THE CONSTITUTION OF ELECTORAL SPEECH LAW: THE SUPREME COURT AND THE FREEDOM OF EXPRESSION IN CAMPAIGNS AND ELECTIONS

by Brian K. Pinaire. Stanford, California: Stanford University Press, 2008. 368pp. Cloth $60.00. ISBN: 9780804757249.

Reviewed by Thomas G. Walker, Department of Political Science, Emory University. Email: polstw [at] emory.edu.

pp.1135-1138

Brian Pinaire, a Lehigh University political scientist, has produced an intriguing volume that traces the constitutional development of freedom of speech within the context of campaigns and elections. In doing so Pinaire explains the process by which two seemingly distinct areas of the law (the individual’s right to freedom of expression and the government’s authority to regulate elections) have become intertwined. The confluence of these two jurisprudential streams occurred as the Supreme Court struggled with the often-competing values of protecting political speech and guaranteeing the integrity of the electoral process. The book is divided into two sections. In the first, Pinaire develops the theoretical concepts and relationships that guide his understanding of electoral speech law. This is followed by four case studies, or “constitutional episodes,” in which Pinaire uses selected Supreme Court decisions to illustrate his theoretical argument.

The author first identifies two constituent concepts, “the marketplace of ideas” and “electoral superintendence,” that underscore the themes running throughout his analysis. The marketplace of ideas metaphor, of course, was introduced into our constitutional conversations by Oliver Wendell Holmes, Jr. in his dissenting opinion in ABRAMS v. UNITED STATES (1919). Holmes wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution.” The supporters of this view believe that society is best served when expression, especially political expression, is left unfettered by government.

By electoral superintendence, Pinaire refers to the Supreme Court’s role as a guardian of the citizens’ right to free and fair elections. Beginning as early as the first White Primary cases (e.g., NIXON v. HERNDON, 1927) and accelerating after BAKER v. CARR (1962), the Court has embraced the task of serving as a referee in the political process. This has been especially so when questions of electoral inequality and issues of real or perceived corruption have been raised.

The Supreme Court’s early decisions on electoral speech emphasized a classic conception of free expression that approximated Holmes’ notion of the marketplace of ideas. This position rests on the belief that more speech is preferable to less speech. Or, as the dissenting Justice Scalia stated in McCONNELL v. FEDERAL ELECTION COMMISSION (2003), [*1136] “Given the premises of democracy, there is no such thing as too much speech.” This conception assumes that truth will most readily emerge from an uninhibited exchange of ideas and that any regulation of the marketplace is seen as unnecessary paternalism.

The classic position received its first serious challenges in the reapportionment cases of the 1960s and the campaign finance controversies that emerged in the 1970s. Here the Supreme Court confronted questions of participatory equality arising from the realization that institutional rules and resource differences may make the marketplace of ideas an arena in which not everyone can participate equally. The justices also began expressing a concern not only for the rights of the speaker but also of the audience (see, for example, RED LION BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 1969).

The recognition that imbalances emerge in the electoral process led various policymakers, scholars, and judges to argue the necessity of regulating campaigns and elections. As Byron White wrote for a six-justice majority in the ballot access case of BURDICK v. TAKUSHI (1992), “Common sense, as well as constitutional law, compels the conclusion that the government must play an active role in structuring elections; ‘as a practical matter there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’” With such decisions the Court acknowledged government’s custodial role over the institutions and processes through which elections take place. Often the resulting regulations allow the interests of equality and electoral integrity to trump the free speech values promoted by the free marketplace conception of political expression.

Consequently, three different views of electoral law have emerged: the classic conception, the equality conception, and the custodial conception. In examining how these competing approaches influence constitutional development, Pinaire examines four rhetorical modes of argument that the justices have used to express their sincere as well as strategic preferences. The “historical mode” advances the importance of nation’s deeply held traditions and values. It interprets government efforts to regulate electoral speech in light of the longstanding beliefs of the American people, many of which date back to the Founding. The “empirical mode” places an emphasis on data and the inferences that can be drawn from quantitative evidence. In campaign finance cases, for example, arguments advanced from this perspective would examine the amounts, sources, and recipients of money contributed and derive inferences about the influence of those funds on the electoral process. The “aspirational mode” pays heed to the goals of a self-governing people, seeking the proper relationship between political speech and the ideals of a representative government. In this rhetorical mode great significance is placed on the capability of citizens in a democracy to evaluate political arguments and make [*1137] political choices. And finally, the “precautionary mode” of argument acknowledges that human and institutional failures on occasion jeopardize the integrity of our democratic processes. It recognizes the necessity of preventive efforts to minimize such events.

To link these theoretical concepts to the actual decisions of the Supreme Court, Pinaire examines the thirty-nine electoral speech cases decided by Court between 1947 and 2006. He categorizes these decisions into five groups based on the targets of the challenged government regulation: political activists, candidates, campaign finances, newspapers, and political parties. He also classifies the positions taken by each justice who participated in these decisions. The results show that the initial electoral speech decisions were largely considered according to classic conceptions, with equality and custodial positions emerging later. Some justices have been generally consistent in their approach, such as Antonin Scalia and Clarence Thomas (classic conception). Others have demonstrated sharp breaks in their patterns. For example, both David Souter and Sandra Day O’Connor began their careers usually relying on a classic approach but later switched allegiance to a more custodial position.

Pinaire’s analysis of the justices’ behavior leads him to argue that jurists view campaign and election speech much differently than expression rights exercised in other settings. Taking strong issue with attitudinalists, Pinaire rejects the view that liberal/conservative measures of justices’ preferences can explain electoral speech outcomes. Instead, speech within the electoral context is unique because of its role in the political decision making of a self-governing people. As a consequence, Pinaire argues that only a more nuanced approach can effectively deal with the interwoven interests of both political speech freedoms and the need for honest and fair elections.

The second section of the book consists of four chapters with each containing an in-depth look at a single Supreme Court decision. In selecting his cases, the author’s goal was to identify a representative set of rulings. His final choices were BURSON v. FREEMAN (a 1992 political electioneering case), MCINTYRE v. OHIO ELECTIONS COMMISSION (a 1995 campaign literature disclosure law challenge), BUCKLEY v. AMERICAN CONSTITUTIONAL LAW FOUNDATION (a 1999 petition regulation case), and NIXON v. SHRINK MISSOURI GOVERNMENT PAC (a 2000 campaign finance decision). The cases varied not only in subject matter, but also in court of origin and decisional outcome. The case studies rely on archival research (legal documents, journalistic accounts, court opinions) as well as interviews with key individuals who participated in the cases. The chapters focusing on these four “constitutional episodes” apply Pinaire’s theoretical concepts and carefully lead the reader from the origins of the dispute through the Supreme Court’s opinion deciding the case. The analysis explores the conceptual constituents, the rhetorical modes, and the cognitive contours that shaped the Court’s [*1138] interpretation of the Constitution.

Pinaire expresses hope that his book will be of interest to a wide variety of scholars as well as to concerned citizens. Realistically, however, THE CONSTITUTION OF ELECTORAL SPEECH LAW is likely have a much narrower audience. Some scholars of the law, especially those who prefer to study the judicial system from a more behavioral or positivist perspective, will not be attracted to the approach Pinaire takes. And few members of the general public will have the necessary background to appreciate the theoretical arguments Pinaire advances.

Nevertheless, Pinaire’s volume is a worthy read for those interested in legal development. This is especially so for individuals seeking a better understanding of how law evolves through the Supreme Court’s expounding of the Constitution. Readers should be forewarned, however, that much of the material is rough sledding, especially in the chapters that develop theory and concepts. As exemplified by 83 pages of endnotes, the author goes to great lengths to provide rich documentation for his argument. This is a strength of the book, yet at times references and quotations are embedded into the text to a degree that the smooth flow of the argument is interrupted. Moreover, the work is densely written and characterized by complex sentences that too frequently exceed 100 words. For scholars, however, who are steeped in the subject matter and comfortable with Pinaire’s approach the book has much to offer. Few other volumes are devoted to an understanding of how the Supreme Court blends disparate lines of legal thought. It is a welcome addition to the literature.

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

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

BUCKLEY v. AMERICAN CONSTITUTIONAL LAW FOUNDATION, 525 U.S. 182 (1999).

BURDICK v. TAKUSHI, 504 U.S. 428 (1992).

BURSON v. FREEMAN, 504 U.S. 191 (1992).

McCONNELL v. FEDERAL ELECTION COMMISSION, 540 U.S. 93 (2003).

MCINTYRE v. OHIO ELECTIONS COMMISSION, 514 U.S. 334 (1995).

NIXON v. HERNDON, 273 U.S. 536 (1927).

NIXON v. SHRINK MISSOURI GOVERNMENT PAC, 528 U.S. 377 (2000).

RED LION BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 395 U.S. 367 (1969).

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© Copyright 2008 by the author, Thomas G. Walker.

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FUTURE IMPERFECT: TECHNOLOGY AND FREEDOM IN AN UNCERTAIN WORLD

by David D. Friedman. Cambridge: Cambridge University Press, 2008. 300pp. Hardcover. £17.99/$30.00. ISBN: 9780521877329. eBook format. $24.00. ISBN: 9780511421402.

Reviewed by Debora Halbert, Department of Political Science, University of Hawaii at Manoa. Email: halberd [at] hawaii.edu.

pp.1131-1134

According to the introduction of David Friedman’s new book, FUTURE IMPERFECT, the project grew out of a seminar on future technologies he taught. The goal of the book is to develop multiple scenarios that problematize the implications of technology for our future. Despite his futures focus, however, he does not endorse long-range futures planning because, as he puts it, the future is radically uncertain. Given that we might not even exist as a species in the next 50 years (p.320), there is little reason to plan beyond the much more realistic event horizon of the next few decades. Thus, he limits his discussion to the next thirty years because as he claims, “beyond that my crystal ball, badly blurred at best, becomes useless; further future dissolves into mist” (p.11).

While Friedman limits his future scenarios in time, the scope of topics under consideration is wide-ranging. The topics covered in the twenty-two chapters range from problems associated with the growing popularity of the Internet to nanotechnology and space exploration. Friedman claims to focus on the legal and social challenges associated with technological change, but in almost every chapter he tends to invoke rhetorical questions instead of structured analysis. As a result, the book includes vague thought experiments that are not grounded in current trends or emerging issues. These hypotheticals may have been useful when teaching a seminar on technology a decade ago, but in the context of an uncertain and always moving future, many are out of date in the context of the futures scenario building he attempts here.

For example, when discussing privacy, encryption, e-commerce and copyright law, Friedman deals with important issues but offers dated examples in support of his analysis. His chapter on encryption describes the policy debates over public key encryption that have been ongoing for the last twenty years, but with no new future implications. The same is true for copyright. Friedman simply re-hashes old debates without linking his speculation to the controversial aspects of the law currently under discussion, including the problems associated with property rights in nanotechnology – one of the other future scenarios discussed in the book.

Nanotechnology itself is poorly handled. This is an issue that may not yet be entirely understood by the general population and also might move us beyond Friedman’s 30-year future timeline. However, in positing the possibilities of a nanotech future, Friedman cites K. Eric Drexler’s original 1980s discussion of “grey goo,” hardly [*1132] the last word in the debate. Friedman is concerned with government centralization, a theme that emerges throughout the book, and somehow nanotechnology will lead to dictatorship, but this scenario is never fully developed. Alternative scenarios are not discussed at all, which is a shame, given the implications of nanotechnology, including the possibility of a post-materialist future that renders scarcity and disease obsolete.

FUTURE IMPERFECT not only deals with issues of computer technology, but also the intersection of social institutions and technology, including reproductive technologies, marriage, and aging. Friedman raises a multitude of issues associated with reproductive technologies, primarily as they impact the lives of men. While Friedman acknowledges that reproductive technologies will change our definition of the family and expand the possible numbers of parents a single child might have, he spends at least as much time considering the importance of determining paternity and sexual access to beautiful women.

In Chapter 14, Friedman’s hypothetical asks us to consider the problems associated with paternity testing if it were required at the birth of all children. The scenario posits that females seek out the best genes for reproductive purposes and then often mislead their partners about the paternity of the resulting children. Mandatory paternity testing would be a way for fathers to determine if they are really the biological father (p.203). It is not clear why this is a future scenario, or even a hypothetical that needs testing. The technology already exits, people can request a paternity test if they want, and at best such a plan only requires a simple change in policy.

Despite the duplicity of women (and geese as well, evidently), we learn that “One function of the marriage institutions of most human societies we know of, past and present, is to give males a reasonable confidence of paternity by providing that under most circumstances no more than one male has sexual access to each female” (p.205). So, we understand that marriage has had a traditional social function that could be disrupted. What is not clear is why any of this should matter. Friedman suggests later in the chapter that there is the possibility of a multiplicity of parents (biological, surrogate, and so on). However, instead of following this trend towards the destruction of the nuclear family, he speculates on whether male jealousy is hardwired, thus making alternative marriages and social pairings unlikely (p.206). We are already dealing with the legal ramification of test-tube babies, surrogate mothers and sperm donors. It is not clear that Friedman’s focus on biological determinism and male jealousy sparked by female infidelity (male infidelity seems acceptable) makes the future any different from the past.

When dealing with the “problem” of aging in Chapter 17, we are again asked to consider the issue from a male perspective. Friedman poses a question about the possibility of extending life for hundreds of years or perhaps even attaining immortality. Friedman states [*1133] that “my own guess is that the problem of aging will be solved, although not necessarily in time to do me any good” (p.251). His “guess” is not supported with evidence. Instead, the endnotes include some science fiction references, a 1992 Consumer Report article on antioxidents, a NATIONAL REVIEW essay on cryonics, and some narrative footnotes on population growth and congressional terms. However, it is illuminating that the real problem with aging is associated with male access to women. As Friedman speculates,

While thinking about how to spend your second century, you might want to consider the social consequences of eliminating the markers of age. In a world where aging is entirely under our control, a young woman of 20 might be dating a young man 100 years older than she is – and he might or might not tell her. The same thing already happens online, where a flirtatious twelve-year-old girl may be almost anything, including a forty-year-old FBI agent. If you, a grandfather with a retirement pension and a century behind you, could go back to college as a freshman, would you? Part-time? Lots of cute girls. The women of your own generation are just as cute, thanks to the same advanced biotech that makes you eighteen again, but the real thing has its charms. Perhaps. (p.256).

I guess at one level I am happy women will be able to take advantage of anti-aging technology to become “cute” again and thus continue to be sexually available to the 100-year old men now loitering around college campuses, but if this is the extent to which our understanding of a future in which aging disappears can go, then kill me now.

The gendered implications of Friedman’s futures do not end with the continued dominance of the patriarchal family or powerful men retaining control over the senate (p.253), but we also learn in Chapter 20 that virtual reality can be used by “homely women” to “leave their faces behind” (p.284), and in these virtual utopias, “all women are beautiful and enough are willing. All men are handsome. Everyone lives in a mansion that he can redecorate at will, gold-plated if he so desires” (p.290). Ultimately, Friedman discounts this virtual reality scenario because, despite the fact it might appear as a paradise, much like masturbation (pp.290-291), it is not a substitute for the real thing. A virtual life is not a “real” life and thus he would not “touch the thing with a ten-foot pole” (p.291).

While there are many ways to use scenarios, good scenario building usually will unpack starting assumptions and introduce the reader to the most recent issues surrounding the topic under consideration. To discuss the future, one must track emerging issues, deal with possible “wild card events” and try to work systematically through the different permutations of a topic. Scenarios are not fantasy but instead are generated out of the present and tracked into possible futures. Friedman’s general refusal to move beyond the immediate future limits the possibility of planning for the long-term consequences of human behavior. For example, when [*1134] it comes to solving global warming, an issue that gets several pages of attention in the final chapter, Friedman argues there is no reason to try to “do much about global warming at present” because “substantial problems due to global warming are decades into the future” (p.319). Not only should these problems be left to future generations to solve but his conclusion suggests we can not and should not plan that far in advance anyway. Such a perspective undermines the very methodology Friedman claims to be using – one generated by futures studies.

It could be that Friedman’s point is to repudiate futures studies, but if this is the case, it is not clear why he begins the book by saying he wants to create multiple possible futures so that we can better understand the impact of technological change on our lives. Furthermore, he does not cite any futurists or demonstrate that he has read the literature of scenario building, strategic planning or environmental scanning (just to name a few futures methodologies that might be relevant). In the one area where he mentions futurists directly, those engaged in the environmental movement of the 60s and 70s, he discounts their predictions (pp.316-317) without recognizing the importance of their warnings in changing policy to help avert some of the problems they saw looming on the horizon.

While I generally agree with Friedman’s thesis – that the future is uncertain, that technology will have a profound impact on humans and our environment, and that there will be radically different ways of being in the world because of technology, if I were to recommend a book that covers these issues, it would not be this one. Friedman offers under-researched and vague scenarios. He would have been better served if he had delved into fewer topics in more detail and provided up-to-date research. He also might have been better served by writing a book that described his preferred future – one with limited or no government, where men act according to their biological imperatives and women are willing and beautiful, where we can travel through space and use virtual reality, but still come home to a nuclear family (albeit one that plays World of Warcraft). This seems to be the future Friedman can get behind, but we do not call it research – we call it fantasy.

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Creative Commons Attribution Non-Commercial Share Alike 2008 by the author, Debora Halbert.

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THE NATURE AND AUTHORITY OF PRECEDENT

by Neil Duxbury. Cambridge and New York: Cambridge University Press, 2008. 208pp. Cloth $100.00/£60.00. ISBN: 9780521885799. Paper $45.00/£24.99. ISBN: 9780521713368. eBook format. $36.00. ISBN: 9780511389344.

Reviewed by Matthew J. Franck, Department of Political Science, Radford University; Visiting Fellow, James Madison Program, Princeton University. Email: mfranck [at] radford.edu.

pp.1126-1130

Why do judges in the English common law tradition (including those in former colonies such as the United States) have a doctrine of precedent? What does it mean to say that prior rulings of a court have authority to bind judges, either on the same court or inferior ones? Are there good reasons to follow precedent? If so, what reasons will suffice for not doing so?

These are among the questions addressed by Neil Duxbury, professor of law at the London School of Economics, in this brief but densely argued and challenging book. If you finish reading THE NATURE AND AUTHORITY OF PRECEDENT with more questions and uncertainties than you previously had about its subject matter, Duxbury has been successful. For, as he argues, “no one theory can offer a plausible comprehensive or systematic explanation of why precedents constrain” (pp.ix-x). His objective seems to be to induce the reader to turn the doctrine of precedent this way and that, viewing it from multiple angles and taking none of its features as either philosophically or historically given. But his project is neither cynically corrosive nor a work of destruction and rebuilding on some novel basis; it is analytical through and through, leaving us with an established practice in place but better prepared to think about its purposes and limits.

One of the signal services Duxbury performs in his introductory chapter is to examine what the doctrine of precedent is and is not, and what it does and does not do. The doctrine involves the guidance of present action in light of past decisions, reasoning by analogy. But it is not necessarily the following of publicly accessible prior decisions; nor is it identical to reasoning from experience or to following custom or to the formulation of rules, any of which can be done without the doctrine of precedent or even in contradiction of it. And it is emphatically not the following of only those precedents of which we approve; in a helpfully tough statement of the doctrine in its most demanding form, Duxbury writes that “[t]he authority of precedent is independent of the court’s view as to its correctness or incorrectness” (p.24). As he later argues, however, the notion of precedents as “exclusionary reasons” that “tak[e] the place of individual judgments as to what ought to be done” requires “too tidy a picture” of how the doctrine can be expected to operate in practice (p.108).

When and why did the doctrine of precedent come to be what we now [*1127] know it to be – a form of constraint on judicial decision-making accomplished by tethering it to specific past decisions of sufficiently similar character that those prior rulings must either be followed, distinguished, or overruled? Duxbury argues strongly in his second chapter against the view that “it is with the advent of classical legal positivist jurisprudence that stare decisis becomes established within the common law tradition” (p.37). Indeed, to the extent that Austinian positivism is a “theory of law as coercive orders” (p.14), it lends little support to the doctrine of precedent, since judges are not punished for not conforming to it.

Duxbury’s alternative account is of a more complex confluence of historical developments. Early common law practice prized the “common erudition of the legal profession” (p.32), which came to be embodied by the late sixteenth century in abridgments and compilations of cases; this in turn led to more frequent argument from authority and the elevation of the “artificial reason” of the law as a product not just of many minds but of many minds over time. But a pivotal development was a change in trial conduct that began in the early sixteenth century: from a pattern of pleadings “advanced orally and often tentatively” (p.52) in the course of hearings, practice shifted to the determination by counsel of their pleadings before trial. Such arguments about the meaning and application of legal principles, staked out beforehand by counsel, were now formally the business of the judge to resolve by a decision. In that capacity, judges were expected to state the reasons for a decision in the form of an opinion, oral or written, about the law’s meaning. Stare decisis as a doctrine did not thus emerge full-blown at once, but grew more tightly focused on the past decisions of particular cases as law reporting (including the use of shorthand to record oral pronouncements from the bench) came into its own, particularly in the eighteenth and nineteenth centuries. Consolidating the doctrine’s evolution in England was “[t]he introduction of the hierarchical system of appellate courts” (p.56) in the late nineteenth century, for now the status of the precedent-setting court in relation to the newly deciding one entered the equation.

