BELVA LOCKWOOD: THE WOMAN WHO WOULD BE PRESIDENT

by Jill Norgren. New York: New York University Press, 2007. 311pp. Cloth. $35.00. ISBN: 9780814758342. Paper. $21.00. (forthcoming March 2008).

Reviewed by Deborah E. Sulzbach, Drake University Law Library, Drake University. Email: Deborah.Sulzbach [at] drake.edu.

pp.772-774

Jill Norgren, Professor Emerita of Government at John Jay College, has written an engrossing and insightful book about Belva Lockwood, a woman who, through tenacity, drive and self worth, accomplished more in the 19th century than many modern women accomplish. Because Lockwood was known to few and most of her personal papers were destroyed after her death, Norgren has done an exemplary job of illuminating the life of this varied and accomplished woman.

Born in 1830 in Western New York, Lockwood (nee Belva Ann Bennett) was born into a small farming family, the second of five children. Belva excelled at school and at 14 was offered a teaching position in a rural school. Due to her family’s financial troubles, Belva’s formal education ended and her career as a schoolteacher began. Desiring a better life than teaching afforded, plus irritated at receiving half the salary of her male colleagues, she asked permission from her father to return to school. When her father balked at the idea of spending money to educate a woman, she did what was expected of a young lady of that time. She married Uriah McNall, a young neighborhood farmer, in November 1848. When Uriah died four and one-half years later due to a mill accident, Belva was left a 22-year-old widow with a three-year-old daughter, Lura. Realizing the need to support herself and her daughter, Belva entered the local Methodist seminary for women to train as a teacher. Upon graduation she ran her own school until after the end of the Civil War, when her fascination with the political scene led her to sell the school and move to Washington, D.C.

Shortly after arriving in Washington in 1866, and needing to support herself and Lura, Belva began teaching at a local girls’ school. Though it paid poorly, her teaching position afforded her plenty of free time to explore the halls of Congress and the United States Supreme Court. While in Washington, Belva became active in the awakening women’s suffrage movement and the newly formed American Equal Rights Association (AERA). She also married her second husband, Ezekiel Lockwood, an elderly lay minister and dentist in 1868. A daughter born to Belva and Ezekiel died at the age of 18 months. Nine years later she once again became a widow. Ever the achiever, Belva decided to pursue her first love and enrolled in the National University Law School. Despite completion of the course work, the Law School refused to award her a diploma because of her gender. Lacking a diploma, Belva was refused entry to the D.C. Bar, thus keeping her from practicing the profession she had so diligently pursued. Despite repeated applications to the D.C. Bar, it was only [*773] after a brusque letter to President Ulysses Grant that her diploma arrived and entry into the Bar was approved. Thus began a legal career which spanned the next forty years.

Not content to rest on her laurels and ever the self-promoter, Belva’s aspirations took her to the women’s rights and international peace movements. She served as vice president of another newly formed organization, the District of Columbia Universal Franchise Association (U.F.A.), a group devoted to the belief that all citizens, regardless of race or sex, are entitled to equal rights. Her ardent support of suffrage matters led her to petition Congress on behalf of these causes, and by 1870 she successfully attained passage of a bill providing equal pay for female civil service employees. The rest of the decade and into the 1880s, Belva’s law offices specialized in pension claims of Civil War veterans and represented clients, especially females, in equity, criminal and divorce proceedings. In 1874, foreseeing the possibility of arguing a case before the U.S. Supreme Court and the U.S. Court of Claims, Belva petitioned each to be admitted to their bar. Once again Belva was met with roadblocks at every turn, but she refused to relinquish the fight. In 1879, after five years of battling with the Courts and Congress, Belva became the first woman allowed to practice before the United States Supreme Court.

In 1884, the Equal Rights Party, recognizing Belva’s enthusiastic support of the women’s rights movement, nominated her as its presidential candidate. Though the chances of winning were improbable, Belva put everything into her candidacy and became the first woman to run a full-fledged presidential campaign. Stumping the country allowed her to spread the word of her presidential platform: equal rights for every class of citizen, a national temperance policy, along with proposed tariff, currency and land policies. It also served Belva’s self interest, allowing her to earn money from various lecture invitations and acquire clients in need of a Washington lawyer. In the end, Belva received more than 4000 votes. In 1888, nearing sixty, Belva was again nominated as the presidential candidate for the Equal Rights Party. Due to Belva’s lackluster campaigning and a woman running for the presidency no longer a newsworthy novelty, “no votes for her appear to have been recorded” (p. 167) in this election.

The rest of Belva’s life was spent as an activist for minority rights and international peace. She became a leader of the Universal Peace Union and represented the United States at peace conferences in Berne, Antwerp and Geneva. She worked assiduously for and wrote and lectured about world peace. Belva also continued the fight for voting rights by writing the women’s suffrage clauses in the Arizona, New Mexico, and Oklahoma state bills. In addition, she worked tirelessly in securing passage of a property rights law for Washington, D.C. women. However, she did not abandon her law practice entirely. One of her more significant cases was argued on behalf of the Cherokee Indians who were seeking monetary compensation against the United States for forced removal. In a case that went to the [*774] Supreme Court, Belva won a $5 million settlement for the Cherokees.

Belva died in 1917 at the age of eighty-six. She outlived two husbands, two daughters and many of her contemporaries. Despite having a successful law practice for forty years, Belva died destitute. Her later years had been funded by a widow’s pension, funds from supporters and friends, and a small monthly stipend from Andrew Carnegie. To the end Belva remained a force to be reckoned with, a staunch and vocal advocate of women’s rights and a leader in the movement for world peace.

Although little has previously been written about Lockwood, Norgren has done an outstanding job of piecing together bits of information to reveal the life and times of this extraordinary woman. From the beginning, one gets a sense of the kind of woman to be encountered in this biography. Comments like “Lockwood exuded ego” (p.xiv), “inherent sense of her own worth” (p.9), and “Belva did not shy from controversy” (p.10) reveal a woman confident in herself and born to make history.

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© Copyright 2007 by the author, Deborah E. Sulzbach.

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THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW, POLITICS, AND ECONOMIC DEVELOPMENT IN EGYPT

by Tamir Moustafa. Cambridge and New York: Cambridge University Press, 2007. 338pp. Hardcover. $85.00/£45.00. ISBN: 9780521876049. eBook format. $68.00. ISBN: 9780511287282.

Reviewed by Antony T. Sullivan, President, Near East Support Services International, Ann Arbor, Michigan. Email: atsullivan4321 [at] comcast.net.

pp.768-771

The revision of a doctoral dissertation accepted by the University of Washington, Professor Tamir Moustafa’s THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW, POLITICS AND ECONOMIC DEVELOPMENT IN EGYPT is a model of outstanding scholarly research. This book deals with an important topic, and Moustafa does it justice. Not only does this volume constitute a comprehensive analysis of political and economic change in Egypt during the past 40 years, but it suggests new directions for scholarly research for students of comparative law and legal systems. No specialist in the fields specified can afford to ignore this important study.

Despite its quality, this volume cannot expect a wide readership. The subject will be of interest only to scholars working in the areas of comparative law, regime liberalization, and economic development. For general readers, the subject will seem arcane, and by its nature unexciting. For those interested in obtaining a more pragmatic understanding of Egyptian society today, a far easier and more informative read would be Geneive Abdo (2000).

Moustafa’s book focuses on the politics of the Egyptian Supreme Constitutional Court, the most important experiment in constitutionalism in the Arab world. The fundamental question posed by Moustafa concerns why an entrenched authoritarian regime would establish an independent constitutional court in 1979 with the power of judicial review. Put otherwise, he inquires why an “entrenched authoritarian regime with no viable political rivals [would] rebuild autonomous judicial institutions through which citizens could contest administrative decisions and challenge the constitutionality of regime legislation” (p.4). In this regard, he inquires why the regime did not immediately cancel the relative autonomy it had granted the Supreme Constitutional Court (SCC), as soon as the Court began to challenge the regime in high profile cases. This riddle is all the more interesting given the fact that the SCC worked to curtail executive power, expand freedom of expression, and shield groups active in civil society from regime domination. Moreover, the Court for years provided the most important avenue for opposition parties, human rights groups, and political activists of every stripe to challenge the Egyptian government. Islamists, in fact, mobilized through the SCC to challenge the secular underpinnings of the state. In sum, Egyptian opposition activists frequently found the highest judicial institution to be their frequent ally. Why did the Egyptian government allow such [*769] independence for approximately two decades?

A large part of the answer, according to Professor Moustafa, concerns the government’s desire to attract foreign investment, for which new and meaningful legal guarantees were necessary. Indeed, Anwar Sadat pinned the regime’s survival on attracting foreign investment, as well as investment from Egyptian nationals holding tens of billions of dollars in assets abroad. To that end, a clear rule of law was necessary, with ironclad guarantees the nationalization of property during the Nasser years would not be repeated. An independent Supreme Constitutional Court was deemed necessary to that end. For the regime, the real explanation for the granting it such a surprising amount of independence was that the state, anticipating that the Court would move in a liberal direction and make decisions that would surely cause severe economic pain, could then deflect protests about policy changes from the state and direct them toward the SCC. For that amount of political protection, the regime was willing to pay a substantial political price.

Moustafa argues that the SCC pursued a progressive political agenda by “selectively accommodating the regime’s core political and economic interests” (p.8) and thereby assuring that it might continue to pursue a liberal agenda. In fact, those interests included the priority of “overturning socialist-oriented legislation from the Nasser era” (p.8). The Egyptian SCC, he maintains, constitutes a case of “bounded activism” (p.8). Nevertheless, in the end, the state did finally move in the late 1990s to circumscribe the independence of the SCC, and today it is nothing more than a pale reflection of its former self.

