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 doctrine and legal threshold requirements, such as jurisdiction, standing and precedential effect of certain types of cases, are better determinants of outcomes than single variables, such as judicial ideology. He criticizes existing empirical research for an inability “to capture potential effects of the law on decision making” (p.39). Admittedly, he finds there are frequent difficulties in capturing a single legal variable for quantitative analysis. His analysis leaves the reader with caution about interaction among variables relevant to law and circuit court decision making.

Two interesting and innovative aspects of the book are its exploration of the effects of panel composition and circuit court judges’ strategies to affect current Supreme Court decision making. Cross’ distinctive assessment of ideological and legal influences on panel members creates new paths to understand decisional outcomes on circuit court panels – e.g., interactions between an ideologically extreme judge and other judges on a panel. Cross tests hypotheses concerning whether ideological preferences of a panel member’s colleagues had as strong an effect on his or her votes as the panel member’s own ideological preferences. A number of indirect measures show that panel effects can be an important determinant of a judge’s vote and eventual case outcomes. After initial ventures, he concludes that “[f]uture research needs to account for the panel effects, rather than relying on the vote of the individual or the panel’s median voter” (p.177). Such hypotheses are a reminder that how law interacts with ideology remains an underlying question for collegial court decision making.

Cross’ analysis suggests complicated and elaborate strategies employed by circuit judges in the attempt to manipulate the Supreme Court’s docket and decisions. He explores different degrees of circuit responsiveness to Supreme Court preferences and how shifting Supreme Court preferences are associated with circuit court outcomes. This analysis is contrary to conventional hypotheses that “circuit courts passively moderate their rulings to conform to the preferences of the Supreme Court” (p.122). Cross provides good analysis of theoretical problems of conducting research into risk of reversal theories. Further attention to constraints imposed by complex institutional structures, such as those involved in judicial hierarchy, could potentially lead to sophisticated understanding of circuit decisions and outcomes.

Cross provides useful and novel integration of legal, political science, and economic research to understand circuit court decision making. His new avenues for empirical analysis, within his admittedly limited depth of treatment, advances his goal of initiating [*842] future theoretical and empirical research by legal and social science scholars. Many of his findings will have great utility for those seeking determinants of circuit court and other collegial decision making.

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© Copyright 2007 by the author, Steven Puro.

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THE UN INTERNATIONAL CRIMINAL TRIBUNALS: THE FORMER YUGOSLAVIA, RWANDA AND SIERRA LEONE

by William A. Schabas. Cambridge: Cambridge University Press, 2006. 766pp. Hardback. £90.00/$150.00 ISBN: 9780521846578. Paperback. £46.00/$80.00. ISBN: 9780521609081. e-Book format. $120.00. ISBN: 9780511239366

Reviewed by Donald W. Jackson, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu.

pp.835-839

William Schabas is Professor of Human Rights Law at the National University of Ireland, Director of the Irish Centre for Human Rights, and a frequent presenter at international law conferences. His previous works include books on genocide, the abolition of the death penalty in international law, an introduction to the international criminal court, as well as an avalanche of articles on international criminal and humanitarian law. His current book is a compendium of background facts and a review of substantive international criminal law, evidence and procedures of the tribunals for the former Yugoslavia, Rwanda, and Sierra Leone. However, it is not a book that attempts any in depth analysis of the successes, shortcomings or failures of these tribunals.

The International Criminal Tribunal for the former Yugoslavia (ICTY) was created by a UN Security Council resolution on February 22, 1993. The International Criminal Tribunal for Rwanda (ICTR) was created by a UN Security Council Resolution of November 8, 1994. Unlike the first two, the Special Court for Sierra Leone was created at the instigation of the government of Sierra Leone through a bi-lateral treaty of January 16, 2002, between that government and the United Nations. These tribunals are part of a movement to create prosecutable crimes under international law, which includes the entry into force of the International Criminal Court (ICC) on July 1, 2002, as a consummation of the Rome Statute for an International Criminal Court that was adopted by 120 nations gathered in Rome in 1998.

The direct precursor to these tribunals was the International Military Tribunal at Nuremberg, chartered in August 1945, which rendered judgments in 1946 convicting nineteen “major war criminals” of crimes against peace, war crimes, and crimes against humanity. However, as Schabas and others note, the Nuremberg trials were the product of the Allied powers, with the enduring aspect of victors’ justice. Thus, the ICTY was the first independent international criminal tribunal.

Creation of the ICTY

Schabas reports that in July, 1992, Human Rights Watch called “for the constitution at the highest level of an international tribunal charged with investigating, pursuing, judging and punishing without distinction those responsible for war crimes on the territory of the ex-Yugoslavia (p.14). In October 1992 the UN Security Council authorized the UN Secretary General to establish a Commission of Experts to analyze the information about war crimes that had been collected. The Commission was chaired by M. Cherif [*386] Bassiouni, a distinguished expert in international criminal law who received the 2007 Hague Prize for distinguished contributions to the field of international law. The Commission called for the creation of an international tribunal.

Given the chequered history of the United States government regarding the creation of a permanent international criminal court (ICC), it is interesting that “enthusiastic – and ultimately decisive – support” for the creation of a tribunal from Yugoslavia came from the United States (p.18). This came most notably from US Secretary of State Warren Christopher in 1993. Support also came from the International Committee for the Red Cross, Amnesty International and the Lawyers Committee for Human Rights.

Schabas reports that one of the early signal events for the ICTY came in October 1995, before its first trial had begun. The Appeals Chamber of the ICTY issued an important ruling declaring that war crimes could be committed during civil wars and that crimes against humanity could be committed during peacetime. Both conclusions were crucial for the efficacy of the ICTY (p.23).

The first trial before the ICTY, which began in May 1996, was that of Duško Tadić, a Bosnian Serb officer who was arrested in 1994 and convicted in 1997 of 13 counts of crimes against humanity and war crimes and sentenced to 20 years in prison. Tadić was not a top figure among the Bosnian Serbs. The first count of his indictment was for crimes against humanity, including a rape, in Omarska prison in 1992.

Schabas reports that by 2000 the work of the ICTY was “thriving,” with a budget over $100 million per annum. In 2002, the ICTY announced a “completion strategy” that proposed the end of its work by 2010.

Clearly the most prominent figure to be tried before the ICTY was Slobodan Milošević, who was arrested in April 2001, brought to trial in February 2002, led his own defense beginning early in 2004, and died in prison on March 11, 2006, while proceedings were still pending. The length of his trial, and the opportunity it afforded him to use the trial as a forum for his disdain and ridicule, presumably will be assessed in due time.

The leading Bosnian Serb figures, Radovan Karadžić (head of the so-called Republika Srbska) and Ratko Mladić (commander of the Bosnian Serb army who led the onslaught against Srebrenica in 1995) are still at large and supported by their partisans. They went into deep hiding when Slobodan Milošević was arrested in 2001. On October 11, 2007, the government of Serbia offered a reward of 1 million Euros for information leading to their arrest.

Creation of the ICTR

The ICTR was created to hold accountable those responsible for the genocidal conflict between the majority Hutu and minority Tutsi people of Rwanda. A UN Security Council resolution of May 17, 1994, used language from the Genocide Convention without specifically charging genocide. The resolution called on the UN Secretary General to investigate and report to the Council on the allegation that serious breaches of international humanitarian law had occurred. In July 1994, the Security Council voted to create a commission of experts, much like that created for the former Yugoslavia, while in June 1994 US [837] Secretary of State Warren Christopher expressed support for a war crimes tribunal for Rwanda. In September, the government of Rwanda formally asked the UN to create a tribunal, and that was accomplished in November 1994. Schabas notes, however, an important distinction between the ICTY – which prosecuted crimes committed during an “international” conflict between the territories and the various identities of the former Yugoslavia – and the Rwandan genocide that occurred within one country that remained intact. Abstract support for a Rwandan tribunal existed, but the devil was in the details, so that Rwanda cast the sole dissenting against the eventual UN Resolution (p.29).

The ICTR courtroom was located in Arusha, Tanzania. The first judges for the ICTR were elected early in 1995, and the first indictments were issued late in that year. It accused eight persons of genocide – the mass killing of several thousand in western Rwanda. By March 1996, the acting military ruler of Rwanda during the genocide was taken into custody, and Schabas notes the relative ease of arresting accused Rwanda perpetrators, compared to the ICTY.

The first trial before the ICTR included a plea of guilty entered by J. Kambanda, a former Prime Minister, in September 1998. The tribunal’s trial of the Akayesu case involved the first interpretation by an international tribunal of the crime of genocide as set out in the Genocide Convention of 1948.

As of January 2007 the ICTR had entered 27 judgments against 33 accused. The completion strategy for the ICTR aims at the conclusion of trials by the end of 2008.

