January 31, 2008

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.

© 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).

© 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.

© 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).

© 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.

© 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).

© Copyright 2008 by the author, Justin Wedeking.

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January 24, 2008

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.

© 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.

© 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.

© 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, during the war, the French also established commissions of inquiry with the purpose of amassing a record of German violations of international law. In this regard, after the war, a special Allied court was created before the German High Court in Leipzig in 1921 to prosecute war crimes committed by Germans against French, British and American nationals. The experience of this court was notably disappointing. While some 1,590 names were assembled, only 11 cases were eventually prosecuted, with the harshest punishment meted out to two defendants who were sentenced to four years imprisonment and who only a few weeks afterwards managed to escape permanently. In sum, the legacy of the French contribution to the use of military tribunals proved to be real and relevant. The French concept of the state of siege with its concomitant juridical institutions was widely exported, especially to South America, where they were later adopted and implemented by military regimes in Argentina, Bolivia, Chile, Colombia, Paraguay and Venezuela.

Lessons from the unsatisfactory experience with the Court at Leipzig led to significant changes by the victorious Allied powers in their official approach to prosecuting war crimes after the Second World War. Whereas British government officials preferred summary executions, the Americans led by Secretary of War Henry Stimson pressed for the use of military commissions. The American view prevailed. After the war, the greatest use of military commissions occurred on a worldwide national and international scale. The United Nations War Crimes Commission that was officially launched in 1943 became the legal umbrella under which several Allies tried Axis war criminals in their own national courts (especially the United States, Great Britain, France, Belgium, Denmark, Netherlands, and Norway). The crimes tried under these commissions largely focused on atrocities committed against Allied prisoners of war. According to official records, of the 2240 cases tried in these commissions, 1055 death sentences were imposed, although many of these were not executed. Likewise, some forty-five tribunals were established in the Far East to try Japanese military personnel in Japan, the Philippines, China, Australia and the Pacific Islands, conducting a [*65] total of 474 trials, of which the most prominent was that of the “Tiger of Malaysia,” General Tomoyuki Yamashita. He was subsequently executed in February 1946.

The final chapter of EXTRAORDINARY JUSTICE links the implications of these historical experiences with martial law, military tribunals and military commissions to the taking of “terror suspects” in the wars in Afghanistan and Iraq. As Richards observes, more than 7,000 suspects were captured and detained in “mop-up operations” in Afghanistan by late 2001. Of these, 600 “enemy combatants” were transferred to the Guantanamo facility during 2002. More relevant for this study is the author’s review of the main U.S. Supreme Court cases that relate to these terror suspects. A comparative analysis is provided for RASUL v. BUSH, HAMDI v. RUMSFELD, and HAMDAN v. RUMSFELD. His conclusion is instructive, though not without controversy: The United States is engaged in a war against an international terrorist network, al-Qaeda, in which the rule of law must be “strictly adhered to even against those who are most ruthless to undermine it” (p. 164). This leads the author to conclude that the Supreme Court’s decision to render Common Article 3 of the Geneva Conventions as the basis for litigation by accused terror suspects “tends to disparage the role of the state to control and channel large scale violence” by providing individual litigants with “a ready avenue for side-stepping the entire apparatus of the state system” (p.169). Richards clearly believes that resort to military commissions by the United States in this time of “national emergency” is necessitated by our war against terrorism. One cannot help but wonder, however, whether the perceived exigency of the need for trial and punishment of the Guanatamo detainees through the use of military commissions might be undercutting the normal guarantees of justice reserved for accused offenders under the U.S. Constitutional law. Indeed, there appears to be hanging over the detainees the presumption of guilt – why else would they have been taken prisoner? – with the defendant having to prove his innocence before a military tribunal, rather than in a civil court guided expressly by the critical juridical presumption of “innocent until proven guilty.”

The fact remains, as Richards rightly notes, that the suggestion to set up military commissions and tribunals in the aftermath of the events of September 11 invites serious questions concerning the definitions of terms and concepts critical to the judicial process, such as “terrorism,” “due process,” “justice,” or “state of war.” Did the seizure of four domestic aircraft by foreign nationals using box cutters amount to “an armed attack” against the United States? If not, how can the United States justify its armed attack in “self defense” against al-Quaeda and Taliban forces in Afghanistan in October 2001? These are not trivial considerations, and finding satisfactory legal answers for them will have important implications on the lawfulness of bringing foreign nationals to trial on charges of complicity, whether in the United States, Iraq, Afghanistan, or at Guantanamo.

If a lesson is raised by this study, it is that the theme of accountability for [*66] violations of the law of war can at times be overridden by the quest for legal revenge and retribution. This is not to conclude that military commissions or courts martial are not useful; they clearly are for violations of military law by members of armed forces. But serious questions continue concerning their use as they affect the fundamental legal rights of the accused (e.g., the presumption of innocence, the right to counsel, the right to a speedy trial, the right to confront witnesses and the guarantee of due process). The author’s key concluding point is that international juridical institutions, such as the International Criminal Court, are inadequate for eliminating the immediate and pressing threats of sub-national terror networks to international stability and stability. He may well be right. Even so, there still persists the need for impartial justice and constitutional protections for defendants meted out by national courts. The degree to which these necessities can be accomplished through the use of military commissions for the detainees currently being held is yet to be fully and convincingly demonstrated.

This said, EXTRAORDINARY JUSTICE stands on its own as a significant study. It is well written and authoritatively documented. Indeed, Richards’ documentation contains an extensive and impressive variety of sources drawn from both domestic and foreign archives. The prose flows smoothly, making for an easy, comprehensible read. In a relatively few pages (less than 190), the volume presents a masterful learned account of the activities of military tribunals as instruments for dispensing justice, both during and after armed conflicts. As a consequence, its perusal is highly recommended. Scholars who advocate the use of military commissions to try civilian detainees will find this a very useful and relevant account. So, too, will those scholars who are interested in the modern evolution of these instruments and the various successes, failures, and abuses they have experienced in periods of internal conflict and declared “national emergencies.”

REFERENCES:
Sherrill, Robert. 1970. MILITARY JUSTICE IS TO JUSTICE AS MILITARY MUSIC IS TO MUSIC. New York: Harper & Row.

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

HAMDI v. RUMSFELD, 524 U.S. 507 (2004).

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

© Copyright 2008 by the author, Christopher C. Joyner.

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PUNISHMENT AND POLITICAL ORDER

by Keally McBride. Ann Arbor: The University of Michigan Press, 2007. 208pp. Cloth. $55.00. ISBN: 9780472099825. Paper. $19.95. ISBN: 9780472069828.

Reviewed by Samuel T. Morison, Office of the Pardon Attorney, U.S. Department of Justice. E-mail: stm5 [at] georgetown.edu.

pp.57-61

The vast literature discussing the justification of punishment has been written, by a fairly substantial margin, from the perspective of moral philosophy. In one sense, of course, this is perfectly understandable. The practice of punishment is without doubt fraught with moral dilemmas, because it involves deliberately treating people in ways that ordinarily would be thought to violate their fundamental rights. For this reason, the rationale for locking someone in a cage, taking away his property, or perhaps even killing him is obviously a matter of urgent ethical concern.

As a result, there is widespread agreement that in order to be morally acceptable, the state’s treatment of an offender must satisfy certain stringent constraints, including that only those properly found guilty should be punished and that the severity of the sanction imposed should not exceed a loosely-defined limit of “fit” with the seriousness of the offense. The literature then tends to become mired in an increasingly sterile debate about the relative priority between our deontological and consequentialist intuitions, with partisans on each side pointing out the relative theoretical shortcomings of the other, as if the only relevant question was how to bring about a morally desirable state of affairs.

What often gets overlooked in these debates is an explicit consideration of the political context in which punishment takes place. It might be a good thing, to be sure, perhaps even emotionally satisfying, when a criminal gets what he arguably deserves for his misconduct. Nevertheless, it is hardly obvious that the state is the proper institution for expressing that virtue, at least when it would serve no useful social purpose or is otherwise objectionable as a matter of political morality. From the perspective of the liberal tradition anyway, one might reasonably conclude that a person committed an illegal act, for which he is morally blameworthy to boot, and yet deny that it is the legitimate business of a secular state to punish him for it, particularly for the avowed purpose of maintaining a sort of cosmic balance sheet between inner wickedness and punitive suffering. As our recent attempts to export Western-style democracy to the last remaining bastions of theocracy ought vividly to remind us, legal punishment should never be confused with divine retribution. A complete justification of punishment, then, must not only give an account of the conditions under which it is morally permissible, but also why it is legitimate to pursue such goals through the mechanism of state coercion. [*58]

Keally McBride’s PUNISHMENT AND POLITICAL ORDER is a thoughtful contribution to this wider normative project. The standard social scientific approach to the practice of punishment, she begins, typically views it as a straightforward “expression of and a tool for consolidating power” and reinforcing “racial and economic inequalities” (p.3). Without denying the validity of this perspective, McBride correctly points out that no government, even the most dictatorial, can in the long run govern exclusively through brute force. This is true for the simple reason that the actual exercise of political power is continuously dependent on the willingness of substantial numbers of people to comply with the dictates of the regime, including amongst others “the hand that holds the key, the judge that shuffles the papers and the person who chooses whether or not to file charges” (p.79).

Power alone thus cannot be the exclusive source of the obligation of obedience, contra Hobbes, since that power itself is the product of widespread allegiance to the state. As such, punishment is never merely an instrument for threatening collective violence as a mechanism of social control. Instead, it is also the simultaneous expression of “the ideals inherent in a political order” (p.15), some greater good that justifies the exercise of coercive authority over the lives and property of the citizenry as something other than an arbitrary exercise, “whether that be service to God, impartial courts, the light of reason, or the necessity of power” (p.10). The officials who administer the system of punishment must therefore “demonstrate that they deserve their unique privileges because they serve the larger interest of justice. As soon as punishment is entirely about the power of command[,] it . . . will quickly destroy the tenuous connection between power and justice cultivated by all regimes” (p.150). Indeed, if punishment were simply an expression of brute force, McBride rightly observes, “it would not have spawned the intricate legal codes and machinery for assistance” through which it is implemented (p.75).

From this perspective, then, the practice of punishment involves an intricate balancing act, pursuant to which the state attempts to fill the normative gap between an animating ideal of social order, which “offers the possibility that human beings can construct an earthly system that redeems our existence” (p.11), and the disorderly reality of the human condition. It is in this space, according to McBride, “where the ideals of a polity come to be dramatically situated in close proximity with the realities of governance” (p.10). In the liberal tradition, for example, the even-handed and judicious enforcement of the law through punishment plays a crucial role in instantiating the intangible ideal of the rule of law (pp.7-8), as well as giving practical existence to “abstractions such as morals, rights, duties and sovereignty” (p.121). McBride thus argues that punishment is central, rather than peripheral, to liberal ideology, since in this view the state punishes precisely in order to establish “the two core elements of a liberal regime: its emphasis upon the rights of individuals and the bounds upon state power” (p.122).

At the same time, of course, the perfect realization of justice is invariably beyond the reach of human institutions. Consequently, the practice of punishment also “invites examination of whether the exercise of state power is [*59] actually bounded by its declared ideals” (p.5). A regime thus stakes its legitimacy on the extent to which its penal practices are perceived by the public to conform to its ostensible ideals. Where theory and practice persistently conflict, the resulting cognitive dissonance tends to undermine the stability of the legal system and, in extreme cases, provokes active resistance. Indeed, McBride openly worries that when secular states, in the wake of the Enlightenment, began to punish “in their own name, not that of God,” they undertook a paradoxical and perhaps impossible project, namely to “redeem human suffering . . . in the name of worldly ideals.” “Secular states must be able to punish in their own name,” she writes, “but this fact is nonetheless the Achilles’ heel of any regime. Punishment provides the foundations of political order, but they are invariably Manichaean” (p.11).

On this somber note, McBride proceeds to explore the dynamic relationship between political idealism and the actual practice of punishment in the course of seven chapters devoted to an ambitious range of topics in the history of political thought: the utopian and dystopian theorizing of Thomas More and Franz Kafka; a comparative study of suffering and redemption in THE BOOK OF JOB and Hobbes’s LEVIATHAN; the development of modern conceptions of sovereignty; the role that punishment theory played in the early American Republic’s struggle to free itself from the influence of the British colonial empire; the place of punishment in the classical liberal political theories of John Locke and Jeremy Bentham; the relationship between liberal democracy and the use of prison labor; and, finally, a case study of the prisoner abuse scandals at Abu Ghraib and Guantanamo Bay.

I cannot in this space explore each of these topics in the detail they deserve, but McBride’s treatment is always interesting and engaging, and would be appropriate material for any course in law and society or the intellectual history of criminological theory. I was especially struck by the chapter on the early American movement for penal reform, which was largely inspired by the vision of the great Enlightenment figure Cesare Beccaria. McBride shows that Beccaria’s work was widely read by the founding generation, which convinced “the new legislators in the United States,” who had “experienced the [English] penal system as a clear affront to their ability to self-legislate,” that overly harsh laws are in fact “the source of criminality” (p.91).

There is a certain irony in the fact that during this formative era of the American Republic, the patriotic impulse that motivated the rejection of foreign law was intended to ameliorate the cruelty of the penological practices inherited from England. Yet, the most ardent contemporary proponents of American exceptionalism on the U.S. Supreme Court, who categorically reject the validity of consulting international human rights norms to assess the appropriateness of domestic penal practices, such as the death penalty for juveniles, do so under the banner of fidelity to a jurisprudence of originalism. Thus, in his dissent in ROPER v. SIMMONS, Justice Scalia argues that the correct point of reference for the interpretation of the Eighth Amendment is the Anglo-American common law as it existed in the seventeenth and eighteenth centuries, citing as authorities William Blackstone and Matthew Hale. But if [*60] the point of the interpretive exercise is to remain faithful to the understanding of the founding generation in this country, as Justice Scalia insists, then McBride’s analysis suggests that perhaps he has misread the historical moment.

McBride does, occasionally, strike a false note. She flatly asserts, for example, that the severity of our current punishment practices “reveal[s] how completely democratic idealism has disappeared” in the United States (p.102), that the prevailing neoliberal economic ideology entails “that a significant portion of our population, in particular black men, be sacrificed” to incarceration (p.145), that the prison abuse scandal in Iraq “has led to an unraveling of U.S. political power in the world” (p.153), and that “degradation and torture” have become “normalized” and “routine” within the domestic prison system (p.162). I do not mean to suggest that none of these claims has a degree of truth. The Abu Ghraib imbroglio, to be sure, was by all accounts both a moral and a public relations disaster, there seems to be a growing consensus that minority groups have been disproportionately affected by current sentencing policies, and so forth. Be that as it may, the foregoing assertions are hardly self-evident, at least in the sweeping form in which McBride states them, and would require much more support than appears in the text to be convincing. For this reason, I found these sorts of remarks to be a distraction from the overall flow of the argument.

Finally, I want briefly to take issue with one of McBride’s key methodological assumptions. The principal theme that runs throughout the text, as we have seen, is the dynamic relationship between the state’s punishment practices and its professed political ideals, such as maintaining the equal moral status of each citizen. For McBride’s purposes, however, the legitimacy of the system is completely dependent upon the perception of those subject to state action. She thus contends that “[t]here is no empirical distinction between the exercise of tyranny and the administration of punishment; it is entirely a matter of perception. . . . Once an instance of punishment is perceived as an expression of the state’s power, rather than the criminality of the person being punished, a fundamental shift has occurred. Punishment has ceased being an unquestioned and given activity and become an opportunity to judge the state’s exercise of its given authority” (pp.10, 148).

This use of the concept of legitimacy is strictly sociological, however. While it might tell us something about what the members of a polity actually believe about punishment, this gives us little insight into what social practices are likely to be rationally justified in terms of our considered normative ideals. After all, although McBride is frankly skeptical about the validity of our current penal practices, she acknowledges that most Americans “perceive them to be acceptable,” which she attributes largely to the baleful influence of “the racialized nature of mass incarceration” (p.124). In any event, she admits that there is no necessary causal relationship between unjust social practices and political instability or unrest (p.147).

A normative theory of legitimacy, on the other hand, should aspire to give us some critical leverage in assessing the proper limits of state action, in particular an account of why certain policies are unjustified given our concern for equal citizenship, as opposed to what people [*61] are contingently prepared to accept, which may be based on mistaken empirical conclusions or distorted value judgments. McBride herself alludes to the correct standard, I think, when she suggests that prevailing sentencing laws and conditions of confinement must be justified as a reasonable exercise of coercion from the perspective of those who are incarcerated. “How many prisoners in the United States today,” she wonders, “believe the laws are a manifestation of the social contract of which they are a part?” (p.102).

According to this account of political legitimacy, which under the influence of John Rawls has dominated contemporary political thought, the principles of justice are those that would be rationally acceptable to each person qua citizen, on the assumption, among other things, that each of us might easily find ourselves on the wrong side of the criminal law. The goal of such an inquiry, as Corey Brettschneider (2007) has recently argued, “is not to legitimize only those punishments that criminals would actually accept but rather to assess which punishments a criminal might reasonably accept were she motivated to find universal agreement about how to balance her interests with the interests of others” (emphasis added). In this way, the contractual paradigm functions as a heuristic device to sift out the principles of social organization that would be reasonable for anyone to accept, without presupposing the privileged status of any preexisting social or economic class, and still less any controversial religious or philosophical doctrine. The resulting principles of “public reason” define the necessary conditions on the legitimate use of force that a regime must satisfy if its legislative and judicial edicts are entitled to a prima facie duty of obedience by those who disagree with them.

If this is the right philosophical approach, it goes at least part of the way toward answering McBride’s concern about the ability of the secular state to administer justice. A sound normative theory of legitimacy – one which eschews any appeal to contentious transcendent beliefs – gives us a practical standard to hold up against the world as it actually exists. While this is by no means a guarantee that we will faithfully live up to our best ideals, it may, as Rawls (2001) remarks, “calm our frustration and rage against our society and its history” by giving us hope that the construction of a more just and humane penal system is a realistic possibility.

REFERENCES:
Brettschneider, Corey. 2007. “The Rights of the Guilty: Punishment and Political Legitimacy.” 35 POLITICAL THEORY 175-199.

