THE SNAIL DARTER CASE: TVA VERSUS THE ENDANGERED SPECIES ACT

by Kenneth M Murchison. Lawrence: University Press of Kansas, 2007. 240pp. Cloth. $35.00. ISBN: 9780700615049. Paper. $15.95. ISBN: 9780700615056.

Reviewed by Thomas W. Church, Department of Political Science, University at Albany, State University of New York. Email: TChurch [at] albany.edu.

pp.720-723

This case study of TVA v. HILL (1978), the Supreme Court’s first interpretation of the Endangered Species Act (ESA) of 1973, joins a distinguished series of books published by University Press of Kansas on “Landmark Cases and American Society.” A reader looking for a comprehensive doctrinal summary of this litigation aimed at stopping construction of the Tennessee Valley Authority’s (TVA) Tellico Dam on the Little Tennessee River will find it in this volume. Murchison moves from the litigation under the National Environmental Policy Act (NEPA) of 1970 to the litigation under ESA, culminating in the Supreme Court’s decision interpreting the ESA against TVA, and the subsequent action by Congress to negate it. Each step in the complicated legal process, including the arguments made by all sides in court, in legislative and administrative hearings, and in the judicial opinions issued at various points in the litigation, is faithfully summarized. The author also puts this litigation into the broader context of environmental legislation as it developed in the 1970s.

The history described in this book is less about Herculean efforts of naturalists to save an endangered fish as it is about the failed efforts of a coalition of sport fishermen, farmers and other landholders, river rafters, and national environmental activists to prevent construction of a dam across one of the last wild stretches of river in the Tennessee Valley. Indeed, the snail darter was a previously unknown species serendipitously discovered in the Little Tennessee River by a biologist looking for an animal to use in ESA litigation to halt dam construction. The story is replete with ironies. The opponents of the dam actually won their battle in the U.S. Supreme Court: the majority held that the ESA categorically forbids governmental projects that would result in critical habitat loss of an endangered species, irrespective of the costs and benefits of either the project or of the extinction of the animal in question, and that construction of the dam would thus violate the act. But in a noteworthy example of Court-Congress “dialogue,” Congress – after a protracted struggle – passed a statute specifically directing TVA to complete the Tellico dam “notwithstanding the provisions of [ESA] or any other law” (p.165). As a further irony, it might be said that the snail darter actually emerged a winner from the unsuccessful effort to stop the dam: the little fish continues to prosper in nearby locations – due in part to an effort by TVA to transplant the species elsewhere. The fish was thus saved from extinction by TVA. At the end of the day, however, the dam was built, the river tamed, and farmland, fishing streams, and rapids were submerged under the resulting reservoir. [*721]

Toward the end of his brief introduction, Murchison summarizes his endeavor by stating that “This book tells the story of the legal challenges to the Tellico Dam” (p.6). And this he does, though in a particularly narrow sense. While there is much useful information to be gleaned from the book, my major complaint is that the story told of these challenges is incomplete or, at the least, limited in perspective. This is because Murchison’s discussion is almost exclusively about legal arguments, legal doctrine, and Black Letter Law. His discussion of each of the major decision points in the rich and convoluted history consists primarily of setting out the competing legal arguments made by all the various participants, how they were subsequently addressed by the relevant court, judge, or administrative agency, and what legal arguments were ultimately made in support of that particular decision. Yet many of the most important decisions in the case, from TVA’s decision to build the dam in the first place, to the decisions by anti-dam activists to challenge the dam construction under NEPA and ESA, to TVA’s defense of the dam in court and in Congress, to the Congressional decision to override the Supreme Court’s interpretation of the ESA, were essentially strategic and political – outside the doctrinal issues focused upon in this book.

It is clear from his Bibliographic Essay (there are no footnotes or citations) that while a few interviews informed his research, Murchison’s primary reliance was on legal documents – briefs, judicial opinions, hearing transcripts, legislative reports, and the like – rather than interviews, newspaper and other contemporary accounts, or other sources that might show us something about environmental law and policy “in action.” We are thus left with a strangely impersonal and apolitical story of a key monument in the history of the environmental movement in the United States, depicted as a series of official determinations of the meaning of statutory language, rather than as a complex policy-making process in which law and legal arguments were merely one strategy (and not the determinative one) among the many used by all sides of the dispute to obtain their favored policy result. The book is silent on how and why a particular strategy was chosen by the various actors, what debates informed the choice, how recourse to administrative agencies and Congress was related to the litigation strategy, the underlying politics of the administrative decisions or the Congressional reversal of the Supreme Court’s resolution of Hill, even who were the major players involved in these decisions. Indeed, there is very little discussion of individuals or organizations at all, at least not as strategic and political actors. As such, I do not think this would be a particularly useful book to assign to undergraduates, because it conveys the impression – probably inadvertently – that the key issues in multifaceted environmental disputes are essentially ones of legal doctrine, rather than of policy, politics, and strategy.

Reviewers frequently chastise authors for not writing the book the reviewers would like to see written, and perhaps (since I am a political scientist and Murchison is a lawyer) this is the basis [*722] of my complaints about this book. Rather than go further down this arguably unproductive road, I would like to briefly raise a broad issue suggested by the case study which might fruitfully be examined in another retelling of the snail darter/Tellico Dam story: the question of “adversarial legalism” and its relationship to environmental litigation.

By the time the ESA litigation began, TVA had expended a very substantial amount of money on design, land acquisition, and construction of the Tellico Dam. While figures on TVA’s expenditures at various stages are sprinkled throughout the book, it would appear that $78 million had been spent on the dam when further construction was enjoined in federal court as part of the ESA litigation; construction was then more than half complete (pp.84, 96). The opponents of the dam had failed to dissuade TVA from its plans to build the dam at the outset; subsequent efforts to halt the construction through legal action under the NEPA (alleging that the environmental impact statement was inadequate) failed; land acquisition, design, and construction had been ongoing for several years prior to passage of the ESA, a statute that provided a final opportunity to block the project.

Robert Kagan (1993) describes a similar story involving litigation aimed at halting efforts to expand and modernize the Port of Oakland, California, in the 1980s. Like the fight over the Tellico Dam, Kagan’s story involves protracted litigation, delays, substantial added transaction and construction costs, and lost opportunities. Unlike the dam – which Murchison suggests was a costly policy mistake – the expansion of the Port of Oakland appeared to most observers to be highly beneficial. But irrespective of one’s views on the desirability of damming rivers or modernizing ports, it is difficult not to view the decision-making processes that characterized these cases with some dismay. This is not only because of the high transaction costs and potentially arbitrary results, but also because the associated litigation was not really about the desirability of the overall policy objective, but merely a tactic used to negate a decision reached through political and administrative means. There is little question, for example, that the aim of the plaintiffs in the snail darter litigation was less about preventing the extinction of a newly discovered fish than it was to stop construction of a dam that would flood a scenic river without – or so the opponents claimed – offsetting social or economic benefits. Indeed, few environmentalists would regard the Tellico Dam as an environmental success story, despite the continued existence of the snail darter in adjacent streams.

Kagan terms the decision-making process in such cases “adversarial legalism,” and argues that it is a costly and ultimately unreliable way to make public policy. The Tellico case is almost a definitional example of this pathology: it involved intense legal disputation, litigant activism, and a context where decisions are “variable, unpredictable, and reversible” (p.372). But the Tellico Dam dispute was ultimately resolved in [*723] a purely political process through Congressional legislation mandating its construction. As such, the case study provides an interesting comparison of policy making through litigation versus legislation, and the interplay of the two processes. A dispassionate effort to compare and assess the processes – legal, administrative, and political – which characterized decision making in this case study would further the ongoing discussion of adversary legalism and perhaps provide some broader lessons.

REFERENCES:
Kagan, Robert A. 1993. “Adversary Legalism and American Government.” 10 JOURNAL OF POLICY ANALYSIS AND MANAGEMENT 369-406.

REFERENCES:
TVA v. HILL, 437 U.S. 153 (1978).

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© Copyright 2007 by the author, Thomas W. Church.

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COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL SYSTEMS OF ASIA AND AFRICA (2nd ed)

by Werner F. Menski. Cambridge: Cambridge University Press, 2006. 694pp. Hardback. £85.00/$150.00. ISBN: 9780521858595. Paperback. £43.00/$75.00. ISBN: 9780521675291. eBook format. $60.00. ISBN: 9780511166785.

Reviewed by Maxwell O. Chibundu, University of Maryland School of Law. Email: mchibundu [at] law.umaryland.edu.

pp.713-719

This is a sprawling, engaged and engaging study in comparative jurisprudence. It provides, as the title indicates, an extended comparative study of the legal systems that function in Africa and Asia, notably those of “Hindu law,” “Islamic law,” “African laws” and “Chinese law.” But it seeks to do much more than that. It takes on conventional claims in contemporary Anglo-American jurisprudence on the nature, sources and scope of law, and finds the dominant accounts of the concept of law within this jurisprudence flawed and incomplete. Relying predominantly on secondary sources, Werner Menski, a Professor at the London School of Oriental and African Studies, eruditely presents his material within the framework of what he terms “global legal theory.” His is a project that accepts the desirability (perhaps need) of transnational jurisprudential studies, but vigorously rejects the possibility of a singular or systematized universal legal order. To the contrary, Menski’s core thesis is that the search for a uniform set of rules for a global order is bound to be futile because laws embody and reflect the socio-cultural particulars and experiences of functioning societies, and which, although transmitted longitudinally within the society, are nonetheless complex, fluid and dynamic. Any adequate theory of law and of a legal order therefore must, among other considerations, take account of the particularized socio-political institutions of the society, that society’s belief systems, its politics and its history. The one universal characteristic of all legal systems, he claims, is thus the inherent tendency towards “plurality-consciousness.”

Menski’s arguments are advanced in two stages. The Introduction and first three chapters summarize contemporary “mainstream” jurisprudential claims about the nature and sources of law. He finds unpersuasive the rather facile view that “globalization” will lead to a standardized and uniform legal regime, whether at the international, supranational or national levels. Evoking anecdotal evidence, he demonstrates that efforts to harmonize legal rules even within societies such as Western Europe where the effective functioning of rules is reasonably well-entrenched, may generate such socio-political polarization that it may be too costly to proceed with; at least, not unless one is willing to do significant (and ultimately unacceptable) violence to social structures. This presents him with a launch pad for examining extant liberal theories on the nature of law. Invoking anthropologists and sociologists as readily as political [*714] theorists and legal philosophers, he in turn explores and rejects conventional conceptions of law as arising from “legal positivism,” “natural law,” and “sociological and historical jurisprudence.” These conventional conceptions of law he criticizes for being excessively “legocentric” – that is, for viewing law as an autonomous body of knowledge that can be rationalized within a defined sphere, and on the basis of a limited set of assumptions about human nature and political institutions. These approaches all suffer from the hubris of believing that each alone can offer a complete and successful account of law. And each, he finds wanting for failing to explain some facet of law demonstrably present in a given society. Legal positivism (at least in its Austinian incarnation), for example, fails to account for the roles that religion and morality continue to play in post-industrial Western societies, let alone those that remain highly agrarian and tradition-bound. Natural law clearly provides inadequate explanatory basis for laws that flow as much from the exercise of material power and utilitarian considerations as from moral or religious concerns. And as for socio-legal jurisprudence, it hardly suffices to explain the basis for the role of the state in the lives of many inhabitants of so-called developing countries. These flaws of legal theorizing, he contends, can be dealt with only by an approach that sees law as necessarily “plurality conscious.” This means that, rather than viewing law through the lens of any of the conventional jurisprudential approaches, law should be conceptualized as the manifestation of numerous interacting forces within society that transcend and depend on temporal forces within a given society.

The second stage of the presentation consists of four chapters, each approaching and sometimes exceeding one hundred pages. Here, Menski outlines four non-Western legal systems and attempts to show that each and all manifest his claimed characteristic of law as necessarily being “plurality conscious.” Each chapter presents in contextually rich fashion descriptive material on the legal system under discussion. In each case, he begins by exploring through extant scholarship the distinctive attributes of the particular legal order. What, for example, is Hindu Law (or, for that matter, “African Laws”), and what makes it distinctive? Next, he presents the classical grounding of the legal order under discussion, and, with the exception of “African laws,” traces its development over time in chronological order. In each case, he shows the extent to which the legal order retained the influence of the past on it, while attempting to take account of evolving developments in the present. Engagements with European commerce and culture especially through colonization in all cases present an opportunity for a sharpened focus on the dynamism of these legal orders. The post-colonial period and the demands of modernity and contemporary globalization offer further opportunities for exploration. In each and all of these phases, Menski is keen to validate his core thesis by demonstrating the complex interactions of socio-cultural forces that shape the legal regime and the extent to which, while new forces bring their own influences to bear, the [*715] past also continues to exert significant influences on the legal order. Throughout, he makes inter-temporal comparisons within the legal order, suggests comparisons between the legal order in question and the other non-Western legal cultures under study, and above all, seeks to demonstrate the ways in which the legal order in question operates to meet his claim of the phenomenon of plurality consciousness as an ineluctable attribute of a legal order.

“Hindu law,” writes Menski, “is, not as much as African law but similar to Islamic law, a family of laws rather than a single unit.” The key to understanding it as a “holistic system lies in concepts of Hindu culture, such as dharma, which are so diffuse that most analysts appear to have given up interpreting them, while they are so firmly internalised by Hindus themselves that they do not appear to warrant detailed explanation” (p.201). “It is crucial for a solid conceptual understanding of the Hindu system to distinguish at least four interlinked stages of conceptual development within ’traditional’ Hindu law itself,” he writes. “[F]rom the macrocosmic universal Order (rita) of the Vedic system to the microcosmic self-controlled order (dharma) of classical Hindu law proper, and the deterrence-based stage of punishment (danda) and more or less formal dispute processing (vyavahara) in the late classical and postclassical system” (p.200). “Since both Hindu law and religion have always been extremely complex constructs, it has been quite appropriate to speak of ‘unity in diversity’. . . . Hindu law has always been a living socio-legal system marked by much dialectic dynamism, forever evading codification and, thus, the control of powerful men who might have wanted to dictate legal rules to all others. Had Austin been able to work with Sanskrit sources, and to acquire an internal perspective of Hindu law, he would undoubtedly have had to give up the theory that made him famous” (p.202).

He tries to fill the knowledge gap of the non-Hindu by extended discussions of Hindu culture, Hindu world views, religious beliefs and political structures. How satisfactorily the reader finds the filling of the gap will depend in no small part on the scope of the reader’s prior knowledge. For an interested but minimally knowledgeable reader like this reviewer, the going can be tedious and the sifting dense. Menski is clearly a scholar with interest in and seemingly profound understanding of the laws of South Asian societies, and his discussion of Hindu law appears to be as much about engaging with other scholars familiar with that terrain as it is to inform the lay reader or student. Happily, for most of the book, the abstruseness that one encounters in the discussion of core concepts in Hinduism is the exception rather than the rule. Indeed, Menski’s concurrent adoption of a chronological approach to the presentation of the intersections of law and society helps generate some lucidity even in his discussion of Hindu law, as it certainly does with regard to Islamic law and the other legal systems covered in his text. [*716]

Dating Hindu law to the Vedic era (c. 1500-500 B.C.), Menski contends that it had in these origins “both religious and secular natural law characteristics.” This was followed by “classical Hindu law” which flourished between 500 b.c.-200 a.d. The core difference between the two periods, it would appear, was that concepts of social order and legal norms grounded on rituals of sacrifice and action under the Vedic system gave way to conceptions of order derived from dharma: “correct or ’good’ action of all individuals.” “Hinduism now became a plurifocal way of life, and Hindu law experienced socio-legal reconfiguration as every individual was now held to account, giving rise to a shift towards socio-legal approaches rather than reliance on Nature” (p.209). There followed a “post-classical period” exemplified by a shift in emphasis from the internal goodness of the individual to the shaping of norms for resolution of conflict among individuals, notably those relating to property and succession. “In a sense, there is still no official Hindu law, if by that we mean legal rules made by the state. There is only a different type of literature on dharma” (p.237).

The post-classical era is followed by “medieval Hindu law,” and from here, the material becomes a lot more accessible, and I think for any comparativist, a good deal more fascinating. Hindu society becomes subject to Muslim rule, and a culture (or group of cultures) that has cohered more or less continuously for almost three millennia has to confront an identifiably different world view that is no less coherently organized. How Hindu law maintains its distinctiveness while accommodating or being forced to accommodate Muslim rule is worth reading. It is of course a scenario that was, in that it had again to confront the arrival of European adventurers, merchants, soldiers and viceroys. Indeed, this is the scenario that unifies all four legal systems extensively discussed in this book.

According to Menski, “far from being forced to exist on terms dictated by the now dominant Muslim law, Hindu law became itself part of the official law, but largely on its own terms, so the result was an emerging pattern of strong legal pluralism” (p.237). The Muslim rulers of Hindu societies, he says, “learnt fast that it would be impossible to impose Islamic law on all subjects,” the vast majority of whom were rural. Muslim rulers applied Islamic law to themselves and co-religionists, but otherwise took a “detached, secular approach towards their subjects of different faiths, letting them carry on their own affairs within their own communities” (pp.237-238).

The cohabitation of Hindu law and the English legal order in India was not quite so laissez-faire, but neither is it an unremitting history of conflict and confrontation. In reality, the details, as lucidly related by Menski, reveal a complex and dynamic orchestration or legal ordering among ideas and institutions familiar to the ruler, and institutions and practices familiar and necessary to the ruled. As early as 1772, for example, the British Governor of Bengal ordered that “in all suits regarding inheritance, marriage, caste and other religious usages and its [*717] institutions, the laws of the Koran with respect to the Mahomedans, and those of the Shasters with respect to the Gentoos, shall be invariably adhered to” (p.241). On its face, the order appears unexceptional; but why limit the application of indigenous rules and norms to this class of suits? Would it matter whether the traditional method for resolving disagreements about “inheritance” necessarily involved “suits?” And would a disagreement between two brothers about ownership of property or the rights of a related widow be governed by this order? Finding the place of Hindu law within India’s colonization was thus not simply a matter of what colonial rulers proclaimed, but also of what Indians and colonial administrators did. Even if the colonial ruler is willing to accommodate through the text of laws indigenous practices, it does not necessarily follow that actual institutional practices achieved the asserted purpose. But in many ways, the 1772 declaration was indicative of the themes of accommodation between indigenous and colonial laws that were to follow. Areas of personal and family life, however imprecise the definition, were often regulated by indigenous legal systems, while areas of substantial commerce and public or criminal law were often within the bailiwick of colonial legal order. Nor was Indian colonial law tantamount to English statutory (or even common) law. And this raised yet another area of conflict. Even if the relevant legal order was reasonably predictable in matters affecting transactions among the “natives,” which legal order regulated dealings that crossed religious or ethnic groups? The answer to this question, even if officially decreed, was not necessarily stable across time and space. Often, the answer, far from being officially decreed, was negotiated among the participants themselves, a reality that is in keeping with Menski’s claim of law as necessarily “plurality-conscious.”

A perceptive question would be to ask about what happened to this complex amalgam of legal regimes following the end of colonial rule. After all, India (as much, and indeed given its bloody path to independence, more than most other decolonized societies of Asia and Africa), embraced the notion that its post-independent identity as a nation state had to be embodied substantively and formally in a Constitution that explicitly guaranteed equal citizenship to all. Menski does not contend that a formal dual or tripartite legal order survives decolonization. What he does argue is that notwithstanding this guarantee, Hindu norms permeate the ways in which post-independent Indian laws, like its political institutions and social practices, have been shaped and interpreted. The central argument here, he says,

is that, over the past few decades, the indigenous nature of modern India’s Constitution has gradually become more obvious and has visibly and invisibly been reinforced. . . . Equality has not been achieved, poverty has not been abolished, justice is still not safely guaranteed; the state itself (in its various manifestations) continues to be the biggest violator of law. After initial euphoric assessments, a hard look at reality during the 1970s showed that the entire legal system faced a fundamental crisis. This culminated in Indira Gandhi’s Emergency from 1975 to [*718] 1977, a momentous and cathartic phase of Indian national development, during which Indian constitutional law was dramatically restructured, occasionally by explicit reference to Hindu concepts, which one can interpret as injections of Hindu-inspired self-cleansing mechanisms. (p.260).

He thus attributes the vigor of current Indian public litigation around issues of health, socio-economic justice and the environment, not as a “me too” adoption by Indian lawyers of practices pioneered in the West, but the practice of norms derived from Hindu (or at least local Indian) culture (p.268). (Perhaps not entirely by accident, the distinction between being Hindu and being Indian here becomes blurred in Menski’s exegesis.) “Using such borrowing from the legal past in the garb of modern constitutional rhetoric, it has become possible for modern Indian constitutional law, within a framework of outward secularism, to develop a new culture-specific style of plurality-focused legal positivism influenced by Hindu principles,” he assures the reader (p.270).

The interrogation of Hindu law just illustrated is carried out with equal vigor to the legal systems embodied in Islamic law, African laws and Chinese law. In their particulars, these systems differ, of course, from Hindu laws; but many of the same themes as those canvassed above recur in Menski’s treatment of them. Their origins clearly are different. Islamic law was based explicitly on religion, while the grounding of Hindu, African and Chinese laws in religion can be fiercely debated. And one can question whether in fact each of these legal systems is properly classifiable as a coherent unitary legal systems; an issue that Menski confronts head-on, especially in the context of African laws. Moreover, to be sure, the emphasis of issues among these legal systems varies. African laws, for example, in their grounding in oral tradition (rather than written texts) and concepts of the proper balance of relationships between human beings and their natural environment, more closely approximate Vedic Hindu law than do Islamic and Chinese laws. Chinese and Islamic legal systems appear to have had more formalized institutions for ascertaining and interpreting the law as text, but they differed significantly in the extent to which the text was seen or presented as divinely ordained. All had to negotiate involuntarily their survival in encounters with the European political order and legal systems. Pakistan as an explicitly Islamic state, no less than India as a multi-confessional “secular” state had to confront the tensions between the postmodern constitutional guarantee of equal citizenship to all members of the polity and the professed grounding of the polity in religious norms. Even within an ostensibly same legal system, those responses could vary dramatically. Thus, while both Turkish and Pakistani societies may have rooted their indigenous legal orders in Islam, their responses to modernity, as exemplified in their encounters with Europe, were anything but identical. Meanwhile, despite the vastly different economic, religious and cultural circumstances of Northern Nigeria and India, both societies related in intelligibly similar terms to the process of colonization by “indirect rule.” And there can hardly be [*719] any doubt that in all four cases, the responses to interactions with Europe were influenced directly by their past experiences as Islamic societies. What explains the heterogeneity of these responses? The answers surely must be complex. It is in part a pleasure of Menski’s book that one can review these responses, query and test his interpretations against one’s own, and feel enriched at the end of the process.

It should by now be evident that this is not a “Comparative Law” text in the standard form. It is not a more or less dispassionate or even discriminating compilation of primary and secondary sources intended to provide the reader with the basis for making independent, if directionally focused judgment. Rather, this is a sustained argument for a particular perspective about jurisprudence carried on by a well-read scholar across legal systems. While each of the last four chapters can be read independently, reading them as a unit, and against the backdrop of the first three chapters immeasurably enhances their intellectual worth.

For whom then is this text intended? Menski is clear that, at least for this second edition, his aim goes beyond the marginal student of “comparative legal education” to include those of mainstream comparative law. And, I would include Comparative Jurisprudence. It is, he says, an alternative reaction to the dominant approach in legal education in the West of viewing globalization as calling for the standardization and uniformization of law across cultures, and for doing so on Eurocentric terms. At the time of the first edition in 2000, his project must have appeared quixotic. It is, I think, a fitting testimonial to the correctness of his core premise of the amazing capacity for dynamic adaptation in and survival of legal regimes, regardless of the seeming odds measured in material power and wealth, that events on the ground today are more likely to support the prescience of his approach. Teachers who are genuinely interested in arming their students with effective long-term tools with which to deal in a heterogeneous world, as it in fact is, has been, and will likely remain, should find this book very helpful.

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© Copyright 2007 by the author, Maxwell O. Chibundu.

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CALCULATING PROMISES: THE EMERGENCE OF MODERN AMERICAN CONTRACT DOCTRINE

by Roy Kreitner. Palo Alto: Stanford University Press, 2007. 256pp. Cloth. $55.00. ISBN: 9780804753982.

Reviewed by Edward J. Balleisen, Department of History, Duke University. Email: eballeis [at] duke.edu.

pp.705-712

Roy Kreitner, an Israeli legal scholar who pursued his post-secondary education primarily in the United States, has crafted a provocative reassessment of American legal discourse about contract. Rooted in the interpretive predispositions of Critical Legal Studies, Kreitner’s book mixes historical analysis and sustained engagement with contemporary legal theory, exploring what he terms “the metaphysics of contract” (p.226) – the way in which the often unacknowledged premises of modern legal thought confine interpretive options to legal scholars, lawyers, and judges alike.

Kreitner has written this monograph with an audience of legal academics mostly in mind, first and foremost contract specialists, but also legal historians who study doctrinal evolution and transformations in legal ideology. The book assumes substantial knowledge about the basic workings of the common law, the structure of legal thinking about contracts over the past century and a half, and the details of assorted contract doctrines. As a result, interested readers who are not already deeply familiar with the concept of promissory estoppel or the parole evidence rule should keep a copy of Black’s Law Dictionary close at hand. Political scientists and historians who nonetheless plunge into Kreitner’s lucid prose will encounter an intriguing argument about the relationship between often fairly abstruse controversies over contract law and broader understandings of modern individualism and economic culture.

