July 30, 2007

DELIBERATIVE DEMOCRACY AND THE INSTITUTIONS OF JUDICIAL REVIEW

by Christopher F. Zurn. New York: Cambridge University Press, 2007. 374pp. Cloth. $85.00/ £48.00. ISBN: 9780521867344. eBook format. $68.00. ISBN: 9780511276200.

Reviewed by James A. Gardner, University at Buffalo Law School, State University of New York. E-mail: jgard [at] buffalo.edu.

pp.620-623

In the forty-five years since Alexander Bickel branded US courts “countermajoritarian,” a thriving academic industry has pondered the “legitimacy” of judicial review, the practice whereby appointed judges possess final authority to evaluate the constitutionality of actions taken by democratically elected officials. Questions about the legitimacy of judicial review can be raised in one of two very different senses. In one sense, such questions ask whether judicial review is a normatively desirable institution as judged against some extraconstitutional standard of institutional merit, often a democratic one. In a trickier, internal sense, questions about the legitimacy of judicial review ask whether courts have maintained fidelity to the constitution in the actual practice of judicial review. In the first sense, the issue is whether judicial review should or should not be incorporated into some constitutional system. In the second sense, judicial review is accepted as a constitutional fact, and the issue is whether courts are doing it properly. In the first sense, the legitimacy of judicial review is a question of sound institutional design; in the second sense, it is a question of how judges ought to practice their craft.

Entire forests have been leveled in the production of books and articles about the legitimacy of judicial review, and the vast bulk of the work on this subject is by legal academics who have taken up the question in the second sense: their purpose has been to attack or defend a particular practice of judging. The great exemplar is of course Ronald Dworkin who, although he writes at times like a political theorist, has in fact been engaged throughout his career in elaborating a deeply grounded defense of a heroic brand of constitutional adjudication. Even Bickel himself, who initially raised the legitimacy question, had little to say in his writing about democracy and a great deal to say about judging.

In DELIBERATIVE DEMOCRACY AND THE INSTITUTIONS OF JUDICIAL REVIEW, Christopher F. Zurn, a political philosopher at the University of Kentucky, has struck off in a different direction: he seeks to offer a justification for judicial review in the external sense, by showing that judicial review is an institutional arrangement that comports, or can be practiced in a way that comports, with a normatively attractive theory of democracy. This is an unusual project for a philosopher. In the first place, for many political philosophers the question “Is judicial review democratic?” is simply an uninteresting one. For pragmatists, conventionalists, neo-Aristoteleans, [*621] communitarians, utilitarians, Schumpeterians, Downsians, and even classically liberal Lockeans, not much turns on whether any particular political institution deserves or does not deserve the label “democratic.” Second, even among contemporary democratic theorists (with perhaps the one significant exception of Jeremy Waldron), the desirability of judicial review is rarely contemplated, mainly because most theories of democracy are simply too coarse to specify particular institutional arrangements, a great variety of which could in at least some circumstances be compatible with most such theories. Third, inquiries into the democratic legitimacy of specific institutions can be treacherous territory for philosophers because it is difficult to evaluate constitutional institutions in isolation from one another (you want to talk anti-democratic? how about the Senate? the Electoral College? the presidential veto? bicameralism? separation of powers?), and because so many real-world contingencies influence the way institutions actually operate that ex ante judgments about their democratic bona fides are extremely risky.

Nevertheless, undaunted, Zurn attacks his project with obvious enthusiasm. The book’s main argument goes something like this. Zurn dislikes extant justifications for judicial review because, in his view, the democratic theories upon which they rest are unappealing. The book therefore begins by showing that the standard justifications for judicial review do in fact rest ultimately on some underlying theory of democracy – typically a theory that Zurn describes, accurately, as “majoritarian democracy and minoritarian constitutionalism” (Ch. 2). Zurn then proceeds at length to review and criticize this theory and its variants, eventually offering as a superior alternative a slightly tweaked version of Habermasian deliberative democracy. From this account of deliberative democracy, Zurn derives a conception of constitutionalism, which he calls “deliberative democratic constitutionalism.” This conception of constitutionalism is procedural rather than substantive – it takes the primary purpose of a constitution to be the maintenance of the conditions for a successful deliberative democracy rather than, say, entrenching various substantive norms. This conception in turn provides Zurn with a justification for some form of “constitutional review,” by which he means an institutionalized process to evaluate whether official actions fall within constitutional bounds. Zurn takes pains here to argue that deliberative democratic constitutionalism provides no a priori justification for allocating the function of constitutional review to a court; it could in principle reside in other bodies.

The book concludes with two chapters laying out briefly some proposals for institutionalizing constitutional review consistent with the premises of deliberative democratic constitutionalism. One of these proposals happens to be judicial review in the form of a European-style constitutional court, but Zurn also endorses other mechanisms and forums for public and governmental constitutional review – institutions, that [*622] is to say, in which deliberation about the meaning of fundamental law can occur. These include legislative and executive self-review panels, a Canadian-style “notwithstanding” clause permitting legislative override of judicial rulings, constitutional requirements of legislative specification, forms of judicial deference to other branches, easy constitutional amendment through popular participation, and deliberative opinion polling, among others. Any or all of these institutions, Zurn speculates, might encourage appropriate reflection and dialogue both within and among the various official power centers, and between civil society and officialdom.

The book’s main flaw, it seems to me, is that it tries to do too much, and so ends up doing rather little. Among the goals Zurn sets for himself are analyzing the work of virtually every major theorist of judicial review, providing a better justification for judicial review than any of these thinkers, reconciling constitutionalism and democracy, which are generally thought to be in tension, and working out a blueprint for institutionalizing deliberative democracy – and not just any deliberative democracy, but the best possible account of deliberative democracy. This is the work of a career, not a book.

Zurn is at his best and most interesting when engaged in exegetical analysis of the thought of others who have written on judicial review. Their work is treated fairly, engaged sympathetically, and analyzed perceptively. But Zurn takes on too many of them. In the first seven of the book’s nine chapters, he manages to work over Alexander Bickel, Learned Hand, Jesse Choper, John Hart Ely, Robert Dahl, Michael Perry, Ronald Dworkin, Jeremy Waldron, Samuel Freeman, John Rawls, Christopher Eisgruber, Frank Michelman, and Jürgen Habermas. More importantly, these portions of the book do rather little of its real work in advancing the main argument, to the point where the book at times feels like a somewhat contrived vehicle for the delivery of exegetical analyses of thinkers Zurn wishes to discuss.

Zurn states plainly at the outset that he intends the book primarily as a work of institutional design (p.30), yet turns to this task only in the final two chapters. If the portions of the book laying the theoretical groundwork are somewhat more developed than necessary, this portion seems disappointingly underdeveloped. Wearing his institutional design hat, Zurn seeks to derive from his theory of democratic deliberative constitutionalism a set of institutional structures that, if constitutionalized, would help create in practice the conditions in which a normatively attractive deliberative democracy could flourish. Although Zurn deduces from his theoretical premises a variety of institutional arrangements that might conceivably do the job, the utility of his suggestions is compromised by his refusal to offer any particular view about the likely behavior of the human beings who will inhabit the institutions he describes. This, it seems to me, is a significant oversight in a work of institutional design.

Think, for example, of the work of James Madison, the father of modern [*623] constitutional design. Madison’s ingenious innovation lay not in his political theorizing, which was standard-issue, eighteenth-century natural law metaphysics, but in yoking his political theory to a robust political sociology. That innovation permitted him to evaluate and compare the efficacy of highly specific alternative institutional arrangements. Contemporary constitutional designers are certainly entitled to replace Madison’s political theory with a more appealing modern alternative, but if they are to apply that theory helpfully to questions of institutional design, they must also adopt some account of political behavior. That is why many contemporary works of constitutional design deal extensively with unruly real-world variables such as incentive structures, agency costs, transaction costs, political rationality, and political culture. Moreover, a new, fast-growing body of empirical research on the behavior of individuals in deliberative settings suggests grounds for great caution in the construction of political institutions suitable for deliberative varieties of democracy (Mendelberg 2002).

Zurn repeatedly shows that he is aware that the nature of actual political behavior could make or break his institutional proposals, but he is content simply to note the problem without taking a position. “The problem of institutional design,” he observes, “is . . . one of mediating between the ideal and the real” (p.323). It is, but Zurn’s withdrawal from the field at this point in the argument leaves the reader with two chapters of concrete institutional proposals derived from high political theory, yet lacking any tools to evaluate their feasibility.

DELIBERATIVE DEMOCRACY AND THE INSTITUTIONS OF JUDICIAL REVIEW will be of interest mainly to political theorists concerned with the justifications for judicial review. Because it offers no prescriptive conclusions about the practice of judging, the book will likely be of somewhat less interest to legal scholars and political scientists who study constitutional adjudication. The book also makes a modest contribution to the growing literature on deliberative democracy, and so might be of interest to political theorists for that reason as well.

REFERENCE:
Mendelberg, Tali. 2002. “The Deliberative Citizen: Theory and Evidence.” In Michael X. Delli Carpini, Leonie Huddy, and Robert Y. Shapiro. (eds), RESEARCH IN MICROPOLITICS, VOL. 6: POLITICAL DECISION-MAKING, DELIBERATION AND PARTICIPATION. New York: Elsevier Science.

© Copyright 2007 by the author, James A. Gardner.

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THE SUPREME COURT OF FLORIDA, 1917-1972

by Walter W. Manley, II, and Canter Brown, Jr. Gainesville, FL: University Press of Florida, 2006. 448pp. Cloth. $59.95. ISBN: 081303003X.

Reviewed by Christine L. Nemacheck, Department of Government, The College of William and Mary. E-mail: clnema [at] wm.edu.

pp.612-614

In THE SUPREME COURT OF FLORIDA, 1917-1972, Walter Manley and Canter Brown provide a thorough account of the state’s high court and its growth in size, caseload, and prominence, as Florida evolved from a largely rural state dominated by native Floridians and citizens from other bordering southern states, to one that became predominantly urban and the destination of many “snowbirds” from the north who flocked there as tourists and later as permanent residents. Commissioned by the Florida Supreme Court Historical Society to provide a comprehensive account of the high court’s development, this is the authors’ second volume on the court’s history (the first focused on the 1821-1917 time period).

Manley and Brown put forward two goals: first, to document the history of the state’s judiciary and especially its high court; and second, to contribute to the renewed interest in state appellate courts generally, as legal scholars have begun to redirect attention to the important role of state courts in our federal judicial system. Regarding their first goal, the authors provide a comprehensive account of the state supreme court’s history, and their organization of the book helps to meet their objective. Each of the five parts, divided chronologically, first provides a snapshot of the state during a particular time period. For example, in Part One, focusing on the period from 1917-1932, the first chapter describes the effects of World War I and the economic growth and development that occurred immediately in its aftermath. Manley and Brown then address the bank failures and financial crises that hit Florida more slowly than many other states, but whose impact was exacerbated by devastating storms and hurricanes in 1926 and 1928.

Having provided a general historical overview, the authors turn their focus to the state’s supreme court during that time period. Much of this discussion focuses on the structural rules and changes, including the court’s size, caseload and methods of judicial selection. Particularly in the account of the earlier years, the authors’ description of the court’s operation provides for interesting and even surprising reading. For example, until 1925, the chief justice of the court was chosen through a lottery system that sometimes included cutting to a particular page in the Bible wherein the justice with the highest last digit on a particular page was named chief (p.26)! In addition to discussing the court’s institutional position and evolution, the authors also provide biographical overviews for the justices serving during that period. This too, offers interesting reading and helps to locate the court’s activities in its proper context. [*613]

Finally, in the third chapter of each section, Manley and Brown analyze some of the prominent cases decided during the time period. In many instances, the authors describe individual cases deemed to be of particular importance to the state, such as GAULDEN v. KIRK (1950) in which the court unanimously upheld the state’s new sales tax. Additionally, they also provide discussions of several broad issues that were important to the court in the era. Several of these issues, such as labor law, local governmental powers, and race relations receive treatment within each chronological period, though that is not uniformly the case across all issues addressed.

The basic organizational structure described above continues throughout each of the five chronological sections, and through that structure the authors very ably meet their first goal of presenting a thorough overview of Florida’s supreme court and its development. However, that structure does not provide a suitable vehicle to achieve their second goal, at least not to the same degree as the first. Although some themes emerge throughout the detailed historical accounts, had Manley and Brown initially and explicitly laid out a theoretical focus, the reader would be in a much better position to appreciate how this particular story of the Florida Supreme Court contributes to an understanding of the importance of state high courts within our system of judicial federalism.

There are several themes the authors could have developed to emphasize the broader insights that can be gleaned from their discussion. One important theme that might have been highlighted is the dynamic nature of judicial federalism. Although the authors touch on the difficulty of maintaining the appropriate balance between the state and federal courts, if they had dealt with the issue more explicitly at the beginning, they could have then created a sustainable thread to guide the reader through the succeeding chapters on the court’s development and to provide some leverage in understanding parallel judicial experience in other states as well.

Another theoretical thread that could have been woven into the discussion, particularly of the individual justices, is the effect of urbanization and migration on our state high courts. Florida’s court would provide an especially good illustration of trends we might see elsewhere, though perhaps not to the same extent, given the degree to which Florida experienced both urbanization and substantial migration of non-native Floridians into the state, and eventually before its Supreme Court.

These are just two examples of themes that might have further contributed to to consideration of the role state high courts play in our federal judicial system. Certainly other themes could be emphasized as well, but the key is to provoke thought beyond this individual court.

One additional feature that would have enhanced the authors’ quest to meet both of their stated goals would be a series of tables laying out the basic court structure at the various points in the time period [*614] under consideration, including such factors as the number of justices, degree of discretionary appellate jurisdiction available to the court, and the selection methods utilized for individual justices and the chief justice. Although changes in these and other institutional rules are discussed throughout the book, presenting the information in a few accessible tables or an appendix would be greatly beneficial to readers unfamiliar with the court and would certainly be a good, quick reference resource even for those very familiar with its structure.

In sum, Manley and Brown provide a very comprehensive account of the Florida Supreme Court’s history and its development during much of the 20th Century. This book will make an excellent resource for those interested in Florida’s judicial history. However, the book is less successful in utilizing the history of Florida’s high court to provide insight into questions regarding state high courts more generally within our system of judicial federalism.

REFERENCES:
Manley, II, Walter W., Canter Brown, Jr., and Eric W. Rise (eds). 1998. THE SUPREME COURT OF FLORIDA AND ITS PREDECESSOR COURTS, 1821-1917. Gainesville, FL: University Press of Florida.

CASE REFERENCE:
GAULDEN v. KIRK, 47 So.2d 567 (1950).

© Copyright 2007 by the author, Christine L. Nemacheck.

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LEX POPULI: THE JURISPRUDENCE OF POPULAR CULTURE

by William P. MacNeil. Stanford: Stanford University Press, 2007. 260pp. Cloth. $45.00. ISBN: 0804753679.

Reviewed by Paul Parker, Political Science, Truman State University. Email: parker [at] truman.edu.

pp.609-611

LEX POPULI is part of Stanford’s Cultural Lives of Law, a series edited by Austin Sarat that focuses “on the production, interpretation, consumption, and circulation of legal meanings.” In this contribution, William P. MacNeil, a law professor at Griffith University (Queensland, Australia), attempts a “recontextualization of jurisprudence from the specialist to the generalist interpretive community”(p.2). The specialists from whom MacNeil hopes to reclaim jurisprudence are the sociolegal studies and law and economics scholars, who have displaced traditional jurisprudential questions of rights and justice with their own foci on policy goals and efficiency. MacNeil’s recontextualization involves an analysis of the “culture of law and the law of culture” to produce a new “intertext”: MacNeil aspires to “a unique mode of analysis, of interpretation, and of reading, and what this book in part proposes is nothing less than a practical demonstration of how to read jurisprudentially” (p.2).

This practical demonstration consists of eight substantive chapters in which he “reads” a popular cultural text from the standpoint of a popular jurisprudential school, shedding light on both. In Chapter 1, HARRY POTTER AND THE GOBLET OF FIRE sheds light on how liberal legalism involves substantive injustice. “Natural law, and its semio-psychoanalytic transmorgrification by Buffy [the Vampire Slayer, Chapter 2] is succeeded by an analysis of positivism-as-psychomania in Chapter 3: ‘The First rule of Fight Club Is—You Do Not Talk About Fight Club!: The Perverse Core of Legal Positivism” (p.3). In subsequent chapters, THE LORD OF THE RINGS is read against Kelsen –“the lawless looking for the law, the illegitimate looking for legitimacy” (p.65) – and MINORITY REPORT and Law and Economics are argued to embody a “jurispruidence of antijurisprudence,” seeking “results without rules” (pp.83-84). Grounded in critical feminist analysis, legal training is analyzed through THE PAPER CHASE and LEGALLY BLONDE, while critical race theory and the Australian film THE CASTLE are the intertext of Chapter 7. Finally, MILLION DOLLAR BABY and THE SEA INSIDE are read against the discussion of the right to die. A brief introduction and a conclusion round out the 157 pages of text.

This is not a book of casual essays. The prose is lively, witty, and challenging, full of puns and cultural references that pay a careful reader. MacNeil wants to demonstrate how one can have fun with popular culture, and fun with jurisprudence, and consistent with his use of intertext, how works can be read together for greater enjoyment [*610] (or joiussance, a term he borrows from Lacanian psychoanalysis; more below). But while this text about entertainment and law is entertaining, MacNeil has a serious goal: MacNeil wants the legal community to take jurisprudential issues seriously, so that we think about the rights and duties under law, the access to justice, the role of the state. Parallel to how MURPHY BROWN provoked conversation about single parenting, MacNeil believes we can bring jurisprudential issues into public dialogue with the aid of popular culture (p.156). We read these texts jurisprudentially to think then also of the contributions and shortcomings of the schools of jurisprudence.

The close readings by MacNeil will be most comfortable to those already swimming in the interpretive community. Familiarity with the texts MacNeil interrogates, as well as the schools of jurisprudence he engages, also helps. The essays do fulfill his goal of being “a practical demonstration of how to read jurisprudentially” (p.9), and thus the book is especially well suited for graduate students or scholars wishing to join an interpretive community. But this is demonstration, and not instruction.

One extended example that will give some flavor of this approach is a discussion of legal education through the lenses of THE PAPER CHASE and LEGALLY BLONDE. MacNeil argues the two films, set 30 years apart, demonstrate “that law school trains not only for hierarchy but also for hysteria – and a whole host of symptoms, illnesses, and mental disturbances that support and sustain hierarchy” (p.99). The chapter is quite rich; MacNeil persuasively argues, for instance, how the Harvard Law of LEGALLY BLONDE is “something of a gynocracy,” transformed from the role of women-as- sustenance in “the precritical phallocracy under Kingsfield” in THE PAPER CHASE (pp.102-103). In both films, there is a central issue of “sorting.” While nominally this is sorting into a hierarchy of ability to succeed (in law school), in MacNeil’s interpretive lights, the central issue is what that success means, and what that tells us about legal education and the law.

In MacNeil’s Lacanian psychoanalysis of THE PAPER CHASE, protagonist Hart is hysterical in his attempt to sort his (masculine/feminine) identity, a struggle that centers on Kingsfield: Hart’s claim to be “having a ‘true Socratic experience’ with Kingsfield” is “not only suggestive of the Platonic Dialogues’ implicit anal-eroticism, but in its blurring of sodomy and Socrates, also indicative of Hart’s deepening psychic crisis as he moves from neurosis (hysteria) to full-blown psychosis (paranoid delusion)” (p.105).

MacNeil argues that the dysfunction created by law school, long critiqued by “crits” like Duncan Kennedy, is functional: law-schools-as training-for hirerarchy needs the “nervous and neurotic energy” (p.107). For Elle, in LEGALLY BLONDE, the sorting and psychic energy revolves around fitting in to the man’s world of the law. While both Hart and Elle “succeed,” they do so on the law (school)’s terms, argues MacNeil, diminishing themselves in the [*611] service of the phallus of the law (embodied in the professors Kingsfield and Stromwell). However, there is difference. For MacNeil, the top-dog of the hierarchy, the phallus, in THE PAPER CHASE – a text from when women were largely outsiders – is Kingsfield. In LEGALLY BLONDE, the phallus is the female Stromwell. The former is blinded to social realities and relationship, all in the service of the law; Hart is nothing to Kingsfield. Meanwhile, Stromwell’s suspension of her phallic power in order to nurture Elle demonstrates the possibilities of a nurturing law school. The law as hierarchy, and law schools and professors as masters, are thus challenged by LEGALLY BLONDE.

The book has extensive chapter notes – five of the eight analytic chapters are based on previously published articles or chapters – and an extensive bibliography, chock full of both scholarly and popular cultural entries. While necessarily there is great breadth to the bibliography, as he surveys several schools of jurisprudence, he also has some favorites that mark his grounding and approach: Hart (5 entries) Sarat (6) Dworkin (7), Freud (10) Jacques Lacan (11) Slajov Zizek (12). Additionally, several pages in the introduction provide a quick tour of scholars active in this interpretive community, helping to locate MacNeil’s influences and position.

REFERENCES:
BUFFY THE VAMPIRE SLAYER. 1997-2003. Joss Whedon. Mutant Enemy, 20th Century Fox.

THE CASTLE. 1999. Directed by Rob Stitch. Village Roadshow.

FIGHT CLUB. 1999. Directed by David Fincher. 20th Century Fox.

HARRY POTTER AND THE GOBLET OF FIRE. 2005. Directed by Mike Newell. Warner Bothers Pictures.

LEGALLY BLONDE. 2001. Directed by Robert Luketic. Metro-Goldwynn-Mayers.

LORD OF THE RINGS. 2001. Directed by Peter Jackson. New Line Cinema.

MILLION DOLLAR BABY. 2004. Directed by Clint Eastwood. Warner Brothers Pictures.

MINORTY REPORT. 2002. Directed by Stephen Spielberg. Dreamworks SKG.

MURPHY BROWN. 1988-98. Created by Diane English. Warner Brothers Television.

THE SEA INSIDE (Mar Adentro). 2004. Directed by Alejandro Amenábar. Sogepaq.

ZIZEK, SLAJOV. 1991. LOOKING AWRY: AN INTRODUCTION TO JACQUES LACAN THROUGH POPULAR CULTURE. Cambridge, MA: MIT Press.

© Copyright 2007 by the author, Paul Parker.

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THE INNOCENT MAN: MURDER AND INJUSTICE IN A SMALL TOWN

by John Grisham. New York: Doubleday, 2006. 368pp. Hardcover. $28.95. ISBN: 9780385517232.

Reviewed by Jack E. Call, Department of Criminal Justice, Radford University. Email: jcall [at] RADFORD.EDU.

pp.602-608

John Grisham’s legal novels are well-known to avid readers of that literary genre. THE INNOCENT MAN is Grisham’s first (and so far only) venture into non-fiction. It tells the story of Ron Williamson, an Oklahoma boy with great promise as a professional baseball player. However, the demons of drink, drugs, and mental illness prevented Williamson from fulfilling that potential. Eventually, Williamson’s demons also destroyed his marriage, prevented him from holding a decent job, and resulted in his development of a local reputation as an erratic, unpredictable man who could be likable at times but was generally not to be trusted. When a young female acquaintance, Debbie Carter, was found raped and murdered in her garage apartment in his hometown of Ada, Oklahoma, in 1982, it was not surprising that the police eventually considered him a person of interest.

For many readers, THE INNOCENT MAN will interest them as a story about a man whose promise as a person is unrealized and who becomes a victim of the criminal justice system. Their interest will lie in Ron Williamson, the person. For others, the interest lies in the story the case tells about the criminal justice system. As such, it can be added to a growing list of stories told about justice gone awry.

THE INNOCENT MAN paints a picture of a seriously flawed criminal justice system. While virtually no component of the system portrayed in the book emerges unscathed, it is the police who look particularly bad, with the prosecution running a close second. The police did a reasonably good job of investigating the murder scene (although at trial, Williamson’s defense attorney pointed out in his cross-examination of one of the primary investigators that they had failed to look for fingerprints in several logical places). Numerous people who knew Debbie Carter or had been at the night club where she was last seen alive in public were interviewed. None of them mentioned anything about Ron Williamson.