Leaving aside for a moment what this history cannot explain – why precedents should be raised from the merely interesting to the binding – Duxbury turns in the third chapter to the difficulties that arise within the doctrine of precedent once its authority is recognized. What binds later courts is the ratio decidendi, not the obiter dictum, and so we must know which is which, and that is not always easy. Nor does every case really have a ratio we can discern, or it may have multiple rationes. Or we may have to choose between different accounts of what it is, one offered by the court that decided the precedent and one offered by the court that must apply it. And just what is the definition of a ratio anyway, and how can we determine that we have seen it? Duxbury devotes a great deal of attention to these questions, and the reader’s attention to his discussion will pay dividends. But in any event, cases stand for legal reasons; however inefficiently they do that work [*1128] sometimes, they are hardly useless as guides to subsequent decisions, since they help courts avoid “regularly reinventing the wheel” (p.94).

Chapter 4 takes up the business of distinguishing and overruling precedents. If these are normal parts of judicial behavior, how do they coexist with a doctrine that regards precedents as binding? Distinguishing does not present much of a problem here, since it recognizes that a precedent controls but not here. Overruling is another matter. But in legal systems that prize precedent, overruling a precedent that cannot be distinguished from the instant case is an exercise in respect for precedent, for the overruling must not be willy-nilly: it must be explained and justified. Is there more needed to justify overruling than that a given precedent is perceived to have been mistaken? It seems there is, when a court is overruling a precedent of its own or of a court of equivalent authority. But why that should be so, or just what factors would make a difference, are matters much in dispute. It may simply be a reputational concern, a fear of certain costs to be paid in the respect paid a court that appears to change its mind too often or for reasons not perceived as extraordinary. But can such considerations justify the perpetuation of a wrong?

Duxbury’s fifth and final chapter comes to the nub of the matter: “Why follow precedent?” There are consequentialist reasons: as we have already seen, departing from precedent can appear to carry significant costs in authority or public relations. Or it may be that a doctrine of precedent imparts efficiency or strength to a court. Or that we value the settlement of legal issues, not for a day but durably. Relatedly, we may desire certainty and predictability. These outcomes are not guaranteed by a doctrine of precedent – but what else can guarantee them? Stare decisis is open enough to be flexible, and capable of change. From the standpoint of binding authority, this may seem a vice. From the standpoint of the survival of the rule of law as a viable order, it is probably a virtue.

A weaker case for following precedent exists on deontological grounds. It is difficult to say what is good in itself about treating yesterday’s decisions as binding on today’s. Placed side by side, the two of them look equal in their claim on us; why should the instance that came first in time be privileged over the later one? It does not really help the case for the authority of precedent to say that the past is inherently worth honoring, for no one honors all that is past but only that which is good in it. And the formal justice of treating like cases alike neither requires an actual doctrine of precedent, nor represents what we want to do in all instances, nor helps us in any decisive way in a world in which no two cases are alike in absolutely every respect. We must still reason our way to a grasp of those respects in which likeness is really present, in which the likeness matters to us morally or legally, and in which the institutional conditions of an earlier decision deserve so large a claim on our attention as to condition fundamentally any fresh reasoning we might apply to the situation newly before us. It is hard not to conclude that from deontology we are thrust back into the shadowy but [*1129] more palpable world of consequences, where we cannot so much see our duty as feel our way toward it.

In his abrupt conclusions, Duxbury remarks that the doctrine of precedent has a salutary “capacity simultaneously to create constraint and allow a degree of discretion” for judges, who should treat it as “not an unassailable but a strong rebuttable presumption that earlier decisions be followed” (p.183). It turns out that the authority of precedent is just one of those things: it sprang up from the soil watered by a variety of historic choices of the bench and bar, and it simply seems to work for us. It is not the only possible system for achieving the goods at which it aims, as the civil law system suggests with the much lower value it places on prior decisions. But it serves. Duxbury’s close treatment of the historic and philosophic dimensions of the doctrine reminds me of Aristotle’s remark that political science is among the practical and not the theoretical sciences, and thus has a degree of (im)precision appropriate to its workaday purposes of forging communities out of the oddly shaped human materials available to lawgivers and statesmen.

By way of criticism of Duxbury, I have little to offer. For the American reader concerned with precedent in constitutional law, there is much food for thought here, but it must be borne in mind that the book’s argument is about precedent in common law, and there are differences that make a difference when translating Duxbury’s observations to a constitutional context. There is also a long discussion of the controversy engendered when the House of Lords issued a “Practice Statement” in 1966 that “declared that it would henceforth be free, in some circumstances, to overrule its own decisions” (p.123). For American readers it will seem mystifying that so much energy was expended in debating the propriety and the impact of this statement.

I have two quibbles that I think worth mentioning. First, Duxbury remarks in passing that “more often than not the authority of a precedent will diminish rather than ripen with age” (p.63). This seems worth a more elaborate discussion, especially since it will strike many readers familiar with the older patterns of the common law as stating quite the reverse of the usual principle. After all, precedents have often been called “venerable” for a reason, and usually not because they were decided the day before yesterday.

Second, Duxbury says it is “certainly wrong . . . to define the ratio decidendi as a proposition which, were its meaning to be inverted, would have altered the decision” (p.77). This is certainly true if we seek to define what ratio is in the abstract, because in many cases there will be two or more alternative grounds of decision; inverting just one will sometimes change nothing. But Duxbury never considers a reworked attempt to define ratio that would go something like this: “the ratio decidendi belongs to that class of statements in a case which, if all its members were missing or inverted, would alter the decision.” This would account for the common occurrence of manifold rationes. Though it admittedly does not [*1130] help us dispel all ambiguity about the boundary between ratio and dictum, it has the virtue of being an acceptable definition for the uncertain and contingent world of a common law system governed by stare decisis. Duxbury’s neglect of this possible definitional maneuver was an unusual omission from a book that otherwise left very few unturned stones.

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© Copyright 2008 by the author, Matthew J. Franck.

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THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW: CONSIDERING SOVEREIGNTY, SUPREMACY AND SUBSIDIARITY

by Tomer Broude and Yuval Shany (eds). Oxford, England and Portland, Oregon: Hart Publishing, 2008. 429pp. Hardback. £60.00/$126.00. ISBN: 9781841137971.

Reviewed by Lee P. Ruddin (LL.B: Liverpool); (MRes: London); and (PgCert: Sheffield). Email: leepruddin [at] yahoo.co.uk.

pp.1123-1125

THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW: CONSIDERING SOVEREIGNTY, SUPREMACY AND SUBSIDIARITY, edited by Tomer Broude and Yuval Shany, is the latest volume in Hart’s Studies in International Law series (No. 19). The essays published were first presented at a conference held in June 2006 at the Hebrew University of Jerusalem, which celebrated the life and work of Ruth Lapidoth. Professor Lapidoth, in the words of one contributor, Thomas M. Franck, is “the raison d’être of this collection of essays” (p.21).

In the 400-pages-plus hardback, leading international scholars systematically examine the allocation of decision-making authority to international organizations, courts and other international actors through the prisms of three organizing principles: sovereignty, supremacy and subsidiarity.

The terms sovereignty, supremacy and subsidiarity pervade the language of law and politics. Each likewise influences the language of diplomacy in international law as well as international politics. For this reason it will be of great interest to readers of the LAW AND POLITICS BOOK REVIEW.

The 15 contributors offer theoretical, analytical and practical responses to the attempt by international law-makers and institutions to exert their authority vis-à-vis states, while addressing, at the same time, challenges to their legitimacy from other state norms. In other words, the volume covers a multiplicity of legal relationships (one legal relationship not covered, though, concerns rogue states and preemptive intervention) from the vertical (postmodern) dimension to the classical (‘Westphalian’) horizontal paradigm.

The work of the authors is divided into four parts: “The Structures of International Law” (pp.17-120); “International Authority and the State” (pp.121-213); “Allocation of Authority among Judicial Bodies” (pp.215-292); and “Allocations of Authority in Specific Normative Contexts” (pp.293-415). The volume is coherently organized and the writing is consistently first-rate yet the essays remain beyond the reach of undergraduate students. (Undergraduate students would no doubt find STATE, SOVEREIGNTY, AND INTERNATIONAL GOVERNANCE a more accessible primer.)

The first of the volume’s four parts is all about the tensions that today permeate the structuring authority in international law and politics. Chapter One is lively or, as the author would put it, “surreal” (p.20). [*1124] After introducing the tensions that exist between the global and the local decision-making processes, NYU Professor Thomas M. Franck proposes three practical principles for the allocation of power between the centre and periphery (pp.26-29). To that end, Franck’s installment makes for interesting reading.

Diverse symbols of authority put stress on the existing legal apparatus, increasing the instability of international law, writes W. Michael Reisman, author of Chapter Two. It is this “dynamic dialectic of law that gives it its vitality and its volatility” (p.40). Reisman’s contribution is as comprehensive as it is powerful. Even Francis Fukuyama gets a mention, although Reisman’s use of ‘justical anachronism’ (p.40) puts paid to the Japanese-American’s ‘end of history’ thesis.

In a similar vein to the opening chapter, not to mention as skeptical as the second, Gareth Davies, in Chapter Four, provides a clear and concise take on the issue of the method of subsidiarity. In the following chapter Tomer Broude correlates norm-authority integration. Suggesting methods of norm integration that are less intrusive upon the institutional authority in question, Chapter Five offers an original perspective on authority allocation.

The second section of the book concentrates on conceptions of sovereignty and the tension between (international) authority and (national) sovereignty. Brad R. Roth (“State Sovereignty, International Legality and Moral Disagreement”: pp.123-161) provides a clever, penetrating look at self-determination and non-intervention, while Robert L. Howse and Kalypso Nicolaidis (“Democracy without Sovereignty: The Global Vocation of Political Ethics”: pp.163-191) methodically evaluate the model of governance offered by the World Trade Organization compared to its predecessor organization, the General Agreement on Tariffs and Trade. And Andreas L. Paulus (“Subsidiarity, Fragmentation and Democracy: Towards the Demise of General International Law”: pp. 193-213) looks at questions of legitimacy and whether a shift from democracy to technocracy has occurred.

Section III is as light to read as Section II is as heavy. Indeed the chapters contained in Section III (substantively, in the case of Chapters Nine and Ten) compliment each other in a similar way Sections I and II do. Nikolaos Lavaranos offers an unrivalled insight on the Solange-method and jurisdictional overlap despite being one of the shortest contributions to the volume (19 pages). Much like the preceding installment, Iris Canor’s chapter provides an original contribution to the existing literature analyzing, in this particular instance, the BOSPHORUS case. And Amichai Cohen (“Domestic Courts and Sovereignty”: pp.265-292) serves up a simple yet scholarly take on the not-so-simple relationship between international cooperation and sovereignty.

Two essays stand out in Section IV. The first, by André Nollkaemper (“Multi-level Accountability: A Case Study of Accountability in the Aftermath of the [*1125] Srebrenica Massacre”: pp.345-367), Director of the Amsterdam Center for International Law, traverses law and politics effortlessly. The second, the gem of this collection, by Malcolm N. Shaw QC (“Territorial Administration by Non-territorial Sovereigns”: pp. 369-415), is both substantively astute and historically nuanced and is the longest contribution to the volume (47 pages).

The editors have done a fine job of amassing a wide repertoire of scholars, from a wide repertoire of backgrounds, to discuss a wide repertoire of topics (yet the commentators, surprisingly, provide little critique of others’ works within the volume). That said THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW is by no means the final word on the subject, but rather a ‘hologram’ of the discussion (p.14). Indeed more research needs to be carried out – many of the contributors say as much. It is here that a concluding chapter is conspicuous by its absence. What is more, this heterogeneity contributes to the lack of any unified solutions. And although this point is acknowledged by the editors when considering the goal of the book (p.3), readers looking for any theoretical take-away will be disappointed. But none of this detracts from the overall value of the text. There is little in the way of repetition, little in the way of typing errors and the volume remains of huge significance to the informed reader.

REFERENCES:
Kreijen, Gerard (ed). 2002. STATE, SOVEREIGNTY, AND INTERNATIONAL GOVERNANCE. Oxford and New York: Oxford University Press.

CASE REFERENCES:
BOSPHORUS AIRLINES v. IRELAND, [2005] ECHR (application no. 45036/98).

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

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Introduction

December 2008 Special Edition: Review Symposium

pp.1091

THE OXFORD HANDBOOK OF LAW AND POLITICS, by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (eds). New York: Oxford University Press, 2008. 832pp. Hardback. $150.00/£85.00. ISBN: 9780199208425.

Editors Note
This special issue marks the first joint publication by LAW AND POLITICS BOOK REVIEW and LAW & COURTS. Special thanks to Artemus Ward who developed the project and to the five reviewers who have done a fine job of assessing this volume. The symposium also appears in the 2008 Winter issue of LAW & COURTS (Volume 19, No.1): http://www1.law.nyu.edu/lawcourts/pubs/newsletter/index.html.

Introduction
Artemus Ward, Department of Political Science, Northern Illinois University
Editor, LAW & COURTS

The study of law and politics is a cornerstone of the discipline of political science, and it has been one of the productive areas of cross-fertilization between the various subfields of political science and between political science and other cognate disciplines. THE OXFORD HANDBOOK OF LAW AND POLITICS, edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira, seeks to provide a comprehensive survey of the field of law and politics in all its diversity, ranging from such traditional subjects as theories of jurisprudence, constitutionalism, judicial politics and law and society to such re-emerging subjects as comparative judicial politics, international law, and democratization. The volume gathers together leading scholars in the field to assess key literatures shaping the discipline today and to help set the direction of research in the decade ahead. The contributions to this symposium discuss the Handbook and the state of the field more generally.

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SHAPING THE FIELD? A REVIEW OF THE OXFORD HANDBOOK OF LAW AND POLITICS

Jeffrey K. Staton, Emory University. Email: jkstato [at] emory.edu.

pp.1116-1122

I strongly recommend purchasing THE OXFORD HANDBOOK OF LAW AND POLITICS, edited by Keith Whittington, Daniel Kelemen and Gregory Caldeira. For me, the handbook has already been a useful guide to less familiar literatures and a fine summary of those in which I write. If this is a fair snapshot of our field, we have a lot to be excited about. The essays the editors have amassed not only review a solid base of knowledge but they also identify new puzzles to pursue and possibilities for collaboration. Before I address the material directly, however, I thought I might say a word or two about process.

The key question is this. On what grounds does one review an Oxford Handbook? I have struggled with this question for more time than I care to admit. It is not a summary of a particular study or a proposal for future research, so the normal guidelines for manuscript review do not necessarily apply. An edited volume presents similar troubles, but at least it is usually a collection of research papers, which gives you the opportunity to review a literature in light of the volume’s theme. A handbook, in contrast, is a series of review essays. So, what we are talking about here is reviewing a collection of reviews. How this should be done was not immediately obvious to me. After burning through a couple of legal pads and my colleagues’ patience, I decided to lean a little bit on the volume’s fine editors. Rather than invent a standard, which frankly was not coming to me, I decided to evaluate The OXFORD HANDBOOK OF LAW AND POLITICS according to their goals.

The overarching goal of the Oxford series, stated succinctly on the book jacket, is “to shape the discipline [of political science].” The more modest goals of the volume editors are twofold. As we would expect, the editors hope to offer a useful conceptual map of the field. They define law and politics as the political analysis of law and courts. The goal of law and politics is to see what leverage we can gain in our understanding of law and legal institutions from models that are explicitly political (p.4). With this frame in mind, the editors construct a reasonable partition of literatures, which draws on existing scholarly labels: Jurisprudence and the Philosophy of Law, Constitutional Law, Politics and Theory; Judicial Politics; Law and Society; and, Comparative and International Law and Courts. The review essays do not perfectly follow the map they develop; but there is wide coverage, and there are plenty of new ideas to consider.

The real success of the volume, in my view, lies in how the review essays might spark new inquiry. This is how disciplines are shaped. Toward this end, the editors’ second goal is to start productive conversations among scholars in the various subfields. [*1117] Although the essay writers do not really engage each other directly, I think the best way to view the handbook is as an invitation to readers to flesh out implicit conversations in the essays. I divide the rest of this note as follows. In the next section, I raise two areas of common ground in law and courts on which scholars might engage each other across the subfields. Admittedly, my training in comparative political institutions limits the dialogues that I see. I have targeted issues that influence, in the broadest sense, concerns over the rule of law. No doubt, I will have missed many important points of concern. Yet if the number of unresolved issues that I see in the literatures that I know relatively well is a reflection of these issues in the general field, I expect that scholars outside comparative politics will find much to stimulate them. In the conclusion, I return to the editor’s first goal, the conceptual map, and consider it with respect to Oxford’s interest in shaping the discipline. While I appreciate the editor’s framework, the field definition risks failing to articulate the importance of law and politics scholarship for political science, and the volume’s organization reinforces this issue. It is not that big implications are omitted, but rather that they could be highlighted better.

Avenues of Engagement
Some of the most intellectually stimulating moments on the job occur at faculty workshops or job talks where the research subject is outside your area. Learning that someone else thinks about a particular research problem in roughly the same way as you think about an analogous yet distinct research problem is exciting and reassuring. But it is even better when you see someone work through a problem in a way that provides material assistance to your own struggles. In large part, the handbook serves this purpose. I am anxious to get to work on my own research in light of what I have read from other scholars. I am also excited about the opportunity to reach out to people outside my subfield in an effort to collaboratively advance shared research questions. In what follows, I suggest two possibilities for collaboration.

Procedural Fairness and Compliance
One avenue for fruitful inter‐subfield engagement involves placing the law and psychology literature summarized by Tom Tyler in direct dialogue with the literatures on the rule of law and international law, summarized by Rebecca Chavez and Beth Simmons, respectively. The most conspicuous issue involves compliance. The approach Tyler describes affords significant causal weight to the internalization of beliefs in the legitimacy of authorities, the basis of which lies in perceptions of procedural fairness. We obey the law not when we believe compliance is in our immediate or even long‐term interests, but because we believe that the procedures authorities use are essentially fair. This perception induces a belief in the legitimacy of those authorities, which compels compliance as an appropriate moral choice.

The concept of compliance is essential to the rule of law. There can be no meaningful legal constraints on the state, no real judicial remedies for illegal state actions, if political figures refuse to comply with unfavorable decisions. Yet, the models Chavez summarizes largely ignore the procedural fairness approach to compliance in psychology. Instead, [*1118] causal mechanisms turn on expectations about substantive outcomes. Like much of the rule of law literature, popular accounts of compliance in international relations draw on rationalist models of state behavior, which do not make use of the legitimacy concept (e.g. Morrow 2002; Simmons 2002). On the other hand, a rich constructivist tradition in international relations suggests that compliance flows from an internalization of norms of system legitimacy. Nevertheless, it is not clear that the procedural fairness mechanism has penetrated constructivist theories of compliance. So, there is reason to believe that a fruitful conversation awaits.

Consider the rule of law literature first. A preliminary step will involve thinking through an obvious conceptual difference between its research subjects and those in law and psychology. Whereas the psychology literature deals with mass compliance in society, the rule of law literature is concerned mostly with compliance among elites, power holders in particular. We might ask whether this difference in research subjects is material. Can we gain leverage in understanding elite compliance by appealing to models of procedural fairness? What special problems emerge if we do? For example, is it the perceptions of procedural fairness among democratic elites that matters, or should we be focusing on beliefs in the electorate? The latter approach is broadly consistent with the public support models of judicial power summarized in Vanberg’s contribution, but perhaps we should be focusing on elites themselves.

A dialogue between the international relations literature and the literature on law and psychology confronts the same research subject problem. If that problem could be resolved satisfactorily, we might suspect that the constructivist literature would be a natural place to begin the conversation. The most exciting possibility is that the procedural fairness approach could give more precise shape to the process by which international norms are internalized. Rather than focusing on the special substantive qualities of the legal norms with which states are supposed to comply (as in Hawkins 2004 or Keck and Sikkink 1998), perhaps the focus should be on the process by which these norms are adopted and/or subsequently vindicated.

Turning our attention to the law and psychology literature itself, we might wonder if the rule of law models Chavez summarizes can inform the law and psychology understanding of compliance. It is one thing to know that beliefs about procedures drive compliance. It is quite another thing to know from where these beliefs in fair procedures derive. And it seems quite possible that perceptions could be tied to the interactions between courts and governments around which the rule of law literature revolves. At the very least, it seems plausible that individuals in a society characterized by high levels of institutionalized corruption might not believe that objectively fair procedures are genuinely fair.

Reconciling Models of Judicial Independence
Another subject of shared interest deals with questions of judicial empowerment and the subsequent use of independent [*1119] judicial power. Why do politicians delegate political authority to judicial institutions? Why do courts exercise their powers independently? These questions are front and center in the essays on judicial independence in law and comparative judicial politics, authored by Frank Cross and Georg Vanberg, and in Tom Ginsburg’s essay on constitutional review. Also, the concept of judicial independence is a key element of the judicialization of politics story as told by Ran Hirschl. Even the story Beth Simmons tells about states’ compliance with their international law obligations involves assumptions about judicial independence. The possibility for fruitful collaboration is obvious, and due in no small part to an existing interdisciplinary commitment to these research questions.

Over the past three decades, we have made considerable progress resolving key conceptual issues related to judicial independence. Definitional ambiguity was once severe, but we now largely have a shared understanding of judicial independence. Authors have one of two concepts in mind. They either wish to describe a world in which judges are free from undue interference in their decision‐making process, so that they can be the “authors of their opinions” (Kornhauser 2002); or, they wish to describe a world in which judges are not only autonomous but able to definitively resolve policy conflicts – they are powerful (Cameron 2002). Further, we also largely agree that there is a tradeoff between judicial independence and judicial accountability. For this reason, more judicial independence is not always desirable. Beyond these conceptual issues, the field also has produced numerous theoretical explanations for the empowerment of courts and for their exercise of independent authority. In fact, so much ink has been devoted to judicial independence over the past three decades, one is inclined to call the subject closed and move on to issues that have received less attention. My reading of the handbook suggests that this would be a significant error.