In its essence, this book is an analysis of what Moustafa describes as the “dynamic complexity of judicial politics in authoritarian states” (p.9). He notes also that “many of the dysfunctions that plague the Egyptian state are common to other authoritarian states” (p.9). In Egypt as elsewhere, such courts “never advance the interests of authoritarian rulers in a straightforward manner. Rather, [they] inevitably serve as dual-use institutions, simultaneously consolidating the functions of the authoritarian state while paradoxically opening new avenues for activists to challenge state policy. These courts often become important focal points for state-society contention” (p.10). This observation challenges core assumptions in both political science and economics. Contrary to the presumption of most political science literature, courts in authoritarian polities are not mere pawns of the rulers. Rather, they are often active sites of state-society contention. Nevertheless, Moustafa maintains that the Egyptian case “illustrates why regimes sometimes short-circuit their own institutional creations, despite the devastating implications for national development” (p.11). For scholars working actively in comparative law and political systems, this book is simply a must read.

In all of this, perhaps the greatest advantage to the Egyptian government in permitting relative judicial [*770] independence, Moustafa emphasizes, was to escape blame for liberalization and privatization. He notes that “dozens of Supreme Constitutional Court rulings enabled the regime to overturn socialist-oriented politics without having to face direct opposition from social groups that were threatened by economic liberalization” (p.36). In fact, SCC rulings dismantled major parts of the social welfare system built by Nasser without the regime having to assume direct responsibility for those actions. These were no mean contributions, and its echoes are with us yet. Another major service that the SCC rendered to the state was to provide a “non-political” venue for settlement of particular cases involving religious and secular contention within Egyptian society. This enabled the state to avoid involvement in such sensitive matters. Such referral of sensitive cases to the judiciary, Moustafa argues, constitute examples of “judicial policymaking” (p.37), which has been characteristic of Egypt and other “populist, authoritarian states” (p.36).

Also, the relative independence of the SCC provided a venue where cases involving corruption might be adjudicated. This, in itself, provided a check on the rampant corruption that flourished in an Egyptian bureaucracy that previously lacked any sort of transparency. This, too, served the interests of the regime by increasing the “accountability of government bureaucrats,” enabling the state to “monitor and discipline administrators diverging from their state-proscribed mandates,” and promoting the “coordination of state policy” (p.229).

Above all, the semi-autonomous judiciary provides an opportunity to opposition groups and human rights groups to publicize their causes, on an almost no-lose basis.” Courts offer a unique space for the opposition to turn the state’s own institutions on itself,” Moustafa states. “Activists search for the bold judge who is willing to turn on his master and, like a saboteur, throw monkey wrenches into the state’s moving parts. When activists win in court, they . . . provide fodder for the opposition press. When they lose . . . they expose the gap between the regime’s rule-of law rhetoric and the narrow margins for achieving institutional remedy. Litigation is thus used to raise the salience of political issues even when activists are almost certain that they will not win their case” (p.43). Of course the fact is that, as agents of the state, judges generally administer the will of the regime, but, as Moustafa notes, “they never do so in an automatic fashion. Legal professionals everywhere are part of self-conscious communities, and in most developing countries they are acutely aware of their central role in political life” (p.44).

To assure general obedience of the courts on the most important issues to the regime, the state typically provides “institutional incentives that promote judicial self-restraint and ‘core compliance,’ Moustafa observes, “engineer fragmented political systems, constrain access to justice, and incapacitate judicial support networks” (p.46). The result is that reformist judges typically apply subtle pressure for political reform largely at the margins of political life. Only when the regime [*771] appears to be on its way out will reform-minded judges cease to bide their time and move more vigorously to challenge the state.

In the case of Egypt, it became obvious that the regime was there to stay. Not only that, but by the late 1990s the state began to move seriously to constrain and shrink judicial independence. Professor Moustafa describes the “fall” of the independence of the SCC after 1998, as the government weakened the judicial support network and packed the court with new justices. Foreign funding of human rights networks was limited, with one typical result being that such organizations as the Group for Democratic Development was closed, the Egyptian Organization for Human Rights emasculated, and the entire staff of the Ibn Khaldun Center put on trial. Intimidated, the SCC provided no remedies. The regime had made its point, and there could no longer be any doubt in anyone’s mind concerning where power really lay in Egyptian society. In conclusion, Moustafa notes that such an outcome is typical. “Authoritarian rulers constantly abort institutional reforms when those institutions are turned against them,” he notes, “and it is this political context that lies at the heart of the barriers to economic and political advancement throughout much of the developing world” (p.228).

This book stands at the intersection of political science, economics, and comparative law. It challenges conventional wisdom and provides new insights into perennial questions concerning the barriers to institutional development, economic growth, and democracy in the developing world. It includes a variety of useful tables, charts, and statistics, in addition to a comprehensive bibliography and an index. It is a volume that no research library can afford to be without.

REFERENCES:
Abdo, Geneive. 2000. NO GOD BUT GOD: THE TRIUMPH OF ISLAM. Oxford: Oxford University Press.

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© Copyright 2007 by the author, Antony T. Sullivan.

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ARCHITECT OF JUSTICE: FELIX S. COHEN AND THE FOUNDING OF AMERICAN LEGAL PLURALISM

by Dalia Tsuk Mitchell. Ithaca: Cornell University Press, 2007. 368pp. Hardcover. $59.95. ISBN: 9780801439568

Reviewed by Brett W. Curry, Department of Political Science, Georgia Southern University. Email: bcurry [at] georgiasouthern.edu.

pp.764-767

The name Felix Cohen remains unknown to much of the contemporary American legal community. However, Dalia Tsuk Mitchell’s biography reminds us that Cohen’s lack of familiarity is not synonymous with a lack of significance. Indeed, from his early years at the City College of New York (CCNY) to his doctoral studies at Harvard University, Columbia Law School, and work as a lawyer at the Department of the Interior, Cohen found himself at the center of a number of the legal and political debates that gripped the United States in the first half of the twentieth century. Consequently, Mitchell’s assessment does far more than tell the story of Felix Cohen the man. It relies on Cohen’s individual contributions and experiences to illustrate “the impact of the legal pluralist image of the modern state on the transformation of American thought and American society in the first half of the twentieth century” (p.7).

The eldest son of second- and third- generation Jewish immigrants, Felix Solomon Cohen was born in New York City in July 1907. His father, Morris, was himself a prominent philosopher and legal scholar in the realist tradition. Appropriately, the younger Cohen was named after Felix Frankfurter, his father’s roommate at Harvard who would go on to become an associate justice on the United States Supreme Court. From Cohen’s early years on Manhattan’s Lower East Side, he was imbued with an appreciation for diverse cultures and the necessity of tolerance. That appreciation would grow, as Cohen matured in Yonkers and, later, Washington Heights. His exposure to leftist ideologies at CCNY, where he encountered the socialism of Norman Thomas, combined with his experience as editor of the student paper there, reinforced this worldview. “Not a choice among values but tolerance was Felix’s intuitive reaction to [a] plurality of opinions” (p.28). Those beliefs would become Cohen’s lodestar as he sought to articulate his vision of legal pluralism and pursue that vision at the Department of the Interior. At Interior, Cohen “believed that his work could become a model for addressing the needs of diverse groups in society” (p.132).

After graduating from CCNY, Cohen pursued a doctorate in philosophy at Harvard. While there, he audited courses in law from Roscoe Pound and Felix Frankfurter, and anthropology from Alfred Tozzer. His exposure to anthropology was particularly important in cultivating his pluralist worldview. One year before earning his doctorate at Harvard, Cohen began studying law at Columbia University. As a bastion of legal realism, Columbia Law School was well-suited to Cohen’s interests. Legal realism – particularly its emphasis on [*765] social science’s relevance to legal issues – resonated with his view of a pluralist society. Specifically, Mitchell notes that Cohen “turned to positive science to learn about the effects of law on different interests and groups in society” (p.50).

Upon his graduation from Columbia Law School, Cohen accepted an invitation to join the Department of the Interior and would help New Dealers in the Roosevelt Administration change federal Indian policy. While Cohen had no experience in Indian affairs, he saw the nation’s Indian tribes as “one of many political and economic groups that would form the foundation of the modern pluralist state” (p.4). In effect, Cohen joined Interior because he saw the position as an opportunity to implement his pluralist vision.

Part II of the book describes Cohen’s role as principal drafter of the Interior Department Bill that would later become the Indian Reorganization Act (IRA). In his initial draft of that bill, Cohen articulated the need to encourage tribal self-government and endorsed cultural pluralism and collective ownership of Indian lands. Finally, Cohen’s draft envisioned a system of specialized Indian courts that could “generate legal stability and political advancement on reservations” (p.88). Aided by Cohen’s pragmatism and determination, Congress passed and President Roosevelt signed the IRA into law in 1934. However, in the wake of contentious congressional hearings and public debate, a number of Cohen’s most radical proposals were excised from the final bill.

Cohen would supervise another major effort at Interior related to his pluralist vision – the Alaska Development Plan. Although Interior attempted to frame the issue as one benefiting Alaska’s economic development, a major goal of the Alaska Development Plan was to create refugee reservations for Jews living (and dying) under Germany’s Nazi regime. Both the Alaska Development Plan and a later effort to accommodate refugees in the Virgin Islands proved unsuccessful (pp.152-161), and these setbacks led Cohen to recalibrate his pluralist vision.

