FOUNDING FAITH: PROVIDENCE, POLITICS, AND THE BIRTH OF RELIGIOUS FREEDOM IN AMERICA

by Steven Waldman. New York: Random House, 2008. 304pp. Cloth. $26.00. ISBN: 9781400064373.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University, jvile [at] mtsu.edu.

pp.251-254

The popularity of recent biographies suggests that Americans continue to revere the Founding Fathers and to look to them for answers for contemporary questions. Steven Waldman taps into this reverence by examining the attitudes of these Founders respecting religion and matters of church and state. FOUNDING FAITH suggests that the Founders, who distinguished themselves as statesmen rather than as theologians, are better guides to the latter than the former. Waldman further argues that even with respect to matters of church and state, their views are worthy starting points for further discussion rather than definitive formulations that can resolve issues of our own time.

After an initial chapter on early American settlers, in both North and South, who valued religious freedom for themselves but did not extend it to others, Waldman focuses on the views of Benjamin Franklin, and on the first four presidents. Each of these founders emerges through Waldman’s portrait as a religious man committed to fairly wide freedom of religion. Although none appears to have been theologically orthodox, none quite appears to fit the Deist label that scholars often attach to them.

Franklin’s views were among the most interesting. Although Waldman does not call him a Gnostic, the categorization seems to fit Franklin’s belief that an infinite God might have created individual Gods for different solar systems. While doubting the divinity of Christ and stressing a religion of good works rather than personal faith, Franklin expressed a Christian-like hope for the resurrection of the body.

Washington had a clear sense of God’s Providential Care over his own life and the birth of the nation, practiced toleration of Christian and non-Christian faiths both as a military leader and as a president, and may have been more influenced by his membership in the Masons than by his membership in the Episcopal Church. As president he issued Thanksgiving Proclamations and commended religion as essential to good government.

Adams long advocated state support of religion and was, through much of his life, strongly anti-Catholic. During the Revolution, Adams shared the idea that God was exercising his Providential care on behalf of the American cause, and, although he signed a treaty with Tripoli specifically denying that the United States was a “Christian nation” (p.160), some of the proclamations of Thanksgiving that he issued as president suggested that he believed God favored Federalist causes. [*252]

Jefferson, who concealed from the public his attempt to rewrite the New Testament to exclude accounts of miracles, admired Jesus as a great moral teacher but did not believe he was divine. Jefferson nonetheless garnered evangelical support and attended church services in the nation’s capitol building. Waldman provocatively suggests that Jefferson’s faith in God was based largely on his belief in a form of “intelligent design” (p.84).

Observing that there were more than 150 incidents of persecution of Baptists, which Waldman describes in vivid detail, in the vicinity of Virginia where Madison lived, Waldman suggests that these events shaped Madison’s views of religious toleration more than “ideas from Europe” (p.100). Madison advocated free exercise over mere toleration, resisted Patrick Henry’s plans for a religious assessment, and ultimately succeeded in adopting the Virginia Statute for Religious Liberty that Jefferson had proposed. While scholars continue to debate Madison’s religious beliefs, Waldman believes that Madison strayed ever farther from the theologically orthodox teaching to which he was exposed at the College of New Jersey (today’s Princeton), but expressed confidence that more robust faiths, including Christianity, would flourish in a regime that honored freedom.

Charles W. Dunn (1984) has made the same point, but Waldman emphasizes that Deists and evangelicals were more likely to be allied than at loggerheads during the early republic. The Founders emphasized both faith and reason, and “Deists were using Christian language, and vice versa” (p.89). Thus, despite his heretical religious views, many Evangelicals strongly supported Thomas Jefferson, and Madison mustered Baptist votes to be elected to Congress. Waldman further emphasizes evangelical support for the American Revolution. This support stemmed from opposition to British recognition of Catholicism in Canada and to fears that Britain was about to establish Anglican bishops in America.

In contrast to those who would characterize the US Constitution as “godless,” Waldman believes that “it was pro-religion, but in a way that was not obvious to all.” More specifically, Waldman believes that “The Constitution demanded a paradigm shift, away from public responsibility and toward private” (p.134). In tracing the birth of the First Amendment, Waldman notes that pragmatic compromise might have been as important as the views of James Madison. Recognizing that the Amendment was initially designed to limit the national government rather than the states, Waldman does observe that the Bill of Rights was “intended to restrict government power, not expand it.”

Waldman’s discussion of the approaches to the First Amendment by the early presidents is especially important. In Waldman’s description of the letter to Danbury Baptists where Jefferson introduced the metaphor of the wall of separation of church and state, Waldman demonstrates that Jefferson specifically referred to a wall between the national government and the state, although more generally Jefferson also disfavored government encouragement of religion.

Waldman oversimplifies when he suggests that the decisive blow for [*253] separation of church and state occurred not with the adoption of the First Amendment but “when Lee surrendered at Appomattox” (p.189), but his point is that it took the Fourteenth Amendment, and subsequent judicial interpretations, to apply the First Amendment to the states. On one occasion when Waldman cannot be sure of details, he asks that readers “imagine” a conversation between James Madison and John Leland (p.137), but he generally avoids speculation and, on most occasions steers deftly between both liberal and conservative fallacies, which he uses as foils, respecting the Founders. Thus, he concludes that most Founding Fathers were neither Deists nor conservative Christians; he denies that the First Amendment mandated absolute separation of church and state while similarly denying that the idea is a twentieth century invention; he denies that separation of church and state is necessarily antireligious or that the Framers had figured out all related issues.

Waldman believes that Madison’s views on church and state were the most influential and the most profound, but he ultimately recommends avoiding “using the Founders as historical conversation stoppers” (p.196). The issue is not whether modern practices are “constitutional” but whether they are “wise” (p.197). Having highlighted the Founders’ own tolerant attitudes toward others, Waldman suggests that “we should all cut each other some slack.” He thinks most current debates address marginal issues, and that we should seek to understand those who differ from us as “inaccurate” rather than as “corrupt,” “mistaken,” or “evil” (p.198).

As the editor of Beliefnet.com and former editor of U.S. NEWS & WORLD REPORT, Waldman writes in a readable style that will engage most readers and only occasionally shock more advanced scholars – as when he suggests gently slapping James Madison and asking him what he meant by the First Amendment (p.154)! Waldman’s endnotes and bibliography indicate familiarity with most primary and secondary sources. He knows that the Continental Congress added some of the references in the Declaration of Independence that scholars sometimes attribute to Jefferson and that Madison crafted a number of Washington’s documents that make similar references. Occasionally Waldman will miss an issue as when he reports (p.160) that Washington said “So Help me God” when taking his oath without indicating that there is a contemporary dispute about the matter, but he is generally aware of nuance. Thus, he correctly reports that the Constitutional Convention did not adopt Franklin’s proposal to begin each day’s proceedings with prayer and reasonably suggests, with reference to an earlier Continental Congress, that delegates may have failed to do so for fear that choosing a chaplain would further divide the group.

Readers interested in the Founders’ faith should also consult David L. Holmes’ THE FAITH OF THE FOUNDING FATHERS (2006), which has a particularly interesting chapter on the faith of founding wives and mothers, and Jon Meacham’s AMERICAN GOSPEL: GOD, THE FOUNDING FATHERS, AND THE MAKING OF A NATION (2007), which is also written for a popular audience. Scholars who are more interested in subsequent legal [*254] developments, and especially in US Supreme Court decisions, can do no better than Martha C. Nussbaum’s magisterial LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY (2008). Whereas Waldman highlights Madison and the First Amendment, Nussbaum’s book underlines the important role that Roger Williams and principles of equal protection have played in justifying religious freedom. Mark A Noll and Luke E. Harlow have further explored the continuing role of religion in the US in the second edition of their RELIGION AND AMERICAN POLITICS: FROM THE COLONIAL PERIOD TO THE PRESENT (2007). Ironically, at a time when scholars probably know more about the Founders’ own views of religion than ever, evidence also compels us to be less dogmatic in hypothesizing how they would have resolved today’s most divisive controversies.

REFERENCES:
Dunn, Charles W. (ed). 1984. AMERICAN POLITICAL THEOLOGY: HISTORICAL PERSPECTIVE AND THEORETICAL ANALYIS. Westport, CT: Praeger.

Holmes, David L. 2006. THE FAITH OF THE FOUNDING FATHERS. New York: Oxford.

Meacham, Jon. 2007. AMERICAN GOSPEL: GOD, THE FOUNDING FATHERS, AND THE MAKING OF A NATION. New York: Random House.

Noll, Mark A, and Luke E. Harlow (eds). 2007. RELIGION AND AMERICAN POLITICS: FROM THE COLONIAL PERIOD TO THE PRESENT. New York: Oxford.

Nussbaum, Martha Craven. 2008. LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY. New York: Basic Books.

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© Copyright 2008 by the author, John R. Vile.

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AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR

by Christian G. Fritz. New York: Cambridge University Press, 2008. 440pp. Hardback. $80.00/£50.00. ISBN: 9780521881883.

Reviewed by Justin Wert, University of Oklahoma. Email: jwert [at] ou.edu.

pp.246-250

The last decade has witnessed an increasing and sustained analysis of “popular constitutionalism” as a historical and normative object of study in constitutional law and theory. Among legal academics, Larry Kramer’s, “THE PEOPLE THEMSELVES,” and Mark Tushnet’s, TAKING THE CONSTITUTION AWAY FROM THE COURTS, are perhaps the most recent and well-known attempts to give new life to the important role that non-judicial political actors – and even citizens more generally – have played in giving meaning to the constitution. Among political scientists, Keith Whittington’s CONSTITUTIONAL CONSTRUCTION is still the most thorough account of the important role that other American institutions (including Congress, the Executive, and state legislatures) have played in constructing constitutional meaning. More generally, the “regime politics” literature, situated mostly in political science, has amassed an impressive account of constitutional change more broadly in American politics, as it has resurrected and modified Robert Dahl’s singularly influential account of the Supreme Court during the height of the behavioral revolution (Keck 2007; Dahl 1957). These accounts of Constitutional theory, change, and development, though, are not new. Starting with Walter F. Murphy, there has been a small, but nevertheless influential, cadre of scholars like William F. Harris II, James Fleming, Sotirios Barber, and Wayne Moore, who have zeroed in on issues of departmentalism, judicial supremacy/judicial review, and the imperfect relationship between limited government and democracy that characterizes the entire enterprise of written constitutionalism in the United States. All of these accounts and approaches have led to a much greater understanding of the role that a more robust understanding of constitutionalism – as the full panoply of governmental institutions – has played in accounting for political change and development.

In AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR, Christian G Fritz (Law, University of New Mexico) has contributed a smart and very useful volume that further seeks to delve into the original understandings and subsequent development of how a sovereign American people understood their new political identity during the antebellum period. What is particularly useful is the developmental emphasis of his account that assumes neither a stasis in this understanding of the people’s sovereignty nor a singular explanation of its development. [*247]

Fritz contends that modern scholarship on questions of the “people’s sovereignty” (as opposed to the more infamous moniker of ‘popular sovereignty’) suffers from two distinct and potentially fatal premises that he seeks to correct in AMERICAN SOVEREIGNS. First is the notion that the people’s sovereignty is a fictional construction (Morgan 1989). And second, is the idea of the people’s sovereignty that assumes a fixed or “background notion” definition and understanding, mostly attributed to Larry Kramer (2005). These two reigning theories are effectively set aside in Fritz’s volume.

Fritz first introduces two related, but distinct, notions of the people’s sovereignty that the Founders – and subsequent political generations up to the Civil War – employed in their understanding of what it meant in theory and practice for “the people as the sovereign whose written constitution grants and guides the legitimate exercise of government authority” (p.1) to rule themselves. The first of these two “lost” ideas is an understanding of the people’s sovereignty as an “expansive” notion of one that “adhe[res] to procedures specifying constitutional change” for “determining the will of the sovereign” but is not necessarily bound by those procedures in creating constitutional change or legitimizing it. This perspective is “expansive” because it seems to operate with little to no boundaries that the sovereign people respect in terms of governing themselves under written constitutions (p.3). The second is a “constrained” view that made “procedure” the test of legitimacy. The “people” certainly gave their consent and authority to create written constitutions that would bind themselves at some original point, but the subsequent role of the people was to be a “passive” one in which they authorized only their duly elected representatives to rule in their name. The “constrained” view of sovereignty, however, was not as plastic as we would assume, for this view also condoned change outside of formal procedures (p.4).

Thus, aside from the Founding generation’s general agreement that the people were sovereign, these two distinct and often times contentious approaches characterized the antebellum period’s approach to sovereignty. Moreover, because these two approaches were contending approaches, Fritz is able to suggest – and show – that there was a considerable, but by no means settled, conception of the people’s sovereignty.

The book is divided into three substantive sections with more substantive chapters explaining each section. In Part One, Fritz details the Revolutionary and early state understandings of the people’s sovereignty. Initially confronted with the gravity and importance of having the ability to be their own sovereigns, Americans moved from British theory to American practice in accepting and implementing their newly won role as the author of their own political world. However, the only real agreement during this period was the more general notion that the people were sovereign, not how or what that sovereignty looked like. Fritz demonstrates the remarkable degree of diverse understandings of just how this idea was put into practice. In this section he also shows how this new idea of sovereignty, when claimed and asserted by the people, contains within [*248] itself the seeds for controversy and tension. The fact that the people now had the power to create governments by which they would be bound, also implied that they could destroy them as well. As a nascent “people” began to grapple with an equally nascent idea, they soon realized that contending conceptions would have to be reckoned with.

In Part Two, Fritz continues this theme as he argues that, during and immediately after ratification, the Constitutional consensus was still not achieved on the meaning of the people’s sovereignty, through a detailed examination of these competing understandings as they played out during the Whiskey Rebellion, the Nullification Crisis, and the Virginia and Kentucky Resolutions. It is in this section, moreover, that Fritz begins to account for the beginning of the end of the two initial perspectives on sovereignty: the “constrained” and “expansive” views. Increasingly during the 1830’s and 1840’s, sustained discussions of the expansive and constrained views of sovereignty that characterized the Founding of the national and state governments became partly eclipsed by a more general notion that the key constitutional issue in American constitutional thought was the perpetuity of the “Union.” This shift, consciously or not, militated against both of the two original conceptions of sovereignty, for if the Union of the states was the key problem (and the key normative goal), then the people’s sovereignty was weakened because this more pressing idea became more necessary to resolve.

In Part Three, Fritz shows that even after seventy years of constitutional development, there were still competing and unresolved tensions within the more general notion of sovereignty. He does this through a detailed account of the Dorr Rebellion in Rhode Island in 1842. This section is particularly useful, not only for its consistency with Fritz’s overall argument in AMERICAN SOVEREIGNS, but also because the Dorr Rebellion is one of the most understudied events in American Constitutional history and development. Fritz clearly shows this, but Chief Justice Roger Taney’s subsequent opinion in LUTHER v. BORDEN is also important because it became the precedent for the doctrine of “political questions” in American constitutional law, a question that is more than relevant to ideas of popular constitutionalism. This doctrine was not only immensely important for the debates concerning the theoretical foundations of “states” during Congressional Reconstruction, but it also has tremendous import for current debates surrounding political questions, particularly involving voting rights (see, e.g., BAKER v. CARR). These debates make it clear that we still have not come to an agreed upon notion of the definition and the contours of the people’s sovereignty even as we enter into the twenty-first century.

In the Epilogue, Fritz sets out to distinguish his conception of the multiple understandings of the people’s collective sovereignty from other scholars and from the more general current understanding of sovereignty on the modern Court. As stated earlier, Fritz’s conception of the people’s collective sovereignty differs significantly from that posited by Kramer, because Kramer assumes an almost singular notion of sovereignty. [*249] Fritz smartly argues that competing conceptions of sovereignty did not emerge from one unified set of assumptions but instead grew piecemeal during the antebellum period. Thus, “the constitutionalism that holds sway today is not a natural inheritance but the product of choices Americans made between shifting understandings about a collective sovereign” (p.280).

This argument about the piecemeal development of notions of the people’s sovereignty is perhaps the book’s greatest strength, as it ties together constitutional theory, law, and larger developmental issues in American politics. However, this argument is potentially the book’s greatest weakness, as well. Fritz convincingly articulates the serpentine development of notions of sovereignty in the antebellum period, but we are still left in the dark, as it were, in understanding exactly how and why these multiple ideas fade away. For example, Fritz intersperses broadly interesting assertions throughout the book, such as “Contrasting eighteenth-century constitutionalism with today’s understandings suggests our current theory of what makes government legitimate was not inevitable.” It would be nice, though, for Fritz to tell us how he sees subsequent understandings of sovereignty developing, and what they actually were and are now. Moreover, he seems to suggest that the Civil War (and Reconstruction, too?) provides a marker of sorts between an older understanding and our modern one without explaining what exactly changed. To be fair, Fritz does begin to acknowledge these issues, but only in a footnote and belatedly at the end of the volume. He seems to suggest that antebellum ideas did in fact remain part of constitutional discourse after the Civil War but only in muted form, and that significant changes in conceptions of sovereignty occurred only after the Progressive movement (p.280, n.9). While these criticisms do not serve a fatal blow to Fritz’s overall thesis, they should be addressed.

AMERICAN SOVEREIGNS is a welcome addition to the literature on constitutional theory, legal history, and American political development. While the book is dense, it is nevertheless readable and presents unique criticisms and corrections, specifically concerning the literatures on popular constitutionalism and extra-judicial constitutionalism.

REFERENCES:
Dahl, Robert. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy Maker” 6 JOURNAL OF PUBLIC LAW 279-295.

Keck, Thomas M. 2007. “Party Politics or Judicial Independence: the Regime Politics Literature Hits the Law Schools” 32 LAW & SOCIAL INQUIRY 511-544.

Kramer, Larry. 2005. THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW. New York: Oxford University Press
.
Morgan, Edmund. 1989. INVENTING THE PEOPLE: THE RISE OF POPULAR SOVERIGNTY IN ENGLAND AND AMERICA. New York: W.W. Norton. [*250]

Whittington, Keith. 1999. CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING. Cambridge: Harvard University Press.

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

LUTHER v. BORDEN, 48 US 1 (1849).

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© Copyright 2008 by the author, Justin Wert.

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KENTUCKY LAWYER: LEGENDS OF BENCH AND BAR

by Mac Swinford. Lexington: The University Press of Kentucky, 2008. 128pp. Cloth $19.95. ISBN: 9780813124803.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University, jvile [at] mtsu.edu.

The University Press of Kentucky has reprinted a book initially published in 1963 by Mac Swinford (1899-1975), a lawyer who received his legal education from the University of Virginia and served for many years as a federal judge in the Eastern and Western Districts of Kentucky. Law must have been in Swinford’s blood since his father, his son, and five of his grandchildren have chosen the profession. The dust jacket of the book further mentions that “Judge Swinford wrote the nation’s first post-BROWN v. BOARD OF EDUCATION desegregation order, requiring Adair County to allow African-American students to attend the county schools,” but the precious little biographical information – clearly a missed opportunity – that the book provides is otherwise confined to a two and a half page introduction written by Judge Eugene E. Siler, Jr. of the US Sixth Circuit Court of Appeals.

Good lawyers are, or used to be (one thinks particularly of Abraham Lincoln), natural born raconteurs and joke-tellers, and at a time when judges and lawyers often rode circuit, one can imagine them swapping some of these stories late at night in an inn with plenty of bourbon to go around. The book has no footnotes and makes no pretense at scholarship, and, were court room rules against hearsay to be applied, it is doubtful that a fourth of the text would survive.

Swinford appears to have attributed at least one good story to each of the notable Kentucky lawyers and politicians he met or knew by reputation. Swinford’s stories are about as good as any but probably lose something in the translation from oral transmission to the written page. Still, this reviewer doubts that many outside the Kentucky bar (and those largely of a previous generation) will, without the personal knowledge of their characters, think the stories are quite as funny as Swinford thought they were.

