CRIME, PUNISHMENT, AND POLITICS IN COMPARATIVE PERSPECTIVE

by Michael Tonry (ed). Chicago: University of Chicago Press, 2007. 400pp. Cloth. $60.00. ISBN: 9780226808635. Paper. $39.00. ISBN: 9780226808642.

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

pp.95-98

This excellent eleven-article volume discusses penal policies in the Netherlands, Belgium, England, Canada, Scandinavia, France, and Japan, and it should appeal to political scientists. Michael Tonry’s opening article, followed by Jean-Paul Brodeur’s piece on comparative penology, establish high standards for the authors that follow. Nearly all the contributors rise to the occasion.

There are cultural and political reasons that account for a nation’s being more or less likely to adopt punitive policies. The actual effect of a media blitz differs dramatically because of the political structure and whether the nation has a coalition-type government. Multiple studies and authors have equated moral panics to media.

Jean-Paul Brodeur states that the media focus on a specific criminal act through the constant replay of pictures and sounds leads to legislation that is now the greatest pathology that threatens policy making. Research that does not support policy makers’ objectives is largely ignored, he says. “Punishment is the one policy that is never discredited by its failure to achieve its stated objectives. If it fails to meet its goals, the only reason is that there is not enough of it” (pp. 80-81). That severity may, in fact, be one reason a goal is not reached is not considered, according to Brodeur. The expectation that rising crime rates would translate into more punitive policies does not always occur and depends on country-specific characteristics and consensus political systems.

David Downes’ article on the “Visions of Penal Control in the Netherlands” does a first-rate job of succinctly explaining, not only penal policy, but the evolution and reasons for its changes and current status. The Dutch do not believe in long prison sentences except under special circumstances. They strongly believe in humane conditions during incarceration with the aim of rehabilitation.

By comparison, Sonja Snacken’s “Penal Policy and Practice in Belgium” evolves after an interesting beginning into an overabundance of statistical data that are not meaningfully woven into the reasons for or the historical background of the policy. A unique feature of the Belgium system is the requirement that police must report all incidents to the prosecutor, who has the discretion to move forward with an investigation. “Penal mediation” is a recent Belgium development which allows prosecution to be dropped if the victim and offender reach an agreement on compensation. In spite of some excellent information provided, this too long and repetitive [*96] chapter detracts from the value of the volume.

Victim’s rights are mentioned in nearly every article, and there appears to be a connection between the rise of victims’ becoming a factor in the judicial process and the swing from rehabilitative goals to revenge and deterrence in some nations.

A significantly stronger contribution by Tapio Lappi-Seppälä is filled with historical and contemporary reasons for the changes in penal systems and sentencing goals. Lappi-Seppälä points out that penal severity appears “closely associated with public sentiments (fears, levels of trust, and punitiveness), the extent of welfare provision, differences in income equality, political structure, and legal cultures” (p.219). Although the article is an explanation of Scandinavian policy, these factors can easily be applied to explain penal policy in other countries as well.

What makes Scandinavian countries unique is that inequalities in income and distribution of wealth and power are not tolerated; this is accomplished by the close relationship between employers, employees, and the political system. The Nordic countries also have a relatively corruption-free history. In Scandinavia the belief is that imprisonment should be avoided whenever possible, and punishment should be moderate, restrained, proportionate and respectful of human rights.

What stands out immediately is that low imprisonment rates do not equal spiraling crime rates or high recidivism rates. Long-term sentences are generally restricted to terrorist acts, drug running, and sexual abuse cases. Finland abandoned its “drug-free society” drug control goal in the 1990s as unrealistic. Drug control has tightened in the past two decades, and drug offenses account for the increased Scandinavian penal population. Sex offenses also have stiffer penalties than in the past.

Lappi-Seppälä states that “a system in which the legislature sets policy only in broad terms, leaving the concrete level of sanctions to the discretion of independent judges, is less vulnerable to short-sighted and ill-founded political interventions.”

While the high English and American imprisonment rates are mentioned by all the writers who indicate that Anglo-Saxon communities are currently disinclined toward rehabilitative penal goals, Green alone, in the final essay, attributes them to the politicization of crime. Studies reveal that higher imprisonment rates are associated with lower levels of welfare spending, lower levels of trust in fellow citizens, and lower public perceptions of the legitimacy of the legal system.

Canada had high imprisonment rates in the past, but in the late 1980s a Sentencing Commission reduced maximums and eliminated minimum sentences. The result is a very stable Canadian imprisonment rate. The Canadian historical and cultural underpinnings, which cause its penal policy to differ sharply from both the United States and England, are clearly and concisely explained by Webster and Doob in the 6th article.

David Johnson’s essay on “Crime and Punishment in Contemporary Japan” is [*97] one of the best this volume has to offer. Japan has been heralded as the safest country among developed democracies, but Johnson reveals that, while homicide rates are the lowest in the world, Japanese citizens have a high sense of insecurity. He carefully examines Japanese history and the role that crime and gangs have played.

The door to understanding the current fear of crime and its resultant emphasis on law and order lies in a rarely noticed demographic: the birth rate is at a record low, and life expectancy is the longest in the world. Needing population stability, many foreign workers were admitted; although still quite low, the “total number of legally registered foreigners living in Japan increased more than 50% in the past 15 years.” When you start with a small population, it takes very little change to reach a high percentage: in 1990 there were 46 death sentences, and in 2006, 79 were condemned, representing a 70% increase in 16 years, involving only 33 additional homicides. In response to the fears expressed by the public, albeit unsubstantiated, political leaders and elites have used and exploited public insecurity to create a more punitive system with longer imprisonment terms.

England has also seen a turn towards a more punitive justice system. Political scientists will find value in Tim Newburn’s article looking at the politics of England and Wales and the changes that have occurred. The murder of two-year-old James Bulger by 10-year-olds created moral panic, and in reaction both political parties urged tougher approaches to crime and passed legislation with elements that would be considered unconstitutional in the US: loss of the right to silence, and the inferences from invoking it. Fines lost sanction credibility, and today custody is the sanction of choice for most offenses in England and Wales.

Sebastian Roche’s article explains why French laws appear to have become harsher, but the prison population has risen only slightly. France makes use of diversionary programs, informal procedures, and grants widespread pardons and amnesty. Roche provides good information and explanations of the French system but tends to get bogged down with statistical charts. He provides a basis for understanding why juveniles in particular are often spared prison in France.

René Lévy discusses pardons and amnesties as instruments of policy in contemporary France, thus expanding on the information presented by Roche. Levy explains that pardons and amnesty are routinely used to reduce prison overcrowding, and Bastille Day is celebrated by pardons of entire categories of offenders. Amnesty, erasing imposed sentences, is granted by legislation, and pardons are granted by the executive branch, but are really suspended sentences because of the conditions attached. Political scientists should find this chapter exceptionally useful.

In the concluding article, David Green masterfully compares two cases of child-on-child homicides, one in England and the other in Norway. With its revelations about the media’s role in creating a political climate demanding punitive change, this article is probably one of the best for political scientists. The Norwegian press’ attention to the [*98] killing lasted about two weeks and included multiple discussions by child care experts and psychologists related to reintegrating the offenders. No politicians weighed in with government fault-finding or demands for tougher laws.

Britain’s print media, considered the most competitive in the world, created a moral panic and led to new legislation. Scandinavian newspapers are less sensationalist and less competitive. Norway has a high per capita newspaper readership which is mostly subscription based. Green also shows how the majoritarian and consensus governments differ and the effect they have on media. The political-cultural differences of the two countries provided by Green contribute to the article’s value for political scientists.

The Crime and Justice series has added another very worthy volume to the collection.

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© Copyright 2008 by the author, Caryl Lynn Segal.

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JUSTICE, GENDER, AND THE POLITICS OF MULTICULTURALISM

by Sarah Song. Cambridge: Cambridge University Press, 2007. 212pp. Hardback. $85.00. ISBN: 9780521874878. Paperback. $29.99. ISBN: 9780521697590. eBook format. $24.00. ISBN: 9780511346323.

Reviewed by Jinee Lokaneeta, Department of Political Science, Drew University. Email: jlokanee [at] drew.edu.

pp.91-94

The tension between ensuring rights for cultural minorities and for the individuals within these minorities has been a vexing question for theorists, and it has led to important conceptualizations in recent decades. Sarah Song’s JUSTICE, GENDER, AND THE POLITICS OF MULTICULTURALISM is an exciting intervention in the field of multiculturalism and gender justice that has longstanding implications for both political theorists and policy experts alike. Her book is a testimony to how far this debate has moved from the early discussions on the issue represented by IS MULTICULTURALISM BAD FOR WOMEN? (Okin 1999). The basic question through the decades has been whether special accommodations or rights for cultural minorities lead to a further marginalization of rights of the vulnerable sections, such as women, within these minorities. The debate initially seemed to have two polar ends: One end was represented by multiculturalists who rejected the theory of assimilation and recognized the need to accommodate rights of cultural minorities at any costs due to the past or continued discrimination against them. On the other end were feminists, such as Okin, who rejected this paradigm of group rights because it did not critique the patriarchal bases of these cultural minorities. Okin’s conceptualization was severely criticized for adopting, amongst other things, a “monolithic” version of oppressive cultural groups that needed intervention from “egalitarian” western liberal cultures (Bhabha 1999).

