crisis (p.71). Consequently, the lesson that Schwartzberg intends her readers to remember from that historical analysis is that “[e]ntrenchment . . . stifles public learning about the entrenched norms themselves” because “in the absence of the capacity to reopen debate on these laws . . . a [critical] disposition will be difficult to cultivate” (pp.195, 196). While the author recognizes the possibility that “the desire to innovate and thereby to learn might entice us to change laws for the worse, rather than for the better” (p.197), she concludes that democratic life embraces uncertainty of decision and responsibility for the consequences for those decisions.

In Chapter 3, Schwartzberg moves her discussion to seventeenth century England. She emphasizes in particular the fact that early modern English legal tradition referred to the ancient constitution in a seemingly paradoxical way – i.e. as concurrently “an unalterable body of law [and as] undergoing constant and imperceptible change [through interpretation and adaptation by trained judges and secondarily through parliamentary means via statute]” (p.71). The latter point is important because it connects to the principle of “artificial reason,” which gave the primary interpretative power of the common law to trained lawyers (p.78). Schwartzberg convincingly demonstrates that the political argument about legal inflexibility meant in fact conflict about the mode, extent and agency of legal change. Hence, both the English parliament and kings James I and Charles I asserted affirmative positions of the immutability of law, and directed at each other charges of being “sinister innovators” (p.83). The main argument is that the English Civil Wars provided background for struggle between the democratizing parliament (as well as such proto-democratic movements as the Levellers), which asserted its right to deliberate and change laws, and the conservative legal forces, which aimed to hold to their adaptive and interpretative legal powers, and hence endorsed the solution of legal entrenchment. The lesson drawn from [*802] that historical example is that there exists an important connection between the constitution of law and democratic deliberation, which “rests on the claim that ultimately the people have authority to modify the constitution if their considered judgment is that the court’s interpretation of the constitution is misguided” (p.200).

In Chapter 4, Schwartzberg considers the eighteenth century American context of legal entrenchment, and the democratic opposition against it. She includes two famous cases from Article Five of the United States Constitution: the time-limited entrenchment that prohibited constitutional amendment of the law on slave trade (which expired in 1808) and the time-unlimited entrenchment that “no state, without its consent, shall be deprived of its equal suffrage in the Senate” (quoted on p.116). In what is probably the most fascinating discussion in DEMOCRACY AND LEGAL CHANGE, Schwartzberg links the democratic defense of legal change in the US constitution (namely advocacy of the inclusion of an amendment clause) to the debate on human fallibility. However, it would have been a great advantage of the book, if the very meaning of the notion of human fallibility and its relation to legal and constitutional theory were discussed in greater depth. The final historical case concerns the post-World War II German Basic Law, which includes an entrenched legal clause regarding the protection of human dignity. Schwartzberg argues against that clause, and links the German practice of legal entrenchment to some of the legal theorists in the Weimar Republic, as well as to Germany’s limited democratic autonomy following the early post-war years.

In her conclusions, Schwartzberg reformulates her observations regarding legal entrenchment in the four specific historical cases into four different aspects of the interconnection between democracy and constitutionalism. Chapter 6 suggests therefore that there is a positive and mutually reinforcing relationship between the practices of legal changeability on the one hand and democratic innovativeness, deliberation, concept of human frailty and human dignity on the other. It concludes, in a persuasive and rather compelling argument, that while a democracy has “capacity . . . to sustain itself” (p.205) and hence does not need constitutional entrenchment for the reasons of self-preservation, democratic life entails living with uncertainty and risk. This is because only under the conditions of unpredictability of democratic decision-making can responsibility for one’s political actions exist as a meaningful public practice.

Overall, this is a very informative and interesting book, which will appeal to legal historians and scholars of constitutionalism. It is also likely to appeal to political and legal theorists, even though the theoretical discussions in the book have remained rather underdeveloped. The combination of a detailed and comprehensive historical analysis, well-structured conceptual framework, normative democratic argument, and an accessible style of writing will make this book an enjoyable and useful read for a wide scholarly audience, including undergraduate students of law and political science, as well as more advanced graduate students [*803] and researchers specializing in the issues of constitutionalism and democratization.

REFERENCES:

Ackerman, Bruce. 1993. WE THE PEOPLE , VOLUME 1, FOUNDATIONS. Cambridge, MA: Belknap Press.

Ackerman, Bruce. 2000. WE THE PEOPLE , VOLUME 2, TRANSFORMATIONS. Cambridge, MA: Belknap Press.

Habermas, Jeurgen. 1996. BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY. Cambridge, MA: MIT Press.

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© Copyright 2007 by the author, Magdalena Zolkos.

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GUILTY PLEAS IN INTERNATIONAL CRIMINAL LAW: CONSTRUCTING A RESTORATIVE JUSTICE APPROACH

by Nancy Amoury Combs. Stanford: Stanford University Press, 2007. 384pp. Cloth. $75.00. ISBN: 0804753512. Paper. $29.95. ISBN: 0804753520.

Reviewed by Andrew Vincent, School of Historical and European Studies, La Trobe University, Australia. Email a.vincent [at] latrobe.edu.au.

pp.796-799

In this formidable work on guilty pleas in international criminal law, Nancy Amoury Combs examines the integration of restorative justice principles into the plea-bargaining process, focusing primarily on guilty pleas in the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) the International Criminal Court (ICC), the Special Panels in East Timor. In recent years there has been a great deal of excellent work on plea bargaining in the domestic arena and little in the area of international criminal law. This monograph is the result of doctoral research conducted by Combs and submitted in 2005 to the Faculty of Law at the University of Leiden. This book is the latest in an expanding body of work on restorative justice and international criminal law and is a welcome addition.

Combs begins with a discussion of the foundation of international criminal law and the bodies instituted to prosecute transgressors. Importantly, non-prosecutorial responses to mass atrocities are discussed, in particular reparation schemes and truth-telling commissions. One of the main benefits put forward by Combs for these methods is that victims are empowered and able to relate their stories rather than simply providing evidence. In the end though, she contends that as a response to mass atrocities, such schemes stand a poor second best to criminal prosecutions. This reviewer found the list of governmental apologies for wrongdoings in the past very interesting (pp.19-20), especially in light of the Australian government’s refusal to apologize for the extremely poor treatment of its indigenous people. Whether these express apologies carry any greater symbolic value over monetary or implicit apologies is difficult to evaluate, but as the discussion indicates, they provide a ‘cheap’ alternative.

The level of funding for the prosecuting agencies in the various war crime tribunals and special panels is somewhat staggering, and in the second chapter Combs indicates that the ICTY, before the spate of guilty pleas in 2003, had spent almost $650 million to dispose of eighteen cases, only four by plea. As it currently stands, the ICTY has spent almost $1.25 billion and concluded proceedings for one hundred and five accused, of whom, fifty-one were sentenced and only sixteen pleaded guilty. One hundred and sixty-one individuals have been indicted by the ICTY at a cost of $7.8 million each. The level of funding for the ICTY has certainly increased in the last few years, and since 2002/3 the organisation has received approximately $771 million. [*797] These trials are extremely expensive, lasting on average seventeen months and, as indicated above, cost millions of dollars. As an example of the costs involved, Combs highlights the Kordić and Čerkez trial, which lasted twenty months, comprised two hundred and forty-one witnesses, four thousand six hundred and sixty-five exhibits, and had twenty eight thousand pages of transcripts (p.28). Combs further relates the costs of ICTR, the Special Panels and even the cost of prosecuting war crimes in domestic settings. It is in the face of such huge costs that prosecutors seem to be more willing to engage in practices that encourage guilty pleas.