Tales include those of female defendants who borrowed or “rented” babies in order to avoid jail time, of a politician who uses the hanging of one of his clients as a occasion to direct political bombast at the assembled onlookers, of a schoolteacher who sues a former fiancé for a broken heart, of a “gift” of moonshine during National Alcoholic Prohibition attributed to Santa Clause, of jurors’ fears of catching “obstetrics,” of a lawyer-politician’s attempts to repeal dog-collar laws by orating about the perpetual faithfulness of man’s best friend, and the like. Swinford, who sometimes strays from his initial tale, cannot resist telling a good story, even if it has more to do with a politician or other notable figure rather than with a lawyer. Swinford even includes a ghost story of a man wrongly convicted and hanged for a murder he did not commit. [*245]

Unlike similar collections of lore from the period that this reviewer has examined from other Southern states, Swinford’s stories are not racist, although his occasional identification of individuals by race and his references to “Negroes” seems a bit dated. After identifying an individual as “what was called in those days an old maid,” he hastens “to renounce” such a term as “unjust and unkind” and suggest that it should “be stricken from our lexicon” (p.58). Indicative of the time period that it covers, although women sometimes figure prominently as victims or defendants, not a single story features a woman judge or lawyer. By contrast, several stories feature throngs of locals gathered for public hangings, and most of the lawyer heroes are adept at quoting Shakespeare and the Bible.

Swinford was proud of his profession. He believed that law is “the most important of all the sciences” (p.28) and that the “watchword” of lawyers should be “liberty under law” (p.29). He romantically referred to lawyers as “plumed knights” committed to the profession’s “preservation and defense” (p.30). Although Swinford makes no reference to scholarly discussions of the role of a judge (or, indeed, to any other matter), he ends the slim volume by citing Woodrow Wilson’s observation that judges need to know that, like an oak tree, the law grows.

In brief, the book is what it is – a short collection of stories and anecdotes about the “good old days” of practicing law in Kentucky. It might be an appropriate source for tales for an after-dinner speech, provide background for a biography of Judge Swinford, make a nice gift for a senior lawyer from the state or for one of Swinford’s grandsons, or be appropriate for collections of Kentucky legal folklore, but its academic contribution is negligible.

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© Copyright 2008 by the author, John R. Vile.

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CONSTITUTIONAL CONTEXT: WOMEN AND RIGHTS DISCOURSE IN NINETEENTH-CENTURY AMERICA

by Kathleen S. Sullivan. Baltimore, MD: The Johns Hopkins University Press, 2007. 200pp. Hardcover. $45.00. ISBN: 9780801885525.

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University. Email: bowen [at] jcu.edu.

pp.239-243

In her farewell address as the president of the National Women’s Suffrage Association, Elizabeth Cady Stanton describes individuals as fundamentally solitary beings. “We come into the world alone, unlike all who have gone before us, we leave it alone, under circumstances peculiar to ourselves” She sought to acknowledge “the individuality of each human soul” (as quoted in Sullivan, p.146).

According to Kathleen Sullivan in this provocative, thoughtful and insightful book, this speech captures the aspirations and successes of nineteenth century suffragists. Abstracting the individual from status, rights or obligations was a uniquely feminist way of understanding American liberalism. She credits the leaders of this movement for shifting in fundamental and unalterable ways the nature of liberal discourse in the United States. Moreover, Sullivan is arguing that this shift in separating rights from the common law and removing the individual from the reality of lived experience and situations had its limitations and may have hindered gender equality. The argument is clear, engaging and persuasive while the text itself is somewhat uneven in advancing that argument.

Sullivan begins with a general introduction that places her analysis within the constitutionalism literature. The goal of the study, as she notes, is to look at “the rhetoric and strategies of the public campaign to liberate women from their common law status as married women” (p.4). While Locke and Jefferson among others sought to accommodate the common law within the liberal tradition, Sullivan is suggesting that suffragists pitted natural rights theory against common law and that such a stance was not inevitable or the only possibility. The reliance on codifying the law and moving away from the common law tradition helps usher in positivism in US law. From Sullivan’s perspective, this leads to a “formalistic and even absurd” equality doctrine (p.8) such that rights triumph over status. For many women, such an approach ignores their material conditions. This, of course, has long been the critique of liberal feminism in that it overlooks issues of class, race and other forms of status. What distinguishes Sullivan’s work is her argument that this critique is not of liberalism per se but rather that liberal feminists of the nineteenth century redefined liberal theory in the US context. Further, her argument is grounded in the supposition that the common law was not inherently oppressive. As she notes on p.17, “accepting the limits of liberalism means [*240] recovering the radical potential of the seemingly conservative rules and practices of the common law.”

This view of the common law is explicated in the first chapter, entitled “Codification of the Common Law Considered.” She provides a thoughtful and thorough review of the codification debate taking place in various quarters in the early part of the nineteenth century. Her respect and affection for the common law tradition is apparent. On p.28 she suggests that the transition to positivism would mean replacing “practical reasoning with expert knowledge” and “action with appeal to authority and experts” and “reference to experience with reference to rules.” While those in favor of codification might argue that a written code simplifies the law and makes it more accessible to the public, the progressive capacity of the common law should not be overlooked according to Sullivan. This tension and debate and the discourse it generated is really the legacy of the codification movement. While Chapter 1 seeks to provide a framework for analysis, it is perhaps not sufficiently connected the suffragist theme and overall thesis of the book. Still, read on its own it provides a lucid discussion of the codification debate and the relationship of the common law to that conversation.

The essence of the book’s argument is developed in the second chapter entitled “Abstracting Rights.” She illustrates the premise of the previous chapter – that the codification debate’s contribution to legal development was in changing the parameters of the debate rather than replacing common law with codified law – effectively by detailing the rhetoric of both abolitionists and suffragists. The abstracted nature of rights in the US context has its roots in the abolitionist movement. For example, the commitment to freedom of speech in the context of the slavery debate has to be an abstract one given that the US Constitution acknowledges the institution of slavery. Relying on an abstracted form of free speech meant pitting that right against the constitutional agreement to keep silent on the subject of slavery.

Women’s rights activists use this as the theoretical basis for their own rights discourse. Sullivan details the perspective of Angelina and Sarah Grimke suggesting their arguments about human dignity and agency are those on which much of today’s civil libertarian doctrine depends. This argument suggests that an “individual is a bearer of rights who existed prior to his or her socially determined status” (p.59). By contrast, Lydia Maria Child objects to decontextualizing women. Instead, she argued that one should “explore one’s status and find freedom within its constraints and manipulations rather than seeking to liberate oneself from it” (p.64). Sullivan is arguing that the logic and basis of the argument loses some of its power (theoretical and practical) in the shift from abolition of slavery to rights for women.

The women’s rights movement “drew upon the legacies of the legal codification movement and the political abolitionist movement to assail the common law, one of the primary sources of women’s civil and political status” (p.67). In Chapter 3, entitled “The Married Women’s Property Acts: Death Blow to Coverture?” Sullivan offers the [*241] fully developed argument suggesting that women’s rights activists of the nineteenth century constructed a new version of liberalism. They wrested from the common law relations that had always been part of liberal theory and American liberalism arguing that common law rules of the marital relationship was the source of women’s subjugation. Suffragists seized upon the opportunity presented by the married women’s property acts to dismantle the rules of common law. In sum, she is suggesting that the impetus for the passage of the acts was economic and class-based rather than about the liberation of women. Yet she acknowledges that it was a “compelling and timely narrative” (p.70) and that the emergence of the women’s movement coincided with coverture being in flux.

The narrative of women’s rights activists as articulated in this discussion redefines liberal thought because the concept of an individual is abstracted from all social status. And of course, liberalism prior to this depends on the reproduction of a society within the private sphere. There is an important institutional role that familial relationships play in the maintenance of a liberal society. Breaking down the legal notion of unity and then of coverture such that men were not necessarily the heads of households could threaten the foundation of Locke’s liberal society. So instead, women’s rights activists connect unity, coverture and thus the common law to a feudal and barbaric past, arguing that liberalism by definition abstracts rights from status. In so doing, they begin to delegitimize the derivation of rights within social circumstances which becomes a self-fulfilling narrative. This chapter is easily the most powerful and compelling of the book, challenging readers to reexamine the role of women’s rights activists in constructing liberal discourse. I think this chapter could stand alone as an excerpt given to students.

However, Sullivan’s argument is more subtle than suggesting that liberal feminists abstracted rights from experience leading to the demise of the common law tradition. Instead, she suggests that there are lapses in the argument and that coupled with the tenacity of the common law in domestic relations tells a more complete story. Chapter 4 is titled “The Married Women’s Property Acts: Collaborating for Coverture.” While the married women’s property acts gave women the right to own property (which is central to liberal theory), the civic capacity recognized in property rights did not extend to other aspects of women’s status and perceived civil disabilities (e.g. choosing a domicile). Sullivan documents this limited success of positivist legal change to emancipate women by reviewing laws and judicial decisions in Massachusetts, Indiana and Kentucky. She demonstrates the persistence of common law by detailing various decisions from the bench that define the status of women. Ultimately, she is suggesting that the intermediary status of married after the reform statutes is consistent with the modernization of status law where status regimes are reformed but not entirely abolished. While the suffragists thought that liberal principles only had to strike prejudices to realize the promise of liberal equality, instead coverture was being updated and modernized. Coverture survived, not only because statutes were never designed to abolish it, but also because [*242] different institutions collaborated to retain social orderings of domestic relations. Sullivan’s analysis is intriguing and insightful as she is suggesting that tapping into the progressive capacity of common law and working to effect change within that structure would have accomplished more than rewriting liberal narrative. From her perspective, the married women’s property acts were not a liberal alternative to the common law so much as they were a “working out of liberalism’s relation with the domestic relations of the common law” (p.110). The liberal feminist narrative of suffragists ignores the measures to balance rights with status and obscures sources of women’s oppression.

In Chapter 5, “The Domesticity of the Domestic Relations,” this argument is further explicated. Removal of prejudice is an overly simplistic approach to fostering equality. Sullivan documents the ways in which state supreme courts acted in collaboration with legislatures to retain status of common law and the legal construction of household when interpreting married women’s property acts. While this is a reasonable conclusion and interesting argument, this is probably the weakest chapter of the book as it lacks a clear focus and narrative thread. The fundamental point that change in domestic relations demonstrates that the women suffragist narrative is of limited use in explaining the acts and their interpretation because it overstates the prejudices against women and underestimates the extent to which domestic relations persisted (p.127) is well taken, but the thorough discussion of master-servant law was a distraction. Still, the suggestion that to accept the suffragist narrative and its expectations is to miss developments resulting in modernization of status regime is one well worth considering. With new justifications produced and new arrangements constituting a new, modern home – coverture was able to survive. The clear implication then is that equality was not the most effective means of emancipation for married women and other subordinates in domestic relations.

“Common Law Lost” is the title of the sixth chapter and nicely captures the summation of the book’s arguments. Sullivan suggests here that modern society could not complete the transition from status to contract while coverture proved so tenacious. She devotes considerable energy to a discussion of BRADWELL v. ILLINOIS (1872), noting that the majority opinion holds that the practice of law is not a privilege protected by the privileges and immunities clause reinforcing the limited scope of that provision in the wake of THE SLAUGHTERHOUSE CASES (1873). Yet the sexism of Justice Bradley’s concurrence is what is usually reproduced in case books and used to analyze the case which provides further credence to her argument that the suffragist narrative overstated prejudice and understates the institutional basis for women’s civil and political disabilities. In other words, because suffragists were successful in reconstructing the liberal narrative, subsequent audiences focus on the stereotypes of Bradley’s opinion to reinforce that narrative. It is an intriguing and ultimately convincing proposition. Ending the chapter with a synopsis of Elizabeth Cady Stanton’s “Solitude of Self” speech is poetic and appropriate in light of this argument. In between, Sullivan also acknowledges the [*243] reemergence of the codification debate in the 1870s and 1880s. Women’s rights become the dividing wedge of that iteration of the codification debate. When rights are abstracted from hierarchy, they also grow distant from experience and may fail to address adequately protections that those situated selves require. By the 1880s, however, common law was associated with allegiance to tradition and was no longer seen as adaptable, reformist or modern (p.144). While there has been some return of context to contemporary analysis of that era and an increased appreciation that common law tended to the material and physical needs of its citizens, it has not been sufficient to counter the now dominant liberal narrative constructed by feminists that emphasizes individual prejudice.

“While the activism of women suffragists encouraged a theory of equality that has benefited women in giving them recognition and opportunities, the loss of context in rights discourse brought a loss of the situated self in that discourse” (p.149). In the conclusion, Sullivan provides a lucid and concise review of her fundamental argument. Because the liberal lens was not trained in the progressive possibility of common law, institutions for family arrangements were cast as inherently illiberal. Yet it is possible to recognize that men and women have obligations within the home and that those obligations can be distributed fairly without unduly burdening anyone’s political or civil rights. Ultimately, though, the suffragist narrative dominates, in large part because of the New Deal and the broader recognition of status and situation by the federal government (thus reducing the differences among feminists as to the best strategy to effect government change). By the time of the second wave of feminism, formal equality had prevailed. Formal equality prevails in part because of institutional response and capacity. However, Sullivan’s contribution to the literature is her persuasive argument that political choices about rhetoric and strategy made by suffragists shifted the parameters of the debate in ways that still matter. Reform is too often based on fictionalized subjects rather than actual status and obligations. Yet she is suggesting that common law constitutionalism still has the potential to be recovered and that the uncertainty (as contrasted with determinism) of common law allows for fluid and presumably productive contextualized conversation about meaningful equality. It is an interesting perspective and one well worth discussing with students. I have found this work to be enormously instructive while teaching a gender politics course this semester. I think it would have similar power in a civil rights and liberties class. All but the most sophisticated undergraduates would struggle a bit reading this text as part of a course, but the discussions and analyses that consideration of this text would likely engender makes it well worth the struggle.

CASE REFERENCES:
BRADWELL v. ILLINOIS, 83 U.S. 130 (1872).

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

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© Copyright 2008 by the author, Lauren Bowen.

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BETWEEN FREEDOM AND BONDAGE: RACE, PARTY, AND VOTING RIGHTS IN THE ANTEBELLUM NORTH

by Christopher Malone. New York: Routledge, 2008. 272pp. Paper. $28.95. ISBN: 9780415956970.

Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff [at] jsums.edu.

pp.235-238

It is a rare and memorable joy to encounter a book that seamlessly interweaves two disciplines in order to provide meaningful analysis of a previously unexplained phenomenon; this book is such a source of pleasure. In BETWEEN FREEDOM AND BONDAGE, Christopher Malone endeavors to explain the discrepancies between four Northern states in their responses to black suffrage claims during the antebellum years. He accurately notes that until recently the primary narrative regarding black male suffrage focuses upon the passage and evasions of the Fifteenth Amendment ignoring the many states where enfranchisement was not limited by race until the states began rewriting their constitutions after the Revolutionary War. The first state to isolate voting to whites was not surprisingly Virginia in 1762; however, West Virginia did not restrict the franchise to white males until 1863. Yet, some states, like Massachusetts, never restricted suffrage by race. Malone argues that within these years an intriguing story waits to be told. While there have been some recent scholarship detailing the development of the right to vote – Alexander Keyssar’s THE RIGHT TO VOTE in particular comes to mind – there has been very little examination of the development of voting rights beyond detailed examinations of the Fifteenth Amendment and the Voting Rights Act of 1965 (e.g., Davidson and Grofman 1994; Valelly 2004; Valelly 2005; Landsberg 2007), interpretations of the implementation of majority/minority districts and their implications (e.g., Peacock 1997; Canon 1999; Kousser 1999; Yarbrough 2002), and outside of the law reviews. As Malone convincingly argues,

the story of black enfranchisement in the antebellum period does not fit into a simple, unidirectional synthesis. . . There was no long steady march toward democracy for northern blacks. The right to vote was not characterized by irresistible expansion. Neither was its attainment, when it did occur, astonishingly easy. With no federal statutes on the books to which blacks could appeal to for protection, it was unclear whether blacks were meant to be included in the social contract instantiated in the first state constitutions drafted after the Revolutionary War . . . . In short, all across the North throughout the antebellum period blacks lived somewhere, to quote the noted historian Charles Wesley, “between freedom and bondage.” (p.5)

In chapter one, “The Beginning of the Story: Black Enfranchisement in the Antebellum Era,” Malone considers the limitations of current historical analysis of the development of voting rights. He argues that the absence of an overarching theoretical framework has [*236] resulted in an inchoate understanding of this very rich history. To remedy this inadequacy, Malone applies the analytical tools of three different subfields of political science to help understand the sources of these changes and to attempt to interpret contemporary aspects of racial conflict within the political arena of the United States. Attempting to develop a more complete understanding of race formation, Malone pulls from research on the “economic structure of racial conflict,” the “racial structure of partisan competition” and development, and the “discursive structure of racial coalition formation.” To test the validity and intersections of these explanations he investigates four separate case studies, chosen because of the highly diverse manner in which blacks were treated in these states: Rhode Island, Massachusetts, New York, and Pennsylvania. Drawing the case studies from the very detailed historical record and secondary scholarship of antebellum history, he hypotheses that in order for black disenfranchisement to occur, there will be three conditions:

(1) when racial conflict took place as an outgrowth of rapid economic and demographic change; (2) when political actors seeking electoral advantage were in a position to successfully prey on this racial conflict by arousing poorer white working classes: and (3) when an ascriptive racial belief system became the dominant racial paradigm for understanding citizenship rights for blacks. (p.18)

For each case study, he carefully investigates the historical factors (increased immigration of a white working class, new political party formation and nationalization of the party structure, and the sway a narrative assuming the natural inferiority of blacks held over a more paternalistic rhetoric in the public space) to explain the consequences for enfranchisement in the state.

The second chapter, “’The Minds of Blacks are Not Competent to Vote:’ Racial Voting Restrictions in New York,” details the first case study. New York is particularly interesting because, although New York never restricted the franchise to white men, it did place a property qualification on black male voters while simultaneously dropping such qualifications for whites in 1821. After a thoughtful and well-written description of the political and economic development of the state, Malone finds that racial conflict was intensified because of internal economic and demographic transitions, particularly the increasing conflict between the newly freed blacks and a growing working class white population over employment and housing opportunities. In addition, conflict within the New York Republican party from the Bucktail Republicans who sought to challenge Federalist control of state politics and who encouraged their members to engage in racially ascriptive language to capture the votes of the growing white immigrant class.

Chapter three, “’An Asylum for the Oppressed Injured Sons of Europe:’ The Disenfranchisement of Blacks in Pennsylvania,” examines a state that disenfranchised its black male population after protecting their right to vote for almost fifty years. While blacks were frequently prevented from voting due to intimidation in the late 1830s, they were not legally disenfranchised [*237] until party competition ended single-party control in Pennsylvania. Malone notes that these conflicts were “undergirded by a racialized discourse framed on two sides by competing racial belief systems. If the dominant view of Pennsylvania’s leaders was paternalistic in its outlook toward blacks during the Revolutionary period, this view lost out to the dominant ascriptive ideology of the state’s leaders by the 1830s” (p.63). Finally, the rapid growth of the black population in Philadelphia and an increasing poor white immigrant population throughout the state, led to competition for resources and employment and created a political environment receptive to the arguments and claims made by ascriptive ideologues.

Within chapter four, “’Servility is not Confined to Color:’ The Disenfranchisement and Reenfranchisement of Blacks in Rhode Island,” Malone examines what he deems the “most bizarre case.” Rhode Island statutorily disenfranchised black men in 1822 and then reenfranchised them in 1843 after the Dorr War. Again, Malone finds his model clearly explains these conflicting results. He argues that historically all three of his conditions were met in the 1820s at the time of the denial of black suffrage; however, by the 1840s and the beginning of the Dorr War, these three conditions no longer existed. Blacks joined racial paternalists during the political maneuverings and were then rewarded with the franchise. Consequently, Malone finds the ascriptive discourse was not powerful and condition three was not met.

The final state, Massachusetts, is discussed in chapter five, “’The Vaunted Superiority of the White Race Imposes Corresponding Duties:’ Massachusetts—The Exception to the Rule.” Masschusetts, alone among the case studies, ensured the right to vote for black men in the early 1780s and never retracted it. Applying his theoretical construct, Malone determines it also explains this outlier. He discovers that the power of the Garrisonians and the strength of abolitionist movement and its rhetoric ensured that ascriptive racism never took the same root in Massachusetts as it did elsewhere. Demographically, the black population in Massachusetts was consistently small, and the vast influx of Irish immigrants did not occur until later in the nineteenth century. Consequently, the so-called race threat was not part of public discourse in Massachusetts as it was in other states.