Rawls, John. 2001. JUSTICE AS FAIRNESS: A RESTATEMENT. Cambridge, Massachusetts: Harvard University Press.

CASE REFERENCE:
ROPER v. SIMMONS, 543 U.S. 551 (2005).

© Copyright 2008 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.

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THE COMMON LAW TRADITION: A COLLECTIVE PORTRAIT OF FIVE LEGAL SCHOLARS

by George W. Liebmann. New Brunswick: Transaction Publishers, 2006. 367pp. Cloth $59.95. ISBN: 9780765802811. Paper $29.95. ISBN: 9781412805605.

Reviewed by Kathleen S. Sullivan, Department of Political Science, Ohio University. Sullivak [at] ohio.edu.

pp.54-56

George W. Liebmann attended law school at the University of Chicago in the early 1960s. This book is a tribute to his professors there. He was trained by a faculty of talented legal scholars of intellectual breadth and diversity. All shared an appreciation for practical knowledge rather than high theory, for bottom-up jurisprudence and judicial restraint. The book’s title reflects commitment to the methods of the common law retained by this group of scholars.

The book is structured by devoting a chapter to each of his five subjects. Each chapter offers an account of a professional career that included public service and major scholarly works of the twentieth century. Liebmann offers a collective portrait of these scholars as a model for a return to the common sense of the common law.

As Dean of the University of Chicago Law School in the early 1960s, Edward Levi secured grants for interdisciplinary projects in sociology, economics, and comparative law and recruited the faculty that would give the University of Chicago an identity distinct from eastern law schools. He began his career in the Antitrust Division of the Department of Justice. His work there influenced his role as a founder of the law and economics movement. He was driven not by economic orthodoxy but by his interest in the mutability of doctrine, a position summarized in INTRODUCTION TO LEGAL REASONING. As provost and president of the university during the period of student protest in the late 1960s, Levi exhibited the same moderate stance to ideology among students that he did among jurists. He later served for two years as President Ford’s Attorney General.

Harry Kalven, Jr., a popular professor of torts and taxation, was co-author with Hans Zeisel of THE AMERICAN JURY, the best known of the studies emerging from the University of Chicago Jury Project. In keeping with the common law tradition, Kalven suggested reforms that were based on his empirical findings rather than on his presuppositions. His work on race and the first amendment lent the attention to concrete issues that would be expected in the common law tradition.

Karl Llewellyn, a dynamic and stern class lecturer, was committed to the practice of judicial restraint. Whether writing about the common law method in THE CASE LAW SYSTEM IN AMERICA and THE COMMON LAW TRADITION or in authoring the Uniform Commercial Code, he operated on the premise that the law had to be [*55] adaptable to changing circumstances. He was a legal realist who never treated realism as a philosophy or unduly relied on social science research.

Philip Kurland, a founder of THE SUPREME COURT REVIEW, applied a pragmatist critique to the many changes in constitutional law doctrine of his day. Seeing constitutional law as a process in service to society, he lamented the judicial activism and the ideology that drove the notable developments in contemporary constitutional law doctrine.

Kenneth Culp Davis, author of a pathbreaking administrative law textbook, produced a New Deal-era comprehensive study of federal administrative agencies and Administrative Procedure Act of 1946. Davis’ career attended to administrative rules, which Liebmann sees as supplanted by contemporary appeal to rights. He was driven by concerns for separation of powers issues and common sense that gave way to greater judicial review and conceptions of welfare benefits as rights.

The book’s central concern lies in Liebmann’s understanding that this school of scholars has been lost to ideology and judicial activism. His law school professors resisted trends toward rights talk, litigation strategies, and legal philosophy. He likewise positions his own work outside of the ideological fray. His complaints about ideology in the academy are directed toward both the liberal “judicial activists” who have taught law students to pursue litigation strategies for social change rather than legislative reform, and the law and economics school that has maintained a “confining discipline rather than a liberating one” (p.3). The Chicago faculty in the early 1960s was a place of tolerance and pluralism because these scholars were not driven by ideological pursuits.

Whether Liebmann has escaped ideology, however, is another question. He presents a litany of what has gone wrong with the United States without the practical research into these topics that would be required by the very qualities he admires in the book’s subjects. The introduction and conclusion decry the rise of drug use and crime, the decline of the American family, increases in consumer debt, and destruction of the environment. Without empirical evidence of just what is wrong with these trends and the complex causes of these social phenomena, such a litany comes across as little more than an everyman’s complaint.

Liebmann may have avoided empirical discussion because of a distrust of social science. While some members of the Chicago faculty engaged in interdisciplinary research, he may have resisted incorporating research findings from other disciplines because his book’s subjects convey anxiety about the role of social science in the law. Throughout the book, social science emerges as just as doctrinaire as partisan ideology, leading its practitioners to be guided by presuppositions rather than follow the law. Thus, Liebmann does not incorporate much social science literature in a discussion of the impact of BROWN v. BOARD OF EDUCATION but, nevertheless, does draw conclusions about the role of BROWN in society: “BROWN gave rise to the destruction of public secondary education, once a [*56] major agency of social mobility, through the racial purging of urban teaching forces, the destruction of selective schools and ‘tracking’ in the face of egalitarian claims, and the flight to the suburbs first of the white middle class and then of the black middle class” (p.313). That such a definitive statement can be made about society at the conclusion of a book about legal scholars betrays the very problem of overreaching that the book’s subjects warned against.

The book remains useful to those interested in the time period or in any one of the book’s subjects. Liebmann has compiled information from personal papers, from the proceedings of professional associations and other archival material that offer a rich history of a particular time and place.

REFERENCES:
Kalven, Jr., Harry and Hans Zeisel. 1966. THE AMERICAN JURY. Chicago: University of Chicago Press.

Kurland, Philip (ed). 1960. THE SUPREME COURT REVIEW, 1960-. Chicago: University of Chicago Press.

Levi, Edward. 1948. INTRODUCTION TO LEGAL REASONING. Chicago: University of Chicago Press.

Llewellyn, Karl. 1989. THE CASE LAW SYSTEM IN AMERICA. New Haven: Yale University Press.

Llewellyn, Karl. 1960. THE COMMON LAW TRADITION—DECIDING APPEALS. Boston: Little, Brown.

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

© Copyright 2008 by the author, Kathleen S. Sullivan.

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WHEN NATURE STRIKES: WEATHER DISASTERS AND THE LAW

by Marsha L. Baum. Westport, CT: Praeger, 2007. 248pp. Hardback. $44.95/£25.95. ISBN: 9780275221294.

Reviewed by Stephen Meinhold, Department of Public and International Affairs, University of North Carolina Wilmington. Email: meinholds [at] uncw.edu.

pp.51-53

My hunch is that most readers of the Law and Politics Book Review are not terribly different from me, they get up in the morning – and check the weather; they prepare to retire – and check the weather. Some of you, and here I include myself, might even be weather geeks; and for us a recent book by Marsha Baum, WHEN NATURE STRIKES, is a welcome addition to our library. Baum examines a topic that is without any other treatment. A quick keyword search of the LPBR archives uncovers no other books on “weather and law” and the same appears true for a general library search. Perhaps it is because so little has been written about the subject that Baum’s effort feels more supplementary than comprehensive (it may also be because of its brevity at 138pp of text), but that does not detract from its unique contribution.

The book is largely historical and descriptive (there are no tables, charts, graphs or pictures). It lacks a general theoretical or empirical approach, but it does provide a useful overview of the important and largely ignored relationship between the weather and law. Such first efforts to synthesize a large amount of case law are bound to be more descriptive than explanatory and such is the case with Baum’s effort. But the book will be useful to scholars and instructors in the general areas of law and disasters and may also be useful for instructors looking for supplementary readings on civil liability and sovereign immunity that have a weather or disaster dimension.

WHEN NATURE STRIKES focuses on three topics: “the history and role of government in weather reporting, forecasting, and warning systems; human attempts to affect the weather and governmental regulation of those efforts; and, liability for harm resulting from weather-related incidents that affect individuals” (p.xiii). Most of the book focuses on the third topic, with chapters on “Governmental Liability for Injury to Individuals,” “Civil Liabilities for Weather-Related Harm,” “Crime and Weather,” and “Weather and the Justice System.” These are the chapters that will be of the most interest and utility to LBPR readers and that are more thoroughly examined below. The first two chapters, which cover “Weather Forecasting and Warning Systems” and “Taming the Weather through Science and Technology,” provide useful background on the selected topics but are less connected to the “law” than the remaining chapters, evidenced by far fewer case citations or other direct connections to the legal system.

Chapter 3 explores the liability of government at all levels for its weather related functions, such as “providing forecasting and warning systems; [*52] maintaining roads and sidewalks in usable conditions; removing citizens from harms’ way by directing traffic or offering shelter; and, seeking to mitigate harm to property or persons by instituting programs to protect society from disasters and harm” (p.39). Baum reviews the general principles of sovereign and limited immunity and describes the many failed attempts by litigants to hold the government responsible for weather related behavior and accidents. As is the case with the rest of the book, Baum weaves interesting case stories into the general narrative of the chapter; and as a result the book will appeal to a wide range of undergraduate and graduate students. This chapter will be most useful for instructors looking to supplement their readings on governmental immunity with a brief chapter that provides interesting weather related cases and anecdotes.

Chapter 4 examines the relationship between civil law and weather, focusing primarily on the liability of coaches, tournament directors, property owners, and weather forecasters for harm that occurs as a result of their action or inaction. This is perhaps the strongest chapter of book and would stand very nicely as a supplemental reading to other coursework on civil liability. Baum’s introduction to law and civil liability is brief yet complete, and the subsequent cases and narrative provide a particularly engaging series of real life examples to complement the hypothetical questions.

Chapter 5 deals with the criminal justice system and weather related disasters. The chapter begins with a section on looting, which provides a good description of the history and case law surrounding the subject, but in my opinion fails to incorporate a sufficient amount of the vast social science literature on this topic. The length and goals of WHEN NATURE STRIKES preclude a full review of this literature, but the degree of neglect here leaves the reader with a limited perspective, perpetuating the myth that looting is rampant after disasters, while the footnoted material and, more importantly, the sociology of disaster research more generally suggest otherwise. The general academic consensus is that looting is atypical after disasters and was likely overstated after Hurricane Katrina (e.g., Barsky, Lauren, Trainor, and Torres 2006; Quarantelli 2006).

Chapter 6 explores the connection between weather and the justice system, noting that all aspects of the justice system are affected by the weather. Baum considers the relationship between weather and crime rates, weather as it is used as evidence, and the admissibility of weather as evidence. Each of these topics is covered briefly but ably. The remainder of the chapter is concerned with the role weather plays in access to justice, and this material is particularly interesting. Several probing questions are posed about weather and access to justice, including how individuals displaced from weather disasters are treated (e.g., notification in lawsuits, delays in court hearings, transfer of custody to other jurisdictions, and so on) and the availability of legal services. The material cited by Baum in this chapter is relatively new and still under development, suggesting a fruitful line of possible doctoral dissertations. This is particularly true because all signs point to a continued increase in disasters [*53] and dramatic climate change, which are bound to generate increased stress on the legal system.

The final chapter of the book provides cursory coverage of future issues, including globalization and the potential for changes in causes of action, as weather forecasting becomes increasing sophisticated.

One drawback of the book is that it is largely historical yet includes a number of references to recent “law and weather” events, particularly those surrounding FEMA and Hurricane Katrina. These references are interesting, but they tend to be cursory and incomplete because the litigation has not yet concluded or the case law had not yet been tested, causing them to detract from, rather than complement the rest of the material. As an aside, I was left wondering after nearly every chapter about how other countries handle the issues that are addressed in WHEN NATURE STRIKES. A companion to this volume considering the similar or very different way that legal systems around the world address “weather and the law” would be a valuable contribution.

Baum’s WHEN NATURE STRIKES includes a particularly good and thorough “Glossary of Weather Terms” which could be used by instructors in a wide variety of courses as supplementary material. In case you are wondering, as I write this, the current conditions in Wilmington are: 53˚F with 28% Humidity and winds out of the West at 3MPH.

REFERENCES:
Barsky, Lauren, Joseph Trainor, and Manuel Torres. 2006. “Disaster realities in the aftermath of Hurricane Katrina: Revisiting the looting myth.” Quick Response Research Report 184. Boulder, CO: University of Colorado Natural Hazards Center. http://www.colorado.edu/hazards/qr/qr184/qr184.html .

Quarentelli, E.L. 2006. “Catastrophes are Different from Disasters: Some Implications for Crisis Planning and Managing Drawn from Katrina.” Social Science Research Council, New York: NY. http://understandingkatrina.ssrc.org/Quarantelli/.

© Copyright 2008 by the author, Stephen Meinhold.

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January 21, 2008

RONALD DWORKIN

by Arthur Ripstein (ed). New York and Cambridge: Cambridge University Press, 2007. 192pp. Hardback. $75.00/£40.00. ISBN: 9780521662895. Paper. $24.99/£13.99. ISBN: 9780521664127.

Reviewed by Joseph R. Reisert, Department of Government, Colby College. Email: jrreiser [at] colby.edu.

pp.44-50

Few scholars working today can match Ronald Dworkin’s range of intellectual interests, and none writes about complex legal and philosophical issues with greater elegance or charm. The successor to H. L. A. Hart as Professor of Jurisprudence at Oxford and currently the Jeremy Bentham Professor of Law at University College London and Frank Henry Sommer Professor of Law at New York University, Dworkin is one of this era’s preeminent legal and political theorists. A regular contributor to the NEW YORK REVIEW OF BOOKS, Dworkin is also a familiar public intellectual and a regular participant in public debates about controversial issues in political morality.

Although his works, individually, are models of clarity, Dworkin has written so much, and contributed to so many different debates in practical philosophy, that it can be difficult to appreciate the full scope and range of his intellectual achievements. Arthur Ripstein’s collection of essays, RONALD DWORKIN, aims to help readers meet that challenge. A volume in the Cambridge University Press series, Contemporary Philosophy in Focus, it seeks to introduce readers who are not intimately familiar with Dworkin’s works to his several major philosophical contributions.

Ripstein’s book contains five chapters, each dedicated to a different facet of Dworkin’s work – his critique of legal positivism, his liberal conception of the rule of law, his account of equality, his arguments for abortion and physician-assisted suicide, and his interpretive approach to the United States Constitution – and an introduction, which provides an overview of Dworkin’s approach to practical philosophy. All six essays in the volume present Dworkin’s arguments as “living truths” rather than “dead dogmas” (to use J.S. Mill’s terms), which is to say that they not only explain Dworkin’s arguments and situate them within a relevant body of literature, but also challenge his positions, sometimes quite forcefully, with counter-arguments of their own.

Although the essays do not presuppose a detailed knowledge of Dworkin’s works, they would be rough going for someone with no prior acquaintance with his writings. Ripstein’s volume would be particularly useful in an upper division undergraduate course or graduate seminar, if assigned as a companion volume alongside a selection of Dworkin’s works; it will also be helpful for scholars who have some acquaintance with a single aspect of Dworkin’s work, who seek a broader familiarity with the whole. [*45]

In his introduction, Ripstein reports that Dworkin has described himself as one of Isaiah Berlin’s “hedgehogs,” that is, as a thinker deeply attached to a single, big idea or set of ideas. He adds, however, that Dworkin seeks to avoid the vice most characteristic of the intellectual hedgehog, namely excessive abstraction, by engaging deeply with the particular terms of several concrete debates in political morality. Hence the organization of Ripstein’s book, which sounds Dworkin’s main theme in the introduction and explores that theme in its variations in the chapters devoted to specific issues.

Dworkin’s overarching idea, according to Ripstein, is his “Anti-Archimedean” approach to practical philosophy — so characterized because it denies that there exists any intellectual fixed point or fulcrum, apart from and above first-order normative debates, from which to apply any abstract, intellectual leverage to resolve them (p.5). Instead, Dworkin maintains, such debates must be resolved interpretively. In Ripstein’s account, Dworkin’s interpretative theory of justification amounts to a generalization of John Rawls’ idea of reflective equilibrium. From the observation that normative arguments are always directed towards other persons, who advance normative arguments of their own, Dworkin, like Rawls, concludes that normative arguments must take as their starting point some practical judgments that are shared by those whom we would engage in argument and that our normative conclusions can be accepted as satisfactorily justified when a certain kind of intellectual coherence among competing normative considerations is reached.

Rawls’ condition of reflective equilibrium is reached after we have repeatedly compared the consequences of the general normative principles that our theory leads us to adopt with the first-order normative judgments that we held prior to our theorizing, and gradually brought the two into line. The process works roughly as follows: as we compare the practical consequences of our general principles with the particular judgments with which we started, we may be driven to modify the theory if it yields results too far from our original position, but we may also need to modify some of our first-order judgments in light of the general principles of our larger moral theory.

Ripstein suggests that Dworkin’s theory of practical reasoning as interpretation does sharply distinguish between the levels of abstract political principles and particular judgments about specific issues as does Rawls’s theory; thus he finds that Dworkin’s account preserves a greater degree of “continuity between personal and public morality” than Rawls’ (p.8). Just as the interpreter of a literary work seeks to produce a coherent account of the text in light of its aspiration to artistic merit and its connectedness to the various sources of aesthetic value, so also an interpreter of a statute — or someone defending a normative judgment in everyday moral argument — will seek an account of the statute or moral norm that is most consistent with, and best supported by, the whole underlying web of legal and moral principles that define our shared normative aspirations. Ripstein concludes that, for Dworkin, unlike Rawls, “‘public reason’ cannot be sequestered from comprehensive views about value, even if the best public [*46] arguments turn out to demand that the state remain neutral in many particular disputes” (p.8).

To illustrate the distinctiveness of Dworkin’s “Anti-Archimedian,” interpretive approach to practical reasoning, Ripstein examines Dworkin’s disagreements with two “Archimedian” thinkers, Stanley Fish and Michael Walzer. Fish argues that the idea of interpretation cannot do the work Dworkin requires of it because what counts as a good interpretation of a text varies according to the cultural and institutional setting in which it is advanced. Novelty in interpretation is highly valued in literature departments, which is why there are so many competing interpretations of HAMLET; judges and other participants in the legal system, by contrast, favor predictability, which is why it is usually easy to say what the law requires of us, the existence of occasional hard cases notwithstanding. In Ripstein’s account, Fish emerges as a “disappointed Archimedean” — Archimedean, because he offers an external, sociological theory about the conditions under which different approaches to interpretation will flourish, not an argument internal to the practice of interpretation, about what should count as a successful reading of a text; and disappointed, because his critique of Dworkin supposes that an adequate theory of interpretation must yield an infallible method for correctly reading texts.