In the third chapter, Combs questions whether the goals of criminal prosecutions are best served by targeting high-level offenders and whether they might be better served by prosecuting low level offenders. Combs suggests that the “[p]rosection of international crimes are said to advance a variety of penological goals, including retribution, deterrence, incapacitation and rehabilitation” (p.45). The ends served by international criminal prosecutions are nominally the same as those usually identified as relevant for sentencing in domestic settings. I found this idea quite problematic given that the usual goal of a prosecutor is to achieve a conviction, whether by trial or plea. Combs seems to suggest that prosecutors should be considering penological goals as part of their raison d’être. This would likely undermine even further the discretionary role of the judge in these proceedings. A case could be made for prosecutors to be aware of penological goals, but Combs does not make this argument. A further discussion of this aspect would have been useful. Combs asserts that “[w]hether the prosecution of international crimes advances any or all of these goals has lately been subject to question” (p.45). Unfortunately, Combs provides no further discussion of this important aspect or even the sources of the questioning.

In Chapters 4 to 6, Combs describes in detail the plea bargaining practices in the ICTY, ICTR and Special Panels. In particular a close examination is made of the nature of the bargain, the various justifications and subsequent effect on the sentences. In Chapter 4, Combs discusses the development of both charge and sentence bargaining through a close examination of trial transcripts of the ICTY. She observes that where defendants are sentenced outside the recommendations made by a prosecutor following a sentence agreement, the number of defendants willing to risk trial rather than plead may increase. More than ever, defendants are required, as part of agreements, to cooperate with the prosecution and provide testimony against other parties where appropriate. In the ICTR the situation is very different and this is taken up in detail in Chapter 5. Combs suggests that guilty pleas are more difficult to extract from defendants in, for example, Rwanda, because of the nature of their crimes. Combs highlights the belief that on the whole, ICTR defendants were happy to receive sentence discounts but were not willing to accept a guilty plea to genocide. She further notes, “by and large, ICTR defendants deny that the Rwandan violence constituted a genocide . . . the violence took place in the context of the long-running war between the government of Rwanda and Ugandan Tutsi rebel[s]” (p.97). In Chapter 6, Combs discusses the practice [*798] of plea bargaining in the Special Panels, but for the entire chapter the running header “The ICTR and Special Panels” seems to be in error. One of the significant facts is acknowledged is the level of dependence on guilty pleas to secure convictions. Combs feels that they are likely to become a more pervasive feature of an international criminal justice system that seeks to prosecute and convict more offenders.

The seventh chapter details the use of conventional plea bargaining techniques in order to increase the number of convictions for international crimes. Combs indicates that in the domestic setting there are various regulatory measures which can be adopted that might reduce some of the objections to plea bargaining, but in the end, trading a guilty plea for sentence leniency and financial saving still remains problematic. The general thrust of her argument is economic in nature; it is of fundamental importance to use plea-bargaining tactics to increase the overall number of convictions, or only a very small number of individuals will be held criminally accountable. Combs arugues that, “[t]he price that must be paid for guilty pleas is sentence leniency, but in the international context this price is no cost at all. By enabling more prosecutions to take place, plea bargaining will in most cases increase the overall punishment imposed in the context of each mass atrocity” (p.131). It is the argument that, if you offer a large enough discount, everyone will buy.

Chapter 8 underpins the core of Combs’ contentions; she suggests that in effect we should reconceptualize the general notions of plea bargaining as an economic imperative and instead adopt the view that it can be underpinned with restorative justice elements. Combs believes that a guilty plea system that embodies restorative justice principles would bear little resemblance to the domestic processes. There are three areas that Combs identifies as crucial to effective integration of restorative justice principles into plea bargaining practices. The first revolves around truth telling, whereby defendants would be required to give a full accounting of their criminal activities. Secondly, victim participation is an important addition to Combs’ system. The level of participation that Combs envisages for victims is unclear, although she advocates that victim-offender interactions should be encouraged wherever possible. The final aspect of the guilty plea system is reparation, including apologies. This is distinguished as a vital aspect of restorative justice, and Combs rightly highlights the often mitigatory value of apology in the process of sentencing.

The final part of this pivotal chapter deals with potential obstacles inherent with guilty pleas in the international criminal justice context. There are two important obstacles that Combs feels are especially compelling. First, defendants may not be inclined to provide information regarding co-conspirators and collaborators, although, when considered as an aspect of truth-telling, it is quite significant. The second obstacle, and I feel, the most problematic, relates to defendant fears of conviction and sentence severity. If there is more likelihood of conviction at trial and lengthy sentence after trial, defendants may be more compelled to plead guilty for some type of concession, whether charge or sentence. If financial constraints diminish the likelihood of [*799] prosecution, it is difficult to envisage many defendants pleading guilty. This problem is especially magnified in the case of the ICTY and ICTR where closure dates have been announced. The other main problem, I feel with this approach is that it requires judges, in the particular case before them, to accept, more or less, the penal goals that the prosecution feels are necessary. It requires judges to accept sentence recommendations and not exercise their discretion. Prosecutors in effect become judges, and judges are relegated to interpreters of rules of evidence and procedure.

In the remaining chapters Combs contextualizes her restorative justice guilty-plea system and attempts to apply it, in the form of case studies, to Argentina, Bosnia, Rwanda and East Timor. She examines the difficulties of applying the three aspects of restorative justice in contexts of the different countries. In the final chapter the restorative justice features of Combs’ guilty plea system – namely victim participation, truth telling, and reparatory measures – are examined, with particular emphasis on the extent to which each is represented in the current plea bargaining processes of the ICTY, ITCR and Special Panels. In concluding, Combs is not optimistic about the international community’s response to future mass atrocities, especially given the failure of the current prosecutorial measures. It remains to be seen though whether a way forward can be found utilising Combs’ guilty plea model.

On the whole, this reviewer enjoyed Comb’s meticulously detailed work. I was, however, left feeling that Combs would want to move away from the adversarial process towards an inquisitorial model, as this would better facilitate embedding restorative justice principles into a guilty plea system. In the adversarial model, prosecution decisions need to be based on achieving convictions, and only secondarily concern themselves with penal goals. Penal goals need to remain the domain of sentencing judges.

As with many legal monographs, the inclusion of notes as endnotes is very frustrating; this reviewer prefers footnotes. There are some 1,232 endnotes, accounting for almost one-third of the book. The only other criticism of the layout is the manner in which the bibliography is organised. Dividing references into categories (books, books chapters, articles and such) makes utilising the bibliography very difficult and time consuming. It was also puzzling that there was not any reference to the work of Ralph Henham and Mark Findlay (2005) and their work on the transformation of international criminal justice and incorporating restorative justice into the trial process.

REFERENCES:

Findlay, Mark, and Ralph Henham. 2005. TRANSFORMING INTERNATIONAL CRIMINAL JUSTICE: RETRIBUTIVE AND RESTORATIVE JUSTICE IN THE TRIAL PROCESS. Devon: Willan.

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© Copyright 2007 by the author, Andrew Vincent.

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REPARATIONS: PRO AND CON

by Alfred L. Brophy. New York and Oxford: Oxford University Press, 2006. 312pp. Cloth $29.95/£17.99. ISBN: 9780195304084.

Reviewed by Marie J. Fritz, Department of Government and Politics, University of Maryland, College Park. Email: mfritz [at] gvpt.umd.edu.

pp.793-795

In REPARATIONS: PRO AND CON, Alfred L. Brophy surveys the major arguments presented by those on both sides of the black reparations debate. Talk of reparations has increased in the past decade, but despite increased visibility in the press, on college campuses, and among the business sector, reparations advocates and opponents, Brophy points out, focus on different sides of the debate and fail to communicate with one another. The author admits that although “it is not possible to reach definitive conclusions about these issues, it is possible to identify the key arguments on either side and to suggest some of the ways that we can focus the debate and evaluate the utility of reparations” (p.xii). This vague central thesis offers the reader little insight on what to expect.