It is difficult to communicate the detail of the research provided by Malone in his discussion of the case studies in a forum such as this. He has provided a carefully researched historical study that is well-complemented by a carefully developed theoretical framework. It also seems ironic to be reviewing this book for the LAW AND POLITICS BOOK REVIEW. While often the outcomes of these political pressures on voting rights were legislation and although some of the factors influencing the political culture he assesses are litigation and judicial decisions, this book is less directly about the law or Constitution. It does, however, provide keen insight regarding how these types of constitutional and statutory protections and alienations are contrived and interpreted. One obvious criticism of this book, which Malone recognizes, is the lack black or female voices in the history that he recounts. However, since the [*238] purpose of the book is to examine how the political institutions responded to pressure regarding black male suffrage, the dominant (but not sole) voices are those already wielding political power.

While Malone attempts to apply his model beyond his designated timeframe to the traditional Civil Rights Era in his epilogue, “Reconstructing the Two Reconstructions: Antebellum Race Formation and the Nationalization of Party Politics,” his comparison of the First and Second Reconstructions is the weakest element of his work. This is not because his model does not work, but because the epilogue is too brief to develop his argument adequately or explore the counterfactuals to his analysis. His argument as to the validity of this model to other eras of racial conflict and in less carefully chosen case studies must wait to be tested.

REFERENCES:
Canon, David T. 1999. RACE, REDISTRICTING, AND REPRESENTATION: THE UNINTENDED CONSEQUENCES OF BLACK MAJORITY DISTRICTS. Chicago: The University of Chicago Press.

Davidson, Chandler and Bernard Grofman (eds). 1994. QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT 1965-1990. Princeton, N.J.: Princeton University Press.

Keyssar, Alexander. 2000. THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES. New York: Basic Books.

Kousser, J. Morgan. 1999. COLORBLIND JUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION. Chapel Hill: University of North Carolina Press.

Landsberg, Brian K. 2007. FREE AT LAST TO VOTE: THE ALABAMA ORIGINS OF THE 1965 VOTING RIGHTS ACT. Lawrence, Kansas: University Press of Kansas.

Peacock, Anthony A. (ed). 1997. AFFIRMATIVE ACTION AND REPRESENTATION: SHAW V. RENO AND THE FUTURE OF VOTING RIGHTS. Durham, NC: Carolina Academic Press.

Valelly, Richard. 2004. THE TWO RECONSTRUCTIONS: THE STRUGGLE FOR BLACK ENFRANCHISEMENT. Chicago: University of Chicago Press.

Valelly, Richard M. (ed). 2005. THE VOTING RIGHTS ACT: SECURING THE BALLOT. Washington, DC: CQ Press.

Yarbrough, Tinsley E. 2002. RACE AND REDISTRICTING: THE SHAW-CROMARTIE CASES. Lawrence, Kansas: University of Kansas Press.

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© Copyright 2008 by the author, Michelle D. Deardorff.

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CIVILIZING SECURITY

by Ian Loader and Neil Walker. Cambridge, UK: Cambridge University Press, 2007. 314pp. Cloth. $85.00/£45.00. ISBN: 9780521871204. Paper. $29.99/£15.99. ISNB: 9780521691598. eBook format. $24.00. ISBN: 9780511282669.

Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov. The views expressed here are personal, not institutional.

pp.232-234

Ian Loader and Neil Walker explore the capacity of the state “to act as the pre-eminent guarantor of security to its citizens.” That model is eroded in part by conditions of globalization, failures on the part of states to anticipate and respond to terrorism, the growth of the private security industry, and the emerging role of non-state actors. Also, critics object that “under the cloak of a ‘war on terror’ governments are mobilizing and responding selectively to threats in ways that place hard-won democratic rights and principles in great peril.”

CIVILIZING SECURITY is designed to examine the idea of security. What does it mean for individuals “to be and feel secure”? Loader and Walker defend the principle that security is an “indispensable constituent of any good society” and that the democratic state has an essential role in furthering security. That duty is complicated by the existence of authoritarian regimes and non-state actors that are hostile to what is called the free world. The goal is not to have a completely secure environment, but a condition where that is “more rather than less likely.”

The concept of “civilizing security,” as embodied in the book’s title, is never fully clarified. Chapter 1 begins: “Our argument in this book is that security is a valuable public good, a constitutive ingredient of the good society, and that the democratic state has a necessary and virtuous role to play in the production of this good. The state, and in particular the forms of public policing governed by it, is, we shall argue, indispensable to the task of fostering and sustaining liveable political communities in the contemporary world. It is, in the words of our title, pivotal to the project of civilizing security.” Perhaps the reader is supposed to look at the words necessary, virtuous, and liveable to understand what is meant by civilizing.

The second paragraph attempts to illuminate the meaning of civilizing, but the guidance is difficult to follow. “By invoking this phrase [of civilizing security] we have in mind two ideas.” The first, “which is relatively familiar if not uncontroversial, is that security needs civilizing. States – even those that claim with some justification to be ‘liberal’ or ‘democratic’ – have a capacity when self-consciously pursuing a condition called ‘security’ to act in a fashion injurious to it.” Is that civilizing or un-civilizing? It would appear to be the latter. Modern states “possess a built-in, paradoxical tendency to undermine the very liberties and security they are constituted to protect.” Under conditions of fear, states “are prone to deploying their power in precisely such [*233] uncivil, insecurity-instilling ways.” The authors seem to flag state behavior that is antithetical to the goal of civilizing security. Yet they claim that the state “is a great civilizing force, a necessary and virtuous component of the good society.” In what way does a state fulfill that purpose?

Loader and Walker explain that the book’s title “has another, less familiar meaning – the idea that security is civilizing. Individuals who live, objectively or subjectively, in a state of anxiety do not make good democratic citizens, as European theorists reflecting upon the dark days of the 1930s and 1940s knew well.” Citizens who live in fear “lack openness or sympathy towards others, especially those they apprehend as posing a danger to them. They privilege the known over the unknown, us over them, here over there.” Fear becomes “the breeding ground” of authoritarian, uncivil government.” This passage is unclear. It is true that the conditions in Europe in the 1930s fostered Nazism and fascism, but the social and economic climate that led to authoritarian regimes in Germany, Italy, and Spain did not produce the same type of government in other European countries. Moreover, if “security is civilizing,” the governments in Germany, Italy, and Spain brought security (at a cost) and certainly did not yield what could be called a civilizing of their societies. The authors say that security is civilizing. It can equally be said that security is un-civilizing.

The book proceeds to argue that security “is simultaneously the producer and product of forms of trust and abstract solidarity between intimates and strangers that are prerequisite to democratic political communities.” German citizens were afraid of Communism. The Nazi regime brought them security from that threat. German citizens feared the unemployment and inflation of the 1920s and early 1930s. The Nazi regime produced prosperity. Security by itself does not yield a civilizing influence.

How much of this dilemma is recognized by the authors. They ask: “what is security? What does it mean to be or to feel secure?” They write extensively about that question but shed little light. They say that security “is, in an important sense, destined to remain beyond our grasp.” Does that mean that the concept of security cannot be understood or that the condition of security is always imperfect? Loader and Walker leave that point unclear.

Part of the reason behind the lack of clarity in pursuing these issues is the writing style of the authors. The reader is confronted by these words and phrases: “neo-liberal thematization,” “commodified,” the “ideational component,” “synchronic,” our “ideational/material/institutional triptych,” “dignitarian,” “sacralized domain,” “a cosmology of timeless hierarchy,” a “difference-blind ideal,” and attempts “to square the conceptual circle.” This kind of presentation might be understandable to some. Most readers will find it difficult to wade through these passages to find an underlying theme and purpose.

The conclusion of a book offers an opportunity to wrap up and clarify central arguments. The authors do not do it. In deciding not to issue “institutional wish lists,” Loader and [*234] Walker “would envisage an extension of our conception of anchored pluralism, now looking upwards to transnational society as well as outwards to civil and market society and downwards to substate society.” Their model is “pluralist in its principled and non-negotiable recognition, not least by states themselves, that there are two levels of abstract political community at which we can think of security as a thicker public good that are not reducible to one another but which need different registers of debate and institutional fora for their articulation.” Left open are “the large ‘reframing’ question of how to address and resolve the possible tensions between the ‘aggregative’ or convergent tendencies of proposals or approaches arrived at in the purely national and international discourse and fora, on the one hand, and the more transcendent proposals and approaches arrived at in regional and global fora, on the other.” Having referred to non-negotiable recognitions above, Loader and Walker conclude by referring to the existing tension “and the need for its negotiation.”

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© Copyright 2008 by the author, Louis Fisher.

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THE FUTURE OF GENDER

by Jude Browne (ed). Cambridge : Cambridge University Press, 2007. 298pp. Cloth. $85.00/£45.00. ISBN: 9780521874410. Paper. $29.99/£15.99. ISBN: 9780521697255.

Reviewed by Jennet Kirkpatrick, Department of Political Science, University of Michigan. Email: jennetk [at] umich.edu.

pp.229-231

This is a timely anthology that, as the title suggests, looks to the future of feminist scholarship and gender analysis. The underlying question of this volume is (to paraphrase Joan Scott): Will gender be a useful category of analysis in the near future? Most of the contributors answer affirmatively, though they differ on what they take gender to mean, and they disagree on how gender difference should influence public policy. Also most answer this question by focusing on developments in Britain and Europe. In a particularly intriguing contribution, Terrell Carver answers negatively, arguing instead for “the end of gender” (p.116).

There are eleven contributors, including Nancy Fraser, Valerie Bryson, Ingrid Robeyns, Simon Baron-Cohen, Susan Hurley, Tony Lawson, Juliet Mitchell, Catherine Hakim, and Rosemary Compton. Together they represent an astonishingly broad range of disciplinary and interdisciplinary research. As the editor, Jude Browne, tallies it, the represented fields are “evolutionary psychology, psychoanalysis, sociology, socio-economics, socio-legal studies, social theory, [and] political theory” (p.3).

A risk of this kind of methodological pluralism is that it can strain at cohesion, making the contributions seem disparate or only loosely related. This is not the case with THE FUTURE OF GENDER. The volume is organized into three sections that make a good deal of sense and lend cohesion to the volume as a whole. Another boost to coherence is found in the chapters themselves. Many of the contributors have read the arguments made in other chapters and reference them in their own.

A particular strength of this volume is that the authors do not shy away from taking contentious positions. The second section on the sex-gender division is especially spirited; it crackles with controversy. In it, readers will find a series of arguments that focus on sexual difference, the body, and biology. This emphasis is unusual. Feminist scholarship has tended to concentrate on gender, a socially constructed form of identity that is seemingly more open to radical change than sexual difference. The contributors here upend this approach.

Along the way, they make some controversial claims, such as the average female brain is different from the typical male brain, polygamy may benefit women and further feminist interests, and gender may effectively be over. The first argument is made by Simon Baron-Cohen, who is careful to point out that average differences between male and female brains are just that, averages. As such, they reveal nothing about [*230] individuals, who may or may not be typical of their sex. With this caveat in place, Baron-Cohen draws on a number of scientific studies to suggest that the average male brain tends toward systematizing while the typical female brain exhibits a strong drive to empathize. Baron-Cohen points out that an implication of this research is that it is unlikely that the sex ratio in fields like mathematics or physics will be 50-50. But, as Baron-Cohen makes clear in his conclusion, there is no reason to accept such disparities. “If we want a particular field to have equal representation of men and women, which I think would be desirable . . . we need to put in place social policies that will bring about that outcome” (p.92).

The feminist argument for polygamy is made Susan Hurley who urges us to open our eyes to the extensive variety of reproductive patterns in nature. What will we see? Hurley argues that moving away from “a blinkered anthropocentric conception of sex” raises doubts about the stability of social monogamy for humans (p.99). In addition, Hurly suggests that polygamy may not be as harmful to women as previously supposed. She proposes that, for instance, “some women might take a cue from the lioness sisterhood and adopt a feminist version of polygamy, choosing to share a man who fathers their children, with all contributing to child-rearing” (p.113).

Terrell Carver’s “’Trans’ Trouble: Trans-sexuality and the End of Gender” concentrates on the body too, specifically on the bodies of those who do not fit into the traditional categories of gender or sex. Carver argues this group is increasing in numbers and prominence. It includes trans-sexual and inter-sexed individuals, those engaging in technologically assisted reproduction, and same-sex couples that choose to marry. As Carver sees it, these individuals complicate the categories of sex and gender. Some of Carver’s most interesting evidence comes from contemporary legal cases in which individuals and groups are challenging gender and sex norms. As a result, courts are struggling to craft a new and appropriately fitting language that will replace traditional terms like mother and father, husband and wife, and male and female. This struggle over language, Carver suggests, is indicative of a larger conceptual problem. It shows that law and ethics need to catch up with social and technological changes by re-conceptualizing the human subject. The old categories of sex and gender, he argues, just won’t do. They are inaccurate and exclusive.

This collection is also noteworthy for its attempt to integrate feminist theory with empirical scholarship. In an elegant and organizationally crisp contribution, Nancy Fraser charts two distinct phases in second-wave feminism. The first emphasized justice as redistribution, while the second focused on justice as recognition. Fraser argues that the future of gender justice lies in synthesizing redistribution and recognition, and in re-conceptualizing representation at a trans-national level. Fraser’s method of bridging the theoretical-empirical divide is reinforced in Jude Browne’s examination of how normative principles of equality can go terribly awry in implementation as law. Browne appraises the European Union’s Equal Treatment Principle, Britain’s Equal Pay Act of 1970, and Britain’s Sex [*231] Discrimination Act of 1975. She pays close attention to how these laws discourage individuals from bringing forward claims, address violations inadequately, and reinforce gender stereotypes. As Brown puts it, these are “misshapen policies which act to ‘herd’ individuals into self-fulfilling and self-perpetuating stereotypical roles” (p.275). One lingering question here and elsewhere in this anthology is how racial, ethnic, and religious differences play into the analysis. In Brown’s case, one wonders how the implementation of sex discrimination law has affected the lives of those who are in a racial, ethnic, or religious minority in Britain. Are these individuals herded into stereotypes as well? If so, how do racial, ethnic, or religious roles play into and interact with gender roles?

THE FUTURE OF GENDER underscores that feminist scholarship is composed of a range of divergent and oppositional arguments. Moreover, it suggests that the heterogeneity of the field is a boon, not a burden. The book’s strength lies not in wholly new intellectual adventures, but in the variety and richness of its contributions. Does gender have a future? It seems likely. As I write this review, Hilary Rodham Clinton is making a historic bid for the democratic presidential nomination and, as a result, gender, sexual difference, race, and feminism are increasingly a part of mainstream political analysis. For now, the outcome of Clinton’s bid is an open question, as is its long-term effect on American political history. Less uncertain, it seems to me, is whether questions about gender and feminism brought to the fore by recent political events will linger and nag. And, for these questions, THE FUTURE OF GENDER is a valuable resource because, rather than providing a single or definitive answer to them, it reveals that approaches are multiple and positions are many.

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© Copyright 2008 by the author, Jennet Kirkpatrick.

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IN THE RING: THE TRIALS OF A WASHINGTON LAWYER

by Robert S. Bennett. NY: Random House, 2008. 400pp. Paper $27.50. ISBN: 9780307394439.

Reviewed by Joshua S. Sellers, The Law School and the Department of Political Science, University of Chicago. Email: jss [at] uchicago.edu.

pp.226-228

American industrialist Henry J. Kaiser once stated: “Problems are only opportunities in work clothes.” Such is clearly the case for lawyers, and none more so than Robert S. Bennett, a prominent partner with the Washington, DC office of international legal powerhouse Skadden, Arps, Slate, Meagher & Flom. With forty years of experience to his name—all inside the Beltway—Bennett makes the short list of highly coveted legal problem solvers. In his memoir (Bennett makes clear at the outset that he has not written an autobiography), IN THE RING: THE TRIALS OF A WASHINGTON LAWYER, Bennett provides snapshots of his most notable clients and cases, including his representation of former President Bill Clinton, former World Bank President and US Deputy Secretary of Defense Paul Wolfowitz, and martyred New York Times journalist Judith Miller.

Before recounting his many legal successes, Bennett devotes a fair amount of manuscript to his childhood in Brooklyn, a period upon which he reflects fondly. It is here that we gain some insight into the origins of his instinct for competition, as well as the moral principles that guide him. As the eldest of two boys (Bennett is the older brother of conservative commentator and former Secretary of Education William J. Bennett), Bennett assumed a protective posture at an early age—a posture that was often manifested in the form of fisticuffs. In fact, Bennett reports fighting so regularly as a youth that his mother and stepfather attempted to bribe him with “a nickel a day for every day [he] did not get in a fight at school” (p.13). His pugilistic instincts foreshadowed a life of professional combativeness.

Despite his feistiness, Bennett describes a comfortable childhood, stating: “We were not Horatio Alger figures. Bill and I had all that we needed—and most of what we wanted—but most important, we were raised in a family that impressed upon us the importance of hard work, personal honesty, and integrity” (p.11). Bennett implicitly attributes the acquisition of these traits to his strong Catholic upbringing. He proudly recalls his time spent at Holy Cross Boys School, Brooklyn Prep, and eventually, Georgetown University. It was at Brooklyn Prep that Bennett first discovered his gift for competitive debating, the talent that would ultimately define his career.

Bennett graduated from Georgetown in 1961 intent upon becoming a lawyer. He initially attended the University of Virginia Law School, before transferring to Georgetown Law Center. Bennett’s first major break came when influential lobbyist Thomas G. Corcoran (“Tommy the Cork”) hired him as a summer law clerk, a position that set him on his way. [*227] Corcoran served as a mentor of sorts, inviting Bennett to the 1964 Democratic National Convention, encouraging him to pursue an advanced legal degree at Harvard Law School, and brokering his clerkship with Corcoran’s sibling, Howard F. Corcoran, on the US District Court for the District of Columbia (this court was subsequently replaced by the Superior Court of the District of Columbia under the Court Reorganization Act).

Bennett sharpened his trial lawyer instincts as a clerk, observing strategies that both succeeded and failed. He utilized these insights in his subsequent work as an assistant US attorney. Like all trial lawyers, Bennett developed his personal argument style on the fly, first prosecuting cases in the Court of General Sessions, and eventually in the US District Court for the District of Columbia.

With this background in place, Bennett’s personal narrative moves to the private sector.
He practiced at Hogan & Hartson before making a lateral move to Dunnells, Duvall & Porter, where he was given the freedom to build a white-collar defense practice. There is no question that this was a critical juncture in Bennett’s life. Despite the ubiquity of white-collar practice groups today, such was not the case in 1975. Bennett acknowledges his fortuity: “I knew I had the skills, but also I was very lucky because the post-Watergate scandal mentality was taking hold and there was an increasing demand for white-collar trial lawyers. Most big firms did not offer these services, but found that more and more of their corporate clients were getting embroiled in matters that required the skills of a criminal lawyer” (pp.90–91).

Bennett’s early successes defending defense contractors solidified his reputation as a reliable advocate. In a short time, the impressiveness of his client list would grow to include leading corporate figures and government officials. Bennett moved his entire white-collar group to Skadden in 1990.

The bulk of his text chronicles his highest-profile cases, often supplemented with detailed trial transcripts of his cross-examinations. These sections are likely to impress fellow trial lawyers or those familiar with trial practice. To the layperson, the skillfulness may be lost.

In fact, much of Bennett’s book is unlikely to absorb general audiences. With some notable exceptions including the aforementioned President Clinton and Judith Miller, and perhaps Caspar Weinberger and publicly tarnished former Cincinnati Reds owner Marge Schott, many of Bennett’s clients will be unfamiliar to readers removed from the DC legal and political scene (presumptive Republican presidential candidate John McCain is briefly mentioned as a figure in the Keating Five scandal). And in today’s culture of “behind-the-scenes” political expose (e.g., Clarke 2004; Crawford-Greenburg 2007; Woodward 2007), Bennett’s case descriptions are comparatively mild and are not presented to provoke shock or surprise. Unlike journalists or government officials who have since resigned, Bennett remains a practicing attorney—an attorney who relies on reputation and fair dealing to acquire clients of all stripes (not to mention [*228] confidentiality agreements). Those interested in partisan polemics should look elsewhere.