Glen Gore should have been an obvious suspect. He had been seen with Debbie hours before her death, talking with her at her car in the parking lot of the night club she had attended that evening. At least one witness said that Debbie was seen pushing Gore away, although others reported seeing nothing unusual occur between the two. At least two people indicated that Debbie had told them that [*603] she was afraid of Gore. (Unfortunately, Grisham is a bit unclear as to how much of this information was known to the police. He makes it clear that one person called the police and reported to them that Debbie had a running dispute with Gore about a windshield wiper that she thought Gore had stolen from her car and that she was afraid of Gore. It is unclear how much of the other evidence connecting Gore to Debbie on the night of her murder was uncovered by the police. However, if the police were unaware of much of this evidence, they obviously could have found it, since Grisham was able to find it).

The police apparently focused on Williamson as a suspect when, three months after the murder, Robert Deatherage told the police that he had just finished a short stint in the local jail, where he had shared a cell with Williamson. He indicated that Williamson had seemed uneasy every time the subject of the Carter murder had come up in conversation. (Grisham does not indicate why the police interviewed Deatherage). The interest of the police in Williamson as a suspect was increased further because he kept weird hours, had engaged in much erratic behavior, lived a short distance from Debbie Carter’s apartment, and had recently been acquitted on two rape charges. When Williamson reported “dream confessions” about Debbie’s murder (“I dreamed that I . . .”) on two separate occasions to a jailer and to two police interrogators, he became their primary suspect.

Although there was little to no evidence suggesting more than one perpetrator, the investigating officers were convinced that there were two murderers. They decided a friend of Williamson, Dennis Fritz, must have been involved. The evidence against him was not strong, but they convinced him to take a polygraph examination. The examiner found his answers evasive. Given the evidence against Fritz, as described by Grisham, it is difficult to see how the police thought they even had probable cause to arrest Fritz, much less proof beyond a reasonable doubt to convict. Nevertheless, he was arrested, tried (before Williamson), and convicted.

The case against Fritz consisted of guilt by association with Williamson (although the case against Williamson was not presented to the Fritz jury); testimony from three jailhouse snitches; forensic evidence that Fritz was a non-secretor (a person whose blood type cannot be determined from bodily fluids, which is true for about 20% of the population); and forensic evidence that hair samples found at the murder scene were consistent with Fritz’ hair. As weak as this evidence was, it was further weakened by the fact that the forensic expert who testified that Fritz was a non-secretor was far from certain that the killer (or killers) were non-secretors. In addition, the first lab analyst to examine the hair samples found at the murder scene concluded that those samples were only microscopically consistent with Debbie Carter’s hair and not with any samples taken from other persons (a fact that was never shared with the defense). This result required analysis from another technician, who ultimately concluded that some of the samples were consistent with Fritz’ hair. It took this expert over two years to do his analysis, and he did so with the knowledge that when he was analyzing Fritz’ hair, Fritz was a suspect in the case. (Other hair samples that he analyzed were not marked as having come from a suspect). [*604]

The prosecution’s case may have been strengthened when it was able to prove during cross-examination of Dennis Fritz that he had lied to the school system when he indicated on his job application that he had no criminal convictions. In fact, he had once been convicted of growing marijuana. (When the police had discovered this fact during its investigation, they called the junior high school where Fritz was working and told them that he was under investigation for murder and had lied about his marijuana-growing conviction. The school system fired him immediately). The prosecution also established that Fritz had lied about the marijuana-growing conviction on an application for a gun permit. Although this testimony may have strengthened the prosecution’s case a little by showing that Fritz had lied on at least two occasions, the case in chief from the prosecution was so weak to start with that it is difficult to imagine how the case survived a motion for a directed verdict from the defense, much less provided a sufficient basis for a jury’s conclusion that Fritz was guilty beyond a reasonable doubt. The jury sentenced him to life in prison.

The prosecution was now ready to try Williamson. Much of its case consisted of the same evidence presented against Dennis Fritz. However, the prosecution had a couple of advantages that it lacked at the Fritz trial. First, it had the “dream confessions” that Williamson had related to the police and a jailer. Second, Williamson was clearly mentally ill and prone to exhibiting behavior in the courtroom that did not make a good impression on the jury. For example, when a jailhouse snitch testified against Williamson, he interrupted her more than once, calling her a liar and threatening her.

The prosecution may also have benefited from the fact that when Glen Gore was called to testify, he refused to answer questions. His reasons for doing so were unclear (he was in prison on charges unrelated to the Carter murder, and he may have been concerned about the impression he would have created with his fellow inmates if he had “snitched” on Williamson). Since he had testified at the Williamson preliminary hearing, however, and had been subjected to cross-examination there, the trial judge allowed that testimony to be read to the jury. Such testimony might not be as forceful as in-court testimony, but this was no doubt more than counteracted by the fact that at the preliminary hearing, Williamson’s defense attorney had not cross-examined Williamson about his criminal record of violent offenses and his own whereabouts on the night of the murder. Consequently, the jury heard none of this information.

Although the prosecution’s case was no doubt a little stronger against Williamson than it had been against Fritz, it was still quite weak. Yet it yielded the same result – a unanimous jury vote for conviction after deliberations of only six hours (including a lunch break). And this time the jury recommended a sentence of death.

To this point in the case, the criminal justice system had done little to inspire confidence. The police failed to investigate the possibility that the last [*605] person seen with Debbie Carter, a person with a propensity for violence and known to be a person she feared, might have killed her. The police had made misrepresentations to suspects and pressured them and other witnesses, although that pressure may not have risen to the level of coercion.

One witness, who lived not far from Dennis Fritz, had heard some noise outside his home very late one night in December (the month of Debbie’s murder). When he looked outside, he saw two men washing themselves off with his garden hose. The police were convinced that this was Fritz and Williamson washing Debbie’s blood off after killing her. However, the witness could not remember what night this was, nor could he say for certain who the two men were, even after being shown pictures of Fritz and Williamson. Not long before Williamson’s trial, Grisham indicates that one of the primary police investigators visited the witness, trying to suggest details that would strengthen the witness’ testimony. When the witness declined to make his answers more helpful to the prosecution, Grisham says that the police officer “brushed his coat away from his hip so [the witness] could see his service revolver . . . and said that [the witness] might get lead poisoning if his memory didn’t improve” (p.193).

The prosecution did not fare much better. It proceeded with two murder prosecutions on very limited evidence. It made extensive use of testimony from jailhouse snitches whose credibility was, at the very least, questionable. It failed to question why the police did not investigate Glen Gore’s possible involvement in Debbie Carter’s murder. Either the prosecution or the police labeled the hair samples of Fritz and Williamson as samples from suspects. The prosecution placed great reliance on the forensic analysis of the hair samples, even though one of its experts had failed to conclude that the samples that came from Fritz and Williamson were consistent with hair found at the murder scene. It failed to share this latter piece of information with the defense. It also failed to share with the defense a videotaped interrogation of Williamson in which he had steadfastly maintained his innocence.

The forensic experts engaged in some questionable activities also. It seems inappropriate for one analyst to re-examine evidence when another competent analyst failed to arrive at the result desired by the prosecution. It is also questionable that hair samples should be analyzed when they are known by the analyst to have come from a suspect. The second hair sample analyst also testified at trial that the samples taken from Fritz and Williamson “matched” some hair found at the murder scene. Virtually all court decisions agree that hair sample analysis is too imperfect a science to permit use of the term “match” (“consistent with” is the term that courts allow). The trial judge upheld an objection to the expert’s use of this term, but the jury had heard it and the damage was done.

Perhaps the most egregious action taken by a forensic expert in this case involved the examination of a bloody palm print found on the wall in Debbie Carter’s [*606] apartment. The initial forensic analysis concluded that the palm print was not that of Fritz, Williamson, or Debbie Carter. This was a potential problem for the prosecution, because the palm print almost certainly had to have been left either by the victim or one of the killers. Since it was not Debbie’s and did not come from Fritz and Williamson, it could be argued persuasively that the true killer had still not been found. The prosecution’s solution to this dilemma was to have Debbie Carter’s body exhumed and her palm print examined again. The forensic expert who did the initial analysis did it again and changed his mind, concluding that the bloody print on the wall was indeed Debbie Carter’s. In his 24-year career, this forensic expert had never changed his mind before.

The trial judge can also be criticized. When it became apparent during the cross-examination of one of the investigating officers that the videotaped interrogation in which Williamson maintained his innocence had not been shared with the defense (a clear violation of the Supreme Court case, BRADY v. MARYLAND), the judge decided not to rule on the defense’s motion for a retrial until after the trial. After trial, he ruled that withholding the videotape was not a violation of BRADY. As we have seen, the hair sample analysis was critical to the prosecution’s case, but the trial judge refused to appoint an expert for the defense to permit it to conduct its own hair sample analysis. Perhaps the most questionable action taken by the trial judge was his failure to require that Williamson be examined for mental competency. While the responsibility to raise this issue lay primarily with the defense attorney, the trial judge had observed so many instances of strange and erratic behavior on the part of Ron Williamson that he almost certainly should have ordered a competency evaluation on his own initiative.

One of the things that the literature on wrongful convictions makes abundantly clear is that, once a defendant has been convicted at a trial when there are serious questions regarding actual guilt, the likelihood that the defendant will ever be exonerated by the court system becomes extremely slim. Appellate courts only hear legal issues and do not generally review facts (such as the guilt or innocence of the defendant). Thus, Ron Williamson was clearly facing an uphill battle. However, it was exactly at this point that the system began to perform better.

First, Williamson was represented by a series of indigent defense counsel (working as part of the public defender system in Oklahoma) who took their responsibilities very seriously indeed. All of them performed their duties conscientiously (although one might question whether Williamson should have had five different attorneys assigned to his case at various stages, with each new attorney being required to familiarize himself or herself with the case from scratch).

In spite of the conscientious efforts of these attorneys, they lost all their motions in the state appellate courts. (The Oklahoma Court of Criminal Appeals did conclude that errors had been made at Williamson’s trial, but it [*607] also concluded that they were all harmless errors that had not affected the verdict). This left the case at the stage where federal habeas corpus relief could be sought, and Williamson was assigned yet another attorney, Janet Chesley, to handle this proceeding.

Habeas corpus petitions are notoriously unappealing to federal judges (in no small part because most of them are crafted by prison inmates). However, the petition put together by Chesley was well-written and organized and immediately caught the eye of the US Magistrate assigned to review it by US District Judge Frank Seay. Her petition focused on the performance of the defense attorney (a common tactic because it is a back-handed way of arguing the defendant’s innocence), the failure to evaluate Williamson’s mental competency, and the reliability of the hair sample analysis. The magistrate asked two law clerks in Judge Seay’s office review the petition as well. All three read the entire trial transcript and agreed that Williamson had not received a fair trial. After lengthy consideration, Williamson’s execution was stayed, five days before it was to take place.

One year after granting the stay of execution, Judge Seay granted Williamson’s habeas petition and ordered a new trial. Several bases for the decision were cited, but the most important were the ineffectiveness of Williamson’s trial attorney, admission of the hair sample analysis, denial of the defense request for its own hair sample expert, and failure of the trial court to look into Williamson’s mental competency. The state appealed, and the order for retrial was upheld.

At retrial, a competency hearing was conducted, and Williamson was found incompetent to stand trial. The defense knew that Williamson might well become competent with the assistance of medication, so it prepared for a new trial. It persuaded Barry Scheck’s Innocence Project to take on the case because it concluded that much forensic evidence in the case had not been properly analyzed. In early 1999, the semen found on Debbie Carter and at the crime scene was subjected to the latest DNA technology. That analysis excluded both Williamson and Fritz as sources of the semen. The prosecution still resisted a motion to dismiss, however, and insisted that the hair samples be analyzed also. When that DNA analysis also failed to match Williamson and Fritz, the prosecution finally agreed to dismiss the charges against both, and they were released.

In an interesting post-script, the DNA analyses suggested that the semen found in Debbie Carter’s vagina was that of Glen Gore, who was in prison for another offense. When he heard from national reporters that they wanted to talk with him, he surmised that he was now a suspect in the Carter murder. (Two of Williamson’s attorneys had questioned Gore, suggesting that they thought he might have killed Debbie Carter). However, prison authorities had not been informed of this, so they did not remove him from an out-of-prison work detail to which he was assigned. The day after hearing from the reporters, Gore simply walked away from his work [*608] site. Six days later he turned himself in. Four years later he was convicted of Debbie Carter’s murder and awarded a death sentence (later reduced to life imprisonment as a result of appellate proceedings).

John Grisham is both a storyteller and a lawyer. However, it is the storyteller that dominates this book. That makes the book very readable, but it detracts from the usefulness of the book as a pedagogical tool. The book has no footnotes (or index, for that matter), and Grisham seldom tells us the source of his information. For example, the story about the police officer who told a witness that he “might get lead poisoning if his memory did not improve,” reflects very badly on the police. However, the reader does not know why Grisham thinks this incident occurred, so it is very difficult for the reader to assess the reliability of the story. (Presumably the witness in question was the source, but Grisham simply does not share that information with the reader). Sometimes Grisham points to damning information that seems to reflect negatively on someone involved in the case, but his description of the information leaves the reader uncertain as to who knew what and when. For example, he is very critical of the police failure to investigate Glen Gore as a suspect. As described earlier, there was a lot of information pointing to Gore, but Grisham never makes it clear how much of that information was actually known to the police or when it was known to them. In addition, Grisham sometimes refers to cases or studies without providing cites to them. For all these reasons, THE INNOCENT MAN would be of questionable utility in a course on the judicial process, criminal procedure, or wrongful convictions.

CASE REFERENCE:
BRADY v. MARYLAND, 373 U.S. 83 (1963).

© Copyright 2007 by the author, Jack E. Call.

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July 29, 2007

REFLECTIONS ON FREEDOM OF SPEECH AND THE FIRST AMENDMENT

by George Anastaplo. Lexington, Kentucky: The University Press of Kentucky, 2007. 336pp. Paper. $26.95. ISBN: 9780813191744. Cloth. $70.00. ISBN: 9780813124247.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Strauber [at] Grinnell.edu.

pp.591-601

For thirty some odd years, George Anastaplo has been an inimitable advocate of his philosophical approach to First Amendment jurisprudence and reading the Constitution. It would be justifiable to locate and read his oeuvre within the intellectual circles of Leo Strauss and Joseph Cropsey, and the present work echoes many well-rehearsed Straussian themes originally presented in THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT (1971, 2005) that is cited as the foundation work for REFLECTIONS. These themes include, but are not exhausted by, interpreting the ills of the present via canonical texts of Western civilization; an emphasis on citizenship and civility; the close association between political and religious freedom; the primacy of judgment and the precise use of language versus uncritical thinking and unbridled passions; and law as the embodiment of reason, judgment, and precise language.

But there is more to REFLECTIONS than solely those themes. First, REFLECTIONS is dedicated to Alexander Meiklejohn and Harry Kalven Jr. Readers attentive to their or Anastaplo’s work will profitably associate REFLECTIONS with critical readings of Meiklejohn’s and Kalven’s jurisprudence. For example, there are suggestions of engaging Meiklejohn in REFLECTIONS’ approach to jurisprudence via: a conception of human nature; a focus on freedom, self-government, and the common good as dependent on civic education and a vigorous public exchange of ideas; the premise that neither freedom nor political truth is assured; the premise that a conception of freedom appropriate for one polity might not be appropriate for another; a wariness about the impact of private enterprise on political liberty; and the role of jurisprude as teacher. And there are suggestions of engaging Kalven in the book’s discussion of Justice Black, the speech/action distinction, seditious libel, obscenity, the risks of freedom of speech, and First Amendment versus Due Process clause interpretations of case law.

Secondly, REFLECTIONS continues to address Anastaplo’s long-running dispute with his critics over the extent to which the roots of freedom of speech are to be found in common law or, as the author would have it, a more radical natural genesis in the revolutionary principles of the Declaration of Independence. Thirdly, the personal has been the political for Anastaplo: his jurisprudence explicitly and tacitly reflects his losing 1950 battle with the Illinois bar (he refused to answer questions about his political affiliations) and expulsions from both Russia and Greece (CONSTITUTIONALIST, pp.xi-xiii). [*592]

The meld of these personal experiences and eclectic intellectual influences contributes to a voice that is more often than not distinctive, self-assured, audaciously unconventional, and challenging. A salient example of all of this is Anastaplo’s reference to his considerations as “sonnets” (p.xi). Parts One and Two each have thirteen chapters; each chapter has thirteen sections; and each section has three paragraphs. Philip A. Dynia’s LPBR review (2007) of Anastaplo’s most recent REFLECTIONS ON CONSTITUTIONAL LAW (2006), noted the sonnet form at work there, each Part with nine chapters and sections, each section, three paragraphs. Dynia, a self-proclaimed non-Straussian, prudently refused to say anything more about the “sonnet” form, other than to suggest that perhaps it was related to some Straussian secret.

I too am no Straussian, but I am less cautious and sensible than Dynia. I venture to suggest that the “sonnet” form is related to Anastaplo’s stated goal that “constitutionalism” (p.xiii) calls for, requires, and deserves reading “with . . . seriousness and . . . care” (p.xii). Very generally conceived, reading a sonnet requires attentiveness to a text that has been divided into “syllogistic” parts, with its parts containing material that compare and contrast ideas, often shifting from the general and specific, all toward the end of developing and qualifying the character and consequences of ideas for the sake of illustrating a major premise or point of view (Finch and Varnes 2002, pp.298-299; Hunter 1999, p.258; Dubrow 1981, p.66; Rivers 1958, p.51).

Readers of REFLECTIONS will find that they are reading a text that requires attentiveness to this kind of writing. Coincidentally or not, readers of REFLECTIONS will find that jurisprudence-cum-sonnet implicates them in webs of continuities and discontinuities among ancient and modern texts, historical references, and political opinions that coalesce into the author’s views about the past, present, and future of constitutionalism, the common goods of a law-governed polity, and First Amendment adjudication.

As a self-styled New Institutionalist, and therefore outside the author’s intellectual circles, I admit to the guilty pleasure of being intellectually captivated and engaged by working through these “sonnets,” and of trying to get within them to write a prose review which does them justice. I want to add that I am not a close enough reader of Anastaplo’s oeuvre to say how much here is actually old wine in new bottles. But even to the extent that might be so, those within Anastaplo’s circles will want to look at this book for its skilled and precise rendition of established fare. And those outside those circles, who are less familiar with Anastaplo’s concerns, or even those ill-disposed toward those circles, should yet find the book worth careful reading and deliberation.

Part One provides the materials for an education in constitutionalism, liberty of speech and press, and the common goods of a republican polity. (There are appendices of original materials for Part [*593] One and Two.) Chapter One situates Plato’s APOLOGY as one of those “sacred texts upon which Western Civilization rests” (p.3). To step aside from a chapter-to-chapter review for a moment, REFLECTIONS, in its entirety, depends upon Anastaplo’s appreciation of Socratic commitments to reason, principle-based action, civic responsibility, and the “folly of suppressing conscientious men and women of talent” (p.4). REFLECTIONS also depends upon a Socratic-like condemnation of (today’s) “rampant individualism” (p.184), self-regarding actions based on the passions and mere preferences of persons, and “the tyranny of an undisciplined imagination” (p.185). At bottom, tensions between Socratic commitments and today’s values lead to “the heart of the problem . . . , [which] is the question of whether the community should be able to shape the character of its members” (p.184, italics omitted).

Back to Chapter One, one of its main functions is to situate Anastaplo’s positive answer to this question in the Socratic tradition that requires civic education to develop the character of a people and good citizenship. As a fundamental principle of constitutionalism (p.8), opinion leaders are responsible for this instruction, which must take place in both the public and private sector. Readers will be taught that, absent this civic education, the First Amendment becomes part of the problem as it becomes over-extended as a shibboleth encouraging “freedom of expression” and the promotion of those self-regarding actions based on the passions and mere preferences of persons. Anastaplo consistently contrasts this selfishness with an authentic understanding of the First Amendment which encourages public-spirited citizens to be engaged in the reason-giving activities associated with a republican form of government (p.187), and willing like Socrates, to “to speak out about the issue of concern to the community” (p.8).

The cultural forces that threaten an authentic First Amendment polity and encourage a political culture of selfishness are perhaps a central reason why Anastaplo is concerned about whether our founding constitutional beliefs “can continue to shape and guide a Country that is now almost a third of a billion” (p.187). Chapter Two presents St. Paul as a paradigm for a spiritual and philosophical conception of the meaning of a people, and for continuities and discontinuities among Greek, Judaic, and Reformation conceptions of a people, to characterize elements of the authentic roots of freedom of speech. Authentic roots, if nourished, contribute to cultural values associated with attentiveness to the significance of precise language, personal choice, transcendent principles, conscience, and commitment.

Chapter Three presents Thomas More’s career as, in effect, an embodiment of these values and commitments. Co-related, it presents the experience and tradition of Parliamentary freedom of speech as precursors for freedom of speech in Congress and then among the American people. It also reflects on More’s career (attacking heretics) and post-1215 repudiations of the Magna Carta as object lessons about how [*594] otherwise sound values and commitments can be turned to inappropriate uses. These lessons are meant to teach that advocates of free speech values in a republican regime must be vigilant in defending their proper use, and that use includes a Socratic-like attentiveness to differences between appearance and reality and the need to challenge deceptive ideas and a false sense of complacency in the rightness of things (p.19).

John Milton, the focal point of Chapter Four, is championed for his rejection of the law of prior restraint of the press, for his appreciation of the proper role of government in publishing offensive materials, and for the efficaciousness of his rhetoric. However, Anastaplo raises questions about Milton’s “rapturous accounts of the power of truth” (p.23), granted the extent to which a population might not be well-informed and “even more important . . . the caliber of the people” (p.23). Milton’s willingness to recognize distinctions among citizens resonates with Socratic-inspired observations that “it may be . . . that the deepest truths are reliably accessible to only a few” (p.24), and that “a decent community . . . recognizes that its most talented members should be treasured” (p.25). In this, looking both to the past (Greece) and the present (our polity), Anastaplo warns about misuses of free speech values and offers the caveat that “some communities are better equipped than others for the robust debate that Milton considers useful” (p.24). (This argument foreshadows his later praise of English political cultural sensibilities, and, in Part Two, ensuing doubts about the utility of Declaration of Human Rights).

Chapter Five’s discussion of William Blackstone’s chronicle of “the development in Great Britain of an effective recognition of liberty under law” (p.27) is the exemplar for Anastaplo’s emphasis on the role of lawyers as trustees for constitutionalism in a rule governed polity. The primary focus is on Blackstones’ defense of law, the necessity of limited power and the gracious behavior of rulers, the principle of habeas corpus, and respect for tradition (also associated with Edmund Burke) as backbones for the preservation of liberty. This chapter also discusses Patrick Henry as both an American heir of Blackstone and a precursor to Lincoln’s trusteeship for “rational liberty” (p.35) and free speech.

Chapter Six provides a defense of the Declaration of Independence and the Northwest Ordinance for an originalist (my word) interpretation of the fundamental principles of the Constitution in general, and, specifically, the right of and duty to engage in full and frank discussion of government (p.37). Perhaps the discussion of the Declaration is a more or less familiar, albeit controversial, one in defense of its implications for republican values entrenched in the Constitution. Perhaps the more engaging discussion concerns Section 14 of the Northwest Ordinance and its extension of the fundamental principles of civil and religious liberty to the government of territories (p.38) purportedly foreshadowing, and implicitly justifying the Fourteenth Amendment’s extension of those principles to State government. This [*595] chapter also includes a few words of long-standing concerns with the Ordinance and slavery as foreshadowing the appropriateness of a sustained debate over its constitutional status as conditional.

Chapter Seven characterizes the text of the Constitution as a product and expression of popular power and of free, honest, and well-considered political discussion. To that end, the chapter addresses free speech and legislative immunity, the Preamble, Article IV, a republican form of government, and evidence for reading the Constitution as requiring and justifying the duty and rights of citizens to exert their influence on one another and their governments.

