BRITISH AND CANADIAN PERSPECTIVES ON INTERNATIONAL LAW

by Christopher P. M. Waters (ed). Leiden, The Netherlands: Martinus Nijhoff Publishers, 2006. 408pp. Hardback. €125.00/$169.00. ISBN: 9789004153813.

Reviewed by Denise DeGarmo, Department of Political Science, Southern Illinois University. Email: ddegarm [at] siue.edu.

pp.873-876

Canada’s historical legacy consists of more than two hundred years of colonial domination by Great Britain (1764-1982). Although Canada achieved self-governing status in 1867, she remained a part of the British Empire until full sovereignty was granted in 1982. Consequently, the British have significantly influenced the structure and norms of Canada’s governmental institutions. Canada’s legal system, for instance, is predicated upon the British model. This model relies heavily on written and unwritten laws, customs, traditions and prior judicial decisions for its legal standards. Given the extent of historical linkages, one might think that Canada would exhibit similar behavior to that of Great Britain, especially in the area of domestic and international law. Certainly, there are some commonalities. However, there are also significant points of departure.

The similarities and differences in the interpretation and application of international law by Great Britain and Canada are the focus of BRITISH AND CANADIAN PERSPECTIVES ON INTERNATIONAL LAW. The book is an outgrowth of a 2005 international law conference hosted by the British Association for Canadian Legal Studies Group, and it is a collection of essays written by experts from both sides of the pond. The contributors provide insights into the experiences of both Canada and Great Britain in terms of their respective perspectives in national, regional, and international settings. Additionally, the book explores the contributions of both Canada and Great Britain to the development of international legal norms.

The international behaviors of Canada and Great Britain are analyzed using the comparative international law approach. Rather than dealing with comparative law and international law as mutually exclusive methods of analysis, this approach integrates them in order to better comprehend how different states perceive and understand international law. This mode of inquiry has been greatly enhanced by globalization. Globalization has fostered increased access to international legal information from different jurisdictions across the globe, while allowing for more comprehensive and detailed comparisons. Additionally, both British and Canadian scholars are particularly open to this method of inquiry.

The book is divided into 5 parts that address the following areas of international law: comparing perspectives, international crimes, human rights, human security, and the courts. Interestingly, the essays contained in each section are often relevant to more than one part of the book. The reader should keep this in [*874] mind as he/she moves from one part to the next. Thinking about the essays from multiple perspectives will greatly enhance the reader’s understanding of international law.

The first part compares British and Canadian perspectives on international law. Stephen Toope examines how print media cover international law. According to Toope, print media coverage in both Great Britain and Canada is extremely poor. In instances where reports do exist, they are cursory at best. This is especially true in Canada. Toope is concerned with the way in which the media cover issues involving international law because of the influence media have on public opinion and policy formation. According to Toope, poor media coverage translates in to poor policy choices and an ill-informed public.

Part two is devoted to the discussion of crime as it relates to international criminal law, international humanitarian law, and extraterritorial jurisdiction. Christopher Harland uses the Rome Statute of the International Criminal Court as a backdrop against which to examine the way Great Britain and Canada have internalized international human rights law. Harland concludes that Canada has had a much easier time applying human rights law at the domestic level than has Great Britain. In a similar vein, James Sloan analyzes how Canada and Great Britain have tried to insulate their militaries from possible prosecution for war crimes by the International Criminal Court. He finds that neither entity has been entirely successful in achieving this goal. Helena Torroja, on the other hand, examines the past failures of the International Criminal Court to prosecute war criminals. Troy Lavers turns her attention to the extension of jurisdiction over international and transnational crime. She discovers that Great Britain and Canada are both quite conservative when it comes to the extension of jurisdiction because of concerns associated sovereignty. Finally, Chile Eboe-Osuji proposes that British and Canadian legal concepts should be incorporated at the international level.

In the third part, experts analyze the behavior of Canada and Great Britain in the area of human rights. Holly Cullen examines the attitudes of Canada and Great Britain towards regional and international human rights regimes. Cullen finds that Canada is more supportive of international efforts to secure human rights and has opened up its own human rights record to the international community. Great Britain, on the other hand, takes a more regional approach to international human rights law, in part because of its membership in the Council of Europe. Charlotte Skeet examines women’s rights on both sides of the pond. She suggests Great Britain could learn a lot from the actions of Canada in this area. Rebecca Wallace and Anne Holliday agree with Skeet’s analysis and suggest that Canadian experience with women’s rights, especially in terms of refugee issues, should serve as an example for Great Britain and the rest of the international community. David Jenkins analyzes the impact of the “War on Terror” on accepted norms of human rights. He discovers that unlike other members of the international community, Canada and Great Britain have not eroded their [*875] human rights protections in light of growing threats of terrorism.

Part four focuses on issues of human security. Susan Breau suggests that two of the most important things that Great Britain and Canada could do to foster human security is to provide individuals with freedom from fear and freedom from want. Marie-Claire Cordonier Segger explores the extent to which sustainable development has been incorporated into international trade law. She discovers that, although Great Britain and Canada have different strategies, they both have made sustainable development a top priority. As such, both have done a good job of incorporating sustainable development measures into their bilateral and multilateral negotiations as well as their trading rules. Markus Gehring and Kristin Price look at climate change and the Kyoto protocol from Canadian and British perspectives. Gehring and Price discuss the trading emission schemes and explore the potential for each of these schemes to be more widely adopted by the international community. Henry Lovat and Osman Aboubakr examine the role of corporate social responsibility in achieving human security, suggesting that domestic regulation is more successful in securing this goal than are international efforts. William Flanagan discusses the need for the international community to provide the developing world with better access to medications, in particular medicines to treat HIV. Flanagan asserts that increased access will only occur with the reformation of global trading rules and national patent laws. Canada and Britain could have a greater impact on reducing international disease by making changes to their own patent rules. Catherine Brown and Martha O’Brien explore the relationship between international trade rules and tax sovereignty. They reveal that, while Canada has been able to maintain tax sovereignty, Great Britain’s tax sovereignty has been eroded through its membership in the European Union.

The final part of the book is devoted to a discussion of the role of courts in the interpretation and application of international law. Karen Eltis notes that there is a growing trend among judiciaries across the globe to discuss international crime and their efforts to combat it. Eltis believes that comparative constitutionalism is a promising way to explore strategies to combat international and transnational crime more thoroughly. Stéphane Beaulac raises questions regarding the way in which international law has been customarily seen as part of common law and whether this approach is the most effective way to deal with international law at the national level. He suggests that a more nuanced approach is needed to address the divergent ways in which international law is interpreted and implemented nationally. Finally, Hugh Kindred explores the ways in which states implement international treaty law at the national level. Specifically, he looks at the way judiciaries deal with ratified human rights treaties. He discovers that Canada’s judiciary does a better job of dealing with these issues than do the courts in Great Britain.

The book does a very good job of identifying similarities and differences in British and Canadian legal behaviors. Canada and Great Britain are similar in the value they place on multilateral approaches to international relations and international law. Both are strong [*876] supporters and active members of numerous international organizations. International citizenship is a cornerstone of their foreign policies. However, there are also significant differences in their international legal behavior. Canada pays more attention to its own strategic interests in light of global governance and multilateralism, whereas Great Britain focuses on the importance of the rule of law as the center piece of the international system. While many point to Canada’s exemplary behavior in the realm of international law, Canada’s international stature has declined in recent years due to the erosion of sovereignty and problems associated with implementing international law at the national level. Nonetheless, members of the international community could learn many valuable lessons from Canada’s experience.

BRITISH AND CANADIAN PERSPECTIVES ON INTERNATIONAL LAW provides a fascinating study of international law from a comparative perspective. Christopher P. M. Waters should be commended for putting together this collection of essays. The essays are extremely well written and present very compelling arguments. The text is instructional and could easily be used at the undergraduate or graduate levels. Although Canada and Great Britain are the focus of the book, the information gleaned from this text could certainly provide the basis for a more comprehensive study among a greater number of cases. This is one of the most informative books I have read on international law in quite some time. It is a must read for anyone interested in international law.

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© Copyright 2007 by the author, Denise DeGarmo.

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OUTSOURCING SOVEREIGNTY: WHY PRIVATIZATION OF GOVERNMENT FUNCTIONS THREATENS DEMOCRACY AND WHAT WE CAN DO ABOUT IT

by Paul R. Verkuil. New York and Cambridge: Cambridge University Press, 2007. 248pp. Hardback. $80.00/£45.00. ISBN: 9780521867027. Paperback. $19.99/£15.99. ISBN: 9780421686884.

Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: dynia [at] loyno.edu.

pp.868-872

The events that occurred in Baghdad’s Nisour Square on September 16, 2007, have been called “Baghdad’s bloody Sunday.” On that day, a convoy of State Department officials, guarded by Blackwater USA mercenaries, was approached by an Iraqi vehicle whose occupants – a young Iraqi man, his wife, and infant child – had panicked in the chaotic traffic situation caused by the convoy itself. The Blackwater troops fired on and killed the driver. Next a grenade was launched at the vehicle, setting it ablaze and killing the woman and child, whose charred remains could not be separated. (In its official statement on the incident, Blackwater claimed the occupants were “armed insurgents.”) There followed a shooting spree by Blackwater troops that could, most charitably, be described as a rampage. At the end of the day, twenty-eight Iraqis were dead. Even as this review is written, other victims remain in critical condition and may or may not survive.

