DEBATING IMMIGRATION

by Carol Swain (ed). New York and Cambridge: Cambridge University Press, 2007. 328pp. Hardback. $70.00/£38.00. ISBN: 9780521875608. Paperback. $19.99/£13.99. ISBN: 9780521698665. eBook format. $16.00. ISBN: 9780511282706.

Reviewed by John C. Blakeman, Department of Political Science, University of Wisconsin-Stevens Point. Email: John.Blakeman [at] uwsp.edu.

pp.913-917

Carol Swain’s edited collection of essays entitled DEBATING IMMIGRATION touches upon important and pressing immigration policy issues. The book is an outstanding compilation, and presents a diversity of views in a balanced manner. From essays on religion and immigration, and empirical assessments of how illegal immigrant employment affects native employment, to essays on immigration and population change in the United States, and immigration in European states, Swain’s book “collectively explore[s] the nuances of contemporary immigration and citizenship affecting the United States and Europe” (p.3). All of the chapters, except for two, study immigration solely in an American context, so its comparative focus is not always evident. Nonetheless its broad focus addresses issues of immigration through the lenses of religion and philosophy, law and policy, demography, economics, race and ethnicity. With such a range of disciplinary approaches, the book shows that debates over immigration policy should not be confined to arguments over walls and borders and immigration controls – the issues that seem to dominate the debate in the United States.

The volume starts with Peter Schuck’s chapter, “The Disconnect between Public Attitudes and Policy Outcomes in Immigration,” where he discusses the divide between the American public’s restrictive view of immigration and interest groups and legal scholars who typically advocate for expansionist immigration policies. For Schuck, this disconnect helps explain what he terms the “immigration policy earthquakes” that have occurred over the past decade – political backlashes based on voter anger directed against unresponsive policymakers who do not acknowledge the political and social issues associated with expanding immigration. Schuck’s essay is followed by Elizabeth Cohen’s chapter, “Carved From the Inside Out: Immigration and America’s Public Philosophy of Citizenship,” where she addresses why America has been unable to compose a “well-articulated public philosophy of immigration” that allows us to address modern immigration issues in a coherent way. For Cohen, one answer lies in that argument that American public law focuses on citizenship, especially a citizenship based on internal differences such as race-based distinctions. Thus, our citizenship-based approach to immigration forces us to deal with immigration problems from a legal foundation that “has more to say about how to distinguish between people of different races and nationalities than it does about the question of how to make immigration law” (p.45). [*914]

James R. Edwards next discusses immigration through a Biblical lens with his chapter, “A Biblical Perspective on Immigration Policy.” Edwards offers an interpretation of the Bible that defines a just immigration policy based on policing the nation’s borders as well as arresting and deporting illegal immigrants. By his own admission this argument counters the open borders argument made by “liberal Christians;” thus Edwards implicitly points out a fundamental dilemma when Biblical interpretation is used to public policy ends, that of divergent interpretations of the same textual source by well-trained, well-meaning Biblical scholars. However, whether Edwards interprets the Bible correctly (or properly?) is not the point; he presents a well reasoned interpretation that no doubt reflects the views of many Americans who have a certain Christian based outlook on governance. It is a political voice that is often heard at the ballot box, but is more often ignored in the interim in policy debate. Edwards’ Biblical perspective is followed by Steven Macedo’s piece, “The Moral Dilemma of U.S. Immigration Policy: Open Borders versus Social Justice,” which focuses on a distributive justice account of immigration that holds that, as “members or co-participants in self-governing political communities . . . we have special obligations to our fellow members” (p.64). Thus, if high levels of immigration have a negative impact on fellow citizens, especially the least well off, that is enough reason to restrict immigration. This short review cannot do justice to Edwards’ or Macedo’s arguments. Importantly, both add philosophical and religious dimensions to debates over immigration law and policy that are often lacking.

Subsequent chapters turn away from philosophy and religion and center on issues of immigration law, economics and demography. Linda Bosniak’s chapter, “The Undocumented Immigration: Contending Policy Choices,” suggests that policy debate about illegal immigrants is shaped by opposing regulatory regimes of federal immigration law on border immigration control and state and federal alienage laws that center on labor issues, worker rights, drivers licenses and other public benefits. Noah Pickus and Peter Skerry offer an essay that suggests we look at immigration policy not solely in the context of citizenship, which establishes a vertical relationship between individuals and government based on status, but also in the context of horizontal relationships that exist from neighbor to neighbor. As they put it, focusing on citizenship overlooks the most central concerns that Americans have about immigrants and their ability to be responsible community members. Rogers Smith’s essay, “Alien Rights, Citizen Rights, and the Politics of Restriction,” places current debate over immigration against the backdrop of the war on terror. For Smith, the Post-9/11 war on terrorism has helped legitimize discriminatory policies against immigrants and less protection for their legal rights.