Creation of the Special Court for Sierra Leone

As noted above, the Special Court for Sierra Leone was established by Sierra Leone and the United Nations in January 2002. It was charged with trying those responsible for serious breaches of international humanitarian law, or Sierra Leonean law, since November 30, 1996.

The conflict in Sierra Leone was between at least three warring factions. Eleven persons, drawn from all three factions, have been charged with war crimes, crimes against humanity and other serious breaches of international humanitarian law. These charges include “murder, rape, extermination, acts of terror, enslavement, looting and burning, sexual slavery, conscription of children into an armed force, and attacks on United Nations peacekeepers and humanitarian workers.”

Early in October 2007 the Public Affairs Office of the Special Court announced the sentences of Moinina Fofana and Allieu Kondewa, two former leaders of Sierra Leone’s Civil Defence Forces (CDF). They had been convicted in August 2007 of “murder, cruel treatment, pillage, and for conscripting or enlisting children under the age of 15 years into the armed forces of militias.” The two leaders received sentences of 6 and 8 years, respectively. The sentences would have been longer but for the mitigation contributed by the efforts of the CDF to restore power to Sierra Leone’s elected government. The Trial Chamber noted that the CDF “contributed immensely to re-establishing the rule of law in this Country where criminality, anarchy and lawlessness . . . had become the order of the day.” (Press Release, 9 October 2007 at www.sc-sl.org ). [*838]

Overview of the three creations

It can readily be seen from the recitation of quite recent outcomes that any conclusive overview of the work of these ad hoc tribunals must suffer from the fact that their work is still in progress. No doubt that makes analysis of their contributions to the rule of law problematic, so Schabas should not be faulted for the lack of such analysis. As a compendium providing the background, laws, and procedures of the tribunals he has done a very nice job. There are a number of especially interesting points that ought to be noted.

A few notable points

The treatment of general principles of law in Chapter 9 includes the crucial topics of superior responsibility (p.324) and superior orders (p.329). Superior responsibility means that those higher in the chain of command may be held responsible for crimes if she or he actually knew, or had reason to know, that a subordinate was about to commit a criminal act, or had already done so, and the superior failed to take necessary and reasonable measures to prevent such act, or to punish the perpetrator(s).

Superior orders will not to be treated by these tribunals as basis for relieving a lower-level accused of criminal responsibility, but may be considered in mitigation, if a tribunal determines that justice requires it.

The extent of crimes involving sexual violence is covered in Chapter 7 (p.210ff). In addition to the crimes of rape, sexual slavery, enforced prostitution, forced pregnancy, and forced sterilization are covered. The evolution of these as crimes against humanity has been moved forward by international non-governmental organizations, and owes much to the presence of women lawyers in the work of public international law. Equally interesting is the section of evidence in cases of sexual assault that begins at p. 496. The general rule is that the testimony of the victim of a sexual crime need not be corroborated before these international tribunals. Also, both the ICTY and the ICTR rules provide that consent shall not be allowed as a defense “if the victim has been subjected to or threatened with or has had reason to fear violence, duress, detention, or psychological oppression, or reasonably believes that if the victim did not submit, another might be so subjected, threatened or put in fear.”

The treatment of torture or cruel, inhuman, and degrading treatment in Chapter 8 (p.250ff) will prove interesting because of our own issues with torture during the administration of George W. Bush. It warrants a careful reading.

Chapter 12 covers the rules of evidence. Hearsay evidence is not barred before these tribunals, because their trials are to be conducted before experienced judges who are presumed competent to judge the weight of hearsay evidence, rather than enforcing a rule of exclusion.

Chapter 13 on the rights of the accused includes an especially interesting section on equality of arms (p.513ff), which under the ICTY has come to mean that the prosecution and defense must be equal before the Trial Chamber so it must grant “every practicable facility it is capable of granting” to assure such equality. Anyone familiar with urban criminal courts in the United States knows how infrequently that standard is applied there. It is also notable that the principle of public trials before these [*839] tribunals is subject to the provision that hearings may be closed where “extraordinary events attach to a witness’s own safety, or that of his or her family.” Concerning rights of the accused, the brief section on habeas corpus (p.539) reminds us that the UN Human Rights Committee has described the writ of habeas corpus as a non-derogable right under international human rights laws. We shall see during the present term of the Supreme Court of the United States whether that obtains as well under the US Constitution.

Chapter 15 provides an excellent summary of the structure and administration of the tribunals. The ICTY trials have been in The Hague, the ICTR trials have been in Arusha, and the SCSL trials have been in Freetown, the capital of Sierra Leone. In one ICTR case, a defense motion, not opposed by the prosecutor, led to a site visit to Kibuye Prefecture in Rwanda. Site visits were also authorized by the ICTY to various locations, including Srebrenica.

As you might imagine, the points noted above are only a few samples from a very long book. If you do not know much about ad hoc international criminal tribunals, but want to learn more, or if you want a single-volume reference book on such tribunals, this is the book for you.

REFERENCES:

Homepage of the International Criminal Court available at: www.icc-cpi.int .

Homepage of The Special Court for Sierra Leone available at: www.sc-sl.org .

Homepage of the United Nations International Criminal Tribunal for Rwanda available at: www.ictr.org .

Homepage of the United Nations International Criminal Tribunal for the Former Yugoslavia available at: www.un.org/icty .

Schabas, William A. 2004. INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT. 2nd ed. Cambridge: Cambridge University Press.

Schabas, William A. 2003. THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW. Cambridge: Cambridge University Press

Schabas, William A. 2000. GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES. 3rd ed. Cambridge: Cambridge University Press.

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© Copyright 2007 by the author, Donald W. Jackson.

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THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS

by Michael D. Ramsey. Cambridge: Harvard University Press, 2007. 504pp. Hardcover $65.00/£41.95/€59.90. ISBN: 9780674024908.

Reviewed by Kyle L. Kreider, Political Science Department, Wilkes University, Wilkes-Barre, PA. E-mail: Kyle.Kreider [at] wilkes.edu.

pp.831-834

Receiving much press and attention in the 2007 Supreme Court term is MEDELLIN v. TEXAS, an international law case that asks whether the president has the constitutional authority to require the states to abide by an International Court of Justice (ICJ) opinion. The MEDELLIN case is one of a long line of cases presenting an interesting question about the scope of presidential power and one that THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS seeks to answer. Through analyzing constitutional text, secondary writings, and historical evidence, Michael Ramsey lends a powerful voice to the debate on what the Constitution says about foreign affairs. Specifically, Ramsey argues that “we have too quickly given up on the Constitution’s text” in seeking answers to foreign affairs questions and, therefore, he aims to “rediscover” the foreign affairs framework that has been so easily discarded (p.2).

The book is divided into six sections. Ramsey first addresses the sources of presidential power, focusing on what the Constitution and the Articles of Confederation mean for presidential power, then shifts to specific institutions (President, Congress, the states, and courts) and their respective roles in foreign affairs. In the first two chapters, Ramsey acknowledges the difficulty of interpreting the Constitution’s meaning for foreign affairs. He illustrates this by showing that Justice Sutherland, in UNITED STATES v. CURTISS-WRIGHT CO. (1936), did not look to the Constitution’s text to decide whether the president had the authority to impose an embargo on arms sales to Bolivia and Paraguay. The Court found the presidential authority constitutional but maintained that it derived from a source external to the Constitution, that being the “conception of nationality.”

Justice Sutherland’s claim that the president’s authority in foreign affairs is inherent in the “conception of nationality” can be assessed by examining the “unstated background assumptions” (p.29) of the time leading up to the Constitutional Convention. Chapter 2, then, examines whether the Articles of Confederation give any weight to Justice Sutherland’s claim in CURTISS-WRIGHT. Ramsey’s interpretation of the evidence is that under the Articles of Confederation, it was not assumed that Congress – the branch with foreign affairs powers – had inherent powers. Rather, “the common thought was that exercise of these powers depended upon the states adding to the Congress’s textual grants” (p.39). Therefore, if CURTISS-WRIGHT is wrong about presidential authority in foreign affairs, does the Constitution’s text answer the questions regarding where power lies in foreign affairs? Ramsey argues that it does. [*832]

Many constitutional theorists argue that, unlike Article I, which provides a relatively detailed accounting of congressional power, Article II is vague and open-ended, thereby inviting debate and discussion as to the scope of the president’s power in foreign affairs. Article II’s generality is the primary reason Justice Sutherland and the CURTISS-WRIGHT Court went outside the Constitution to find the president’s actions constitutional. Ramsey argues, however, that the Vesting Clause of Article II, Section 1, which provides that “the executive Power shall be vested in a President of the United States of America,” affords a solid basis for presidential power in foreign affairs.