As is probably true of other high-profile atrocities connected with the Bush Administration’s disastrous Iraq war (Abu Ghraib and Fallujah spring to mind), this sordid blight on America’s reputation in Iraq and around the world represents only the tip of a larger (precisely how large remains uncertain) iceberg. There have been several deadly incidents involving Blackwater forces, but other private security forces – like Blackwater, paid billions of US taxpayer dollars – are guilty of similar abuses. (The GAO counts as many as 180 similar mercenary companies in Iraq, employing tens of thousands.)

In his excellent article (from which much of the forgoing account was taken) focusing on Blackwater in Iraq, Jeremy Scahill states that “[the Nisour Square] scandal is about a system” (p.23). That system is a large part of the iceberg, and a crucial component of that system is the topic of Paul R. Verkuil’s thoughtful, thorough, (perhaps unwittingly) timely and extremely informative study – an exploration of privatizing and outsourcing and a powerful condemnation of delegating the sovereign powers of government to private contractors. “‘Outsourcing sovereignty’ occurs when the idea of privatization is carried too far” (p.3). (Verkuil’s understanding of the concept “sovereignty” is a traditional one. He “accepts Weber’s view that sovereignty is the exercise of power by the state” (p.14).)

The scope of the contemporary outsourcing problem is vividly [*869] illustrated in a congressional report summarized by Verkuil:

During the period FY 2000 to FY 2005, the value of federal contracts increased by 86 percent (from $203 billion to $377 billion) and the value of noncompetitive contracts increased by 115 percent (from $67 to $145 billion). The largest contractors received over 20 percent of these contracts and Halliburton’s totals increased by 600 percent. Iraq is undoubtedly a principal cause of these increases in the growth of noncompetitive contracts, but government has also been turning more generally to contractors during this five-year period. (p.140)

Outsourcing was not invented by George W. Bush; several of his predecessors utilized it. But with the present administration the compulsion to outsource has been overwhelming. Verkuil quotes approvingly columnist Paul Krugman’s characterization of Bush II as the “Outsourcer in Chief.”

Much of this administration’s compulsive outsourcing – and most serious abuses of the process – stems from the Iraq war. Verkuil explains that Bush “went to war with a level of force that made contractors necessary. Contractors are now so entrenched they have become indispensable. Now they even negotiate directly with Iraqi and US military forces” (p.29). Many of these initial contracts were awarded without competitive bidding, which Verkuil understands. He finds less explicable – as should we all – the fact that four years into the war many contracts continue to be awarded this way.

Verkuil is not against privatization; he describes himself as one who has “long favored deregulation and the values of efficiency” (p.6). But while conceding that outsourcing has its uses – and he discusses several instances where it has been successful – he is far more concerned about its potential to undermine government performance (as with the IRS hiring private firms to collect delinquent taxes at a cost ultimately higher than if it had been done in house, or the Coast Guard’s disastrously costly decision to turn over to Grumman and Lockheed Martin its fleet modernization program) by atrophying government’s power to perform key functions in the future.

Thus, a stark and troubling question must be faced: Who is really in charge of government policy making? Verkuil sets himself the task of demonstrating two points: (1) that important work both significant to and often inherent in the concept of government is being contracted out to the detriment of democratic policy making, and (2 that the trend can (and though he does not say so directly must) be moderated, if not reversed, by changes in the way government operates.

His argument incorporates constitutional, statutory, administrative, and contractual sources, and his command of the relevant literature is prodigious. And yet ultimately his premise is simple, familiar, and fundamental: Under our Constitution, the people are sovereign. The people are the principal, Congress and the Executive the agents. Their powers are delegated by the people through the Constitution, and when Congress sub-delegates powers to the President or the President further sub-delegates powers to private parties, the Constitution must umpire these relationships. [*870]

Consider again the military and Blackwater. A concept largely unknown and perhaps unthinkable a decade ago – the “private military” – is now an industry with $100 billion in annual sales, and a bright future. In the absence of a draft, and with the Iraq war dragging on, enlistments are down and existing troops are being overused. Pressures to outsource as many military functions as possible are nearly irresistible. But when private contractors interrogate prisoners in Iraq or participate in military actions involving the use of force, they “usurp public authority, unless Congress has approved. The exercise of this authority is a public function, which makes the phrase ‘private military’ an oxymoron offensive to our Constitution” (p.104). Making matters worse, privatized actions are often nontransparent – private contractors are not covered by FOIA, a major failing of democratic control. In fact, “the desire for secrecy may be one of the motivations for executive delegations of significant authority to private contractors, at least for some presidents” (p.105).

Overseeing these contracts is a demanding and complex task. But in Iraq (other examples could be cited) there are not enough contracting officers. “And in general, the oversight problem is exacerbated by a shortage of [Department of Defense] contract administrators. Pentagon contracting officials were trimmed by 38 percent in the past five years” (p.148). And in a Catch-22 truly worthy of the military, close supervision, requiring additional staff, cannot be performed in house because of personnel limitations and thus has been outsourced. “When oversight becomes a commodity, its status as a public value has been diminished, if not eliminated. Outside monitors may do acceptable work, but they must themselves be monitored” (p.149).

The problems may seem intractable, but Verkuil attempts in the final two chapters to suggest solutions. His penultimate chapter deals with proposed structural reforms to government. The first has to do with the bureaucracy. Outsourcing was originally seen as a way to overcome unresponsive bureaucracy. Verkuil echoes the famous distinction made by Isaiah Berlin. The new bureaucrat must be a fox, not a hedgehog, possessed of judgment and management skills more than the ability to executive routine assignments (which “can be outsourced under this new regime” (p.159)). Senior bureaucrats must be used more effectively.

In addition, the ratio of political appointees to the number of senior career managers must change. Verkuil cites a report by the National Commission on the Public Service (the Volcker Commission) which notes that President Kennedy had 286 political leadership positions to fill, President Clinton 914, and President George W. Bush 3,361. Such a large number of political appointees paralyzes government for two reasons: it diminishes the civil service, and it involves the increasingly cumbersome and contentious appointment and confirmation process. Moreover, studies have shown that politically appointed bureau chiefs get systematically lower management grades than bureau chiefs drawn from the civil service (based on the Bush administration’s own Program Assessment Rating Tool – PART – used to [*871] compare the performances of SES (Senior Executive Service) personnel, politically appointed SES, and Senate-confirmed appointees). In short, FEMA’s Michael Brown, a particular bete noire of those whose suffering in the aftermath of Hurricane Katrina was exacerbated rather than abated by FEMA’s response, is just the pathetically obvious tip of a wholly different iceberg of incompetent cronies who have proliferated and prospered under the present administration.

These political appointees may, in fact, actually be encouraging outsourcing. “Political appointees who by definition see their careers as outside government can preserve their future by keeping close ties to private contractors. . . .[I]t is a situation rife with conflict of interest problems. And, just to add to them, contractors are also heavy campaign contributors” (p.167). While the phenomenon can be traced back at least to the Johnson and Kennedy administrations, their political appointees who took advantage of “friendly” consulting firms pale alongside Vice President Cheney’s connections to Halliburton (something of a “gold standard” in this regard). A further complication: any reforms here must answer a difficult question – how do you convince a president that it is in the public interest to reduce the number of political appointees?

A second structural reform involves acknowledgement that we are now in the era of “market-based governance.” Verkuil believes that governance and government are often in false opposition to each other and that both sectors can work productively together. He urges expanded use of Public-Private Partnerships (PPPs). He quotes Frank Kamm of the RAND corporation, outlining three essential features of PPPs: “(1) a formal agreement between or among public and private parties; (2) mutual sharing of resources, information, risks, and rewards; and (3) formal links between output-oriented performance measures and the allocation of risk and reward among partners.” One great advantage of this collaborative technique is that “[a]ccountability issues arising from the use of private contractors can be ameliorated” (pp.172-173).

A third structural reform involves a requirement for national service and the creation of a training academy for civil servants equivalent to the military academies. “This idea reflects a commitment to public service that would overcome many of the deficiencies highlighted by the Volcker Commission. And it would provide the United States a cadre of talented public servants” (p.178).

Finally, Verkuil urges retaining and possibly invigorating the False Claims Act (FCA), which gives “whistle-blowers” incentives to expose fraud by allowing them to retain a portion of the amounts recovered by the government. He considers this law a significant addition to contract monitoring resources at a time when contracting personnel are in short supply. He also urges additions to the Department of Justice’s fraud team charged with bringing these cases.

A final chapter devoted to “Conclusions” is essentially a reiteration of the book’s fundamental theme. Verkuil notes that most outsourcing decisions are initiated by the Executive [*872] Branch, which must in turn take seriously the responsibility to control the contractors and hold them accountable, especially in the military context. But Verkuil urges the Executive to also restore balance and competency to government by reinvigorating the SES and in general recruit talented civil servants. “The next White House needs to send the message that public service is crucial to the proper performance of important government functions” (p.191).

Verkuil also challenges Congress, the branch that “has the most to lose by the excessive use of contractors. Congress already suffers an information asymmetry vis-à-vis the president and the agencies. Contractors exacerbate this deficiency because their work is often outside the usual channels of review and oversight. And, in the foreign affairs arena, executive secrecy and deliberative privileges pose further obstacles to congressional information streams” (p.192). Verkuil does not doubt that Congress possesses ample tools to hold government officials accountable. Political will is another matter entirely.

Preserving “our public values in an era of unprecedented delegations of power to the private sector,” Verkuil cautions, cannot be done overnight. And probably never by an administration with values similar to those of the current White House. One can hope that the 2008 elections will bring changes and serious discussion of this growing problem. Certainly anyone interested in remedying the dangers of “outsourcing sovereignty” would do well to study closely Verkuil’s extremely valuable contribution.

REFERENCES:
Scahill, Jeremy. 2007. “Making a Killing.” THE NATION (October 15, 2007), 21-24.

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© Copyright 2007 by the author, Philip A. Dynia.