Douglas S. Massey’s chapter, “Borderline Madness: America’s Counterproductive Immigration Policy,” offers an empirical look at how US border control policies over the past decade have become increasingly repressive. As a result the border still remains porous, yet fewer immigrants engage in return migration where they work in the US for a time and then [*915] return to their home state, and instead are pushed towards more permanent residence. Indeed, as Massey notes, the militarization of the Mexican-US border has dramatically cut the number of illegal immigrants who seek to return to their homeland once they make it into the United States and work for a period of time. Steve Camarota’s chapter, “Immigrant Employment Gains and Native Losses, 2000-2004,” considers the impact that illegal immigrant employment has on job loss by native workers. Camarota notes that all employment losses in that time frame were absorbed by native workers, and coupled with some direct evidence that immigration has negatively affected native workers in some regions of the United States, Camarota concludes that a real possibility exists that immigration harms native employment. Other chapters offering economic and demographic analysis of immigration follow Camarota’s. Peter Brimelow echoes some of the concerns raised by Camarota. Brimelow argues that American economists tend to overlook (if not overestimate) the overall economic benefits of immigration. For Brimelow, mass immigration now contributes nothing to native born Americans, and in fact mass immigration is most likely an economic loss for native born workers. Charles Westhoff argues that the immigration debate typically ignores the effect of immigration on population size and growth. To counteract that, Westhoff shows the scale of potential population growth and demographic change.

The final two sections of the book focus on linkages between race, ethnicity and immigration, and immigration policy in European states. Carol Swain’s chapter, “The Congressional Black Caucus and the Impact of Immigration on African American Unemployment,” examines the CBC role in immigration debate, and concludes that it does not adequately represent the concerns of African Americans on immigration issues. Amitai Etzioni’s “Hispanic and Asian Immigrants: American’s Last Hope” argues that the current wave of immigration from Mexico and South American countries, and to a lesser degree from Asia, may well make American society more communitarian “by fostering a stronger commitment to family, community, and nation, as well as respect for authority and moderate religious-moral values” (p.189). Although not a direct response to Etzioni’s chapter, Jonathan Tilove posits that one hidden appeal of immigration, and one animating force behind liberal immigration policies, is that it “can and will help relieve the United States of its special obligation to black Americans” (p.208). Tilove notes that Etzioni’s argument that Hispanic and Asian immigrants will “encourage a sense of connectedness” and “reinforce America’s core value of social and economic stability . . . and decrease racial tensions” may or may not work. For Tilove, it is possible that the black/white divide in America may become something else, with a new black/non-black divide growing larger, and with African Americans “becoming even more isolated from the otherwise increasingly exclusive beige mainstream” (p.218).

Finally, the book offers two interesting chapters on immigration policy in European states. Randall Hansen’s chapter on “The Free Economy and the Jacobin State” points out that although [*916] many European states, with the exception of France, did not base their identities on immigration, most are now “changing their rhetoric, attitude, and policy toward immigration” because of their need of “much more immigration to stave off population decline” (p.223), given the aging societies and generous welfare states that typify much of European politics. Hansen briefly surveys immigration policies in several European states in the context of how new immigrants are incorporated economically and culturally and notes sharp differences between Europe and the United States. For economic integration, and supporting his argument with important data, the United States integrates immigrants into the workforce, but Europe (with a few exceptions) integrates them into the welfare state. With cultural integration, most European states pursue a laissez-faire approach, with the exception of France which stands out for being “famously uncompromising in its suspicion of claims for religious or cultural differences in public institutions” (p.236). For Hansen, then, “large scale immigration policies work when migrants are channeled into work and kept out of welfare, and integration works when the receiving countries have a clear integration framework reflecting values that they confidently hold” (p.236). Hansen’s piece is followed by Marc Morje Howard’s chapter on “The Politics of Immigration and Citizenship in Europe,” which empirically assesses the “historical and contemporary variations in citizenship policies” in core EU states. Howard argues that liberalization of immigration and citizenship policies often occurs without much public discussion, and conversely when public opinion is mobilized on immigration issues, liberal reforms are usually blocked. Interestingly, Howard notes that nondemocratic elite-driven processes often lead to liberalized immigration reforms, whereas Far Right political parties and movements, and the use of referenda or other popular initiatives often lead to more restrictive citizenship and immigration policies.

Nathan Glazer pens a short concluding essay in which he summarizes several of the disparate issues that the individual chapters raise. He also provides his own concluding observations and suggests other issues and avenues for studying the politics of immigration.

DEBATING IMMIGRATION arrives on the academic book market at just the right time. As the 2008 presidential campaign unfolds, candidates are addressing immigration policies with a wide range of proposals. As well, Congress has recently debated immigration reform without much tangible success. State and local governments are also becoming more assertive in crafting more localized policies to address the rising tide of immigrants – legal and not – who are entering the workforce and making use of public services. The wide range of analyses and arguments offered by Swain’s book – from biblical and ethical perspectives on immigration to comparative approaches focusing on Europe – shows that the immigration debate in the United States is not just over walls and borders and illegal migrant workers. It is a multifaceted policy debate in which nuances are often overlooked and creative policy angles are often not explored. The book to a large extent may help correct that and enlarge our debates over immigration [*917] policy.

The book can be used in many academic settings, from public policy courses that focus on immigration policy, to law related courses that include segments on immigration, to even courses on religion and politics and comparative politics courses that also include sections on immigration policy. No doubt there are other disciplinary courses – history, sociology, economics, to name a few – for which the book would be well suited too. But why stop in college classrooms? Arguably the book is appropriate for non-academic audiences as well. It could be used in community reading groups or in university continuing education to reach a wider non-academic audience in order to raise awareness about the wide range of policy issues that the immigration debate encompasses.

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© Copyright 2007 by the author, John C. Blakeman.

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THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET

by Daniel J. Solove. New Haven, CT: Yale University Press, 2007. 256pp. Cloth. $24.00. ISBN: 9780300124989.