For Kreitner, contemporary debates about contract law have almost universally presupposed a flawed historical narrative that has placed legal thinkers from both left and right in an unhelpful ideological straitjacket. That narrative, which he portrays as being communicated through almost all first-year contracts classes in the nation’s law schools, begins with two key assumptions: that contract law in the Anglo-American tradition has always been about enforcing promises between acquisitive economic actors seeking to further their pecuniary standing; and that the central analytical issues concerning contracts has always been identifying which promises deserve legal protection, and then specifying the most efficient means of enforcing those promises in the face of contractual breach. The dominant historical account further maintains that before the early twentieth century, courts provided very little paternalistic monitoring of contractual relationships, only seeking to prevent instances of outright fraud or extreme coercion. Finally, it argues that more substantial judicial policing of contractual obligations has only come with the emergence of the modern [*706] regulatory state, primarily through statutory reforms and the adoption of the Uniform Commercial Code.

This story about contract law, Kreitner insists, is riddled with misconceptions. Before the late nineteenth-century, contract law was not simply a terrain in which the state enforced private ordering by duly consenting, wealth-maximizing economic actors. Instead, the legal system imposed a varied array of standard obligations on those individuals who entered into any of several enduring status-inflected relationships, such as those between principals and agents, masters and servants, landlords and tenants, or bailors and bailees. The now dominant view of contract as limited to enforceable promises created in the course of commercial activity by autonomous economic actors who meet on a legal plane of equality, Kreitner shows, emerged only in the late nineteenth and early twentieth centuries. In the midst of that era’s rapid industrialization, scholars such as Christopher Langdell and Joseph Henry Beale fashioned the legal theories about contract that dovetailed with the then influential ethos of social Darwinism. Equally important, both before and after this reformulated legal theory of contract, and in advance of the twentieth-century statutory reforms that offered consumers new contractual protections, courts frequently regulated commercial behavior through the interpretation of contracts, often on the basis of inherently vague principles such as “intent” or “good faith.”

Kreitner develops his historical critique partly by considering fundamental shifts within canonical treatises on contract law. The much greater part of his analysis, however, proceeds by considering not the core doctrines of contract according to the now dominant paradigm, such as the nature and evidentiary basis of consideration, but rather three crucial issues that raise fundamental questions about contract’s conceptual boundaries. These include: the extent to which American courts enforced promises to extend gifts; the legal treatment of contracts involving wagers, such as the buying and selling of commodities futures and the assignment of life insurance policies; and the judicial response to incomplete contractual performance. Kreitner pays particularly close attention to developments in these areas between 1880 and 1920, the period he persuasively identifies as the crucible of the newer portrayals of contract law as centrally concerning intentional promises made in the course of business.

In each of these three doctrinal areas, Kreitner identifies thorny problems that bedeviled judges for decades, leading in many cases to substantial judicial regulation of contractual relationships, and in general to a thicket of conflicting precedents. Appellate courts frequently refused to give legal effect to promises of gifts by donors, even when those promises were accompanied by clear evidence of actual delivery of property, although they also regularly upheld such gifts. Judges similarly proved perfectly willing to void what they saw as “gambling” contracts as contrary to public policy, though again, the case reports contain plenty of cases that upheld futures trades or policy [*707] assignments as perfectly legitimate mechanisms of dealing with economic risk, with the latter cases becoming more common with time. And in instances where plaintiffs or defendants alleged injustice in the performance of an incomplete contract, the judiciary regularly stepped in to impose inevitably discretionary standards of reasonableness or “good faith” on the behavior of the parties.

The impetus for such judicial intervention sometimes reflected political ideology, as when judges explicitly condemned commodities speculation on the grounds that it violated religious precepts and threatened the values of hard work and productivity which underpinned the American economy. In many instances, judges framed such motivations in terms of a paternalistic concern for safeguarding the economic morality that sustained public confidence in capitalist markets. Thus in the realm of disputes over contractual performance, both large corporations and small business owners frequently were able to persuade courts to compel contractual obligations even though agreements did not cover particular contingencies, such as partial completion of a construction project, or a clear standard of adequate provision by a public utility. In such cases, judges readily articulated a desire to protect the marketplace from “opportunistic behavior or sharp dealing” (p.215).

Kreitner’s evidence further indicates that assumptions about social status could powerfully shape judicial inclinations to interfere with or otherwise regulate contractual arrangements, belying the pervasive assumption among legal scholars that modern American judges ignored such considerations as they sought to vindicate freedom of contract. The recipients of deathbed gifts, for example, seem to have been far more likely to keep them in the face of legal challenges from disgruntled heirs if they fit societal expectations of propriety – if the gift, in the words of one late nineteenth-century New York appellate judge, was a “natural and reasonable one” (p.65), between individuals whose position, relationship, and behavior accorded with prevailing social norms. African-American or immigrant donees apparently were much more likely to face antagonistic judicial rulings than native-born, middle-class whites, usually through especially strict evaluations of the evidentiary requirements to demonstrate “delivery” of the gift, even when recipients could show that a bequest followed years of dutiful service or friendship. Similarly, “reputable brokers” were much more likely to have courts uphold future contracts than were brokers with less social standing, such as immigrant Jews. In short, despite all of the insistence by legal scholars that American law had forsaken the vestiges of “status” and embraced the capitalist logic of individualistic covenant, implicit assumptions about social hierarchies continued to shape judicial treatment of contract. The right kind of litigant, whose behavior fit comfortably into middle class categories of propriety, stood a much better chance of having an overwhelmingly white, conservative, native-born judiciary confirm a gift, or view a policy assignment as having been made in good faith. Kreitner does not quite frame his assessment of judicial [*708] decision-making this way, but his evidence fits this explanatory model developed by Lawrence Friedman, most explicitly in his AMERICAN LAW IN THE TWENTIETH CENTURY (2002).

Kreitner could have developed these points more effectively if he had systematically analyzed the geographic distribution of his cases and the socio-economic and racial/ethnic backgrounds of the litigants in those controversies. One gets the sense, for example, that the judicial inclination to regulate contractual behavior was greatest in areas of the country most prone to economic populism and animus toward non-whites and immigrants from Eastern and Southern Europe, though one would need at least some rough quantitative analysis of his full set of data to be more confident about that inference. A further absolutely central question concerns the outcome of contract-related disagreements at the bottom of the dispute pyramid, either at the level of trial courts or through out-of-court negotiations between interested parties. Kreitner might also have noted the parallels between his central historical claims and the interpretations offered by Friedman in his 1965 monograph, CONTRACT LAW IN AMERICA, which tells in many ways an analogous story about decision-making by appellate courts. Nonetheless, the book amply establishes that contract case law has long been chock full of exceptions to the dominant historical narrative offered by the legal academy.

As much as Kreitner wishes to demonstrate the extent to which “the case law is richer than the theory” (p.3), he puts even greater emphasis on what he sees as the cultural and ideological consequences of that dominant theoretical and historical narrative about contract. This narrative, he argues, has become, in the parlance of contemporary social theory, “naturalized” – it has at once encapsulated and generated a profound set of assumptions about how the world works, impoverishing ongoing debate about the appropriate role of the state in overseeing economic relationships. The view of contract as enforceable promises between formally equal, autonomous, and coldly rational commercial actors, he insists, has buttressed the modern conception of individualism, which views humans centrally as “calculating” and “calcuable” (p.225). In similar fashion, that view contributed greatly to prevailing understandings of the “market” as constituted most importantly through private ordering by such acquisitive, individualistic protagonists.

At the same time, Kreitner maintains, the judicial distinction between illicit gambling and commendable efforts to guard against foreseeable risks, however unevenly applied, helped Americans around the turn of the twentieth century “come to terms with the fears and uncertainties that accompanied the transition into modernity” (p.11). Judicial blasts at gambling that only masqueraded as risk management gave sanctioned efforts at speculation or hedging a more respectable patina. And judicial explanations of legitimate economic strategies for taming risk allowed “people . . . to envision themselves, or at least recognize themselves, as (interchangeable) parts [*709] [in an overall economic] system, subject to its (economic) laws” (p.125). In other words, developments in contract law “helped Americans [to] stop worrying and learn to love risk” (p.159).

One can imagine “weak” and “strong” versions of this complicated, overarching argument. The former would stress the impact of legal thinking about contract on the worldviews of most legal academics, judges, and lawyers. The latter would extend that impact to the worldviews of American elites more generally, or even the broader society. At various junctures, Kreitner makes clear that he wishes to put forward the relatively strong version, that he views the premises of legal theory as “govern[ing] the way Americans think about contract even today” (p.228). Toward this end, he explicitly draws on legal historian Robert Gordon’s concept of law as often constitutive of social reality, suggesting that “lawyers’ main importance derives from the their contribution to the forms and categories of public discourse” (p.158). In essence, Kreitner implies that contract doctrine has powerfully helped to shape the ideological frameworks that allow ordinary Americans make sense of their world, including, most importantly, their sense that economic individualism still characterizes the workings of the American economy, and their instinct that governmental regulation of private contractual arrangements represents not only a problematic crimping of economic freedom, but also a threat to long-term productivity and efficiency.

Kreitner’s data, however, almost never extends beyond the confines of “the law box,” as Robert Gordon (1975) has separately described the institutional and ideological realm of the legal fraternity. CALCULATING PROMISES is on its most solid ground when it suggests that within that realm, the prevailing legal theory about contract has constrained the consideration of conceptual possibilities, perhaps even with hegemonic implications. By fixating on issues related to the formation of contracts, Kreitner observes, legal scholars from both left and right have missed the opportunity to think through difficult issues concerning societal interests in shaping the content of contractual terms and performance.

The book, however, offers essentially no evidence about how Americans beyond the courtroom or law school have viewed such questions as the nature of individualism or the appropriate role of government in validating or overseeing contractual relationships. Nor does Kreitner furnish any indication of how the viewpoints of legal theorists ostensibly diffused into wider currents of cultural and political discourse. The monograph is similarly silent on the question of how such diffusion, to the extent that it existed, would compare in influence to other likely sources of prevailing ideas about economic individualism and the appropriate regulatory role of the state, such as the teaching of introductory economics in colleges and universities, or the political discourse of twentieth-century conservatism, or the popular literature on business management. [*710]

Indeed, Kreitner’s own discussion of appellate case law suggests that we should be wary about such diffusion from legal sources to the broader public. As he readily concedes, since the 1870s, a great many Americans have displayed understandings of contractual obligations and property rights that markedly diverge from the emerging and eventually dominant depiction of contract as enforceable promises, rooted exclusively in the consent of autonomous individuals, and sealed by unambiguous evidence of financial consideration, however great or small. Throughout the country, would-be gift givers who confronted the possibility or likelihood of death continued to assume that they could provide for the contingent transfer of their assets to whomever they saw fit, through relatively informal mechanisms – an assumption that invited and often prompted legal challenge. By the same token, the makers of all sorts of commercial contracts, including both small business-owners and large corporations, neglected to spell out contractual terms for handling a variety of contingencies in contractual performance, and then looked to the courts to protect their interests when those contingencies occurred. The assumptions and perspectives that law professors confidently articulated in their first-year contracts courses did not necessarily percolate through to the masses, or even the members of the business community. As Kreitner himself eventually observes, for all the “extensive academic and judicial energies” devoted to clarifying the legal framework of contract, “the results do not seem to affect the behavior of contracting parties” (p.224).

If Kreitner’s suggested chain of cultural diffusion from “law” to “society” occurred anywhere, one might expect that would have been within the burgeoning realm of American big business. As he notes, if any contracting entity actually approaches the “model of contractual man” and its associated “calculating attitude” (p.233) presupposed by prevailing American legal theory, it is the large-scale corporation. From their inception, corporations have employed high-priced lawyers who kept close tabs on legal developments, and who wielded considerable influence over those developments, as well as the internal culture of their firms. Within the last two generations, moreover, one can point to numerous contexts in which corporate behavior closely accords with these assumptions about economic calculation – not least in the domains of labor and consumer relations. And yet, the work of sociologically inclined legal scholars such as Stewart McCaulay (1963) and Russell Weintraub (1992) suggests the need for caution in drawing such conclusions. Their research indicates that business arrangements within particular American supply chains have often maintained an informal character at odds with Kreitner’s expectations, reflecting personal relationships forged between sales and purchasing managers. Especially in contexts in which firms have enjoyed and anticipate long-term relationships, commercial custom has emphasized flexible adjustments in the face of shifting economic circumstances, [*711] rather than efforts to compel strict enforcement of contractual terms through the legal system.

In the end, CALCULATING PROMISES constitutes an incomplete performance of truly ambitious scholarly undertakings, contributing a great deal to our historical understanding of American contract law, but not quite as much as this fine book pledges to deliver. Kreitner incisively reconceptualizes broad areas of contract case law; he persuasively argues that prevailing legal ideas about contract were much more a revolutionary creation of late nineteenth-century legal scholars responding to the dynamics of industrialization than they were a more careful working out of ancient common law principles; he establishes that the case law at no point conformed neatly to the generalizations and over-arching pronouncements of preeminent contract scholars. As a result, the monograph effectively challenges the confident pieties structuring so much contemporary legal discourse about contracts, especially in the nation’s law schools and law reviews. Kreitner’s characterization of the most far-reaching cultural and political ramifications of American contract theory, however, represents more of an enticing hypothesis than a demonstrated argument.

Of course, therein lies a host of potentially exciting research agendas, most of which would require more sustained consideration of developments outside “the law box.” How might we track and explain the shifting contours of popular legal consciousness, especially concerning the uses and limits of contract, or the most sensible ways of conceptualizing “the market?” Have “economies of gift exchange” played a bigger role within modern commercial culture than legal theorists or anthropologists have recognized – as in mutualistic extensions of credit or the sharing of investment and contracting opportunities? To what extent have the evolving organizational cultures of the American corporation or of the country’s small businesses actually imbibed the legal community’s dominant theory of contractual obligations, and its associated view of economic rationality? How, if at all, has the increasing salience of contractual relationships across international borders complicated contractual behavior and more abstract legal theorizing? And should we view the now prevalent theory of contractual obligations as more cause or effect? In other words, was the classical view of contract primarily the producer of widely shared notions of “common sense,” as Kreitner insists, perhaps through indirect influence on the worldview of the legion of American politicians trained in law schools? Or was that theory rather itself the product of wider currents of thought outside the law?

Most importantly, at least for Kreitner, and probably for his primary intended audience, how might today’s legal scholars and political theorists think more productively about the world of contract, working through the appropriate role of courts in foreclosing some contractual options, or imposing some general contractual obligations, in either case on the basis of enduring societal values and commitments? [*712] Despite the limitations of CALCULATING PROMISES, then, Roy Kreitner has raised some absolutely central questions about the relationship between law and modern American capitalism, inviting a wide range of additional inquiries across the social sciences.

REFERENCES:
Friedman, Lawrence M. 2002. AMERICAN LAW IN THE TWENTIETH CENTURY. New Haven: Yale University Press.

Friedman, Lawrence M. 1965. CONTRACT LAW IN AMERICA. Madison: University of Wisconsin Press.

Gordon, Robert W. 1975. “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography.” 10 LAW AND SOCIETY REVIEW 9-55.

McCaulay, Stewart. 1963. “Non-Contractual Relations in Business: A Preliminary Study.” 28 AMERICAN SOCIOLOGICAL REVIEW 55-67.

Weintraub, Russell J. 1992. “A Survey of Contract Practice and Policy.” 1992 WISCONSIN LAW REVIEW 1-60.

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© Copyright 2007 by the author, Edward J. Balleisen.

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ANSWERING THE CALL OF THE COURT: HOW JUSTICES AND LITIGANTS SET THE SUPREME COURT AGENDA

by Vanessa A. Baird. Charlottesville, VA: University of Virginia Press. 2007. 240pp. Cloth $45.00. ISBN: 9780813925820.

Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email: paul.chen [at] wwu.edu.

pp.701-704

Vanessa Baird’s ANSWERING THE CALL OF THE COURT, “the first scholarly attempt to connect litigants’ strategies with the aggregate policy trends on the U.S. Supreme Court’s agenda” (p.3), has two objectives. The first is to show systematically and empirically that the policy preferences of Supreme Court justices have an impact on the cases that appear on the Court’s agenda. Baird’s contribution in this area is in identifying a consistent four- or five-year lag from the time when justices indicate a policy priority (as measured by various indicators) to the time when cases litigated by “policy entrepreneurs” in response to those indicators appear on the Court’s agenda. This periodicity is generalizable across eleven policy areas that she examines in Chapter 4.

The book’s other objective is theoretical: Baird argues that, but for the strategic behavior of policy entrepreneurs who invest their resources to bring cases in response to the indications of justices’ policy preferences, the “right cases” would not appear on the Court’s agenda, thus limiting the Court’s ability to engage in comprehensive policy making. This “symbiotic relationship” between justices and policy entrepreneurs is a key component of the agenda-setting process.

The linchpin in the causal mechanism, and Baird’s main theoretical contribution, is how the strategic behavior of policy entrepreneurs translates the policy preferences of the justices into the Court’s agenda and into public policy. The process is as follows: First, justices engage in behavior which is interpreted by policy entrepreneurs as indicating the justices’ policy priorities (that is, in what policy areas the justices are interested). Next, policy entrepreneurs engage in strategic behavior by relying on their perceptions of the justices’ policy priorities, which gives them information, albeit limited, to use when investing their resources to sponsor cases they believe are more likely to be reviewed by the Court. Finally, justices on the Court are more likely to select those cases brought by policy entrepreneurs for review, thereby increasing the Court’s policy-making capacity. What Baird wants readers to get out of her book is that “the symbiotic relationship helps strengthen both the justices and the litigants’ power over political and legal outcomes” (p.42).

In Chapters 1 and 2, Baird situates her research in the agenda-setting literature, and reviews previous studies on which her theory is based. Chapter 3 recounts the story of successful litigation brought by the Mexican American Legal Defense Fund to illustrate “how previous cases from the Supreme Court help litigants structure their legal arguments” (p.81). In Chapter 4, Baird shows systematically [*702] that across eleven different policy areas, there is a consistent four- or five-year lag in the Court’s agenda cycle, from the time that justices indicate their interest in a particular policy area to when cases prompted by those indications show up on the Court’s agenda. She admits the oddity of such a regular pattern: “Since there are so many different kinds of information and so many kinds of responses, it seems odd to think that the combination of so much anarchy could lead to measurable systematic patterns on the Supreme Court’s agenda. But this is exactly what I am suggesting” (p.9).

In Chapter 5, Baird supports her argument that policy entrepreneurs bring more cases and of higher quality to the Court’s agenda in response to justices’ indications of which policy areas they see as important by using several “corroborative hypotheses.” She shows that cases sponsored by policy entrepreneurs have proportionally more amicus curiae briefs filed with the Supreme Court, and proportionally more separate opinions written at both the Supreme Court and Court of Appeals levels. These cases are also decided by narrower majorities (i.e., 5-4, 6-3). These findings, she argues, show that these cases “are more politically important in the eyes of both justices and interest groups” (p.13).

In Chapter 6, Baird explains the median justice theory, drawing an illustration from abortion litigation. She then shows how the response of litigants to the justices’ policy priorities leads to a gradual increase in closely divided decisions, peaking in the fourth year. The narrower margin is consistent with the median justice theory, while their gradual appearance leading up to the fourth year is consistent with her findings discussed in Chapter 4.

Previous studies, primarily case studies and other qualitative analyses, have shown that Supreme Court justices do provide information via signals to various audiences, including what issues they would like to review in future cases (e.g., Perry 1991; Pacelle 1991; Hausegger and Baum 1999). Baird provides a systematic empirical basis for the influence of the justices’ policy preferences on the Supreme Court’s agenda, and attempts to specify the causal mechanism by which the justices’ policy preferences are converted into cases that appear on the Court’s agenda. She uses both statistical and qualitative analyses to persuade her readers of the critical role that policy entrepreneurs play in the agenda-setting process.

Although her statistical analysis cannot tell what types of litigants, if any in particular, are primarily responsible for causing the aggregate changes in the Court’s agenda, based on earlier studies that suggest that “interest groups are at the center of the process,” Baird concludes “it is likely that interest groups drive much of the change in litigation patterns” (p.182). She is careful, however, to qualify that, recognizing that even absent any interest group litigation, cases would still appear before the Court. Nevertheless, she maintains that “the patterns of influence that the Supreme Court has wielded over public policies appear to have depended significantly on cases that have been supported by policy entrepreneurs [*703] reacting to those previous decisions” (p.183).

An inherent limitation in this analysis is that it may be time-bound. Her data come from the U.S. Supreme Court Judicial Database, covering all cases from 1953 to 2000. There is reason to believe that her theoretical argument might not apply before 1953, when interest group litigation was but a fraction of what it was to become after the “rights revolution” starting in the second half of the last century (Epp 1998). But if the four- or five-year lag in the Court’s policy-making cycles did persist before 1953, then the cause must be something other than interest groups. Even for post-1953 cases, Baird recognizes that “without direct evidence that strategic responses to these signals are responsible for the agenda changes, it is difficult” to support the claim that the perceptions of policy entrepreneurs drive their litigation strategies, which then influence the Court’s agenda (p.176).

Her empirical finding of the four- or five-year lag in the Court’s policy-making cycle, which “has never before been suggested or documented empirically” (p.99), begs for further study. The obvious question is: why? She admits that there is no reason for this regularity, considering the innumerable factors that affect a case’s getting all the way to the Supreme Court. Yet the periodicity is consistent across many policy areas.

Baird’s research arose out of her interest in the “judicialization of politics” phenomenon identified by Tate and Vallinder (1995) and others who asked: In light of courts becoming increasingly involved in resolving political issues, what causes these increases in judicial power (pp.3, 182)? Her theoretical argument attempts to fill in one piece of that very large and important puzzle. Throughout the book she carefully qualifies her conclusions, and recognizes the limitations of her analysis. As she humbly states, her book is “the beginning – not the end – of the story” (p.10).

Baird provides a systematic empirical basis for future research, as well as a compelling theoretical account of the influence that the justices have on the Supreme Court’s agenda, via the strategic behavior of policy entrepreneurs. Her theoretical argument is not about any particular justices or any particular policy entrepreneurs, but seeks to explain “aggregate policy outputs rather than . . . specific actors or cases” (pp.3, 41). She concedes that there are many “micro-processes left unanswered by the aggregate analysis” (p.141). Now that she has laid this groundwork, I believe more interesting studies focusing on individual groups and cases within specific legal and political contexts will give us a better understanding of the Court’s agenda-setting process.

REFERENCES:
Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press. [*704]

Hausegger, Lori, and Lawence Baum. 1999. “Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory Interpretation.” 43 AMERICAN JOURNAL OF POLITICAL SCIENCE 162-185.

Pacelle, Richard L. 1991. THE TRANSFORMATION OF THE SUPREME COURT’S AGENDA: FROM THE NEW DEAL TO THE REAGAN ADMINISTRATION. Boulder, CO: Westview Press.

Perry, H.W., Jr. 1991. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge, MA: Harvard University Press.

Tate, Neal C., and Torjbörn Vallinder. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University Press.

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© Copyright 2007 by the author, Paul Chen.

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TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS

by Eric A. Posner and Adrian Vermeule. New York: Oxford University Press, 2007. 328pp. Cloth. $29.95/£17.99. ISBN: 9780195310252.

Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov.

pp.696-700

Eric A. Posner and Adrian Vermeule state their theme clearly and crisply in the first two sentences of the Introduction: “When national emergencies strike, the executive acts, Congress acquiesces, and courts defer. When emergencies decay, judges become bolder, and soul searching begins” (p.3). Posner and Vermeule identify six periods of emergencies in American history: the Quasi-War with France accompanied by the Sedition Act; the Civil War; World Wars I and II; the early cold war; and the post-9/11 period. They cite one other possible entry: the civil unrest during the Vietnam War.

Posner and Vermeule identify two schools of thought. The first concludes that emergencies are periods of “political and constitutional failure.” Emergencies cause panic, government abuses its power, and political leaders implement “irrational policies without sufficient deliberation.” Given short shrift in these periods are the traditional constitutional values of equality before the law, democratic deliberation, due process, and political freedom. Exaggerated weight is placed on security (p.4).

They opt for a second school, one that regards emergencies as periods of “political and constitutional success.” For them, the executive branch is the only institution of government with the resources, power, and flexibility to respond to threats of national security. Civil liberties are appropriately compromised because they “interfere with effective response to the threat.” They maintain that the civil libertarian view “rests on implausible premises and is too weak to overcome the presumptive validity of executive action during emergencies” (p.5).

These themes are explored in subsequent chapters that deal with tradeoffs during emergencies (security vs. liberty), whether fear and panic cause decisionmakers to exaggerate threats and neglect civil liberties, and the degree to which the government penalizes minorities during periods of emergencies (the democratic failure theory). Other issues are dealt with, including the possible existence of a ratchet effect that permanently pushes power to the government long after an emergency has ceased. They find no such lasting effect.

Throughout the book, Posner and Vermeule remain comfortable with their position that power in emergencies is appropriately placed with the Executive. They wrote the book “to restrain other lawyers and their philosophical allies from shackling the government’s response to emergencies with intrusive judicial review and amorphous worries” about the consequences of what executive officials do in the face of [*697] threats (p.275). They criticize academic lawyers for being “reflexively hostile to executive power in matters of national security” without ever having to be responsible for governmental decisions (p.274).

That is an interesting point. If academic lawyers are insufficiently experienced and expert to judge the merits of decisions made by Presidents and executive officials in time of emergency, what qualifies Posner and Vermeule from their positions as law school professors to offer advice on matters of national security? They are aware of that issue and deal with it frequently.

First, as noted earlier, they reject the civil libertarian views as “too weak to overcome the presumptive validity of executive action during emergencies” (p.5). Why is executive power the “presumptive” position? Why start there? Why wouldn’t it be checks and balances, separation of powers, and the need to avoid concentration of power? Those are core US constitutional values, but Posner and Vermeule never explain why those values are presumptively subordinated to executive power. The framers drafted a constitution in a time of emergency and could have decided to concentrate power in the Executive. They could have embraced William Blackstone’s theory of prerogative that placed with the Executive the entire domain of external affairs. Clearly they did not.