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THE CHARACTER OF JUSTICE: RHETORIC, LAW AND POLITICS IN THE SUPREME COURT CONFIRMATION PROCESS

by Trevor Parry-Giles. East Lansing: Michigan State University Press, 2006. 256pp. Cloth. $64.95. ISBN: 9780870137693.

Reviewed by Elliot E. Slotnick, Department of Political Science and The Graduate School, The Ohio State University. Email: slotnick.1 [at] osu.edu.

pp.864-867

In THE CHARACTER OF JUSTICE, Communications scholar Trevor Parry-Giles starts his analysis by noting correctly that today, save for the occurrence of presidential campaigns, no governmental processes produce greater controversy and interest than the nomination of a Supreme Court Justice. This, in his view, is a 20th century phenomenon and is documented through the close examination of controversial nomination processes between 1916 and 1987, those of prospective Justices Brandeis (whose appointment began a period of intense scrutiny and political controversy over nominees), Hughes, Parker, Marshall, Haynsworth, Carswell and Bork. The more recent nominations of Justices Souter, Thomas, Ginsburg and Breyer are treated in a considerably more cursory fashion in a chapter curiously titled “The Future of Supreme Court Nominations,” while the attention to the confirmation processes for prospective Chief Justice Roberts and Justice Alito is limited to parts of eight pages of “Epilogue” subtitled, “Of Baseball Analogies, Crying Spouses, and the Erosion of Advice and Consent,” a coda to the book that underscores the difficulties of long term analysis in a field where the landscape can change in an instant.

Working outside of the Political Science/History paradigm where Supreme Court nominations hold great interest largely because of the place of new justices in the evolution of specific legal doctrine and the mapping of legal change, Parry-Giles’ analysis commands attention for the focus on Supreme Court appointments that raised critical and meaningful political tensions in the American polity. These nomination controversies, in effect, are viewed as the palette upon which nomination/confirmation rhetoric serves to re-define the contours of American legal culture. The rhetoric of confirmation debates in such a setting serves to have a “lingering legacy as public enactments of the struggle to give identity and meaning to American law and jurisprudence” (p.3). At bottom, nomination battles serve as a window to the contemporary meaning of American democracy and the breadth of our society’s fundamental commitment to justice. In Parry-Giles’ view, such a commitment has undergone an historical evolution, and examining the “character” of nominees and their confirmation struggles, in the end, reveals the character of American justice. In this sense, confirmation battles are of both political and broad cultural significance.

Parry-Giles’ study employs sound historiography, with the stage well set for his focus on 20th century advice and consent processes through significant [*865] attention to their predecessors. Throughout the analysis, ample documentation bolsters Parry-Giles’ argument, and the book is both well written and a good, engaging read. In the sequential case studies a reasonable representation is offered for how each nomination controversy served to both reveal the nominee’s character, while also contributing to societal conceptions of justice and the American legal agenda. Thus, for example, the Brandeis confirmation process is pictured as both highly public and rhetorical, following a “trial metaphor,” and setting the stage for the future of advice and consent. Substantively, it served to place the issue of social justice, progressivism, on the American legal agenda, if only in dissent. Supreme Court nominations are seen, in effect, as mechanisms that serve to define the thrust of American law with a stream of subsequent nominations illustrative of broad changes in the law’s ideological commitments.

The nominations of Charles Evans Hughes and John Parker in 1930, for example, are paired in the analysis to document the continuation of the definitional battle over the meaning of social justice. If the concept itself entered the equation through the Brandeis door, the Hughes confirmation hearings explicitly brought the labor movement to the fore in social justice debates, while Parker’s ill-fated nomination placed initial societal jurisprudential attention on the issue of race in the character of justice. In the especially strong chapter focusing on Thurgood Marshall’s ascent to the Court, Parry-Giles documents the potential amplification of the societal importance of a Supreme Court nomination, with the “face of BROWN” serving to foster a fully flowered concern with civil rights in the American polity. Indeed, the efforts of the opposition to Marshall to link race and communism in his candidacy is pictured as a precursor to the later linkage of the civil rights movement and the threat of communism that surfaced in the Nixon administration’s joining of these issues.

Nixon’s “southern strategy” and the nominations of Clement Haynsworth, Jr. and G. Harrold Carswell in the context of the Vietnam war and widespread civil unrest warrant the full chapter treatment that they receive. These nominees are viewed as Nixon’s “challenge” to the evolving construct of civil rights in America, and their rejections “solidified even further the ideological power of BROWN, of civil rights, and of equality as central components to the American understanding of justice” (p.88). It is in this context that the discussion of “Bork’s America” in the following chapter, focusing on the concepts of privacy and autonomy, as contextualized through the issue of abortion, is transformed into a symbol of “an apocalyptic vision of U.S. law” (p.137). Understanding the character of the Bork confirmation battle requires the recognition that the Supreme Court appointment process had become “political spectacle,” and his rejection served to define the outer boundaries of American law. Placing a normative spin on this outcome, Parry-Giles asserts that, “once again . . . the Supreme Court confirmation brought important legal subjects out of the shadows of American courthouses and into the sunlight of contentious, spectacular politics. The process and the polity are better for it” (p.138). Writ large, Parry-Giles’ argument is that the evolution of an [*866] ideological, politically challenging, complicated, spectacularized Supreme Court nomination process is a “good thing” since it “opens up to dialogue disparate legal ideologies and practices often kept hidden or remote from the larger community” (p.24).

The problem with Parry-Giles’ position, in my view, is that it failed to predict “the future,” the confirmation processes surrounding the nominations of Clarence Thomas, John Roberts, and Samuel Alito, political events that while, at times, “spectacular”, and focused on “character” (certainly in Thomas’ case), strayed as far as humanly possible from being about “ideas.” The evidence relied upon by Parry-Giles in this study can be reduced in some respects to “the power of words” which are often illustrative and suggestive, but rarely are they probative. Much about this book may, in the end, turn on the nominations not subjected to the author’s magnifying glass, the possible “exceptions” to the rules that he promulgates. It is all too easy, I think, to focus on controversial confirmations and draw lessens from them, treating other advice and consent processes as a residual which, by default, serves as an exhibition of “dormancy” and deviation from the norm. Yet such nominations raise important questions that Parry-Giles does not sufficiently address. Why was the Burger nomination not controversial? Why did the confirmation hearings of Roberts and, perhaps even more so, Alito, not turn on ideas and definitions of an American conception of justice? Indeed, the vacuous nature of the Roberts and Alito hearings appears to be even more inexplicable and less predictable when seen through the eyeglasses of Parry-Giles primary analysis.

Confronted by this reality, the final full chapter in the book, “The Future of Supreme Court Nominations,” is told through the post-Bork nominations that culminate in the Roberts and Alito confirmations visited in the book’s epilogue. Parry-Giles’ message here is that the post-Bork legacy must be resisted because it results in the nomination of largely qualified individuals (but does that account for Thomas?) who can be packaged and sanitized in a fashion that avoids dispute ( Roberts and Alito). These nominees will likely include those of the “stealth” variety (Souter), those who are “celebrated” (the compelling personal narrative of Thomas’ life) and/or those who are “safe” (Breyer). Eschewing the present approach seen in such nominations, Parry-Giles argues that “more politics, not less, makes the confirmation process of Supreme Court justices a meaningful enactment of the rhetorical, legal and political culture in the United States” (p.155).

Finally, it should be noted, the book’s unfortunate timing, the existence of a completed manuscript, or one that is virtually complete, when two Supreme Court vacancies arise that continue to offer grist that runs counter to the author’s preferred mill, renders the Roberts/Alito epilogue somewhat unsatisfying. These cases, much like those that define “The Future” depicted in the chapter that precedes them, simply do not “fit” very well in the author’s normative model. Consequently, he bemoans the erosion of advice and consent processes, noting that “Sadly, the lessen that those administrations appear to have learned is that confirmability is likelier in the absence of meaningful deliberation. Nowhere is [*867] this lesson more clearly enacted than in the confirmation hearings of John Roberts and Samuel Alito” (p.159). Focusing on the nominating proclivities of presidents, however, may miss the point that, I think, can be derived from the Roberts and Alito hearings as well as that of Thomas which preceded it. That is, in the final analysis, it is the Senate, through its Judiciary Committee and, perhaps to a lesser extent, confirmation debate on the Senate floor, that must define the contours of nomination controversy, debate and deliberation. Holding that body more publicly accountable may offer more, by way of resolution to our present dilemma, for understanding the CHARACTER OF JUSTICE, than Parry-Giles allows in this useful addition to the literature on Supreme Court appointment processes.

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© Copyright 2007 by the author, Elliot E. Slotnick.

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OUTLINE OF A PHENOMENOLOGY OF RIGHT

by Alexandre Kojève (edited and translated by Bryan-Paul Frost and Robert Howse). Lanham: Rowman & Littlefield, 2007. 512pp. Paper $29.95/£19.99/€31.48. ISBN: 9780742559059.

Reviewed by Glenn Mackin, Department of Humanities, Eastman School of Music, University of Rochester. Gmackin [at] esm.rochester.edu.

pp.860-863

In the English speaking world, Alexandre Kojève is primarily known second-hand. There is, perhaps, some notion that he discussed the ideas of the “End of History” and the Universal and Homogeneous State. But the meaning of these ideas is known primarily through the work of Francis Fukuyama (see Fukuyama 1992). For this reason the new English translation of Kojève’s OUTLINE OF A PHENOMENOLOGY OF RIGHT, which is his most sustained treatment of these ideas, is most welcome. At the very least, it will allow a broader audience to engage Kojève’s sophisticated cataloguing of all of the phenomena surrounding “droit” (which means right or law, but is left untranslated in the text). Yet, I am less sanguine about how much Kojève’s work will actually contribute to ongoing discussions about international law, cosmopolitanism, or globalization. One difficulty is the sheer inaccessibility of the text – its odd use of capitalization, the translators’ refusal to translate key terms (such as droit), and the author’s love of abstraction (Kojève’s theoretical universe is an odd one, populated more by theoretical ideas than actual people – Law, Society, Slave, Master, State, each with its own Capital Letter). But even leaving this aside, Kojève’s conception of the end of history is relatively unhelpful in that it offers little understanding of democratic politics and why it might be necessary in the face of globalization.

