FORGIVENESS, MERCY, AND CLEMENCY

by Austin Sarat and Nasser Hussain (eds). Stanford, California: Stanford University Press, 2007. 256pp. Cloth. $65.00. ISBN: 0804753326. Paper. $24.95. ISBN: 0804754443.

Reviewed by Charles F. Jacobs, Department of Political Science, St. Norbert College. Email: charles.jacobs [at] snc.edu.

pp.523-529

In the early winter of 2007, Gerald R. Ford, the nation’s 38th president and first unelected chief executive, died at the age of 93. His passing offered an opportunity for historians, political commentators, and pundits alike to reevaluate the general legacy of the Ford presidency and to analyze, again, his specific decision to pardon his predecessor, Richard Nixon, for any criminal acts related to his participation in the Watergate scandal. Ford certainly faced numerous political quandaries when considering granting Nixon’s pardon. Of equal concern was the legal implication of such a decision. Relying on a decades-old United States Supreme Court decision, Ford and others in his administration took the position that an executive pardon not only exempted an individual from punishment, but also served as a personal recognition of guilt when the wrongdoer accepted the grant of clemency (BURDICK v. UNITED STATES 1915). The pardon, offered just one month into Ford’s tenure in office, attracted significant criticism inside the Beltway as well as from the public, whose approval of the newly installed president dropped more than twenty percent in a single week (Greene 1995, at 53). Critics suggested that Ford had moved too quickly in absolving Nixon, arguing that no pardon should be granted until the nation comprehended the full scope of the former president’s participation in the scandal.

These questions were part of a broader theoretical debate raised implicitly during this national discussion concerning the place of the pardon power within a legal system. Should pardons be awarded? What does a pardon confer upon the recipient? What acts or actions are excused by the executive grant? Is the acceptance of the pardon an implied admission of guilt? These larger questions related to pardons, clemency and due process are the subject of the chapters of Austin Sarat’s and Nasser Hussain’s edited volume entitled FORGIVENESS, MERCY, AND CLEMENCY. The editors offer the work of the contributors as an attempt to answer a broad range of questions regarding concepts that often lack clear or complete definitions.

At its most basic level, the authors pursue insight into the very meaning of forgiveness, mercy, and clemency. Are they synonymous terms or do they have unique applications and consequences in the legal system? To what, or whom, do the concepts apply? Do the terms apply to actions or attitudes? Finally, what connection do they have to religion and divinity, and is this connection appropriate? “The purpose of Forgiveness, Mercy, and Clemency,” suggest the authors, “is to map the terrain on which such questions might be addressed; to examine various registers on which to chart the relations among [*524] forgiveness, mercy, and clemency; and to understand their place in our lives and the society in which we live” (p.1). In conducting this review, the individual authors and editors explore the enigmatic relationship the concepts have with systems of law and the exercise of power by executive authorities. Forgiveness, mercy, and clemency exist as the square pegs that fit poorly, if at all, in the round world of equality and the rule of law. Clemency, as they note, is an oxymoron of legal theory. It is “’legally sanctioned alegality’” or “lawful lawlessness’” (p.6). This indeterminacy and the quixotic role the concepts play within law, suggest the editors, injects into the “fabric of legality” an ambivalence and instability “that neither jurisprudence nor legal theory can fully resolve” (p.7). It is this troublesome aspect of the law that forms the basis of the individual chapters in a volume that explores the compatibility of equality and the rule of law with the absolution of wrongdoing outside of the normal strictures of the legal system.

This investigation begins with Carol S. Steiker’s piece “Tempering or Tampering? Mercy and the Administration of Criminal Justice.” She poses two questions concerning the role of mercy. Theoretically, Steiker asks if there exists a reasoned argument for the application of mercy. More pragmatically, she wonders about the impact of such an application on the institutions within a system of criminal justice. To address these issues, she reviews a number of challenges to, and explanations for, the use of mercy. This begins with what she dubs the skeptical view of mercy. Those who argue from this position believe that there exists no place for mercy in the criminal justice system. In lieu of a mechanism for remedying errors, skeptics propound the development of a theory of just punishment that avoids, or at least mitigates, arbitrary decisions made by actors in the system. The difficulty with this stance, as Steiker notes, is the absence of a consensus regarding the existence of a single theory of just punishment and the ability for such a theory to accommodate the real possibility of the need for mercy beyond the traditional bounds of criminal justice apparatuses. This apparent weakness brings challenges from at least three intellectual camps, argues Steiker. First, she notes a camp that believes the idea of mercy can be reconciled with the concept of justice. The second group claims that there exists no common measure for justice and mercy, and hence the two must exist in an exchange relationship. The last group of contrarians dismisses the skeptics out of hand and instead offers alternatives to this vision. Steiker entrenches herself among these thinkers, arguing that “both retributivism and social welfare theory have predictable biases toward too much punishment” (p.30). Her position is bolstered by a view of mercy as a virtue that exists to moderate the extant harshness in contemporary paradigms of punishment. While not completely sanguine about the possibility of an error free application of mercy, she certainly suggests that there exists the possibility that discretion can be restrained in such a way that it comports with the demands of fairness and equality. [*525]

Daniel T. Kobil offers an additional dimension to the problem of mercy in his piece through an investigation of the application of mercy in clemency decisions. Kobil suggests that clemency, at least in contemporary interpretation, is perceived as a tool for achieving justice and equity in meting out punishment in systems based primarily upon notions of retribution and deterrence. Mercy, however, is the absolution, or the reduction, of what is owed to society based on benevolence or compassion and, unlike clemency, emphasizes purposes such as rehabilitation and reconciliation. Despite the apparent incompatibility of these views, Kobil argues, a case can be made for permissible uses of mercy-based clemency. The author forwards two justifiable bases for the use of mercy in clemency decisions. The first, which Kobil calls the expediency rationale, is a throwback to monarchical political structures when leaders employed clemency to entrench power and display the honorable motives of the ruler. Such a position, argues Kobil, is misplaced in modern representative government where personal aggrandizement by leaders is so often frowned upon. The second argument for mercy-based clemency he titles the false dichotomy rationale, a justification grounded in the belief that justice may be served by the judicious use of mercy. Kobil recognizes that this latter position faces significant challenges in a criminal justice culture dominated by arguments for retribution. Nonetheless, he offers a number of justifications for the use of mercy even in the current climate of harsh punishment, including instrumental and expressive benefits. For the former, Kobil points to medical studies that indicate health benefits accrue to individuals who are capable of showing mercy. That tangible benefit, he argues, might extend to the general community through a generalized social good. A second instrumental benefit is the possibility of lower rates of recidivism by those who receive grants of clemency. Absent the ability to quantify these instrumental gains, Kobil claims that any argument for the application of mercy must be made utilizing expressive benefits. Mercy, he suggests, demonstrates the strength and resilience of a community and its ability to show compassion and humanity. It is upon this foundation that society might be convinced of the utility of the appropriate application of mercy-based clemency.

In “The Merciful State,” Linda Ross Meyer offers an analysis of the authority to pardon and how such a power meshes with the democratic state and the rule of law. To make the case that the pardon deserves a place in institutions of democracy, she identifies instances when the pardon authority is commonly exercised. Among these are pardons as equity, employed when the punishment is perceived as fundamentally unfair; pardons as peace that exist to reconcile communities in the aftermath of revolution or rebellion; pardons as allegiance that aid in the process of connecting the offender and the victim in the resolution of the offense; and pardon as compassion utilized to exempt some from punishment based on extraordinary circumstances or conditions. Meyer identifies these four categories as reflecting issues internal to the case. A [*526] fifth category, extrinsic pardons, is identified instead by external matters. These pardons are granted for reasons unrelated to the specific circumstances of the offense or punishment. Finally, Meyer offers a review of what she deems hard cases. These pardons are not based upon any of the categories outlined above and instead are often granted for random, even inexplicable, reasons. This catalogue of pardons serves both to identify the qualities of the merciful state and also as a foil for those who argue in opposition to the use of compassion by government. The misapplication of the pardon power, critics contend, undermines republican principles by diminishing culpability, weakening the character of equality and undermining democracy itself by ignoring the wishes of majorities expressed through criminal law. Meyer utilizes her taxonomy and the critics of mercy decisions to defend the use of compassionate pardons. Much like the other authors in this volume, she is careful to recognize the inherent danger in offering the pardon power to government actors. But the pardon, she argues, is not antithetical to law itself, but instead recognition of the potential fallibility of law and those charged with executing it on behalf of the public. Mercy serves as a counterpoise to the worst characteristics of a hyper-egalitarian retributive system that makes no distinction among lawbreakers, the acts they commit, and the circumstances surrounding the offense.

Meir Dan-Cohen approaches the problem of forgiveness, mercy, and clemency from a tack slightly different from others in this volume. Rather than focusing on problems related to democratic theory and practice, Dan-Cohen investigates the role of the offender and the impact of repentance, forgiveness and pardon on perceptions of a person’s transgressions. In “Revising the Past: On the Metaphysics of Repentance, Forgiveness, and Pardon,” the author reexamines what he perceives to be a simplistic treatment of this issue in the literature. The central question that guides the investigation is: “How do the revisionary practices render the negative reactions provoked by the misdeed no longer appropriate” (p.117)? In addressing this question, Dan-Cohen reviews what he calls the standard account of repentance that includes a wrongdoer’s admission of fault followed by forgiveness by the victim and pardon by the state. Of the several problems with this account identified by Dan-Cohen, central is the inability of revisionary practices such as the pardon to erase the past from the biography of the offender. Certainly this flaw serves to undermine the impact of the pardon and other tools meant to offer absolution. For the author, a solution lies in reassessing the boundaries of the self. He argues, “Revisionary practices give rise to a new version of the self from which the wrongful act is excluded. When this version is inhabited and enacted, it replaces the older one as superior and more authoritative” (p.129). Hence the new version of self replaces, but does not eradicate, the previous self and allows for elements of forgiveness to adhere. Dan-Cohen admits to the limitation of revisionary practices to mitigate past wrongs, and also suggest that reframing the question to focus on the offender rather than victim will help [*527] to mute the discomfort with the process of forgiveness.

Bruce Robbins joins the colloquy regarding forgiveness in his piece “Comparative National Blaming: W.G. Sebald on the Bombing of Germany.” National blaming is a “rhetorical practice” utilized by political actors to gain a position of moral superiority by comparing the actions of contemporary political actors with the condemned behavior of previous regimes. The purpose of the chapter is to explore how exactly this comparative national blaming is conducted, should such an activity be conducted, and how it might be done correctly or well. As it relates to the purposes of this volume, Robbins explores the capacity of nations to extend a hand of forgiveness in the international realm to those whose history reflects past wrongs, or, it seems, at the very least end the process of blaming for those transgressions. This discussion is grounded in an analysis of W.G. Sebald’s discussion of Germany’s inability to come to terms with its position as a victim of the firebombing perpetrated on the nation’s cities during the Second World War. The inability to grasp this potential role, Sebald argued, relates to an internal comparative dialogue that shuns the easy adoption of the position of victim because of the history of the Nazi’s own behavior during this conflict. The textual analysis of Sebald’s work provides an opportunity for Robbins to explore the capacity of a nation to claim the status as victim when that nation has a history of victimizing others. The motivation for this discussion lies in part in the status of the United States in a post-9/11 world in which America adopted the role as victim and the nation sought retribution without reference to past behavior as aggressor. That recognition, Robbins suggests, would lead to a greater capacity for nations to shed the potential for knee-jerk adoption of victim status and instead engage in the practice of forgiveness.

The final contributor, Adam Sitze, offers a challenging examination of the concept of pardon in “Keeping the Peace.” The guiding question behind the work posits: “What would it mean to take the indiscernibility of pardon and amnesty seriously as a problem for the philosophy of law” (p.165)? The investigation is a multilayered textual analysis of Carl Schmitt, Immanuel Kant, Plato, and others in an attempt to understand the relationship of pardon and amnesty as those concepts apply to the notion of a just war and a just enemy. The difficulty that Sitze identifies with conflating pardon and amnesty is the existence of a moral and legal contradiction that undermines political and theological doctrine. The analysis gives insight into the inherent problems of pardon in the political realm and the trickier issue of amnesty, or general pardons, for the community.

There is much to recommend this volume. The various authors provide a font of heuristic tools to promote debate about concepts that, in casual use, are either poorly delineated or not defined at all. The authors draw out distinctions among the terms that begin to bring into focus the place each has in the puzzle of justice, equality, and the law. As a result, the reader is offered a substantial [*528] number of questions to ponder regarding the powerful tools available to leaders responsible for obviating inconsistencies or injustices in the law. Such questions are useful for a continued and vital debate about how, and to what extent, these powers should be exercised at all. Several authors also do an admirable job connecting what might be viewed as obtuse disquisitions to contemporary events and utilizing recent judicial events to illuminate complex arguments. Daniel Kobil offers Governor George W. Bush’s refusal to pardon condemned killer Carla Faye Tucker and Pope John Paul II’s intercession on behalf of a death row inmate in Missouri as thoughtful, evocative, and explanatory examples that both demonstrate and substantiate his argument. Likewise, Linda Ross Meyer defines categories of pardon by reflecting on historical events such as the American Civil War and the use of cutting-edge evidentiary techniques based on DNA analysis. To a lesser, but still important, degree, Bruce Robbins, who draws on the events of 9/11, also provides important context for his discussion regarding the international quality about national obligations for past and current acts. This method offers insight that makes real the difficulty justifying the use of mercy and its counterparts by democratic institutions.

Standing alone, each chapter offers significant, albeit narrow, insight into the virtues and difficulties related to the application of clemency, pardons, and mercy. However, stitched together, the arguments fall short in offering a coherent and well-integrated understanding of the nuances and complexities of these topics, including well-articulated definitions of the concepts central to the book. In the introduction, the editors argue that the book seeks to “map the terrain” related to the relationship of the concepts and explore answers to important questions left unresolved in other threads in the literature. However, each of the chapters tackles a unique question or set of questions without any obvious or significant connection to other contributors to the volume, leaving the reader to search for relationships among the arguments and the interconnectedness of the perspectives on these concepts. To borrow the editors’ cartographic metaphor, the consequence is a map without the necessary detail to insure the arrival of the reader at the appropriate intellectual destination. A final observation relates to the level of sophistication of the analyses presented by the varied authors. The work offers erudite and complex discussions that are likely inaccessible to the average reader and possibly beyond the typical undergraduate students of public law. The contributors at times offer insights into authors and writings too esoteric for the casual or novice reader of this type of legal philosophy. Despite these few observations, the book serves as a thought-provoking volume for scholars in the field and graduate students seeking additional analysis of this strand of legal theory.

REFERENCE:
Greene, John Robert. 1995. THE PRESIDENCY OF GERALD R. FORD. Lawrence, Kansas: University Press of Kansas. [*529]

CASE REFERENCE:
BURDICK v. UNITED STATES, 236 U.S. 79 (1915).

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© Copyright 2007 by the author, Charles F. Jacobs.

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ON LAW AND CHASTITY

by Robert E. Rodes, Jr. Durham, North Carolina: Carolina Academic Press, 2006. 152pp. Cloth. $24.00. ISBN: 9781594601828.

Reviewed by Isaac West, Department of Communication and Culture, Indiana University. Email: inwest [at] indiana.edu.

pp.519-522

Robert E. Rodes’ ON LAW AND CHASTITY advances a programmatic agenda for recuperating the legal regulation of sex outside of marriage as one way to restore moral clarity and order to our contemporary culture. Rodes’ work, an updated version of a law review article originally printed in 2001, thoroughly traces the steady erosion of the promotion and/or consideration of chastity in a variety of legal arenas including obscenity regulations, sexual harassment protections, divorce and parental custody cases, employment discrimination lawsuits, and rape prosecutions and shield laws. The extensive documentation of cases, statutes, and regulations across states and nations is impressive, and the chronological recounting of the legal lineage of these issues succinctly reviews the genealogy and stakes of our current cultural-sexual milieu. Organized around four strands of legal theory that have undermined the legitimacy of state-enforced chastity (instrumentalism, libertarianism, free speech, and feminist), Rodes’ responses to these theories present an extensive argument for the return of chastity as a social norm.

With that said, I have struggled with this review for a number of reasons. First, I am wary of romanticizing the past. The good old days were not all that good for a number of people, especially those who were not privileged, upper- to middle-class, white, straight, married men. Moreover, Rodes’ resurrection of the cultural mythology associated with chastity necessarily relies on a number of gendered, racialized, and heterosexist notions that cannot be justified except through a self-righteous claim to a monopoly on morality. Second, I cannot align myself with Rodes’ perspective or proscriptions given his hostility to any sexual activity outside of legally-sanctioned heterosexual civil marriages. Here I do not mean to suggest that any of us can ever really act as objective readers, but I take particular offense to his suggestion that “all homosexual encounters are wrong,” basing his opinion in “academic arguments” that “oppose homosexual practices by relating the goodness of the sex act to its effect of establishing and supporting a personal bond that instantiates the metaphysical complementarity of male and female—a complementarity more profound and pervasive than the obvious one between alternative forms of plumbing” (pp.96-97). So while I admit my lack of objectivity from the start, I do want to provide a fair reading of Rodes’ argument. Thus, in fairness to Rodes, I want to outline first his investment in chastity as a normative project, then I will address his responses to the critiques of chastity, and finally I end with a critique of the sexual normativities underwriting his project and question the efficacy of his suggestions. [*520]

Strictly defining chastity as penile-vaginal penetrative intercourse between a legally married couple consisting of one man and one woman, Rodes suggests that a return to the sexual and legal past would decrease sexual violence and prevent moral decay. Rodes asserts that in the United States of America in the 1950s: “it was well understood that chastity was the prevailing social norm. Whatever their practices, everyone knew what the standard was: married people were to have sex only with their spouses; the unmarried were to abstain” (p.3). Quickly conceding the fact that men and women violated these norms with some frequency, Rodes argues that the cultural mythology of chastity “afforded a certain amount of protection against both sexual harassment and date rape . . . In or out of the workplace, a sexual overture that bypassed the dating conventions was commonly regarded as an insult not only by the person addressed but also by everyone who learned of it. And within the conventions, it was not too difficult to avoid the crossed signals that often presage date rape” (p.6). Setting aside the troublesome implication that date rape victims invite sexual violence because of “mixed signals,” a move that blames the victim rather than the perpetrator, Rodes fails to provide any evidence for this empirical and causal claim, settling instead for personal observations, such as “I suspect that sexual irregularities were somewhat less common than they are today” (p.16). Rodes questions Alfred Kinsey’s findings, but this alone does not validate Rodes’ personal observations and memories. Thus, through a romanticization of 1950s morality, Rodes asks us to accept the proposition that legally-sanctioned chastity would lessen the occurrence of sexual violence and immoral behaviors such as divorce and the birth of children out of wedlock. Rodes’ personal nostalgia for the family values of the 1950s may have a particularly strong suasory appeal to cultural (and legal) conservatives threatened by the diminution of their cultural hegemony. However, as an academic argument, Rodes’ causal claims between the value of chastity and social order and health are difficult to accept given the numerous historically-based studies that dispute the empirical truth of this cultural mythology (for two of the best examples of this work, see Coontz, 1992; Meyerowitz, 1994).

To create a case for the return to chastity, Rodes answers four lines of legal critique that he credits with lessening the law’s ability to regulate chastity. I will present them in the order they are presented. According to Rodes, the first line of legal thought that devalues chastity is instrumentalism, or the cost-benefit analysis of enforcing chastity. Rodes quickly dispenses with this critique as he is less interested in measuring the efficacy of the law by the number of prosecutions, opting instead to understand the law as a moral code that guides and constrains behavior. As he states, “even if we cannot abolish a given immoral practice, we can hinder it in a number of different ways, and often do so” (p.107). The issue of state-sanctioned morality surfaces again in the second line of critique, libertarianism. Rejecting the idea that the state must remain neutral with regard to issues of [*521] morality, Rodes underscores the fact that both John Stuart Mill and Herbert Lionel Adolphus Hart, important touchstone for libertarian thought, can be generously read to support the kind of coercion envisioned by a return to chastity. Free speech, a cousin of libertarianism and the third line of critique, suggests that people ought to be able to express themselves as they see fit especially with regards to mass-mediated depictions of sex. Rodes dispatches this claim with the argument that sexual expression is different because “sex is unique among the human experiences, and the response to material with sexual content is unique among human response.” Thus, unlike other forms of expression, sexually-suggestive material should be more closely regulated to prevent social depravity. Finally, Rodes addresses the feminist critique of chastity which he characterizes as “bitter” (p.29). Reducing legal feminisms to a unified and singular community that ignores the diversity of feminisms, Rodes claims that the critique of double-standards means that “we can set lower standards for women or we can set higher standards for men.” He continues on, “A good many feminists,” an assertion for which he provides no citation, “seem to have chosen the former alternative. I follow a good moral tradition in choosing the latter” (p.111).

In the final section, Rodes suggests a number of reforms that would rejuvenate the legal investment in chastity. These include limiting privacy rights to those things performed in private (meaning the home); criminalizing “fornication, adultery, and sodomy in every case,” which Rodes assures us are meant more as moral deterrents rather than prosecutable crimes because “as long as prosecutors are accountable to the electorate, they are unlikely to engage in a wholesale attack on illicit sex” (p.120); narrowing the grounds for no-fault divorces; prohibiting same-sex marriages along with civil unions and domestic partnership; and limiting obscenity. As for the last suggestions, Rodes argues that the “unchaste have no right to equal access to the social ambiance, no right to compete on equal terms in the marketplace of ideas” because they “like racists” and “Communists,” among others, “are entitled to free speech, but they have no right to insist that the society into which they introduce their speech must be one whose official organs are neutral as between them and their opponents” (p.133). According to Rodes, the totality of these reforms would strengthen the moral bonds of our culture and thus reduce the chances for sexual violence, harassment, and prevent the collapse of heterosexual civil marriage as a foundation of our culture.

In the end, Rodes’ reliance on sexual shame as a deterrent to sexual activity is wholly unpersuasive—and, to be honest, I am not sure that his goal is to persuade as much as it is to strengthen the beliefs of those predisposed to agree with him from outset. The book adopts a harsh tone toward anyone who does not already agree with him, the evidence in favor of the cultural effectivities of chastity is anecdotal, and Rodes’ research is in many cases outdated and thus fails to engage current debates about issues such as feminism, sexual assault, and harassment. Even more [*522] problematic, in the first few pages, Rodes admits that the cultural ideal of chastity did not prevent sex or sexual aggression. Thus, it is not altogether clear why sexual shaming would be any more effective today than it was in the 1950s. Finally, Rodes fails to engage any scholars writing in sexuality studies; whether it is an accidental oversight or a dismissal of this branch of scholarly inquiry, this omission is a notable one. While many of these scholars are not writing in legal journals, the regulation of sexuality and the cultural effectivities of sexual shame are interdisciplinary discussions that complicate and trouble Rodes’ conclusions—namely that sexual shaming will positively benefit everyone. They remind us that already vulnerable populations (teenagers and gays/lesbians/bisexuals/transpeople) are most likely to be the ones who are scapegoated and threatened, often physically, by those who see themselves as the enforcers of sexual morality (Sedgwick, 1993; Warner, 1999). Insulation from these critiques of shame allows Rodes to assert that sexual shame benefits all of us. However, shame is never spread evenly among a citizenry, and we need to ask whether the legal cure is worse than the cultural illness. It may be even more wise to ask a more fundamental question such as “Is there really a sexual crisis that must be legally managed by a return to chastity and sexual shaming?” Upon reading this book, one that trades more in cultural nostalgia than in empirical data, I find it difficult to accept either the premise that we need to desexualize the public sphere or that a legal agenda tied to chastity’s return (or, at least its mythical return) would necessarily create a world with less rape, sexual harassment, or unwanted pregnancies.