Review by Alan Gaitenby, National Center for Technology and Dispute Resolution, Legal Studies Department, University of Massachusetts-Amherst. Email: gaitenby [at] legal.umass.edu.

pp.909-912

“He or She who Knowingly Exposes Beware! The Law Affords Limited Protection When Those Exposures End up Online,” would be an apt sub-title to Daniel Solove’s effective and tight analysis of evolving tensions between reputational privacy and online expression. Following his excellent THE DIGITAL PERSON, Solove narrows focus and provides a very solid socio-legal analysis of the relationship between gossip, rumor, and reputation maintenance and the responses, both normative and legal, to evolving forms of online expression. The work would fit well in both undergraduate and graduate courses which examine information privacy and law and society.

Law’s relationship to information privacy and our reputations is relatively new, born when social norms were deemed no longer effective in protecting what society, or at least segment s thereof, saw as legitimately private. Warren and Brandeis (1890) famously called for tort law to be interpreted and expanded to protect information privacy – or that information individuals convey in contexts deemed private by prevailing social norms. Solove makes a similar call here, information privacy law needs to move beyond reliance on a binary secret (or private)/public paradigm where information we take reasonable measures to keep secret is generally protected by privacy law. The reliance on the binary suggests that most information we expose in inherently non-secret contexts – is likely to not be protected. In the face of rapidly evolving technologies and practices for observation and data capture / manipulation / communication, very little of what we “do” in non-secret contexts will be reasonably private. Solove argues that we actually have many socially supported privacy expectations in non-secret contexts – but that law must adjust to protect them adequately.

This doctrinal reality – some might call it a legal fiction – has not been a big deal for most of the American experience with information privacy. Generally, if you exposed yourself in ways that others observed and without taking special measures to do so, you reasonably ought to expect to have to bear the consequences of such exposure. However, most of what we do in public is hardly noteworthy, and nobody notices beyond the instantaneous sharing of experiential reality. Privacy, as we conduct ourselves in public, has depended upon the short shelf life of human memory, our relative lack of newsworthiness, and a dearth of means to conduct one to many communications. But, just as Warren and Brandeis were responding to evolving practices [*910] facilitated by information and communication technology, Solove suggests law must now respond to new social and technological practices that expand our collective memories and our potential newsworthiness at the risk of our reputational selves.

This book has two parts: Chapters 1 through 4 present an excellent treatment of gossip, rumor, and reputation in the internet age, and Chapters 5 through 7 survey information privacy law with Solove’s suggestions to deal with the challenge of reputational harm and the internet.

Chapter 1 presents graphic examples of challenges to existing models of reputation management when confronted with the pubescent internet and people loaded with internet-enabled tools and toys. For instance, social norm policing about dog ownership and waste disposal responsibilities in South Korea married with cell phone cameras and the internet morphed into a torrent of reputation damage for one particularly misfortunate dog owner. Norms and law about internet-facilitated mass exposure of individual(s) are as yet developing; in the meantime the wildfire quality of internet content sharing, coupled with the diverse population of sharers, mitigates against smooth evolution of a regulatory regime.

Chpater 2 explores the paradox of freedom of information and privacy in the context of internet expression. Public discourse and expression, as well as privacy and autonomy, are requisites of a free society, yet each are mutually restrictive, to greater or lesser degree. In the instance of internet expression and reputation management Solove sees privacy as more restricted, and information more freely flowing. Solove provides many examples of internet-supported applications being utilized to expose third party actors and thus attempt to influence interpretations of reputation of them. And when those reputations, or at least components thereof, are captured for prurient or other interests and spread like plague across the internet, the opportunity for profound harms escalates.

Chapter 3 examines gossip as part of our reputational stream of consciousness. Online gossip is the same social practice as offline, but with greater capacities to spread, and further remove each interpreter from original context. Solove provides examples of online exposures that more than likely were considered private and thus subject to discretion of at least one party. Largely he focuses on blogging and third party exposures – e.g., personal blogs that detail relationships and especially those involving sex (see the Washingtonienne on p.50), blogs about school / professors by students; blogs about students by professors, and blogs about professors by professors (a particularly funny one on p.58).

Chapter 4 confirms that shame is still will with us online. One of gossip’s primary purposes is shaming, that is to structure the interpretation of reputation so that the target feels social stigma. Solove shows a few examples of the shaming effect online which are arguably value positive – e.g., the flasher caught on digital camera and subsequently identified and posted for all to “see.” But, not all instances are quite so normatively simple, particularly if mistakes are made or if data are [*911] interpreted radically out of context or in a state of fear, or in the worst case, where vigilantism takes over – e.g. see Solove’s treatment of Nuremberg files (pp.99ff). Online shaming can get out of control; there are no term limits on its impact, and due process is a foreign concept.

Chapter 5 begins the second part of the book with a traditional survey of information privacy, from evolution of yellow journalism through Warren and Brandeis and the “right to be let alone.” Solove sets out three approaches law can take: libertarian, authoritarian, and his favored hybrid of the two. Solove suggest a reinvigorated tort law to fill the middle ground, where informalism takes a more serious pre-litigation role, and libertarian strains of information freedom peacefully coexist with authoritarian influenced privacy protections. Solove does a really nice job telling the story of how reputation has been policed extralegally through norms – e.g. leading to duels – and ultimately how law “took over” after norms failed to address reputational harm adequately. The move from violence to courts occurred concomitantly with the evolution of effective defamation law and privacy torts – e.g., intrusion upon seclusion, public disclosure of private facts, false light, and appropriation. Recognizing litigation has particular drawbacks for privacy and reputation disputes – e.g., cost, transparency, and toil – Solove argues that we need to craft solutions that help people avoid courts if possible, but when not, courts are accessible and help achieve effective redress for reputational harm.