While the words “executive Power” do not appear to contain a lot of explanatory power, Ramsey argues that those two words contained a great deal of meaning at the time they were written. For example, Ramsey points to John Locke’s belief that executive power and federative power should “be held by the same branch of government” (p.62) even though they were distinct. Executive power requires executing existing laws, while federative power does not because a president cannot know in advance what he must do in response to foreign affairs. According to Ramsey, both Montesquieu and Blackstone believed that “executive” power encompasses foreign affairs discretion and execution of laws.

Ramsey realizes, however, that he needs to demonstrate that late-eighteenth century Americans shared the definition of broad executive power as Locke, Montesquieu, and Blackstone proposed. Ramsey contends that the drafters and ratifiers of the Constitution (Chapter 3), as well as government officials in the Washington administration (Chapter 4) believed – through word and action – that “executive Power” included foreign affairs power. Understanding that many people are uncomfortable when someone argues for inherent presidential power, Ramsey devotes Chapter 5 to allaying those fears by arguing that expansive presidential foreign affairs powers “[do] not upset constitutional checks and balances nor provide the President with ill-defined or unlimited authority” (p.92). For example, one of the limits on presidential power is an inability to change existing legal obligations and rights domestically. Therefore, YOUNGSTOWN SHEET & TUBE CO. v. SAWYER (1952) was decided correctly because President Truman was attempting to use his foreign affairs powers and apply them in an inappropriate domestic realm. The point Ramsey is seeking to make is that this expansive presidential power in foreign affairs is not limitless.

The third and fourth sections of the book discuss the role of Congress in foreign affairs. Although the framers envisioned a role for the Senate in treaty making and approval (Chapter 7), the framers did not give the Senate a role in treaty withdrawal. Treaty withdrawal – defined as “terminating it in accordance with its express or implied terms” (p.172) – is a power given to the president (Chapter 8). In one of the most interesting chapters (Chapter 10), Ramsey maintains that NAFTA “is almost constitutional” because, while Congress “lowered trade barriers (which it can always do),” NAFTA is unconstitutional because “Congress agreed (or authorized the President to agree), on behalf of the United States, [*833] not to raise trade barriers in the future” (p.217). This Congress can not do.

In Chapters 11 and 12, Ramsey evaluates the meaning of war. In Chapter 11, Ramsey concludes that the declare-war clause should not be confused with formal proclamations because a “broader meaning” was intended, that actions can also create a state of war. Therefore, simply because Congress has not formally declared war does not mean that the war is unjust. In Chapter 12, Ramsey points out that the framers balanced war powers between the executive and legislative branches. Neither branch has sole or dominant power over war decisions.

In Section 5, Ramsey tackles the question of what role states have in foreign affairs. In a very compelling chapter (13), he argues that “the text and commentary stand against a broad preclusion of state foreign affairs power, particularly with respect to state laws having foreign affairs implications” (p.281). Chapters 14 and 15 might be Ramsey’s answer to MEDELLIN v. TEXAS. In particular, he argues that state law cannot be displaced “by the President alone, because the President has no power to make ‘supreme Law’” (p.299). State law can only be displaced by a process “in which states have representation” (p.299). The current problem is that with the ratification of the Seventeenth Amendment – and the direct election of US Senators – state input in the treaty process is very limited at best.

In the last section (VI), Ramsey evaluates the role of courts in foreign affairs, noting that federal courts may be too quick in declaring a political question (Chapter 16), that international law is our law (but not supreme law if Congress and President have not adopted it) (Chapter 17), and the courts might be well suited to give the president some deference in his interpretation of international law.

In this meticulously researched and well-argued book, Ramsey lays out a compelling case for returning to the Constitution’s text and surrounding documents to ascertain the meaning of the Constitution at the time of the founding. THE CONSTITUTION ‘S TEXT IN FOREIGN AFFAIRS is a welcome addition to the constitutional law and theory literature because many scholars and teachers have moved beyond the text and its meaning in the late-eighteenth century (presumably its intended meaning). Most scholars are not going to quibble with Ramsey’s general conclusion that the Constitution “is fundamentally about distributing power across numerous independent yet interrelated branches of government” (p.7) but very well might find fault with his contention that the Vesting Clause of Article II, Section 1 grants the president the residual powers Ramsey claims it does. While there is a modicum of support for Ramsey’s Vesting Clause thesis – primarily some passages written by Locke, Montesquieu, Blackstone, and Jefferson – many believe the balance of evidence suggests the framers’ lack of specificity in Article II, Section 1 was intended to ensure it would be defined in practice and not by a set of a priori rules. After all, if the framers were clear on other presidential and congressional powers, why not be clear on what “executive Power” means? [*834]

In short, THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS should be read by all scholars and students of constitutional interpretation and presidential power in foreign affairs. It is a welcome voice to a very timely and provocative debate.

CASE REFERENCES:

MEDELLIN v. TEXAS, No. 06-984 (2007).

UNITED STATES v. CURTISS-WRIGHT CORPORATION., 299 U.S. 304 (1936).

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

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© Copyright 2007 by the author, Kyle L. Kreider.

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GOD ON TRIAL: DISPATCHES FROM AMERICA’S RELIGIOUS BATTLEFIELDS

by Peter Irons. New York: Viking/Penguin, 2007. 384pp. Hardcover. $26.95. ISBN: 9780670038510.

Reviewed by Ruthann Robson, Professor of Law & University Distinguished Professor, City University of New York School of Law. Email: robson [at] mail.law.cuny.edu.

pp.827-830

“Congress shall make no law respecting an establishment of religion.”

The First Amendment’s Establishment Clause – more properly termed an anti-Establishment Clause – was intended to unite the new nation by not favoring any particular religion. In recent decades, however, these seemingly simple ten words have proved among the Constitution’s most divisive. The accusations fly: the Religious Right is attempting to establish a theocracy by erecting nativity scenes outside city hall in December; the Atheist Left is trying to mandate godlessness by prohibiting prayer at high school graduation. The United States Supreme Court has become a referee, although one whose own impartiality is questioned.

Peter Irons, professor emeritus of political science at the University of California-San Diego and attorney, enters this fray with GOD ON TRIAL. The opening chapters are an accessible, condensed history of the Establishment Clause and its interpretations. He notes “considerable irony” in contemporary complaints of Evangelicals that church-state separation is a “lie” intended to destroy the foundation of our “Christian nation” (p.2). The truth, Irons argues, is Anglican sects established churches in colonial America, demanded the payment of taxes, and “detained, arrested, tortured, and deported religious dissenters, especially Baptists and other evangelical Christians” (p.5). He outlines constitutional origins, noting that the addition of the Bill of Rights to the Constitution in 1787, with the final phrasing of the Establishment Clause was vital to the eventual ratification of the document.

As Irons notes, this history is not merely interesting, but doctrinally significant. The intent of the framers of the Establishment Clause, especially James Madison, plays a crucial role in arguments over the Clause’s meaning. (pp.1-5). “No provision of the Constitution is more closely tied to or given content by its generating history,” according to Justice Rutledge’s dissent in EVERSON v. BOARD OF EDUCATION, the Court’s first Establishment Clause case. The Court decided EVERSON – holding that it was constitutional for New Jersey to spend tax dollars to pay the bus fares of parochial school children – only sixty years ago. Since then, the courts have made up for lost time; the Supreme Court has averaged approximately one Establishment Clause decision per year and the lower courts have rendered tens of thousands of others in the past half-century.

From this multitude, Irons selects six recent controversies: the Mount Soledad Cross in San Diego, the practice of [*828] prayer before high school football games in a community in Texas, the presence of the Ten Commandments in a Kentucky courthouse and on the statehouse grounds in Texas, the words “under God” in the pledge of allegiance, and the “intelligent design” litigation in Pennsylvania. His approach resembles his previous books: a mix of law, sociology, and journalism. In GOD ON TRIAL, however, Irons modifies the template established in his 1988 success, THE COURAGE OF THEIR CONVICTIONS, in which he profiled “sixteen Americans who fought their way to the Supreme Court.” Here, Irons extensively treats two controversies that never reach the high court; he thus provides a necessary tonic to the neglect of “lower” court opinions. An even more important difference is his explicitly stated but unelaborated decision to tell “the stories on both sides” (p.xiii). Irons has often used extensive first-person narratives in his work, but it is difficult to imagine THE COURAGE OF THEIR CONVICTIONS juxtaposing the statement of Georgia attorney general Michael Bowers, who appealed the invalidation of the state sodomy law, with the compelling account by Michael Hardwick, arrested after a police officer crashed into his bedroom. In GOD ON TRIAL, however, oppositional tales are the norm. In one chapter, the first-person narratives of two cousins are paired: Louanne Walker, a named plaintiff in the challenge to the Ten Commandments posted on the wall of the McCreary County, Kentucky courthouse and Jimmie Greene, the local official who posted them and passionately defended their place in the public building (pp.215-233).