It is useful to break Kojève’s complex argument into three claims:
(a) The nature of law is such that it can only be fully actualized in a universal and homogeneous state. For Kojève, legal phenomena exist only insofar as an impartial and disinterested third, C, intervenes in the relations between two subjects of the law, A and B, in order to annul one of these actors’ efforts to suppress the acts of the other (p.40). To actualize legal phenomena fully, a universal and homogenous state is necessary. A genuinely impartial third cannot be part of an “exclusive juridical group” with only a relative conception of justice; rather it will have to represent a universal humanity, guided by a single and universal conception of justice. And the state will also have to be universal in the sense that it will encompass all of humanity, thereby maintaining the power necessary to make the members of society conform to such a conception (p.126). In a world of multiple states, B can escape C’s annulment of her behavior simply moving to a different state guided by different laws.

(b) This universal and homogeneous state will be guided by a final and complete conception of justice, which Kojève calls “equity.” Kojève derives this concept of justice through an [*861] analysis of Hegel’s Master/Slave dialectic. Equity is the dialectical synthesis of “aristocratic equality” (which is a sort of formal equality) and “bourgeois equivalence” (in which there is a sort of reciprocity of rights and duties). With equity, everyone will have equal status as citizens, and everyone’s obligations to society will be fully equivalent to the benefits they derive from it.

(c) One can accept Carl Schmitt’s conception of the state and still understand the universal and homogeneous state as a constitutional state ruled by law rather than men (see Schmitt 2007). Kojève agrees with Schmitt that the political state is simply an organization of friends who stand in opposition to their enemies. Moreover, the constitution of a state is merely a description of how the group of political friends has chosen to organize themselves. A constitution, therefore, has nothing juridical about it: between a state and citizen, no impartial and disinterested third is possible. Yet in the end state, the agents of the state can become genuinely impartial, at least in principle. This is because they operate in accordance with a constitution that embodies a complete conception of justice. Or put differently, if a civil servant is acting as an agent of the universal state, then Kojève holds that there can be no legal relationship between the agent and the citizen. The state is a party in the relationship to its citizen and so no genuine third is possible. But if the civil servant acts as a private agent, then the universal state can intervene as an impartial third. This means, practically speaking, that whenever a civil servant acts against the constitution, one has a genuinely legal remedy. This leads to the end of the Schmittean political state, since everything can now be settled legally (rather than politically). All conflicts can be settled by appealing to a disinterested third who resolves the conflict in accord with a universal principle of justice, which is embedded in the constitution (see pp.337-339).

To be sure, Kojève offers a sophisticated conception of a cosmopolitan political order. Unlike many caricatures of the end of history, the universal and homogeneous state is not an oppressive world government. The end state may emerge along the lines of EU integration. Nor will the end state represent a sort of sameness. Since it will occur via a synthesis of equality and equivalence, there can be recognition of differences in talent, provided that every person’s humanity is equally recognized. The end state simply represents the end of violent struggle over recognition, such that every human need can be met and every human conflict can be resolved impartially.

However, there are also significant difficulties with Kojève’s argument. For example, in the wake of various criticisms of “essentialism,” Kojève’s effort to identify the essence of law, and then derive a conception of a universal state from it, is bound to arouse suspicion. It is also not entirely clear how useful it is to derive basic conceptions of justice from some primordial moment of anthropogenesis in the master/slave dialectic. But I will leave such issues aside and instead focus on his conception of equity, which reveals the democratic (and political) deficit in Kojève’s thinking. [*862]

Kojève best describes equity through an example (pp.254, 269). Imagine that two persons are sharing a dinner and that one of them has not had any lunch. According to the aristocratic conception of justice as equality, the share of the food should be formally equal. Yet according to the bourgeois conception of justice as equivalence, unequal treatment will be needed: to achieve the equivalent satisfaction of hunger, the hungry person will need more food than her eating partner. The tensions between these two conceptions, however, can be overcome in equity, or the justice of the citizen. In the orientation of equity, one wants to eliminate unequal treatment without violating the principle of equivalence: “One will therefore ask why some are more hungry than others. And if one observes that this difference results from the fact that some have had lunch and others not, one will see to it such that from now on all might have lunch” (p.269). Thus, the solution to the problem is neither aristocratic equality nor bourgeois equivalence, but rather a synthesis. Everyone’s needs must be equivalently satisfied, yet everyone will also be treated equally. The result is both substantive and formal equality; everyone’s needs are equivalently met, and everyone is granted equal treatment.

Unfortunately, this example also demonstrates the inadequacy of Kojève’s conception of impartiality and its relation to politics. Even if we accept that the solution is a synthesis of equivalence and equality, the terms of this solution are incomplete. There remain fundamental questions for which Kojève provides no answers: what counts as a decent lunch, and who can make such a determination? How can such lunches be provided in a way that is actually compatible with equal respect for all (i.e., how does one move to redistribute goods without violating principles of equality and without marking those who need such lunches as unequal)? Kojève’s only answer would be that the impartial third will do so. Fair enough. But how will the disinterested third make such a determination, and how can we be sure that the determination is actually impartial? Kojève does not appear to be interested at all in such questions. Rather, he merely assures us, while providing no concrete (as opposed to conceptual) mechanism for how it might actually happen, that such conflicts tend toward synthesis (see pp.263-268).

This significantly undermines the usefulness of Kojève’s approach to questions of globalization. As many observers have pointed out, one of the main difficulties in globalization is a democratic deficit. Those affected by the law have relatively little input into its formation, and so international institutions become increasingly distant and bureaucratic (see Habermas 2001). Kojève has no way to address this, nor even to recognize it as a problem. He is surely correct to point out that the law’s claim to legitimacy is linked to its impartiality. However, impartiality must be guaranteed through the conditions of its generation and application. For example, Jürgen Habermas’ discourse theory understands impartial decision-making in terms of a deliberative procedure that includes the voices of all affected (see Habermas 1996). This may or may not be an adequate conceptualization, but it does at least contribute to the diagnosis of and remedy for democratic shortcomings. Such an approach also points out that [*863] impartial decision-making is not necessarily antithetical to politics. If persons are going to determine how to treat all persons equally and equivalently – if we are going to see to it that all have had lunch – we must link legitimate law to democratic procedures. For in the end, it is only the citizens themselves who can determine what counts as a decent lunch.

REFERENCES:
Fukuyama, Francis. 1992. THE END OF HISTORY AND THE LAST MAN. New York: Free Press.

Habermas, Jürgen. 2001. “Why Europe Needs and Constitution.” 11 NEW LEFT REVIEW 6-26.

Habermas, Jürgen. 1996. BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY. (W. Rehg, Trans.). Boston: MIT Press.

Schmitt, Carl. 2007. THE CONCEPT OF THE POLITICAL: EXPANDED EDITION. (G. Schwab, Trans.). Chicago: University of Chicago Press.

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© Copyright 2007 by the author, Glenn Mackin.

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WIRED SHUT: COPYRIGHT AND THE SHAPE OF DIGITAL CULTURE

by Tarleton Gillespie. Cambridge and London: MIT Press, 2007. 420pp. Hardcover. $29.95/£18.95. ISBN: 9780262072823.

Reviewed by Debora Halbert, Department of History and Political Science, Otterbein College. Email: Dhalbert [at] otterbein.edu.

pp.856-859

Tarleton Gillespie’s WIRED SHUT is another interesting addition to the growing literature on copyright law and the impact of copyright on the digital cultural landscape in the United States. The book addresses the approaches employed by the culture industries and their lobbyists to develop a safe digital landscape for the commodities that constitute much of American culture – specifically, music, movies and software. Gillespie describes the efforts made by major industry players to develop a “trusted system” that includes digital rights management (DRM), legal initiatives, and a narrative campaign to shape the digital future by asserting that numerous acts of sharing are actually copyright piracy. The argument of the book is implied in the title; that major industry players are developing strategies to “wire shut” the Internet in such a way that the free flow of cultural commodities will be controlled to assure the digital culture of the future will be one of passive consumption instead of active creation.

To make his argument, Gillespie builds on Lawrence Lessig’s thesis that a shift from the legal layer (making laws to protect intellectual property) to the code layer (writing programs that make infringing intellectual property difficult) is the preferred strategy for content owners. As this shift occurs, regulation becomes less visible and thus less easy to resist, even when the copying involved is legal under the law. In the “wired shut” world, culture is owned, consumed, and tightly regulated through the digital vehicle designed for its delivery and the free flow of cultural products will be stifled not only by the law, but by the computer systems themselves, taking regulation out of the public and placing it in the self-interested hands of content providers.

While Gillespie is not the first to claim that the future looks less than bright for the free flow of ideas and non-commodified culture, what he contributes is a sophisticated accounting of several key developments and the ways in which these developments have impacted our ability to use digital cultural products. Although the book is not specifically divided into sections, there are two parts. The first part, chapters one through three, establish the paradigm which informs Gillespie’s work and where he defines the relationship between law, technology, copyright and users. The second part, chapters four through nine, looks in more detail at the political and technological issues affecting access to digital culture and the ways in which technology is used to limit access.