Finally, if one is interested in mining this book for its history of chastity, there are many useful connections drawn between a number of disparate and seemingly independent cultural formations. For those interested in this line of Rodes’ argument, I would suggest reading the law review version listed below—the book version has only minor changes consisting primarily of updated footnotes to reflect changes in case law.

REFERENCES:
Coontz, Stephanie. 1992. THE WAY WE NEVER WERE: AMERICAN FAMILIES AND THE NOSTALGIA TRAP. New York: Basic Books.

Meyerowitz, Joanne (ed.). 1994. NOT JUNE CLEAVER: WOMEN AND GENDER IN POSTWAR AMERICA, 1945-1960. Philadelphia: Temple University Press.

Rodes, Jr. Robert. 2001. “On Law and Chastity.” 76 NOTRE DAME LAW REVIEW 643-739.

Sedgwick, Eve Kosofsky. 1993. “Queer Performativity: Henry James’s the Art of the Novel.” 1 GLQ 1-16.

Warner, Michael. 2000. THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE. Cambridge, Mass.: Harvard University Press.

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© Copyright 2007 by the author, Isaac West.

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JUDGE AND JURY: AMERICAN TORT LAW ON TRIAL

by Eric Helland and Alexander Tabarrok. Oakland, CA: The Independent Institute, 2006. 168pp. Paper. $15.95. ISBN: 0945999992.

Reviewed by Gabriel H. Teninbaum, Suffolk University Law School . Email: gteninbaum [at] suffolk.edu.

pp.516-518

In the highly political tort reform war, two economists, Eric Helland and Alexander Tabarrok, have fired a salvo criticizing several aspects of the civil justice system in their new book, JUDGE AND JURY. This book uses information drawn from databases of published jury verdicts to challenge the accuracy of several bits of conventional wisdom regarding the health of the tort system. In so doing, the authors present detailed, interesting analysis on topics, including race and poverty as factors affecting the size of jury verdicts, favoritism for plaintiffs in jurisdictions where judges are elected in partisan contests instead of appointed, and the appropriateness of the contingent fee as a method of financing tort litigation. The book is very readable, includes a detailed explanation of the design of the study, and will appeal to scholars with an interest in the tort reform debate and litigation in general.

Skeptical readers will find no shortage of statements by the authors to create a question as to the objectivity of their analysis. Throughout the book, the authors launch ad hominem attacks on attorneys and plaintiffs themselves, at times analogizing lawyers to pornographers (p.103), hit-men (p.120), and claiming that “tobacco, breast implant and asbestos cases (among many others) [have] little or no scientific justification” (p.104). Further, there is no mention in this book of the role of “big business” (e.g. insurance and pharmaceutical industries) on creating the tort crisis, nor any statement recognizing the importance of allowing consumers the right to recover when they are injured by the fault of a liable defendant.

Apparent biases aside, JUDGE AND JURY is thought-provoking. In the first substantive section of the book, the authors discuss the “Bronx Jury” effect, which is the idea that poor, minority juries use their power to redistribute wealth in favor of plaintiffs without regard to the value of a case. By compiling a dataset drawn from a CD-Rom published by Jury Verdict Research, which includes the results of over 100,000 trials, as well as information from the Civil Justice Survey of State Courts (which is a random sample) and publicly available information regarding the results of federal court tort cases, the authors determine that as the poverty rate of a county rises, so to do awards to plaintiffs. Next, the authors show that race, like poverty, correlates to higher awards for personal injury plaintiffs. To prove that race combined with poverty magnifies pro-plaintiff verdicts, the authors demonstrate that in impoverished [*517] counties with a white-concentrated populace awards drop, but in minority-concentrated, impoverished counties, awards increase dramatically. Based on this analysis, the authors conclude that the Bronx Jury effect does exist, and lawyers who choose venues for their lawsuits in regions of the country that are poor and largely minority greatly increase their chances of success.

However, in their discussion of the Bronx Jury effect, Helland and Tabarrok fail to discuss some additional data that put into question the idea that race and poverty drive higher plaintiff awards. In the wake of the book’s publication, the American Enterprise Institute promoted a panel discussion on JUDGE AND JURY, a videotaped version of which is available online (http://www.aei.org/events/eventID.1329,filter.all/summary.asp#). One of the presenters at the AEI event, Professor Theodore Eisenberg of Cornell Law School, pointed out that the same dataset used by the authors in JUDGE AND JURY to show the existence of the Bronx Jury effect in personal injury cases could also be used to show that there was no significant increase in awards to plaintiffs among poor/minority juries in employment discrimination cases. Given that the authors’ theory is that race plays a factor in higher jury awards in personal injury cases, it would have been helpful if they attempted to explain the rather contradictory evidence that there is no apparent Bronx Jury bias in favor of plaintiffs in discrimination cases, which is an area of litigation where one would reasonably expect poor, minority juries to be most sympathetic to plaintiffs.

The second and third substantive sections of JUDGE AND JURY explore the effect of judges on the perceived tort crisis. Specifically, the authors hypothesize that judges favor local plaintiffs over foreign corporations, and that partisan elections make judges more plaintiff-friendly. To test these hypotheses, the authors compile two datasets using the residency of corporate defendants and the manner in which a judge is installed on the bench (i.e., elected vs. appointed). Helland and Tabarrok find that, in fact, there is a bias against out-of-state corporations when they are facing local plaintiffs, and that the bias is more pronounced in states that have judges elected in partisan contests over those that do not. The authors attribute the judges’ bias to be the need of elected judges to cater to their constituents (i.e., the plaintiffs), as opposed to out-of-state corporations who do not donate to their campaigns. However, the sample size for establishing judicial bias is relatively small, and it also requires the reader to accept the seemingly far-fetched idea that a statistically significant number of judges ignore their oaths of impartiality for the purpose of favoring plaintiffs in the hopes of receiving campaign contributions.

The final subject the authors consider is the effect of the contingent fee as a means of financing litigation. Here, the authors find that, although contingent fees are imperfect, there are several positive reasons to use this payment method. First, the authors approve of contingent fees because they are a private contract, and part of their distaste for the current state of American law is [*518] their perception that there is a reduced respect for the law of contract. Helland and Tabarrok next use collected data to posit that contingent fee arrangements motivate lawyers to succeed on behalf of clients, force lawyers to assess honestly the quality of a case at its outset, encourage attorneys to drop cases that would not likely be successful at trial, and in so doing, eliminate frivolous lawsuits.

The concluding section of the book is short and leads only to a suggestion that “marginal change may be justified” to alter the manner in which judges and juries decided cases (p.126). Here, it seems the authors must stretch to define even those marginal changes. For example, after making the reasonable suggestion that courts and lawmakers should work to assure that jurors understand scientific evidence presented to them in complex cases, the authors take time to gripe that some judges refuse to allow jurors to take notes to analyze the “blizzard of junk science” which they face (p.131). Helland and Tabarrok give kudos to Congress for passing the 1999 Class Action Fairness Act, which limits venue shopping in class action lawsuits, but offer no concrete further steps to be taken. They recognize that impartiality is important for judges and juries but suggest no steps to increase it. To some extent, the authors should be credited for not reaching to offer suggestions for systemic changes in areas beyond their expertise, such as crafting legislation or evidentiary rules. Nonetheless, the conclusions, while inoffensive, lead the reader to wonder about the value of the research when there does not appear use for it in creating change.

JUDGE AND JURY provides interested readers with some good food-for-thought. As is the case in many writings on this controversial topic, it seems at times that the authors use data to fit their preconceived notions about tort reform. As a result, JUDGE AND JURY is a fine read, but – like other material on this topic – should be read in conjunction with research performed by scholars who offer a different, perhaps more balanced, perspective.

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© Copyright 2007 by the author, Gabriel H. Teninbaum.

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LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE

by Oren Gross and Fionnuala Ní Aoláin. Cambridge: Cambridge University Press, 2006. 516pp. Hardback. £55.00/ $100.00. ISBN: 9780521833516. Paper. £27.99/ $52.00. ISBN: 9780521541237.

Reviewed by Therese O’Donnell, Law School, Strathclyde University. Email: therese.odonnell [at] strath.ac.uk.

pp.508-515

“How to allow government sufficient discretion, flexibility, and powers to meet crises while maintaining limitations and control over governmental actions so as to prevent or at least minimize the danger that such powers would be abused? . . . How to balance security and liberty? These questions are as ancient as the Roman republic and as new as the realities wrought by the terrorist attacks on London’s public transportation system on July 7 and July 21, 2005.” (pp.1-2)

And so begins Oren Gross’ and Fionnuala Ní Aoláin’s impressive, richly sourced study of the responses of democratic states to violent emergencies. The book’s structure divides principally into two parts. The focus of Part I is upon the principal models dominating theory and practice concerning responses to acute national crises. Part II considers the relationship between international law and some of its specific legal regimes (e.g. international humanitarian law whereby non-state actors may be held accountable). The structure works well and any overlaps in content are unobtrusive. As Gross and Ní Aoláin comment, violent crises often precipitate a reaction urging that “legal niceties may be cast aside as luxuries to be enjoyed only in times of peace and tranquility” (p.7).

Part I opens with an analysis of the various models of accommodation by which a state may seek to manage a crisis. By acknowledging some element of accommodation, the State is best depicted as a tree bending in a storm; how far it yields will depend on which model it chooses to adopt. The main models posited by Gross and Ní Aoláin are those embodying classical accommodation, constitutional accommodation, legislative accommodation and interpretative accommodation. The assessment of the Roman model of dictatorship is fascinating, particularly when the authors consider Machiavelli’s conclusion that one of the crucial checks and balances in place was the innate incorruptibility of the citizens of Rome (comparing favourably to their Florentine counterparts) (p.24). As the authors note, Lord Acton focuses on absolute power’s impact on the ruler, while Machiavelli focused on the people. This is interesting, but to this cynical reader, a little precarious. The perfect example of the Roman model operating in practice is offered by way of Cincinnatus who, after enjoying awesome power during a siege and winning a significant victory, resigned as dictator. Such self-restraint on the hand of Power ensured his entry into the annals of history. Although not quite on the same scale (and with important distinctions), one cannot help but be reminded of the Leader of the House, [*509] Robin Cook’s, resignation speech on the eve of Operation Iraqi Freedom in 2003. Some time later he enjoyed recounting how a tramp recognised him as a famous resignation saying ‘You . . . you’re great when you resign. You should do it more often’ (Chalmers 2005). It is worth remembering that he was the former UK Foreign Secretary and proudly recalled his role as a significant engineer of the NATO intervention in Kosovo.

The sheer flexibility of models of accommodation seems well captured in the discussion of the French state siege model. Originally intended to confront a military crisis, it morphed into ensnaring political crises. The impotence of the various attempts to rein in the ever-expanding use of the siege concept was finally captured in Article 13 of the French Constitution of 1946 which stingingly stated “The National Assembly alone may vote the laws. It may not delegate this right.” The possibility of constitutional accommodation of emergencies is also explored with a discussion of Lowenstein’s consideration of whether the concept of militant democracy can avoid the dangers of constitutional measures operating as Trojan horses. Gross and Ní Aoláin present an extensive survey of state constitutions, thus, as they acknowledge, revealing problems in the classification and categorization of emergencies and the dangers inherent in creating “scales” of emergencies which may permit states to easily “upgrade” to higher levels with presumably more draconian consequences (pp.45-46). The issue of “necessity” operating as a constitutional principle, making legal what might otherwise be illegal or unconstitutional, and its embodiment in inherent executive powers is considered. The authors include extracts from the infamous Frost/Nixon interview (suggesting unlimited Presidential power) alongside Justice O’Connor’s cautioning from HAMDI v. RUMSFELD that a state of war does not provide a “blank check” for a President. Such ordering of content seems pithy indeed, although even they themselves seem concerned about the actual reality of the Presidential trump (pp.52-54). In terms of legislative accommodation of emergencies including the passing of specialized legislation, the authors make reference to the “piling up” (p.69) of legislation and the craving of governments to be seen to be doing something – anything. They note legislative complicity in such an enterprise, in particular drawing on the example of the massive UK Anti-Terrorism, Crime & Security Act 2001 (ATCSA) which traversed the House of Commons in sixteen hours. Regarding interpretative accommodation, the authors conclude that international and regional courts are no more stringent when judging governmental discretion than the light touch of which domestic courts are accused (p.79). The danger of the various models is well illustrated by the fact that, as this chapter comes to a close, the authors return to Rome. For every Cincinnatus there was a Gaius Julius Caesar who ruled under a republican model of dictatorship in name only. Gross and Ní Aoláin also foreshadow the more modern nightmare which haunts most democracies – that of Weimar and its infamous constitutional Article 48. It went from operating as a [*510] crucial check on the powers of the president to simply acting as a rubber stamp, thus embedding no genuine sense of constitutionalism in Germany – a situation that proved ripe for the Nazis (p.85).

While Chapter 1 considers the models embodying strategies of accommodation, Chapter 2 considers the “Business as Usual” model, characterized as a strategy of resistance (p.98). It reminds one of an aristocrat who refuses to accept that any change in the face of a crisis is necessary. While such detachment can remain reassuringly solid and have its attractions, its Achilles heel is the perception of unreality or even blatant hypocrisy. It denies the need for any emergency powers, maintaining that the ordinary legal system is sufficient to meet the needs of the crisis. Gross and Ní Aoláin observe that in the more hardcore version of this model, substantive outcomes also do not change in times of emergency (p.89). Indeed the historical sources which are drawn upon, notably Benjamin Constant reflecting on French experience after the Revolution, go so far as to suggest that only intellectual pygmies seeking to save a state not worth saving cry out for emergency measures (p.87). Much attention is given to the US Supreme case of EX PARTE MILLIGAN 71 US (4 Wall.) 2 (1866) and in particular Justice Davis’ famous majority opinion which stresses the role of the constitution as a fixed and unchanging balance between individual liberty and governmental power. However, the authors acknowledge that MILLIGAN was decided after the civil war when it was “safe” to be bold in relation to the operation of power – when it came to be tested as precedent the Supreme Court declined to follow MILLIGAN’s lead (pp.96-97). Given the model’s perceived weakness of unreality, it may be countered that even a mythical model can be worth preserving for its symbolic and educational functions. By not seeking empirical truth, it remains immune from assessment for its (in)correctness (pp.102-103). As such, it may be symbolically powerful in countering an almost inevitable overreaction in the face of crisis.

As Gross and Ní Aoláin note, the similarity between the Business as Usual model and the models of accommodation, lies in their both being rooted in a sense of being constitutional, a point not popular with realists. A more acceptable model to realists is considered in Chapter 3. The Extra-Legal Measures model focuses on an honest executive acknowledging that it has moved toward “illegality,” which it then seeks to purify by way of ex post facto ratification. Here the authors are discussing the Shakespearean possibility of a “little wrong” for a “great right” (p.112). They consider Jewish law’s acknowledging that the Torah may be violated in order to preserve it. An amputation motif seems intrinsic to this reasoning, yet whereas that creates indisputable and permanent change, any violation is envisaged as existing only temporarily. Locke’s work is also analysed, particularly prescient given its influence on the Founding Fathers. The authors consider the ethic of responsibility (drawing on both Weber and Walzer) whereby the public official who acts illegally takes a gamble about [*511] her actions and must throw herself upon the mercy of some arbiters at a later stage to seek ex post ratification of her illegal act. As the authors note, a moral politician in such a situation simply openly admits that her hands are dirty (p.134). The often subtle ways that such ex post facto judgments will be carried out is well illustrated by the authors’ invocation of the social ostracism befalling “Bomber” Harris – denied a peerage which the other commanders received (p.139). Yet for every Cicero who gambles and saves Rome there lurks a dark side of this model which is, as the authors acknowledge, that it potentially enables totalitarianism or even encourages a habit of lawlessness, which goes more broadly than government (pp.143-145). Nevertheless, the Extra-Legal Measures model endeavours to protect the ordinary legal system by operating as a form of quarantine for the emergency and the consequent measures taken. However, as the authors note, this attempt at prevention depends on normalcy and separation being cleanly separated (p.162), and it is indeed hard to accept that no osmosis occurs.

In the final chapter of Part I, the authors focus on this very assumption of separation. The authors are clear that all of the models of crisis management rely on notions of a supposedly clinical, scientifically provable, measurable, assessable separation between times of crisis and “normalcy.” That such a separation-process will facilitate a firewall which protects human rights and civil liberties may well be very optimistic. Indeed Warbrick has noted that what starts as particularly pejoratively titled “terrorism legislation” slowly becomes applicable to wider groups, seeping through to the regular, non-particular, non-emergency situation (Warbrick 2002). Of course, certain legal options may exist which may facilitate separation in time or type. Temporary legislation with sunset clauses is one option. However, by offering the particular example of the US PATRIOT Act, the authors show how quickly this can become the “new normality and benchmark” with sudden permanence (pp.177-179). Another possibility is to create a geographical distinction between a location of normality and one of crisis – a tactic used by the British in relation to the Northern Ireland emergency. Gross and Ní Aoláin point to the specific example of the curtailment of the right to silence, which began by targeting suspected terrorists in 1988 and by 1994 was ready to be applied to the rest of the UK.

The authors present a very interesting analysis of the legislative measures invoked to deal with the Algerian/French emergency, and they note how this resonates with irony. For a “mother country” obsessed with retaining her colony, perceived as less civilized than she, by casting off a variety of constitutional and legal traditions, she became as much part of Algeria as Algeria was part of France (p.200). That the same emergency legislation was resurrected to deal with the grandchildren of immigrants more than fifty years later who were rioting in the banlieues simply makes the irony supreme. The authors also refer to the “torture by proxy” process by which States use a geographical prophylactic to [*512] permit the use of evidence obtained by torture in which their officials did not perpetrate. In the A case ([2005] UKHL 71), the UK Court of Appeal ruled that such evidence could be used, but the decision was mercifully reversed by the House of Lords. That victory was slightly tempered, however, by the split among the speeches as to the standards for assessing whether the evidence had been so obtained.

In terms of domestic differences with attendant legal distinctions, Gross and Ní Aoláin consider the “them and us” phenomenon. Certain groups, often foreigners, are assessed as outsiders and regulated accordingly. Post-9/11 this has become a major legal battleground as witnessed very clearly in the UK in the House of Lords decision in the Belmarsh case ([2004] UKHL 56), where the operation of the ATCSA Part IV was denounced as operating in a racially discriminatory fashion. As well as being normatively problematic, the authors note the shock which gripped Britain (presumably excluding the activists who had so opposed Part IV) when the 7/7 bombers were identified as British born (p.224). In drawing on the work of David Cole, the authors note the shifting sands of the them/us distinction (pp.226-227), and one cannot help but be reminded of Pastor Niemöller’s poetry in this regard.

Perhaps one of the most potent motifs running throughout this book is that associated with addiction – paranoia, dreams and ever increasing dosages. It is in relation to this last aspect that the authors comment on the “normalization of the exception.” A craving develops for new, more radical powers to fight impending crises, and the unthinkable develops into the thinkable with a consequent “tranquilizing effect on the public’s critical approach toward emergency regimes” (p.236), and thus to hidden revolution (p.242). As the authors later note, despite the common understanding of the word “emergency” as sudden, urgent and unforeseen, numerous examples testify to systematic entrenchment of the exception as the norm (p.304).

Part II focuses on the application of the various models in the field of international human rights law, with the authors concluding that there is a gap between theory and practice of emergency powers in international law. In considering the issue of legislative accommodation, they focus on the State’s power to derogate from certain rights in an emergency. Of course, as they acknowledge, this has raised problems in the context of the ICCPR and the UN Human Rights Committee, and the apparent failure to “join up the dots” between the declaration and operation of a derogation and States’ reporting obligations (p.301) (see McGoldrick 1994). The authors are concerned that the required process of proclaiming a state of emergency, given its entirely formal and insubstantial nature, may actually serve as basis for a disingenuous State resort to crisis powers (p.260). As the authors correctly note, most international oversight of the use of emergency powers focuses on ajudging the due process consequences of State responses, rather than the preliminary point of whether there is in fact an emergency (the ECHR [*513] LAWLESS decision afforded it less than two pages). Obviously this might be due to such tribunals lacking fact-finding capacity and the concerns regarding an “explosive situation” (p.267), which as a value judgment apparently goes to the very heart of a state’s decision-making autonomy.

Although acknowledging the importance of the supervision which does occur, the authors consider that the question of whether the resort to emergency powers is justified should come to greater prominence. They are concerned that what appears as robust judicial rhetoric conceals weakness ultimately legitimating governmental narrative – see the IRELAND v UK case (pp.273, 277). They are also concerned about the leeway which international oversight affords to democratic states compared with non-democratic states, and their comparison of the ECtHR responses to the UK and Turkey are interesting in this regard. Gross and Ní Aoláin are more flattering regarding the jurisprudence of the Inter-American Court (which is assisted by the fact-finding capacity of the Inter-American Commission), which they see as adopting a more subtle and deep approach, by recognizing an infinite variety of “crises,” thus at least having the potential to bring that preliminary question closer to the forefront (p.291).

Gross and Ní Aoláin are also disappointed by findings of various celebrated studies on emergencies and their authors’ seeming lack of understanding of how the aberrational nature of emergencies becomes normalized. Consequently, they are blind to the concept of the “permanent emergency,” focusing instead on the nature of measures adopted during such emergencies. Gross and Ní Aoláin continually stress that the notion of a standardized model for emergencies is neither helpful nor borne out by any study of states in emergencies (pp.316-317) and suggest that a “permanent emergency” may not belong in the human rights framework at all, but should be analysed in a debate regarding the problem creating the crisis (p.322). The formal process of state derogation should not be a game played between states and international overseers by which the latter provides the former with a shield against other external critics such as NGOs.

In the final chapter, the authors consider terrorism, emergencies and international responses to contemporary threats. They analyze whether the phenomenon of terrorism goes beyond existing domestic and international regimes, concluding that a more sophisticated derogation system and greater accountability for permanent and complex emergencies would be ideal (p.380). One of the striking things about this section is that the authors notably indicate differences in their respective positions, notably on the issue of torture warrants, perhaps emphasizing how contested the “law and terrorism” terrain is. In analyzing the interface between terrorism and law, particularly post 9/11, the authors are attracted to the relevancy of international humanitarian law, in particular Common Article 3 of the Geneva Conventions regulating internal armed conflict. They identify one benefit of this approach as being its capacity to leave aspects of [*514] human rights law intact (p.391). Gross and Ní Aoláin provide interesting discussion of the hybrid “super-laws” emerging at an international level, which they are concerned permit nefarious regimes to accomplish anti-democratic domestic goals – a point which has been the subject of widespread concern in the human rights community. 9/11 and its birthing of these super-laws (including the demands of UN Security Council Resolution 1373) may challenge the accommodation models’ capacities to constrain state action.

The book is part of the Cambridge Studies in International and Comparative Law series which has been notable for producing extremely high quality scholarship. Most recent examples including Karen Knop’s DIVERSITY AND SELF-DETERMINATION IN INTERNATIONAL LAW and Gerry Simpson’s GREAT POWERS AND OUTLAW STATES, both of which, like this volume, were awarded accolades from the American Society of International Law. This book rightfully takes its place as an important and novel addition to discussions regarding law’s response to crises.

There are a number of images which constantly pervade the book’s content either explicitly or implicitly. References to seepage, soaking, the water’s edge, osmosis, equilibrium, permeability, incontinence and precipitation all highlight the very fluid nature between normality and emergency, terror and calm which the authors seek to emphasise. Similarly the medical terminology of quarantine, immunity and amputation is evident particularly in the discussion of the fiction of separation between normalcy and emergency. But it is the last group of images created by the constant motifs of addiction, narcotics, phantoms, dreams, sunsets, hazes and, particularly, twilights which gives the reader most pause for thought. And concern.