There are a number of challenges to meet, but in the interests of space, I will focus on one. We are in serious need of real theoretical integration, as Vanberg suggests in his essay. Specifically, the empowerment stories are not easily reconciled with the models of independence. For example, consider the standard credible commitment argument for judicial empowerment. A powerful actor that is essentially unconstrained by competing political rivals empowers a court to solve its inability to credibly commit to respecting property (or other) rights. This argument must anticipate a future world in which the newly empowered court is independent in the Cameron sense. Otherwise, the court’s formal empowerment would not induce the credibility for which the state is looking.

As Chavez and Vanberg note, the well‐known political fragmentation argument about judicial independence suggests that independence increases in the number of veto players. In so far as the credible commitment story operates most persuasively in a single veto player world, the fragmentation argument suggests that the newly empowered court is unlikely to be powerful. If this is true, then the central logic of the credible commitment empowerment story is undermined. It is worth asking whether [*1120] these two arguments can be reconciled. There are many other puzzles of this sort that emerge if we place the various arguments Vanberg summarizes up against each other. Until we sort out these puzzles effectively, I would not recommend moving on to different subjects. The good news is that we have numerous scholars who seem to be interested in the subject. For this reason, I am hopeful that the process of integration will be fruitful.

Law and Politics and Political Science
The primary goal of the Oxford series is to shape the discipline of political science. By launching new conversations among law and courts scholars, this handbook will serve that cause well. If I could change one thing about the volume, however, it would be this. I would have liked the editors to make a stronger case in the introduction for the critical role of law and courts scholarship in the larger discipline. Practitioners surely see multiple reasons why understanding law and courts is useful for explaining broader political phenomena, and many of those reasons are found in the volume’s contributions. So it is not that the editors do not expose us to important implications. They do. The issue I am identifying is about where, when and how they emerge.

Consider the first three chapters. In the introduction, the editors suggest that in the field of law and politics, political models of human behavior help enlighten our understanding of law. In this sense, law and politics is analogous to law and economics or law and psychology. As Martin Shapiro notes in his delightful final essay on boundary problems in law and courts, the intellectual flow runs from economics to law and from psychology to law in those fields and not the other way around. So, if law and politics is like law and economics, then it is political science theory that is informing our understanding of law and not vice versa. I do not believe that law and politics is limited in this way or should be limited in this way. I doubt that the editors would disagree. Nevertheless, the impression suggests itself as one reads the first part of the handbook.

The second and third chapters, which review models of judicial decision‐making, reinforce the “law and politics” as “law and economics” frame. The first, written by Jeffrey Segal, and the second, written by Pablo Spiller and Rafael Gely, provide clear and succinct summaries of their subjects. In a fundamental sense, they are excellent review essays. What they do not do, however, is articulate why it matters whether judges are guided by their role perception or their ideology or whether they are strategically prudent on occasion. If our field is really about law only, then I think it is perfectly defensible to develop good models of judicial decision‐making and call it a day. But this is not what our field is about, and it is not why we model decision‐making.

We want good models of judicial decision‐making because we want to answer broad questions in political science. Our models of judicial behavior matter because they inform the answers we want to give to questions about whether law can produce social change, whether courts can help governing coalitions manage political instability, whether judges can help create conditions for order and economic [*1121] development, and many other inquiries of major political relevance. These are big questions in our field and our scholarship is critical to answering them.

Later in his essay, Shapiro reminds us that the scope of law and politics can be and probably should be broader than what the editors’ definition might suggest. Indeed, he argues that most scholars who include themselves in the law and politics camp joined because they thought that their understanding of the law would help enlighten their understanding of politics. One is tempted to conclude that where Whittington, Kelemen and Caldeira see the political study of law, Shapiro sees a field in which this endeavor is paired with the legal study of politics.[ftn1] I suspect that the editors would not quarrel with the broader view of the field, and certainly not with the relevance of law and politics to political science generally. Their own excellent research suggests otherwise. And as I say, the volume is brimming with big implications. Still, I would like to see them framed more clearly.

For me, the bottom line is this. I am more excited about our field than I was before reading the handbook. I am anxious to get back to work on the problems the handbook addresses. I would strongly recommend purchasing it and using it in your classes. I surely will.

NOTES:
1 Shapiro sees to overlapping subfields of law and politics. One, law and politics, deals with political decision making that is constrained significantly by legal rules. This field might include studies of agency decision‐making or detailed analysis of congressional statutes in addition to the more constrained areas of judicial behavior. The second, law and courts, largely deals with relatively judicial behavior, especially in the context of judicial lawmaking.

REFERENCES:
Cameron, Charles M. 2002. “Judicial Independence: How Can You Tell It When You See it? And, Who Cares?” In JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH, ed. Steven B. Burbank and Barry Friedman. New York: Sage Publications Inc. pp.134-147.

Hawkins, Darren. 2004 “Explaining Costly International Institutions: Persuasion and Enforceable Human Rights Norms.” INTERNATIONAL STUDIES QUARTERLY. 48: 779-804.

Kornhauser, Lewis A. 2002. “Is Judicial Independence a Useful Concept?” In JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH, ed. Steven B. Burbank and Barry Friedman. New York: Sage Publications Inc. pp.45-55

Morrow, James. 2002. “The Laws of War, Common Conjectures, and Legal Systems in International Politics.” JOURNAL OF LEGAL STUDIES 33: 41-60.

Simmons, Beth. 2002. “Capacity, Commitment, and Compliance: International Institutions and Territorial Disputes.” JOURNAL OF CONFLICT RESOLUTION 46: 829-856. [*1122]

Keck, Margaret and Kathryn Sikkink. 1998. ACTIVIST BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS. Ithaca: Cornell University Press.

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© Copyright 2008 by the author, Jeffrey K. Staton.

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INTERDISCIPLINARITY IN LEGAL SCHOLARSHIP

Wendy L. Martinek, Binghamton University. Email: martinek [at] binghamton.edu.

pp.1111-1115

It is surely a Sisyphean task to identify and elucidate the various strands of scholarship that fall under the rubric of law and politics. The research that can be reasonably gathered under this organizational heading continues to proliferate, producing an ever more diverse literature such that there will undoubtedly be many “new” areas that could merit their own chapters in any future edition of THE OXFORD HANDBOOK OF LAW AND POLITICS. The kind of synthesis – or, more accurately, syntheses – represented by the chapters in THE OXFORD HANDBOOK reflect the careful thinking and writing of a collection of the finest scholars working in the law and politics métier. Of special interest to me is what the entries in this book – individually and collectively – tell us about the interdisciplinary nature of law and politics scholarship.

There is certainly an allure to the term “interdisciplinary.” It sounds intellectually weighty and broad-minded. (And, who wouldn’t want to be considered broad-minded?) What exactly constitutes interdisciplinary scholarship, however, is rarely made clear in discussions about the relative merits of such work compared to work that is grounded in a particular discipline (such as political science).[ftn1] As a general description, interdisciplinary research might be characterized as scholarship that draws from two or more disciplines to examine a phenomenon of interest. To be truly interdisciplinary, presumably the work must integrate the theories and/or tools of each of the relevant disciplines. In the absence of a true synthesis, the work might be described as multidisciplinary but surely not as interdisciplinary. But “if there is too much overlap in examined questions and methodology, then the multiple disciplinary perspectives become redundant and no new insights can be gained from the exchange” (Dau-Schmidt 2004: 200). In other words, valuable interdisciplinary work will integrate complementary but distinct aspects of two or more disciplines.

A hidden-in-plain sight complication is determining what constitutes a separate discipline. Exactly how distinct must the two or more disciplines (from which the purported interdisciplinary scholarship is drawing) be for the research in question to be considered interdisciplinary and not intradisciplinary?[ftn2] On its face, a collaboration between an artist and a biologist on the form and function of bird wings may be considered interdisciplinary.[ftn3] But, for example, are social psychology and psychological sociology separate fields or simply subfields of social psychology (Sewell 1989)? No doubt those who labor in the field of social psychology have strong opinions on this and, not being either a social psychologist or a psychological sociologist, I would defer to them on this point. But such thoughts do lead me to wonder if, indeed, law is a discipline separate from other disciplines [*1112] that include the study of law, legal processes, legal actors, etc.

Even a casual reader of the chapters on law and economics (Kornhauser), law and psychology (Tyler), and law and history (Tomlins) – all of which appear in Part IX “Interdisciplinary Approaches to Law and Politics” – will come away with some sense of what might reasonably be seen as an economic or psychological or historical approach to the study of some aspect or aspects of law. But we can consider these interdisciplinary approaches only by assuming that law is a separate discipline.[ftn4] Setting aside the study of and training in the actual practice of law, however, I respectfully submit that law is not a separate discipline unto itself. There is no unique theoretical focus or particular methodological tool that demarcates law from other disciplines.[ftn5] And scholarship that examines law through the lens of only one discipline – no matter how finely crafted and insightful – cannot be properly understood as interdisciplinary.[ftn6]

When I began work on this short contribution to the symposium devoted to THE OXFORD HANDBOOK OF LAW AND POLITICS, I initially thought I would be writing a piece that extolled the virtues and contributions of interdisciplinary legal scholarship, rife with examples drawn from the extant literature. While I am quite convinced that interdisciplinary work (if executed well) is virtuous and that it can make important contributions, I have come to the conclusion that only a small proportion of the work devoted to the law and legal phenomenon that is commonly labeled as interdisciplinary truly is so.[ftn7] The more I read purported examples of interdisciplinary work, the more I found that the work was really examining the law from one or another disciplinary basis. And it was difficult to discern what was uniquely from the “discipline of law.” There is, of course, interdisciplinary legal work ;[ftn8] just not as much of it as I originally thought there was.

This is a pity since, as Scheingold asserts, “In the academic world, disciplines are very decidedly the ties that bind – and often that blind” (2008: 2). And that is exactly why the paucity of real interdisciplinary legal scholarship is unfortunate. As Dau-Schmidt observes:

In making abstractions from reality that allow insight into a problem, all social scientists need to be mindful of the limitations of their analysis and to adapt that analysis when the essential features of the problem exceed the capacity of their model. Talking to scholars in other disciplines, or reading their work, is one of the best ways to learn about the limitations of your own analysis and to find ways to address the problem (2004: 205).

Interdisciplinary work, if done well, has the very practical and salutary effects of improving the quality of our theorizing and enhancing the models we construct, thereby advancing the state of our knowledge. Encouraging it, then, is a good thing.

Beneficent effects notwithstanding, interdisciplinary work is notoriously difficult to sustain as an intellectual program over the long term (see, e.g., Harty and Modell 1991; Sewell 1989).[ftn9] Others have catalogued a [*1113] plethora of reasons for this (e.g., Scheingold 2008; Sewell 1989). These reasons include professional rivalries, with members of various subfields jealously guarding their turf. Institutional organization also matters, as most universities are structured primarily as collections of separate disciplines.[ftn10] And, of course, there is the simple matter of developing the necessary human capital.[ftn11] It is not enough to merely bring together a group of people from different disciplines who share common interests. There must be a willingness on the part of scholars not only to bring their vocabulary, theories, and methods to the table but also to consume the vocabulary, theories, and methods brought to the table by scholars from other disciplines. As Kramer asserts, interdisciplinary research “is perfectly possible, but one cannot get it just by mixing the different people [from different disciplines] together. One must mix the disciplines together in one human brain, so to speak” (1959: 565). And this is not an easy thing to do since the academic reward structure is not a clean fit with the structure of interdisciplinary research. For example, with notable exceptions such as LAW & SOCIETY REVIEW, most journals are discipline specific. But the difficulty of fostering a sustained interdisciplinary research agenda is not a reason to avoid making the effort. Doing so successfully necessitates, I suspect, being quite a bit clearer about what we mean by interdisciplinary legal research.

There is one additional point that THE OXFORD HANDBOOK OF LAW AND POLITICS brought to mind and that I think is worth mentioning here. Political scientists studying law and legal processes are often wont to don a hair shirt and cilice regarding our failure to make our scholarship relevant to those outside of our “narrow” little field. But even a casual perusal of the chapters in this book should make two things clear. First, the field of law and politics is anything but narrow. There may be, as Martin Shapiro argues in his contribution to this volume, a disproportionate emphasis on law and courts in the law and politics field. But the breadth of actors, institutions, products, and processes examined by law and politics scholars is astounding. Second, much of the law and politics research is self-evidently relevant to those who identify themselves as legislative specialists, interest group analysts, social movement scholars, etc. If it is true, as it undoubtedly is, that law and politics scholars could do more to make this relevance clear, their duty to do this is no greater than the duty of scholars in other subfields of political science to make the relevance of their scholarship clear to others (including to law and politics scholars). And it is far from self-evident that law and politics scholars currently do any better or worse at this than non-law and politics scholars. And, so, wearing a hair shirt or a cilice rather than a hair shirt and calice might well suffice.

In one of the last chapters in this volume, Stuart Scheingold recalls his days as a graduate student at Berkeley as a means of communicating a sense of what “public law” entailed at that time. Scheingold reports thinking about “public law” then as “that forbiddingly opaque and never elucidated designation” (739). No doubt many graduate students in many fields still struggle with understanding the nature and substance of the intellectual [*1114] endeavor that characterizes their respective disciplines. Students of law and courts now have an advantage in this regard. Though it may not be able to elucidate the designation of “law and politics” to everyone’s satisfaction, THE OXFORD HANDBOOK OF LAW AND POLITICS does much to make the study of law and politics a great deal less opaque.

NOTES

1. A notable exception is Lynn Mather’s contribution to this volume regarding the law and society field.
   
   
2. This is a lot like asking how substantial the effect of purely intrastate commerce must be on interstate commerce for its regulation to fall under federal Commerce Clause authority.
   
   
3. Or perhaps not if they collaborate on the collection of bird photographs but the artist goes on to use them for an art installation and the biologist goes on to use them to create a forensic record. There is scant synthesis there.
   
   
4. Mather’s chapter is a bit different in this regard. As Mather notes, “the law and society field lacks clear boundaries to separate its interdisciplinary perspective from the other disciplines” (692) but the work that she cites as examples of law and society scholarship all draw on two or more distinct disciplines, making law and society research perhaps some of the most truly interdisciplinary work of all the scholarship that claims that title.
   
   
5. Tomlins (2000) offers a diametrically opposed view that is worth reading for both the substance of his argument and the intellectual history it provides. See, also, Martin Shapiro’s contribution to The Oxford Handbook.
   
   
6. This is akin to referring to work that examines the political institutions or behavior in one country, as long as it is not the United States, as comparative politics scholarship.
   
   
7. Interestingly, some of the work that is really interdisciplinary, such as economic analyses of the political decision making of judges that takes into account the cognitive limitations of decision makers, is only rarely referred to as interdisciplinary.
   
   
8. An excellent example is the line of research that draws from both economic theory and psychology (behavioral economics) to understand the decision making of juries.
   
   
9. This does not mean that it is impossible, as the longevity and robustness of the law and society field attests (Scheingold 2008).
   
   
10. Interdisciplinary programs abound but they remain a minority in a sea of discipline-based departments.
    
    
11. Another difficulty sometimes identified is the lack of financial support for interdisciplinary work. That difficulty is substantially ameliorated by the Law and Social Science Program of the National Science Foundation since this program’s mission explicitly includes fostering interdisciplinary – or, at least, multidisciplinary – research on the law. [*1115]

REFERENCES:
Dau-Schmidt, Kenneth G. 2004. “Pittsburgh, City of Bridges: Developing a Rational Approach to Interdisciplinary Discourse on Law.” LAW & SOCIETY REVIEW 38: 199-206.

Harty, Martha and John Modell. 1991. “The First Conflict Resolution Movement, 1956-1971: An Attempt to Institutionalize Applied Interdisciplinary Social Science.” JOURNAL OF CONFLICT RESOLUTION 35: 720-758.

Kramer, Robert. 1959. “Some Observations on Law and Interdisciplinary Research.” DUKE LAW JOURNAL 1959: 563-570.

Monroe, Kristen Renwick. 2002. “Interdisciplinary Work and a Search for Shared Scientific Standards.” P.S.: POLITICAL SCIENCE AND POLITICS 35: 203-205.

Scheingold, Stuart A. 2008. “Home Away from Home: Collaborative Research Networks and Interdisciplinary Socio-Legal Scholarship.” ANNUAL REVIEW OF LAW AND SOCIAL SCIENCE 4: 1-12.

Sewell, William H. 1989. “Some Reflections on the Golden Age of Interdisciplinary Social Psychology.” ANNUAL REVIEW OF SOCIOLOGY 15: 1-16.

Tomlins, Christopher. 2000. “Framing the Field’s Disciplinary Encounters: A Historical Narrative.” LAW & SOCIETY REVIEW 34: 911-972.

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© Copyright 2008 by the author, Wendy L. Martinek.

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LAW, POLITICS, AND POLITICAL SCIENCE

Thomas M. Keck, Syracuse University. Email: Tmkeck [at] maxwell.syr.edu.

pp.1103-1110

The OXFORD HANDBOOK OF LAW AND POLITICS is a fabulous collection of essays. Its forty-five chapters include something for everyone in the law-and-courts community. In fact, despite my repeated efforts to prepare for this essay by focusing on the chapters most relevant to my own research on the Supreme Court and American constitutionalism, I kept getting distracted by excellent chapters on comparative and international law, particularly the contributions by Kim Lane Scheppele (on extralegal emergencies), Karen Alter (on the European Court of Justice), Tom Ginsburg (on the global spread of judicial review), and Ran Hirschl (on the worldwide judicialization of politics).

Other readers will rightly praise different aspects of the collection, but I would like to emphasize several chapters that, taken together, make a strong case for the independent significance of law and legal institutions in shaping American politics. Distilling the key contributions of a wide range of literatures, these chapters make clear, first, that courts play an influential role in policy change and political development, and second, that their performance of this role is shaped in important ways by distinctive legal norms and commitments. Put another way, these chapters emphasize the multiple ways in which law influences the decisions of judges, the actions of other lawmakers, the outcomes of policy processes, and the trajectory of political conflicts. This research paradigm has the distinct advantage, from my perspective, of accurately characterizing the significance of legal phenomena that have sometimes been neglected or misunderstood. In addition to its substantive merits, this research agenda has the potential to encourage greater attention from the broader discipline of political science to legal ideas, legal actors, and legal institutions. But this potential will only be realized if the broader discipline is aware of this research, and on this count, the Oxford Handbook series is a mixed bag.

One of the great strengths of the law and politics handbook is its broad representation of each of the three principal paradigms of empirical research in contemporary political science: large-n behaviorism, rational choice modeling, and historical institutionalism. After an opening essay by the editors, a section on “Approaches” presents three chapters, each of which surveys one of these three paradigms as it has been deployed in the field of law and courts. And in the forty-one more narrowly focused chapters that follow, each of the three paradigms shows up repeatedly. But in the other volumes of the Oxford Handbook series – many, if not all, of which cover territory that is of interest to (some) law-and-courts scholars, the subfield has been less than fully represented.

Consider, first, several chapters from the law and politics volume. In “Historical [*1104] Institutionalism and the Study of Law” – one of the broad paradigm chapters that opens the book – Rogers Smith briefly surveys the disciplinary origins of, and recent theoretical advances in, the historical institutionalist wing of political science and the distinctive ways in which law-and-courts scholars have made use of this approach. Smith makes a strong pitch for continued attention to the distinctive role of legal ideas in shaping judicial behavior in particular and political development more broadly. Among other things, he notes, the failure to attend to such relatively autonomous “normative orders” risks “undue minimization of the role of courts in politics” (p.55). In a closely related chapter on “Law and Political Ideologies,” Julie Novkov examines “the relationship between law and ideas in the historical process of constitutional and legal change” (p.627). Drawing on recent historical institutionalist accounts of several noteworthy lines of nineteenth- and twentieth-century constitutional development, Novkov argues that extant political “ideology[ies] shape[] the way courts make decisions, providing boundaries or frameworks within which decisions are made.” In addition, with the causal arrows running the other direction, she emphasizes that “the language of judicial decisions themselves can generate ideological change” (p.628).

In a chapter on “Courts and the Politics of Partisan Coalitions,” Howard Gillman surveys the contemporary literature on regime politics and the courts. The primary theme of this literature is that governing coalitions use judicial institutions to promote their own partisan and policy ends, but as Gillman makes clear, the distinctive features of courts shape both the nature and degree of the coalitions’ success in this regard. Indeed, the regime politics literature has documented a variety of “circumstances or conditions that would allow judges to promote unexpected agendas” – for example, when they are addressing an issue that “central decision-makers in the regime care little about,” one on which regime leaders are genuinely divided, or one on which “judges [have] arrive[d] at some independence by virtue of internalizing their legal training and taking seriously the distinctive institutional ‘mission’ of the judiciary” (pp.656-7). Mark Graber explores similar themes in “Constitutional Law and American Politics,” emphasizing the multifarious ways in which constitutional norms structure political and legal conflicts, without dictating the specific outcome of those conflicts. Citing a range of contemporary literature on constitutional development, Graber notes that “[i]deology often explains the differences between persons engaged in a constitutional debate, but law usually explains the debate they are having” (p.310). He argues that judges and legislators alike “act on the basis of constitutional visions that structure their policy choices” (p.317) and that “institutional affiliations influence constitutional decision-making” by fostering particular constitutional visions among judges that are less prevalent among legislators (and vice versa) (pp.314-15). He ends by calling for greater scholarly attention to the nature and value of the distinctive constitutional principles that tend to be disproportionately held by judges.