In later years Cohen found his ambitious vision constrained by internal and external forces, and these forces also produced shifts in his thought. Cohen viewed President Truman’s Interior Department as unsympathetic to his pluralist vision. By the Truman years, Interior deemphasized historical and cultural distinctions, opting to view all groups through a single prism. As a result, Cohen became increasingly cynical, “no longer trust[ing] policymakers to create a plural polity” (p.264). He left Interior in 1948, convinced that his efforts to promote pluralism there could no longer be successful. Moreover, informed by his experiences, Cohen abandoned the belief that economic and political self-reliance among groups would, by itself, promote political tolerance.

In the context of the Warren Court’s increasing emphasis on civil liberties and rights at home and a growing international emphasis on the protection of individual human rights, the group-centeredness of Cohen’s pluralist vision [*766] went out of vogue. Though he did not discard that pluralist vision, Cohen was acutely aware of these changing social and legal circumstances. For example, as American law became increasingly individualistic, Cohen again shifted focus “from finding ways to accommodate diverse interests and values to exploring the cultural reasons for the inability of law (and society) to do so” (p.6). In that odyssey, Cohen focused increasingly on ways in which diverse group needs could be accommodated in a society – and a legal system – whose focus was on individual rights (p.188).

Felix Cohen died of lung cancer in 1953 at the premature age of 46, giving him five short years to pursue his vision after leaving Interior. Still, these final years were quite productive. Acting as a private attorney, Cohen secured voting rights for Indians in Arizona and New Mexico. In the early 1950s, he was a vocal critic of efforts by the Bureau of Indian Affairs that he believed would undermine the Indian New Deal. Two years prior to his death, Cohen presented the final iteration of his jurisprudential approach in “Field Theory and Judicial Logic” (in Cohen 1970).

In fleshing out the complexities of Cohen’s legal pluralism, Dalia Tsuk Mitchell engages in a particularly useful discussion of legal realism. In juxtaposing the views of legal realists with legal classicists, Mitchell clarifies the relationship of Cohen’s pluralism to the larger movement of legal realism and refers to Cohen’s vision as “a strand within legal realism” (p.55). The book’s second chapter is especially effective in situating legal pluralism within that larger realist framework.

One of the book’s most instructive themes is the way in which Cohen’s vision of legal pluralism was rooted in pragmatism and, thus, evolved as his knowledge grew and political circumstances changed. For example, in the early 1930s Cohen “believed that economic and political equality could be achieved by universal schemes” (p.273). But his work on Indian Affairs at Interior soon made him realize that society’s numerous cultural and value traditions made such universal prescriptions unworkable. Cohen, Mitchell tells us, embraced a “functional jurisprudence” which recognized that different groups necessitated unique solutions to their problems.

Mitchell’s book is comprehensive, well-written, and promises to be of interest to scholars of jurisprudence and legal history. It succeeds in capturing the essence of Felix Cohen’s legal pluralism and relates that vision to his work in a balanced, evenhanded manner. The book retains an objectivity about its subject that, sadly all too often, is lacking in biographical scholarship. At the same time, Mitchell masterfully demonstrates a symbiosis between Cohen’s own story and the resulting evolution of his legal and political thought.

That said, there are two ways in which the book could have been improved. First, additional elaboration on how Felix Cohen came to the Department of the Interior would have been useful. While the author notes that “The New Deal’s zest, the Indians’ plight, and, ultimately, Cohen’s vision for the modern state brought him to Interior” (p.64), early portions of the book could have benefited from even greater descriptive details concerning the [*767] sequence of events that led a man with no policy specialization to Interior and, specifically, to a position of responsibility over Indian affairs.

Second, I found the book’s discussions of Indian law to be tedious at times. Mitchell’s treatment of these issues is certainly comprehensive – perhaps, at times, overly so. Much of this detail may be unavoidable, given the centrality of Indian law to Cohen’s story. Still, portions of the book’s treatment of Indian law are dense and may limit its accessibility to readers for whom issues of Indian law are secondary to Mitchell’s broader thesis on Cohen’s legal pluralism.

Mitchell likens Felix Cohen to the Woody Allen character Zelig, and that characterization is apt. Like Zelig, Cohen repeatedly found himself at numerous historical crosspoints and in the company of a number of the twentieth century’s most notable figures. He knew Roger Baldwin, founder of the American Civil Liberties Union. He was influenced by leading American socialist and six-time presidential candidate Norman Thomas, met Oliver Wendell Holmes, and Benjamin Cardozo judged him the winner of Columbia Law School’s moot court competition in 1931. His HANDBOOK OF FEDERAL INDIAN LAW won effusive praise from Justice William O. Douglas. The breadth of Cohen’s acquaintances was apparent even in his death, as Justice Felix Frankfurter, Senators Hubert Humphrey and William Langer, and four prominent federal judges served as his honorary pallbearers.

Beyond these acquaintances, Cohen was also charged with implementing one phase of President Franklin Roosevelt’s New Deal. He had socialist sympathies. He contributed to important debates on jurisprudence (see Cohen and Cohen 1951) and authored THE HANDBOOK OF FEDERAL INDIAN LAW, still the authoritative text on the subject, in 1946.

Some are largely seen by history; others remain unseen and experience history first-hand. As Dalia Tsuk Mitchell’s biography vividly illustrates, Felix Cohen falls squarely into the latter category. His philosophy of legal pluralism was unquestionably shaped by his life experiences. Ultimately, that pluralism “rested on the assumption that diversity was important to individual and social life . . . [and that l]iberty was born of tolerance” (p.157). This is the lesson of Cohen’s story, and it remains a useful lesson for the modern age.

REFERENCES:
Cohen, Felix S. (ed). 1942. HANDBOOK OF FEDERAL INDIAN LAW. Washington, D.C.: U.S. Government Printing Office.

Cohen, Lucy (ed). 1970. THE LEGAL CONSCIENCE: SELECTED PAPERS OF FELIX S. COHEN. New Haven: Yale University Press.

Cohen, Morris R., and Felix S. Cohen. 1951. READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY. New York: Prentice Hall.

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© Copyright 2007 by the author, Brett W. Curry.

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NATIVE VOTE: AMERICAN INDIANS, THE VOTING RIGHTS ACT, AND THE RIGHT TO VOTE

by Daniel McCool, Susan M. Olson, and Jennifer L. Robinson. New York and Cambridge: Cambridge University Press, 2007. 232pp. Hardback. $80.00/£40.00. ISBN: 9780521839839. Paperback $24.99/£16.99. ISBN: 9780521548717. eBook format. $20.00. ISBN: 9780511276125.

Reviewed by Scott E. Graves, Department of Political Science, Georgia State University. Email: polseg [at] langate.gsu.edu.

pp.760-763

The authors of NATIVE VOTE have produced a well-researched, compelling, and insightful book on the voting rights of American Indians, filling a major gap in judicial politics scholarship. Although there have been several treatments of the relationships between American Indians and legal institutions in recent years, as well as several excellent books cataloging the successes and frustrations of the Voting Rights Act (VRA), Daniel McCool, Susan Olson, and Jennifer Robinson combine treatments of the often-peculiar legal circumstances of Native Americans with changes in the conceptualization and recognition of voting rights throughout United States history. Certainly, the book will be a welcome reprieve to scholars interested in voting rights who are tired of analyses of BUSH v. GORE.

Although those scholars will want to add NATIVE VOTE to their shelves, many of the subjects dealt with in the text are presented in a way that will whet their appetites, rather than treated exhaustively. The authors are political scientists, and while they do not shy away from substantive interpretation of voting rights case law, extensive doctrinal analysis is not their primary fare. Instead, they offer thorough characterizations of voting rights litigation on behalf of American Indians, several in-depth studies of cases based on the VRA, and some consideration of the impact that expansion of American Indian electoral participation has had and will have.

The book uses multiple methods, referring extensively to court documents and litigants’ briefs in order to present arguments made and considered as well as those reflected in court opinions and presenting the results of some original elite interviews in the concluding chapters. In several instances, however, the reader will likely wish that the authors had gone into more depth or want to follow up on the authors’ descriptive treatments. Still, the main text covers American Indian voting rights in considerable depth over a substantial time period and from several angles in less than 200 pages of engaging and fluid prose appropriate for an advanced undergraduate course on voting rights.

Most of NATIVE VOTE is devoted to analysis of how the VRA has been applied to American Indian voting rights, but the first chapter provides some background on the difficult struggle to extend the right to vote to Native Americans. Chapter Two presents the legislative development of the VRA and its amendments as the law [*761] is repeatedly adjusted to deal with efforts to restrict voting rights. The chapter also briefly introduces the primary actors in Native American voting rights litigation. The third chapter begins the exploration of VRA litigation with a discussion of the landscape of cases brought under the Act since 1965. Each of the next three chapters focuses on a single case, all based at least in part on Section 2 of the VRA. In Chapter Seven, the authors present their analysis of how this litigation has affected the conditions of Native Americans, relying on documentary and demographic evidence as well as interview data, while the last chapter offers some conclusions about where we are and where we are going in regard to American Indian voting rights.

Chapter One takes on the prodigious task of laying out the background for the rest of the book. Most of the activism undertaken under the VRA and detailed in the subsequent chapters addresses various mechanisms abridging the votes of American Indians, but the first chapter covers the lengthy struggle for recognition of a right to vote by Indians in the first place. Extension of voting rights to American Indians in general came only after their recognition as citizens by a 1924 Act of Congress, and this chapter endeavors to summarize the developments leading to the VRA in just 20 pages. Much of the conflict over American Indian voting rights is attributed to the confusing and contradictory positions articulated in the “Marshall trilogy” and other statements that seemed to recognize Indian communities as sovereigns, but dependents at the same time.