REFERENCES:
Chalmers, Robert. 2005. “Out of the Wilderness.” THE INDEPENDENT ON SUNDAY (January 30th, 2005).

Knop, Karen C. 2002. DIVERSITY AND SELF-DETERMINATION IN INTERNATIONAL LAW. Cambridge: Cambridge University Press.

McGoldrick, Dominic. 1994. HUMAN RIGHTS COMMITTEE : ITS ROLE IN THE DEVELOPMENT OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS. Oxford: Clarendon.

Simpson, Gerry. 2004. GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER. Cambridge: Cambridge University Press.

Warbrick, Colin. 2002. “The Principles of the European Convention on Human Rights and the Response of States to Terrorism.” 3 EUROPEAN HUMAN RIGHTS LAW REVIEW 287. [*515]

CASE REFERENCES:
A & OTHERS v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2005] UKHL 71.

A & OTHERS v. SEC OF STATE FOR THE HOME DEPT. AND X & OTHERS v. SEC OF STATE FOR THE HOME DEPT [2004] UKHL 56

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

IRELAND v. UK (1979-80) 2 EHRR 25.

EX PARTE MILLIGAN, 71 US (4 Wall.) 2 (1866).

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© Copyright 2007 by the author, Therese O’Donnell.

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THE MIGRATION OF CONSTITUTIONAL IDEAS

by Sujit Choudhry (ed). Cambridge, Cambridge University Press, 2007. 458pp. Hardback, £50.00/$90.00. ISBN: 9780521864824. eBook format. $72.00. ISBN: 9780511266829.

Reviewed by Carlo Guarnieri, Professor of Political Science, University of Bologna. Email: guarnica [at] spbo.unibo.it.

pp.504-507

The migration of constitutional ideas across judicial systems has become one of the central features of contemporary constitutional practice. Two recent U.S. Supreme Court cases – LAWRENCE v. TEXAS (2003) and ROPER v. SIMMONS (2005), in which the Court majority quoted foreign sources in justifying its decision – have underlined the growing significance of the phenomenon. Aptly named, THE MIGRATION OF CONSTITUTIONAL IDEAS moves from the premise that there is a remarkable absence of serious reflection on this development: constitutional law seems out of step from a highly significant constitutional practice. Therefore, it presents a set of papers devoted to an analysis of the subject, originally prepared for a conference held at the University of Toronto in October 2004.

The general approach of the papers tries to move away from general theories of constitutional interpretation. As the editor – Sujit Choudhry – points out in his introductory essay, the book presents a bottom-up effort to analyze the reasons offered by courts and other legal actors for the recourse to comparative materials and to weave those justifications into coherent accounts. The final aim is to build constitutional theories in order to explain and, above all, justify interpretive practices.

As Choudhry notes, migration seems to be a better metaphor to describe what is really going on in the constitutional landscape of many countries. In fact, legal transplants – a term often used by constitutional scholars – could only occur if the rule and its context could be transferred between legal systems without any alteration, a very unlikely prospect, since a legal rule is likely to be understood in a different way by the “host” culture, becoming in fact a different rule. As pointed out also by Kim Lane Scheppele in her contribution, another popular metaphor – that of constitutional borrowing – has its limits. Unlike what happens in reality, borrowing denotes ownership on the part of the lender and therefore the fact that ideas should be returned to the original jurisdiction, although it is not always clear in what ways this can be done. Moreover, “borrowed” ideas should be used without significant modification or adaptation. In fact, the migration of constitutional ideas encompasses a much broader range of relationships between the recipient jurisdiction and constitutional ideas: as pointed out by Neil Walker, migration “presumes nothing about the attitudes of the givers or the recipient, or about the properties or fate of the legal objects transferred” (p.320).

The volume is divided into four parts. In the first, some basic methodological [*505] aspects of comparative analysis are addressed. Ran Hirschl, arguing from a comparative politics perspective, underlines the lack of reliable explanations of constitutional migrations: “we still know precious little about the actual extent of this phenomenon, let alone why, when, and how such migration has been occurring or is likely to occur” (p.64). In fact, legal studies of comparative constitutionalism tend to lack sufficient methodological rigour, since they do not follow the principles – already recognized by contemporary social science – of controlled comparison, accurate research design and good case selection. Therefore, they have not been able to produce convincing explanations of constitutional migrations. On the other hand, comparative political scientists, working with more methodologically conscious approaches, have been able to explain to a large extent the related phenomenon of the recent spread of written constitutions and bills of rights.

Hirschl’s paper is the only real contribution from a social science perspective. All the remaining authors tend to argue mainly from a legal point of view, their principal goal being to justify or criticize the practice on the basis of some legal principle. Thus, Mark Tushnet reflects on the ways comparative constitutional law can improve the ability to make better domestic constitutional law, a goal he thinks can and should be achieved. As for the other contributions, a first theme centres on whether constitutional migrations have facilitated the emergence of a common constitutional model, with Lorraine Weinrib arguing for the emergence of a “post-war juridical paradigm” of rights protection – to whom the United States are in part foreign – and Jeffery Goldsworty, Michel Rosenfeld and Andràs Sajò suggesting that significant variations between countries continue to exist and that convergence should not be always considered a positive fact. On the other hand, writing from the privileged point of view of a mixed legal system like Canada, Jean-François Gaudreault-Desbiens asserts that the post-Second World War constitutional model has led to a sort of migration of interpretive methodology from the civil law to the common law. As for the question if and to what extent these developments have – or not – involved the USA, Lorraine Weinrib and Brenda Cossman give partially different answers.

Another part of the volume is devoted to the influence of international and transnational – e.g. European Union – law on national jurisdictions. Mayo Moran and Mattias Kumm assess the legitimacy of importing constitutional ideas from international law from within the standpoint of domestic constitutional law. Moran, on the basis of British, Canadian and South African cases, finds that the values of international and comparative law influence domestic constitutional law and, in turn, the values of constitutional law influence domestic private law. Kumm, in his analysis of the jurisprudence of the European Court of Justice and of the European Court of Human Rights, arrives at similar conclusions on the influence of constitutional ideas from international law and presents “a framework for thinking about the moral concerns that [*506] any set of doctrines governing the interface between national and international law ought to take into account and reflect” (p.261). David Schneidermann and Neil Walker ask whether the conceptual lens of domestic constitutionalism has migrated and should migrate to the international level in order to become a standard for transnational governance and give partially different answers: on the whole positive by Schneidermann, while Walker points out the complexities involved in the EU case.

Finally, a set of papers tries to assess the most recent cases of migration of constitutional ideas, those in the wake of 9/11. Here, the comparative conversation between different judicial and legal systems seems strong, but the judgments on their merits are diverse. Scheppele points out that migration is not always a good thing, as it has been the case with anti-constitutional ideas inserted in the legislation on emergency powers enacted as a consequence of UN Security Council resolutions against terrorism. Similarly, Oren Gross underlines the risk that anti-constitutional ideas migrate from the periphery to the centre, as in the case of emergency regimes applied in colonies – as in Algeria by France – or in dependent territories, as in Northern Ireland by Britain. On the other hand, in his analysis of the drafting of anti-terrorism legislation in Australia, Canada, Hong Kong, Indonesia, South Africa, United Kingdom and United States, Kent Roach points out the filtering effect played by national jurisdictions against the migration of anti-constitutional ideas.

Migration of legal ideas is by no means a new phenomenon. The entire history of private law has been characterized by migrations. Also public law is not foreign to similar developments, as shown by the influence exerted on many countries of continental Europe and Latin America by Napoleonic reforms of the organization of criminal procedure (Merryman 1985) or by the recent spread in many civil countries of more or less accusatorial, American-style codes of criminal procedure (Langer 2004). As for constitutional law, the influence of some constitutions – like the constitutions of the United States, of Federal Germany or of the French Fifth Republic – on constitution-drafting is well-known.

What is really new today is the accelerated rate according to which legal and constitutional ideas migrate from one judicial system to another. Above all, the most significant development is the crucial role played by judges in the process of migration. As many of the contributions in the book underline, in most cases judges are those actually giving effect to the influence of migrating constitutional ideas. One of the results of this trend is that judicial creativity and power come out magnified, making even more acute the “democratic deficit” of the judiciary. Moreover, the expanded role of foreign jurisprudence does further the decline of the sovereignty of the State, a basic principle of the modern, “Westphalian” State, triggering an adverse reaction in those political contexts in which the principle still enjoys rather strong support (as in the United States, for example). [*507]

The book provides a careful and well-diversified analysis of all these developments. However, as underlined by Hirschl, convincing explanations are lacking. Almost all the contributors devote their analyses to the evolution of jurisprudence and legislation, but do not deal with the problem of the actual reasons behind the increasing significance of constitutional migration. A partial exception is Jeffery Goldsworty. Noting that the increasing support for a stronger role of the judicial branch is related to “the contemporary loss of faith in the old democratic ideal of government by ordinary people” (p.121), he looks for an explanation and suggests it lies in the fact that, at least in some countries, “a substantial number of influential members of the highly educated, professional, upper-middle class have lost faith in the ability of their fellow citizens to form opinions about important matters of public policy in a sufficiently intelligent, well-informed, dispassionated, impartial, and carefully reasoned manner” (p.122). In this situation, strengthening judicial power means shifting power to people who are often representative members of that very class. It is interesting to note that this suggestion can be easily made compatible with the broader analysis put forward by Hirschl on the role played in supporting the expansion of judicial power by “hegemonic groups,” fearful of losing their grip on political power (Hirschl 2004). In fact, when considering constitutional developments, we should always take into account the interests involved in the process and, in this case, their capacity of developing good relationships with the legal professions – and the judiciary – and of introducing institutional changes conducive to stronger judicial power. Obviously, the picture is extremely complex and should be adjusted to the different characters of the legal and political systems, deserving a long term research strategy and collaboration between legal scholars and political scientists. This is the main reason why the book, although presenting mainly a legal point of view, is an important contribution to this effort.

REFERENCES:
Hirschl, Ran. 2004. TOWARD JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF NEW CONSTITUTIONALISM. Cambridge: Harvard University Press.

Langer, Màximo. 2004. “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure”, 45 HARVARD INTERNATIONAL LAW JOURNAL 1-64.

Merryman, John Henry. 1985. THE CIVIL LAW TRADITION. Stanford: Stanford University Press. (2nd edition).

CASE REFERENCES:
LAWRENCE v. TEXAS, 539 US 558 (2003).

ROPER v. SIMMONS, 543 US 551 (2005).

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© Copyright 2007 by the author, Carlo Guarnieri.

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DISABILITY HARASSMENT

by Mark C. Weber. New York: New York University Press, 2007. 240pp. Cloth $42.00. ISBN: 9780814794050.

Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: pweizer [at] fsc.edu.

pp.502-503

This book, by Mark C. Weber, Vincent de Paul Professor of Law at DePaul University, bills itself as the first legal examination of the law regarding disability harassment. Weber, already the author of a case book on special education law is clearly an expert in the field and brings that vast experience to hand in this slim volume. As noted in the preface, much of the material for DISABILITY HARASSMENT appeared earlier in three law review articles. This book appears designed to bring the author’s thoughts about the shape of disability harassment law together in one place.

The book is divided into nine chapters. The first, entitled harassment narratives, provides the proverbial parade of horribles as Weber recounts the personal circumstances of more than a dozen individuals with disabilities who encountered horrendous treatment in the workplace or at school. The cases that came out of these “narratives” are repeated in later chapters as examples of different legal theories. It is interesting to note that some of these plaintiffs prevailed in various stages of legal proceedings while others did not. None establish important legal precedents. The extreme personal hardships that these people endured do, however, lay the groundwork for the legal preferences of the author which are explored in later chapters.

Chapter Two provides historical context to the exclusion of people with disabilities by drawing on many contemporary works in the broad field of disability studies. The chapter stresses that exclusion and isolation are important parts of the broad concept of discrimination regarding the disabled. Comparing disability harassment to topics as diverse as segregation and the eugenics movement, Weber amply demonstrates that disability harassment is a very real phenomenon and one with significant consequences.

Chapter Three compares disability harassment with race and sex harassment. Weber asserts that the way courts have approached disability harassment is to look for analogies in other forms of harassment. Most often, courts will look to Title VII of the Civil Rights Act of 1964 and the application to race and/or sex as a baseline. Weber then asserts that the Americans With Disabilities Act (ADA) is much broader than Title VII and should not be construed with Title VII in mind. As the ADA was designed not to ensure equal treatment of workers or students (as was Title VII) but rather to require reasonable accommodations for those who cannot be treated equally, the range of conduct prohibited is much greater.

Chapter Four explores new approaches for legal claims in the workplace. Weber points out that in addition to the [*503] prohibitions that both Title VII and the ADA share, the ADA contains an anti-harassment provision which Title VII lacks. Weber’s main argument is that courts have neglected this provision which would open up vast new vistas of potential litigation. Weber explores many cases where this approach has been tried, with mixed results.

Chapters Five and Six expand the discussion from workplaces to schools. Weber recounts many examples and concludes that, while there are many avenues to approach disability harassment in this arena, courts, by and large, have turned a blind eye to these remedies. This is followed by a discussion of new approaches for legal claims in schools, focusing mainly on the Individuals With Disability in Education Act (IDEA).

Chapters Seven and Eight look at possible common-law remedies for disability harassment and then to constitutional objections to anti-harassment policies. Most notably, Weber urges use of the intentional infliction of emotional distress cause of action as one that would be most appropriate for this area of law and then bats aside First Amendment concerns about the approaches discussed.

The concluding chapter summarizes Weber’s arguments in a chapter entitled “An agenda for legal and social change.” This includes vocational services reform, affirmative action for disability, enhancement of special education services, and social reforms.

In the end, this is really what this book is about. The author is promoting a social agenda that calls for legal change. Whether one agrees with the proposals contained herein, they are certainly thought provoking. Since the area of law regarding disability is significantly underrepresented in the literature, this book had the potential to fill an important void. Unfortunately, the book is more polemic than text and is more a reflection of how the author wishes the law of disability harassment to be rather than a neutral recounting of the state of the law as it exists. Throughout, the author applauds courts when it follows his preferred viewpoint. Most of the book, however, is spent chastising courts for not taking the author’s approach. It is filled with quotes, such as “when courts take seriously the harassment that occurs in schools, they have no shortage of legal grounds on which to offer relief. As often as not, however, courts do not take the claims seriously and overlook the clear legal authority, or they invent defenses to block claims against schools and others” (p.61). When courts do not accept Weber’s rationale, it is always the court that is in the dark. For example: “when courts reject arguments for these remedies, the obstacle appears to be the courts’ failure to address the facts as a serious problem and apply widely accepted legal principles” (p.81).

DISABILITY HARASSMENT certainty has a clear thesis, is well written and thoroughly documented. However, I am not sure what the intended audience for the book will be, as it will be of limited use in studying the law in regard to the important civil right issue of its title.

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© Copyright 2007 by the author, Paul Weizer.

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SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT

by Jan Crawford Greenburg. New York: Penguin Press, 2007. 368pp. Cloth. $27.95. ISBN: 9781594201011.

Reviewed by Chris W. Bonneau, Department of Political Science, University of Pittsburgh. E-Mail: cwb7 [at] pitt.edu.

pp.499-501

In this impressive book, Jan Crawford Greenburg relies on interviews with administration officials, the papers of Justices and Presidents, and even interviews with the Justices themselves to give readers an inside look at the Supreme Court. Starting with the appointment of Sandra Day O’Connor, and ending with the confirmation of Samuel Alito, Greenburg discusses the politics behind the appointment and confirmation of all of the current Justices as well as the impact these Justices have had on the Court. Perhaps not surprisingly, Justices Sandra Day O’Connor and Anthony Kennedy play central roles in the book (much as they did on the Court during this time). In many ways, this reminds me of THE BRETHREN (Woodward and Armstrong 1979), but with more of a focus on the justices than on the key cases decided (though there is some discussion of cases). The book is both well-written and well-organized. In addition to learning much from the book, it is also easy to read.

Some of the information in the book will be familiar to scholars of the Court – for example, the fact that Chief Justice William Rehnquist was a good leader of the institution, rarely pressuring Justices who disagreed with him. Greenburg writes (p.17), “Rehnquist . . . was a well-liked leader, and the justices had developed a warm and easy rapport over the years.” This is in contrast to the man he replaced, Warren Burger, whose leadership style was criticized by both liberal and conservative justices alike (Woodward and Armstrong 1979; Greenhouse 2005). Interestingly, later in the book (p.315) Greenburg describes Chief Justice John Roberts as more collegial and savvy than Rehnquist, something that is curious given the high marks generally given Rehnquist on both accounts. (Greenburg offers no evidence to support this claim.) Another example is the way the Bush White House completely blundered the nomination of Harriet Miers. Given all of the opposition to Miers, both internally and from key supporters, one is left with a feeling of amazement that the Administration thought that she would be confirmed by the Senate.

Like all good books, in addition to discussing and confirming things we already knew, Greenburg goes on to discuss some things that I found both new and surprising. I, for one, did not know that Clarence Thomas was considered for the vacancy eventually filled by David Souter (p.94). Thomas was ruled out because it was “too soon” for him (though the next year he was appointed). Also, it is interesting how Roberts is described as the “anti-O’Connor” (p.230). In fact, Greenburg [*500] says, Roberts “had little patience for her approach to the law, which he saw as undisciplined, almost to the point that it bordered on irresponsible.” This is quite a harsh assessment. Greenburg does not footnote her source for this claim, so it is difficult to assess its accuracy. This biting critique of O’Connor seems more consistent with Antonin Scalia than Roberts. Finally, it is interesting how openly Kennedy desired to be elevated to Chief Justice (p.240), despite the fact Kennedy had fierce opposition by conservatives inside the Reagan Administration when he was appointed (p.53), was perceived as pompous by some other Justices (p.112), and was widely perceived to disappoint conservatives on cases they cared about most (pp.162, 312). One gets the sense that Kennedy is unaware of how he is perceived by other justices and conservatives. In fact, as early as 1992, Scalia concluded Kennedy was a “lost cause” (p.157).

Despite the considerable strengths of the book, there are some things I wish had been developed better. First, I think Greenburg needs to provide better evidence for some of her claims that contradict previous accounts or scholarly studies. On p.171, she writes, “[Harry] Blackmun hadn’t been a particularly likable colleague.” This seems to contrast with the portrayal of Blackmun in both THE BRETHREN (Woodward and Armstrong 1979) and BECOMING JUSTICE BLACKMUN (Greenhouse 2005). While Blackmun could be finicky sometimes, he was never accused of being a bad colleague. Greenburg needs to say more here, especially since it seems contradictory to other accounts. Another example is when she writes that BUSH v. GORE was “a case that would shake the political world and deeply damage the Supreme Court’s reputation for years to come” (p.174). Yet, there is no evidence that the Supreme Court’s reputation was damaged by the case (e.g., Kritzer 2001; Gibson, Caldeira, and Spence 2005).

Second, there are several points at which I found myself asking why something occurred. The best instance of this is O’Connor’s drift to the left while she was on the Court. Greenburg writes (p.122), “When the balance of the Court began to shift to the right, O’Connor’s line of compromise changed. With Thomas on the bench, she was not reacting to the liberals. She was pulling away from the conservatives.” Greenburg suggests the reason for this is because of Thomas; he somehow pushed her away (pp.115-116, 122, 123). This is a plausible explanation for why she refused to join his opinions (p.123), but it does not explain why she would support a different outcome in the case. Why would O’Connor move to the left and start siding with the liberals simply because she found Thomas (and Scalia) rude and perhaps a bit disingenuous (even incompetent?) (p.83, 136)? Are we really to believe O’Connor voted conservatively because Brennan pushed her that way (p.82) and then voted liberally because Scalia and Thomas pushed her that way? This explanation is not sufficient and seems to contradict the voluminous political science literature on Supreme Court decisionmaking (e.g., Segal and Spaeth 2002). A more likely explanation has to do with her evolving sense of what the [*501] Constitution does (and does not) permit, as well as the Court’s changing agenda.

More troubling is the fact that Greenburg’s conclusion that the Court is finally going to shift to the right seems a bit premature and overly optimistic. After all, after the appointment of O’Connor, Kennedy, Scalia, Souter, and Thomas, people thought the Court was going to swing to the right. And, there was evidence this was occurring: in addition to the consistently conservative decisions of Scalia and Thomas, O’Connor voted with Rehnquist as often as Thurgood Marshall did with William Brennan during her first three terms (p.68), Kennedy “emerged as one of the most conservative of the justices” (p.73), and Souter was solidly conservative early on as well (p.109). So, if all these justices drifted to the left, how can we be sure the same will not happen with Roberts and/or Alito? To be sure, their records are both more solidly conservative before reaching the Court than O’Connor, Kennedy, and Souter. But, there are no guarantees. Also, if Scalia and Thomas pushed O’Connor to the left, how can we be sure they will not push Kennedy even further to the left, thereby, stymieing the conservatives once again. It is for these reasons that her conclusion (p.315) that “George W. Bush and his team of lawyers will be shaping the direction of American law and culture long after many of them are dead” seems a bit premature. This may well be true, but we have heard this before.

In sum, SUPREME CONFLICT is sure to be a book of interest to scholars of the Court, regardless of the approach they take in their research. While there are some shortcomings, on balance it is interesting and insightful. It is certainly appropriate for use in undergraduate classes on the Supreme Court as students are likely to find the behind-the-scenes account of the Court and its Justices compelling.

REFERENCES:
Gibson, James L., Gregory A. Caldeira, and Lester Kenyatta Spence. 2003. “The Supreme Court and the US Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?” 33 BRITISH JOURNAL OF POLITICAL SCIENCE 535-556.

Greenhouse, Linda. 2005. BECOMING JUSTICE BLACKMUN. New York: Henry Holt.

Kritzer, Herbert M. 2001. “The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court.” 85 JUDICATURE 32-38.

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

Woodward, Bob and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon & Schuster.

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

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© Copyright 2007 by the author, Chris W. Bonneau.

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RATIONING JUSTICE: POVERTY LAWYERS AND POOR PEOPLE IN THE DEEP SOUTH

by Kris Shepard. Baton Rouge, LA: Louisiana State University Press, 2007. 408pp. Cloth. $55.00. ISBN: 0807132071.

Reviewed by Patrick Schmidt, Department of Political Science, Macalester College, Email: schmidtp [at] macalester.edu.

pp.495-498

So this is what the post-HOLLOW HOPE world looks like. For my students, perhaps not fully sobered up from the party of legal liberalism, the black coffee that is Rosenberg’s THE HOLLOW HOPE (1993) still gets their eyes open and blood pumping. I do note, however, increasing students who come primed with cynicism about the possibility of litigation as an agent of social change, reflecting the wider questioning of everything that was central to law’s project in the hands of the last generation of reformers.

Into such a world, Kris Shepard has undertaken a project to record the work and experiences of attorneys who labored as legal aid attorneys in the Deep South. Shepard’s approach is historical rather than sociological, though “poverty lawyers” do form a distinctive body, and at times he suggests the production of their identity. His chronological frame of the mid-1960s until the latter half of the 1990s also makes political change and institutional concerns a vital part of this story. Indeed, beyond the first ambition of producing a meaningful record of what was unquestionably interesting legal work, using 82 interviews to draw out an oral history of poverty law practice, Shepard asks the impact question: What did the work add up to, set as it was against a backdrop of high-level politics over the funding, operation, and very existence of the Legal Services Program and its successor, the Legal Services Corporation?