Song’s book is an exciting intervention precisely because she has built upon the critiques of these polarized debates very effectively, while attempting to address the concerns of the multiculturalists as well as feminist theorists. Song suggests that the cultural rights of minorities have to be accommodated precisely because of three reasons: past injustice, present discrimination and state establishment of culture. However, for Song, the case for accommodation depends on particular circumstances. More significantly, these accommodations need to be limited so that they could not come at the expense of rights of individual members within these minorities. Thus, developing and critically engaging with multicultural theorists such as Will Kymlicka, Monica Deveaux, Bhikhu Parekh and numerous others, Song’s formulation is the need for rights-respecting accommodationism. Song defines this normative approach as “committed to both the pursuit of justice for cultural minorities and the pursuit of justice for women” (p.9), where accommodation is both material and symbolic, very effectively invoking Nancy Fraser’s formulation of combining recognition and redistribution. [*92]

Song illustrates her conceptualization of the rights-respecting accommodation in three cases involving a “tension between cultural accommodation and gender equality”: “Cultural defense” cases in American criminal law (chapter 4), aboriginal sovereignty and tribal membership rules (chapter 5) and fundamentalist Mormon practice of polygamy (chapter 6)’ (pp.11-12).

One of the primary strengths of Song’s work and normative approach is an unequivocal rejection of a more essentialist notion of cultural communities, as “well integrated and well-bounded and largely self-generated entities” (p.18) that are easily identified and need to be preserved. In contrast, Song adopts a more constructivist notion of culture that takes the view of culture as a contested notion even within these communities. According to Song, culture is a “product of specific and complex historical processes,” and “internally contested, negotiated and reimagined” (pp.31-32), thus, denying an easy coherence. The constructivist view does not lead her to reject an identity-based politics but rather to acknowledge the intercultural and intra-cultural interactions that constitute these cultural communities.

Another important contribution by Song is the need for a deliberative approach to determine the solution in particular areas of tension, including those between multiculturalism and gender justice. The deliberative approach to assess accomodationism on a case-to-case basis requires an interaction at various levels: between the majority and minority cultural communities, state and minority communities explaining their own positions, and above all ensuring that the individuals within the minorities have an important place in the deliberations. To give one example of her approach from the rich empirical case studies used in the book: Song analyzes the “cultural defense” that informed the decision of a U.S. judge in a Fresno County Superior Court in PEOPLE v. MOUA (1985). In this case, a Hmong man kidnapped and forcibly had “sex” with a Hmong woman. The woman later filed kidnapping and rape charges, but the man claimed that his actions were allowed as an accepted form of marriage among Hmongs – marriage by capture. Moua was given a reduced punishment for rape and kidnapping due to a defense based on culture. Song’s close examination of the case points to the fact that this was not the only accepted form of marriage among Hmongs, while noting that in certain methods of marriage, there was an expectation that even a consenting woman had to show resistance, ostensibly making it difficult for the Hmong man to distinguish between “true” and “false” consent. Song, however, points to a hitherto less acknowledged aspect of the cultural defense cases, that they often undermine a commonality or congruence (as she puts it) between the minority and majority cultures regarding patriarchal norms. In fact, this is another significant contribution of Song’s work, the ability to move away from a perception that only minority cultures deal with patriarchal norms. Rather she notes the congruence of patriarchal norms across communities. Song points to the fact that until recently in rape cases in the US, in the absence of physical evidence of coercion, the woman had to prove that she had strongly resisted the rape. The remnants of that can still be seen in “mistake of fact” defenses, where the [*93] man can claim that he “honestly and reasonably thought” that there was consent to the sex. Thus, Song’s point here is that cultural defense cases often succeed when minority norms are similar to majority patriarchal norms. However, this does not lead her to reject cultural defenses, which she rightly argues would deprive cultural minorities from taking advantage of standard defenses that mitigate sentencing in criminal law for majorities, especially since majorities also show similar patriarchal norms. Thus, Song suggests a general reformulation of some of these defenses for both majority and minority communities that reject the patriarchal norms. For instance, in rape cases she suggests that the burden to show that the victim consented should be more on the aggressor.

Furthermore, Song points to the fact that the significance of the custom of “marriage by capture” is contested within the Hmong community itself. However, this is where her theoretical framework needs to be pushed further. If Hmongs themselves are divided on this issue – a reflection of a contested and fluid cultural community – then it raises the question of whose version of culture and tradition would be upheld. Thus, Song’s framework that she creatively develops in her other two cases as well (tribal membership and polygamy) does not adequately explain how a contested notion of culture would inform a court of law. It is not clear what would prevent a court from adopting a particular perspective that echoes patriarchal norms, and it is these dominant voices of culture that create the conflict between gender rights and cultural rights. Here Song may claim that the voices of the women of the cultural community have to be kept at the center, but this does not take into account that women can often be caught between community interests and gender justice and may not themselves speak in a coherent voice against patriarchal norms. If women accept what is seen as a patriarchal norm according to a liberal notion of justice, should that allow the state to intervene based on its conception of individual rights or go along with what the women of the community decide? These are some questions that emerge from Song’s extremely innovative framework that need to be developed further.

In all, Song’s deliberative approach takes us away from an uncritical state or non state intervention based on a universalistic (and often western liberal) notion of rights. More significantly, she identifies many of these patriarchal norms as pervasive in both minority and majority cultures that need to be collectively addressed. Her deliberative approach and the need to develop a case-by-case solution to rights-based accomodationism is a significant step forward in this debate. Song’s book is an excellent contribution to the debates on multiculturalism and gender justice and will be extremely useful for both political theorists and legal practitioners alike.

REFERENCES:
Okin, Susan Moller. 1999. IS MULTICULTURALISM BAD FOR WOMEN? Joshua Cohen, Mathew Howard and Martha C. Nussbaum (eds). Princeton: Princeton University Press. [*94]

Bhabha, Homi K. 1999. “Liberalism’s Sacred Cow.” In Susan Moller Okin, IS MULTICULTURALISM BAD FOR WOMEN? Princeton: Princeton University Press, 79-84.

CASE REFERENCES:
PEOPLE v. MOUA, No. 315972-0 (Cal. Super. Ct. Fresno County Feb. 7, 1985).

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© Copyright 2008 by the author, Jinee Lokaneeta.

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THE LAST WORD: MEDIA COVERAGE OF THE SUPREME COURT OF CANADA

by Florian Sauvageau, David Schneiderman, and David Taras. Vancouver: University of British Columbia Press, 2006. 272pp. Hardcover. $95.00. ISBN: 9780774812436. Paperback. $25.95. ISBN: 9780774812443.

Reviewed by DeLloyd J. Guth, Professor of Law and Legal History, University of Manitoba. Email: djguth [at] cc.umanitoba.ca.

pp.88-90

This book’s title is a triple tease. The Supreme Court of Canada may give its latest word in deciding a case, but it remains willing and able to modify its previous word on point. And what a disaster it is to have any member of the media, or thirdly these three authors, handing down a last word on anything.

This book will not be the last word, but it does add substance to other more fragmentary analyses of the relationship that Canada’s highest court enjoys with the print and television (but no mention of radio!) media. Kirk Makin and Cristin Schmitz, among others like Stephen Bindman before them, provide intelligent media commentary that explicates Court decisions with respect for their authors. By contrast, academic studies have tended to offer patchworks of mixed support and respect, at best. There is something grudging in books by Ian Brodie (2002), Lydia Miljan and Barry Cooper (2003), by F. L. Morton and Rainer Knopff (2000), as well as, for example, in articles by Peter Russell, Andrée Lajoie, Kent Roach, John Saywell, Jacob Ziegel, and Peter “the case-counter” McCormick. Harshest criticisms of the Court, it should surprise no one, come mainly from Québec and Alberta. The established print and television media remain gentle by comparison.

THE LAST WORD, by Florian Sauvageau, David Schneiderman and David Taras, is a revelation, a documentary and a contextualization of four controversial Supreme Court of Canada judgments: VRIEND (1998), the QUÉBEC SECESSION REFERENCE (1998), MARSHALL (1999), and SHARPE (2001). Each gets a separate chapter. The methodology is consistent: the authors narrate the case at trial and appeal, the actors and arguments are introduced, then a quantitative survey of media coverage (often several hundred reports) is presented, followed by an analysis of the Court’s text and reasoning, with a brief conclusion about each case’s legal significance.

Sauvageau, Schneiderman, and Taras emphasise that in VRIEND the Court made the issue the Charter’s notwithstanding clause, thereby avoiding the moral question about equal protection of law for gays and lesbians. The media helped by dropping the politically hot issue of public morality, making “the province-as-deviant” the focus without explaining the legal reasoning in the decisions. In the SECESSION REFERENCE, the Court pushed federal parliamentarians to confront responsibilities, which soon produced the Clarity Act (2000/SC, c. 26); and then in turn Québec legislators pushed back with their Fundamental Rights Act (2000/SQ, c. 46). The media, [*89] except for Québec at election time, has since abandoned this issue entirely. The Court created its own mini-crisis in its two MARSHALL decisions, with the second rescuing bureaucrats in the Maritimes from the first. Sauvageau, Schneiderman, and Taras find fault with a media that rushed, before and after, into complex legal issues with ignorant guns blazing, eager to shoot down Aboriginal treaty rights without reference to law and history. Finally the authors assert that in SHARPE the Court continued to defer to parliament’s role, rather than its own role, in law reform, despite moments of media feeding-frenzies over child pornography, which everyone opposes and no one defines.