Chapter 6 explores the challenges of balancing free speech and protection from reputational harms, largely focusing on defamation and other so-called public disclosure torts. With respect to the internet, the law seems titled toward free speech over privacy; that is, speakers are not appropriately accountable for their actions according to Solove. His ultimate prescriptions are designed to alter that tenuous balance, giving more force to law to further protect individuals from reputational harm, yet he recognizes the inherent paradox – more reputational privacy protection means less free speech. To exemplify, Solove looks at the concept of anonymity online. Long established as a free speech right, anonymity protects speakers from forms of retribution, including insulating speakers from legal liability. Solove recognizes the need for continued protection of anonymous speech, but argues that with the internet and its potential to cause dramatic shifts in the paradigm of exposure / autonomy, anonymity protected as it always has been may be a problem. Solove proposes “traceable anonymity” for online utterances, and that the dilemma of online anonymity as it relates to reputational harms can be adequately addressed without losing all the benefits of anonymous speech. But, who is responsible for speech when uttered online? Most, if not all, online speech depends on a significant “chain” of actors, actions, and events. Online speech is no simple act. At present, those actors who facilitate online speech are generally free of legal liability for reputational harms – i.e., protection from third party liability, under section 230 of the Communication Decency Act and tort law generally unless they exert some palpable editorial control, or they were, [*912] or should have been, aware of potential problems with the speech.

In THE DIGITAL PERSON, Solove urged us to move beyond the secrecy paradigm dominating doctrinal interpretations of reasonable expectation of privacy. There are many things that we willingly do and say in non-secret settings with the expectation that those exposures are for the most part private, or at most public to a narrow few with limited interest and memory. In Chapter 7 Solove presents excellent examples of technically public speech – words and deeds – which were uttered under some expectations of privacy, and how the internet dramatically multiplied potential injuries from those utterances. The crux of the problem is that law is at odds with a rapidly evolving social reality, making privacy an even more profound legal fiction, increasingly subject to new technologies and practices which contribute to further limit our reasonable expectations of privacy. An example of where law has come to recognize the complexity and nuance of privacy / exposure discourse is in video voyeurism laws. If looked at in the abstract, and with a secret = private lens, such practices as “up-skirt” image capture and manipulation should be legal as the data are offered by the individual in a public setting (i.e. you should wear pants if you want privacy). However law has evolved to recognize that rigid adherence to the secrecy paradigm does not jibe with social expectations, that not everything that occurs “in public” is equally non-private.

REFERENCES:
Solove, Daniel J. 2004. THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE. New York: New York University Press.

Warren, Samuel and Louis D. Brandeis. 1890. “The Right to Privacy.” 4 HARVARD LAW REVIEW 193.

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© Copyright 2007 by the author, Alan Gaitenby.

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MASTERS OF ILLUSION: THE SUPREME COURT AND THE RELIGION CLAUSES

by Frank S. Ravitch. New York: New York University Press, 2007. 288pp. Cloth. $45.00. ISBN: 9780814775851.

Reviewed by Gad Barzilai, Jackson School of International Studies and Comparative Law and Societies Studies Program, University of Washington. E-mail: gbarzil [at] u.washington.edu.

pp.906-908

The quandary regarding how democracy may regulate religion is well rooted in Western political theory and philosophy at least since the 15th century. It is mainly driven from a Western concept, ingrained in modernity, which aims to institutionally avert religion from becoming a major political force (Berman 1983). While not a few Western democracies (alike England and Germany) have an institutional predilection for one religion over another, they have been characterized by a sturdy proclivity to somewhat separating between public religious considerations and national decision-making processes. Hence, the variety of political constitutional structures designed to separate religion from the state is rather striking (Barzilai 2007; 2004, at 392-409). It varies from complete secularization of the state (India) or its national public sphere (France), through implicit encouragements of one religion (Germany), to formal encouragement of one religion (Spain).

In this context of diversity of institutional constitutional attempts to hinder religion, however problematic these attempts may have been, Frank S. Ravitch’s MASTERS OF ILLUSION, is a significant scholarly endeavor to better comprehend the specific constitutional criteria that have been used regarding freedom of religion and the Establishment clause in the US. Under the illusion that any given legal setting may stand independent from its comparative sociopolitical surroundings, the book ignores a comparative context that may illuminate the US experience as rather exceptional. Yet, it offers an insightful critic of the concept of ‘neutrality’ as a plausible basis for court decisions in the US regarding state and religion. The book may support other research projects that debunk the judicial myth (Fitzpatrick 1992) as if judges/justices are neutral in their interests regarding the legal status of religion in public life: “Neutrality, whether formal or substantive, does not exist in the religion clause context” (p.13). Accordingly, the book invites readers to comprehend which criteria of public policy were guiding the Supreme Court and which normative paradigm of jurisprudence should prevail in instructing a proper judicial policy that serves the liberal American concept of religion, however exceptional it is in a comparative perspective.