Those political maneuvers will be well-known to many readers, though Shepard does an excellent job bringing everyone up to speed. The precursors to federally funded legal aid were voluntary legal aid societies of the late 19th and early 20th centuries, and from the beginning of the Legal Studies Program in 1964, voluntarism provided a foil for southern politicians and lawyers. Their transparent objections, made in professionalism and market-based terms, cover for the resistance to the new balance of power that would prevail if, bolstered by the Supreme Court, legal aid lawyers could summon up due process and equal protection challenges on behalf of their underprivileged clients. More commonly, government-funded lawyers were foot soldiers in the battle to compel state and local compliance with federal proscriptions. There is much in the retelling of the cases handled in the early years (Chapter 2, covering 1965-1970) to justify progressives’ faith that legal services were an essential component of welfare state relief. Shepard indulges his lawyer interviewees in their personal stories, sometimes for unclear purposes but sometimes with great effect, and the degree of racism and maladministration [*496] of public policies leave no doubt about the need for legal activism.

Chapters 3 and 4, detailing the “lean years” of 1970-1975 and expansionary period of 1975-1981, continue the chronology while Shepard also attends to the differences between legal aid offices, such as Atlanta and Northern Mississippi. The institutional uncertainty and transformation of legal services by the Nixon administration comes to the fore quite noticeably. Shepard provides several logistic regressions (wisely in an appendix) that explore Congress’ votes on the Legal Services Corporation, in order to observe that ideological positions, especially the role of moderate voices, were the “predominant influence” on the process (p.109). The national-level politics filter down to legal aid offices as financial and regulatory stresses to be managed, lessons in organizational change that contribute to our understanding of the practice of legal aid. The net effect of these chapters is to suggest a narrative akin to World War I—trench warfare, directed from afar, with scant movement made in any particular direction.

Chapters 5 and 6 provide a more substantive cut on the legal issues at stake in poverty lawyering, examining the topics of low-income families and racial reconstruction, respectively. The chapters are rich with “wow” fact patterns – the kind of cases where you cannot help but stop every once in awhile to say “wow” – and Shepard begins to keep a scorecard on the work of poverty lawyers. Legal services did have its share of successes at the Supreme Court level (see, e.g. Lawrence 1991) but on the ground Shepard gives us cause for equivocation, appreciative of the ambiguities of poverty law practice. He finds clear examples of a positive role for poverty lawyers, such as their success in driving southern communities into a national community (p.177), but he simultaneously douses your enthusiasm with recognition of the “coercive dimension to the expansion of the regulatory state” – in which the poor gain materially but lose autonomy (p.176). Poverty lawyers hold an especially ambiguous place. In some cases lawyers were needed to assist the equitable and efficient delivery of welfare benefits; in other cases (such as parental rights), poverty lawyers worked for clients to resist that paternalism. In these chapters and throughout the book, other factors compel skepticism about litigation as a source of social change, including the relative significance of political activism in producing change and sheer evolution of attitudes over the long passage of time.

One particularly noticeable gap in Shepard’s account lies in his treatment of attorney-client relationships. He clearly appreciates the possibilities of attorney-client tensions, and throughout the book we hear of conservative opponents who claim that legal aid lawyers are ideological crusaders high-jacking needy clients’ cases. Considerable scholarship in the area of “cause lawyering” (e.g., Sarat and Scheingold 1998, 2005, 2006; Scheingold and Sarat 2004) has drawn our attention to the tensions between movement lawyers and clients in individual cases. Without citing that work, Shepard raises similar concerns [*497] with poverty lawyers. The limitation may be that his historical data – interviews and case archives – do not expose those relationships.

Even so, some readers may wish for a more direct encounter with thematic concerns that generalize from the sometimes narrow litigation raised by poverty lawyers. The data here are intriguing for anyone who wants to engage the conceptual quagmire of “who is the client?” Clearly many poverty lawyers saw themselves as doing civil rights work, or at least, working for the benefit of all African-Americans, whether poor or not. The most prominent example is the collaboration-then-parting between North Mississippi Rural Legal Services (NMRLS) and the United League (Chapter 5). NMRLS attorneys assisted United League activists with their street protests, subsequent arrests, and other activities against discrimination. Poverty lawyers saw race at the core of their clients’ problems, defending (in their own words) their “right . . . to apprise its clients of legitimate alternatives that they might use as a weapon to bring a measure of racial justice” (p.214), but they ultimately ran up against regulations that limited the activities of government-funded legal services. Yet Shepard also makes a case for the distinctiveness of poverty law, particularly the many issues that emerge through federal and state welfare programs, and even in the Deep South, those problems do cross racial lines. With race and class both at play, reaching the complicated question of attorney-client relations would have better exposed our assumptions about whom poverty lawyers were trying to help and what good they were trying to do.

What does the scorecard look line in the end? It is difficult to say. The political twists and turns continue with the passing of administrations and Congressional leadership – Shepard carries his account through the fiscal retrenchment of 1996 with a coda of speculation about the George W. Bush administration – and the Supreme Court would never do for “poverty” and “the poor” what it did for race. One answer is to emphasize, as Shepard rightly does, that a significant contribution of poverty lawyers is simply to represent those who have lacked representation for so long, in the “intensely personal” cases that may not leave precedent but make a massive difference in peoples’ lives (p.242). Shepard fashions another claim at the most general level: that poverty lawyers helped to usher the poor of the Deep South into a modern, national legal culture, bringing law and the welfare state into their lives.

Both of those answers are mildly unsatisfying, even accepting Shepard’s caveat that “drawing broad conclusions about legal services is difficult, fleeting, and perhaps misleading” (p.242). Building on engaging empirical work, Shepard himself has made broad conclusions difficult by entertaining deeply critical class-based possibilities. His most provocative and disconcerting thesis may be that Congress erred by tying legal services to the least affluent instead of “a larger proportion of the working poor or even the lower middle class” (p.238). It is not only that legal [*498] services need a broader, more powerful constituency than the poverty-bound. More radically, we are reminded that advocates of legal aid at the turn of the 20th century viewed it as a mechanism of cooptation, to bring the poor within the system and prevent radicalism. Poverty lawyering has deeply conservative possibilities. We do not always know how much poverty lawyers actually accomplished through litigation, or how much they could have achieved had it not been subject to political winds. But it is not just that they failed to produce another legal victory like BROWN v. BOARD. The twist may be that legal success might have only fostered clients’ entry into a coercive modern state and, in the aggregate, undermined more fundamental political change. Readers may reject the most cynical possibilities, but in the least, the questions Shepard poses in RATIONING JUSTICE could reveal a very hollow hope, indeed.

REFERENCES:

Lawrence, Susan E. 1990. THE POOR IN COURT: THE LEGAL SERVICES PROGRAM AND SUPREME COURT DECISION MAKING. Princeton, New Jersey: Princeton University Press.

Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Sarat, Austin, and Stuart A. Scheingold (eds.). 1998. CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. New York: Oxford University Press.

Sarat, Austin, and Stuart A. Scheingold (eds.). 2005. THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE. Stanford, California: Stanford University Press.

Sarat, Austin, and Stuart A. Scheingold (eds.). 2006. CAUSE LAWYERING AND SOCIAL MOVEMENTS. Stanford, California: Stanford University Press.

Scheingold, Stuart A., and Austin Sarat. 2004. SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. Stanford, California: Stanford University Press.

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© Copyright 2007 by the author, Patrick Schmidt.

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TRANSFORMING JUVENILE JUSTICE: REFORM IDEALS AND INSTITUTIONAL REALITIES, 1825-1920

by Steven L. Schlossman. DeKalb, IL: Northern Illinois University Press, 2005. 343pp. Paper. $22.50. ISBN: 0875806031.

Reviewed by Lucy McGough, Paul M. Hebert Law Center, Louisiana State University. Email: Lucy.McGough [at] law.lsu.edu.

pp.491-494

TRANSFORMING JUVENILE JUSTICE is a re-issue of a book that was originally published in 1977 and. has been widely cited as an example of the social history of a juvenile court and a nearby “reform school” in the same early period of development. Steven Schlossman studied newspaper reports concerning the Wisconsin State Reform School for Boys in Waukesha (just West of Milwaukee) and transcripts and other archival material stored in early records of the Milwaukee Juvenile Court.

The formal thesis of the book is to examine where the truth lies in competing historical portraits of nineteenth and early twentieth century juvenile institutions. Certainly Schlossman proves that the Chicago Juvenile Court, typically touted as the first in the nation, was not representative of other juvenile courts in less urban areas, with more modest private and public endowment for experimental research into the causes and cures of delinquency. The sturdy, slightly seedy Milwaukee Juvenile Court mainly handled the delinquencies and deprivations of lower class, ghetto-dwelling European immigrants with minimal education. There was no Institute for the Study of Delinquency and initially the probation “staff” were all volunteers. Preserved hearing transcripts demonstrate the temperamental differences of the six white men who were Milwaukee Juvenile Court judges from 1901-1920. As Schlossman notes, none of them fits the bluff, hearty judicial stereotype of the charismatic Ben Lindsay of the Denver Juvenile Court, whom many assume typify the early leaders of the juvenile courts.

The new Introduction prepared for the book’s reissue is a comradely delight for anyone who has engaged in historical research. The book began as an investigation of nineteenth century institutions housing mostly delinquent children, though as he found, indigent and vagrant children often were tossed into the mix. After exhausting official records and reports of the state reform school of Wisconsin in Waukesha, Schlossman decided to plumb the unofficial reports about the School that were covered in either of the town’s two weekly newspapers and often the principal Milwaukee newspaper as well: “[T]here was no way to predict when an item on the reform school would appear” (p.xiii). Moreover, the articles were usually quite short and therefore easy to miss without a careful review of each page.” He read forty-four years worth of newspapers, from 1857 to 1900! It was no doubt a tense exercise, with only an occasional gem, but also a wondrous immersion in small town culture in another time. [*492]

That reform school research led him into wanting to know how the decision was made to send a particular child to a reform school. Was it to clear the streets of vagrants and criminally-inclined poor – the “social control” model? Or instead were the court and its officers attempting to rehabilitate the child, beginning with removing him from a high-risk environment – the “child saver” model? After attempting in vain to gain access to early twentieth century juvenile court records in several states, largely because those records no longer existed, Schlossman lucked into an interview with a Chief Probation Officer at the Milwaukee Juvenile Court who led him down to the basement where there was a large cage. Inside were hundreds of boxes, one of which was marked “1” and carried the date 1901, the year the Court was founded. Schlossman was permitted to take a sampling from the 12,000 cases heard by the Court between 1901 and 1920. From these moldy records he abstracted an historical portrait of a fledgling court.

Schlossman concludes that there was no single motivation for the creation of the juvenile court or the special institutions for the care of delinquents. A mixture of social forces coalesced: humanitarian impulses, sociocultural pressures fueled by the assimilation of immigrants and economic constraints (courts and probation were cheaper than institutionalization). The advocates for the new court were dreamers. As Judge Julian Mack of the Chicago Juvenile Court wrote in his often quoted 1909 HARVARD LAW REVIEW article,

[The criminal court] put but one question, “Has he committed this crime?” It did not inquire, “What is the best thing to do for this lad?” It did not even punish him in a manner that would tend to improve him; the punishment was visited in proportion tot he degree of wrongdoing evidenced by the single act; not by the needs of the boy, not by the needs of the state. (Mack 1909, at 104)

As it has turned out, there were no simple solutions, and at the core of the conceptualization of the new court was its antithesis. The most striking feature of the early Milwaukee court, an archetype of juvenile courts throughout the country, is the transmutation from the ideal of individualized assessment and treatment to raw unbridled judicial discretion. A transcript of a 1907 delinquency hearing in the Milwaukee Juvenile Court reveals this exchange as the judge questioned a twelve-year-old who was caught smoking in a local park, and who was ultimately charged with loitering and incorrigibility. (There was also evidence in the case that the child (James) had lied about another matter):

Court: Now you smoked occasionally?
James: I only smoked once.
Court: Only once. Did it make you sick?...
James: No sir.
Court: Then you have been in the habit of smoking before?
James: No sir. . .
Court: Did you ever tell your mother to go to hell?
James: No sir.
Court: Didn’t you tell her the other day? You swore at your mother, didn’t you?
James: No sir.
Court [addressing the factory inspector] What did he say?
Inspector: He says, “You don’t know what you are talking about – Go on.” In [*493] a very saucy manner – very saucy to her – and when I talked to her she says he is always that way – could not do anything with the boy. (p.177)

Later in the exchange, the record reflects that the judge became “outraged and committed him on the spot” to the reform school at Waukesha. The judge then lectured James:

You wouldn’t want me to believe all that. I am afraid my boy that you are a kind of pleasant prevaricator. You are a dangerous boy and need training....You must be taught the difference between right and wrong – you don’t seem to comprehend it....you started out on a bad road. You would land, after you grow up, with the training you have now, you would kill somebody – that is, if you thought you could get away, and I am going to send you to the Industrial School. (p.178)

The downside to discretion to hand-tailor a rehabilitative program for James is arbitrariness and abuse of power. This transcript evinces the “worst of both worlds” that Justice Fortas worried about in GAULT (1967): the capricious misuse of the ill-constrained power to punish. Probation and counseling, the early Court’s only remedy, might have salvaged James as he and his family endured his transition to adolescence. There was little to suggest that Waukesha would do more than warehouse James until he reached majority.

This historical journey really comes alive with the transcripts of the hearings. The hearings could be confused with the proceedings of any five juvenile judges, in any place in the United States in 2007. The clients are the same: impoverished, socially handicapped families many of whom ask the court to take their out-of-control children away and institutionalize them. (One of the joys of this book is that Schlossman memorializes nuggets of turn-of-century wisdom, including the “nine Ds of domestic problems: darkness, dirt, disease, dress, debt, distress, drink, disaster, and death” (Bainbridge 1897, at 49)). There were allegations of delinquency that often could just as easily have been brought as complaints of abuse or neglect, both sides of the same coin. The probation officers are familiar: some dedicated, long-suffering and others burned out years ago by unrewarded faith. The judges are by turns modeling and mocking the wise authority figure imagined by Judge Mack; on balance, they display a dismaying arrogance, seemingly affronted that delinquents continue to parade before them.

TRANSFORMING JUVENILE JUSTICE reminds the modern reader that the intertwined concepts of the juvenile court and juvenile rehabilitation are and always have been hopelessly idealistic. The gerund “Transforming” speaks in the present progressive, an apt encapsulation of all attempted reforms of the court and system.

REFERENCES:
Bainbridge, Lucy. 1897. MOTHERS OF THE SUBMERGED WORLD – DAY NURSERIES, THE WORK AND WORDS OF THE NATIONAL CONGRESS OF MOTHERS. New York: D. Appleton & Co. [*494]

Mack, Julian. 1909. “The Juvenile Court.” 23 HARVARD LAW REVIEW 104-122.

CASE REFERENCE:
IN RE GAULT, 361 U.S. 1 (1967).

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© Copyright 2007 by the author, Lucy McGough.

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COMPARATIVE LEGAL LINGUISTICS

by Heikki E.S. Mattila. Aldershot, U.K.: Ashgate, 2006. 364pp. Hardback. $134.95/£70.00. ISBN: 9780754648741.

Reviewed by Trevor Parry-Giles, Department of Communication, University of Maryland. Email: tpg [at] umd.edu.

pp.488-490

Originally published in Finnish in 2002, COMPARATIVE LEGAL LINGUISTICS offers an English translation of an important and compelling examination of the development of legal languages. This is a dense work, filled with examples from every part of the world, driven by a fierce commitment to unpacking the mechanics of legal language use and the implications of that use for legal practice and theory. It deserves the attention of anyone concerned with the role of language in the practice of the law, anyone interested in the comparative nature of international and national legal systems, and anyone motivated by the detailed exploration of linguistics in varied contexts, from law to politics.

Heikki Mattila’s forward to the original Finnish edition of COMPARATIVE LEGAL LINGUISTICS is a fascinating narrative of how someone comes to study, in such a detailed and exhaustive way, comparative legal language systems. Originally interested in legal languages as an undergraduate, Mattila’s interests intensified through his work as a government official in Finland in the 1980s and as a translator and lexicographer in the 1990s. As such, Mattila’s development as a scholar of legal languages has both applied and academic bases. These experiences result in a work that offers a “panorama of the subject, a mix of linguistic, legal, and cultural information” (p.xiii) that is of use to both lawyers who work in a comparative setting and to researchers exploring the nature of law and its application in national and international frameworks.

Divided into four parts, COMPARATIVE LEGAL LINGUISTICS charts the general field of legal linguistics and traces the development of legal languages in a series of European contexts. Part I offers a concise rendition of the foundations and parameters of legal linguistics, highlighting the linguistic approach’s difference from other means of studying legal language. As Mattila observes, legal linguistics “examines the development, characteristics, and usage of legal language.” “Studies in this discipline,” he continues, “may equally concern vocabulary (notably terminology), syntax (relationships between words), or semantics (the meaning of words) of the language” (p.11). Legal linguistics is distinct, Mattila notes, from studies in legal rhetoric and style, concerned as the later is with the capacity and ability of legal advocates to persuade. Legal linguistics also differs from legal informatics, or the study of the relationship between law and information. Instead, legal linguistics uses the specifics of language and the details of language use to explain how law works and functions, particularly in comparative contexts. [*489]

In Part II, Mattila offers an extended discussion of legal linguistics, explaining the functions and characteristics of legal language. Part II also explores legal terminology and the microdevelopment of specific legal language usages. For the reader most interested in the theoretical discussion of legal linguistics, Part II will be the most satisfying part of the book. Mattila’s examples and commentaries are fascinating and often illuminating. A penetrating instance of his insights occurs with his discussion of the dangers of legal initialisations and acronyms. Such usages may, he reveals, function largely for strategic or status purposes, may be confusing and, especially in a comparative legal situation, may overlap and have multiple meanings. “The manner of constructing initialisations is not uniform,” Mattila observes, and “it also has to be borne in mind that the culture of initialisations is not necessarily uniform amongst lawyers even from the same country” (p.89). Indeed, Mattila details seven concerns or objections to the use of legal initialisations that would not be readily apparent to either the practicing lawyer or the legal scholar.

Part II of COMPARATIVE LEGAL LINGUISTICS also reveals Mattila’s cogent sense of the role of language in the formation of community and culture. Not content to explore simply the banal or to explain the obvious, Mattila reflects on the power of language and its capacity to be central in the articulation of community and nation. So, for example, he highlights the linguistic tensions at play in the European Community between the civil law traditions emergent from French law, the role of German law in the development of Community law, and the increasing influence of the English common law tradition in EC affairs. Because of these linguistic interplays, “the legal system of the European Communities . . . can rightly be described as a sort of hybrid, mixed law, in which the legal traditions of Europe increasingly intertwine” (p.108). Just as EC legal institutions borrow from member states and their legal traditions, a reciprocal relationship develops, Mattila reveals, where member states are similarly influenced by the newly emergent EC legal structures and languages. Explorations like those in Part II of Mattila’s work advance the study of language beyond the stale discussions of its development and formation and strive to understand how language means and affects human interaction and the relationships between nations.

Yet another insight from Mattila’s exploration of legal language occurs in his examination of “loanwords,” the “complex phenomenon” that happens when a legal language adopts foreign words. Rather than relying on a typical example from Western Europe, and eschewing the obvious example of his native Finland, Mattila instead utilizes the Indonesian experience. This is a good choice, as Indonesian law manifests an entire array of forces that work on the formation of legal language. Mattila reveals the interplay between dominant, national languages, such as Malay, and more regional usages such as Javanese. Sensitive to Indonesia’s colonial past, Mattila accounts for the role of Dutch usages in legal [*490] development in Indonesia and the religiously colonizing power of Arabic through the migration of Islam to the archipelago. In short, Mattila’s use of the Indonesian context as an example of one of ways that legal terminology works in a culture allows him to display what is most useful about COMPARATIVE LEGAL LINGUISTICS—its capacity to appreciate and reveal the varied, often competing, forces that work to form legal language, and thus legal understanding, legal reality.

Part III is the largest portion of the book, and tells of the development of four different legal languages, tracing their histories, legacies, and contemporary applications. Because of its importance to many Western legal systems, Mattila devotes the first section of Part III to the heritage of Legal Latin, noting its lingering capacity to influence the languages of many contemporary legal systems. Mattila then discusses Legal German, Legal French, and Legal English. These are selected, he argues, because of their capacity to demonstrate different legal systems and traditions, manifesting as they do different visions of civil and common law. In addition, Mattila maintains, these legal languages continue to influence legal systems worldwide, partly because of lasting legacies of colonization and partly due to linguistic hegemony. Part III, as with the rest of COMPARATIVE LEGAL LINGUISTICS, is richly detailed and exhaustive in its treatment of the four legal language systems.

Mattila’s conclusion is a call for continued research on legal linguistics. In his quest to limit the confusion inherent in the polysemic nature of legal languages, Mattila calls for further analyses that “could improve the chances of avoiding mistakes and misunderstandings in the comprehension and translation of legal texts” (p.267). COMPARATIVE LEGAL LINGUISTICS, with its comprehensive analysis, careful attention to detail, and incredibly precise indexing, is a powerful and compelling first step in clarifying the competing meanings, the often confusing polysemy, of contemporary legal languages.

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© Copyright 2007 by the author, Trevor Parry-Giles.

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PATRIOTISM AND OTHER MISTAKES

by George Kateb. New Haven, CT: Yale University Press, 2006. 464pp. Cloth $35.00. ISBN: 9780300120493.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu.

pp.483-487

Recently, I have been trying to think through the potentially massive shifts in the operation of the American state under the Bush administration. George Kateb’s new book is a useful place to start finding a way around the evaluative aspect of this problem. PATRIOTISM AND OTHER MISTAKES is one of those exceptional books that combines scholarly examination of complex topics with evisceration of conventional wisdom and startling insights into the depths of public confusion in the face of the new. Usually, we find ourselves arranged on different sides of ideological issues no matter how convoluted our stands on those sides may be. Kateb’s new book pulls the masks off of the usual justifications of even sophisticated political discourse, showing the tenuousness of our actual positions in political combat and the true conundrums we face as we try to see where our polity is headed. But perhaps I should be a bit more specific.

Kateb offers us a series of sixteen essays built around the troubling prevalence in modern politics of values that justify extreme responses by political actors. This in itself is nothing new, of course; politics has always had an element of instrumental fury in it, and theorists have not ignored it. What Kateb calls our attention to, however, are three current perversions of important values in politics: the undermining of individual dignity, the drive to create more aesthetically pleasing societies, and the rise of anti-instrumental thinking (i.e., a tendency to subordinate rational means to irrational ends). Driven by the exigencies of national security and the complexity and scale of modern political life, these trends have become more virulent in recent years, leading to dimly perceived changes that are quite threatening to democratic processes and, more importantly, to individuality itself. By comparing these disturbing trends to the standard of rights based individuality, Kateb reveals new insights into a rapidly evolving political environment. I do not plan to give summaries of all these essays; as is usually the case, there are some that I found more useful then others. What I will try to do is convey some of the ideas and impressions I got from the essays concerning the concerns Kateb has pinpointed.