Chapter Eight represents the Virginia Statute of Religious Freedom as the pre-eminent State document bespeaking fundamental principles of a free people, freedom of the press, and the free exercise of religion. Its apparent crucial contribution is its rhetoric, for a people of reason and conviction, which is contrasted favorably to the Massachusetts Declaration of Rights and its rhetoric of piety. This chapter thus raises interesting tensions between spirituality and political freedom. The Statute is also significant for its forward-looking rejection of state establishment of religion (in line with the Declaration and laws of nature) and for its Preamble, which is underscored as a source for an emphasis on the due process of law, a Milton-like defense of a free press, and as expression of confidence in political conflict and free speech as the means of constituting shared political truths.

The Statute’s Preamble is also highlighted for its appreciation of the circumstances of politics, particularly the extent to which there must be limits on political power because of its potential to either corrupt religion and/or limit religious liberty. The circumstances of politics also leads Anastaplo to suggest that the Statute serve as a reminder that freedom, making the right choices, and appropriate political action are not the same things, and that for liberty to achieve its ends it must be accompanied by self-discipline (p.54).

Chapter Nine is Anastaplo’s version of the evolution of a Bill of Rights for the Constitution, with particular attention to the incorporation process in the House and Senate. This version puts great weight on seeing the Constitution as a statute and its foremost concern as Congressional power to address the applicability of the Bill of Rights to States. (This discussion reverts back to the previous chapter’s consideration of the role of chance in politics and its impact on law.) The chapter concludes with a discussion of the unenumerated rights of the Ninth Amendment to represent the existence of rights antecedent to the Constitution, and thereby to makes those antecedent rights available for interpreting the values and principles upon which the Constitution rests. All of this leads to the more abstract claim that, for written law to be efficacious, it must be rooted in the traditions, political practices, and understandings of a people.

Chapter Ten addresses the organization of the First Amendment. The specific [*596] concern is why religion is addressed prior to speech and press. The chapter indicates that the organization of the Amendment reflects commitments to freedom of religion as the antecedent liberty, making religious and political liberties simultaneously inter-related and distinct (thereby returning to the issue of relationships between spiritual concerns and political ones). For example, the relationship between the two is the bridge to a number of considerations: a comparison between First Amendment restrictions freedom of religion and political speech and press within the context of considerations of due process of law; distinctions between political and non-political speech; what is and is not protected by the First Amendment; and “the development and protection of the moral standards upon which effective republican government depends” (p.67).

Another example comes with a comparison between concerns about the consequences of not adhering to fundamental distinctions between what is and is not protected by the First Amendment or to concerns about effective republican government. This comparison relates to concerns about the present (the extent to which it appears that there are “no effective limits placed either upon what can be said or upon how and where it may be said”) (p.68) and observations about the past (the prosecutions legitimized in the 1919 decisions of SCHENCK v. UNITED STATES and DEBS v. UNITED STATES, and the 1951 decision of DENNIS v. UNITED STATES). This comparison is constructed to have readers think about the “deprecation both of citizenship and of those community measures that contribute to the proper shaping of the moral character of citizens” (p.69), and to challenge readers to think historically and philosophically about “what we consider proper for the community to do, acting through its governments, to shape the moral character of citizens” (p.69).

History and philosophy are also in play in Chapter Eleven, comparing and contrasting the Alien and Sedition Acts of 1798 with the Jeffersonian Revolution of 1800 and the Virginia and Kentucky legislative resolutions of 1798-1799. At one level, in this readers will find themselves thinking the extent to which “the integrity of a constitutional process depends upon the morale and wisdom of the people” (p.76). At another level, they are invited to draw an analogy between the politics surrounding the PATRIOT ACT of 2001 and the political history of the Alien and Sedition Acts. For example, for all its faults, the earlier statute did provide for its own expiration, trial by jury, and truth as a defense against its charges. Also, rather than depending on courts to challenge the constitutionality of legislation, the Sedition Acts were vigorously challenged in the political realm (e.g., the Jeffersonian Revolution). The tacit point is to remind readers that the present does not necessarily provide greater protections of freedom than the past did, and that the defense of freedom depends primarily on political participation and processes.

Chapter Twelve situates John Stuart Mill’s ON LIBERTY as a canonical text for understanding challenges to restrictions on speech. ON LIBERTY is [*597] an opportunity to revisit Socrates and Jesus, and to see ways in which Mill actually improved upon these precursors. For example, Mill is praised for the extent to which he was more tolerant of freedom of thought and discussion yet had well-considered doubts about (especially Milton’s) faith that truth will necessarily prevail. Mill also draws Anastaplo into a discussion of the fact that the elite (i.e., Socrates and Jesus) are sometimes subject to oppression; and More, Milton, and Mill draw him into a discussion of the extent to which liberty depends upon the character of a people, and the character of the people can be improved if we only had the political education and sensibilities to take full advantage of them (p.84).

Chapter Thirteen is especially difficult to characterize briefly because it amalgamates, explicitly and implicitly, many of the continuities and discontinuities of Part One’s themes and claims. Suffice it to say then that the chapter’s architectonics are the rhetoric of John C. Calhoun, his defense of the South and slavery, and his being at liberty to express himself accordingly in the midst of the “clear and present danger” (p.92) of the onset of the Civil War. The two systemic implications of this architectonics are: (1) “Freedom,” says Anastaplo, “is like medicine that is hardly likely to do one much good if it is not capable, in some circumstances, of doing one harm” (p.88, italics omitted), and (2) The slavery debate exemplifies a polity and people with a mature enough sense of liberty and constitutionalism to address, without governmental interference, its seriously inflammatory issues. Readers are, of course, left to make their own inferences about today.

Part Two addresses a range of First Amendment cases and issues within the context of the tensions among Part One’s materials and themes. Granted space constraints, what follows are but shafts of light on each chapter aimed to reflect on respective elements of Part One of the review. Chapter One commends and defends Justice Hugo Black’s jurisprudence for its First Amendment, Commerce Clause, and Fourteenth Amendment “originalism” of principle and constitutionalism. Black’s originalism of principle is offered up as the jurisprudential superior to “realism” that makes more of forces than it does of ideas, and more of precedent than constitutional principles, for constructing “the human soul and of human communities” (p.99).

In Chapter Two, the ESPIONAGE ACT (1917) convictions in SCHENCK v. UNITED STATES AND ABRAMS v. UNITED STATES, and the realistic jurisprudence of Justice Oliver Wendell Holmes, are the focal points for how things go wrong when realism, passions of the moment, and excessive concerns over dangerous speech triumph over true First Amendment principles. Nonetheless, the chapter finds yesterday’s reaction to volatile speech “healthier” than today’s tolerance for virtually anything and everything said. (In this regard, Anastaplo finds the Internet especially disturbing.)

Chapter Three compares the words and deeds of (labor organizer and Socialist) Eugene V. Debs in opposition to the draft in World War I, and the Court’s [*598] upholding his conviction under the ESPIONAGE ACT in DEBS v. UNITED STATES (1917), with the words and deeds of President Wilson in his pursuit his passion for a world to be made safe for democracy, and the prosecutors in the case. The point of the comparison is to suggest the extent to which the words and deeds of the latter two ought to be seen as more “dreadfully mischievous” (p.112) as threats to liberty than those of Debs.

Also GITLOW v. NEW YORK (1925), upholding Benjamin Gitlow’s conviction for publishing THE LEFT WING MANIFESTO as a violation of the New York State criminal anarchy statue, but also stipulating the First Amendment’s protection of speech as incorporated into the Fourteenth Amendment restrictions on States, is highlighted as an example of the role that chance plays in constitutional adjudication, as well as an example of the legal and political problems that arise when the stable meaning of original principles falls prey to realism.

Chapter Four explores (mainly) the relative strengths of the words and deeds of Winston Churchill, from 1940 through to his “Iron Curtain” speech of 1946, in defense of freedom as a spokesperson for freedom who had the courage, as a leader, to convey to the public messages that sustained the spirit of liberty. In contrast, Chapter Five is the author’s take on the Smith Act convictions sustained in DENNIS v. UNITED STATES (1951), and prosecution of Julius and Ethel Rosenberg, to characterize a tendency for the legal community, from bottom to the top, to follow political passions in times of perceived crisis that discourages both elites and citizens to sustain the spirit of liberty, freedom of speech, and association. These two chapters together constitute Anastaplo’s warning that the only alternative to principles of liberty abandoned to realism and the passions of the moment are for spokespersons for free speech to engage the public in sustained criticisms of goals and methods of those who would limit speech. (Specific mention is made to our HOMELAND SECURITY program.)

Of course, we know from Part One how and why Anastaplo believes that freedom of speech is not absolute. Chapter Six is primarily about COHEN v. CALIFORNIA (1971), and overturning Cohen’s disturbing the peace conviction for wearing a jacket displaying the slogan, “Fuck the Draft,” (Anastaplo would prefer I did not write that) in a courthouse. The case provides Anastaplo the opportunity to give vent to his despair over individualism, uncontrolled passions, an ethos of freedom of expression, and his remorse over fundamental principles connecting spiritualism, politics, and the common good left unattended.

Chapter Seven’s discussion of the Pentagon Papers controversy, interwoven with discussions of the publication of instructions about how to make a hydrogen bomb and overturning of a libel verdict in NEW YORK TIMES v. SULLIVAN (1964), is presented as a case-study of what it means to hold dear principles of freedom of the press, the dictum of no prior constraint, and the [*599] necessity to show harm to the community to limit freedom. Although the Court is commended for refusing, in both the Papers contoversy and the TIMES case, to back efforts to enforce military security practices, Anastaplo points out that it is really the “patriotism” (p.146) of those struggling with whether to publish sensitive materials that is the ultimate resource for drawing lines about what should be published.

Chapter Eight addresses primarily obscenity and the law, and secondarily cell phones, to address relationships and tensions between non-political speech, its cousin freedom of expression, and property rights (i.e., conceived as what rightfully belongs to persons as persons, rather than as citizens). All of this is encompassed by what the author finds is a culture with tendencies toward excessive individualism, “spiritual waste,” “lascivious tastes,” and the higher passions becoming boorish (p.153). Anastaplo’s primary concern in all this appears to be not so much to recommend legal solutions to line-drawing about what is protected and what is not (here he sees predicaments best resolved by due process considerations) but rather to warn that a society overly concerned with privacy and property rights as related to obscenity might not be one that is situated to respond to Churchill-like calls for the sacrifices of citizenship.

Issues of property rights, this time conceived in economic terms, and public freedom are the controlling theme of Chapter Nine. The focal point is the writings of Milton Friedman, who is characterized as having his heart in the right place (p.159) when it comes to justifying market-freedom. But Friedman is criticized for an over-emphasis on material freedom that the author identifies with excessive individualism and a conception of the good defined relative to supply and demand. In this, the author contrasts material and spiritual freedom and the extent to which the former can be at odds with a “public character upon which an enduring freedom depends” and an authentic concern for “the common Good” (p.160). At a more abstract level, property rights becomes a means to raise the question about “who is truly free” (p.158) and how a “genuine freedom is . . . a reliable grasp of excellence” (p.159).

BUCKLEY v. VALEO (1976), the constitutionality of campaign finance regulations, money as property, political freedom, and the common good occupy Anastaplo’s attention in Chapter Ten. Here again, Anastaplo raises the question whether the Court ought to intervene rather than leave it to Congress to sort out campaign finance regulations issues. For Anastaplo, the constitutionality of campaign finance regulations comes down to much ado about nothing. He sees finance regulations as having an insignificant positive impact on an electoral process undermined by the undue influence of wealth. And he doubts whether regulations have a significant negative impact on freedom of speech. Hence, such regulations per se are not likely to make much of a difference, save unless they help to create public confidence in public institutions, and thereby teach the [*600] public what should be important about elections (p.169).

The impact of the market on public character and of the over-extension of freedom of speech is revisited in Chapter Eleven’s discussion of the protection of commercial speech, particularly in relation to permitting lawyers to advertise. The crucial issue here is “what it should mean for one to be a member of a profession” (p. 173, italics omitted), and the extent to which advertising tends to undermine and displace the role of the lawyer as a trustee for the community and the law with the role of lawyer as that of the money-maker.

The penultimate chapter picks up on the roots of liberty in English political cultural sensibilities and the political circumstances of a people and its politics to consider the extent to which the post- World War II UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) represents “the highest aspirations of the common people or rather the highest aspirations for the common people” (p.178). The point here is to have readers question the appropriateness and efficaciousness of a universal declaration of rights, albeit high aspirations and prescriptions for liberty. The potential inappropriateness of the DECLARATION is traced to its being “more the work of intellectuals than the results of political processes” (p.181), and its uncertain efficaciousness is traced to its distant connections to the traditions, privileges, and obligations of respective citizens with which the DECLARATION is supposed to concern itself. In its stead, Anastaplo promotes “international law developed and applied across centuries” (p.182) and its putative greater sensitivity to respective political regimes and citizens, rather than abstract rights, as the preferable path for aspirations to improve political life.

The book concludes with provocations about the cultural insidiousness of television and the Internet as forces which could undermine a “sense of community and the character of a people” necessary to sustain constitutionalism and free speech. Again readers are prompted to consider the impact of cultural forces, like “rampant individualism” (p.184) and the “tyranny of undisciplined imagination” (p.185), which threaten liberty and the civic competence of citizens. In turn, readers are asked to think seriously about the necessity of legislation that seeks to shape the public morality of citizens (p.186), ostensibly without which the First Amendment could become nothing more than a declaration in defense of the freedom of expression of a people who have given themselves over to the proclivities and infatuations of self-centeredness and private satisfactions.

REFRENCES:
Anastaplo, George. 1971. THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT. Dallas, Texas: Southern Methodist University Press.

Anastaplo, George. 2006. REFLECTIONS ON CONSTITUTIONAL LAW. Lexington: The University Press of Kentucky. [*601]

Blackstone, William. 1979. COMMENTARIES ON THE LAWS OF ENGLAND. Chicago: University of Chicago Press.

Dubrow, Heather. 1981. “Shakespeare’s Undramatic Monologues: Toward a Reading of the Sonnets. 32 SHAKESPEARE QUARTERLY 55-68.

Dynia, Philip A. 2007. Review of REFLECTIONS ON CONSTITUTIONAL LAW, by George Anastaplo. LAW AND POLITICS BOOK REVIEW, 17:4, pp.286-289.

Finch, Annie and Kathrine Varnes. 2002. AN ECHALTATION OF FORMS, CONTEMPORARY POETS CELEBRATE THE DIVERSITY OF THEIR ART. Ann Arbor, Michigan: The University of Michigan Press.

Hunter, J. Paul. 1999. THE NORTON INTRODUCTION TO POETRY (7th ed). New York, London: W.W. Norton & Company.

Mill, J.S. ON LIBERTY.

Plato. DIALOGUES.

Rivers, Elias L. 1958. “Certain Formal Characteristics of the Primitive Love Sonnet.” 33 SPECULUM 42-55.

CASE REFERENCES:
ABRAMS v. UNITED STATES, 250 U.S. 616 (1919).

BUCKLEY v. VALEO, 424 U.S. 1 (1976).

COHEN v. CALIFORNIA, 403 U.S. 15 (1971).

DEBS v. UNITED STATES, 249 U.S. 211 (1919).

DENNIS v. UNITED STATES, 341 U.S. 494 (1951).

NEW YORK TIMES v. SULLIVAN, 376 U.S. 254 (1964).

SCHENCK v. UNITED STATES, 249 U.S. 47 (1919).

© Copyright 2007 by the author, Ira L. Strauber.

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July 22, 2007

RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS

by Matthew J. Streb (ed). New York: New York University Press, 2007. 272pp. Cloth. $45.00. ISBN: 9780814740347.

Reviewed by Tara W. Stricko-Neubauer, Department of Political Science, Kennesaw State University. Email: tstricko [at] kennesaw.edu.

RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS, edited by Matthew Streb, contains essays from a large number of leading scholars in the field of judicial politics and provides detailed information on the current state of judicial elections for state courts. The studies are timely with nearly all including data from within the last ten years. The authors examine a variety of topics relating to state court elections, including the First Amendment and judicial speech, contemporary developments in judicial elections, campaign spending, interest group participation, partisan involvement, news coverage, voter response, competition and accountability, the death penalty connection, and recent reform efforts. Nearly all chapters make use of descriptive statistics. This approach makes the book accessible to a broad audience with a wide variety of methodological backgrounds, yet its content makes it a very useful read for those who specifically study state courts.

The volume is noteworthy for its philosophical orientation. While much of the political debate surrounding judicial elections centers on whether judicial elections are a positive or negative development, the goal of the book is explicitly non-normative. As noted by both Matthew Streb and Melinda Gann Hall, the book examines data often cited by both sides of the debate but does not go round and round pondering opposing interpretations of the same evidence. Each chapter takes a different area and considers recent developments and possible implications but does not question the basic wisdom of judicial elections. The authors’ choice is imminently understandable given the limits of a single tome, however readers with strong opinions on the wisdom of judicial elections will find themselves wanting more debate on the merits of electing judges.

The first chapter introduces the central theme that judicial elections are increasingly starting to resemble elections for other explicitly political offices. Of particular importance is the case of the REPUBLICAN PARTY OF MINNESOTA v. WHITE (2002) in which the United States Supreme Court struck down a state provision prohibiting judges from publicly announcing their views on disputed issues. The central issue in WHITE was how to weigh the political speech rights of judicial candidates with the need for judges to appear impartial. The decision and subsequent cases significantly changed the landscape of judicial elections by negating some speech codes which had previously restricted judges from announcing political positions to the electorate, a freedom enjoyed by other [*589] elected officials. The WHITE case reflected the changing nature of judicial elections and represented a turning point in how many states conduct judicial elections.

The next two chapters go in-depth into the WHITE ruling and its impact on judicial speech restrictions across various states. Through careful consideration of the WHITE ruling and extensive evaluation of its later impact, both Richard Hasen and Rachel Caufield agree that recent developments are changing the conduct of judicial elections. The former explores rules changes, while the latter examines the changing tone of judicial elections. Chris Bonneau’s chapter explores the relationship between campaign spending in competitive elections and institutional and political factors while Deborah Goldberg’s chapter focuses on the increasing involvement of interest groups. Both predict continued increases in the cost of judicial campaigns, much like the patterns we have seen for other elective offices.

The argument that judicial elections are starting to resemble other elections can also be seen in the role of other actors in the election process. In Chapter 6, Matthew Streb documents the level of involvement county party organizations play in judicial elections. Brian Schaffner and Jennifer Segal Diascro find mixed evidence of the ability or willingness of the media to better educate voters on the issues and candidates for the bench, although Lawrence Baum and David Klein present some evidence of a voter response (primarily through decreased voter rolloff) to modern judicial campaign developments. In Chapter 9, Melinda Gann Hall explores the challenging area of electoral competition and judicial accountability. Based on a preponderance of the evidence, she argues that judicial elections do indicate the presence of an accountability function, albeit a limited one. Paul Brace and Brent Boyea further explore the connection between public political preferences and judicial decisions in death penalty rulings. Not surprisingly they find evidence of a linkage, which they note raises major normative questions about judicial impartiality. Matthew Streb and Brian Frederick’s Chapter 11 rounds out the book with a summary of recent reform efforts taking place in various states and offers observations about the future of judicial elections research. Unsurprisingly, from the philosophical perspective that judicial elections are negative, most of the reform discussion mentioned by Streb and Frederick centers around public financing for campaigns and nonpartisan elections. This final chapter should appeal most to readers looking for normative insights.

One of the challenges confronting an editor is the difficulty in tying all the results of multiple studies conducted by different authors into one coherent package. While it is true that each chapter in RUNNING FOR JUDGE contains an independent study that is a solitary snapshot in research time, the book does a wonderful job of bringing the different research projects together. All the chapters provide detailed and timely information in an effort to explain recent developments in judicial [*590] elections, specifically in light of the Supreme Court’s ruling and subsequent state court interpretations of the WHITE decision. As more time passes, we will be able to assess with greater accuracy the impact of the WHITE case, but already it seems to be a major turning point in the development of judicial elections.

In sum, this is a comprehensive, well-written book, ideal for readers who already have a high level of knowledge of state courts. It is a worthwhile read for judicial scholars wanting a broad summary of current information on state court elections. The descriptive statistics make the book accessible to those of varying methodological backgrounds but the authors’ conscious choice to take a non-normative approach may disappoint readers expecting a more thorough critique of the wisdom and implications of recent changes in judicial selection processes.

CASE REFERENCES:

REPUBLICAN PARTY OF MINNESOTA v. WHITE, 536 U.S. 765 (2002)

© Copyright 2007 by the author, Tara W. Stricko-Neubauer.

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GUS J. SOLOMON: LIBERAL POLITICS, JEWS, AND THE FEDERAL COURTS

by Harry H. Stein. Portland: Oregon Historical Society Press, 2006. 282pp. Paper. $22.00. ISBN: 9780875952987.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile [at] mtsu.edu.

pp.584-587

With the exception of those who have written either individually or collectively about individuals who were at the center of civil rights cases in the 1950s and 1960s or about mavericks, most legal biographers have focused on lawyers known for courtroom theatrics or on US Supreme Court Justices. In what may well be a more representative portrait of federal judges, Harry Stein’s biography of Gus Solomon focuses on a lawyer who distinguished himself as an attorney and activist before serving as a judge on the US District Court for Oregon. Stein, an historian who has specialized in the history of the area, draws from a wide variety of oral histories, personal interviews, government documents and records, manuscript collections, and court decisions. He ably supplements these with secondary historical materials and relevant literature on judicial processes that place Solomon in the context of his time, place, and ethnic background. Stein amply documents his book and includes a bibliography, which, curiously, does not include citations to court decisions, and whose titles are similarly missing from the index.

Gus [Gould] J. Solomon (1906-1987) was born in Portland, Oregon to Jacob and Rose Solomon, immigrant parents from Romania and the Ukraine who had married in the United States. Jacob was a moderately successful businessman. Gus attended the University of Washington before completing his undergraduate degree at the age of 19 at Reed College. He then enrolled in Columbia University Law School where legal realism was in fashion but subsequently completed his degree at Stanford.

Following graduation, Solomon returned to Portland, where he found that his ethnic identity made entry into, and advancement within, the legal profession more difficult than it otherwise would have been. He compensated by entering private practice in 1929, but, as Stein notes, did not therefore depart from the norm, as 60 percent of his contemporary lawyers were in similar circumstances (p.25). Solomon subsequently affiliated [*585] with Leo Levenson and Irvin Goodman, without forming a formal partnership, and later set out completely on his own shortly after marrying Elisabeth (Libby) Willer, a medical technologist and fellow political activist, in 1939.

Influenced by both the sense of justice that he imbibed as part of his Jewish heritage and by his exposure to legal realism, Solomon “was no morally neutral legal technician but, rather, a fervent agent of change” (p.32). He became an advocate for publicly-owned utilities and labor unions, joined the American Civil Liberties Union and other rights organizations, and affiliated with numerous Jewish organizations. Most of his casework involved relatively routine business matters, often involving family friends and acquaintances, but at the age of 30, he helped launch the appeal that resulted in the US Supreme Court decision in DEJONGE v. OREGON (1937), which helped incorporate freedom of assembly in the Fourteenth Amendment.

Stein classifies Solomon as “a centrist liberal” (p.45). Although some organizations to which Solomon belonged sometimes made common cause with communists, he “considered Communism to be an anti-democratic force” (p.47), increasingly distanced himself from communists, and tried to undermine their influence. He supported mainline New Deal programs. As a committed Zionist and member of the American Jewish Congress and other Jewish organizations, Stein identifies Solomon with “personal identity politics” (p.64); he was a member of a local Jewish congregation but does not appear to have been particularly religious.

Although he tackled many liberal issues, Solomon regretted that he did not oppose the internment of Japanese Americans during World War II. The war’s end brought increased business, prosperity, and success; he won nine of the last 10 cases he argued before Oregon’s high court (p.85). Although Truman did not get the state’s electoral votes, Solomon, who was increasingly active in Americans for Democratic Action, helped Truman gain the support of Oregon’s Democrats over Henry Wallace.

In one of the few places in the book where Stein’s transition to a new phase in Solomon’s life is inadequate, Stein observes that by 1949, Solomon was pursuing a federal judgeship. Stein does not indicate what spurred Solomon’s interest in the job or whether the interest was relatively new or long-standing, but Solomon won the support of Oregon’s Democratic National Committeeman, Monroe M. Sweetland, and US Senator Wayne Morse and survived a fairly bruising confirmation battle that lasted from the beginning of 1949 until June 1950. Recognizing Solomon’s commitment to liberal Democratic principles, the only assurance that President Truman wanted (and that Solomon gave) was that he was not, nor had ever been, a communist. Opponents included business leaders, especially in the electric power industry, conservative Republicans, and the almost equally conservative American Bar Association, who tried to use innuendos dredged up by the FBI; there was probably sub rosa concern over his Jewish identity. Truman eased Solomon into his job with the use of an interim appointment.