Following the introduction is a chapter that explores the definition of reparations. Chapter Two traces reparations efforts from the late eighteenth century through the present. Brophy explains that various forms of reparations existed prior to the abolitionist period and the United States Civil War. As early as 1781 a person held as a slave in Massachusetts, who had been promised emancipation, sued his owner for assault and battery and won. The suit did not include a claim for unpaid labor, but subsequent judgments across the states occasionally granted former slaves payment for unpaid wages (p.20). The history of reparations becomes more complex during the Civil War and the Reconstruction period as Northern elites sought to break apart the Southern oligarchy. In 1862 President Lincoln signed the District of Columbia Compensated Emancipation Act, which immediately emancipated slaves in the city and provided compensation to former slave owners in Washington, DC who were loyal to the Union (p.25). Under this Act these former slaves were also promised monies to emigrate outside of the United States. Three years later, Congress established the Freedmen’s Bureau to resettle former slaves and adjudicate property claims, among other goals; however, attempts at land redistribution often proved futile as President Andrew Johnson revoked earlier land confiscation orders, Southern courts seized jurisdiction from the Bureau, and black farmers were often left with no other option than to sign labor contracts with extremely unfavorable terms and in many cases with former owners. Brophy asserts that, although the Freedmen’s Bureau did not intend to compensate for past unpaid labor, “the goal was forward-thinking, trying to make it possible for the freed slaves to be economically self-sufficient” (p.26). For a detailed and insightful exploration of the Freedmen’s Bureau, see Williams’ THE CONSTRAINTS OF RACE: [*794] LEGACIES OF WHITE SKIN PRIVLEGE IN AMERICA (2003).

Although the period of Reconstruction saw increased federal efforts at formal equality for blacks, these attempts existed alongside a growing social and political environment infused with extreme racial violence. After 1877 there were periodic attempts at reparations for former slaves, but for decades attention focused primarily on addressing unequal treatment formalized by the Jim Crow system (p.34). In 1969, James Forman called for white churches and synagogues – which he viewed as constitutive of American capitalism – to pay reparations to blacks, marking the start of the modern reparations movement (p.37). Soon after, law professor Boris Bittker added another layer to the reparations debate by moving away from unpaid labor and a contributions-based approach towards promoting a harm-based analysis of entitlement (p.39). Black reparations activism remained anemic through the 1970s and 1980s. Meanwhile, some American Indian communities and Japanese American internment camp survivors received limited reparations from the federal government (p.40).

Brophy explores the contemporary black reparations movement in Chapter Three. He asks why the issue has received renewed scholarly and popular attention in recent years, and cites the confluence of bleak economic and social indicators for black Americans, the decline in support of affirmative action programs, and the development of critical race theory (CRT) as the intellectual foundation for black reparations proponents. In addition, he states, “Awareness of past tragedies and their impact on the present has led to a renewed focus on tragedies” (p.57). Brophy points to a series of law review articles by critical race legal scholars that were crucial in shaping the current reparations debate. Central to most of these arguments are the following: American jurisprudence has not been responsive to the needs of minorities, so we should look to the least advantaged groups for political and legal insights; color-blind approaches to legal remedies are shortsighted and overlook profound, internalized racism; and finally, group remedies are required to address group-based harms. These themes were subsequently popularized by reparations proponents outside of academia and the proposed remedies, Brophy explains, range from seeking distributive justice to establishing separate states for African Americans (p.74).

In Chapter Four, Brophy turns to arguments opposing reparations for blacks. He groups the arguments into four categories: lack of legal liability, compensation has been paid through social welfare provisions, compensation is not politically viable, and reparations are divisive. The most popular argument against reparations is that general, societal liability does not exist, so citizens today cannot be responsible for something over which they had no control (p.77). Another common criticism of reparations is that Great Society programs, including anti-poverty measures and affirmative action, and contemporary public benefits, such as cash assistance and subsidized housing, are forms of reparations payments (p.82). The author rightly points out that public assistance programs are not race-based; therefore, such programs should not be considered “payment” for past [*795] injustices. Some commentators opposed to black reparations present arguments that run the spectrum from the absurd (despite slavery, blacks are better off in the United States than if they had remained in Africa) (p.82) to the macabre (the Civil War as atonement for slavery) (p.85). Here, Brophy responds to even the most peculiar anti-reparationist arguments judiciously. Although he clearly sympathizes with efforts by black reparationists to find ways to address adequately years of brutalization and inequality, Brophy agrees that reparations payments are likely lead to more divisiveness. Ultimately, the author concedes, “This may be yet another instance in which African Americans will have to be content with not what is just but with the knowledge that they have contributed yet again to the enrichment of American society, though they have not received adequate compensation for their labor” (p.94).

The final section of the book, which Brophy describes as “reparations in practice” and includes discussions of reparations lawsuits and legislative reparations, is the most concise of the volume. Brophy seems most comfortable evaluating case law and legal doctrine. However, by focusing on reparations litigation and other pro-reparations strategies, the section seems out of step with the theme of the book.

In the concluding chapter, Brophy summarizes the volume by identifying four models of reparations, but without a comprehensive discussion of the political and legal feasibility of such proposals, the section reads like a textbook, with numerous rhetorical questions and hypothetical possibilities that are more nebulous than instructive. In fact, in relation to the reparations options he outlines, Brophy instructs the reader as follows: “See which ones, if any, you like – and how much you think they will accomplish” (p.169).

As a technical issue, the book could have benefited from sharper editing. For example, in a discussion of the numerous futile apologies former President Bill Clinton made with respect to the Rwandan genocide that occurred while he was in office, Brophy states that the genocide “left something like a million people dead” – an oddly casual reference given the topic (p.48). Brophy provides a sufficient summary of the debate surrounding reparations for blacks in the United States; however, political scientists and legal historians may find the volume lacking in analytical depth. While the author makes some valuable points, unfortunately, the volume fails to add to the debate.

REFERENCES:

Williams, Linda Faye. 2003. THE CONSTRAINTS OF RACE: LEGACIES OF WHITE SKIN PRIVLEGE IN AMERICA. State College, PA: The Pennsylvania State Press.

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© Copyright 2007 by the author, Marie J. Fritz.

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LAW AND THE POLITICS OF RECONCILIATION

by Scott Veitch (ed.). Aldershot, England and Burlington, VT: Ashgate, 2007. 256pp. Hardback: $99.95/£55.00. ISBN: 9780754649243.

pp.788-792

Reviewed by Adriana Buliga-Stoian, Department of Political Science, Binghamton University – SUNY. Email: mbuliga1 [at] binghamton.edu.

LAW AND THE POLITICS OF RECONCILIATION, edited by Scott Veitch, is an attempt to capture the conceptual complexities of reconciliation. As Emilios Christodoulidis and Scott Vetch explain in the Introduction to the volume, the main tenet of the book is that reconciliation is not merely a political process. Recognizing that reconciliation is a multi-layered process, this collection of essays is a survey of the main themes that mark its understanding. Some of the contributors to the volume, such as Andrew Schaap, Fernando Atria, Zenon Bankowski, and Adam Czarnota, link reconciliation to theology and philosophy, where they maintain that the concept was first forged. Others emphasize the manner in which time and perceptions of time may cause or affect the practical aspects of the reconciliation process (Brenna Bhandar and Adam Czarnota). Further, essays signed by Setwart Motha, Lorna McGregor, Peer Zumbansen, and Claire Moon deal with the manner in which the law and legal institutions may aid or hamper the process of reconciliation. And, in line with the statement that reconciliation is a multi-faceted concept, some essays deal with reconciliation between various perceptions of time (Brenna Bhandar), especially in the context of globalisation (Adam Czarnota), and reconciliation in a feminist perspective (H. Louise du Toit). The book addresses a wide audience, ranging from theology and philosophy scholars to legal theorists, sociologists and social scientists, in general.