The authors describe various ways that states denied voting rights to Native Americans, including state constitutional provisions, denial of residency status, taxation requirements, and guardianship clauses, but fail to put them within the context of voting rights development over time. Some of these techniques of limiting the franchise were broadly consistent with the general philosophical and legal developments during the 19th Century, throughout which voting was seen as a privilege extended only to those thought capable and deserving of the vote. Property requirements, which gave way to taxation restrictions, were thought to preserve the connection between voting and the independence necessary to exercise the franchise, as well as ensuring that those with sufficient stake in governance could do so (Keysser 2000). The “dependent” status of American Indians made it easy to justify denying them voting rights. Perhaps more interesting than this, however, is the translation of hostile attitudes toward Native Americans in the 19th Century into efforts to exclude them from other developments that expanded the franchise. For instance, several states in the West and Midwest allowed resident aliens to vote in the mid-1800s while denying the right to American Indians.

The second chapter is devoted to the VRA, its amendments, and changing judicial interpretation of the Act. Many of the developments, legislative and judicial, in the VRA described by this chapter do not directly involve Native Americans, but set the reach and scope of the Act and determine how it will be applied. In addition to the discussion of [*762] election mechanisms and techniques that infringe upon and dilute the rights of minorities, the authors also discuss the minority language provision of the Act in section 203. The chapter concludes with a discussion of the primary litigants involved in VRA cases regarding Native voting rights. Along with the Justice Department, American Civil Liberties Union, and American Indian groups, they also briefly discuss the Mountain States Legal Foundation, a group that has recently entered the field on the side of states defending state voting system choices.

In Chapter Three, the authors attempt to describe in full the litigation efforts undertaken on behalf of Native American voting rights through the VRA. They identify 74 cases brought or authorized, and describe them in a 20 page table as well as treating them in categories in the text. Based on the evidence presented therein, American Indians have made extensive and largely successful use of the VRA to protect their voting rights and the efficacy of their participation. However, there is little or no discussion of restrictions of voting rights and efficacy unaddressed by litigation. Such an investigation would require going beyond the signals of voting problems sent by lawsuit, but would help flesh out how adequate the litigation solution is to these problems.

Chapters Four, Five, and Six provide in-depth treatment of voting rights cases in Utah, Montana, and South Dakota. The Utah disputes, filed by the Justice Department against San Juan County, involved the bilingual voting provision of Section 203 and a vote dilution charge under Section 2. The Montana case also began with the Justice Department, while the South Dakota litigation was sponsored by the ACLU’s Voting Rights Project. All three case studies look at the use of “at-large” voting districts to dilute Native American votes, which detracts somewhat from the breadth of their study, but one of the authors (McCool) appeared as an expert witness for the plaintiffs in the latter two cases, which undoubtedly contributed to the thoroughness of their analysis.

The case studies are duplicative in terms of the law applied and the conflicts over application of the at-large elections standards derived from THORNBURG v GINGLES (which are explained in considerable detail), but the descriptions of local conditions in each case are rich and varied. Moreover, the narratives of the cases are fleshed out with references and excerpts from litigant and amicus briefs, attorney general reports, and other documents beyond the findings and conclusions of judges in the cases. All these resources are listed helpfully in the reference sections. As befitting a work produced by political scientists, the value of these studies lies more in their empirical foundations than in the legal analysis provided.

The last two chapters attempt to assess the impact of voting rights litigation of the kind studied in the previous sections on American Indian candidates, office-holders, and communities. Chapter Seven compares the effects of multi-member districts of the kind challenged in the previous cases with single-member and cumulative voting districts and finds that Native American [*763] candidates fare better in the latter two than the former. This chapter also includes the results of phone interviews with fifty Indian and non-Indian office-holders in jurisdictions subject to lawsuit-based dismantling of multi-member districts. Not surprisingly, they find considerable evidence that having American Indian office-holders has some effects on the political success and provision of services to Indians, although not uniformly. An interesting comparison could have been made by expanding this study to include other jurisdictions abandoning multi-member districts without a lawsuit.

The concluding chapter considers the future of American Indian electoral participation in terms of mobilization and partisan politics and looks at other forms of participation, particularly contributions made possible through casino money. The authors raise the issue that increasing the efficacy of Native Americans as a voting population and a lobbying resource increases competition for their votes and other sources of influence, possibly without American Indians’ best interests in mind, citing Jack Abranoff and Michael Scanlon as examples. They do not expressly consider the possibility that gaming wealth and other interests could lead to separations between the interests of some Native American groups or representatives and their communities. The chapter closes with some discussion of the future of the VRA, including an up-to-date discussion of the struggle for renewal in recent years and an argument for the continued relevance of and need for the language provisions and other parts of the law that have been valuable to American Indian rights. They do not consider the strong probability that developments on the Supreme Court within the last ten to fifteen years could lead to provisions of the newly reauthorized Act being struck down as unconstitutional.

As indicated above, NATIVE VOTE is a rich, engaging text appropriate for an upper division undergraduate course in voting rights, supplemented appropriately for subjects that it does not cover and context that is often left to the background. For the scholar interested in voting rights and voting rights litigation related to Native Americans, it is an invaluable text and an excellent starting place for more in-depth research due to the wealth of resources identified and cited in the materials following the main text.

REFERENCE:
Keyssar, Alexander. 2000. THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES New York, NY: Basic Books.

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

THORNBURG v GINGLES, 478 US 30 (1986).

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© Copyright 2007 by the author, Scott E. Graves.

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PAPER FAMILIES: IDENTITY, IMMIGRATION ADMINISTRATION, AND CHINESE EXCLUSION

by Estelle T. Lau. Durham: Duke University Press, 2006. 232pp. Cloth. $74.95. ISBN: 9780822337355. Paper. $21.95. ISBN: 9780822337478.

Reviewed by John S.W. Park, Department of Asian American Studies, University of California at Santa Barbara. Email: jswpark [at] asamst.ucsb.edu.

pp.756-759

At the beginning of her volume about immigration during the Chinese Exclusion period, Estelle T. Lau states: “The analytical scheme [of this study] seeks to reveal how the continual interactive and responsive dialogue between the immigration service and Chinese immigrants helped create an arena in which the surveillance powers of the state and the identity of one immigrant group were mutually constructed” (p.4). To examine the details of this dialectical process, Lau studied “a random selection of San Francisco Chinese immigrant files . . . chronologically. A random selection of twenty files was taken at ten-year intervals by archival storage box.” These archival records – drawn primarily from the National Archives collection in San Bruno, California – have formed the bases of similar studies of Chinese Exclusion, including excellent monographs by Lucy Salyer, Xiaojian Zhao, Erika Lee, and Mai Ngai. Because Lau’s work contains detailed analyses of several specific immigration cases, as well as the responses of immigration officials to entire family histories and narrative, her book is an important contribution to the scholarly literature in this field. And yet the book’s most central argument is supported by a relatively few cases – one believes that Lau is right, even as one would like to see more evidence to support some of her broader conclusions.

Chapters 1 and 2 review familiar materials about Chinese immigration from the mid 19th to the mid 20th centuries. After state efforts to regulate Chinese immigration, many of which were held unconstitutional, the federal government passed the first of several Chinese Exclusion Acts in 1882. Although these rules exempted merchants, students, and other privileged classes, they clearly attempted to stop the migration of all Chinese laborers. The principle of exclusion against Asians would be extended and maintained in American public law until 1965, but the rules both did and did not succeed, depending on one’s point of view. By 1950, Asians were less than 1% of the American population. Still, “studies of illegal Chinese immigration have shown that over one-quarter of the Chinese population in the United States in 1950 had entered under false pretenses as derivative citizens” (p.23). In addition to lawsuits, strikes, and boycotts against exclusionary immigration laws and other formal modes of harassment, the Chinese often evaded their way into the United States through elaborate systems of collective misrepresentation.

Chapter 3 is precisely about “entry despite exclusion.” In UNITED STATES v. WONG KIM ARK (1898), the Supreme Court had held that Chinese born in the United States were citizens [*757] under the 14th Amendment. Moreover, “another loophole in the law . . . held that children of US citizens, regardless of birthplace, were eligible for citizenship and, thus, immigration. Taking advantage of this loophole, US citizens of Chinese descent would create fictive or ‘paper’ children whose kinship status could then be used by others who would be otherwise ineligible” (p.36). “At the most basic level . . . we find that Chinese immigrants manipulated the names and ages of immigrants and family members and took advantage of missing information to create kin where none existed.” (p.41).

Because immigration inspectors soon came to expect that all prospective Chinese entrants were lying, they developed elaborate systems of interrogation. Surely, they surmised, true kin would know the layout of their village, the number and order of children in the family, or whether they had kept a pet. In response, Chinese immigrants wishing to enter illegally developed even more elaborate fictive networks and relationships. The inspectors replied with still more interrogation. “The sum of this spiral was to fix, over time, the stories the Chinese had to remember about themselves and their ‘kin’ with immigration regulators” (p.60). Confiscated notes and letters were easily several pages long, sometimes containing the dullest minutiae.

But those who could successfully get in still found that they sometimes needed to repeat the same lies, or in some cases, live a lie. Having someone lie for you, even if you paid them for it, still created obligations, meaning that one might need to show up at another immigration hearing for another “relative.” “Extended family and other clansmen were necessarily involved in the sale of family slots and family histories and in the supply of witnesses” (p.65). In a strange way, it was like getting a new set of relatives: “Once established in the United States, relocated family members formed a new community that could help arriving immigrants meet their basic material needs as well as provide a family culture and ambiance” (p.66).