In addition to the Smith-Gillman-Graber-Novkov school of constitutional development, the scholarly tradition of [*1105] legal mobilization is also well represented in the volume. Among political scientists, this interdisciplinary tradition is associated most closely with Michael McCann, and his chapter provides a wonderfully clear and concise survey of its 35-year history. Among the many lessons of this research, McCann notes, is the observation that ordinary citizens, left to their own devices, “rarely mobilize law,” usually responding to legally cognizable injuries by deciding to “lump it” rather than to litigate (p.531). But despite this widespread and realistic sense that the formal legal system is stacked against ordinary folks, legal mobilization scholars have repeatedly found circumstances in which “subaltern groups and relatively powerless citizens [have the capacity] to mobilize the law against more powerful groups and status quo relations,” particularly when the ordinary citizens are effectively mobilized by organized interest groups (p.525). Surveying this same line of research in a separate chapter on “Law as an Instrument of Social Reform,” Charles Epp notes that legal mobilization scholars have often shown that “judicial decisions (and law more broadly) [are] potentially effective in contributing to long-term social changes” (p.603). As a result, “court-structured law may have a broader social-reform impact than once thought” (p.597). Exploring some related themes, Scott Barclay and Susan Silbey mine the literature on legal consciousness to develop an original account of the impact of legal mobilization in prompting otherwise unresponsive legislative institutions to enact policies supported by the public. Most of the scholars cited by McCann, Epp, Barclay and Silbey would identify themselves as “law and society” scholars rather than historical institutionalists, but the two communities share overlapping memberships and a number of methodological and substantive commitments, and McCann ends his chapter by calling for greater integration between the two approaches (p.535).

All of the chapters I have mentioned here assert the broad political significance of legal ideas, legal actors, and legal institutions. Graber argues that “[c]onstitutions and constitutional law consistently secure agreements where agreements would otherwise not exist” (p.305). Smith notes that judges often have “some relative autonomy from broader political forces, indeed real power to affect political results” (p.48). McCann insists that “legal mobilization is one of the most important but least studied modes of citizen participation in the U.S. political system and perhaps around the world” (p.527). And Hirschl suggests that “[t]he judicialization of politics – the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies – is arguably one of the most significant phenomena of late twentieth and early twenty-first century government” (p.199). If these claims are right, then the literatures surveyed in these chapters are relevant not just to the law-and-courts community but to the broader discipline of political science. Gillman makes this point most explicitly, opening his chapter by noting that “[o]ne of the most promising ways of integrating the study of law and courts into the mainstream of political analysis is to focus more attention on how legal institutions figure into the broader interests and agendas of other power holders,” and closing it by calling for “scholars across various [*1106] fields . . . to reintegrate courts into the broader analysis of political systems” (pp.644, 658).

Unfortunately, the law and politics handbook is likely to draw attention only from specialists, and law-and-courts research is not well-represented in the other volumes in the Oxford Handbook series. As summarized on Oxford’s website, The OXFORD HANDBOOKS OF POLITICAL SCIENCE is a ten-volume series that purports to serve as “the essential guide to the state of political science today.” Readers of LAW AND COURTS should all be pleased that one of these ten volumes has been devoted to law and politics, and that the editors of this volume have so ably assembled a collection that captures the full range of the law-and-courts subfield. But we might well be concerned about the representation of the subfield in the other nine volumes.

The handbooks of political behavior, public policy, and contextual political analysis have no entries from the field of law and courts. The handbook of comparative politics has one chapter (out of 38 total) on “Comparative Judicial Politics”; the handbook of international relations has one (out of 44) on “International Law”; and the handbook of political methodology has, by my count, just one chapter (out of 37) that is authored by a law and courts scholar. The other volumes do somewhat better in covering our subfield, but not much. The handbook of political economy has one chapter on “The Judiciary,” as well as several chapters on constitutional theory. The handbook of political theory has an entry on “Constitutionalism and the Rule of Law” as well as several chapters on topics that are related to the field of law and courts, including rights, liberty, and equality. And the handbook of political institutions has two chapters on constitutions and two others on judicial institutions. It is hard to say whether these numbers represent an adequate allocation. Given the ambitious scope of these volumes, their editors faced a daunting task, and I’m confident that every member of the discipline could identify important topics that were left under-examined. More important than the number of chapters devoted to law and courts, however, is the limited range of research that these chapters have covered.

Consider THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, published in 2006. The editors of this volume present its 38 chapters as a collective effort to survey “the origins, evolution, and impact of institutions on politics and policy alike” (p.xvi), but the research paradigm I have surveyed here – the large body of literature relying principally on interpretive and historical methods to document the independent political significance of law and legal institutions – goes almost entirely unmentioned in the volume.

In a chapter on “Historical Institutionalism,” Elizabeth Sanders includes one brief (and favorable) reference to contemporary studies of constitutional development, citing Ken Kersch’s award-winning CONSTRUCTING CIVIL LIBERTIES. In a chapter on “Analyzing Constitutions,” Peter M. Shane likewise offers praise for contemporary historical institutionalists who seek “to show how the attitudes of legal actors, especially judges, are shaped not only by individual preference, but also by the institutions [*1107] through which these actors operate and the relationship of those institutions to others” (2006, 192). But Sanders focuses almost entirely on historical institutionalist studies of legislative and executive institutions (and the social movements that have shaped them) and Shane focuses almost entirely on conventional legal scholarship.Neither devotes more than a paragraph to historical institutionalist studies of constitutional development. Josep M. Colomer’s chapter on “Comparative Constitutions” does not mention such work at all.

Two chapters on judicial institutions devote sustained attention to the central questions that are present throughout the law and politics volume, but they too largely ignore the research traditions that I have emphasized here. In a chapter on “The Judicial Process and Public Policy,” Kevin McGuire (2006, 536) examines more or less the same question as Epp – “Are judges capable of actually producing changes within society?” – but presents a strikingly different picture of the state of contemporary research on this question. Relying extensively on Donald Horowitz’s 1977 THE COURTS AND SOCIAL POLICY and Gerald Rosenberg’s 1991 THE HOLLOW HOPE, McGuire emphasizes the limited ability of courts to implement their decisions. On his account, “[t]he very nature of adjudication . . . serves as a serious limitation on the extent to which courts can generate meaningful legal change” (2006, 539). These constraints include the fact that “adjudication tends to focus on a limited range of policy alternatives” – that is, those presented by the two litigants – and that judges are generally presented with “only limited amounts of information upon which to base decisions.” To make matters worse, judges “have little capacity to summon additional information” that might help, and they have “no formal mechanism by which [they] can examine the ongoing impact of their policies.” In addition, “policy-making through adjudication requires that judges be presented with a genuine legal controversy that plainly presents the issues that judges wish to address. Stated differently, courts do not speak until spoken to” (2006, 540-2).

As is common with this sort of judicial impact scholarship, McGuire contrasts this cramped reading of judicial capacity with an expansive vision of legislative capacity: “When Congress seeks to develop new policies in telecommunications or agriculture or foreign policy, it gathers information, conducts committee hearings, and considers testimony for various affected interests.” Unlike judges, elected legislators “routine[ly] . . . seek to gather as much information and analysis as they deem useful on the impact of various policy alternatives.” They are “free to consider what policies they regard as most sensible, even if those policies constitute major departures from the status quo.” They commonly define the terms of art used in their policies, thereby “reduc[ing] ambiguity and allow[ing] for a common understanding of the meaning of policy enactments,” and they “need nothing beyond their own initiative to stimulate policy change. They may promote reform whenever they see fit” (2006, 540-1). As McGuire himself acknowledges at the end of the chapter, this is an overly romantic account of the legislative process in the U.S. Congress (2006, 550). As a result, McGuire’s conclusion that “courts require considerable [*1108] cooperation and support from other actors as a condition for effective policy-making” is not wrong, but neither does it distinguish courts from other institutions (2006, 546).

Toward the end of the chapter, McGuire notes in passing “that the role of courts around the world is . . . expanding, with judges assuming an ever increasing scope of influence” (2006, 550), and James Gibson opens his chapter on “Judicial Institutions” by noting that “[l]egal institutions throughout the world have become increasingly powerful” (2006, 514). Gibson closes with an even stronger assertion that “[l]aw and courts are not marginal to politics; they are central, and this is increasingly being understood by the entire discipline of political science” (2006, 531). But neither McGuire nor Gibson offer any examination of the mechanisms of judicial influence on policy and politics. The central thrust of McGuire’s chapter is to show that judges face daunting “institutional constraints that limit their policy ambitions” (2006, 536), and Gibson’s chapter focuses primarily on the question of judicial decision-making. On Gibson’s account, such decision-making is primarily a function of judges’ ideological preferences, tempered by their views of appropriate judicial behavior and by their understandings of other significant actors’ views about appropriate judicial behavior. He notes that “the single-minded pursuit of policy goals may on occasion threaten the legitimacy of a court, and therefore judges will act to protect the institution rather than maximize policy preferences” (2006, 522).

Despite its clear relevance to this argument, Gibson does not engage with the Smith-Gillman-Graber-Novkov line of research, apparently because of a fundamental methodological divide. (He notes that “the empirical question of how . . . beliefs about proper behavior influence actual decision-making can only be resolved through careful empirical analysis, based mainly on positivist methods” (2006, 521).) Likewise, the authors of the one chapter on law and courts in The OXFORD HANDBOOK OF COMPARATIVE POLITICS – John Ferejohn, Frances Rosenbluth, and Charles Shipan – attend almost solely to research using formal or statistical methods, despite the clear relevance of a variety of interpretive and historical works to their central thesis that political fragmentation increases judicial independence. This methodological divide – which James Mahoney and Gary Goertz (2006) have characterized as a tale of two distinct cultures – shows up in the law and politics handbook as well, with chapters by Jeffrey Segal, Lee Epstein, and others dismissing certain qualitative and interpretive lines of research out of hand.

One of the great virtues of the volume, as I noted at the outset, is the extent to which its forty-five essays collectively represent the diverse range of research that makes up the subfield. In addition to the constitutional development and legal mobilization scholarship that I have emphasized here, the research summarized elsewhere by McGuire, Gibson, Ferejohn, Rosenbluth, and Shipan is also well represented in the law and politics handbook, as well it should be. But the research summarized by Smith, Novkov, Gillman, Graber, McCann, Epp, Barclay, and Silbey is not well represented in the other handbooks. In short, the editors of THE OXFORD [*1109] HANDBOOK OF LAW AND POLITICS have done an admirable job of surveying, summarizing, and (by implication) praising the methodological pluralism of the subfield, but the message may not be getting out.

REFERENCES:
Alter, Karen J. 2008. “The European Court and Legal Integration: An Exceptional Story or Harbinger of the Future?” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 209-28.

Barclay, Scott, and Susan S. Silbey. 2008. “Understanding Regime Change: Public Opinion, Legitimacy, and Legal Consciousness.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 663-78.

Colomer, Josep M. 2006. “Comparative Constitutions.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 217-38.

Epp, Charles R. 2008. “Law as an Instrument of Social Reform.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 595-613.

Ferejohn, John; Frances Rosenbluth; and Charles Shipan. 2007. “Comparative Judicial Politics.” In THE OXFORD HANDBOOK OF COMPARATIVE POLITICS, ed. by Carles Boix and Susan C. Stokes. New York: Oxford University Press, 727-51.

Gibson, James L. 2006. “Judicial Institutions.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 514-34.

Gillman, Howard. 2008. “Courts and the Politics of Partisan Coalitions.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 644-62.

Ginsburg, Tom. 2008. “The Global Spread of Constitutional Review.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 81-98.

Graber, Mark A. 2008. “Constitutional Law and American Politics.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 300-320.

Hirschl, Ran. 2008. “The Judicialization of Politics.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 119-141. [*1110]

Kersch, Ken. 2004. CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW. Cambridge: Cambridge University Press.

Mahoney, James, and Gary Goertz. 2006. “A Tale of Two Cultures: Contrasting Quantitative and Qualitative Research.” POLITICAL ANALYSIS 14 (Summer): 227-49.

McGuire, Kevin T. 2006. “The Judicial Process and Public Policy.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 535-554.

Novkov, Julie. 2008. “Law and Political Ideologies.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 626-43.

Sanders, Elizabeth. 2006. “Historical Institutionalism.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 39-55.

Scheppele, Kim Lane. 2008. “Legal and Extralegal Emergencies.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 165-84.

Shane, Peter M. 2006. “Analyzing Constitutions.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 191-216.

Smith, Rogers M. 2008. “Historical Institutionalism and the Study of Law.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 46-59.

Whittington, Keith E. 2008. “Constitutionalism.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 281-299.

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FROM COMPARATIVE JUDICIAL POLITICS TO COMPARATIVE LAW AND POLITICS

Lisa Hilbink, University of Minnesota. Email: hilbink [at] umn.edu.

pp.1098-1102

Among the many merits of the new OXFORD HANDBOOK OF LAW AND POLITICS (OHLP) is its inclusion of two full sections (ten chapters totaling 200 pages) on law and politics issues from comparative and international/supranational perspectives. Had the volume been published a decade earlier, this would certainly not have been the case. Indeed, many of the authors of these chapters were, like myself, still graduate students ten years ago, toiling to find a place in a subfield long dominated by scholars of a single court in a single country – namely the U.S. Supreme Court. Both the quantity and the quality of their contributions to this handbook are a testament to our shared success in opening the subfield to new cases and new questions. The study of law and courts outside the U.S. has come a long way in a short time.

In striving to establish our legitimacy as comparativists interloping in a traditionally Americanist domain, however, I fear we are, perhaps unwittingly, reproducing some of the existing pathologies of the law and courts subfield. Reading the chapters in the “Comparative Judicial Politics” section of the OHLP, I was struck by three things: first, the almost exclusive focus on high courts and constitutional decision-making in the countries of study; second, a tendency to discount the relevance of factors in any way internal to law or legal institutions; and third, a limited and limiting view of politics as narrowly instrumental.

The focus on high courts and constitutional decision making is easy enough to understand and arguably the least problematic of these three issues. If Americanists who study law and courts at levels other than SCOTUS have faced an uphill battle for professional attention and recognition, imagine the position that comparativists find themselves in, having to demonstrate that the phenomena they want to study are empirically significant and theoretically relevant, even if they aren’t likely to make even the back pages of U.S. newspapers or be the subject of major debate on U.S.-based blogs and list-servs. To be sure, the proliferation of high courts with constitutional review powers (Ginsburg, OHLP) and the increased involvement of old and new courts in “mega-politics” (Hirschl, OHLP) are phenomena that cry out for explanation and are thus natural targets for comparative analysis. However, if (at least part of) the goal is to understand when, where, how, and why law and legal institutions matter, or come to matter, for governance, – that is, for the way that governments provide (or fail to provide) basic public goods, such as physical and economic security or social services, – then a narrow focus on the highest court, and often on a subset of decisions of that court, is definitely not sufficient. Not only do we need more studies of lower court decision-making [*1099] in different countries (and different provinces), but we also need more research into the role of police, prosecutors, public defenders, ombudsmen offices, comptrollers, and other agencies charged with upholding the law and/or monitoring powerful actors, as well as the interactions between them. Brinks’s (2008) book on the judicial response to police killings in five different Latin American cities offers an excellent model for such work.

We could also benefit from far more studies of the role that actors in civil society, be they inside or outside the legal profession, play in advancing or undermining the rule of law at any level. Chavez (OHLP) surveys some of the work that has been done in this vein, but it is clear that the various propositions in the literature are in serious need of systematic comparative testing and refining. One noteworthy effort in this regard is the Halliday, Karpik, and Feeley (2007) volume, which seeks to illuminate the role that actors in the “legal complex” (judges, lawyers, and legal academics) play in constructing or eroding political liberalism. Many of the contributions to that work, covering sixteen countries on four continents, discuss high courts, but treat them as only one piece of a larger picture in struggles for core rights of citizenship, a moderate state, and associational autonomy. The analyses do not all point in the same causal direction, but they offer a rich trove of empirical material and a number of propositions that might be further tested in future research.

Perhaps turning the focus away from high courts in this way would help mitigate the second tendency in the literature on comparative law and courts, evident in several of the chapters of the OHLP, to caricature and dismiss arguments that highlight factors internal to law or legal institutions. I can think of no political scientist specializing in judicial behavior outside the U.S. (or inside, for that matter) who accepts the legal formalist myth that judges decide cases uniquely or mechanically on the basis of legal text or other legal rules. But even if we all proceed on a legal realist/political jurisprudential premise, we need not conclude that judicial behavior is determined by “conditions outside of the courts and the law” (Chavez, OHLP: 75). To paraphrase Martin Shapiro in the closing chapter of the OHLP, law, by definition, puts limits on discretional decision making. Where political decisions are purely discretional, as in autocratic regimes, there is really nothing for law and politics scholar to study. And while democratic legislators may have relatively few constraints on their discretion, the discretion of administrators and judges (particularly in lower courts) is often highly constrained, and therefore, “the law and politics scholar working on such secondary rulemaking…is warned to pay as much or more attention to the constraining rules as to the discretion” (Shapiro, OHLP: 773).

To this I would add that the “constraining rules” operating on judicial actors may not be directly legible off the legal text. Indeed, there may be formal rules and informal norms internal and particular to judicial institutions that shape and constrain judicial conduct by providing, as historical institutionalists put it, “the content of the identities, preferences, and interests that actors [can] embrace and [*1100] express” (Smith OHLP: 47-8). In my work on Chile, I demonstrate that there was a clear pattern of judicial behavior in civil and political rights cases across time (despite administration and regime change), and argue that this persistence is best explained by institutional factors that served both to constitute and constrain judicial preferences (Hilbink 2007). This is not a crude argument about judges’ “political culture,” as Chavez (OHLP: 70-1) portrays it, but rather an analysis that takes seriously the ways that the institutional setting can (and in the Chilean case, does) affect the way judges understand what they want to do, what they think they ought to do, and what they believe they can do (Gibson 1986: 150). As Baum argues, both consciously and subconsciously, judges are motivated by a desire for respect and approval from their reference groups or audiences (2006: 43–48), and among the audiences that will be most salient for judges are professional colleagues and superiors (2006: 171). While calculations about the way the other branches will respond to judicial decisions (the “separation of powers” model) are no doubt at work to varying degrees in different courts and at different times, even high court judges “face a wide array of incentives based on personal preference, professional ethos, and the institutional environment in which they operate” (Halberstam OHLP: 151). Scholars of comparative judicial politics should thus take care not to mischaracterize or write off analyses that give explanatory weight to legal and judicial (that is, “internal” (Chavez OHLP: 75)) variables. Not only is it incorrect to equate such analyses with traditional legal formalism or crude cultural arguments, but rejecting them may prevent us from identifying when and how legal rules and norms actually matter, or when they matter more or less and why.

This brings me to my third and final observation, which is that there appears to be an unfortunate tendency among scholars of comparative law and courts to define and portray the “political” in narrow instrumental (or “realist”) terms. Because of the strong influence of rational choice approaches in the discipline, much theorizing on judicial empowerment and judicial behavior has proceeded on several core assumptions. The first is that interests are the driving force behind political decision making, and that interests are independent of ideas, which are simply tools that political actors invoke, ignore, or attack in order to advance their pre-existing interests. The second is that the primary interest of political actors, be they dressed in suits, robes, or uniforms, is the maximization of their personal, partisan, or institutional power. And the third is that outcomes, such as the establishment or maintenance of judicial independence (Chavez OHLP; Vanberg OHLP), or the expansion of the judicial role (Ginsbug OHLP; Hirschl OHLP) are the product of coldly rational and strategic calculations to advance this primary interest.

To be sure, arguments based on these assumptions are a welcome corrective to overly functionalist or naively idealistic accounts that leave power considerations out of the picture. I do not wish to detract from or dismiss the very valuable contributions to the literature that have been based on these assumptions. However, in their zeal to “bring the politics back in,” comparative judicial theorists have tended to go too far in the [*1101] opposite direction, reducing everything to “exogenously specified” (Ginsburg OHLP: 91) raw power calculations. Identities, norms, and social aspirations and aversions (Scheppele 2003) have been treated as (at best) interesting but politically, and hence causally, irrelevant.

Yet an increasing number of “microstudies” (Ginsburg OHLP: 93) reveal that the dichotomy between ideas and interests in judicial politics is a false one, and that arguments based on rational-strategic/realist assumptions are unable to account for the timing, nature, and outcome of the establishment and exercise of judicial independence and the rule of law. The aforementioned volume by Halliday, Karpik, Feeley (2007) contains several chapters, including one by Ginsburg, that highlight the importance of ideas, and the mechanisms through which ideas are transmitted and implemented in fights for political liberalism. And in a collective work in progress, Patricia Woods and I are bringing together analyses of judicial empowerment in seven countries that highlight the ways in which ideational factors, social processes, and historical trajectories drive the way that political actors, in and out of the courts, perceive their interests and construct their strategies, and, thereby, shape the timing and nature of outcomes.