Posner and Vermeule never review the choices made by the framers from 1776 to 1787. They do not look back to the Philadelphia Convention, the Federalist Papers, or the text of the Constitution. They do not reflect on John Jay’s warning in Federalist No. 4: “absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.” Executives engage in wars “not sanctified by justice or the voice and interests of the people.” Was Jay and the other framers only worried about “absolute monarchs” and rested easy with concentrating the war power in the President? The record is clearly No. The framers vested none of the Blackstonian prerogatives in the President. Instead, they placed them either exclusively in Congress or shared them between the Senate and the President (making treaties and appointing ambassadors).

The authors never get near this material. Their book does not treat the United States as having a unique constitution with special values, including checks and balances. They present a general thesis that seems suited to any nation: Germany, India, China, Russia, Argentina, Nigeria, and others. Occasionally they cite a Supreme Court decision, but the values wrestled with by the framers are not in the picture. It would be possible to argue that those were suitable values in the eighteenth century but not in the twenty-first century, but the authors do not do that. The US Constitution is essentially ignored as a framework. Once you do that, it is but a short step to restoring Blackstone and prerogative power. [*698]

Posner and Vermeule are aware that their warning to academic lawyers should apply to them. They say they refrain from making judgments about matters beyond their areas of competence. Thus: “We emphasize that, as lawyers, we do not have any expertise regarding optimal security policy, and so we do not try to argue for or against any particular policy” (p.6). They have “no opinion about the merits of particular security measures adopted after 9/11 . . . We hold no brief to defend the Bush administration’s choices, in general or in any particular case” (p.7). They advise judges to defer to executive decisions “though we have no view about whether these policies are correct” (p.94).

Why this level of academic modesty? As law professors, is should not have been difficult for Posner and Vermeule to decide whether detainees held at Guantánamo were, or were not, within the jurisdiction of federal courts. Did the Court’s 1950 decision in EISENTRAGER cover the circumstances at the naval base? Some elements of EISENTRAGER applied and some did not, and so held the Court in 2004 (RASUL). The authors say that the Court “very dubiously” overruled the 1950 decision in part (p.258). Why dubious? The detainees in the 1950 case had been tried and convicted; the detainees at the naval base had never been brought to trial. If Posner and Vermeule have the competence to regard the Court’s reasoning as dubious, why couldn’t they apply those same analytical skills to the administration’s reasoning in briefs and oral argument?

Any observer would concede that a number of actions by the Bush administration have been poorly conceived and analyzed. If Congress and the courts reflexively defer to every executive action, administration decisions are likely to be more abusive and conceptually deficient. The obligation “to make a case” (either in court or in public) puts pressure on administration officials to upgrade their arguments.

The authors frequently state their inability to make judgments about current and past actions. As to the detention of more than 100,000 Japanese-Americans during World War II, they “do not defend the internment order on the merits, because we lack the necessary expertise to judge, even in hindsight, whether the action was justified, all things considered” (p.113). On the other hand, they call the Court’s 1944 decision in KOREMATSU upholding the detention as “notorious,” without explaining why (p.121). They inconsistently mix neutral deference with normative criticism. Similarly, they say that President Lincoln’s suspension of habeas corpus at the start of the Civil War was “notorious” (p.141). Why? They do not explain the basis for their conclusion. Do they have the necessary expertise to make that judgment? Is it better to be agnostic on such matters? If so, why favor the concentration of power in the Executive and argue that the country is in better hands when that power is unfettered by legislative and executive constraints? On what basis is that judgment made? The values that drive in that direction are never identified. [*699]

Regarding the role of courts, Posner and Vermeule say that judges deciding constitutional claims during times of emergency “should defer to government action so long as there is any rational basis for the government’s position” (p.12). Are they, as academics, able to determine when there is and is not a rational basis? Are judges? For the latter, the answer is apparently No. Judicial review in times of emergency “cannot improve matters, because there is no reason to think that courts possessing limited information and limited expertise will choose better security policies than does the government” (p.12).

First, courts do not choose security policies. They decide that detainees have some basic rights to be heard (HAMDI), that President Truman lacked authority to seize steel mills (YOUNGSTOWN), and the President has no inherent authority to create military commissions (HAMDAN). Second, even the Bush administration conceded that they had to present “some evidence” to justify their actions in court. They did not attempt to stiff-arm the judiciary entirely. Third, there is no reason to think that the Executive has such superior information and expertise that the other branches should automatically defer.

Nowhere in the book is there any exploration of the deficiencies of presidential decisions in Korea, Vietnam, and Iraq II. Far from displaying technical mastery, the record is one of miscalculation, deceit, and incompetence. Strong words, perhaps, but what else can one say about Harry Truman’s belief that he could go north in Korea without bringing in the Chinese, that Lyndon Johnson would escalate the war in Vietnam on the basis of a second attack in the Tonkin Gulf that never happened, or that George W. Bush would make six claims of Iraqi terrorism and WMDs and have each claim patently false (the Iraq-al Qaeda link, aluminum tubes, uranium ore, drones, mobile labs, and chemical and biological weapons). Why with that record over a half-century would anyone defer to assertions of executive expertise?

Posner and Vermeule write: “Ideally, the government chooses the least costly means of defusing the threat” (p.18). No. It is often the most costly and least effective means. At times the authors admit this. Judges know that “executive action may rest on irrational assumptions, or bad motivations, or may otherwise be misguided.” Still, that knowledge “is largely useless” to judges because they “cannot sort good executive action from bad” (p.18). The Supreme Court could sort out the unconvincing argument for keeping detainees in Guantánamo outside the jurisdiction of federal courts (RASUL). It could decide that the claim of “inherent” presidential power to create military commissions did not exist (HAMDAN). The press and congressional committees could decide that the claims of Iraqi WMDs presented to the world were empty. In time of emergency, national security is weakened when all sectors of government and the public passively and uncritically accept executive actions and justifications. [*700]

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

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

JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).

RASUL v. BUSH, 542 U.S. 466 (2004).

YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER , 343 U.S. 579 (1952).

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© Copyright 2007 by the author, Louis Fisher.

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DEPORTING OUR SOULS: VALUES, MORALITY, AND IMMIGRATION POLICY

by Bill Ong Hing. New York: Cambridge University Press, 2006. 236pp. Hardback. $28.99. ISBN: 9780521864923. eBook format. $23.00. ISBN: 9780511243448.

Reviewed by Ediberto Roman, Florida International University College of Law, Miami, Florida. Email: romane [at] fiu.edu.

pp.693-695

Few issues touching upon politics, law, and public interests stir up more passionate, and at times volatile, debate than immigration reform. During the year the President and Congress attempted a complete overhaul of this country’s immigration system, there could not be a more timely project than an exhaustive examination of key components of these reform efforts, as well as other attempts to affect immigration and related laws. The thrust of Bill Ong Hing’s view in DEPORTING OUR SOULS is that instead of the vitriolic rhetoric associated with the so-called immigration invasion or crises, which often borders on hysteria, this country and its policy makers should appreciate the economic benefit of immigrant workers and find ways to accept them. Hing argues that instead of the immigration debate’s focus on labels such as “invasions” and “crises,” which lead to related unrealistic calls for mass deportations and equally unworkable criminalizing efforts, sound economic and humanistic approaches should instead lead to proposals that address both domestic market needs and opportunities for willing and productive workers. In an apparent effort to change the tenor of the debate and the focus of the dominant public narrative, Hing rejects the all-too-common nativist shaming efforts, and suggests that instead we should give both legal and illegal immigrant workers “a parade.”

DEPORTING OUR SOULS does not merely examine the history of guest-worker proposals associated with recent attempts at comprehensive reform, it traces other related efforts to change the focus and direction of our immigration system. This well-written book examines four major attempts to revamp domestic immigration policies. After first analyzing comprehensive reform efforts, in particular those relating to the guest-worker proposals, other lesser-known but equally important attempts to change immigration priorities and policies are examined. The second effort examined is the increased use of aggravated felonies as a basis for deportation and termination of the Immigration and Naturalization Act’s Section 212 discretionary relief for permanent residents convicted of serious crimes. In that chapter, Hing agues for discretion in determinations regarding deportation for aggravated felonies in order to provide for greater compassion and public responsibility for those felons with ties solely to the United States. This second restrictive effort is followed in the third chapter by an examination of the failed attempt to terminate the family unification reforms of 1965, which [*694] allowed unlimited immigration for immediate relatives of US citizens. This so-called relative category includes spouses, and minor children of citizens, as well as parents of adult citizens. Here, the author accurately notes that such efforts had serious racial overtones, particularly because they arose when “three in four immigrants are Latino or Asian.” The fourth and final reform effort examined by the book is the use or misuse of immigration policies in the name of homeland security. Hing concludes that harsh governmental efforts against immigrants in the name of security failed to make the nation safer, violated civil rights, and alienated many Americans. The last chapter is the author’s vision of reform. In it he rejects the current emphasis on limiting immigration, and calls for national efforts aimed at integrating immigrants into society and the body politic. In this chapter, Hing looks to numerous efforts by both state and local governments and their related entities geared towards integrating immigrants.

The first portion of the book, arguably its most detailed and exhaustive, is a review of the guest-worker proposals associated with comprehensive reform efforts. It traces the genesis and evolution of recent reform attempts, including President George W. Bush’s first proposals in 2004 for guest worker programs. It also examines the more liberal proposals for reform and the far more restrictive efforts led by conservatives, which included closing our borders by, among other things, building hundreds of miles of fences, enhancing border enforcement, and imposing harsher sanctions against undocumented workers and those who assist them. This portion of the book provides a useful and much needed source of reference on an issue that invariably will be of great interest to policy makers, pundits, and the public at large for years to come. Hing initially supports what he describes as “straightforward legalization plan[s],” but ultimately concludes that guest-worker/legalization proposals provide acceptable compromises for both the US market and undocumented workers. This measured and arguably moderate position was somewhat surprising to this reader, given Hing’s previous progressive writings on race and immigration. Despite this interesting, though surprising, diplomatic solution to a significant component of the immigration debate – the economic realities on both sides of the border – Hing persuasively supports guest-worker programs.

Following the examination of recent guest-worker proposals, the book slightly shifts focus by examining other reform efforts. While related, interesting, and informative, these subsequent chapters leave the reader feeling a little lost, at least for a period of time, in part because the introductory sections fail to provide a sufficient overview of the books’ focus, and the chapters themselves do not transition seamlessly. This structure may leave a reader feeling as if he or she is examining four distinct articles or essays. Though perhaps viewed as simplistic by some, a detailed outline or more of a roadmap that draws parallels between [*695] the chapters would have been useful, given the complex and detailed nature of the four reform efforts examined. Notwithstanding this minor hurdle, the four reforms addressed in the book are fascinating, particularly for students and scholars beginning to examine the role that nationality, race, and class play in this country’s ideas about and policies towards membership and inclusion. Of particular interest to this reader was how deftly HIng notes the repeated and relatively recent reform efforts and how they often became of considerable interest when racial minority groups began to take advantage of INA entry and preferences provisions, such as the family unification policies. Unlike Hing’s previous book (2004), which openly focused on race, this book is arguably equally centered on racial and class themes, although more subtly. This approach may make the book far more acceptable to a wider audience.

Another interesting aspect of the book is its use of sources and references. Whereas the first and fourth chapters, focusing on guest-worker and homeland security reform proposals respectively, provide detailed accounts of various political players in the debate and references their stated positions, the second and third chapters come across as far more personal in that they provides individual case studies. This occurs in both the criminalization reform chapter and to a lesser extent in the family unification chapter. Both approaches make their case, though the first and fourth chapters may become more useful as reference sources for other writers.

Overall, this book is the definitive reference, up to its date of publication of course, for those examining recent reform efforts associated with guest-worker programs. More importantly, it is a broad and provocative examination of recent reform efforts and how they seem to follow a trend of attempting to exclude or at least limit those seeking entry, who do not appear to fit what many Americans believe reflect this country’s ethnic identity and culture. Professor Hing once again presents a timely, well-researched, and well-written expose on this country’s efforts to maintain a certain national character. His ultimate call for a policy of humanity, although to some degree idealistic, perhaps will be the basis for sound and rational policy in the future. Hing sums up his view eloquently in the book’s last paragraph, when he observes “[w]e are in this together. Let us welcome the migrant worker – documented or undocumented – into membership because we have recruited him here and benefited from her labor.”

REFERENCE:
Hing, Bill Ong. 2004. DEFINING AMERICA THROUGH IMMIGRATION POLICY. Philadelphia: Temple University Press.

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© Copyright 2007 by the author, Ediberto Roman.

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THE BATTLE OVER SCHOOL PRAYER: HOW ENGEL v. VITALE CHANGED AMERICA

by Bruce J. Dierenfield. Lawrence, Kansas: University Press of Kansas, 2007. 240pp. Cloth. $35.00. ISBN: 9780700615254. Paper. $15.95. ISBN: 9780700615261.

Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania. Email: richard.glenn [at] millersville.edu.

pp.689-692

Following WORCESTER v. GEORGIA (1832), in which the U.S. Supreme Court under the leadership of Chief Justice John Marshall declared that the Cherokee Nation was a sovereign political community, President Andrew Jackson refused to enforce the Court’s ruling, alledgedly remarking, “John Marshall has made his decision. Now let him enforce it.” Powerless to do so, the justices soon witnessed the removal of the Cherokees to Indian Territory. DRED SCOTT v. SANDFORD (1857) held that blacks, whether enslaved or emancipated, were not “citizens” of the United States and, therefore, could claim none of the rights and privileges which the Constitution provided. The case played a major role in bringing about the Civil War. BROWN v. BOARD OF EDUCATION (1954) invalidated the longstanding “separate but equal” doctrine in the field of public education, thus precipitating a revolution in race relations. And ROE v. WADE (1971), which recognized a constitutional right to abortion, elevated abortion to the national political agenda, where it has remained front and center for thirty-five years.

Yet, “[w]hat landmark decision was more openly disregarded than WORCESTER v. GEORGIA, greeted with more shock and criticism than DRED SCOTT v. SANDFORD, affected more school districts than BROWN v. BOARD OF EDUCATION, and brought together conservative Roman Catholics and fundamentalist Protestants in common cause long before ROE v. WADE?” The answer: ENGEL v. VITALE (1962), the celebrated and infamous “school prayer” decision. Or so says the preface to THE BATTLE OVER SCHOOL PRAYER: HOW ENGEL V. VITALE CHANGED AMERICA. The book, written by Bruce J. Dierenfield, professor of history at Canisius College, is part of the impressive Landmark Law Cases & American Society series. The series, which now boasts more than forty titles, includes volumes on a variety of judicial dramas in every generation of American history – from the Salem Witchcraft trials of the 1690s to the affirmative action cases in 2003. A complete list is available at
http://www.kansaspress.ku.edu/printbyseries.html (accessed 16 July 2007).

THE BATTLE OVER SCHOOL PRAYER, thankfully, is not an exhaustive digest on separation of church and state or Establishment Clause jurisprudence. Instead, set in the context of religious education in public schools, it examines the historical, legal, and political significance of one important case – the one that addressed the constitutionality of prayer as part of [*690] formal exercises in public schools. THE BATTLE OVER SCHOOL PRAYER, like the other titles in the series, is written for students and general readers. The language is not technical; the story easy to follow. The legal analysis is clearly deemphasized: The author is more interested in informing the reader of the events that gave rise to the case, the thoughts and feelings of the participants, and the effects and significance of the decision than he is in analyzing the legal and constitutional reasoning that led to the opinion. As such, it reads much more like history than law. Dierenfield does not provide formal citations throughout the book, although the preface states that the information comes from original documents; public records; newspapers; and interviews with the participants – including the school board members, the five families who participated in the lawsuit, the attorneys who argued the cases, the trial judge, school administrators, teachers, librarians, and students.

The narrative divides into nine chapters – two on religious influences in the American colonies and United States; four on ENGEL v. VITALE; and three on other important Supreme Court cases involving school prayer, Bible reading, and religious instruction in public schools. The book concludes with a chronology of major events in this area, from 1647 to 2000, a list of major U.S. Supreme Court religion cases, and a bibliographic essay. The bibliographic essay contains the primary and secondary sources consulted by the author and follows nicely the plan of the book.

Chapter One focuses on religious devotion in America from the colonial era to the Civil War. From the settlements at Jamestown and Plymouth Rock to the theocratic constitutions of various states lasting into the nineteeth century, religion was clearly a social phenomenon of great importance. Dierenfield kindly avoids a lengthy discussion of the disestablishment views of the Founding Fathers, focusing instead on religious pluralism, religious enthusiasm, and the variety of religious practices common in public schools prior to the Civil War. Of particular interest is the discussion of the role of anti-Catholicism in keeping religion in public schools, perceived as a way to transform Catholic immigrant children into loyal Americans. The second chapter looks at religious influences in public schools between 1865 and 1943 and at local, state, and national efforts – legislative and judicial – to curtail that influence. By 1880, thirty-seven states prohibited the use of state funds to support religious education. Even so, most school officials operated under the assumption that so long as students were not coerced into participating in religious exercises, no violation occurred. Dierenfield chronicles a number of lesser known state cases involving school devotions, thus giving context for the later, more well-known, cases to be decided by the Supreme Court.

Chapter Three discusses the three major pre-ENGEL Supreme Court Establishment Clause cases that raised questions about the role of religion in public schools – EVERSON v. BOARD OF EDUCATION (1947), the case in [*691] which Justice Hugo L. Black wrote Thomas Jefferson’s “wall of separation” metaphor into constitutional law, and two “released time” program cases, McCOLLUM v. BOARD OF EDUCATION (1948) and ZORACH v. CLAUSON (1952). Dierenfield refers to Justice Black’s opinion in EVERSON as “schizophrenic”: The Establishment Clause does not allow the “slightest breach” in the wall of separation . . . but spending taxpayer money to transport children to parochial schools does not surmount that wall.” Justice Felix Frankfurter later referred to Black’s opinion here as an example of Black’s propensity “to utter noble sentiments and depart from them in practice.” As is widely known, Justice Black was raised a devout Southern Baptist and regularly taught a Sunday School class in Birmingham, Alabama. But Dierenfield notes that by the time EVERSON was decided, Black had long since “drifted into agnosticism.”

The heart of the book comes in chapters four through seven. The fourth chapter examines the politics behind the decision of the school board to adopt the twenty-two word nondenominational prayer. Although the prayer was proposed by a group of ministers, priests, and rabbis and adopted by the New York Board of Regents in 1951, it was not until 1958, when Roman Catholics took control of the Herricks School Board, that the district teachers were directed to recite the prayer. Chapter Five looks at the decision of five families to challenge the constitutionality of the prayer and their planning for the case with legal counsel. Diernfield gives appropriate credit to Lawrence Roth, whom he calls the “now-forgotten force” behind the ouster of government-sponsored school prayer, and William Butler, the thirty-four year old lawyer for the New York Civil Liberties Union (NYCLU), who was chosen to represent the families in large part because of his Catholicism, the NYCLU having decided that it did not want a Jewish lawyer to argue the case.

The story of the trial and subsequent appeals appears in Chapter Six. This chapter delves briefly into the legal strategies of the plaintiffs and defendants and describes well the atmosphere in the courtroom and arguments advanced in the trial. Most every student of constitutional law is familiar with the U.S. Supreme Court’s decision in this case. But the trial proceedings and the trial judge’s painstaking decision – which stated that accommodation was permissible, but compulsion was not – are often overlooked in the literature. In this chapter, the trial court gets equal billing with the Supreme Court.

The seventh chapter explores the divided reaction from the participants, school administrators, the press, political and religious leaders, and legal scholars. Dierenfield does a commendable job of using newspaper articles to give the reader a feel for the often visceral reactions to the case among certain conservative groups. He also details how the plaintiff families suffered – accusations, crank calls, hate mail, and death threats, and so forth. Dierenfield notes that one plaintiff family received eight thousand angry telephone calls in a single week. (If accurate, this is one phone call every seventy-five seconds for a full week!) [*692]

Chapter Eight looks at two companion Supreme Court decisions handed down the following year – ABINGTON v. SCHEMPP (1963) and MURRAY v. CURLETT (1963). And the final chapter brings the reader up-to-date with both political and judicial happenings in this area since 1963. Efforts to overturn the decision by constitutional amendment have regularly been introduced, but never successfully. And the justices have ruled in cases involving public displays of the Ten Commandments, moments of silence for voluntary prayer in public schools, the public displays of crèches and nativity scenes, equal access to public school facilities for religious groups; graduation prayers at public schools, and invocations at public high school football games. These two chapters are included to demonstrate that, in spite of political efforts, the Supreme Court has strengthened the general proscriptions announced in ENGEL.

THE BATTLE OVER SCHOOL PRAYER is a fine narrative of the actors and the actions that led to a landmark case. It is to be commended for making the case (and the complexity of the issue) understandable to the layperson. But Dierenfield has gone a bit further here. He has also shown, albeit with less intensity and much less ink, how the case “changed America” – how school districts have changed in the intervening years, how the Protestant domination of the American ethos has waned, and how, in spite of conservative fears, ENGEL did not dry up religious sentiment.

CASE REFERENCES:
ABINGTON v. SCHEMPP, 374 U.S. 203 (1963).

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

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

ENGEL v. VITALE, 370 U.S. 421 (1962).

EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).

McCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1948).

MURRAY v. CURLETT, 374 U.S. 203 (1963).

ROE v. WADE, 410 U.S. 113 (1971).

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

ZORACH v. CLAUSON, 343 U.S. 306 (1952).

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© Copyright 2007 by the author, Richard A. Glenn.

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THE STORY OF CRUEL AND UNUSUAL

by Colin Dayan. Cambridge: The MIT Press, 2007. 96pp. Hardback. $14.95/£9.95. ISBN: 9780262042390.

Reviewed by Darren A. Wheeler, Department of Political Science & Public Administration, The University of North Florida. Email: dwheeler [at] unf.edu.

pp.686-688

If we were honest with ourselves, it would probably be accurate to say that the images of prisoner abuse in Abu Ghraib are a dim memory. Yes, we recall pictures of prisoners posed in degrading positions and gloating soldiers, but these images and the outrage they generated in the American public have faded somewhat. Yes, mistakes were made. But those mistakes were made by a few bad apples. We have dealt with it, and we have moved on to other things. The scandal has become but one incident among many in the Bush administration’s War on Terror.

While this may accurately describe the public mindset about the Abu Ghraib scandal, Colin Dayan urges us to reflect more deeply on these events. In her new book, THE STORY OF CRUEL AND UNUSUAL, she asserts that these events are not just the actions of a few bad apples but rather are reflective of an American heritage that has a long history of torture and brutality. The events at Abu Ghraib and the Bush administration’s legal parsing about just what constitutes “torture” are only the latest in a country that has systematically declined to use the Eighth Amendment’s prohibition on cruel and unusual punishment to protect the human worth and dignity of all people. This probably is not a story that most Americans will be eager to hear. As such, it is one that we probably should.

Dayan highlights the experiences of three groups – slaves, prisoners, and detainees in the War on Terror – at different points in our history in an attempt to illustrate her arguments. These groups, she contends, have common experiences with regard to the way they have been treated under the law. She reviews the Eighth Amendment jurisprudence associated with each of the three groups and concludes by putting the debate over the Eighth Amendment into a larger international and human rights context in the final chapters.

At the outset, Dayan explores the rise of slave codes and explains how the institutionalization of these bodies of law served to inculcate the belief in much of American society that this was the appropriate way to treat slaves. Even after the emancipation that followed the Civil War, Dayan argues that the black man’s primary relationship to the law was that of potential criminal.

The middle section of the book (Chapters 3-6) is devoted to tracing the development of how the Supreme Court has interpreted the Eighth Amendment over time. Dayan bemoans the fact that there exists no “landmark” case that definitively explains what types of behavior the amendment prohibits, applauds the amendment’s more expansive application during the prisoners’ rights movement of the 1960s [*687] and 1970s, and recoils at the recent Burger and Rehnquist Court interpretations of how the Eighth Amendment should be applied to prisoners.

Dayan focuses on two key issues. First, she is highly critical of the Court’s move toward an Eighth Amendment standard that considers the intent of the prison official in the determination of whether certain conduct constitutes cruel and unusual punishment. By defining cruel and unusual punishment in terms of intent in this fashion, it becomes very difficult for prisoners to show that their constitutional rights have been violated. As a result, the scope of what the courts consider to be cruel and unusual has been narrowed considerably. Second, she is wholly disapproving of judicial attempts to parse, and consequently narrow, the scope of the protections under the Eighth Amendment. One example she cites is Justice Clarence Thomas’ argument that the word “punishment” in the Eighth Amendment should apply only to statutory penalties or judicial sentences, not a “broad range of prison deprivations.” Such efforts, she asserts, only serve to reinforce unduly harsh institutional punishments such as solitary confinement and the deprivations associated with “super-max” incarceration.

Chapters Seven and Eight apply Dayan’s argument to the Bush administration’s War on Terror. THE TORTURE PAPERS, edited by Karen Greenberg and Joshua Dratel, is an excellent collection of government memoranda and documents that illustrate Dayan’s main criticism here. These memoranda and reports detail efforts on the part of Bush administration officials to define the rights of terror suspects in very narrow legal terms so as to restrict their rights under the Constitution, domestic statutes, and international law. Dayan is correct to point out that significant portions of the legal reasoning used in these memoranda to justify such limitations emanate from recent Eighth Amendment jurisprudence, decisions that conveniently also define the rights of prisoner/detainees in very narrow legal terms. Such tactics also had the added benefit of insulating government officials from potential domestic or international legal action as a result of their treatment of terror suspects. This approach has drawn a great deal of domestic and international criticism, including a 2006 report by the United Nations Commission on Human Rights that denounced what it called an attempt by the Bush administration to use “domestic standards to define away its human-rights obligations under international law” (p.73).