Chapter One serves as an introduction to the book as a whole, and he introduces the concept of a “trusted system” (p.9). [*857] The trusted system is the relationship between technology, “the persuasive force of law and the legitimacy of new political and commercial alignments” (p.9). Developing a trusted system is the ambition of culture industry groups.

Chapter Two provides a brief history of copyright within the context of the Internet, fair use and technological efforts (such as DRM). The evolution of the Internet using open standards has led to a clash between commercial culture intent upon owning products and the social networking that is at the heart of the original Internet design. The peer-to-peer phenomenon, culminating in the controversy over Napster, displays publicly the efforts of industry to shape digital culture to fit the rules of commodified cultural ownership. Although primarily descriptive, this chapter questions the use of technology to control, while Gillespie endorses the need for a “non-commodified breathing space” (p.60).

Chapter Three investigates the nexus between technology, culture and law by summarizing the debates about the role of technology in shaping culture and vice versa. This chapter serves as an introduction to the role technology plays in shaping our social life. Weaving together the many theorists of technology, Gillespie makes the argument that technology is a subtle form of social control because it builds invisible mechanisms for shaping behavior that are difficult to see, much less critique. While software code is a form of regulation, he suggests that it alone is not sufficient. Instead, we have seen the development of a “regime of alignment,” the configuration of hardware, software, law, and industry to control the digital future. As Gillespie states, “this is not a mere imposition of code, not just a speed bump, but the interlocking of the technological, the legal, the institutional, and the discursive to carefully direct user activity according to particular agendas” (p.102). Such a regime has implications for the free flow of culture in a digital age, the theme that underlies the book as a whole.

Chapter Four examines the discursive aspect of the regime of alignment by analyzing the rhetoric of Jack Valenti, the former CEO of the Motion Picture Association of America (MPAA), and one of the leading lobbyists for highly restrictive copyright laws. The chapter demonstrates how Valenti uses the threat of copyright “piracy” to shut down even legal uses of movies and how he made the concept of piracy into an important policy issue. Gillespie maps how the discourse on piracy is produced and its success in creating the ground rules upon which the issue of copyright are debated. It is an interesting case study that highlights how powerful actors were able to set the agenda by creating a threat and getting Congress to work to protect “innocent” industries from the threat.

Chapter Five introduces the reader to the Secure Digital Music Initiative (SDMI) and the failure of the music industry to develop an industry-wide digital rights management (DRM) system. It is an interesting chapter because it fails to support the larger argument, which is that a net of code, regulation, and technology are merging to stifle free use. Contrary to what the regime of alignment thesis might predict, SDMI failed, and while music industry actors have used the courts to enforce the law, [*858] already written to protect their interests, they have not been successful in controlling on-line music (yet). Gillespie acknowledges at the end of the chapter that SDMI offers a problematic example for his thesis. He states, “SDMI is a reminder that the alignment of technology and content, of hardware and software necessary for the trusted system to work, cannot be imposed without a matching alignment between the commercial institutions that produce them, and such an alignment is not easily achieved” (p.165). I would like to see additional analysis focused on what we might learn about how to avert the tightening of code and regulations in other industries from the failure in this one.

Gillespie turns to the successful path taken by the motion picture industry to regulate DVD technology in Chapter Six. This chapter discusses the encryption efforts of the movie industry, the controversy over the Content Scramble System (CSS) and the decryption efforts (DeCSS). Additionally, it offers a nice critique of the Digital Millennium Copyright Act (DMCA) and the ways in which its prohibitions against anti-circumvention create a non-neutral law designed to protect some rights holders over others (p.177). Ultimately, the movie industry has been far more successful at creating a “trusted system.” Gillespie suggests the fact that one initiative was mandatory and one voluntary (p.188) is a reason for the different outcomes, but I would like to have seen more thorough analysis here.

A further example of the attempted “regime of alignment” is outlined in Chapter Seven where the issue of the broadcast flag is discussed. This chapter describes the attempt to control digital broadcasts and industry efforts to align law and technology to seal off any possible non-sanctioned use. However, as with SDMI, this story is as much about the failure of industry initiatives as it is about their success. Industry lobbyists sought to use the state to impose their will upon the public, but FCC jurisdiction and public resistance made the initial efforts fail. Gillespie makes clear that the current political structure leaves little room for the public interest (p.220) and that, while the broadcast flag efforts were not successful, the stage has been set for control to be implemented in the future.

At this point, the “wired shut” element of the argument needs to be reexamined and better solidified. The examples offered so far do not point definitively to a successful “regime of alignment,” but instead to the fact that industries are trying to build that regime. In part, the failure to align the regime around new regulations and technological controls has occurred because there is a counter-narrative available, one that is discussed in Chapter Eight. This chapter discusses forms of “frustration” that have emerged to challenge the regime of alignment. It is fairly short and offers no avenues for action, but simply highlights that the regime of alignment has not gone unchecked.

The final chapter draws conclusions regarding the impact of encryption and copyright on digital culture. Gillespie does not see a bright future, but one that includes increased privatization, increased commodification, the use of surveillance to assure adherence to the law and the possible creation of a [*859] pay-per-use society. Gillespie sees these implications as damaging to a free and open society premised upon democratic values. While his optimistic claim is that a grassroots movement may be able to win the day, he remains pessimistic about the possibilities of resisting the power of the culture industry (p.281). I generally agree with his pessimism, but it should also be noted that most of his examples do not demonstrate definitive wins for industry players at the expense of the public interest. Additionally, while his chapter on frustrating forces is short, he should not discount the vigor with which public interest copyright organizations fight for open access against the regime of alignment.

Overall, I found WIRED SHUT to be very readable, well researched and worthwhile, specifically the chapters on encryption, SDMI, DeCSS, and the broadcast flag. Additionally, Gillespie does a good job of using technical points to make thought provoking theoretical arguments and weaves together theories of technology with his policy analysis. It is also beneficial to have an author writing from outside the legal profession, since the issue of copyright is most often addressed by law professors and needs to be discussed across the disciplines. The book will be suitable for students and scholars dealing with policy, encryption, technology, and copyright law.

Ultimately, I think Gillespie is correct that the transformation of citizens into consumers is troubling, but this shift has already happened in the non-digital world, and I would like more argumentation on how the digital future will be unique in this regard. The book also makes clear that the evidence does not support a simple story about a successful corporate strategy to control future digital culture, though this is not the ultimate intention of the author. While he does convincingly argue that a regime of alignment is eminent and that avenues for resistance are limited given the different levels of power the actors enjoy, resistance (or frustration) is still possible. I would like to hold out more hope for positive transformation than he does, in part because books like this help to problematize the status quo and offer us a different way to view what the digital future could be.

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© Copyright 2007 by the author, Debora Halbert.

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THE MICHIGAN AFFIRMATIVE ACTION CASES

by Barbara A. Perry. Lawrence: University Press of Kansas, 2007. 232pp. Cloth. $35.00. ISBN: 9780700615483. Paper. $16.95. ISBN: 9780700615490.

Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University. Email: oneillt [at] southwestern.edu.

pp.851-855

Some things do not seem to change or, in Barbara Perry’s felicitous phrase, we may be “Bakke to the Future.” Her account of GRATZ v. BOLLINGER (the University of Michigan undergraduate admissions case) and GRUTTER v. BOLLINGER (the Michigan law school admissions case) is more than the tale of the journey of two Supreme Court cases and their aftermath. It is also the story of the profound shift in the justifications for affirmative action in college and university admissions.

Perry, the Carter Glass Professor of Government at Sweet Briar College and Senior Fellow at Louisville’s McConnell Center, has written a superb addition to the University of Kansas Press’s Landmark Law Cases and American Society series. Few books so successfully limn the background, cast and characters, issues, decisions and significance of a leading Supreme Court case as does THE MICHIGAN AFFIRMATIVE ACTION CASES.

The book’s opening two chapters concisely describes the modern struggle for civil rights before GRATZ and GRUTTER. Affirmative action began as a guarantee of nondiscrimination, explicitly forbidding racial or ethnic preferences. By 1969 “specific goals and timetables” were the norm. Within a decade, public opinion turned against preferences as compensation for prior societal discrimination. By the mid 1990s, opinion polls found over ¾ of white respondents and almost ½ of minority respondents opposed racial and ethnic preferences in admissions (p.39), although a plurality supported President Clinton’s “reform, not abolish” affirmative action policy (p.43). What alchemy had brought about these changes?

Justice Powell had held in REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE that the Fourteenth Amendment and the 1964 Civil Rights Act permit carefully tailored programs designed to overcome systemic discrimination against minorities and women. Later courts differed whether the claim that role models or a general preference for racial diversity are sufficiently compelling to let affirmative action pass constitutional scrutiny (pp.42, 51). Eventually, Justice O’Connor’s mantra on affirmative action, that it must be “carefully defined, narrowly tailored, and limited in duration” (p.33) became set law. An explanation for this change has less to do with partisan politics than with litigation tactics set among the background of court appointments. The impact of 12 years of Reagan/Bush appointments to the federal courts (p.39) coupled to a series of popular referenda whittled away at the broader justifications for affirmative action. [*852]

Chapters 3 and 4 are the right kind of “reality” show. They illuminate the human beings standing before and sitting behind the Supreme Court bench. We learn about the role of the Center for Individual Rights (p.38), a public interest law firm challenging affirmative action programs by self-consciously applying the litigation tactics first deployed by the NAACP Legal Defense Fund. We meet Jennifer Gratz, a working class, first generation college student, who found herself waitlisted at Michigan and eventually forced to attend a less prestigious state college. (Patrick Hamacher, her co-plaintiff, is mentioned almost solely as a litigant with virtually no background, a ghost haunting the case). Barbara Grutter, aged 43 and mother of 2, tried to become a lawyer through the best known law school in Michigan and was rejected.