Solomon believed that his appointment required him to act as disinterestedly as possible and emphasized the difference between “political choices” and “judicial choices” (p.120). Off the Court, he continued to be a liberal Democrat, but on the court he sometimes leaned over backwards to avoid the appearance of favoritism, especially to fellow Jews or to those whose causes he had once trumpeted. Solomon was often willing to defer to congressional statutes, observing that “I do not believe that the [*586] courts should be used to thwart the will of Congress, absent some constitutional basis” (quoted on p.124). Although Stein does not say so, Solomon’s philosophy on this point seems similar to that of Justice Felix Frankfurter.

Solomon was a tireless worker who, in 1958, became the district’s chief judge. He worked assiduously to streamline pleadings and so effectively disposed of work that he often served as an extra judge on the Ninth Circuit, where he authored 111 opinions (p.139) but to which his appointment was later blocked. Less positively, he developed a reputation for being fairly hard on lawyers, whom he often castigated in his court in a condescending fashion. Stein refers to his “idiosyncratic judicial autocracy” (p.149).

Solomon combined judicial restraint with the search for justice; Ernest Bonyhadi noted that “To effect justice a la Judge Solomon did not mean seeking near-utopian justice, ultimately, but justice now – pragmatic justice, putting a dispute to rest” (quoted on p.156). Higher courts overwhelmingly approved his decisions on appeal, and both the Ninth Circuit and the US Supreme Court praised his work. Following up on earlier observations throughout his book, however, Stein notes that Solomon’s greatest weakness was his lack of a “judicial temperament” (p.164). Stein cites both Solomon’s short temper and the treatment that he often doled out to lawyers in his courtroom. Although Stein paints a picture of a relatively strong marriage and of early joy over his three sons, he does not indicate whether Solomon’s autocratic style in the court room might have affected his home life, to which Stein directs relatively little attention.

A strong proponent of civil rights who furthered joint efforts between Jews and African-Americans, like other liberals of his era, Solomon emphasized “equal opportunities” over “equal results” (p.175) and opposed racial quotas. He was concerned about much of the social disruption of the 1960s. He strongly supported the draft but was relatively indulgent to conscientious objectors who were motivated by religious convictions and who were willing to accept punishment for their convictions (for a time, he worked out a plan that enabled Jehovah’s Witnesses to accept alternative service).

Solomon was a strong defender of the First Amendment, but he disagreed with the ACLU’s support of Nazi demonstrators in Skokie. Solomon consistently construed treaties to protect Native American rights. He avoided death penalty cases, at least twice, according to Stein, pleading “nonexistent calendar conflicts” to escape reviews of such penalties while helping the Ninth Circuit (p.212). Although he held confessions to high standards, US Attorney Sidney Lezak observed that “Solomon, the liberal judge, refused to suppress evidence as a version of a Supreme Court decision that would elevate the rights of criminals to an extremely high degree” (p.215). The US Supreme Court upheld his decisions relative to the confrontation clause in NELSON v. O’NEIL (1971), jury instructions in NAUGHTEN v. CUPP [*587] (1973), and search and seizure in CUPP v. MURPHY (1973).

Solomon worked diligently to integrate Jews both into Portland law firms and into the city’s private clubs. In time he not only refused to speak at such venues but encouraged others to boycott as well.

The victim of an early heart attack and beset with a variety of other ailments, Solomon took senior status in 1971, but continued to maintain an office in chambers and to serve actively on both district and circuit courts. Cancer finally felled him in 1987 at the age of eighty. Two years later the federal courthouse in Portland was named in his honor.

Stein’s account not only provides a convenient lens through which to examine justice in Oregon but the role of lawyers and judges (especially Jews) through several critical decades of American history.

CASE REFERENCES:

CUPP v. MURPHY, 412 U.S. 291 (1973).

DEJONGE v. OREGON, 299 U.S. 353 (1937).

NAUGHTEN v. CUPP , 414 US 141 (1973).

NELSON v. O’NEIL, 402 U.S. 622 (1971).

© Copyright 2007 by the author, John R. Vile.

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THE LIMITS OF SOVEREIGNTY: PROPERTY CONFISCATION IN THE UNION AND THE CONFEDERACY DURING THE CIVIL WAR

by Daniel W. Hamilton. Chicago and London: University of Chicago Press, 2007. 200pp. Cloth. $39.00. ISBN: 9780226314822.

Reviewed by Robert M. Spector, Department of History and Political Science, Worcester State College. Email: rspector [at] worcester.edu.

pp.582-583

THE LIMITS OF SOVEREIGNTY, by Daniel W. Hamilton, is a well-written concise consideration of an important feature of the Civil War—first, the confiscation of enemy property by the Union sovereignty, and second, that of the so-called Confederacy during the Civil War.

When the war began, Union confiscation of properties belonging to those who were admitted rebels took place in the Thirty-Seventh Congress through the First Confiscation Act of August, 1861, and the Second in July 1862. The First “authorized the federal government to seize the property of those participating directly in the rebellion.” The Second “provided for the permanent uncompensated seizure of all the real and personal property of anyone taking up arms against the government, anyone aiding the rebellion directly, or offering aid or comfort for the rebellion.” The precedent for these acts lay in English Medieval law, where the lords held their lands in loyalty to the king, and lost their lands based on their failure to recognize and practice the incidences required by feudal procedure. Later, on the rise of Republicanism, as Parliament took the place of the king, the State was substituted for the king. In a word, the sovereign state became the owner of all land and property, and the possessor continued to hold not title but seisin in property. And this was what was practiced during the American Revolution, when the colonial Congress and/or former colonies passed measures confiscating the properties of Tories and those opposing the Revolution.

Yet, considering that legislative Bills of Attainder, or corruption of the blood, in early modern times had been declared contrary to the English legal field, among other issues, factions rose in the Thirty-Seventh Congress over the constitutional validity of these Confiscation Acts. For one, there were the Radicals, led by such persons as Lyman Trumbull of Illinois, who “argued for the legitimacy of confiscation.” For them, loyalty to the sovereign was “paramount, and membership in a political community contingent” (p.24). A second faction, conservative, led by such men as Orville Browning of Illinois and Jacob Collamer of Vermont, opposed confiscation, on the theory that a person did not hold property based on loyalty to the sovereign but on the Lockean principal of individual title or a form of fee simple. Joseph Story in his COMMENTARIES ON THE CONSTITUTION had attacked the confiscation acts of the Revolution as Bills of Attainder, contrary to modern enlightened Anglo-American law. Still, a third faction, opposing confiscation, lay [*583] in the moderates, such as John Sherman of Ohio, who insisted that confiscation could only occur judicially and not legislatively; without a trial, such Acts of Congress were unconstitutional. As far as just compensation by the sovereign went, although Trumbull was a radical he felt that where the judiciary of the Union was still operating, a judicial trial for the determinations of both aid and comfort to the enemy and just compensation were obligatory. Further, although most of the Democrats in the Thirty-Seventh Congress had withdrawn (Virginia and Tennessee still had membership), the majority Republican Party, hardly united except on the absolute agreement that slave property had to be confiscated without compensation, held fractions present throughout these groups. Lincoln, himself, had been supportive of the Conservative view and was not enthusiastic about enforcing the Confiscation Acts on the view that the Confederacy was not legitimately out of the Union but somehow only out of joint with it, and that confiscation was only constitutional when such properties were taken over in military areas for military purposes.

Once the war was over, confiscation of non-slave property was recognized either only during the lifetime of the former rebel, the property had been sold to a third person, or amnesty had wiped away the confiscation. Extinction of slavery without compensation was, of course unconstitutional, and required the 1865 Thirteenth Amendment. Individual ownership of property had replaced the feudal concept.

During the War, as a result of the First Union Confiscation Act, the Confederacy, considering itself a sovereign government, passed a Sequestration Act which had no ideological problems. Where the government viewed the Union as an enemy alien belligerent, all property owned by the citizens of the United States within the Confederacy was subject to seizure, with the result that by the end of the war in 1865, millions of dollars belonging to Union citizens within the borders of the Confederacy had been taken. Of course, however, once the war was over, whatever the Confederacy had done in terms of sequestration was ruled invalid.

Hamilton has written a relatively brief book, and he might have constructed a broader context for his analysis by taking a closer look at Medieval English or international law. But he undoubtedly did not intend to go further than what he has written. His citations of Supreme Court cases are fairly numerous, and the explanations and analyses clear. His book is not intended for a general history of the United States, nor even for any strong understanding of the causes of that war, but it is an excellent introduction into one of the lesser known but significant legal aspects of the war. And it clarifies one important change in the general acceptance of property ownership, especially for students primarily interested in the legal implications of the Civil War. Well recommended.

© Copyright 2007 by the author, Robert M. Spector.

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CONSENT IN THE LAW

by Deryck Beyleveld and Roger Brownsword. Oxford: Hart Publishing, 2007. 406pp. Hardback. £45.00/$84.00. ISBN: 9781841136790.

Reviewed by Peter Cane, The Australian National University College of Law. Email: canep [at] law.anu.edu.au.

pp.577-581

CONSENT IN THE LAW, by Deryck Beyleveld and Roger Brownsword, is a wide-ranging analysis of the role of consent in normative reasoning. Chapter 1 introduces the various issues relating to consent covered in the book, and announces the authors’ intention to base their analysis on Alan Gewirth’s theory of moral reasoning.

In Chapter 2, Gewirth’s Principle of Generic Consistency (PGC) (original capitals) is briefly explained. The PGC ‘grants’ to ‘vulnerable agents’ ‘the generic conditions of agency’ – i.e., what they ‘need, irrespective of what their purposes might be, in order to be able to act at all or in order to be able to act with general chances of success’ (p.39). Beyleveld and Brownsword accept Gewirth’s characterisation of the PGC as ‘dialectically necessary.’ However, they alternatively find in the concept of fundamental human rights a ‘dialectically contingent’ foundation for the PGC. The concept of rights plays a central role in the authors’ conceptual scheme because they equate the ‘generic conditions of agency’ in Gewirth’s theory with ‘generic rights,’ and they understand ‘rights’ in terms of ‘will’ or ‘choice’ as opposed to ‘interests’ (pp.85-88). In their opinion, both the PGC and the concept of consent make most sense within a rights-based conceptual framework. They reject both utilitarian and ‘duty-led’ (‘dignitarian’) approaches to consent on the ground that both are reductionist – i.e., because consent plays no independent role in either (pp.27-32). In the authors’ ‘rights-led’ approach to consent, by contrast, ‘what counts is respect for . . . each individual’ (p.29).

In a brief (but analytically critical) section (pp.55-57) the authors explain that the PGC can justify prescriptions (about the significance of consent, for instance) either ‘directly’ (in the case of prescriptions that can be ‘deduced’ from the PGC) or ‘indirectly’ (in the case of prescriptions that are ‘not contrary’ to the PGC and that are ‘outcomes of decision-making procedures that are justified directly by’ the PGC). Indirect justification accommodates the abstractness of the PGC and the consequent possibility of genuine and reasonable disagreement about its application. However, the concept of indirect justification perhaps assumes that procedures are less likely to be the subject of disagreement than outcomes – a point to which I shall return.

Chapter 3 introduces a distinction between two functions of consent that are most easily grasped through examples. An example of the first function is consent as a defence to a claim of interference with a right; an example of the second function is consent as a component of the legal concept of a contract. In performing the former function, consent effects ‘a change of position within a baseline [*578] relationship;’ in performing the latter function, it is a feature of the operation of a ‘rule-set’ ‘that agents are permitted to engage’ (p.80). The discussion of this distinction is – to my mind unnecessarily – complicated by being embedded in an exposition of Hohfeld’s famous account of jural relations.

Chapters 4-7 provide detailed analysis and discussion of various aspects of the concept of consent: the capacities and competences needed to be capable of consenting (Ch 4); the effect on consent of external pressure and lack of information (Chs 5 and 6); and what Beyleveld and Brownsword call the ‘signalling, scope, withdrawal and refusal’ of consent (Ch 7). The discussion in each of these chapters offers a careful account of the direct and indirect implications (as understood by the authors) of the PGC, mainly in relatively abstract terms, but also by reference to and analysis of some legal materials.

Chapters 8 and 9 return to the two functions of consent, which we might loosely describe in terms of (1) creating and (2) changing normative relations between individuals. These chapters expose what the authors describe as two ‘Fallacies’ about consent: the Fallacy of Necessity and the Fallacy of Sufficiency (original capitals). Chapter 8 deals with what the authors call ‘the private domain,’ which they define in terms of the legal categories of ‘tort, contract and property’ (p.236). Chapter 9 deals with ‘public wrongs,’ which the authors define in terms of the ‘criminal code’ (p.269). The basic argument of these chapters is that although consent is normatively important and potent, it is not the only factor relevant to the creation and change of normative relations. For instance, consent is not the only defence that the law recognises to claims of interference with (private) rights. On the other hand, consent is not always available as a defence to a criminal charge. These chapters engagingly make a convincing case against a point of view that one of the authors describes elsewhere as a “fixation” with consent (Brownsword 2004).

In Chapter 10 attention shifts from creation and change of interpersonal normative (and in particular, jural) relations to the normativity and authority of law as a social phenomenon. The basic theme of this chapter, which (as I read it) echoes the theme of the previous two chapters, is that while consent is an important (political) value, it has its limitations. The authors distinguish between legitimation and legitimacy. In the face of genuine, reasonable and intractable disagreements about the terms of social life, consent may be more valuable and effective as a legitimation device than as a source of legitimacy. ‘Whatever the merits of government by consent,’ the authors say, ‘it should not be readily equated with government that is justified by consent. For the most part, what justifies public governance . . . is that it conforms to the PGC’ (p.331).

Chapter 11 offers a summary restatement of the main themes of the book but also takes the argument further in certain respects. [*579]

This is a long and closely argued book, which requires and deserves careful attention. All that can be done here is to raise a few queries and make a few comments of quite a general nature.

A first, small but not insignificant, point concerns the book’s title: CONSENT IN THE LAW. As noted, while the bulk of the book is concerned with the role of consent in interpersonal normative relations, Chapter 10 and parts of Chapter 11 deal with the role of consent ‘in authorising the legal framework itself’ (i.e., ‘law’ as opposed to ‘the law’). I suspect that many readers will find this the least satisfactory part of the book. The authors tackle this large topic in only 24 of a total of 363 pages. While I have general doubts about the value of framing the analysis with Gewirth’s moral theory (to which I shall return), in Chapter 10 this strategy strikes me as positively unhelpful because it leads the authors to posit an imaginary society – amazingly called ‘Gewirthia’ – all the members of which subscribe to the PGC. The heuristic value of this unrealistic construction is doubtful if only because the space needed to set it up inevitably truncates the discussion of (real) societies characterised by pervasive and often fundamental disagreements about the normative terms of social life.

A more substantial query about the book’s title concerns its reference to ‘the law.’ For lawyers, the title resonates with that of Herbert Hart and Tony Honoré’s classic. But the methodologies of the two books are very different. Hart and Honoré painstakingly analysed a very large body of legal materials from various jurisdictions and (unconvincingly) used those materials to establish the hypothesis that the law embodies ‘commonsense,’ extra-legal notions of causation. In Beyleveld and Brownsword’s terms, this is an ‘inside out approach.’ By contrast, they adopt an ‘outside in approach’ (334). Their aim is not to map and explore the concept of consent as it is found in legal materials (i.e., materials that embody ‘the law’), and to compare and contrast that concept with related concepts found in other normative domains. Rather, their strategy is to construct an ideal account of consent (understood in terms of the role consent plays in certain areas of law – contract, tort, property and crime – and in justifying the normativity of law) on the basis of Gewirth’s moral theory, and to use that ideal account as a basis for discussion and analysis of selected legal materials and various consent-related issues with which the law has to deal. There is nothing inherently wrong with this strategy – although it prompts the thought that the book might be better described as an essay in applied Gewirthian ethics than in legal theory. Problematic, however, is the justification the authors give for their approach, namely to ‘generate an account of consent in law universally’ (p.335, original italics). Space permits only the bald assertion that the concept of a ‘universal law of consent’ raises a host of thorny jurisprudential and other theoretical issues about the nature and interrelationship of legal and other normative systems – in a word, about normative pluralism. No doubt the authors’ implicit rejection of normative legal pluralism rests on their explicit rejection of ‘moral pluralism’ (p.33). For many readers, their explicit and [*580] deliberate lack of interest in the diversity of moral opinions about and legal approaches to consent will be disappointing.

Despite their differences, both inside-out and outside-in approaches rest on a distinction between law and morality (non-law) and on some view of the (proper) relationship between them. Beyleveld and Brownsword address this issue directly, though briefly. If law (they say) ‘is an affair of practical reason . . . and if the PGC is the supreme principle of both practical and moral reason, then not only is legal reason conceptually connected to moral reason, it is connected specifically to the PGC [which is] . . . the supreme constitutive principle of legal order’ (p.33). The authors defend this view at length elsewhere (in LAW AS A MORAL JUDGMENT (1986)). Curiously, however, they think that this understanding of the relationship between law and morality is irrelevant to the argument of CONSENT IN THE LAW because the main concern of the book is with ‘moral and ethical’ rather than legal reasoning. Taken at face value, this last statement sits very uneasily with the idea that law and morality are ‘conceptually’ connected aspects of practical reasoning: if this is so, how can morality be discussed without discussing law? Ironically, however, the statement also acutely raises the question of what this book has to do with law.

Accepting that CONSENT IN THE LAW is an essay in normative moral theory, the obvious question about this project concerns the value of its reliance on Gewirth’s moral theory. As the authors themselves point out (p.41, n8), CONSENT IN THE LAW does not provide a ‘full analysis of’ the PGC or of Gewirth’s moral theory more generally; nor is the argument designed as a defence or justification of Gewirthianism. The authors make things easier for the reader by suggesting how the PGC might be understood as ‘dialectically’ contingent rather than dialectically necessary, but even the former understanding rests on a commitment to fundamental human rights that some readers may not be prepared to make. Moreover, the authors clearly accept that even committed Gewirthians might disagree about the detailed application of the PGC. My feeling is that little would be lost (apart from some biographical information about the authors) by jettisoning the book’s Gewirthian apparatus. The authors may modestly feel that the Gewirthian pedigree adds weight to their own views. My opinion is that the authors’ self-denying ordinance is unnecessary and even counter-productive in that it distracts attention from the fine garments with which they clothe the Gewirthian skeleton. My suspicion is that many more readers will be interested in what Beyleveld and Brownsword have to say about consent than in their attempt to develop a distinctively Gewirthian normative theory of consent.

An important feature of the Beyleveld and Brownsword account of consent is their insistence that consent is a procedural, not a substantive, concept (pp.61-63). Their prime motivation for stressing this point is to discourage the [*581] over-valuation of consent as a justification for action (this comes out most clearly, perhaps, in Chapters 9 and 10). Indeed, one of the recurring and most salutary themes of the book is the limited justificatory force of consent. However, there are various reasons to question the distinction between procedure and substance on which this theme rests. First, Beyleveld and Brownsword speculate that the attraction of consent as a justification is that it avoids ‘intractable’ arguments that tend to surround substantive justifications (p.63). One might think that the authors’ own detailed examination of the complexities and controversies surrounding consent itself undermines this speculation. Secondly, it is not necessary to take a strongly instrumentalist approach to procedure (that is, an approach that locates the value of procedure in the quality of the outcome) to think that procedures and outcomes are related. Intractable arguments about substance are apt to produce intractable disagreements about procedure precisely because procedure may affect outcome. Thirdly, and perhaps most importantly, to those who do not accept the dialectical necessity of the PGC, the authors recommend it on the basis of the substantive concept of fundamental human rights. Understood as dialectically contingent, the PGC is itself a function of a substantive concept.

CONSENT IN THE LAW provides much food for thought. I think that its greatest strength is its detailed and careful consideration of the various limits to consent as a justification for action. Beyleveld and Brownsword’s book can be warmly commended to anyone interested in this extremely important topic in political and legal theory.

REFERENCES:

Beyleveld, Deryck, and Roger Brownsword 1986. LAW AS A MORAL JUDGMENT. London: Sweet & Maxwell.

Brownsword, Roger. 2004. “The Cult of Consent: Fixation and Fallacy.” 15 KING’S COLLEGE LAW JOURNAL 223.

Hart, H.L.A., and Tony Honoré. 1985. CAUSATION IN THE LAW (2nd ed). Oxford: Clarendon Press.

© Copyright 2007 by the author, Peter Cane.

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July 16, 2007

LECTURES ON ANTITRUST ECONOMICS

by Michael D. Whinston. Cambridge, MA: MIT Press, 2006. 261pp. Hardcover. $30.00/£19.95. ISBN: 9780262232562.

Reviewed by Kasturi Moodaliyar, Oliver Shreiner School of Law, University of Witwatersrand, South Africa. Email: kasturi.moodaliyar [at] wits.ac.za.

pp.575-576

This book is comprised of a series of lectures that to serve as an introduction to the economics incorporated into antitrust law. Michael D. Whinston caveats that the lectures do no strive to be comprehensive in their coverage. He focuses on some of the most recent developments in antitrust economics, and more specifically on issues that are complex, problematic and those that require further research.

The book comprises a combination of law and economics which starts off on an intermediate level. Whinston begins with an introduction to US antitrust laws, which is a well examined insight that will appeal to readers with basic to advanced knowledge of the subject. Quite early on in the introduction, he describes the collusive behaviour of firms, using economic reasoning. Although this might scare some lawyers, the equations are quite understandable and easy to follow. The book is well-structured, and the remainder of the book is organised into three main chapters.

Chapter 2 covers one of the most unsettled areas of antitrust with which many jurisdictions have tried to grapple for decades. This chapter offers an in-depth discussion on price fixing, which involves agreements among competitors to restrict output or raise prices. In this chapter Whinston tries to unsettle the discourse a bit, suggesting that economists know less about price fixing than they think, and he tackles some significant and challenging questions. He gives a good review of the legal treatment of price fixing before addressing the empirical evidence of actual effects.

Chapter 3 examines horizontal mergers, in which competitors agree to combine their operations. This is a problematic area, as horizontal mergers may result in the removal of an effective competitor from the market. Merger analysis involves a balancing test, to determine whether there is a substantial reduction of competition and whether there are any efficiencies arising from the new arrangement. Horizontal mergers have seen some of the most significant advances over the last 10-15 years. In this chapter, Whinston summarizes the main issues in evaluating the horizontal merger phenomenon. He pays particular attention to these recent advances, while also discussing some important unresolved questions.

In Chapter 4 there is a shift of focus to vertical agreements. Firms in a vertical relationship are at different levels of the supply chain. The chapter begins with an introduction to the economics of exclusionary vertical contracts, another controversial area of antitrust. The resultant effect of exclusive contracts is [*576] to exclude rivals and thereby reducing competition. Whinston refers to it as one of the “purest forms of exclusionary vertical contracts.” This is an area of antitrust that has received very little systematic empirical attention; however, there has extensive theoretical work recently. Focusing specifically on exclusive contracts, the author attempts to explain the source of the controversy and to describe recent theoretical advances.

To sound a note of caution, Whinston presents only a limited discussion of the empirical evidence to support the theoretical framework on exclusive vertical agreements. The topic of exclusive vertical contracts is rather restricted in itself, and a full discussion should include aspects, such as vertical mergers and tying, predatory pricing, as well as intrabrand vertical restraints and collusive facilitating practices.

There has to be a perimeter in the focus one has when authoring a book, and Whinston draws his around these three very narrowly focused topics. This selective choice of concentration leaves out a number of important issues that a more extended treatment ideally would discuss. This is certainly not a text steeped in antitrust case law and legal considerations. As the title suggest, the discussion is limited to primarily an economic perspective and there is only a passing mention to the legal treatment of these practices. The volume would have struck an optimal balance if it did have a greater, more meaningful legal discussion to complement the empirical economics.