However, the volume does not offer the kind of political analysis of reconciliation that a mainstream political scientist would expect. The political sphere is assumed to play a role in the reconciliation process, but the volume does not delve into the mechanisms by which the political process shapes and produces the outcome of reconciliation. That being said, it becomes important to bring to your attention the essay signed by Andrew Schaap, Research Fellow in Politics, at the University of Melborne. In “The Time of Reconciliation and the Space of Politics,” Schaap offers a definition of political reconciliation that nicely sets its boundaries in relation to other forms of reconciliation, as well as its main focus. In the author’s opinion, reconciliation in a political context cannot be an issue of redefining the past, as individuals and groups have created their own narratives to make sense of it, nor can it discover a common normative ground in a past marked by divisions and enmity. Rather, political reconciliation should focus on creating a common future through the act of constitutional design. The concepts presented in the essay will sound familiar to institutionalists, although Schaap‘s analysis is framed more in philosophical [*789] terms and follows in the footsteps of Arendt’s (1958; 1977) theoretical work.

In Schaap’s interpretation, the constitution is of crucial importance for the society to move away from a divisive past towards a common future. A constitution cannot offer a common normative ground but it can lay the foundation for common actions and a new identity in the future. The process of reconciliation is based on a promise of “never again,” and the constitutional order established during the transition should provide strong guarantees to that effect. Constitutions define a ‘we’ that might have not existed in the past but is brought together in the name of opportunities created by the new constitutional order. Schaap’s view of constitutions as a beginning and guarantee against the horrors of the past is very well understood in the light of formal theory. Namely, that constitutions and rules in general create expectations about behavior of political actors and helps them coordinate a common path of action, while each attempt to realize their goals (Elster 1995; Knight 1992; Lijphart 1992; North 1990). Constitutions can act as stabilizing forces for the future and can bring different groups to act together under a single banner if they provide a distribution of benefits and opportunities that all parties perceive as the best possible, given the circumstances. The ability to commit credibly to the set of rules specified in the constitution is highly dependent on the opportunities that the constitution offers to each party and the underling balance of power (North and Weingast 1989; Przeworski 1991). Of course, constitutional theorists and institutionalists would point out that the realization of such an ideal is not an easy task from a practical perspective because the constitution itself is the result of the underlying balance of power and distribution of resources in the polity, which in most cases is shaped by the very past the constitution is attempting to overcome (Elster 1995; Shapiro and Stone 1994; Shvetsova 2003).

A major theme of the volume is tracing the meaning of reconciliation back to its origins in Christian theology and philosophy. Schaap argues that the original concept of reconciliation does not directly translate into the realm of politics. Reconciliation as envisioned by religion and Christian theology takes place between a unified and abstract humanity, in which individuals lose their individuality in order to become one with God, while reconciliation in the political meaning of the word has to acknowledge the diversity of human identities and the conflicts that stem from it. Fernando Atria argues that the Christian origins of reconciliation are mirrored in its political incarnation by the demand for punishment and forgiveness. However, the translation of the meaning of reconciliation from one realm to the other has altered its tenets and, unaware of the metamorphosis of the term, we might miss its actualization. In the Atria’s opinion, reconciliation is defined by a revolutionary moment in time when something essential is revealed about the parties – their humanity. The politics of reconciliation would guarantee that individuals can live fundamentally human lives. From reading the two essays, another line of [*790] inquiry suggests itself. One cannot help but wonder how the meaning of reconciliation, originated by Christian theology, is reflected by the politics of societies dominated by different religious traditions. What is the meaning of reconciliation for polities such as Rwanda, Somalia, Pakistan, India or Palestine, to give but a few examples. Is it the case that we are placing our understanding of reconciliation on a process that is understood differently by the parties to it in such societies, or maybe the concept has crossed cultural boundaries to the point where reconciliation, in the political sense, has acquired a meaning that is generalizable across cultural boundaries?

A number of essays deal with the manner in which the law and legal institutions affect the politics of reconciliation. The law can become an obstacle to reconciliation if used merely as a political tool. Lorna McGregor presents the relation between the law and the reconciliation process as a power struggle “between the metaphysical structures of reconciliation and the law” (p.114). The relationship is structured in this manner because the law, when used as a tool in the hands of the state, “attaches concrete reductive meaning to clearly identifiable spaces, whereas reconciliation inhabits a temporally detached universe appearing both everywhere and nowhere” (p.114). Another source of conflict between the law and reconciliation, defined broadly, is the law’s ability to retain the influences from the past that the reconciliation process is trying to overcome and heal. The essay by Lorna McGregor can be seen as a theoretical framing for the two essays discussed below.

Setwart Mortha analyzes the role of the law in post-colonial Australia and the ambiguity it grants to the process of reconciliation. On the one hand, the law emphasizes the importance of property rights and redistribution as a means of redress for injustices of the colonial era, but at the same time law is called upon to support and legitimize the sovereignty of a state within borders that have been drawn by colonialism. It is this contradiction in the goals set forth for the legal system that cause the reconciliation process to lag behind expectations and to address a community of natives that, Motha asserts, cannot continue to exist and perhaps never really existed. Brenna Bhandar finds evidence of the same type of contradictions in rulings of the Canadian Constitutional Court but looks for a cause that could explain the political choices that have come to structure the reconciliation process in legal terms. In Bhandar’s opinion, our perception of time underline political choices and explain the manner in which the law is called upon to structure the reconciliation process. A linear, teleologic perception of time may also account for our need for reconciliation, while a perception of time as a flux of narratives might make the reconciliation process unnecessary or an easier burden.

Taking a different approach, Claire Moon assesses the positive role that legal institutions can play in the reconciliation process. In combination with other means of bringing peace and healing to a society marked by violence, [*791] the courts can become a good environment for the administration and implementation of reconciliation as retribution for previous harms. In South Africa, the reconciliation process entailed a combination of therapeutic methods, such as confessions and testimonials, and appeals to courts for material compensations. The process in South Africa is a testimonial of the two aspects of reconciliation: emotional healing and compensation for injuries. The courts are suited to handle the latter aspects, but they cannot be expected to carry out the entire process on their own.

All the essays reviewed above call on the need to separate the legal from the political in order for normative ideals of reconciliation to take shape. However, a growing number of studies in judicial politics emphasize the political origins of laws and legal institutions (McCubbins, Noll, and Weingast 1995; Shapiro 1981; Stone Sweet 2000; Stone Sweet 2002). Some studies indicate that independent judges call upon their political preferences when applying or interpreting the law to a given case (Segal and Spaeth 2002). There is, no doubt, some tension between the normative ideals outlined in these essays and empirical evidence presented by the above mentioned studies. Perhaps future research will reconcile the two lines of thought by either showing the manner in which the law can be separated from politics or by proving that such a separation cannot be achieved based on fundamental principles of the human condition.

In conclusion, the book addresses questions of interest to a wide audience. The volume’s lack of in-depth analysis is compensated by the diversity of ideas presented and the wide representation of academic disciplines. It asks a number of intellectually interesting questions and, in addressing them, raises intriguing questions for further research.


REFERENCES:

Elster, Jon. 1995. “Forces and Mechanism in the Constitutional-Making Process.” 45 DUKE LAW JOURNAL 364-396.

Knight, Jack. 1992. INSTITUTIONS AND SOCIAL CONFLICT. Cambridge: Cambridge University Press.

Lijphart, Arendt. 1992. “Democratization and Constitutional Choices in Czecho-Slovakia, Hungary and Poland.” 4 JOURNAL OF THEORETICAL POLITICS 207-223.

McCubbins, Matthew, Roger G. Noll, and Barry Weingast. 1995. “Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law.” 68 SOUTHERN CALIFORNIA LAW REVIEW 1631-1683.