The book opens with a fine critical chapter on the fantasy as if judicial ‘neutrality’ exists in rulings on freedom of religion in the US. Then it turns to several analytical chapters that illuminate which conceptual guidelines of jurisprudence were practically [*907] navigating the Supreme Court in its judgments on religion-state matters: hostility, liberty, equality, separationism, and accommodationism. With a detailed examination of dozens of court rulings Ravitch demonstrates why, under the veil of neutrality, the court, in fact, has activated political concepts of jurisprudence about the place of religion, and is far from being neutral. At the end of the book, Ravitch offers his own normative paradigm of court rulings – i.e., the facilitation test that offers the justices to look into conflicts between religious communities and the state through a pragmatic policy prohibiting any government action if it intends to either encourage one religion or discourage another (pp.168-192). However, the book explicitly withdraws from secular fundamentalism and invites its readers to acknowledge instances in which some state intervention in religious issues is required for the sake of liberty of religious beliefs and in order to realize equality among various religious communities (pp.170-172).

A straightforward state intervention in matters of state-religion would stand against the intent of the US constitution and its founders (p.79). Yet, above that very basic type of ‘soft originalism’ (pp.4, 164), Ravitch opposes any rigid legalistic concept of ‘originalism,’ since it is implausible to know how the constitution had originally intended to maintain religious freedom, above and beyond its basic intent to prohibit direct governmental action clearly supporting one religion over another. Hence, any pretension to claim ‘original intent’ of the constitution is misleading, while in practice the court does have a specific political interest in mind. The book is counterintuitive and insightful in opposing the secular fundamental option of unmodified separation between the state’s organs and religion (p.86). Context is crucial, and under some circumstances it is advisable for the government to intervene institutionally for maintaining equality among various communities and liberty for individuals with varied religious preferences (p.171). Thus, there is a difference between an unjust government intervention for promoting prayer in public schools, on the one hand, and justly intervening for enabling minorities to enjoy the same access to public services.

Generally, as an alternative to abstract principles, this book is about contextual pragmatism, and it calls for judicial intervention for resolving specific conflicts based on a dynamic court policy that can be practically applied for resolving very concrete disputes (pp.2, 166-167). Therefore, MASTERS OF ILLUSION invites us to ponder upon an alternative legal policy that in fact looks into the essence of the controversial governmental action without a fundamental commitment to either separation or engagement in religious matters. Accordingly, the facilitation test negates any solicitation of one specific religion or any attempt to subdue one specific religion. Yet, Ravitch refers to a policy of accommodation, based on contextual contingencies and rejects complete separation of the government from religion if such an institutional separation may lead to lack of protection of religious pluralism in the US.

A detailed explication of various court rulings notwithstanding, the book is too narrowly focused on legalistic analysis of concrete legal cases and problems of [*908] jurisprudence, while it largely ignores the cultural and political settings in which law is embedded. Thus, Ravitch neglects social forces, like NGOs, political groups, religious institutions, and communal interactions, which may contribute to resolution of religious conflicts with no meaningful adjudication and with no judicial intervention. He negates formalism, on the one hand, but presents a hyper-legalistic court-centered thesis, on the other hand, presuming that adjudication should be a dominant vehicle for resolving religious disputes, while in fact most of those conflicts are either resolved at the social level or are rarely litigated in courts. The Federal system that defers many religious issues to the communal level bounds any research on religion and law to be less court-centered and more oriented to look into non-litigious ways that may resolve issues of politics and religion. In this context of multicultural inter-communal religious fabric, minority communities need to be further protected. The US has a deep Christian religious culture and a relatively religious political culture. Ravitch, however, does not make a strong case of showing how courts, and the Supreme Court, in particular, may protect religious minorities in this context. The virtues of contextual approaches for jurisprudence notwithstanding, some abstract criteria for protecting religious minorities are expected from any fruitful doctrine of law and politics.

Notwithstanding these shortcomings, MASTERS OF ILLUSION is a very important contribution to scholars who are interested in law and religion, freedom of religion, the Establishment clause and American jurisprudence. It is a well documented book, and despite some textual repetitions it articulates the main arguments in a very collegial and lucid way. It is definitely a must read to everybody who wants to become skilled at the virtues and deficiencies of Supreme Court rulings in the US about church-state issues. We should encourage publication of more books that take ‘law’ away from its faulty illusionary place as a formalistic island.

REFERENCES:
Barzilai Gad. 2004. “Legal Categorizations and Religion: Politics of Modernity, Faith and Power.” In Austin Sarat (ed.) COMPANION TO LAW AND SOCIETY. Malden, MA and Oxford: Blackwell.

Barzilai Gad. 2007. LAW AND RELIGION. Aldershot: Ashgate.

Berman H. Harold. 1983. LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION. Cambridge: Harvard University Press.

Fitzpatrick, Peter. 1992. THE MYTHOLOGY OF MODERN LAW. London and New York: Routledge.

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© Copyright 2007 by the author, Gad Barzilai.

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TRANSPLANTING COMMERCIAL LAW REFORM: DEVELOPING A RULE OF LAW IN VIETNAM

by John Stanley Gillespie. London: Ashgate, 2006. 362pp. Hardback. $124.95/£65.00. ISBN: 9780754647041.

Reviewed by Iwan Davies, School of Law, Swansea University, Wales, UK. Email: I.R.Davies [at] swansea.ac.uk.

pp.904-905

At a time of increasing globalisation and the benchmarking of legal competitiveness, TRANSPLANTING COMMERCIAL LAW REFORM is a timely book. It adds to our understanding of how law and legal change influences the way we understand and conceptualise legal transplantation. In particular, John Stanley Gillespie develops a methodological framework guiding scholarship into legal transplantation, with particular reference to Vietnam. A useful section describes the legal transplantation debate. This literature focuses upon law’s relative autonomy from society and in this sense fails to deal with many questions revolving around the interaction between legal transplants and domestic laws and institutions within recipient countries.