Kateb’s first selection of essays concerns the pressures on individual liberty that have arisen in the aftermath of the 9/11 disaster. Kateb’s ideas about the basis for concern in this area are laid out best in his essays, “A Life of Fear” and “On Being Watched and Known.” The latter is an especially useful contribution. As [*484] Kateb points out, individuality is largely a matter of not being found out. We tend to forget this today; the tendency, particularly for the new internet networking tools, is to expose many things about our lives that civil liberties were often intended to hide or obscure. The result is a progressive corrosion of the limits of individual space that civil liberties are supposed to protect. We have become less concerned with intrusions into our own civil rights, and, especially, less concerned about the rights of others, particularly those from different cultural backgrounds. When this distressing trend is combined with the calculated enhancement of pervasive fear concerning security issues in the populace, the stage is set for a variety of initiatives. Perhaps the most dangerous of these is the unleashing of imperial ambitions fueled by expansive and racist categories for identifying enemies. Kateb deserves special credit here for his intellectual bluntness. Virtually all scholarly work on the run-up to the war in Iraq pulls its punches when discussing the political advantages that the Bush administration saw in the conflict; being clear about their unavowed purposes smacks too much of “conspiracy theory.” But, conscious or unconscious (Kateb wisely makes this distinction), those unavowed purposes are central to the entire enterprise, especially the combination of fear for personal safety and demonization of an unfamiliar other. It is only by combining avowed purposes of undisputed ideological purity with pervasive fear and the desensitizing of popular concern with civil liberties that other unavowed motives – control of resources, weakening the voice of political opponents in domestic matters, strengthening the executive – can be achieved.

Kateb is especially sharp on the way this toxic mixture has worked. His essays on patriotism, cultural pluralism, and assaults on the constitution fill out a description of the atmospheric problems created for democratic values by the war. Taking on patriotism first, Kateb points out that there has been a long history of attempts to legitimize patriotic motives by attaching them to physical courage or to principles supposedly embodied by governments. He savages both positions, pointing out that appeals to patriotism invariably lead to calling for a compromise between personal morality and an involuntary, socially inculcated adherence to a particular group. That adherence calls for submersion into a national entity that supposedly gives individuals a collective identity, an identity that can only be established by war and that makes a mockery of the entire idea of individual rights. Kateb’s treatment of cultural pluralism is similar, but more nuanced. Primordial memberships are a fact of life, and avoiding such attachments is probably impossible. This has led to a variety of arguments that attempt to reconcile group affiliations with individuality. But, as Kateb shows, the danger of group-think is precisely what we should be aiming against. It is much easier to identify the vices associated with group identification in democratic [*485] societies (dishonesty, group narcissism, submergence into group identity, and the like) than its supposed virtues. It is the vices to which we should pay attention, using group identity, if possible, as a stepping stone to individual civic virtue. Finally, Kateb ties these themes together with ringing defense of the Constitution based on an original version of originalism. What he reminds us of here is that the Constitution is, in the context of its times, a paean to individual dignity. It should be read that way today – not in terms of the meaning given actual phrasing at the time, but in terms of how that meaning can best be interpreted given the commitment to protection of individual status the Constitution provides. This method of interpretation is what we should use to support resistance to the undermining of individual claims in present conditions.

The next section of PATRIOTISM AND OTHER MISTAKES, concerning politics and aesthetics, is the one I found most interesting. “Aestheticism and Morality,” Kateb’s magisterial treatment of the connection between aesthetics and politics, is both the most complex and rewarding essay in the collection. He begins by describing a variety of justifications for action (religion, preservation of a way of life, and so on) that are often held to transcend morality. Kateb associates these justifications with a basic human craving for aesthetic values in everyday life. The argument here is not so much that people want art or beauty at the center of their lives as that they feel an innate need for aesthetic standards – for consistent, coherent ways of life, for “fit,” for interesting and stylish appearances. This is a profound and fruitful way of looking at the kind of special problems that arise when a way of life has been deeply disturbed. For aesthetic values are not dangerous in themselves; aesthetics only become dangerous when (to put words into Kateb’s mouth) it is vulgar. He finds some unlikely candidates for this kind of thinking – Burke, Nietzsche, Foucault – but makes a convincing case that the drive to create societies that fulfill our aesthetic cravings is, in many ways, the root of a politics cut loose from moral underpinnings. The relevance of this outlook comes into bold relief when one considers the justifications for the occupation of Iraq.

This tour de force is followed by an eye-opening essay on Hannah Arendt. I am no expert on Arendt and have never had any urge to look into her work deeply; she always seemed basically confused about politics and particularly political movements to me. Why, I thought, should we pay attention to an author who only supports a politics that is done “in the right spirit” and leads to a version of human freedom based on it? My problem was that I did not understand the aesthetic basis for Arendt’s ideas. As Kateb points out, Arendt is concerned with a politics that springs from human freedom, a freedom defined by its creativity and capability to transcend usual boundaries of human ideas. The point of theorizing about politics, from her point of view, is to provide standards [*486] of judgment concerning political activity that support human creativity in much the same way as judgments concerning art. If I read Kateb right, he is suggesting that it is by exercising such judgment that we can avoid the dangerous vulgarity which he has already condemned as a major source of actions threatening human dignity. I have seldom had a ruder awakening from a previously held (and mistaken) position. I will never read – or underestimate – Arendt the same way again.

The final section of PATRIOTISM AND OTHER MISTAKES is the most eclectic and difficult to summarize. Here Kateb is testing ideas that are part of the “canon” of political philosophy for their usefulness in combating the forces of irrationality he has described. He presents useful essays on Socrates, Thoreau and Emerson, Hobbes, and St. Augustine, evaluating their strengths and weaknesses as theorists from this perspective. The arguments in this section, however, are best summarized by the last essay in the book, “The Adequacy of the Canon.” Kateb argues (correctly, I think) that, despite a persistent pessimism concerning human capacities, the great thinkers of political theory have not bequeathed us a conceptual framework that can encompass the disasters of the 20th century. He postulates that this is because they failed to grasp the power of imagination when focused on the possibility of an aesthetic reframing of entire societies. That imagination has worked in two unanticipated ways: as “hyperactive imagination” among elites now convinced that the technical means to achieve social order are available, and as “inactive imagination” among masses grasping for personal meaning as part of artificially created social wholes. The two together have produced an atmosphere of fanaticism, a fanaticism fed by a combination of an increasingly proficient but normatively disoriented technology and human beings convinced that societies can be put aright by using rational means to achieve essentially irrational, aesthetically inspired goals. This is a very important insight and uncovers real lacunae in the canon of political thought. Turning to Heidegger and Arendt, Kateb again points to the need to analyze the aesthetic nature of modern political movements. It is that aestheticism that is at the bottom of the fanaticism that plagued the 20th century and, by present experience, appears to still be strongly represented in the 21st.

As I said before, I found some essays in PATRIOTISM AND OTHER MISTAKES more useful than others. In addition to those covered above, I especially recommend to readers Kateb’s essay on Thoreau and Emerson, two neglected figures in political thought, for a useful and optimistic critique. On the other hand, I think his essay on courage is marred by an inadequate concept of military comradeship, and his treatment of technology by a caricature of Marxism. This is a common fate for writers of anthologies, of course; everyone finds something they do not like. I need to [*487] say at once, however, that I seldom came across arguments that were not both penetrating and profound in Kateb’s work. I found myself stopping continually as I read his essays to consider some other area of concern that they had brought to mind. I predict that interested readers will find themselves engaged at higher levels then they might anticipate on a quick perusal of the contents of Kateb’s book.

I think PATRIOTISM AND OTHER MISTAKES recommends itself on several grounds. For teaching purposes, the book would be a useful way to start discussions of contemporary political change in both advanced undergraduate and graduate political philosophy classes. It should also be useful as a way into considering continental philosophy as a tool of political critique. However, the essays in Kateb’s book are of most utility to the educated reader concerned about the turmoil of modern American and world politics. As I said earlier, Kateb rips the mask off of the conventional frameworks of political discourse and reveals, particularly in his critique of aesthetic values in politics, new depths to the dilemmas of our time. His call for a rejuvenation of individual dignity as a focus of critiques of policy is especially welcome, albeit not the easiest remedy to apply. But difficult courses of action are called for in difficult times. We would do well to heed Kateb’s advice.

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© Copyright 2007 by the author, Tracy Lightcap.

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RELIGION AND LAW: AN INTRODUCTION

by Peter W. Edge. Aldershot, Hampshire, UK, and Burlington, VT: Ashgate, 2006. 168pp. Hardback. $99.95/£50.00. ISBN: 0754630471. Paperback. $29.95/£16.99. ISBN: 075463048X.

Reviewed by Cecelia Lynch, Department of Political Science, University of California, Irvine. Email: clynch [at] uci.edu.

pp.481-482

There exist multiple possible points of access between religion and law. Most religious systems are themselves legal systems, in that they presuppose codes of conduct which regulate social (and spiritual) action. They provide, at a minimum, rules and norms to guide everyday life, and at a maximum, codified rights and obligations for adherents. Moreover, many legal norms emanate from religious ethics, including those underlying Just War and natural law.

But the intersection of religion and the allegedly secular Western state (which is itself increasingly being called into question) poses a number of specific problems for social order. Peter Edge addresses a wide and interesting variety of these issues in a comparative context in this volume. He does so thoroughly and competently, by excavating and examining in detail the relevant case law in each context and for each issue. The prose is at times pedantic for the non-specialist, and the scope of the cases compared could have been clarified early on. Nevertheless, this book is a valuable, well-researched, and wide-ranging contribution to our understanding of the relationship between religion and law in contemporary Western societies.

RELIGION AND LAW compares legal systems and definitions of religion as practiced in the US, UK, Canada, South Africa, New Zealand and Australia. Occasionally, Edge also discusses additional cases, such as the European Union and Russia, or UN conventions. A clearer explanation and justification for the countries (and regions) included and excluded at the outset would be helpful. But Edge’s understanding of the courts in each country, their predilections and precedents, and the way in which these inform decisions regarding religion is extremely knowledgeable and helpful.

The issues and rulings that Edge explores are fascinating. His explanation of the rulings always includes a concise breakdown of the legal and religious stakes involved in the cases at hand. These often vary in the different societies examined. Two interesting issues concern property ownership and regulation of “sacred spaces,” and whether religious groups can use substances in their worship (e.g. drugs) that are illegal for the rest of a population, as well as (often) according to international conventions that restrict the use of psychotropic substances. These types of issues, as well as others, go to the core of any putative separation between religion and the state, and they always involve complex negotiations and interpretations of both religious necessity, state objectives and needs, and increasingly, interpretations of [*482] international covenants. For example, Edge demonstrates the range of positions in the US on the use of (sometimes) illegal substances by religious adherents. Courts have put restraints on the use of cannabis by Rastafarians but have made exceptions for the use of peyote in some Native American ceremonies, out of consideration of the special responsibility the US has towards its indigenous peoples. Rastafarians have also not succeeded in arguing discrimination vis-à-vis Christians who use wine in sacramental rituals. In Britain, Rastafarians’ use of cannabis has been restricted on the basis of international conventions which, according to British courts, demonstrate an international consensus in favor of preventing “public health and safety dangers” resulting from use of the substance. The way in which the courts argue for or against the use of these substances, as well as whether and how they bring in domestic histories and relationships or international norms, indicates both the limits and malleability of religious rights in contemporary liberal states.

Another pressing issue in the intersection of religion and law for international relations today concerns whether proselytizing is protected by national and international law. US and European missionaries have been expelled from various countries in Asia for promoting their religious beliefs, and argue that part of their duty as adherents of a given religion is to disseminate their beliefs to others. But this conceptualization of right inevitably runs into the right of states to preserve cultural values that might be eroded by adoption of “foreign” religious beliefs. Edge covers the tensions between human rights conceptions of the freedom to practice one’s religion, often enshrined in domestic law, with those articulating the social right to maintain a state’s or community’s social and religious heritage without external interference, in UN conventions and EU rulings.

These examples indicate only a few of the intertwining issues that Edge’s book addresses. A major strength of his work is his recognition of the complexity of the intersection between religion and law. This complexity depends in part on each country’s institutional history – whether and how its constitution incorporates religion, whether it has played a major role in supporting the transnational expansion of given religious traditions, whether its legislative bodies consider the separation between church and state to be relative or absolute. But Edge also realizes that these characteristics can evolve over time, even within given institutional parameters. We can hope that this book will spawn additional comparative work that considers the intersection between religion and law in non-Anglophone and non-First World contexts. Even more interesting will be work that compares conceptualizations of the relationship between religion and law in states that have a historical relationship as colonizers and colonized (beyond those of the UK and South Africa, Australia, and New Zealand). Edge has begun an important line of inquiry from which scholars of a number of fields, including law, political science, history, and religion, can benefit.

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© Copyright 2007 by the author, Cecelia Lynch.

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HISTORY AND THE CONSTITUTION: COLLECTED ESSAYS

by G. Edward White. Durham, N.C.: Carolina Academic Press, 2007. 516pp. Cloth. $65.00. ISBN: 9781594602818.

Reviewed by Christopher E. Smith, School of Criminal Justice, Michigan State University. Email: smithc28 [at] msu.edu.

pp.477-480

Authors face special challenges when organizing and revising previously published articles in the form of a book. One approach might be to present the articles as discrete and potentially disconnected book chapters that embody an author’s most important contributions to scholarship. Such an approach provides readers with an individual’s most influential works within a single volume. Alternatively, published articles can be selected, organized, and revised to create a thematic connection between them. This thematic thread can provide order and coherence as a reader works her way through the volume.

The latter approach, however, creates certain risks. The chosen theme may be so broad that it genuinely touches some aspect of each chapter yet fails to make the chapters feel adequately linked together. Even worse, the theme may seem so superimposed and tenuously connected to the disparate works that comprise the book’s chapters that the reader fails to grasp its applicability to each chapter. If this last risk emerges, it is difficult to avoid concluding that the author would have been better off by casting the book as presenting discrete, representative works of importance.

There are, of course, other risks, too. Chapters may vary widely in quality and importance. In the case of heavily-footnoted law review articles turned into chapters, there may be editing difficulties when making choices about incorporating or excluding comments and explanations from the footnotes. In addition, authors may also face challenges if they wish to make highly technical articles accessible for an audience of general bookreaders rather than disciplinary specialists.

In HISTORY AND THE CONSTITUTION: COLLECTED ESSAYS, G. Edward White confronts the foregoing challenges and, happily, is largely successful in avoiding the associated pitfalls. Because White, one of the nation’s preeminent legal historians for the past three decades, is an accomplished book author, it would be difficult for him to organize and present a collection of published articles as representing his most important work. Thus, he selected and organized law review articles, published from 1999 through 2006, by focusing on the theme of “the resurgence of history and historical analysis” (p.3) in the U.S. Supreme Court’s constitutional cases as well as in scholars’ evaluations of those decisions. He revised the articles “with a view toward eliminating some details designed for specialist readers” (p.xi), but he retained the law review format of numerous citations and explanatory comments presented as footnotes. [*478]

White divides the essays within the book into three “clusters.” Each cluster begins with a brief introductory chapter prepared for this book followed by three substantive chapters that, except for the book’s final chapter, previously appeared in law journals. The first cluster “traces the emergence of historically oriented constitutional jurisprudence in the late twentieth century. . . . to show the close connection between the emergence of historically oriented constitutional jurisprudence and changing theories of judicial review and the nature of judicial decisionmaking” (p.5). The second cluster “brings historical analysis to bear on one of the most contested issues recently entertained by the Supreme Court: to what extent should international law be part of the corpus of American legal decisions?”(p.5). The final cluster of chapters “examines the distinctive character of the Rehnquist Court in light of the contrasting theories of historical interpretation” outlined earlier in the book (p.6).

As indicated by White’s description of each cluster, the book’s theme concerning the emergence of history in constitutional decision making on the Supreme Court does not carry the reader through a logical progression of topics. One might argue that White, to some degree, succumbed to the pitfall of organizing the book according to a broad theme that is relevant to each chapter but does not adequately connect the chapters closely together. Indeed, White implicitly admits as much by organizing the chapters into distinctive topical clusters. However, the distinctiveness and degree of disconnection between the clusters, especially between the second group and the other two, do not ultimately diminish the importance and value of the book. White is a scholar with impressive knowledge and insight about jurisprudential history, and he has provided a valuable service to the community of constitutional scholars and other interested readers by making his recent work accessible in a single volume.

The first collection of essays will be of great interest to those who teach constitutional law. The three substantive chapters, entitled respectively “The Arrival of History in Constitutional Scholarship,” “The Constitutional Journey of MARBURY v. MADISON,” and “Historicizing Judicial Scrutiny,” provide valuable insights about the development and application of theories of constitutional interpretation. The first chapter is especially strong in tracing the development of influences on constitutional theory, analyzing the advocacy of originalism that emerged in the 1980s, and explaining history’s emerging influence as the countermajoritarian difficulty no longer served as the defining feature of constitutional debates. The second chapter provides an especially cogent analysis of the development, definition, and use of judicial review from the time of MARBURY through the twentieth-century.

As in the book’s other clusters, the material in these chapters helps to inform the reader’s understanding of the others in the specific cluster, but the chapters are sufficiently freestanding that interested readers could gain [*479] significant benefits by selectively reading individual essays of greatest topical interest to them. In particular, those readers with significant background knowledge about Supreme Court history and constitutional law need not read all of the chapters in order.

For teachers of constitutional law, the relative narrowness of the second collection of chapters may make this cluster less useful. Those who devote significant attention to presidential power and foreign relations under the Constitution will, however, find it especially valuable. The three substantive chapters in this cluster are entitled, respectively, “The Transformation of the Constitutional Regime of Foreign Relations: The Old Regime Under Stress,” “The Triumph of Executive Discretion in the Constitutional Regime of Foreign Relations,” and “A Customary International Law of Torts.” As a legal historian, White traces the historical influences over the development of law for each topic. However, this group seems less closely connected to the book’s announced overarching theme of the emergence of history in the Supreme Court’s interpretations of the Constitution. When reading the book’s introduction, I had hoped that the second cluster might delve into the contemporary Scalia-versus-Kennedy debate about the citing of foreign legal authorities in the Supreme Court’s opinions, but White’s chapters focus specifically on the areas of foreign relations and tort law.

For political scientists who teach about the Supreme Court, the third cluster may be of greatest interest and value. The three substantive chapters are entitled respectively “Unpacking the Judicial Center,” “The Internal Powers of the Chief Justice: The Nineteenth Century Legacy,” and “The Jurisprudence of the Rehnquist Court.” The first chapter presents a historian’s view of the development of judicial behavioralism in political science with an interesting focus on the concept of a “center” and “centrist justices” on the Supreme Court. As White notes, “the spatial meaning of center does not simply suffer from the difficulties incumbent on locating justices on an ideological continuum[;] [i]t also fails to clarify what a centrist judicial stance MEANS for individual judges” (p.391, emphasis in original). White criticizes the varied and inconsistent uses of the “center” concept in analyzing the Supreme Court but he does not ultimately reject the concept’s utility for some purposes.

The second chapter in the cluster provides valuable historical perspective on the role of the chief justice, especially with respect to the development of formal protocols for opinion assignments and deliberative processes. The final chapter provides perspective on the Rehnquist Court’s jurisprudence, primarily by examining the historical development of constitutional theory as it relates to decision making tendencies in the Burger and Rehnquist Courts, rather than by analyzing the Rehnquist Court’s specific decisions. In this chapter, as he does elsewhere in the book, White demonstrates his command of the scholarly literature on constitutional theory by analyzing the works of important authors. [*480] Throughout, there are detailed discussions of major works and arguments by John Hart Ely, Martin Shapiro, C. Herman Pritchett, Cass Sunstein, Raoul Berger, and other important scholars. These discussions of significant literature give the book added value and make individual chapters within the volume potentially attractive for use in graduate courses on the Supreme Court and constitutional theory.

If someone’s ideal vision of a book demands close connections between chapters and a coherent theme that carries the reader through the chapters in a logical progression, then White’s volume falls short of those expectations. However, it seems clear from the generality of White’s title for the book that he did not intend to create such expectations. Indeed, any volume that includes the phrase “collected essays” is generally acknowledging the relative independence of various chapters.

Despite the relative disconnection between the second cluster of chapters and the other two groups, White has performed an exceptionally valuable service for the community of scholars interested in the Supreme Court and constitutional interpretation. It can be extremely difficult to keep abreast of important literature on specific areas of law when so much of it is published in a wide array of law journals. All of us are cognizant of those law reviews with the greatest prestige and, indeed, several of White’s chapters were originally published in such widely-read outlets as the VIRGINIA LAW REVIEW and the UNIVERSITY OF PENNSYLVANIA LAW REVIEW. However, many valuable articles are published in law reviews with less visibility. What are the odds, for example, that many interested readers would have discovered White’s article on “Historicizing Judicial Scrutiny” that was published in the SOUTH CAROLINA LAW REVIEW in 2005? Most of us recognize that there are elements of politics (e.g., prestige of institutional affiliation), networking, and luck that affect the placement of articles in law reviews so that one cannot automatically ascribe quality and importance to an article merely based on the prestige of the outlet in which it is published. White’s effort to organize and revise his fine scholarship into an accessible volume helps to overcome the daunting challenges readers face in seeking to identify exceptionally valuable scholarly contributions among the hundreds of law review articles published annually. Moreover, the historical perspective and analytical insights contained in this volume of collected essays confirm that White’s work has much to offer political scientists and legal scholars who teach and write about the U.S. Supreme Court and constitutional interpretation.

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© Copyright 2007 by the author, Christopher E. Smith.

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AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE

by Daniel R. Pinello. New York and Cambridge: Cambridge University Press, 2006. 230pp. Cloth. $55.00/£40.00. ISBN: 9780521848565. Paper $19.99/£14.99. ISBN: 9780521613033.

Reviewed by Ellen Ann Andersen, Department of Political Science, Indiana University Purdue University, Indianapolis. Email: eanderse [at] iupui.edu.

pp.473-476

The ongoing struggle over whether same-sex couples have a right to marry has created a trenchant and timely opportunity to examine the relationship between law and politics and scholars have been quick to jump at the bait (e.g., Dupuis 2002; Eskridge and Spedale 2006; Gerstmann 2003; Goldberg-Hiller 2002; Hull 2006; Koppelman 2006; Merin 2002; Mohr 2005; Strasser 2002; Wardle, et al. 2003).

Dan Pinello’s new book is a fine addition to this burgeoning catalogue, especially for those seeking a text accessible to undergraduate audiences. AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE uses the extraordinary events of 2004 as a jumping off point to explore the emergence and progress of the movement for marriage equality in the United States. Same-sex couples in six different states were afforded the ability to legally marry during that year, even if only briefly. Massachusetts, of course, became the first state in the nation to embrace marriage equality formally in May 2004 when, in response to the Massachusetts Supreme Judicial Court’s decision in GOODRIDGE v. DEPT. OF PUBLIC HEALTH (2003), it began issuing marriage licenses to same-sex couples. (By the end of the year, 6,038 couples had taken the opportunity to wed.) But in the months immediately prior, local officials and governing bodies in five other states had made headlines by issuing licenses to same-sex couples. Before they were forced to cease, officials in San Francisco had issued marriage licenses to 4,037 same-sex couples, officials in Multnomah County (OR) had issued them to 3,024 couples, and officials in Sandoval (NM), New Paltz (NY), and Asbury Park (NJ), had issued licenses to 64, 24, and 7 couples, respectively.

Pinello uses a case study approach to trace the sequence of events leading to the issuance of marriage licenses in five of the states (omitting New Jersey) and the political controversies surrounding those decisions. While he opens and closes with brief studies of events in New Mexico and New York, Pinello’s emphasis is centered on events in Massachusetts, California, and Oregon, and these three case studies are outstandingly rich with detail, emotion, and insight.

Each chapter has its own hook. The Massachusetts chapter begins with this simple question: “What happens politically once courts enter the fray surrounding hot-button social issues such as same-sex marriage?” (p.33). Pinello then guides the reader through the GOODRIDGE litigation and the subsequent legislative debates over amending the Massachusetts constitution to overturn the court’s decision, up [*474] through the 2005 legislature’s decisive rejection of a constitutional amendment it had approved the previous year.