Inspectors who saw “members” of the same family repeatedly developed methods to determine who or was not a legitimate immigrant. Bureaucratic “shortcuts” were common: inspectors relied on early biometrics – the Bertillon system, for example, to measure body parts and thus verify identities. Documents were useful, until successful forgeries made them less reliable. And testimony or letters from white people could speed the entry of an immigrant, even though they did not necessarily speak directly to issues of identity. More importantly, though, there was the time-consuming task of comparing answers across witnesses and over time. “The coherence and uniformity of an immigrant’s answers would serve as a substitute for honesty” (p.71). Indeed, “the primary method of distinguishing legitimate from illegitimate claims by the Chinese was to carefully compare recorded statements taken during the interrogation process and to ferret out inconsistent statements” (p.105).

All of this deception had its consequences. “Chinese were forced to change their names, family histories, and [*758] personal identities to conform to immigration entry information. Moreover, they often lived their entire lives in conformity to these changes. Families were separated or joined depending on the needs of the immigration stories they told. The fictions they created for immigration purposes became part of the lived reality of Chinese life in the United States” (p.116). This is the heart of Lau’s argument, and in the set of cases she reports in detail, we get a strong sense of the unintended ways in which these immigration stories shaped people’s lives.

From 1957 to 1965, when the FBI implemented the Confession Program to find leftists among Chinese in the United States, many Chinese Americans revealed their “true” identities, and so revealed the true cost of maintaining fictions throughout their lives. For example, Mr. Lim was actually married with a child when he first landed, but he pretended to be single and the son of someone else for immigration purposes. After he entered, he returned to China, “married” the same woman again, petitioned for his wife, and then petitioned finally for his child, the same one that he had pretended not to have had when he first came to the United States. The inspectors pulled his original files and balked. How could he have such a daughter so old when he had claimed to have been single so long ago? The discrepancy meant that the daughter could not rejoin her parents; at the time of her father’s confession, “Lim Mee Hung continued to reside in Hong Kong with her paternal grandmother.” “Fiction, once officially documented, could overcome fact, turning fact into fiction” (p.125).

In the final sections of her book, Lau suggests several other legacies associated with the complicated immigration histories of the Chinese, and it is here that the book loses some of its force. For instance, Lau suggests, “while fear of detection and deportation cannot explain by itself Chinese isolation and the unique development of Chinatowns as organizations providing social and economic services, it seems like that such concerns led the Chinese to be wary of interacting with the greater population, especially with government agencies, and to develop alternative support networks” (p.135). It seems like it. Lau also notes that in surveys after World War II, most Americans still considered the Chinese inscrutable, foreign, clannish, and “not participatory.” Would these also seem to be related to the past? Again, it might seem so.

And as for the immigration service, was the sorting of Chinese immigrants the very experience that shaped it into the kind of regulatory agency that it became? In particular, Lau suggests, because these federal institutions expected to encounter persons who were lying and cheating, these very expectations became part of the institutional culture. “The practices and techniques employed by immigration officers came to form the fundamental basis for immigration regulation” (p.141). Moreover, “current immigration legislation codifies the presumption that all immigrants seeking to enter the United States do so under a [*759] veil of suspicion and may commit fraud. The burden of proof rests squarely on the immigrant to affirmatively prove that he or she falls within an accepted category for admission.” To this day, “the bar is set with the presumption to exclude rather than to admit” (p.155). Was this solely or chiefly related to Chinese Exclusion? It might seem that way.

For the most part, as a piece of socio-legal scholarship, Lau’s book succeeds in showing again that Chinese Exclusion shaped both the Chinese American community as well as the federal government. Still, as to whether Chinese Exclusion and subsequent practices of illegal entry shaped American public opinion about the Chinese, or shaped institutional practices and public law well after Exclusion – more than, say, nativism against Southern and Eastern Europeans, or against Mexicans before World War II – these are broader claims that can not necessarily be supported with the evidence presented in this volume alone. These claims tend to be distracting, perhaps stretching the evidence too much. They could be true, but Lau’s book would have been stronger had she focused on the detailed ways in which Chinese American families and communities were distorted by having to live within a law of exclusion. What is missing in the literature of Chinese immigration during the Exclusion period is more of that type of painstaking archival evidence. More of that – and less conjecture about what that evidence suggests – would have made for a much more powerful and original scholarly contribution.

CASE REFERENCES:
UNITED STATES v. WONG KIM ARK, 169 U.S. 649 (1898)

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© Copyright 2007 by the author, John S.W. Park.

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INVENTING HUMAN RIGHTS: A HISTORY

by Lynn Hunt. New York and London: W. W. Norton & Company, 2007. 272pp. Hardcover. $25.95. ISBN: 9780393060959.

Reviewed by Mark J. Harris, Jurisprudence and Social Policy, University of California, Berkeley. Email: mark [at] markjharris.net.

pp.753-755

Thinking Human Rights

Lynn Hunt tackles a breathtaking question in INVENTING HUMAN RIGHTS:

Given an 18th century world in which the subservience of Africans, women, the propertyless, and several more categories of persons was not only ubiquitous but also experienced as a reflection of nature itself, how could the idea of universal human rights, particularly those in the American Declaration of Independence and the French Revolution’s Declaration of the Rights of Man and Citizen become thinkable? After all, this was a revolution in ideas from those who directly benefited from the old world’s inequalities. Why did they, however imperfectly, dream of and aspire to create a world of universal equality?

Her answer is no less intriguing. The 18th century saw a profound moral transformation, through which human beings came to see themselves as autonomous, self-possessed creatures, and importantly, that other human beings were similarly autonomous creatures who deserved similar treatment. This shift was a psychological change, a new capacity of people to empathize across social boundaries. So where did this newfound empathy come from? The reading of epistolary novels, a newly popular narrative form of novel read through personal letters the characters send to one another. For example, Rousseau published in 1761, a year before the SOCIAL CONTRACT, an internationally popular novel: JULIE, or the NEW HÉLOÏSE, a tragic love story. Hunt writes, “Courtiers, clergy, military officers, and all manner of ordinary people wrote to Rousseau to describe their feelings of a ‘devouring fire,’ their ‘emotions upon emotions,’ ‘upheavals upon upheavals,’” (p.36) all evidence of a new capacity to identify with the plight of a dissimilarly situated human being. It was because of these novels, she argues, that large numbers of people understood that servants, slaves, the rich and poor, the foreigner and fellow citizen alike shared enormous depths of feeling and the capacity to suffer pain both physical and psychological.

Hunt also wants to convince historians to look at psychological changes within individual minds as a catalyst of historical change. I wish, perhaps, this theoretical argument could have been developed more fully, but to do so would have been a different book. A (perhaps overly critical) review taking this tack appeared in HARPER’S in the May 2007 edition. Sociolegal scholars have long been interested in this approach (legal consciousness, for instance), and many in our fields will find this part tantalizing. [*754]

INVENTING HUMAN RIGHTS begins with a puzzle: human rights’ claims of self-evidence. Self evidence, here, means “requiring no justification,” as in, “We hold these truths to be self-evident.” Except, of course, human rights are not self-evident; the claims themselves arise only in specific times and places. Furthermore, the meaning of who counts as human and deserving of human rights or what constitutes their breach is the stuff of great political conflict and continues to be so more than two hundred years later. This paradox of self-evidence is woven through the following five essays.

The most edifying chapter of Hunt’s book is the first, where she outlines the evidence to support her theory of reading-driven social change. For example, she describes studies of the contents of French speakers’ personal libraries and the dramatic rise in novel publication rates in the latter half of the 1700s, showing both that the reading public was voraciously interested in this new literary form and that the epistolary novel did have an “empathy effect” on readers. I am not a historian and am unqualified to decide whether this evidence meets historians’ standards, but to sociologists or readers with a sociolegal mind this evidence is intriguing – intriguing in the way that makes you wish you too could go ask her sources your own questions about the period. It is infectious. I have more than once lain awake at night wondering how I could find the time to see what other novels and ideas were on the shelves and minds of the 18th century public.

Chapter Two covers the contemporaneous abolition of judicial torture, a remarkable shift in public opinion and morality by any measure. Hunt believes this struggle was a facet of the new empathy which concerned itself in part with a new sanctity of the human body. Hunt takes us through changes in bodily attitudes in public behavior, architecture, portraiture, and novel writing, all describing a profound change in the perception of others’ pain at the time.

Chapters Three and Four are about how the writing of great declarations of rights, the American Bill of Rights and the French Declaration of the Rights of Man and Citizen, came to seem logically and politically necessary. The turmoil in Paris and the colonies produced general statements of principles which very quickly were applied in political debates to the specific positions of those socially inferior to the writers of these declarations – religious minorities (particularly Protestants and Jews in France) and nonwhites. Sadly for human rights’ advocates, the force of nationalism, particularly in Napoleon’s wake, diluted the universality of rights talk, and for two hundred years rights were seen as that which were guaranteed by the state.

The concluding essay argues that the forces of retrenchment, seeking new justifications for their exclusion of the less powerful, necessarily focused on biological difference. In a real sense, then, the forces advocating human rights opened the political space filled, in the end, by Hitler. Only that horror would reinvigorate the international discussion [*755] of rights’ universality, eventually taking form in the international human rights instruments of the United Nations system.