Nevertheless, as in his earlier books, Irons’ sympathies are clear: he sides with the challengers. Although he describes his own religious background (Puritan, Catholic, Methodist, Presbyterian, Unitarian, and Jewish-by-marriage) and his current church membership (United Methodist), he forthrightly reveals his own anti-religion stance in some of the cases he discusses (pp.xviii-xix). Irons assisted those who objected to San Diego’s forty-three-foot-tall cross towering over the city as a memorial to Korean War veterans. Irons not only wrote legal briefs but also – “on the spur of the moment” – reserved the park site for Easter Sunday on behalf of the Atheist Coalition of San Diego (pp.91-92). When the sunrise event occurred, the featured speakers were from the Atheist Coalition, the First Unitarian Church, a Presbyterian church, the San Diego Community Church (with its “largely gay-and-lesbian congregation”), and Irons (pp.92-93).

Irons also supported Michael Newdow in his quest to have the words “under God” in the Pledge of Allegiance declared unconstitutional. Newdow, a medical doctor and law school graduate, represented himself on behalf of his school age daughter; Irons, along with Edwin Chemerinsky (since named Dean at the new UC-Irvine law school after a bit of unrelated First Amendment drama), edited Newdow’s “unwieldy brief” (p.247). Newdow, determined to argue his own case, practiced in moot court sessions with law professors serving as the justices. As Irons describes it, Newdow’s oral argument before the Supreme Court in 2004 was a testament to preparation. In one exchange, then-Chief Justice Rehnquist, following up on a question about [*829] divisiveness, probed Newdow about the 1954 vote in Congress inserting the words “under God” into the Pledge of Allegiance. Irons observes that Rehnquist was like a good prosecutor asking a question to which he already knew the answer. When Newdow accurately replied the Congressional vote was unanimous, Rehnquist “leaned back, a smile on his face and his point made.” The audience chuckled appreciatively at this debater’s display of Rehnquist’s skill. Newdow’s quick retort – “That’s only because no atheist can get elected to public office” – prompted spectator applause. Rehnquist, Irons reports, “looked shocked,” and “growled” that the courtroom would be cleared if there were any more clapping (p.254). Rehnquist, however, would have the last laugh. The Court side-stepped Newdow’s claim, instead concluding that he had no standing to raise the rights of his school-age daughter because he did not have legal custody. As Irons reports, Newdow passed the California bar and is now representing other parents and children who object to “under God” as part of the Pledge of Allegiance (pp.258-259)

Irons devotes considerable attention to the 2005 twenty-one day “intelligent design” bench trial in a Harrisburg, Pennsylvania federal courthouse. The judge, a recent Bush appointee with an “impeccable Republican background” (p.303), had to determine whether the nearby Dover Township school board’s adoption of the book, OF PANDAS AND PEOPLE, introduced religion into the biology curriculum. Each side had biologists testify as experts regarding the “theory” of evolution and the alternative “theory” of intelligent design. The deciding expert in the case, according to Irons, is Barbara Forrest, a philosophy professor and author of CREATIONISM’S TROJAN HORSE: THE WEDGE OF INTELLIGENT DESIGN. Professor Forrest buttressed her conclusions with a “raft of quotations” from intelligent design advocates, as well as a comparison between the original and second versions of the PANDAS book, showing “creation” and “creationism” had been replaced with “intelligent design” more than 150 times (p.312). The judge’s lengthy opinion against the school board came six weeks after the voters ousted the school board’s members who had supported intelligent design. After the election, evangelist Jerry Falwell warned the “good citizens of Dover” not to turn to God if there was “a disaster in your area,” but instead “call on Charles Darwin. Maybe he can help” (p.315).

In GOD ON TRIAL, Irons accomplishes his implicit goal of scholarly impartiality, even as he discloses his work as a real-life advocate. His reportage of the background, ensuing litigation, and judicial opinions is objective. The adversarial first-person narratives are not asymmetrical; indeed, almost all of the accounts evince an unattractive zealotry. Moreover, Irons plainly prides himself on his balanced methodology. He derides one competitor’s effort as largely “a product of law-library research” without evidence the author “talked with anyone on either side of America’s religious wars.” He chastises a journalistic book, implicitly suggesting the author should have spent more time in a reputable library, because it weaves a fantastical “conspiratorial web” between those who would stone blasphemers and the Bush White House. But unbalanced or [*830] otherwise, all approaches lead to the same conclusion: the “primary battlefield” in our nation’s “religious wars” has become the federal judiciary, especially the appointment of the next Supreme Court Justice, predicted to occur after the Presidential inauguration in 2009.

In fact, life-tenured federal judges do not necessarily make loyal warriors. William O. Douglas, the Court’s longest serving member (1939-1980) and famously subject to an impeachment attempt, wrote the Court’s 1952 opinion in ZORACH upholding a New York City program allowing some students to be released from school for religious instruction while the other students remained in classes. Douglas proclaimed: “We are a religious people whose institutions presuppose a Supreme Being.” In subsequent opinions, he concluded prayer in the public schools, Sunday “blue” laws, and even tax exemptions for churches were all unconstitutional establishments of religion. Justice Kennedy, a so-called centrist Justice on the current Court, derided the established doctrinal LEMON test as a fashion that invited formalism in 1989, only to write a majority opinion declining to reconsider LEMON in 1992.

Irons briefly entertains the notion that many – perhaps even most – of us are more flexible than the rhetoric of “war” and “battlefield” suggests, but his work leaves little hope for a principled truce.

REFERENCES:

Davis, Percival, and Dean H. Kenyon. 1989. OF PANDAS AND PEOPLE: THE CENTRAL QUESTION OF BIOLOGICAL ORIGINS. Richardson, TX: Foundation for Thought and Ethics.

Forrest, Barbara, and Paul R. Gross. 2003. CREATIONISM’S TROJAN HORSE: THE WEDGE OF INTELLIGENT DESIGN. Oxford: Oxford University Press.

Irons, Peter. 1988. THE COURAGE OF THEIR CONVICTIONS. New York: The Free Press.


CASE REFERENCES:

EVERSON v. BOARD OF EDUCATION, 330 US 1, 28 (1947).

LEMON v. KURTZMAN, 403 U.S. 602 (1971).

ZORACH v. CLAUSON, 343 US 306 (1952).

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© Copyright 2007 by the author, Ruthann Robson.

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GENDER AND JUSTICE: NEW CONCEPTS AND APPROACHES

by Frances Heidensohn (ed). Devon, UK: Willan Publishing, 2006. 320pp. Hardback. £45.00/$74.95. ISBN: 9781843922001. Paper. £22.00/$34.95. ISBN: 9781843921998.

Reviewed by Elizabeth Gordon, Department of Political Science and International Affairs, Kennesaw State University. Email: egordon [at] kennesaw.edu.

pp.825-826

In GENDER AND JUSTICE: NEW CONCEPTS AND APPROACHES, editor Frances Heidensohn introduces readers to a variety of studies in gendered criminology with an emphasis on works written by younger researchers pushing the field in new directions or extending the more established approaches.

In her introduction, Heidenson notes both change and continuity in the field of feminist criminology, which is only a couple of decades old (emerging in the late 1970s). She notes a remarkable continuity in the kinds of questions asked about the relationship between gender, crime and punishment. For example, questions about the gender gap between male and female offenders and offenses remain strong and important, as do theoretical concerns about generalizability and studies of disparate treatment of male and female offenders in the justice systems. And yet, even though these themes continue to inspire study, the field is also growing, becoming established, and pursuing innovative methods. In GENDER AND JUSTICE, Heidenson showcases the new. The book is organized loosely into three sections: offending, the criminal justice system, and new concepts/approaches. Most studies are conducted in and focused on the United Kingdom, but there are also articles regarding gender and crime in Canada, Ireland, Zimbabwe and South Africa.

Several themes recur throughout the articles in the book. One is an emphasis on familial and family-like relationships. In one of the book’s most interesting pieces, Rachel Condry interviews relatives of serious offenders in order to understand the “broader impact of crime.” She finds that the work of tending to an incarcerated felon (visiting, writing, championing, and so on) falls predominately to female relatives, often at a high social and emotional cost to themselves. In another piece, Barbara Mason writes about an experimental facility for female prisoners in Ireland, in which the women live in a nearly home-like environment, with all outward signs of institutionalization de-emphasized. They reside in “houses,” rather than cellblocks, and those who dwell in each house are responsible for running the house and resolving conflicts among housemates. In yet another subject with a familial theme, Judith Rumgay examines the Griffins Society, a private organization started in the 1960s that supported hostels and other services for female offenders in London. Comprised of women from Britain’s social elite, the Griffins’ project was profoundly shaped by the maternal perspective of the organization. This maternal focus can be seen in a literal way through the hostel programs supporting pregnant women and mothers, but also in the fact that the Griffins were lay people who saw [*826] themselves acting from personal experience rather than professional training or ideological imperative.