The book also has a limited geographic reach, as it focuses exclusively on the antitrust laws in the United States. However, the economic principles applied in the three areas that are covered extends well beyond geographical boundaries. Any antitrust jurisdiction would relate to the examples Whinston presents.

Whinston’s intended audience is primarily graduate students in economics and practicing economists (both academic and non-academic) with interest in antitrust policy. This book will also appeal to antitrust lawyers, academics and graduates who wish to pursue a more economic theoretical approach to the issues. The author says that he has tried to confine some mathematics to footnotes and to ensure that his central line of argument can be followed without necessarily understanding every equation that appears in the body of the text. This consideration is apparent and makes for effortless reading.

LECTURES ON ANTITRUST ECONOMICS is a well-written and researched book with contemporary examples that would appeal to any reader with an interest in the developments of antitrust economics. The book is an insightful contribution to the field.

© Copyright 2007 by the author, Kasturi Moodaliyar.

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GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR

by Jonathan Simon. Oxford: Oxford University Press, 2007. 344pp. Hardback. $29.95/£17.99. ISBN: 9780195181081.

Reviewed by Philip Kronebusch, Department of Political Science, St. John’s University/College of St. Benedict. Pkronebusch [at] csbsju.edu.

pp.572-574

At present, the dramatic increase, since the 1980s, of people in prison in the United States has been well established. Jonathan Simon, associate dean of Jurisprudence and Social Policy at the University of California, Berkeley, aims not to demonstrate this again, but to argue that the goals of government have shifted in the past four decades. We do not simply imprison more people. We now govern through crime in ways that have altered American democracy and reconstituted American citizens.

While governments generally seek to protect their subjects from random threats of violence, the phrase “governing through crime” means more than the outlawing of various threats. By this phrase, Simon means that crime has become a significant strategic issue across a large number of political campaigns; that a number of social problems are now re-conceptualized as criminal problems; and that “the technologies, discourses, and metaphors of crime and criminal justice” (p.4) are used by used by government to legitimate further interventions into matters that had not, up to that point, been thought to be criminal. American democracy has become “deformed” because the crime victim has become “a dominant model of the citizen as representative of the common person” (p.7). In Simon’s argument, the politicization of crime becomes the means by which the goals of FDR’s New Deal and of civil rights advocates are thwarted.

The first half of the book develops the author’s thesis by examining changes seen in the past few decades in the use of executive, legislative, and judicial power at both the state and federal levels in the United States. In the chapter on executive power, Simon traces the changing uses of the issue of crime that are made by state governors, US presidents, and US attorneys general.

The politicization of crime at the federal level occurs irrespective of political party. Nixon’s emphasis on crime is well-known, but Simon names Robert Kennedy as the official “who more than any other executive of the 1960s forged a path toward governing through crime” (p.49) in his role as head of a Department of Justice that emphasized crime as a problem that required federal intervention.

Paradoxically, the Supreme Court, in FURMAN v. GEORGIA, by declaring unconstitutional the then-current use of the death penalty, reinvigorated support for the death penalty among candidates [*573] for governor in many states. The FURMAN decision created the opportunity for governors and candidates for governor to make re-establishment of the death penalty a key issue. And the death penalty views of governors have, in turn, become factors in presidential elections. Simon notes that, since 1980, “no governor from a state that has outlawed executions was elected president” (p.69).

The book’s chapter on Congress focuses on how the Omnibus Crime Control and Safe Streets Act of 1968 represents a historical turning point for who is considered the idealized subject of legislation. In Simon’s account, the idealized subject of legislation in the early American Republic was the small landowner. The idealized subjects of the post-Civil War period were the newly-freed slaves and their former masters. The New Deal saw the arrival of the industrial worker as the subject of legislation, followed by attention being given to the vulnerable consumer in post-WW II legislation. In 1968, the vulnerable consumer is pushed aside and replaced by the crime victim. The Safe Streets Act became a “kind of quasi-constitutional law” that did not merely change the penalties for crime, but changed the issue of criminal justice as one requiring federal intervention (p.78).

In the four decades that executive and legislative branch officials have championed the crime victim, judges have lost prestige and prosecutors have gained, Simon argues, precisely because prosecutors can serve as vocal advocates for victims, while judges are hemmed in by their neutral courtroom role. Sentencing guidelines, at both federal and state levels, have shifted power away from judges and toward prosecutors, who determine the level of the criminal charge brought against a defendant. The increase of “three strikes” laws and the decreased use of parole have turned US prisons into “human toxic waste dumps” that have rejected the goal of rehabilitation (p.143).

Simon then turns to how “governing through crime” has permeated into three other social institutions: the family, schools, and the workplace. With respect to the family, Simon argues that the problem of domestic violence is framed almost exclusively as one that needs to be addressed through mandatory arrest policies for police, increased prosecutorial attention, and enhanced penalties. As a result, little attention is paid to issues like the lack of employment and childcare options, which might be what traps women suffering from domestic violence. Treating domestic violence as only a criminal matter creates blinders to broader issues.

The focus on crime has also changed how schools in the US operate. Simon argues that, although “serious crime is a substantial problem in a relatively small” number of schools (p.210), there has been widespread adoption of “zero tolerance” policies, metal detectors, and drug-testing that have distracted schools from educational goals.

Simon’s argument becomes strained in the chapter on the workplace. He notes the development of workplace sexual harassment case law in the period he is examining, but it remains unclear how this development is part of “governing [*574] through crime.” Because victims ordinarily pursue civil remedies in cases of sexual harassment, the cases are not criminal cases. This issue does not readily fit into Simon’s larger thesis.

There are also a few other mistakes in the book that ought to have been caught. The Safe Streets Act is listed as having been enacted on June 6, 1968 (p.90), and then the date changes to June 7th on following pages (pp.92-93). June 6th is the correct date for the vote in the House to accept the Senate version. The date is of some importance because Sen. Robert Kennedy was declared dead in the hospital following his shooting only hours earlier.

Overall, this is an impressive work. The book’s great strength is its integration of a wide-range of research in political science, law, and sociology, with journalistic accounts of current and recent politics. Topics from mass imprisonment, school “zero tolerance” policies, and the shortcomings of the Supreme Court in achieving the goals of BROWN v. BOARD OF EDUCATION have all been written about extensively. But I know of no other work that so effectively uncovers ways that these issues are connected to a changing relationship between citizens and their government.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

© Copyright 2007 by the author, Philip Kronebusch.

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HEALTHY CITIES: THE INTERSECTION OF URBAN PLANNING, LAW AND HEALTH

by James A. Kushner. Durham, NC: Carolina Academic Press, 2007. 240pp. Paperback. $30.00. ISBN: 9781594603358.

Reviewed by Michele Morrone, School of Health Sciences, Ohio University. Email: Morrone [at] ohio.edu.

pp.569-571

HEALTHY CITIES addresses an increasingly important topic in public health, namely how the built environment affects our health and the environment. Evidence of the importance of understanding the public health implications of the built environment is found in the fact that the US Centers for Disease Control and Prevention (CDC) has made this a priority. CDC has expressed great concern over obesity rates and is examining how neighborhood design is related to unhealthy lifestyles. As this book suggests, one of the greatest factors contributing to the public health impacts of the built environment is the automobile because of its relation to both personal health and environmental health.

James A. Kushner notes that his book “builds on a paper” that was presented at an international conference in 2006, and it reads like a paper presentation rather than a scholarly publication. There are 38 chapters in the 177 total text pages, which averages a little over 4 pages per chapter. Indeed some of the chapters consist of only one paragraph of text with a picture or two that are not referenced in the text. Kushner states that the book is a “call to arms to combat the increasingly high costs of transportation and the unacceptable costs of a deteriorating environment and declining health.”

Kushner frames the discussion in the first section, which is a very brief overview of some of the major issues related to the built environment and health. These issues include the environment, transportation, and housing. All of these problems are complex, and entire books can be written about the environmental health effects of poorly planned cities and neighborhoods. Here, unfortunately, the author provides a one-paragraph chapter that notes environmental impacts such as water and air quality associated with use of automobiles.

The second section is identified as “The American Planning Law System.” This section consists of seven short chapters that attempt to cover zoning, comprehensive planning, and project development review. The text is heavily footnoted, thus allowing the reader to seek additional information about these important issues. Considering the superficial discussion included in this book, access to such additional source material is very useful.

Kushner claims to present a “critique of American planning law” in his third section. He begins by arguing that there is too much local control over land use planning decisions. This local control, or “home rule,” neglects to consider the regional impacts of development which can include segregating socioeconomic [*570] classes. Furthermore, traditional low-density neighborhoods, such as those in American suburbs, lead to reliance on the automobile which, in turn, minimizes public transportation options and creates environmental and human health impacts – usually negative.

Kushner offers some solutions to low-density planning, such as financial disincentives in order to encourage developers to “densify” their neighborhoods. Included among these initiatives are additional costs when constructing residential neighborhoods without adequate access to public transportation and requirements to address housing in which school-age children can not safely walk to schools. The solutions also include impact fees that require the community to develop new service facilities, such as police and fire. The lists of solutions for addressing the density issues are among Kushner’s most provocative offerings and should make people think about the possibilities of using the built environment to promote health. The point is, that well-planned, high density neighborhoods are one of the major solutions to negative health effects resulting from the lack of physical activity that is encouraged by low density development.

Transportation and health is the focus on the fourth section. The transition into consideration of transportation is somewhat confusing, however. Every other major section starts with a single page that identifies a set of issues, except for this one (and the Conclusion section). So, while reading the critique of American planning law, the discussion abruptly switches to transportation and health without segue. While this is probably a minor production error, the inconsistency does not enhance clarity of the presentation.

In his discussion about transportation and health, Kushner presents statistics about car crashes and the mental strain of commuting, and he notes that the major environmental effect of transportation is air pollution. He also makes interesting point about parking, asserting that communities actually provide too much parking. He argues that planning for high parking capacities encourages people to drive rather than walk into commercial districts. He suggests some ideas to address the traffic problems, including increasing enforcement through technologies such as cameras and design elements such as speed bumps and better sidewalks.

Land use planning that segregates social classes has fostered a situation in which the urban poor are subject to substandard housing conditions, and the fifth section considers the connections between housing and health. The US government plays a role in creating inequities in housing due to the tax law that offers incentives to homeowners. Specifically, Kushner argues that richer people may purchase bigger houses because of the tax breaks associated with mortgage interest. On the other hand, the government has tried housing subsidies targeted to the poor, but these have not been effective.

Other housing and health issues include neighborhood security and homelessness, which are related to a certain extent. For example, Kushner [*571] explains that one cause of homelessness and neighborhood insecurity is deinstitutionalization. He argues that certain criminals, such as predators, “simply should not be permitted in the community” (p.128). For these people, there should be “civil commitment facilities” that can monitor them.

In the first chapter of the section, entitled “American Urban Design and Health,” Kushner states that the reason why neighborhoods are so poorly designed in the US is due to a “conspiracy of urban planners, politicians, and developers” (p.141). This conspiracy has created one of the most unhealthy generations in American history. Indeed, Kushner discusses some of the concerns raised by the CDC in this context, specifically those related to rising levels of obesity and diabetes.

The health impacts on children are also noted, as Kushner argues that children are less active because of the way communities are designed to accommodate the automobile. Providing access to recreational facilities is one approach to address some of the health effects that result from poor land use planning. In addition, renewed emphasis on physical education in schools and a comprehensive health education program are suggested as possible solutions.

Overall, Kushner offers a cursory review of some of the major topics related to urban planning and health. This approach could make HEALTHY CITIES a valuable asset to other scholars who are interested in exploring these important issues in more detail. However, it is difficult to identify the intended audience. Most public health professionals will probably find the volume frustrating in its brevity and sketchy coverage.

One of the strengths of the book is the extensive footnotes and the Table of Authorities at the end. If the reader has the patience to review the references, he or she will find a wealth of information both in print and on-line. The book could also serve as the basis for framing arguments in favor of land use planning that will enhance rather than detract from public health.

© Copyright 2007 by the author, Michele Morrone.

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THE SUPREME COURT OPINIONS OF CLARENCE THOMAS, 1991-2006: A CONSERVATIVE’S PERSPECTIVE

by Henry Mark Holzer. Jefferson, NC: McFarland & Company, Inc., Publishers, 2007. 232pp. Hardcover. $39.95. ISBN: 9780786430031.

Reviewed by Joyce A. Baugh, Department of Political Science, Central Michigan University. Email: joyce.baugh [at] cmich.edu.

pp.562-568

After serving sixteen terms as an Associate Justice of the United States Supreme Court, Clarence Thomas continues to attract extensive journalistic and scholarly attention. Numerous books and articles have been written about him, including studies focusing on his biography, the controversy over his nomination and confirmation, and his performance on the high court (Phelps and Winternitz 1993; Danforth 1994; Mayer and Abramson 1994; Flax 1998; Gerber 1999; Smith and Baugh 2000; Thomas 2001; Marcosson 2002; Foskett 2004). Two books published in 2007 add to this literature and attempt to comprehensively analyze Thomas “the man” and Thomas “the justice.” In SUPREME DISCOMFORT: THE DIVIDED SOUL OF CLARENCE THOMAS, Washington Post staff writers Kevin Merida and Michael A. Fletcher drew upon hundreds of interviews with the justice’s friends, colleagues, and relatives, along with other sources, to try to reconcile his life today with his impoverished beginnings in the Jim Crow south. Merida and Fletcher are less concerned with his Supreme Court record, but this is precisely the focus of Henry Mark Holzer’s THE SUPREME COURT OPINIONS OF CLARENCE THOMAS, 1991-2006: A CONSERVATIVE’S PERSPECTIVE.

In the introduction, Professor Holzer accuses members of the “professional and academic legal community” of engaging in a “professional character assassination” of Thomas’ record and pledges to set the record straight. Holzer’s goal is to present Thomas in his own words by examining all of his Supreme Court opinions, which he says “reveal him as a thoughtful conservative who understands the role of a Supreme Court justice, the methodology of proper constitutional and statutory adjudication, and the appropriate resolution of the many issues that have come to the Court during his tenure” (p.2). He describes Thomas as a “judicial conservative’s conservative,” whose jurisprudence is based on his commitment to “originalist interpretation of the Constitution and federal statues, to the Constitution’s structural pillars of federalism and separation of powers, and to judicial restraint” (p.2). Holzer then describes the concept of originalism, emphasizing former Attorney General Edwin Meese’s characterization of the term in speeches given at meetings of the American Bar Association and the Federalist Society in 1985. Holzer’s positive assessment of originalism as the most appropriate means of constitutional adjudication is contrasted with a highly critical discussion of the concept of a living Constitution as espoused by Justice William Brennan. According to Holzer, [*563] the living Constitution is a central tenet of liberal jurisprudence that is “an anti-democratic and intellectually dishonest way to interpret our Constitution and federal statutes” (p.8). He reserves particular scorn for Justice William O. Douglas’s opinion in GRISWOLD v. CONNECTICUT (1965), in which the Court established a constitutional right of privacy. Ironically, in criticizing the living Constitution approach to constitutional interpretation, Holzer’s language mimics that of some of Thomas’ critics, whom he castigates for their derogatory comments about the justice. He refers to Brennan as the living Constitution’s “high priest” and to Douglas’s GRISWOLD opinion as “pretentious mumbo-jumbo.” This sarcastic tone appears in later chapters as well.

Following the introduction, the book is divided into eight chapters, a very brief conclusion, extensive chapter notes, and two appendices. The first appendix contains a helpful alphabetical list of all of Thomas’s opinions and identifies them as majority, concurring or dissenting, while the other lists his opinions in statutory interpretation cases, with brief quotations from some. Chapters 1 and 2, which collectively amount to fourteen pages, could have been profitably combined into one. In Chapter 1, Holzer provides a brief synopsis of the background and creation of the Declaration of Independence, the Constitution, and the struggle for its ratification. He points to the opening words of the Declaration of Independence as having a strong influence on Thomas’s constitutional jurisprudence. Chapter 2 lists and describes the Bill of Rights, with particular emphasis on the Tenth Amendment. In this chapter, Holzer attacks the Court’s incorporation of various provisions of the Bill of Rights, insisting that framers of the original Constitution would have “scoffed” at the idea. He criticized the use of the Fourteenth Amendment’s Due Process Clause to extend various rights against state violations, declaring there to be no historical justification for it.

Chapters 3, 4, and 5 focus on what Holzer calls the three pillars of American constitutionalism as outlined by Edward S. Corwin: separation of powers, federalism, and judicial review. He begins Chapter 3 with James Madison’s characterization of separation of powers as “a first principle of free government” and favorably compares Thomas’ vision with that of Madison’s. The bulk of the chapter is devoted to praising Thomas’ opinions in HAMDI v. RUMSFELD (2004) and HAMDAN v. RUMSFELD (2006), concerning the power of the executive branch in detaining enemy combatants. He writes approvingly of Thomas’ willingness to accord the president extensive powers on matters of war and national security. Not only does Holzer praise Thomas “as the one who understands and seeks to preserve the necessary war powers of a president and the principle of separation of powers,” he also upbraids the majority justices in HAMDAN for “violat[ing] their oaths to faithfully . . . discharge and perform their duties . . . under the Constitution” (p.35).

In examining Thomas’s views on federalism, Holzer turns to his opinions [*564] in cases involving the Tenth Amendment, the Commerce Clause, and the Necessary and Proper Clause. Holzer asserts that the Tenth Amendment forbids the federal government from exercising powers not expressly granted in the Constitution, although this view was rejected by the Supreme Court early in our nation’s history. In adopting a broad interpretation of implied congressional powers, Chief Justice John Marshall wrote in MCCULLOCH v. MARYLAND (1819), “Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people.” In applauding Thomas’ interpretation of the Tenth Amendment expressed in his dissent in U.S. TERM LIMITS, INC. v. THORNTON (1995), Holzer argues that “few [opinions] better reveal his sophisticated federalism jurisprudence” (p.36). In THORNTON, the majority held that the Tenth Amendment did not provide states the power to alter the qualifications of members of the national legislature, and that “the people” referred to in the Amendment are the people of the nation and not the people of a state. Holzer highlights Thomas’ assertion that “the people of the several States are the only true source of power” (p.37). Similarly, he heralds Thomas’ view, initially revealed in his concurrence in UNITED STATES v. LOPEZ (1995), that original intent requires federal commerce power to be limited to activities concerned with “selling, buying, and bartering, as well as transporting for these purposes” (LOPEZ, p.1643) and that commerce does not include agriculture, manufacturing, or mining. Thomas rejected the “substantial effects” test used in Commerce Clause cases since 1937, referring to it as a “rootless and malleable standard” in two later cases, UNITED STATES v. MORRISON (2000) and GONZALES v. RAICH (2005). In RAICH, he was also critical of the majority’s reference to the Necessary and Proper Clause in upholding federal authority under the Controlled Substances Act to prevent a state from permitting the medical use of marijuana. Holzer cites Thomas’ opinions in these cases, along with a few others, as evidence that he “fully understands and respects the federalism pillar of American constitutionalism” (p.50).

Chapter 5 examines Thomas’ record on several aspects of judicial review, including judicial restraint, ripeness, standing to sue, political questions, statutory interpretation, and stare decisis. What is especially interesting here is Holzer’s assertion of “Thomas’s deeply held view of [the] wisdom and necessity [of judicial restraint]” (p.53) and his “adherence to the principle of stare decisis” (p.66) despite evidence to the contrary. In his comprehensive study published in 2003, Graber (p.86) found that “approximately two-thirds of the separate opinions [Thomas] wrote from 1996 to 2000 in constitutional cases challenged stare decisis.” At the end of the chapter, Holzer compares Thomas with Scalia on stare decisis and originalism, concluding that while both [*565] are originalists, Thomas’ “jurisprudence follows the path of the Founders” (p.68) in cases involving the Bill of Rights and Fourteenth Amendment.

Chapters 6, 7, and 8 focus on the First Amendment, the Fourth-Fifth-Sixth-Eighth Amendments, and the Fourteenth Amendment, respectively. In examining Thomas’ jurisprudence under the First Amendment, Holzer focuses primarily on the Establishment Clause and freedom of speech, specifically political and commercial speech. After summarizing Thomas’ decision to join the majority in upholding Ohio’s school voucher program in ZELMAN v. SIMMONS-HARRIS (2002), he endorses the justice’s suggestion that the Establishment Clause never should have been incorporated to apply to states. Moreover, he cites Thomas’ concurrence in VAN ORDEN v. PERRY (2005) calling for establishing coercion as the appropriate standard for deciding Establishment cases, a change that would result in the overruling of long-standing precedents. His opinions excoriating campaign finance regulations as inappropriately limiting core political speech are cited as evidence that “the First Amendment has never had a stronger champion than Justice Thomas” (p.77). Similarly, Thomas’ call for commercial speech to be accorded the same constitutional protection as political speech is applauded. A significant part of Chapter 6 is devoted to Thomas’ opinion in a 2003 Virginia case involving cross burning, in which he emphasized that cross burning is conduct, not expression, and therefore should not have been analyzed under the First Amendment at all.

In discussing Thomas’ jurisprudence on aspects of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, Holzer characterizes his views as being guided by originalism and historical analysis. For example, the author highlights Thomas’ reliance on principles from English common law in his majority opinion for a unanimous decision holding that the Fourth Amendment normally requires police officers to “knock and announce” their presence before entering a home to execute a search warrant (WILSON v. ARKANSAS, 1995). Interestingly, Graber (2003, p.76) cites a number of cases to illustrate that “when Justice Thomas uses originalist rhetoric in a majority opinion, he usually reaches more liberal conclusions,” but “he rarely relies on originalist rhetoric in majority or plurality opinions reaching conventionally conservative results.” Holzer gives considerable attention to Thomas’ dissent in the 2006 KELO v. CITY OF NEW LONDON case in which a five-member majority upheld a local development plan as consistent with the public use requirement in the Takings Clause of the Fifth Amendment. The dissent, Holzer argues, “is among the finest Thomas produced during his fifteen terms on the Court” (p.104) and represents “a thorough analysis of the Public Use clause – definitionally, historically, and logically – that demonstrates convincingly why the Court’s KELO ruling was unsupportable, as were the precedents it relied on in reaching its conclusion” (p.105). [*566]

One of Thomas’ most controversial dissents came during his first term, when he wrote in HUDSON v. MCMILLIAN (1992) that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not apply to prison conditions.

Today’s expansion of the Cruel and Unusual Punishment Clause beyond all bounds of history and precedent is, I suspect, yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society. Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.

In endorsing Thomas’ approach, Holzer argues that there is no historical evidence that the Framers included harsh prison conditions in their concerns about cruel and unusual punishments. As has been noted, however, “the concept of the prison as an institution for serving significant criminal sentences was essentially born in the nineteenth century – after the Eighth Amendment had been drafted and ratified” (Smith & Baugh, p. 91). Given that the Bill of Rights was written in 1789 and ratified in 1791, it is curious that Holzer points to the 1792 Delaware constitution, which contained language similar to the Eighth Amendment, but also noted that jails were to be constructed with proper regard for prisoners’ health, as “an example [the Founders] could have emulated if they were concerned with harsh prison conditions” (p.118).

In presenting Thomas’ jurisprudence on the Equal Protection Clause of the Fourteenth Amendment, Holzer quotes extensively from his opinions in major cases concerning school desegregation (MISSOURI v. JENKINS, 1995) and affirmative action (ADARAND CONSTRUCTORS, INC. v. PENA, 1995 and GRUTTER v. BOLLINGER, 2005). He endorses Thomas’ statements accusing federal judges of assuming that predominantly black institutions are inherently inferior (JENKINS) and characterizing affirmative action programs as manifestations of racial paternalism (ADARAND and GRUTTER). Moreover, Holzer contends that Thomas’ originalist approach supports his view that the Constitution and, by extension the Equal Protection Clause, are color-blind. Thomas criticizes the citation of social science evidence in Chief Justice Warren’s BROWN v. BOARD OF EDUCATION (1954) opinion, but he nevertheless defends that decision as compatible with originalism. Graber (2003, p.89) notes, however, that prominent scholars have not been able to reconcile BROWN with originalism, as they have concluded that “the persons responsible for the Fourteenth Amendment did not specifically intend to ban segregated schools.”