Gillespie shows that conventional transplantation theories are too crude, not least because in the case of Vietnam for example, they failed to take into account Vietnam’s uneven history of legal borrowing. To understand legal transplantation in the Vietnamese context, Gillespie shows that it is necessary to develop new analytical tools dealing with the interaction between western-rights based laws and institutions with Marxist-Leninist ideological frameworks, taking into account state and non-state regulation.

The history of legal transplantation with Vietnam is discussed in the book, starting with neo-Confucian notions and Chinese-inspired imperial statecraft, through to the imposition of the French colonial legal system. Gillespie then explains why French colonial legal legacy was so easily swept aside by Soviet-inspired revolutionary reforms. In particular, pre-modern moral values were conflated with Marxist-Leninism to produce what he describes as a revolutionary morality that guided state rule until more emphasis was placed on law-based governance during the 1980s. A significant finding of the book is that conflicting ideologies do not necessarily constrain legal borrowing and, in fact, may actually create space for imported ideas. Indeed, in the context of transplanting commercial law in Vietnam, neo-liberal ideals supporting property and contractual rights were not blocked by Marxist-Leninist ideology with its emphasis on party power. Whilst it is conceded that party leadership did have the capacity to de-stabilise imported, private commercial rights, a limited rule of law in the commercial arena was considered to advance party objectives.

Legal transplantation was adopted in Vietnam as an aspect of state law-making. Legislative drafters interpreted and co-opted imported legal ideas to achieve strategic objectives. Gillespie’s [*905] case studies are particularly illuminating in this regard. They show that imported commercial rights were negotiated in three-way contests between elite level officials, local level officials and businesses. The discourse was not limited to the drafting process but was also expressed in courtroom disputes between party, state and private interests. Over time, it appears that imported legal ideas, particularly those advocating commercial rights, have provided the frame of reference for implementing the law in Vietnam. Increasingly, legal transplantation now takes place between like-minded groups in Vietnam, and there is an increasing tendency for imported laws to reflect the interests of powerful pressure groups, leaving politically unconnected entrepreneurs to self-regulate. State laws under autocratic legislation assume importance within Vietnam when domestic entrepreneurs seek state privileges, such as access to international markets or tenders.

The great contribution of this book is that it exposes the inadequacy of any deterministic model of legal transplantation. At the same time, the book challenges the conventional understanding about convergence and legal systems. However, it does not seek to answer the question of legal origins as a theory of development. Others have postulated that legal institutions and the rule of law are critical in the transition process of economies. Certainly, law and legal institutions do figure in measuring transitional economies. In this respect, law matters. This book does not seek to answer the question of legal origins as a theory of development. Important questions therefore remain: what is it about law that makes its origin important? Why should law play an important role in economic development, and what differences in legal systems affect, if at all, varying rates of economic development?

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© Copyright 2007 by the author, Iwan Davies.

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THE JUDICIAL BRANCH OF FEDERAL GOVERNMENT: PEOPLE, PROCESS, AND POLITICS

by Charles L. Zelden (ed). Santa Barbara: ABC-CLIO, 2007. 441pp. Cloth. $95.00. ISBN: 9781851097029.

Reviewed by Paul M. Collins, Jr., Department of Political Science, University of North Texas. E-Mail: pmcollins [at] unt.edu.

pp.901-903

While there is no short supply of both texts and encyclopedias devoted to the federal judicial process, each year marks the introduction of new volumes into the market. Textbook treatments of the federal judiciary are most commonly organized in a topical fashion, devoting separate chapters to, for example, the district courts, courts of appeals, and the Supreme Court. Encyclopedias, and similar reference volumes, tend to be organized alphabetically, with anywhere from a few hundred to several thousand words discussing various aspects of the federal courts. Texts on the judicial process are overwhelmingly targeted at undergraduate classes. Encyclopedias are aimed at library adoption and for use by researchers and lecturers as reference texts.

THE JUDICIAL BRANCH OF FEDERAL GOVERNMENT: PEOPLE, PROCESS, AND POLITICS, edited by historian Charles L. Zelden, represents an interesting example of the integration of a judicial process text and a reference volume. Although it is identified early on as an encyclopedia (p.9), it will likely be better recognized as a hybrid. That is, in addition to containing features familiar to encyclopedias, such as a list of all federal judges and the presidents who appointed them, the core of the book contains five substantive chapters. These chapters are organized topically and range from a discussion of the roles of the federal courts to a treatment of the interaction of the federal courts with the states. As such, I believe the book will likely find its target audience with libraries and as a reference manual for professors teaching judicial process courses. (The book’s price is prone to make it unsuitable for undergraduate course adoption).