In contrast to Fish, who apparently seeks but despairs of finding an “Archimedean” standpoint, Walzer purports to reject the quest for any such fixed point, but, according to Dworkin, nevertheless builds his theory as if he had found one, proposing to resolve normative debates within different domains of life by appealing to the shared understandings of the participants in them. Dworkin rejects Walzer’s approach because he sees what is shared by all participants in any given social practice as the starting-point for an interpretive argument, not its conclusion. Normative judgments cannot simply be discovered through a process of historical or sociological analysis; they need to be argued for. Such arguments are necessarily interpretive: they succeed by showing that one position in an ongoing debate, rather than others, fits best within the overall web of normative principles that constitutes the debate and is the most substantively morally attractive of any such position in the debate.

Each of the subsequent five chapters explores Dworkin’s interpretive arguments with respect to a distinct set of issues. In Chapter 1, Scott Shapiro provides a useful overview of the “Hart-Dworkin debate” about the relationship between law and morality. Shapiro’s summary of this debate is remarkably clear, and may well prove useful even to scholars already familiar with the original works he references. Shaprio finds that Dworkin’s early arguments against positivism from “The Model of Rules I” have been adequately answered by the positivists, but that a second critical argument, broached in “The Model of Rules II” but only fully adumbrated in LAW’S EMPIRE, has not as yet received sufficient attention from legal positivists. This second argument alleges that legal positivists, who are committed to the view that “legal facts are grounded in . . . social, not moral, facts” (p.33), cannot account for [*47] “theoretical disagreements” in the law, i.e., disagreements “about what the grounds of law are” (p.36). As an example of such a debate, Dworkin cites TENNESSEE VALLEY AUTHORITY v. HILL, in which a divided Supreme Court enjoined the construction of a dam that would have threatened with extinction the noble snail darter, in violation of the Endangered Species Act of 1973. As Shapiro stresses, the majority and the dissent disagreed about “the legal relevance” of the “plain facts” about which they agreed – namely, that the Endangered Species Act was valid law, that the Congress had not squarely addressed the policy question raised in the case, and that they found the idea of stopping a nearly-completed $100 million dam construction project to save a relatively unimportant species of fish to be recklessly improvident, as a matter of policy (p.38). Nevertheless, they disagreed about whether the plain text of the statute should, in a case not contemplated by the legislature, be followed literally, despite the absurd consequences, or whether, in such a case, the text should be construed so as to avoid the absurdity. Such a disagreement fits neatly into Dworkin’s conception of interpretive legal argument – the relevant question would be which interpretation best fits with the existing body of case law and is morally best, i.e., most consistent with the deep moral principles running through our legal system. Shapiro notes, however, that legal positivists have not yet provided a similarly convincing account, though he begins to sketch his own positivistic solution to the puzzle, which suggests that disagreements about the grounds of law are really disagreements about the “political objectives that the current designers of the legal system sought to achieve” (p.45) – i.e., disagreements about social, not moral, facts.

David Dyzenhaus’s contribution, “The Rule of Law as the Rule of Liberal Principle,” continues the examination and critique of Dworkin’s theory from the perspective of legal positivism, focusing particularly on his account of the rule of law. Against Dworkin’s anti-positivist theory of law, Dyzenhaus directs three arguments: that it is politically dangerous, because it excessively empowers judges at the expense of democratically elected legislatures; that its account of the rule of law is excessively parochial because it presupposes the existence of a legal system that is already substantively liberal; and that it cannot adequately account for the power of administrative agencies to issue authoritative statutory interpretations. Dyzenhaus argues that Dworkin’s theory cannot meet these three challenges, though he praises Dworkin for having spurred the legal positivists to improve their theories. He concludes by suggesting that an antipositivist account of law might be more likely to succeed if it situates the moral foundations of law, not in the substantive liberal principles to which Dworkin appeals, but in the procedural morality of law articulated by Lon Fuller in THE MORALITY OF LAW.

Chapter 3, “Liberty and Equality,” contributed by the volume’s editor, offers an account and critique of Dworkin’s theory of equality. In contrast to the libertarian argument that equality and liberty are contradictory ideals, Dworkin argues that the two are deeply connected and that, indeed, equality is the more fundamental of the two. His [*48] central claim is that the state must treat its citizens “as equals,” that is, with “equal concern and respect,” and he contends that libertarians and egalitarians do not disagree about the duty of the government to treat citizens with equal concern and respect, but rather disagree about what it means to show such concern and respect (p.85). Thus, as Dworkin presents it, the debate between egalitarians and libertarians is not about the relative weights of equality and liberty, but about whether or not the libertarians’ conception of what it means to treat people as equals – respecting their rights to their persons and property – is the best conception of equality.

Dworkin advances his own conception of equality, equality of resources, by contrasting it with the ideal of equality of welfare, which holds that all those who are parties to the distribution should receive shares so as to produce in them an equal level of overall well-being. The ideal of equality of welfare is most plausible when one considers the possibility of expensive needs – to provide all children, for example, the medical care necessary to become normally-functioning, healthy adults, even if that means providing only inexpensive routine care for one and an extraordinary heart operation for the other. That ideal, however, becomes less attractive when one considers the existence of expensive tastes; can it make sense to devote more resources to the wine-snob than to the lover of cheap beer, in order to produce in both an equal level of satisfaction? Dworkin proposes instead that the moral demand of equality is satisfied when a distribution of external goods is such that no one would prefer another’s share to his own, taking into account not only the content of that share but also its opportunity cost, what has been foregone in order to acquire it. The central advantage of this view, according to Ripstein, is that it requires that people take responsibility for their choices, in a way that alternative conceptions do not.

To handle the problem of expensive needs, Dworkin proposes a thought experiment about a hypothetical market for insurance against catastrophic misfortunes. If it could be ascertained what level of insurance a reasonable person would buy to avert such catastrophes, if he knew only the average level of risk in the society, then it would be just, Dworkin argues, for society to provide that level of economic security. Ripstein suggests, that despite Dworkin’s effort to differentiate his insurance argument from Rawls’ contractarian argument for the difference principle, the two arguments are similar in that both are normative claims “about the conditions in which people can be required to take responsibility for their lives and choices” (p.104).

In Chapter 4, “Rights, Responsibilities, and Reflections on the Sanctity of Life,” Bejnamin C. Zipursky and James E. Fleming provide a summary of Dworkin’s arguments, from LIFE’S DOMINION, for the justifiability of rights to abortion and physician-assisted suicide. Zipursky and Fleming effectively demonstrate how Dworkin’s interpretive, “Anti-Archimedian” approach to practical philosophy, operates in two of the most controversial moral issues in contemporary American politics. Just as Ripstein showed in Chapter 3 that Dworkin begins his effort to resolve the debate between libertarians and egalitarians by finding [*49] the common ground that unites them, so also do Zipursky and Fleming show that Dworkin’s effort to resolve the abortion and euthanasia debates begins with an effort to find a point of agreement between the contending sides. What is shared by opponents in both debates, according to Dworkin, is the idea that life is in some way sacred and therefore merits protection. He forcefully rejects, however, the claim that fetal human beings have a right not to be killed, on the ground that beings who are not, and have not yet been, conscious cannot have any interests of their own. Likewise, he rejects the claim that those who are terminally ill and wracked by pain that cannot be medically alleviated have any duty not to seek their own deaths.

Nevertheless, the failure of those arguments does not settle the question of the legality of abortion or assisted suicide; there remains the question whether the argument from the sacredness of life suffices to justify legal restrictions on either practice. Dworkin argues that the state has a duty, grounded in its obligation to protect liberty of conscience, to respect the divergent, reasonable opinions about the sacredness of life held by citizens on both sides of the abortion and assisted suicide debates. Hence the state is barred from prohibiting either practice, though it may encourage citizens to reflect seriously about seeking abortion or assisted suicide, but only if it leaves the individual free, in the end, to make the choice to seek or refuse either procedure. Zipursky and Fleming offer a modest critique of Dworkin’s view, arguing that his effort to ground the rights to abortion and assisted suicide in religious liberty would be more effectively recast as arguments grounded directly in a more general principle of autonomy. Although this chapter lucidly explicates Dworkin’s arguments, it might have been more enlightening to encounter a more sharply critical perspective on them. Just as Chapters 1 and 2 offered accounts of Dworkin’s critique of legal positivism from scholars who explicitly defend positivism, it might have been desirable to read an account of Dworkin’s theory of the sacredness of life articulated by a scholar who explicitly argues for the positions Dworkin rejects.

The final chapter is Sanford Levinson’s contribution, “Hercules, Abraham Lincoln, the United States Constitution, and the Problem of Slavery.” This essay explores Dworkin’s approach to the interpretation of the United States Constitution by asking how an ideal Dworkinian judge (the Hercules of the chapter title) could operate in a pervasively unjust legal system, such as he assumes the antebellum Constitution to have been. It is a question Dworkin addressed directly only once, in an essay for the NEW YORK REVIEW OF BOOKS, in 1975. In that essay, Dworkin suggests that antebellum judges faced with challenges to the constitutionality of the Fugitive Slave Law did not need to regard themselves as limited by the stark alternatives of either asserting that the principles of natural law demand freedom for the slaves, despite the existence of so much positive law to the contrary, or of punctiliously and even zealously defending the positive law rights of slave-owners. As Levinson points out, the latter course was chosen by John Marshall, in THE ANTELOPE, and by Justice Story, in PRIGG v. PENNSYLVANIA. Dworkin argues that the interpretive approach he commends [*50] opens a middle route between those alternatives. Hercules would recognize the place of slavery in our positive law but also see it as a compromise of the more basic principles of human dignity that underpin the whole project of republican self-government, and, in seeking to give these values due effect, could have found ways, for example, to have protected the rights of blacks alleged to be fugitive slaves.

Levinson, however, presses further, wondering what Hercules would have said about the Missouri Compromise and the Emancipation Proclamation. In Chapter 2, Dyzenhaus introduced the example of a substantively wicked legal system as a problem for Dworkin’s antipositivism; Levinson’s contribution not only mounts a sustained investigation of the resources in Dworkin’s theory for meeting that challenge but also raises a series of provocative questions about whether and why it might be necessary for his theory to do so.

It is a testament to Ronald Dworkin, the scholar, that his work merits such sustained analysis and critique; it is a testament to RONALD DWORKIN, the book, that it so effectively explains Dworkin’s philosophy and offers so many avenues for engaging with Dworkin’s contributions to the several, great philosophical questions with which he has for so long been concerned.

REFERENCES:

Dworkin, Ronald M. 1986. LAW’S EMPIRE. Cambridge: Harvard University Press.

Dworkin, Ronald M. 1993. LIFE’S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM. New York: Alfred A. Knopf.

Dworkin, Ronald M. 1977 [1967]. “The Model of Rules I,” reprinted in TAKING RIGHTS SERIOUSLY. Cambridge: Harvard University Press.

Dworkin, Ronald M. 1977 [1972]. “The Model of Rules II,” reprinted in TAKING RIGHTS SERIOUSLY. Cambridge: Harvard University Press.

Fuller, Lon L. 1969. THE MORALITY OF LAW, rev. ed., New Haven: Yale University Press.

CASE REFERENCES:

THE ANTELOPE, 23 U.S. 66 (1825).

PRIGG v. PENNSYLVANIA, 41 U.S. 539 (1842).

TENNESSEE VALLEY AUTHORITY v. HILL, 437 U.S. 153 (1978).

© Copyright 2008 by the author, Joseph R. Reisert.

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FREE AT LAST TO VOTE: THE ALABAMA ORIGINS OF THE 1965 VOTING RIGHTS ACT

by Brian K. Landsberg. Lawrence, Kansas: University Press of Kansas, 2007. 280pp. Cloth. $34.95. ISBN: 9780700615100.

Reviewed by J. Morgan Kousser, Division of the Humanities and Social Sciences, California Institute of Technology. Email: kousser [at] hss.caltech.edu.

pp.39-43

As key provisions of the Voting Rights Act (VRA) of 1965 were being considered for renewal in 2005-06, supporters and critics competed to eulogize the law. “The statute accomplished what it was beautifully designed to do: ending black disfranchisement in the Jim Crow South,” cooed Abigail Thernstrom, a critic (Thernstrom 2005). It was “the twentieth century’s noblest and most transformative law,” George Will, a skeptic, chimed in (Will 2005). “[P]erhaps the most significant piece of legislation ever passed,” enthused Judiciary Subcommittee Chairman Steve Chabot, an Ohio Republican supporter (Arnold 2005).

Such rhetoric nearly always disguises disagreement and ignorance. Was the Act the result of a sudden national moral consensus brought about by the Alabama State Troopers’ “Bloody Sunday” attack on civil rights marchers in Selma, or the product of a long legal struggle, intensified in the frustrating experiences of the Justice Department in trying to overcome the resistance of Deep South registrars and judges to the 1957 and 1960 Civil Rights Acts? Should the upsurge in African-American registration in the Deep South after 1965 be attributed specifically to the Act’s ban on literacy tests and provisions allowing the Department of Justice unfettered discretion in appointing federal voting registrars and observers or, more vaguely, to a societal shift in white attitudes toward black disfranchisement as a result of the Civil Rights Movement, and to a new confidence among southern blacks in general and civil rights workers in particular, a byproduct of the passage of the 1964 Civil Rights Act and the 1965 VRA? What happened in elections and public policy when blacks were re-enfranchised? How should we weigh the short-term gains that took place after the Act’s passage – the registration surge – compared to the longer-term effects – the use of the Act to attack electoral rules and changes in those rules that were designed to minimize minority political power? Even if we assume, without much systematic evidence, that incremental legal struggles, not profound public transformations, were the real keys to the voting rights drama of the 1960s, which details of the Act’s background we focus on will depend on whether we are trying to explain short-term or long-term consequences.

Former Justice Department attorney Brian Landsberg, who helped litigate three voting rights cases in Alabama at the beginning of his career in 1964, devotes only brief attention to such larger questions at the beginning and end of his book, centering his limited study on the legal cases from Elmore, Sumter, and especially Perry County among the seventy cases that the Department [*40] brought under the 1957 and 1960 Civil Rights Acts. He presents persuasive evidence that the Department’s experience in the three and similar cases was crucial in the framing of the literacy, registrar, observer, and preclearance provisions of the 1965 VRA – in the content, not the passage of the Act (p.5). An analytical memoir or monographic autobiography, the study draws on insider experiences and, very heavily, on Justice Department records that are now available in the National Archives. Clear and often engagingly written, FREE AT LAST TO VOTE puts flesh on the conventional statement that the 1965 Act sought to overcome southern intransigence, and it offers the most complete account yet published of the shaping of provisions of the legislation. Yet it leaves some puzzles, only partially filling one of the significant gaps – how and why certain sections of the VRA were adopted and what their original intent was – in our knowledge of the history of civil rights in America.

At the time that the Civil Rights Division of the Department of Justice (DOJ), established by the 1957 Civil Rights Act, began to litigate voting rights cases, it had only a weak, vague law and few detailed precedents with which to assault the long-entrenched, resourceful interests of southern white political supremacy. Landsberg’s is not a description of high legal doctrine or grand litigation strategies. The fifteenth amendment, designed to override state and local prerogatives, provided the basic legal doctrine, and Landsberg was too junior in 1964 to be privy to grand strategy, if any existed (pp.75, 91-92).

Because the southern voting laws did not discriminate on their face and southern officials no longer declared their racist intentions openly, the DOJ had to document every aspect of the process extensively. Local intransigence at divulging records of registration inspired a provision of the 1960 Civil Rights Act that guaranteed the DOJ access to such records (pp.52-53). Landsberg’s account of fact-gathering, which he refers to as “the romance of the records” – photocopying voter registration documents, reading them on microfilm, transferring the information to index cards, sorting and resorting the cards to discover patterns, and finally, presenting the conclusions based on these patterns to courts – will interest scholars who enjoy similar informational love affairs (pp.55-56). It parallels in the bureaucratized civil rights movement the dreary task of the more public movement in convincing appropriately frightened African-Americans to try to register at county courthouses.

Drawing on such painstaking research, the DOJ legal briefs in the cases created new law, rather than relying on settled law, and they created that law out of facts, not case law citations or legal theory (p.100), an observation that reinforces the more general impression (not expressed by Landsberg) that civil rights law has developed less from elaboration of principles than from deductions from facts. To overcome registrar and judicial resistance, the DOJ had to develop innovative legal theories and institutional techniques, innovations that would eventually provide the mechanics of the 1965 VRA.

That the resistance of Alabama judges provoked DOJ inventiveness was not the only irony of the struggle in the decade after Brown. The Alabama Attorney [*41] General’s effort to suppress the NAACP through legal actions beginning in 1956 left a void that was filled by less established, less cautious civil rights organizations that competed with each other to register new black voters, heightening the level of activity beyond anything that the NAACP ever mustered (pp.15-16). What these key local black organizations had to overcome to register African-Americans from the 1950s to 1965 were a variety of literacy and knowledge tests, with numerous questions about, for example, a voter’s past criminal convictions and loyalty to the constitution and the laws, the name of the lieutenant governor, and excerpts from the constitution to be read orally, that gave registrars all the discretion they needed to refuse registration to almost any potential black voter, including teachers with masters’ degrees, while registering virtually all whites (pp.19-20, 43).