Of the book’s six chapters the most enlightening is the last, entitled “Judges and Journalists.” It spotlights Chief Justice Brian Dickson, from 1984 to 1990, for developing “the most open court in the world;” but Sauvageau, Schneiderman, and Taras remain frustrated by the traditional “vacuum created by the silence of the judges” (p.24). How, when and what should an appellate (or trial) justice say about any case after the recorded judgment? Both the media and public archives are eager to obtain reflections and papers, in the struggle for control over a judge’s reputation and the stare decisis issues involved. For immediate control, the Court created its own communications system when Dickson made its Executive Legal Officer its sole liaison for the media. This has worked well for the Supreme Court of Canada and for reporters, for whom the Court’s “credibility is largely unshaken and unchallenged” (p.223).

Beyond this, Sauvageau, Schneiderman, and Taras do not venture. Is this model applicable to other Canadian courts of law? The authors do not say. They take for granted that some “court-media relationship” is necessary, even desirable, but are not interested in extending the analysis and issues into the worlds of police-beat, magistrate or trial court reporters. Second, there is little thoughtful discussion of what the media-informed public needs to know, indeed deserves to know, about their courts of record and the judges, lawyers and parties in civil and criminal cases. Related to this, third: what constitutes quality in media coverage of any legal system and how can we measure this? Again, there is no serious attention beyond anecdotal examples. Fourth, we get little mention of the tabloid treatment of crime, which has sold newspapers since at least Henry Fielding’s London circulars in the 1740s. The culture of victimisation and sensationalism, centred on criminal cases seriatim, sells even for proceedings at the Supreme Court of Canada. Fifth, and most vitally, what does the “court-media relationship” tell us about media ownership and editorial politics? Again, we read very little. Sixth, Canada has not had a popular academic exposé literature, as in the United States beginning with THE BRETHREN (1979): why not? And seventh, because the media are constantly creating a research engine with its court case reports, Sauvageau, Schneiderman, and Taras need to address the media’s archival and public memory responsibilities, because newspapers particularly are often the only long-term record for reconstructing individual cases.

Such contextualizing topics help to explain ultimate control over any court’s judgment: who does the “spinning,” and [*90] how much life will that spin have alongside the actual judgment? THE LAST WORD approvingly narrates how the Supreme Court of Canada and the Canadian media establishment sustain relationships that distinguish judge-made from politician-made law. It offers a commendable beginning for studies of the two-way street between courts and legislatures, and for the politics mediated by reporters, news-readers and editors. This book is published in the “Law and Society Series” of the UBC Press and needs to be read alongside two other books in that series: Flemming (2004) and Ostberg (2007).

REFERENCES:
Brodie, Ian. 2002. FRIENDS OF THE COURT: THE PRIVILEGING OF INTEREST GROUP LITIGANTS IN CANADA. Albany: State University of New York Press.

Flemming, Roy B. 2004. TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA. Vancouver: University of British Columbia Press.

Miljan, Lydia, and Barry Cooper. 2003. HIDDEN AGENDAS: HOW JOURNALISTS INFLUENCE THE NEWS. Vancouver: University of British Columbia Press.

Morton, F.L., and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Peterborough, ON: Broadview Press.

Ostberg, Cynthia L. 2004. ATTITUDINAL DECISION-MAKING IN THE SUPREME COURT OF CANADA. Vancouver: University of British Columbia Press.

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

CASE REFERENCES:
R. v. MARSHALL, [1999] 3 S.C.R. 456.

R. v. MARSHALL, [1999] 3 S.C.R. 533.

QUÉBEC SECESSION REFERENCE, [1998] 2 S.C.R. 217.

R. v. SHARPE, [2001] 1 S.C.R. 45.

VRIEND v. ALBERTA, [1998] 1 S.C.R. 493.

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© Copyright 2008 by the author, DeLloyd J. Guth.

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THE SUPREME COURT REVIEW 2006

by Dennis J. Hutchinson, David A. Strauss and Geoffrey R. Stone (eds). Chicago: University of Chicago Press, 2007. 438pp. Cloth. $60.00. ISBN: 9780226363257.

Reviewed by Eileen Braman, Department of Political Science, Indiana University. Email: ebraman [at] indiana.edu.

pp.83-87

Unbeknownst to me when I took the assignment, being asked to review the annual volume of THE SUPREME COURT REVIEW is a bit like being asked to review the latest issue of THE AMERICAN POLITICAL SCIENCE REVIEW or JOURNAL OF POLITICS. The volume includes ten distinct articles that are not thematically related – except for the fact that they touch on issues related to the Court’s last term. Authors include notables like Cass R. Sunstein and Richard A. Posner; all but Keith E. Wittington – the sole political scientist in the group – have affiliations with one of four elite law schools [Chicago (4 authors), Virginia (3 authors), Duke and New York University]. So while the volume may not comprise the most representative sampling of academic commentary on the newly minted Roberts Court, it no doubt includes some of the major trendsetters in their respective fields. And that makes sense. Who else would be bold enough to comment on the most recent decisions of a new natural court? There is some risk involved in the interpretation and speculation inherent in the endeavor; readers want to know not only what the court did last term, but what it means in terms of future decision making directions. Addressing substantive concerns from free speech in the workplace, to how overlapping state and federal jurisdictions touch on enforcement of assisted suicide laws, the authors do their best to tell us what the court decided last term and where it is headed on some of the most important issues of the day.

The lead article by Sunstein, “Clear Statement Principles and National Security: Hamdan and Beyond,” illustrates that just figuring out what the court decided last term can pose a significant challenge. Indeed he writes of HAMDAN v. RUMSFELD (2006), “it is not easy to find an opinion, in the Court’s entire history, in which the justices divided on so many points; I herby nominate HAMDAN as the all-time champion on this count” (p.4). Anyone who has struggled through the eight separate opinions, touching on constitutional provisions, the Geneva Conventions and a veritable alphabet soup of United States statutory law, might be prone to agree. One of our most respected legal minds then proceeds to take fifty pages to wade through the separate opinions and explain what the court is doing regarding, arguably, the most important legal issue the justices faced last term.

Sunstein’s conclusion, introduced blissfully early in the piece, is that the Court’s approach represents a sort of “liberty promoting liberalism,” where the justices are willing to give the executive significant discretion in the interpretation of war powers explicitly [*84] extended in a “clear statement” by the national legislature, but are loath to find independent authority – especially to limit procedural protections available to detainees – in the absence of Congressional grants. Sunstein goes on to state that it is not all together clear what sort of “clear statement” will suffice after the opinion; he speculates on what the decision will mean for future litigation on warrantless wiretapping.

Sunstein is rather tentative – not only in his speculation about future litigation – but in his conclusions about the ultimate meaning of HAMDAN. This is not surprising given the nature of the decision; with eight separate opinions it is very hard to tell where the Court, as an entity, stands. HAMDAN is by no means unique in this respect. Lillian R. BeVier’s article “Full of Surprises and More to Come: Randall v. Sorrell, the First Amendment and Campaign Finance Regulation,” involves a 6:3 decision on campaign finance – another hotly contested issue these days – where the author comments on no less than five separate opinions. After reading this volume, with commentary on important cases likely to spawn future litigation, most with multiple opinions, one longs for the days of BROWN v. BOARD OF EDUCATION (1954). Perhaps a definitive statement of what the law/constitution requires is too much to ask from a highly divided court with a new chief justice, but then again, BROWN was issued in Warren’s first term. You would think that, if it was ever important for the court to come down with a clear statement of how they will adjudicate such issues, it would be in these cases. Alas, war powers and campaign finance are likely to be muddled areas of Supreme Court doctrine for the foreseeable future. This is, of course, good news for attorneys litigating in these areas but somewhat unfortunate, I think, for the rest of us.

Another article by Curtis A. Bradley, “The Federal Judicial Power and the International Legal Order,” touches on whether domestic remedies are available for violations of procedural protections due to foreign nationals charged with state and federal crimes under provisions of international agreements. The primary case involved, SANCHEZ- LLAMAS v. OREGON (2006), concerns Article 36 of the Vienna Conventions, providing that, when foreign nationals are arrested, their home states/consulates should be notified. Defendants sought suppression of evidence in state judicial proceedings where this requirement was not met. The case raises some interesting questions – what is the relation between domestic judicial authority embodied in Article III and international law? If there is no domestic remedy, what is there to ensure compliance with seemingly binding international obligations?

A majority of the court, via a decision by Justice Roberts, seems to prioritize traditional constitutional understandings of domestic criminal procedure over international enforceability. Bradley argues this is consistent with the Court’s approach in HAMDAN where the Court focused on domestic war powers (treaty obligations codified in Congressional directives) rather than the independent judicial enforcement of international commitments. He notes that the Court treated international law “seriously” in both cases. To no one’s surprise Justice Breyer wrote a dissent joined by [*85] Stevens, Souter and Ginsberg (in part). Commenting on the case, Bradley writes the majority’s conception of judicial power, “operates as both a limitation on the federal courts’ ability to participate in the international order and also a protection of the federal courts from that order” (p.67). Given the close split in the case and the ongoing debate about the role of international law in domestic forums, such decisions are certainly worthy of careful consideration.

Using traditional doctrinal analyses, several articles try to reconcile lines of Supreme Court doctrine over the past several years. Cynthia Estlund’s “Harmonizing Work and Citizenship: A Due Process Solution to a First Amendment Problem” grapples with a distinction drawn by the Court between “employee speech” and “citizen speech” in the application of whistleblower protections over the last several years. In the end she suggests the court might do better to analyze such cases under the rubric of due process, to avoid making difficult distinctions between “private/citizen speech” and “speech that is the job” (pp.155-172). “Apprendi’s Domain,” by Jonathan F. Mitchell, looks at the asymmetric relationship the Court has established between aggravating and mitigating factors in criminal sentencing. Specifically, in APPRENDI v. NEW JERSEY (2000) the Court said aggravating factors should be considered by the jury but mitigating factors need not be resolved by a jury. Looking at prior Supreme Court decisions on “elements” of criminal behavior and standards of proof, Mitchell traces the roots of the distinction concluding the Court’s path dependent logic on what needs to be proven beyond a reasonable doubt “should not similarly define the scope of the Sixth Amendment jury guarantee” (p.304).