Another interwoven theme is the ever-shifting characterization of female offenders. What does not change is that the offenders themselves have little to no control over how they are defined or described. (Apparently, self-definition is one of the casualties of prosecution and conviction.) Other-driven definitions of female offenders are sometimes benevolent, and nearly always instrumental. Typically, female offenders, as compared to male offenders, are defined as somehow less blame-worthy or responsible for the offenses they have committed. For example, Kate Steward (director of the aforementioned Griffins Society) describes the stories defense attorneys tell judges in order to get favorable pre-trial treatment for their clients. Stories portraying female clients as led astray by bad men, ready for change, more a victim than an offender frequently play on the paternalism of older male judges. Another re-characterization – of young female offenders as “mad” rather than “bad” – is demonstrated in Nicola Hutson and Carrie Anne Myers’ study of young female offenders. They report that all of the subjects they interviewed were routinely offered medication by prison doctors for various psychological conditions such as anxiety, sleeping problems and depression. In another context, sociologist Joanna Phoenix explains that the British criminal justice system employs various characterizations of street prostitutes: “as offenders; threats to public sexual health; victims of child abuse, and vulnerable women who must be compelled to seek help.” These characterizations overlap to form a web of state interventions into the lives of poor women trying to support themselves through prostitution.

GENDER AND JUSTICE would probably make a good reader for classes in various aspects of gender studies, or women and law. The collection would be instructional in that it touches on various aspects of criminology as well as different strands of feminism, plus the essays are of an accessible length and level for undergraduate or graduate students. (Rather than fully developed research treatises, the entries in this volume are more like snapshots of feminist criminology projects). Furthermore, a variety of methodological approaches, mostly qualitative but also some quantitative, are represented. While criminologists and political scientists have some overlapping interests, this volume focuses less directly on traditional political science subjects (institutions, laws, political power) and more on sociological concerns. (Heidensohn herself is a sociologist, as are many contributors). An additional consideration for pedagogical use is its British focus; it does not address criminal justice practice in the United States. In short, a comprehensive look at feminist criminology it is not, nor does it style itself as such. But on its own terms, the volume offers some interesting glimpses into new British scholarship on gender and crime.

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© Copyright 2007 by the author, Elizabeth Gordon.

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POLITIK – WESEN, WIEDERKEHR, ENTLASTUNG

by Miguel Skirl. Berlin; Duncker & Humblot, 2005. 358pp. Paper. €84. ISBN: 9783428115006.

Reviewed by Günther Auth, Department of Political Science, Maximilians-University, Munich. Email: guenther_auth [at] web.de.

pp.816-824

Students of political science learn at a relatively early stage in their curriculum that the ‘political’ has been the province of what are nowadays called political theorists. Yet what students not so often learn is that these very same political theorists were not aloof from the context they were describing. Political theorists were activists, advisers and/or critics that either lobbied for the project of their clients, or lamented about the course of events. Thus the writings of so-called political theorists do not only inform ‘the political’ but represent viewpoints and positions in struggles for influence and domination. The field of political theory, given that one may actually delimit its boundaries, has always been a repository of normative considerations and practical concerns. It is therefore interesting, and somewhat puzzling, that academics tend to approach the writings of such theorists primarily on the premise that something called ‘the political’ can be identified and reconstructed in a nominal fashion and without much regard for both the goals that such writings were meant to promote, and the – unintended – consequences that they spurred over time.

To be sure, the fabrication of knowledge about ‘the political’ and political theory has become the business of academics who are mostly employed by university departments of political science. The production and dissemination of knowledge about ‘the political’ is thus administrated by bureaucratic agencies and removed from the field of practical politics. The great majority of such bureaucracies are located in the industrialized countries of the OECD world – and here especially in the United States, Great Britain, Australia, Germany, France, and Italy. Re-production of ‘the political’ occurs through interpretation of writings by specialized academics in Western universities who have learned to focus upon some identifiable object that they take to be coherent over time because this lends their construction of ‘the political’ the appearance of an intellectual discipline. Conforming however strictly to the rules of their discipline’s operational code enables specialized academics to sustain the fundamental ontology of ‘the political.’ Yet they seldom bear out conceptually how distinct aspects of the ‘political’ relate to, and perhaps underlie, practical projects and perspectives.

Academic political scientists often seek to delineate aspects and determinants of political authority by tracing texts of great writers for hints regarding the position of the individual vis-à-vis society on the one hand and the state on the other. They usually single out great texts, preferably by authors such as Plato, Aristotle, Macchiavelli, Hobbes, Locke, Rousseau, Kant, Hegel, Mill, Marx, Nietzsche, Weber, Schmitt, and, [*817] of course, Rawls, as particularly relevant for this purpose. The conventional convictions of academic political theory, the presentist concerns of academic commentators, and the interrogation of conceptual categories of a handful seminal texts, demarcate the boundaries of a field, or discourse, that serves as a relatively solid ground for inquiry and disagreement. Academic political theory is thus mainly about object-forms called ‘the state,’ ‘the people,’ and particular sorts of public order. To be sure, there have been shifts in academic orientations. Questions that had been topical in the first half of the 20th century, such as those concerning the nature and subjects of ‘obligation,’ for instance, have been broadened so as to include structural and procedural aspects of ‘the political.’ Yet, the great bulk of literature in academic political theory has not concerned itself with interrogating the purpose, let alone the consequences, of the ontological forms that make up the object domain of politics. Contemporary academics have failed to take issue with the secular eschatology widely assumed to underlie classical and modern theories of ‘the political.’ Few academic commentators have begun to reflect about the consequences that the great writers of political theory dissociated ‘the political’ from the divine and extra-mundane forces.

In short, there has perhaps been a void in the centre of the theory and practice of politics, a void that has been filled with nihilism. What aggravates this problem is that it has either gone unnoticed or that it has been denied by academics in Western political science departments. Adamant of getting closer at ‘the political’ as a conceptual matter, preferably through a literal and systematic interpretation of seminal texts, academic commentators have traced ‘the political’ back through its authoritative materials, recognized and conceived new political problems, expelled spurious and/or subversive intellectual tendencies, and they have improved existing interpretations. All this they have done in formal idioms and within logical forms of reasoning and interpretation considered suited to this purpose. But, however much the academic reproduction of ‘the political’ has sought to uncover what lies hidden in the great texts of political theory, it has so far not posed a threat to the fundamental ontological forms, the formal order, and the secularization presumed to underlie the object domain of political theory. This – i.e. that the theory and practice of the political has been nihilistic – is the basic claim of POLITIK – WESEN, WIEDERKEHR, ENTLASTUNG by Miguel Skirl.

It is a critical and highly interesting claim. It is a claim that I see worthy of being treated with care. I have read the entire manuscript twice and have come to find myself puzzled by the fundamentalism that is built into this claim. I have nevertheless enjoyed reading the book because the argument has been formulated in an idiosyncratic fashion that is markedly at odds with many (German) engagements with political theory.

Put most generally, Skirl has indicted the great texts of (Western) political theory for having been haunted by nihilism. In his estimation, the great writers of political theory have mainly been responsible for the fact that the political has more or less completely failed to [*818] respond to exigencies in space and time. This is because, confronted with the task to elaborate rational justifications of political authority and its exercise in the making of political order, political theorists have by and large failed to do precisely this – to conceive and rationalize the political. Seeking to endow the assumption of power with legitimacy, political theorists have done exactly the opposite: they have theorized about ‘order,’ ‘justice,’ ‘freedom,’ or ‘property,’ in a formal fashion but have ultimately destroyed the rational basis of the political. They have arrived at nihilism – each theorist in a particular way, but all taken together in a manner that is constitutive of a generic phenomenon. Yet what precisely does Skirl mean with nihilism? Or more appropriately: what sort of nihilism has Skirl made the basis of his allegation? There are several versions of it.

One understanding of nihilism, what may be headed ‘moral nihilism,’ has it that the world is without objective meaning, purpose, comprehensible truth, or essential value. The charge of nihilism consists, then, in the allegation that it leaves no room for the existence of a higher ruler or creator. The lack of meaning and purpose manifests itself in the absence of a ‘true’ morality and secular ethics. As a consequence, life is devoid of truth and no action is preferable to any other. Another concept of nihilism, ‘status nihilism,’ sees the beliefs of an accuser as more truthful than those of the accused. The latter’s beliefs are portrayed as amounting to nothing. Still another version of nihilism, ‘modern nihilism,’ refers to a period or epoch. In this sense, modernity, especially as it has been characterised by relativism and pluralist forms of life, has often been dubbed nihilistic by theologians and figures of religious authority. Their claim is that adherents to modern lifestyles tend to reject the authority of God and therefore subscribe to nihilism. Closely related to this idea is still another version of nihilism, the philosophical stance of ‘ontological nihilism,’ which is represented by figures such as Friedrich Nietzsche or Martin Heidegger. The former intimated that the exaltation of science and scientism undermined faith in the Christian system of values and morality. The latter has been associated with the claim that, because a being remains unquestioned and forgotten in metaphysics, it is an exemplar of nihil.