In all three overwhelmingly African-American Alabama counties, which shared a history of racial violence and oppression, records conclusively showed blatant discrimination by voting registrars. In Elmore County between December 1959 and February 1964, for example, registrars allowed 2277 whites and only 16 blacks to register to vote, excluding five percent of white and ninety-three percent of black applicants. Nonetheless, the decisions made and the remedies granted in the three cases brought by the DOJ depended entirely on which of the three federal judges, Harlan Hobart Grooms, Frank M. Johnson, and Daniel H. Thomas, sat on the case. The cautious Judge Grooms, who presided over the Sumter County case, ruled for the DOJ, but did not grant sufficiently far-reaching relief to prevent registrars from continuing to discriminate (pp.70-73). By contrast, the more activist civil rights proponent Judge Johnson mandated the registration of specific blacks whose experiences had been detailed in the trial evidence, and more importantly, granted “freezing” relief, ordering officials to apply the same standards, administered in the same manner, to future black applicants for registration as they had applied to white applicants in the past (p.101). Developed by the Fifth Circuit Court of Appeals in a case from Panola County, Mississippi, which in turn had drawn on an earlier opinion by Judge Johnson, the freezing doctrine was the root of Section Five of the VRA, which prevents certain jurisdictions from putting new election laws or practices into effect without the approval (“preclearance”) of the DOJ or the District Court of the District of Columbia (pp.105-07, 154, 171).

But the heart of Landsberg’s institutional incrementalist study, where his prose quickens and his analysis deepens, is his chapter on Perry County, a desperately poor Black Belt county near Selma. The childhood home of Corretta Scott, future wife of Martin Luther King, Jr., Perry County contained both a tradition of black independence and education and a proclivity towards violence against anyone, black or white, who might challenge the old racial order – a volatile mix. Most important for Landsberg’s story, the Perry County case was presided over by Judge Thomas, one of the most intransigent defenders of the racial status quo among southern federal judges, a man whose actions were key to a congressional backlash that led to at least two provisions of voting rights laws. First, the 1964 Civil Rights Act’s provision allowing the DOJ to demand a [*42] three-judge, rather than a single-judge court to hear certain voting rights cases is known informally as “the Thomas Amendment,” inspired by his dilatory, discriminatory tactics in the Perry County and other cases (pp.118, 134). Second, a key motive for the section of the 1965 VRA that stripped federal judges of the power to appoint temporary federal voting registrars (called “examiners” in the Act) and gave it directly to the DOJ was Thomas’ appointment and repeated support of a federal registrar in Perry County who was nearly as committed to excluding blacks from registration as local officials were (pp.137, 178). Thomas’ recalcitrance was classic. Having found a pattern or practice of discrimination in the refusal of Perry County officials to register 173 blacks, the judge declared that he did “not have the slightest intention of doing anything” (p.125, emphasis in original).

The seven years of DOJ litigation, Landsberg suggests, “provided a factual predicate” for the legislation and helped the DOJ seize control of the framing of the Act from the Civil Rights Commission, which from 1957 to 1965 had been as prominent as the DOJ in setting federal voting rights policy (p.149). The primary draftsmen of the Johnson Administration’s voting bill were two DOJ lawyers, Harold Greene and Louis Claiborne, who had recently handled appeals in voting rights cases from Alabama and Louisiana, including the Perry County case (p.155). Responding to a November, 1964 directive by President Johnson, the DOJ began planning a bill, presenting their superiors with a major draft on May 5, 1965, two days before Bloody Sunday. This draft banned literacy, knowledge, understanding, and “moral character” tests, but not poll taxes, in certain southern jurisdictions, and it provided for administrative appointment of federal voting registrars where necessary. However, it contained no preclearance section, and the Civil Rights Commission, not the DOJ, was tasked with reviewing requests from states or localities to be allowed to continue to employ voting tests (pp.158-159). After the crisis in Selma pushed voting rights to the top of the Administration’s agenda, new drafts and memos on the issue spewed from the Department. For example, the Civil Rights Commission was stripped of any institutional role in the federal voting rights machinery in the second draft of the bill on a single day, March 12 (p.159).

Although the VRA’s most controversial provision, Section 5 preclearance, originated in the judicial “freezing” doctrine championed by the DOJ and applied by Judge Johnson in the Elmore County case, its development was complicated and by no means automatic (pp.101, 168). A temporary ban on any new tests for voting in jurisdictions where voting turnout was low and literacy tests had been applied was proposed in a February, 1965 memo produced by the office of Solicitor General Archibald Cox. After being dropped from intervening proposals, it reappeared, for reasons Landsberg does not explain, in a May 13 draft (pp.159-160). Two days later, in the midst of negotiations between the Administration, Congress, and civil rights lobbyists, legal language allowing appeals of the test prohibition to the D.C. District Court was added to the bill, along with an authorization of suits in the same court by states or localities seeking exclusion [*43] from the ban through a declaratory judgment that they had not engaged in racial discrimination in elections for the past ten years (pp.160-161). Thus, the selective coverage, preclearance, and “bail-out” provisions of the law were nearly finished by May 15, when President Johnson made his famous “We Shall Overcome” speech to a joint session of Congress, and no local federal judge like Daniel H. Thomas would be able to protect the discriminators once the law passed. Apparently after the Administration’s bill was introduced, the Justice Department was added as a forum for preclearance and the ban on “tests or devices” was made more general – crucial amendments that Landsberg does not explain and which remain significant subjects for research. The DOJ immediately became the principal preclearance site, and the general description of discriminatory laws was used to attack changes in electoral structures, as well as in voting requirements for individuals.

Landsberg’s contention that the VRA was the product not only of the Civil Rights Movement, but also of the succession of the 1957, 1960, and 1964 Civil Rights Acts and the litigation to enforce them by the DOJ is persuasive. In this case, as in so many expansions of rights in American history, intransigence by opponents not only opened the way for change, but shaped its contours (pp.188-189). Facts built up incrementally, not principles emerging suddenly, largely account for the imperfect institutions that guard our civil rights, institutions whose structures and roles are often in need of reform and renewal. Landsberg’s book is not the final word on the subject of the origins of all of the provisions of the VRA, but it is an important start.

REFERENCES:

Arnold, Christy. 2005. “Voting Rights Act to get review: Chabot-led panel will study reauthorization of ‘65 law.” CINCINNATI ENQUIRER, Oct. 17.

Thernstrom, Abigail. 2005. “Emergency Exit: Abigail Thernstrom on why Congress would be wise to let part of the Voting Rights Act expire.” THE NEW YORK SUN, July 29: 10.

Will, George F. 2005. “VRA, All of It, Forever?” NEWSWEEK, Oct. 10.

© Copyright 2008 by the author, J. Morgan Kousser.

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MODERN HISTORIES OF CRIME AND PUNISHMENT

by Markus D. Dubber and Lindsay Farmer (eds). Stanford, CA: Stanford University Press, 2007. 352pp. Cloth. $70.00. ISBN: 9780804754118. Paper. $27.95. ISBN: 9780804754125.

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

pp.35-38

The title of this fine anthology is somewhat misleading. Its dozen chapters more precisely concern historical topics related to substantive criminal law, for the most part, and address a narrower audience than might be attracted to more general histories of crime and punishment. As explained in editors Markus Dubber and Lindsay Farmer’s brief introduction, MODERN refers less to a specific historical era than to newer modes of historical exposition generated by two transformative works by Douglas Hay and colleagues (1975) and Michel Foucault (1977) that should be familiar to most crime and justice scholars. The editors divide the essays into three groups, four concerned with “criminal responsibility and agency,” five dealing with “general theories of crime and punishment,” and three concerning the “comparative history of criminal law” (p.7).

The first essay in the first group by Nicola Lacey is an overly dense exposition of changes in the way in which English courts and criminal law scholars have viewed criminal responsibility. She sketches a program of future research designed to illuminate the philosophical analysis of criminal liability with newer social approaches that, arguably, will bring character evidence to the forefront. Lindsay Farmer’s second essay in this group generates the intriguing thesis that the symbolic and dramaturgic role of English common law criminal trials developed only when eighteenth and nineteenth century reforms reduced the number of capital crimes, moved executions behind prison walls, and eliminated this public spectacle. Farmer’s chapter fleshes out its thesis with an interesting exposition on changes in evidence law and the role of forensic medicine expert witnesses. Farmer’s chapter segues seamlessly into the next chapter by Joel Peter Eigen, which explores changes in England’s insanity defense legislation and litigation from 1800 to 1900. His story ultimately involves a struggle between forensic medicine and defense lawyers whose expansive concepts of insanity threatened to absolve every odd killer, and lawmakers and prosecutors who retrieved “legal notions of human agency” that imposed punishment and deterrence on a larger proportion of homicide defendants. Guyora Binder’s chapter marshals homicide prosecutions from Old Bailey cases from 1680 to 1830 to make a convincing case that the essence of murder and manslaughter before the mid-to-late nineteenth century was a violent ACT, rather than the categories of criminal INTENT that are now the key to liability in homicide cases. [*36]

The next five chapters focus on “general theories of crime and punishment.” While true up to a point, they bear some similarities to the first four chapters.

Markus Dubber’s chapter examines Thomas Jefferson’s failed attempt to reform criminal law on republican principles as part of a general law revision project undertaken by the government of Virginia in 1779. The failure was grounded in Jefferson’s disinterest in the project, his unfamiliarity with criminal law, his distaste for then current ideas of Blackstone (too Toryist) and Beccaria, and finally, the view of his generation that saw crime control not so much a matter of law but of police, which in early modern times suggested something like the administration of order by the discretionary powers of state officers. This distinction is probably unfamiliar to most criminal law scholars.

Bruce P. Smith’s fascinating short chapter refutes the myth of private prosecution in England between 1750 and 1850, by focusing on prosecutions for theft of metal and, specifically, lead. Theft of metal and hard-to-trace lead was a major problem in the long-term building boom in an expanding London, resulting in many prosecutions. Laborious private prosecutions for major crimes at Old Bailey (with one-third of property defendants acquitted) did not effectively suppress the crime. To remedy the problem, legislation authorized constables to stop persons under suspicious circumstances and created misdemeanors for not giving a good account. The result was a large number of successful prosecutions, punished by fines (and presumably the confiscation of the allegedly purloined metal), and administered by police officials and magistrates in the lower courts.

In a break with Anglo-American criminal jurisprudence, Benjamin Carter Hett analyzes legal thought in the late Weimar Republic through the lens of two political trials, involving Nazi attacks on communists, in which Hans Litten, a “self-consciously political lawyer” with a left-liberal orientation, represented the victims of the Nazi attacks. In the first case Litten cross-examined Hitler. His ouster from the second case, after lengthy, spirited, and lawful litigation tactics, by a court that bent the law by applying the doctrine of analogy to the relevant statute, exposed the antipositivist approaches to law espoused by the far right and the far left, leaving Litten as an Enlightenment defender of a positivist view of law.

Gerald Leonard next expounds in expert detail the well-established understanding of Oliver Wendell Holmes’ criminal jurisprudence as based on the utilitarian proposition of prevention (deterrence today). He argues that Holmes’ ideas were grounded in a social Darwinian view of struggle, tempered with an understanding that (Victorian) morality mediated through law was an operative and beneficial force.

The last chapter exploring criminal law theory, Martina Valverde’s study of English, Canadian and American sodomy law from the eighteenth century to today, is the most recognizably postmodern exposition in this volume. Valverde weaves together legal doctrine and practice with shifting social views to expose intriguing metamorphoses in law and society. Sodomy or buggery, for [*37] example, shifts from a crime designed to control bodies to one that controls speech as English jurists and courts become more concerned in the nineteenth century with false charges of sodomy for the purposes of blackmail. Rather than postulating a legal theory, Valverde traces the various ways in which the criminal law of sodomy has been shaped by a variety of social views to the point, today, of near acceptance in the United States and protection in Canada. Inversion indeed!

The last three chapters are studies of English colonial law and its administration in India. Martin Wiener offers a nuanced view of interracial murder trials, which tended to favor the English (whether perpetrators or victims) and undermine law’s equality principle, by adding class tensions, labor concerns, and differences between judges and executives, to the usual colonialism/racism plot. Elizabeth Kolsky, drawing on similar material, describes the ways in which the law’s promise of equal justice was systematically flouted on the tea plantations of late nineteenth century Assam in favor of whites, provoking resentments that fed the growing nationalist movement. The last chapter by Wendie Ellen Schneider is a case study of perjury legislation before the adoption of the Indian Penal Code in 1860, in which British colonial anxiety generated a pervasive belief of systematic deceit by the ruled that in turn undermined the ideology of the rule of law that provided justification for colonial rule.

These brief sketches do not do justice to the intricacy and depth of scholarship that characterize the chapters. MODERN HISTORIES has been a bracing intellectual excursion, and although I found each of the articles to range from interesting to fascinating, the audience for non-specialists is likely to be limited. The book, or some of its chapters, will appeal to specialists in the history of criminal law doctrine or historians of colonialism. This is not a book for any except the most advanced students in PhD seminars. I am not a specialist in these fields, but my checkered history as a criminal law teacher who has read a fair dose of criminal law theory and history, taught a seminar on political trials, and began teaching criminal law in a post-colonial English-style law faculty in Anglophonic Africa in the afterglow of Empire, has weirdly provided me with the right grounding to at least appreciate this volume. I believe that non-specialists who are likely to find this book valuable are teachers of criminal law at law schools and universities. The book would go a long way toward expanding the intellectual horizons of that cohort. The book should also appeal to eighteenth century and nineteenth century social historians.

Unfortunately, I do not see this book appealing to most political scientists or even to most courts and law scholars who do not have a grounding in the doctrinal study of criminal law. The same goes for scholars in my discipline of criminal justice. This is not to say that criminal law has nothing to say about important issues of state power and civil rights. Quite the contrary. But the level of specialized learning needed to make these essays intelligible is so high as to reduce its usefulness to scholars concerned with state power. I should also add that many of the essays in the [*38] first two sections are indeed sufficiently focused on relatively technical (but important) issues of criminal law doctrine and administration to be of limited value for scholars more directly interested in confrontations between the individual and the state.

REFERENCES:

Hay, Douglas, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow. 1975. ALBION’S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND. London: Allen Lane

Foucault, Michel. 1977. DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON. New York: Pantheon.

© Copyright 2008 by the author, Marvin Zalman.

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NEGATIVE LIBERTY: PUBLIC OPINION AND THE TERRORIST ATTACKS ON AMERICA

by Darren W. Davis. New York: Russell Sage Foundation, 2007. 288pp. Hardback. $35.00. ISBN: 9780871543226.

Reviewed by Roger Handberg, Department of Political Science, University of Central Florida, Orlando, Florida, USA. Email: handberg [at] mail.ucf.edu.

pp.30-34

Opening this book is an interesting trip (not at all nostalgic however) back into recent American political history in the aftermath of the September 11, 2001 attacks and their political and economic fallout. The attacks on the twin Trade Center Towers were an absolute shock to the American public whose immediate emotional response was to rally behind the George W. Bush administration. Presidential popularity soared in a blaze of national unity – a unity that quickly frayed under the weight of the administration’s agenda for securing a permanent national Republican political majority. Whether that national political majority was truly possible or not will never be known since the Bush administration push for extreme conservative policies alienated many potential recruits. This reminds one that President Bush’s policy preferences were not generally supported by the US population prior to September 11th. In fact, in this book, one can track the return to more normal domestic politics after 9/11, the resurgence of party identification and policy views dissimilar from those advanced by the president. Also, appeals to fear over time declined in political effectiveness although anxieties could still be aroused at least until the completion of the 2004 election cycle (which generally lies beyond the bounds of this book).

One of the consequences of the 9/11 spawned crisis however was to raise again the perennial question of how to balance civil rights and liberties in the context of national crisis, including a war of retribution in Afghanistan and a war of choice in Iraq, played out against the background of a global war on terror. Darren Davis provides an important look into this question, providing real time data tailored to explore critical questions of changing public attitudes toward government policies regarding political rights and liberties in time of permanent crisis. The “long war” suggested by the Bush administration envisions a long term curtailment of civil rights and liberties, an indefinite state of siege for all, not just the military. The operative assumption becomes that individuals must conform to government policy choices because the terrorist threat remained so dire. With the passage of the Patriot Act in the immediate aftermath of September 11th after minimal congressional consideration, the stage was set for aggressive government encroachment into regions citizens typically think of as private. Citizen reactions to those efforts become the essence of the book – specifically how various groups respond to an event and its aftermath.

Davis’ analysis is framed in terms of “negative liberty” – that is “the idea that there should be a minimum area of [*31] personal freedom or a set of rights that are free from external interference or coercion by others and the government.” This concept involves balancing competing goals – for example, national security and free speech – with a compromise sought (p.5). Such appeals for individual liberty are particularly powerful in terms of public peace but become more problematic in times of national peril. The Japanese Exclusion Cases during World War II are one example of such dilemmas. The US Supreme Court has long taken a more nuanced approach to liberty in times of war – the twilight situation posed by the global war on terror will possibly be more comparable to the Cold War where judicial deference recedes as time passed.

In this volume, the basis for the empirical analysis is a combination of national telephone surveys, starting first in November 2001 to January 2002 (fairly immediate aftermath to 9/11), two resurveys occurred at one year intervals ending in 2004 in the run up to the 2004 presidential election. Concurrently with the second-wave panel interviews, a new 2003 national cross section sample was drawn with oversampling of African-American and Latino respondents. When the third-wave interviews were conducted, an additional new 2004 national cross section sample was drawn (oversampling African Americans and Latinos as in wave two) along with re-interviewing of the new second-wave respondents. What results is a sample rich in complexity and depth, tracking Americans’ responses to threat and civil liberties and the tradeoffs that would entail. In effect, one is measuring their commitment to civil liberties in a changing threat environment. Davis originally planned a resurvey after a subsequent major terrorist event in the U.S.; when no such event quickly occurred, the design was altered to survey at yearly intervals to track change in the aftermath of the original event. One issue with the analysis is that its focus was totally domestic with little attention to terrorist events outside the United States except the two wars’ initiation. If one assumes the respondents were now sensitized to terrorist attacks, such incidents as the Madrid bombings on March 11, 2004 just as the last interviews began and the earlier Bali attack in October 2002 should have been considered in the threat environment within which the respondents lived. These events added weight to administration and others’ warnings about the continuing terrorist threat. Davis argues that context matters but then ignores an important part of that context – the international arena with its unknown threats and actors.