Beyond the book’s somewhat unique organizational style, the volume’s primary contribution lies in its historical perspective. While most texts and encyclopedias approach the federal judicial process either by focusing on particular courts (overwhelmingly the Supreme Court) or promoting a specific perspective (e.g., judges as neutral arbiters of the law, judges as policy makers), this book’s most attractive feature is the historical approach utilized by the authors to explain the federal judicial system. All of the contributors are historians and use their training to provide excellent longitudinal treatments of their subject area. In this sense, the book marks an important contribution to our understanding of the federal judiciary from a historical perspective. That is, rather than focusing solely on the contemporary federal court system, the authors go to great lengths to illustrate the significance of understanding the American legal system in a historical context. [*902]

The five substantive chapters present a historical perspective on various roles and functions of the federal courts. Chapter 2, authored by Charles Zelden, discusses the origins and organization of the federal court system and presents a thorough overview of the changing workloads of the federal courts. (Chapter 1 is an introduction by Zelden). Chapter 3, by Timothy Dixon, covers the evolving structure and procedures of the federal courts. Dixon canvasses a wide range of topics, including both Article I and Article III courts and the differences between civil and criminal law. Chapter 4, written by Roberta Sue Alexander, focuses on judges and other actors in the federal court system, including a discussion of judicial selection over time. From my perspective, this is the most illuminating chapter in the book. Alexander provides an excellent treatment of the determinants of judicial selection and how various factors related to presidential appointments have evolved over time, such as the waning importance of kinship and instrumental friendship. Chapter 5, authored by Thomas Mackey, covers the role of judges as policy makers, including the politics of Supreme Court appointment. To do this, Mackey provides an overview of seminal Supreme Court cases related to judicial review, incorporation, and civil rights and liberties. The final chapter, by Lester Lindley, focuses on the relationship between the federal courts and the other branches of government and the states. Here the author provides a relatively in-depth treatment of many of the major Supreme Court cases related to federalism, illustrating how the Court has significantly shifted over time with respect to its position on the proper balance between the power of the states vis-à-vis the federal government.

In addition to these five substantive chapters, the book contains a host of reference materials. The volume begins with a 27-page legislative history of the federal courts, broken down by court level, providing a timeline of the major congressional legislation relating to federal court creation. Following the substantive chapters, the book contains a 14-page glossary of concepts, laws, and actors. This is succeeded by a list of all federal court judges, organized by the presidents who nominated them, the courts on which they served, and their race, gender, and ethnicity. Next, the volume contains a section that reprints notable documents related to the federal judiciary, including portions of the Constitution, major pieces of legislation, and landmark decisions of the Supreme Court. The book closes with an annotated bibliography, briefly discussing the scholarly publications on which the substantive chapters are based.

While the book represents an excellent example of the importance of viewing the federal judiciary in a historical context, there are two areas in which I believe it could have been improved. First, while Alexander’s chapter on the judicial selection process is insightful, the use of figures would have made it more readable. Alexander delves into very specific details about various characteristics of federal judges that lend themselves to presentation in a graphical format. For example, page 103 reads, in part, “During the Taylor-Fillmore Administration, where all the appointees were Whigs, only 25 percent had elite backgrounds while another 37.5 percent came from well-to-do families. Twenty-five [*903] percent came from humble origins compared with 23.5 percent of Jackson appointees.” Although this short excerpt is not difficult to read, it is somewhat more challenging to digest the 10 or so pages that report similar statistics only in the text. Second, there are a few typographical errors and outdated figures that detract from the volume’s quality. For example, “Birkby” is spelled “Birkly” throughout the text. In addition, the book reports that “Of about 2,000 to 3,000 cases the [Supreme] Court considers each year, the justices grant review in about 160 to 200” (p.33). These figures are presented as representing contemporary numbers related to case selection, but do not correctly reflect the fact that the modern Supreme Court handles about 8,000 certiorari petitions per year, disposing of less than 100 cases on the merits each term.

Despite these shortcomings, this book represents an important entry into the market for textbooks and reference volumes on the federal judicial system. THE JUDICIAL BRANCH OF FEDERAL GOVERNMENT reminds of us of the significance of viewing courts with a careful eye toward their historical development. Moreover, by reprinting significant pieces of legislation, landmark Supreme Court cases, and providing a list of all federal court judges, the book is useful in that it makes all of this information accessible in a single volume (although much of this information is available on the internet). In this sense, it will be particularly useful for instructors teaching courses on federal judicial process as a supplement to their regular textbook(s).

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© Copyright 2007 by the author, Paul M. Collins, Jr.

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SECURITY AND HUMAN RIGHTS

by Benjamin J. Goold and Liora Lazarus (eds). Hart Publishing, Oxford and Portland, Oregon, 2007. 426pp. £30.00/$45.00. ISBN: 9781841136080.

Reviewed by Ignacio de la Rasilla del Moral, Seville University Pablo de Olavide & The Graduate Institute of International Studies, Geneva. Email: rasill04 [at] hei.unige.ch.

pp.898-900

This is a book for those tired of merely wrapping themselves up in Orwellian slogans exported from 1984 or in finding civic courage in falsely attributing to Brecht the cautionary poem which ends with: “when they came for me, there was no one left to speak out” (Pastor Martin Niemöller). This is a book for those who, like the actual Brecht, while watching the driver changing the wheel and despite saying to themselves that they neither like the place where they come from, nor the place they are going, are wondering “why with impatience do I watch him changing the wheel?”

Human rights state’s practice and doctrinal discourse appear contemporarily pierced by an ever growing presence of security concerns, varnishing with necessity and respectability both courses of state action and doctrinal argumentation which were not so long ago considered either illegal in Western democracies or rhetorically marginal. By critically displaying a multidisciplinary magnifying-glass perspective on several layers of the current tension and its accompanying socio-legal background, the contributors to SECURITY AND HUMAN RIGHTS set themselves to confront this on-going change of tide in a domestic and international riverbed over which a climate of continuing “exceptional moment” has been forecast to last indefinitely.