We meet the justices of the Supreme Court. Perry paints a vivid portrait of each justice’s personality and style, full of small but telling human details and touches. The reader unfamiliar with the Court will learn about Souter’s brief but penetrating questions during oral argument, Breyer’s tendency to lapse into professorial lecturing, O’Connor’s ability to cut to the core of the legal problem posed by a case, Scalia’s biting but effective sarcasm, the late Chief Justice Rehnquist’s relentless cross-examination of the attorneys, and Thomas’s uncharacteristic breaching of his usual silence during oral argument.

Even institutions take on human faces. Recognizing that 90% of white and 50% of black freshmen at the university in the early 1990s had attended racially segregated high schools and lived in predominantly one race neighborhoods, University of Michigan President James Duderstadt issued his “Michigan Mandate.” Duderstadt unearthed and enriched Justice Powell’s educational diversity justification from BAKKE, asserting that it is “diversity that sustains excellence” in a pluralistic world (p.53). His words are later echoed in the university’s mission statement where diversity is cited as a key component because it “increase[s] the intellectual vitality of education, scholarship, service and communal life” (p.64). This diversity justification led to initiatives to increase the number of minorities and women in the university’s faculty and student body. The undergraduate school established a dual track admission program, later shifting to a bonus point approach when Jennifer Gratz sued Lee Bollinger, the president of the university, in 1997. The new approach automatically granted 20 of the 100 points necessary to earn admission to candidates who were African-American, Hispanic, or Native American. Virtually every minority who met the minimum qualifications for admission were accepted while many non-minorities with strong records, such as Gratz and Hamacher, were not.

A similar story unfolded within the Michigan Law School. The law school had admitted no black students during the mid 1960s, since no black student met the law school’s LSAT and GPA requirements. Even as late as 2000, the national pool of high scoring African American law school applicants was tiny—only 26 met the quantitative admission scores of successful applicants to highly competitive schools. The law school adopted an admission program designed to achieve a “critical mass” of qualified minority students so [*853] that minorities would not be “textbooks” for white students (p.73). While it lacked the explicit dual track that the undergraduate school possessed, the law school’s procedure reliably enrolled an entering class with ten to seventeen fifteen percent minority representation. The law school defended its procedure by pointing to the historical underrepresentation in the law profession.

Gratz and Grutter charged that race was the dominant factor in undergraduate and law school admissions and that there was an implicit two track process, one for favored minorities, the other for those not in the designated groups. Both programs were over- and under-inclusive, including both those who did not suffer direct discrimination, while leaving out groups such as Asian Americans who have suffered historic discrimination. There was, therefore, no close “fit” as required by the narrowly tailored prong of the strict scrutiny test (p.91). Nor did the diversity rationale constitute a compelling interest. Grutter argued that the critical mass target was a disguised quota (p.90).

Perry displays her knack for summarizing the well rehearsed arguments for and against affirmative action in a few telling words. Readers will come away from this section grasping the complexities, costs and benefits of affirmative action in university admission programs.

Gratz’s attorneys persuaded the district court judge that the undergraduate program’s original dual track was unconstitutional, but they failed to persuade him to overturn the revised bonus system since the judge found it compliant with Powell’s reasoning in BAKKE (p.71). The district court judge in GRUTTER struck down the law school program, rejecting Powell’s opinion as controlling, and relied on later decisions such as ADARAND CONSTRUCTORS, INC. v. PENA and RICHMOND v. CROSON COMPANY to hold that racial classifications are only constitutional when used to repair documented effects of prior, specific discrimination (p.75).

A closely divided appeals court over-ruled the district court in GRUTTER and held that Powell’s opinion was controlling since it provided the narrowest rationale upholding the BAKKE decision. The law school admissions program was constitutional. The 6th Circuit also heard oral arguments on the GRATZ appeal but never issued a final opinion despite the passage of a year (p.85), allegedly because of a delaying tactic by the chief judge. The Supreme Court granted Gratz certiorari without an appeals court decision.

Nearly a hundred friend of the court briefs were submitted to the Supreme Court, three-quarters supporting Michigan. Military and national security concerns were at the heart of a brief signed by three former chiefs of the Joint Chief of Staffs, the former superintendents of two service academies, a former Marine Corps commandant, and a former Secretary of Defense. Corporations such as General Motors, DuPont, IBM and 3M, along with labor unions such as the AFL-CIO also supported Michigan, arguing the value of diversity in a global market. [*854]

Chief Justice Rehnquist, joined by four other justices and with Breyer concurring and dissenting in part, found the undergraduate program unconstitutional (p.151). The university’s use of race was not narrowly tailored to achieve its interest in diversity and so violated the Equal Protection Clause. The mechanistic application of the 20 point bonus was especially galling for O’Connor, Breyer and Rehnquist. In GRUTTER, O’Connor, and four justices found the law school program constitutional since it used race and ethnicity as one of several competitive factors in selecting students. O’Connor affirmed that Powell’s reasoning in BAKKE was still constitutional doctrine (p.142).

Two important lessons about judicial politics are affirmed in these pages. The first is that individuals do matter. Powell and O’Connor demonstrate the power of the centrist justice in a deeply divided court. In many ways O’Connor was Powell’s doppelganger. Their shared temperament and professional values blossomed into a close and warm friendship. Both justices were the only ones on their respective courts to have held a legislative office. Both were “judicial diplomats” (p.96), displaying an uncanny ability to detect the sweet middle of a divided court and to build and hold a cohesive majority among a set of high-strung individualists. Both embraced a new understanding of diversity as the principal justification for racial preferences when societal rather than individual discrimination was at fault.

The second lesson is that the legal process may have more in common with legislative politics than popular or elite opinion will admit. Perry lays out a fascinating sidebar discussion about the alleged manipulation of the court docket by the chief judge of the 6th Circuit (pp.77-84, 138-140, 170-171). Dissenting judges charged him with intentional manipulation so as to exclude retiring Republican judges from participating in the case. Apparently, the 6th Circuit is as polarized and as susceptible to procedural and docket timing tricks as is the US House of Representatives. No one will walk away from this discussion still entertaining the idea that federal court judges are Platonic guardians, dispassionately deducing principles of constitutional doctrine from perfect ideals embodied in the constitutional firmament.

Perry’s story also demonstrates the profound shift in the rhetoric justifying affirmative action in the near thirty years since BAKKE. Over the years, justifications for racial and ethnic preferences in higher education have narrowed from broad claims, such as group compensation for societal discrimination and the need for role models, to the simpler one stated explicitly by Justice Powell in BAKKE: diversity. O’Connor confirmed this shift by relying on Powell’s curious, perhaps contradictory, assertion of academic freedom as a basis for protecting diversity in academia, a negative liberty claim deployed in defense of an egalitarian outcome. Whether the diversity value can carry this weight is open to debate, especially given recent Supreme Court decisions.

The final chapter is a denouement to this judicial drama and a reminder that politics seldom begin or end with a Supreme Court decision. Interest group [*855] litigation continued to prod colleges and universities to change their more explicit racial preferences in scholarships and housing, and to open themselves to broader understandings of what “diversity” might entail. A grass roots initiative headed by Jennifer Gratz successfully nullified GRUTTER by banning racially based admissions in Michigan public universities. Michigan thus joined sixteen other states in barring racial considerations in public higher education admissions

The book’s many virtues are tainted by a few missteps. Buzzy and therefore fuzzy labels such a “liberal” and “conservative” are used without regard to the fact that these slippery labels have little meaning outside a specific time and on a specific issue. For example University of Michigan philosophy professor Carl Cohen, a former ACLU state president and board member of his local county Democratic Party (pp.55-56), was one of the first to question Michigan’s racial preferences, challenging facile labeling of positions on affirmative action as either liberal or conservative. Might a more helpful usage be nondiscrimination for those claims that stress the individual’s right to be freed from government decisions that unduly rely upon racial or ethnic categories, while using antidiscrimination for those arguments that champion the government’s solicitude for the victims of past and continuing unjust discrimination?

Another barely mentioned issue is whether research purportedly demonstrating that diversity improves relationships among the races actually taps into real changes in behaviors and attitudes (p.62). Encourage people to act civilly and they may begin to think civilly. Unfortunately, the research cited in the book depends on students’ self-reports. As social scientists and especially psychologists will attest, self-reporting is the least reliable measure of genuine change.

These missteps are minor blemishes on an otherwise sterling and stirring depiction of a critical set of Supreme Court decisions. THE MICHIGAN AFFIRMATIVE ACTION CASES can serve as a supplement to civil liberties courses, as an integral part of a law and policy class, or as an edited reading for an advanced American Politics seminar. Even the expert will enjoy its unexpected factual gems. For example, the term affirmative action was chosen over its competitor, “positive action,” because of its alliterative rhythm, one of the many ways in which the style developed in the pulpits of white and black evangelical congregations has subtly affected American political language.

CASE REFERENCES:
ADARAND CONSTRUCTORS, INC. v. PENA, 315 U.S. 200 (1995).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

RICHMOND v. CROSON COMPANY, 488 U. S. 469 (1989).

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© Copyright 2007 by the author, Timothy J. O’Neill.

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CRIME AND FAMILY: SELECTED ESSAYS OF JOAN McCORD

by Joan McCord (edited by Geoffrey Sayre-McCord, with an introduction by David P. Farrington). Philadelphia: Temple University Press, 2007. 320pp. Cloth. $74.50. ISBN: 9781592135578. Paperback. $26.95. ISBN: 9781592135585.