None of this detracts from what constitutes a highly readable overview of a great life in the law. Most lawyers can only dream of the opportunity to represent the figures Bennett has not only advocated on behalf of, but also often befriended. When the government seized the infamous Zapruder film without due compensation, Bennett got the call.

Many will agree with him that the media—“the scandal machine” as Bennett describes it— plays a large role in shaping public trials. Bennett laments the trend toward overzealous muckraking: “Washington, D.C., is not only tough but also mean, a town where the practice of personal destruction has been elevated to an art form” (p.223). This characteristic is on full display throughout the book, and much of Bennett’s talent seemingly lies in his ability to effectively massage and appease the Fourth Estate.

Through it all, Bennett has preserved his reputation for honesty and integrity. His bipartisan client list attests to that fact. He reveals no intention of retiring anytime soon, and closes his memoir by claiming that he “will continue to work as long as [he] is wanted and can function as [he] do[es] today” (p.363).

Washington, DC’s legal culture is distinct. Unlike New York City, the lawyer’s equivalent of Hobbes’ state of nature, DC provides a unique landscape upon which lawyers frequently traverse political corridors and engage political figures. Robert Bennett’s memoir, IN THE RING, outlines a paradigmatic example of life, in the vernacular, as a Washington lawyer.

REFERENCES:
Clarke, Richard. 2004. AGAINST ALL EMEMIES: INSIDE AMERICA’S WAR ON TERROR. Free Press.

Crawford-Greenburg, Jan. 2007. SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT. New York: The Penguin Press.

Woodward, Bob. 2007. STATE OF DENIAL: BUSH AT WAR, PART III. Simon & Schuster.

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© Copyright 2008 by the author, Joshua S. Sellers.

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LEGAL SYMBOLISM: ON LAW, TIME AND EUROPEAN IDENTITY

by Jiří Přibáň. Aldershort: Ashgate, 2007. 222pp. Cloth $99.95/£55.00. ISBN: 9780754670735.

Reviewed by Peter Brezina, Department of Legal Theory and Legal Education, Faculty of Law, Charles University in Prague. Email: peter.brezina [at] gmail.com.

pp.220-225

The latest book by Jiří Přibáň is challenging: it challenges usual views of interconnection between law, morality and politics by its Luhmannian background of autopoietic systems, it challenges the common modern conception of homogenous time by its hermeneutic twists, it challenges the regular perception of constitution-making by its re-thinking of the ‘us-them’ difference articulated in terms of both ethnos and demos. It also challenges, however, the reader: the text largely employs the specific vocabulary of several disciplines – mainly jurisprudence, theoretical sociology, political science and hermeneutic philosophy (resulting in what has been labeled a ‘post-modern bluff’ by some unwelcoming comments on a Czech law blog); the argument is not straightforward and at times is indeed difficult to follow; the book lacks a clear ‘punch-line’ of any kind, leaving any urge for ‘the answer’ not catered for. To my mind, all these challenges make the book all the more interesting and important, although, as I shall point out later, there are several weak spots that could have been avoided. Let us then face the challenge.

The theoretical background of the book is indeed highly varied. In his theorization of law, morality and politics, Přibáň draws on Niklas Luhmann’s theory of autopoietic systems and offers its original and revealing elaboration. He is, however, in no way confined to a strictly Luhmannian line of thought and uses a mosaic of both contemporary and past thinkers, stretching from T. Arnold to S. Žižek, to push systems theory to its limits and beyond. His notion of ‘symbol’ and ‘symbolism,’ as well as the thorough differentiation of ‘time,’ are derived from the hermeneutical tradition in philosophy and sociology, and he cites, among many others, E. Husserl, H.-G. Gadamer, N. Elias and J. Habermas (the attempt at reconciliation of the thoughts of Luhmann and Habermas is one of the most intriguing motives of the theoretical layer of this book). It should be noted at this point that he largely avoids the use of semiology or (post-)structuralism, so any expectations in this direction would be disappointed. In the legal field the sources range from J. H. H. Weiler to N. MacCormick and R. Alexy. In assessing the notion of the spirit of the laws, he ventures all the way back to Plato and proceeds through Hegel to Montesquieu and the German school of historical jurisprudence. Finally, the perspective which would arguably be of the greatest relevance to the audience of this review – that is, his perspective on political science, is to a large degree influenced by transition studies, complementing his mainly Europe-focused argument by connections with other contexts, especially the one of post-apartheid South Africa. Here, then, comes the first [*221] challenge: the reader should be able to follow the bulk of the argument with bits and pieces from works of other thinkers spread like lanterns along the path, pointing the way forward without hindering the flow of ideas by excessive explanation. It should not be a problem for anyone possessing fundamental skills and knowledge in the field of humanities and social theory; it could prove to be a major hindrance for a standard continental or even common law lawyer trained in the positivist tradition.

As stated above, the theoretical background of this book has a strong Luhmannian flavor, and before proceeding further into the more ‘political’ argument, I shall outline it here briefly. The key metaphor of the underlying theoretical argument is that of ‘noise’ as the means of communication between otherwise discrete systems of law, politics and morality. ‘Noise’ is the necessary, unavoidable, yet inherently uneasy and obscure link between these systems unable to share a common language (or ‘code’). Through this noise, the respective systems apprehend and internalize concepts that originally draw meaning from a different, foreign code. Through this noise the ‘totality’ of each system is breached by an experience of its own exteriority. Thus, unlike the common understanding, here the term ‘information noise’ has a positive meaning: rather than obscuring the communication it actually permits it at least in some form.

Přibáň’s theory is thus a decisive ‘no’ to all the criticisms accusing Luhmann’s theory of being totalitarian: ‘totality’ as a characteristic of an autopoietic system is revealed as operational discreteness, breached and fed from the outside without being denied as such. The notions of ‘system’ of law, morality and politics can thus be employed both in place of definitions (which are always periculosa), and as handy and revealing analytic tools.

With their help, Přibáň examines the notion of ‘the Spirit of the Laws’ as a transcendental frame of reference providing meaning to the plain text of law, tracing it from its ancient platonic roots to modern expressions by Montesquieu and Hegel. He shows persuasively that the notion of a single ‘Spirit of the Laws’ transcendental to (and thus shared by) all these systems is obscuring, as there is no hierarchy between them, and their common means of communication is just that: a form of noise with no inherent substantive value. ‘The Spirit of the Laws’ thus must be seen as a concept emanating internally from each system, and that in turn leads to several ‘spirits of the laws’ (or manifestations thereof), provoking noisy communication in their own right.

Moreover, the aforementioned historical overview reveals, through the idea of ‘the Spirit’ as “a symbol of the timeless present of transcendental moral ideals” (p.27), the basic inherent symbolic feature of law as such, namely its temporality. Přibáň proceeds to explore this feature further, unveiling its ambiguous (in many respects) character. Law is “a mechanism of social change and stabilization” (p.57); it uses historical events to stabilize the present and define the future course; it draws on ‘the timeless present’ and yet shapes the time as we live it. The latter is best exemplified by constitutionalization and revolution – two interconnected [*222] phenomena Přibáň uses as both prime examples and experimental grounds for a deeper analysis, thus extending his earlier works on the revolutionary changes of 1989 in Central Europe.

At this point we reach the part that is probably the most interesting from the perspective of political science, namely an analysis of constitution-making in post-soviet Central European countries, an assessment of the recent attempt at constitution-making at the EU level, and an evaluation of several specific ways of legal time-construction using examples of restitution and ‘lustration’ legislation embodying a unique retrospective aspect of revolutionary changes. All these motives share a common trait: the identity-building as a process using legal means and moral issues for specific political ends – all in terms of the systems theory, the whole idea being a prime example of application thereof.

With regard to the constitution-making processes, Přibáň focuses on the two rather conflicting, yet complimentary sources of identity: demos and ethnos. When dealing with the Central European context, he notes that the (ethno-) nationalist tones have played key roles in the politics of the region for decades and surfaced even in the midst of the communist era (Přibáň points to the post-Stalinist shifts in the late 1950s and 60s). The fall of the Soviet block turned out to incur a call for a new identity, and with lack of deeper rooted civil traditions in the respective states, ethnicity was the single readily available option. The relative weight of both of these conceptions can be to some extent assessed through textual analysis of the newly-drafted constitutions; however, the actual policies of the post-revolutionary countries show much stronger convergence than the wording of the documents in question. It should also be noted that these documents are somehow interrelated, and, for instance, the arguably most ‘civil-based’ (Czech) is a direct reaction to the one arguably most ‘ethnic-based’ (Slovak).

Přibáň shows that one of the major drives promoting the demos side of identity in these countries was the process of European integration, itself highly civil-driven. He even uses the term “taming ethnos” when describing this particular issue. Considering the history of the region, it is a highly welcome and appreciated input, although it may seem dismissive at first sight. However, he argues that the European project itself lacks any common political field and hence both demos and ethnos of its own, and thus cannot follow the identity-building logic of a nation state, as the failure of the constitutional attempt clearly exemplified. The reason is deep rooted in the fundaments of the entire European project, as it has always been characterized and pursued as ‘politics of depoliticization.’ “Politics communicated by the logic of economy and law is a founding paradox of the European Union” (p.117). To put it in different words: European politics is not an autonomous (autopoietic) political system; it does not use the political code (government/opposition), but rather codes of different systems in its communication. Furthermore, the ‘repoliticization’ of EU takes place primarily at the level of its Member States in the form of questioning the very concept of European integration and thus further undermining its weak legitimacy. Another option for ‘repoliticization’ – via ‘ethicalization’ of [*223] the EU, that is through establishing a moral field that would supplement the legal and economic systems and hopefully with time give rise to a genuine political field in its own right – is hampered by the very image of the EU as a cold, regulatory machinery with which it is indeed very difficult to identify.

The last part of the book is devoted to retrospective justice, so typical an issue in post-revolutionary (or ‘transition’) countries. Přibáň returns to the time-constituting aspect of legality and discusses the context and post-Soviet judicial history of Central European countries. He draws a line between the ‘continuity-driven’ approach of the more ‘transition’-characterized countries (Poland and especially Hungary, where even the new Constitution was formally adopted by the old communist Parliament in 1989) and the much more retributive approach present in the more ‘revolutionary’ ones. The message is quite clear: in the countries that had experienced a genuine rupture with the past era, there was an urge to embody this experience into the newly founded identity. The future required a more stringent reading of the past. In the final chapter Přibáň follows two phenomena closely linked with retrospective justice, namely restitution laws and constitutional case-law in that area in Hungary and Czech Republic, and the specific vetting policies introduced by ‘lustration acts’ in Czechoslovakia (and eventually enforced only in the Czech part of the divided country after 1993). He shows a clear difference between the ‘prospective’ approach adopted by the Hungarian Constitutional Court and the ‘retrospective’ approach adopted by its Czech counterpart. Although there are noticeable differences even between the laws under constitutional scrutiny, the judgments express a much more striking divergence, and Přibáň tries to point at its nuances. Finally he approaches the lustration acts introducing policies prohibiting certain exponents of the past regime (such as, most controversially, agents and collaborators of secret services) from holding some public offices. Apart from the standard apologies of such an approach, he raises the issue of these acts creating ‘scapegoats’ purifying the consciousness of the people loyal to the old regime for decades. Yet another instance of identity- and time-construction.

As I hope to have shown, this book (also published in Czech) raises a range of important and often highly controversial issues, be it in Czech or wider European contexts. To a reader unfamiliar with Central European politics of the early 1990s or with the background of the enlargement process of the EU culminating in 2004, it can provide invaluable views of an attentive (and to a certain degree participant) observer. And a reader only vaguely familiar with the theory of autopoietic systems can find here both a vivid example of its usefulness and a reason to delve deeper into its exploration. The book is, nonetheless, also liable of being criticized for some of its weaker spots, as I have pointed out in the opening part of this review. Let me conclude by revisiting these critical remarks.

I have marked the notion of ‘noise’ as the key metaphor of the theoretical background of the book. It can, nevertheless, also be employed as a more general metaphor for the book and for the ‘mode of communication’ [*224] between its individual parts (or ‘layers’). It fits well with avoidance of ‘constitutional’ and hence ‘constituting’ discourse that I appreciate; however, at times it leaves the reader with somewhat too few clues and links. Even the notion of ‘depoliticization of politics’ in EU context is presented without overt connection to the theoretical assumptions, and its reformulation stated above is merely my reading of this, to my mind, obvious link, and should be seen as such. Other instances of ‘noisiness’ include the terms ‘symbolism’ and ‘constitution’: the former, the would-be central tenet of the argument, remains rather undefined, and its clearest definition from the closing chapter can be objected as being too vague and involving a certain degree of circularity (“Legal symbolism is best understood as the legal system’s specific reflection of social expectations of communal togetherness, goodness and justice. It is a mode of legal communication originating in the symbolic communication of cultural unity and the moral values of a political community,” pp.195-196); the latter denotes a wider notion of constitution for the most part of the book, yet at times it quite clearly denotes the specific and single text of a legal document. This ‘noisiness’ is thus yet another challenge for the reader – and probably the least fruitful one.

REFERENCES:
Alexy, R. 2002. A THEORY OF CONSTITUTIONAL RIGHTS. Oxford: Oxford University Press.

Arnold, T. 1962. THE SYMBOLS OF GOVERNMENT. New York: Harcourt Brace & World.

Elias, N. 2001. THE SYMBOL THEORY. London: Sage.

Gadamer, H.G. 1976. PHILOSOPHICAL HERMENEUTICS. Berkeley, CA: University of California Press.

Gadamer, H.G. 2001. TRUTH AND METHOD. London: Continuum.

Habermas, J. 2001. THE POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS. Cambridge: Polity Press.

Habermas, J. 1984/1987. THE THEORY OF COMMUNICATIVE ACTION, 2 vols. (trans. T. McCarthy). Boston: Beacon Press.

Husserl, E. 1965. PHENOMENOLOGY AND THE CRISIS OF PHILOSOPHY. New York: Harper and Row.

Luhmann, N. 2004. LAW AS A SOCIAL SYSTEM. Oxford: Oxford University Press.

Luhmann, N. 1995. SOCIAL SYSTEMS. Stanford, CA: Stanford University Press.

MacCormick, N. 1993. “Beyond the Sovereign State.” 56 MODERN LAW REVIEW 1.

Weiler, J.H.H. 1999. THE CONSTITUTION OF EUROPE: ‘DO THE NEW CLOTHES HAVE AN EMPEROR?’ AND OTHER ESSAYS ON EUROPEAN INTEGRATION. Cambridge: Cambridge University Press. [*225]

Žižek, S. 2001. DID SOMEBODY SAY TOTALITARIANISM? FIVE INTERVENTIONS IN THE (MIS)USE OF A NOTION. London: Verso.

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© Copyright 2008 by the author, Peter Brezina.

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STEM CELL CENTURY: LAW AND POLICY FOR A BREAKTHROUGH TECHNOLOGY

by Russell Korobkin with Stephen R. Munzer. New Haven: Yale University Press, 2007. 336pp. Cloth $29.95. ISBN: 9780300122923.

Reviewed by Christopher A. Riddle, Department of Philosophy, Queen’s University, Canada. E-mail: 9car[at]queensu[dot]ca.

pp.216-219

STEM CELL CENTURY, by Russell Korobkin, provides an engaging, accessible and by and large, thorough examination of the contemporary debates surrounding human embryonic stem cell research. Korobkin demystifies the science associated with the stem cell debate by providing a brief but effective overview of the methods and terminology required as foundational knowledge to allow for the refocusing of attention to the political, legal, and ethical implications of the employment of such research into practice. Korobkin clearly displays his tendencies within the debate at numerous instances throughout the book, but nevertheless, presents clear and convincing conversations representative of a variety of potential positions. Korobkin comes off as far from dogmatic in his treatment of the subject matter and, on all but the rarest occasions, supports his views thoroughly with an apt amount of consideration to opposing perspectives.

That said, STEM CELL CENTURY proceeds by providing interrelated but distinct issue specific chapters that identify three primary goals: (1) identify the most important issues raised by stem cell research; (2) describe the current state of the law for the particular issue raised; (3) offer a critical assessment of the law as well as provide proposals for the implementation of policy.

The first chapter, “The Promise and the Hype,” provides the previously mentioned synopsis of the science relevant to exploration of the contemporary debate surrounding stem cell research. Korobkin presents the reader with information concerning what stem cells are, the possibilities of stem cell research, the perceived importance of the future of stem cell medicine, as well as the potential difficulties encountered by research scientists in this pursuit. Korobkin also makes clear the distinction between “embryonic” and “adult” stem cells as this becomes particularly relevant when examining the next chapter largely concerned with the ethics of stem cell research.

The second chapter, “The Embryo Wars,” contextualizes the ethical and legal debates over embryonic stem cell research through the Bush administration policy, designed to limit public funding disseminated to stem cell scientists. Korobkin dissects the logic behind the Bush administration’s decision and is critical of affording early-stage embryos the same protections as living persons. Much attention is paid to the logic of the ethical argument put forth by Bush, but I fear there was not enough care devoted to providing a thorough analysis of the current debate. While I found this chapter the most interesting and perhaps the most skillfully presented, tracing complex ideas and dilemmas through [*217] contemporary examples accessible to most people, it is nevertheless, lacking the academic rigor necessary to offer a meaningful contribution to the debate. I find myself agreeing with the majority of concerns Korobkin puts forth in this chapter, but he nevertheless, omits many nuances associated with the debate and possible counter-remarks made by individuals who believe an early-stage embryo has the same rights as a living individual. Green (2001), Holm (2002), Devolder (2005) and Agar (2007) all offer substantial contributions to this debate and are far more thorough in their considerations than Korobkin. It is worthy of mention however, that Korobkin has succeeded in presenting these discussions to a wider audience than the aforementioned views precisely because of the overly-brief treatment he affords the debate.

The third chapter, “Cloning, Congress and the Constitution,” describes the similarities and differences between cloning human individuals and cloning cells (with only the later being of importance for stem cell research). This chapter also attempts to explain the future of regenerative medicine in light of stem cell research and cloning. Korobkin explores the constitutional law issues introduced by Congressional attempts to make both types of cloning illegal in the United States. Similar to the previous chapter, I fear the treatment of this matter is too brief to offer anything other than an introduction to the subject matter.

When discussing the Fifth Amendment rights of individuals to pursue medical treatment, Korobkin introduces an analogy between abortion rights for women and the right to pursue medical treatment for maladies vis-à-vis the possible discoveries made in the future by stem cell research. This appears to be a faulty analogy and under-supported. While it serves to contextualize Korobkin’s justification for allowing pursuit of medical treatment through stem cell research discoveries, he nevertheless fails to support the analogy. Korobkin does acknowledge how possible critics could find fault with such a comparison but fails to give such opposition just weight.

For example, Korobkin recognizes that a distinction may be made between abortion and stem cell research on the basis that abortion can be viewed as an accessible cure to alleviate negative health implications, whereas stem cell research only signifies the potentiality of a discovery of a cure. He dismisses this critique by stating that individuals should have a fundamental right not to have the government impede their search for a cure. He furthers his point by an appeal to the landmark case, ABIGAIL ALLIANCE FOR BETTER ACCESS TO DEVELOPMENT DRUGS v. VON ESCHENBACH (2006), that concerns access to pharmaceuticals.

However, this analogy falls apart on at least one front when examined in further depth. This concern involves the indirect nature of stem cell research as a cure for a malady. This can be displayed through the use of a counter-analogy. If an individual is hungry, the cure for her hunger is eating (view this as being analogous with abortion). Conversely, one cannot say of a farmer praying for rain for his crops, that he is praying for a cure for his hunger. Perhaps the flourishing of his crops can secure food for his consumption, but it is [*218] nevertheless, not a cure for his hunger (view this as being analogous with the indirect relation of stem cell research to curing a malady).