However, the strengths of the book come in its systematic and thorough analysis of how the American public responded to a new context (terrorism as a domestic threat) and the political demands (deference to government dictates) that followed. Initially, as one might expect, the American public generally assumed a deferential position relative to federal government demands for restrictions on civil liberties in order to wage war against the international terrorist threat. What occurred was more complex than the surface numbers would suggest; specific groups including especially African Americans remained more critical and skeptical of such claims. Davis argues with some evidence that this reflects their collective and individual experience with government [*32] being unresponsive to their liberties. This learned behavior to some extent inoculated these Americans against the more extravagant claims for government control, their awareness of the potential for abuse of government police powers lent support to this collective skepticism. Over time, liberals and Democratic Party adherents became more skeptical, if not hostile, to overreaching claims for government authority. As the interval since the events of 9/11 increased, traditional American views regarding the rights of individuals versus state authority began to assert themselves, especially with regard to the question of criminal rights. For most Americans, first amendment rights remained somewhat more fungible than fourth amendment rights regarding one’s day in court and how a case should be processed. The Bush administration argued that these were frills easily discarded in the “global war on terror.” Initially, this view drew support, but over time the hard core supporters were among the conservative and more nationalistic elements within the population – the ones already predisposed to agree with a conservative Republican administration – while others grew less supportive.

Davis spends a great deal of effort exploring the shifting views of distinct groups over time. But, at times, his analysis is buried in detail, losing the thread of the discussion. Better organization and more summary tables and figures to explicate analytic points would have moved some of the detailed tables to appendices. The analysis examined several variables thought to be critical in explaining attitudes: perceptions of threat and personal vulnerability, political trust, liberal and conservative political ideology, national pride and patriotism, dogmatism, race and ethnicity, and standard demographics including formal levels of education, gender and age. Threat and personal vulnerability were found to be unrelated – most individuals had low perceptions of their personal vulnerability to terrorism, as the threat was to the nation. Dogmatic individuals were more likely to accept government restrictions, with conservatives more restrictive than liberals, although liberals were equally supportive of government when the perceived threat level was high. However, patriotism proved a particularly strong predictor of willingness to accept limitations (p.79). Trust in government strongly predicted adherence to government views (the more trust, the more accepting). Davis concludes: “American citizens were indeed willing to concede their support for civil liberties in exchange for greater security” (p.84). This willingness, however, was not unlimited or unresponsive to the situation.

Davis also created a quasi-experimental design in order “to assess the extent to which respondents modify their initial answers about civil liberties” (p.94). The three situations proposed involve the crime of belonging to a terrorist organization, the issue of indefinite detentions, and racial profiling. All were particularly relevant as the government expanded its policing efforts to combat domestic terrorists, although the Guantanamo prison situation obviously contaminated one experiment regarding indefinite detentions, thus overshadowing the domestic cases of indefinite detention. The one issue most consistently rejected was racial profiling, described as a product of the civil rights [*33] movement. In subsequent chapters, the analysis focuses on change in support, in the absence of a major domestic terrorist event despite repeated heightened terrorism alerts. The two panel waves in 2003 and 2004 provide a longitudinal look at how Americans have adapted to the “new normal,” where security precautions in terms of bag and body searches at public venues occur routinely. The effort was to examine change in the absence of dramatic domestic terrorist events but continued heightened security. Davis’ theme was “that people support and defend democratic values most strongly when it is easy and convenient, but less when costs are tangible, such as tolerating a certain amount of vulnerability and uncertainty” (p.116). Unexamined was the continuing example of terrorist attacks in Iraq as background noise supporting the Bush administration’s perspective on what happens in terms of the security threat. Davis explains this as a result of resurgence in partisan support and not for President Bush by the end of the study (p.151). Discerning the long-term effect of the 9/11 attack will probably require more time to become clear, since President Bush has become by his policies and rhetoric the surrogate for the security state. His successor, regardless of party, will allow a more nuanced view of how permanent the changes in views really are. What is interesting is a side effect identified by the author regarding debate over immigration. In the run up to the 2008 presidential election, immigration has quickly risen to great public prominence, especially among Republican voters who tend to be a whiter group than Democratic voters. Under situations of heightened threat, whites were found to become more negative toward Latinos, who are more likely as a group to be immigrants. “Latinos may not pose a direct threat in the context of terrorism, but the issue of their immigration status may resonate with whites concerned about future terrorist attacks” (p.208). This may provide some insight into the quick rise of immigration to major-issue status, especially in the Republican party, and explain the depth of the hostility expressed by many seeking to restrict immigration, whether legal or illegal (especially the latter).

Davis has written a book that I highly recommend, especially for his thorough explanation of his methodology and the theoretical reasoning that led to his choices of how to proceed. His analysis is not a typical cookbook approach to the problem but rather is innovative and thoughtful. Substantively, the analysis ties together several diverse strands of research drawn from psychology, public opinion and the literature on civil rights and liberties. He portrays the interplay of formal rights and public perceptions of a threat situation and how those rights should or not be supported. This analysis, in a sense, mirrors some of the earlier work suggested during World War II regarding the fragile nature of civil rights and liberties during time of war, or at least the exertion of the war powers as occurred in the aftermath of 9/11. Probably the overriding message is that a free press (if allowed) in time undermines government claims of omnipotence, although how a free press will endure in an increasingly corporate environment remains an empirical question. The book also provides evidence as to how the Bush administration lost its ability to lead public opinion – reality bites. But, as Davis states, the public needs [*34] information outside official reports in order to clarify its views. What was unexplored, but would provide an interesting question, is the role of the internet in making alternative perspectives available and their impact upon the public.

© Copyright 2008 by the author, Roger Handberg.

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LAW AND LEGALIZATION IN TRANSNATIONAL RELATIONS

by Christian Brütsch and Dirk Lehmkuhl (eds). London and New York: Routledge, 2007. 244pp. Hardback. ISBN: 9780415423281. E-book format. ISBN: 020396442X.

Reviewed by Akbar Rasulov, School of Law, University of Glasgow, United Kingdom. Email: a.rasulov [at] law.gla.ac.uk.

pp.20-29

GENERAL REMARKS

A typical work of contemporary international relations (IR) scholarship, LAW AND LEGALIZATION IN TRANSNATIONAL RELATIONS (LLTR) is a discreet looking, mid-size collection of ten standard-length essays, accompanied by an introduction and a conclusion, supplied by fifteen contributors from universities across Switzerland, Germany, US, Canada, and the Netherlands. The two main assumptions around which it has been put together are both essentially uncontroversial.

In the first place, the volume’s authors allege that “the economic, social and political globalization of the past few decades has accentuated the role of international norms and rules” in a way that the old assumptions of political realism dominant throughout most of the preceding half century no longer seem to be able to provide an adequate intellectual framework for understanding the basic character and logic of the global political process (p.1). In the second place, they suggest that a great deal of post-realist scholarship, while certainly giving rise to some impressive intellectual achievements that went a long way towards eroding the disciplinary hegemony of political realism, has by and large missed the main theoretical target in resolving the riddle of international norms and the associated phenomena of “legalization” and “juridification.”

The rationalist institutionalist camp, exemplified for the LLTR team by the likes of Kenneth Abbott and Duncan Snidal, has focused too much on theorizing the relationship between juridification and collective action problems. The constitutionalist camp, exemplified by such scholars as Bernhard Zangl and Michael Zürn, became too preoccupied with proving the existence of a single “complex architecture of global governance” (p.2). In the end, each strand managed, in its own way, to capture “the emergence of an increasingly ‘objective’ system of norms and rules” in the traditional international arena, but, crucially, failed to recognize “the emergence of transnational legalities,” “the asymmetries of power . . . produced by the more or less clouded shadow of hegemony,” and, with them, “the relevance of the capability of specific actors to influence outcomes and to determine which norms and rules eventually succeed in shaping different areas and dimensions of global governance” (pp.2-3). What came out as a result, in the LLTR team’s opinion, was, quite unsurprisingly, a fundamentally skewed understanding not only of the objective logic of the juridificationist trend itself, but also of [*21] the whole global scheme of the effective distribution of power and authority.

Seen against this background, the main objective for the present volume turns out to be very traditional. If the deadlock reached by the post-realist scholarship is to be broken, explain the authors of LLTR, the first step, quite obviously, must be to bring into the post-realist picture all those aspects of the juridificationist trend that have so far been left out of it. Once that goal is accomplished, the next step would be to try to make sense of all these hitherto overlooked aspects by developing new conceptual instruments and modifying the accompanying theoretical apparatus to produce better and more insightful descriptions of the general logic of the global political process (pp.1-7).

The underlying methodological assumptions which animate this approach are not, of course, difficult to recognize. Their source is the classical tradition of Anglo-American political science: discard every preconceived notion about social processes, relinquish all forms of aprioristic speculation, focus on the hard facts, trace only the evidently identifiable patterns, and the objective knowledge of the political reality will emerge before you in all its plenitude.

What role do international normative processes play in the contemporary political arena? According to conventional wisdom, an IR project which does not belong either to the institutionalist or to the constitutionalist schools would inevitably have to be a representative of the constructivist tradition. Not so, however, with LLTR. A steadfast dedication to hard-facts empiricism, an unwavering belief in the epistemological superiority of the inductive method, a firm commitment to hard-headed positivism – the epistemic conventions on the basis of which the authors of the present volume propose to carry out their inquiries all derive from that same “realist” model of IR thought whose intellectual horizon they assume to have left behind, but within which, together with all modern IR scholarship, they are inescapably trapped.

LLTR AND THE EMPIRICIST PROJECT IN IR SCHOLARSHIP

The first problem with LLTR’s declared choice of method is that it simply does not work. The volume is proposed to its readership as an empiricist study that can serve both an instrument of critical demystification (vis-à-vis all other post-realist approaches) and a foundation for a new act of political theorization (based on the back of that demystification). In the end, it gives both projects a good shot but, ultimately, manages not to accomplish either.

Some essays simply do not follow the empiricist canon. Take, for instance, “Beyond Legalization” by Mathias Albert (pp.185-201), which starts, more or less, by declaring that all the numerous, variegated processes of contemporary juridification should be studied on the basis of Niklas Luhmann’s systems theory. Why? On the basis of what logic? Why this and not some other theoretical model? None of these questions, surprisingly, are elucidated or addressed at any point. The only glimpse of a possible explanation comes in the brief remark in the essay’s opening section stating that “the systems-theoretical tradition of Niklas Luhmann offers a promising strategy to [*22] synthesize the many facets of international legalization in a theoretically coherent fashion” (p.186). Theoretical coherence? Is this not a virtue more commonly associated with the tradition of logical formalism as opposed to realistic empiricism? Even then, how exactly would the assumption of a systems-theoretical approach à la mode Luhmann enable a better and more coherent understanding of “international legalization”? Beyond a series of highly abstract comments about the recent developments in EU law and “the increasing ‘legalization’ of various fields of social relations” (pp.192-195) – none of which, incidentally, has anything to do with the systems theory analytic – the author offers no evidence, illustrations, or proof to support this conclusion. Indeed, the only thing, it seems, the essay succeeds in proving and illustrating is that its author has a rather high opinion of systems theory and its representatives but very little time for empiricism and the empiricist canon.

Then again, bearing in mind the subject matter of LLTR’s general inquiry, even if he did use that canon, that, too, could certainly be regarded as deeply problematic. An empiricist study of “international legalization” – consider the full implications of going after that kind of target.

To be sure, the main problem here is not simply that empiricism, as Fredric Jameson once put it, seeks “to isolate the individual datum in such a way that its relationship to the totality never has to be dealt with because the latter never comes into view” (Jameson 1972, at 210). An inevitable outcome of that, of course, is the complete loss of any capacity for self-awareness and critical reflectivity but nothing more easily noticeable. By ignoring the basic commonsensical idea that the immediate registration of the most self-evident appearances should not necessarily lead to an exceptionally sound understanding of the related phenomena, empiricism not only overlooks the question of its own fundamental presuppositions, but also loses the opportunity to examine the actual logic by which these phenomena come and pass from existence, that is, the real processes of their being and transformation. But it does not, for all that, lose its mass appeal, since that, to a very large degree, is premised on its ability to make complex things look delightfully simple – and in this empiricism, as the “realists” have shown, has very few rivals.

Certainly, the inability of a method to reflect on its own epistemological assumptions can be considered a very grave defect in modern social sciences. Had LLTR been a work produced in the genre of social theory this would certainly raise a plethora of heavy and unpleasant objections. But when has methodological unsoundness ever been a bar to publishing books about international politics? No, the real reason why LLTR’s commitment to empiricism looks so awkward in the context of contemporary scholarship on the subject of juridification and the role of international normative processes lies in a completely different dimension. A steadfast dedication to naked-facts empiricism may seem essentially routine and completely unremarkable in the intellectual climate of the traditional Anglo-American political science discourse, but it sits very ill at ease in the context of most modern-day socio-legal scholarship, what with all the insights [*23] supplied by Rorty, Foucault, and the CLS.

Admittedly, one can, indeed, find a large amount of valuable factual material in LLTR’s pages. The essays on the global spread of financial reporting standards (pp.33-57) and the patterns of private regulation in organic agriculture (pp.101-120) are particularly outstanding in this regard, and the chapter on the relationship between industry-led programs and state governance in the areas of forestry certification, fisheries, and mining (pp.121-143) is also quite good. The wealth of thick descriptions and historical evidence offered in these sections certainly lives up to the editors’ promise to bring back a whole mass of facts that had previously been left out of the mainstream accounts of the global political process. But none of this, in the end, adds up to a satisfactory empirical account.

The first reason for this is very easy to identify. The essays in question simply operate with too many abstractions. Even at its empirical best, all LLTR’s claims to empiricism are based on the presumption that its readers would never recognize that terms like “civil society” or “international community” essentially represent nothing but discursive fictions, not empirical realities, and that the implicit background referents for “international law” and “legalization” quietly change several times from one part of the volume to another.

But ontological carelessness is not the only one of LLTR’s methodological problems. Another reason why it feels so difficult to consider its take on the subject of international juridification to be empirically accurate – even as an act of criticism aimed to debunk other, equally theoretically flawed presentations – comes from the sheer complexity of the general factual material with which it deals.

Take, for instance, the story of forest certification (pp.122-132). The existing international system for certifying sustainably produced timber is coordinated, by and large, by the Forest Stewardship Council (FSC), an international alliance of private organizations, businesses, and NGOs, created in the early 1990s and spearheaded on the ideological front by the Worldwide Fund for Nature. An earlier attempt to create a similar system, centered on the International Tropical Timber Organization (ITTO) – a classical international organization that includes about 40 of the world’s largest timber-trading nations – had generally failed. What was the reason behind that failure? The view offered by the LLTR contributor suggests that a group of largely Southern nations had considered it as an essentially discriminatory measure designed to discipline the newly decolonized South by creating another non-tariff barrier which the industrial North could use to protect its markets against Southern imports (p.122). Provided this interpretation of events is accepted as factually correct (it does not have to be), what can then be the empirical reality of the FSC initiative as an element of the international political landscape? If the ITTO initiative was indeed a veiled attempt aimed at strengthening the North’s hegemony over the South, then the most logical explanation for the FSC system, considering its connections to Northern importers and “high end wood buyers” (p.122), would be that it marks the [*24] continuation of the same trend, only by a different (somewhat more nuanced) means. Is this the view which the LLTR contributor takes on the question? Not at all. His choice is to describe the FSC as a “small progressive coalition” concerned with “the problems of tropical ecosystem destruction and biodiversity loss” (pp.122-123). His support for that choice? Evidently, nothing but his faith and I-just-know-it-style blunt assertions.

Now, an easy conclusion to this observation would be to denounce that account as politically biased and empirically inaccurate. But it would hardly be very intelligent. The real irony of the present situation does not come from the fact that the author had chosen a less legitimate interpretation of events over a more legitimate one, but from the fact that neither interpretation is more legitimate than the other: the FSC, at least from one angle, is, indeed, a progressive coalition of transnational NGOs, and the “North” and the “South,” after all, are also nothing but convenient discursive fictions – all of which raises a number of important points that have repercussions for the immediate volume under consideration and for the field of contemporary IR scholarship as a whole.

First, if the general critical remarks about LLTR’s foray into empiricism made above are at least basically correct, it would seem to be essentially impossible to produce any kind of satisfactory inquiry into the phenomenon of international juridification on the basis of an empiricist methodology. The matters in question are simply far too abstract. They cannot be apprehended without an aprioristic assumption of some unempiricizable theoretical framework.

Secondly, even if the problems of excessive abstractions and overenthusiastic reliance on discursive fictions were solved, the use of an empiricist methodology to investigate global political processes would still be essentially pointless. The factual materials with which one must deal are open to so many different, mutually irreconcilable interpretations that, in the end, none of these interpretations could look sufficiently convincing to qualify as an empirically accurate portrait of the described set of events, all the while each of them would still be convincing enough to destabilize and undermine a similar claim on the part of its rival.

Thirdly, where an accurate, truthful account of the described set of events is shown to be structurally impossible, the discourse in question inevitably has to be regarded as an ideologically-biased discourse. Considering that the previous observation applies not only to LLTR but to the whole field of contemporary IR scholarship, it follows inevitably that the latter’s claim to “scientificity” is profoundly spurious and that it belongs, essentially, in the same field as political debates and spin-doctoring.

LLTR AND THE PREDICAMENTS OF IR THEORY

Like most other post-realist IR writings, one of the most abiding impressions LLTR leaves as a work of international theory (to use Martin Wight’s terminology) is, probably, that of an intellectual Icarus: carried away by its ambitions, it rises too high for its fragile wings to endure. Even if the factual materials supplied by the “empirical” parts of the collection had been sufficient to underwrite a successful critique of all the various myths of [*25] realist and post-realist scholarship against which it was supposedly put together (pp.1-3), the theoretical superstructure eventually erected on their basis would have still sunk it the moment it hit the waters of attentive reading.

To be sure, the basic intuition behind introducing the collection’s central concept “complex legalization” (pp.9-32) was probably correct. It does not make sense, in the face of all the available evidence, to pretend that juridification is not an essentially heterogeneous process. The theoretical effort that went into developing that intuition, judging by the book’s narrative patterns, was, however, manifestly insufficient.