North, Douglas C. 1990. INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE. Cambridge: Cambridge University Press. [*792]

North, Douglass C., and Barry R. Weingast. 1989. “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England.” 49 THE JOURNAL OF ECONOMIC HISTORY 803-832.

Przeworski, Adam. 1991. DEMOCRACY AND THE MARKET: POLITICAL AND ECONOMIC REFORM IN EASTERN EUROPE AND LATIN AMERICA. Cambridge: Cambridge University Press.

Segal, Jeffrey A., and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. New York: Cambridge University Press.

Shapiro, Martin. 1981. COURTS. A COMPARATIVE AND POLITICAL ANALYSIS. Chicago and London: The University of Chicago Press.

Shapiro, Martin, and Alec Stone. 1994. “Introduction: The New Constitutional Politics of Europe.” 26 COMPARATIVE POLITICAL STUDIES 397-420.

Shvetsova, Olga. 2003. “Endogenous Selection of Institutions and Their Exogenous Effects.” 14 CONSTITUTIONAL POLITICAL ECONOMY 191-212.

Stone Sweet, Alec. 2000. GOVERNING WITH JUDGES. CONSTITUTIONAL POLITICS IN EUROPE. Oxford: Oxford University Press.

Stone Sweet, Alec. 2002. “Constitutional Courts and Parliamentary Democracies.” 25 WEST EUROPEAN POLITICS 77-100.

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© Copyright 2007 by the author, Adriana Buliga-Stoian.

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VISIONS OF CONTRACT THEORY: RATIONALITY, BARGAINING, AND INTERPRETATION

by Larry A. DiMatteo, Robert A. Prentice, Blake D. Morant, and Daniel D. Barnhizer. Durham: Carolina Academic Press, 2007. 276pp. Cloth. $45.00. ISBN: 9781594602177.

Reviewed by Andrew T. Hayashi, Department of Economics and Boalt Hall School of Law, University of California, Berkeley. Email: ahayashi [at] berkeley.edu.

pp.783-787

While VISIONS OF CONTRACT THEORY is “intended to be a holistic product of scholarly cooperation,” because Larry DiMatteo, Robert Prentice, Blake Morant, and Daniel Barnhizer, partitioned the landscape of contract theory according to their areas of expertise, the book is marked by radical shifts in tone and balance. After an introductory chapter outlining the authors’ view that “all the theories of contract offer insight,” and rejecting “the idea that one metaprinciple, or theory, can explain all of contract law,” Prentice devotes three chapters to, rather uncharitably, describing and criticizing the Law and Economics program and “Behavioral Decision Theory” (BDT). In sharp contrast, Chapter 5 presents Barnhizer’s largely descriptive, but balanced and comprehensive survey of the role of bargaining power in contract theory, while in Chapter 6 he presents the original thesis that a legal conception of bargaining power may be useful in helping define the class of agreements which ought to be regulated by the law of contracts. In Chapter 7, DiMatteo provides a careful, descriptive account of the jurisprudence of Karl N. Llewelyn and Ronald Dworkin, but one that requires much more of the reader in terms of abstract thinking and that is somewhat jarring coming on the heels of the previous essays. Chapter 8 introduces DiMatteo’s novel theory of contract interpretation, which attempts to “bridge the contextual and conceptual mind-sets” of Llewelyn and Dworkin. Veering back from the high theory of Chapters 7 and 8, the book’s final chapter presents Morant’s discussion of various perceived weaknesses in classical contract theory with an emphasis on its lack of contextual sensitivity, particularly with respect to the effects of power and discrimination in contracting environments, criticisms rooted in the traditions of Critical Legal Studies, Critical Race Theory, and Feminist Legal Theory.

Because VISIONS OF CONTRACT THEORY is so broad in scope, and diverse in content and style, I suspect that every reader will find some of the descriptions and analyses helpful, illuminating, and provocative, while finding others somewhat less so. However, there is no question that the book meets its aim of serving as a general reference on contract theory, and it is full of useful citations.

In my view, Barnhizer’s novel use of the concept of bargaining power, to demarcate the classes of transactions properly regulated by the law of contracts from those which are not, is especially interesting and worthy of further development. Prentice’s survey of the history of the Law and Economics [*784] movement also warrants some discussion, for provoking important questions about prospects of he Law and Economics and BDT research programs.

Chapter 6 is entitled “Bargaining Power as Contract Theory” and contains a new and interesting use of bargaining power to describe the contours of contract law. Barnhizer suggests that a two-part test applied to the character and distribution of bargaining power across classes of transactions can explain why certain agreements are subject to the comparatively hands-off regime of contract law, while other agreements are subject to more intrusive regulatory structures. On this account, transactions in which the parties (1) each possess bargaining power, that is (2) legally cognizable, are subject to contract law. A party possesses bargaining power when she has the power to influence the outcome of the bargain. Although this is a plausible definition of bargaining power, an operational definition is, and always has been, lacking. In light of the subtle ways in which power can be held and exercised, it is very difficult to point to objective features of the parties or the bargaining environment that uniquely determine the allocation of bargaining power.

An important motivation for Barnhizer’s theory is the recognition that, in any individual context, the distribution and sources of bargaining power may be subtle, elusive, and complicated. He is very pessimistic about the ability of judges to discern the distribution of bargaining power, asserting that the “[r]egulation of private agreements on the basis of perceived inequalities of bargaining power is, at least to some degree, incoherent and indeterminate” (p.123). This is an important point. In addition to the fact that power relationships are often subtle and complex, we should expect that judges, like anyone else, are susceptible to psychological biases that may cause them to pay attention to certain manifestations of power and neglect others.

On the other hand, Barnhizer is optimistic that, while legal decision-makers cannot be trusted to determine the allocation of bargaining power in an individual case, accurate generalizations can be made about the arrangement of bargaining power in a typical case in a class of transactions. For instance, although there might exist a situation in which a large insurer is in a weaker bargaining position than the insured, this is typically not the case, and it is within the judicial and legislative areas of expertise to determine and recognize when such relationships typically are characterized by an imbalance of bargaining power in one direction or the other.

The second condition that must be satisfied if a class of agreements is to fall within the ambit of contract law is that the power relationship between the parties is legally cognizable. Legally cognizability requires that the rules governing the parties’ power relations can be applied to other parties similarly situated and are “credible to outside observers who regularly reassess the authority of courts to determine those issues” (p.131). This condition requires that the power relationship between the [*785] parties be fairly uncomplicated and well understood by legal decision-makers, and also introduces an interesting quasi-democratic feature to the test, since the only classes of promises which are enforced under contract law are those in which there is popular agreement about the nature of the rules of power in a given transaction type. On the one hand, this is a plausible explanation of how certain agreements have come to fall within the purview of contract law while others have not. Courts will have a hard time assuming or asserting what the public views as obviously untrue. Barnhizer suggests that legal doctrines relying on notions of unequal bargaining power emerged from the untenability of LOCHNER-era contract doctrine, which relied on the view that competent parties to a transaction possessed equal bargaining power. In the face of a potential credibility crisis, the legally cognized rules of power were reconfigured to admit asymmetries in the distribution of power.

However, as a normative criterion for deciding which classes of promises to enforce under contract law and which to relegate to a more intrusive regime, the merits of Barnhizer’s test are less obvious. In particular, if one believes that agreements arising out situations of asymmetric bargaining power ought to be enforced in certain circumstances, then Barnhizer’s test appears too broad. Parties with very little bargaining power might be better off bound by their agreements than have it be known ex ante by their prospective counterparty that they are risky trading partners. Secondly, if it is in fact within the institutional expertise of the courts and legislature to determine the nature of bargaining power within classes of transactions, it may not be a good thing to further require that the power relationship they identify persuade “outside observers.” Consumer protection groups are likely to perceive (or at least claim to perceive) bargaining power to be allocated one way, while industry groups are likely to perceive it another. A useful clarification of this test would identify the universe of “outside observers” whose opinions count.