That said, the aforementioned criticisms are amongst the only I could find within the many nuanced discussions put forth by Korobkin.

Korobkin provides a thorough discussion of The United States Patent Office’s decision to allow patenting of cell stems, thus halting research by other scientists on particular cells, within the fourth chapter of STEM CELL CENTURY. Not altogether unrelated to this discussion, Chapter Five continues by examining the tax payer’s stake in the provision of public funding to stem cell scientists. It examines how private firms or researchers utilizing public funds to achieve scientific breakthroughs can patent their discoveries to keep 100 percent of the profits.

Chapter Six, “Autonomy and Informed Consent,” considers whether informed consent requirements should apply in situations when patients are not involved as the object of experimentation, but are instead asked to provide human tissues. Also, Korobkin provides an interesting discussion on whether research on embryos should require the consent of both donors who created the embryo.

Korobkin then argues against justifications in favour of prohibiting the buying and selling of critical tissues for stem cell research. Similarly, “Default Rules for Tissue Donations” discusses the rights associated with donors providing tissues for research.

Finally, STEM CELL CENTURY provides the reader with possible ethical, legal and political questions that will require addressing once stem cell research has become more prominent as a medicinal cure. These include but are not limited to: 1) Should the Food & Drug Administration regulate stem cell treatments similar to pharmaceuticals?; 2) Should the manufacturers of treatments approved by the FDA receive protection from private lawsuits not given to more conventional medical products?

STEM CELL CENTURY provides the reader with a wide breadth of knowledge surrounding debate on stem cell research. Korobkin has not only succeeded in offering a wide array of knowledge for those interested and otherwise unacquainted with the political, legal, and ethical implications of stem cell research, but has also presented this information in a fun and exciting manner, with appeal to a variety of disciplines. The shortcomings mentioned previously do not serve to diminish the impact STEM CELL CENTURY will have. It provides an excellent foundation from which the debate on stem cell research can be both understood as well as advanced. Theorists with a firm background in these debates will perhaps find Korobkin’s treatment redundant at times. However, readers with less experience in an interdisciplinary approach to the stem cell debate will find themselves engulfed in engaging contemporary examples to use as starting points for further scholarship. Not only can this title be recommended to academics otherwise unfamiliar with the field, but it is equally suitable and accessible for [*219] non-academics wishing to become familiarized with the debate.

REFERENCES:
Agar, Nicholas. 2007. “Embryonic Potential and Stem Cells.” 21 BIOETHICS 198-207.

Devolder, Katrien. 2005. “Human Embryonic Stem Cell Research: Why The Discarded-Created-Distinction Cannot Be Based on the Potentiality Argument.” 19 BIOETHICS 167-186.

Holm, Søren. 2002. “Going to the Roots of the Stem Cell Controversy.” 16 BIOETHICS 493-507.

Green, Ronald. 2001. THE HUMAN EMBRYO RESEARCH DEBATES: BIOETHICS IN THE VORTEX OF CONTROVERSY. Oxford: Oxford University Press.

CASE REFERENCES:
ABIGAIL ALLIANCE FOR BETTER ACCESS TO DEVELOPMENT DRUGS v. VON ESCHENBACH, 495 F.3d 695, (D.C.Cir. 2006).

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© Copyright 2008 by the author, Christopher A. Riddle.

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THE ETHICS AND GOVERNANCE OF HUMAN DATABASES: EUROPEAN PERSPECTIVES (Español)

by Matti Häyry, Ruth Chadwick, Vilhjálmur Árnason and Gardar Árnason (eds.). Cambridge University Press, 2007. 296pp. Hardback £50.00/$95.00. ISBN: 9780521856621. eBook format. $76.00. ISBN: 9780511282584.

Repasado por Ricardo Chueca, Departamento de Derecho, Universidad de La Rioja, Spain, Email: ricardo.chueca [at] unirioja.es.

pp.212-215

La necesidad de almacenar de modo ordenado datos genéticos y de salud de grandes masas de población, por exigencia de la investigación científica, es algo relativamente nuevo. En el estado actual del conocimiento científico es preciso pues la enfermedad es resultado de nuestro modo de vida y del medio ambiente en el que nos desenvolvemos. Pero todo ello porque esos factores interrelacionan con nuestra dotación genética individual.

De ahí que estudiar cómo se produce esa interrelación, hasta poder llegar a formular las leyes generales que la rigen, sea el objetivo actual de las investigaciones biomédicas y genéticas.

Todo lo anterior plantea una enorme, dificultosa y nueva carga de problemas. El libro que comentamos es una aproximación a esos problemas desde una perspectiva interdisciplinar y a partir de cuatro experiencias de Human Genetic Databases (HGD). Se trata de la deCODE’s database of Iceland, the Estonian Genome Project, the UK Biobank y el sueco Medical Biobank of Umeå. Todos los aspectos relevantes desde un enfoque social, jurídico, ético o político son tratados. Especialistas en derecho, filosofía y sociología (hasta 23) han realizado un análisis de los aspectos relevantes o problemáticos. El libro es el resultado final de un Proyecto financiado por la Comisión Europea, (Ethical, Legal and Social Aspects of Human Genetic Databases: A European Comparison. ELSAGEN). Y efectivamente es una comparación que acoge a las cuatro HGD’s, pero quizá el título del libro –European perspectives- no sea tan correcto, pues no están presentes todas las perspectivas europeas; ni todas las importantes.

Los aspectos sociológicos tratados en la Parte II son extremadamente importantes. Porque nos encontramos en un ámbito en que la práctica se anticipa a la regulación. Y, por ello, las percepciones de los ciudadanos sobre la naturaleza y finalidad de tales prácticas configuran la opinión pública y, a su través, anticipan las regulaciones jurídicas futuras y los criterios éticos socialmente dominantes. Y, por ello mismo, condicionan la financiación de concretas líneas de investigación en estas materias. La confianza en los investigadores es en general muy alta, con diferencias nacionales. Y la preocupación por la protección de la privacy es el aspecto más destacado entre los resultados que las diversas encuestas ofrecen. Pero se trata de percepciones que distan mucho de poder considerarse como consolidadas, pues no pueden descartarse cambios de orientación –o reafirmaciones- de las percepciones colectivas en función de [*213] los avances científicos y terapéuticos por lograr.

Aunque el aspecto jurídico estudiado en la Parte III es uno más, no cabe duda de que recoge los perfiles más problemáticos e inquietantes, pues trata de cuestiones concretas que reclaman ser afrontadas y resueltas. Quizá por ello nos encontramos con muy serios problemas regulativos. La regulación actual es inadecuada, en términos generales, aunque con excepciones no siempre recogidas en el libro, quizá porque transcurrieron dos años al menos entre el final de la investigación y la publicación de los resultados. En el ámbito de la regulación de HGD’s dos años es demasiado tiempo. El libro no recoge por ejemplo la Ley de Investigación Biomédica española (Biomedical Research Act) de 2007, que plantea una regulación detallada de HGD’s así como de los aspectos más vanguardistas en materia de investigación genética.

Tampoco está resuelto el papel del mercado y de la libre iniciativa en estas materias, a pesar de algunas propuestas que no parecen muy acertadas (p. 241). De los análisis recogidos en el libro no podemos concluir una toma de postura clara: si conviene escoger un modelo privado de iniciativa, un modelo público o uno mixto. De todos ellos hay ejemplos contradictorios. Sin embargo parece claro que la tendencia es a que los HGD’s dependan en más o menos medida de decisiones públicas; aunque no necesariamente. Ni tampoco está resuelto con seguridad el aspecto jurídico de la explotación de los hallazgos científicos en determinados supuestos: los aspectos de propiedad intelectual y de patentes presentan especiales dificultades en ciertos casos.

Los problemas de regulación del consentimiento son muy variados y de una complejidad llamativa, debido a la capacidad de las materias genéticas para incrementar exponencialmente la dificultad de los problemas jurídicos clásicos. Y por otro lado, los ordenamientos jurídicos estudiados tienden a confundir la naturaleza del consentimiento informado. De hecho el propio libro que comentamos no parece ser muy consciente de que no puede identificarse el consentimiento informado emitido para almacenar muestras genéticas propias, con el consentimiento preciso para el acceso a los datos personales del donante. En muchos ordenamientos y en los instrumentos internacionales de referencia en la materia, se trata de dos derechos distintos, que exigen por tanto dos actos de consentimiento distinto, pues su regulación también es distinta. Aunque, como suele ser frecuente, todo ello se registre en un único documento.

La privacy de los donantes es sin duda otro de los mayores obstáculos que plantea cualquier ensayo de gobernanza de los HGD’s. No es fácil encontrar un equilibrio entre las exigencias de la investigación y las derivadas de la protección de dicha privacy. Sin embargo, la solución nunca podrá obtenerse de una disminución del grado de protección de aquélla privacy, que es indudablemente una conquista histórica. La introducción de la distinción entre información sensible y no sensible, cuando se trata de información genética e individualizada, no parece que sea un camino acertado, a pesar de lo que sugiere alguno de los autores (p. 183). [*214]

Dado el tipo y la singularidad de la información genética, configurar el derecho a no saber sigue planteando también dificultades insalvables. Sobre todo porque la posición de terceros afectados por la misma información genética no siempre puede ser salvada si no es a cambio del daño al derecho de otros sujetos.

No es extraño pues que, en tales casos, las regulaciones jurídicas cambien para cada país, introduciendo una alta dispersión normativa en un tipo de actividad que precisaría una regulación altamente homogénea, cuando no supranacional.

La discriminación de base genética es otra de las amenazas que pueden adquirir importancia desde la información que los HGD’s acumulan. Cuándo una decisión de investigación introduce criterios étnicos discriminatorios o cuándo estos criterios están justificados científicamente, e incluso pueden aconsejar la introducción de taxonomías específicas en un HGD o en la construcción de muestras, no es una opción ni neutral ni fácil de tomar. Y tampoco parece fácil construir reglas de carácter general para resolver el dilema.

Sin ánimo de ser exhaustivo, los ejemplos seleccionados de entre los muchos obstáculos que plantean a los juristas los HGD’s mencionados por los autores son quizá bastantes para poner de manifiesto una realidad obvia: las técnicas jurídicas regulativas al uso son resultado de una práctica reiterada en escenarios típicos o clásicos propios de la tradicional relación médico-paciente. Sin embargo las posiciones y categorías elaboradas para tales supuestos, colisionan frontalmente con los nuevos escenarios. Intimidad, consentimiento, confianza son términos que, en un entorno de regulación de materias genéticas, necesitan una fuerte adecuación. La pregunta es si, tras esa adecuación, siguen siendo útiles o es preciso reconstruirlos en su totalidad.

Con todo la dificultad jurídica mayor está en la necesidad de disponer de un cuerpo jurídico relativamente homogéneo, en definitiva, en la necesidad de una armonización. Ciertamente disponemos de una serie de documentos y declaraciones internacionales que pretenden erigirse como normas de referencia armonizadoras. Pero el problema está en la diferente posición de partida de cada sociedad y en la desigual posición que ocupan en el ámbito de la investigación biomédica y genética. Sólo el “Convenio para la protección de los Derechos Humanos y la dignidad del ser humano con respecto a las aplicaciones de la Biología y la Medicina” (Convenio de Oviedo, 1997) supone una propuesta de norma jurídica vinculante, bien que de alcance regional europeo, para los Estados que lo han ratificado. La armonización es, sin duda, la clave.

Sin embargo por el momento hay problemas insalvables. Estas diferencias son menores, en términos de contenidos, entre el estándar europeo y los American values recogidos en el que los autores denominan Georgetown model (p. 28-36). Parece que la aproximación, en forma de mezzanine rules, es esperable.

En el ámbito ético, Part IV, los problemas que destacan como más recurrentes tienen que ver con el benefit-sharing, o con opciones en los que están en juego criterios de justicia y equidad. [*215] Sin embargo la dificultad es menor pues en realidad las opciones, dada la naturaleza del análisis ético, se remiten siempre a la ponderación entre bienes y valores, más allá del problema concreto objeto de estudio.

Las páginas finales del libro, Parte IV, antes de la Conclusión con la que se cierra, se ocupan de un conjunto de consideraciones de carácter político en sentido amplio. Es especialmente aleccionador el esfuerzo que dedica Gardar Árnason a defender la genética de la asfixiante retórica con que se le rodea: “Human genetic databases will doubtless contribute to the progress of science and possibly lead to the discovery of new drug, but science and medicine will also do very well withit them”.

Cómo organizar y regular el funcionamiento de los HGD’s es una pregunta que no tiene una respuesta unívoca hoy. De un lado la investigación científica, a la que de momento sirven fundamentalmente, aconseja una intervención que no condicione la realización de una actividad que sólo es fructífera si es libre. Pero libertad de investigación y libertad de mercado no parece que puedan convivir naturalmente en este ámbito. Por eso mismo se trata de una actividad en donde podemos percibir esfuerzos que son contradictorios pues persiguen fines no siempre compatibles.

Como siempre ocurre cuando el conocimiento humano logra avances cualitativos –y la investigación genética está acumulando conocimientos de modo espectacular- la percepción que de las HGD’s poseen el ser humano y los poderes públicos tiene una doble cara: HGD’s son unos instrumentos de avance científico de primera importancia y deben ser favorecidos; pero al mismo tiempo sólo deben ser utilizados para el bien común, no para otras finalidades que deben quedar expresa y sólidamente vedadas.

Pocas veces un libro ha contenido tantas preguntas y tan necesarias…Un libro muy meritorio que se inscribe en un camino que se está abriendo día a día. A veces bajo nuestros pies.

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© Copyright 2008 del autor, Ricardo Chueca.

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THE ETHICS AND GOVERNANCE OF HUMAN DATABASES: EUROPEAN PERSPECTIVES

by Matti Häyry, Ruth Chadwick, Vilhjálmur Árnason and Gardar Árnason (eds.). Cambridge University Press, 2007. 296pp. Hardback £50.00/$95.00. ISBN: 9780521856621. eBook format. $76.00. ISBN: 9780511282584.

Reviewed by Ricardo Chueca, Department of Law, University of La Rioja, Spain, e-mail: ricardo.chueca [at] unirioja.es.

pp.208-211

The need to store large quantities of genetic and health data for scientific research is something relatively new. Given the current status quo of the scientific knowledge, this circumstance is necessary because diseases are the result of our own way of life and the environment in which we live. However, all this happens because these factors interact with our individual genetic makeup.

Hence, to explore how these interrelationships, and the need and utility of general laws, is the primary aim of much contemporary biomedical and genetic research.

All the above mentioned shows a huge, difficult and new cargo of problems. THE ETHICS AND GOVERNANCE OF HUMAN DATABASES is an exploration of those problems from an interdisciplinary perspective and from four Human Genetic Database (HGD) experiences. They are the deCODE’s database of Iceland, the State Genome Project, the UK Biobank and the Swedish Medical Biobank of Umeå. All the relevant aspects from a social, legal, ethical or political approach are treated, and research of specialists in law, philosophy and sociology is included in the collection. The book is the final outcome of a Project financed by the European Commission, (Ethical, Legal and Social Aspects of Human Genetic Databases: A European Comparison. ELSAGEN). And it offers comparison of the four HGDs. However, the title – European perspectives – is not so correct, as not all European perspectives and experiences are presented, neither all the important ones.

The sociological perspective, treated in Part II, is extremely important, because we are in an area in which anticipating regulation is so important. In addition, therefore, the perceptions of citizens about the nature and purpose of related practices help to anticipate future legal regulations and socially dominant ethical criteria. Moreover, these perceptions condition the financing of specific lines of investigation on these matters. Confidence in the investigators is generally very high, but there are interesting national differences. In addition, concern regarding protection of privacy is the most significant result arising from the various surveys. Nevertheless, they are perceptions which have not been considered systematically, and they can provide some guidance for the general role of scientific and therapeutic uses of genetic databases.

The legal issues studied in Part III reflect the most problematic and disturbing aspects of this general enterprise, because we find very serious regulatory [*209] problems. The current rules are inadequate, in general terms, albeit with some exceptions which are not always reflected in the book, perhaps because two years had passed between the end of the investigation and the publication of the results. In the area of regulation of HGDs two years is too much time. The book does not include, for example, the Spanish Ley de Investigación Biomédica (Biomedical Research Act) in 2007, which includes detailed regulation of HGDs as well as of a range of practices considered to be in the vanguard of genetic research.

In spite of some proposals which do not seem to be very sensible (p.241), the role of the market and of the free initiative on these matters has not been resolved. From the analysis contained in the book we cannot conclude a clear position: whether to choose a private initiative model, a public model, or a mixed one. Indeed there are problems associated with all of them. However it seems clear that the trend involving use of HGDs is to depend, in more or less measure, on public decisions.

Among the legal questions associated with exploitation of scientific findings in certain cases, intellectual property and patent issues present special difficulties, and the problem of how to guarantee security has not been solved either.

The problems of regulation of consent are quite varied and strikingly complex, due to the capacity of genetic issues to exponentially increase the difficulty of these classic legal issues. On the other hand, the legal systems analyzed tend to confuse the nature of informed consent. In fact, the authors do not seem to be very concerned about the special circumstances for ownership and informed consent presented by stored genetic samples. In many jurisdictions and in the international instruments of reference on this matter there are often two distinct rights – of the individual donor and the database proprietor – which thus require two acts of consent with different purposes. Nonetheless, as it frequently happens, all is recorded in a single document.

The privacy of donors is another major legal obstacle which must be considered in any governance of HGD testing. It is not easy to find a balance between the demands of the investigation and those associated with protection of individual privacy. However, the solution may never be obtained through a decrease of the level of privacy protection, which is undoubtedly an ongoing issue of conflict. Despite what some of the authors suggest (p.183), making a distinction between sensitive and unsensitive data may be improper when it comes to genetic and individualized information.

Given the nature and the uniqueness of the genetic information, overcoming the problem of truly informing individual donors and obtaining their consent seems rather insurmountable. Moreover, and also of great importance, because third parties have an interest and can been affected by the same information, the issues quickly become increasingly complex.

In this respect, it is not strange that, in such cases, the legal regulations change for each country, introducing considerable variations in an area which require a highly homogeneous regulation, at least at the state level. [*210]

The potential discrimination that may result from genetic research is another of the threats that can gain importance because of the information that the HGDs collect. When a research decision introduces ethnic discriminatory criteria, or when these criteria are scientifically justified, a policy decision option is neither neutral nor straightforwardly simple. To gain consensus necessary to build general rules about this issue also does not seem to be easy.

Without intention of being thorough, the examples selected from the many legal and judicial obstacles associated with HGDs mentioned by the authors are perhaps enough to reveal an obvious reality: the legal regulatory mechanisms are the result of repeated practice in typical scenarios related to the traditional doctor-patient relationship. However, the positions and categories developed in such cases collide head-on with the new scenarios. Privacy, informed consent and confidence are terms that, in regulation of raw genetic environment, need to be strengthened. The question is whether those concepts remain useful or whether it is necessary to rebuild them entirely.

Even so, the most difficult and pressing need is to have a body regulations that is relatively homogeneous. Certainly, we have a series of documents and international declarations that are moving in the direction of harmonizing standards. Nevertheless, a key problem is the unequal starting position of each society in the field of biomedical research and genetics. Only the European Convention on the Protection of Human Rights and Dignity of the Human Beings with regard to the Application of Biology and Medicine (1997) represents a proposal for a binding legal rule with European regional scope for those States which have ratified it. Greater harmonization is without doubt, the key.

However, there are other significant problems. Although differences are minor in terms of content between the European standard and the American Values collected in the Georgetown model, as the authors (p.28-36) call it, the approximation of more global rules is not as yet close.

On the issue of ethical considerations, Part IV, the most recurrent problems are related to benefit sharing and with options in which justice and fairness criteria come into play. However, the difficulty is lower because, due to the nature of ethical review, the larger good is generally given considerable weight beyond the specific problem under study.

The final pages of the book, Part V, before the closing Conclusions, deal with a set of political considerations in a wide sense. Gardar Árnason devotes particularly instructive effort to defend genetic research from the crippling rhetoric which surrounds it: “Human genetic databases will doubtless contribute to the progress of science and possibly lead to the discovery of new drugs, but science and medicine will also do very well within them.”