Despite its repeated use across several essays, at no point in the collection does the essential semantic core of “complex legalization,” or, for that matter, its basic empirical referent, seem to become clear. What exactly does it represent: a process, a project, an epistemic framework, an era, or a cultural shift? In what way is it different from “simple” legalization? Does it refer to the same general phenomenon as the idea of legal pluralism? Does the structure of the complexity in question follow the structure of an existing positive legal system (if so, then which?) or is it dictated by some extra-legal factors?

After going through all the different uses to which the term is put across the volume’s “theoretical” part, the most obvious conclusion, in the end, seems to be that, all the pretensions to the contrary notwithstanding, “complex legalization,” for the LLTR theorists, is ultimately just a convenient catch-all category, a multi-purpose signifier deployed to plug whatever gaps had been left open after all other post-realist theories were dismantled and set aside. Soft law, jus cogens, “interlegality,” hybridization, industry standards, ILO declarations, transgovernmental networks, “best practices,” Weltinnenrecht, “norms and ideas for political deliberation” – every phenomenon whose connection to law looks even remotely plausible seems to fit under the elastic roof of “complex legalization.” As a result, by the time one reaches the final pages, it still continues to remain essentially unclear what particular objective the introduction of the concept of “complex legalization” was supposed to accomplish, let alone what new analytical task it was supposed to perform that is not already performed by other, “older,” concepts.

It may very well be true that the fabric of world politics is permeated with “multiple legalities with different scopes and aims” (p.26). But it is, of course, one thing to declare that and quite another to explain what exactly it may be that makes all the numerous social forms included under this rubric part of the same conceptual category. In the absence of such an explanation, however, what could be the reader’s immediate reaction? When the boundaries are not drawn, what guarantee is there that anyone even knows where they lie? A term that can potentially mean everything can hardly make a useful theoretical instrument. When the ontology of “law” becomes so elastic that it becomes unclear what goes under “law” and what constitutes a different social form, the category of legalization cannot but turn analytically [*26] useless. When that happens, where does that leave a volume such as LLTR?

In a way, this predicament can, perhaps, be explained as a kind of growing pains syndrome: the old theory of juridification is no longer adequate to describe the contemporary political processes, but a new theory has not yet been put together. What results – a kind of intellectual interregnum – is a phase dominated as much by brilliant insights as pandemic confusion and arbitrary eclecticism. But to insist on extending this explanation across the board would be certainly too generous. Many of LLTR’s slips come from significantly less cosmic causes.

Take, for instance, the traditional (for most modern IR works) refusal to “creat[e] a single set of hypotheses to interpret different legal and law-like arrangements” and thus to “identify a uniform pattern common to the different moves to law” (p.12). Taken by itself, such a stance obviously has a lot going for it. But not if it is accompanied by an immediate decision to describe the juridificationist trend in international politics “in terms of multiple . . . legal realms or ‘legalities’” (p.12). How can one avoid creating a single set of hypotheses and imposing a uniform pattern on the described phenomena if one has already described them all as essentially legal realms? Unless, of course, the term “law” and all its derivatives are expected to have no settled semantic core.

The further one delves into LLTR’s “theoretical” part, the harder the going becomes. Consider, for example, the essay on “how global standards work” (pp.144-165). With its sweeping, intricate taxonomy of different types of “standards,” their characteristics, and their functions, it manages in the end to obscure more about the logic of “complex legalization” than to reveal, not least thanks to a certain propensity (again, typical of most modern IR scholarship) for self-validating formalism reminiscent of the halcyon days of the New Haven school with their Porphyrian tree of world order goals, functions, tasks, values, and analysis phases (McDougal, et al. 1969). Metaphysical hypostatization may have been a respectable intellectual practice in medieval theology – where, reportedly, it gave rise to some inspired debates about the number of angels that could stand on the point of a needle – but in today’s world it runs counter to every principle of serious socio-scientific scholarship, from whose point of view it looks an obscurantist, mystificationist “transcendental nonsense” (Cohen 1935).

The essay immediately following that, “International Standards: Functions and Links to Law,” illustrates another problematic side of LLTR’s theoretical part (and with it of a great deal of modern IR scholarship with its epochal discovery that international law actually often matters and that there is, in fact, more than one kind of legal norms in operation in the international arena). Put crudely, it constantly alternates between a rich mix of bland truisms and a steady stream of gawky inaccuracies and passages which suggest that either its author did not really know what to say about the subjects he chose to discuss or nobody told him that he was reinventing a wheel (and was not doing it particularly well at that). The curiously aimless remarks about customary [*27] international law (p.172) and substantive generality as the characteristic feature of legal norms (p.174) particularly stand out in this regard. Both look so strikingly devoid of any point, the greatest challenge about them is to understand how one is supposed to respond to them: treat them as enormously long typos, dismiss as momentary lapses of reason, or ignore in silent embarrassment.

The same, for a slightly different reason, goes for the passages discussing the internal logic of lawmaking. What scholarly purpose are statements like “[t]here are cases in which rule-making in the legislative process is too costly” (p.175) or “[d]raftspersons are primarily interested in the functioning of the regime they are designing” (p.169) supposed to serve? Both of them are introduced, in the context of the essay’s narrative, as analytical insights, rather than passing observations or the starting premises of a larger argument. Had LLTR been marketed as an undergraduate-level textbook, the staging of such comments as important theoretical discoveries, presumably, could have been justified in view of the target readership’s projected level of sophistication. Considering, however, that the volume in question is clearly aimed at an audience with a generally advanced understanding of the subject, the shallowness of the narrative seems quite incomprehensible. There is a fine line between commonsensical and banal. The essay under discussion crosses it with disturbing regularity.

As do, indeed, most other “theoretical” essays in the collection which consistently combine banality with glaring inaccuracies and sweeping generalities uncharacteristic of responsible scholarship. However liberal an interpretation one may take of the current US opposition to the International Criminal Court, the Court did not “c[o]me into existence . . . against [its] will” (p.193). The US had taken active part in drafting and negotiating the Court’s Statute, and Bill Clinton, indeed, had signed the Statute in December 2000.

In the end, what makes slip-ups like this all the more frustrating, however, is not that they normally would have been so easy to avoid – it does not take much time or special knowledge of the subject to find out about the role the US played in bringing about the ICC throughout the 1990s – but rather that taken together they highlight one of the most important facts about modern IR scholarship: the moment one steps outside the narrow box of disciplinary solipsism, most contemporary IR-theoretical works reveal themselves to be more remarkable for what they manage not to say than for what they do.

In the present instance, the single greatest omission of the LLTR team – a design flaw characterizing the whole project rather than just the surface of the book’s narrative – was, probably, the failure to recognize the affinity of their project with the general projects of legal pluralism, American legal realism, neo-Marxism (especially those strands of it which focus on the role of the transnational capitalist class – see, e.g., Chimni 2004; Sklair 2001), and, most importantly, the whole discipline of modern international law.

With the exception of the first chapter, one can find virtually no references to any works by international or [*28] comparative lawyers in LLTR. In the whole collection, there are only two mentions of Harold Koh’s work, despite the hundreds of pages he wrote describing and theorizing the logic of the transnational legal process (see, e.g., Koh, 1996), and none of any of the New Approaches to International Law (NAIL) writings, despite the numerous books and articles the NAIL scholars have published on the subjects of juridification, international normativity, and law and globalization (see, e.g., Kennedy, 2005; Chimni, 2004; Trubek et al., 1994).

THE MISSED OPPORTUNITIES (AN ALTERNATIVE FUTURE)

Book reviews should never be written in the language of “ought.” Sometimes, however, it could make sense to try to imagine a set of possible alternatives, if only in order to recognize the scope of the missed opportunities better, so as to draw some practical lessons for the future. How would LLTR have turned out, had the omissions mentioned earlier not taken place?

Perhaps, recognizing the parallels between their project and the basic ideas of legal realism would have helped the LLTR team to develop a more sophisticated understanding of the socio-scientific method, avoiding the metaphysical mystifications described earlier. Perhaps, admitting a certain affinity with the neo-Marxist tradition would have helped them to draw their attention to the theoretical value of the class analytic and the importance of economic imperialism in the study of international juridification. Turning to thinkers like Nicos Poulantzas (Poulantzas, 1980), for example, could have helped develop the point that private norm-production in the conditions of capitalist globalization can constitute as much “a tool of global policymaking” in the service of the Western trading blocs (pp.50-52) as a site for the condensed unfolding of political contradictions and continuous struggle between their different segments.

Perhaps, by acknowledging the various achievements of colleagues working in “sister disciplines,” the LLTR authors could have saved themselves the embarrassment of appearing to claim credit for reinventing the wheel and fighting windmills for giants. A great deal of the rhetorical dynamic underlying the volume’s theoretical elaborations seems to be fuelled by the implicit belief that a vast majority of people who think and write about global legal processes are diehard followers of H.L.A. Hart who did not get past the first half of CONCEPT OF LAW.

Perhaps, if the theorists on the LLTR team had cast their theoretical net slightly wider, they would have discovered some of those brilliant recent studies carried out on the subject of legal globalization by legal historians and comparative lawyers (see, e.g., Kennedy 2006). Similarly, if they had retained a systematic engagement with the legal pluralist debate, while it would almost certainly result in a considerable complexification of the book’s narrative, could have helpfully prepared them for some of the well-known pitfalls of the functionalist theory of juridification, not least the classical trend of functionalist jurisprudence to seek contradictorily both to break free from the shackles of ontological essentialism and to retain its [*29] analytical paraphernalia for discursive convenience.

For good or ill, however, all this remains now only in the realm of empty speculations. What remains in the actual reality is a book that very certainly could have become so much more than it ended up being, but which has, perhaps, become more representative of the intellectual zeitgeist of its disciplinary field than the latter’s ideological elites would probably find it comfortable to admit.

REFERENCES:

Chimni, B.S. 2004. “International Institutions Today: an Imperial Global State in the Making.” 15 EUROPEAN JOURNAL OF INTERNATIONAL LAW 1-38.

Cohen, Felix S. 1935. “Transcendental Nonsense and the Functional Approach.” 35 COLUMBIA LAW REVIEW 809-849.

Jameson, Fredric. 1972. THE PRISON-HOUSE OF LANGUAGE: A CRITICAL ACCOUNT OF STRUCTURALISM AND RUSSIAN FORMALISM. Princeton: Princeton University Press.

Kennedy, David. 2005. THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM. Princeton: Princeton University Press.

Kennedy, Duncan. 2006. “Three Globalizations of Law and Legal Thought: 1850-2000.” In David M. Trubek and Alvaro Santos (eds), THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL. Cambridge: Cambridge University Press.

Koh, Harold Hongju. 1996. “Transnational Legal Process.” 75 NEBRASKA LAW REVIEW 181-206.

McDougal, Myres S., Harold D. Lasswell, and Lung-chu Chen. 1969. “Human Rights and World Public Order: A Framework for Policy-Oriented Inquiry.” 63 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 237-269.

Poulantzas, Nicos. 1980. STATE, POWER, SOCIALISM. New York: Schocken Books.

Sklair, Leslie. 2001. THE TRANSNATIONAL CAPITALIST CLASS. Oxford: Blackwell Publishing.

Trubek, David M., Yves Dezalay, Ruth Buchanan, and John R. Davis. 1994. “Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas.” 44 CASE WESTERN RESERVE LAW REVIEW 07-498.

© Copyright 2008 by the author, Akbar Rasulov.

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January 12, 2008

INTERNATIONAL LAW AND THE RUSSIAN LEGAL SYSTEM

by Boris Leonidovich Zimnenko. Edited and translated with an introduction by William Butler. Utrecht: Eleven Publications, 2007. 389pp. Hardbound €75.00/$109.00. ISBN: 9789077596203.

Reviewed by Shawn Boyne, Visiting Scholar, Max Planck Institute for Foreign and International Criminal Law. Email: smboyne [at] daad-alumni.de.

pp.15-19

[G]enerally accepted principles and rules of international law and international treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes rules, other than provided for by the law, the rules of the international treaty shall be applied.

Since Russia enacted its 1993 Constitution, international law scholars have heralded Article 15 (4) of the Constitution as a decisive break with the Soviet Union’s cautious approach to the incorporation of international law into domestic law (Danilenko 1998; Långström 2003; Tuzmukhamedov 2003). In retrospect, when viewed against the backdrop the increasingly autocratic course set by the Kremlin, the initial optimism regarding the role that international law would play in shaping governmental behaviour seems to have been premature.

In fact, given the growing list of adverse court decisions issued by the European Court of Human Rights against Russia, one may be tempted to ask whether the Russian Federation’s commitment to the rule-of-law in general and norms of international law in particular differs in more than stylistic terms than that of its Soviet predecessor. Indeed as George Ginsburgs and other scholars have noted, Russia’s developing record of compliance with international legal norms has been an erratic one (Ginsburgs 1998). While international law failed to deter Russia’s human rights violations in Chechnya (Terry 2006), international law has begun to play a more influential role in shaping judicial practice in the Russian Federation as a whole (Marochkin 2007). From afar, it appears that the reception that Russia’s political actors have given to international law has vacillated depending on the nature and strength of the political interests at stake. For example, although evidence suggests that European human rights case law has begun to shape Russian legislation in some cases, such as in the redrafting of the Russian Criminal Procedure Code (Kahn 2004), more recently the Russian Duma forged ahead with enacting the controversial “NGO law” above international objections (Kamhi 2006).

Given this context, the publication of any legal treatise that purports to document how Russian courts and legal scholars interpret Russia’s commitment to international law is initially likely to be greeted with some cynicism. Despite this background, B.L. Zimnenko’s INTERNATIONAL LAW AND THE RUSSIAN LEGAL SYSTEM offers readers a unique window into an ongoing debate currently occurring largely outside of the view of the public [*16] and the international media. In fact, the book introduces and traces the key debates that presently exist within the Russian Federation regarding the extent to which international law should be incorporated into the Russian legal system.

At the heart of these debates lie divergent opinions concerning the role that generally-recognized principles and norms of international law and treaties should play in the Russian legal system. At issue are the methods of interpretation that courts and government institutions should use to weigh competing principles and norms. Given that, at the time that the Russian Constitution was enacted, the Chair of the Russian Parliament’s Committee on Juridical Reform, Boris Zolotyukin, admitted that Russia had had no real judicial branch of government for over seventy-three years (Smith 1996:129), any evidence that demonstrates that Russian judges are not applying the law instrumentally warrants a careful read.

The book focuses primarily on the interpretive processes through which international norms and legal conventions are incorporated into Russian law. The key question that the book poses and attempts to address is the extent to which Russian law permits courts to directly adopt and apply international legal norms. What Zimnenko contributes to this subject is a detailed understanding of the range of doctrinal positions adopted by Russia’s leading legal scholars regarding numerous unsettled legal issues. The book’s strong point is that Zimnenko lays out key points of contention and then advances his own arguments, citing specific references to Russian statutory law, domestic court decisions as well as to decisions of the European Court of Human Rights.

Zimnenko, a member of the Diplomatic Academy of the Ministry of Foreign Affairs of the Russian Federation and Russian legal scholar, begins the book by asserting that Article 15 (4)’s ambiguous construction has opened the door to conflicting interpretations of international law. He then carefully negotiates the difficulties caused by this ambiguity while building theoretical support for his own analytical methods. Throughout the treatise, the author delineates how and why the norms and conventions of international law matter in the Russian legal system. The book explains and, at times, criticizes how various Russian courts have interpreted and applied international legal norms to resolve a variety of legal issues

The central problem with which Zimnenko wrestles throughout the text is the fact that the process of interpreting international law itself is a complex one. Moreover, the norms of interpretation are not static. Furthermore, as Zimnenko points out in the book’s introduction; the major theories (monism and dualism) which purport to explain the interaction between international and national legal systems have lost much of their analytical traction. As the forces of globalization have produced new global and regional legal institutions and norms, it has further complicated the dynamic that exists between national and international legal systems.

In the book’s first chapter, Zimnenko argues that, while national and international legal systems are autonomous normative legal systems, [*17] they do not exist independently. Zimnenko asserts that, when scholars attempt to assess the nature of the interaction between two systems, they should examine how one legal system influences the other (p.5). From Zimnenko’s perspective, the interaction that occurs between national and international legal systems enriches both systems. Thus, when examining the role that international law plays in the legal system of a given nation-state, Zimnenko maintains that the central focus should not be on the extent to which national law is consistent with international law. Instead, he emphasizes that scholars should investigate the nature of the mechanisms present in national legal systems that enable judges to use international law to resolve disputes. These mechanisms are reflected in the law of the State, judicial practice, and national doctrine (p.351). Standing alone, international law cannot permeate the law of a nation-state. As Zimnenko points out, procedural mechanisms that exist within the legal system of the nation-state must permit and simultaneously condition the implementation process.

Chapter Two addresses in depth the three methods through which national legal systems permit international law to be integrated into the law of a state. These methods include legislation, interpretation, and the incorporation of international law through the operation of renvoi norms. Here Zimnenko asserts that legislation and other law creation processes within the nation-state enable the state to incorporate international norms into its legal system. He sets out a logical interpretive method that can be used to determine whether and how renvoi norms present in international treaties, customary norms, and decisions of intergovernmental organizations can be incorporated into the state’s legal system. By tackling the subject of customary norms, Zimnenko’s treatise goes beyond traditional Russian textbooks of international law which limit their discussion of the rules of interpretation to the ambit of international treaties. Zimnenko’s vision of the reach of international law is an expansive one. For example, he argues that, in certain circumstances, state institutions must take into account binding norms of international law when they seek to interpret national legal norms. This precept is particularly true when the legal norms expressed in national law are ambiguous. Even in this situation however, Zimnenko is quick to reassert the supremacy of national law as he argues that international legal norms merely assist judges in interpreting national legal norms. National law never relinquishes its primary position. The import of this premise extends to the core function of the Constitutional Court of the Russian Federation. Zimnenko asserts that the Court’s primary function is not to determine whether Russian law conforms to international legal norms but rather to “settle cases by ensuring that state action conforms to the Russian Constitution” (p.105). Zimnenko goes on to describe systematically the process through which a state’s own complex norms should be interpreted.