One facet of the book raises my sociological alarm bells, though it does not deserve the level of criticism it received in Joanna Bourke’s review in HARPER’S or will probably receive elsewhere. Hunt takes asides into biologism. She believes there are biological bases for empathy, in particular the kind of empathy that must have underpinned this moral shift in the late 1700s. It is true that this biology is unnecessary for her larger argument, as Bourke notes. There need not be any particular structure in the human brain for the ideas of novels to have a social effect. And Bourke is also right to insist that, logically speaking, there could be a third, unidentified causal vector that drove the changes in morality, law, and for that matter, the writing of epistolary novels. Such is the nature of historical argument, however; one follows the evidence always in the knowledge that some further discovery or excavation may change the scene.

From a different perspective, though, both counterarguments can only be taken so far. Social scientists and humanities scholars should take seriously the new neuroscience, for in the end all human behavior has a biological basis; the question is rather to what degree that basis is deterministic or open-ended. I think Hunt was brave to bring it up at all, given the reaction she surely knew most social scientists, including myself, would instinctively have.

INVENTING HUMAN RIGHTS is published by Norton, and is clearly meant for the general reading public, not just students of law and society. For undergraduate courses in legal history or the origin of legal ideas, it makes an excellent read, particularly the introduction and the first chapter. I would imagine it would be a fine opener for a course in American constitutional law or an undergraduate course in legal history. Graduate students in legal history will find the bibliography helpful.

REFERENCE:
Bourke, Joanna. 2007. “Sentimental Education: The Invention of Human Rights.” HARPER’S MAGAZINE 89-93 (May 2007). http://www.harpers.org/archive/2007/05/0081518 (subscription required).

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© Copyright 2007 by the author, Mark J. Harris.

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A FOUCAULDIAN APPROACH TO INTERNATIONAL LAW: DESCRIPTIVE THOUGHTS FOR NORMATIVE ISSUES

by Leonard M. Hammer. London, UK and Burlington, VT: Ashgate Publishing, 2007. 162pp. Hardback. $99.95/£55.00. ISBN: 0754623564.

Reviewed by Victoria A. Redd, The Journal Offices, University of Florida Levin College of Law. Email: reddva [at] law.ufl.edu.

pp.748-752

In law school classrooms and international conferences (where lawyers, scholars, and philosophers gather), international law and its complicated politics are often discussed. A common question is: How do we maneuver the intricate network and its many influences on international law?

This topic is not necessarily among one of the favorites. One might be better served to spend time talking about domestic policy or copyrights. There is no sure fire way to be successful in the international arena, but there are many schools of thought about negotiating its politics. Yes, there is the view of David Kennedy (2000) who believes international law consists of complicated interactions between groups of individuals pursuing many projects. Then, there is Martti Koskenniemi (1990) who has a critical approach to international law believing basically “law is politics” and that it is finding a solution considering the current circumstances. Jack Landman Goldsmith and Eric A. Posner (2005) believe that international law involves the state promoting its interests to further its power and welfare. There are many angles to this topic of international law; the above scholarly views are just a few. Is there a rule of thought that ties all of this together?

In the nineteenth century, public international law was developed after the two world wars, when the League of Nations became the United Nations and the U.N. Charter and Geneva Conventions were established. These foundations are well and good, but in the private international law arena, one is dealing with individuals and not states, mostly in terms of jurisdictions, where a case will be heard and how this affects the outcome.

To make it even more complicated, add overseas corporations with unlimited resources, and before you know it, you have disputes where enforceability is in question. There are many different entities (public and private) involved with various motives and interests, some altruistic (working towards humanitarian needs) and others more selfish. How can one understand and decide whose interests should be served or recognized, especially if an entity may not actually meet the requirements to be a state and is denied its rights in some way? Recognition in itself is important because it gives newly formed states the status it needs to become part of the international community. To take it one step further, how does this recognition actually influence international law? Does this recognition lead to an outcome of certain norms or standards given by international law? Are there clear rules [*749] to follow, an approach that leads to a compromise for all involved?

For those who are unraveling the intricacies of international law, it will serve them well to consider Leonard M. Hammer’s well-researched book, A FOUCAULDIAN APPROACH TO INTERNATIONAL LAW: DESCRIPTIVE THOUGHTS FOR NORMATIVE ISSUES. Although some may shy away from this lengthy and hard to say title, implying the book’s complexity, it contains a lively discussion of various views of international law. Hammer, Senior Lecturer at Zefat College, Israel, has taken several aspects of international law and, using the late Michel Foucault’s philosophical perspective on social institutions, helps us to embrace each with a clearer approach of its questions and possible solutions. Hammer has also included a well-written concise conclusion to the book which he calls a “starting point . . . offer[ing] a framework by which one can refer to Foucault” (p.129) to examine other matters of importance in international law.

Hammer chooses to address five situations in international law using Foucault’s framework to examine each. He starts with “recognition of states,” focusing on the process that led to the decision for an entity to be recognized. His second situation is “customary international law,” focusing on the process or events that led to the law’s formation. Third, he chooses “the human right to freedom of religion or belief,” considering the process that social interaction and power play in creating the importance of various religions and beliefs. The fourth situation is “human security,” focusing on the process of the relationship between society and the state’s part in providing its security. Last, Hammer addresses the situation of “non-governmental organizations,” using the Foucauldian approach to assess the process or role of how the non-governmental organization functions in society and influences the state.

The problem with many views of international law is that there is no direct way to analyze a given situation, but only a tendency toward acceptance. Foucault’s framework provides a tool to identify and analyze the interactions in conflicts that culminate in change. This, in turn, provides a context to examine international law. It does not necessarily provide answers, but it helps to find the important questions so that one can at least consider a compromise or solution to the problem.

Hammer begins his book by telling us his purpose is “to offer alternative conceptions.” He stresses that Foucault is “a means of understanding and enhancing international law.” Because Foucault looked at the chaos of a situation instead of trying to find an answer, he asks us not to dismiss his methods, but rather to allow his methods to cause us to think in a different way with a new perspective. He explains the ambiguity in international law, its inconsistencies, and lack of a definite network. His example is an international law that may result from a treaty drawn up as an agreement between two or more states, but each state will interpret the treaty in a way that best suits its own [*750] interests. This is the crux of the problem with international law. How is a treaty to be enforced or regulated? What part does this play, if at all, in international law?

Hammer’s main goal here is to help us through the maze of international law and the many theories about it. He wants us to get through the mess and understand the conflict that is going on amidst the chaos. He debates that, although Foucauldian thinking does not solve the problem, it allows one to perceive what the actual problem or conflict is. In his conclusion, he tells us that using Foucault’s framework is important, but it will “open up doors” in other frameworks that are outside of the state’s interests such as indigenous peoples, partisan politics, and other discontinuities in society. Hammer also suggests that Foucault’s framework could be used to examine the problems of rights protection for migrant workers and the International Court of Justice. Changing one’s way of thinking from the norm or subjective interpretation to consider the power struggles instead can lead to a possibility for understanding the problem with a new perspective. But, Foucault’s attitude toward law may be a dilemma for scholars who are pragmatic.

At first glance, it would appear that there is a conflict in using Foucauldian thinking. It is unconventional to consider the chaos in a situation rather than to consider the main actor in the drama. International law’s main actor is normally the state or government involved in the given situation. It is not normal for a law or treaty to speak regarding what the citizens or other organizations in the government will do. This is the complete opposite of how Foucault felt. He evaded the law because it put government above the people. This attitude was a problem and thought to be merely surveillance of the government. Foucault’s methods have been eliminated from the legal system. Hammer breaks the schools of thought down into the neo-realist, who asks “Why do we have norms at all?,” the neo-liberalist, who asks “How do norms operate outside of a cooperative context?,” and the deconstructionist, who “does not fully address the notion of obligations implied by norms.”

These approaches to international law leave us with a need to answer the question but no way to interpret it in order to get to the solution. Hammer suggests that Foucauldian thinking, e.g., “[a]lternative approaches to power,” is the answer. We can divide the issues that constitute the state’s influences and recognize external players in the conflict as well. Therefore, a Foucauldian approach keeps us from omitting critical parts of international law and feeling as if there is futility in all of it.

Hammer explains to us that, in refusing to use subjective views such as democracy, capitalism, and western methodologies to look at international law, we are opening our eyes to other possibilities and ideas. Liberal tradition has made claims that the democratic system is the most appropriate. Hammer points out that Foucauldian thinking does not start with this assumption. It does not dismiss concepts that are opposed to democracy. Once we get past what we think a legitimate government system is, we broaden our realm and [*751] scope of understanding. Lawyers normally seek to have some legal conviction in their decisions. Hammer declares that we must try other approaches to the problems, rather than trying to solve things in the same way and never getting to the solution. In expanding our options, we are able to reach conclusions that we never considered in the first place. Instead of deconstructing or subverting the meaning of the system, we are trying to find a compromise that will allow the system to run better and address the demands of all involved. This includes various views and responds to the many influences of power that are within the given situation. Only when doing this, can we recognize the interplay between the relationships in international law.


Another explanation of Foucauldian thinking would be that we are not looking for two opposing forces to define the problem. Rather, we are looking at the elements or pieces that make up the puzzle and yielding to each its ability to exist. Hammer admits that Foucauldian thinking is “open-ended,” creating more questions as one digs through the shifting ground of international law. This, he leads us to believe, is more gratifying because we glean more information about the problem. which can possibly take us one step closer to a compromise. He believes that the Foucauldian approach is better than going around in a dichotomous circle by dwelling on narrow approaches, which he calls an “outmoded statist approach,” or which treat international law as a functioning system that leads to global order. However, neither of these approaches reveals the change taking place at the time. Many of the changes that invade international law include religion, ethnicity, and national differences. Hammer suggests that these differences lead to disharmony in a system and many times yield a stalemate, so another approach is needed to get past this.