The California chapter is centered on San Francisco Mayor Gavin Newsom’s decision to grant marriage licenses to same-sex couples, the three-week “winter of love” that ensued, and the subsequent decision by the California Supreme Court to void the licenses. Pinello also touches subsequent legislative efforts to extend marriage to same-sex couples although his story stops before the California legislature became the first in the nation to pass a bill extending marriage rights to same-sex couples (the bill was subsequently vetoed by the California governor.)

Oregon is distinguished by being the only state in the nation where same-sex couples were (briefly) allowed to marry and whose citizens were subsequently able to vote on the legitimacy of that action via a constitutional amendment. In 2004, Oregon’s citizens amended their constitution to limit marriage to heterosexual couples, by a vote of 57-43. (Twelve other states passed similar amendments that year.) Pinello’s Oregon chapter discusses the decision by the Multnomah County Commission to grant marriage licenses to same-sex couples, but puts most of its emphasis on the amendment battle that followed.

In each chapter, Pinello makes extensive use of first-person narratives to power his tale and these interviews, which take two forms, are the signal strength of the book. Pinello interviewed key actors in each state, including legislators, county officials, and interest group leaders, and these accounts provide the reader with a birds-eye view of how elite actors variously employ legal, legislative, and electoral tactics as they attempt to manage competing claims about the meaning of marriage. Pinello also interviewed 50 couples in Massachusetts, California, and Oregon who put themselves and their relationships on the front lines of the battle over marriage equality by getting married, and their voices offer an emotionally compelling “bottom-up” counterpoint to the “top-down” perspective of the elite interviews.

The corresponding weakness of the book is its rather slight analytical frame. Pinello claims that he is using the struggle over same-sex marriage as a way to study three recurring themes in political science: (1) the role and impact of courts in a democratic society; (2) the participation and impact of interest groups in a pluralistic polity, and; (3) the sources of, and political responsiveness to, policy initiatives in American government (pp.30-32). While these themes, and more, can be pulled from his account, the book is primarily journalistic, rather than expressly analytical. It rarely engages with existing literature. For example, Pinello’s discussion of interest groups proceeds without a single reference to the voluminous body of scholarship on the subject, nor does he tie his discussion of policy origins and diffusion into the extensive literature on that subject. The analytical weakness of the book is typified by the fact that the list of references runs only three pages long in a 200-page volume. [*475]

The one body of literature that Pinello does engage with is the so-called Rosenberg-McCann debate over whether court decisions have the capacity to effect progressive social reform. In the final chapter of his volume, Pinello assesses the impact of GOODRIDGE, both in Massachusetts and across the nation. Here again he relies heavily on interview data from key political actors and couples who married in Massachusetts, Oregon, and California, but he also reviews the emerging scholarly analyses of GOODRIDGE’s impact on the 2004 presidential elections and its impact on the passage of thirteen statewide constitutional amendments banning same-sex marriage in 2004. Ultimately he concludes that the Massachusetts Supreme Judicial Court’s decision in GOODRIDGE decisively tipped the scales toward progressive reform, notwithstanding the very real backlash it engendered. Scholars exploring the question of judicial efficacy will find Pinello’s analysis useful, whether or not they agree with his ultimate conclusion.

That said, the book’s primary value is clearly as a teaching resource. Dan Pinello has written a book that is engaging, easy to read, and appropriate for a variety of different undergraduate classes. It would be a useful text for upper-level courses on judicial or interest group politics, but also for introductory American politics classes, because the book can prompt discussions about so many different facets of American politics in addition to its obvious utility as a primer on a major civil rights issue. The book offers students a chance to think critically about the appropriate relationship of the legislature and the courts in public policy making, as well as giving students a chance to consider the various strategies that interest groups employ in attempting to effect their political goals. But in addition, his chapter on Massachusetts offers a very nice description of the state’s legislative process, one that can easily be compared and contrasted with the processes of other states. His chapters on California and Oregon give students a chance to think about the role of local governments in the American system. The entire book, really, gives students the opportunity to think about what it means to live in a federal system, where legal and political opportunity structures change from state to state. And as a bonus, the book serves as a corrective to the notion that individuals have little power in the political system. In this book, individual actors make a very big difference and the stories they tell will resonate with even the most jaded student.

REFERENCES:

Dupuis, Martin. 2002. SAME-SEX MARRIAGE, LEGAL MOBILIZATION, AND THE POLITICS OF RIGHTS. New York: Peter Lang.

Eskridge, William N., and Darren R. Spedale. 2006. GAY MARRIAGE: FOR BETTER OR FOR WORSE?: WHAT WE’VE LEARNED FROM THE EVIDENCE. New York: Oxford University Press.

Gerstmann, Evan. 2003. SAME-SEX MARRIAGE AND THE CONSTITUTION. New York: Cambridge University Press. [*476]

Goldberg-Hiller, Jonathan. 2002. THE LIMITS TO UNION: SAME-SEX MARRIAGE AND THE POLITICS OF CIVIL RIGHTS. Ann Arbor, MI: University of Michigan Press.

Hull, Kathleen. 2006. SAME-SEX MARRIAGE : THE CULTURAL POLITICS OF LOVE AND LAW. New York: Cambridge University Press.

Koppelman, Andrew. 2006. SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES. New Haven: Yale University Press, 2006.

McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.

Merin, Yuval. 2002. EQUALITY FOR SAME SEX COUPLES: THE LEGAL RECOGNITION OF GAY PARTNERSHIPS IN EUROPE AND THE UNITED STATES. Chicago: University of Chicago Press.

Mohr, Richard D. 2005. THE LONG ARC OF JUSTICE: LESBIAN AND GAY MARRIAGE, EQUALITY, AND RIGHTS. New York: Columbia University Press.

Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Strasser, Mark. 2002. ON SAME-SEX MARRIAGE, CIVIL UNIONS, AND THE RULE OF LAW: CONSTITUTIONAL INTERPRETATION AT THE CROSSROADS. Westport, CT: Praeger.

Wardle, Lynn D., Mark Strasser, William C. Duncan, and David Orgon Coolidge. 2003. SAME-SEX UNIONS: A DEBATE. Westport, CT: Praeger.

CASE REFERENCE:

GOODRIDGE v. DEPT. OF PUBLIC HEALTH, 798 N.E.2d 941 (Mass. 2003).

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© Copyright 2007 by the author, Ellen Ann Andersen.

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CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER

by Walter F. Murphy. Baltimore: The Johns Hopkins University Press, 2007. 568pp. Cloth. $55.00. ISBN: 9780801884702.

Reviewed by Jack Wade Nowlin, Jessie D. Puckett, Jr., Lecturer in Law and Associate Professor, The University of Mississippi School of Law. Email: jnowlin [at] olemiss.edu.

pp.468-472

Walter F. Murphy, a man who likely needs no introduction to the readers of this publication, is the McCormick Professor of Jurisprudence Emeritus at Princeton University and the author of numerous well-known works, including scholarly articles, books, textbooks, and even best-selling novels such as VICAR OF CHRIST. Murphy’s new book, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER, is a crowning achievement to a lifetime’s serious reflection and writing on constitutions, constitutionalism, and democracy. The phrase “instant classic” may be an oxymoron, but if it can be fairly applied to any recent work in the field of constitutional theory, this is the one.

Murphy’s book is divided into two main sections. The first section is entitled “Creating a Constitutional Democracy.” It includes chapters on a broad range of topics such as the goals, interests, and values which constitutions are designed to serve; the alternative political systems a polity might select for itself aside from or in addition to constitutional democracy – such as representative democracy, consociational democracy, guided or coercive capitalism, and perfectionism; the question of whether to draft a constitutional text or rely on existing and evolving constitutional traditions; designing the basic “shape” or architecture of a constitution, including such questions as the fundamental structure of governmental institutions and whether to adopt some form of constitutional preamble; designing the judicial institutions of government; drafting a bill or declaration of rights; and, finally, issues related to the drafting of constitutional provisions to deal with such “special cases” as the emergency powers of government. The second section is “Maintaining a Constitutional Democracy,” and it includes chapters on citizens and citizenship, military and security forces, bureaucracies, deposed despots, constitutional interpretation as a form of constitutional maintenance, and the limits of legitimate constitutional change.

CONSTITUTIONAL DEMOCRACY has three particular strengths. The first is the sophistication of the book’s analysis of the philosophical foundations of constitutional democracy and of political viewpoints such as perfectionism. The second is the book’s tremendous depth and richness of comparative and historical constitutional analysis, which draws on a broad range of examples from North American, European, Asian, Latin American, and African constitutional history and contemporary practice. The third is the vibrancy of the book’s first section, which takes the form of the debates of a fictional constitutional “caucus” which meets to [*469] discuss the design and adoption of a “new political system” (p.31) for the fictional nation of “Nusquam,” a country just “emerging from a long period of authoritarian rule by a dictatorial junta of military officers and wealthy civilians” (p.23).

In the introduction and first section of CONSTITUTIONAL DEMOCRACY, Murphy explores the normative bases of constitutional creation and builds on his earlier analysis of democracy and constitutionalism, the conceptual framework familiar to the readers of his casebook, AMERICAN CONSTITUTIONAL INTERPRETATION, and his well-known essay “Constitutions, Constitutionalism, and Democracy” in CONSTITUTIONALISM & DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD. However, his treatment of the normative foundations of constitutional creation is fuller and more layered in CONSTITUTIONAL DEMOCRACY – both with greater attention paid to the competing arguments in favor of representative democracy and constitutionalism as rival theories of government and with a very illuminating examination of additional political perspectives, including consociationism, guided capitalism, and perfectionism. These approaches to the form, purpose, and role of government are given a robust analysis and a careful defense. For instance, a fictional professor – whose arguments, Murphy notes, “parallel” in many respects those of Robert P. George (p.102, note 112) – addresses the caucus and in seven pages of text defends the “perfectionist” view that “[j]ustice does not require law to be neutral between claims of what contributes to or detracts from a morally worthy life” (p.102). Consociationism and guided capitalism receive similar extended analyses. Murphy’s discussion of these topics – as with the other topics in CONSTITUTIONAL DEMOCRACY – is informed by a breathtaking array of comparative and historical illustrative examples. CONSTITUTIONAL DEMOCRACY includes discussions of various aspects of constitutional government and constitutional change in the United Kingdom, Japan, Chile, Canada, Germany, South Africa, France, India, Italy, Singapore, Ireland, Turkey – and many others nations.

Much of the foregoing discussion occurs in the context of the debates of Nusquam’s fictional constitutional caucus, which is composed of a diverse group of characters representing a wide range of philosophical perspectives and cultural backgrounds. Murphy’s use of fictional narrative here greatly enriches the academic discussion of constitutional creation and allows him to present debate in a lively fashion from a variety of viewpoints. Among the dramatis personae of the caucus are Ibrahim Ajami, a “Sunni Muslim who is professor of Islamic Studies at the [Nusquam] National University” who “must struggle constantly to differentiate the Muslims with whom he works from the Wahhabites, who regard him as an atheist” (pp.32-33); Jessica Jacobsohn, a “former professor of comparative constitutional law on the faculty of Nusquam’s National University” who “had been fired because of telling her classes that Nusquam urgently needs [*470] sweeping constitutional reform” (pp.33-34); Federika Strega, a civil servant who studied law and economics at the University of Chicago and whose intellectual debt to Richard Posner is obvious and acknowledged (pp.34-35); and a Walter Murphy-esque character, Professor Retlaw Deukalion, who appears as a lecturer to address the caucus and is described as “a retired member of the faculty of Princeton” who “ha[s] written extensively about problems of establishing a new constitutional order” (p.61).

After intense discussion, informed by presentations by various fictional academics representing various political perspectives, the caucus of Nusquam votes on a series of proposals. The members of the caucus ultimately choose constitutional democracy as their basic form of government. They decide to write a constitutional text, and they opt in favor of “a bicameral parliamentary government,” rejecting both “federalism and presidentialism” as basic constitutional structures (p.239). They also choose the “German Model” of a single constitutional court with the power of judicial review. As for a declaration of rights, they adopt both non-justiciable “Irish-style directives for general policy goals,” and “a bill of rights with full judicial protection” (p.306). Parliament, however, is “authorized to override, by a three-fifths majority, judicial interpretations” of the bill of rights except for “those pertaining to freedom of religion, political participation” and other specified fundamental rights (p.306). On the question of abortion, Professor Retlaw Deukalion expresses his personal view that the proposed Constitution recognize the fetus as “human with a right to life,” but he also suggests as a matter of political prudence that the caucus adopt a general clause “expressing commitment to the sanctity of life” and “leave the specific policies” on questions such as abortion “to Parliament and the Constitutional Court” (p.320). This suggestion is also adopted by the caucus.

In the second section, Murphy returns to conventional exposition and presents, among many other things, enlightening discussions of constitutional interpretation and the distribution of interpretive authority among the institutions of government. On the question of constitutional interpretation, Murphy argues that the familiar form of originalism which seeks to recover and “think the thoughts the founders were thinking” faces “insuperable difficulties” arising from the fact that such thoughts may never have existed in any form useful for constitutional interpretation (p.476). Thus the “principal danger” of this form of originalism lies in interpreters’ mistakenly “imputing their own creative choices to the dead” (p.480). Murphy recognizes, however, that alternative approaches emphasizing the purposes and underlying political theories of a constitution could easily confer on interpreters such wide discretion in interpretation as to “convert the constitutional text into a hortatory document” (p.481). Thus the “principal danger” of such purposive approaches “lies in the interpreters’ justifying their choices according to their own judgments about current needs restrained only by the general purposes of the constitutional text and the indistinct [*471] borders of the constitutional order” (p.480). Still, Murphy concludes that “purposivism at least honestly acknowledges that interpreters are choosing, revising, and perhaps even creating” (p.481).

Murphy also recognizes that “[m]itigating the dangers” of purposivism as an interpretive method “requires sharing interpretive authority so that no one person or institution can monopolize the processes of constitutional reformation” (p.481). Not surprisingly, then, Murphy endorses departmentalism over judicial supremacy in constitutional interpretation, stating that “[i]f a single institution” such as the U.S. Supreme Court “could not only determine the scope of its own authority, that of the other branches of government, and the legitimacy of all public policies but also definitively define the very essence of constitutional democracy, the polity would be in danger” (p.470). Murphy thus predictably condemns the U.S. Supreme Court’s recent judicial supremacist decision in CITY OF BOERNE – a decision invalidating the Religious Freedom Restoration Act on judicial power and federalism grounds.

Indeed, Murphy describes the decision in CITY OF BOERNE as the result of a judicial “fit of pique” in response to the implicit challenge to the Court’s supremacy in constitutional interpretation presented by Congress’ use of the legislative enforcement power expressly granted to it in Section Five of the Fourteenth Amendment, an enforcement power Congress legitimately used to restore a form of heightened constitutional protection for the free exercise of religion after the Court had abandoned such protection (p.491, note 94). Notably, Murphy also asserts, as an empirical matter, that in practice “the actual operation” of the various institutional arrangements in constitutional democracies “produces some form of departmentalism” and thus that “in no constitutional democracy does any single institution have either a monopoly on constitutional interpretation or a guarantee of interpretive supremacy” (p.469). Murphy, then, clearly sides with the departmentalists, both prescriptively and descriptively, on the question of interpretive authority over the U.S. Constitution, and, moreover, he views departmentalism as a necessary constitutionalist check on the authority of institutions – such as the Supreme Court – that, in Murphy’s view, must unavoidably deploy a potentially dangerous purposivist interpretive method in constitutional interpretation.

Of course, some readers will find flaws in Murphy’s book. A few may be put off by the unusual novelistic device used in the first half or may find that the non-academic characters talk just a bit too much like academics to be quite convincing. Others may be annoyed by Murphy’s generous sprinkling of jabs at predictable targets – such as George W. Bush, John Ashcroft, Pope John Paul II, Antonin Scalia, Robert Bork, and so on. But, in the end, such complaints are quibbles. CONSTITUTIONAL DEMOCRACY is simply a masterpiece, displaying an encyclopedic command of the stuff of constitutional theory and a symphonic grace in its arrangement. [*472] Murphy’s magnum opus is truly just that – a great work – and no doubt one that will endure as a classic for decades to come.

REFERENCES:

Murphy, Walter F. 1979. THE VICAR OF CHRIST. New York: MacMillan.

Murphy, Walter F., James E. Fleming, and Sotirios Barber (eds). 1995. AMERICAN CONSTITUTIONAL INTERPRETATION, Second Edition. Westbury, New York: Foundation Press.

Greenberg, Douglas, Stanley N. Katz, Melanie Beth Oliviero, and Steven C. Wheatley (eds). 1993. CONSTITUTIONALISM & DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD. New York, Oxford: Oxford University Press.

CASE REFERENCES:

CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).

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© Copyright 2007 by the author, Jack Wade Nowlin.

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QUEERS IN COURT: GAY RIGHTS LAW AND PUBLIC POLICY

by Susan Gluck Mezey. Lanham, MD: Rowman and Littlefield Publishers, Inc., 2007. 290pp. Cloth $70.00. ISBN: 0742549313. Paper $24.95. ISBN: 0742549321.

Reviewed by Sharon Whitney, Department of Sociology and Political Science, Tennessee Technological University. Email: swhitney [at] tntech.edu.

pp.462-467

There have been fifty years of identity politics and gay rights issues pursued in American law and public policy, much of it in federal and state courts, but also in legislation, and in the court of public opinion. Susan Gluck Mezey’ QUEERS IN COURT offers a prism for understanding the litigation strategy in the context of a democratic political culture. Mezey’s method of analysis is a comparative historical-institutional narrative, buttressed by public opinion polls on gay rights issues. Her work is comprehensive, covering nearly 300 cases, scholarly, and written in a way that makes it accessible to the general reader.

The book’s narrative methodology is appropriate for the two empirical questions Mezey addresses, which are theoretically significant for democratic politics and political science. First, is litigation a more successful minority rights strategy than ordinary politics? Second, in granting gay rights wins, have the courts acted counter to a popular majority sentiment (p.8)? With that said, Mezey does not shy away from revealing how she thinks the judiciary should respond to the gay rights claims her analysis covers, and this is something to be appreciated by activists and advocates on either side of the issue. She is empathetic on the side of gays claiming rights, and critiques excessive judicial self- restraint. One quotation, with specific reference to same-sex marriage rights claims in state courts, which go back about thirty years and have mostly lost, illustrates this point:“The cost of their restraint was abnegation of their duty to adjudicate properly presented constitutional claims” (p.235).

The book is structured well. Its “Introduction” sets the stage in terms of empirical political theory. Modern scholars have puzzled over whether the U.S. Supreme Court generally legitimates a majority view, or is severely lagging or way ahead of a national majority sentiment, i.e., counter-majoritarian. Mezey’s questions really boil down to asking which model – legitimating or counter-majoritarian – best fits the gay rights struggle.

Mezey points out that in political science the legitimating model was identified empirically by “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” (Dahl 1957). However, Dahl focused narrowly on the judicial review of Congressional acts, and ignored state action. Consequently, it did not reveal anything about the post-New Deal era of civil liberties and civil rights issues emanating from state action. A more relevant and up-to-date review of the legitimating model is found in “Rethinking the Civil Liberties and Civil Rights Revolutions” (Klarman 1996), [*463] which concedes that, while the Court is often in front of majority views expressed at a local or regional level, it generally reflects a broader and ascendant trend in national majority opinion. Does this revised legitimating model best fit the gay rights struggle?

Chapter One, “Forging Gay Rights Activism” chronicles events and the major periods through which gay identity and gay rights activism transverses. It may surprise some that it all started in Germany in the 19th century – i.e., decades before the rise of Hitler. In the United States it began as a response to McCarthyism repressions during the Cold War era of national security, at least a decade before the 1960s so-called sexual revolution. Then, of course, there were the riots of June 1969 at Stonewall Inn in Greenwich Village, New York, resisting police raids of gay bars. This launched the era of organizing and litigating using First Amendment doctrines. The organized Christian fundamentalist opposition movement had its first wave in the 1970s, in an effort to reverse local gay rights ordinances. Then, of course, there was the discovery of AIDS in the mid-1980s, which awakened the general public to the effects of rampant closeted sexual conduct. Moreover, the public health threat united libertarians of all stripes, feminists, and gay rights activists behind the cause of a new rationale for bringing a gay, lesbian, or bisexual orientation out of the closet and decriminalizing homosexual conduct. Unfortunately, the Supreme Court was not persuaded it should extend the right of privacy for adult non-commercial consensual sexual conduct to decriminalize homosexual sodomy, which led to the ill-fated 5-4 holding of BOWERS v. HARDWICK (1986). BOWERS prompted gay rights strategists to switch to to equal protection of the laws for sexual orientation, which led to a litigation win in ROMER v. EVANS (1996). If BOWERS was the equivalent of DRED SCOTT (1856), as some gay rights activists saw it, then LAWRENCE v. TEXAS (2003), which reversed BOWERS, was the equivalent to BROWN (1954). Of course, it is too soon to see what the long-range effect of LAWRENCE will be. LAWRENCE probably emboldened the Massachusetts Supreme Judicial Court to rule on the grounds of state law for the same-sex marriage equality in GOODRIDGE (2003); and GOODRIDGE provided more fodder for a new round of popular opposition, organized by a conservative Christian fundamentalist movement, to challenge such attitudinally liberal judicial activism.

Chapter Two, “Litigating Equality and Privacy Rights,” goes into detail on the history of sodomy statutes, and the steps leading to BOWERS, ROMER, and LAWRENCE. In the process, it explains the mystique of different levels of scrutiny for equality claims, as applied to gay rights. One apt point that Mezey (p.56) draws from Gerstmann (2003, at 9) which I think bears repeating is this: on the one hand, the [*464] Court refuses to accord gays the status of a suspect class and apply strict scrutiny on the grounds they are not politically powerless; but when whites complain that they have been subjected to discrimination as a result of affirmative action programs, the Court applies strict scrutiny because race is a suspect classification. In other words, in effect, the underlying issue remains to be this: is sexual orientation, like sex and race, a status-based classification, or a conduct-based one?

Chapter Two also discusses in an enlightening way the unanimous vote in HURLEY v. IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON [GLIB] (1995) (pp.56-59) versus the split vote in BOY SCOUTS OF AMERICA [BSA] v. DALE (2000) (pp.67-72), given the precedent set in UNITED STATES JAYCEES v. ROBERTS (1984). At issue in all three cases is a state’s anti-discrimination public accommodations law and a private organization’s First Amendment claim as a grounds for excluding a given person or group. In UNITED STATES JAYCEES, the Court upheld the state interest public accommodations law prohibiting unreasonable sex discrimination against a defense for excluding women by a private men’s club on the grounds of expressive association. The Court said it was women per se who were excluded, not women who disagreed with the United States Jaycees’ message. Thus, in this case, a woman’s anti-discrimination claim trumped the Jaycees’ First Amendment claim. But, according to a unanimous Court, GLIB is on a different footing. While the state does prohibit discrimination on the basis of sexual orientation, GLIB wanted to carry a self-identifying parade banner, which was inconsistent with the message the Veterans Council wanted to project. Thus, in this case, the Veterans Council’s First Amendment expressive association claim trumped gays’ state-guaranteed anti-discrimination right. Coming now to BSA, Dale, an Eagle Scout, came out as gay while in college, and his membership in a college gay rights club was revealed by a local newspaper, which prompted BSA to exclude him as an Eagle Scout. Dale challenged the exclusion based on his state-guaranteed right of non-discrimination, UNITED STATES JAYCEES, and the Fourteenth Amendment’s guarantee of equal protection of the laws. But, is Dale’s case closer to UNITED STATES JAYCEES or to GLIB? According to Chief Justice Rehnquist, writing for the majority, BSA is closer to GLIB. According to Justice Souter, writing in dissent, Dale’s case is closer to UNITED STATES JAYCEES. At issue, of course, is the distinction between a right of expressive association and a right of free speech, and the scope of expressive association. The weight of scholarly opinion is critical of the majority opinion in BSA.