In his conclusion, Holzer reiterates his thesis that Thomas has shown a commitment to originalism, separation of powers, federalism, and the appropriate scope of judicial review in interpreting the Constitution and federal statutes, quoting again from cases discussed in previous chapters. He says that Thomas’ opinions “demonstrate a [*567] constitutional originalism, rooted in a deep, near-worshipful respect for the founding documents of this nation, and for those who gave them life” (p.151). But Graber (2003, pp.87-88) reaches a different conclusion after his own exhaustive analysis of Thomas’ majority/plurality, concurring, and dissenting opinions.

Originalism as practiced by Justice Thomas displays no virtues claimed for that approach to judicial decision-making. He is not particularly deferential to elected officials, and his legal conclusions do not differ substantially from those that might be reached by a conservative aspirationalist with a libertarian strain. . . .Justice Thomas the originalist in theory fails to reduce judicial discretion by refusing to be a consistent originalist in practice. History guides only some of his judicial opinions.

It is doubtful that this book will change many perceptions of Clarence Thomas’ tenure on the Supreme Court. Those who believe that his record has been unfairly maligned will take heart in Holzer’s writings, while Thomas’ critics likely will continue their criticism. Those who have been neutral about the justice are unlikely to be swayed one way or another. This is, however, a provocative book that will garner attention as scholars and other Court observers continue their search for “the real Clarence Thomas.”

REFERENCES:
Danforth, John C. 1994. RESURRECTION: THE CONFIRMATION OF CLARENCE THOMAS. New York: Viking.

Flax, Jane. 1998. THE AMERICAN DREAM IN BLACK AND WHITE: THE CLARENCE THOMAS HEARINGS. Ithaca, NY: Cornell University Press.

Foskett, Ken. 2004. JUDGING THOMAS: THE LIFE AND TIMES OF CLARENCE THOMAS. New York: William Morrow/HarperCollins.

Gerber, Scott D. 1999. FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS. New York: New York University Press.

Graber, Mark A. “Clarence Thomas and the Perils of Amateur History.” 2003. REHNQUIST JUSTICE: UNDERSTANDING THE COURT DYNAMIC. edited by Earl M. Maltz. Lawrence, Kansas: University Press of Kansas.

Marcosson, Samuel. 2002. ORIGINAL SIN: CLARENCE THOMAS AND THE FAILURE OF THE CONSTITUTIONAL CONSERVATIVES. New York: New York University Press.

Mayer, Jane and Jill Abramson. 1994. STRANGE JUSTICE: THE SELLING OF CLARENCE THOMAS. Boston: Houghton Mifflin.

Merida, Kevin and Michael A. Fletcher. 2007. SUPREME DISCOMFORT: THE DIVIDED SOUL OF CLARENCE THOMAS. New York: Doubleday. [*568]

Phelps, Timothy M. and Helen Winternitz. 1993. CAPITOL GAMES: THE INSIDE STORY OF CLARENCE THOMAS, ANITA HILL, AND A SUPREME COURT NOMINATION. New York: Harper Perennial.

Smith, Christopher E. and Joyce A. Baugh. 2000. THE REAL CLARENCE THOMAS: CONFIRMATION VERACITY MEETS PERFORMANCE REALITY. New York: Peter Lang Publishing, Inc.

Thomas, Andrew Peyton. 2001. CLARENCE THOMAS: A BIOGRAPHY. San Francisco: Encounter Books.

CASE REFERENCES:
ADARAND CONSTRUCTORS, INC. v. PENA, 515 U.S. 200 (1995).

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

GONZALES v. RAICH, 545 U.S. 1 (2005).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2005).

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

HAMDAN v. RUMSFELD, 126 S.Ct. 2749 (2006).

HUDSON v. MCMILLIAN, 503 U.S. 1 (1992).

KELO v. CITY OF NEW LONDON, 546 U.S. 807 (2005).

MCCULLOCH v. MARYLAND, 17 U.S. 316 (1819).

MISSOURI v. JENKINS, 515 U.S. 70 (1995).

UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).

UNITED STATES v. MORRISON, 529 U.S. 598 (2000).

U.S. TERM LIMITS, INC. v. THORNTON, 514 U.S. 779 (1995).

VAN ORDEN v. PERRY, 545 U.S. 677 (2005).

WILSON v. ARKANSAS, 514 U.S. 927 (1995).

ZELMAN v. SIMMONS-HARRIS, 536 U.S. 639 (2002).

© Copyright 2007 by the author, Joyce A. Baugh.

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July 15, 2007

JUSTICE AS INTEGRITY: TOLERANCE AND THE MORAL MOMENTUM OF LAW

by David Fagelson. Albany, NY: State University of New York Press, 2006. 216pp. Hardcover. $60.00. ISBN: 9780791467633. Paperback. $21.95. ISBN: 9780791467640.

Reviewed by Michael Paris, Department of Political Science, Economics, and Philosophy, The College of Staten Island (CUNY). Email: michaelpari[at]gmail.com.

pp.555-561

In JUSTICE AS INTEGRITY, David Fagelson takes up foundational questions of legal theory and political morality: What is law? What is the source of legal authority? What are rights? What fundamental rights do we have in the United States, and why? Fagelson’s answers are idiosyncratic and wonderfully challenging.

In what can be fairly described as an extended conversation with Ronald Dworkin, Fagelson seeks “to offer an alternative way to think about the moral content of legal interpretation and the role of morality in understanding our legal rights,” and to “locate and describe the moral foundations of law in America” (p.2). Fagelson, a self-described moral realist, admires Dworkin. He accepts Dworkin’s view of the task of legal theory as well as his conception of “law as integrity.” He shares what he calls Dworkin’s “dream” that judges in the United States never create law, but always “discover it, if not in the written law, then in society’s latent principles and values that help form the fundamental law” (p.36) (Actually, Dworkin calls the distinction between finding and inventing law a “false dichotomy” (1986, 225-228), but perhaps Fagelson’s characterization is apt nevertheless). Dworkin sets the right agenda by tying law and rights to more basic and abstract principles of justice and political morality (pp.50, 87). Where Dworkin goes wrong, Fagelson argues, is in his refusal to apply his notion of “constructive interpretation” to “justice” as well as to “law”—hence Fagelson’s title, “Justice As Integrity.”

In LAW’S EMPIRE (1986), Dworkin argued that law was best viewed as a social practice with a meaning or point. Understanding any social practice requires an interpretive attitude, which for Dworkin necessarily requires some perspective internal to the practice. He began with the claim that most competing conceptions of law could accept the proposition that the meaning or point of law is to justify government coercion in accordance with past political decisions about when such force is justified (p.38, quoting Dworkin 1986, 93). Interpreters should make sense of law by providing abstract accounts that both “fit” (describe or cover) past legal practices and decisions, and “justify” them through the derivation (formulation?) of moral principles that make the best, most attractive sense of those practices and decisions. Thus, moral principles are part of our law. While these principles will be controversial, Dworkin claims that the fit requirement means that the justifying principles cannot be just anything one wants. The political morality that is part of our law on [*556] Dworkin’s account is what Fagelson calls “institutional morality”—moral principles tied to or somehow sifted out of the past practices and values of state officials. Fagelson’s problem with Dworkin is that, in Dworkin’s view, moral principles have no necessary legal status, unless they just happen to have been embraced by officials in the past.

Fagelson notes that Dworkin sees “justice” as every bit as an interpretive concept as is “law.” However, Dworkin rejects Fagelson’s notion that principles of justice could be found in or sifted out of society, specified, and given status as law. For Dworkin, conceptions of justice are even more open to contest and variation than are conceptions of law. Justice has a “quasi-transcendental status;” it must be “our critic and not our mirror” (pp.59, 81).

For Fagelson, by contrast, moral truth is real and open to us. If we find it, it will yield answers to moral questions that are properly regarded as legally binding. Fagelson states that his view is not properly classed as a natural law argument because for him the source of legal authority is not, say, God or Reason, but rather the constitutive “intersubjective understandings in the community” (p.2). These intersubjective understandings are not a matter of choosing selves reaching consensus, or of public reason. Rather, they are constitutive in much the same way a grammar constitutes meaning in a language. They belong to no individual, but represent the “deeper meanings” immanent in “social forms” that “help constitute a person’s understanding of the world, and hence make shared conventions possible” (pp.6-7). As it is for “law as integrity,” so too it must be for “justice as integrity.”

Fagelson’s boldest and most challenging move is to place some form of tolerance – some basic way of perceiving, putting up with, and accommodating differences – at the center of the moral foundation of any legal system, properly so called (on this view, Nazi and Soviet systems were not legal systems). Relying on Dworkin, Fagelson regards law and the rule of law as the morally justified imposition of force. He wants to convince us that there is a necessary connection between particular forms of tolerance in a given community and this justified imposition of force (that is, law, properly so called). In his view, tolerance is a constitutive element of reason itself, and reason is required for the apprehension and application of rules. At the most abstract level, different forms of tolerance provide meaning that guides understandings of rules because the form of tolerance tells us which differences are relevant and which irrelevant to a rule’s (or to “the law’s) point or purpose. Different political moralities and social practices yield different basic kinds of tolerance, but whatever these are, they must be interpreted and applied if law is to have its foundation in the constitutive morality of a community and thereby achieve the status of justified coercion.

When Fagelson applies this abstract model to constitutional jurisprudence in the United States, he finds that our deeper constitutive meanings yield a “liberal perfectionist morality” which makes the sovereign virtue of law not Dworkinian equality, but rather liberal [*557] tolerance and individual autonomy. Liberal tolerance is sovereign, Fagelson says, because our community regards “personal autonomy as the key element of human excellence” (p.2). It follows that the liberal state cannot be neutral between competing conceptions of the good life, and that it should not try to be. The state cannot be indifferent to the question of which institutional arrangements foster or encourage human excellence. For example, government can and should “take a more aggressive position regarding [its] power to inculcate the value of tolerance through public education as part of the requirement of citizenship, even while protecting the right of many groups to be intolerant” (pp.8-9). As for judges, they can and should “interpret justice with integrity the same way they approach legal integrity [according to Dworkin, at least], although justice includes sources beyond the law itself”—it includes not only precedents and statutes, but also “wider social meanings that animate what [judges] should be doing with legal integrity in the first place” (p.7).

Liberal tolerance did not always reign, of course, but the intolerance of many ways of life in American law has in fact “generally receded as beleaguered groups were seen to possess an equal capacity for reasoned discourse,” and as more forms of behavior (e.g. those having to do with sexually explicit materials or sexual practices) have come to be associated with autonomous choice, as opposed to animal instincts or mental illness. These developments, moreover, are internal to law, morality and reason. Law inherently has this sort of “moral momentum.” It is therefore not surprising that, over time, law in America has converged with true morality (pp.4-5, 114-15).

Finally, Fagelson insists several times that he does not want us to read this book as a normative proposal, but as a valid interpretation of how “our community actually justifies law” (p.7). His view provides the lens through which we can apprehend what is really there—that is, “the outlines of the norms American judges use to justify force” (p.117).

A quick summary of a book always risks caricature, but this is especially so when its argument is a philosophical one proceeding through a series of close conceptual distinctions and maneuvers. To this point, I have provided only a barebones overview of Fagelson’s project and claims.

In his first three substantive chapters (Chapters 2-4), Fagelson explicates his zones of agreement and disagreement with Dworkin. In Chapter 2, “the Wages of Skepticism,” he reviews and finds wanting “three ideal types of adjudication”: “concrete originalism” (Bork and Scalia), “critical moralism” (Critical Legal Studies), and “interpretive rights theorists” (Dworkin). Although Dworkin protests loudly that he is a moral realist, Fagelson argues that he is not really that. Indeed, Dworkin’s view is really a subtle form of moral skepticism, for his liberal political morality is so “thin” as to be “devoid of moral content” (p.60). In addition, Dworkin’s master principle of equality is defective, mainly because it is not grounded in any substantive vision [*558] of human excellence, but for many other reasons as well. In Chapter 3, “Integrity and Obligation,” Fagelson seeks to leverage an all out attack on Dworkin’s political morality by going back to Dworkin’s essays on civil disobedience and the obligation to obey the law. Fagelson hits Dworkin at a weak point here, and he hits him well. His larger conclusion is more controversial: If Dworkin has no coherent theory about the force of law (the moral obligation to obey), it must be because he no valid theory about the grounds of law (the source of authority, or why law is law). Dworkin had maintained that the grounds and force of law are somewhat different aspects of it that can call for different kinds of inquiries and considerations (1986, 108-113). Fagelson disagrees. In Chapter 4, “Justice As Integrity,” Fagelson offers a philosophical account of his notion of “social forms” and a defense of sorts for moral realism. He also continues his attack on Dworkin’s limitation of the sources of legal authority to “institutional morality,” as opposed to “justice” writ large. This is essentially an argument about metaphysics and its connection to morality and law.

In his last two chapters (Chapters 5 and 6), Fagelson turns to the affirmative claims he wants to make coming out of the other side of his critique of Dworkin. In Chapter 6, which perhaps should have come before Chapter 5, he offers a general argument for his view of the mutually constitutive nature of tolerance, reason, and law. In Chapter 5, “Liberal Perfectionism and Tolerance in American Law,” Fagelson argues that a perfectionist liberal view makes the most sense of American constitutional law, and that “judges use that abstract political morality as the interpretive source of law” (p.113). This case is made through readings of a handful of Supreme Court cases in the areas of freedom of speech and privacy. Fagelson wants to convince us that this commitment to perfectionist liberalism can reconcile seemingly competing or contradictory results in the cases on the continuum from moral paternalism to individual autonomy. In their trajectories, these cases also show us that American law has made great moral progress toward the protection of liberal tolerance.

Fagelson has given students of philosophy and jurisprudence a wealth of arguments and insight to consider. Anyone interested in jurisprudence, and especially in Dworkin’s body of work, can benefit from engagement with JUSTICE AS INTEGRITY. Nevertheless, and perhaps inevitably, given Fagelson’s commitments, problems and questions abound.

One set of issue involves whether Fagelson has Dworkin right. For example, is Fagelson correct when he says that Dworkin’s liberal political morality is so thin as to be “devoid of substance,” and that Dworkin has no grounding for his notion of rights apart from contingent social facts about institutional histories and moralities? Fagelson twice invokes H.L.A. Hart’s 1979 observation that Dworkin’s equality principle “would not be violated by a dictator that abrogated everyone’s freedom equally” (pp.51, 73, Fagelson paraphrasing Hart). I wondered whether [*559] Fagelson was taking Dworkin’s language seriously enough here with respect to the distinction Dworkin makes between being treated “as an equal” and being treated “equally.” Whether his moral sense of rights is properly grounded or not, what he means by “as equals” is reasonably clear, and it does not include the denial (in any regime, I think) of basic liberties and rights fundamental to individual dignity and moral autonomy.

Fagelson is troubled by Dworkin’s moral individualism and his claim that the state can be neutral between competing conceptions of the good. But even if we grant Fagelson’s many points against the possibility of such neutrality in many instances, it does not necessarily follow that the moral aspiration is meaningless or ill-conceived. If we take out the claim to the realization of state neutrality, what we have left is an aspiration that counsels a reluctance to judge, if at all possible. The state’s hand should tremble before it obliterates social worlds and institutions promoting illiberal identities and commitments. Fagelson acknowledges that “perfectionism” makes many people uneasy. Still, I must say that his free and approving use of words like “inculcate” and even “indoctrinate” made me uneasy (pp.8, 118-119).

Another line of criticism might invoke Fagelson to challenge Fagelson, given the parallel structure he sets up between Dworkin’s “law as integrity” and his own “justice as integrity.” For example, against “law as integrity,” Fagelson rightly claims that we cannot avoid the suspicion that, in Dworkin’s framework, “justification” will be likely to swallow and determine “fit” (pp.46-48). The interpreter’s pre-existing moral and political commitments will structure perceptions about past practices, and the institutional record will not do much constraining. From here, Fagelson’s conclusion is that “justice” is involved anyway, so we might as well go right ahead and embrace it by applying the interpretive attitude to it. But one could just as easily conclude that if justification tends to determine fit for Dworkin’s law as integrity, then this will be even more of a problem for Fagelson’s justice as integrity. Fagelson’s chapter on legal doctrine might be taken to confirm the suspicion. I can not make out a case here, but upon reading this chapter – the only chapter in the book that descends from philosophy and jurisprudence to legal doctrines – I had the strong sense that Fagelson found in American law pretty much what he set out to find. He cautions that his discussions of some Supreme Court opinions are simply “illustrative” of what an application of his framework would look like (p.114). However, these discussions cannot possibly support his more sweeping claim that he has found the moral foundations of American law, never mind his rosy picture of steady moral progress toward liberal tolerance.

Overall, I was left wanting more discussion and argument from Fagelson about the nexus between what struck me as two kinds of arguments. One argument was mainly a highly abstract conceptual one about the necessary connections among tolerance, reason, and law, as Fagelson understands these. That argument can stand or fall on its [*560] own, without respect to its application to any given society. The second argument should be an empirical one (the equivalent of “fit”?), at least in some sense, about the content and character of an alleged, distinctive form of tolerance in a given society, how we might know it when we see it, and how, exactly, it is thought to be connected to that society’s legal practices justifying the use of force. Aside from the abstract conceptual argument about tolerance, reason, and law, the only thing Fagelson offers as evidence for his claims about tolerance in American society and American law is his interpretive reading of a few Supreme Court opinions.

Fagelson will not convince many people working in political science and sociolegal studies – that is, people working in the shadow of legal realist approaches to law and politics – and he knows this (p.9). One point from the “outside” is worth mentioning here, however. It is one that has been made several times against Dworkin, and it follows that if it is valid it applies against Fagelson as well. The point is that realistic understandings of the relevant phenomena are ruled out as potentially viable or true, and ruled out in advance, simply in virtue of the way the theorists defines the objectives and tasks of moral and legal theory. As Brian Z. Tamanaha has noted, Dworkin’s project is from the outset a normative one that is best called “positive rationalization” (1997, 183). Moral evaluation and argument, by contrast, might benefit greatly from paying attention to knowledge produced through careful empirical investigations, whether these embrace social scientific positivism or interpretivism, designed to uncover say, intersubjective knowledge structures in a given community, or the institutional settings for and phenomenology of the practice of judging, or the determinants of judicial decision-making. For example, in his critiques of the jurisprudential writings of Bork and Scalia, respectively, Fagelson seems genuinely baffled by their theoretical incoherence. But most political scientists reading Fagelson’s account will immediately see that these jurisprudential theories do make perfect sense, but only if we see them as designed to reach particular political results. In any event, nothing from social science disciplines about law and culture in society or courts as institutions ever intrudes upon Fagelson’s argument.

Finally, there is “is” and there is “ought.” I found myself bristling when I thought that Fagelson should have been saying “ought” when he was in fact saying “is” (Cf: Shklar 1964). When he presented his claims as claims about “how judges actually decided cases,” I could not bring myself to take him seriously. Perhaps the felt need to say “is” is a necessary entailment of Fagelson’s deep commitment to moral realism. Fagelson is no fool. He states repeatedly that we live in a morally pluralistic society in which people disagree about fundamental matters of justice and morality. Justice is interpretive, and its pursuit requires deep, pervasive, and ongoing interpretive disputes. What this position amounts to for those of us who are not moral realists (the agnostics and cynics among us) is the claim that something very important turns on whether we [*561] speak the language of moral realism—on whether we bow down and say that moral truths exist, that they “are as real as anything is,” as Fagelson puts it. But what that “something” is remains elusive, at least to me. Whether one embraces Fagelson’s moral realism or not, his book is both admirable and edifying.

REFERENCES:
Dworkin, Ronald. 1986. LAW’S EMPIRE. Cambridge, MA: The Belknap Press of Harvard University Press.

Shklar, Judith N. 1964. LEGALISM: LAW, MORALS, AND POLITICAL TRIALS. Cambridge, MA: Harvard University Press.

Tamanaha, Brian Z. 1997. REALISTIC SOCIO-LEGAL THEORY: PRAGMATISM AND A SOCIAL THEORY OF LAW. Oxford, UK: Oxford University Press.

© Copyright 2007 by the author, Michael Paris.

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July 7, 2007

SADDAM ON TRIAL: UNDERSTANDING AND DEBATING THE IRAQI HIGH TRIBUNAL

by Michael P. Scharf and Gregory S. McNeal. Durham, North Carolina: Carolina Academic Press, 2006. 438pp. Paper. $29.95. ISBN: 9781594603044.

Reviewed by Marvin Zalman, Department of Criminal Justice, Wayne State University. Email: aa1887 [at] wayne.edu.

pp.550-554

The practice of international tribunals to try war crimes and crimes against humanity languished for decades after the post-World War II tribunals completed their work. Tragically, large scale atrocities continued to occur. In reaction, the international community has recently established international or internationalized domestic courts to try violators in, for example, the former Yugoslavia, Rwanda, and Sierra Leone. These tribunals, however imperfectly, have been significant markers in advancing the rule of law and have been accompanied by significant scholarship.

Although SADDAM ON TRIAL, by Michael P. Scharf and Gregory S. McNeal, discusses a plethora of points pertaining to the trial of Saddam Hussein, the convicted and executed ex-dictator of Iraq, its larger question is whether the trial has contributed to the rule of law project; or, in grandiose terms, “Is the Saddam Hussein Trial One of the Most Important Court Cases of All Times?” (Michael Scharf: qualified yes; Leila Sadat: not really, pp.229-232). The book examines the creation of the Iraqi High Tribunal (IHT) and its first trial: that of Saddam and his co-defendants for killing 248 Iraqi civilians following a failed assassination attempt in 1982 in the Shiite town of Dujail. The IHT decided not to conduct a single comprehensive Nuremberg-like trial but “a dozen mini-trials” covering various atrocities committed by Saddam and his regime, like the chemical-gas poisoning of thousands of Kurds in Halabja in 1988 (pp.58-59). The second IHT trial, the so-called Anfal trial, recently concluded with a guilty verdict and death sentence against Saddam’s cousin, Ali Hassan al-Majid, known as Chemical Ali. This case detailed a campaign of attack against hundreds of Iraqi Kurdish villages accompanied by torture and starvation that killed as many as 180,000 civilians (Burns 2007).

SADDAM ON TRIAL, an interesting, unusual, and highly specialized, book is an emblematic postmodern product, as it has been culled from entries of the Grotian Moment blog devoted to Saddam’s trial that is maintained by Scharf and McNeal: (available at http://www.law.case.edu/saddamtrial/index.asp ). In the preface they tell us that the blog logged more than 100,000 visits (readers of the book are thankfully spared responses to the blog essays). The present book could also be subtitled “a sourcebook on the trial of Saddam Hussein.” Given its provenance and unusual structure (a third of the book consists of appendices), it helps to describe the book’s contents. It consists mainly of 85 signed articles of varying length (from one to thirty-three pages) by the authors and 15 experts. It is divided into four parts: Part I. Background (4 essays); Part II. The [*551] Iraqi High Tribunal; Part III. Expert Analysis of Discrete Issues, Section 1. Establishment and Approach of the Tribunal (16 essays); Section 2. Conduct and Administration of the Trial (31 essays); Section 3. Issues of Proof (18 essays); Section 4. Issues of Impact (4 essays); Section 5. The Next Trials (5 essays); Part IV. Looking Forward: The Trial in a Broader Context (7 essays). Part II includes a useful time line of the Dujail trial and the charges against Saddam. The sprawling and episodic nature of the book makes its helpful index a blessed inclusion.

The Appendices (136 pages) include a glossary of key legal terms, the indictments against Saddam’s seven co-defendants, an English translation of the 2005 Iraqi High Tribunal (IHT) statute (typographical errors evidence haste in assembling the book), an English translation of the IHT Rules of Procedure and Evidence, a Summary of 1971 Iraqi Criminal Procedure Law, and biographies of the authors and the 15 expert contributors.

Given that the essays were written in media res by experts with impeccable credentials, they will be valuable to a future author who writes a comprehensive book on Saddam’s trial or on the entire work of the IHT, which continues. Many of the contributors helped to train IHT judges and prosecutors. The episodic format of the book however, which includes a number of mini debates (e.g., William Schabas, Michael Newton and Michael Scharf spar over whether Saddam should be exposed to the death penalty (pp.102-107), a now moot point) is too extended and perhaps too exasperating a form for the nonspecialist reader. Six essays on “Who Won the Battle of Wills in the December Proceedings . . .?” (pp.126-133), for example, really is inside baseball. Still, for readers who wish to closely follow all the essays, they should have included their dates of appearance as many were written in reaction to specific trial and external events.