Skirl has been hesitant to subscribe to the philosophical reading of nihilism. This reading of the problem is too all-embracing and unspecific for his purpose, as it does not easily lend itself to interrogation of the political. The same goes for modern nihilism, even though it captures an important aspect when it alludes to the total loss of evaluative standards. The position that Skirl adopts is moral nihilism. The political has allegedly suffered from the loss of any orientation towards the divine. And, so the argument goes, this is not a recent phenomenon. According to Skirl, it had been characteristic for the modern and the classical epochs. The political came to be emancipated from the divine under Plato. In this respect, Nietzsche was right with his observation that Plato started the dissociation of the political from the divine with his doctrine of two worlds. The ensuing history of political theory has been the progressive displacement of God. The problem that the political has been confronted with results from the [*819] increasing enmity towards the divine, the embrace of atheism in the political field. And what is crucial in this respect, nihilism manifests itself as a practical stance because theory has paved the way for it. After all, political theory underlies and/or informs practice, irrespective of whether the champions of political theory are aware of it. The rejection of the divine in theory translates into pure activism as a practical stance. The expulsion of God from the political in theory makes itself felt in the doing for doing’s sake. Singled out as the overarching problem of the political, nihilism shows in the explosion of governance devices and regulatory schemes whose operation has come to be premised solely on their multiplication and perfection. And, similar to how governing elites perceive their highest purpose to lie in the invention and implementation of ever more effective techniques of governance, individuals tend to feel satisfaction only when engaged in activities that confirm their sense of presiding over animate bodies, but that are otherwise devoid of any higher meaning.

So even though nihilism is mainly to be found in the realm of practice, it has only become such a pervasive and problematic real world phenomenon in the political field because of the failure of political theory. The writings of great figures of political thought have mainly been responsible for the fact that the monistic view of the world as an integrated whole, consisting of the mundane and the divine, has been lost. Starting with Plato, and culminating for the moment in Macchiavelli’s conception of the political as an art to attain, and retain, a position of superordination and status-power, a theory of the political based on the view of politics as a ‘technique of the feasible,’ the political has been conceptually more and more dissociated from the divine. The political has come to be identified increasingly with the exercise of power by human beings over other human beings. The political has ultimately been a qualifier for mere arbitrariness. To be sure, the mundanisation of the political has been characterised by several distinct moments. One important moment of the mundane has been brought about by the increasing stratification and the ensuing formation of classes, as in France, which eventually paved the way for the politicisation of societies in the name of property power and other bourgeois values. Another moment of the mundane is associated with the incumbent liberation of what were to become the United States from colonial rule. Yet what is characteristic for all moments of the mundane is that the political dimension of the events in question came to be understood by contemporary political theorists as a contest among worldly forces. The great writers of political theory have occasionally redrawn the conceptual boundaries of the political field by integrating non-political features into the domain of politics, but they have continuously stripped the political from higher purposes. The political is nihilistic, as it refers merely to how antagonistic forces compete for space in order to realise themselves. And, again, this is the fault of seminal texts of political theory as they have provided the vocabulary with which antagonists justify their strategies to outcompete adversaries.

As I have already hinted, the spatiotemporal frame within which Skirl [*820] locates the problem of nihilism reaches from the writings of ancient authors such as Sophocles, Plato, Aristotle to those of Augustine, from those of early modern contractualists (Hobbes, Locke, and Rousseau) and rationalists (Bayle, Leibnitz, Kant, Fichte, and Hegel) to those of Burke and late modern authors such as Nietzsche, Schmitt, and Strauss. His theme is the ubiquity of nihilism in what is known by contemporary academics as political theory as such. Put differently, his claim is that all renowned writers of political theory did it in different ways, but the writings of all famous authors reinforced the nihilism at the very centre of politics. One noteworthy aspect here is that Skirl focuses primarily, but not only, upon texts written by the most widely known representatives of (Western) political theory. Skirl suggests that some writings are of principal importance, which makes sense if one bears in mind that political theory as a (Western) university discipline is rather tightly regulated as far as its disciplinary canons are concerned. The playground of what today goes under political theory is strictly delimited by a list of names that are usually meant to signal authorship of several seminal texts. But Skirl does not only focus upon seminal texts. He also glances at the bulk of secondary literature that has evolved more or less sensible interpretations of political. And the point is that they, too, share in the project of driving out the divine from the political field.

Daniel Defoe and Benjamin Franklin, for instance, arguably pertain to the main point at issue. They blended historical deeds with prominent ideas and made history ‘impact’ and ‘evolve’ as a series of meaningful events. But they, too, confirm Skirl’s diagnosis, namely that the writings of political theory have led politics into nihilism.

It is, of course, nothing new to maintain that writers like Nietzsche and Schmitt arrived at nihilism. As Skirl points out, Nietzsche posited a hierarchy that was neither instituted by some divine source nor by human beings. Nietzsche’s theme revolved around hierarchy as some deus ex machina that was not to be altered by practical deeds. Schmitt’s nihilism would come to the fore in his celebration of ‘decisionism,’ in the legitimation of decisions that were to be made in a state of emergency, which means a situation where public law would no longer apply. What is new, however, is the fundamentalism that is built into Skirl’s claim. The failure of political theory is only epitomized in the writings of Nietzsche and Schmitt. The classics and the contractualists are just as important hallmarks of nihilism. What is nihilistic in the writings of, Plato, Hobbes, Locke, and Rousseau is their failure to cultivate a language that speaks to politicians of their respective days and that provides their programs with higher purposes. They failed to channel information about how to make decisions that met the challenges of the day and that resonated with what is good in a higher sense. They often drove out one sort of nihilism with another.

Plato, for one, sought to correct the failure of historians and tragedians alike; as he saw it, the former accounted for the political as something inevitable, the latter accounted for it as something outrageous, but inevitable all the same. To be more precise, figures like Herodot and Thucydides failed to perceive politics as something more than the [*821] realization of ‘might is right;’ Sophocles and Euripides, in turn, saw the inherent drama of politics but were led astray by their estimation of politics and the political being the ineradicable problem. In Skirl’s view, Plato provided a solution to this sort of nihilism in that he posited alternatives, normative alternatives as it were, ideal states that were yet to be realized. The Republic and then the Nomoi were to serve as models, ideals, whose realization could, at least in principle, be aspired to. The political in either community, the state of the Republic as well as that of the Nomoi, would rest in a particular mode of governance: the practice of visionaries who would make decisions based on their knowledge of the truth. By rooting his political theory in idealism, however, Plato failed not only to address professional decisionmakers at the time. His normative solution came at the prize of being a theology that replaced the notion of divine order with the notion of societal order. In the end, Plato would appeal to an ordering mechanism whose origins lay in a divine-made-mundane. Plato’s theory would revolve around the idea of an outerworldly force as ordering mechanism, but one that was stripped of its divine roots. If held against the premise that political theory as such is always to inform and guide political practice in a sense that is good and true, Skirl’s estimation of Plato’s theory as an instance of nihilism actually appears sensible.

To take another example, Hobbes would scorn idealism and speak, purportedly in the name of science, to the powers-that-be. Yet despite the appearance that he sought to persuade the ruling class of the day to fabricate unity through an authoritarian style of rule, Hobbes simply wrote off the problem of confessionally motivated antagonisms within the ‘body politic.’ By glossing over the fact of confessional diversity, Hobbes failed completely to provide a practicable solution to the actually existing problem of religiously motivated parties and factions struggling for power. Precisely because Hobbes conceived the solution for the problem with the political at the time to lie in the secular, he, too, succumbed to the temptation of nihilism. As the historiography of events in 17th century England suggests, his would-be scientific solution, the institution of absolute sovereign power, portrayed as the sole embodiment of the political, served above all to depoliticize the ongoing controversies between societal actors – i.e., what Hobbes dubbed non-political ‘subjects.’ But to the precise extent to which Hobbes denied parties and factions the status of political entities, to the precise extent to which he reduced the political to ‘consequences from accidents of politic bodies,’ meaning conflicts among absolute sovereigns, Hobbes simply negated the political as it made itself felt in the real world. What is more, by placing so much emphasis upon the effectiveness of government, he ultimately denied the possibility of government being guided by something that is good and true. So we find nihilism in Hobbes, too.