As a descriptive account of contract law, Barnhizer’s thesis is a fine contribution that I hope will be developed in future work. Although I do not find the application of “Bargaining Power as Contract Theory” to promissory estoppel and donative promises especially persuasive (indeed, Barnhizer’s view that promissory reliance could itself constitute bargaining power seems only to highlight the fact that “bargaining power” could use a much more rigorous definition), I do not doubt that his test could explain a great deal of the sorting of transaction types between contract law and other, more intrusive regimes. As a normative theory, I suspect that it is somewhat incomplete insofar as it does not take into account economic efficiency consequences at all in deciding whether promises made in the shadow of asymmetric bargaining power should be enforceable. Although economic efficiency should not become the sole preoccupation of contract law, it ought to be given some weight in the development of doctrine.

A survey of contract theory scholarship can hardly omit the contributions made [*786] by the Law and Economics literature and those contemporary researchers who operate within that broad framework but incorporate more realistic assumptions about human psychology into their analysis. Thus, Prentice devotes two chapters to a description and critique of Law and Economics and BDT. His survey is fairly comprehensive but excludes certain recent developments in the field which will likely be of interest to law students and researchers, the target audience of the book.

Covering such a vast literature in a general reference work, as this book is intended to be, necessarily entails some simplification. Nonetheless, many of Prentice’s assertions about what economists believe and assume about the appropriate role of contract doctrine seem overbroad in light of developments in the last decade. Prentice acknowledges that there is some diversity within the field; yet, one still comes away with a rather monolithic view of economists and economics-minded lawyers. It is true that economists such as Kaplow and Shavell, and economically-minded non-economists like Judges Posner and Easterbrook, have argued that contract law ought to serve the lone goal of economic efficiency. However, there have been important contributions to this debate made from within the Law and Economics tradition, arguing that the law ought to deviate from strict efficiency goals in the presence of any social preference for equity, rather than try to accomplish redistribution solely through taxes and transfers (e.g., Sanchirico 2000; 2001). Economists Ulrike Malmendier and Stefano Della Vigna explore the efficiency characteristics of contracts made between profit-maximizing firms and human persons who exhibit realistic psychological biases (see e.g., Malmendier and Della Vigna 2006; 2004). Although their models of the contracting environment include agents who have “behavioral traits” (quasi-hyperbolic discount rates, implying impatience) and thus Prentice would probably locate them in the BDT camp, they are, in fact, simply economists who believe that economic models may improved by taking seriously human psychology.

The criticisms recited by Prentice about BDT’s application to law are virtually the same as some of the objections that were raised against behavioral economics in its early stages: that it serves to undermine the foundations of traditional economic analysis without offering something to replace it with, that its insights are context specific and, in Prentice’s words, “unable to be melded into an overarching theory” (p.49). These and other objections were once a hot topic within economics but are no longer much discussed. What is interesting about these questions is that they were initially raised by economists primarily concerned about methodology and the status of economics as science. Even if these questions had remained unanswered, which I do not believe to be the case, it is not clear that they apply equally to whether behavioral economics can be usefully applied to contract law as to whether the research program weakens economics’ claim to be scientific. In particular, the fact that BDT may not provide an “overarching” [*787] or “unified” theory of contract law should hardly be seen as a weakness in light of the authors’ thesis at the outset that many theories may provide insight into contract law and rejecting the notion that one theory can explain it all. What matters is that BDT may assist in some way the positive and normative theorizing about contracts. That is the threshold for each of the other approaches to contract theory discussed in VISIONS OF CONTRACT THEORY, and it is the appropriate standard for behavioral decision theory.


REFERENCES:

Della Vigna, Stefano, and Ulrike Malmendier. 2006. “Paying Not to Go to the Gym.” 96 AMERICAN ECONOMIC REVIEW 694-719.

Della Vigna, Stefano, and Ulrike Malmendier. 2004. “Contract Design and Self-Control: Theory and Evidence.” 119 QUARTERLY JOURNAL OF ECONOMICS 353-402.

Sanchirico, Chris William. 2000. “Taxes versus Legal Rules as Instruments for Equity: A More Equitable View.” 29 JOURNAL OF LEGAL STUDIES 797-820.

Sanchirico, Chris William. 2001. “Inequity and Distortion: The Continuing Debate on Equity and Efficiency in the Law (A Counter-Response to Professors Kaplow and Shavell).” 2001. UVA Law School, Law-Economics Research Paper No. 00-19. Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=241573.

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© Copyright 2007 by the author, Andrew T. Hayashi.

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WAR AND LIBERTY: AN AMERICAN DILEMMA: 1790 TO THE PRESENT

by Geoffrey R. Stone. New York, NY: W.W. Norton & Company, Inc., 2007. 224pp. Paper. $14.95. ISBN: 9780393330045.

Reviewed by Torin Monahan, School of Justice and Social Inquiry, Arizona State University. Email: torin.monahan [at] asu.edu.

pp.781-783

“The line between reason and repression can be elusive and is often ignored” (p.xvii)

Geoffrey R. Stone’s book sets out to explore how the United States has negotiated the line between reason and repression, especially during times of war. Time and again the US has turned to repression and violated the civil liberties and constitutional rights of individuals. Nonetheless, Stone illustrates important differences among decisions during wartime crises and argues that the country has learned from some previous episodes and has the potential to learn a great deal more. In an accessible and engaging style, Stone reviews seven major instances of wartime restrictions upon liberties, from the implementation of the Sedition Act of 1798 and other related legislation in the “Half War with France,” to today’s surveillance, extraordinary rendition, and indefinite detention programs that mark the “war on terror.” The other events covered include Lincoln’s suspension of the writ of habeas corpus during the Civil War, Wilson’s backing of espionage and sedition acts during World War I, Roosevelt’s role in establishing internment camps for Japanese citizens during World War II, McCarthy’s rampage against accused communists during the Cold War, and multiple presidents’ complicity in the spying, infiltration, and disruption of protest groups and others during the Vietnam War. Rather than being a detailed history, full of stories, complexities, and dates, this is a relatively simple but important book geared perfectly toward undergraduate and popular audiences. In essence, it is the stripped down, barebones version of Stone’s earlier work PERILOUS TIMES (2004).

Restrictions upon liberties during times of war fall into somewhat predictable patterns, which can make our national predilection for repeating them all the more troubling. One important trend covered by Stone is how internal politics and concerns for elections often play a major role in guiding the behavior of elected officials. In discussing John Adams’ push to pass the Sedition Act of 1798, Stone relates: “The act had been adopted as a war measure to strengthen the nation in its impending war with France, but had served as a political weapon to strengthen the Federalists in their partisan war with the Republicans” (p.16). Thus, individuals critical of the president or of the war efforts – including a congressman and vocal journalists – were jailed, ostensibly to protect the country from the contagion of treasonous talk, but perhaps primarily to safeguard the dominance of the Federalist party. In another example, during WWII, President Roosevelt intentionally delayed the release of [*782] Japanese Americans and others wrongly interned until after the presidential election of 1944 because he was concerned about losing voter support on the West Coast (p.79). Then again, during McCarthy’s rise to power during the Cold War, Republican politicians who might otherwise not have been supportive of McCarthy’s tactics chose to embrace them in their efforts to regain the White House (p.93). Political opportunism is an especially distasteful dimension to violations of civil liberties during times of war because it tends to feed xenophobia and intolerance for the sake of personal gain.