Ultimately, what we should strive for in comparative judicial studies is to transcend the old, stale binary of law qua naïve idealism and politics qua pure instrumentalism and get on with analyses that treat both law and politics more generously. We should allow for the possibility (but never assume) that law limits the discretion of decision makers, and never assume (even if the possibility is much greater) that discretionary decision makers seek, whenever possible, to avoid or subvert law. In her chapter in the OHLP on the European Court of Justice (ECJ), Karen Alter describes how a debate previously polarized between a “heroic” legalist narrative about the ECJ role in European integration and a more hard-nosed political account casting the ECJ as a mere “agent” of individual states has given way to a “view that both legal and political considerations influence ECJ jurisprudence.” The convergence around what she calls a “comparative politics narrative,” which treats ECJ decision making as only one step in a more complex chain, represents in her view “the maturation of European law scholarship” (Alter OHLP: 217). It is my hope that work on comparative law and courts can and will undergo a similar maturation, the hallmark of which would be a recognition that while there may be politics in all decisions interpreting and applying law, this does not necessarily render law irrelevant, and, moreover, that while all law involves politics, only certain kinds of politics involve law. Pursuing research that seeks to identify the conditions under which law matters in public decision making (by judges or other actors), how it matters, and when it ceases to matter across time and space would allow us to claim the title of true comparative “law and politics” scholars.

REFERENCES:
Baum, Lawrence. 2006. JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR. Princeton: Princeton University Press. [*1102]

Brinks, Daniel. 2008. THE JUDICIAL RESPONSE TO POLICE KILLINGS IN LATIN AMERICA: INEQUALITY AND THE RULE OF LAW. New York: Cambridge University Press.

Gibson, James L. 1986. “The Social Science of Judicial Politics.” In POLITICAL SCIENCE: THE SCIENCE OF POLITICS. Herbert F. Weisberg (ed). New York: Agathon Press.

Halliday, Terence, Lucien Karpik, and Malcolm Feeley (eds). 2007. FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL CHANGE. Oxford: Hart Publishing.

Hilbink, Lisa. 2007. JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE. New York: Cambridge University Press.

Scheppele, Kim Lane. 2003. “Aspirational and Aversive Constitutionalism: The Case for Studying Cross-constitutional Influence through Negative Models.” I.CON 1(2): 296-324.

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© Copyright 2008 by the author, Lisa Hilbink.

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WHITHER PUBLIC LAW SCHOLARSHIP? AN ASSESSMENT OF AN ASSESSMENT OF THE FIELD

Malcolm M. Feeley, School of Law, University of California at Berkeley and Visiting Fellow, Law and Politics Program, Princeton University (2008-09). Email: Mfeeley [at] princeton.edu.

pp.1092-1097

At the University of Wisconsin, it was the policy – at least in the 1970s when I was there – for all members of the political science department to read each others’ annual professional activities reports as part of an exercise to determine salary increases. I was always awed at how productive my colleagues were, but I must confess that for a while I tended to be respectfully dismissive of encyclopedia and handbook entries. This changed markedly after I’d written my first such entry. I gained a new respect for the genre. Encyclopedia and handbook entries constitute an art form requiring much thought and much discipline. Consider: authors are charged with summarizing and assessing work within an area of specialization. They must identify the core features of that specialization, succinctly examine the most salient issues, present the current debates, and point to future issues. And they must do all this within strict word limits. This poses immense challenges: one must do more than summarize the conventional wisdom. One cannot criticize the conventional wisdom without first explicating it. Similarly, one cannot merely report on latest developments in the field without first providing an overview of its core. The entry is not like a set of comments prepared for a roundtable at one of our professional meetings, where like-minded scholars come together to talk about their latest research. It is different than all these things. While authors need not aim to write only for the “general reader” or for the intensely interested specialist, nevertheless they do write for both of them, as well as others. Further, while they do not need to write for the ages, they must keep in mind that someone will be reading their entries and judging them some years hence--they cannot write the academic equivalent of today’s headlines. And again keep in mind that at most they only have a few pages in which to do their job.

In short, a good entry in an encyclopedia or handbook must be a gem. It must have several facets and each must sparkle. Some handbooks and encyclopedias are renowned for this quality. My personal favorite is the 1968 edition of the ENCYCLOPEDIA OF THE SOCIAL SCIENCES, which I consult as often as I do the more recent edition.

The OXFORD HANDBOOK OF LAW AND POLITICS compares favorably with the best of this genre. Keith Whittington, Daniel Keleman and Gregory Caldeira are to be congratulated for assembling a first rate group of contributors who in combination have put together a wonderful volume. It is a weighty project in every sense of the word. The book weighs several pounds. It has forty five separate entries. And as I’ve said, the contributors are an all star [*1093] cast. The headings, subheadings and titles of entries are still further evidence of the thought and care that went into the volume. But of course the real test is the quality of the entries themselves. I must confess I have not read all 774 pages and all forty five entries (excluding index and front matter). But I have skimmed and dipped in here and there – reading most of the essays that are both closest to and farthest away from my areas of interest, and reading as well the volume’s four introductory and three concluding essays. I feel moderately confident in assaying the HANDBOOK as a whole, and in underscoring my conclusion: the editors and authors have done well for the field. We are in their debt.

But the question is, how should we approach such an enterprise? Below is my effort.

The entries in this handbook can serve several quite different functions for different readers. First, some of them provide a quick survey into areas that are on the periphery of the reader’s interests; they provide a convenient way for catching up, at least casually, in areas where we don’t read the journals. In a discipline and a field that has no obvious methodological or theoretical core, and draws heavily on work in other disciplines and fields, this is valuable. Thus for instance, I found Tom Tyler’s entry on law and psychology, and Chris Tomlin’s article on law and history, and still others’ entries interesting because they cover areas I don’t keep up with, but which have relevance to some of my concerns and some of the central issues in the field.

Second, some of the entries will provide instructors with materials for class comments, and for me especially in my undergraduate survey course. Robert George’s essay on natural law is as good a succinct treatment of the subject as I have ever read. Indeed it is especially valuable since it is explicitly directed at a law and politics audience. And of course it has to prick the consciences of the normative selves in all of us who should search for greater values coherence in our divided selves. Similarly, although Frank Cross’ discussion of judicial independence is frustrating in its failure to pin down the subject, nevertheless it is helpful in cataloguing the many and at times conflicting dimensions of the concept of judicial independence. I am likely to steal from sections of his discussion in response to questions about judicial independence. Similarly, Bryant Garth’s essay on law and globalization will probably be useful in my teaching in ways I cannot yet even begin to anticipate. The same can be said for many of the other entries. Christine Harrington’s discussion of informal justice provides a framework for thinking about all types of legal orderings.

A number of entries are likely to be useful in work with students at opposite ends of their educational experience: new graduate students (and advanced undergraduates) at the one end, and advanced graduate students preparing for qualifying exams at the other. The same essay can serve different functions for both these quite different groups, an introduction to students unfamiliar with the field, and synthesis for advanced students. A student new to the topic can read an essay to get his or her bearings [*1094] before diving in to the field in depth, beginning in all likelihood with some of the materials cited in the essay itself. An advanced student can profit not so much by gaining new knowledge but by learning how to synthesize, how to break down a topic into constituent parts, how to relate it to allied issues, and how to identify some of the major continuing issues in the field. Indeed, some of the HANDBOOK’s essays can serve as model answers to prelim questions.

As I said, I’ve not read all the essays in the volume. But I did read the editors’ long introduction in Part I, the three essays in Part II (Approaches), and the three essays in Part X (Old and New). Since they frame the contributions in the large middle section of the volume, I want to offer some brief comments on these bracketing essays. Whittington, Keleman, and Caldeira do a wonderful job of summarizing the range of concerns in the volume, and thus the field. They recognize that our field is eclectic and needs to be tolerant as to both scope and methods. Indeed, they embrace an expansive view of the field, and identify contributors and topics that I suspect many others, less imaginative or gracious, would not have included in the HANDBOOK. (One indicator of this: by my rough count over a third of the contributors have no training in political science and have never held appointments in political science departments. Nevertheless, their entries are strong and clearly speak to our interests, as measured by the range of courses we teach and the range of articles and books we publish.) This expansiveness speaks well of the editors’ judgments. Their decision to invite such a range of contributors also reflects two other factors: the “law and . . .” enterprise has had a significant impact not only on the periphery of our field but on its core as well; and it reveals that at long last law professors are paying greater attention to the work of political science public law scholars. Nice.

All three of the essays, in Part II, “Approaches,” are models of coverage and clarity. Jeffrey Segal does a wonderful job explaining the main tenants of the attitudinal model. Furthermore, he engages meaningfully with the strategic model as it applies to the U.S. Supreme Court in a way that advances understanding and scholarly debate. Similarly Pablo Spiller and Raphael Gely summarize the main features of the newer strategic approach based on rational choice models of the judicial process. Although they too focus on the U.S. Supreme Court, they move beyond it to consider courts elsewhere, and indeed it may be that the strategic model has more power elsewhere, where high courts are not so well institutionalized and secure. Indeed, the essays by Segal and Spiller and Gely nicely engage each other. Anyone wanting an introduction to the two areas they discuss would be well served if they were directed to these essays. The excellence of these essays clearly reflects the erudition of the authors, but I suspect the mutual engagement also reflects encouragement by the editors as well. (One small criticism of the volume: it would have been nice to see more mutual engagement in other contributions. But this would have required authors to submit their contributions well before deadline. Heaven forbid.)

Rogers Smith’s “Approaches” essay is in a special class. More than any other [*1095] single person in recent years, he is responsible for creating the new and important sub-subfield in the law and courts area, historical institutionalism and the law. He has connected the dots among constitutional history, doctrine, the Supreme Court, American political history, and the revived interest in institutions (the new institutionalism) in political science and sociology more generally. This essay is likely to place this new subfield on an even more secure footing. Indeed, it reveals the constitutive power of a label; give an inchoate set of ideas a name, and it becomes a “project.” Subsume a group of diverse writing under the label and you have a subfield. This is a wonderful development. It returns the study of law and politics to its roots. The study of law, legal institutions, legal regimes, and legal systems has traditionally been anchored in historical and institutional and comparative analysis that seeks to address big social science issues – variation across time and across location. This development is a nice supplement to judicial behavior studies, which has in recent years occupied a great deal of the field’s attention. Although judicial behaviorists claim to be markedly different than the legalistic law professors whose approach they ridicule, nevertheless much of their work is something of a reflection of conventional legal scholarship. Like their law professor counterparts, judicial behaviorists focus, almost exclusively, on the handful of split decisions in relatively recent U.S. Supreme Court cases in order to divine their own form of explanation. Of course this is a legitimate enterprise; social science ought to be about accounting for variation, and in my view judicial behaviorists do a convincing job of explaining why Supreme Court justices vote as they do. But the US Supreme Court is a highly atypical “court,” and legal decision making is everywhere. Historical institutional analysis promises to be much more expansive. Further, it too is interested in accounting for variation, but of a much more dramatic sort--variation across time and regime (and comparative historical analysis promises even more), and how issues emerge before a court, as opposed to how judges on one court vote once issues get to their doorstep. Smith’s essay points the way towards a more theoretically rich, if methodologically messier, agenda for public law scholarship. Although framed in terms of current developments in American political science and sociology, its vision is certainly not limited to this. Indeed, in scope and method it harkens back to work in sociological jurisprudence and some of the classical concerns of nineteenth and early twentieth continental and English legal history and comparative law, and to Weberian-inspired social science more generally.

The three “approaches” essays are interesting for still other reasons. Despite all the good things I’ve just said, in some ways there is a disconnect between the “approach” chapters and the remaining thirty nine topical essays. Many don’t fit comfortably within any of the approaches. This suggests that the scholars in our field have not waited for theoretical “approaches” to be developed before striking out on their own agendas. And of course it reflects the eclectic nature of our field. Still it is puzzling that there is not more of a connection. One reason may be the lack of breadth of the approaches chapters. All the references cited in Segal’s Approach [*1096] essay focus exclusively on American courts, and most of them on one court, the U.S. Supreme Court. This suggests that this approach is successfully used to explore some of the behavior of a handful of justices on a particularly distinctive – unique? – institution. Yet none of the subsequent essays, except Spaeth’s, really builds on or elaborates this approach in any sustained way.

As the newest subfield, it is not surprising that only a handful of the subsequent essays in the volume build in any explicit way on the historical institutional approach. Still the themes of several of the essays are compatible with it (among them, the essays by Ginsburg, Hirschl, Alter, and most especially Whittington, Graber, Gillman, and Harrington). If this approach has the potential that I think it does, one would expect that entries informed by a historical institutionalist approach will feature prominently in the next HANDBOOK OF LAW AND POLITICS. Also, almost all of the works cited in Smith’s ambitious essay deal with American subjects, yet as I suggested above, this approach has obvious implications for comparative research, as the author himself acknowledges.

Interestingly, it is Spiller and Gely’s discussion of rational choice models, which are often accused of being overly narrow, that is most cosmopolitan. Although they too draw mostly on work about American institutions, their essay has a higher proportion of references to research on non-American institutions (clearly a growth area of our field) than do the other two “Approaches” essays. Also, by my count some appreciation of the strategic approach informs the discussions in a high proportion of the entries in this volume (roughly one third), and especially of those entries that extend coverage beyond law and politics, see e.g., Shapiro, Chavez, Ginsburg, Vanberg, Hirschl, Scheppele, Rodriquez, Garrett, Yaloff, Epstein, Haire, Cross, Rose-Ackerman, and Kornhauser.

Still, for the long term I would bank on historical institutionalism and the law, especially since it has begun to find ways to incorporate some of the more provocative insights of rational choice models of the sort suggested by the works of John Ferejohn, Barry Weingast, Oliver Williamson, Douglass North, Mark Ramseyer, Martin Shapiro, Lee Epstein, Keith Whittington, and still others, which are discussed in various different places in the volume.

Before concluding let me say a few words about the three final essays. They are all written by grand old men in the field (the next edition of the HANDBOOK most certainly will have a grand old lady). Both Scheingold’s and Spaeth’s essays offer views of the profession from their many many years in the profession and their distinctive (and distinctively different) perspectives. Graduate students should eat them up. They get two smart people looking back and reflecting on their careers and the intellectual passions that animated them. They should be so lucky as to have such engagement in their work after long careers. The essays are all the more valuable because they are personal reflections. Good stuff. Martin Shapiro’s essay is more didactic. Always the one to look for the teaching moment, Shapiro takes advantage of the forum to point out that if in our field, we [*1097] claim to be interested in “law,” there is a lot more law in a lot more places than we choose to look. Similarly, he says, if we claim to be interested in courts, we have made a great mistake to focus so much of our attention on the most distinctive if not unique forms of courts and ignored other important courts, and especially court-like institutions that are part of the administrative process. Still, Shapiro must be pleased with the entries in the HANDBOOK. It seems to me that the range of entries nicely reflects his concerns about the breadth of the field.

I feel obliged to offer a conclusion, some sort of wrap-up, to this rambling essay, so here it is – my suggestion as to what to do with the volume: Get your department to order the volume – or if you can afford it, order it yourself. When it arrives, place it on departmental reserve and invite public law graduate students and would-be public law graduate students to read it. Arrange a schedule; select two or three essays at a time, and meet in the student lounge to discuss them. Eventually work your way through most if not all of the volume. It should be a rewarding experience not only for the students but for you as well. What you can do in this process is what the authors of the entries did not do enough of – engage the different entries with each other. You might be able to come up with some speculations that could lead to some nifty student paper topics if not research projects. What happens when the attitudinal model meets trial courts? Non-American courts? Courts with no tradition of dissenting? What happens when the strategic model meets historical institutionalism? What happens when American concerns with race, gender and courts meet non-American courts or their alternatives? What if any are the implications of the dramatic recent shifts in the roles of constitutional courts in Eastern Europe and the former Soviet Union for the understanding of American judicial institutions? What does the study of Latin American supreme courts suggest about the study of the American Supreme Court? After reading the entries of Bryant Garth and Christine Harrington, wither courts? The combination and permutation of the various ideas in the entries invite a host of interesting possibilities.
You get the idea.

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© Copyright 2008 by the author, Malcolm M. Feeley.

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SILENT VICTIMS: HATE CRIMES AGAINST NATIVE AMERICANS

by Barbara Perry. Tucson: The University of Arizona Press, 2008. 176pp. Paper $29.95. ISBN: 9780816525966.

Reviewed by Renee Ann Cramer, Program in Law, Politics, and Society, Drake University. Email: renee.cramer [at] drake.edu.

pp.1087-1090

Disrespect of American Indians was a normal part of my growing up in rural South Dakota. Here is an incident I remember from the 1980s:

Our (non-Indian) high school basketball team often played the team from the Flandreau Indian School. I remember, vividly, the night we played on their court. We all stood for the national anthem – they stood on their side of the gym, we stood on ours. Then the school’s drum circle came out and played an anthem to the Sioux nation, presenting the colors of the US, the POW/MIA flag, and the tribal staff. Our teachers and coaches would not allow us to stand in respect of this tradition. Their side of the gym stood; ours sat.

And, another, from the mid-1990s:

I am not an American Indian, but am often taken for one, even by Indian folks. I am short in stature, and have a ruddy complexion with dark hair and eyes. I write about American Indian politics and law, and spend time in Indian cultural centers and on reservations. At the American Indian Museum in New York City, a Lakota man once told me I had “Brule thighs.” I’ve had “white” people apologize to me for their ancestors’ acts of genocide. So, I wasn’t surprised, once, at a diner in La Crosse, Wisconsin, when the waitress assumed I was a tribal person. I was surprised, though, that she told other diners, within my earshot, that she didn’t think “dirty Indians” had any business expecting service in her restaurant. Even though I’m not usually a quiet person, and even though I’m not Indian, I pretended like I hadn’t heard her, like she couldn’t have been talking about me.

This sort of disrespect was a normal part of the day-to-day existence of any tribal person I knew growing up, even a normal part of the day-to-day existence of anyone assumed to be tribal; and it remains a normal facet of life for most native people I talk to.

Yet, until I read Barbara Perry’s important new book, I had not conceptualized these moments as part of a continuum of activities we could label as “hate crime.” Perhaps it was a failure of my critical imagination, but I did not think of these types of individual, isolated, and trivial-seeming events as exemplars of systematic, structural racism against an entire people.

Perry asserts that these isolated incidents are indeed hate crime, and that hate crime has become normative for native peoples. This is brought home in the qualitative data she presents – in her book, we read interview after interview with American Indians who have been slighted, demeaned, disrespected, ignored, threatened, and beaten.

Perry places what is commonplace, this daily violence, into three necessary [*1088] contexts: the historical context of colonialism and genocide; the theoretical context elaborated by Iris Marion Young (1995) to understand “the five faces of oppression” (exploitation, marginalization, powerlessness, cultural imperialism, and violence); and the context of contemporary hate crimes against people of color, Jews, women, and the BLGT community. The first five chapters are stunning; before she even gets to the sixth, which focuses explicitly on American Indian experiences of hate, Perry has shown how genocide, cultural imperialism, and a proclivity to violence against the Other are endemic to some North American expressions of Whiteness.

The sixth and seventh chapters turn explicitly to American Indian experiences of hate, and the “cumulative effects” such experiences have on cultures and peoples. The book is based on four rounds of research – a pilot study in the Four Corners region (this refers to the Four Corners of Arizona, Utah, New Mexico, and Colorado – a region with a large native population), a survey of Indian students at Northern Arizona University (where Perry was teaching at the time of the study), and extensive interviews in Minnesota, Wisconsin, and Montana. In the course of the research, 278 American Indians from eight different tribes, across more than twelve reservations, were interviewed.

This is the first study of its kind, and fills a hole in several literatures. As Perry points out in the introduction to the volume:

A review of the literature on Native Americans and criminal justice, and even a similar review of the narrower literature on ethnoviolence, reveals virtually no consideration of Native Americans as victims of racially motivated violence . . . In addition to the lack of scholarship, there is also an absence of concrete data on hate crimes against Native Americans. There is no Native American equivalent to the annual audits of anti-Semitic violence or anti-gay violence published by the Anti-Defamation League and the National Gay and Lesbian Task Force (p.2).

Clearly, a book such as this is a necessary correction – we learn from her interview data that American Indians experience hate crime, hate speech, and hateful incidents on a frequent, almost daily, basis. Violence directed against American Indians is normative, Perry argues. It is expected. The history of violence against American Indians, in the forms of genocide, colonization, ethnocide, forced assimilation, and continued imperialism and oppression, is so well known that its manifestations as hate crime are “unremarkable.” And, a review of the literature convincingly shows, such violence has been ignored by scholars.

Ever cognizant of the path-breaking nature of her work, and her responsibilities in authoring a text of such importance to tribal peoples, Perry’s research plans were guided by “careful ethical considerations” (p.20), and formulated in close accord with the excellent advice offered by native scholar Devon Mihesuah (1996). Perry hired tribal students to aide in the research plan, and her approach to these communities appears impeccable and culturally sensitive. Though I often yearned for quantitative data, and a sense of the proportions of people interviewed who had experienced hate crime, the interviews Perry excerpts give [*1089] a stunning picture of the range of violence experienced by American Indians, the depth of its historical roots, and the extent of hatreds’ infiltration into the daily lives of tribal people.