Essays by M. Cherif Bassiouni, the dean of international criminal law scholarship, at the beginning and end of the book (pp.9-15, 245-252) shed light on questions about the IHT’s structure, legal context, and legitimacy. The options for a trial of a vanquished dictator and his bloody regime include an international tribunal established under Security Council auspices, a mixed international-national tribunal, and using an Iraqi court with some international support. Another approach, favored by Bassiouni, is the truth and reconciliation commission model. (In this regard, Mark Drumble asked “to what extent does the artificial reductionism of the criminal trial shield much deeper inquiries?” p.213). Purely domestic tribunals have also been used – e.g., Adolf Eichmann tried by Israel; Klaus Barbie tried by France (see Leila Sadat, p.231). Bassiouni preferred using Iraqi courts as a means of advancing international criminal justice and the rule of law. Despite his praise for the courage and commitment of the Iraqi prosecutors and investigating and trial judges, Bassiouni felt that the shortcomings of the proceedings and the heavy and politicized influence of the United States in forming the IHT failed to advance institutionalized justice in Iraq. [*552]

The book examines many topics related to the creation of the IHT and the conduct of Saddam’s trial. As a non-specialist in international law, I will address only one issue, but one that ought to be of interest to all law and courts scholars. I come to this review having taught judicial process and court administration to political science and criminal justice students, honors seminars on political trials, and with a disciplinary grounding in substantive criminal law, constitutional criminal procedure, and criminal justice policy. Potential readers with similar backgrounds would find much food for thought in the essays.

For law and courts scholars, the trial raises significant issues about the meaning of criminal law in a time of civil war and the virtual fragmentation of a nation-state. Criminal law is a central pillar of state authority and has been bound up with state formation in western nations. Is criminal law meaningful or even possible without a state context, or does it shade into lynch law, partisan justice, or sheer terror? Most of the contributors’ essays properly delve into various trial details in order to determine whether procedures and events met standards of due process and whether they can provide useful precedents to future hybrid internationalized domestic tribunals. But looming over these detailed explorations is the big question of what this means as Iraq experiences a sectional and confessional civil war set off by America’s ill-conceived and disastrously conducted invasion, occupation, and continued presence in that country.

These issues were raised in a few of the essays, but not worked out in any systematic way. Mark Drumble notes that

The choice to prosecute Saddam and to see his trial as promoting justice and establishing a historical record was made at a time of ex ante optimism about the ability to maintain security in Iraq. Although peace and justice aren’t viewed as incommensurable by international lawyers such as ourselves, what might the purpose be of proceeding with the Saddam trial amid such great instability (and it is unclear to me whether relocating internationally would help)? (p.210)

David Crane agrees in a lesson learned: “peace first—then justice.” He makes the obvious point that the “significance and public impact of the trial is lessened as the society in which the victims and their families struggle daily for a sense of normalcy” (p.239).

David Scheffer argues, to the contrary, that as civil war “consumes Iraq” the trial ought to be moved to a secure, international location, noting that this would require “a far more energetic diplomatic effort by the United States and Iraqi authorities,” (pp.215-217) a most farfetched hope at this point. Michael Scharf (pp.210-212) and Michael Newton (p.243) put this worry aside by positing that the real value will be in the long term future when an idealized western-style rule of law sensibility will grip the hearts and minds of Iraqi elites (assuming there is an Iraq as we know it in the long term).

Without diminishing the noble aspirations that underlie the prosecution [*553] of those responsible for major atrocities, we need to hold open the possibility of a failed trial. Bassiouni alludes to such negative precedents as the miscarriage of justice in the trial and execution of General Yamashita (1945-1946) and the failed post-World War I Leipzig trials (1923). Perhaps more relevant is the point that, without a culture that remembers trials as significant cultural milestones, they mean nothing. The Tokyo War Crimes Trials (International Military Tribunal for the Far East, 1945-1948) have apparently vanished from consciousness in East Asia and plays no part in the lingering debates from that era (Brackman 1987).

The work of the IHT may indeed provide precedents for future international tribunals, as the Milosevic debacle convinced the IHT to embark on a series of trials. The community of international law scholars and jurists will move on, but there is at present raging violence in Iraq and the promise of worse when the American military effort bows to political and logistic realities and leaves the field. The de facto cantonization of the Kurds is occurring, the influence of Iran is growing, and the possible emergence of an Islamist state cannot be discounted. In light of all this, what will the trial mean? It may bring some satisfaction that justice has been achieved to individuals who can focus on such things, assuming that their lives have been untouched by the wave of killings (perhaps 70,000 by recent counts) that American troops cannot control or by the close to 2 million who have fled the country. The irreconcilable factions are more likely to interpret the trials as partisans than as patriots of a unified nation. Indeed, the second IHT (Anfal) trial has concluded, and the verdict “came at a time when Iraqi public interest in the trials has flagged. Only a handful of Iraqi reporters attended the session . . . and none form the country’s Kurdish newspapers. There was only a handful of Western reporters, too” (Burns 2007).

A perplexing aspect of the book it its closure before the verdicts and sentences in the Dujail trial were announced (on Dec. 5, 2006) and before Saddam’s death sentence was executed (on December 30, 2006). The book’s time line ends with the inaccurate statement that the judges announced their verdict on October 16, 2006. The not-unexpected verdict and sentence but the unexpectedly swift execution, and the mixed and politicized reactions to them in Iraq, the Arab world, and the United States, certainly cast a shadow on the meaning of the trial. It may be that the book was facing publication deadlines (according to the blog, it comes with a student guide), or was deemed by the authors to be sufficiently lengthy, or was meant to capture the thinking of the authors and contributors at the close of the trial itself. Like a post-modern novel, the book allows readers to create their own assessment and conclusion. Yet, knowing how the trial ended will leave readers wondering. To find out what an author thought, readers will have to turn to the Grotian Moment blog (hint: search for Dujail Issue #46: Saddam’s Execution).

The expertise of the authors and the contributors (all specialists in the rarified world of international criminal tribunals [*554] and the broader fields of international human rights) ensured that the essays are uniformly well written, focused on important topics, and interesting. The book’s format, however, precludes its usefulness as an upper division or even a graduate or law school text in courses on international human rights. It could be a useful supplement in courses on the international trials and the prosecution of state actors. Specialists on international criminal trials would want to have the text on their shelves as a reference work.

REFERENCES:
Brackman, Arnold C. 1987. THE OTHER NUREMBERG: THE UNTOLD STORY OF THE TOKYO WAR CRIMES TRIALS. New York: William Morrow.

Burns, John F. 2007. “Hussein’s Cousin Sentenced to Die for Kurd Attacks.” NEW YORK TIMES. June 25.

© Copyright 2007 by the author, Marvin Zalman.

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INTERNATIONAL LAW AND ITS OTHERS

Anne Orford (ed). Cambridge and New York: Cambridge University Press, 2006. 434pp. Hardback. £60.00/$110.00. ISBN: 9780521859493. E-Book format. $88.00. ISBN: 9780511247866.

Reviewed by Lee P. Ruddin (LL.B: Liverpool); (MRes: London) and (PgCert: Sheffield). Email: leetherudster [at] aol.com.

pp.546-549

The historiography of international law is incontrovertibly Eurocentric. Professor and student alike can testify to shelves of Western bookstores sagging under the weight of texts chronicling the system of sovereign equality set up in the Peace of Westphalia in 1648. Between the First and Second World Wars, however, the collapse of liberalism and the rise of ideological conflict escorted the retreat from Eurocentric claims to civilizational predominance. The emergence of a global international order emanating through the rubble of London, Paris and Berlin post-1945 occurred simultaneously with the collapse of the idea of an international civilization – the corollary of which is relativism.

More recently greater academic attention is being paid to the legal interaction between European and non-European peoples: the West and its “Other.” Such works present a Saidian-like legal revisionism of an axis of ‘isms’: imperial, colonial and race. Saying that, do not be confused about the book’s thesis. It does not principally explore the notion of an international civilization in nineteenth-century and early twentieth-century thinking on international relations and the state system, fascinating though this may be. Those readers wanting to engage with this idea fundamental to Victorian thinking about relations between Europe and the rest of the world ought to look elsewhere – to the likes of Anthony Anghie and Derek Gregory. However, all is not so doom and gloom, for Anghie contributes a twelve-page appetizer for those not already accustomed with his seminal work: IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW.

Between 11/9 (fall of the Soviet Union) and 9/11 (September 11, 2001, attacks) international law has been embraced by policymaker and populace alike (p.396). As a corollary, editor Anne Orford lays out the general thesis – not too mention the relevance for THE LAW AND POLITICS BOOK REVEIW – in the opening chapter: “A jurisprudence of the limit”: ‘By bringing together theorists working on . . . issues from the perspective of history, political theory, philosophy and international law, this book explores what the turn to international law might mean, and what the archive of international law offers as a way of understanding the stakes of this politics’ (p.3).

Similarly, six chapters in and David Kennedy scholarly pens the linkage between law and politics: ‘Political assertions come armed with little packets of legal legitimacy, just as legal assertions carry a small backpack of political corroboration’ (p.146). However, this was not always so. Hilary [*547] Charlesworth and David Kennedy confirm in the concluding chapter: “Afterword: and forward – there remains so much we do not know”: ‘For many years, it was conventional to think of international law as the ‘other’ of international ‘politics’’ (p.401).

Apart from big hitting ‘others’ (namely Eurocentrism and the periphery) other counter-images to international law were explored at the 1st Melbourne Legal Theory Workshop, in July 2004. The conferees discovered links and correlations between international law and domains that might have seemed legally prohibited, so to speak: theology, sacrifice, the market, erotics, fetish, redemption and, most alien of all, bodily flesh (p.404).

The four-hundred-pages-plus hardback is divided into four parts: “Sovereignty otherwise” (pp.33-127); “Human rights and other values” (pp.129-244); “The relation to the other” (pp.245-386); and “History’s other actors” (pp.387-408). Part I and her constituents confront the history of sovereignty. The members of Part II question the dilemma served up by human rights. The essayists in Part III explore international law and its civilizing mode. The chapters in Part IV question the (ir)relevance of international law(yers) in the unfolding war on terror.

A fellow Birkbeckian (Birkbeck, University of London), Costas Douzinas, opens the proceedings with a magisterial thirty-page perspective on sovereignty; traversing from “Bare sovereignty” to a theologico-political form of sovereignty. Aside we are introduced to relativism and nihilism. Four splendid recent works are worth highlighting for further reading (not cited): Douglas Murray’s NEOCONSERVATISM (2005); Melanie Phillip’s LONDONISTAN (2006); Michael Gove’s CELSIUS 7/7 (2006); and Mark Steyn’s AMERICA ALONE (2006). Of a similar disposition, Ian Duncanson kicks-off with a lively historical analysis of the sixteenth-century Anglophone relationship between sovereignty and imperium. Duncanson’s rewriting of English legal history – deriving from a close reading of post-Glorious Revolution material – offers lessons for today’s international lawyers. Those lawyers should likewise take note of Dan Danielson’s contribution relating to the separation of the political from the economic à porops corporate power; and thereby encouraging a challenge to the exclusivtiy of nation-state sovereignty. Connal Parsley’s chapter is a humbling one reminding the reader of political theology of modern sovereignty – in this case, Anglo-Australian.

David Kennedy’s twenty-five page article best catalogues the interchange between law and politics. After dispensing with what commitments humanitarianism eschews, he tackles the fundamental dichotmy faced by humanitarians – engaging the world without power politics. This is pragmatism personified (as is Florian F. Hoffmann’s later contribution) – reinforced with a list of suggestions (pp.152-155). Further still, Kennedy reasons that, ‘The universal vocabulary of human rights can seem to promise the existence of an ‘international community’ that is simply not available’ [*548] (p.134). Talking of which, let us reference another Harvard don, and the Massachusetts mass-producing mastermind, Niall Ferguson:

The old, post-1945 system of sovereign states, bound loosely together by an evolving system of international law, cannot easily deal with these threats because there are too many nation-states where the writ of the “international community” simply does not run. What is required is an agency capable to intervening in the affairs of such states to contain epidemics, depose tyrants, end local wars and eradicate terrorist organizations (Ferguson 2005, at p.24).

Nearing the end, Kennedy briefly discusses the Democratic Party (US) and – considering their favourite pastime of Bush-bashing – asks what they do would differently? Again, let us turn to Ferguson: ‘Wait a second. Here are two grim situations, each likely to spiral out of control. But in one (Sudan) Obama recommends military intervention, while in the other (Iraq) he recommends military withdrawal. Am I missing something?’ (Ferguson 2007). Ferguson is right on the mark here, for – what some see as the president-in-waiting – Obama is seemingly playing politics with humanitarianism.

Anne Orford’s chapter originally explores the relationship between trade (sacrificial) laws on the one hand and democracy (abandonment) on the other. In a forty-page treatise encompassing trade and human rights discourse, the University of Melbourne professor asks, must we sacrifice our democratic values in favour of market logic? Further still, what is the aptitude of human rights to proffer a secular response to the requirements of the market? On the downside one can get too bogged-down in the biblical-like analogies (between Christianity and international politics). This particular issue colonizes the subsequent chapter too, and Judith Grbich’s charting of messianism.

Liliana Obregón’s input is a particularly penetrating one concerning civilizational discourse. After tracing the French lineage of civilisation and European jingoism – the dichotomy civilization/barbarism becoming the definitive axis – we are introduced to ‘Creole legal consciousness’ (p.248). Obregón’s masterful piece – cataloguing Creole essayists – ‘allows us to depart from the homogenization of the region and period’ (p.263). Such fantasies of identity enveloped by civilization and barbarism acted as a midwife to the birth of international law in Latin America. The subsequent contribution is the lengthiest of them all, penned by Frédéric Mégret (comprising fifty-pages). The globalization of law is molding expectations that globalization can be harnessed for the greater good of mankind. Correspondingly, globalization is having ostensible exclusionary effects. This chapter – one case study of a work in progress – focuses on the exclusion of non-Western people during the 19th century from the protection of the laws of war. Mégret examines how this exclusion can facilitate an elucidation of the crisis of the laws of war in the context of the “war against terrorism.” In a similar vein to that of the preceding contributor, Obregón – and her cataloguing of academics of the day – Mégret’s analysis reminds one of Robert [*549] Irwin’s (2006) unrivalled text. When questioning the (non) applicability of the laws of war, diplomat Robert Cooper instantaneously springs to mind. The former Blair aide and author of the critically acclaimed pamphlet The Breaking of Nations penned a further controversial article entitled “The new liberal imperialism,” in which he states: ‘Among ourselves we keep the law but when we are operating in the jungle, we must also use the laws of the jungle’ (Cooper 2002). From non-combatants to the female other, Diane Otto’s chapter will no doubt prove a welcoming read; for ‘Otto focuses on the designation of woman as other in the texts of international human rights law’ (p.25). This is followed by Juliet Roger’s naming of the mutilated woman as other too.

Despite the often maze-like biblical references and what at times reads like a eulogy to Algerian-born deconstructionist, Jacques Derrida, this ought to be an international lawyer’s vade mecum.

REFERENCES:
Anghie, Anthony. 2006. IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW. Cambridge and New York: Cambridge University Press.

Cooper, Robert. 2003. THE BREAKING OF NATIONS: ORDER AND CHAOS IN THE TWENTY-FIRST CENTURY. London: Atlantic Books.

Cooper, Robert. 2002. “The new liberal imperialism,” Guardian, April 7th.
http://observer.guardian.co.uk/print/0,,4388912-110490,00.html

Ferguson, Niall. 2007. “Sure, Barack, you didn’t vote for war in Iraq. That was the easy part.” Sunday Telegraph, 18th February. http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2007/02/18/do1801.xml&age=2

Ferguson, Niall. 2005. “COLOSSUS: THE RISE AND FALL OF THE AMERICAN EMPIRE. London: Penguin.

Gove, Michael. 2006. CELSUIS 7/7: London: Weidenfeld & Nicolson.

Irwin, Robert. 2006. FOR LUST OF KNOWING: THE ORIENTALISTS AND THEIR ENEMIES. London: Penguin.

Murray, Douglas. 2005. NEOCONSERVATISM: WHY WE NEED IT. London: Social Affairs Unit.

Phillips, Melanie. 2006. LONDONISTAN: HOW BRITAIN IS CREATING A TERROR STATE WITHIN. London: Gibson Square Books.

Steyn, Mark. 2006. AMERICAN ALONE: THE END OF THE WORLD AS WE KNOW IT. Washington: Regnery Publishing Inc.

© Copyright 2007 by the author, Lee P. Ruddin.

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AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES

by Hiroshi Motomura. New York: Oxford University Press, 2006. 272pp. Cloth. $29.95/£17.99. ISBN: 9780195163452. Paper. $19.95. ISBN: 9780195336085.

Reviewed by Leila Kawar, Institute for Law and Society, New York University. E-mail: lck212 [at] nyu.edu.

pp.542-545

As the most recent unsuccessful attempt by the US Congress to pass comprehensive immigration reform reminds us, the question of how to regulate immigration and citizenship remains far from settled. The US population currently includes more than 35 million foreign-born people. Political debates have lately focused on the contentious matter of regularization for the country’s more than 12 million undocumented migrants. Yet, recent legislative changes have also targeted the legal status of millions of other “lawful immigrants.” Particularly after the passage of restrictionist legislation in 1996, permanent residents and other lawful immigrants can be subjected to deportation if they are convicted of a minor crime. Although lawful immigrants pay taxes, they do not have the right to vote and their eligibility for public benefits, such as Medicare, is not constitutionally protected. The matter of when and how noncitizens become part of the national community has dramatic practical importance, but the way in which law draws a line between citizens and noncitizens “often does not match up” (p.4) with the lived experience of individuals and families who reside legally within the US but who are not US citizens.

Hiroshi Motomura’s contribution to this aspect of the current immigration debate delves deeply into the case law and legislative history to make the argument that legal precedent exists for treating lawful immigrants as future citizens. Motomura is the co-author of the most widely used immigration law casebook, now in its fifth edition, and his law review articles on immigration and citizenship are among those most frequently cited in the field. AMERICANS IN WAITING is his first individually authored book, and it has been recognized by an award from the Association of American Publishers in the category of legal studies published in 2006. Legal scholars and practitioners will find the book’s attention to detail particularly useful. The author examines a strikingly wide range of immigration case law, much of which is not typically included in the corpus of social scientific literature on immigration law. The book is also heavily footnoted: approximately 40 pages of notes follow 200 pages of text (although social science readers may wish that the text also contained a general bibliography).

Motomura also aims his book at a more general audience. And this is particularly clear from the fairly lengthy sections of the text, which provide historical context for the author’s detailed discussion of legislation and court decisions. Motomura’s coverage of more than two centuries of US [*543] lawmaking, as well as occasional comparative discussion of the legal regimes in other countries, is extremely competent and supplies an authoritative yet concise account of immigration and citizenship law, particularly for those unfamiliar with this area of public policy. The disadvantage to this discursive approach is that the author’s argument is at times almost submerged by contextual explanation.

In terms of theoretical orientation, Motomura adopts a conceptualist approach, familiar to readers of law review articles, to elucidate past and current US law concerning lawfully resident noncitizens. The book’s title, AMERICANS IN WAITING, captures the concept that Motomura terms “immigration as transition,” which he argues was once relatively central to American immigration lawmaking. Immigration as transition is the idea that migrants who express an intention to naturalize should be given rights and protections similar to US citizens. The principle is seen most strongly in the practice of making a declaration of intent to become a citizen, which for 150 years distinguished those who had filed this declaration from other noncitizens. Motomura also locates the principle of immigration as transition in the continued use of permanent residence status as a step towards citizenship.

The immigration as transition principle has not been the only idea governing immigration policymaking, and the first five chapters of the book discuss two other legal principles that have dominated American legal thinking about immigration: 1) immigration as contract, and 2) immigration as affiliation. In the first of these, immigrants are treated as signatories to a “contract” and are required to leave if they violate its terms. The contractual principle is visible in the Supreme Court’s reasoning in HARISIADES v. SHAUGHNESSY, declining to protect Communist Party members from politically motivated deportation. By contrast, the immigration as affiliation paradigm suggests that immigrants can earn rights only as they become, over time, enmeshed in the nation’s life. This idea is illustrated by laws upheld by the courts, which distinguish for the purposes of Medicare eligibility between lawful migrants who have been in the country more than five years, and those more recently arrived. At the same time, immigration as affiliation has a glass-half-full quality, since courts have developed an affiliation-based exception to the plenary power doctrine for procedural due process. Some of this material has appeared in Motomura’s previous law review articles. It is included in the book to demonstrate that American jurisprudence has historically contained differing conceptions of immigration – i.e., different rhetorical styles and different ways of appealing to fairness and justice. The author argues that, as the idea of immigration as transition has fallen into disuse, this diversity of paradigms has become somewhat reduced.

Motomura works to retrieve the immigration as transition paradigm, now partially buried in US legal history, and to demonstrate that, as a legal principle governing the treatment of noncitizens, it contains several desirable democratic [*544] features. However, this normative argument is complicated by a major historically-generated obstacle: in the process of conducting his legal excavation of the concept of immigration as transition, Motomura is forced to admit that this paradigm has overlapped historically with a strikingly non-egalitarian legal regime. Only a subset of immigrants could be Americans in waiting because, “from 1795 until 1952, when the declaration of intent was required for naturalization and established lawful immigrants as Americans in waiting, both immigration and citizenship were formally restricted by race” (p.135). The premise of the book is thus unusual in that it rests upon an irony: in the name of democratic incorporation, Motomura proposes to resurrect a principle that had its origins in a period of American history that was significantly less democratic.

Far from glossing over the less attractive side of this legal history, Motomura devotes significant space in the book to the various formal and informal ways in which racial and ethnic groups were systematically excluded from citizenship by a legal regime protecting the rights of supposedly superior races. His synopsis of the history of racial discrimination in immigration and citizenship law draws upon a sizeable array of historical studies, ranging from John Higham’s (1955) classic text to the more recent work of critical historians. It seems important to note, however, that the heyday of immigration as transition likewise coincided with a legal regime that prevented certain groups, notably women and the landless, from exercising rights that are now considered essential to full citizenship. The link between citizenship law and social class relations receives less attention in Motomura’s book than the racially discriminatory aspects of the law. There is likewise little discussion of the link between historical conceptions of citizenship and gender inequality, visible in the fact that US citizen women who married noncitizen spouses were once forced to give up their own citizenship. While the overlap between the disappearance of racially-based immigration restrictions and the reduced importance of the immigration as transition approach has been particularly striking at times (for example, the 1952 McCarran-Walter Act made filing a declaration of intent optional for prospective citizens at the same time that it did away with remaining racial bars to naturalization), Motomura avoids making a claim that the two were directly or explicitly linked. It could have been interesting to look at whether there has been a similar general historical parallel between the undoing of other types of legally sanctioned inequalities and the waning of the immigration as transition paradigm.

The narrative trajectory of Motomura’s text ultimately leads to the final two chapters. Hot topics, such as the movement to make English an official language as well as the post-9/11 use of both profiling in immigration law enforcement and sharply reduced procedural protections for non-citizens, cropped up throughout the earlier part of the book. But in the final chapters, Motomura argues that the polarization of the political debate surrounding these issues reveals an underlying problem [*545] with America’s current approach to immigrants. He suggests that contemporary America is characterized by a harmful “reciprocal skepticism” that opposes, on the one side, immigrants who are wary of the historical link between Americanization and racism, and on the other side, those who complain that immigrants are insufficiently committed to America. Motomura at this point switches into an explicitly normative register and recommends that the country should re-emphasize the idea of immigration as transition. He argues that the revived version of the transition paradigm provides a way to break the cycle of mistrust between immigrant-origin ethnic communities and other Americans. According to the author, extending to immigrants a more active welcome, on the assumption that any given lawful immigrant will become a citizen, effectively fosters civic education and involvement of immigrants and will ultimately result in a more integrated American society. A key assumption behind this position is that legal principles can serve as a societal steering mechanism without the disadvantageous externalities of direct state intervention. Motomura writes, “Law will create the conditions for lawful immigrants to make free, meaningful choices, and for nongovernmental organizations and individuals working in communities to help make them feel like Americans in waiting” (p.203).