When compared with Hobbes, Locke appears as a writer that was much more willing, and capable, to conceive the political. For he took up the very problem Hobbes simply defined away: the existence of parties and factions competing for power and influence in a differentiated community. As Skirl maintains, Locke presupposed the [*822] ubiquity of conflict in a society that is inevitably composed of role players and their representatives. For all controversies, the one thing that would guarantee some sort of peace among disputants was their predilection for the stability of property. Locke’s state was a state of property-owners. The public interest aimed at the preservation of the institution of property. In Skirl’s words, the welfare of the community would consist in a ‘nomos’ that was favorable to, and favored by, the owners of property – i.e., the politicized citizens in a community where power and influence were based on the ownership of property. Locke recognized the pursuit of material interests as a ‘political’ source of conflict. But this is telling as regards Locke’s nihilism, which manifests itself in the ubiquity of partiality. Everything in Locke’s state, ranging from the family to legislation, would be characterized by competition on behalf of property. Nothing would remain outside this spiral. Even the realization of justice through adjudication would be performed against a variety of opinions and contrariety of interests. Every decision would be subject to another round of controversy. Since Locke did not distinguish between political and non-political moves, even the family would be an arena for competition. In the end, everything was political and exempted from being made subject to, non-material, higher considerations.

According to Skirl, Rousseau’s nihilism is similar to and yet different from the one of Hobbes. To be sure, both Hobbes and Rousseau saw the state as a unity that was more than the sum of unfettered individuals. The statally based community was a necessary step beyond ‘natural man.’ The state was the embodiment of the political that helped to overcome the danger of individuals succumbing to their passions. For Hobbes, the individual, whether in his capacity as a free-lancer or as part of some faction, was not to destabilize the statal order of things under the pretense of the political. The imaginary social contract obligated every citizen to submit to sovereign authority. The state, seen as a hierarchically organized legal space, could then differentiate between legal and criminal behavior, the political being driven out by positive law. Rousseau, too, emphasized a civilizing role of law, which presumably derived from all citizens being implicated in the making of law. Yet, unlike Hobbes, Rousseau did not maintain that the potentially destabilizing relationship between individuals and the state would simply disappear with the passing of law. The constituent members of the state would place much value in the state speaking with one voice, but they would also retain their interests. The volonté de tous would always remain there as a threat to the volonté générale. This is all familiar. Now, Skirl’s argument in this regard is that Rousseau’s community would govern itself in public so as to prevent individuals valuing their own private interests higher than that of the community. By government in and through the public, that is, the state would forestall being torn apart by special interests. Seen in this vein, the public would be the host of the political. But, according to Skirl, nihilism resurfaces precisely here. For in the real world, the public would be unable to decide. A person or representative body would have to step in through the backdoor – and the problem of realizing the general will through representation [*823] would make itself felt. Not unlike Plato, Rousseau arrived at an ideal solution that turned out utterly impracticable in the context of concrete circumstances. And what is particularly lamentable, from Skirl’s perspective, is the lack of any sensitivity on the side of Rousseau for the importance of guidance by extramundane considerations, on top of community values.

These examples suffice to bear out that, for Skirl, political theory would have to be regarded as a long story of failure inasmuch as the great figures of political thought have all succumbed to the secular moment. The classics, starting with Plato, have abandoned the divine and have cherished reason; the moderns have allegedly renounced the political being grasped from within the belief-system of Catholicism. In my estimation, there is a puzzling fundamentalism built into Skirl’s claim as he regards every stance that does not pay reference to Catholicism as nihilistic. I personally find myself in agreement with the argument that there are rather profound intellectual difficulties in political theory, conceptually and normatively speaking. Take only the contractualist project, which is firmly rooted in Protestant values. Modern political theory is in many respects a fundamentalist discourse. But this being so, I consider it debatable whether it is worthwhile to fight and drive out one fundamentalism with another.

Apart from that, there are good reasons to engage with Skirl’s text. It shows sensitivity for the importance of historical context. Its reconstruction of classical and modern positions is comprehensive and sophisticated. The attitude that stands behind and drives the project, methodologically and normatively speaking, is a critical one that has become so rare among contemporary writers. What shines through Skirl’s engagement with political theory are concerns about what politics has done and for whom. In this sense, Skirl’s project is interesting for the fact that it is not one of partisanship or aestheticisation. This is part of the reason why I have developed sympathies with the book, even though its language is not always transparent and easy to follow; and why I am willing to acknowledge the main claim, even though I do not support the already mentioned conclusion. To the precise extent to which it interrogates (Western) political theory from a perspective that is not already implicated by the writings it takes up, a perspective that represents a standpoint in history and that exhibits a reflected attitude, the claim of the book appears as an original and tenable claim. In my opinion, it sheds some interesting light on the dubious role of (Western) political theory vis-à-vis the domain of political practice. For it is in this regard that Skirl is fully on target: political practice has for quite a while shown a complete lack of orientation. Its main protagonists appear overwhelmed by contemporary exigencies and unable to surpass the arbitrariness of their own doing.

Methodologically speaking, Skirl entertains a genealogical sketch that I found very interesting. He traces attempts by renowned writers that, in his opinion, have written off the political from the practice of politics. It occasionally appears as if Skirl offers another reconstruction of the concept of the political from the beginnings of political theory. But Skirl performs more [*824] than a conceptual critique of canonical writings of political theory. This becomes clear in the introductory chapter, where he sets out his view of how politics and political theory relate: the political – the attribute that lends political activities their very name – is inextricably linked with agents, politicians, and what they do. Politics is a distinct form of practice that follows its own inner logic. In this regard, the political is ‘real’ and not solely a matter of formal definition. The political is not to be dissociated from agents and their activities, even though the very same political, and therewith the very practice of politics, originates in textual reflection about what makes for the political in real activities. Following Skirl, activities are political inasmuch as they are performed by a distinct sort of people, namely politicians. At the same time, activities are political as they are being made a subject of political theory – i.e., the discipline that helps to reflect about activities and perceive them as political activities. It may perhaps be said that practitioners do not need political theory in order to perform as politicians. However, only political theory endows the practice of politicians with meaning and thus brings the political into existence. In this sense, political theory is a source of concepts that help to understand what actually happens, politically speaking. But that is not enough. For Skirl emphasizes, too, that political theory is always also a source of non-practical, or normative, considerations. As a repository of norms and values, political theory does not exhaust itself with the endowment of meaning to institutional activities. Political theory may and should transform these activities into ‘good’ political practice. Whether one is inclined to take issue with this claim or not, it is this understanding of how political theory and practice relate that enables Skirl to lay bare what he perceives as nihilistic at the very centre of the political, in theory and practice.

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© Copyright 2007 by the author, Günther Auth.

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LAW AND CATASTROPHE

by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds). Stanford: Stanford University Press, 2007. 184pp. Cloth. $45.00. ISBN: 9780804756839.

Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu.

pp.814-815

Law and catastrophe are inextricably intertwined. Catastrophes give rise to the law, whether it be the Hobbesian state of war or Locke’s state of inconvenience, legal norms address catastrophe by bringing order to society. Even with the more mundane effort of contract law to plan for the future, the legal process is constituted to regulate catastrophes. Conversely, the law also constitutes catastrophes, both in the sense of defining what they are or perhaps even in the sense of serving as an impediment to the easy resolution of problems that often build and then take on a larger than life problem. In the former, “acts of God” are distinguished through the law from human catastrophes, such as the Holocaust or genocide in Africa. In the latter, events such as Hurricane Katrina were only made worse by jurisdictional disputes and bureaucratic ineptness that compounded the misery nature first inflicted.

LAW AND CATASTROPHE is an edited collection that explores this inextricable and symbiotic relationship between these two concepts in the short span of five chapters. It presents to the reader a witty and often engaging group of literary essays that dissect various guises of how law and catastrophe interpenetrate. After the editors begin with a chapter that introduces the topic, Linda Ross Meyer uses the biblical story of Job juxtaposed against the World Trade Center destruction and the Great Plague to explore how catastrophes transform us. With 9-11, the now often trite “It changed everything” mantra is the justification for many of the excesses of the Bush administration. The point for Meyer? Catastrophes challenge our Weltanschauung and dictate new definitions of what the law can handle or address.

Ronen Shamir explores the language of corporate social responsibility (CSR) and suggests that its impetus is rooted in the neo-liberal project to dismantle the state. Much in the same way that neo-liberalism prefers markets to government activity, the CSR movement is an effort to delegitimize the state by instilling the belief that regulation is not necessary to police the market. CSR, along with the spirit of volunteerism, define a world of social relations that do not depend upon the law. Instead, one can respond to catastrophes beyond the state, and socially responsible corporate actors will lead the way.

Sylvia Schafer explores catastrophe in Balzac, Tocqueville, and the French Revolution. The goal here is to explore how liberal regimes depict and constitute disaster and catastrophes ranging from false or premature declarations of death to revolution. Here, the remaking of the world in Liberalism’s image emphasized [*815] a transformation of the Ancient Regime into a new order that grew out of the human catastrophe of 1787.