There is a pair of pieces on state sovereign immunity. Ann Woolhandler ‘s “Interstate Sovereign Immunity” discusses whether states should be immune from suit in the courts of other states. Looking at the Framers’ intent, historical understandings of the Eleventh Amendment and potential implications of such liability, Woolhandler concludes the Court has incorrectly allowed such suits to proceed. In a similar vein, John Harrison’s “State Sovereign Immunity and Congress’s Enforcement Powers,” concludes that there is no private cause of action against states for violations of Section Five of the Fourteenth Amendment, contrary to what the Court announced in FITZPATRICK v. BITZER (1976). To bolster his point, Harrison similarly invokes Framers’ intent and historical understandings. He also argues that the underpinnings of more recent decisions on state sovereignty, including SEMINOLE TRIBE OF FLORIDA v. FLORIDA (1996) and ALDEN v. MAINE (1999) support this conclusion.

Jacob E. Gersen’s “Overlapping and Underlapping Jurisdiction in Administrative Law” may be of particular interest to political scientists. Gersen is primarily concerned with how shared responsibility for enforcement of statutory and administrative schemes should influence deference paid by courts to administrative determinations under CHEVRON v. NATURAL RESOURCES DEFENSE COUNCIL (1984). He starts off with a typology of shared and exclusive enforcement schemes using simple set theory; in doing so he sets forth specific motives [*86] legislatures may have for introducing enforcement schemes with authority split among different agencies or levels of government. Finally he discusses the jurisprudential implications of shared enforcement schemes for administrative deference. The case he chooses to explore from last term, GONZALES v. OREGON (2006), involves state versus federal interests in the enforcement of Oregon’s assisted suicide law. There are also multiple federal agencies, including the Department of Justice and Food and Drug Administration mentioned in Gersen’s analysis.

Finally, there are two articles in the volume that do not really address the Court’s jurisprudence, per se. One is a piece by Richard A. Posner, “A Note on Rumsfeld v Fair and the Legal Academy.” Judge Posner calls out legal academia, particularly professors at elite law schools for, among other things, failing to write their own amicus brief in the case involving whether representatives from the military should be allowed to participate in law school recruitment activities. He also characterizes one of the primary arguments made by the legal academy as “frivolous,” based on, what Posner considers to be a narrow ideological vantage point. The article stands out in the volume for its tone and subject matter. I leave it to those interested to read the piece and draw their own conclusions about the correctness of Posner’s assertions.

The last article in the volume is Keith E. Whittington’s “Presidents, Senates and Failed Supreme Court Nominations.” Wittington looks at many of the usual suspects in predicting Supreme Court nomination failure/success, including unified vs. divided government and whether the president was in his last term during the appointment. The article is unique because he takes a rather expansive view of what comprises a “failed” nomination, including those submitted and then withdrawn by the president (as in the recent case of Harriet Miers) and those voted “permanently postponed” by the Senate (p.410). This provides Whittington with an n of 27 “failed” nominations. With rich historical analyses more palatable to legal academics than multiple regression techniques, Whittington concludes that failed nominations were more common in the nineteenth century; he notes the interaction between type of government and lame duck presidents as especially relevant during this period. Whittington also argues that the effect of divided government has changed in recent decades. Looking particularly at the experiences of Nixon and Reagan, he writes, “[s]omewhat surprisingly, divided government had historically worked to free presidents, at least until late in their terms, to choose as they would from the ranks of their own partisans. The modern Senate has instead shrunk the range of presidential discretion during divided government, attempting to cut off the farther ideological wing of the president’s coalition from the available pool of Supreme Court nominees” (p.435).

Perhaps the most elusive question in the volume is what lasting effect the most recent successful nominations to the Court will have. Except in the cases where justices Roberts and Alito did not participate, the authors, almost without exception, try to offer some insights as to their jurisprudential approach in the various legal areas covered in the [*87] volume. Long story short – it is too early to tell where the new justices stand on the spectrum of cases related to issues decided by the Court last term. Still, I think, we can expect similar, perhaps even contradictory, speculations after the Court’s current term. With additional data, compiled over a number of years, we are likely to come closer to the truth. Only then will we be able to say which of these current authors were correct. By then, however, these decisions may be characterized as yesterday’s news; only time will tell if they are truly pivotal or are destined to be mentioned in a footnote of some future volume of the SUPRME COURT REVIEW.

CASE REFERENCES:
ALDEN v. MAINE, 527 US 706 (1999).

APPRENDI v. NEW JERSEY, 530 US 466 (2000).

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

CHEVRON v. NATURAL RESOURCES DEFENSE COUNCIL, 467 US 837 (1984).

FITZPATRICK v. BITZER, 527 US 455 (1976).

GONZALES v. OREGON, 546 US 243 (2006).

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

RANDALL v SORRELL, 126 S Ct 2479 (2006).

RUMSFELD v FAIR, 547 US 47 (2006).

SANCHEZ- LLAMAS v OREGON, 126 S Ct 2669 (2006).

SEMINOLE TRIBE OF FLORIDA v. FLORIDA, 517 US 44 (1996).

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© Copyright 2008 by the author, Eileen Braman.

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THE CRAFT OF BUREAUCRATIC NEUTRALITY: INTERESTS AND INFLUENCE IN GOVERNMENTAL REGULATION OF OCCUPATIONAL SAFETY

by Gregory A. Huber. New York: Cambridge University Press, 2007. 264pp. Hardback. $85.00. ISBN: 9780521872799. eBook format. $68.00. ISBN: 9780511282966.

Reviewed by Dawn M. Chutkow, Department of Government, Ph.D. Program, Cornell University. Email: dmc66 [at] cornell.edu.

pp.80-82

Political scientists, scholars of public administration, and organizational theorists have long pondered the dynamics of delegated authority – particularly governmental authority granted to regulatory agencies. Theories on how these entities operate, and whether they use their powers in a politically palatable manner, range from depictions of the neutral, professional bureaucrat, to agencies as insulated, autonomous fiefdoms, to bureaucracy as the malleable tool of organized interests. Gregory Huber enters the fray with his book, THE CRAFT OF BUREAUCRATIC NEUTRALITY, arguing that there is some truth in each of these depictions, because agencies engage in a strategic mix of behaviors that allows them to respond to political dictates while at the same time protecting themselves by diffusing opposition that might diminish their power and autonomy. Huber describes this agency behavior as “strategic neutrality.” This is a sensible and compelling insight, theoretically well supported, which draws convincingly on the realities of collective action and organizational methods for controlling subordinate actors. While the empirical evidence for Huber’s position leaves some questions unanswered, this remains a rich and varied piece of research, well worth engaging.

In prosaic terms, Huber’s concept of strategic neutrality means that agencies act politically but try to do so in a way that does not unite opponents. Hence, political bargains are made at a national and centralized level and agency implementation is “neutral” in the sense that it adheres to these bargains by imposing systematic and uniform local enforcement policies. Work in organizational literature has long noted the need for subordinate control through specified routines and standards to ensure that tasks are performed in a way consistent with management direction. Huber’s insight is that this routinization is politically efficient in that it allows the agency to shape the nature of political conflict surrounding agency policy. This primarily means letting the larger political battles and interest group scuffling over policy take place at a national level and then implementing those bargains locally in a systemized fashion that removes as much discretion as possible from the enforcement staff. This in turn minimizes the chances that local chauvinism and political considerations might translate into unequal treatment of regulated companies – acts that deviate from central agency policy, and provide both political fodder and organizational impetus for opposition groups. [*81]

Huber chooses the Occupational Safety and Health Administration (OSHA) to test his theory, focusing largely on whether enforcement variation at the state and facility level is linked to local political conditions as prior studies indicate. His inquiry benefits from a sophisticated understanding of the complex dynamics that may affect what appears to be politically discriminatory enforcement, not least of which are the wide regional variations in industry type, worker involvement in OSHA inspections, and the interactive effects of agency resource levels on inspection outcomes. He relies not only on extensive interviews with OSHA regulators and enforcement staff, but also a wide range of creatively employed data, including measures of inspector productivity, severity, and target selection. In the first half of his analysis, his findings are convincingly consistent with his theory. While OSHA does differentiate among industries and workplaces as a matter of national policy, differences in agency enforcement locally can be explained by neutral principals, primarily the hazardousness of regional industries and the nature and size of the inspected company’s workforce.

Huber does, however, tend to analyze the statistical findings in a way that makes assessing the strength of his argument more work than need be. He presents multiple models with the same dependent variable coupled with a host of independent variables which fall in and out of significance depending on which variable mix the model uses. To be fair, Huber does include unified models in the analyses as well, but he does not rely on them alone in drawing his conclusions or discussing the results. This, combined with his use of p-values of < 0.10 as denoting significance (although he also delineates the more standard p < 0.05 and p < 0.01 in his tables) complicates the presentation and discussion. The unified models’ pretty convincingly support his broader thesis; it is in the subtleties and implications of political variables that this issue largely arises.