Hammer does not try to convince us that the Foucauldian approach is the answer to the problems involved in international law. But he does suggest that, if we will at least consider using the approach, we can get out of the rut that is keeping us at a standstill.

The Foucauldian concept, of course, is difficult to assess. How can one measure whether an approach actually works, especially when it sparks so many questions? Nonetheless, Hammer believes so fully in this approach that he has presented several of the book chapters at conferences and lectures about Foucault and the law. Anyone dealing with international law and politics should consider contemplating the ideas and reflections on Foucault that Hammer has presented in this book.

REFERENCES:
Kennedy, David. 2000. “When Renewal Repeats: Thinking Against the Box.” 32 NYU JOURNAL OF INTERNATIONAL LAW & POLITICS 335-500.

Koskenniemi, Martti. 1990. “The Politics of International Law.” 1 EUROPEAN JOURNAL OF INTERNATIONAL LAW 4-32. [*752]

Goldsmith, Jack L. & Posner, Eric A. 2005. THE LIMITS OF INTERNATIONAL LAW. Oxford University Press.

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© Copyright 2007 by the author, Victoria A. Redd.

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ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW

by Mark A. Drumbl. New York and Cambridge: Cambridge University Press, 2007. 320pp. Hardback, $80.00/£45.00. ISBN: 9780521870894. Paper. $29.99/£17.99. ISBN: 9780521691383. eBook format. $24.00. ISBN: 9780511282652.

Reviewed by Daniel C. Turack, Capital University Law School, Columbus, Ohio. Email: DTurack [at] law.capital.edu.

pp.745-747

Mark Drumbl considers the three most atrocious crimes in international law to be genocide, crimes against humanity and war crimes, and he looks at how the perpetrators of these crimes have been punished, and how they might have been made to answer for these heinous crimes that are labeled as extraordinary international crimes. ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW examines the processes employed by the various international courts, such as the Nuremberg and Tokyo Tribunals following the Second World War, the two ad hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda ((ICTR), and the International Criminal Court (ICC).

Drumbl’s study also incorporates domestic courts’ enforcement of international criminal law in the territory where armed conflict occurred, exercising territorial or national jurisdiction, or the universality principle, as well as the Gacaca system operating in Rwanda. Moreover, the coverage also includes domestic courts of states enforcing international criminal justice where the acts in question were not perpetrated, but where the perpetrator is located. Furthermore, the domestic justice system also covers the internationalized domestic courts in host countries, such as the East Timor Special Panels, the hybrid model in Kosovo and the Special Court for Sierra Leone (SCSL).

The focus is an empirical examination of the sentencing by these local, national and international institutions. His methodology is to review the positive legal instruments, the sentences and sentencing jurisprudence. He is asking whether the extant methods of sentencing actually attain the affirmative objectives of punishment. There appears to be a paucity of evaluative research on punishment and sentencing practices of international tribunals. The distinctions between international and national institutions’ handling of this phase of criminal justice are far from watertight. But Drumbl finds their practices to be “confusing, disparate, inconsistent and erratic” (p.11). International criminal law is shown to largely borrow penological rationales from western criminal law. Due process rights, which apply to persons accused of common crimes, are shown to apply to accused of extraordinary international crimes.

In considering the sentences handed down in the first trials at Nuremberg, and the Tokyo trials, it appears that judges had absolute discretion, and both Tribunals did not elucidate on guidelines [*746] although more consideration was given to mitigating factors than aggravating factors. Limited discussion of sentencing rationales occurred at subsequent Nuremberg proceedings. The Tokyo Tribunal was reticent in addressing sentencing. Subsequent trials of Japanese war criminals were held at the national level that took the form of military courts-martial. Drumbl finds the textual bases for punishment in the ICTR and ICTY to be “thin” (p. 50), while the constitutive documents of the SCSL, the East Timor Special Panels and Kosovo Special Panels to be “laconic” (p.50). He reviews their sentencing practices. The jurisprudence of the ad hoc tribunals discloses lists of the aggravating and mitigating factors considered, and the place of plea bargains. Thus far, it appears that vagueness in the “positive law frameworks enables judges to access a wide range of evidence in determining sentence,” and international criminal sentencing practice remains “open-ended”(p.66).

In looking at punishment of international crimes in national and local courts, Drumbl provides excellent concise background on how and when these courts began to undertake such cases, and whether there were any shortcomings. Some of his findings are based on documents not readily available, such as the Report of the Organization for Security and Cooperation in Europe, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina (2005). He does single out a few cases for specific comment, such as those involving Eichmann in Israel, Barbie, Touvier and Papon in France, and, Priebke in Italy. In the main, Drumbl concludes that “[p]enological goals and modalities of sanction are more diverse at the national and local levels than they are internationally. . . [and] sentencing is an afterthought and poorly conceptualized” (p.121).

Drumbl asks whether association with western law causes an imbalance or injustice in international tribunals in holding perpetrators to these extraordinary international crimes accountable for their wrongs. He alludes to many factors that include restorative initiatives, indigenous values, qualified amnesties, the needs of victims, reparations, distributive justice, and the like, while the accountability process “remains narrowly oriented to incarceration following liberal criminal trials” (p.147). Stated values of the punishment of extraordinary international criminals are principally retribution, deterrence, and expressivism. Drumbl measures whether the sentencing modalities at the local, national and international levels attain these aspirations and concludes that retributive and deterrent goals fall short, while there is greater success in reaching expressive goals among the general public. I particularly like his evaluation of management strategies in comparing the sixty-six count ICTY trial of Slobodan Milosevic, which of course never reached a conclusion due to the death of the accused, and the decision to try Saddam Hussein and others before the Iraqi High Tribunal, in a series of mini trials, for crimes against humanity and war crimes. The first mini-trial involving the killing of 148 residents of Dujail in 1982, brought a death sentence [*747] for Saddam Hussein, and he was executed shortly thereafter.

In Drumbl’s view, international criminal law is currently implemented through prosecution and incarceration as the formula for promoting justice. He offers proposals that would augment reintegration and restoration so that international criminal law would be only a part of the total justice picture. He would encourage diverse multiple forms of accountability so that the different legal orders ultimately realize penological goals. To overcome the shortfall that currently exists, Drumbl ends with a series of proposed adjustments that would alter the legal institutions as we know them, and subsequently, international jurisprudence.

Drumbl provides a good index to link the reader to the text and endnotes. All of the footnotes appear as endnotes with reference to associated pages. Personally, I like to read the footnotes at the bottom of the page where I have read the text instead of being diverted elsewhere, which I find disconcerting. The research is impeccable, and the writing gifted.

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© Copyright 2007 by the author, Daniel C. Turack.

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COMPETITION POLICY AND LAW IN CHINA, HONG KONG AND TAIWAN

by Mark Williams. Cambridge: Cambridge University Press, 2005. 492pp. Hardback. £69.00/$110.00. ISBN: 9780521836319. eBook format. $88.00. ISBN: 9780511128592.

Reviewed by Yu Xingzhong, School of Law, The Chinese University of Hong Kong. Email: xzyu [at] cuhk.edu.hk.

pp.742-744

On August 30, 2007, the Standing Committee of the National People’s Congress, China’s top legislature, voted on and eventually passed its long-awaited Anti-Monopoly Law, which is expected to play an important role in China’s transition towards a market economy. The law, containing eight chapters and 57 provisions, bans price-fixing, collusion, excessive market concentration and related practices by private and state-owned enterprises, and provides for investigation and prosecution of banned practices, while protecting monopolistic agreements that promote innovation and technological advance.

The making of this law did not seem to be an easy job: it required more than thirteen years, and in the process a number of drafts were introduced. It, in itself, presents an intriguing history of contemporary Chinese politics and economic development driven by the struggles among different interest groups, which tends to be quite difficult to understand, especially for Western observers. For instance, as a transitional economy, moving from a planned to a modern market economy, China is still a society in which the government controls many aspects of everyday lives, politically and economically. Will the Chinese government give up its control of the market? How would the government treat the relationship between private businesses and state-owned enterprises when China’s constitution still gives priority to public ownership? Mark William’s book, COMPETITION POLICY AND LAW IN CHINA, HONG KONG AND TAIWAN, provides answers to these questions. The book, well-researched and insightful, is a good reference for understanding China’s economic reform in general, and the Anti-Monopoly Law, its various drafts, and the debates over these drafts in particular.

Given many weaknesses of the Chinese economic system: weak financial discipline, regional fragmentation, limited success in corporate governance reform, ambiguous property rights (even with the newly promulgated Real Property Rights Law), uneven competition across sectors, poorly enforced laws and regulations, the competition law, as Williams argues, is clearly no panacea for China’s economic problems, but it might form a valuable component in the ongoing reformation of the Chinese economic system, if implemented fairly and competently. While the law could be seen as a move towards a more robust rule of law, it could also be seen as a mere instrument for the government to curb local protectionism as well as potential [*743] commercial domination by foreign enterprises on a short term basis.