Perry argues, convincingly, that hate crimes against American Indians are likely to be “inspired by American Indian activism” (p.8). She notes that in regions where tribes have pressed for their treaty rights, violence against tribal people increased. I agree that this is likely – as tribes rally for fishing and hunting rights, non-Indians mobilize languages of rights, deservingness, tradition, and heritage; often these fights turn violent. I am curious, though, about the impact that other tribal expressions of sovereignty have. In regions where tribe successfully engage in casino gaming, for example, do we see hate crimes increase? Or, in regions where tribes have built up cultural capital, do we see less crime, even with tribal expressions of sovereignty? Because she looks primarily in regions where tribal sovereignty is contested, and Indian activism is paramount in the public eye, it is difficult to know, from Perry’s study, what kinds of tribal activism are most likely to be met with violent non-Indian resistance.

Throughout the text, whenever I encountered Indian voices telling about the violence they had faced, I could feel and “hear” the palpable exhaustion in their reporting. The respondents sounded depressed, overwhelmed, crushed by the weight of history and contemporary practices. I felt demoralized while reading about the day-to-day experiences Perry’s respondents reported to her.

In Chapter 7, Perry acknowledges this exhaustion, and offers theories for understanding it, as well as coping with it. She writes, of her respondents, that “there was a generalized sense of feeling weighed down, oppressed by the ongoing threat of harassment and other racist actions . . . the consequences of this persistent pattern of threat are manifest in an array of related behavioral practices, including withdrawal and isolation. This is, of course, the goal of hate crime perpetrators: to force their victims to give up” (pp.102-103, emphasis added).

Perry’s deep understanding of hate crime is especially helpful here. She writes about the normative violence faced by American Indians at the hands of Whites, in a way that helps us have empathy for the victims, and to understand how the constant victimization will have long-lasting cultural reverberations.

Importantly, Perry’s definition of “hate crime” extends beyond White-on-Indian violence. This book makes clear the unique role of the police (even Indian police employed by tribes and the Bureau of Indian Affairs) in perpetuating cultures of violence and fear on reservations. Perry also discusses the epidemic of Indian-on-Indian violence and domestic violence on reservations as part of the problem of hate crime, via internal colonialism and self-hatred. Of such violence, she writes, “the victim is punished for reminding the perpetrator of their shared, discredited identity” (p.118). This is a potentially revolutionary way to think about reservation violence; reframing domestic violence, in particular, as evidence of internal colonialism, and residual of [*1090] White violence against Indians, opens paths to violence reduction that might work in particular community settings.

Ultimately, of course, a deep desire for the reduction of violence is what motivates Perry to write. She tells readers that she is interested in influencing policymakers, and her final chapter is devoted to elaborating ways that hate crimes against American Indians could be reduced. Perry draws her ideas from programs that already are in operation and working, as well as from the ideas presented her by interview respondents. As such, she gives us indigenous ways to reduce violence and offers plenty of good ideas. Her prescriptions include education (both for Indians in their own lifeways and cultures, and for Whites, of the value of indigenous history and contemporary culture), positive inter-group interactions facilitated by tribes themselves, and exercises of tribal self-determination. In my own research (Cramer 2005), I have noted that tribes who use the press to their advantage, who invite the non-Indian community to join in their cultural celebrations, and who exercise their self-determination in ways that benefit both tribal and non-Indian communities, tend to avoid attacks on their collective identity and economic growth. Perry argues that such activity can also help to mitigate individual acts of violence and the blight of hate crime on reservations and in border towns.

Although I felt pessimistic by the time I reached her concluding chapter, “Responding to Anti-Indian Violence,” I was able to be convinced by Perry’s optimism. She writes:

While anger and resentment are understandable [responses to hate crime], the opposite is also possible; that is, those who have experienced hate violence can and do develop a sense of defiance and ultimately pride in their identity. Yet defiance need not culminate only in the type of reactionary anti-white sentiment previously noted. Rather, it may take a constructive form, by which one stand up to the racism and violence that confronts oneself (p.118).

This book is both incredibly necessary, and profoundly disturbing. Perry does a beautiful job at respectfully excerpting from her extensive interview data, but the voices of the American Indians that we encounter in this volume offer a portrait of a group of people profoundly hurt by historical and contemporary practices; they remind us that the hurt, humiliation, and violence they suffered is on-going, and that solving the problem is a daunting, collective, responsibility.

REFERENCES:
Cramer, Renee. 2005. CASH, COLOR, AND COLONIALISM: THE POLITICS OF TRIBAL ACKNOWLEDGMENT. Norman: University of Oklahoma Press.

Mihesuah, Devon. 1996. AMERICAN INDIANS: STEREOTYPES AND REALITIES. Atlanta, GA: Clarity Press.

Young, Iris Marion. 1995. “Five Faces of Oppression,” in D. Harris (ed.) MULTICULTURALISM FROM THE MARGINS (pp.65-86). Westport, CO.: Begin and Garvey.

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© Copyright 2008 by the author, Renee Ann Cramer.

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IN SEARCH OF THE BLACK FANTASTIC: POLITICS AND POPULAR CULTURE IN THE POST-CIVIL RIGHTS ERA

by Richard Iton. Oxford and New York: Oxford University Press, 2008. 432pp. Hardcover $29.95/£15.99. ISBN: 9780195178463.

Reviewed by Julie Novkov, University at Albany, SUNY. E-mail: jnovkov [at] albany.edu.

pp.1082-1086

Richard Iton’s IN SEARCH OF THE BLACK FANTASTIC provides a richly theorized analysis of how black politics plays out in the field of popular culture. Iton argues that in order to understand black politics in the post civil rights era, conventional state- and organization-based conceptions of politics and political action must stretch to incorporate fluid cultural overlays and engagements with politics. Yet his argument takes seriously the risks of simply reading culture as politics, which would devalue direct political action and rob popular culture of its primary significance. Rather, he takes seriously the history of African American popular culture as a means of engaging politics, noting that popular culture has provided accessible space for African American politics throughout the pre-civil rights and civil rights eras, when African Americans were marginalized or violently excluded from formal political spaces and prevented from engaging in regularized political discourse. Iton does not want to eliminate lines between politics and popular culture, between political argumentation and aesthetics, or between America and the diaspora, but he intentionally blurs these lines with the aim of gaining theoretical purchase from examining the tensions, contrasts, and crossovers.

Iton focuses on popular culture rather than formal politics because he wants to situate black popular culture as an ambiguous leading edge not only for black politics, but for American politics. He defines the black fantastic (in opposition to the groundedness of conventional political performance) as “the minor-key sensibilities generated from the experiences of the underground, the vagabond, and those constituencies marked as deviant – notions of being that are inevitably aligned within, in conversation with, against, and articulated beyond the boundaries of the modern” (p.16). Iton agrees that blacks’ fusion of cultural and political space as a contemporary practice with deep historical roots is exceptional, but the exceptionalism he identifies is generative. Thus, the fantastic, in his analysis, “would entail unsettling . . . governmentalities and the conventional notions of the political, the public sphere, and civil society that depend on the exclusion of blacks and other nonwhites from meaningful participation and their ongoing reconstitution as raw material for the naturalization of modern arrangements” (p.17). A real strength of the book is Iton’s careful gauging of how effective this unsettling process is in different contexts and different historical moments. [*1083]

The first few substantive chapters recount the history of the performance of black politics in the cultural sphere before and during the civil rights era. Iton situates himself at the outset against a black intellectual tradition exemplified by Ralph Ellison and finding contemporary expression through Adolph Reed, Jr. that advocates for normalizing and mainstreaming black politics and practices. Iton argues that black political leadership during the Cold War, civil rights years, and immediate post-civil rights period came from civil rights organizations and cultural actors. Thus any consideration of black political thought and action that omits the political engagements of cultural figures is incomplete. His analysis of Paul Robeson illuminates his approach. In addition to discussing the familiar story of Robeson’s own struggles to articulate a radical vision of black politics in contrast to the liberal, anti-Communist standpoint of the NAACP, Iton configures Robeson as a public symbol of resistance who invited or demanded political responses from black cultural and movement elites. Iton sets up Robeson’s concrete political challenges against the State Department’s uses of black jazz stars like Dizzy Gillespie, Louis Armstrong, and Duke Ellington, as international goodwill ambassadors, but he also details Robeson’s complex political engagements with Sidney Poitier and more straightforward mentorship of Ossie Davis, Lorraine Hansberry, Ruby Dee, and Harry Belafonte. This analysis enables Iton to show in detail the shift that restructured black progressive and protest politics from uneasy and uncertain engagement with communism to alliance with the southern, church-led civil rights movement (pp.59-61).

In discussing the transition to the post-civil rights era, Iton argues against simply following black politics into its new occupation of formal political spaces, considering instead (for instance) Amiri Baraka’s artistic reconstitution of black radical politics as masculinized black nationhood. Iton simultaneously valorizes Baraka’s reconstructions of black interiority while acknowledging the damaging limitations inherent in the movement’s anxieties around homosexuality and black feminism. While black feminist novelists would soon mount direct challenges to the damaging elements of masculinity, Iton claims that gendered negotiations within both the cultural and political spheres depended upon most black women’s solidarity with black men and their “willingness to defer, at least temporarily, a real engagement with issues of gender equality” (p.100). The 1970s, however, continued the tradition of black cultural voices’ speaking in political registers and weaving in, through, and out of the newly opened spaces of institutional black politics inhabited by a growing class of more conventional black political actors.

Iton argues that the emergence of robust conventional black electoral politics in the post-civil rights era contributed to the assimilation of formal black politics into the quadrennial rhythms of national electoral cycles. He notes the contrast with a more swiftly changing cultural aesthetic, produced through the rapid, irregular, and politically active and reactive demands of entertainment. As the production and consumption of popular culture accelerated in the late 20th century, black popular culture moved into a new relationship of celebration with the market, “a unique [*1084] development in the broader history of the efforts to negotiate the object/subject divide that has underscored black politics since the Middle Passage” (p.125). While black politicians struggled to negotiate their own dilemmas of assimilation and representation, black popular culture provided space for reconfiguring identity, solidarity, and resistance.

In discussing rap and hip hop in the 1990s, Iton emphasizes how these genres unsettled boundaries between middle class and lower class and between a street life infused with criminality and a high life infused with luxury. This process of unsettling, best represented in the persona of Sean Combs, played out in different ways in the humor of Eddie Murphy and Chris Rock. This unsettling and explicit consideration specifically addressed welfare reform in the 1990s; Iton shows how black popular culture struggled with and multiply represented the increasing gulf between a “respectable” and “striving” black middle class and an “irresponsible” and “unstable” black lower class. This divide was politically unspeakable for conventional black political actors, but popular culture offered a forum for considering, questioning, challenging, or reinforcing it (pp.170-191). The voices of black women, including Tracy Chapman, Julie Dash, and Mary Blige, contributed powerfully. Nonetheless, Iton critically acknowledges black cultural echoes of a broader rejection of poor black women as full members of the polity, citing a rash of films celebrating the black middle class while rendering poverty invisible and noting several black business leaders’ support for conservative economic policies like eliminating the estate tax (pp.182-188).

One of the most innovative elements of the book is Iton’s analysis of black popular culture through the lens of diaspora. Rather than resting his analysis on the familiar framework of configuring the diaspora as a dialectic between desiring and disowning “Africa” in a world complicated by post-coloniality, Iton configures the black diaspora as a complex strategy of resistance. Engaging in a trans- or multinational black popular culture is thus to “resist[] hierarchy, hegemony, and administration, suggest[ing] a different orientation toward this category of politics” (p.200). Drawing from but transforming Paul Gilroy’s (2000) engagement with biopolitics, Iton demonstrates that the fundamentally diasporic nature of black popular culture opens a uniquely flexible space for a fluid interplay of post-colonial and possibly ultimately post-national political discourse. While Iton recognizes the historical roots of a largely American-driven cultural diaspora dating from Garvey and spreading through different ideological agendas in the Cold War era, he traces how this outpouring transformed into engagement through the rise of reggae as an overtly political art form rooted in black power aesthetics (p.238). By the late 1970s, Bob Marley had a substantial audience in Great Britain. The popularity of reggae rested in part on the presence of West Indian immigrants in London, but Iton reminds the reader that racial exiles Haile Selassie, Marcus Garvey, and Claudia Jones, among others, had found homes in London earlier (p.240). Caribbean migration to the United States, Canada, and Great Britain produced core consuming audiences, but Iton notes the initial difficulty that reggae artists encountered in developing [*1085] broader audiences among African Americans (p.251). American hip hop, however, ultimately began to incorporate Caribbean sounds and to transform global black aesthetics (p.254).

While Iton sees transformative potential in the increasingly complex engagements and integrations that are producing a diasporic culture, he is, as always, careful not to flinch from the more troubling implications. He notes the rise of the motif of the sexualized and foreign Caribbean man as an object of middle class, black female American consumption (p.264). He also highlights the longer standing problem of Africa’s feminization and presentation as an object of loving desire and conquest (pp.264-65). Playful resignifications, like Lauryn Hill’s reworking of Bob Marley’s masculinity or Queen Latifah’s challenges to hypermasculinity, only go so far against a conservative tide, and the issue of homosexuality remains even more vexed.

Iton is careful throughout to distinguish between transgressive resistance to mainstream cultural practices and the cultural expression of progressive politics, and does not read all popular culture as political expression. He seriously considers Adolph Reed’s (1999) objections to focusing on the political content of popular culture to the exclusion of the analysis of formal politics. His response is that cultural shifts and recent technological changes have promoted polyvocal expressions that speak to multiple audiences in multiple registers. This multiplicity enabled the development of a new engagement between black interiority and the production of black solidarity. In Iton’s analysis, black solidarity can be articulated strategically to promote a cosmopolitan, fluid, generative standpoint from which to disrupt longstanding negative configurations of race, sexuality, gender, class, and nationality. This generative response stands in contrast to a thinner and more controlled black solidarity that presents the black community as bounded and containable through discourses of respectability (p.149).

He closes the book with a plea for a richer and more ambiguous notion of political space. Enlarging what we consider as political space will not resolve the dilemmas of black politics in the post-civil rights era, but Iton claims that limiting the realm of the political closes off any opportunity for the development of fluid forms of resistance and political creativity. He decries the growing separation between black politics and popular culture both as performed in the world and as they are analyzed. Bringing them together allows popular culture to trouble black politics in productive ways, and perhaps, one should extrapolate, encourages a deeper infusion of political sensibility into popular culture.

IN SEARCH OF THE BLACK FANTASTIC spans a remarkable swath of black popular culture and history, and integrates these elements highly effectively. Iton masterfully contexualizes the contemporary dilemmas of popular culture and black politics and shows convincingly how these dilemmas arose through the political transformations of the civil rights era. The book is demanding – Iton is a clear writer, but he maintains the theoretical sophistication throughout, and readers unfamiliar with [*1086] contemporary theories concerning politics and aesthetics and politics and culture may find themselves struggling at some points. Some who pick up this book will wish that Iton had interspersed the analysis with more direct bridging to conventional politics, but this criticism misses the point of Iton’s project, which is to trace politics through popular culture. Readers expecting significant analysis of black popular culture figures who have crossed over to become American cultural icons, like Will Smith and Oprah Winfrey, will also be disappointed. But as Iton argues implicitly, such figures have followed and poorly echoed the richer and more productive ambiguities within specifically black popular culture.

The book’s argument is particularly well timed at a moment when the analysis of black politics will likely take a strong turn toward conventional politics as Barack Obama ascends to the presidency. Through Iton’s analysis, however, we can see how Obama’s election raises a serious dilemma for the diasporic space Iton highlights at the end of the book. Whither black popular culture now? Even with a black president of the United States, Iton would likely caution against ceding the political to the professional politicians, either as a primary matter or in choosing subjects to study as political actors. Indeed, in an era of interdependent political and economic national systems, diasporic spaces may turn out to be uniquely productive sites for addressing problems that are too big to solve through conventional political means.

REFERENCES:
Gilroy, Paul. 2000. AGAINST RACE: IMAGINING POLITICAL CULTURE BEYOND THE COLOR LINE. Cambridge, MA: Harvard University Press.

Reed, Jr., Adolph. 1999. STIRRINGS IN THE JUG: BLACK POLITICS IN THE POST-SEGREGATION ERA. Minneapolis, MN: University of Minnesota Press.

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© Copyright 2008 by the author, Julie Novkov.

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PHILOSOPHY AND REAL POLITICS

by Raymond Geuss. Princeton and Oxford: Princeton University Press, 2008. 126pp. Cloth $19.95/£11.95. ISBN: 9780691137889.

Reviewed by Christoph Konrath, Parliamentary Administration, Austrian Parliament. Email: christoph.konrath [at] parlament.gv.at.

pp.1078-1081

John Rawls famously distinguished between four roles of political philosophy (2001): 1) the practical role arising from divisive political conflict and the need to settle the problem of order; 2) the role of orientation, specifying principles to identify reasonable and rational ends; 3) the role of reconciliation, providing a means through which history and institutions of a given society can be understood as rational; and 4) the role of political philosophy as realistically utopian – that is, as probing the limits of practicable political possibility. For Raymond Geuss, Rawls and numerous other contemporary political philosophers got entangled primarily with the fourth role. In his new book PHILOSOPHY AND REAL POLITICS, Geuss argues for a different political philosophy which is not realistically utopian but concerned with real politics. Geuss does not deny the importance of idealizations in philosophy, but he criticizes what the canon of contemporary political philosophy has made of them. Being “realistically utopian,” as Geuss sees it, means nothing else than to develop an ideal theory of rights or justice which allows one to guide and judge political actions. It is an approach that can be characterized by reductionism and modes of exclusion of complex social realities. Often, it tends to rest on some basic assumptions of its concepts or moral intuitions that are claimed to be “ours” and thus somehow general and timeless. Although such theories are formulated within a specific historical and sociological setting, these contexts remain unstated. They are sustained, Geuss holds, precisely by “ignoring or blanking out history, sociology, and the particularities that constitute the substance of any recognizable form of human life” (p.59).

Contemporary political philosophy is a broad and fascinating enterprise. Yet, it often seems to be engaged only with itself – it produces philosophical discourses on other philosophical discourses. Contemporary political philosophy claims to be concerned with political actions, while it has long lost touch with the outside world. We may reply that this kind of distance is actually necessary to reflect on the meaning of political action and to justify what is or should be done in real life. But one needs to address the question how wide this distance should be. Geuss attempts to provide an answer, demanding that philosophers should first try to understand why real political actors behave as they actually do.

He argues that many contemporary political philosophers and even political advisors tend to regard politics as applied ethics. Geuss calls that an “ethics-first” view (p.8). It is based on the assumption that one may complete the work of ethics first, thereby attaining an ideal theory of how we should act. [*1079] Only then may one apply that ideal theory to the action of political agents. In other words – and using a popular phrase of political theorists – they prefer to meet before the bars of justice than in public places or parliaments.

In his essay, Geuss wants to expound and advocate a political philosophy that is the opposite of such a view. Such a political philosophy should be realist. It should be concerned with the way the social, economic and political institutions actually operate within given circumstances. This approach implies the analysis of rationalist concepts, imaginations, and ideas as far as they influence real behavior. Secondly, such a view recognizes that politics is first and foremost about actions and their context, not about mere beliefs or propositions. Propounding a new theory can therefore be analyzed as a political action. Thirdly, Geuss defends the thesis that politics is historically located and that this shall be reflected in the study of politics. He thus rejects the claim that there are “eternal questions of political philosophy.” According to Geuss, these have become such generalizations that they are seriously misleading for the understanding of real politics. Finally, Geuss views politics as the exercise of a craft or art that requires skills and forms of judgment.

Up to this point, such a concept of political philosophy is neither new nor original. It retrieves conceptions of politics and political philosophy that have lost prominence in many contemporary discourses. Like Quentin Skinner or James Tully, Geuss reminds us that political philosophers are political actors engaged in the problems and conventions of their age (cf. Tully 2008: xii). And Geuss’ argument is foremost an approach along the lines of critical theory. It attempts to provide the descriptive and normative bases for social inquiry and social change. Geuss can therefore but insist that political philosophy ought to combine the poles of philosophy, history and the social sciences. However, the central difference of his approach is that he refers to Lenin, Nietzsche and Max Weber as advocates (or straw men?) for his arguments. Geuss argues that, whenever we speak of politics, we do think of a number of fundamental questions which are primarily associated with these three thinkers.

Lenin’s fundamental question is “Who, whom?”. Geuss extends this question as “Who what to whom for whose benefit?” (p.25). From this, it follows that to think politically is to think about agency, power, and interests, and the relations among them. This leads to a concept of political philosophy which cannot, by any means, remain abstract. And, following Lenin’s discussion of the principle of partisanship, every theory is “partisan” and takes side in an ongoing war of worldviews (p.29). Lenin’s question is designated as the first and foremost question while Nietzsche’s and Weber’s questions are regarded as addenda. Nietzsche addresses the finitude of human existence and the necessity to choose an action or a pursuit in a given case and in the crucial moment. Weber’s question relates to his insistence on legitimacy. This leads Geuss to emphasize once more the importance of historic contextuality. These three questions lead to the formulation – or rather sketch – of five tasks of political theory. These tasks are decisive for how political thinking [*1080] informs the social world and what role it plays in actual politics.

The first task is to understand how the organized forms of acting together in a given society actually work, to explain why decisions are taken, and so on. This point remains vague and wide, as does the second task which is evaluation. According to Geuss, political theory (he uses the terms “philosophy” and “theory” mostly interchangeably to cast as much doubt as possible on the meaning of these terms) is not only driven by the desire to understand but also by the wish to judge a system as being better or worse in some respect than other systems. Again, he calls on Nietzsche and Lenin, quoting the latter with the statement that revolutionary praxis requires revolutionary theory (p.40). The third task is orientation. It comes close to Rawls’ definition mentioned above. The fourth and fifth tasks are presented in more detail. They comprise conceptual innovation and ideology. Conceptual innovation shall be constructive contribution to politics with a strong normative component. Ideology can either mean criticism of ideology or political theory playing an ideological role in society (p.53).