The second half of the analysis deals with an intriguing characteristic of OSHA regulation: states willing to take a 50% cut in federal funding can self-regulate. Twenty-one states chose this option. This creates a strong selection bias in the data analyzed in the first half of the book, which examines only the federal program with jurisdiction over twenty-nine states. The twenty-one states that chose to enforce OSHA themselves overwhelmingly exhibit one of two political environments: either strong labor and weak business groups, or strong business and weak labor groups. It is possible then that the states remaining under federal jurisdiction, those in the initial analyses, are at a political stasis between business and labor interests, and therefore the neutrality of enforcement choices by OSHA occur because neither interest group has the local clout to sway inspectors systematically. This alternative explanation is not fully explored, primarily because Huber is hampered by the lack of uniform reporting and facility-level data from states that self regulate. This prevents him from extending the initial analysis to all workplace regulation, whether state or federally implemented. Huber does examine state versus federal enforcement patterns, but his focus is on whether states under or over perform as [*82] compared to OSHA, an approach that does not fully capture localized political conditions and effects. He creates several clever measures to facilitate a direct comparison of these actors, but the analyses and results are primarily descriptive, and while they appear to trend in the direction he predicts, it is difficult to fully asses what the data reveal.

These observations should not be seen as diminishing Huber’s primary point: that agencies are actors in their own right, navigating among the demands of their principals, the potential ramifications of interest group opposition, and the requirements inherent in operating multi-level organizations which need to coordinate policy decisions and policy implementation. Accordingly any discussion of agency action should include consideration of the behavioral strategy an agency must employ to accomplish these multiple goals. While straightforward, this is a thoughtful insight and one that careful scholars should incorporate in future bureaucratic studies.

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© Copyright 2008 by the author, Dawn M. Chutkow.

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THE FINAL ARBITER: THE CONSEQUENCES OF BUSH v. GORE FOR LAW AND POLITICS

by Christopher P. Banks, David B. Cohen, and John C. Green (eds). Albany: State University of New York Press, 2005. 284pp. Hardcover. $75.00. ISBN: 9780791465356.

Reviewed by Justin Wedeking, Department of Political Science, University of Kentucky. Email: justin.wedeking [at] uky.edu.

pp.76-79

THE FINAL ARBITER examines the impact of BUSH v. GORE (2000), arguably one of the major US Supreme Court decisions in recent decades. The edited collection of essays by Christopher P. Banks, David B. Cohen, and John C. Green are divided into two sections that address two primary questions: (1) how did BUSH v. GORE affect the law? And (2) did BUSH v. GORE have any political consequences for governing and politics? The contributing authors bring perspectives from that of law professors and social scientists (predominantly political scientists), and the approaches are very similar, using qualitative essays with timely anecdotes. Two chapters, however, do present basic, descriptively-quantitative evidence. Interestingly, the collection of essays is somewhat eclectic in terms of topic, and presents a somewhat diverse political view, with authors presenting both critical and sympathetic views of the decision.

The book starts with John C. Green’s review chapter, “Bushed and Gored: A Brief Review of Initial Literature,” where Green reviews the initial torrent of literature following the decision. Green characterizes the initial literature as fitting one of three categories: “reportage (how was the disputed election resolved?), polemics (was the resolution a positive or negative development?), and scholarly analyses (what did the resolution mean?)” (p.1). This review is very thorough, his typology is a useful tool, and the review sheds light on nuanced aspects of BUSH v. GORE. Green concludes by briefly summarizing and highlighting the remaining chapters of the book.

The first half of the book starts with an essay by Christopher P. Banks, “The Politics of Constitutional Choices in Light of Bush v. Gore (2000),” where he tackles a range of issues from how the Court historically treats political questions, to the legal and political consequences of the decision. The chapter sets the stage for the entire book by covering the ensuing litigation that attempts to use BUSH v. GORE as legal precedent in equal protection arguments. The chapter also does a nice job of describing public opinion surrounding concerns of legitimacy and confidence in the US Supreme Court. One drawback is that the chapter tries to do a bit much as a single chapter, as the second half (how BUSH v. GORE affected public opinion and the president) appears to fit better with the theme of the second part of the book. Further, if given more space, I would have liked to see the section on citations to BUSH v. GORE given extended treatment. If we are to be persuaded that the case will serve successfully as a precedent, we should start to see, not only litigants using it, but successful litigants should be using it [*77] with increasing frequency. Seeing evidence of this would go a long way towards convincing the reader of its legal impact on the law and legal community.

Tracy A. Thomas next discusses remedies with her chapter, “Bush v. Gore and the Distortion of Common Law Remedies.” Thomas argues the Court used “the law of remedies in an unprecedented way” (p.71). The change results not because the Court provides too little relief, according to Thomas, but because it insists on too many precautionary measures, which Thomas calls prophylactic relief. Thus, according to Thomas, BUSH v. GORE may have widespread application for common law remedies and could come back to haunt the Supreme Court. This is a provocative essay, but it spends too little time focusing on whether post-BUSH litigants ask for this broadened notion of a remedy. In fact, Thomas cites only one case where a trial court used this rationale, but that case was eventually overruled.

Joyce A. Baugh’s chapter, “Bush v. Gore and Equal Protection: A Unique Case?” briefly details a handful of cases that were spawned as a result of the equal protection reasoning in BUSH v. GORE. Ultimately, the chapter fails to provide an answer to whether BUSH is a unique case, even though the chapter documents that “only two cases have applied the equal protection rationale from Bush” (p.101). Interestingly, this chapter stands in contrast to the Thomas and Banks chapters that discuss the importance of BUSH v. GORE as a precedent in subsequent litigation, while Baugh argues that the case is a poor precedent for litigation. Thus, these chapters present somewhat conflicting arguments, and the book would benefit if they spoke to one another on this issue.

Shifting gears, Daniel P. Tokaji’s chapter, “Political Equality After Bush v. Gore: A First Amendment Approach to Voting Rights,” takes a different approach where he reconceptualizes political equality to shed light on the link between free speech and the right to vote. In other words, Tokaji considers how legal doctrine might change if we were to conceive BUSH v. GORE in terms of first amendment cases, rather than the equal protection cases that were cited. The last chapter of Part I, Ann Althouse’s “Bush v. Gore’s place in the Rehnquist Court’s Federalism Oeuvre,” departs from the negative criticisms of the decision that earlier chapters offered. Althouse argues that BUSH v. GORE does not violate federalist doctrine established by earlier Rehnquist Court decisions. For Althouse, the case is consistent with previous decisions because the Rehnquist Court has always been flexible and pragmatic with this complex area of the law. The key nuance is that conservatives view federalism power struggles differently than liberals. This chapter is very provocative and makes a strong argument, despite facing a tough challenge from the weight of the initial literature that painted a Rehnquist Court strongly inconsistent with its own precedents.

Part II focuses on the political consequences of BUSH v. GORE, starting with an essay by Charles O. Jones in which he details different strategies for partisan governing. Unfortunately, not until the last four paragraphs of the chapter does this essay directly address the main question of Part II – how did BUSH v. GORE affect governing? It concludes that the [*78] decision was no more important than other related campaign factors. Perhaps the chapter would benefit by addressing counterfactuals, such as how governing might have differed for Bush if BUSH v. GORE was never reviewed by the Supreme Court (assuming Bush wins any recount), or how governing might differ if Gore were president? Addressing these questions would shed some light on how important the decision was for governing relative to other campaign events.

The chapter by Brian J. Gerber and David B. Cohen details how the Bush administration used largely administrative tactics to achieve policy goals. This is a fascinating chapter in presidential governing that highlights the many routes to achieving policy change. I disagree on one aspect, however, where the authors “argue that the policy choices the Bush administration made reflected a White House that governed as if it enjoyed a clear mandate” (p.172). I would argue the policy choices the administration made do not necessarily reflect an administration that governed with a clear mandate; rather it was the peculiar method of how it governed (under the radar) that illustrates the administration perceived it lacked a mandate. If the administration had a mandate, it would not be necessary to govern under the radar. Overall, despite this minor quibble, this chapter is an excellent read.

Donald Edward Greco’s chapter, “Election 2000 and the Future of Electoral Administration: Gauging the Impact of Bush v. Gore on State-Level Electoral Reform,” examines whether state legislatures have taken on electoral reform legislation. He finds that little was done after the 2000 election and explains that those in power have little incentive to change the structures that helped them gain power in the first place. Switching gears to future elections, Andrew E. Busch’s chapter speculates on how the three phases of elections (pre-election day, election day, and post-election day) will be affected in the future. Busch highlights several lessons to be learned from the 2000 campaign, and one that should intrigue readers is a post-election day strategy to “continue the campaign by litigation if necessary” (p.218). It would be interesting to see a follow-up on whether this occurred in 2004, something that readers do not get until the final chapter. Additionally, the chapter does not attempt to disentangle the potential differences between the impact of BUSH v. GORE and the impact of the 2000 campaign.

John Anthony Maltese’s chapter looks at how politics regarding judicial selection might be affected. For Maltese, while BUSH v. GORE may have contributed to a partisan polarized atmosphere that surrounded subsequent nominations, it was not the driving force that was present before the 2000 election. John W. Wells offers a distinct approach in his chapter, “Testing the Limits of Democracy: Pragmatic Legitimacy and the Election of 2000,” where he expresses optimism with his emphasis on the philosophy of pragmatic legitimacy. For Wells, America avoids controversy because of pragmatic legitimacy and its strength “in accepting the very real limits of democracy while simultaneously refusing to surrender to the postmodern notion that ultimately, no difference exists between arbitrary power and legitimate authority” (p.259). In other words, America accepted the [*79] Court’s decision because it rendered a “reasonable verdict,” not because they agreed with it. One aspect that remained unclear was how pragmatic legitimacy works for Americans who simply desire to avoid politics but still care about the process (e.g., Hibbing and Theiss-Morse 2002). Additionally, it would be interesting to see if any connection exists between this pragmatism offered by Wells and the pragmatic approach of the Rehnquist Court offered by Althouse.