William’s book, of course, does not only address issues relating to competition policy and law in China; it in fact provides a comprehensive guide to the competition regimes of China, Hong Kong and Taiwan, which he calls Greater China. The book, containing 11 chapters, can roughly be divided into three parts. The first part introduces the methodology, reviews general perspectives on competition law and policy and the experience of states adopting competition law, and lays out the theoretical and international background for discussing Chinese efforts and concerns in this field. The second part, Chapters 4-9, addresses competition regimes in Greater China. While China, half socialism, half capitalism, is on its way to constructing a competition law regime, Hong Kong, a sort of paragon of capitalism, remains indifferent and even hostile to competition law. Taiwan, however, has already successfully adopted such a law regime. This phenomenon can only be explained on the basis of the political and economic experience each of these three Chinese-speaking jurisdictions has encountered. Williams does that in the third part, and indeed, throughout the whole book.

In dealing with China, Williams traces China’s political and legal history in great length and depth so as to present a whole picture of its competitive policy and law within the larger context of social and economic development. The book offers sophisticated discussions on opportunities and difficulties associated with constructing a comprehensive competitive law regime within a socialist political and legal setting, while recognizing the efforts China has already made in that direction. Williams recognizes the importance of such a law regime for the healthy development of China’s economic and legal systems and argues very convincingly that sooner or later such a law regime will have to be put in place. The adoption of the Anti-Monopoly Law by the Chinese national legislature confirms Williams’ prediction and makes the book even more relevant for the study of Chinese law and legal system worldwide.

The Taiwan experience is treated as a successful story of adoption of competition law by a relatively developed economy and could serve as a useful case study for transitional and developing states that wish to succeed in creating and implementing a pro-competition policy and a legal regime to enforce it effectively. Taiwan has a well-developed and comprehensive competition law system that has been in place for more than 14 years. Despite its seemingly static bent, apparently skeptical of the benefits of economic competition, Taiwan’s once authoritarian political structure in fact did not present much hindrance to its economic structures.

Hong Kong’s case presents a challenge to the idea and practice of a competition law regime. As a free port with trade-based services making up the bulk of its gross domestic product, a low tax and spend policy, efficient and uncorrupt public administration and the rule of law, Hong Kong has been seen as a most [*744] successful market economy, which, interestingly enough, adopts an indifferent and even hostile attitude towards the making of such a law. Antitrust-type rules are considered unnecessary and may even be harmful to the territory’s success. Williams notes a difference between externally traded sector and the non-trades domestic segment in Hong Kong’s economy. The non-trades segment is dominated by a small number of diversified, family-owned conglomerates based on property. Over the years they have consolidated their grip on other sectors, from private monopolies in electricity and gas, to tight control of ferries, buses, the port, retailing and telecommunications. High concentration ratios and intra-firm trading create barriers to entry in many markets, and incumbents in some sectors have used exclusionary and exploitative abuses of market power to maintain pre-eminence. At least for this part of the economy, anti-trust rules are obviously needed.

Methodologically, Williams’ analysis is inherently comparative: capitalism v. socialism, sophisticated market v. developing market, and common law v. civil law. He is aware that, due to the nature of competitive law and policy in general, such a study calls for interdisciplinary approaches rather than employing traditional legal analysis. As a result, the book draws on inspirations from many fields and disciplines and represents a very successful multi-disciplinary study. Williams is particularly keen on grounded theory used in empirical studies – not employing any readily available theoretical assumptions in the study, but extrapolating from collected insights and explanations in the process of study. This of course is a very flexible, rational and pragmatic methodology, which could prevent dogmatic and mechanical interpretations of complex social, legal and economic phenomena. The downside of this approach is that it might not achieve the theoretical importance that such a study is expected to reach.

REFERENCES:
Chen, Albert. 1993. “Competition Law and Hong Kong.” 23 HONG KONG LAW JOURNAL 412-421.

Jiang, Xiaojuan. 2002. “Promoting Competition and Maintaining Monopoly: Dual Functions of Chinese Industrial Policies During Economic Transition.” 1 WASHINGTON GLOBAL STUDIES LAW REVIEW 49.

Jorde, Thomas, and David Teece (eds). 1992. ANTI-TRUST, INNOVATION AND COMPETITIVENESS. Oxford: Oxford University Press.

Liu, Lawrence S. 2002. “Fostering Competition Law And Policy: A Facade of Taiwan’s Political Economy.” 1 WASHINGTON GLOBAL STUDIES LAW REVIEW 77-160.

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© Copyright 2007 by the author, Yu Xingzhong.

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STRATEGIC SELECTION: PRESIDENTIAL NOMINATION OF SUPREME COURT JUSTICES FROM HERBERT HOOVER THROUGH GEORGE W. BUSH

by Christine L. Nemacheck. Charlottesville: University of Virginia Press, 2007. 192pp. Cloth. $35.00. ISBN: 9780813926148.

Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University. E-mail: martinek [at] binghamton.edu.

pp.737-741

When presidents nominate an individual to serve on the Supreme Court of the United States, people take notice. This is certainly to be expected given the important policy-making role of the nation’s highest court and the far-reaching implications of the Court’s rulings for the economic, legal, political, and social systems. But focusing only on those who are ultimately confirmed to the Court is a bit like focusing solely on the tip of the proverbial iceberg. To be sure, the individuals who successfully ascend to a seat on the bench are the ones who partake of the Court’s authority and contribute to the law as etched in Supreme Court decisions. But a full understanding of those on the bench and what they do necessitates an understanding of the presidential decision-making process that got them (and not someone else) there. How are qualified candidates identified, and what is the sorting process that winnows the pool of qualified candidates down to a single nominee? It is to these questions that Christine Nemacheck turns her attention in STRATEGIC SELECTION: PRESIDENTIAL NOMINATION OF SUPREME COURT JUSTICES FROM HERBERT HOOVER THROUGH GEORGE W. BUSH. In the process of answering these questions, Nemacheck crafts a book that is both highly readable and highly informative.

The introductory chapter quickly dispels any doubts about just how intriguing the nature of the presidential selection process can be. The author does so by recounting the almost soap opera-like drama that accompanied Chief Justice Rehnquist’s anticipated retirement and unanticipated death, as well as Justice O’Connor’s retirement, and the paths by which their replacements came to the bench. While this narrative demonstrates the timeliness of understanding the presidential selection process, Nemacheck also tells the tale of Justice O’Connor’s original selection in her introductory chapter. In doing so, she brings to the fore the seemingly idiosyncratic nature of the presidential side of the Supreme Court selection process, thereby setting the stage for the book’s later chapters in which Nemacheck reveals the order underlying the apparent disorder.

The introduction is followed by a chapter that provides a succinct overview of the Supreme Court nomination process. This chapter introduces readers unfamiliar with the selection process to some of its important actors (e.g., the American Bar Association) and key features (e.g., presidential efforts to create vacancies on the bench). The real substance of the book, however, begins with Chapter 2. It is in this chapter that Nemacheck [*738] develops the theoretical framework on which she relies in the remainder of the book. Fundamental to this framework is the notion of uncertainty, which has several manifestations. Presidents are uncertain about how their nominees will act once confirmed to a position on the bench. In the language of principal-agency, presidents (conceived of as principals) have virtually no means to address shirking by their nominees (conceived of as their agents) once they are on the bench and, as a result, presidents are interested in “try[ing] to pick those whose future behavior on the bench is most certain. In short, presidents want to avoid surprises” (p.31). Presidents face further uncertainty in the confirmation environment. Senatorial advice and consent is far from a given, even when the president enjoys the benefit of a Senate controlled by his own party.

Thus, presidents are faced with simultaneously minimizing two kinds of uncertainty. To do so successfully, they “must act strategically within political and institutional constraints” (p.35). In other words, presidents must think prospectively to identify candidates that are as close in ideological space to themselves but can survive the senatorial side of the process. One way presidents can enhance the likelihood of making such successful forecasts is by paying attention to signals such as congressional endorsements of prospective nominees.

An especially noteworthy feature of this chapter is her extended discussion of influences in the selection process that are beyond the ken of her book: interest groups and, to a lesser extent, sitting justices. Every analysis has its limitations; the nature of the social science enterprise makes this inevitable. Best practice, however, dictates that scholars be transparent about any omissions or limitations, permitting readers to make informed decisions about their significance for the inferences drawn. Nemacheck does so here, and her frankness on this point helps to make a persuasive argument that, for the purposes of her study, ignoring the role of interest groups in the presidential selection process is reasonable and does not compromise her findings.

In the third chapter, the author provides a discussion of how she went about constructing the data that serves as the basis of the empirical analyses that are at the heart of the remainder of the book. The short list – that is, “the list of individuals under serious consideration for appointment to the Court” (p.55) – is conceptually easy to grasp but empirically difficult to measure. Presidents have not been helpful to future researchers: with rare exception, presidential papers simply do not present tidy, self-contained short lists. This is where Nemacheck’s extensive archival research pays off. Through a painstaking review of presidential papers, Nemacheck constructed (or, more accurately, reconstructed) presidential short lists using notes, internal memoranda, correspondence, and diaries contained in those presidential papers. Given the nature of the materials from which Nemacheck drew, another scholar using the same materials might construct slightly different short lists. But Nemacheck documents her choices [*739] carefully, and the decision rules she employed are sound. It is hard to imagine anyone having a serious quibble with the author over the content of the short lists she pulled out of the presidential papers.

The first empirical analysis appears in Chapter 4. The focus in this chapter is on the ability of the president to control the agenda in the construction of the short list. Presidential control in the process of staffing the Supreme Court bench is conditional, of course, in that presidents cannot make unilateral decisions but, instead, share the constitutional authority to fill vacancies with the Senate. Nemacheck takes what I consider to be a non-obvious but quite clever approach to investigating the conditional nature of presidential control in this process. In particular, she examines the willingness of presidents to include candidates endorsed by congressmen on their short lists. As her statistical analysis demonstrates, presidents are m