Dayan’s book is a Boston Review Book, a series that publishes “accessible, short books that take ideas seriously.” They are “animated by hope, [and] committed to equality.” Indeed, one of the first things that struck me was how small and brief this book is. It can literally fit in the palm of one’s hand, and its ninety-six pages can easily be read in a few hours. I daresay that those who read this book will spend more time discussing the issues within than they needed to actually read it from cover to cover. I consider this a positive thing though, as good academic books should stimulate conversations, offer evidence, and [*688] challenge popular conventions. Dayan’s book accomplishes these goals. In fact, this is the strength of the book. It questions some of our basic assumptions about punishment and can be viewed as an implicit indictment of American culture as it relates more broadly to law and order in our country. The book is probably most appropriate for classes that focus on themes such as human rights, legal ethics, crime and punishment, or law and society. It would also potentially be appropriate for an identity politics class, as one of the underlying themes that runs throughout the book is that the groups of people who are her focus are something “other,” something that need not be treated with respect or human dignity.

Dayan’s primary culprit is the United States Supreme Court, especially the more conservative Burger and Rehnquist Courts of the last several decades. It is their decisions that, in Dayan’s view, have laid the foundation for the unfortunate policies that govern both prisons and detainee matters in the War on Terror. While her critical arguments chronicling the Court’s changing jurisprudence are nicely constructed and cogently argued, there is surely a larger societal dynamic at work here as well. Two points perhaps deserve mention. First, there are those who argue that the Supreme Court is rarely too far away from public opinion. If that is the case here in the context of the Court’s Eighth Amendment jurisprudence, then we should possibly be casting our critical eye toward society at large as well. Second, the Court has not always been at the forefront of movements to enhance civil and human rights. History (even recent history) is replete with examples of this, as blacks, women, and homosexuals can attest. While other political actors may be following the Court’s lead in this area, it does not necessarily have to be so.

The Framers who wrote the Constitution were concerned enough about the government’s power to punish – and the abuse of that power – that they included the Eighth Amendment in the Bill of Rights. While much, if not most, of the discussions about the Eighth Amendment today focus on the death penalty, Dayan’s book reminds us that the amendment was designed to have a broader application. Regardless of where the “blame” lies in the discussion Dayan initiates, her book is sure to be an excellent conversation-starter. It may not be a conversation that makes us comfortable, and it may not be one that many Americans want to have, but it is a conversation whose answers speak volumes about what we as Americans stand for and value in legal, social, and moral terms.

REFERENCE:
Greenberg, Karen and Joshua Dratel (eds.) THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB. Cambridge: Cambridge University Press, 2005.

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© Copyright 2007 by the author, Darren A. Wheeler.

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ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR

by Angela J. Davis. New York: Oxford University Press, 2007. 264pp. Cloth. $29.95/£17.99. ISBN: 9780195177367.

Reviewed by Caryl Lynn Segal, Department of Criminology and Criminal Justice, University of Texas at Arlington. Email: csegal [at] uta.edu.

pp.682-685

Using powerful examples, Angela Davis discusses the often misunderstood scope of prosecutorial discretion, and her book should make an excellent supplemental text in a judicial and court related course. Political scientists and others will appreciate Davis’ end notes format which is organized by pages and not chapters.

Considering the demographics of the District of Columbia, where she worked in the Public Defenders Office, and her own minority status, inequities based upon race might have been her primary focus. To her credit Davis discusses the multitude of additional factors which come into play when prosecutors make charge, plea and other discretionary decisions. The US Supreme Court found relatively unchecked prosecutorial discretion and judicial deference to be both constitutional and acceptable in UNITED STATES v. ARMSTRONG (1996). Davis never lets one forget that the prosecutor is the most powerful person in the criminal justice system (p.5).

Davis reminds readers of how legislatures across the country have been stripping judges of discretion by enactment of sentencing guidelines, mandatory sentencing and mandatory minimums, while enhancing the power of the prosecutor. In a perfect example of unintended consequences, these statutes were enacted to eliminate sentencing disparities and have resulted in judges’ inability to tailor a sentence to prevent injustice.

The author does a good job of establishing the importance of prosecutorial discretion as a means of keeping check on the limited resources available and aiming to “do justice” without burdening the court system with weak evidentiary cases. She demonstrates the dilemma of control in a system constructed upon separation of powers, wherein the prosecutor is considered part of the executive branch.

Davis lays the groundwork for her extensive display of abuse of prosecutorial discretion by first establishing the dilemma of discretion. “It is not enough for prosecutors to base their decisions on the malleable standard of “doing justice” because such a standard is subjective and ultimately produces unexplainable and unjustifiable disparities” (p.17).

The ultimate goal of “individualized justice without producing unfair disparities” appears illusive despite the well-meaning intentions by many. Davis contends that charging decisions are the most important of the prosecutorial powers and the strongest example of the influence and reach of prosecutorial discretion. Few realize that no law [*683] requires someone who commits a crime to be charged. Although police also have discretion in terms of whether to arrest, until one is charged, imprisonment does not loom as a possibility.

Davis reminds us that prosecutors routinely overcharge because of the multiple statutes that might be violated in one incident. By overcharging, the prosecutor has multiple opportunities to tailor plea negotiations, but this is also fertile ground for inequitable outcomes. The lack of mandatory charging guidelines in most prosecutors’ offices contributes to disparate results in similar cases within the same jurisdiction, and even within the same office.

We are reminded that there is no requirement that a plea be offered. In addition we learn that less than 15% of prosecution offices even have plea guidelines. The prosecutor’s caseload is often the primary factor on whether a plea is offered. The Victims Rights Act and the victims’ rights movement in general have made some changes in prosecutorial decisions.

Although prosecutors have supported victims’ rights statutes, there is no uniformity in obtaining victim input. Davis’ examples illustrate how media attention, which often involves upper middle class or wealthy families, can be seen to be the driving force in the decisions made.

Decisions related to seeking the death penalty in spite of the rising number of exonerations is the subject of one chapter. Davis reminds readers that the prosecutor is the only member of the criminal justice system involved in charge decisions.

She discusses the inability of the public to make informed retention election decisions because of the lack of accountability information. A chapter devoted to the federal system notes the unprecedented number of laws that have been enacted making actions that were heretofore only state offenses federal criminal actions. A chapter is also devoted to the role of the federal Attorney General.

Whether manuals or guidelines are in place does not guarantee a less arbitrary outcome; without consequences for deviations, injustice will continue unabated. “The federal prosecution of drug offenses is probably the single most prominent example of federal intrusion into an area previously left to the states” (p.100). The Federal Sentencing Guidelines concentrated discretion into the prosecutor’s office, with unintended consequences of arbitrary justice as the outcome.

Understanding the actions taken by Attorneys General Thornburgh and Ashcroft relating to both discretion and civil rights is illuminating and disturbing. Thornburgh’s Memo required Congressional action to overcome the problems posed by it. Davis expands on the Patriot Act and how it evolved under Attorney General Ashcroft. She provides insight into how the Patriot Act became a protective covering for non-national security actions and how she believes that racial profiling was misused by the Attorney General’s office. [*684]

The most powerful chapter in the book pertains to prosecutorial misconduct, with common Brady violations only the tip of the iceberg. Davis lays much of the blame on United States Supreme Court rulings that gave absolute immunity to prosecutors:

The Supreme Court established a broad rule of absolute immunity from civil liability for prosecutors in Imbler v. Pachtman . . . This rule immunizes prosecutors from liability for acts ‘intimately associated with the judicial phase of the criminal process’ (p.128)

In most instances the Court has stated that misconduct was usually “harmless error.” The deference shown by the Court disappeared in BANKS v. DREKE (2004), where the ruling overturned the death sentence, seven to two. The Court’s holding included harsh words for the 5th Circuit’s actions in the case. With the Court’s having two new Justices since that case was decided, it remains to be seen whether prosecutorial accountability will be a new direction or an anomaly.

Davis reveals that there have been thousands of recorded cases of prosecutorial misconduct with very few adverse consequences; in many instances the prosecutor went on to higher office or even judgeships following the complaints. “The Supreme Court has suggested that the most appropriate remedy for prosecutorial misconduct is disciplinary action by state board authorities. However the Court’s suggestion has proven to be woefully inadequate and ineffective” (p.143).

In her discussion of the need for accountability, she considers the history of the development of the office of prosecutor:

In sum, neither the history of the development of the American prosecutor nor an examination of the intent of the framers of the Constitution justifies the current model of the prosecution function. Our system of checks and balances has proven ineffective in restraining prosecutorial power. The judicial branch has failed to check prosecutorial overreaching, and the legislative branch traditionally has passed laws that increase prosecutorial powers. (pp.164-165)

It would appear that, with existing public indifference, neither transparency nor information will rectify the situation. Davis offers two hypotheses to explain the public’s attitude, and she places blame on the media. The “if it bleeds, it leads” journalistic policy helps to create a sense of overwhelming crime, and “whatever it takes to keep people safe” becomes acceptable.

Her second, equally compelling argument, is that both television and movies consistently portray positive views of prosecutors. The effects of prosecutorial misconduct were prime time news stories when the North Carolina State Bar Association disbarred Durham District Attorney Mike Nifong for his actions in the Duke University lacrosse case. To its credit media coverage included multiple comments expressing how rare it was to have a prosecutor sanctioned, much less disbarred. [*685]

Davis ends her book by disclosing an ongoing study by the Vera Institute relating to prosecutorial practices. The results will be published in 2008 and might provide the impetus for true reform.

CASE REFERENCES:
BANKS v. DREKE, 540 U.S. 668 (2004).

IMBLER v. PACHTMAN, 424 U.S. 409 (1976).

UNITED STATES v. ARMSTRONG, 517 U.S. 456 (1996).

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© Copyright 2007 by the author, Caryl Lynn Segal.

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THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA

by Jeffrey Rosen. Oxford: Oxford University Press, 2006. 256pp. Hardback. £14.99/$25.00. ISBN: 9780195174434.

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

pp.675-681

Public opinion polls suggest that three commonly held views of the courts are that they 1) exist to protect ordinary people from the tyranny of the majority (or perhaps the elite); 2) they are out of tune with what the majority of Americans desire; or 3) they are rather closely in touch with and follow public opinion. In THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA, Jeffrey Rosen argues not only that the courts (by which he usually means the Supreme Court) have generally followed public opinion but that they should follow it. When they do not, they engage in judicial unilateralism, defined as “a court’s decision to strike down federal or state laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people” (p.8). Rosen argues that when the Court engages in judicial unilateralism, its decision usually results in undesirable consequences.

Consequently, Rosen suggests that the Court acts most judiciously when it practices bipartisan, judicial restraint. It does this by upholding a “challenged federal or state law unless [it] is confident that the constitutional arguments for striking the law down are not being actively contested by a majority of the American people. Judges should be free to strike down laws if they believe, in good conscience, that the Constitution requires it, but they should be wary about rejecting the competing constitutional views of Congress, the presidents, or a majority of the states unless the case for invalidation is very strong” (p.13).

After laying out his thesis clearly in the Introduction, Rosen surveys some historically significant Supreme Court decisions and analyzes whether they are unilateralist or non-unilateralist in a chapter called “Cautionary Tales.” Not surprisingly, he begins with MARBURY v. MADISON and argues persuasively that the Court under John Marshall’s leadership was not prone to engage in judicial unilateralism. Marshall was careful to “defer to Congress on questions that the nation cared intensely about, and confin[ed] his invalidation of laws to cases affecting basic principles . . . . that the nation as a whole was willing to support” (p.20). MARBURY was not an instance of judicial unilateralism. By the time that case was decided, the political system had accepted the idea that the courts possessed the power of judicial review. Thus, asserting that power was not highly controversial.

More controversial would have been a decision to overturn the Repeal Act, a law passed in 1802 by the Jefferson-controlled Congress to eliminate the federal circuit courts created by the [*676] Federalists in the Adams Administration. While the Repeal Act was not universally supported, it enjoyed strong support. A decision by a Federalist-dominated Supreme Court to overturn a congressional act engineered by the new Jefferson Administration would have been an act of judicial unilateralism. In STUART v. LAIRD, decided a week after MARBURY, the Marshall Court upheld the constitutionality of the Repeal Act and avoided the potential public outcry (and possible weakening of the Court’s status) that may well have occurred if the Court had declared the Act unconstitutional.

In MCCULLOCH v. MARYLAND, the Marshall Court upheld congressional authority to establish a National Bank under the Necessary and Proper Clause of the Constitution. While MCCULLOCH is often viewed as a case in which John Marshall put the power of the Court at some risk in order to uphold his views in favor of a strong national government, Rosen sees the decision as one deferential to congressional authority exercised to charter a bank that “had been consistently endorsed by the Congress and the president” (p.28).

On the other hand, Rosen sees THE DRED SCOTT CASE as a classic case of judicial unilateralism. The Court tried to save the country from the turmoil created by the national controversy over slavery by ruling that Congress could not ban slavery in federal territories. In doing so, the Court acted against the belief of a majority of Americans that “either Congress or the sovereign people, represented by territorial legislatures, had the power to ban slavery if they wanted to” (p.31). In so ruling, the Court made civil war more likely.

The next four chapters deal with specific subject areas – race, love and death, politics, and civil liberties in wartime.

Race. The post-Civil War SLAUGHTERHOUSE CASES and CIVIL RIGHTS CASES are cited as examples of judicial unilateralism. In both sets of cases, the Court took a very narrow view of The Privileges and Immunities Clause of the Fourteenth Amendment, by ruling that the privileges protected by the clause referred only to a very narrow set of rights associated with federal citizenship (as opposed to state citizenship). In so doing, the Court took a position that was contrary to the intention of the principal drafter of the Fourteenth Amendment (John Bingham) and the common understanding of the clause at the time. The result was to virtually eliminate the ability of the post-war Republican-dominated Congress to pass legislation that could effectively protect the civil rights of the newly freed slaves.

Somewhat surprisingly perhaps, Rosen does not view BROWN v. BOARD OF EDUCATION as an instance of judicial unilateralism. While the decision was obviously extremely unpopular in the South, national opinion about segregated schools was fairly evenly divided, and a Gallup poll taken in the summer of 1954 suggested that a majority of Americans agreed with the decision in BROWN.

The school busing decisions that followed in the early 1970s were another [*677] matter, however. They were instances of “the most aggressive” judicial unilateralism and failed because they were intensely unpopular and never enjoyed the support of Congress or the President. Rosen concludes that the progress made in the late twentieth century in reducing racial discrimination came not from the Court but from Congress and the President.

Love and Death (the right to privacy – abortion, sodomy laws, and gay marriage). In this chapter, Rosen discusses the Court’s treatment of sterilization laws, laws prohibiting the use of contraceptives, and laws dealing with the right of individuals to stop treatment or to die in a manner of their choosing. However, the most interesting discussion concerns the Court’s abortion and sodomy cases.

Although Rosen professes to be pro-choice, he has little good to say about ROE v. WADE. He views the decision as a significant act of judicial unilateralism. While public opinion polls shortly after ROE suggested that a bare majority (52%) of Americans supported the Court’s prohibition of state restrictions on abortions during the first three months of pregnancy, Rosen sees this public support for ROE as “only skin deep” (p.90). Substantial majorities of Americans also indicated that they favored many of the restrictions on abortions that the Court later upheld, such as spousal notification laws, parental notification laws, and requirements for informed consent.

Rosen argues that the controversy stirred up by the Court in ROE has had undesirable consequences. It “continues to distort and inflame our judicial confirmation process, giving social conservatives and liberal extremists an exaggerated sense of their own political power and sense of victimization in a debate where they have lost the hearts and minds of a majority of the country” (p.91). Although Rosen concedes that it is impossible to predict what changes in abortion laws would have occurred in the absence of ROE, he discusses a number of liberalizations of abortion laws that occurred in the years prior to that decision. He points to the consistent majority support in public opinion polls for the mother’s right to choose during the first three months of pregnancy as evidence that “the reform movement [that preceded ROE] could not have stalled for long without provoking a national reaction” (p.95). Instead, he suggests that ROE had the opposite effect, triggering a conservative backlash that resulted in a string of limitations on abortions after the first three months of pregnancy.

Rosen goes so far as to conclude that “the best political gift that the Court could give to the pro-choice majority in the nation might be to overturn ROE. If ROE were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves” (p.102).

With regard to laws regulating homosexual conduct, Rosen believes the Court was wise not to find a constitutional prohibition on sodomy [*678] laws when it first considered the issue in BOWERS v. HARDWICK (1986). This gave public opinion in favor of relaxing government restrictions on homosexual conduct time to change in a liberal direction. By the time the Court reconsidered the issue in 2003, twelve state sodomy laws had been repealed or invalidated in the courts since the BOWERS decision. This gave the Court a more legitimate basis for its ruling that the Constitution prohibits sodomy laws (LAWRENCE v. TEXAS).

However, Rosen believes that the Court’s latter decision, while not highly controversial, would have been less controversial if it had been grounded on the equality approach espoused by Justice O’Connor in her concurring opinion (sodomy laws violate equal protection of the law when applied only to homosexuals and not to heterosexuals). The privacy language used in Justice Kennedy’s majority opinion resulted, in Rosen’s view, in public concern that the Court will also strike down bans on gay marriages. Rosen concludes that if the Court does indeed issue such a ruling in the near future, “[e]verything we know about the wages of judicial unilateralism suggests that the national backlash would set back the cause of gay and lesbian equality rather than advancing it” (p.112).

Politics. This chapter deals with electoral litigation. Rosen identifies three phases of electoral litigation in Supreme Court cases: 1) the creation of a right to an equally weighted vote (“one man, one vote”); 2) the right to an equally effective vote (a vote that gives minority groups an equal chance to influence elections); and 3) creation of “an entitlement to electoral arrangements that gave the appearance of political fairness.” The first phase was generally successful, in Rosen’s view, because public opinion had begun to support the notion of one man, one vote, and the normal political processes could not be expected to make the changes needed to bring about this result.

Rosen sees the second phase as another example of judicial unilateralism (although not the most egregious kind) because it discouraged Congress from addressing the difficult issue of giving true political voice to minorities. Instead, Congress “found it politically convenient merely to endorse or reject the Court’s conclusions” (p.132).

However, it was the third phase that was the most unilateralist and unsuccessful. Most of the cases during this phase struck down bizarrely drawn districts (the products of political gerrymandering) without articulating either a clear basis for its conclusions or a rule that could be easily applied by the lower courts in future cases. The low point in this phase was the Court’s ill-advised decision in BUSH v. GORE. Rosen believes that the Court needlessly jumped into a dispute that most Americans did not want the Court to resolve. The result will be a “litigation mess that will now hang over all of our elections for the foreseeable future” (p.146).

Civil Liberties in Wartime. In this chapter, Rosen examines the [*679] Court’s treatment of civil liberties in times of war or great national crisis. He analyses the Court’s handling of the Alien and Sedition Acts (1798), free speech issues during the Civil War, the Espionage Act (1917), anti-Communist legislation, Lincoln’s suspension of habeas corpus, the Japanese internment cases from World War II, and the recent HAMDI and PADILLA cases (dealing with the attempts of the Bush Administration to deny normal judicial process to persons characterized by the Administration as enemy combatants). Rosen concludes that “[t]he Court’s interventions during the Civil War and World War II show that judges are better at forcing the president and Congress to act bilaterally in wartime than they are attempting to protect liberty unilaterally” (p.177).

Rosen criticizes the Court’s handling of the enemy combatant cases as examples of judicial unilateralism. His criticism stems largely from the HAMDI decision, where the Court concluded that Congress had given the President authority to detain enemy combatants found in the battlefield. However, the failure of Congress or the President to specify a judicial procedure whereby the executive decision to detain a combatant could be reviewed meant that the Court had to impose such a procedure. The Court’s finding of congressional authorization to seize enemy combatants is questionable at best and is, in any event, undesirable. Rosen contends that by coming to this conclusion the Court removed any incentive for Congress to take action to specify the procedures that the President should take (as well as any actions he could not take) in dealing with enemy combatants in the war on terror.

Epilogue, “Constitutional Futurology, or What Are Courts Good For?” Rosen speculates about the prospects for and the consequences of unilateralist decisions by the Court on several potential issues that are likely to be highly charged. Those potential issues include reproductive cloning, the use of high tech scanning to search people or to predict the likelihood that they will engage in violent behavior in the future; laws banning sex selection; the use of gene therapies to cure disease or to enhance one’s physical or cognitive capabilities; and the use of copyrights and patents to protect digital creations or genetically modified organisms. Given the lessons described in the book that Rosen has drawn from the Supreme Court’s history, he advises the Court to stay out of these issues until the legislative branches and executive agencies have had time to ponder and debate them and develop laws and regulations dealing with them.

This is a good book, but it is not without weaknesses. It sweeps very broadly in its (understandable) desire to remain relatively brief. As a result, Rosen occasionally makes broad statements that one wishes he had taken the time to defend. For example, he indicates that “unilateralism is on the rise, and the commitment to bipartisan judicial restraint that united mainstream liberals and conservatives from the New Deal until the 1970s is now under siege” (p.202). This statement seems to suggest that the controversial decisions of the Warren Court were not unilateralist, since they were decided prior to the 1970s. Some of those decisions, such as BROWN v. BOARD OF EDUCATION, [*680] BAKER v. CARR, and REYNOLDS v. SIMS, are discussed, but other highly controversial decisions that are arguably unilateralist, such as MAPP v. OHIO, GIDEON v. WAINWRIGHT, and MIRANDA v. ARIZONA, are not mentioned at all.

There are also instances where he characterizes cases as unilateralist (such as the HAMDI and PADILLA cases) but does not explain why they are unilateralist. In his discussion of HAMDI and PADILLA, Rosen does not explain how these decisions are based on “a constitutional principle that is being actively and intensely contested by a majority of the American people.”

Sometimes Rosen seems a little selective as to the evidence he uses to find a national consensus or near-consensus for a law or constitutional principle. For example, as we have seen, Rosen argues that the Court’s decision in THE CIVIL RIGHTS CASES was unilateral. The evidence to support the notion the Court’s ruling was “actively and intensely contested” seems to be that the lame duck Republican Congress was able to muster a majority in support of The Civil Rights Act of 1875 (prohibiting racial discrimination in places of public accommodations). However, Rosen also concedes that public views were becoming increasingly racially intolerant by 1883, when THE CIVIL RIGHTS CASES were decided.

Rosen also does not give much attention to opposing points of view. He seldom anticipates and counters arguments that could be made against some of his assertions. This is both a strength and a weakness. It makes the book shorter (and arguably more accessible to undergraduate students), but it forces the reader to discover the weaknesses in Rosen’s approach.

These criticisms do not change the fact that this is a well-written book that even most undergraduate students should be able to understand. The pace is swift enough that students should not lose interest (even while conceding that some students will never be interested in the first place). Another strength of the book is that, even though Rosen is a lawyer, he does not ignore relevant social science literature. Rosen has read and refers to the work of Robert Dahl, Walter Murphy, Gerald Rosenberg, Robert McCloskey, Howard Gillman, and C. Vann Woodward (as well as others). The book should effectively stimulate discussions about the proper role of the courts.

CASE REFERENCES:
BAKER v. CARR, 369 U.S. 186 (1962).

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

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

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

THE CIVIL RIGHTS CASES, 109 U.S. 3 (1883).

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857). [*681]

GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963).

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

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

MAPP v. OHIO, 367 U.S. 643 (1961).

MARBURY v. MADISON, 5 U.S. 137 (1803).

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

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

REYNOLDS v. SIMS, 377 U.S. 533 (1964).

ROE v. WADE, 410 U.S. 113 (1973).

RUMSFELD v. PADILLA, 542 U.S. 426 (2004).

SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873).

STUART v. LAIRD, 5 U.S. 299 (1803).

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

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DRED SCOTT AND THE POLITICS OF SLAVERY

by Earl M. Maltz. Lawrence KS: University Press of Kansas, 2007. 184pp. Cloth. $29.95. ISBN: 9780700615025. Paper. $15.95. ISBN: 9780700615032.

Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu.

pp.669-674

Earl Maltz’s book succeeds on two levels. First, it is a useful primer. Like other titles in the University Press of Kansas Landmark Law Cases & American Society Series (a few of which I have taught beneficially in my constitutional law classes), DRED SCOTT AND THE POLITICS OF SLAVERY gives readers an instructive look into a crucial period of American history via a Supreme Court decision. Maltz’s inquiry accomplishes most that one expects of a case study. It is tidy, informative, and sophisticated. Realizing that “[g]iving a sense of surrounding circumstances . . . is the essence of historical explanation” (Wood 2007), Maltz contextualizes DRED SCOTT v. SANDFORD. He analyzes the case as a revealing aspect of more fundamental antebellum debates over slavery and the increasingly incendiary sectional divisions fueling them. “It was against this background,” Maltz writes, “that Dred Scott v. Sandford came to the Supreme Court in 1856” (p.2). He continues: “Far from resolving the sectional conflict, the Dred Scott decision further exacerbated the tensions between North and South” (p.2). “Ultimately, then,” Maltz concludes, “this book is the story of a colossal judicial failure . . . a story of judicial hubris” (pp.3, 156; cf. Maltz 1998). His book is accessibly written, manageable in length, and reasonably priced. All in all, it is a serviceable supplementary undergraduate text.

At another level, DRED SCOTT AND THE POLITICS OF SLAVERY can be employed as much more than a monograph. It provides entrée – can be understood as a portal, if you will – into profoundly significant, enduringly controversial questions of American law and politics. As a focal point, say, in a graduate course addressing slavery and American political development Maltz’s book could be a fruitful point of departure.

For instance, reading Maltz’s book brought miracles to mind. By “miracles” I am not referring to metaphysical events of divine origin. Quite the contrary, the sort of miracles Maltz’s analysis suggests to me are thoroughly human. Human made miracles? An oxymoron? Hardly. What I have in mind are the miracles about which Hannah Arendt wrote compellingly. In her unique way, Arendt derived human miracles from her conception of human freedom. Arendt, in “What is Freedom?” contrasted freedom with the “automatism . . . inherent in all processes . . . [which] can only spell ruin to human life” (Arendt 1968). Even when human historical processes have become automatic, she argued, “[w]hat usually remains intact in [such] epochs of petrification and [*670] foreordained doom is the faculty of freedom itself, the sheer capacity to begin, which animates and inspires all human activities and is the hidden source of production of all great and beautiful things” (Arendt 1968). Arendt continues: “Every act, seen from the perspective not of the agent but of the process in whose framework it occurs and whose automatism it interrupts, is a “miracle”—that is, something which could not be expected” (Arendt 1968). One might say that the Philadelphia Constitution was a miracle; a “great and beautiful thing.” (Arendt herself saw the American Revolutionary Era, if not the Constitution, in these terms. She criticized the Framers for not institutionalizing in the Constitution the era’s revolutionary “treasure.” See Arendt 1965; cf. Waldron 2000, and Wellmer 2000).