In chapter three, Zimnenko initiates a detailed analysis of role and processes through which different sources of international law create norms that, under certain conditions, may be integrated into the legal system of the nation-state. Here Zimnenko argues that [*18] although Article 15(4) of the Constitution states that the Russian legal system includes generally recognized norms and principles of international law, we cannot take that statement literally (p.150). At the same time, he argues that treaties are not the sole source of self-executing norms. In certain circumstances, self-executing norms may originate from customs, as well as from decisions of international governmental organizations (p.153). As Zimnenko admits, this position is not universally accepted by Russian legal scholars. The task of determining which norms are self-executing is complicated by the fact that international treaties themselves often contain ambiguous and imprecise language (p.163).

Finally, chapter four examines the particular methods that can be used to negotiate conflicts that may emerge between treaties signed by the Russian Federation and national laws, as well as between different treaty provisions that have been integrated into the national legal system. The chapter concludes with a discussion of the legal force of decisions made by international intergovernmental organizations within the Russian Federation’s legal system. Zimnenko maintains that, because the decisions of the European Court of Human Rights stem from the Court’s power to apply and interpret provisions of the European Convention for the Protection of Human Rights, the decisions themselves do not create new legal norms (p.257).

This book was originally written in Russian as a treatise for Russian judges and law students. It is clear that the original text posed a substantial challenge to the book’s editor and translator, W.E. Butler, and that this challenge is one that few comparative legal scholars would have dared to undertake. Unfortunately, I think that many readers will find that the wording in the translated text is, at times, unnecessarily abstract, the wording verbose, and some of the chapters inordinately long. While one can appreciate the theoretical and factual detail that Zimnenko uses to support his key arguments, the book is a difficult read. Without a doubt, the task of translating a foreign legal treatise is a particularly daunting one. I suggest that the effort is an even more difficult one when the translator must negotiate the problems inherent in understanding not only the meaning and context of a foreign language but also traverse the sizeable gulf that exists between Anglo-American and Russian perspectives of law. Thus, although the book’s obtuse style may be easily understandable to Russian legal scholars and law students, it is likely to limit the extent to which the book will penetrate the English-speaking market.

The translation of Russian court decisions and legal theory is a project of critical importance to scholars of international law as well as to comparative law and courts scholars. Given the hurdles that translators face in making foreign legal theory comprehensible, I might suggest that one should aim, not to translate and publish entire legal treatises, but rather sections of a treatise, perhaps in the form of an anthology. Such a work might also contain commentaries written by other scholars. That format might perhaps make important foreign language treatises such as this book accessible to a wider audience. [*19]

A second factor that may restrict the book’s usefulness in political science classes is the fact that Zimnenko presents the law as independent science that stands separate from politics. An implicit thesis running throughout the book is the belief that, while scholars may disagree on how to reconcile conflicts between laws and how to interpret ambiguities within the law, those disagreements are not rooted in political differences. He convincingly demonstrates that an extensive cross-section of courts throughout the Russian Federation are currently wrestling with issues related to the integration of international law into the Russian legal system. While that thesis is undoubtedly an important one, it may leave many readers wanting to know the extent to which the intersection of politics and legal theory affects judicial practice within the Russian Federation.

REFERENCES:
Danilenko, Gennady M. 1998. “Implementation of International Law in Russia and Other CIS States: Theory and Practice.” 10 (1) EUROPEAN JOURNAL OF INTERNATIONAL LAW 51-69.

Gaeta, Paola. 1996. “The Armed Conflict in Chechnya before the Russian Constitutional Court.” 7 (4) EUROPEAN JOURNAL OF INTERNATIONAL LAW 563-570.

Ginsburgs, George. 1998. “In Search of a Russian Brand of International Law.” 24 (2) REVIEW OF CENTRAL AND EAST EUROPEAN LAW 91-168.

Kahn, J.D. 2004. “Russia’s ‘Dictatorship of Law’ and the European Court of Human Rights.” 29 (1) REVIEW OF CENTRAL AND EAST EUROPEAN LAW 1-14.

Kamhi, Alison. 2006. “The Russian NGO Law: Potential Conflicts with International, National, and Foreign Legisltation.” 9 (1) INTERNATIONAL JOURNAL OF NON-PROFIT LAW 34-57.

Långström, Tarja. 2003. TRANSFORMATION IN RUSSIA AND INTERNATIONAL LAW. Leiden: Brill Academic Publishers.

Marochkin, Sergei Yu. 2007. “International Law in the Courts of the Russian Federation: Practice of Application.” 6 (2) CHINESE JOURNAL OF INTERNATIONAL LAW 339-344.

Smith, Gordon. 1996. REFORMING THE RUSSIAN LEGAL SYSTEM. Cambridge: Cambridge University Press.

Terry, James P. 2006. “Moscow’s Corruption of the Law of Armed Conflict: Important Lessons for the 21st Century.” 53 NAVAL LAW REVIEW 73-210.

Tuzmukhamedov, Bakhtiyar. 2003. “The Implementation of International Humanitarian Law in the Russian Federation.” 85 INTERNATIONAL REVIEW OF THE RED CROSS 385-396.

© Copyright 2008 by the author, Shawn Boyne.

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JUDICIAL DECISION MAKING IN CHILD SEXUAL ABUSE CASES

by Margaret M. Wright. Vancouver: University of British Columbia Press, 2007. 208pp. Hardcover. $85.00. ISBN: 9780774812641. Paper: (January, 2008). ISBN: 9780774812658.

Reviewed by Lynne Curry, Department of History, Eastern Illinois University. Email: lecurry [at] eiu.edu.

pp.11-14

“We must also be careful not to be complacent about child sexual abuse; it is a crime” (p.166). At first glance, Margaret M. Wright’s assertion may appear anachronistic because it seems that in recent decades a great deal of public attention has been paid to the issue of child sexual abuse, in both Canada and the US. But this thoughtful and frequently insightful book demonstrates that, despite widespread public interest and the changes in law it has engendered, a fundamental right of children not to be sexually victimized by adults is not in fact widely recognized by the Canadian courts. Wright, an assistant professor in the School of Social Work and Family Studies at the University of British Columbia, argues convincingly that the 1988 revisions to the CRIMINAL CODE OF CANADA have failed to provide justice for the child victims of sexual abuse. She contends that, while law has changed, many underlying societal assumptions have not, including the definitions of – and meanings attached to – sexual offenses, childhood and adult sexuality, patriarchal power structures, and indeed childhood itself.

After laying out the issues in Chapter One, Wright describes the methodology of her study in the book’s second chapter. She studied sentences in child sexual abuse cases that were reviewed by courts of appeal during two separate periods: 1990 to 1993, following the enactment of the 1988 laws (records for 1988 and 1989 were unavailable at the time of her study); and 1998 to 1999, after amendments to the 1988 law made some changes in sentencing procedures. Employing both quantitative and qualitative methods in her analysis, Wright found a surprising degree of variability in the outcomes of the cases she examined. Seeking to account for these variations, she then went about systematically deconstructing the processes by which child sexual abuse cases were shaped by the presiding judges. “Is it possible,” she asked, “in an examination of judicial reasoning to get some clues about factors considered important in the process of sentencing?” (p.29). Chapters Three through Six analyze the ways in which judges construct and then weigh the categories of offenses, offenders, victims, and the professional experts who provide extra-legal reports to the court. Wright reads the trial transcripts closely, with particular attention to the language judges employ when rationalizing the mitigating and aggravating circumstances affecting their sentencing determinations. Many times the relevant factual variables are quite similar across cases and thus the judges’ subjective constructions of these categories prove to be the key factors explaining the [*12] variation in the outcomes. It makes for fascinating reading. At times it also makes for frustrating reading, because the rationales given by the courts for lesser sentencing often fly in the face of common decency concerning the treatment of children by the Canadian legal system

Chapter Three looks at the ways judges construct the offense in child sexual abuse cases. One of Wright’s key findings here is that the courts place a disproportionate amount of importance on whether penetration of the victim by the offender’s penis took place. Judges consistently regarded crimes to be less heinous if no such penetration occurred (or the penetration was by something other than a penis), even when victims were very young, or the abuse occurred over a long period of time, or reports indicated a great deal of suffering on the part of the victim. The technical preservation of female virginity, apparently, is a foremost consideration of the courts. In one particularly egregious example, Wright cites a case in which a stepfather was convicted on two counts of gross indecency and one count of common assault for forcing his stepdaughter, over a period of two years (during which the child was nine to eleven years old), to masturbate him and then clean the semen off of his body. He also “beat her with a belt and used the beating and the threat of beatings to facilitate sexual abuse” (p.57). A victim impact statement described the girl as suffering from fear of the offender as well as of men in general, having persistent nightmares, experiencing guilt, being alienated from her peers, and suffering from “terrible feelings and fears” she could not explain (p.58). The appeals court, however, ruled that because the offender’s acts had not involved penetration of the child or “touching her in a sexual manner,” the original sentence of three years in prison would more appropriately be reduced to two.

In Chapter Four Wright discusses a phenomenon she calls the “understandable offender.” While the social science literature demonstrates that rapists often reframe their own acts in terms of socially acceptable behavior, Wright finds that many times the courts also rationalized offenders’ actions when describing factors that mitigated against imposing the maximum sentence. Sometimes, Wright asserts, this rationalization was so extreme that it completely overshadowed the crime itself. Judges were shown, for example, to accept as a given that an offender’s alienation from sexual relations with his wife (because, for example, she was pregnant) made forcing sex upon a child in the household somehow more understandable. Similarly, jail time was often considered unnecessary altogether for “good men,” or those who successfully fulfilled their male roles as steady financial providers to their families (including their victims), appeared publicly respectable, and were considered valuable to their employers. The measure of men’s worth, Wright asserts, is “largely related to work” (p.87) and, in the eyes of the court, such offenders were essentially “normal” men who happened to have made some unfortunate mistakes (p.78).

Chapter Five examines the “invisible victim” in childhood sexual abuse cases. The 1988 revisions to the CRIMINAL CODE OF CANADA for the first time allowed victims to provide impact [*13] statements for consideration in sentencing offenders. But in actuality the high cost of sexual abuse to child victims is frequently of little consideration to the court. Wright makes the astute observation that judges often comment upon the need to remain free of the emotional impact of victims’ stories when they make sentencing considerations, while at the same time appearing oblivious to the value judgments they make when they choose to disregard a victim’s obvious suffering. In a 1991 case, for example, a thirty-two year old offender was convicted of sexually assaulting a six year old girl, infecting her with genital herpes. In determining sentencing the judge pointed to evidence that the victim’s hymen may not have been broken and thus “the severity of the intrusion is perhaps uncertain.” Further, the offender claimed not to have known that he was capable of transmitting the herpes virus to his victim and, in the judge’s calculation, this also mitigated against the most severe punishment. The child’s future lifetime of physical and emotional suffering from genital herpes remained all but invisible in the judge’s consideration at sentencing (pp.92-93).

Chapter Six focuses on the role of the “elevated expert” in the outcome of child sexual abuse cases and reveals some of Wright’s most interesting findings. She accepts the notion put forward by social scientists Conrad and Schneider (1992) that the increasing “medicalization” of deviance has served to absolve offenders of total responsibility for their behavior; courts consider them to be “sick” and in need of “treatment” rather than criminals who must pay for their crimes and stopped from harming others. Reports submitted to the courts from psychiatrists and psychologists routinely assert the pathology of the offender, sometimes basing their diagnoses on an unquestioning acceptance of an offender’s own accounts of his behavior. Wright also describes cases in which the professional actually blames the victim (or the victim’s mother) for the assault. In a 1990 case, for example, a psychiatrist reported that an underlying cause of a man’s sexual abuse of a ten-year-old girl was the breakdown of his sexual relationship with the girl’s mother, which in itself had occurred because “the young girl created more and more trouble within the family.” The psychiatrist related the offender’s history of troubled relationships with women, noting that “in each case the relationships broke down when the sexual needs of the women were not met. Mr. D is now sexually inhibited and faces life with a confused idea of how to relate to women” (pp.120-121). Although the trial court had not been overly concerned with blaming the offender’s criminal behavior on the women in his life, the appeals court varied his sentence because, “this is a first offence and there appears to be no indication . . . that he has any continuing illness like pedophilia” (p.122). With a clear sense of frustration Wright discusses the disproportionate weight courts routinely gave to whether the offender had been given a diagnosis of pedophilia by a mental health professional; in fact, judges often seemed confused about what the term actually meant. Despite the fact that current evidence does not support the notion of a “typical” sexual offender of children, the courts regarded the absence of the pedophilia label as a reason not to view an offender as a danger to society. [*14]

The book’s final chapter summarizes her conclusions and addresses suggestions for reform of the current system in Canada, which Wright insists must extend well beyond changes in the law alone. This is the least convincing part of the book because, unlike her discussion in previous chapters, the ideas here are neither systematically presented nor thoroughly addressed. She refers to feminist analyses of patriarchal structures in law and society, but, because her previous discussion does not include a clear and sustained argument about the nature and significance of such a paradigm, her points lack force. Similarly, she suggests in passing that, in order to ensure their interests are adequately represented in the courts, child sexual abuse victims should be represented by their own attorneys in criminal trials, but then fails to fully develop the idea. As a historian of the United States, I am not well equipped to critique Wright’s study in terms of the relevant social science literature, nor to evaluate her proposals for effecting meaningful change in Canada. I am convinced, however, that Wright’s fine book will be of considerable interest to readers in a wide range of disciplines, and her insights will prove valuable to future scholarship on children and the law. Perhaps more importantly, the vital and disturbing questions Wright has posed should be of interest to anyone committed to ensuring the fundamental fairness with which legal systems treat child victims of sexual abuse.

REFERENCE:
Conrad, Peter, and Joseph W. Schneider, 1992. DEVIANCE AND MEDICALIZATION: FROM BADNESS TO SICKNESS. Philadelphia: Temple University Press.

© Copyright 2008 by the author, Lynne Curry.

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THE ARCTIC PROMISE: LEGAL AND POLITICAL AUTONOMY OF GREENLAND AND NUNAVUT

by Natalia Loukacheva. Toronto and London: University of Toronto Press, 2007. 272pp. Hardback. £40.00/$60.00. ISBN: 9780802092953. Paper. £18.00/$27.95. ISBN: 9780802094865.

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

pp.7-10

Two entities answerable to a North American power and a European kingdom seek greater independence. Historically, both were confronted with similar methods of colonization. Culturally, they have shared a nomadic lifestyle – often considering themselves as one people. Together they inhabit a strategically-contested expanse. Notwithstanding aspirations of self-reliance they accept economic aid from dominant states.

A reader would be forgiven for believing the above-referenced entities to be Iraq and Afghanistan. Yet such thinking would be erroneous. Indeed, the two entities are Greenland and Nunavut, the North American power is Canada (not America), and the European Kingdom, Denmark (not Britain).

This is not a discipline-specific book. Rather it is a work of comparative law and politics; traversing constitutional, international, and Aboriginal varieties of law on the one hand, and political science, international relations, and strategic studies on the other. As a result, THE ARCTIC PROMISE: LEGAL AND POLITICAL AUTONOMY OF GREENLAND AND NUNAVUT will be of great interest to both under- and postgraduates of both disciplines. (The book’s price ensures its inclusion on reading lists come the new semester). Rarely does a text offer so much to so many without being extraordinarily ambitious. That said, Natalia Loukacheva ought to be acquitted of charges of authorial overstretch.

THE ARCTIC PROMISE contains five substantive chapters; four of which are equally weighted. Loukacheva is to be applauded for producing chapters suitable for individual reading without sacrificing fluidity of her thesis. These chapters are enveloped more by history than anything else, adding real substance to the volume. Adding further weight to the text is Loukacheva’s command of the relevant literature which is prodigious. Taken together this makes for an important contribution to our understanding (legally and politically) of Greenland and Nunavut from a historical perspective.

Loukacheva presents an original effort to compare Inuit peoples’ quest for autonomy in two jurisdictions. At root, her macro-comparative study does a commendable job of identifying similarities and differences in Canadian and Danish legal behaviours vis-à-vis the Inuit (p.14). Scholarly works on the issue of governance and indigenous self-governance confirm that a legal concept of autonomy suffers from much ambiguity. On this occasion, the comparative research renders the [*8] perplexing legal concept of autonomy unperplexing. Given the paucity of such comparative study, Lockacheva’s research is a noteworthy contribution to the administration and realization of governance.

Loukacheva achieves her aim of wanting to reduce the ambiguities surrounding the right to autonomy in areas where indigenous peoples are the majority:

On the one hand, there is a legal regime and policies intended for the beneficiaries of the NLCA [Nunavut Land Claims Agreement], who represent the majority of Nunavut’s population. On the other hand, there is public governance for all Nunavummiut, which gives special consideration to Inuit values and concerns (p.35).

Similar sentiments are voiced by former premier of Greenland, Lars Emil Johansen:

The Home Rule agreement is not an agreement honouring or even referring to the collective rights of the Inuit population, but rather a law concerning everyone living permanently within the geographical entity of 840 000 square miles know as Greenland . . . From a legal point of view, the rights and powers of the Home Rule Agreement were not granted to us as a people or ethnic group, but as the inhabitants of a certain landmass (p.38).

The system of governance created by an act (Greenland) and an agreement (Nunavut) ‘has evolved into one that, at a functional rather than a juridical level, goes far towards meeting the interests of the Inuit, who represent the majority of the population’ (p.39). Both are classic examples of territorial autonomy as opposed to purely Aboriginal self-government. Though examples of a government body with an Inuit face (p.40)! Hence is there any need for indigenous autonomy?

In the opening chapter (“The Inuit of Greenland and Nunavut: From Subjugation to Self-Government?”: pp.17-32), Loukacheva reasons that, true to colonialist form, both Greenland and Nunavut were colonized by the Qallunaat – the white man – on grounds of trade and settlement. Colonial history demands we discuss the ‘right of discovery,’ ‘sovereignty,’ ‘effective occupation,’ terra nullius and the discourse of waste, ‘recognition,’ ‘treaties,’ ‘civilization,’ and ‘commerce’ – to name but eight. Loukacheva deems otherwise. In view of that, she ought to be found guilty on charges of authorial understretch. For those readers with a particular research interest in this area, the work(s) of Anthony Anghie remain seminal.