How to organize and regulate the functioning of the HGDs is a question that currently does not have an unequivocal answer. On the one hand, the scientific research, whose purpose they now primarily serve, advises a kind of intervention which does not condition [*211] the carrying out of an activity that is only fruitful if it is free. Nevertheless, it seems that freedom of research and free market cannot naturally live together in this area. Because they pursue aims which are not always compatible, they represent activities from which we can perceive efforts that are contradictory.

As it always happens when human knowledge achieves qualitative advances – and the genetic research is accumulating knowledge in an incredible manner – activities associated with human genetic databases have a double side: HGDs represent first important instruments of scientific progress, and for this reason they must be favored; but at the same time they must only be used for the common good, not for other purposes that should be expressly and solidly banned.

Rarely does a book comprise so many large and growing legal questions. THE ETHICS AND GOVERNANCE OF HUMAN DATABASES is a very worthy book which addresses issues that are opening up every day – sometimes under our feet.

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© Copyright 2008 by the author, Ricardo Chueca.

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INDEFENSIBLE: ONE LAWYER’S JOURNEY INTO THE INFERNO OF AMERICAN JUSTICE

by David Feige. New York: Little, Brown, and Company, 2006. 288pages. Cloth. $24.95. ISBN: 9780316156233.

Reviewed by Jack E. Call, Department of Criminal Justice, Radford University. Email: jcall [at] radford.edu.

pp.204-207

INDEFENSIBLE is ostensibly a book about a day in the life of New York City Assistant Public Defender, David Feige. To the good fortune of those of us who study the American justice system, it is much more than that. Feige uses a particular day as a vehicle for organizing what he wants to tell the reader concerning what he has learned about the people he has defended and the American criminal justice system during his years of service as a public defender. Those experiences provide the reader a fascinating account that both informs and entertains.

Perhaps the major accomplishment of INDEFENSIBLE is its humanization of the clients with which Feige works. A popular conception of criminal defense attorneys is that their competitive drive or their desire to make a good living (defending middle and upper class defendants) explains their willingness to advocate for those perceived by many as the dregs of our society. It certainly could not be the people they represent who exercise any pull on them because who could be drawn to the reprehensible people who have committed such horrible crimes?

Feige not only does not find the people he represents to be horrible; he is drawn to many of them with a genuine affection. Consider Gillian Sands, a young black woman who killed her abusive husband in self-defense. She still loved him so much that she felt guilty about what she had done. Feige had to work very hard to convince her not to plead guilty.

There was Cassandra, a thoroughly lovable, but mentally ill homeless person who also had alcohol and drug problems. She once was arrested for robbery for holding up a taxi driver by sticking her index finger in his ribs. She eventually reached a point of such desperation that Feige felt that he was acting in her best interests by arguing for her incarceration for a short period of time so she could get off the streets and into a warm place where he could be certain that she would take her medications.

Perhaps the most remarkable of the defendants was Branford, who at the age of fourteen had taken up with a bad crowd and was selling drugs and robbing people. One day, he was near the scene of a shooting, after which the shooter dropped five bullets from his gun into Branford’s hands. Before he could dispose of the bullets, Branford found himself in a line of people being searched by the police. As the officers worked their way closer to Branford, he managed to swallow all five 22-caliber bullets. Afterward, he had the good sense to visit an emergency room (where he explained that he had downed the bullets as part of a dare). Inevitably, [*205] Branford ended up in prison. The experience so altered Branford’s thinking that he not only came out of prison determined not to return, but he found a job working in the public defender’s office.

Feige has a remarkable ability to help the reader understand what his clients sometimes feel (another aspect of his humanization of his clients). Malcolm Feeley has suggested that, for defendants who believe they are innocent, the ordeal that they must endure to get their case heard in misdemeanor courts is so arduous that “the process is the punishment.” (Feeley). In chapter nine, Feige describes the journey of a hypothetical client who, late for work, jumps over a subway turnstile that jammed when he put his token in the turnstile. An officer who saw the client jump over the turnstile but did not see the client put the token in it arrests him for “turnstile jumping.” The client insists on being heard, even after being offered a non-criminal disposition that would require only one day of community service, because he committed no crime. Feige describes the process the client endures in such exquisite detail that the client’s frustration becomes palpable to the reader.

Ethical issues are another theme of the book. Feige describes a disturbing number of incidents where people in the criminal justice system acted in ways that raise serious ethical questions. In several cases, prosecutors went forward with cases based on nothing more than highly questionable statements from a single witness. In the murder case of Clarence Watkins, for example, the police focused on him as the shooter in the apartment lobby murder of a suspected drug dealer (who was himself a suspect in a murder). The only real evidence against Clarence was an identification given by a man who was drunk at the time of the murder and whose own wife described him as “very imaginative.” There was no forensic evidence linking Clarence to the murder, no murder weapon, and no indication that Clarence was involved in gang or drug-related criminal activity.

What seemed to do Clarence in was that he had a criminal record, lived in the apartment building where the murder occurred, and had an alibi that was based on the testimony of family members. Of course, these facts were more than sufficient to warrant investigation of Clarence, but the case was prosecuted on highly questionable evidence. What is disturbing about cases like this one is that they often resulted in convictions. While the prosecution might say it simply presents the evidence to a jury to determine if it is sufficient, it is apparent that many juries give considerable (and perhaps undue) weight to the fact that the prosecution thought it had enough evidence to convict.

Judges often engaged in questionable actions as well. Many, if not most of them seemed predisposed to high bail. One judge told Feige once that “the first thing they teach you in judge school is that no one ever got bounced off the bench for setting bail too high” (p.77). Another judge routinely excused prospective Jewish jurors during trials that would run through Yom Kippur because once a Jewish juror in one of his trials had refused to serve on Yom Kippur. Another judge discharged a juror for farting during the trial. [*206] According to Feige, judges were often willing to accept nearly any absurd argument that a person interrogated by the police without being given MIRANDA warnings first was not in custody at the time of the interrogation. In Feige’s view, at least, many judges were influenced by the fact that some of the lawyers appearing before them were involved in judicial politics.

Perhaps the most egregious act by a judge reported in the book involved a judge who was anxious to move quickly through his arraignment docket. When Feige tried to present additional points relevant to the bail amount after the judge had announced the amount, the judge warned Feige that any further comments from him would result in increases in the amount of bail. Thinking at first that the judge was being facetious because he had set bail without providing Feige an opportunity to speak on behalf of his client, Feige pressed on. As a result, the judge increased bail one hundred dollars per word from $500 to $700 (Feige said “your honor”) to $1100 (in response to “you can’t do that”), eventually reaching $2500 before Feige mustered the self control to be quiet.

Although these situations raise questions about the ethics of the courtroom work group, Feige also describes incidents demonstrating that these same actors often display remarkable compassion and humanity. For example, in COURTROOM 302, Stephen Bogira suggests that the correctional officers who bring the accused to the courthouse treat their charges like so many pieces of meat, but the correctional officers in INDEFENSIBLE often demonstrated surprising patience. The detective who was about to take Cassandra (described earlier) into custody went out of his way to give Feige an opportunity to remove any contraband from Cassandra before he searched her.

The police displayed remarkable restraint in dealing with Najid, a “green-space activist” who organized peaceful civil disobedience demonstrations when the city was about to destroy gardens that Najid’s organization had built on unused, vacant lots. To resist the city’s efforts, Najid would chain himself to a cinder block cylinder built just for the occasion. While the police used verbal threats and a stream of obscene language in an effort to persuade Najid to un-chain himself, ultimately the police spent hours disassembling Najid’s temporary structure in order to avoid hurting him. Feige saw this as evidence of “our collective tolerance for dissent,” even by the police (p.173). And while we have seen that some of the judges and prosecutors described by Feige sometimes acted callously and arbitrarily, some of them also showed great respect for and deference to all other members of the courtroom workgroup, including the defendants.

As noted earlier, INDEFENSIBLE does a fine job of humanizing the clients that public defenders represent, but it is equally effective in putting a human face on the public defenders. The reader sees how public defenders frequently learn “on the job” at the expense of their clients. For example, early in his career Feige was representing an accused rapist that Feige was convinced was innocent. He worked hard to keep as many women off the jury as possible and succeeded in getting an all-male jury, a jury that convicted Feige’s client. Feige learned that male jurors in rape cases often see [*207] this as an opportunity to show their sensitivity and need at least one woman on the jury to assure them it is alright to acquit if the charge appears questionable.

Feige believes that it is the conviction of innocent clients that takes the greatest emotional toll on public defenders. Feige indicated that after the alleged rapist in the previous paragraph was convicted, Feige thought of him every day while he was incarcerated. Nevertheless, the public defenders who are able to persevere learn to put most of these cases out of their minds. However, some cases cannot be easily removed from consciousness. Feige calls these “cataclysmic convictions” – the unjust convictions of clients about whom he cared deeply. Feige concludes that “most public defenders can’t survive more than three of these before they start to fry” (p.252). Feige developed three personal rules to counteract the effects of these cataclysmic convictions: “trust yourself, pace yourself, forgive yourself” (p.253).

INDEFENSIBLE is a readable and insightful account of criminal courts that even underclass students will find accessible. It would be a very useful supplemental reading for judicial process and criminal process courses.

REFERENCES:
Bogira, Steven. 2005. COURTROOM 302: A YEAR BEHIND THE SCENES IN AN AMERICAN CRIMINAL COURTHOUSE. New York: A. Knopf.

Feeley, Malcolm. 1979. THE PROCESS IS THE PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT. New York: Russell Sage Foundation.

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© Copyright 2008 by the author, Jack E. Call.

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THE EUROPEAN COURT AND CIVIL SOCIETY: LITIGATION, MOBILIZATION, AND GOVERNANCE

by Rachel Cichowski. Cambridge and New York: Cambridge University Press, 2007. 310pp. Hardback. £45.00/$91.00. ISBN: 9780521855853. Paperback. £17.99/$34.99. ISBN: 9780521671811. eBook format. $28.00. ISBN: 9780511271489.

Reviewed by Leslie F.Goldstein, Department of Political Science and International Relations, University of Delaware. Email: LESL [at] UDEL.EDU (with thanks to Zachary Liscio for research assistance).

pp.198-203

THE EUROPEAN COURT AND CIVIL SOCIETY: LITIGATION, MOBILIZATION, AND GOVERNANCE, by Rachel Cichowski, is a remarkably impressive work. It compiles ten years of a prodigious body of Cichowski research on the European Union. (Cichowski 1998 is the earliest citation of her work on the subject that she lists among the references.) The research is thorough, even exhaustive, strikingly well-documented, and presented both quantitatively and with a detailed narrative that gives a qualitative picture of the politics and legal action on the ground.

As presented, the book is an intervention into debates within the IR literature on the nature and degree of what IR scholars call integration, and it is also a contribution to social movements scholarship in that it documents the genesis and tremendous growth of both environmental activism and women’s rights activism at the European level. That is, as it increasingly became obvious that the European Community/European Union WAS a policy-maker, interest group activity naturally sprang forth to influence the policy being considered and made by this new actor. Both the modern women’s movement and the environmentalism movement happened to emerge on the world stage right around the time of this development, so this book traces the intersection of the expansion of those movements and the growth of the EU as a policy maker. And this is not all. The book also analyzes the interaction of the ECJ (European Court of Justice), the European Commission (the bureaucratic arm of the EU), the Council (formerly Council of Ministers – once the legislative arm of the EU, but in recent years one of the two legislative branches of the EU), and the European Parliament (the other legislative branch). The book tells us which of these arms of government was pushing the goals of each of these movements, which was attempting to pull back, and when and why. What emerges is a rich picture of politicking and governance within the European Union.

The book’s story extends from the early sixties (when the European Community really got going after its formation by the Treaties of Rome in 1957) through 2003, roughly four decades. Cichowski calls what she is examining the process of “institutionalization” of governance within the EU, which process she defines as the increase in the formalization of binding rules and [*199] procedures governing actors and organizations within the supranational policy arena covered by the EU, and also the increase in the number of such rules, the increase in the scope of them, and the increase in the support for them by the various governed players in the system (pp.1-2). She approaches this subject through the lens of two different policy topics, neither of which was involved in the original Treaty of Rome. The Rome agreement set up essentially a free trade area across several European countries. Today the Union includes many more countries, and the agreement to lift tariff barriers has evolved into a system where efforts to enhance free trade are now tempered with rules for environmental protection and a variety of protections for various groups of workers, including women (This evolution foreshadows the worry expressed by many Americans about the one-sided effects of NAFTA and WTO to the neglect of countervailing concerns like worker well-being and environmental integrity, who consequently urge amendments in these directions).

Cichowski calls the EU a “quasi-constitutional polity” (p.1) and attempts both to describe and explain the degree to which this complex supranational polity has already become institutionalized. In other words, her implied conclusion (and I agree) is that the EU has already moved out of the international relations field by becoming a polity, and therefore is appropriate for study within the field of comparative politics/governance. This is an important conclusion and one that the research contained in her book amply supports. Still, the basic thrust of her scholarship is to contribute to the understanding of how this process of transition from international organization to federated union took place, and in that sense it is a contribution to literature in the field of IR. As has been widely known among scholars of Europe, the transition was kicked off by a shocking move by the European Court of Justice back in the 1960s and early 1970s. The ECJ, appointed simply to apply the multilateral Treaty of Rome, transformed the Treaty, along with implementing rules adopted for it by the European Commission or the Council of Ministers (now Council), into enforceable “higher law” that would negate contrary member-country legislation, even legislation adopted AFTER the treaty had been ratified and even in member states that adopted no implementing laws that put European rules into the form of national statutes. In other words, the ECJ invented a “supremacy clause” for the European Community treaties and rules as against the laws of the now subordinated member countries. And member states, for the most part, obeyed, with member-state judges implementing the judgments of the ECJ (Stein 1981; Weiler 1981; 1991).

Many scholars have explored the dynamics by which the ECJ appeared to have been a significant motor of integration (e.g. Goldstein 2001; Sandholtz and Stone Sweet 1998; Slaughter, Stone Sweet and Weiler 1998). This book offers a contribution to that discussion, and quite a contribution it is. Cichowski takes up specifically three of the most prominent explanatory theses in the ECJ literature and demolishes them. [*200]

The first and the best known is the claim by Geoffrey Garrett and Barry Weingast (1993) and their allies that, while the ECJ APPEARED to be thwarting the will of major powers in Europe and forcing them to submit to this supranational polity, it was, in fact, behind the scenes doing the bidding of the major powers in Europe (UK, France, Germany). Rachel Cichowski presents such a thorough and well-documented case against this (ECJ-as-intergovernmentalist-tool) claim that it is unlikely ever again to rear its head.

Secondly, this book demolishes the subordinate claim put forth by Garrett, Kelemen, and Schultz (1998) that the ECJ is more willing to transgress the will of powerful member-states when it is essentially forced to do so by prior detailed and specific precedent. They suggest that the ECJ will still avoid crossing powerful member states when precedent is vague or ambiguous, allowing for judicial leeway. Again, Cichowski demonstrates powerfully with a wide range of data, that the ECJ in fact acts most often to set new, controversial policy when prior judicial doctrine or rules adopted via intergovernmental compromise have been left vague and need clarification, rather than when they are clear and precise.

Thirdly, Cichowski takes on the claim by Karen Alter (2001), based on Alter’s impressionistic look at the cases and interviews garnering non-systematically-deduced impressions from Europeans, that lower courts more often than high courts (i.e. courts of last resort) turned to the ECJ for a ruling because doing so took the lower courts out from under the sway of their own high court, and in this sense empowered them. Cichowski insists that this claim also falls when tested by systematic data, and I believe she is probably persuasive, but her bar graphs do not make the point as compellingly as the open-minded reader might wish. Cichowski shows that if one adds together the times that the high courts ask the ECJ to clarify the meaning of European law (“Preliminary References”) with times that intermediate appellate courts have done so, these outnumber the references from lower courts (courts of first instance). A more persuasive case would have been made (given that the lowest courts vastly outnumber high courts, and Alter probably meant to include intermediate courts with her phrase “lower courts”) had Cichowski presented her readers with the average number of ECJ references PER court rather than these bar graphs showing merely totals for all courts.

This book is comparative in many ways. In attempting to understand the process of “institutionalization” of the EU, it compares not only two different policy sectors but also the relative role of the ECJ, the Commission, the Council, and the Parliament, as engines of integration. It also compares country by country, which member states have done the most to promote integration/institutionalization by sending cases to the ECJ, and/or requesting action from the Council, or Commission or Parliament. And it attempts to answer why. What emerges is a richly contextualized set of findings. For instance, France initially pushed for an EU rule against sex discrimination in pay because it feared being competitively disadvantaged due to its own stronger protections in this regard. Similarly, some countries had much [*201] stronger enforcement agencies for gender equity than others (e.g. the U.K.) and this made a difference for the number of cases taken to EU authorities. Also, certain countries had better-established environmental interest groups than others, or a more hospitable legal environment in terms of allowing such groups to bring complaints to court on behalf of environmental protection. These countries ended up taking more cases to the ECJ than others did, which fact meant that their national legal environment was pushed to adapt more rapidly to EU law. Also, on the matter of women’s rights, the ECJ was way out front most of the time, acting as the primary motor of integration, although the Commission also played a major role because it provided funding and organizational stimulus for a variety of women’s organizations which then lobbied EU bodies for yet more legislation protective of women’s interests. On environmental protection by contrast, the European Commission and the European Parliament played larger roles than the ECJ, for reasons that Cichowski explains in more detail than can be covered here. In sum, integration/institutionalization was pushed by many forces and differing forces over time, across country, and across policy sector.

Cichowski offers a “theory” (p.244) or a “general theoretical approach” (p.22) to explain the institutionalization of what the EU itself has called its “ever stronger union.” This theory might best be characterized as a highly generalized description of what has gone on. The ECJ was brought into action sometimes by government agencies (such as the British Equal Opportunities Commission), sometimes by individuals, sometimes by groups (the latter two motivated sometimes by private concerns but sometimes out of public goals, acting as litigation lobbyists). In the course of these lawsuits, these actors challenged one or another national policy as out of line with EU rules. The domestic judges referred these questions (as the Treaty arranges) to the ECJ for clarification of EU policy. These clarifications begin a feedback process which may prompt the European lawmaking bodies (Council and Parliament) to enact new law or the Commission to adopt new regulations, or they may activate individuals or groups to bring new lawsuits now that the court decision has produced a new rule that makes clear that some other governmental policy is challengeable as out of line with EU rules. And so it continues in an ever thickening process. It is true that the ECJ sometimes goes against the goals of the women activists or the environmentalists, but that refusal itself simply prompts lobbying to move over to a different EU branch where it has often been successful. Cichowski thus describes a process of “institutionalization” driven largely but by no means entirely by interaction among the forces of litigation and the organized interest groups of civil society. Within the EU these groups are funded to a noteworthy degree by the EU itself, because it wants the input of their expertise into the decisionmaking process, and it wants their help in disseminating information about what the EU rules are. Private interest groups are not the whole story because sometimes executive agencies or parliamentary committees themselves push these policies, sometimes by giving support to the interest group to lobby [*202] another EU governance body, or sometimes litigating themselves.

To professors of courses on American government or on other federated governments (e.g. Australia or Canada) with courts who exercise powers of judicial review, this description should sound familiar. The big thing that makes the EU different from these other polities is that it does not have an elected (union-wide) chief executive. If it were to adopt one, there would then be a union-wide electoral constituency, and union-wide political parties would develop. This would introduce a measure of electoral accountability now lacking in the EU (Elections to the EU Parliament tend currently to be dominated by local rather than European questions). Cichowski is optimistic about the potential of NGOs to represent a wide variety of pieces of the public in the policy process, to fill what many have called the “democratic deficit,” but caution is in order: E.E. Schattschneider taught us long ago that the interest group chorus of the pluralist’s heaven sings with a strong upperclass accent (1975), even when one takes into account the voice of organized labor.