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

pp.846-850

Hermann Manheim once edited a book entitled, PIONEERS IN CRIMINOLOGY. Had his survey reached into the twenty-first century, he surely would have included a chapter on Joan McCord. McCord was born in 1930 and received her Ph.D. in sociology from Stanford University in 1968. Well before completing her doctorate, however, she had begun research which would character her life’s work – research on data from the Cambridge-Somerville Youth Study.

The Cambridge-Somerville Youth Study of the 1930s was, in all likelihood, the most extensive longitudinal study of juvenile delinquency of its time. The program was originally proposed by Dr. Richard Cabot, a Boston physician with an interest in a clinical study of the etiology of crime and a desire to discover methods of delinquency prevention. Dr. Cabot’s emphasis on clinical design in the diagnosis of social problems, together with experimental trials of ameliorative programs, found fertile ground at a time and place which saw the Judge Baker Guidance Center with the research on delinquency by William Healy and Augusta Bronner (1969) and, somewhat later, the longitudinal studies of Sheldon and Eleanor Glueck (1950).

The study itself began by selecting a large number of boys from two heavily populated industrial areas of Massachusetts and dividing these into two groups of “difficult” and “average” boys on the basis of recommendations from a wide variety of state and local agencies. The boys were further rated on the basis of a delinquency score and an assessment of their criminal record. One member of the pairs from the “difficult” and the “average” groups was selected at random to be provided with treatment. The treatment group received family counseling, individual tutoring, medical and psychological therapy, and was introduced to a number of social service agencies. The control group only received the initial assessment.

In 1975, Joan McCord began a follow-up study of the boys who had been involved in the Cambridge-Somerville Youth Study. Data were gathered through the use of public records and by sending questionnaires to the subjects of the original study. The results of the follow-up study were surprising, to say the least. On all of the measures used – subsequent criminal record, alcoholism, mental illness, age at death, health problems, job status and satisfaction – not only was there no improvement in the experimental group, but those subjects were distinctively worse off than those in the control group. [*847]

However, in at least one important way, the program that failed had far greater success in a manner probably unanticipated by its founders. It provided a rich data base for further analysis by generations of scholars, such as Joan McCord – and, in at least her case, an opportunity to explore in depth the reasons for the failure of the original program. The basic lesson McCord learned from the follow-up study was that intervention programs such as these, however well intentioned and well designed, have the capacity to produce damaging outcomes. They do not just fail, they produce iatrogenic effects.

In 1981, McCord published the results of a study of the data from the Cambridge-Somerville Youth Study to find out why the program had damaging results. She formulated four hypotheses: (1) that counselors imposed middle-class values on lower-class youth, which values simply did not work for them; (2) that counselors caused the boys in the treatment group to become dependent on them and, when the program ended, those boys lost a source of support; (3) that youth in the treatment group suffered a labeling effect; and (4) that the support of the counselors raised expectations of the boys in the treatment group which could not be sustained, and disillusionment set in after the program was completed.

McCord constructed a number of measures to test empirically each of these hypotheses, and only one received support. The hypothesis which was supported was the one which suggested that the damaging effects were caused by the fact that the constant attention and encouragement by the counselors raised expectations in the treatment group beyond the point where there was any realistic chance of fulfillment in the boys’ environment. This could be seen as a design flaw in any clinically oriented program which fails to take into equal account the cultural and, especially, economic surroundings of its subjects.

In papers published in 1992 and 2003, McCord emphasized a number of often unappreciated benefits of the original study. First, it established that the “compensatory model” on which the study was based, since it assumed a deficit in the subjects which could be replaced through some unitary plan of intervention, simply does not work. Second, if the program looks to develop attachments to community institutions and values in an attempt to apply control theory, control theory may not work either. Methodologically, however, the study clearly demonstrated the importance of using control groups in intervention programs. It also established that such programs are effective – they just may have unintended results. This is still useful knowledge.

McCord considered the Cambridge-Somerville Youth Study with three other programs which produced damaging effects and found that such useful knowledge was troublingly unavailable, except on what she called the “fugitive literature.” She points to this as being a problem notable to this type of study. There seems to be reluctance in the professional literature to publish studies of failed programs. This produces a clear bias in the knowledge available to the scientific community. [*848]

After the initial chapters more closely related to the premises of the Cambridge-Somerville Youth Study, McCord uses the data from that study to explore the scientific validity of several variables commonly associated with adult criminality. For example, it has commonly been assumed that child-rearing practices are related to crime in later life. McCord establishes that there are significant associations between a number of variables indicative of home atmosphere and adult criminality. Notably missing from these, however, is the father’s absence from the home. McCord thought that the widespread belief that the broken home led to crime was: (1) influenced by Freudian psychology where crime is compensatory behavior; (2) caused by the home’s no longer being a place where male children could form a masculine identity; or (3) because such homes lack control without a father present. She dismisses each of these assumptions and suggests a number of ways in which other variables connected with homes with absent fathers may be more closely related to criminality. This aside, McCord’s own empirical analysis of the Cambridge-Somerville data reveals that adult criminality simply cannot be empirically associated with a father’s being absent from the home, and that “the quality of life rather than the number of parents affects crime rates” (p.81). That quality of life, she suggests in a later paper, can be significantly diminished by child abuse or neglect, but even this is more associated with juvenile delinquency than adult crime.

In the final paragraph of the paper on family relationships and juvenile delinquency, McCord makes the general observation that the study’s findings may stand more largely for the proposition that crime is more than a symptom of a basic individual pathology. She also observes that, since her own study suggests that at least the causes of juvenile delinquency differ from the causes of adult crime, monocausal theories of crime are not likely to be productive. The history of criminology has certainly borne her out in the movement away from predominately clinical explanations to a variety of situational analyses.

In a group of somewhat more far-reaching essays, McCord considers the effects of punishment, deterrence, and discipline. These essays tend to be more theoretical, even speculative in part, but still well grounded in research data. She concludes that punishment of children, in most of its usual forms, is counter productive. “Children do not require punishments if their teachers will guide them consistently, and they do not require rewards if intrinsic values of what they ought to do are made apparent to them” (p.121).

McCord notes that the most prominent justification for the use of punishment in the criminal justice system is deterrence, and the most frequent critique of that position is labeling theory which suggests that those publicly sanctioned tend to adapt the persona forced upon them by the state and fulfill it by continuing to offend. Again, using data from the Cambridge-Somerville Youth Study, McCord finds that those accused of crime but diverted from the criminal justice system to avoid labeling have no better subsequent criminal records than those not diverted. Those who were taken to court did better – but only up to [*849] a point. If punishment was severe, they had poorer subsequent records.

In the latter half of the book McCord uses the data from the Cambridge-Somerville Youth Study to try to establish the distinct antecedents to different types of criminal behavior, and to juvenile delinquency, separately rather than criminality as a whole. She concludes that parental rejection, parental conflict, and parental crime directly relate to juvenile delinquency, but may not be related to adult crime. And, importantly, she points out that the segregation of types of offenders into typologies derived from empirical research on crime will be much more useful to criminology than simply using the categories found in criminal justice records.

Finally, McCord attempts a reconciliation of two seemingly opposed views of crime causation: the biological and the sociological. However, hers was no mere theoretical synthesis, but based again on the comparison of variables from the Cambridge-Somerville Youth Study. Her general conclusion is: “One may view these differences as indicating that genetically related potentialities require ‘fertilizer’ to develop into antisocial behavior – fertilizer not available when parents provide the protections of affection and clearly specified directives” (p.172).

More evidence for the need of real typologies of subjects in criminological study is provided in the essay, “Family Socialization and Antisocial Behavior.” In a developmental study such as this, researchers may be tempted to accept without question that environmental variables are likely to bring about the same results in similarly affected subjects. Once more, using Cambridge-Somerville data, McCord establishes that too often individual differences are discounted. It is just such individual differences which may determine the specific effect of the environmental variables. The book ends with several studies on alcoholism and drunk driving, and a chapter of miscellanea.

The book is graced by an introduction by David Farrington who knew Joan McCord. His recollections of her as a friend and colleague add to the glimpse of her character the reader gets from a study of her work. She clearly was a researcher of unbounded energy whose life’s work has added greatly to the corpus of criminological knowledge. The book is an excellent collection of that work. The methodology of her research in the developmental study of crime is both classically rigorous and strikingly inventive. Joan McCord occupies an important place in the history of modern American criminology. She also contributed just as significantly to her profession, becoming the first woman President of the American Society of Criminology. I think I met Joan McCord some time ago at one of the Society’s annual meetings. I wish I had come to know her better.

REFERENCES:
Glueck, Sheldon, and Eleanor Glueck. 1950. UNRAVELING JUVENILE DELINQUENCY. New York: The Commonwealth Fund. [*850]

Healy, William ,and Augusta Fox Bronner. 1969. NEW LIGHT ON DELINQUENCY AND ITS TREATMENT : RESULTS OF A RESEARCH CONDUCTED FOR THE INSTITUTE OF HUMAN RELATIONS, YALE UNIVERSITY. Westport, CT: Greenwood Press.

Manheim, Hermann (ed). 1960. PIONEERS IN CRIMINOLOGY. Chicago: Quadrangle Books.

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© Copyright 2007 by the author, Sawyer Sylvester.

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PRACTICAL GLOBAL TORT LITIGATION: UNITED STATES, GERMANY AND ARGENTINA

by Andrew McClurg, Adem Koyuncu and Luis Eduardo Sprovieri. Durham, North Carolina; Carolina Academic Press, 2007. 262pp. Paperback. $25.00. ISBN: 9781594601927.