The process of colonization colonized colonization, so to speak. For we learn of ‘the Instrux’ of 1782 (establishing rules for wages and codes of behaviour for Inuit and Danish merchants apropos Greenland) which divided Greenland’s population into social categories, setting forth harsh penalties for corrupting the Inuit with alcohol. A colonial disclaimer, enunciated at the Berlin Conference of 1884-85, reiterated similar European thinking in relation to the uncontaminated Muslims of the Niger Basin. There appears to be more parallels than Loukacheva acknowledges. Admittedly, this is clearly beyond her remit, and understandably so. To be sure, Loukacheva consummately sets the [*9] scene for those with relatively little knowledge of Greenland and Nunavut.

Chapter Two (“The Constitutional Dimensions of the Governance of Nunavut and Greenland”: pp.33-52) starts off where the previous one finishes, negotiating the (in)compatibility of Western notions of governance with Inuit values undergirded by political consciousness. The telling of the political mobilization of Greenlanders (‘Greenlandic intelligentsia’: p.29) proves page-turning.

The Inuit face of public government is majestically documented in Chapter Three (“Territorial Government versus Home Rule: The Structure of Nunavut’s and Greenland’s Institutions”: pp.53-72). Loukacheva goes to great lengths to underscore the colonial legacy – a legacy midwife to a framework of Western institutionalism – and today’s Inuit legal structures (pp.66-69, 97).

Students of modern history are conscious of the fact that “the arctic has gradually been transformed from a military vacuum prior to World War II, to a military flank in the 1950-70 period, and a military front in the 1980s” (p.130). For all its pre-1989 importance, the end of the Cold War (post-11/9) has witnessed a reduction in the geo-strategic significance of the Circumpolar North. The fallout from the Evil Empire’s demise as regards Inuit participation in security affairs remains open to interpretation.

Chapters Four (‘The Jurisdiction of Greenland and Nunavut’: pp.73-102) and Five (‘Greenland and Nunavut in International Affairs’: pp.103-144), arguably the most promising of the book, cover jurisdiction that is traditionally non-transferable to subnational entities.

The Home Rule Act, The NLCA, and the Nunavut Act do not permit either entity jurisdiction over international security policy. All is not so clear-cut though. And it is in this instance that Loukacheva provides some much-needed clarity. Despite Greenland’s lack of international legal personality, the author tells of the joint declaration (between the latter and Denmark) ‘on the involvement of Greenland’s home rule government in foreign and security policy matters of significance for the island’ (p.105). Greenland’s participation in Danish, Nordic, and Greenlandic-Danish-American collaboration is a positive move in transformation of areas of international relations to subnational entities. Loukacheva further catalogues the genesis of the Inuit Circumpolar Council, a trans-Arctic NGO.

That said, the Danish constitution reads that the king acts on behalf of the kingdom in foreign affairs. In short, unity of the Danish realm regards international relations as part of the undividable sovereignty of Denmark. And rightly so. Loukacheva acknowledges: ‘Steadily increasing recognition of subnational territories such as Greenland and possibly Nunavut legitimate participants in international relations contradicts traditional conceptions of national sovereignty and reduces the sovereign powers of the state’ (p.110).

The economic reality of Greenland and Nunavut further throws into question the [*10] practicality of home rule self-governance in the Arctic, making the concept of autonomy rather synthetic. Loukacheva, like many Arctic analysts, has to reconcile the idea of autonomy with the necessity of acquiring government funds.

Notwithstanding an unrewarding miscellany of maps and charts, the study remains dynamic throughout with a catalogue of notes and an extensive bibliography (together numbering 90-plus pages), which more than makes up for the earlier omissions. All in all, Loukacheva’s succinct, jargon-free analysis of Arctic autonomy makes for a rewarding read.

Loukacheva serves up an authoritative and digestible book pertaining to the forms and evolution of the right to autonomy among the Inuit. The reviewer is sanguine about how much Loukacheva’s work will contribute to ongoing discussions about international law, autonomy, and voluntary colonialism.

REFERENCES:
Anghie, Anthony. 2005. IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW. Cambridge: Cambridge University Press.

© Copyright 2008 by the author, Lee P. Ruddin.

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INJURY: THE POLITICS OF PRODUCT DESIGN AND SAFETY LAW IN THE UNITED STATES

by Sarah S. Lochlann Jain. Princeton, N.J.: Princeton University Press, 2006. 230pp.. Cloth $57.50 / £34.95. ISBN: 9780691119076. Paper $22.95 / £13.50. ISBN: 9780691119083.

Reviewed by William T. Gallagher, Golden Gate University School of Law. Wgallagher [at] ggu.edu.

pp.4-6

Anthropologist Sarah S. Lochlann Jain’s book, INJURY: THE POLITICS OF PRODUCT DESIGN AND SAFETY LAW IN THE UNITED STATES, is a provocative, sophisticated, and ambitious analysis of the cultural logic of contemporary US product injury law and what Jain terms “American injury culture.” Jain decodes the meanings of product injury as examined through the lens of US law, primarily legal doctrine and litigated cases. There are two mains parts to Jain’s book. The first (Introduction, Chapter 1, Conclusion) consists of an extended essay analyzing the politics and cultural meanings associated with injuries that are produced by consumer and workplace products. Drawing on perspectives from cultural studies, anthropology, history, and critical theory, Jain develops several major arguments about American product injury law and “injury culture” in this section.

First, Jain provocatively argues that product injuries are not exceptional or mere “accidents.” All types of products are designed in ways that impose and distribute risk and resulting injury among users. Jain analyzes how product injuries are an essential part of a market economy, part of the “human costs of capitalism” (p.20). She convincingly argues that “[a]ccidents and human wounding provide a boost to the economy that is astonishingly undertheorized” (p.154). Thus, one aim of Jain’s book is to illuminate the web of social and economic interests that sustains and rationalizes the production of injuries by commercial and workplace products in the US and to examine law’s role in this process.

Second, Jain develops a critique of law and its constitutive role in creating meanings of product injuries, including privileging which of those injuries will “count” in the eyes of the law. This analysis insightfully demonstrates law’s role in rendering certain injuries “invisible” or, alternatively, as cognizable. Simply because a product routinely – or even inevitably – injures those who use it, does not guarantee the product design will be recognized as “defective” or unduly dangerous under product design or safety law, which is a requisite for determining that the injury is legally compensable. One important consequence, Jain argues, is that injuries caused by products are distributed unequally among populations in society and are related to such variables as race, gender, and class. Law may be only one of a number of social processes that structure “how accidents, product design, behaviors, safety, and progress are apprehended and valued” (p.147), but it is a powerful one. [*5]

Lastly, Jain also critiques product liability law’s ability to resolve injury claims, compensate injured victims, and regulate safer product design. In this respect she is more pessimistic about law’s capabilities than other critical scholars, such as Nader (2002) or Abel (1997) (both of whom Jain discusses briefly), who consider access to law as an integral – even if imperfect – tool for social justice (pp.27-28). For Jain, greater access to law is no solution, since law is primarily a discourse for “rationalizing the distribution of the inevitable and integral costs of commodity culture” (p.155).

In the second main section of her book (Chapters 2-4), Jain develops these arguments through a creative cultural and historical analysis of three legal disputes involving products that have injured different groups of victims. The first dispute (Chapter 2) involves litigation in California in the mid-1970s brought by public interest lawyers on behalf of Mexican and Mexican-American farm workers who were injured while using the notorious short-handled hoe to cultivate agricultural crops. Prolonged use of the hoe under conditions mandated by the needs of agribusiness – which included forcing workers to use the hoe in an awkward (and demeaning) bent-from-the-waist “stoop” position while quickly walking down rows of crops – caused often debilitating back and other injuries. This litigation was ultimately successful in establishing that the short-handled hoe constituted a “dangerous hand tool” under state health and safety regulations, which led to its ban. Although the short-handled hoe had been used for decades, it was through this litigation, Jain explains, that the injuries its use caused was recognized as the result of the hoe’s defects rather than as the inevitable byproduct of farm labor in general or of the presumed “defectiveness” of Mexican farm worker bodies, which both growers and some in the medical community asserted were predisposed to these types of injury (pp.77-78).

The second dispute (Chapter 3) focuses on product liability lawsuits that were filed in the 1990s against computer keyboard manufacturers for repetitive strain injuries (RPIs) to hands and wrists (such as carpal tunnel syndrome) suffered primarily by female office workers. Plaintiffs in these lawsuits were spectacularly unsuccessful, since no single litigated case resulted in a finding of liability that survived appeal. As Jain shows, the constraints and assumptions of product injury law made it difficult to establish that RPIs were caused by the allegedly defective keyboard design rather than from any particular worker’s manner of keyboard use or from other causes, such as female hysteria or even hormones (pp.108-109).

The third dispute (Chapter 4) involves an unsuccessful class-action lawsuit brought against major tobacco companies in the late 1990s on behalf of a class of African-American smokers. The lawsuit creatively alleged that decades of aggressive marketing of dangerous and highly-addictive mentholated cigarettes to African-Americans constituted a civil rights violation under federal law (pp.124-127). By suing under civil rights statutes rather than product liability laws, the plaintiffs were able to seek, albeit unsuccessfully, a unique remedy for the product-related injuries they alleged [*6] were caused by menthol cigarettes: prevention of further injuries by banning race-based targeted tobacco advertising (p.141). Jain’s analysis demonstrates and decodes how this litigation highlighted product liability claims in a race-recognized context.

Jain describes these three dispute narratives as “genealog[ies]of how particular injuries and objects have come to be understood at particular moments” (p.8). Tellingly, she insists that these narratives are not “case studies” intended to prove (rather than to provide examples of) her arguments (p.8) – and they are not, in the traditional social-scientific use of that term. Only one narrative, (Chapter 2) is based significantly on primary source material such as archival data, legal briefs, hearing transcripts, and select participant interviews. The other two (Chapters 3 and 4) are based mostly on an interpretive reading of published legal decisions, media images such as advertisements and cartoons, and analysis of secondary literature. Thus, readers of INJURY will have to be amenable to Jain’s eclectic cultural studies methodology in order to appreciate the insights these narratives provide.

Overall, INJURY is a significant contribution to the growing body of scholarship on the cultural foundations and meanings of tort law, including work that examines the intersection of tort law, race, gender, and power. Jain’s specific focus on the recent history of how certain products have come to be understood as dangerously “defective” or not is particularly illuminating and insightful. Yet, I have several criticisms of the book. First, Jain’s critique of the limitations of law and legal discourse and the ineffectiveness of law for redressing injury or regulating product design is not entirely new. Certainly this is by now a mainstream criticism in much law and society or critical legal scholarship. Perhaps more importantly, Jain’s contention that American law and injury culture are decidedly unique remains underdeveloped. Jain may be correct, but just as with the many assertions made by others about the alleged uniqueness of various aspects of American legal culture – such as Americans’ supposed “litigiousness” – Jain’s claims about the exceptionalism of American injury culture require more careful and nuanced comparative analysis to be fully convincing. Finally, I found the writing style of INJURY to be uneven. Frankly, I find some of Jain’s other work (e.g., Jain 2004) to be clearer and easier to read. Yet, these are relatively minor criticisms of this fascinating and important book.

REFERENCES:
Abel, Richard. 1997. “The Real Tort Crisis – Too Few Claims.” 48 OHIO STATE LAW JOURNAL 443-467.

Jain, Sarah S. Lochlann. 2004. “‘Dangerous Instrumentality’: The Bystander as Subject in Automobility.” 19 CULTURAL ANTHROPOLOGY 61-94.

Nader, Laura. 2002. THE LIFE OF THE LAW: ANTHROPOLOGICAL PROJECTS. Berkeley: University of California Press.

© Copyright 2008 by the author, William T. Gallagher.

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PRIVACY ON THE LINE: THE POLITICS OF WIRETAPPING AND ENCRYPTION

by Whitfield Diffie and Susan Landau. Cambridge: MIT Press, 2007. 400pp. Hardcover. $27.95/£16.95. ISBN: 9780262042406.

Reviewed by Lawrence E. Rothstein, Department of Political Science & Labor Research Center, University of Rhode Island. E-mail: LER [at] URI.EDU.

pp.1-3

This is a new and expanded edition of a book, by Whitfield Diffie and Susan Landau, I reviewed in this publication eight years ago (vol. 9, No. 6 June 1999). The new edition contains a similar, but lengthier, informative chronicle of government efforts to control the spread of cryptography and the opposition of business, scientific and civil libertarian communities to those efforts. What has transpired since the publication of the earlier edition has borne out Diffie’s reputation as the “Prophet of Privacy.”

Diffie, Sun Microsystems Chief Security Officer and developer of public key cryptography, and Susan Landau, Distinguished Engineer at Sun, had argued that the two, seemingly incompatible, needs of the “information society,” full and immediate data accessibility and data security (hence privacy), required the widest expansion of a cryptographic standard capable of securing both governmental and commercial communications. The more widespread the use of a single standard, the cheaper the cost of implementation and the greater the ability for secure global information exchange. Therefore, government efforts to control the spread of encryption through prohibition of publication of cryptographic research, “key escrow” requirements (providing the government with the private key needed to decrypt messages encrypted with a public key system), the Clipper chip (a hardware backdoor for the government to decrypt messages encrypted with the chip) and limitations on the selling and exporting of cryptographic systems were doomed to failure.

They were right. Soon after publication of the first edition, export controls on cryptographic software were removed and the key escrow and Clipper chip programs died. Publication controls never really got off the ground. The US government’s program for replacing its own aging and questionably secure Data Encryption Standard (DES) became an international competition with a publicly available Belgian system, the Rijndael algorithm, being adopted as the Advanced Encryption Standard (AES). Ironically, the adoption of a non-classified algorithm for protecting the highest level of classified information was finalized after the security panic of 9/11/01. Interoperability between domestic governmental, international and commercial information systems and the reduced cost of a widely used system were major considerations for the adoption of this standard. As Diffie and Landau note, the US government, even the information greedy NSA, has moved from attempting to prohibit encrypted communication to seeing a need for increasing the encryption of non-governmental information. National [*2] security, threatened today by non-state actors targeting civilian activities, depends on the security of commercial and other non-military data. Response to disasters, whether or not man-made, requires interoperable, yet secure, public and private communication systems.

Public key cryptography depends on asymmetric encoding and decoding. Messages encoded by a widely available public key can only be decoded by those possessing a private key. Each private key is different and the number and complexity of the transformations in the encrypted message do not allow the private key to be derived from the public key in a reasonable amount of time. Furthermore, the system allows real time negotiation of the secret and individual private keys through the exchange of messages that contain no decipherable secret information. Eliminating the need for secure centralized facilities that distribute keys, equipment and messages makes public key systems suitable for interactive communications between equals.

This is not to say that encrypted communication has become widespread. As the authors note, it has not expanded as fast as they had earlier predicted or hoped. There are still substantial cost and convenience barriers. They see it as gradually and inevitably becoming a legal and commercial necessity, not only for protecting privacy and the security of data, but also for assuring the authenticity of the communicator – i.e. the possession of the appropriate key for encryption and decryption is evidence that the possessor is authorized to send and receive the communication.

Nor has government, particularly law enforcement and spy agencies, given up its quest for access to encrypted communication. They have shifted their focus to requiring the companies that provide the lines of communication – telephone companies, internet service providers (ISPs), voice over internet providers (VoIPs) – be tap ready, i.e. be prepared technologically to monitor the communications of their customers at the request of the government. Furthermore, law enforcement and security agencies are lobbying for data retention laws and regulations to require companies that collect data on their clients’ communications retain that data for long periods of time, should the agencies need future access to a particular customer’s information or should they wish to mine it to find speculative connections to their investigations.

Here is where Diffie and Landau were somewhat less prophetic in the earlier edition. While they predicted the importance of business opposition to government restrictions on cryptography, they seemed sanguine, and still do to some extent, that commercial interests would promote individual privacy. They saw the commercial need for information from their clients and the security of the company’s own data as supportive of individual privacy. They have downplayed and still downplay the commercial value of client information and data mining that lead to the constant expansion of the data received from individuals and the commercial uses and exchange of that data. They worry about the violation of privacy should that information fall into government hands, but not much about the violation that has [*3] already occurred when that information came under the control of a commercial enterprise. But it is important to note, that they both work for the company where their former boss, Scott McNealy, said, “You have no privacy on the Web; get over it.” Diffie, himself, puts it this way:

Sun’s big customers are big businesses and they are the ones who have to protect their customer’s privacy – whatever the law and the press decide that means this week. You can’t protect anything if you can’t control the flows of information within your enterprise. That is what information security is about and that is the point from which Sun has to view privacy. We make products that enable the management of information in a networked environment. (Interview in The Sun Inner Circle Newsletter, http://www.sun.com/emrkt/innercircle/newsletter/1006feature.html , visited 12/17/07).

Diffie and Landau do address the fact that every Internet and email communication, aside from the message text or content whether or not encrypted, leaves a trail that is accessible to the websites and transmitters of the communication and to the ISPs. This traffic data can provide important aspects of an individual’s profile: interests, network of contacts, computer usage information, location of accessing computer (Poulet 2006). But in likening the interception of Internet and email communication to the wiretapping of telephone communications and condemning the increased ease and use of wiretapping and the analogous electronic data interception without warrants or with warrants issued on other than probable cause, they underestimate the importance of the traffic data whose collection is more analogous to the pen register and trap and trace techniques that law enforcement has been allowed to use without a warrant requirement for some time. The protection of privacy in the face of a revolution in communication and data analysis technology requires a reevaluation of the entire legal framework for data collection, processing and exchange in both the public and private sectors. The authors fall far short of calling for this radical, but necessary, step.

As I said in my last review, this is a well-researched and fascinating study despite a “cryptic” organization of material that shifts from chronological to topical treatment without warning and is subject to, often highly technical, digressions. Furthermore, the new material covering developments since 1998 is less detailed and revelatory of behind the scenes machinations than is the treatment of the pre-1998 political and legal environment that was also contained in the earlier edition. Compared to what I learned from the first edition, this edition though informative, is a disappointment.

REFERENCE:
Poulet, Yves. 2006. “The Internet and Private Life in Europe.” In Andrew T. Kenyon and Megan Richardson (eds). NEW DIMENSIONS IN PRIVACY LAW. Cambridge; Cambridge University Press.

© Copyright 2008 by the author, Lawrence E. Rothstein.

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