Chapter Three is “Struggling over Same-Sex Marriage.” Same-sex marriage cases go back 30 years. Mezey covers the mostly lost cases, and every significant success up to GOODRIDGE and beyond. She also details the 2004 wave of state constitutional amendments that banned the performance of same-sex marriage within a state and its recognition when performed in a different state, and she looks at the political science literature interested in whether or not the 2004 re-election of President Bush pivoted on conservative mobilization for these bans. She mentions the episodic events of local [465] officials authorizing same-sex marriages, which came to nothing legal in the long run, and the efforts of Republicans to forward a federal Marriage Protection Amendment, again to no avail. The post-GOODRIDGE upshot, for now, is an uneasy stalemate over whether and how to legitimate same-sex long-term commitments. The public appears not to have a majority sentiment for legitimating same-sex marriage. At the same time, public opinion is moving in the direction of accepting more legitimacy for long-term same-sex commitments. On the litigation front, issues of comity between the states and judicial federalism will at some point undoubtedly re-ignite the same-sex marriage debate. In the meantime, I recommend Koppelman’s SAME SEX, DIFFERENT STATES (2006) for a pragmatic approach to understanding how the comity issues at stake may be resolved.

Chapter Four is titled, “Contesting Inequality in the Military,” and Chapter Five is “Challenging Employment Discrimination.” While the number of cases in these areas has grown, the dial on outcomes has not turned that much. The military gets its way in excluding gays. National security agencies also get their way in these kinds of cases. Otherwise employment discrimination is being abolished.

Chapter Six is the “Conclusion.” For the different periods of gay rights litigation there were unique doctrinal strategies and outcomes, which adds up to a mixed view on which model of judicial review best fits the gay rights struggle. The earliest doctrinal successes came in the 1950s, with the Court limiting governmental censorship of First Amendment rights and with which there is a consistent public view of gay rights. BOWERS proved that next relying on a right of privacy to decriminalize homosexual sodomy was ineffective, and this was consistent with at least some states’ public view. More successful for the gay rights claim was the equal protection strategy for sexual orientation, which won in ROMER. Whereas the counter-majoritarian model fits this case in relation to Colorado’s voting population, as compared with a broader and ascendant national public opinion, the legitimating model best fits ROMER. In federal court litigation regarding gays in the military, the Court is lagging behind public opinion, which is strongly in favor of allowing gays to serve (p.179). Thus, Mezey concludes that litigation in this area is “futile” (p.235). In other areas of employment discrimination, with the exception of national security concerns, the record is much better for gays in both federal and state courts, but so is a strategy of legislation effective, at least in the states. With respect to legitimating gay marriage, or civil unions, litigation so far has proved mostly unsuccessful, but legislative action in this area is not much better. Thus, for those who believe in the ethical position of same-sex marriage, finding the right forum to press their argument is crucial. Overall, though courts can help gays, it is not a panacea for change, and much depends on individual judges and their attitudes—do they see discrimination as a function of unjustified stereotypes or as a reasonable democratic sentiment? Gay rights activists and advocates need [*466] not abandon the litigation strategy, but they must also recognize that courts face constraints that often make judges unable or unwilling to advance the gay rights cause.

In general, to return to her first question, Mezey concludes that “yes” the courts are in a better position to satisfy minority demands when other branches are not. This is qualified by a recognition that judges also may face internal and external constraints, which makes them unable or unwilling to do so. To the second question, the evidence leads her to the conclusion that as a general rule, when gay rights claims win it is because the judiciary has been activist, by ruling in a counter-majoritarian direction, and when they do not win it is because the judiciary has been restrained and deferred to the popular majority sentiment. On the whole, the courts’ judicial activism is necessary to advance the interests of the gay community.

I had two final thoughts as I finished reading this book. First, I view the book as a welcome addition to a library supporting gay rights research and believe it would be useful to a broader audience of other scholars, activists, and advocates. It is gratifying for political science in general to see that law review journals no longer have a monopoly on this subject. In recent years, my shelf of scholarly literature written by political scientists on the gay rights struggle has grown significantly. I put Mezey’s book on par with some of the best work I have seen to date: PRIVATE LIVES, PUBLIC CONFLICTS: BATTLES OVER GAY RIGHTS IN AMERICAN COMMUNITIES (Button, Rienzo, and Wald 1997); ANTI-DISCRIMINATION LAW AND SOCIAL EQUALITY (Koppelman 1996); THE GAY RIGHTS QUESTION IN CONTEMPORARY AMERICAN LAW (Koppelman 2002); SAME SEX, DIFFERENT STATES (Koppelman 2006); GAY RIGHTS AND AMERICAN LAW (Pinello 2003); AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE (Pinello 2006); and the range of authors and articles found in A SYMPOSIUM ON THE POLITICS OF SAME-SEX MARRIAGE (PS, April 2005).

My second thought was that the time might be ripe for a full-scale attitudinal study of judicial votes covering all areas of gay rights litigation in federal and state courts of last resort. Pinello’s GAY RIGHTS IN AMERICAN LAW is an important first step in that empirical direction, but it specializes in analyzing state court family law cases. Obviously, because it will be costly in terms of both research resources and individual energy, I can see it being done by a young scholar at a prestigious research university who has a passion for the subject and a willing and helpful set of mentors.

REFERENCES:

Button, James W., Barbara A. Rienzo, and Kenneth D. Wald. 1997. PRIVATE LIVES, PUBLIC CONFLICTS: BATTLES OVER GAY RIGHTS IN AMERICAN COMMUNITIES. Washington D.C.: Congressional Quarterly.

Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” 6 JOURNAL OF PUBLIC LAW 279-95. [*467]

Klarman, Michael J. 1996. “Rethinking the Civil Rights and Civil Liberties Revolutions.” 82 VIRGINIA LAW REVIEW 1-67.

Koppelman, Andrew. 1996. ANTI-DISCRIMINATION LAW AND SOCIAL EQUALITY. New Haven: Yale University Press.

Koppelman, Andrew. 2002. THE GAY RIGHTS QUESTION IN CONTEMPORARY AMERICAN LAW. Chicago: University of Chicago Press.

Koppelman, Andrew. 2006. SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES. New Haven: Yale University Press.

Pinello, Daniel R. 2003. GAY RIGHTS AND AMERICAN LAW. New York: Cambridge University Press.

Pinello, Daniel R. 2006. AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE. New York: Cambridge University Press.

Segura, Gary M., Gregory B. Lewis, D. Sunshine Hillygus, Todd G. Shields, Frederick Liu, Stephen Macedo, Evan Gerstmann, Ellen D. B. Riggle, Jerry D. Thomas, Sharon S. Rostosky, Miriam Smith, Patrick J. Egan, Kenneth Sherrill, Donald P. Haider-Markel, and Mark R. Joslyn. 2005. “Symposium: The Politics of Same-Sex Marriage.” 38 PS 189-239.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BOY SCOUTS OF AMERICA v. DALE, 530 U.S. 640 (2000).

BROWN v. BOARD OF EDUCATION OF TOPEKA, KA, 347 U.S. 483 (1954).

DRED SCOTT v. SANDFORD, 60 U.S. 393, (1856).

GOODRIDGE v. DEPT OF PUBLIC HEALTH, 798 N.E.2d 941 (Mass. 2003).

HURLEY v. IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON, 515 U.S. 557 (1995).

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

ROMER v. EVANS, 517 U.S. 620 (1996).

UNITED STATES JAYCEES v. ROBERTS ,468 U.S. 609 (1984).

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© Copyright 2007 by the author, Sharon Whitney.

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BAR CODES: WOMEN IN THE LEGAL PROFESSION

by Jean McKenzie Leiper. Vancouver: UBC Press, 2007. 256pp. Hardcover. $85.00. ISBN: 9780774813198. Paper. $29.95. ISBN: 9780774813204.

Reviewed by Susan Gluck Mezey, Department of Political Science, Loyola University Chicago. Email: smezey [at] luc.edu.

pp.458-461

Jean McKenzie Leiper’s book on Canadian women in the legal profession is interesting on a number of levels. Although the focus of the book is on women lawyers in Canada, her story is generally applicable to women lawyers in other countries, including the United States, and, indeed, is relevant to many women professionals. Her research is based on interviews with women lawyers carried out over a twelve-year period. Each chapter includes generous quotes from her subjects to illustrate her discussion and flesh out her narrative. Another valuable feature of this book is the way in which the author integrates the work of feminist scholars such as Cynthia Fuchs Epstein, Catharine MacKinnon, Carol Gilligan, Naomi Cahn, and Deborah Rhode, and consequently weaves a feminist analysis into her study.

Because her interview techniques play an important role in her findings, they should be briefly described. She began interviewing subjects in 1994, limiting her respondents to Toronto and London, Ontario; four years later, as a result of a grant, she was able to broaden her respondent pool to include the entire province of Ontario, adding fifty new respondents to the original sixty. Thus, employing sophisticated methods of analyzing this qualitative data, she and her assistants interviewed (and re-interviewed) a total of 110 women for the study. Her discussions are enriched by her continual efforts to return to the women in her sample to ask follow-up questions and track their progress (or lack thereof) in the legal profession, as well as their family status. Through this method, she is able to report on the status of some of her women respondents through 2006.

One of the shortcomings of the book, however, is that she limits her respondents to women, a technique that perhaps allows her to report their stories in greater depth, but obviously at the same time, constrains her ability to determine the extent to which sex plays a role in the lives of the members of Ontario’s legal profession. She does not really provide a satisfactory explanation for the decision to have a single-sex pool of respondents except to say that she chose this approach “because, without doubt, their [women’s] experiences differ from those of most men engaged in the practice of law” (p.15). Although I have no difficulty believing this to be the case, clearly this single-sex research approach precludes a conclusive demonstration of her assertion.

Leiper seeks to answer the question that US scholars have also raised a number of times: why it is that women enter the legal profession in equal (or more recently, even greater) numbers than men, yet are more commonly found [*459] in the lower ranks of the profession? Her answer, one echoed by many others, is that family obligations (perceived or real) encumber women in their jobs. (There is some immediate support for this conclusion in the fact that women with children lag behind women without children.) More broadly, she attributes the status of women in the profession to differences in the time constraints placed on women and men. And although most of her respondents self-report an imbalance of labor in their households, it would have been very useful to gain the male perspective on this issue.

Leiper devotes an entire chapter to the effects of “robing” on women lawyers, describing in great detail how, although women in her study perceive these robes as instruments of the patriarchy, many also believe that they help heighten their sense of professionalism, confidence, and authority. Because this experience is irrelevant for women lawyers in the United States, this chapter provides an interesting point of comparison between the two countries, although it does limit the generalizability of her findings to those countries with the same tradition.

She recounts the slow progress of women lawyers in Canada, beginning with the first Commonwealth woman admitted to the bar in Ontario in 1897. As in the United States, Canadian women have overtaken men to become 57 percent of the legal profession in May 2005. However, despite these numbers, according to Leiper, the increasing presence of women has not greatly succeeded in changing the norms of the profession, which still largely operates on male norms, especially with respect to family relations. Indeed, she paints a dismal picture of the status of women lawyers in Ontario; far from achieving equality, they still confront discrimination in the form of sexual harassment, glass ceilings, and wage gaps. She appears to take some comfort in the fact that at least their presence has helped place these issues on the agenda and has stimulated debate on the status of women in the profession.

The chapter concludes with a discussion of women’s experiences in law school and the changing nature of legal education. Leiper indicates that sex is no longer as important in structuring the law school experience. According to her, the data upon which such conclusions are derived are outdated and based on a narrow subset of US law schools, making them inapplicable to the Canadian experience and, indeed, not even very relevant to most schools in the United States today. Although women in her study reported that sex played a role in structuring their law school experiences, they also noted the effects of differences in age and social class.

Beginning in Chapter 4, the “time crunch” chapter, she engages in a detailed exploration of the subject of time and how it affects women lawyers. She discusses the findings of existing studies on time stresses in working families, particularly the effect of these stresses on women. Comparing her results with data from the Canadian General Social Survey, she reports that the legal professionals in her study face more “time crunch” than working women generally. Not surprisingly, her data show that women with younger [*460] children experience the greatest amount of “crunch.” Contrary to what one would expect, however, she also finds that the type of legal practice has little or no effect on the amount of stress they feel.

Specifically, the women in her study report pressures from inadequate sleep, inadequate time to spend with children and/or husbands, and inadequate time for themselves. These women tell a familiar story: they work as long (or longer) than their partners/husbands on their jobs and are nevertheless the ones with primary responsibility for their children and homes. Although some women attempted to reduce the time crunch by easing their professional life burden, in doing so, they naturally faced a reduction in compensation.

Chapter 5 continues the theme of time, focusing on the temporal pressures on women’s lives as determined by “clocks and calendars.” She writes knowledgeably about theories of time, concluding, as many others have, that time is gendered, as men have a great deal more freedom from nonprofessional obligations than women do. She examines the way the legal profession treats women in great detail, observing that the legal establishment tends to ignore women’s family obligations and seems to assume all lawyers have “wives” at home. Access to time, she believes, “is a critical component of social capital that guarantees professional success” (p.141), and because women have less time, and hence less “social capital,” they are generally found in lower status jobs and receive less pay for their work.

Consistent with her efforts to place her study within the context of feminist theory, Leiper discusses the views of such feminists as Julia Kristeva and Carol Watts, including the debate over the centrality of women’s reproductive roles as primarily responsible for the extreme “temporal conflicts” they feel. Her interviews provide rich data on how women must manipulate their schedules to accomplish their multifaceted tasks and demonstrate that, although paid help relieves them of some of the actual labor, it is not a solution, as women must still assume the lion’s share of responsibility for organization of the household.

Leiper has surely captured the essence of the “time crunch,” much of which will sound incredibly familiar to women employed outside the home, lawyers or not. Her respondents report varying degrees of fatigue, guilt, and pressure to perform, all set against the backdrop of billable hours. And although perhaps large firms exacerbate the problems, she observes that women in small firms face their own set of problems, as do women in public interest or government work.

Focusing on women’s careers in Chapter 6, she notes that women generally have different career paths than men do, with more deviations and stops along the way. She emphasizes, however, that although women’s family responsibilities may affect their status as legal professionals, “discriminatory practices” (p.146) are primarily responsible for the salary and partnership gaps between the sexes. Her interview subjects report that pregnancy creates special concerns for them as their [*461] employers or senior partners generally react badly to the news of their pregnancy, largely refusing to accommodate it. Consequently, many women are essentially fired, forced out of their jobs, or relegated to second-class citizenship after announcing their pregnancy. Over and over, the women lawyers in her study describe how problems arising from pregnancy or family obligations led them to pursue different careers or, at least, different jobs.

Leiper concludes by looking back at the legal profession and the role of women in it over the past three decades, acknowledging that there has been a somewhat greater willingness to allow women to reconcile their family and professional obligations. Looking ahead, however, she concludes that there is still a “long way to go” for women to achieve “true equality” as legal professionals (p.178).

Through her initial set of questions and her follow-up interviews, Leiper is able to provide a rich account of the lives of her respondents, chronicling their struggles to make their schedules conform to the demands of their profession and their families. Based on her data, this book represents a solid contribution to the literature on women lawyers and, because of its accessibility, it is appropriate for the classroom as well.

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© Copyright 2007 by the author, Susan Gluck Mezey.

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THE DESHANEY CASE: CHILD ABUSE, FAMILY RIGHTS, AND THE DILEMMA OF STATE INTERVENTION

by Lynne Curry. Lawrence, KS: University Press of Kansas, 2007. 176pp. Cloth. $29.95. ISBN: 9780700614967. Paper. $15.95. ISBN: 9780700614974.

Reviewed by Kate Greene, Department of Political Science, University of Southern Mississippi. Email: kate.greene [at] usm.edu.

pp.455-457

Lynne Curry’s THE DESHANEY CASE: CHILD ABUSE, FAMILY RIGHTS AND THE DILEMMA OF STATE INTERVENTION is part of the University Press of Kansas Series LANDMARK LAW CASES AND AMERICAN SOCIETY. This series explores important legal cases from the trial of Anne Hutchinson to the Slaughterhouse Cases, the trials of Nazi Saboteurs, and the affirmative action case of Allan Bakke, as well the Supreme Court case of Joshua DeShaney. These short, concise books seek to put a social, political, and historical context to important legal cases. If this book is typical of the series, then it is an excellent series indeed.

Joshua DeShaney was four years old when he was brought into the Mercy Hospital in Oshkosh, Wisconsin, unconscious from a head trauma. His injuries, which doctors soon discovered were not the result of one event, left half his brain permanently destroyed and his body partially paralyzed. Joshua and his family (his father, his father’s former sister-in-law, and her son) had been under the voluntary supervision of the local child protective worker for over a year due to suspicions regarding previous injuries Joshua had sustained. Eventually Joshua’s father Randy was arrested and charged with felony child abuse. He was later convicted of the charges. Meanwhile, Joshua’s mother, who had given up custody of Joshua to his father so that he could have “a nice kid life,” filed a civil action against the child protective worker, her supervisor and the Wisconsin Department of Social Services and its representative authorities. Rather than simply suing under state tort law, since the Wisconsin law limited the amount of such awards and would not provide enough money for Joshua’s care, the case was brought as a federal constitutional challenge, alleging that the state had been negligent and had violated Joshua’s due process rights to life (the life he had before his injuries) and his right to liberty (the right to move about physically and to exercise autonomy when he reached adulthood) (p.89). These constitutional claims were novel and controversial and would eventually reach the Supreme Court of the United States.

DESHANEY v. WINNEBAGO COUNTY, certainly one of the most emotionally-laden cases decided by the Supreme Court, received a great deal of attention and criticism from legal scholars and was a wake-up call for state social service agencies. This book examines not just the legal, but also the familial, social, political and historical contexts of Joshua DeShaney’s life and court case. It is a book which, as the [*456] series editors note, “we cannot put down, nor should we” (p.x). I could not put it down and read its 160 pages in one sitting, skipping my dinner and THE DAILY SHOW in order to finish it.

Lynne Curry has written a book that will invoke pain, sadness, anger, and frustration as well as enlighten and inform the reader with its confrontation with child abuse, bureaucracy, the public/private split, the legal system and constitutional law and politics. Using social work case files, medical testimony, legal depositions, police reports, media coverage, oral histories and legal briefs and opinions, she pieces together the story of Joshua DeShaney and his family with the history of social work and its approach to child abuse, the criminal and civil legal processes, and the politics of Supreme Court decisionmaking. Though Curry is an historian, this book will be of interest to child abuse activists, legal scholars and students (and teachers) of social work, public administration, and public law, especially those interested in constitutional interpretation and politics, but those who study the judicial process as well.

Curry begins with Joshua’s story. In this chapter, we meet the major players at the local level. Curry’s narrative is objective, yet direct and honest. Without giving us too much detail, we learn the story of Joshua and his parents, the social/child protective worker handling his case, the local police and the doctors and nurses involved. This is followed by a chapter on the history of social work in the United States and in particular the child abuse aspect of social work. Here we learn of the conflict faced by social workers who must confront a professional conflict between family maintenance (to keep children out of the failed foster care system) and the protection of abused children. The next chapter follows Randy DeShaney’s experience with the criminal justice system alongside an analysis of the development of criminal child abuse law in the US. We next encounter the lower ranks of the federal court system and the constitutional issues and arguments made in Joshua’s civil suit. All the relevant legal players (lawyers and judges) are introduced, and the legal processes and constitutional issues and approaches are well explained.

The chapter on the case before the Supreme Court is complete and powerful. With the legal issues already laid out, explained and argued, Curry takes us into the realm of constitutional interpretation and Supreme Court decisionmaking. She includes a discussion of the legal briefs presented to the Court, takes us to the oral arguments (one of the most interesting parts of the book), and finally explains the opinion writing process for the Court. Because the issues and constitutional law are so well explained in the earlier chapter, the reader needs little assistance understanding the Court’s opinions (both majority and dissenting). Curry concludes the book with an examination of the scholarly legal critiques of the decision and the impact the whole case had on child abuse law and approaches to child protective services. She also highlights what this case can teach policymakers so they can improve these services. [*457]

This is a book designed for students and non-academics. There are no footnotes, but an excellent bibliographic essay is included at the end, and it would be a highly usable text for courses in family law, family violence, judicial process, constitutional law, social work and public administration. I can think of three courses of my own in which I could use this book: Introduction to Law in American Society, Constitutional Law, and even Women and Politics. It is well-written and highly readable by even the most reluctant student, and Curry’s explanation and analysis of complex social, political and legal issues is excellent. She takes difficult and complex issues and analyzes them with clarity and completeness. Those with little knowledge of these areas will come away with a clear understanding of the material, and those already possessing some knowledge will come away with a greater feel for the interrelationships of the familial, social, political and legal aspects of this complex reality in which Joshua and all of us live.

From my scholarly chair, there is nothing wrong with this book. From my front porch swing, Curry is too kind in her critique of some of the players, but in particular, the child protective worker. The worker went to Joshua’s home the day before he appeared at the hospital with his final injuries, but rather than actually see Joshua, whom she had been told had had another “accident,” had fainted recently and was sleeping, she spent her time during this visit in a friendly encounter helping the other members of the family prepare for a birthday celebration. It is one thing to have such a heavy caseload that she could not visit the family and then for Joshua to turn up at the hospital, and another to actually visit the home and fail to physically observe the child under her care.

In conclusion, I must borrow from Justice Blackmun’s dissent in DESHANEY: “Poor Joshua.” His father is out of jail, his protective worker is retired and at peace with herself, and their lives go on. Joshua lives today, mentally impaired and paralyzed, in an adult care facility in Wisconsin. I can only hope that this excellent book will be read by many people and that the lessons that can be learned from this story and legal case will be used to make this world a better place for all of us. It is too late for Joshua. Maybe it is not too late for some other young child. Those of us who believe the state has an obligation to protect all its citizens, young, old and every age in-between, know that obligation can be met. The question remains when we as a society will actually choose to truly care about each other.

CASE REFERENCE:

DESHANEY v. WINNEBAGO COUNTY, 489 U.S. 189 (1989).

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© Copyright 2007 by the author, Kate Greene.

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ENFORCING EQUALITY: CONGRESS, THE CONSTITUTION, AND THE PROTECTION OF INDIVIDUAL RIGHTS

by Rebecca E. Zietlow. New York, NY: New York University Press, 2006. 288pp. Cloth. $45.00. ISBN: 9780814797075.

Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania. Email: BSWEET [at] clarion.edu.

pp.419-423

Rebecca Zietlow has written an informative book that questions a popularly held belief that courts have been the primary protectors of minority rights. She argues that Congress, more often than not, has been the primary protector of minorities. To support this argument, she compares the historical roles of the courts and Congress in terms of protecting minority rights. When assessing these roles, a comparison of relative strengths and weaknesses as institutions is also provided. She argues that Congress as an institution is better equipped to protect minority rights. Zeitlow focuses on a particular type of rights which she refers to as “rights of belonging.” These are rights of inclusion that ensure that all members in our national community can participate equally. The rights of belonging are distinct from citizenship rights because the latter create “insiders” and “outsiders.” Rights of belonging bring “outsiders” into the community.