Motomura clearly takes seriously the idea that law should be responsive to the processual nature of the transition to citizenship. In the Introduction, he shares his own family’s immigrant story and this personal experience provides part of the inspiration for the book. His commitment to the idea that noncitizen residents should be encouraged to transition towards an American identity is sure to attract criticism, but AMERICANS IN WAITING is a valuable addition to contemporary discussions of immigration and citizenship, especially at a time when the rush to pass comprehensive immigration reform has all but crowded out reflections on the nature of American community.

REFERENCE:
Higham, John. 1955. STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925. New Brunswick, NJ: Rutgers University Press.

CASE REFERENCE:
HARISIADES v. SHAUGHNESSY, 342 U.S. 580 (1952).

© Copyright 2007 by the author, Leila Kawar.

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TRIBAL POLICING: ASSERTING SOVEREIGNTY, SEEKING JUSTICE

by Eileen Luna-Firebaugh. Tucson: The University of Arizona Press, 2007. 168pp. Paper. $29.95. ISBN: 0816524343.

Reviewed by Jill Norgren, Department of Government, John Jay College and The Graduate Center, The City University of New York (Emerita). Email: jnorgren [at] gc.cuny.edu.

pp.538-541

Eileen Luna-Firebaugh’s small volume makes a large and important argument: “through the creation of empowered and accountable tribal police departments, tribes can seize the opportunity to advance their sovereignty and their right to self-government, as well as improve the lives of tribal members” (p.3). Her book walks the novice through the complicated history of policing in Indian Country, the term she employs (as defined in 18 USCA 1151), and describes the complexities of law and jurisdiction as they affect the work of tribal police departments. (She has chosen not to include security personnel at tribal gaming facilities, because they are generally not considered part of tribal law enforcement by tribes).

Indian tribes hold a unique relationship to the United States and its local governments. As Luna-Firebaugh explains, American Indian tribal governments are not creations of the US government and their right to act flows from inherent sovereignty, not the US Constitution (p.34). She acknowledges, however, that tribal governments are subject to legal and political constraints in their relationship with the federal government as well as state governments, formalized in statutes and court cases. Indian sovereignty has been acknowledged in treaties (treaty-making with tribes ended in 1871, see 25 U.S.C. 71). The US Supreme Court has recognized tribal sovereignty repeatedly but nearly always limited its scope. Moreover, the creation, in the nineteenth century, of Indian police units and courts by the US Department of the Interior’s Bureau of Indian Affairs was “in large measure for the purpose of controlling the Indian and breaking up tribal leadership and tribal government” (p.21). This book explores the possibility of a modern tribal policing that flows from tribal authority and values, institutions which will express and enhance the integrity of tribal government. In particular, the author considers changes that have occurred since the 1990s when the full assertion of policing responsibility moved forward at a “rapid pace” (p.25).

Luna-Firebaugh understands the constraints and challenges. Tribal police are responsible for vast geographic areas but lack, she writes, “resources that most mainstream police officers take for granted,” including working police vehicles, operational 911 systems, access to police radios, and unlimited phone service (p.3). Training is often limited and departments experience difficulty receiving assistance from other (non-tribal) law enforcement agencies. Tribal officers are generally not cross-deputized. A 2003 report from the US Civil Rights Commission found that per [*539] capita spending on law enforcement in American Indian communities was roughly 60 percent of the US average. At the same time, US Department of Justice studies report “what many in the American Indian community already knew: crime victimization rates in the American Indian community are significantly higher than in the U.S. population at large, and more than twice as high as the next highest, the African American community” (p.92). Luna-Firebaugh describes rates of victimization for American Indian women almost fifty percent higher than that for African American men. The violent crime experienced by Native American women has been discussed repeatedly in congressional hearings on the Violence Against Women Act (Tribal Title IX). The claim is made that the federal government’s erosion of tribal government authority, along with the chronic under-funding of law enforcement agencies that should protect Native American women has compounded rates of violence against them. It is an issue explored in depth in Amnesty International USA’s recent report (2007). The argument is made there that despite the disproportionate levels of crime experienced by indigenous women the US government has created “substantial barriers to accessing justice.” (http://www.amnesty.org/Join_Voices ) These are serious charges, ones that should have been analyzed by Luna-Firebaugh who devotes more attention to tribal-state relations than the impact of US government policy and budgets on law enforcement in Indian Country.

Clearly the need for better policing exists. Luna-Firebaugh writes that there has been “rapid development of tribal police departments” in the last several decades (p.5). In this book she gives the findings of a multi-year study employing interview techniques to determine the approaches tribes have taken in developing and implementing these new and expanded departments.

Five forms of law enforcement agencies operate within Indian Country. These include the Bureau of Indian Affairs Law Enforcement Services; police officers funded through the Indian Self-Determination and Education Assistance Act (PL 93-638); police officers funded through the Indian Self-Determination Act of 1994 (PL 103-413); tribally funded officers, and state law enforcement agencies operating under PL 280 (1950s legislation through which Congress gave six states civil and criminal jurisdiction with respect to local tribes). Luna-Firebaugh gives a brief description of each and in Chapter 11 offers a cogent history of the implementation and impact of PL 280. Here, in frank political analysis, she urges tribes in PL 280 states to address the failure to provide necessary law enforcement and to increase their application for federal funding. PL 280 tribes, she concludes, “should vigorously pursue retrocession with the state” (p.125). Here, as in too many Indian communities, there is a crisis of jurisdiction and resources, with non-enforcement of the law the too-common norm.

In examining cultural preferences, the author finds that community policing [*540] prevails as the most widespread model for tribal police. Its methods and concept of restorative justice, and enhancement of community cohesion and action are ideas, she argues, that fit well within Indian Country. The “professional model” of policing is, she explains, burdened by its earlier use to dispossess Indian people of their land, leadership, and sovereignty (pp.45-47).

Luna-Firebaugh’s data indicate that the training of officers suffers from high attrition rates for new recruits. The Indian Police Academy has experienced fifty percent loss through attrition, a problem further complicated by fifty percent of those hired leaving Indian Country law enforcement within two years (p.53). The pay is low and on-the-job dangers (long shifts, scarcity of back up officers, and so on) higher than those experienced by non-tribal police.

An interesting chapter of the book explores the role of women within tribal police departments. The author’s survey data reveal that tribal police departments diverge from non-Indian departments in the number of midlevel managerial and command positions held by women. She considers this outcome “impressive,” hopes that more tribal police departments will expand opportunities for women, and concludes, perhaps because community policing is popular with women tribal officers who traditionally have held peacekeeping roles, that “the empowerment of women officers to function fully as police may have a significant bearing on the ability of tribal police departments to contend successfully with the rampant violence on reservations” (pp.84-85). This is an important hypothesis, one that ought to have been more fully discussed.

The issue of police accountability is taken up in Chapter 9. The author argues that the idea has support in Indian communities and should be the subject of further research, particularly with regard to the enhancement of civilian oversight. Chapter 10 describes the high rates of incarceration for American Indians and the state of the various facilities to which tribal members are committed (institutions run by the Bureau of Indian Affairs; tribal jails; state jails and prisons in PL 280 states; and federal prisons for those convicted of a felony enumerated by the 1885 Major Crimes Act).

TRIBAL POLICING offers a useful introduction to a topic insufficiently discussed in the literature. The book ought to provoke practitioners and theorists to consider how better to address the complicated issues of policing in communities burdened by a colonial history, including a maze of law addressing civil and criminal jurisdiction. Professor Luna-Firebaugh suggests the depth of the dilemma when she reports that the pursuit of de facto sovereignty (‘sovereignty which arises naturally from the undertaking of the competent provision of essential government services whether or not it is explicitly permitted under existing state or federal laws”), may be one way to advance community empowerment (p.47). Elsewhere, and not without irony, she observes that “the rise of the political concept of states’ [*541] rights enhances the opportunities available to Indian Country” (p.34). Although states’ rights politics are hardly new, it is interesting to read that tribes may benefit. What she has yet to address, however, is if, and how, dependence upon federal funding compromises advancement of tribal sovereignty and self-government. She is in an excellent position to take up that question and, hopefully, will do just that in future writing on tribal policing.

REFERENCES:
Amnesty International USA. 2007. MAZE OF INJUSTICE: THE FAILURE TO PROTECT INDIGENOUS WOMEN FROM SEXUAL VIOLENCE IN THE USA. New York: Amnesty International. Online at http://www.amnestyusa.org/women/maze/report.pdf

© Copyright 2007 by the author, Jill Norgren.

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AGAINST PREDICTION: PROFILING, POLICING, AND PUNISHING IN AN ACTUARIAL AGE

by Bernard E. Harcourt. Chicago: University of Chicago Press, 2006. 264pp. Cloth. $55.00. ISBN: 9780226316130. Paper. $25.00. ISBN: 9780226316147.

Reviewed by David S. Mann, Professor of Political Science, College of Charleston. Email: mannd [at] cofc.edu.

pp.534-537

AGAINST PREDICTION has its foundation in rational choice theory. Its reading audience should expand, given the topic and counterintuitive thesis and discussion. Having studied rudimentary rational choice theory in graduate school, but not having used it very much since, I took a moment to pause, especially since my primary scholarly focus is based on attitudinal models. First things first, however.

The book’s theme is simple: in pursuing what Bernard E. Harcourt refers to as actuarial methods, police and others are unwittingly assisting in increasing crime rates. If we really want to predict people’s behavior, we should use clinical methods rather than relying on statistical patterns based on probabilities. Taking four hypothetical examples in criminal law, Harcourt asserts that profiling – what he refers to as the actuarial method – in policing, sentencing, and parole decisions is a mistake. To behaviorists, this is totally opposite our training; to the curious, we look further, remembering always that it is with simplified assumptions that rational choice math works.

Harcourt, Director of the Center for the Study of Criminal Justice at University of Chicago, breaks down the text into three parts: the Rise of the Actuarial Paradigm, the Critique of Actuarial Methods, and Toward a General Theory of Punishing and Policing. I will summarize each section in as neutral a fashion as possible.

He begins his prologue with a definition of “actuarial methods in criminal law” as if it were to be found in Black’s LAW DICTIONARY: “the use of statistical rather than clinical methods on large datasets to determine different levels of criminal offending associated with one or more group traits, in order (1) to predict past, present or future criminal behavior and (2) to administer a criminal justice outcome” (p.1). Harcourt uses four not so hypothetical examples throughout the text to illustrate his counterintuitive notion. The first is the decision to release convicts early based on statistical prediction instruments. The second is the IRS decision to audit, which he reports to be based on a multiple regression equation. The third is taken from a sentencing guidelines commission report on likely recidivism, again, based on a risk assessment algorithm.
The last is the DEA attempt to identify “common characteristics of illegal drug couriers disembarking from planes at US airports” (p.15, footnote omitted). The author argues that risk assessment techniques, including profiling, dominant tools in the criminal justice system, ought to be discarded. [*535]

Before undertaking a literature review of the actuarial technique in chapters two and three, Harcourt offers three basic critiques which help the reader focus on his frame of reference. The first he characterizes as the “mathematics of criminal profiling” (p.22), which is really a microeconomic argument. He assumes that potential offenders are rational, respond to arrest probabilities, and know that law enforcement may be targeting them. Therefore the group’s offending rate falls toward that of the general population, at which time law enforcement should cease profiling (pp.22-23). He almost loses me when he addresses “relative elasticity of offending to policing” (p.23). Again, he assumes that potential offenders are rational, respond to punishment, and are deterred by the threat of more punishment. He asserts that “the use of actuarial methods . . . may increase overall crime in society” (p.26).

The second critique is what he calls “the overlooked social cost” (p.26), the incapacitation effect, where offenders are not rational and are unresponsive to policing. Here he uses a cost-benefit analysis. “[W]hen we profile, we are essentially sampling more from a higher-offending population[, i]nstead of sampling randomly . . . skewing our sample results” (p.29, italics original) So the criminal population (aka, sample) is disproportionate to the population as a whole and to those who manifest criminal behavior as a whole. This leads to the unfortunate social costs of disruption of families, work, and law-abiding life.

The third critique, which he calls “shaping the conception of justice” (p.31), addresses deterrence. I expected the conventional discussion and distinction between general deterrence and special or specific deterrence, commonly discussed in the most basic criminal justice course. That discussion did not take place, and as a consequence I am left a bit confused. The author discusses just punishment as that which deters, yet he then writes that utilitarian theories “fall aside because there is no good measure of deterrence” (p.33). We believe the higher offending groups should be targeted, they offend at higher rates, so we profile “the rich for IRS audits or minorities for drug searches” (p.33), and “we begin to feel morally righteous” (p.33). Just punishment, he argues, exists when “everyone who commits a crime (has) the same likelihood of being apprehended, regardless of . . . group trait” (p.38). Similarly, he argues to impose sentences based on an independent standard – several offered, for example, are “the harm principle, retribution, the seriousness of the offense” (p.38) and not to employ predictive devices.

Chapters Two and Three, as indicated above, review literature from the early 1900s that represents what I generically call the attitudinal or behavioral model. One of the more interesting arguments Harcourt makes is that individuals should be judged not on the basis of demographics, but rather using clinical methods directed at each individual offender, perpetrator, or accused. Curiously, that is the argument of Justice Powell for the 5-4 majority in MCCLESKEY v. KEMP. Recall that [*536] Justice Powell rules that McCleskey must show more than a statistical tendency that black defendants are more harshly judged than white. McCleskey must show that he himself was discriminated against. More curiously, it appears that Harcourt is unaware of that case – he does not mention it – nor does he mention in his literature review the famous Baldus study on which McCleskey’s argument stood.

Chapters Four and Five are where most of the economics and math reside, where Harcourt begins his critique of the actuarial method. These and Chapter Six elaborate on the critiques discussed earlier. I am guessing that the math is correct; I am guessing that the formula in Appendix B is correct as well. I personally quarrel with the author’s assumptions on which the math is based. For instance, he assumes that minorities offend at higher rates, that police are rational and efficient, and that potential offenders are rational and cognizant of deterrence models. He asserts that the status quo profiling techniques likely increase overall crime rates and have undesirable social costs, such as cultivated racial and other discrimination in society as a whole. I suppose there are data that show minorities to offend at higher rates than majorities (I question how we would address the state of New Mexico, where minorities are in the majority – but that may be trifling). There is insufficient time to discuss in depth why the other two assumptions may not be valid. As we all know, if the assumptions are correct, so should the math be correct. I simply question the veracity of the assumptions, thus putting the math, however it is shaped, into question.

Harcourt proceeds with Chapter Seven, “A Case Study of Racial Profiling” (pp195ff), where the first two critiques he mentioned very early in the tome are put to another test. Again using microeconomic modeling, some math, and lots of data, he argues that profiling “has allowed our war on drugs to turn into an offensive against black and Hispanic drivers” (p.214). A more fundamental notion of justice is that “all criminal offenders, regardless of race, ethnicity, gender, class or national origin, should face the same likelihood of being apprehended and punished for engaging in criminal behavior” (p.214). As a society, we presumably believe this, but do we “do” it as a matter of policy?

What about profiling in the name of counterterrorism? Harcourt reaches that question in Chapter Eight, after a discussion and mathematical critique of the Manhattan Bail Project, often a topic of consideration. The question of profiling Middle Easterners, or those who appear to be from the Middle East, also raises some eyebrows. He discusses offending differentials, comparative elasticities, group traits, and simply the question of whether “profiling young Muslim men in the New York subways will likely detect a terrorist attack” or instead “lead to recruitment of nonprofiled persons and the substitution of more deadly acts for subway attacks” (p.235). He admits we don’t know a lot more than we do know. I would ask the reader to remember when she first heard of the Oklahoma City bombing whether [*537] her first thought was “Middle Eastern terrorists”? Harcourt, strangely, does not mention Timothy McVey, which would illustrate his point, like his failure to offer MCCLESKEY as an example, mentioned earlier. As fictitiously addressed in the film “State of Siege,” we could round up a profiled class of persons and still fail to detect a terrorist act. Harcourt has a point here and could elaborate without the math.

The last chapter asserts one final time that, if we randomly search vehicles for drugs, randomly audit IRS returns, and base parole decisions using personal, clinical data rather than data from regression equations, we will have a better justice system where those who are interred actually reflect the US population as a whole, with much less devastating effect on social life. He could be right about parole decisions, provided that sufficient resources are devoted to the process. Is he right about drug couriers and IRS cheats?

Those whose focus is on behavioral and attitudinal models should read this book. Why? It is counterintuitive. It offers challenging assumptions. It raises questions about social discrimination. For instance, social discrimination may be enforced by law, as long as police concentrate their energies on those who, they think statistically, are the most likely offenders. Yet if we don the uniform of law enforcement, would we not concentrate on who we believe to be the likely offenders, using some profiling technique or other? Should we give this whole notion at least a sober second thought?

REFERENCE:
MCCLESKEY v. KEMP, 481 US 279 (1987).

© Copyright 2007 by the author, David S. Mann.

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THE CONSTITUTION OF LAW: LEGALITY IN A TIME OF EMERGENCY

by David Dyzenhaus. New York and Cambridge: Cambridge University Press, 2006. 266pp. Hardback. £45.00/ ISBN: 9780521860758. Paper £19.99/$34.99. ISBN: 9780521677950. eBook format. $28.00. ISBN: 9780511247927.

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

pp.530-533

9/11 changed everything. At least this is the argument of President George Bush, John Yoo, and others who contend that the terrorist attacks in 2001 in the United States augmented presidential power to draw upon either a generous reading of the Constitution’s Article II “commander-in-chief” clause, or upon claims that the chief executive has extra-constitutional authority to act to respond to unique emergencies. Among the powers asserted, Bush and his defenders see him having inherent power to detain both American citizens and non-citizens indefinitely if they are suspected of being terrorists, being able to order warrantless electronic surveillance, and to declare oneself the guardian of the Constitution in times of exigency. Common to all these actions, though, is an assertion that the rule of law may have to be suspended in times of emergency in order to allow the president to respond to security threats. Bill of Rights and other procedural protections, such as habeas corpus, need to be suspended until normal conditions prevail. Asking whether such a suspension is in fact necessary or desirable is the subject of David Dyzenhaus’ compelling and thoughtful book.

While the lessons and arguments of THE CONSTITUTION OF LEGALITY have application to the United States, Dyzenhaus’ object of inquiry is to examine how governments without written bills of rights protect individual rights in emergencies. More specifically, he looks to the role that the courts have assumed in the United Kingdom, Australia, and Canada, vis-a-vis judicial review of legislative and executive action to declare and respond to crises. While some of the examples are post-9/11, such as efforts in the UK to permit indefinite detention, many are older, drawing upon laws passed in Australia and Canada during the height of the Cold War era which would have restricted the rights of individuals suspected or identified as communists. In drawing upon some of these older cases, the author is able to show how past alleged crises were handled or avoided by the courts.

Dyzenhaus’ thesis is really what he calls Carl Schmitt’s challenge. That challenge is whether the state or sovereign can respond to a crisis within the bounds of the law, or do such emergencies permit suspension of normal rule of law and a venturing into extra-constitutional power, or what John Locke would call prerogative powers. The crux of the Schmitt challenge asks really two questions, as Dyzenhaus eventually elaborates: First, is the sovereign freed from the law in emergencies; and, second, who gets to [*531] decide what and when a state of emergency exists. Even if we concede the first premise, the same person or body who is given the emergency power should not necessarily be given the authority to decide the what and when, or even the scope of the special powers and how they interact with rule of law and protection of individual rights. Chapter One provides a scathing but reasoned critique of arguments by Clinton Rossiter, Bruce Ackerman, and Cass Sunstein to defend extra-constitutional powers, finding in their claims for suspension of normal rule of law the creation of constitutional “black holes” or “gray holes” into which rights and legality fall.

While governments could simply declare emergencies and say the law has been suspended, the three national case studies reveal something more complex. Instead, in Australia and Canada when it came to the communists in the 1950s, or in the UK after 9/11, laws were adopted which appeared to sanction the suspension of normal rule of law. Thus, the facade of legality and rule of law masked, hid, or appeared to legitimize suspension of the law. Dyzenhaus, in noting this, thus wishes to distinguish between mere legality where the veneer of rule of law is observed, versus something more substantive. Clearly his aim is to respond to Schmitt’s challenge and argue that even in a crisis, there are limits to what the sovereign can do, and a constitutional order requires one to act within the law. To make this argument, Dyzenhaus draws both upon Lon Fuller and Ronald Dworkin.

Dyzenhaus wants to employ Fuller’s argument that there is an inner morality to the law. This inner morality is meant to provide some real substance that requires the law to respect norms and values, such as commitments to separation of powers, limited government, and individual rights. Legal regimes that merely are procedural lack this and really do not adhere to a real sense of rule of law. The content of this inner morality, however noble a concept or tool to distinguish mere legality from real rule of law, is left somewhat underdeveloped by the author.

Dyzenhaus draws upon Dworkin’s distinction between rules and principles to criticize legal positivism and H.L.A. Hart. Dworkin made this distinction to argue that, when the rules run out, there are still principles embedded in the law that bind the discretion of judges. Dyzenhaus uses this argument as a foil against whom he labels constitutional positivists. These are individuals who argue that in emergencies and in cases where there are no formal bills of rights, judicial discretion is still limited. His argument is that even if there are no formal bills of rights, both the inner morality of law and common law principles bind judges to respect rule of law and individual rights. If in fact constitutional regimes and judges are still bound by embedded principles and an inner morality, legal black and gray holes are filled. These embedded principles or morality, Dyzenhaus posits, may even be international legal norms. Hence, Dyzenhaus argues against the concept of dualism in international law, finding that the wall that separates domestic and international law is as [*532] open-textured as Dworkin’s legal regime that must still respect or acknowledge principles.

What all this means for Dyzenhaus is developed when he discusses privative clauses—laws or rules which preclude judicial review of emergency legislative or executive orders or actions. Judges can take three responses to these clauses: Eviscerate or ignore the privative directive; reconcile or seek to accommodate it with other canons of judicial construction; or pay deference, which is to obey and abstain from judicial review. Dyzenhaus provides detailed case law examples and discussion of all three approaches, but his clear position is against judges giving in to privative clauses. In fact, judges who truly respect rule of law in the fully blown or thick sense of seeing an inner morality and embedded principles in the constitution, will do precisely that. In sum, constitutional regimes, even those lacking written bills of rights, cannot be considered in compliance with rule of law if they fail to respect the law of rules.

Dyzenhaus’ conclusion is almost platonic. There is a rule of law continuum according to which we can judge regimes. Those that respect the inner morality of law are mostly in accordance with respect for the reality of the rule of law. Regimes that do less than this are merely fainter resemblances of real rule of law regimes. Dyzenhaus believes it is entirely possible to respond to emergencies while respecting rule of law, and he draws out an extended argument that judges have a duty to hold the government in check.

THE CONSTITUTION OF LEGALITY is a powerful and timely response to those who contend that extraordinary times demand extraordinary governmental powers that enhance legislative or executive authority at the expense of rule of law, rights and judicial review. Although the book is directed to regimes lacking written bills of rights, one can also read the arguments here as counterpoints to those who see the necessity of compromising written bills of rights in a post-9/11 world. If constitutionalism has any meaning, its very purpose is to be most valuable during emergencies. Dyzenhaus’ arguments are reminiscent of what Chief Justice Charles Evans Hughes stated so eloquently in HOME BLDG. & LOAN ASS'N v. BLAISDELL (1934), that:

Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.

This is the spirit in which THE CONSTITUTION OF LEGALITY is written, as an argument for not suspending the law when times get tough. [*533]

Despite the strengths of the book and argument, Dyzenhaus could have done a better job in several areas. His application and articulation of Fuller and Dworkin is tantalizing but not fully developed. Additionally, the arguments against legal dualism are too quick and unpersuasive. In both cases, the author floats great ideas that, if more fully elaborated, would offer a more powerful response to Schmitt’s challenge. Finally, one worries about the content of an inner constitutional morality or embedded principles because, lacking specification, they potentially set up dangerous claims for extrajudicial power that might be inconsistent with rule of law.

CASE REFERENCES:
HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934).

© Copyright 2007 by the author, David Schultz.

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