Arendt’s interpretation and Maltz’s subtext are light years away from the standard
high school civics (and, for that matter, AP US Government and Politics) understanding of the “miracle at Philadelphia.” Typically, Catherine Drinker Bowen’s widely used account of the Constitutional Convention (Bowen 1966) is taught in terms redolent of Constantino Brumidi’s iconic “The Apotheosis of George Washington.” Fair play: Bowen herself lends credence to deifying the Framers and dehumanizing their work product, writing in her Preface, “[e]very miracle has its provenance, every miracle has been prayed for. The wine was first water in Cana; there was a wedding and a need. If miracles are men’s wishes fulfilled, so with the miracle at Philadelphia” (Bowen 1966).
Nevertheless, Bowen herself quotes correspondence from Madison to Jefferson (December 9, 1787) and from Washington to Lafayette (February 7, 1788) in which both Convention participants use the word “miracle” in terms more amenable to Arendt.

Viewing Maltz’s account of the antebellum politics of slavery through Arendt’s lenses – as the narrative of freedom triumphant and freedom abandoned (exhausted?) – one can understand American political development in the first half of the eighteenth century as a series of “miracles” that prevented dissolution of the Union. “[T]he more heavily the scales are weighted in favor of disaster,” Arendt argues, “the more miraculous will the deed done in freedom appear; for it is disaster, not salvation, which always happens automatically and therefore always must appear to be irresistible” (Arendt 1968). From this vantage point civil war, always a cloud on our civic horizon from our national inception, was staved off by a miraculous dynamic between threatening controversies and timely compromises.

Maltz’s book can be treated as an analysis of this dynamic, as well as of its failure. He tells the story of how national political actors averted disaster for over half a century.

On the one hand, he writes that “[r]epresentatives from both sides [North and South] . . . realized that the decisions on slavery in the territories could have profound implications for the balance of [*671] power within institutions of the federal government” (p.2). How this realization shaped antebellum political miracles is illustrated by the way in which the two-year firestorm triggered by New York Rep. James Tallmadge, Jr.’s proposed amendment to the 1819 act enabling Missouri’s petition to form a state government eventually was resolved. With sectional differences running high, the Tallmadge Amendment would have prohibited introduction of any additional slaves into Missouri as well as gradually emancipating existing slaves there. Tempers flared – a miracle seemed “infinitely improbable” (Arendt 1968). Massachusetts Representative Timothy Fuller opined that “the governments in the slave states were not ‘republican’ in form, as required by the guaranty clause of Article IV, Section 4 of the Constitution” (p.11). Virginian John Tyler held “it was unreasonable to believe ‘that Southern bayonets would be plunged into Southern hearts’” (p.11). “Rep. Thomas W. Cobb of Virginia warned that the Tallmadge proposal had ‘kindled a fire which all the waters of the ocean cannot put out, which seas of blood can only extinguish’” (p.12). The Union was clearly at risk. “[M]iracles . . . always must be . . . wholly unexpected” (Arendt 1968). With the Missouri Compromise, dissolution was avoided because “both parties were dominated by actors who were committed, at least in general terms, to the maintenance of sectional peace” (p.18).

On the other hand, Maltz pinpoints how DRED SCOTT symptomized political dialectic collapsing into an effort to fashion a definitive final solution:

[T]he Southern Justices—a majority on the Court—boldly decided to use the [Dred Scott] case as a vehicle to constitutionalize the position of the slave states on the issue of slavery in the territories. By doing so, they hoped to finally settle the controversy in favor of the South and to devitalize the newly formed Republican Party (p.2).

Although, between 1825 and 1842, the impulse to compromise in the name of sectional peace prevailed at the Supreme Court as well as in Congress, that judicious inclination had evaporated by 1856. In a telling vignette of Associate Justice Peter Vivian Daniel, Maltz captures the combative mood of the Court to which Dred and Harriet Scott brought their case. Appointed to the Supreme Court by President Van Buren in 1841:

Daniel was deeply committed to the constitutional theories embodied in the work of John Taylor [of Caroline] and the Virginia and Kentucky Resolutions . . . [and he] viewed the defense of these principles . . . as an apocalyptic struggle between good and evil. . . . “[T]he Daniel who came to the Court in 1841 . . . was a man of controversy, ferocious, unyielding, and utterly humorless in dispute[;]” . . . a “brooding proslavery fanatic” whose mind was “completely closed on the slavery issue” (pp.80-81).

Toward the end of his life, it is well known that John Marshall despaired of the Union’s longevity. “At the height of the nullification crisis of 1832, the aging jurist confided that he was yielding ‘slowly and reluctantly to the conviction that our constitution cannot last.’ He foresaw the end of a union that had ‘been prolonged thus far by miracles’” [*672] (Hobson 1996). One can debate dates. Did the 1857 DRED SCOTT decision mark the end of Americans working miracles? Or was DRED SCOTT the beginning of the end; the end of the beginning? Maltz’s analysis supports the conclusion that DRED SCOTT was a catalyst, not a conversation-stopper:

[W]hen the Court attempts to resolve fundamental differences, particularly in situation where the battle lines are already clearly drawn . . . [t]hose whose positions are threatened by the Court’s action are unlikely to simply acquiesce and abandon their views. Instead, they will attack the decisions of the Court and continue the struggle in other venues (p.155).

Some of these venues were judicial. Judge Jack B. Weinstein discusses judicial resistance to DRED SCOTT in the course of exploring how federal judges might oppose unjust laws. Saying he is “not convinced that [Robert] Cover presented the whole picture” of a judge’s options in JUSTICE ACCUSED (acquiescence or resignation), Weinstein points out that “nullification [of DRED SCOTT] by Northern judges, in part through standard interpretive practices and the distinguishing of cases did occur” (Weinstein 2004). To illustrate his point, Weinstein quotes a judge concurring in an 1860 New York Court of Appeals case, LEMMON v. PEOPLE: “The exclusive right of the State of Missouri to determine and regulate the status of persons within her territory, was the only point in judgment in the Dred Scott case, and all beyond this was obiter” (Weinstein 2004).

If DRED SCOTT does not signal the end of freedom and the onset of “that automatism . . . where doom seems foreordained” (Arendt 1968), did Abraham Lincoln’s 1860 election extinguish miraculous politics? Mark Graber makes an argument strikingly close. In a manner vaguely reminiscent of Gary Trudeau’s famous portrayal of Attorney General John N. Mitchell as Guilty! Guilty! Guilty! Graber declares Lincoln Wrong! Wrong! Wrong! Lincoln “consistently misperceived the dynamics of antebellum constitutional politics . . . [m]ost significantly, Lincoln misconstrued the fundamental principles underlying the antebellum constitutional order” (Graber 2006).

Teamed with Maltz and Arendt, Graber’s book would make for an engaging graduate seminar. Graber likely would agree with Maltz that DRED SCOTT was a “colossal judicial failure (p.3) in the specific sense that the majority attempted to foreclose debate on the constitutional evil of slavery. (“By attempting to close off criticisms of slavery, Southern political actors were eliminating the main republican practice furthering emancipation: rational persuasion” [Graber 2006]). For Graber, Lincoln’s stance was even more risky. He embraced an armed quest for constitutional justice even though he could not know the prospects of achieving it. (“No guarantee existed in 1861 that war would free the slaves” [Graber 2006]).

History does not lend itself to bright lines or single causes. Still, it seems clear that, by April 12, 1861, Americans had run out of miracles. National [*673] conversations about slavery disintegrated into civil war. Americans stopped talking, and began killing one another. The politics of slavery – Maltz’s subtitle and topic – was replaced by a war (in significant measure) over slavery. Civil wars, as Arendt said of war in the twentieth century, “are monstrous catastrophes” (Arendt 2005). That the American catastrophe was not avoided obscures the possibility that, had hubris not prevailed, war might have been averted. Hubris is a key element in tragedy. Heroes sometimes may forestall tragedy. In a 1995 article, Maltz characterizes Justice Benjamin Curtis as “The Unlikely Hero of Dred Scott” (Maltz 1995). Curtis’ heroism consisted of being a compromiser. He was open to consent reached by mutual concession:

Curtis declined to hold that the Constitution embodied either the proslavery or antislavery view of slavery in the territories. Further, just as he had earlier urged the governments of the free states to respect the rights of slave states to define the relationship between their inhabitants, in Dred Scott he recognized that antislavery governments had similar rights over their domiciliaries and native-born inhabitants (Maltz 1995).

“By 1861, however, compromise had become impossible. The sectional divisions had become too deep to be healed by those who, like Curtis, sought the middle ground of accommodation and compromise on the slavery issue. Thus, the dispute could only be resolved by one side or the other achieving total victory – a victory won by military force” (Maltz 1995). Sadly, although humans “can cheat” (Arendt 1969) the seemingly inevitable – by acting freely, miraculously, and heroically – having the ability to cheat does not mean we will do so.

REFERENCES:
Arendt, Hannah. 1965. ON REVOLUTION. New York, NY: The Viking Press.

Arendt, Hannah. 1968. BETWEEN PAST AND FUTURE. New York, NY: The Viking Press.

Arendt, Hannah. 1969. ON VIOLENCE. New York, NY: Harcourt, Brace & World.

Arendt, Hannah. 2005. THE PROMISE OF POLITICS. Jerome Kohn (ed). New York, NY: Schocken.

Bowen, Catherine Drinker. 1966. MIRACLE AT PHILADELPHIA: THE STORY OF THE CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787. Boston, MA: Little, Brown.

Cover, Robert M. 1984. JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS. New haven, CT: Yale University Press.

Graber, Mark A. 2006. DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL. Cambridge, England: Cambridge University Press.

Hobson, Charles F. 1996. THE GREAT CHIEF JUSTICE: JOHN MARSHALL AND THE RULE OF LAW. Lawrence, KS: University Press of Kansas. [*674]

Maltz, Earl M. 1995. “Bondage, Freedom & the Constitution: The New Slavery Scholarship and Its Impact on Law and Legal Historiography: Slavery and The Constitution: The Unlikely Hero of Dred Scott: Benjamin Robbins Curtis and the Constitutional Law of Slavery.” 17 CARDOZO LAW REVIEW 1995.

Maltz, Earl M. 1998. “Brown v. Board of Education.” In William N. Eskridge, Jr. and Sanford Levinson (eds). CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES. New York, NY: New York University Press.

Waldron, Jeremy. 2000. “Arendt’s Constitutional Politics.” THE CAMBRIDGE COMPANION TO HANNAH ARENDT. Dana Villa (ed). Cambridge, England: Cambridge University Press.

Weinstein, Jack B. 2004. “Fifty Years of Reflection: BROWN V. BOARD OF EDUCATION And Its Universal Implications: Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice.” 32 FORDHAM URBAN LAW JOURNAL 131.

Wellmer, Albrecht. 2000. “Arendt on Revolution.” THE CAMBRIDGE COMPANION TO HANNAH ARENDT. Dana Villa (ed). Cambridge, England: Cambridge University Press.

Wood, Gordon S. 2007. “Reading the Founders’ Minds.” 54 THE NEW YORK
REVIEW OF BOOKS 63.

CASE REFERENCES:
DRED SCOTT v. SANDFORD, 19 Howard 393 (1857).

LEMMON v. PEOPLE, 20 N.Y. 562 (1860).

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© Copyright 2007 by the author, James C. Foster.

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THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND PROGRESSIVE POSSIBILITIES

by Kent Greenfield. Chicago and London: The University of Chicago Press, 2006. 257pp. Cloth. $45.00/£28.50. ISBN: 9780226306933.

Reviewed by Benedict Sheehy, School of Law, University of Newcastle, New South Wales. Email: Benedict.Sheehy [at] newcastle.edu.au.

pp.663-668

Kent Greenfield sets out his objective clearly in the introduction to THE FAILURE OF CORPORATE LAW. He observes that Easterbrook and Fischel’s THE ECONOMIC STRUCTURE OF CORPORATE LAW (1991) is likely the most important book on corporate law since Berle and Means’ 1932 work, THE MODERN CORPORATION AND PRIVATE PROPERTY. Easterbrook and Fischel’s work is informed by their neo-classical economics approach in support of a contractarian/nexus of contracts view of the corporation. This approach is premised on a normative ordering in which liberty is the ultimate value, economic growth the sole objective of corporate law, and assumes externalities, distribution of harms and benefits, and all other such matters will be dealt with most fairly by the market. They believe corporate law is simply a matter of people freely choosing to contract as they see fit and that those choices and goods are exclusively private matters, and of course, are best left to an unfettered market. The corporation is seen as the premier institution of the free market and free contract.

Greenfield states: “Though countless scholars have used it both as a starting point or target, there has never been a comprehensive, theoretical response to Easterbrook and Fischel from the stakeholder perspective. This book is intended to fill that gap” (p.4). Greenfield does so in nine chapters, divided into two parts, plus an introduction and a postscript. The first part, “Fundamental Flaws,” contains five chapters examining the problems of corporate law. The second part, “Progressive Possibilities,” has four chapters in which he explicates how his suggestions could be implemented. Greenfield’s work provides a penetrating critique of the contractarian corporation view and presents a well argued, broadly researched, thoughtful set of recommendations and alternatives.

The strengths of Greenfield’s work are many. His thinking about corporate law begins from the fundamental principles of law and jurisprudence. He considers that justice and social benefit are the accepted drivers of law, and that corporate law should be no exception. He examines the implications of this thinking, provides illustrations, and most significantly, tackles head-on the economics of both the status quo and his proposals. He demonstrates convincingly that the economic arguments, dealing with agency costs, efficiency, and broader social costs do not lead to the socially desirable outcomes predicted by neo-classical theory. Indeed, Greenfield demonstrates the opposite by extensive reference to economic and behavioral studies. [*664]

He does the same with the matter of the distributions. Whereas Easterbrook and Fischel, and neo-classicists, generally ignore matters of distribution leaving it to free negotiation, Greenfield demonstrates that this arrangement not only undermines corporate governance success and economic growth, but also contributes to the unraveling of the social fabric necessary to a functioning economy. Greenfield demonstrates, again citing empirical studies and using vivid examples, that the market has not produced the outcomes predicted, and indeed that leaving things to the market is not only a failure of predicted outcomes, but indeed a retrogressive step.

He identifies a number of critical assumptions in free market ideology and unpacks them in the context of corporate law. For example, he notes that the assumption people are free to contract as they choose ignores the extreme inequalities in bargaining power between parties (pp.19ff). Further, he notes that economic rationality is an impediment to actual rational corporate practice (Ch. 9). He draws out the implications of the ideology and examines whether indeed, they are the desired or appropriate framework for corporate law.

Greenfield does not shy away from addressing the arguments of Easterbrook and other neo-classical law and economics scholars. In a critical, thoughtful way he follows the permutations of rebuttals to his critique, and further argues and examines the validity or consequences of the rebuttals. He does not shrink from putting the neo-classicists’ best case forward. By taking this transparent and fair approach to other points of view, Greenfield avoids the apologist’s escape of building a straw man of one’s opponents and then discrediting the straw man instead of the actual arguments. Many of these strengths will be made evident in a thorough review of Chapter One, which will in turn be followed by a broader assessment of the balance of the book.

This first chapter identifies the problems with the currently popular view of the corporation as a contract (“contractarian” view). Greenfield provides an extensive critique of the economic nexus of contracts approach to corporate law by illustrating how it facilitated the September 11, 2001 terrorist attack and the subsequent invasion of Iraq. He argues that the terrorist attacks are an example of how the market failed to provide appropriate safety by its exclusive focus on low costs, by information asymmetries between airlines and passengers, and by failing to provide passengers with real choices concerning safety. He then visits another failure of the nexus of contracts approach, namely that ultimately the shareholders are watching the corporation. Greenfield demonstrates quite clearly that shareholders have neither power nor interest in these matters. In other words, the free market cannot address such issues, is not designed to, and never will. Accordingly, it will be necessary to consider other approaches to corporate modeling.

As noted, the contractarian theory is based on the assumption that all participation in the corporation is [*665] voluntary, and hence there are no negative consequences of corporate action—i.e. externalities. Greenfield challenges this theory, pressing further the September 11, 2001 example. He observes that many people on the ground were profoundly affected by airline decisions about low levels of investment in security. Corporate law concentrates decision making in the hands of managers who are only accountable to the shareholders and ignore all other parties or stakeholders. As Greenfield puts it: “By centralizing power in management, limiting the involvement of other stakeholders in corporate decisions making, and imposing a requirement that firms’ management care about making money first and foremost, the law has created an entity that is guaranteed to throw off as many costs and risks onto others as it can” (p.17).

These issues, such as who is involved in decision making and the identification and management of externalities, are matters of corporate governance. This analysis leads Greenfield to identify yet another fundamental flaw of corporate law. He writes: “Instead of creating a governance system that would help internalize the concerns of customers, employees, or society in general, the system of corporate governance in the United States sets up shareholder interests as supreme and centralizes decision making so that those interests are served. Other stakeholders are left to depend on mechanisms outside corporate law, primarily in the form of express contracts or government regulation, both seriously imperfect, to protect their interests” (p.17).

Greenfield uses this basis for the critique that follows. As he observes, corporate law, “like other areas of the law, could choose to advance public virtues—such as dignity or fairness or compassion or equality or autonomy—in addition to utility” (p.18). The decision to do otherwise simply serves to re-enforce inequalities in bargaining power in the corporate organization. He examines the distance between the free market ideology and practice, noting among other things the anti-free market stance of business, and most interestingly, that the main support for free market ideology comes from the academy, including corporate law scholars, rather than business.

The second chapter, “Corporate Law as Public Law,” addresses the issue of whether the arrangements within the corporation are matters of private or public law. He observes that the basis for the current model is the notion that the corporation deals only with private, contractually formed rights and obligations. As such, there is a significant hurdle to be mounted before one can justify interfering in such orderings. However, Greenfield notes that the free market is not an unbiased baseline but a political decision, and the rights created and distributed by the law have the same basis. Further, he observes that in many instances, government regulations of corporate activity, such as the imposition of minimum wages, are not generally considered interfering with private contract. Rather, they are seen as legitimate parameters ensuring fairer distributions and more socially desirable outcomes. He writes: “corporate law, [*666] just like every other area of common and statutory law, is predicated upon our collective political decisions about what we want our society to look like” (p.37).

He draws from this summary a particularly powerful insight – that social utility of the corporate form is most unlikely to be achieved by a shareholder focus. He argues convincingly, as a matter of regulatory theory, that a loosening and re-orientation of managerial duties would likely serve social utility objectives. He observes that managers have considerably greater knowledge about problems and potential control of such problems than government or external regulators. Accordingly, Greenfield sees an optimal arrangement of responsibilities by granting managers authority to address some issues, but making them accountable to parties with direct interests in them. These issues he rightly identifies as matters of regulatory theory.

The third chapter draws out further implications of his critique. Greenfield provides a most enlightening analysis of the main arguments for shareholder primacy—ownership, agency costs, residual claims, and contract and efficiency. He does so by testing the arguments put forward by shareholder primacy theorists against the same arguments applied to workers. The effect is eye opening. One sees both the weaknesses of shareholder primacy arguments and that, if the concerns raised by shareholder primacy theorists are indeed the true concerns, those arguments apply equally if not more so to employees and other parties involved in the corporation.

The fourth chapter “Corporations and the Duty to Follow the Law” examines critically the claim that breach of the law may be an appropriate and acceptable part of corporate practice. With a challenging examination of the ultra vires doctrine, Greenfield argues that corporate law does have as a basic premise that corporate activity will be controlled to follow prescribed interests. He then examines this argument in the broader interests and context other corporate actors including shareholders, creditors and others, and suggests how an appropriate understanding and use of the ultra vires doctrine would serve well the interests it was created to protect.

The fifth chapter, “Democracy and the Dominance of Delaware,” challenges the dominance of that tiny state in corporate law. As it is the state where the corporation is domiciled that sets the law controlling the governance of the corporation, Greenfield raises the question whether a state with 830,000 people, home to 300,000 corporations which in turn employ 15,000,000 people, is indeed an expression of democracy. He questions the internal affairs doctrine of corporate law, observing: “At some level, politics is about constructing a community. The rules of the community should, according to democratic theory, be put in place either by the community itself or by representatives of the community who are subject to community oversight” (p.120).

Chapter Six follows a short section marking the start of Part Two. In it Greenfield sets out the basis and agenda [*667] for corporate law reform, and he identifies the appropriate principles for corporate law, just the same as for any other area of law. The first three principles should be uncontroversial: 1) The Ultimate Purpose of Corporations Should be to Serve the Interests of Society as a Whole. 2) Corporations are Distinctively Able to Contribute to the Society Good by Creating Financial Prosperity, 3) Corporate Law Should Further Principles 1 and 2. The next two principles are certain to unsettle a few. They are: 4) A Corporation’s Wealth Should be Shared Fairly Among Those Who Contribute to its Creation, and 5) Participatory, Democratic Corporate Governance Is the Best Way to Ensure the Sustainable Creation and Equitable Distribution of Corporate Wealth. This chapter is another of Greenfield’s significant contributions to corporate law.

The two controversial principles are dealt with in depth and with care. In an even-handed, critical manner Greenfield unfolds his argument, setting out propositions, with examples, analysing the various approaches or attacks that could be launched in opposition. He is not reticent to acknowledge problems but finds that the status quo is a greater problem than the alternatives he presents. One need simply propose the alternative to understand the problem with the status quo. Consider the principle: “A Corporation’s Wealth Should be Shared Unfairly Among Those Who Contribute to its Creation.” The second principle, although seemingly controversial has considerable current descriptive power. Greenfield argues that once the first four principles are accepted, the fifth follows logically. He notes that indeed corporate managers in practice do follow these principles to some extent, yet are constrained by overly conservative, anachronistic corporate law. These principles are then explicated in greater detail in the subsequent three chapters.

Chapter Seven examines the potential effects of, and arguments for and against, relaxation of the profit norm, the inclusion of workers in directors’ fiduciary duties, and the representation of workers on boards of directors. The chapter, titled, “Corporate Governance as a Public Policy Tool,” launches a very interesting discussion about the direction of changes to the role and power of the state in the current climate of increased corporate power and reach, and the decline of the state. He does so by exploring the examples of stagnant wages and income inequality in the USA. Relying on skilful analysis of extensive social scientific study, Greenfield mounts a strong argument for cooperation and sharing as beneficial from economic, as well as social perspectives. Drawing from a wider range of literature is a valuable and noteworthy contribution of Greenfield’s work.

In Chapter Eight, Greenfield examines the arguments for an against the requirement that directors tell workers the truth about corporate activities and decisions. Although not a startling proposition, as directors are required to tell the truth to financial markets, as Greenfield discusses it, the duty would have significant consequences in terms of fairness for workers. He presents a [*668] similar analysis and argument by analogy that he used effectively in Chapter Two concerning workers and shareholders. Through a careful cost-benefit analysis, Greenfield concludes that the appropriate solution to truth in the labour market is some form of federal legislation. As an initial step, he provides a small portion of his proposed draft law.

Greenfield examines corporate decision making literature and philosophy in his last chapter, where he turns his mind to the Business Judgement Rule. He notes the contradictions in the rule: it allows managers to deflect from irrationally narrow utility interests, to draw in the experience of decision making that suggests a broader set of criteria and analysis serve the interests at stake more rationally and hence effectively.

Greenfield’s work is refreshing. Instead of the standard approach in which many corporate law doctrines are taken as given, or in which a few are analysed within the accepted framework, Greenfield commences with a reconsideration of the basic and generally accepted purposes and norms of law. The result is as startling as it is enlightening.

The work is well written. He keeps his prose short, his rhetoric under control, allowing his penetrating arguments to do their work. The writing is crisp, with short sentence structures, accessible vocabulary, and clear illustrations. Perhaps the only drawback is that the referencing could be more complete. In certain instances, Greenfield makes a point and fails to provide a reference or cites a single reference, where a reader would like to know what studies have been done, or a broader, more critical review of the literature would be useful. In addition, the work would have been improved by a more complete table of contents, indicating the many and useful subheadings Greenfield uses.
Still, these are minor criticisms of a seminal piece of writing that evidences dominance of a vast range of ideas, research and critical thinking, and puts it into a coherent, well argued, accessible whole in a mere 243 pages. It merits a place alongside Berle and Means, Easterbrook and Fischel, and indeed, one can but hope that it becomes the touchstone for further corporate law reform globally.

REFERENCES:
Berle, Adolf A., and Gardiner C. Means. 1932. THE MODERN CORPORATION AND PRIVATE PROPERTY. New York: Macmillan.

Easterbrook, Frank, and Daniel R. Fischel. 1991. THE ECONOMIC STRUCTURE OF CORPORATE LAW. Cambridge: Harvard University Press.

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© Copyright 2007 by the author, Benedict Sheehy.

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THE LOST PROMISE OF CIVIL RIGHTS

by Risa L. Goluboff. Cambridge: Harvard University Press, 2007. 384pp. Cloth. $35.00/£22.95/€32.30. ISBN: 9780674024656.

Reviewed by Keith J. Bybee, College of Law and Department of Political Science, Syracuse University. Email: kjbybee [at] maxwell.syr.edu.

pp.659-662

What if the main debates over civil rights in the United States were not concerned with whether the government may classify individuals by race? Instead, what if civil rights debates were about whether racial and ethnic minorities enjoyed equal economic opportunities? What if, in other words, the central issues of civil rights were jobs and wages rather than affirmative action and desegregation?