Geuss is well aware that his concept of realism is rather broadly construed. Therefore, he aims to sustain it by a contrast with two influential contemporary views that represent – according to Geuss – almost the direct opposite of realism. He is concerned with Robert Nozick’s ANARCHY STATE AND UTOPIA (1974) and John Rawls’ A THEORY OF JUSTICE (1971). According to Geuss, both theories fail to be realistic, as they either try to construct a society around an idealized legal system or to formulate a full political theory resting on a single political virtue. He deliberately chooses these books (and not any later contributions by Nozick or Rawls), as they have become especially influential in contemporary political philosophy. Geuss treats them both as representatives of a particular style of theorizing about politics (p.70). It is thus important to note, that he is not interested in the details of their views. Proceeding in this way, Geuss presents a powerful critique of intuitions as starting points of theorizing, of Nozick’s concept of rights, and of Rawls’ concepts of justice, equality, fairness and impartiality.

Arguing against Nozick, Geuss sets an example for why political philosophy should become more historical and presents an example of his mode of genealogical thinking. He asks how subjective rights can serve as a self-evident basis for political philosophy when they themselves are a fairly modern and western phenomenon. Geuss does not aim to reduce philosophy to history but to replace “a rather useless set of questions with a potentially more interesting and fruitful” one (p.69). In his critique of Rawls, Geuss follows a similar genealogical approach. But the most important line of criticism is one of a concept that is obviously not discussed in Rawls’ whole body of work: power. He argues that, to the extent to which Rawls seems to draw “attention away from the phenomenon of power and the way in which it influences our lives . . . [,] his theory is itself ideological” (p.90) or even mystifying (p.94). Geuss underpins his argument by raising the following question: How can we approach politics through “intuitions” and present them as firmly fixed, when [*1081] actually “a minimal amount” of historical research will reveal that many of the most politically significant intuitions are subject to change and predominantly formulated in the context of relations structured by power?

Geuss concludes his book with the central argument that, if political philosophy “wishes to be at all connected with a serious understanding of politics, and thus to become an effective source of orientation or guide to action, it needs to [attain] something like the ‘realist’ view, or neo-Leninism” (p.99). In contrast, he holds, an “ethics-first view” has little to tell us about real politics.

PHILOSOPHY AND REAL POLITICS is an impressive and provocative essay on contemporary Anglo-American political philosophy theory. But Geuss remains vague and is reluctant to expound his methodological position in sufficient detail. He does, however, ask a number of central questions that are usually not raised in this context. But only too often it seems, as if he were writing from exactly that superior position and pedagogical point of view that he is criticizing so heavily –he argues that his is the proper approach to the legitimate political aims.

REFERENCES:
Nozick, Robert. 1974. ANARCHY, STATE AND UTOPIA. New York, Basic Books.

Rawls, John. 1971. A THEORY OF JUSTICE. Cambridge, Harvard University Press.

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

Tully, James. 2008. PUBLIC PHILOSOPHY IN A NEW KEY. VOLUME I: CIVIC FREEDOM. Cambridge (UK), Cambridge University Press.

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© Copyright 2008 by the author, Christoph Konrath..

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THE CONSTITUTION AND 9/11: RECURRING THREATS TO AMERICA’S FREEDOMS

by Louis Fisher. Lawrence, KS: University Press of Kansas, 2008. 384pp. Cloth. $45.00. ISBN: 9780700616008. Paper. $19.95. ISBN: 9780700616015.

Reviewed by Mark Tushnet, Harvard Law School. Email: mtushnet [at] law.harvard.edu.

pp.1074-1077

The distinguished constitutional scholar Louis Fisher turns his attention to the constitutional law of national security in the most recent of his many books. THE CONSTITUTION AND 9/11 is divided into two parts. The first is a survey of the responses by presidents, Congresses, and courts to perceived threats to national security from the nation’s beginning through the end of the Cold War. The second examines several topics that have been – and will continue to be – central to the constitutional law of national security after 9/11. The book’s strength lies in its brisk but thorough recounting of important incidents in U.S. constitutional history, making accessible to today’s readers the facts of events some of which have almost been lost to lawyers’ memories. The book does not, and does not purport to, offer comprehensive legal analyses of contemporary constitutional issues. Fisher expresses his opinions along the way – he is a strong supporter of congressional involvement in determining national security law, and a strong critic of President George W. Bush’s failure to engage with Congress – but readers looking for legal analysis as thorough as Fisher’s historical presentations will have to go elsewhere. Even with this limitation, THE CONSTITUTION AND 9/11 is likely to serve students and scholars well through its presentation of facts relevant to legal analysis.

Fisher begins in Great Britain, where many U.S. constitutional rights originated. He describes the trials of John Lilburne and William Penn, for example (pp.8-10), and stresses how civil liberties emerged in large measure from Parliament’s insistence on involvement in determining how perceived threats to national security should be met. He emphasizes in particular the role of juries and, even more, of openness in criminal trials in securing liberty, and the limited scope of exceptions to trial openness in Great Britain before 1789 (pp.24-28). A chapter on the law dealing with government secrecy follows, with some concluding comments on “when secrecy brings harm” (pp.49-59) by confining information and decision-making to a small circle within the executive branch, thereby depriving decision-makers of input from those whose questions might lead to better outcomes. It should be noted that in this discussion Fisher says little about the possibility that expanding the circle of those with relevant information might lead to damaging leaks (and that the balance between information-sharing and secrecy might therefore be closer than he suggests), or about the possibility that sharing information with people less qualified to understand and evaluate it might degrade the quality of decision-making.

The succeeding chapters are mainly historical. Fisher’s discussion of [*1075] responses to perceived threats in the early Republic and the ante bellum period has an especially clear discussion of the Alien and Sedition Acts (pp.72-82), probably as good a short presentation as there is anywhere. The chapter dealing with the period from the end of the Civil War to the beginning of World War II is something of a grab bag, focusing primarily on the treatment of “undesirable” immigrants but also taking up BUCK v. BELL (1927), the infamous Supreme Court case on compulsory sterilization of the mentally “unfit.” The final historically oriented chapter deals with sedition trials during World War II (pp.131-38), once again presenting material that has often been overlooked in discussions of national security law, and discusses the Japanese internment during World War II and the Cold War loyalty-security programs affecting federal employees.

The second part of the book begins with a crisp history of the uses that have been made of military tribunals to deal with domestic and foreign enemies. Fisher argues perhaps somewhat too forcefully that, although military tribunals with rules different from those used in trials in the ordinary (“civil”) courts have been common in U.S. history, they have always been characterized by a reasonably high degree of due process (at least, relative to the standards prevailing at the time in the civil courts) and, more important, that they have always been authorized and regulated in some detail by Congress. For Fisher, the Bush administration’s efforts to implement military tribunals without substantial congressional participation represent a departure from historic patterns. The chapter on military tribunals concludes with accounts of the cases of Yaser Hamdan (pp.190-97) and Jose Padilla (pp.197-209), filled with helpful detail.

Chapter 7 takes up issues associated with the detention facility at Guantanamo Bay and the three Supreme Court cases dealing with those issues. Fisher focuses first on allegations of abusive practices at the facility, including coercive interrogation techniques amounting in some instances to torture by any reasonable definition, and then deals with court decisions subjecting detention to some degree of judicial supervision. Occasionally Fisher’s accounts of legislative maneuvering provide a bit too much detail, with the forest being lost in the trees of stories about proposed amendments, their rejection, substitutes for them, and more. But overall the chapter gives readers a reasonably good picture of what is at stake in the maintenance of detention facilities since 9/11.

As a preliminary to his treatment of the surveillance programs operated by the National Security Agency (NSA), Fisher describes the development of the general “state secrets” privilege. Some of the cases described in this chapter are reasonably familiar, at least to specialists. So, for example, Fisher summarizes the litigation leading up to and following from UNITED STATES v. REYNOLDS (1953), in which the Supreme Court recognized a particularly strong and – from the point of ordinary citizens—damaging form of the state secrets privilege. He also retrieves more obscure cases, including the captivating series of cases in which spies who had not received what the government promised them sued the government for breach of contract (pp.255-61). [*1076]

Fisher concludes with two chapters on highly classified programs, relying heavily on what has appeared in newspaper accounts and, to some extent, in legislative investigations. Chapter 9 deals with the NSA surveillance program, in which the Agency engaged in some sort of interception of communications from some people to others. That vague formulation indicates one of the difficulties with the chapter (and the following one as well). At present we know about the NSA surveillance program from leaks and incomplete investigations, and we do not know exactly what the NSA did – what the agency’s criteria for surveillance were, exactly what sorts of communications were intercepted, and the like. What we do know is that the NSA did not follow the statutory procedures laid out in the Foreign Intelligence Surveillance Act (FISA), which by its terms purports to provide the exclusive means for authorizing such surveillance. And that is Fisher’s primary point: The Bush administration engaged in a program that lacked statutory authorization.

The final chapter describes “extraordinary renditions.” Fisher lays out the law of rendition clearly: Until recently – here the Clinton administration is the origin of the new issues, not the Bush administration – transfers of those in U.S. custody to other nations was governed by statute and treaty (pp.321-24), and such transfers (“renditions”) were for the purpose of trial and could not occur if the potential defendant would probably face torture in the receiving nation. Extraordinary renditions occur for purposes other than trial – ordinarily, so that the person transferred to another nation can be interrogated – and, importantly, with only feeble assurances that the person will not be tortured to obtain information. Fisher observes that the Bush administration took the public position that its transfers were indeed authorized by statute and occurred only when the government was “assured” that torture would not occur, but he calls these responses feeble (pp.333-39), offering a detailed critique of a public statement made by Secretary of State Condeleeza Rice.

THE CONSTITUTION AND 9/11 contains a great deal of useful information. As noted earlier, its legal analysis is perhaps too brisk. With respect to the NSA surveillance program and extraordinary renditions, and to some extent with respect to other issues, Fisher is hobbled by the fact that we do not yet know enough about the programs to be able to reach confident legal judgments that extend beyond our prejudices either for or against the Bush administration. It seems likely that the Obama administration will do something to bring more information to light, either through prosecutions or, as now seems more likely, through some sort of investigation commission. At that point legal analysis can be more sure-footed.

Fisher’s position on many legal issues could be more nuanced. Here there are two difficulties. Fisher’s primary theme is the importance of congressional participation in setting national security policies of the sort that have become controversial since 9/11. Fair enough, but it is equally important to note that the Bush administration generally did claim statutory authorization for its initiatives, primarily in the Authorization for the Use of Military Force (AUMF) [*1077] against those responsible for the 9/11 attacks. (Incidentally, Fisher makes the – to me – questionable assertion that “there was . . . [no] invasion after 9/11” (p.89) that might justify the suspension of habeas corpus. Unless we place a great deal of weight on “after” in that formulation, that seems to me wrong: The 9/11 attacks were an invasion, I think, and they would justify the suspension of habeas corpus for at least some period afterwards.) Fisher believes that the AUMF should not count as sufficient statutory authorization because neither the language Congress used – “all necessary and appropriate force” – nor any deliberations in Congress indicated in sufficiently specific terms that Congress gave the president the powers he claimed (see, e.g., pp.189-90). Again, this is certainly a defensible position, but Fisher does not explain the source for his standard of specificity – that is, why the AUMF should not count as specific enough.

Second, the historical account Fisher provides is less “civil libertarian” than the tenor of his presentation suggests. Congress and especially the courts tolerated a great deal of procedural sloppiness in immigration matters, for example. And some military tribunals in the Civil War were pretty clearly not authorized by Congress (175-76). Fisher quotes Justice Antonin Scalia on the QUIRIN case: It was “not th[e] Court’s finest hour” (p.176). This is almost certainly true, but its significance is less clear. To the extent that historical practices matter in developing constitutional law, as Fisher appears to believe, even “bad” precedents – bad, that is, from the normative perspective adopted by a critic today – have to have some weight. And, of course, supporters of the Bush administration would not concede that the precedents are bad ones: Administrative procedures falling short of the highest levels of due process were approved by the courts in the past, and that provides a basis in historic practice for accepting similarly truncated procedures today; past presidents established military tribunals different from those authorized by Congress, and that supports the Bush administration’s decision to do the same. Again, one can fairly dispute these uses of historic practices to support contemporary programs, but doing so requires more argument than Fisher provides.

In sum, THE CONSTITUTION AND 9/11 is worth reading for the factual information it provides about the history of constitutional law dealing with national security. It is full of interesting stories, and is an easy read. Readers can take the information the book provides and use it to assess legal arguments they will find more fully presented by other authors.

CASE REFERENCES:
BUCK v. BELL, 274 U.S. 200 (1927).

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

EX PARTE QUIRIN, 317 U.S. 1 (1942).

RUMSFELD v. PADILLA, 124 S.CT. 2711 (2004).

UNITED STATES v. REYNOLDS, 345 U.S. 1 (1953).

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© Copyright 2008 by the author, Mark Tushnet.

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QUEER INCLUSIONS and POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA

QUEER INCLUSIONS, CONTINENTAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES, by David Rayside. Toronto: University of Toronto Press, 2008. 440pp. Cloth $75.00/£48.00. ISBN: 9780802089458. Paper $35.00/£22.50. ISBN: 9780802086297.

POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA, by Miriam Smith. New York: Routledge. 244pp. Hardback $95.00/CDN$120.95. ISBN: 9780415988711.

Reviewed by Daniel R. Pinello, Department of Government, John Jay College of Criminal Justice of the City University of New York. E-mail: dpinello [at] jjay.cuny.edu.

pp.1069-1073

Oh, Canada, shall I compare thee to a Summer’s day?
Thou art far more tolerant than thy southern neigh’.
[Apology to Shakespeare]

Andrew Reynolds (2008) ranked 76 developed and developing countries using six measures of how nations treat their gay and lesbian citizens: “(i) Are same-sex acts between consenting adults legal? (ii) Are same-sex couples allowed to marry or form civil unions? (iii) Can same-sex couples and gay individuals adopt children? (iv) Are there national/federal laws against discrimination on the grounds of sexual orientation? (v) Is homophobia a distinct category of hate crime law? (vi) Does the state ban gay people from military service?” Scores ranged from a high of 5 (for Belgium, Canada, Netherlands, and Spain) to a low of –2 (for Egypt, Malaysia, Saudi Arabia, and Singapore). The United States got a rating of 1.5 and tied with Argentina, Brazil, Ireland, and Israel for 22nd place.

Two leading scholars of comparative lesbian, gay, bisexual, and transgendered (LGBT) politics mount cross-national analyses of similar systems to understand why the Maple Leaf so significantly trumps the Stars and Stripes in the respectful treatment of lesbian and gay citizens. Published within two months of each other, David Rayside’s QUEER INCLUSIONS, CONTINENTAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES and Miriam Smith’s POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA are impressive contributions to the literatures of both LGBT politics and comparative politics.

Smith employs an historical institutionalist approach to understand the policy variation affecting LGBT communities in the two countries. Differences between the North American neighbors in two major policy legacies – prompted by political events far beyond the influence of the sexual-minority community – provide the pivotal setting for her discussion. First, as part of a broad drive to update the Canadian criminal code to reflect changing social mores, the controlling Liberal Party in Ottawa decriminalized private acts of sodomy between consenting adults in 1969, [*1070] the same year that the Stonewall riots in New York City marked the advent of the modern gay rights movement on the continent. In contrast, the wholesale governmental rejection of the criminal sanction against same-sex sexual behavior did not occur in the United States until 34 years later, with the Supreme Court’s decision in LAWRENCE v. TEXAS (2003). That one-third-century lag in a crucial policy change greatly hobbled sexual-minority activists south of the 49th Parallel in their quest to secure broadly based civil rights. If gay and lesbian Americans were presumptive criminals in many states prior to LAWRENCE, what legal or moral basis did their advocates have to argue for protection against employment or housing discrimination, or for custody of, or visitation with, children, or for government recognition of intimate relationships?

The second policy legacy that Smith reasons virtually predetermined substantial disparity between how the two countries treated LGBT citizens was the nations’ very different constitutional histories regarding civil rights. The United States’ equal-protection structure, dependent on a 19th-century remedy for the institution of chattel slavery, begot a complicated three-tiered system that privileged certain groups (most notably African-Americans) over others. What is more, the Democratic Party’s mid-20th-century implementation of the Civil War amendments generated substantial grass-roots backlash against minority groups and ushered in decades of Republican dominance of the White House. Thus, when American lesbians and gay men began pressing in the 1970s for a piece of the equality pie, their claims were dismissed politically as those of just another interest group that, like blacks and feminists, wanted “special rights.”

Canada, by comparison, had no bill of rights enshrined in its constitution until 1982, when the Charter of Rights and Freedoms was added as part of the federal government’s response to Quebec’s threat of secession. Prime Minister Pierre Elliott Trudeau sought to appease the demands of French-speaking Canadians by including explicit protections for francophones in the nation’s premier legal document. The Liberal Party then promoted a unifying political faith that Charter rights were Canadian rights, thus celebrating civil rights protections as positive governmental achievements and boosting public opinion in support of them. Although sexual orientation was not expressly included in the list of the Charter’s protected categories, the document’s itemization was acknowledged to be suggestive and not exclusive. Accordingly, by the following decade, Canadian courts read gays and lesbians into the Charter, and the federal government (now controlled by the Progressive Conservative Party) acquiesced in the judicial decrees. Most notably, in M. v. H. (1999), a case involving a spousal-support claim after the breakup of a same-sex relationship, the Supreme Court of Canada ruled that lesbian and gay couples deserved exactly the same “concern, respect, and consideration” that their opposite-sex counterparts enjoyed. That seminal holding paved the way for favorable outcomes in subsequent provincial litigation over marriage equality, which in turn prompted Ottawa to pass a same-sex marriage bill in 2005. [*1071]

Thus, Smith believes that national histories conspired in important ways to advance gay rights in Canada and to suppress them in the United States. But these policy legacies comprise only the first of the two major arguments in POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA. The book’s other principal contention is that the countries’ disparate institutional structures greatly exacerbated policy differences on LGBT rights. Most consequentially, Canada’s Westminster parliamentary system engenders strong, hierarchically structured political parties and centralizes power in the executive. This comparatively hermetic arrangement afforded little meaningful access to government decision making by social conservatives seeking to thwart the advance of gay rights. Canadian political executives, and the governing party mechanisms they tightly controlled, were largely unencumbered by organized religious opposition to LGBT rights. In contrast, the separation of powers in the United States disperses authority among multiple governmental actors who are much more free from significant party control than up north. In fact, the American religious right successfully infiltrated the Republican Party at both the state and national levels by means of candidate-centered direct primaries. Accordingly, government policymaking in the United States has been far more hostile to sexual minorities than in Canada.

Moreover, Canadian federalism vests the national government with power to regulate both the criminal law and the definition of civil marriage. In the United States, by comparison, states possess both the police and domestic relations powers. Furthermore, unlike Canadian provinces, states have their own constitutions, which often are easily amended by legislatively proposed referenda and by citizen initiatives. Thus, the American fight for gay rights has been highly decentralized, and policy advances have frequently been offset by conservative local and state backlash.

LGBT interest groups in the United States have had to marshal massive resources both to initiate change and to resist counter-movements at the national, state, and local levels. At the beginning of the 21st century, for example, the combined annual incomes of the largest American LGBT advocacy organizations exceeded $50 million, while the assets of the principal interest groups opposing marriage equality surpassed $200 million (Cahill 2004). Smith notes that, “the budget of Egale, the main gay and lesbian group favoring same-sex marriage in Canada, was less than $350,000 in 2004 at the height of the same-sex marriage campaign” (p.160). In other words, with more than a hundred times the financial resources of their Canadian counterparts, American LGBT advocates, facing adversaries four times as wealthy, achieved just a fraction of the enduring policy successes enjoyed by Canada’s sexual minorities. The estimated $70 million spent by both sides in the 2008 campaigns for and against California’s Proposition 8 highlights the costly interest-group warfare over marriage policy in the United States. Such expensive extra-party policy contestation is unknown in Canada. What a difference institutions do make. [*1072]

QUEER INCLUSIONS, CONTINENTAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES is a rich and sprawling chronicle that is less theoretically driven than Smith’s work. Instead, David Rayside’s book focuses on the empirical complexity of differences between the two nations in three issue areas: relationship recognition, parenting, and schooling. While the volume is a superb overview of late 20th-century North American histories on the first two topics, those ample narratives are already substantially covered in the political science and legal literatures. Rather, the extensive investigation of concerted action in primary and secondary education to confront bullying and harassment based on sexual diversity or gender deviation, as well as to acknowledge such human variation in school curricula, constitutes the most notable contribution of Rayside’s new work.

Laying the groundwork for subsequent empirical chapters, Rayside argues that “Inclusive schools would need to acknowledge sexual diversity respectfully, from elementary grades on” (p.72) and condemns the harm done by the traditional silence of educators with regard to sexual diversity and their inaction when sexual-minority students are faced, often violently, with homophobic intolerance. Among the book’s wealth of facts and figures is the horrifying statistic that “Every significant study of youth suicide in Canada and the United States shows that gay youth are at least three times more likely than heterosexual youth to attempt suicide and succeed in the attempt, and many studies show much more alarming ratios than that” (p.73). Then, in more than 60 pages, the narrative chapters on schooling provide abundant details about specific school system incidents and court cases.