Ravit Pe’Er-Lamo Reichman uses Rebecca West’s reports of the Nuremberg trials to capture the ways in which the law prosecutes the disorder of the Holocaust and holds its agents accountable. Much in the same way that Hanna Arendt’s account of the trial of Adolph Eichman described the banality of evil, West’s day-to-day account reports the efficiency of victors using Nuremberg to forge a new legal order. In both cases, the routine uses law to reconstitute a world terribly upset by human injustices by individuals who claimed they were merely doing their jobs.

Finally, in Chapter Five, James E. Young explores the use of catastrophes to facilitate a national memory. The focus of this discussion are the Holocaust memorials in Israel and the United States. Young queries the extent to which the law can use legal recognition of catastrophe to forge civil or nationalistic bonds, especially at times when a nation is becoming more diverse. Does legal recognition via a national holiday and monument cement the event in national memory, or trivialize it as yet another Monday holiday? Should the United States create a day of recognition around the events of 9-11? Again, as we see with the Bush administration, the memory of that day can be appropriated for all types of political purposes. Conversely, Turkey’s denial of an Armenian genocide feeds into a nationalism for the latter than would perhaps diminish were it acknowledged by the former.

What do we learn from LAW AND CATASTROPHE? Absent a concluding chapter that is needed in this book, readers are on their own to distill the moral of the stories told here. Yet the various chapters suggest a complexity with law and catastrophe that many of us might not normally ponder. The law defines what we can control versus what is foisted upon us, as with Job. The law is exploited by elites to affect political power, and major events are the occasion for legal transformations that redefine human relations and a sense of order. After reading LAW AND CATASTROPHE one is left with many subtle and big picture questions, the type of which we seldom consider in our daily lives but which affect how we live.

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© Copyright 2007 by the author, David Schultz.

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COURTS AND JUDICIAL POLICYMAKING

by Christopher P. Banks and David M. O’Brien. Upper Saddle River, New Jersey: Prentice Hall, 2008. 384pp. Paper $55.60. ISBN: 9780131443495.

Reviewed by Helena Silverstein, Department of Government and Law, Lafayette College. Email: silversh [at] lafayette.edu.

pp.811-813

If you are looking for a new textbook for your undergraduate judicial process or law and politics course, consider COURTS AND JUDICIAL POLICYMAKING. Readable and well-organized, this text provides an overview of legal processes and judicial behavior, framed by social science and presented from the perspective of courts as a policymaking institution.

Divided into four parts, the text traverses a wide range of material that will be useful for students being introduced to the field of judicial process and politics. Authors Christopher P. Banks and David M. O’Brien open with a discussion of “The Nature of Law,” reviewing the multiple foundations of law, varying legal systems, and divergent jurisprudential approaches. Part II takes up the organization and operation of the courts, including, for example, the administration of the judiciary and the politics of judicial selection and retention. Part III, entitled “Influences on Judicial Access and Decision-Making,” covers the legal profession, barriers to the courts, the adversarial system, and criminal and civil procedure. Part IV concludes with an analysis of judicial policymaking, treating appellate processes, statutory and constitutional interpretation, and the impact and limits of judicial power.

COURTS AND JUDICIAL POLICYMAKING is, by and large, a text that introduces students to the nuts and bolts of the judiciary, focusing primarily on the United States. As such, the book distinguishes between such things as state and federal courts, trial and appellate courts, civil and criminal procedure, civil and common law, and preliminary hearings and grand jury indictments. It covers such subjects as standing, ripeness, mootness, plea bargaining, jury nullification, and alternative dispute resolution. It reviews the path from the trial court through the appellate court system to the US Supreme Court, incorporating discussions of agenda-setting, oral argument, judicial conferences, the role of law clerks in opinion writing, and the influence of amicus briefs.

Though the text is familiar and in many ways comparable to other judicial process texts, the social science and policymaking framing of COURTS AND JUDICIAL POLICYMAKING comes through in multiple ways. Notably, Part IV – aptly titled “Judicial Policymaking” – incorporates a review of alternative approaches to studying judicial behavior. Here the authors explain the attitudinal model, new institutionalism, strategic choice theory, and traditional legal reasoning theory. Part IV also includes a discussion of judicial compliance and impact, [*812] covering, among other things, a review of scholarly debates about whether the courts produce social change.

In addition, social science research informs the entire body of the text. Whether citing Herbert Kritzer’s conclusion that “corporate legal practice has become a world of change and turmoil” (quoted on p.182), or William Haltom and Michael McCann’s study of civil litigation and tort reform (p.261), or Malcom Feeley and Edward Rubin’s JUDICIAL POLICYMAKING AND THE MODERN STATE (p.325), the authors pepper the text with the findings of social science and public law scholarship. Students will thus end up not only with a sense of how the judiciary operates and the contested interpretations of that operation, but also with the scholarly enterprise that is public law. Since the text is well documented both with endnotes and lists of selected readings, students will know where to go to further their studies.

While the authors’ treatment of judicial processes and politics centers on the United States, most of the chapters include segments covering comparative law. At first glance, these discussions appear as if they are incidental gestures at understanding law in a global context, separated as they are from the main text in shaded boxes and presented under the heading “In Comparative Perspective.” But the segments present an array of topics on judicial processes outside the United States to which the authors provide substantive review. For example, the authors include an extended discussion of judicial careers in Japan in the chapter on judicial selection and retention, a similarly extended review of jury systems around the world in the chapter on criminal procedure, and a lengthy review of courts in South and Southeast Asia in the chapter on court structure.

The authors include in Chapter 10 a segment on “The European Court of Justice and the Globalization of Judicial Power” that marries their social science emphasis with a consideration of comparative law and, more generally, illustrates their approach to this text. After describing the organization and operation of the European Court of Justice, the authors provide an overview of competing explanations for the development of the Court’s power of judicial review. The authors then draw on legalist, neorealist, neofunctionalist, and intercourt competition explanations to illuminate the types of theoretical approaches adopted by social scientists and how these approaches inform global analyses of law and politics.

Two other features of this text are worth highlighting. First, the authors seem to know that their primary audience will be the undergraduate student, who may or may not come to the study of law with the eagerness of a public law scholar. Whether or not designed to entice the typical undergraduate in a judicial politics course, the authors do include material that will likely peak students’ interests.

Chapter One, for example, begins this way, with a story of sex, the police, and the Constitution:

In the late evening on September 17, 1998, deputies from the Texas Harris County Sheriff’s department went to John Geddes Lawrence’s apartment in search of an armed intruder, who was reportedly “going crazy in the [*813] apartment.” What they found, instead, were two men, John Geddes Lawrence and Tyron Garner, engaging in consensual sodomy, a misdemeanor under Texas’s law that penalizes “deviate sexual intercourse with another individual of the same sex.” (p.1)

This story, now familiar to most who study law in the US context, begins the chronicle that would result in the Supreme Court’s 2003 ruling in LAWRENCE v. TEXAS, a decision overturning Texas’s same-sex antisodomy statute on due process, privacy, and equal protection grounds. And Banks and O’Brien effectively use this case and others throughout the text as both hooks and examples.

Second, the authors include segments throughout the text, entitled “Controversies over Courts,” to detail various debates in law and judicial process. Like the sections on comparative law, these are separated from the main text in shaded boxes, and one wonders whether such segregation may lead students to think they are less important, despite the “Controversies” marker. Still, they are substantive and relevant pieces that work to build upon the body of the main text. In several instances, the authors rely on excerpts from primary sources to illuminate these disputes. For instance, the debate over different approaches to constitutional interpretation is given voice not only through the authors’ own treatment of the subject but also when they turn to Justice Antonin Scalia’s words on originalism, Justice Thurgood Marshall’s comments on the Constitution as a living document, Justice William Brennan’s comments on the Constitution’s aspirations to social justice, and Justice Stephen Breyer’s remarks on pragmatism.

In the end, COURTS AND JUDICIAL POLICYMAKING is a textbook and should be treated as such. It will likely prove more fitting in judicial process and law and politics courses than in introductory courses on law and society. Moreover, it has some of the typical shortcomings of an introductory text, most notably an emphasis on breadth over depth. But there is nothing unusual in this. Supplemented by primary sources, this text provides an attractive option.

REFERENCES:

Feeley, Malcom M. and Edward L. Rubin. 1997. JUDICIAL POLICYMAKING AND THE MODERN STATE: HOW THE COURT REFORMED AMERICA’S PRISONS. New York: Cambridge University Press.

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

Kritzer, Herbert M. 1998. “The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World,” 33 LAW AND SOCIETY REVIEW 713-759.

CASE REFERENCES:

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

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© Copyright 2007 by the author, Helena Silverstein.

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