In her terrific new book, Risa L. Goluboff breathes life into such counterfactual questions by examining civil rights litigation in the decades before BROWN v. BOARD OF EDUCATION.

“Like all cases,” Goluboff writes, “BROWN reflected a partial view of the social reality that produced it” (p.238). A wide range of individual complaints, political considerations, doctrinal theories, and litigation strategies had been whittled away by the time BROWN reached the Supreme Court. This winnowing process was particularly important in the case of BROWN, Goluboff argues, because the decision proved to be extraordinarily influential, becoming the central legal and political focus of the civil rights debate after 1954. Goluboff’s goal is to excavate and examine ideas that BROWN displaced.

Goluboff begins with a discussion of the fluid state of civil rights after the demise of substantive due process jurisprudence – a jurisprudence typified by the Supreme Court decision in LOCHNER v. NEW YORK. During the LOCHNER era, the Supreme Court generally “viewed government as an umpire distantly overseeing private contractual relations in which it was occasionally forced to intervene” (p.22). The Court largely abandoned that view in the late 1930s and adopted a view of government as an active provider of rights, legitimately working to protect individuals in the teeth of social and economic inequalities. This break with the past left lawyers and jurists uncertain. The doctrinal categories that grounded professional legal training had collapsed, but it was by no means clear what new categories would be erected in their place. Rather than being a period of stasis or of steady progress toward a known goal, the 1940s were a time of civil rights experimentation (it would only be after BROWN that legal scholars would reach back to cases like UNITED STATES v. CAROLENE PRODUCTS CO. to argue that the successor to LOCHNER-style thinking had quickly emerged). “To most commentators [in the 1940s],” Goluboff observes, “only one thing was clear: the future would be different from the past” (p.23). [*660]

Goluboff claims that, if there was a leading candidate in the 1940s to replace the LOCHNER-era interest in free contract, it was a concern for economic rights. To support her claim, Goluboff not only charts the general growth of pro-labor legislation and judicial decisions coming out of the New Deal, but also catalogs the specific complaints lodged with the Department of Justice and the NAACP by individual African Americans working in the industrial economy and in the rural South. The national-level developments demonstrated that the rights of labor were ascendant, with new policies and agencies designed to improve working conditions and to support union organization. The individual-level complaints showed that rank and file African Americans were themselves very much concerned with jobs. The complaints sent to the DOJ and NAACP repeatedly linked the evils of public and private racial subordination directly to economic exploitation. Agricultural and industrial workers alike were preoccupied with racial discrimination because it interfered with making a living.

With all the attention being paid to economic concerns during these early days, how did we end up with a civil rights debate that focuses on racial discrimination with little concern for material inequality? Goluboff answers this question by examining how lawyers in the DOJ’s Civil Rights Section (CRS) and the NAACP rendered the complaints of African American workers into legal claims.

CRS lawyers did attempt to address the economic harms of the Jim Crow system. For a variety of reasons – including the personal motivations of the CRS staff, the institutional location of the CRS in the federal bureaucracy, and the political pressures of the time – the CRS took up the complaints of black agricultural workers. CRS lawyers couched their legal arguments in terms of the Thirteenth Amendment’s prohibition against slavery and involuntary servitude, a doctrinal move that allowed them to address peonage and economic exploitation in the public and private sectors. Over the course of the 1940s, CRS attorneys gradually expanded their understanding of involuntary servitude to include various kinds of economic coercion. The result was that the CRS effectively expanded New Deal protections in new directions. “Where the New Deal had emphasized labor and economic rights and assisted African Americans only partially and incidentally, these novel involuntary servitude prosecutions aimed to bring African Americans within the New Deal rights framework” (p.143).

The NAACP dealt with worker complaints on quite different terms. The NAACP was formed largely by elites who were ambivalent about the specific concerns of industrial and agricultural workers. Goluboff argues that even though “black teachers, lawyers, doctors, and other elites” did face “barriers to entry in the professions, salary differentials, and other challenges,” they also profited from Jim Crow segregation because it created a “relatively captive black community” dependent on the elites’ professional services. Black elites [*661] primarily experienced the “wrongs of Jim Crow in their personal and political lives – with limited access to government, restaurants, hotels, theaters, and other social, cultural, and political institutions” (p.176). This root concern with the noneconomic aspects of racial segregation strongly influenced NAACP lawyers. They did file labor-related lawsuits in response to worker demands and political opportunities, but these efforts were always “somewhat reluctant and provisional” (p.198). After World War II, when the burgeoning Cold War and the domestic crusade against Communism put civil rights groups on the defensive, NAACP lawyers returned to their core concern and focused more exclusively on racial discrimination itself, arguing that government-imposed racial segregation on its own, independent of any material inequality, inflicted constitutionally suspect stigma.

The NAACP’s vision was resoundingly vindicated in BROWN. This great success reinforced the NAACP’s preferred strategy and ultimately pulled the CRS along in its wake. BROWN had removed the basic uncertainty about the future civil rights that had characterized the 1940s. As the logic of BROWN was extended and refined by continued litigation and academic commentary, the CRS embraced the new approach to civil rights, even though it left the economic consequences of Jim Crow more or less intact. African American workers certainly benefited from BROWN, but not to the degree that they would have had the CRS’s Thirteenth Amendment litigation become the dominant approach. “Enshrined in constitutional law, then, was BROWN’S image of a Jim Crow that had as its central harm the psychological harm of inferiority. That harm and the harms highlighted in the 1940s labor cases could not have been more different. Stigmatic harm was not unimportant to the workers who complained to the NAACP, but they more often emphasized the economic harms that segregation entailed: less work, worse work, inadequate salaries, economic insecurity and lack of advancement” (p.244).

Goluboff’s argument is clear and well-organized. Although she draws on a wide range of primary material and weaves together an impressive amount of scholarship from law, history, and political science, she wears her learning lightly and writes in a manner that is accessible to the non-specialist. Goluboff’s book also provides an important counterweight to the common scholarly focus on judicial decision making. Goluboff expertly identifies and examines the dozens of small decisions made by lawyers as they determine how experienced harms should be translated in legal claims. In doing so, she demonstrates how lawyers generate the basic materials that judges use to synthesize their opinions.

In my view, Goluboff could have spent a bit more time exploring the concrete consequences of the CRS’s involuntary servitude litigation. Her argument also would have benefited from a more extended consideration of the difference her history makes for current practice. As a result of her work, Goluboff wants us to be free to re-imagine civil rights in a different form. Yet, given the [*662] well-developed institutional, political, and legal structures that have grown up around BROWN-based civil rights, what impact can we realistically expect from the knowledge that things were done differently sixty years ago?

These concerns are, however, merely quibbles. Goluboff has produced a truly excellent work of legal history that elegantly demonstrates how the basic terms of modern civil rights came to be established.

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

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

UNITED STATES v. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938).

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© Copyright 2007 by the author, Keith J. Bybee.

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UNDERSTANDING THE FOUNDING: THE CRUCIAL QUESTIONS

by Alan Gibson. Lawrence: University Press of Kansas, 2007. 232pp. Cloth. $29.95. ISBN: 9780700615193.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.

pp.655-658

UNDERSTANDING THE FOUNDING continues Alan Gibson’s focus on the period of the American Founding. In an earlier book, Gibson covered the predominant frameworks used to interpret research on the Founding era. In the current text, he dissects four of the most important – and controversial – debates concerning the latter period in order to “clarify the points of disagreement among scholars on these questions, explore what is at stake in these debates, and give contentious answers to them” (p.14). He taps the records of the 1787 Constitutional Convention, THE FEDERALIST PAPERS, and a plethora of secondary sources to address the topic.

Chapter 1 analyzes the legacy of Charles Beard’s economic interpretation of the Constitution. After presenting Beard’s primary thesis – that the Articles of Confederation was replaced by the Constitution in order to guard the value of public securities, protect American manufacturing and shipping interests, and regulate commerce within the United States and abroad – Gibson offers the arguments against Beard’s view. Among the criticisms of Beard’s research are that it contains inconsistencies, methodological errors, and incomplete empirical findings. Various scholars, including Forrest McDonald, E. James Ferguson, Staughton Lynd, Jackson Turner Main, Gordon Wood, Van Beck Hall, Calvin Jillson, and Robert McGuire have sought to modify or disprove Beard’s contentions. In the end, the lack of historical data has prevented a completely accurate examination of the impact of economic interests on the writing and ratification of the Constitution. Still, there is no question that Beard’s groundbreaking work has cemented the depiction of the Constitution as an economic document and the delegates who created it as possessing certain distinguishing traits.

The extent to which the Constitution contains democratic elements is probed in Chapter 2, even though “there is simply no common definition or standard of democracy against which the original design of the American political system can be measured” (p.50). Gibson employs the democratic dimensions of inclusiveness, responsiveness, and political equality to evaluate the Constitution’s content. He finds that the criteria of suffrage and qualifications for office make the inclusiveness dimension the most democratic. On the other hand, the system of indirect and staggered elections together with the longer terms for federal officials as contrasted with state personnel make the Constitution less democratic on the dimension of responsiveness. Similarly, the three-fifths clause, equal representation in the Senate, and the Electoral College [*656] demonstrate that the Constitution was democratically challenged on the dimension of political equality.

In Chapter 3, Gibson examines the debate over whether the American Founding should be studied using a contextual approach or whether the Framers addressed perennial questions which may be adapted to modern times. He notes that the Progressives argued that American revolutionaries “were irresponsible and self interested, that their rhetoric was little more than conspiratorial and irrational propaganda, and that the American Revolution was unjustifiable because the colonists were freer and more prosperous than their English brethren” (p.94). Additionally, linguistic contextualists warn against the practice of scouring historical records to inform contemporary issues. Conversely, others regard the Founders’ political thought as profound reasoning and as containing timeless moral lessons. Gibson attempts to reconcile these competing positions by recommending that when the ideas of the Founders are “irretrievable, we should attempt to understand the differences between us and them, establish a complex account of institutional change and political development, and develop broad categories of contemporary American politics for which the Founders are neither the cause nor the cure” (pp.128-129).

In Chapter 4, Gibson revisits the controversy over whether the political thought of the Founders is based primarily on Lockean liberalism, classic republicanism, or a synthesis of the two. The work of Michael Zuckert clearly classifies the Founders’ political thought as based on the writings of British philosopher John Locke, particularly as they are enunciated in the American Declaration of Independence. That position is refuted by Rogers Smith, who asserts that American political thought relies on faulty conceptions of liberalism. Meanwhile, historians such as Lance Banning, Drew McCoy, and Ralph Ketcham hold that republican concepts were Americanized and synthesized with liberalism. Instead of solving the “dialectic of the republican-liberalism debate” (p.156),
Gibson advances an agenda for scholars which includes (1) examining more closely the Founders’ conception of civil society and the institutions they believed would support it; (2) exploring how the Founders’ political thought differs from ancient and modern political thought; (3) identifying inegalitarian ideologies in the Founders’ political thought and determine their relationship to liberalism and republicanism; (4) investigating more closely the structure of American political institutions, the direction of political development, and how current discourse may be the result of multiple traditions of political thought.

In the final chapter, the author trumpets the use of historiography for comprehending the confrontations covered in the text. Gibson believes it will assist in dissecting the meanings of concepts and provide the impetus for rigorous discussion of important topics pertaining to America’s past. He advocates what he refers to as a “third” relationship or understanding of the Founding, one which would interpret that period “as neither virgin birth nor [*657] original sin, as neither a repository of true or first principles nor a source of shame and guilt . . .” (p.193). For Gibson, such an alternative path would allow modern scholars to “follow their advice when they were right and because they were right, not because they were Founders” (p.194).

Gibson’s book may be compared with other studies on the same topic. Ralph Ketcham (1993) explores the ideas, principles, and debates which accompanied the formation of the Constitution and Bill of Rights. Joseph Ellis (2000) portrays how the men of America’s Founding generation debated and decided issues of the time, of which slavery was directly relevant to the content of the Constitution. Other scholars explore the ramifications of the Constitution’s provisions for later debates. For instance, David Ericson (1993) traces development of American liberalism to both disagreements over ratification of the Constitution as well as to ensuing controversies over slavery and nullification, whereas Bruce Ackerman (2005) assesses the consequences of the Framers’ eschewing of political parties on the maturation of the presidential election process.

UNDERSTANDING THE FOUNDING is not without faults. While the first two chapters are quite well-written and easily comprehendible, the next two chapters are less effectively presented. The reason may be that the author deviates from a discussion of what the Constitution is based on to how it should be studied. Chapter 3 may have benefited from inclusion of the contemporary dispute over original intent versus adaptability of the Constitution. Chapter 4 could have more clearly delineated the classic republican tradition as an alternative to Lockean liberalism. As for Gibson’s “third way” prescription for understanding the Founding era, one may find that course already being utilized in Donald Phillips’ 1997 application of the Framers’ experiences to modern conditions.

As one peruses available studies of early American political thought, it is easy to discern that the majority of offerings are actually the writings of the Founders with little commentary or interpretation. Thankfully, Gibson’s book contributes to a genre of studies that go beyond recitation into the realm of analysis and criticism. Though his research is most appropriate for a sophisticated audience, its premise remains simple: we still have much to learn about the influences on, content of, and legacy of the American Founding.

REFERENCES:
Ackerman, Bruce. 2005. THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF PRESIDENTIAL DEMOCRACY. Cambridge: Belknap Press.

Ellis, Joseph J. 2000. FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION. New York: Alfred A. Knopf. [*658]

Ericson, David F. 1993. THE SHAPING OF AMERICAN LIBERALISM: THE DEBATES OVER RATIFICATION, NULLIFICATION, AND SLAVERY. Chicago: University of Chicago Press.

Ketcham, Ralph. 1993. FRAMED FOR POSTERITY: THE ENDURING PHILOSOPHY OF THE CONSTITUTION. Lawrence: University Press of Kansas.

Phillips, Donald T. 1997. THE FOUNDING FATHERS ON LEADERSHIP: CLASSIC TEAMWORK IN CHANGING TIMES. New York: Warner Books.
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© Copyright 2007 by the author, Samuel B. Hoff.

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BEYOND PREEMPTION: FORCE AND LEGITIMACY IN A CHANGING WORLD

Ivo H. Daalder (ed). Brookings Institution Press, 2007. 190pp. Paperback. £9.99/$19.99. ISBN: 9780815716853.

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

pp.651-654

During the course of modern history much political ink has been spilled on the battle of analogies in American foreign policy discourse: those pertaining to Munich and Vietnam. Legally speaking, and ever since the Islamists severed the skies that fateful Tuesday morning, we too have witnessed a battle between analogies: what Bruce W. Jentleson highlights as the “September 11 effect” (international consensus undergirding the legitimacy of employing force to combat terrorism) and the “Iraq effect” (weakened degree of consensus) (p.41). This is the basic thesis of BEYOND PREEMPTION .

The Brookings Institution, in 2003, launched a project on “Force and Legitimacy in the Evolving International System.” International lawyers, strategists and policymakers – from Europe, Russia, China, Mexico and Latin America, South Asia, the Middle East, and sub-Saharan Africa – engaged in a series of workshops, dialogues and conferences over the course of three years. As Susan E. Rice and Andrew J. Loomis illuminate in their chapter, ‘While conversations with small groups of experts cannot be extrapolated to serve as indicators of entire national attitudes, the conversations do shed light on how policy elites in different countries approach [for instance] the responsibility to protect’ (p.85). The book is comprised from discussions at the international conference that took place in October 2006.

The apocalyptic threats to international security – terrorism, WMD and human rights violations – are described in detail in five chapters, each providing challenges to the traditional doctrine, namely the UN Charter. Each chapter stands on its own merits and can be read alone. More often than not with texts, this becomes totally mind-numbing, traipsing through the same material over and over again, though, in this instance, it is most definitely a beneficial rarity. Enter editor Ivo H. Daalder and the perceptive pragmatists.

Through the horrors of two world wars came the UN Charter which – save two exceptions in Chapter 7 and Article 51 – prohibits the use of force in international relations (Article 2[4]). Such is the embeddedness of the variant of post-traumatic stress disorder that, ‘international law has sought to delegitimize the use of force by an individual state acting on its own’ (p.20). James B. Steinberg provides a breakdown of the traditional cocktail consisting of a large measure of political realism with a shot of law:

Implicit in this view is a belief that internal arrangements within a state, however repugnant, posed little threat to the security or well-being of others as long as that state did not forcibly [*652] venture beyond its borders. Legitimacy was defined primarily in this status quo- preserving sense: it was legitimate to resist the encroachment of others but not to encroach on others, irrespective of the reason for encroachment (p.21).

The traditional doctrine is what the contributors to BEYOND PREEMPTION have been, until recently, accustomed to (though maybe not always contented with). Considering events in the Balkans, the September 11, 2001, attacks and George Bush’s unflinching headship, surely the realpolitik toolkit of yesteryear ought to be discarded to the proverbial dustbin of political and legal history. Daalder buttresses such a calling articulating that, ‘The main threat today is no longer the external behavior of states but rather the external consequences of their internal behavior’ (p.10). Concomitant with such a discussion means opening the can of worms that pertains to sovereignty. Again, Daalder is judicious in his reasoning:

The notion of sovereignty as an absolute right to noninterference must be reformulated to recognize that sovereignty entails real responsibilities – both with respect to those who live within the state and with regard to internal developments that can have an impact on those who live outside it (p.11).

Let us take Afghanistan as an example. Afghanistan’s sovereignty was an obligation as well as an entitlement. A government that will not perform the role of a government forfeits the rights of a government. The Barbary States that terrorized US shipping during the Jefferson administration where theoretically provinces of the Ottoman Empire; however, the Ottomans did not stop their piracy so the US had to do the job instead. The same must ring true for today – notwithstanding liberal media claims of a return to the days of empire! Saying that, as Anne E. Kramer underscores in the final chapter: ‘The most important norm that is evolving and slowly gaining international support is the concept of conditional – as opposed to absolute – state sovereignty’ (p.132). Such a philosophy will not colonize the Security Council’s permanent members (Russia and China) any time soon though, leaving the United Nations an arena for inaction and insecurity (p.13).

What does this leave as an alternative? After cataloguing the downfalls to a regional route in countering threats and legitimizing the use of force, Daalder reasons an effective alternative to ‘multilateral paralysis and unilateral action’ is to be found in a coalition – or rather, a community – of democracies (p.17) (very different from a coalition of the willing: p.130). This is hardly nihil novi mind you – for such thinking harks back to the Nixon Doctrine of 1969. Daalder is not alone in such thinking (Anne E. Kramer reiterates the calling: p.130) for Brendan Simms has similarly called for a “Democratic League” (Simms 2007). In an erudite fashion, similar to that of Douglas Murray, James B. Steinberg questions the contemporary mechanics of the Security Council in his instalment:

There are . . . reasons to question the appropriateness of allowing the Security Council to be the final arbiter of the decision to use force. Although the UN [*653] carries the aura of legitimacy associated with the circumstances of its founding and the lofty principles of its charter, the reality is more complicated. It seems reasonable to question why an authoritarian government in Beijing, which seeks to insulate itself against intervention by outsiders in its internal affairs, should be allowed to block a humanitarian intervention in the Balkans. Similarly, should the Russian government, with its long history of cozy financial dealings with Iraq, be allowed to shield a regime that was believed by most to be actively pursuing dangerous WMD programs? (p.31)

A repertoire of commentators contest (even before 9/11 and Iraq) that with respect to the family of presidential concerns, international law is largely an orphan. Admittedly, US policymakers do not view ‘international law or lack of legitimacy as binding constraints on actions taken’ (p.86) (remind yourself, did not states risk the charge of illegality when intervening in Kosovo on what they deemed to be legitimate humanitarian imperatives?). However, what the Bush administration gets (what Daalder succinctly pens), and what the vast amount of the world regrettably does not is that:

The very possession of weapons of mass destruction by some countries can pose an existential threat, whether or not their actual use is truly imminent. It follows that as long as the threats states face are unconventional (including from weapons of mass destruction and terrorism), relying on the conventional distinction between imminent and latent threats makes little sense (p.8).

The widespread celebration of the quality of deterrence strategies is pertinent today for how it illuminates precisely those conditions that no longer exist – though Bruce W. Jentleson is not too sure (p.55). Instead of symmetrical conflicts, it is asymmetrical ones that haunt policymakers (pp.47-49). A nation must have the right to afford itself with some level of protection without having to overcome the sometimes unachievable chore of verifying that an inevitable attack is coming in weeks or even days.

‘The era of liberal interventionism in international affairs is over,’ so says John Gray. The British philosopher later emphasizes not to ‘caution against throwing out the baby of humanitarian military intervention together with the neocon bathwater’ (Gray 2007). Unfortunate for the London School of Economics (LSE) resident, preemption and intervention are here to stay. This is fact. As a corollary, BEYOND PREEMPTION demonstrates how legitimacy can best escort intercession. As Susan E. Rice and Andrew J. Loomis articulate, until Operation Provide Comfort in 1990 (authorizing protection of the Kurdish population in northern Iraq) ‘intervention under Chapter 7 of the UN Charter was perceived to be permissible almost exclusively in the case of international aggression’ (p.66). Now all that had changed, for the authors explicate that ‘the humanitarian norm of protecting human lives had outpaced the norm of sovereign inviolability’ (p.80). Without leadership such tenets are merely soundbites. Bruce W. Jentleson is all-too-conscious of the vacuum left by no US leadership (p.55) (Niall Ferguson’s words come hurrying back to one in this instance). Subsequently, no great change will occur [*654] with the Inauguration of the 44th President in January 2009. Preempting other publishing houses (as well as the UN) the Brookings Institution has served up a feast for both student and policymaker alike to digest. Also included are five invaluable cross-referenceable appendixes. A definite gem in indefinite times.

REFERENCES:
Gray, John. 2007. “The death of this crackpot creed is nothing to mourn,” The Guardian, July 31st. http://www.guardian.co.uk/comment/story/0,,2138064,00.html

Simms, Brendan. 2007. “We Urgently Need a Democratic Nixon Doctrine,” Social Affairs Unit, May 15th. http://www.socialaffairsunit.org.uk/blog/archives/001499.php

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

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LAW AND RELIGION

by Gad Barzilai (ed). Aldershot, England: Ashgate Publishing Ltd, 2007. 556pp. $275.00 /£140.00. ISBN: 9780754624943.

Reviewed by Martin Edelman, Department of History, Philosophy, and Political Science, Kingsborough Community College, CUNY. Email: me354 [at] albany.edu.

The relationship between religion and law is famously complex. Religious values constitute central elements of societal values that shape the rules, principles and institutions governing society. Institutional policies affect those underlying societal values by reinforcing and entrenching societal beliefs or seeking to change them. The essays collected in this volume by Gad Barzilai, each in its own way, seek to unwrap and demystify the complexities involved. It is a volume frankly designed for the professional reader.

That orientation undoubtedly accounts for the absence of any article attempting to present an overview. Scholars recognize that the multiple interactions between religion and law are so embedded in particular cultures that broad generalizations have limited utility. For example, Jessica A. Platt’s article, “Female Circumcision: Religious Practice v. Human Rights Violation,” amply demonstrates how different Muslim cultures have interpreted that religious ritual in a variety of ways. There are at least four forms of female circumcision; there are a variety of Islamic reasons for the ritual; and in the era of globalization, there is an even greater variation in the adherence to the practice. The point here is that this collection recognizes the importance of exploring, in depth, the complex inter-relationships between religion and law, in each particular culture.

That, in turn, means that the essays in this collection, precisely because they present “thick” descriptions, can only be fruitful starting points for further research. As the series editor, Austin Sarat notes, “they provide access to . . . existing scholarship on a wide variety of subjects integral to the understanding of how legal institutions work in and through social arrangements” (Preface). For example, the pieces by Luke T. Lee and Whalen W. Lai (“The Chinese Conceptions of Law: Confucian, Legalist and Buddhist”) and Ludo Rocher (“Hindu Conceptions of Law”) show how those religions seek to shape all aspects of personal and societal relations. Despite their totalistic objectives, the impact of religious norms has varied considerably with time and place as well as subject matter, politics, and economics.

This is cogently demonstrated by John R. Bowen in “Consensus and Suspicion: Judicial Reasoning and Social Change in an Indonesian Society 1960-1994.” Drawing on the archives from two Indonesian town courts, he analyzes how religious court judges reached decisions on inheritance claims in the face of conflicting customary and religious legal norms. Bowen shows that the judges “employed creative legal devices to bridge differences between Islam [the State authorized legal norms] and [local social norms.]” The changes in judicial decisions were “due to the combination [*650] of political centralization, increased legitimacy of the Islamic court, and the judges’ perceptions of a more individualized society” (p.269).

Similarly, the essays that deal with the impact of religious ideas (as opposed to behavioral norms) on societal legal traditions are sensitive to the myriad conditions involved. Harold J. Berman’s “Religious Foundations of Law in the West: An Historical Perspective” explores the differential effect of Catholicism, Lutheranism, and Calvinism on Western nations over time. But he also amply demonstrates that “[c]ontemporary legal systems derive nourishment from the secular religions – the ‘values’ – of their respective societies” (p.143). Robert M. Cover’s “Nomos and Narrative” shows how discrete religious traditions contribute to evolving legal traditions. He explores the constitutional interpretations of the Free Exercise Clause offered by the Mormons (REYNOLDS v. UNITED STATES [1879]), the Amish (WISCONSIN v. YODER [1972]), and Christian fundamentalists (BOB JONES UNIVERSITY v. UNITED STATES [1983]). Despite his formidable terminology, Cover clearly demonstrates that the alternate ‘narratives’ created by such groups from their own particular religious tradition provided the Supreme Court with the opportunity to re-interpret American constitutional law.

Professor Barzilai has assembled a diverse, intelligent and instructive collection. As with any such anthology, the very diversity of the contributions defies a systematic review. The comments above focused on those pieces that aided this reviewer’s current interests. Other entries will undoubtedly provide fruitful insights to scholars with different concerns. The volume itself plainly merits inclusion in any scholarly library and is a welcome addition to The International Library of Essays in Law and Society series.