Surprisingly, unlike virtually every other policy issue addressed in these two cross-national studies, public education reveals greater progress for LGBT citizens in the United States than in Canada. Rayside is particularly heartened by the widespread presence of Gay-Straight Alliances in American schools, as well as the vibrancy of the country’s Gay, Lesbian, and Straight Educators Network (GLSEN). He attributes the United States’ comparative success in part to its far more highly developed LGBT interest-group system, which provided significantly enhanced opportunities for sympathetic teachers and parents to confront homophobic bullying and harassment in school houses and yards.

To the degree that QUEER INCLUSIONS, CONTINENTAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES is concerned with unifying theoretical explanations for the volume’s spacious empirical vista, the work attributes LGBT-policy variation between the two countries in large measure to differences in political culture, placing particular importance on the influence of American religious fundamentalists. Americanists with little consequential knowledge about politics in Canada would likely agree with Rayside’s assessment. Yet POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA [*1073] persuasively challenges whether a political-culture account for the cross-national policy variation is adequate. Consider this passage from Miriam Smith’s book: “Same-sex marriage opponents [in Canada], including evangelicals, were outflanked by party leaders, and because of the system of party discipline, [marriage-equality adversaries] were not able to exercise influence. In addition, the logic of the Charter [of Rights and Freedoms] was the logic of the Liberal Party, which created a conflict between Charter values and religious values in the case of some MPs, almost certainly including Prime Minister Jean Chrétien and his successor, Paul Martin. In the face of the conflict between the Roman Catholic religion in which they had been raised and the logic of the Charter rights and values which they saw as central to the success of the Liberal Party and as attributes of Canadian nationhood, religion lost and the Charter won” (p.160).

The Smith volume will likely emerge as the definitive analysis of its comparative politics topic. Yet the work does raise concerns. For example, the “historical” part of historical institutionalism is troublesome. As noted, the scholarly examination here begins around 1969, when consequential gay activism first appeared in North America. Indeed, the year of the Stonewall riots marks the chronological starting point of much LGBT scholarship, in both political science and other disciplines. Nonetheless, from the perspective of an institutionalist investigation, the choice of 1969 is arbitrary – and convenient. As Smith convincingly argues, the Canadian federal government’s decriminalization of consensual sodomy – coincidentally occurring in 1969 – was crucially important to later political progress for LGBT citizens living under the Maple Leaf. But criminal code reformations in the 1960s were not unique to Canada. In fact, the American Law Institute’s Model Penal Code decriminalized consensual sodomy and formed the basis for that crime’s repeal in Illinois as early as 1961. In other words, institutional differences may, or may not, account for the policy legacies so vital to Smith’s historical institutionalism.

REFERENCES:
Cahill, Sean. 2004. SAME-SEX MARRIAGE IN THE UNITED STATES: FOCUS ON THE FACTS. Lanham, MD: Lexington Books.

Reynolds, Andrew. 2008. “The Presence and Impact of Openly Gay and Lesbian Politicians in the Parliaments of the World.” Paper presented at the Annual Meeting of the American Political Science Association, Boston, August 28-31.

CASE REFERENCES:
LAWRENCE v. TEXAS, 539 U.S. 558, 123 S.Ct. 2472 (2003).

M. v. H., S.C.J. No. 23 (1999).

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© Copyright 2008 by the author, Daniel R. Pinello.

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WAR AND THE LAW OF NATIONS; A GENERAL HISTORY

by Stephen C. Neff. Cambridge, U.K.: Cambridge University Press, 2005. 456pp. Cloth £65.00/$120.00. ISBN: 9780521662055. Paper. £23.99/$45.00. ISBN: 9780521729628. eBook format. $85.00. ISBN: 9780511124082.

Reviewed by Walter J. Kendall, III, Professor of Law, John Marshall Law School, Chicago, Illinois. Email: 7kendall [at] jmls.edu.

pp.1064-1068

This prize winning book has just been reissued in a paper edition. It is a study of the concept of war, specifically the legal concept and its implications for going to war, for how wars are fought, and how they are ended – jus ad bello, in bello, and post bello.

Stephen Neff, a Reader in Public International Law at Edinburgh argues that it was not until war was no longer thought of as natural or inevitable that a legal concept could form. It first had to be thought of as a matter of conscious human choice (p.9). It could then be seen as a distinct feature of life, subject to norms, rules, even laws as are all other features of social life. He identifies war as a subset of normal human conflict characterized as a collective public armed yet rule-bound undertaking, targeted at foreign peoples.

Each of the underlined words is important for comprehending the development and evolution of the legal understanding of “war” as a distinct social event or experience. These words serve as a template for the rest of the book. They make it possible to distinguish criminal behavior, duels, riots, terrorism, and rebellion for instance, from war itself. These deconstructions of the larger concept of armed conflict in turn facilitate the development of regulatory rules and laws. Without such a distinction any rule developed would be so general, with so many exceptions, as to be no rule at all. Marking war off from peace by the use of some form of declaration of war, has prehistoric roots, although the particular methods vary greatly over time (p.26). Gentili is credited with being the first post-medieval legal theorist to discuss the methods of both initiating and terminating war (pp.103, 115).

After tracing these distinctions back to early mythology, both western and eastern, Neff fast forwards to “one of the most momentous ideas in human history . . . that war could and should be employed . . . for the subduing of evil and the promotion of good – that it should be an instrument of law, rather than of greed or ambition” (p.29). This notion of a “just war” not only recognizes war as intentional, it also assumes the normal condition of inter-societal affairs is peace. “The conception that peace was the natural condition of the world would seem to have been first articulated in China, in the Confucian tradition” (p.31). The stoics later developed a similar view which they elaborated to include universal norms of behavior (p.32).

Christianity for several centuries seemed to consider war as impermissible. The [*1065] only alternative to bad government and obedience to laws requiring “sinful” behavior was martyrdom. Constantinianism and the threat presented by the barbarian invasions provided a frame into which Ambrose and Augustine could paint both Pauline obedience to Caesar, and the duty to protect the vulnerable, resulting in a militarized Christianity.

This transformation in thought makes Chapter 2, “Loving Enemies and Hating Sin,” most interesting. Its discussion of “the conception of war that underlay and pervaded (the medieval Christian just-war doctrine) and which flowed from it” (p.54) resonates as it does because the issues raised are so modern. In fact Neff ends his study with an extended and detailed discussion of the post-World War II period, labeled as “just war reborn” (p.277).

The daunting, perhaps impossible risk of formulating humane and yet efficient laws of war is illustrated by the paradoxical admonition of Paul which begins this chapter “Let us do evil, that good may come” (p.39). When necessity was the single great principle applicable to the conduct of war, not surprisingly, moderation was not the norm (p.73). Despite codes of chivalry, slavery, torture, destruction and confiscation of property, crusades, and the conquest of native peoples were the norm from Augustine to Aquinas, even to Vitoria in the 16th century.

One bridging thinker, who Neff overlooks and whose work had a significant impact on the laws of war, is Bartolome de Las Casas. Las Casas penned the first coherent and compelling defense of the rights of indigenous people, in effect formulating rules or norms to regulate the conduct of the Spanish conquerors in the Americas (Gutierrez 1993).

Neff sets the evolution of the legal conceptualization of war in four long but unequal historic periods: to 1600; 1600-1815; 1815-1919; 1919- ____. Neff himself recognizes that adopting a different periodization could change the meaning of events, by in effect creating similarities and differences, even trends that are not there so to speak. The German language has a term that describes the significance or effect of periodization: verfremdungseffekt, which can be translated in this context as to make the familiar seem strange or vice versa. Be that as it may be, Neff’s periodization permits him to focus on the following question: “is it better that war be sharply cut off in a legal sense from peace, and ruled by principles that are, as it were, tailor-made for it (o)r is it preferable to dissolve all barriers between war and peace to the greatest extent possible, to live in a single, undifferentiated legal and moral world at all times?” (p.397). He does not answer his own question. Rather he offers his book as a series of period pieces providing insight into the challenges and dilemmas of trying to cabin war in legal categories.

Rules in war have always existed. Certainly by the time of the Jewish Bible and Sun Tzu’s Art of War there is a strong sense that wisdom and knowledge rather than strength and brute force won wars (p.21). However, it was not until the 1863 Lieber Code that there was a generally accepted detailed, even seminal, codification and exposition of the laws of war (p.186). [*1066]

In the period from Vienna to Versailles, there was an intense debate between three competing schools of legal thought about war as such. The mainstream view running from Grotius to Vattel tried to combine the medieval, natural law just war understanding with a new more consensual voluntary law of nations (pp.95-96). Such a dual vision of externally imposed and voluntarily accepted norms was inherently unstable. It is frankly amazing that it preserved peace and limited war when it broke out as well as it did for almost 200 years.

Hobbes challenged the central tenet of this mainstream view, that peace was the norm. He famously described life in the state of nature as nasty, brutish and short. Pufendorf’s thought on the other hand shows more or less clearly the influence of the other school of thought about war (p.137). This was a contractual or dueling view which accepted peace as the norm; but it asserted that conduct during war was determined by agreement between the warring parties, rather than for any natural law.

“Nowhere was the distinction between the three schools of legal thought about war so sharply etched as in the area of neutrality” (p.151). Logically, the just war aspects of the mainstream view left no room for neutrality. Just wars were struggles between good and evil; neutrality was impossible, one was either with or against the Good. By contraast, both the Hobbesian and duelist views recognized that third parties are not directly involved in the war. However, they had different views of the rights of neutrals. Hobbes argued that belligerents had a right to protect themselves from “neutral” acts that aided the enemy. Thus, neutral ships could be boarded and their weapons and supplies confiscated. The duelist or contractual school resolved such “conflicts” in the neutrals’ favor; belligerents had no rights to interfere with neutrals in the exercise of their normal activities.

When the mainstream view did come to recognize neutrality, it sought a middle ground. In the 18th century it was generally accepted that enemy goods being shipped on neutral vessels were, except for weapons, free from capture and confiscation (“free ships make free goods”) (p.154).

Neff discusses the 19th century transformation of war into an instrument of state policy in Chapter 5 under the title, “Collisions of Naked Interest.” He argues that “jus ad bellum . . . shriveled into virtual nothingness” during this period (pp.163-164). At the same time, jus in bellum was revitalized and developed across a range of issues. This era (1815-1919) was the period in which the Red Cross was founded and the first Geneva Convention and early Hague Conferences occurred; and also as mentioned earlier, the Lieber Code. Neff asserts that these rules of war had a “sporting ethos” at their core (p.189) which necessarily meant that war was of a limited nature. The sense of limitation was reinforced by the Martens clause (p.210). The belief at the time was that these rules would prevent any further “total” wars such as the Napoleonic Wars (Bell 2008).

Equally significant is the fact that these legal understandings of war opened the door to “interventions” into the disputes of other states and even into their [*1067] internal matters – with all the attendant risks of abuse and dangers to peace (pp.219-229).

Finally, Neff discusses the very long and open-ended period, beginning in 1919 with the Treaty of Versailles and the League of Nations. Neff argues that, although the League of Nations and especially the Pact of Paris (the Kellogg-Briard Pact) were attempts to restore the much earlier just-war era, legal thought stayed anchored in the 19th century. Obviously neither was able to succeed in the 20th century.

Neff presents in capsule form some of the efforts and thinking of the international legal establishment that are otherwise left out of or rushed past in all but the most specialized studies of the period. These include efforts to understand acts that do not quite fit under the understanding of war but involve armed conflict: acts such as self-defense (pp.303-307); the “new neutrality,” a policy of quarantine or boycott (pp.307-311); and FDR’s lend-lease efforts at “non-belligerency” (pp.311-312).

After the breakdown of the League of Nations order, if it ever existed, and World War II, the United Nations was established. The Charter sought to end war as such. It allowed for self-defense, but only until the U.N. itself or regional organizations, acting as law-enforcement authorities, could intervene. As is well known, for a variety of reasons the basic structure failed to the extent there were dozens of small hot wars in the following 50+ years. Yet perhaps it did succeed. Doesn’t the U.N. deserve some credit for the fact that the big hot war we all feared, remained cold? Certainly Nuremberg and its progeny have had salutary impacts as sources of law and preservers of memory each of which are necessary, if not sufficient, conditions for peace and justice.

Yet obviously that is not the end of the story. There is the uneasy sense that the notion of a “state of war” with all its attendant rights of belligerents, killing, destroying and capturing co-belligerents, people and property, is still a legal category (pp.347-356). And as Neff entitles his penultimate chapter, there are “New Fields of Battle” (p.357), specifically, civil disturbances and terrorism.

Neff says the law has recognized four or five categories of civil disturbance: sporadic acts of violence; “ordinary internal armed conflict;” situations where the rebels have established some control; national liberation struggles; and perhaps something akin to interstate war (p.375).

And then there is terrorism. While there is a history going back hundreds if not thousands of years of random acts of violence, what makes terrorism different is that the motivation is neither riches nor even power. Rather, the violence is motivated by ideology, often shared by a group. Otherwise it remains a simple crime, however despicable. Since it is more than a mere crime, but certainly different from war as historically understood, this form of armed conflict has challenged traditional thinking about international law, human rights, and humanitarian law.

Neff’s template with which he began (collective, public, armed, rule-bound, and foreign) has served well. Certainly [*1068] he has offered valuable insights into the function of declarations of war, into why states go to war, and into the concepts of neutrality, reprisal, and self-defense. However, Neff gives too little attention to treaties and the significance of the end of a war as the other half of what marks war off from peace. There are two brief mentions (pp.117-119, 210-214), but the significance of jus post bello and the question “does peace lead to war?” (Hughes and Seligmann 2002) receives less attention than one could reasonably have expected. Nevertheless, by taking us behind the rules one can see how the legal notions he develops in depth were different in each of the periods he constructs.

While Neff says in his introduction that we will see that “war has moulded law at least as surely as law has moulded war” (p.2), frankly he fails to deliver on this promise. There are some cause and effect statements throughout, but no real causal analysis of the conceptual transformation he so carefully describes. Be that as it may be, Neff provides a much deeper analysis of the logic of ideas about war than either Kennedy in his short essay (Kennedy 2006) or Bobbitt in his encyclopedic tome (Bobbitt 2002). This book is highly recommended to those interested in either the history of ideas, or international law.

REFERENCES:
Bell, David A. 2008. THE FIRST TOTAL WAR: NAPOLEON’S EUROPE AND THE BIRTH OF WARFARE AS WE KNOW IT. New York: Mariner Books.

Bobbitt, Philip. 2002. THE SHIELD OF ACHILLES: WAR, PEACE, AND THE COURSE OF HISTORY. New York: Alfred Knopf.

Gutierrez, Gustav. 1993. LAS CASAS: IN SEARCH OF THE POOR OF JESUS CHRIST. Maryknoll, NY: Orbis Books.

Hughes, Matthew, and Matthew Seligmann. 2002. DOES PEACE LEAD TO WAR? PEACE SETTLEMENTS AND CONFLICT IN THE MODERN AGE. Phoenix Mill, UK: Sutton Publishing.

Kennedy, David. 2006. OF WAR AND LAW. Princeton, NJ: Princeton University Press.

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© Copyright 2008 by the author, Walter J. Kendall, III.

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FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE

by Malcolm M. Feeley and Edward Rubin. Ann Arbor, MI: University of Michigan Press, 2008. 238pp. Cloth. $35.00. ISBN: 9780472116393.

Reviewed by Christopher Brooks, Department of History, East Stroudsburg University. Email: cbrooks [at] po-box.esu.edu.

pp.1061-1063

It is notable that, “federalism represents a compromise among groups who refuse to yield autonomy yet acknowledge the benefits of forming a nation” (book jacket). It is true that the eighteenth-century US was confronted with addressing how to apply such compromise when, “thirteen regionally distinct, ethnically diverse, and highly independent British colonies came together to found a nation” (book jacket). What has happened according to the Malcolm Feeley and Edward Rubin, authors of FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE, “the rise of a strong national identity and a ubiquitous bureaucracy” has lead to federalism in the US becoming “obsolete” (book jacket).

Beyond laying out federalism’s meaning, differentiating it from other structures, such as consociation, one of the main the objectives of FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE “is to . . . consider the implications of our argument for the structure of the American federal system” (p.x). That implication is made plain early on, as Feeley and Rubin maintain that “federalism in the United States is . . . managerial decentralization,” and that, because “outlier states” are not able to act in accordance with their own consciences, “federalism is no longer an operative principle in the United States” (p.ix). The US applies federalism for purposes of identity, but this application, according to Feeley and Rubin, is not true to the terms of actual definition.

As Feeley and Rubin define federalism, scholars might come to realize that this definition does not fall in line with what America utilizes as a system. Indeed, to avoid dealing with this issue, some who have or currently do teach about American federalism abroad sometimes tend to simplify a potentially consequential faux pas in terminology by simply stating that we in the US are referring to (US-)American federalism, acknowledging its difference from that of so many other nations. It appears that Feeley and Rubin would agree, suggesting further that America’s structure is not even federalism as understood elsewhere. For example, according to DAS POLITIKLEXIKON, by Schubert and Klein (2006), federalism “represents a political order in which governmental tasks between the entire state and individual states is divided. And, this is done so that both political levels are individually responsible for specific, constitutionally stipulated tasks” (C. Brooks translated this passage). This point is of tremendous import to the veracity of the Feeley and Rubin definition, as “federalism generally results in a high [*1062] level of decentralization, decentralization does not lead to federalism” (p.21).

From a historian’s perspective, there seems to be a piece missing. If thirteen colonies were autonomous from the start – as often presumed – where is the grant from a central regime? Or, is such granting merely a hyper/pseudo-reality? As Jack Rakove once queried, “Which came first, the Union or the states?” (Rakove 1996, at 163). Rakove’s question is still debated, thus making it difficult to state, as Feeley and Rubin do, that the federalism that the US claims to have is really not federalism. The term is used almost solely for purposes of political identity but is a false label, creating a hyper/pseudo-reality. Until a consensus has been achieved, it is difficult to say in what direction the nation should go with respect to terminology. Although Rubin and Feeley are correct with respect to where the nation is today, or at least where it is heading, is it an absolute certainty that the nation will continue to strengthen the central powers, negating any true federalist proclivities the Founders may have had?

Further, the omission of a more comprehensive discussion of dual sovereignty is problematic. To be sure, taking a close look at Madison’s conception in his FEDERALIST essays may have proven fruitful to their thesis. In FEDERALIST 39, Madison (at 307) notes that the “idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.” He then goes on to articulate that “the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere” (Madison, at 308). And with this, American dual sovereignty is articulated.

In this, which would have strengthened Feely and Rubin’s thesis, Madison argues that the nature of the Constitutional amendment process is neither entirely federal nor national (Madison, at 307-308). Such a text deserved attention and, to borrow from Geertz, would have thickened the description of the terms they were attempting to clarify.

What the US has, in the words of an earlier article by Rubin, is “puppy federalism;” “real federalism is gone,” and scholars should stop believing the “rhetoric and mistaking puppy federalism for the real thing . . . America is a centralized administrative state” (Rubin 2001, at 49). Indeed, Americans should be pleased, because “our nation no longer needs this unfortunate expedient” and should concentrate its “attention on complex and important issues, such as [by focusing on] the optimal way for a national government to supervise the regional subordinates that we continue to describe as states” (Rubin 2001, at 49). In short, Rubin, consistent to this argument and with the concurrence – if not the total agreement – of Feeley, has laid out a treatise on this theory worthy of attention, as US historians, lawyers and political scientists alike should perform a serious re-evaluation of the words we apply to describe the US political system. The trouble with this thesis, however, lies in [*1063] the fact that many Supreme Court decisions rather clearly admonish the move toward central authority and away from a truer federalism. A case indicative of this notion is ALDEN v. MAINE (1999), in which the Court held that the states “are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty” (at 715). Perhaps herein lies the problem that Rubin and Feeley are driving at when attacking the sense of Justice Scalia’s opinion in PRINTZ v. U.S (1997). The authors accurately point out that “legislative commands to administrative officials” first make an appearance relatively recently (p. 141). The more critical issue, however, is that the tenth amendment’s provisions seem to conflict with a number of other constitutional stipulations – Congressional reach being one of them – and the Court has on occasion leaned toward the supremacy clause as a means of providing natural right protections states historically had refused to afford some citizens. That said, there is nothing preventing the Court from leaning in favor of states’ rights and the tenth amendment, as stare decisis is not absolute in the American system (e.g., U.S. v. LOPEZ 1995).

Ambiguity of terms of the Constitutional arrangement was quite possibly a means of compromise with the intent of allowing the US to develop into precisely the system which Rubin and Feeley have observed. By contrast, there is no clear consensus on this and no indication that believers in American Federalism (e.g. Justices Thomas and Scalia) are likely to capitulate. Hence, the debate continues and Feeley and Rubin have made a worthwhile contribution to it.

REFERENCES:
Madison, James. 1998. THE FEDERALIST 39. (John C. Hamilton (ed)). Washington, DC: Gateway Editions.

Rakove, Jack. 1996. ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION. New York: Alfred A. Knopf.

Rubin, Edward L. 2001. “Puppy Federalism and the Blessings of America.” 574 THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 37-51.

Schubert, Klaus and Klein, Martina. 2006. DAS POLITIKLEXIKON (4th ed). Bonn: Dietz.

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

PRINTZ v. UNITED STATES, 521 U.S. 898 (1997).

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

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© Copyright 2008 by the author, Christopher Brooks.

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