THE EUROPEAN COURT AND CIVIL SOCIETY is a wonderful book and one that deserves a wide readership, but it is not a perfect book. As currently presented, it limits its readership to those already familiar with the basics of the EU institutional structure. It would have benefited from an appendix that explains the nuts and bolts of how the EU governing bodies function in order to make it accessible to non-specialists. It also would have benefited from a much stronger hand of a copy editor: the writing style is clunky and sometimes even confusing – e.g., Cichowski often uses the term “governmental organization” which obscures whether she is discussing an executive agency of the Commission or one of the EU legislative bodies, the Parliament or the Council. There are even occasional grammatical errors (perhaps the product of typos) that should have been caught by a copy editor. Cambridge University Press owes its authors better support than this.

In sum, this book will be useful and even enlightening to all scholars of the EU, to scholars of comparative courts, and to scholars interested in the causes and effects of social movements in a comparative context.

REFERENCES:
Alter, Karen. 2001. ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THE MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE. New York: Oxford University Press.

Cichowski, Rachel. 1998. “Integrating the Environment: The European Court and the Construction of Supranational Policy.” JOURNAL OF EUROPEAN PUBLIC POLICY 5 (3): 387-405.

Garrett, Geoffrey and Barry Weingast. 1993. “Ideas, Interests, and Institutions: Constructing the EU’s Internal Market.” In IDEAS AND FOREIGN POLICY, ed. Judith Goldstein and Robert Keohane. Ithaca: Cornell University Press: 173-206. [*203]

Garrett, Geoffrey, R. Daniel Kelemen, and Heiner Schultz. 1998.”The European Court of Justice, National Governments, and Legal Integration in the European Union.” INTERNATIONAL ORGANIZATION 52:149-176.

Goldstein, Leslie F. 2001. CONSTITUTING FEDERAL SOVEREIGNTY: THE EUROPEAN UNION IN COMPARATIVE CONTEXT. Baltimore: Johns Hopkins University Press.

Sandholtz, Wayne and Alec Stone Sweet (eds.). 1998. EUROPEAN INTEGRATON AND SUPRANATIONAL GOVERNANCE. New York: Oxford University Press.

Slaughter, Anne-Marie, Alec Stone Sweet and Joseph H.H. Weiler (eds.) 1998. THE EUROPEAN COURT AND THE NATIONAL COURTS – DOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL CONTEXT. Oxford UK: Hart Press.

Schattschneider, E.E. 1975. THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA. Hinsdale, Illinois: The Dryden Press.

Stein, Eric. 1981. “Lawyers, Judges, and the Making of a Transnational Constitution. AMERICAN JOURNAL OF INTERNATIONAL LAW 75 : 1-27.

Weiler, Joseph H.H. 1981. “The Community System: The Dual Character of Supranationalism.” YEARBOOK OF EUROPEAN LAW 1: 268-306.

Weiler, Joseph H.H. 1991. “The Transformation of Europe.” YALE LAW JOURNAL 100: 2403-2483.

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© Copyright 2008 by the author, Leslie F.Goldstein.

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EVOLUTION OF THE JUDICIAL OPINION: INSTITUTIONAL AND INDIVIDUAL STYLES

by William D. Popkin. New York: New York University Press, 2007. 320pp. Cloth $45.00. ISBN: 9780814767269.

Reviewed by Charles C. Turner, Department of Political Science, California State University, Chico. Email: ccturner [at] csuchico.edu.

pp.195-197

In EVOLUTION OF THE JUDICIAL OPINION William D. Popkin presents an authoritative history of the practice and institutionalization of oral and written appellate court opinions. While the bulk of the text focuses on the American Supreme Court, English and French systems, as well as American state high courts are discussed as well due to their impact on American judicial culture. Any scholar who has searched for parts of the history of judicial opinions will be thankful to have so many pieces of the puzzle collected in this single volume. Popkin approaches the development of judicial opinions from a historical, institutionalist perspective and gives serious weight to the effects of legal realism. Popkin relies on both direct, empirical evidence of court practice as well as indirect interpretation, to draw conclusions about change over time and to make normative observations about these changes and how an opinion writing culture should develop in the future.

Popkin’s review of court opinion evolution is divided into three main phases: early development and influences, nineteenth century style, and contemporary practice. To examine the origins of American judicial opinions, Popkin explores the English common law tradition and its transition from claims of expounding the law, through competition with a dominant legislature, to more recent acknowledgements that judges are making law. Popkin identifies the need to establish institutional authority as one of the key struggles that has influenced both English and American courts. The political goal of securing authority, in combination with an evolving legal culture, has led American courts to abandon seriatim practice for a single voice, and then develop a multi-opinion norm, which is really a return to a modified seriatim, Popkin argues.

The historical dimensions of Popkin’s book are impressive. The author makes extensive use of official documents and correspondence in his examination of the causes of eighteenth and nineteenth century practice. Also of note are the impressive appendices that document Popkin’s creative approach to gathering data and empirically testing his claims. For example, one appendix offers a lengthy and helpful history of law reporting in individual states from the colonial era through 1860. Other appendices explain his technique for determining changes in state nonunanimity rates over time.

Popkin’s work is at its strongest when he explicates the historical development of opinion writing in English and American courts. In particular, with the latter, Popkin goes to great effort to present both federal and state court practices, [*196] particularly law reporting, from the colonial and post-revolutionary eras. This story of professional law reporting in America is a fascinating one and worthy of the attention Popkin gives it. He also presents evidence that the historical lack of a strong and independent institutional base for a judiciary, and the culture of judging as a specialized science practiced by experts, led judges to present opinions as individuals rather than as a collective body. The impetus for a shift to the “opinion of the court” format in American practice in the early nineteenth century was an outgrowth of three needs: the need for a federal judiciary with public authority to compete with the powerful legislatures of the day, the need to know what the law was in a decentralized geography, and the “democratic imperative” for judges to appear politically accountable for their decisions (pp.60-61).

After addressing these changes in Supreme Court practice in Chapter 3, Popkin carries out a similar task for state institutional style in Chapter 4, looking at the thirteen original states, plus Vermont and Kentucky. Examining statutes and law reports, he concludes that, while state practices varied over the course of the nineteenth century, there was a move toward official reporting and a replacement of seriatim opinions with a written opinion of the court. While these changes began to take place in some states prior to the Civil War, the transition to modern practice was completed in the latter part of the century with the emergence of the West National Reporter system (pp.100-101). Though there is surprisingly little discussion of the development of content in the written opinions themselves (e.g., argument, style, and length), Popkin gives a thorough accounting of some important aspects of nineteenth century state court practice.

After carefully tracing the institutional development of the court system through its opinion writing process, Popkin turns to an examination of institutional and substantive sources of law and the significant increase in nonunanimity in both the U.S. Supreme Court and state courts in the twentieth century. Popkin offers persuasive explanations for this shift, though the empirical evidence is, at times, less conclusive. Popkin argues that the emergence of legal realism as an influence on judicial culture is the best explanation for the increase in separate opinions at both levels. The operational (discretionary docket, caseload) and individual (influence of Chief Justice, professional background of justices) changes he describes, however, also seem like reasonable rival explanations, and he does not necessarily persuade his reader that legal realism is the definitive cause. At times, Popkin seems to suggest that his inability to confirm rival explanations empirically is evidence in support of the impact of legal realism, which he cannot measure directly (pp.122, 134). Of course, in Popkin’s defense, seeking out a non-operational cause in this case may require an interpretive approach rather than an empirical one, and the discussion is useful regardless. Moreover, his state court data are impressive in demonstrating a rise in separate opinions in forums that have previously received little attention on this topic.

Popkin’s final chapter explores individual judicial style in opinion writing and, in addition to offering an [*197] empirical examination of the types of voice and tone present in a particular judge’s (Posner’s) opinions, makes a normative case for greater use of what he identifies as “personal voice and exploratory tone” (p.143). This style speaks to a broad, lay audience and admits that cases can be difficult to decide and outcomes, uncertain. The author argues that this approach to writing is a descendent of the seriatim tradition and helps to democratize an inherently elite institution through what he terms “democratic judging” (p.169). Whether or not one ultimately accepts the need for a more widespread use of this personal, exploratory approach, Popkin’s analysis of opinion style is astute, and his plea is well made.

Though the book has many strengths, two minor shortcomings are worth noting. First, in addition to thoroughly describing English precursors to the American tradition in Chapter 2, Popkin includes a few pages on French traditions as well. While an interesting comparative case, the French model is not presented in sufficient detail to create a persuasive case regarding its influence on the American model. Second, Popkin’s commendable use of state high court data begs the question of whether federal appellate court practices might also be able to tell us something about the evolution of judicial opinions. His ultimate interest appears to be in the behavior of the US Supreme Court, which seems appropriate given his focus on institutional change and that body’s trend-setting leadership.

While the conclusions seem to overreach at times, and while some of the normative pleas late in the book may not be relevant to all audiences, EVOLUTION OF THE JUDICIAL OPINION contains a wealth of historical information and empirically-based argument that provides the reader with a thorough discussion of how the contemporary approach to judicial opinion writing has developed. It will prove to be an indispensable reference for those seeking a well-documented accounting of the development of opinion writing and judicial authority. The most fitting audience for this book is the law and courts scholar or student who wants a comprehensive understanding of the historical development of American court practice and culture. The procedural and institutional aspects of court opinions are often overlooked, and Popkin offers a first rate explanation for how judicial opinions have evolved.

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© Copyright 2008 by the author, Charles C. Turner.

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HOW MANY JUDGES DOES IT TAKE TO MAKE A SUPREME COURT? AND OTHER ESSAYS ON LAW AND THE CONSTITUTION

by John V. Orth. Lawrence: University Press of Kansas, 2006. 104pp. Cloth. $25.00. ISBN: 9780700614783. Paper. $12.95. ISBN: 9780700614790.

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

pp.192-194

John Orth, a professor of law at the University of North Carolina at Chapel Hill, has combined previously published essays with new ones in HOW MANY JUDGES DOES IT TAKE TO MAKE A SUPREME COURT? The objective of the text is to explore some of the “neglected but important topics” which “evade systematic study in law school” (p.viii). Orth has previously published studies tracing the history of trade unionism, the Eleventh Amendment, and due process of law.

In Chapter 1, the question about how many judges should comprise various courts is probed. Because the number of Supreme Court justices was tied to the number of circuit courts and the latter courts were controlled by Congress, Orth contends that “political considerations often played a role in determining when to recognize new circuits and which states to include” (p.4). It also became evident that the Senate tried to countermand the life tenure of Supreme Court justices with “heightened scrutiny during the confirmation process – and playing the numbers game by increasing (or decreasing) the size of the court” (p.10). Orth disputes the long-held view that an odd number of judges is necessary on various multi-person courts by noting that the practice was not regularly used in British appellate courts until the last quarter of the nineteenth century.

In Chapter 2, various sources of judicial power – defined as “the legal authority to resolve disputes in appropriate cases” (p.48) – are identified. A part of judicial power lies in the ability to enforce judicial decisions, which is not only accomplished by the acquiescence of the public, but by court personnel and constitutional authority granted to the chief executive. Other sources of judicial power include the doctrine of precedent, the evolution of law reports published alongside decisions, the practice of releasing a single opinion to represent the majority view of a court, expert employment of judicial authority, and the rules and procedures adopted by diverse courts.

Chapters 3 through 5 assess the nature of common law as applied to the American political system. The origin of common law dates back to 12th century England and “was made over the years by the judges in their decisions of individual cases. These decisions not only resolved the disputes at issue, they also established rules for decisions in other similar cases” (p.59). The subsequent handing down of the common law from the British to the Americans did not occur seamlessly, as the development of federal and state constitutions, the [*193] separation of powers principle, and statutes have each occasionally produced conflicts with tradition. Despite this tension, common law has persisted because of its adaptability. Perhaps the best example of this is how contracts replaced property as the central focus of common law. The flexibility of common law has been reflected in judicial reasoning, in methods by which the law is taught, and in the eschewing of ideological influences.

The Conclusion of the book is subtitled, “Looking Backward, Looking Forward.” This chapter largely summarizes without synthesis the previous material. However, Orth ends the text with a prediction about the predominance of law for future human affairs: “Law will certainly remain with us as long as we remain the violence-prone, greedy, disputatious creatures we have always been. Even could we transcend that legacy –whether it be from evolution or original sin – we will still need an orderly means to arrange our affairs and resolve our inevitable disagreements” (p.120).

Because the Orth text is a collection of chapters on several distinct if interconnected topics, there are few similar books containing all of the subjects covered. However, there are entire books which may be compared to parts of Orth’s research. For instance, Virginia Hettinger, Stefanie Lindquist, and Wendy Martinek’s 2007 study of federal appellate decision making addresses the question of whether differences of opinion among judges serves to maintain the integrity or undermine the legitimacy of such courts. In their 2006 work, Thomas Hansford and James Spriggs demonstrate how both law and politics play pivotal roles when interpreting Supreme Court precedents. Finally, two books published in the 1990s – one by Melvin Eisenberg in 1991 and the other by Norman Cantor in 1997 – comprehensively analyze the common law tradition and its impact on the American legal system.

The brief length of the Orth book should not mask its comprehensive overview of certain subjects, such as common law. The information presented is meticulously noted, and tables of cases and statutes are added at the end. There are a few shortcomings apparent. For instance, Orth omits an important contemporary source of judicial power in Chapter 2: the US Supreme Court chief justice’s annual report on the state of the federal judiciary. These speeches have flagged deficiencies in the federal courts, such as staff and judicial salaries, but have likewise constituted influential policy statements. Further, the discussion of ideological threats to American courts found in the Conclusion is potentially inconsistent with how that topic is treated in the preceding chapter. Finally, as is normally the case with a series of essays – even if offered by a single author – there is repetition of some definitions of terms.

Overall, the theme and content of Orth’s scholarship should be of interest to legal experts and students alike. Pertaining to the latter audience, the book would be most appropriate in an advanced undergraduate or introductory graduate course on the American legal system. [*194]

REFERENCES:
Cantor, Norman F. 1997. IMAGINING THE LAW: COMMON LAW AND THE FOUNDATIONS OF THE AMERICAN LEGAL SYSTEM. New York: HarperCollins.

Eisenberg, Melvin A. 1991. THE NATURE OF THE COMMON LAW. Cambridge: Harvard University Press.

Hansford, Thomas G., and James F. Spriggs II. 2006. THE POLITICS OF PRECEDENT ON THE U.S. SUPREME COURT. Princeton: Princeton University Press.

Hettinger, Virginia A., Stefanie A. Lindquist, and Wendy L. Martinek. 2007. JUDGING ON A COLLEGIAL COURT: INFLUENCES ON FEDERAL APPELLATE DECISION MAKING. Charlottesville: University of Virginia Press.

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Copyright 2008 by the author, Samuel B. Hoff.

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COMPARATIVE CONSUMER BANKRUPTCY

by Jason J. Kilborn. Durham, NC: Carolina Academic Press, 2007. 128pp. Paper. $20.00. ISBN: 9781594601477.

Reviewed by Professor Stephanie Ben-Ishai, Osgoode Hall Law School, Toronto, Ontario. Email: SBenIshai [at] osgoode.yorku.ca.

pp.188-191

As someone used to muttering my research interests under my breath at dinner parties or on airplanes I am quite pleased to see that bankruptcy and credit issues have experienced a renaissance of sorts in popular culture. For example, a recent documentary by filmmaker and author James Scurlock, MAXED OUT – that has won awards at film festivals and carved out an audience that extends far beyond the likes of bankruptcy law professors – offers a biting critique of the modern financial industry. In a style that is simultaneously humorous and disturbing, Scurlock draws on stories of individuals from across the United States painting a bleak view of personal debt and the predatory strategies of lenders.

Thanks to representations in the popular press and in film, the “democratization of credit” – a phrase used to describe the recent expansion in access to credit by households in the lower ranges of the distribution of income – has become a sexy topic lately. While this phenomenon has a number of positive aspects for lower income individuals who can smooth their consumption over time in the same way that higher income households can and do, it also has a dark side. The recent sub prime meltdown in the United States has highlighted how greater access to credit can lead to financial disaster for some borrowers. Repaying the debt may prove difficult or even impossible if the borrower runs into trouble in the form of a failed investment, a rise in interest rates, the loss of the job whose wages were to repay the loan or a divorce that leads to higher living expenses. If the lender has not carefully assessed the ability of the borrower to repay, the borrower may have difficulty repaying her/his loans even if no adverse event occurs.

A major policy question raised by the democratization of credit is how to adapt consumer bankruptcy law and parallel out-of-court measures to the increased incidence of overindebtedness. As the recent sub prime crisis and the media accounts highlight, common law systems have generally taken a laissez-faire approach to the regulation of credit granting and used the bankruptcy system as the primary legal remedy when debtors cannot repay their loans. In COMPARATIVE CONSUMER BANKRUPTCY Jason Kilborn seeks to sketch out the approaches taken in continental Europe and to compare these approaches with the American regime. In writing the book, Kilborn draws on a number of country specific articles he has written in recent years (p.xii).

COMPARATIVE CONSUMER BANKRUPTCY is most successful as a reader for an advanced law school bankruptcy law seminar. Throughout the book Kilborn employs the welcoming tone of a seasoned and passionate educator, with a touch of humor, at the same time appealing to the [*189] sense of certainty that law students so often crave. While this certainty can be surprising to an academic reader, with the intended audience in mind, the book may also be useful as a primer for readers without a law background and/or specific understanding of bankruptcy law. In particular, it may serve as a useful starting point for a political scientist interested in offering a nuanced, on-the-ground account of the politics of reform in this area.

Kilborn begins in the first chapter by justifying or explaining his comparative approach and his decision to use an American lens to understand the developments in continental Europe. It is probably fair to say that a comparative approach to consumer bankruptcy issues, while relatively new, is now widely accepted. This is most evident in the recent increase in publications on the issue (see, e.g. Anderson, 2004). More controversial and less convincing is Kilborn’s decision to use the United States as his lens. Kilborn suggests that the United States is “vaguely representative of similar developments in other common law systems” and that jurisdictions such as Australia and Canada are already over-compared (p.xii). Perhaps one truly needs to stand outside of a system or work within a system that is not usually considered the “main comparator” to understand the difficulties this perspective presents. There are certain unique aspects of the American bankruptcy system and American consumer credit culture that make this approach somewhat unsettling, but this may be the case only for an international reader, which may not be Kilborn’s intended audience.

In the second chapter Kilborn compares out-of-court debt restructuring in continental Europe and the United States. He starts by describing the rise of the American bank funded credit counseling industry, recent scandals surrounding their fees, and the role they are now playing, as mandatory counseling is required prior to filing for bankruptcy (pp.21-26). This section is a very helpful overview of the American situation. However, as someone who is familiar with the Canadian system that has required counseling as a pre-requisite to bankruptcy for more than a decade, I was surprised to read that “[o]nly in the United States, individual debtors must receive financial management training after filing a formal case but before receiving a discharge” (p.25). Kilborn hypothesizes about the potential for this “teachable moment” but notes that no reliable data exist on this yet (p.25). In the Canadian context, empirical data suggest that this exercise has largely failed and has limited behavioral modification potential (Schwartz, 2003).

The most useful part of Chapter Two is the second part where Kilborn highlights how in many parts of continental Europe consensual negotiation is the “central focus of the entire framework” for insolvency relief (p.26). This part of the second chapter, as well as the third chapter, which compares formal bankruptcy procedures, is particularly useful for North American academics, policy-makers, and others considering the types of reform to the consumer bankruptcy system that may be needed in light of the increasing number of low-income consumers who now have credit and may need to resort to the bankruptcy system. Generally, European insolvency [*190] procedures have been designed with the poor in mind, since widespread credit problems have not yet afflicted the middle class. This difference in focus can lead to very different perspectives on how to handle debt problems.

One example that Kilborn highlights is the Dutch insolvency system (pp.42-44, 84-87). The Dutch focus is on social inclusion so that the procedures for handling over-indebtedness try to keep the debtors – usually a person on low income – in touch with the whole set of government and NGO services. A unique example of this kind of integration is the court-formulated payment plan which is a prerequisite for gaining access to the court-based Dutch insolvency procedure. The payment plan requires debtors to give all of their income (often only monthly social assistance payments) to an intermediary, such as a municipal bank or a non-governmental organization (p.86). The intermediary works with the debtor to develop a budget and then controls the debtor’s expenditures to make sure that s/he sticks to the budget. Since the debtor is in close contact with the intermediary, any related issues – housing problems, substance abuse, relationship difficulties – can be addressed during the period when debtors are under the supervision of the agency. As Kilborn highlights, while no other European country has the same kind of payment plan procedure, many have insolvency laws that demand that the debtor devote all income above a fairly low “social minimum” to their creditors for an extended period of time.