CASE REFERENCES:
BOB JONES UNIVERSITY v. UNITED STATES, 461 U.S. 574 (1983).

REYNOLDS v. UNITED STATES, 98 U.S. 145 (1879).

WISCONSIN v. YODER, 406 U.S. 205 (1972).

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© Copyright 2007 by the author, Martin Edelman.

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POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY

by Keith E. Whittington. Princeton, NJ: Princeton University Press, 2007. 320pp. Cloth. $35.00/£19.95. ISBN: 9780691096407.

Reviewed by Kenneth Ward, Department of Political Science, Texas State University. Email: KW12 [at] txstate.edu.

pp.644-648

In POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY, Keith Whittington traces “the process by which judicial supremacy has been constructed over the course of American history” and, in so doing, makes an important contribution to debates in constitutional theory.

Many constitutional theorists frame the problem of judicial supremacy as a legal question that is answered through a correct interpretation of the Constitution. They ask whether judicial interpretations of constitutional law have authority that extends beyond the immediate cases that judges decide; do political actors have an obligation to defer to the Court’s understanding of the Constitution when exercising their own independent authority? Whittington, by contrast, identifies the conditions that have led political actors to defer to judicial authority and explains why, to a surprising extent, they have constructed a regime that is characterized by judicial supremacy.

The book has the depth and breadth of scholarship that we have come to expect from Whittington. He draws on a rich study of history to support a thesis that builds from various literatures in political science generally and the study of courts in particular. Whittington writes with clarity, precision and grace and should be read, if only as a model of what scholarly work should be.

Whittington applies Stephen Skowronek’s model of presidential power to distinguish three contexts that influence the relationship among judges and other political actors. Certain presidents find themselves opposed to weak or dying regimes and thus in the position to mount effective challenges to those regimes. These “reconstructive” presidents come into conflict with all who defend the status quo, and in opposing the basic commitments of the old regime, they often challenge a judiciary that enforces those commitments.

These challenges are uncommon; they are associated with presidents who have sought or achieved significant changes in how we understand our fundamental political commitments, namely Jefferson, Jackson, Lincoln, Roosevelt and Reagan. These are also the presidents we associate with departmentalism, the primary alternative to judicial supremacy. Departmentalism is the view that each institution of government has equal authority to interpret the Constitution such that presidents’ authority to challenge judicial interpretations of constitutional law follows from the office they hold. Whittington, by contrast, attributes both [*645] the authority of these presidents and the consequent reduction of judicial authority to relatively unusual historical circumstances of the particular office holders.

But most presidencies are not reconstructive. Of these, Whittington distinguishes those that are aligned with the dominant regime and those that are opposed. In these contexts, constitutional politics does not manifest the creativity seen when the fundamental commitments that define the regime are at issue. Presidents find themselves constrained by the constitutional understandings of the dominant regime and must compete with other political actors, including the judiciary, to specify the meaning of those understandings.

Whittington contends that in these contexts political actors have incentives that tend toward an expansion of judicial authority. He illustrates how a judiciary aligned with the dominant regime gains authority as political actors create new judgeships and expand jurisdiction to allow it greater opportunity to enforce and extend regime commitments, most notably against regional or local interests opposed to the regime. Moreover, affiliated judges can sometimes extend regime commitments to areas where their elected allies have disincentive to act or where their coalition is fragmented, such as when the judiciary took the lead in defining the New Deal coalitions’ commitment to civil rights.

Whittington illustrates how judges also gain authority when confronted by presidents opposed to the dominant regime. This is more surprising, as one would expect these presidents to be weaker versions of reconstructive presidents, opposed to the regime but with less ability to challenge it. It is here where Whittington’s analysis is at its best. First, he suggests that these “preemptive” presidents are only nominally oppositional. In contrast to ideological opponents who challenge basic constitutional commitments of the regime, these presidents, such as Cleveland, Eisenhower, Nixon and Clinton, tend to win election by walking an electoral tight rope. To gain office, they must attract at least some support from the dominant coalition and, to do so, must affirm at least some of the regime’s commitments. Thus, they must distance themselves from their natural allies in order to embrace wary friends.

As a consequence, these presidents find themselves in a perilous strategic position, having both divided the dominant coalition and alienated some supporters. Therefore, they are unlikely to make an effective attack against the judiciary and have to worry about more potent rivals elsewhere. More significantly, preemptive presidents have various incentives to strengthen the judiciary in the hope that it might assist them in conflicts with rivals. President Nixon, for example, raised constitutional issues in battles with Congress and appealed to the Court to resolve the conflict. And, after forging legislative compromises with rivals in Congress, Presidents Cleveland and Clinton supported the Court as it struck down compromises that Congress had forced upon them. [*646]

This short summary does not do justice to the sophistication of Whittington’s thesis or to the wealth of historical examples he uses in its defense. His book is a significant contribution to a burgeoning scholarship that considers judicial authority in relation to the broader political regime to which judges contribute.

And while these scholars have done well in moving debates in constitutional theory away from the legal question of whether or why the Constitution gives judges the power of judicial review, Whittington’s historical analysis extends their project. It helps us to see greater nuance in judges’ political interactions with other institutional actors and to identify important normative implications that follow from these interactions.

Legal approaches in constitutional theory have tended to focus on the question of why judges should be able to exercise judicial review in a democratic government. They attempt to explain why judicial review follows from a correct interpretation of the Constitution and how judges must interpret the Constitution so as to ensure that judges enforce a preexisting law rather than override the political judgment of elected officials.

In time, many scholars have recognized the depth of our disagreements about the Constitution and thus the difficulty, if not impossibility, of defending a theory of constitutional interpretation in which judges enforce the law itself rather than a political preference about how we should interpret the law. These scholars recognize that the meaning of the Constitution is contested: judges compete with other political actors to determine its meaning. And with this recognition, debates in constitutional theory have given less emphasis to judicial review, judges’ authority to apply the Constitution, and have paid more attention to judicial supremacy, the relationship between judges’ interpretations of constitutional law and those of rival political actors.

Whittington, for example, criticizes legal approaches because they assume that the Constitution has a set meaning and ignore the political significance of our disagreements about the Constitution. Judges, in his view, are not able to enforce their interpretations of the Constitution when facing considerable political opposition, and he believes that this is a good thing because the Constitution would lose vitality if the People no longer viewed its commitments as their own.

But Whittington goes beyond those political approaches that view judges’ interactions with political actors as sufficient to establish the democratic legitimacy of judicial authority or that identify problems that follow from a judiciary too closely aligned with the dominant regime. Although he associates judicial authority with the historical circumstances in which judges exercise power, his historical study contradicts the simple equation that leads one to believe that judges can exercise authority effectively only when judicial decisions are in line with the dominant regime. While it is true that political actors often bolster judicial [*647] authority in order to give judges greater warrant to advance the ends of those actors, Whittington recognizes that judges use those warrants to advance their own ends as well.

Indeed, Whittington’s analysis suggests two reasons that American constitutionalism has tended toward judicial supremacy. First, judges do not often face the challenge of a reconstructive presidency and, more typically, find themselves in circumstances in which political actors have reason to bolster their authority. Second, during affiliated and preemptive presidencies, political actors contest the meaning of a regime’s constitutional commitments even when there is consensus about what those commitments are in the abstract. As a consequence, judges will have significant influence over what shape the regime takes, because they can sustain their authority to resolve those disagreements by drawing on the warrants various political actors have provided. Moreover, Whittington notes that in the last century political regimes have been characterized by greater ideological diversity, making conflicts about constitutional meaning more likely and thus creating additional opportunities for the effective exercise of judicial authority.

Whittington is at his best describing the conditions that explain the authority judges exercise today and, for the most part, that is what his book does. He is less convincing when making his own qualitative assessments. He seems to give a qualified endorsement to the practices that have come to characterize American constitutionalism. Whittington believes that the weakness of the judiciary during reconstructive periods creates an opportunity for political actors to redefine our fundamental values while reaffirming our commitment to the Constitution, and during other periods, judges’ interactions with political actors allows authority to shift among different institutions such that the government as a whole can pursue policies that might be unattainable in governments in which responsibility for constitutional interpretation rested solely with an easily identifiable institution.

But it sometimes seems that Whittington’s analysis brings him too close to the practices he describes and leaves him without critical distance necessary for qualitative assessment. For example, Whittington rejects legal arguments defending judicial supremacy. He contends that in some contexts political actors will continue to challenge the judiciary, even if it were true that judges perform an important legal function that should lead these actors to defer. It would seem, however, that if there were reasons to favor judicial supremacy, this would be reason to consider institutional changes that would make it more likely that political actors would defer to the judiciary. We might favor a constitutional amendment that gave the Judiciary authority to resolve our disagreements about the Constitution, for example.

On the other hand, we might agree with Whittington about the virtues of the current system. But to do so, we would have to agree on some standards for [*648] assessing institutional arrangements. Whittington brackets this problem, notwithstanding the qualitative claims he makes.

Given the careful analysis that characterizes the book as a whole, I believe that Whittington is identifying normative considerations that follow from particular institutional arrangements rather than defending the arrangements themselves, at least in any strong sense. Indeed, it is important to recognize that his normative claims are assertions and not arguments, in order to see how the book suggests a direction that constitutional theory might take.

Whittington makes an important distinction between constitutional law and constitutional theory. We will not make correct judgments about the form constitutional government should take if we consider the Constitution as abstract law disconnected from the institutional practices that give it vitality. But to assess competing institutional arrangements adequately, we must sustain a normative discourse that is removed from those practices.

Constitutional theory, then, faces a threefold challenge. We must do a better job keeping our discussion of the best institutional arrangements separate from our discussion about how to interpret the Constitution. Our discussion of the best institutional arrangements should be informed by a study of the consequences that have followed from actual political practices. And we need to clarify the normative standards that we use to assess competing institutional arrangements. Whittington makes an important contribution to our understanding of the development of American political institutions and raises interesting questions about the shape those institutions might take. In so doing, he addresses each of these challenges.

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© Copyright 2007 by the author, Kenneth Ward.

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THE CHIEF JUSTICESHIP OF CHARLES EVANS HUGHES, 1930-1941

by William G. Ross. Columbia: University of South Carolina Press, 2007. 304pp. Cloth. $49.95. ISBN: 9781570036798.

Reviewed by Donald Grier Stephenson, Jr., Department of Government, Franklin & Marshall College. Email: grier.stephenson [at] fandm.edu.

pp.639-643

As systematic study of the United States Supreme Court began in the first third of the twentieth century, it became commonplace to think and write about the development of the Third Branch and American constitutional law in terms of periods bearing the name of the chief justice in office at the time. This scholarly convention has inspired the CHIEF JUSTICESHIPS OF THE SUPREME COURT, under the general editorship of Herbert A. Johnson of the University of South Carolina School of Law. The series already includes books on the Court before Marshall (Casto 1995), the Marshall Court (Johnson 1997), the Fuller Court (Ely 1995), the White Court (Pratt 1999), the Vinson-Stone years (Urofsky 1997), the Warren Court (Belknap 2005), and the Burger Court (Maltz 2000). The recent addition by William Ross of Samford University’s Cumberland School of Law explores the legally and politically tumultuous eleven-year period between 1930 and 1941, when Charles Evans Hughes was the eleventh occupant of what has occasionally been called the “chair under the clock.” Well researched and engagingly written, Ross’ contribution lives up to expectations generated by its predecessors. The author seems as comfortable with the literature of political science and constitutional history as with law.

The Hughes Court, its middle years in particular, certainly ranks among the most fascinating and critical moments in Court annals. Against the backdrop of the nation’s severest domestic crisis since the Civil War, the Supreme Court invalidated significant parts of President Franklin Roosevelt’s New Deal legislative program. This turn of events provoked a counterattack that dwarfed all previous attempts at Court-packing and Court-curbing. The justices then jettisoned a substantial body of jurisprudence that for nearly a half-century had characterized its labors to varying degrees in defense of property rights. As if that shock to legal sensibilities were insufficient, the Court, for the first time and on an unprecedented scale, shortly embraced serious protection of noneconomic personal rights and liberties. Moreover, having been unable to make a single appointment to the Court during his first term, Roosevelt enjoyed an abundance of vacancies after 1936 so that, by the time Hughes retired in the summer of 1941 at age 79, the president had been able to reconstruct the bench. That train of events suggests several respects in which the Hughes Court intersects with contemporary interests in public law and the judicial process, including judicial selection, the role of the Court in American government, approaches to constitutional interpretation, judicial decisionmaking, and the Court as a [*640] political institution. The Hughes chief justiceship, therefore, is clearly worth the time of both author and reader.

No chief justice has assumed office with greater breadth and depth of experience in public life. Indeed, unlike any previous chief other than Edward Douglass White, Hughes began his tenure on the Court with the special advantage of having sat as an associate justice (1910-1916). He had also been governor of New York and, in 1916, the Republican nominee for president. As Secretary of State in the Harding administration, he received credit for a naval disarmament treaty among the great powers. An acclaimed leader of the American bar, he was sitting as a judge of the World Court when President Hoover picked him to succeed William Howard Taft in 1930, a nomination that symbolically ran into unexpectedly stiff opposition from progressives. Confirmation by a vote of 52 to 26 (with 18 senators not voting) was evocative of two other highly contentious, but ultimately successful, nominations for chief justice: Roger B. Taney’s in 1835 and Melville W. Fuller’s in 1888.

Concerns expressed that Hughes would lead a Court too solicitous of corporate interests were soon confounded by a record that, for nearly five years, was “more deferential toward regulatory legislation than at any time since his previous tenure on the Court” (p.29) with Hughes sometimes providing the fifth vote to spare a statute from annihilation. Propitiously, the bench seemed less deferential than its predecessor toward laws curtailing personal freedoms, again with Hughes casting an essential fifth vote. For the reform-minded, however, this glimmer of hope proved, in the short run at least, to be the dusk before the dark, once the Court disposed of its first significant batch of New Deal legislation during 1935 and 1936.

The results were even gloomier than the president’s supporters had feared. In just 17 months, the Court struck down eight “federal economic regulatory statutes and limited the scope of another, while upholding only one in its entirety and another only in part.” The carnage was unprecedented. “Never before had the Court so severely frustrated an administration’s political agenda during so short a period” (p.58). State regulatory laws foundered on the shoals of unconstitutionality as well.

Ross offers several explanations for this astonishing resistance to the president’s agenda. First, and most obvious, was the composition of the Court itself which provided an unreceptive environment at best. Any litigant challenging a New Deal measure seemed nearly assured of four votes (from Butler, McReynolds, Sutherland and Van Devanter). By contrast, the president could ordinarily count on no more than three justices (Brandeis, Cardozo, and Stone). This left the validity of the New Deal, as well as state legislation inspired by the New Deal, in the hands of two justices (Hughes and Roberts). Second, with programs that were as novel as the economic emergency to which they were directed, the New Deal imperiled itself. Even though adequate constitutional precedent existed to undergird Roosevelt’s policies, those theories, [*641] which the trio of justices more friendly to the New Deal could capably articulate, had never been applied by the Court to policies fundamentally designed to re-make the national economy. Third, the variety of New Deal responses seemed to disrupt “the delicate balances of federalism and separation of powers” (p.244). These were concerns shared even by the Court’s liberal bloc, as illustrated by the votes in SCHECTER POULTRY (1935) and RADFORD (1935), and the single dissent by Cardozo in PANAMA REFINING (1935). Judicial resistance may have been facilitated as well by public opinion that remained dubious about the new regulatory era even while handing Democrats generous margins in the 1936 elections. Fourth, support of New Deal initiatives was made more difficult at the margin by sloppy legislative drafting and less than stellar legal defense. Finally, Hughes and Roberts, both “Yankee Protestant Republicans who were devoted to an ideal of disinterestedness government” may have shared “a fundamental distrust” of the New Deal “because its power emanated from a coalition of corrupt urban political machines and feudal white southerners” (p.245). The reservations of Hughes and Roberts – and it would be their objections after all that were dispositive – may have thus been as much cultural as jurisprudential.

However one assesses the causes for the hostile environment that prevailed at the Court, there remains in doubt what Ross terms the “enduring dilemma” (p.243) of the Hughes Court and the puzzle the book attempts to unravel: the timing, causes and extent of the transformation that took place. For those the author calls “internalists,” the “Court’s “consistent approval of economic legislation beginning in 1937 was not revolutionary but rather the natural result of an evolutionary process by which the Court gradually had accepted the regulatory state.” By contrast, so-called “externalists . . . draw upon a tradition of legal realism and behaviorialism in contending that the Court’s 1937 decisions constituted a distinct departure” (p.xviii) from the bench’s earlier posture, a reversal brought about by the 1936 elections and particularly the Court-packing proposal. For externalists these events persuaded Hughes and Roberts “to accept more deferential attitudes toward such laws” (p.xviii). The author espouses neither viewpoint exclusively but draws from both as one or the other at various points in the story seems to enrich understanding of the forces that transformed the Hughes Court. For instance, the external factors of the 1936 elections, FDR’s attack, the social tragedy of the Depression, and the transformation of public attitudes toward government itself seem most persuasive at least in accounting for Roberts’ switch to a position favorable to the New Deal. Ultimately, however, what mattered most in changing the Court was not that Hughes and/or Roberts became “wholehearted converts to a theory of judicial restraint in economic cases, but rather because the numerous justices appointed by Roosevelt formed a permanent liberal majority” (p.249). It was this new majority that cemented judicial restraint onto economic regulations and shifted to a new activism as presaged by Footnote Four of [*642] CAROLENE PRODUCTS (1938). This new majority also closed the door on adoption of a regulatory middle ground by which most, but not all, economic regulations would be allowed to stand.

Aside from confronting what happened on Hughes’ watch and why, Ross also assesses Hughes as chief justice. Acknowledging the well-documented success of the “jovian presence” (p.219) as court administrator, the author also acknowledges the views of critics that Hughes “might have done more” (p.219) to avert the crisis of 1937, particularly with respect to Roberts whose position in TIPALDO (1936) Ross finds inadequately explained by Felix Frankfurter’s (1955) latter apparent attempt to enable Roberts posthumously to exculpate himself. Ironically, despite the political experience and presumed acumen that Hughes brought to the bench, his Court needlessly moved to the constitutional brink. Yet Ross believes that Hughes deserves credit for preserving the Court’s power and prestige and, when public support mattered most, in averting long-term hostility toward the institution. Otherwise, a vastly weakened and ineffectual Court, with profound consequences for later generations, might have been Hughes’ legacy. In his lectures on the Court at Columbia University in 1927 to which Ross refers in places, Hughes contributed a term of art to public law when he spoke of the Supreme Court’s “self-inflicted wounds” (Hughes 1928, at 50), mentioning DRED SCOTT (1857), the LEGAL TENDER CASES (1871) and POLLOCK v. FARMERS’ LOAN & TRUST CO. (1895) by name. Making its own unintended additions to that list, the Hughes chief justiceship stands as a sobering reminder that even the combination of an imposing professional pedigree and remarkable insight do not necessarily yield altogether enviable results.

REFERENCES:
Belknap, Michal R. 2005. THE SUPREME COURT UNDER EARL WARREN, 1953-1969. Columbia: University of South Carolina Press.

Casto, William R. 1995. THE SUPREME COURT IN THE EARLY REPUBLIC: THE CHIEF JUSTICESHIPS OF JOHN JAY AND OLIVER ELLSWORTH. Columbia: University of South Carolina Press.

Ely, James. W., Jr. 1995. THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910. Columbia: University of South Carolina Press.

Frankfurter, Felix. 1955. “Mr. Justice Roberts.” 104 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 311-349.

Johnson, Herbert A. 1997. THE CHIEF JUSTICESHIP OF JOHN MARSHALL, 1801-1935. Columbia: University of South Carolina Press.

Hughes, Charles Evans. 1928. THE SUPREME COURT OF THE UNITED STATES. New York: Columbia University Press. [*643]

Maltz, Earl M. 2000. THE CHIEF JUSTICESHIP OF WARREN BURGER, 1969-1986. Columbia: University of South Carolina Press.

Pratt, Walter F., Jr. 1999. THE SUPREME COURT UNDER EDWARD DOUGLASS WHITE, 1910-1921. Columbia: University of South Carolina Press.

Urofsky, Melvin. I. 1997. DIVISION AND DISCORD: THE SUPREME COURT UNDER STONE AND VINSON, 1941-1953. Columbia: University of South Carolina Press.

CASE REFERENCES:
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

LEGAL TENDER CASES [HEPBURN v. GRISWOLD, 75 U.S. 603 (1870) and KNOX v. LEE, 79 U.S. 457 (1871)].

LOUISVILLE JOINT STOCK LAND BANK v. RADFORD, 295 U.S. 555 (1935).

MOREHEAD v. NEW YORK ex rel. TIPALDO., 298 U.S. 587 (1936).

PANAMA REFINING CO. v RYAN, 293 U. S. 388 (1935).

POLLOCK v. FARMERS’ LOAN & TRUST CO., 158 U.S. 601 (1895) (rehearing).

SCHECTER POULTRY CO. v U. S., 295 U.S. 495 (1935).

UNITED STATES v. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938).

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© Copyright 2007 by the author, Donald Grier Stephenson, Jr.

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PUNISHING SCHOOLS: FEAR AND CITIZENSHIP IN AMERICAN PUBLIC EDUCATION

by William Lyons and Julie Drew. Ann Arbor: The University of Michigan Press, 2006. 264pp. Cloth. $65.00. ISBN: 9780472099054. Paper. $25.95. ISBN: 9780472069057.

Reviewed by Robert J. Safransky, School Law and American Government, Nova Southeastern University. Email: Safransk [at] nsu.nova.edu.

pp.634-638

PUNISHING SCHOOLS begins with two quotations: one on violence and one on the purpose of education. Then William Lyons and Julie Drew illustrate how fearsome a school is by recounting their experiences with a lockdown in a suburban school for a “random drug search.” Their teacher guide described the lockdown as “It means dogs. Uniforms. Nobody gets in or out” (p.1). They give a very dramatic description of police officers present for the lockdown and the use of dogs to search students for drugs. The depiction raised some questions in the reviewer’s mind about the lockdown and the negative description of the SWAT team. The description of the young officers’ physical stature, their hair, clothing, the weapons and equipment they carried, and that they were all white men generated a negative feeling. It might have benefited the authors to have talked to the police officers who make up a SWAT team. They should have done some research on why police departments have developed SWAT teams for specific situations and why they wear a different uniform and carry certain equipment.

Why did I have questions about the lockdown and the presence of a SWAT Team? I began a public school teaching career in 1960 and subsequently taught Social Studies in two different high schools, served as a middle school principal, adult vocational school principal, and central office administrator for a total of thirty-seven years in Pinellas County, Florida, before joining the faculty at Nova Southeastern University in 1990.

I contacted Dr. Clayton Wilcox, the Superintendent of Pinellas County Schools, which is the seventh largest school system in Florida and twenty-first largest in the country. Dr. Wilcox gave permission to interview the associate superintendent for school safety and security, the campus chief of police and five high school principals. In addition to the five questions that Lyons and Drew asked at the schools, I prepared fifteen questions about lockdowns and school safety. These questions were asked of the principals and the school system’s chief of police and member of the St. Petersburg Police Department, which provides School Resource Officers (SRO) for the St. Petersburg schools.

The campus chief of police stated that a SWAT team is not used in a lockdown at a school in a drug search for several reasons: first, he does not know of a city police department that has the extra officers available for a SWAT team to be involved in a non-emergency lockdown. Second, the lockdown and [*635] use of dogs would not be permitted, as the 4th Amendment requires sworn police officers to have probable cause to do a search. The chief did not see any evidence presented by the authors of probable cause. A school principal or administrator may do a search if there is reasonable suspicion as spelled out in NEW JERSEY v. T.L.O. (1985). The major in charge of the School Resource Officers (SRO) of the St. Petersburg Police Department and two of his school resource officers were interviewed using the same questions. They were amazed that a SWAT Team and those techniques were used in a school and that no one questioned their use.

The first chapter of PUNISHING SCHOOLS states the theme of the book, “This book is about punishing schools – about the ways schools are punished as both focal points of particular, power-poor neighborhood and, in a more general senses, the ways schools are increasingly being punished regardless of the economic and political power status of their communities by the steady, increasing disinvestment in public education” (p.4). There are some extremely long explanatory footnotes which probably should have been part of the text.

Lyons and Drew describe their research methods, but present them in a way that will make replication quite difficult. The names of the schools, the towns, the newspapers have all been changed. They put their five open-ended questions into teachers’ mailboxes and then interviewed the people who responded. The administrators, teachers, and students were given letters and numbers when they were quoted or cited in a footnote, for example, (Interview of Suburban Teacher 11 = ST 11). These questions must be asked: “Who would respond to an open-ended questionnaire?” “Why did they respond?” “How does a researcher compare written responses?” “What is the mean or median or standard deviation of a response?”

Chapter 2 explores a suburban high school and the conflicts it has. Speaking from my own experience in a suburban high school, there are clear physical differences in schools and communities surrounding them. I interviewed the African-American principal of a suburban school which has gated communities nearby. He also had previously served as a principal of an inner city school. He noted similarities in the two schools – e.g., students want positive peer relationships, and the disagreements they bring with them from the neighborhood reappear at school, sometimes in conflicts and confrontations. Why? Students are adolescents, with imperfect self-control and who sometimes seek solutions through confrontation.

Chapter 3 is all about Pleasantville – a movie which was resurrected by Lyons and Drew to prove their points about schools. “Pleasantville participates in the promotion of a conservative call for traditional family values, the criminalization of youth, and the resulting war on real families and youth culture” (p.7). Chapter 4, “Punitive Politics and Punishing Schools,” presents a long discussion of inner city schools, how they have little or no power [*636] and how they are under-funded. One source of the problem can be traced to the fact that the state use of lottery funds changed after the first few years, with lottery money no longer ear-marked for education. This chapter also discusses the charter school movement and how it developed in the state of Ohio.