The final chapter by David B. Cohen and Christopher P. Banks, “Reliving Groundhog Day? The 2004 Presidential Election and the Legacy of Bush v. Gore,” uses a unique analogy to a movie that depicts the American electoral system stuck in a cycle of controversy, the exact opposite of early descriptions that characterized it as an anomalous election. The chapter highlights various aspects of the 2004 presidential campaign.

THE FINAL ARBITER arrived on the scene shortly after the 2004 presidential election (with many of the chapters drafted before election 2004), perhaps a bit too early to assess some of the questions raised and whether the legal impact was fully borne out. However, it is still a timely read because we are currently in the midst of the 2008 presidential campaign season, which gives us ample opportunity to observe whether the legacy of BUSH v. GORE lives on.

The book is well written and nicely organized into two sections. The strength of this book is that there is something for most everyone and there is little overlap amongst chapters. The main limitation of the book is, considered as a whole, the argument that BUSH v. GORE had a lasting impact is not overly compelling (excluding the obvious that Bush won the presidency). In one way, the argument of a lasting influence is ironic given the title of the book – THE FINAL ARBITER – that implies no other actors will influence those areas of law and politics. But as many of the chapters argued, others besides the Supreme Court are influencing law and politics subsequent to that case.

THE FINAL ARBITER is well suited for a specialized course in political science that covers campaigns and election law, at either the undergraduate or graduate level. Taking each chapter individually, a course on election law would benefit from reading the Thomas and Baugh chapters. A course on elections and jurisprudence would benefit from the Tokaji and Althouse chapters. Courses on elections and campaigns would benefit from reading Green, Banks, Busch, and Cohen and Banks chapters, while courses that focus on institutions and governing would benefit from reading chapters by Jones, Gerber and Cohen, Greco, and Maltese, and those interested in political philosophy would find the Wells chapter valuable.

REFERENCES:
Hibbing, John R., and Elizabeth Theiss-Morse. 2002. STEALTH DEMOCRACY: AMERICANS’ BELIEFS ABOUT HOW GOVERNMENT SHOULD WORK. Cambridge: Cambridge University Press.

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

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© Copyright 2008 by the author, Justin Wedeking.

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THE SILENCE OF CONGRESS: STATE TAXATION OF INTERSTATE COMMERCE

by Joseph F. Zimmerman. Albany, New York: State University of New York Press, 2007. 284pp. Hardcover. $75.00. ISBN: 9780791472057.

Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: polrmh [at] langate.gsu.edu.

pp.73-75

The late Senator Russell B. Long of Louisiana, longtime chair of the Senate Finance Committee, summarized his scorn for tax reform legislation with his famous saying “Don’t take me, don’t tax thee, tax the fellow behind the tree.” Senator Long realized that voters care little for tax reform unless it actually reduces or eliminates their personal tax burden. Thus a Congress dependent upon votes for reelection casts revenue enhancement measures as tax reform and the mantra of tax reform is “revenue neutral.” This sounds better than saying you voted for a tax increase. Long understood that tax reform is merely one way for Congress to raise the necessary government revenue by reallocating the tax burden among various groups, presumably by taxing the fellow behind the tree, and thus limiting adverse electoral consequences.

The same dilemma confronts state legislatures. States are dependent upon, and in our federalist system, in competition with each other, for tax revenue. The problem is that voters do not like to pay taxes. The New York State legislature cares about New York voters and the Connecticut state legislature cares about Connecticut voters. Raising the tax burden on their constituents can lead to a very short legislative career. However, in a federal system, state legislatures do have the ability lower the tax burden on their constituents and still raise revenue. They actually can, and do, tax the fellow behind the tree. The New York legislature can tax the people and businesses of Connecticut and other states, while the Connecticut legislature can tax New Yorkers and the residents and business of the other states.

However, while this might be good for the careers of the various state legislators, these taxing schemes possibly violate the United States Constitution by, among other things, violating the privileges and immunities clause of the 14th Amendment or the Interstate Commerce Clause. Even if constitutionally permissible, these taxes might harm the economy and the good of the country by leading to unnecessary interstate competition, increasing the cost of doing business and harming market efficiency. It was this potential for interstate conflict and subsequent damage to the national interest that led to the abandonment of the Articles of Confederation and the adoption of the United States Constitution. Of paramount importance was the ability given to Congress to regulate commerce among the several states and the Indian tribes.

When businesses, individuals and states conflict over these taxes, they often resort to litigation by suing the taxing state in federal or state court. Because of this, the courts have often ruled on the constitutionality of these “interstate” taxes and have formulated or abandoned [*74] rules, such as the original package doctrine, and developed the constitutional doctrine known as the dormant or negative commerce clause. However, despite the development of these rules and doctrines, courts are ill-equipped to regulate state taxing schemes due to the lack of comprehensive knowledge and expertise and the inability to offer anything other than a piecemeal, incremental approach. The national institution designed by the framers to address these interstate schemes is the Congress.

The problem is that Congress has usually failed to act in this area. It is the “Silence of Congress” that is the concern of this book by Joseph Zimmerman. In careful, methodical fashion, Zimmerman reviews the various schemes used by states to increase tax revenue without increasing the tax burden on its own citizens, corporations and domiciliaries. Each chapter provides a comprehensive overview and explanation of the various taxing schemes, reviews the relevant case law and documents the (mostly lack of) congressional response.

As a starting point, Zimmerman introduces the reader to the concept of Adam Smith’s four famous tax maxims – to wit, taxes should (1) fall equally on each taxpayer, (2) be certain and not arbitrary, (3) be convenient in terms of payment, and (4) be economical to collect. Zimmerman amends maxim one to allow for progressivity, and then proceeds to show how most state taxing schemes fail on one or more of these maxims. For example, after the introductory chapter, Chapter Two examines excise and documentary taxes. Excise taxes are levies on such commodities as cigarettes and alcohol, while documentary taxes tax the issuance or transfer of stock, bonds real property and insurance. Excise taxes in particular create incentives for smuggling from one state to another, and the Congress has the authority to assist the states but to date has done very little.

Chapters Three and Four evaluate severance taxes which are taxes on natural resources, and non-resident income taxes, such as a commuter tax. States rich in natural resources like coal, natural gas and oil increase the cost of providing these commodities to consumers in other states and shift the tax burden to non domiciliaries. One could reasonably argue that energy resources are a national concern with implications for the energy security of the nation. The courts have declined to find that these taxes represent an undue burden on commerce, but several rulings suggest that Congress can and should legislate in this area.

Zimmerman continues this examination in the ensuing chapters with analyses of corporate income taxation, escheat (unclaimed) property, estates of multi-state resident decedents, and even gambling and filmmaking. He shows how this interstate competition for tax revenue damages the national interest and leads to situations that the framers sought to correct by discarding the Articles of Confederation in favor of the Constitution that includes the all-important commerce clause. However, for the most part, Congress has failed to act to remedy these conflicting tax schemes.

In the final chapters Zimmerman posits his goals and solutions. Chapter Seven, “The Silence of Congress,” reviews the few attempts by Congress to regulate interstate taxation and offers seven specific recommendations. Most of the recommendations suggest much greater [*75] congressional oversight and involvement in interstate taxation. The recommendations range from applying uniform taxation rules to establishing upper limits on severance taxes, to greater involvement by the federal government to prevent smuggling. These would bring state tax measures into compliance with Adam Smith’s four maxims, reduce market inefficiency and harmful interstate competition and support the national interest.

It sounds great in theory, but the problem, as Zimmerman acknowledges, is that Congress has never enacted the type of comprehensive legislation for which he argues and is very unlikely to do so in the future. It appears that Congress is quite content to let the courts hash out the interstate tax problems in its piecemeal and haphazard fashion. Members of Congress, after all, represent the various states, and many have designs on running for statewide office. It is better to “tax the fellow behind the tree.”

However, all is not lost. Zimmerman argues that the most realistic chance for change is cooperation through interstate compacts, uniform laws and administrative agreements. Interstate compacts have been reached in many areas, and a nation-wide movement for uniformity in laws is on-going. In particular, if major states such as New York and California support such uniformity, Zimmerman believes that more states would enter these compacts and agreements. There appears to be little empirical evidence to support this or other of his propositions, however. One of the few empirical studies cited by Zimmerman did not test this concept, known as diffusion, and, of the few variables tested, only political culture appeared to account for the adoption of uniform laws. Thus the author and reader can only speculate as to the value, or likelihood of adoption, of the proposed solutions.

While the topic of interstate taxation might appear dry to many, the implications on paychecks, state coffers and economic growth and development are all too real and important. The book is generally quite readable, even if at times the reader feels like one is attending a class lecture that is running too long. Given the organization of the book, the reader can often skip several of the middle sections of each chapter reviewing the history of the tax and various related court rulings. They are not necessary for understanding the gist of Zimmerman’s argument.

I think the book is most useful as a supplementary reading. The lack of empirical data and analysis would limit its usefulness in many social science courses, and unless there is additional empirical study the reader is left to speculate along with the author as the to causes of uniformity. However, the book would help law and graduate students in Constitutional Law and Tax classes and act as primer for instructors, whether for graduate or undergraduate courses. The middle sections of each chapter, although not necessary to following the narrative, provide a nice review and summary of relevant congressional and court action.

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© Copyright 2008 by the author, Robert M. Howard.

