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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