Chapter 5 covers the topics of zero tolerance, fear, student conflict, and many anecdotes by teachers, parents, and students about the various types of conflicts that take place inside and outside of school.

Chapter 6 defines various aspects of “punishing schools” based on racial imbalances and lack of funding. Lyons and Drew also report that money is diverted from education to fund prisons. The authors contend that “[t]he data presented in this book highlight the emergence of a zero tolerance culture animated by a plutocratic vision of limited government that has displaced the New Deal coalition with a right-utopian, anti-democratic, cultural (and sometimes electoral) coalition intent on governing through crime and fear” (p.185). They might have considered this proposition: “If schools were truly punished enough, then educators at all levels and parents would demand positive, productive changes in public schools.” Some questions need to be asked of educators: Why don’t the senators and congressmen send their children to the Washington, D.C. public schools? Why do so many of the financially able send their children to private schools? Charter schools and the rise of home schools in the past twenty years should be sending a message to all educators: “we need to improve our schools.”

Perhaps, we might emulate the Japanese, who, after WWII adopted the business and management ideas of W. Edwards Deming. Two of his fourteen points have especial significance for potential improvement in school quality: “1. Create constancy of purpose toward improvement of product and service. 8. Drive out fear so that everyone may work effectively for the company” (Deming 1986). Education administrators need to acknowledge that we need to improve our product and then to start working on making those improvements in every classroom in every school.

The authors base their findings on interviews at two schools in Ohio with administrators, students, teachers, and parents. They did not, however, interview the police who were involved in the lockdown that started the book. Why? When this reviewer interviewed police representatives, they reported being in favor of assisting students to learn how to work out their differences. The campus police chief had written several articles on using a proven technique to reduce conflict and school violence and had worked with a school principal to implement them. Lyons and Drew offer eight pages of references to support their thesis that schools are being punished and that a zero tolerance culture supported by the right-utopian view dominates the agenda. Unfortunately there are no references to any works that present another viewpoint on punishment and schools. There are no references to articles from [*637] the American Association of School Administrators, the National Alliance for Safe Schools, the National Association of Secondary School Principals, Phi Delta Kappa, or to seminars devoted to school safety issues. There is no mention of the No Child Left Behind requirement that parents be informed of individual school safety statistics and the requirement that a school district establish a safety plan. Nor do the authors mention the fact that a student may leave a chronically dangerous school (The Facts About School Safety, www.NoChildLeftBehind.gov ).

Lyons and Drew conclude with these words:
This is not a utopian vision. Nor is this a repudiation of punishment as one tool for managing conflict. . . .
This is a reminder that democratic governments only “provide for the general welfare” when they are built on informed, thoughtful, cooperative, prudent, and innovative forms of citizenship – and these depend on investing more in a democratic information system that starts with a vigorous education and resilient civic organizations than in prisons or punishing schools. This is the foundation for our prosperity that Adam Smith celebrated in Wealth of Nations and the most prudent approach to protecting the “diverse faculties of men” that James Madison insisted was the both the first object of government and the foundation for liberty. (p.203)

It is not entirely clear what their concluding statement means. They spent the book inveighing against punishment but now say punishment is a tool for managing conflict. Perhaps this would have been better stated at the beginning.

REFERENCES:
Bebley, James L. and Heather K. Brickman. 2006. “Legal Issues Related to Developing School Board Policies to Support Safe Schools.” CUBE Issues Seminar, Chicago.

Deming, W. Edwards. 1986. OUT OF THE CRISIS. Cambridge, MS: MIT Press.

Gavin, Thomas A. 2000. “Bringing SARA to School.” AMERICAN SCHOOL BOARD JOURNAL, March, 2000, p.36.

Gavin, Thomas A. 1996. “Profile of the Weapon Carrying Student in Selected Public Middle and High Schools.” Florida Department of Law Enforcement, Issues in Criminal Justice, Senior Leadership Program, Class Four. Available online at: www.fdle.state.fl.us/fcjei/SLP%20papers/Gavin.pdf .

Kenney, Dennis Jay, and Steuart Watson. 1998. “Crime in the Schools: Reducing Conflict With Student Problem Solving.” Police Executive Research Forum, Washington, D. C.

Kenney, Dennis Jay, and Steuart Watson. 1999. “Crime in the Schools: Reducing Conflict With Student Problem Solving.” National Institute of Justice: Research in Brief, July, 1999. This NIJ publication can be found at http://www.ojp.usdoj.gov/nij.

CASE REFERENCE:
NEW JERSEY v. T. L. O., 469 U.S. 325 (1985). [*638]

INTERVIEWS:
Allen, Ed .D., Herman, Principal, Palm Harbor University High School, Palm Harbor, Fl.
Bohnet, Michael, Principal, Dixie Hollins High School, Kenneth City, Fl.
Brewer, Phillip, Sergeant, St. Petersburg Police Department.
Butler, Tyler, Officer, St. Petersburg Police Department.
Cambell, Antelia , Principal, Gibbs High School, St. Petersburg, Fl.
Duda, Dennis, Principal, Lakewood High School, St. Petersburg, Fl.
Gavin, Thomas A., Chief, Pinellas County Schools Campus Police Department.
Nelson, Paula, Principal, Boca Ciega High School, Gulfport, Fl.
Palmer, Barbara, English Teacher, Lakewood High School, St. Petersburg, Fl.
Roseberry, Richard. Sergeant, Pinellas County Schools Campus Police Department.
Turner, Javan, Assistant Principal, Lakewood High School, St. Petersburg, Fl.
Williams, Donnie, Major, St. Petersburg Police Department Investigative Services.

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© Copyright 2007 by the author, Robert J. Safransky.

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THE NEW POLICE SCIENCE: THE POLICE POWER IN DOMESTIC AND INTERNATIONAL GOVERNANCE

by Markus D. Dubber and Mariana Valverde (eds). Stanford, CA: Stanford University Press. 320pp. Cloth. $55.00. ISBN: 9780804753920.

Reviewed by Michael J. Struett, School of Public and International Affairs, North Carolina State University. E-mail: mjstruet [at] ncsu.edu.

pp.629-633

THE NEW POLICE SCIENCE is one of those rare edited volumes where the whole is much greater than the sum of the individual parts. This is an important book because it casts contemporary and historical understandings of police, the police power(s) of states, and the meaning of the verb to police in a new light. It brings together disparate literatures on this topic from the fields of legal theory, legal history, political theory, criminology, and the general social sciences. As the subtitle suggests, a major theme of the book is to draw critical attention to the increased use of policing vocabulary in international politics. Still, the audience for this book goes beyond those interested in international security issues to include anyone interested in the sanctioned use of force and/or regulatory authority by the officers of sovereign states, both domestically and internationally. The book is also an excellent example of the continuing intellectual payouts from Michel Foucault’s suggestions on the re-conceptualization of the human sciences (1971), and that is true even though the authors represent a variety of theoretical dispositions.

In their introduction, Markus Dubber and Mariana Valverde draw out two conclusions from the book, which alone would make this collection entirely worthwhile, even were they the only contributions of the analysis. The first is that the concept of policing brings together the forward looking and backward looking powers of the state. To police a community through zoning laws and public health ordinances is forward looking, to hold criminals accountable for their acts focuses on past misdeeds. “[I]t becomes clear that “police” works as a sort of temporal-hinge word, allowing the governance of the past to be articulated with the governance of the future. Prevention and punishment are very different logics of governance; “police” is the middle term that links them.” (pp.4-5). The second is the idea that police power is always in large part discretionary, paternal, and idealized as requiring the exercise of sound judgment. Consequently, policing always sits in awkward relation to the ideal of living in a community ruled by laws. Police power is necessarily a discretionary power, which only rarely can be supervised by courts. This chapter also offers a nice summary of the range of uses of the terms police and policing; that discussion is fleshed out by the individual contributions to the volume.

Chapter One by Mark Neocleous lays out some theoretical foundations for a ‘new police science’ or as he would prefer, “a new and productive approach to the police idea and thus a critical [*630] interrogation or police power rather than a new police science” (p.18). He explains that, while the study of police powers was once integral to political theory, the twentieth century academy has for the most part relegated the study of police to criminology, and therefore a liberal conception of gradual reform of police departments as instruments of crime control has predominated (p.17). Neocleous would prefer a study of policing that is directed “toward unearthing and exploring (1) the broad powers and remit of police, (2) its essentially nonliberal connotations, and (3) its mode of functioning through a complex network of institutions” (p.18). Accordingly, for him, this study should include in its scope all of the administrative apparatus of the modern welfare state and not simply police departments as such. He further concludes that this study should address the connection between policing and security, and “in a mode that is critical of the climate of fear generated by the political manufacture of insecurity” (p.39).

Chapter Two, by Pasquale Pasquino, is an enlightening examination of the concept of police in early modern political theory, with a particular focus on protestant Germany in the later half of the 17th century. Police was in this early period synonymous with politics. Pasquino reads two works from the period, which he argues had as their theme instruction on the art of ‘policey’ meaning governance broadly. And so he links the birth of the concept of policing in modern times to its roots in the establishment of the modern state itself as a political form.

For international relations scholars, like myself, interested in contemporary debates about humanitarian intervention and the emerging international norm of the “Responsibility to Protect,” Chapter Three has a fascinating nugget. The bulk of the chapter is an examination of the clause in Canadian constitutional law that gives the monarch, with the advice and consent of parliament, the power to ensure “peace, order, and good government in Canada.” This language, common to many states with British colonial legacy, reserves this police power for the Federal government in Canada (pp.78-79). Valverde draws out some interesting comparative implications for the nature of the police power in Canada and other places, and also situates the exercise of the police power with respect to its paternalistic history in colonial practice. The nugget comes when Valverde quotes Michael Ignatieff, the Canadian academic and statesman who has been a leader in the “Responsibility to Protect” movement as arguing the United Nations needs revamped authority to conduct state building exercises, and that the new agency with that mandate should be given Canadian like authority to pursue peace, order, and good government (2004). Whether or not that language should be the foundational authority for the establishment of greater police powers at the supranational level is a critical question indeed, and later chapters address this issue.

Dubber lays out a police power model of the criminal process in Chapter Four, and in so doing he provides the theoretical groundwork for a new direction in social criticism of the [*631] exercise of police powers in contemporary society. The chapter begins with a historical exegesis of the police power, understood as being grounded in the traditional right of a householder to govern his property, household, family, and servants. Accordingly, crimes committed by anyone below householder status are crimes against the household, and when a head of household commits a crime against another household, it is the sovereign state whose ‘household,’ by analogy has been violated. Dubber then shows convincingly how contemporary practices of crime control increasingly follow this logic of focusing on the security of the community’s ‘household.’ Thus most crimes are not crimes against other citizens as in the Lockean ideal of limited government (Locke 1690); instead they are crimes against the state itself. All of which has the effect of gradually expanding the reach of the police powers of the state, because an aggrieved citizen is no longer required for a crime, indeed, status crimes like loitering, possession, and endangerment can be punished even before an underlying act causes any harm to society (pp.134-136).

In Chapter Five, Lindsay Farmer concerns herself with the resuscitation of a jurisprudence of security that would reexamine the connections between the police power and the criminal law. Farmer accepts, for arguments sake, the contention of many of her co-contributors that in many contexts, the police power is discretionary and therefore its scope is difficult if not impossible to regulate through law (p.154). But Farmer concludes that, because the police power is normally exercised through legal norms, its exercise can be made subject to limits. Further, because the exercise of police power draws on social concepts like citizenship and property, it will of necessity be embedded in social norms. Thus she argues “The proper aim of a jurisprudence of security must be that of mapping the networks of institutions and practices, and underlying justifications for the exercise of that [police] power” (p.163).

Alan Hunt offers a fascinating analysis of the continuities and changes in policing that were a consequence of the invention and diffusion of automobiles in his contribution. Hunt uses analysis of this historical change to highlight that policing has historically often been as much about the regulation of movement and exchange as it is about “fighting crime.” Moreover, the example of the historical development of traffic regulation highlights another crucial dimension of policing – namely a “civilizing project” of policing, where drivers, (or other subjects of police power), are taught good conduct, and accordingly, are taught to police themselves. It also led to important developments in the technologies of policing, such as the increased use of monetary fines with little judicial review through the mechanism of “the ticket” (p.180).

In Chapter Seven, “Military Intervention as ‘Police’ Action,” Mitchel Dean takes seriously the claim by critical theorists that the shift to policing vocabulary by the United Nations, the United States, and other powers is an ominous [*632] indication of the emerging dark side to global governance, where the powers and their UN constables will impinge on the ‘sovereignty’ of weaker states just as the police of earlier centuries intruded into the sovereignty of the home. In lucid prose, Dean gives this line of analysis exactly the amount of credit that it deserves, while still daring to suggest that the order providing function of international military operations may indeed have merit. Dean would have us be conscious of the implications of using the language of policing in world order, so that we can observe, analyze and criticize its implementation, particularly when that police power separates from the rule of law, as at Guantanamo and Abu Ghraib. But he is not willing to condemn policing as being inherently bad in the international context.

In Chapter Eight, Ron Levi and John Hagan consider the power and limitations of the alternative discourses of policing and law in ordering international affairs. They begin with the contention that talk of policing is often divorced from consideration of international law, as in Theodore Roosevelt’s “policing” of the Western hemisphere. Conversely, instruments of international law that lay down complex codes of conduct frequently lack provisions for international ‘policing’ of the agreements. Levi and Hagan highlight this lack of adequate police power as the weakness of international criminal law in general, and the 2002 International Criminal Court in particular (p.222). Drawing on work by James Holmes (2003), Levi and Hagan explain that the justification for Roosevelt’s use of force in Santo Domingo and elsewhere in Latin America was expressed in explicitly police-like terms, where the mission was not European style colonial exploitation, but rather “exceptional” American service to promoting good order in world affairs. Indeed, there is some evidence that this benevolent ideology influenced US Marine Corp operations in Santo Domingo, even if the more selfish motives of the United States remained clear. But Levi and Hagan are equally convincing in their argument that for Roosevelt, policing the Western hemisphere was a substitute for international law, not a practice that could be brought under the control of law. For Roosevelt, police of some nature, either honest individuals, civilized nations, or a central authority, are a prerequisite for the establishment of law in any community, local or international (p.221). While discussion of international policing at the beginning of the Twentieth century focused on restoring good order in places we would today label as failed states, in the interwar period there was a shift toward discussing an international peace force for the purpose of maintaining international peace and security against the threat of state-on-state violence. Interestingly, Levi and Hagan point out that we are currently in a period where United Nations peacekeeping operations are increasingly returning to the old focus on ‘international policing’ of ‘good governance’ in places where domestic authority has collapsed. The chapter concludes with some remarks on the implications of all this for the rapid ongoing developments in the field of international criminal law. The authors note, correctly, that the lack of [*633] international police will likely limit the ability of international courts to regulate powerful states. In my view however, Levi and Hagan overstate the problems that the lack of police powers will create for the International Criminal Court. It seems possible to build an international legal community that rests primarily on the “police powers” of the member states of the international community. Undoubtedly, this means that from time to time, states will fail to act as international law and international courts require. As these authors note, the consequence for such dereliction is “diplomatic rather than coercive” (p.234). But non-violent diplomatic pressure can be very coercive, even against fairly powerful states, if the majority of states are committed to a policing of the international order that is grounded in accepted law.

A concluding chapter by Christopher Tomlins problematizes most of the book’s claims from a critical perspective. In general Tomlins is skeptical of the project of building “a new police science.” It is difficult to summarize all of the points raised, but generally Tomlins seems to fear that the critical perspective in the first eight chapters is often not critical enough. For instance, he comments that Ignatieff refers to his ambitions for improved global policing as “’a Canadian kind of imperialism’ without obvious irony” (p.251). But in reading the Valverde and Levi/Hagan chapter, I myself thought the irony was fairly well exposed, even if Ignatieff did not recognize it. While Tomlins gives the reader more to think about, his criticisms mostly only cast in starker relief the stunning breadth of intellectual achievement in the body of this volume.

REFERENCES:
Foucault, Michel. 1971. THE ORDER OF THINGS. New York: Pantheon Books

Holmes, James. 2003. “Police Power: Theodore Roosevelt, American Diplomacy, And World Order.” 27 FLETCHER FORUM OF WORLD AFFAIRS 125-42.

Ignatieff, Michael. 2004. “Peace Order And Good Government: A Foreign Policy Agenda For Canada.” Ottawa: O.D. Skelton Memorial Lecture, March 12.

Locke, John. 1690. TWO TREATISES OF GOVERNMENT.

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© Copyright 2007 by the author, Michael J. Struett.

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WOUNDS THAT DO NOT BIND: VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY

by James R. Acker and David Reed Karp (eds.). Durham, North Carolina: Carolina Academic Press, 2006. 464pp. Paper. $40.00. ISBN: 9781594600807.

Reviewed by John Paul Ryan, The Education, Public Policy and Marketing Group, Inc. Email: johnpryan [at] ameritech.net.

pp.624-628

There is a vast social science and legal literature on capital punishment. Much of this examines policy issues and debates, deterrence theories, Supreme Court decisions, and questions of race, class, and equity. Into this mix, criminal justice scholar James Acker and sociologist David Carp have developed an anthology organized around victim perspectives.

The anthology begins, appropriately enough, with the voices from the surviving parents, children, siblings, or other family members of victims murdered in a variety of tragic settings. In their own words, the voices provide an essential map to the mixture of grief, sorrow, anger, fear, and desire for retribution or revenge that pervade the lives of surviving family members.

A number of themes emerge from these intensely personal eight stories. Some people were treated so poorly or became so frustrated with the criminal justice system that they joined or began victim advocacy programs in their communities. Opinions on capital punishment vary widely among these victims; some favor the death penalty, others are opposed, and sometimes, family members do not agree. Many find it hard to reconcile their opinions about capital punishment in general with a just punishment for the killer of their family member. Most reject the notion that even an execution can provide “closure” for a grieving family; in the words of one mother who lost her daughter in the Oklahoma City bombing, “When the lid of my casket is closed, only then will I have closure” (p.138). These well-developed stories are a powerful reminder to scholars and students alike that capital punishment is not merely an abstract policy debate; it may be the final outcome for heinous crimes committed against real people, whose family members must find new ways to live in their absence.

Acker and Jeanne Marie Mastrocinque begin the next section on “legal perspectives” with an historical overview of the transformation from a system of private justice prevalent before the Middle Ages to public justice – the idea that a criminal action offends not only the victim but, more importantly, society as a whole. This transformation, which also included the later development of professional prosecutors, elbowed the victim from a lead role to a minor player, so minor that a grassroots “victims’ rights” movement developed in the 1980s to bring victim concerns back into the prosecution, trial, and sentencing of offenders. The essays in this section, however, are somewhat repetitive, traversing much of the same constitutional ground, culminating in a [*625] U.S. Supreme Court decision (PAYNE v. TENNESSEE, 1991) that allowed victim impact statements to be considered in the sentencing phase of capital trials. Austin Sarat’s theoretically-grounded essay on Illinois Governor George Ryan’s blanket clemency for death row inmates is perhaps the best of this section. He discusses the norms of retributive justice and the ways in which these norms conflict with the voices of victims, showing how Ryan himself struggled to reconcile these two traditions. However, Sarat provides mostly a rhetorical analysis of Ryan’s public statements, suggesting that politicians mean what they say and say what they mean, in my view failing to consider the particular political motivations and private demons of elected public officials.

In the section on research perspectives, Margaret Vandiver provides a short overview of a fruitful research agenda, noting that “there is surprisingly little research concerning the effects of capital punishment on the families of murder victims” (p.235). Her comments on research methods, including the likelihood of small samples, the sensitivities of the issues and research subjects, and the desirability for longitudinal research, suggest why there has been so little empirical research in the area. Co-editor David Karp and Jarrett Warshaw explore the role of murder victims’ families in the decision-making of jurors. Using national data from the Capital Jury Project, they find that the testimony from families of murder victims has no statistically significant effect on the life or death sentence that juries reach. Perhaps most interesting are their findings with respect to race: family members of white victims are almost twice as likely to offer testimony in the sentencing phase of capital trials as the family members of nonwhite victims. In the absence of additional context data, their interpretation of these differences is appropriately restrained – it might be prosecutorial bias or the voluntary choices of white and nonwhite survivors. This might be added to the research agenda for the field, although if Karp and Warshaw’s empirical findings are correct, it may be a difference that makes no difference for the sentence.

On another research front, Judith Kay offers an analysis of the potential for restitution in murder cases, drawing upon interviews from two small studies of twenty-five people, all of whom opposed the death penalty. She finds that survivors are usually offended by this concept and its economic overtones, which suggest that the value of a human life can somehow be measured in dollars. This section concludes with an interesting study, also based on a very small sample, of mediated dialogues between the offender and surviving family members in capital cases. Mark Umbreit, Director of the Center for Restorative Justice and Mediation, and his colleagues, provide a description of mediated dialogue programs in criminal justice settings and analyze three murder cases in Texas, the first state to establish such a program for violent crimes in 1993. All of the participants reported generally positive (if complex) feelings from the dialogues, which are nicely re-told, including the three death row offenders who were subsequently [*626] executed and the two mothers and granddaughter of the murder victims. Because of the self-selection biases inherent in such programs [the dialogues must be victim-initiated], however, it is difficult to draw many conclusions.

A short policy section brings the anthology to a conclusion. In a chapter on “Reaching Out to the Other Side,” Tammy Krause argues that prosecutors are not always able to provide the surviving family members with what they want or need – information about their loved one’s last moments, whether the defendant is genuinely remorseful, whether the family is willing to endure the burdens of lengthy trials and appeals or would prefer a plea agreement, and so on. She advocates for defense-based outreach to victims and their families, within the parameters of guidance from the victim outreach specialists involved in the particular case. Indeed, the mediated dialogues discussed above provide one form of such outreach. In a similar vein, Peter Loge offers a series of recommendations for policy changes, a key one being the removal of victim services from prosecutors’ offices so that victim outreach can be wholly independent of the prosecution and its agenda for public justice. Indeed, this recommendation emerges from a number of the contributors, who report many stories of prosecutors who arm-twist victims to support the state-preferred capital sentence, trial or plea agreement.

More generally, the book is much more about victim-based perspectives than the death penalty, which provides a convenient window for discussion of a wide range of victim views and concerns. No one article, for example, systematically compares the views of victims and their surviving family members toward the death penalty with the general population. While it is clear from the anthology that not all family members seek or desire a capital sentence – indeed, there is a wide range of opinion – we learn little more. One suspects that the voices of family members who oppose or have serious qualms about the death penalty are more frequent in this collection than at-large, but there is no research, reported or perhaps available, to assess the representativeness of these contributors’ views.

The voices of victim advocates predominate in the collection, both in the personal stories that begin and in the later essays. The research and policy recommendations are values-based or values-driven. Not only does this lead to some repetition of information and perspectives, but it may also leave readers with a feeling that many contributors are engaged in a form of special interest politics rather than informed analysis. Without a doubt, many family members and other victims have been treated shamefully by the criminal justice system or some of its representatives, as this volume amply highlights, and victim rights organizations have contributed a useful corrective to the strong movement toward public justice. But I am not sure that the research and policy recommendations discussed in this collection reflect a very broad view of the criminal justice system. Analysis here does not usually address the tough questions such as: Who would pay for [*627] victim services if not the prosecutor? Would victims’ offices really get much money from state legislatures without the support and involvement of prosecutors? Are there any models for different organization and funding in the states or in other countries? Or, what keeps the death penalty in place in so many states? Is it a general popular support or a narrower base of vocal support from key victims’ organizations, police, and/or other special interests? These are hard questions both analytically and emotionally, but ones that political scientists would like to see asked and researched.

I also have a few technical quibbles. For whatever reason, there is no “About the Authors” section, so the reader often does not know the discipline, job, or perspective of the author. Perhaps the editors felt that the “qualifications” of those telling personal stories would somehow be diminished by descriptions of the professional accomplishments of the academic contributors. But the result is a lack of key information and potential confusion over common names (is it the Judith Kay/e who is the New York State Chief Judge or the professor of religious and social ethics at the University of Puget Sound? It is the latter, above). Ironically, most of the authors of the personal stories tell who they are (victim advocate organizers, teachers, mothers, and so on), but most of the scholars (some of whom also direct mediation centers or victim research units) do not.

On fronts more familiar to anthologies, the editors could have trimmed down some of the repetitious discussions across articles. Repetition is common in anthologies, but the problem is even more obvious in this collection. The editors might also have written a short introduction to each section, perhaps moving some of their remarks from the opening essay to a few paragraphs immediately in front of each section, thereby sharpening the distinctions among the legal, research, and policy sections. The editors could also have penned a concluding article, tying together some of the diverse personal and academic perspectives that make this volume distinctive.

In reflecting on this book, I cannot help but be struck by the sea change in the discourse and scholarship on criminal justice since the 1970s, when I first began teaching about crime, justice, and politics. Then, the (relatively new) procedural rights of defendants took center stage, not the victims or their surviving family members. And sentencing reforms of that era focused on the need to introduce equity and consistency across sentences for similar crimes, which ultimately led to federal and state sentencing commissions. As a few of the contributors to this volume acknowledge, these twin goals of sentencing could easily be jeopardized by introducing a significant voice for the individual victim/s in the sentencing decisions in capital cases. Although the book does not address this enormous change in perspective, it is surely representative of it.

WOUNDS THAT DO NOT BIND will be most effective in undergraduate criminal justice courses; it offers students a rich portrait of victim-based perspectives not likely to be found in [*628] textbooks. But teachers need not assign all of the articles; a judicious sampling will suffice. The book should also be read by key criminal justice practitioners – prosecutors, defense attorneys, judges, and police – many of whom might gain some startling insights into their own behaviors and their impact on outsiders.

CASE REFERENCE:
PAYNE v. TENNESSEE, 501 U.S. 808 (1991).

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© Copyright 2007 by the author, John Paul Ryan.

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