While a certain amount of British self-flagellating parochialism is apparent, if weighted against the somehow excessive number of contributions that focus on the UK to the detriment of an absent variegated Western European perspective on security policy, exquisitely adventurous contributions as that of Ian Loader’s adoption of a cultural sociology approach to British political and public culture in the face of “illiberal practices in liberal regimes” helps one to excuse the slightly asphyxiating Anglo-American atmosphere that pervades the book.

Loader’s sociological approach to the security lobby’s claims is, nonetheless, but one of the contributions that attempt to “engage with security.” In the same category lie others that do so, whether by putting forward legal entitlements like the right to informational self-determination so as to mitigate the dehumanising effects of “categorical identities” as proposed by Benjamin J. Goold’s analysis of the right to privacy, or by asserting that human rights lawyers should not engage in unnecessary trade-offs before testing by themselves the threshold of effectiveness of anti-terrorist techniques as racial profiling, an issue which is explored by Bernard E. Harcourt.

Although adopting the language of risk is likely to trigger controversy among [*899] criminal lawyers, the will of eternally postponing any conclusive stalemate with the culture of state control and the private security lobby remains the characteristic feature of this volume’s collective effort to renew, through the multidisciplinary scope of its analysis, the supposed vernacular of reconciliation between security and human rights at a time when influential voices in the field are engaging with curtailments or modifications of the latter in terms akin to those of Michael Ignatieff’s promotion of the philosophy of “lesser evils.”

Contributing to the intellectual space of what Didier Dido and Elspeth Guild characterise – in their defence of “the man on the Clapham omnibus” as rational touchstone against the experts’ apocalyptic rule and the contemporary drive towards a “pre-crime society” – as the misleading metaphor of balance between liberty and security stands, thus, as the underlying common thread that runs through the whole contents of a book which includes essays by experts in international relations, criminal justice, international law, public law and political philosophy.

Structurally speaking, the volume is divided into three main themes: “Engaging Security,” “Engaging Rights,” and “Security as a Right: The Resolution?” Benjamin J. Goold and Liora Lazarus provide a well-constructed introduction which, although a bit alarmist in overtone, is definitively not unworthy of the sophisticated scholarly complexity that characterise most of the fifteen contributions originally written for an Oxford University colloquium in 2006.

A certain streak of inward-looking expert debate in the second part of the book, that aims to engage with rights from a not faltering, while still lucid perspective of their limits, can nonetheless constitute a challenge for those not entirely familiar with current legal philosophy debates. This noted, advanced readers shall surely take full scholarly profit from contrasting David Dyzenhaus’ exploration of the implications of a “culture of justification” in the apex of national security and human rights as a prominent example of a contemporary theoretical approach to emergencies, with Victor Ramraj’s alternative analysis of the tension in law and legal theory between idealism and pragmatism during emergency times.

Interesting for international lawyers is Powell’s, well-documented on contemporary international law debates, exploration of the place of both a “culture of justification” and a “culture of authority” in the international sphere as seen through the lenses of the disputed contours of the legal authority of the Security Council. The role of the Security Council in the fight against transnational terrorist groups is also paramount in Kent Roach’s assessment of SC Resolution 1373 as the main source of the “trendy nature of anti-terrorism laws” in domestic comparative legal terms. The international legal sphere of analysis does equally benefit, in this second part, from Shlomit Wallerstein’s extension of domestic criminal law notions on the basis of what she terms the state “duty” of self-defence. Her conceptual reinforcing of the latter plays the role of the discordant voice that harmonises the ensemble and can, in this respect, be profitably [*900] compared with Lucia Zedner’s waving, also within the criminal law field, of a warning flag about the risks associated with side-stepping due process in domestic regimes.

The third part of the book explores the Janus-faced character of the notion of security as a human right. It does so both at the domestic and at the international levels. In the first of them, both Sandra Fredman and Lazarus deal with the paradox contained in the fact that its development as a positive right juxtaposed with state action to provide for the security of its citizens, can also become a weapon in the rhetorical arsenal of a culture of state control in the hands of the security industry; a difficult balance for those walking that tightrope in view of the fact that the origins of the right in the domestic realm lies in its conceptualisation as negative freedom from state action. As far as the international realm is concerned, the parallel development of the notion of human security in international law and the “responsibility to protect” doctrine, respectively dealt with by S. Neil MacFarlane and Jennifer M. Welsh, mirror similarly paradoxical dilemmas that surround the heart of what Emmannuelle Jouannet has aptly defined as “the problem of the new substantive universalism of contemporary international law” and should, therefore, be profitably read by international legal scholars.

This is not the sort of disciplinarily discipline-specific book so common in the post-9/11 era of the worst-case scenario that offers a trench with strategically positioned holes for gifted human right’s snipers to prove their marksmanship on the blurred targets of a long-distance viewed struggle. It is neither one that restricts itself, less ambitiously, to pointing out the clear posts that mark the entrance to the human rights non-man zone beyond which it is better not trespassing. This is a book that dares to herald its positions into the other camp’s intellectual imaginary, and one that does so without breaking its ties with its natural rearguard. This book is, mutatis mutandi, contemporary human rights as “offensive realism.”

REFERENCES:
Jouannet, Emmanuelle. 2007. “Universalism and Imperialism: The True-False Paradox of International Law.” 18 EUROPEAN JOURNAL OF INTERNATIONAL LAW 379-407.

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© Copyright 2007 by the author, Ignacio de la Rasilla del Moral.

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