Another historical trend is the coupling of patriotism with paternalism. For example, public support for the involvement of the US in WWI was intentionally crafted through techniques that we might now refer to as being downright Orwellian. Stone writes:

To build a sense of patriotic fervor, Wilson established the Committee on Public Information (CPI), under the direction of George Creel, a journalist and public relations expert. Creel’s task was to generate enthusiasm for the war. Under his direction, the CPI produced a flood of pamphlets, news releases, speeches, newspaper editorials, political cartoons, and even motion pictures. His efforts concentrated on two main themes: feeding hatred of the enemy and promoting suspicion of anyone who might be “disloyal” . . . In the first month of the war, Attorney General Gregory urged “loyal” Americans to act as voluntary detectives and to report their suspicions directly to the Department of Justice. The results were staggering. (pp.49-50)

In this and other cases, once the flames of patriotism have been fanned into almost uncontrollable conflagrations, state leaders step in to handle the crises claiming that they know what is best for the country, while asserting that what is best must require extreme actions and executive privilege. Typically, this includes questioning the loyalty of “aliens” within the country and of anyone else who voices opposition to wartime policies. One of the key strengths of this book is that Stone is able to criticize each of these instances in their specific historical contexts, while simultaneously holding them up for comparison against the current “war on terror.”

Eventually, almost all wartime restrictions upon liberties are found to be unconstitutional and repealed. Then leaders embark upon elaborate, but ultimately insufficient, rituals of public remorse. Reparations are made, medals given, pardons granted, public apologies voiced, cases overturned, and so on. The lesson to be learned here, as Stone would put it, is that especially during times of war, citizens can neither trust the judgment nor the ability of the individuals and institutions charged with protecting liberties. Both Congress and the Supreme Court have repeatedly capitulated to the desires of the president in times of crisis, upholding censorship laws and the legality of Japanese internment, for instance. Stone asserts that public vigilance is needed to protect – and insist upon leaders protecting – civil liberties no matter what the situation. The supposed risk of compromising security through such protections is simply not supported by [*783] history, but violations of liberties, on the other hand, are manifest. He explains: “Although Congress and the president have often underprotected civil liberties in wartime, there is not a single instance in which the Supreme Court has overprotected those liberties in a way that caused any demonstrable harm to the national security” (p.180).

The book’s final caution concerns our current “war on terror.” In some ways the policies and practices surrounding this war are less outwardly restrictive than those of previous wars. Muslim Americans are not being interned en masse, for instance, and notable war critics, such as Howard Dean, are not being locked up for their verbal attacks on the president. Stone tells readers that this is a positive sign that the nation is learning from history. In other ways, however, current restrictions on liberties must be considered as qualitatively different from those of the past. In previous cases, wars were seen as finite and violations temporary, whereas the “war on terror” is discursively framed as indefinite in duration. The levels of secrecy concerning spying, detainment, and torture are also unprecedented, making public critique and executive accountability all the more difficult. In Stone’s estimation, the secret detention of so-called enemy combatants is one of the most reckless assertions of executive authority in American history . . . With the wave of his hand, Bush made an American citizen [José Padilla] disappear. This is the closest we have ever come to what might fairly be described as a ‘Gestapo-like tactic’. . . To this day, we have no way of knowing how many other American citizens, if any, remain in secret custody. (p.135).

Such changes in tactics, along with the consolidation of the mainstream media (which Stone does not discuss), present serious challenges to the preservation of civil liberties and an active civil society. This book offers one effective means of encouraging discussion of these issues, especially in classroom environments, and fostering productive critique of current practices in light of similar (and dissimilar) ones in the past.

REFERENCE:

Stone, Geoffrey R. 2004. PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM. New York, NY: W.W. Norton & Company, Inc.

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© Copyright 2007 by the author, Torin Monahan.

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THE CULTURE OF FLUSHING: A SOCIAL AND LEGAL HISTORY OF SEWAGE

by Jamie Benidickson. UBC Press, 2007. 432pp. Hardcover. $85.00. ISBN: 9780774812917. Paper. $29.95. ISBN: 9780774812924.

Reviewed by Shahla F. Ali, Jurisprudence & Social Policy Program, University of California, at Berkeley. Email: Shahla.ali9 [at] gmail.com.

pp.777-780

Rarely have legal histories peered into the latrines of the 19th and 20th century. Fortunately, the view from within Jamie Benidickson’s book, THE CULTURE OF FLUSHING: A SOCIAL AND LEGAL HISTORY OF SEWAGE, is informative and quite comprehensive. A reader looking for a full examination of the social and legal history of sewage in Canada, the United States and the United Kingdom will find it in this volume. Benidickson moves through 200 years of sewage history by focusing on key developments in our attitude and treatment of sewage in major urban centers, including Toronto, New York, Chicago, and London. He chronicles the early history of neglect and the prevailing attitude of streams as “nature’s sewers” and how water came to become an acceptable medium for disposing urban and industrial waste. With clarity and insight, Benidickson traces the major court battles, and legislation culminating in the Clean Water Act of 1972. Each step in the murky legal and cultural history of waste disposal, including the legislative attempts, the arguments made in court, the judicial opinions issued at various stages of ongoing litigation is clearly summarized. The author also puts this legal history in the larger context of environmental degradation, national legislation, and changing cultural attitudes and norms of collective responsibility.

The history of sewage described in this book examines the efforts of citizens, government, industries, national environmental activists, and engineers to negotiate the place and treatment of sewage in late 19th century and early 20th century society. Drawing on the evolution of legal doctrine, advancing understanding of the chemical and biological characteristics of water, changing conceptions of disease, and the impact of increasing input from professionals in the fields of public health, engineering and economics, Benidickson describes the interrelation of each of these elements in the ongoing effort to protect our waterways. The questions historically at stake involved the degree of reliance communities placed on professional opinion over the perceptions and preferences of the public, whether the management of water should take place at the local, regional or national level, whether the boundaries of governance should be defined by civic or ecological boundaries, how watershed systems should be designed, what consumers were willing to pay for sanitation efforts, and how pollution laws were to be enforced whether through conciliatory or coercive means.

Benidickson’s history of sewage treatment begins with nineteenth-century industrial development. He notes that industrializations’ “accompanying urban [*778] growth significantly affected the use of waterways and their quality” (p.9). Over twelve well-researched chapters, Benidickson traces the significant changes in our relationship with water. Beginning with a description of early and for the most part unsuccessful attempts by fishing, navigation and riparian interests to forestall an increasing discharge of waste into water, he notes that “with understanding of the very nature of water only beginning to be divested of mythological . . . overlay, legal controls on its use were coming under extreme pressure to accommodate new and increasingly intense needs” (p.56). He then goes on to describe the growing consumption of water in urban centers and the resulting need to remove water and wastes from urban centers. In particular, community needs for street cleaning and firefighting and later the development of modern water closets “highlighted the importance of public access to larger volumes than could be obtained from traditional sources” (p.57). Next he addresses the impact of sewage on downstream residents and the emerging investigation of treatment mechanisms to reduce the volume of raw sewage discharged into the waterways. Focusing on the example of Chicago which experienced significant legal controversy, he notes that “Chicago’s deeply entrenched commitment to dilution as a response to sewage contamination and urban wastewater dramatically demonstrated the obstacles that public health, engineering and legal professionals faced in their attempts to combat the perils released by flushing” (p.183). With important advancements in scientific understanding of the role of water-borne bacteria in the transmission of disease, greater resources were invested in safeguarding human health through drinking-water treatment. The remainder of Benidickson’s book examines competing solutions proposed during the mid to late 20th century aimed at safeguarding the waterways. He concludes with the observation that, “the next century holds promise as an era for renegotiating human relationships with rivers, in which lessons from past experience are used to direct wise and informed action in the future” (p.331).