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MECHANISMS OF DEMOCRACY: INSTITUTIONAL DESIGN WRIT SMALL

by Adrian Vermeule. New York and Oxford: Oxford University Press, 2007. 272pp. Hardcover. $49.50/£29.99. ISBN: 9780195333466.

Reviewed by Albert P. Melone, Professor Emeritus, Department of Political Science, Southern Illinois University Carbondale. Email: almelone [at] mchsi.com.

pp.69-72

For those scholars and political practitioners who reject proposals for wholesale change in the present US Constitution and instead are looking for moderate alternatives to improve the present order will find this book by Harvard law professor Adrain Vermeule worthy of study. Indeed, a careful reading is required of this well written but complex work, complete with conditional statements, anticipatory rebuttals, and economic jargon most familiar to rational choice, game theorists, and aficionados of law and economic jurisprudence. Happily, the author is eclectic in his application of these paradigmatic models as he tackles the problems he hopes to ameliorate.

Vermeule does not employ mathematical formulae and large-scale data sets that empirically test his arguments, instead identifying institutional variables that are arguably central to democracy. He then proceeds to indicate how, through small-scale changes, each of these may be enhanced to promote greater democracy. This requires description, prescription, and an intricate and fascinating intellectual balancing of tradeoffs among what he regards as central democratic mechanisms: impartiality, accountability, transparency, and deliberation. Clearly, a reform minded intellectual, he repeatedly makes the claim that his small-scale approach is preferable to large-scale institutional change because it is less costly, but more predictable, and more amendable to acceptance by political actors. Vermeule is dismissive of those who might counsel waiting upon the reconcilement of competing views of democratic theory before proceeding to reform. He sets out with the assertion that most democrats will respond favorably to reform proposals if each comports with their preferred notions of democracy and that marginal and optimizing tradeoffs are essential byproducts of the process.

The nomenclature chosen by Vermeule to encapsulate his central democratic mechanisms are for the most part easily recognizable as part of the existing literature and public discourse. His first, however – impartiality – requires more. Vermeule admits that he wishes he could find a more definitive word than impartiality to encapsulate his thought. He means by impartiality that public officials ought not to act in ways that promote their self-interest. Rather, they should be public regarding. It may help readers to comprehend what he is getting at if they recollect lessons from classical political theory and the debates on the adoption of the Constitution. I suppose the author rejects starting from the beginning of political thought because, as he writes, using a term such as public spiritedness may distort his purpose. Yet, I think, the classical approach is more illuminating. The Roman concept [*70] of virtue and found later in Machiavelli’s DISCOURSES and expressed elegantly by James Madison in 57 FEDERALIST is on point – to wit, the object of every constitution is to find rulers who “possess most wisdom to discern, and most virtue to pursue, the common good.” Madison goes on to argue that a republican form of government is the best mechanism to keep officials from serving their own self-interests or those of particular factions in society inimical to the public good. Vermeule is proposing to patch holes in the extant ship of state without altering basic structures, and in this sense, his work is really part of a grand intellectual tradition in pursuit of the goal of a good, as opposed to a bad, democracy. Vermeule skillfully deflects attention away from macro-fixes by explaining his focus is limited to creating veil rules that will promote impartiality. Well then, we might ask, borrowing his own sailing metaphor, does he succeed in patching the constitutional ship of state?

The author defines a veil rule as a mechanism that curbs self-interested behavior. Such rules work, he argues, because political officials are uncertain about what particular decisions are likely to result in some benefit to them personally. Suppressing information is thus one way to encourage political actors to behave in public-spirited rather than selfish ways. But Vermeule argues that attempts to offer such reforms are difficult to implement because of the tradeoffs with other political goods. He is particularly critical of the Crampton and Carrington (2006) proposal to limit the tenure of Supreme Court justices to a fixed number of years and of Bruce Ackerman’s (2006) framework proposal for the implementation of prospective emergency legislation that would protect civil liberties. No doubt, Vermeule is correct in pointing out that self-interested motivation and institutional factors discourage the creation of new veil rules other than those already in the US Constitution; he cites prohibitions against Ex Post Facto Laws, Bills of Attainder, as well as the Twenty-Seventh Amendment, and the Emoluments Clause. In fairness, Vermeule cites one proposal to create legislative redistricting plans that would delay implementation for two or three election cycles as an example of an impartiality mechanism that may work. Yet, it is difficult to conclude after reading Vermeule that we can be terribly optimistic about reforming politics through the imposition of additional impartiality rules. As brilliant as Madison’s 10 FEDERALIST is as an argument for encouraging impartiality, over 200 years of constitutional history demonstrates the need for fundamental – qua macro – and not patchwork – qua micro – change. This is particularly true because of the difficulties in creating impartiality mechanisms that can avoid the pitfalls that Vermeule describes.

The author is in fundamental agreement with anyone doubting that impartiality alone is a sufficient condition for democracy. Leaders must be accountable to the citizenry if something more than a benign dictator is the goal as a constitutional order. Though accountability as an abstract concept is a matter of consensus with many variations on the theme, Vermeule argues what counts are ways to operationalize the concept as a democratic mechanism on the ground. Yet, he insists on bashing the widely held belief that the delegation of [*71] legislative authority to administrative agencies represents a serious accountability problem. Despite his claims that it is a “bogus” (p.175) concept, I trust that more persons than myself will be unpersuaded that delegated power may be redelegated without presenting serious accountability problems stemming from the vesting clause found in Article I of the Constitution and the more general principle of separation of powers. Yet, I must admit that many readers will find Vermeule’s extensive argument intriguing and worthy of consideration. I hope that it will move doubters to write serious rebuttals. Regardless of where readers may come down on the nondelegation argument, Vermeule presents some very interesting and thought provoking ways to improve accountability within the extant constitutional system.

Among the author’s accountability enhancing suggestions are submajority voting rules for procedural and agenda matters in legislative settings. He devotes almost an entire chapter to circumventing the strategic behavior of minorities from frustrating the will of majorities by implementing absolute majority voting rules. He also demonstrates how conjoining submajority and absolute majority rules may optimize the goal of accountability. Critical of the legal fraternity for its tendency to afford judges considerable discretion to restrain their policy making tendency through reliance on principles of judicial self-restraint or what political scientists call the judicial role, Vermeule raises the prospect of thinking instead in terms of institutional voting mechanisms. His option of hard rather than soft solutions includes a supermajority to declare statutes and actions unconstitutional and to reverse existing precedent. Instead of the Rule of Four, Vermeule suggests the recasting of certiorari grants to reflect a different set of costs and benefits. Another suggestion is that supermajorities might be required for senatorial voting on presidential appointments to the bench and other offices. No doubt, we should carefully scrutinize all of these suggestions because each possesses important political consequences involving winners and losers. But Vermeule’s challenge that offers hard rather than soft fixes to the constitutional system clearly demonstrates that this book is not just another defense of the status quo. He is intent upon offering fresh and helpful approaches to systemic problems.

Impartiality and accountability are necessary but not sufficient conditions for a successful democracy. Vermeule argues persuasively that deliberation and transparency must be part of the mix. Both, however, possess what he terms good and bad consequences. Decision makers must freely exchange views if the results of deliberation are to be fruitful and if legislators, for example, are able to consider fundamental constitutional issues that arise in the lawmaking process. How this may be accomplished is a subject of an entire chapter that includes specific recommendations. Vermeule rejects both public-choice and realist theoretical views of explaining legislative behavior in favor of the more nuanced explanations of political scientists such as Richard Fenno (1973) – most legislators pursue many ends at the same time and are willing to trade off one goal for another depending upon circumstances. [*72]

Transparent decision-making is a necessary condition for holding public officials accountable. Yet, Vermeule subscribes to the view that government may legitimately conceal from public view certain facts, for example, national security matters. Too much transparency, Vermeule argues, leads to grandstanding and threatens meaningful deliberation. He suggests the creation of micro-mechanisms that permit relative secrecy at the beginning of the policy making process in ways that delay revealing to interest groups and to the broader public legislators’ actual decision making. When is the right time to reveal such processes are not always clear, and as the author freely admits, “the devil is in the details” (p.207).

The suggestions for creating micro-mechanisms with respect to deliberation and transparency particularly are likely to raise many objections. However, this tends to emphasize Vermeule’s major point that tradeoffs are inevitably a consequence of all proposals for improving operations within our present constitutional system. Political scientists with a bent toward reforming the political system will find this book replete with challenging proposals requiring serious critical analysis. Academic lawyers without a grounding in empirical political science should find Vermeule’s use of the social science literature revealing and worthy of emulation. Though the trend has a history, it is becoming increasing clear as this book attests that the transmission of knowledge across academic boundaries is proceeding at a rapid rate and that social scientists and academic lawyers are finally learning from the other without needless peripheral and licensure obstructions.

REFERENCES:
Ackerman, Bruce. 2006. BEFORE THE NEXT ATTACK: PRESERVING CIVIL LIBERTIES IN THE AGE OF TERRORISM. New Haven: Yale University Press.

Crampton, Roger C., and Paul D. Carrington. 2006. REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES. Durham, NC: Carolina Academic Press.

Fenno, Richard F., Jr. 1973. CONGRESSMEN IN COMMITTEES. Boston: Little Brown.

Rossiter, Clinton (ed). 1961. THE FEDERALIST PAPERS: ALEXANDER HAMILTON, JAMES MADISON, JOHN JAY. New York: New American Library.

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© Copyright 2008 by the author, Albert P. Melone.