The historical analysis is done in Chapters Two through Five. Four key time periods are examined, the period before the Civil War, the Reconstruction Era, the New Deal, and the Civil Rights Era. In only one of these time periods did the courts take the lead in expanding rights of belonging, namely the Civil Rights Era. In the period prior to the Civil War, neither Congress nor the courts had much to be proud of in terms of protecting individual rights or rights of belonging. Zeitlow indicates that Congress’ nonfeasance was the result of an inability to act. Despite Madison’s efforts, Congress was not given any power to enforce the rights provided in the Constitution and the Bill of Rights. Instead of Madison’s “federal negative” or legislative veto over state legislatures, the Supremacy Clause was placed in the Constitution. This compromise meant that the federal courts, rather than Congress, would have the job of protecting individual rights. Perhaps as important as Congress’ lack of power, was its lack of political will to protect individual rights. This was no more evident than in the struggle over the issue of slavery. Congress enacted fugitive slave laws in 1793 and 1850, both of which favored the slaveholder over slaves and free blacks. Even if Congress had wanted to act, the Supreme Court handed down decisions that made it extremely difficult. The most notable decision was DRED SCOTT v. SANFORD. This decision propelled the United States toward civil war because it precluded a congressionally formulated resolution of the slavery issue.

The next period to be examined is the Reconstruction Era. It is during this era that Congress not only took the lead in expanding rights of belonging, but had to work against restrictive Supreme [*420] Court rulings. The Republicans came out of the Civil War with a firm control over Congress. They were even able to override many of President Johnson’s vetoes of Reconstruction legislation. The Republicans were determined to provide the newly freed slaves with rights of belonging, making them members of the national community. Zeitlow provides a nice summary of the Republican legislative tour de force in the area of civil rights. The Thirteenth, Fourteenth, and Fifteenth Amendments are discussed, as well as the 1866 Civil Rights Act, the Enforcement Acts of 1870 and 1871, and the Civil Rights Act of 1875. Unfortunately, the effect of this legislative effort was severely limited by Supreme Court decisions. In the SLAUGHTER-HOUSE CASES and the CIVIL RIGHTS CASES the Court gutted much of the Republican effort to protect the freed slaves. First, the Court so narrowly read the privileges and immunities protection of the Fourteenth Amendment that is was virtually nonexistent. Second, the Court limited Congress’ section five enforcement power in the Fourteenth Amendment to only remedying state action. The chapter concludes with a brief discussion of the debate over the meaning of the Fourteenth Amendment.

The third period to be examined is the New Deal Era. Zeitlow states that most constitutional scholars focus on the changes in federalism and the separation of powers. However, these changes were accompanied by an expansion of the rights of belonging. New Deal legislation created rights for workers and established a “federal safety net.” Chapter Four then goes into a rather detailed analysis of the Wagner Acts’s legislative history. The struggle between the courts and Congress was basically a replay of the Reconstruction Era. Congress tried to expand rights, and the Supreme Court placed obstacles in its path. The Great Depression saw wide-scale unemployment, eventually creating a climate that was more supportive of the right to organize. Roosevelt’s National Industrial Recovery Act (NIRA) provided a statutory basis for the right to organize. Business responded by creating “company unions.” Furthermore, NIRA lacked a mechanism for enforcement. The result was increased tension between labor and management and a surge in strikes. Senator Robert Wagner responded by introducing a bill to enable workers to pick their own representatives. It is at this point that two different arguments in support of Wagner’s bill were framed. Wagner was more concerned about economic equality, while others were more concerned about labor unrest and its subsequent disruption of the economy. Both felt that labor’s right to organize was the solution.

Chapter Four appears to present an error in economic data. Zeitlow reports that more than 1.47 million workers were involved in strikes in 1934 and that this represented “51.1 percent of the country’s total workforce” (p.74). This would suggest an unimaginably low national workforce of less than 3 million people out of a population of over 120 million. Perhaps the 1.47 million represents 51.1 percent of the unionized workforce. [*421]

Chapter Four then provides a nice history of the lobbying efforts of the proponents and opponents of Wagner’s bill. Also important in the struggle to get the Wagner Act passed was the activities of the Supreme Court. In May of 1935 the Court struck down NIRA as unconstitutional in the SCHECHTER POULTRY decision. Zeitlow suggests that in an ironic way this decision made passage of the Wagner Act easier. Opponents of the bill felt that they could avoid the political fallout of voting against the bill because the Court would strike it down anyway. The SCHECHTER decision also persuaded Wagner to shift his argument for the bill from one of economic equality to quelling labor unrest. The constitutionality of the Wagner Act was uncertain, especially after the Supreme Court struck down the Bituminous Coal Act which provided for collective bargaining. After the 1936 election and in response to Supreme Court decisions, Roosevelt unveiled his court-packing scheme. There was widespread condemnation of Roosevelt’s plan, plus it became a moot point after the Court upheld the Wagner Act in NLRB v. JONES & LAUGHLIN STEEL CORP. The chapter concludes with a brief discussion of the limited reach of the Wagner Act, partially as a result of passage of the Taft Hartley Act. Zeitlow also discusses the New Deal’s failure to address the issue of race. This failure was the result of a split in the labor movement over race and Roosevelt’s dependence on southern Democrats.

Chapter Five covers passage of the 1964 Civil Rights Act. Zeitlow describes the passing of this act as “momentous,” and it certainly was. In terms of rights and race relations, it was transformational. The civil rights era, however, did not start with the 1964 Civil Rights Act. The clearest starting point would be BROWN v. BOARD OF EDUCATION. Even this landmark case was foreshadowed by SMITH v. ALLWRIGHT, striking down all white Democratic primaries, and SHELLEY v. KRAEMER, striking racial restrictive covenants. The difficulty in enforcing BROWN made it clear that the other branches had to act. Additionally, a significant amount of discrimination occurred in the private sector, rather than being state sponsored. The Civil Rights Cases discussed earlier limited the reach of the Fourteenth Amendment to state action. Getting around this obstacle further emphasized the need for congressional action. Zeitlow indicates how the sight of police dogs and fire hoses prompted President Kennedy to take action. Kennedy sent an expanded civil rights bill to Congress. Tragically, it took the Birmingham bombing and Kennedy’s assassination to propel the bill forward. Zeitlow succinctly lays out the necessity for bipartisan cooperation and the key role of Republican Senator Everett Dirksen in defeating a filibuster. After passage, the Civil Rights Act of 1964 successfully withstood a constitutional challenge. A year later the Voting Rights Act of 1965 was passed. A number of other pieces of legislation expanding rights of belonging are also briefly mentioned at the end of the chapter.

Chapter Six outlines the argument that state legislatures may be best suited for expanding rights of belonging. In theory [*422] a federal system works to protect liberty, with divided powers and competing sovereigns. More recently, advocating states’ rights has generally been avoided because of the close association with segregation and racism. Interestingly, before the Civil War policymakers in the North and the South used states’ rights arguments for formulating their own policies on slaves. After the Civil War the Fourteenth Amendment significantly altered the division of power between the states and the national government. Nonetheless, the states have still been, at times, in the forefront of expanding rights of belonging. Zeitlow provides a number of examples, for instance Wyoming allowing women to vote, Wisconsin’s unemployment compensation, and minimum wage laws in Massachusetts. Smaller political units, such as states and cities, allow smaller interest groups to have a voice. These smaller political units provide a “sense of political community and accountability” (p.134). Gays and lesbians have been able to achieve political gains that are not possible yet on a national scale. Furthermore, as the states and cities experiment with policies that expand rights of belonging, the policies gain legitimacy. As legitimacy is gained, national acceptance follows, and the policies start to spread nationwide. Congress has generally passed legislation that creates and protects a floor for rights of belonging. The states are free to provide additional rights and protections.

Zeitlow cites three examples where Congress passed legislation that prohibited states from expanding rights of belonging – the Fugitive Slaves Acts of 1793 and 1850, and the Defense of Marriage Act (DOMA) of 1996. However, the latter piece of legislation differs in one significant way from the first two. The DOMA does not restrict what the states can do internally. It simply states that the federal government will only recognize a marriage between one man and one woman, and that is all that any state has to recognize. States are free to experiment with their own policies on same-sex relationships. Zeitlow essentially concludes the chapter by reiterating the need for Congress to set a uniform baseline of rights. Following Justice Brennan’s argument for new judicial federalism, the states should then be free to build on the baseline set by Congress.

In Chapters Seven and Eight, Zeitlow argues that Congress, as an institution, is better suited than the courts for protecting rights of belonging. Some of the institutional advantages that Congress has over the courts “include the legitimacy of democratic rule, the flexibility of legislatures for fashioning remedies, the transparency and accountability of congressional debate, [and] the enforceability of legislation” (p.146). “When legislatures act to remedy . . . exclusion, their recognition of this injury in and of itself sends a strong message of inclusion. . . . When rights of belonging are defined and enforced through the political process, the process encourages a national dialogue over the meaning of these rights and the values that underlie them” (p.166). Judicial enforcement of rights lacks the legitimacy gained from community engagement in the political process. [*423]

However, Zeitlow reminds us of Justice Robert Jackson’s position that the Bill of Rights was supposed to remove some subjects from the political arena, beyond the reach of majoritarian institutions. In other words, the courts are to act as countermajoritarian institutions that protect minority rights. Zeitlow then succinctly summarizes the work of scholars who argue that the courts have not acted consistently as countermajoritarian protectors of individual rights. Even when the courts do act to protect the rights of individuals, rights of belonging are not necessarily advanced. “[R]ights of belonging are equality-based rights, court enforcement will tend to privilege liberty interest over equality interest because courts tend to favor individual interest over collective interest” (p.162).

In conclusion, the argument that the Supreme Court has sometimes played an obstructionist role in the expansion of rights is not a novel one. It is fairly obvious that the Court impeded progress during Reconstruction and the New Deal. However, the merits of Zeitlow’s book are twofold. First, she introduces and incorporates the concept of “rights of belonging” into the debate about which branch has been more progressive, and which branch is more capable of being progressive. Second, her book provides a detailed, yet highly readable, historical description of the struggle for inclusion. It is written at a level that should be accessible to an upper-level undergraduate majoring in political science or history. The book would be an appropriate supplemental text in a course on civil liberties and civil rights.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

CIVIL RIGHTS CASES, 109 U.S. 3, S.Ct. 18, 27 L.Ed. 835 (1883).

NLRB v. JONES & LAUGHLIN STEEL CORPORATION, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937).

SCOTT v. SANDFORD, (19 Howard) 393, 15 L.Ed. 691 (1857).

SCHECTER POULTRY CORP. v. UNITED STATES, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935).

SLAUGHTERHOUSE CASES, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873).

SHELLEY v. KRAEMER, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).

SMITH v. ALLWRIGHT, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).

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©Copyright 2007 by the author, Barry N. Sweet.

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ANDREW JACKSON AND THE CONSTITUTION: THE RISE AND FALL OF GENERATIONAL REGIMES

by Gerard N. Magliocca. Lawrence, KS: University Press of Kansas, 2007. 216pp. Cloth. $29.95. ISBN: 9780700615094.

Reviewed by Daniel Hoffman, Department of Social Sciences, Johnson C. Smith University. Email: dhoffman [at] jcsu.edu.

pp.416-418

Gerard Magliocca’s book is a fascinating, if depressing narration of the Jacksonian movement’s constitutional agenda, strategies and tactics. While many of the themes and episodes are pretty familiar, Magliocca interrelates them in thoughtful and interesting ways.

Highlights of the narrative can be briefly sketched as follows. After winning the presidency in 1828, Jacksonians initiated the Indian Removal Act of 1830, and the president vetoed a number of internal improvement bills passed with bipartisan support. The Court responded to the Cherokee removal first with a confrontation-avoiding ruling in CHEROKEE NATION v. GEORGIA and later with a “preemptive,” egalitarian one in WORCESTER v. GEORGIA. Yet the Court recessed without taking any steps to secure enforcement of its decision. Encouraged, Jackson proceeded to veto the 1832 Bank bill. The ensuing election of that year yielded a broad Jacksonian triumph, lasting until 1840. Jackson sought no constitutional amendments, but packed the courts with loyal Democrats for whom precedents like M’CULLOCH v. MARYLAND and WORCESTER v. GEORGIA had no legitimacy. The Taney Court never cited either case as an authority.

Magliocca attributes the Whig victory of 1840 to another financial panic and new charges of corruption and arrogance in Washington. But the president’s death deprived the Whigs of the fruits of their victory, because Vice-President Tyler was a Democrat chosen to balance Harrison’s ticket. Ironically, his veto of the Whigs’ Bank bill deprived the Taney Court of a chance to overrule M’CULLOCH. But Democratic wins in subsequent elections demoralized and marginalized the Whigs, opening the door for the advent of a new opposition movement. According to Magliocca, the Cherokee removal led directly to the flourishing of abolitionism and to the eventual Republican rise of the 1850s. The Court responded with the “preemptive” DRED SCOTT decision, which in turn, he asserts, propelled Lincoln’s 1860 victory. Ultimately, Magliocca holds, the Fourteenth Amendment marked a deliberate restoration of the guiding principles of M’CULLOCH v. MARYLAND and WORCESTER v. GEORGIA.

One particular strength of this book is the presentation of Jacksonian constitutional stands, especially on federalism, Indian removal and slavery, as a coherent ideological package. All three stands favored the agenda of newly enfranchised southern and western voters, who were unhappy with the national government on several grounds. Their grievances included the financial panic of 1819, in which the National [*417] Bank played a conspicuous pro-creditor role; multiple disclosures of Washington corruption; and the Adams-Clay deal by which the House of Representatives gave Adams the presidency in 1824 after Jackson won a plurality in the electoral college.

Another strength is the clear recognition that constitutional development involves not just the judiciary but all three branches of government, working with and against each other according to shifts in party strength that flow from biennial elections, judicial appointments, and sometimes from sheer accidents such as the death of a president. Courts variously choose between simply upholding the status quo, or reaching beyond the narrow question presented in order to issue “preemptive” opinions, or acquiescing in inevitable change.

A third strength is the interesting take Magliocca offers on a selection of Supreme Court cases, some famous and some relatively obscure. Each decision is viewed through a frankly political lens, as Justices calculate both on the desired outcome and on how sweeping a ruling the context and one’s colleagues will bear.

On the other hand, the book’s conceptual framework seems problematic. Key concepts like generation, regime, cycle and reform are not rigorously defined. While there is no question that law and politics evolve over time, Magliocca’s references to “regular” or “predictable” change are puzzling. It is easy to say that “reform leads to resistance, and resistance leads to reform” (p.112): how could this ever be falsified? Certainly things change. Yet we have no theory that can predict the transformation, collapse or replacement of political parties or the outcomes of elections, which makes talk of ostensibly regular constitutional “cycles” rather bewildering.

Clearly, periodizing history is an art, not a science. When he takes the long view, some of Magliocca’s “generations” last over fifty years, while others are as brief as ten. The notion that each generation has a unique constitutional consensus that for a time defines a dominant regime is equally problematic. Though there have been a few lengthy periods of one-party control in Washington, this is not obviously a “generational” phenomenon. Moreover, Magliocca does not convincingly theorize the role of the Whigs in his narrative. Were the 1830s Whigs a different “generation” than the 1830s Democrats? If not, why did they so vehemently oppose the Jacksonian agenda? If so, how were their formative experiences different?

Occasional examples are given of a generation’s “formative experiences,” but without more, these examples lack predictive value. How severe or protracted must economic hardship be to make it formative? And, why does Magliocca never mention the impact of the War of 1812 or the Mexican War – especially given the role that designs of expansion played in making the slavery issue so volatile?

While the Abolitionists play a key role in Magliocca’s story, he characterizes their movement as religious rather than generational. He gives a fascinating [*418] account of their extrapolation of egalitarian ideas from the situation of Native Americans to that of slaves. But why is the role of women in the abolition movement and their subsequent building of a feminist movement completely ignored? Again, his theory of the relationship between generations, political parties and movements remains unclear.

In short, while attending to the passage of time surely enhances our grasp of the impact of social, economic and political variables on constitutional change, more argument and data are needed to establish the meaning and weight of “generation” as an independent variable. One can only speculate about Magliocca’s take on our current constitutional regime – perhaps, a state of transition between New Deal and post-New Deal generations?

In his use of “reform,” Magliocca takes partisan neutrality perilously close to excess, as he credits the Jacksonians with “significant advances in freedom” along with “horrific injustices” (p.4). The difficulty is that his narrative provides ample instances of the latter and none whatsoever of the former, aside from expansion of the franchise to unpropertied whites. That, of course, was done by the States and did not require a new regime in Washington. Moreover, the achievements of the Reconstruction-era Republicans are nearly reduced to a restoration of John Marshall’s constitutional doctrines, despite the failure of his generation to deal effectively with the plight of either Native Americans or slaves. Perhaps constitutional discourse needs a place for talk not just of cycles but also of progress.

Some readers may also resist Magliocca’s claim that, in periods of political transition, judicial behavior is indistinguishable from that of the elected branches. Some may think this claim goes too far, and others that it does not go far enough. If the relevant time periods and modes of decision were more clearly specified, perhaps an attitudinal model could generate some testable hypotheses. Magliocca does provide interesting readings of a number of Court decisions, but of course he cannot document his interpretations of the judicial motives for addressing or avoiding the issues as they did. It is safe to say that debate over the relationship between constitutional politics and constitutional law, and over how many distinct constitutional regimes we have had, will be with us for a long time to come.

CASE REFERENCES:

CHEROKEE NATION v. GEORGIA, 30 U.S. (5 Pet.) 1 (1831).

DRED SCOTT v. SANFORD, 60 U.S. (1 How.) 393 (1857).

M’CULLOCH v. MARYLAND, 17 U.S. 94 Wheat.) 316 (1819).

WORCESTER v. GEORGIA, 31 U.S. (6 Pet.) 515 (1832).

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© Copyright 2007 by the author, Daniel Hoffman.

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NEITHER ANGELS NOR DEMONS: WOMEN, CRIME AND VICTIMIZATION

by Kathleen J. Ferraro. Boston: Northeastern University Press, 2006. 344pp. Cloth. $65.00. ISBN: 155553662X. Paper. $26.00. ISBN: 1555536638.

Reviewed by Anna King, Keele University, Centre for Criminological Research. Email: aking [at] ifh.rutgers.edu.

pp.413-415

As Kathleen Ferraro’s title asserts, the lives of women who have participated in both crimes against a male intimate partner and who have simultaneously been victimized by that partner, cannot be understood in simple ‘black and white’ terms, images or social research codes. Utilizing a series of in-depth interviews and official reports Ferraro leads her reader through the complicated social, emotional and cultural contexts of the lives of 45 women. Approximately half of them, all from various walks of life, have killed an intimate partner. Ferraro’s main thesis is that macro-level social conditions that do little to discourage violence in the home are more important in the maintenance of ‘cycles of violence’ than are individual deficits, dispositional flaws or generational dysfunction. As a sociologist, Ferraro keeps her reader’s eye firmly on the power of historical and structural forces to shape both the opportunities available to these women and their subjective interpretations of the events of their lives. She succeeds in her aim of providing a nuanced understanding of intimate partner violence that hopefully could be used to direct policy making away from individualistic and control-based approaches to the larger socio-political context.

The book is organized into six chapters, each designed to explore the links between victimization and offending from a social constructionist perspective. In Chapter One, the reader is introduced to problems that the women themselves have in remembering, organizing and giving shape to experiences that do not always fit into predefined categories of what domestic violence is supposed to look like. For example, can you be a ‘battered’ woman if you have fought back or if you have an outgoing personality (as one woman was accused of during her trial)? As the reader struggles with these criteria, so too do those women who have lived inside the raw experience. Without clear meaning, often their lives seem as surreal and detached from their own sense of self as they might to an outside observer. In the second chapter, Ferraro considers how the legal system similarly and inadequately tries to define these experiences. Here Ferraro argues that the language of ‘mutual combat’ fails to capture accurately the women’s particular position in these cases. In Chapter Three, Ferraro uses the term ‘intimate terrorism’ to describe the ways in which women lose their own sense of reality under conditions of ‘psychic terror,’ which often involve extreme cruelty and physical violence. Chapter Four argues against the idea of parental abuse and neglect as the main explanatory factor behind women’s choices and behaviors in their adult lives. The following chapter focuses on [*414] the women who have killed intimate partners and expands upon the dynamics of power used to ‘own’ these women once their sense of reality has been destroyed. The final chapter discusses cases in which women were charged with failing to stop a crime committed by their abuser, usually against some third party and unfortunately often their own children. Throughout her analysis, Ferraro is careful to try and maintain an evenhanded treatment of her subject, always reminding herself and her reader that understanding actions does not excuse them.

The analysis is well situated within social and critical thought with discussions of major criminological perspectives, such as control theory, and also references seminal works on obedience and authority, including Milgram, Weber, and Foucault. Sennett and Cobb’s (1973) work on the concept of the ‘hidden injuries of class,’ for instance, is introduced to explore the idea that a ‘class society’ not only produces self-doubt, but that this feeling of powerlessness is combated by those most likely to experience it – traditionally men – by usurping dominance where it can most easily be established – in the home. It is not hard to link the ‘violence that men inflict on their partners’ to ‘the shame and anger men feel when women provide income’ (p.121). Even though a large portion of the sample here (40%) do not have jobs (p.128), simply considering this type of macro-level social force in regards to a social problem that is typically over-individualized and de-contextualized provides an important perspective often missing from analysis.

Writing in spirit with researchers such as Mead and Vygotsky, Ferraro begins with the assumption that even the private and intimately personal are a product of social interactions and context. Thus, while she argues that social factors such as the persistence of traditional gender roles (that establish women as both domestic servants and sex objects (p.156)), the lack of affordable childcare and better paying jobs for women (p.250) and ineffective criminal justice sentencing (that reinforces an individualistic model of human behavior) maintain intimate violence, Ferraro does not make the mistake of ignoring the psychological lives of her subjects. In fact, her discussions of the boredom, confusion and personal histories of these women provide some of the most compelling parts of her analysis. As she notes, in discussing the causal factors underlying women’s individual actions ‘boredom knows no class, race and gender limits’ (p.128).

The consequences of parentification (Chapter Four), for instance, have left most of the women with a deep familiarity with the process of caring for loved ones who neglect and/or abuse them. In addition, through this process women develop strategies for surviving that lead them to focus only on the positive and to minimize the negative aspects of relationships. Thus, they find themselves in the difficult position of having been programmed to view themselves as protectors of people who hurt them. Ferraro also covers the causal factors that might contribute to an underdeveloped sense of self often apparent in the women’s narratives. She argues that many women never learned [*415] how to make themselves distinct as individuals because ‘as children they were always trying to hide and slip between the cracks so that someone wouldn’t sneak into their bedrooms, or take out anger and frustration on them in others ways – or simply because they were treated as part of the furniture.’ Likewise, there are several examples of women who were ‘daddy’s girl’ until they ‘opened their mouths’ or had an opinion. All of these more psychological explanatory factors are grounded in the larger reality of the women’s history and circumstance. This produces a more complete picture of intimate partner violence, helping to shed light on not only the private or the public, but also on how the two are so deeply interconnected.

Thus, if you want a good analysis and discussion of the contextual, structural and social forces that underlie domestic violence, then this book is an important one to read. Ferraro persuasively argues that a continued ignorance of these forces keeps the collective consciousness in America numb, standing in the way of addressing root causes. Hearing these women describe their personal situations within contexts that Ferraro illuminates makes it difficult to ignore the myriad of forces outside the control of individual’s control that ultimately play such a large contributory role in domestic violence. Still, while ubiquitous causal factors such as lacking a ‘sense of communal responsibility for children’ (p.157) and living in a class society that produces a certain percentage of resentful men who cannot live up to its expectations and who compensate by dominating domestically, may be powerful influences, realistically this perspective seems to offer little hope to those suffering their consequences now. While Ferraro should be commended for her unique and political approach to the analysis of domestic violence, her conclusions might leave those interested in changing policy for women in the immediate future with little direction.

REFERENCE:
Sennett, Richard, and Jonathan Cobb. 1973. THE HIDDEN INJURIES OF CLASS. New York: Vintage.

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©Copyright 2007 by the author, Anna King.

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