At the close of the Foreward to his book, Graeme Wynn summarizes Benidickson’s work by stating that THE CULTURE OF FLUSHING “amounts to much more than the sum of its diffuse parts because Benidickson consistently finds order (and meaning) in the complex swirl of factors causing and shaping aquatic pollution” (p.xvi). This, Benidickson, trained in environmental law, administrative law and legal history, does to a very large extent. The book is of particular interest to specialists in environmental history, environmental law, public health, engineering and public policy. However, while there is much useful historical information that can be gleaned from this book, political scientists might wish for more of an overarching heuristic argument explaining the nature and sources of environmental legislative change, or placement within a larger body of regulatory literature. For example, recent work in the area of responsive regulation by Ian Ayres and John Braithwaite, comparing the efficacy of government regulation of various systems throughout the world, offers a [*779] fruitful lens to examine the development of 20th century legislative and policy attempts in the area of waste water treatment. More specifically, within the responsive regulatory literature, emerging work in environmental regulation is particularly relevant. Recent contributions by Neil Gunningham, Robert A. Kagan, and Dorothy Thornton, in their book, SHADES OF GREEN : BUSINESS, REGULATION, AND ENVIRONMENT (2003), provide a theoretically rich exploration of how regulation matters in shaping the behavior of industrial and commercial actors. Through an in-depth study of 14 pulp manufacturing mills in the United States, Canada, Australia and New Zealand, Gunningham, et al., examine why firms achieve the levels of environmental performance that they do. They find in general that variation in environmental performance is accounted for by the interaction between tightening regulations and pressures from community and environmental activists, economic constraints, and differences in corporate environmental management style (Gunningham, Kagan and Thorton 2003). In addition, Robert Kagan’s 2001 book, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW, provides particular insight into the process of policy implementation and dispute resolution in the United States in comparison with Canada and Europe, also the focus of Benidickson’s book. Finally, the literature on the impact of the international epistemic community on regulation and policy, in particular Peter M. Haas’ work on “Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone,” provides an important framework by which to measure the impact of scientific research on policy development and implementation (Haas, 1992), a key policy driver described in Benidickson’s book.

Through an examination of Benidickson’s bibliographic notes section, it is clear that the author largely draws on secondary academic sources, judicial opinions, legal documents, hearing transcripts, and legislative reports. Importantly, in order to provide a richer picture of the law unfolding “in action,” he also draws, to a great extent, on newspaper and media sources. This provides helpful insight into how policy choices were framed, the general social context for sewage management and treatment.

Benidickson’s major contribution lies in encouraging members of a consumer society to consider the impacts of the choices we make on environmental degradation, and the responsibilities we share in handling waste responsibly. His book highlights the need for collective action at the local, national and international levels in order to achieve meaningful environmental protection. Benidickson’s book initiates an important dialogue on our treatment of waste, and by no means closes the lid on future work in the area.

REFERENCES:

Ayres, Ian, and John Braithwaite. 1992. RESPONSIVE REGULATION : TRANSCENDING THE DEREGULATION DEBATE. New York: Oxford University Press. [*780]

Braithwaite, John, and Peter Drahos. 2000. GLOBAL BUSINESS REGULATION. Cambridge: Cambridge University Press.

Gunningham, Neil, Robert A. Kagan, and Dorothy Thornton. 2003. SHADES OF GREEN : BUSINESS, REGULATION, AND ENVIRONMENT. Stanford, CA: Stanford Law and Politics/Stanford University Press.

Haas, Peter M. 1992. “Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone.” 46 INTERNATIONAL ORGANIZATION 187-224

Kagan, Robert A. 2001. ADVERSARIAL LEGALISM : THE AMERICAN WAY OF LAW. Cambridge, MA.: Harvard University Press.

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© Copyright 2007 by the author, Shahla F. Ali.

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OUTLAWED PIGS: LAW, RELIGION, AND CULTURE IN ISRAEL

by Daphne Barak-Erez. Madison, WI: The University of Wisconsin Press, 2007. 188pp. Cloth. $45.00. ISBN: 9780299221607.

Reviewed by Martin Edelman, Department of History, Philosophy, and Political Science, Kingsborough Community College, CUNY. Email: me354 [at] albany.edu.

pp.775-776

Daphne Barak-Erez has written a detailed case study of the complex interplay of law and society. Her small volume clearly demonstrates the utility of such “thick” descriptions for understanding that interplay in any society. Professor Barak-Erez traces the fate of the laws banning the breeding, possession, and trading of pigs in Israel. At the end of the tale, we have not only learned a great deal about a particular society (in this case, Israel), we also recognize that a wise lawmaker (legislator or judge) must be aware of the ever-changing nature of the society he/she seeks to govern.

This particular narrative begins with a short summary of the historical Jewish abhorrence of pigs and pork products. The origins of the Jews are rooted in their religion which sustained a sense of peoplehood throughout their 2,000 year exile from their homeland. The Bible contains explicit prohibitions against eating pork that were extended by numerous traditional practices. Pig prohibitions thereby became a central characteristic of Jewish identity. The deep roots of this taboo were so strong that when Israel was established in 1948, even the secular Zionists thought that pigs and pork products were not appropriate in the Jewish State.

As a result, in 1956 and 1962, the Knesset (parliament) enacted laws prohibiting the raising and keeping of pigs and the sale of pork and pork products in the Jewish State. In order to accommodate the small Christian minority, specified areas were exempted. Barak-Erez points to three significant aspects of this endeavor. First, although the Orthodox religious parties were undoubtedly the catalyst for the laws, they were strongly supported by the secular Zionist parties. It was seen as part of the larger effort to instill a Jewish character in the new state. The support of noted nationalist leader, Menachem Begin was particularly striking, and the dominant Socialist-Labor Zionists of David Ben-Gurion saw pig prohibitions as a perfectly natural in a Jewish society. Second, from the outset, the secular Zionists were aware of the potential conflict between prohibitions rooted in religious law no matter how long incorporated in cultural traditions and modern conceptions of individual liberty. To avoid the appearance of imposing religious practices through state law, Jewish politicians of all types accepted the need to exempt Christian Israelis. Thirdly, the largest segment of the Israeli Arab population was simply invisible throughout the legislative process. Although Islam contains prohibitions against eating pork, the interests and concerns of Muslim Israeli were never discussed. Unfortunately, this has been the case in all too many aspects of Israeli politics. [*776]

After a flurry of litigation involving implementation of the pig prohibitions, a tolerable accommodation emerged. It was facilitated by Israel’s segmented residential patterns. Pork was available in Christian communities but not in Moslem areas. In non-Orthodox Jewish cities and neighborhoods, nonkosher butcher shops frequently sold the “other white meat;” in Orthodox areas pork was unavailable. As a result, “during the 1970s, not a single case dealing with pig prohibitions reached [the readily accessible] Supreme Court” (p.69).

The absence of this litigation was part of a broader socio-political pattern in Israel known as the “religious status quo.” Neither the majority of non-Orthodox Jews nor the 20% to 25% who were Orthodox challenged the religion-state arrangements that had been brokered by the Israeli political leadership. In the 1980s, however, the status quo began to crumble. A new political culture that emphasized individualism emerged among non-Orthodox Jewish Israelis. They began to see the pig prohibitions as limitations on their freedom of choice, a constraint that was imposed upon them by state mandated religious norms. In this context, the pig prohibitions were seen as violations of their freedom to believe. Simultaneously, within the political system itself, the Orthodox parties had come to play a decisive role in the cabinet coalition process. Part of the price they demanded for supporting one or another secular party was that Government policies in the Jewish State more closely conform to the norms of Orthodox Judaism. In this context virtually all Jewish Israelis came to see pig prohibitions solely in religious terms rather than as a matter of enhancing the national culture.

The enactment, in 1995, of two Basic Laws on human rights essentially institutionalized the conflict over pig prohibitions, but it did not resolve it. Pig prohibitions remain a highly contested issue about the role of Orthodox Judaism in the state. Like so many other issues, it became part of the struggle within Israel to define the nature of that society. Herein lies the value of Barak-Erez’s case study. It provides a window into that ongoing struggle as it plays out in the political and legal arena.

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© Copyright 2007 by the author, Martin Edelman.

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