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TRANSNATIONAL CONSTITUTIONALISM: INTERNATIONAL AND EUROPEAN PERSPECTIVES

by Nicholas Tsagourias (ed.). Cambridge: Cambridge University Press, 2007. 390pp. Hardback. £60.00/$122.00. ISBN: 9780521872041. e-Book format. $98.00. ISBN: 9780511346248.

Reviewed by John E. Finn, Department of Government, Wesleyan University. Email: jfinn [at] wesleyan.edu.

pp.67-68

TRANSNATIONAL CONSTITUTIONALISM, edited by Nicholas Tsagourias, explores constitutionalism and constitutional forms in spaces other than the nation state. This is a fascinating topic (though perhaps not as novel as the book implies). By transnational (or European, though the contributors note that these are not precisely the same thing) and international constitutionalism, the editor refers to “unfolding models of European and international constitutionalism” and seeks to evaluate them by “contextualizing their structural and normative premises and critically reflecting on their constitutional ethos” (p.9). As Tsagourias suggests, continental scholarship on these questions is “thriving,” in part because of the continuing development and constitutionalization of the European Union.

The book is a collection of essays by European scholars. As is common in such efforts, the result is something of mixed bag, and its overall value depends largely on how much interest and value the reader can find in the individual chapters. That is especially true in this case, because the essays address a wide variety of issues and topics, and it is not immediately apparent how they connect to the general themes or to each other. Although the various topics they explore and approaches they utilize are interesting, they do not explicitly engage a common set of inquiries or concerns. Similarly, the editor does not do enough to illuminate common themes or trends in the various chapters.

In short, the appeal of the book to a wider audience could have been strengthened by a stronger editorial touch. The opening chapter does do a good job of summarizing the current literature in both fields. It also includes a very useful summary of the chapters. Tsagourias provides the reader with a sense of the kinds of issues that scholarship on transitional and international constitutionalism addresses, and also proposes a working set of definitions for terms like “constitution, “constitutionalization,” and “constitutionalism” and how those definitions have implications for transnational and international constitutionalism. In particular, Tsagourias suggests that “constitutionalism is the narrative behind processes of self-creation, self-perception, self-identification, or self-projection. Furthermore, constitutionalism employs prescriptive, axiological and empirical tools, not only to construct but also to continuously read politico-legal spaces” (p.3). This discussion is admirably concise, if perhaps more a set of assertions than [*68] arguments, but the real difficulty is that the rest of the book is not systemically or explicitly integrated with those definitions. The book misses several opportunities to draw points of comparison and contrast between and among the individual chapters. A more sustained effort by the editor to tie his brief descriptions of individual chapters to the analytical premises of Chapter One, for example, would have contributed greatly to the volume. Similarly, brief introductions to the various parts of the book, and a general conclusion, would have helped. The absence of such guides limits the utility of the book to nonspecialists.

In addition to the opening chapter, there are nine others, loosely organized under the categories of “States, courts and constitutional principles,” “Transnational constitutional interface,” and “Visions of international constitutionalism.” The individual chapters vary dramatically, both in subject and analytical approach. Some, for example, such as Capps’ essay on “the rejection of the universal state,” and Tsagourias’ chapter on “The constitutional role of general principles of law in international and European jurisprudence,” are expansive in scope and deeply theoretical. Others, such as the chapter by Rivers on proportionality, seem more doctrinal in character, though no less useful. Several of the essays on European and transnational constitutionalism have as their focus the constitutionalization of the European Union. In contrast, the chapters on international constitutionalism are more engaged with the United Nations and other instruments of international governance. The final two chapters are exceptionally useful insofar as they reach more broadly to consider the future possibilities of international constitutionalism writ large and how the development of constitutional regimes may influence our understanding of constitutionalism more generally.

In sum, this is a useful book, full of critical and analytical discussion concerning recent scholarship in fields of transnational and international constitutionalism. Unfortunately, it does not do as much as it could have to make more explicit the implications of this scholarship for readers whose familiarity and research on constitutionalism is concentrated on forms of constitutional organization that are state-centered.

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© Copyright 2008 by the author, John E. Finn.

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EXTRAORDINARY JUSTICE: MILITARY TRIBUNALS IN HISTORICAL AND INTERNATIONAL CONTEXT

by Peter Judson Richards. New York: New York University Press, 2007. 272pp. Cloth. $45.00. ISBN: 9780814775912.

Christopher C. Joyner, Department of Government and Edmund A. Walsh School of Foreign Service, Georgetown University. Email: joynerc [at] georgetown.edu.

pp.62-66

In 1970, Robert Sherrill published his volume, MILITARY JUSTICE IS TO JUSTICE AS MILITARY MUSIC IS TO MUSIC (1970). As one might surmise from its title, this book is a rather biting indictment of the military justice system and its particular deviances from the system of law practiced in the civil judicial court system. In direct contrast, Peter Richards’ EXTRAORDINARY JUSTICE provides through historical analysis a strong defense of the resort to martial law and military tribunals, especially in times of civil emergency, to restore law and order in society. This volume provides a select historical survey of wars and internal conflicts in which military tribunals and martial law were used by governments over the past 150 years.

The fundamental assumption underlying Richards’ study is that when military necessity becomes critical, speedy means of adjudication can become essential to ensure that that the judicial process is not compromised by the circumstances of international conflict. The main premise of EXTRAORDINARY JUSTICE turns on the underlying assumption that military tribunals permit great opportunity for secrecy that can protect sensitive information, which can be compromised in the process of open discovery of civilian trials. The argument is also made that resort to military tribunals ensures greater courtroom security and protection of witnesses, jurors and judges.

The study examines wars and domestic insurrections in three states – the United States, Great Britain and France, as well as the First and Second World Wars – and in which circumstances tribunals were used. The author seeks to set aside rigid legal abstractions that sometimes earmark international law and clarify the pragmatic, realistic consequences that can be obtained through the use of military tribunals. He does this through the prism of historical analysis by comparing lessons learned from resort to military trials by American responses to domestic disorder and conflicts through the Civil War, the 19th century to the experience of British military tribunals in the Boer War, the French Conseils de Guerre during World War I, and the trials of various military commissions during World War II.

Richards argues that the courts martial instituted by Andrew Jackson in the aftermath of the War of 1812 and by General Winfield Scott during the Mexican War of 1846-1846 laid the practical foundation for resort to military tribunals in the United States. Even so, it was Abraham Lincoln’s suspension of the writ of habeas corpus during the Civil War that became the linchpin for [*63] justifying the adjudication of wartime offenses by military commissions. The motivation for Lincoln’s radical act of suspension was clear – to suppress the rebellion and punish those Americans who were aiding and abetting it. Military commissions became a prevalent means in 1861 for the federal authorities to enforce martial law imposed in the border state of Missouri to suppress violent activities perpetrated by marauding guerilla forces. Military commissions were also employed to prosecute 1500 accused Indian offenders in the 1862 Dakota trials, in the much publicized Milligan trial in 1864 and in the 1865 trial of eight alleged conspirators with John Wilkes Booth in the assassination of President Lincoln, and in the trial of Henry Wirz, commandant of Andersonville prison in Georgia. However, such tribunals were most prevalent in Southern states during the period of Reconstruction after the Civil War. Resort to military commissions during the late 1860s and 1870s were used mainly as instruments to ensure that crimes would be punished and injustices minimized. In practical terms, as Richards makes clear, they also served to regulate volatile racial tensions between whites and blacks in areas in the South under the army’s jurisdiction.

The British experience with military tribunals was different from that in the United States, especially in that they were most actively employed as emergency judicial responses to wars that occurred in remote colonial possessions. This was especially true in South Africa. It was the Boer War that instigated the most vigorous use by Great Britain of military tribunals, which considered a wide range of civilian and military offenses, including murder, rape, spying, treason and treachery. In the course of these tribunal proceedings, fighters in the Boer forces occasionally experienced injustices, “administrative deficiencies, and arbitrariness in the process” (p. 55). During the command of the British administrator, Horatio Kitchener, some 700 Boers were initially sentenced to death by military tribunals, although only 35 were actually executed in Cape Colony and an additional 90 executions were carried out in other parts of South Africa.

A key juridical lesson learned from the Boer War was that martial law and military tribunals organized under British authority could be used to provide order and process in the wake of internal conflict – which is among the most violent and disruptive of human activities. Similarly, it became plainly obvious from the British experience that such tribunals and martial law did not obviate the summary nature of the judicial procedures. In fact these tribunals served more as extensions of the commander in the field, rather than as ad hoc appendages to the civil judicial system.

The French connection to military tribunals, which were known as “councils of war” (les conseils de guerre), grew out of the particular legal notion of the “state of siege,” that is, when the French state is embroiled in a condition of national emergency. Under this state of siege, the military assumes police powers normally carried out by civil authorities, especially law enforcement, the maintenance of order, and judicial processes. The widest use of this concept was employed by the French during the First World War when the German army invaded and seized [*64] areas of France. The work of these councils covered acts that impinged on public safety and order, and it widely exceeded the normal bounds of military courts. Among the categories of offenses included were robbery, assault, fraud, insults to public officials, and promotion of prostitution and the sale of liquor. Yet, as Richards observes, it was the critical threat and fear of espionage – and public speech that was deemed contrary to the war effort – that prompted justification for a vast array of security measures and their enforcement under these councils. Declaration of a national state of siege and the expanded jurisdiction of these military tribunals in France during 1915-1918 were effected though government decrees aimed at enhancing public order.

At the same time, Richards points out that these same tribunals were used by the French government to prosecute and punish German soldiers for war crimes committed against French civilians (e.g., murder and massacre, “systematic terrorism,” killing of hostages, torture of civilians, rape, pillage and wanton destruction of private property). Likewise,