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 as