Reviewed by Wade Mansell, Kent Law School, University of Kent, UK. Email: W.M.Mansell [at] kent.ac.uk.

pp.843-845

Casual readers of the LPBR might wonder whether asking a tort legal academic from the UK to review a book about tort litigation in the USA, Germany and Argentina was altogether wise – apprehensions shared by the reviewer. But having read and thought about the book, I am very pleased with my somewhat reckless acceptance. Furthermore because I was outside all three jurisdictions it was easier to understand, as might a US student, the advantages and disadvantages of such an approach. But although open-minded, I was concerned and imagined that I might finish the book with too little knowledge of each of the jurisdictions to make the exercise worthwhile.

Although restricted in scope the book is extraordinarily ambitious – an ambition belied by the insistence that the book ‘is intended as a basic primer on comparative tort law and litigation in the US common law system and a major civil law system from Europe (Germany) and Latin America (Argentina) using one common kind of products liability case as the vehicle for exploration’ (p.3). Not only is it ambitious, it is also innovative. Each of the three authors works within the legal system about which they write, but each is able to write lucidly in a style that is ‘user friendly’ and always comprehensible. If there really is an audience interested to know how a products liability case would proceed in these three different jurisdictions then this is the book to recommend.

Happily its audience should be much wider than this. The products liability case is primarily the vehicle to enable the similarities and differences of the three jurisdictions to be described. While it might be thought that the restricted facts of a typical products liability case could scarcely bear such a burden, this is manifestly not the reality. As an outsider to all three jurisdictions I found the exposition of the legal system and substantive and procedural law and legal method cogent and compelling. And while an overall evaluation of the qualities and disadvantages of each is largely missing this is because the description itself is the objective. And while there is no overall evaluation, each of the authors does engage in ‘self-criticism’ and compares and contrasts the other jurisdictions with his own. Overall evaluation is (rightly) left to the reader.

It is this that may prove problematic. Although the contrasts between the three jurisdictions are of great interest, what they have in common is much greater than their differences. All have effectively concluded (by legislation, directive or otherwise) that liability for [*844] product defects causing harm, whether the defect occurs in the manufacturing, the design or through an informational defect (such as inadequate warnings or instructions for use) should effectively be strict. This means that once the defect has been proven, it will not, in any of the jurisdictions, usually be necessary to show that it arose through negligence. In the words of the authors, ‘[a]lthough the law varies in details from country to country, the core liability theories show strong cohesion’ (p.108).

Nevertheless there is one significant difference that arises from the difference of the personnel called upon to decide the level of damages in a successful claim. In the US negligence will be alleged (if it is thought it can be proven) even though apparently unnecessary, because it is thought, on good empirical evidence that if it can be shown that the defendant did something ‘wrong’ then the chances of a favourable verdict (and greater damages) are enhanced (pp.108-109). To one educated in a different system this seems strange indeed. If the object of an award of damages is, as it is in each of the jurisdictions, to put the plaintiff as nearly as possible into the position she would have been in but for the tort, then either those who simply rely upon the strict product liability as their cause of action are being under-compensated or those who additionally prove negligence may be over-compensated. Such are the hazards of using lay juries to determine quantum.

As most readers will appreciate, to accept that liability is strict in the case of accidents that result from product liability, does not entirely remove all problems, even though there will be no need to prove negligence. In particular, and this is a main theme of the book, causation must be proved. What this means is that liability will only arise if it can be proved as required that the injury was caused by the product satisfactorily shown to have been defective. How this may be proved and the method of doing so in each of the jurisdictions is crucial as is the question of who, if anyone, beyond the manufacturer may be sued. Again the comparisons are revealing and do give a significant flavour of the operation of the legal system of each country.

But again it is the high level of consensus that detracts from any overall perspective upon the law. The chosen ‘case’ (the facts were invented) concerns a woman who allegedly, while pressing a lid back on to an opened jar of peanuts, suffers very severe lacerations when the glass jar shatters. The final chapter considers the probable course and outcome of the case in each jurisdiction. These conclusions are instructive. The US writer (McClurg) concludes that the outcome is uncertain (and the prospect of success less than 50%), as is whether Silvia (the maimed woman) would be able to persuade a lawyer to represent her on a contingency basis. The rather alarming conclusion is that the resolution of both uncertainties will finally be dependent on how Silvia presents herself!

We always pictured Silvia as a sincere, honest, hardworking “victim” of circumstances. If she came across that way to the jury, she would have a much better chance of winning, particularly if she were attractive. Not attractive in a glamorous way, which could work against her, but pleasant-looking. Many empirical studies show we are inclined to associate good qualities with people – both men and women – who are physically attractive. Studies show that less attractive people are less favored in [*845] almost every context of life: by their teachers, employers, even parents. Why should jurors be immune? (p.197)

The German author (Koyuncu) concludes that Silvia would obtain legal representation, but unless there is more proof of the likelihood of the glass jar having been defectively manufactured, her chances of recovering damages are no more than 50% and probably lower. The Argentinian author (Sprovieri) concludes that without further evidence concerning the state of the jar (the shattered pieces had been disposed of) Silvia’s chances of success in the courts are no higher than 20-30%.

What surprises me about these conclusions is not their uniformity but their apparently sanguine acceptance by each author of the projected result, as an appropriate outcome. It is this together with the explicit decision that the book should not be about the category of torts themselves but only an exposition of the process by which cases are decided that seems to me to be this interesting book’s greatest deficiency. How much more intellectually stimulating this book would have been had a fourth jurisdiction (New Zealand) been included for comparison. This would usefully have challenged the consensus to be found in the other three. In New Zealand, common law actions for negligence (and product liability) have been abandoned in favour of compensation for accidents. Instead of directing enquiry to the cause of an accident, New Zealand accident compensation law focuses upon the fact of the accident and the needs of the injured party. Almost all of the ‘unknowns’ of Silvia’s case that need to be known to ensure compensation in the US, Argentina or Germany are irrelevant to the question of compensation in New Zealand. And while the level of compensation is significantly less than that of a successful common law tort action it is not inconsiderable. What is surely objectionable about Silvia’s case is the arbitrariness of the outcome. It is at least arguable that it is preferable that all accident victims receive some compensation, rather than some receiving full compensation and others none at all though their needs may be identical.

Nevertheless, that observation should not detract from what is an accessible introduction to one piece of comparative law. The different attitudes to the role of juries in personal injury cases, the different ways by which litigants have access to lawyers and their level of required financial commitment (and the consideration of contingency fees), the differences in the level and burden of proof, the disparity between the appropriate level of damages, and the different particular procedures for obtaining evidence are all informative and useful in evaluating each of the jurisdictions. The idea of how to write such a book by applying different law to the same set of facts was inspired, and I look forward to further volumes in this Contextual Approach Series.

Last but not least, the production of the book by the publishers is exemplary and is both aesthetically pleasing and priced (for a law book) very reasonably.

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© Copyright 2007 by the author, Wade Mansell.

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DECISION MAKING IN THE U.S. COURTS OF APPEALS

by Frank B. Cross. Palo Alto, CA: Stanford University Press, 2007. 264pp. Cloth. $60.00. ISBN: 9780804753661. Paper. $22.95. ISBN: 9780804757133.

Reviewed by Steven Puro, Department of Political Science, St. Louis University. Email: puro [at] slu.edu.

pp.840-842

Frank Cross, Professor of Law at the University of Texas Law School and a chaired professor at the University of Texas Businees School, broadly considers factors explaining judges’ DECISION MAKING ON U.S. CIRCUIT COURTS OF APPEALS. The Circuit Courts are the first-level federal appellate court which are structurally located between United States District Courts (trial level) and the United States Supreme Court (additional appellate level). Circuit Courts play a major role in developing federal appellate law and establish federal legal policy for regional geographical areas within the United States.

This book explores empirical and theoretical analyses to capture main dimensions of circuit courts’ judicial decisions and to spur future research. Cross’ varied analyses develop multidisciplinary perspectives to coordinate legal and social science scholars’ understanding of circuit court judges’ decision making. No single theoretical model is developed, and each of the eight chapters considers slices of different theoretical and empirical approaches, including attitudinal, strategic, institutional and judicial background models. He recognizes limits of the explanatory power of these and other models.

Cross applies existing empirical research concerning judicial decision making to analyze circuit court decision making. Because a substantial part of this earlier research is based upon the US Supreme Court, application to the circuit court level is often difficult. His analysis involves broad application of two primary circuit court databases: the US Courts of Appeals Database (Donald Songer) and Attributes of US Appeals Court Judges (Gary Zuk, Deborah J. Barrow, and Gerard S. Gryski). A significant part of this book draws upon Cross’ additional data to create new variables for novel analysis of circuit court decision making. Scholars who want to pursue additional investigations along lines suggested by Cross are directed to Susan Haire and Ashlyn Kuersten’s July 2007 release of a 1997-2002 update to Songer’s original U.S. Courts of Appeals Database (1925-1996). Scholars and students can download this information through the Ulmer Project’s website: http://www.as.uky.edu/polsci/ulmerproject/appctdata.htm .

Cross’ multifaceted study emphasizes basic statistics and regression analysis, and he provides careful explanation of tables and charts. He generally favors a parsimonious interpretation of results concerning the magnitude of relationships. This type of interpretation is particularly applied to new variables, [*841] such as “affirmative deference” of circuit court decisions to those of lower courts and “total ideology” of full three-judge panels rather than the ideology of each judge on the panel. Cross designed this book for a broad readership with particular attention to legal and political science professionals. Advanced undergraduate students, social science graduate students and law students will find it useful and accessible.

A key element in Cross’ analysis is that law plays a significant role in circuit judges’ decision making and opinion writing. He explains that legal doctri