The Dutch model is in sharp contrast to North American out-of-court and formal bankruptcy procedures. Outside of formal bankruptcy options, debtors have few opportunities to resort to neutral government agencies that can assist them by outlining their rights and developing strategies when it comes to dealing with their debt. Formal bankruptcy procedures are only available to debtors who can afford the high cost of the intermediary they need to access these procedures – in Canada this amount is approximately $1600. Accordingly, this option is restricted to middle class debtors for the most part.

From a North American perspective, procedures such as the Dutch court-formulated payment plan can be seen as preventing the debtor from getting a “fresh start,” independent of outside oversight. Similarly, requiring a long repayment period before any discharge is allowed may also be viewed as impeding the “fresh start.” However, the recent amendments to the American Bankruptcy Code that have attempted to shift debtors into Chapter 13 plans highlight the erosion of the purity of the North American fresh start concept. Further, the Canadian system has never adopted a pure fresh start concept and requires payments into the debtor’s estate for a minimum of nine months where the debtor is earning an income above the Low Income Poverty Line.

Kilborn’s fourth and final chapter offers a counterbalance to his focus on debtors and shifts the discussion to creditor responsibility. In this context Kilborn describes the Belgian law which “takes a unique and aggressively direct approach to encouraging responsible credit practises while at the same time reducing the public burden of financing the consumer insolvency system” (p.106). Instead of redirecting the costs of risky [*191] lending to all consumer lenders, forcing the court to absorb the costs or denying access to the insolvency system to debtors, the insolvency system imposes a kind of bankruptcy tax on the creditors of risky debtors. The tax is paid into a fund and is assessed on the portion of creditors’ total consumer lending portfolio in default at the end of each year. The fund is used to cover costs in formal insolvency cases and also for public education campaigns.

The US sub prime lending crisis has caused North American policy makers to take seriously the idea of front-end regulation of debt. The widespread impact of the crisis makes the Belgium attempt to limit the costs of such practises appealing and merits further consideration in the North American context.

Kilborn is to be congratulated for making accessible the historical trajectory of continental European approaches to over-indebteness, primarily for low-income debtors, at a time when many North Americans policy-makers are struggling with how to deal with an increasing number of low-income over-indebted individuals.

REFERENCES:
Anderson, Kent. 2004. “The Explosive Global Growth of Personal Insolvency and the Concomitant Birth of the Study of Comparative Consumer Bankruptcy.” OSGOODE HALL LAW JOURNAL 42(4): 661-680.

MAXED OUT, HD DVD. 2006. Directed by James Scurlock. New York: Mainstage Productions.

Schwartz, Saul. 2003. “The Effect of Bankruptcy Counselling on Future Creditworthiness: Evidence from a Natural Experiment.” AMERICAN BANKRUPTCY LAW JOURNAL 77(3): 257-284.

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© Copyright 2008 by the author, Stephanie Ben-Ishai.

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SEXUAL CITIZENS: THE LEGAL AND CULTURAL REGULATION OF SEX AND BELONGING

by Brenda Cossman. Stanford: Stanford University Press, 2007. 256pp. Cloth $50.00. ISBN: 9780804749961.

Reviewed by Jennifer Woodward, Department of Political Science, University at Albany. Email: jw735896 [at] albany.edu.

pp.184-187

Who defines which sexual practices are good and which are bad? Do your sexual practices make you a good citizen or an outlaw? Brenda Cossman argues that the boundaries of acceptable sexual practices, and hence the answer to these questions, are undergoing a transformation based in legal and cultural regulations. In SEXUAL CITIZENS: THE LEGAL AND CULTURAL REGULATION OF SEX AND BELONGING, Cossman explores the becoming and unbecoming of citizens through ever-changing boundaries. In other words, who is considered a good citizen is based upon boundaries of what is legally and culturally acceptable.

To make her argument, Cossman focuses on the role of law within three subgenres of the citizenship literature: sexual citizenship, privatization, and self governance. She contends that citizenship under any of these literatures’ criteria have certain costs and benefits. However, the historical and contemporary contexts of the United States have resulted in a focus on privatization and market logic which use self governance as the measure of good citizenship.

In the first chapter of the book, Cossman discusses the regulation of consensual sexual practices through the lens of sexual privacy and speech. In particular, she discusses how those considered outlaws based upon sexual practices such as sodomy, the use of pornography, sex toys and indecent language have challenged their outlaw status and based their claims as members of lawful citizenry upon these sexual practices. Some of these challenges, such as the challenge to sodomy, have led to acceptance of the practice as a part of lawful citizenship. Meanwhile others, such as those selling and using sex toys, are gaining acceptance both socially and legally. Through this discussion, Cossman provides support for her argument for the influence of consumerism, private boundaries and self regulation in defining what constitutes good citizenship. Sex toy parties for example, not only promote consumerism, but they are conducted in private settings and in a way that sets boundaries of responsible use for the participants.

The second chapter discusses the role of sex within marriage as self governance. Self governance, Cossman contends, is a vital component in whether a sexual practice is compatible with good citizen. In other words, good citizens are those who self regulate their sexual practices and desires. Marriage as a legal form of regulation reduces infidelity and the risk of relationship breakups. However, with increasing rates of divorce and marital infidelity, Cossman argues that popular [*185] culture has become the main proponent of marriage as a form of proper citizenship, usurping even the law as the main authority of what is and is not proper sexual conduct for married citizens. For example, she argues that the media have broadened the definition of infidelity to include acts such as internet pornography, emotional cheating and oral sex; an expanded definition that has resulted in changes within divorce litigation. In conjunction with the first chapter, Chapter Two demonstrates Cossman’s ability to consider history, popular culture and other contextual factors as influences upon legal definitions that regulate sexual practices and marital contracts.

Chapter Three discusses the role of that popular culture played in creating and defining outlaw behavior. In other words, Cossman explores how political discourses result in outcomes that determine who is considered a proper citizen. Specifically, she uses the discourse surrounding welfare reform to argue that terms such as “welfare queen” and “deadbeat dad” were used to define those who were failed citizens within the market, sexual, and self-governance realms – all three of Cossman’s criteria for citizenship. These political discourses and their resulting legal regulations are shown to influence popular culture, particularly in the Black community’s contestation of stereotypes upon which much of this legal regulation was based. Although, in this chapter, the discussion shifts from litigation as a form of regulation to legislation, the focus on legal and societal strictures continues to support her argument that both legal and cultural regulations determine the boundaries of sexual citizenship. In particular, one could see how policies such as welfare have discouraged beneficiaries from marrying. In this sense, Cossman sets strong groundwork for the study of how marriage is treated within the spheres of law and popular culture and lends support to her earlier argument that legal regulations are no longer the dominant regulators of what constitutes good citizenship within marriage.

The fourth chapter returns to the focus of most contemporary literature on sexual citizenship, the struggles of gays and lesbians. Already successful citizens in terms of market consumption and no longer sex neutral in popular culture, Cossman argues that homosexuals are increasingly recognized both legally and socially as good citizens. Through legally sanctioned same sex marriage, Cossman argues that gay and lesbian individuals will be able to cross over into fully legitimate citizenship. This new status, however, is producing new forms of self governance for gay and lesbian individuals which Cossman contends can have both positive and negative effects. In this chapter Cossman is able to demonstrate how gaps can occur between the legal and cultural regulations. The chapter also enables Cossman to bring her arguments full circle to demonstrate how outlaws can redefine and cross boundaries in order to become good citizens.

Continuing the tradition of the literature, SEXUAL CITIZENS discusses who are good and who are bad citizens and the changing boundaries between these two categories. Good citizens are heterosexual, celibate until marriage, and once married, loyal and eager to procreate. Bad citizens watch vulgar pornography, use sex toys and have [*186] sexual encounters with many people, possibly even members of their own sex. However, Cossman contends that these boundaries have changed. Sodomy no longer has the outlaw status it once did. Private “passion” parties marketed to “save” marriages enable good citizens to use sex toys as long as they self regulate their behavior. Indeed, such parties encourage better citizenship through market consumption and relationship loyalty. Phrases once considered sexually explicit are no longer obscene when understood as a critique of an overly sexualized hip hop industry. These are just a few of the examples Cossman uses to show that, due to the law and popular culture, good citizens can be more sexual, in more ways, than ever before.

However, it is not a one way street. In other ways society has made it harder to be a good sexual citizen. The definition of infidelity has been expanded in today’s increasingly electronic and equal opportunity world. Internet pornography, cyber sex, emotional intimacy, sexual contact without intercourse are all now part of an expanded legal definition of which acts constitute infidelity. The creation of “welfare queens” and “deadbeat dads” has made outlaws out of economically disadvantaged individuals. Through their market failure (their inability to completely support their children) these individuals become bad sexual citizens, seen as unable to self regulate their sexual desires and suspected of using procreation as a means of additional economic support. In this manner, Cossman does an excellent job describing the roles that both law and popular culture play in defining the boundaries of good and bad citizenship. Homosexuality is given particular attention in her discussion of sexual citizenry in light of gradually moving borders of acceptability. However, one of the strongest points of her book is her ability to see sexual citizenship as involving more that just a discussion over sexual orientation and citizenship.

In the end, this book shows the intertwining role of legal and social regulations in defining citizenship on the grounds of sexuality. However, the argument could be made more broadly toward citizenship in general. Cossman is particularly strong in her demonstration of the importance of popular discourses in impacting and reacting to both formal and informal laws in society. It is the book’s major strength, both from an argumentative standpoint and for its ability to engage the reader. This focus on discourses, however, may point to the book’s major weakness. At times, the narrative seems to be carried along by discussions of popular movies, television shows and music. Further consideration of the theories upon which Cossman bases her argument, both as they relate to her argument and as an introduction to those unfamiliar with their major points, would have assisted the reader and give the book more grounding within its genre.

Cossman rests her arguments clearly within the debates over the definition of citizenship. She touches on some of the major scholars in these debates, such as T.H. Marshall, Jürgen Habermas, and Michel Foucault. Cossman also uses queer theory to make her argument and her background in feminist theory is seen throughout the book. For this reason, scholars interested in queer or [*187] gender studies, regardless of their interest in citizenship or sexuality studies, should consider the book. Cossman also touches on race studies with her discussion of the unique location of blacks within the boundaries of citizenship. She argues, for instance, that blacks are not seen as potential market citizens by popular culture (p.68). Law and Courts colleagues may also find the topic and presentation of Cossman’s argument is useful for engaging students in the debates of citizenship, legal and social boundaries, feminism, and media impact. Finally, the book makes an excellent addition to studies of sexuality and the law, from general issues of privacy to specific issues, such as same sex marriage. Readers should find SEXUAL CITIZENS: THE LEGAL AND CULTURAL REGULATION OF SEX AND BELONGING worthwhile and engaging.

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Copyright 2008 by the author, Jennifer Woodward.

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A RIFT IN THE CLOUDS: RACE AND THE SOUTHERN FEDERAL JUDICIARY, 1900-1910

by Brent J. Aucoin. Fayetteville, AR: University of Arkansas Press, 2007. 200pp. Cloth. $35.95. ISBN: 9781557288493.

Reviewed by Dante Gatmaytan-Magno, University of the Philippines, College of Law. Email: dante.gatmaytan [at] up.edu.ph.

pp.180-183

The role of the Federal Judiciary in race relations in the United States is usually associated with the Supreme Court’s landmark 1954 ruling in BROWN v. BOARD OF EDUCATION. In that case, the Court ruled that segregation in the public school system violated the Equal Protection Clause of the Constitution, forcing public schools to integrate and ultimately paving the road towards civil rights legislation. Before that, the Court’s involvement was disheartening to say the least – sanctioning, for example, racial segregation in the provision of public accommodations in the now notorious case of PLESSY v. FERGUSON (1896).

This picture of an unresponsive judiciary is inaccurate. Federal judges had been engaged in mending race relations in the South, during Reconstruction – long before BROWN. Brent J. Aucoin, an associate professor of history at Southeastern College at Wake Forest provides an important contribution to the study of lower court judges in the realization racial equality in post-Reconstruction America. The book casts light on the works of three southern federal judges, Jacob Trieber of Arkansas, Emory Speer of Georgia, and Thomas Goode Jones of Alabama, and their efforts to read the Reconstruction Amendments more to give African Americans legal protection not otherwise available from States. Aucoin challenges conventional wisdom about the role played by judges in race relations, presenting significant exceptions in an otherwise conservative institution.

Aucoin begins by presenting the inhospitable political situation in the postbellum South. The next three chapters focus on each of the judges’ “background and views” and examine decisions they handed down which relate to the rights of African Americans. In the concluding chapter, the author attempts to explain why the judges handed down these decisions and argues that they were the result of a fusion of their societal, legal, and political philosophies. Aucoin also appends excerpts from pertinent laws and personal communications and opinions of the judges.

The judges’ efforts at racial equality are significant, considering the political and legal milieu in which they lived and worked. At the start of the twentieth century Democrats had tried to reestablish the conditions of the antebellum South (p.2). From 1890 the South had entered into new depths of racism, with public officials encouraging lynching of blacks. Even more significantly, the Supreme Court had been interpreting the Constitution conservatively – “aiding and abetting the southern counterrevolution” (p.6) [*181] – laying down doctrines that provided the scaffolding for legal discrimination with decisions such as PLESSY. At the start of the twentieth century, the judiciary had not proven to be sympathetic to blacks.

Judges Trieber, Speer, and Jones worked around the political situation and Supreme Court decisions. While remaining faithful to the Constitution and its amendments, “their political beliefs and social values played an important role in their judicial conduct” (p.11). Aucoin explains that the judges also adhered to the “New South Creed” – the belief that the postbellum South could attain economic prosperity if racial relations were stabilized. But the judges, Aucoin argues, sincerely believed that they were being faithful to the federal laws they pledged to uphold (pp.14-15).

Jacob Trieber served on the U.S. District Court for the Eastern District of Arkansas, and his interpretations of the Thirteenth Amendment advanced the first significant challenge to the debt peonage system. Trieber’s thesis became concrete in UNITED STATES v. MORRIS (1903). The defendants in that case had posted notices on the homes of African Americans demanding that they leave Cross County, Arkansas. They questioned their indictment under Civil Rights Act of 1866 on the ground that the provisions were unconstitutional.

Trieber dismissed the argument by pointing out that the Supreme Court had upheld the constitutionality of these provisions. The authority to prosecute racist individuals, he argued, was in the Thirteenth Amendment, which provides that, “Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Trieber found that the Amendment authorized Congress to punish individuals who enslaved others. After the Civil War, he noted, many southern States passed laws “that established a system of peonage but little removed from that of slavery” (p.24). The system prevented Negroes from cultivating land, and courts were powerless to help them. It was this situation that encouraged Congress, said Trieber, to enact the Civil Rights Act of 1866.

Trieber, using Supreme Court precedent, explained that a restrictive interpretation of the Constitution would “hinder Congress’ ability to enforce the rights and provide the privileges that are mandated by the Constitution. Congress has been allowed, on occasion, to exercise powers that are not explicitly granted by the Constitution, but which were “necessary and proper” in order to meet a mandate.”

Trieber ruled that Congress was authorized under the Thirteenth Amendment to protect the fundamental rights of African Americans because “the denial of such privileges is an element of servitude.” He went on to explain that a conspiracy to deprive them of the rights to lease land and to accept employment violated the Thirteenth Amendment and the Civil Rights Act and that Congress had authority to prosecute those who are guilty of such violations (p.26).

A majority of the Supreme Court later disagreed with Treiber’s interpretation of [*182] the Thirteenth Amendment, leaving African Americans without any legal remedy against private discrimination and intimidation for a half century until the Court reversed its position in 1968. Trieber’s views were vindicated as the Court adopted his interpretation and transformed the Thirteenth Amendment into “a potentially effective legal weapon against racial discrimination” (p.34).

Judge Emory Speer was a US attorney for the Northern District of Georgia when he crusaded to punish those who harassed African Americans for exercising their right to vote. Speer prosecuted these cases successfully, including the Yarbrough gang that terrorized a string of African American homes. The defendants challenged their conviction on the ground that the Federal Government was not expressly empowered to protect voters from violence. The Supreme Court in EX PARTE YARBROUGH (1884), in a surprising decision, disagreed, finding that such power is implied in the Constitution.

As a judge, Speer would go on to preside over the conviction of whites who held blacks in a state of peonage in Georgia. In U.S. v. MCCLELLAN AND CRAWLEY (1904), he opined that the power of Congress to enact anti-peonage legislation was unquestionable and that the Thirteenth Amendment was an absolute declaration which outlawed involuntary servitude. Debt peonage, in his view, was a form of slavery or involuntary servitude.

Speer also tried to end the chain gang system where convicted criminals were forced to work on public lands while chained together, calling the system a form of involuntary servitude which was imposed for minor municipal offenses. The Supreme Court on appeal, however, held that Judge Speer had no jurisdiction over the matter (p.51).

After less than two years on the bench, Judge Thomas Goode Jones began a crusade to rid Alabama of debt peonage, part of which included a declaration that the Alabama Labor Law of 1901 violated the equal protection clause of the Constitution. The law prevented a laborer who was indebted to his employer to break the contract and seek alternative employment without securing the original employer’s consent.

Jones distinguished himself with his decision in EX PARTE RIGGINS – where he held that lynching violated Federal laws. As did the other judges discussed in this book, Jones posited that the Thirteenth Amendment was designed to “ensure that the emancipated race would forever possess the same civil rights as white citizens of the United States” (p.72). When an African American was harmed or injured because of his race, such conduct was a form of repression that the Reconstruction Amendments were designed to eradicate. Lynching, he said, fell into this class of acts.

He believed lynching violated due process; when a black man is taken from prison and killed, this clearly deprived him of due process under the Fourteenth Amendment. The Amendment made the provision of due process a matter of national concern, sanctioning federal intervention to the extent that it should deal with the evil of lynching (p.73). Aucoin presents Jones’ elaborate [*183] arguments on why lynching is proscribed under the Reconstruction Amendments and discusses how he reluctantly released a member of a lynch mob in light of the Supreme Court’s adverse position on the issue (p.79).

These judges faced similar issues and arguments from lawyers who insisted that the Federal Government had no business interfering with racist conduct. Their work reflected a willingness to read the Reconstruction Amendments to provide protection not otherwise provided by States. They used the Amendments to address the harassment of African Americans, with such practices as debt peonage, and lynching, all with a view to easing race relations and on the hope that the Supreme Court would one day see things their way.

The biographies in this book are sparse, and much of the discussion is understandably weighted down by legal jargon. The cases are not always considered chronologically, which can sometimes be confusing. These shortcomings, however, do not take away from Aucoin’s contribution to our understanding of the role judges played in Reconstruction.

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

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

EX PARTE RIGGINS, 134 F. 404, reversed. — RIGGINS v. UNITED STATES, 199 U.S. 547 (1904).

U.S. v. MCCLELLAN AND CRAWLEY (DC Georgia 1904).

UNITED STATES v. MORRIS, 125 Fed. 322 (E.D. Arkansas, 1903).

EX PARTE v. YARBROUGH, 110 U.S. 651 (1884).

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© Copyright 2008 by the author, Dante Gatmaytan-Magno.

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WRETCHED SISTERS: EXAMINING GENDER AND CAPITAL PUNISHMENT

by Mary Welek Atwell. New York: Peter Lang, 2007. 242pp. Paper. €25.30/£16.40/$32.95. ISBN: 9780820478838.

Reviewed by Christopher E. Smith, School of Criminal Justice, Michigan State University. Email: smithc28 [at] msu.edu.

pp.177-179

Those of us who teach about law in social science-oriented classes face the persistent challenge of keeping our students focused on the human beings whose lives are affected by statutes, judicial opinions, and the processes of the justice system. Students frequently ask us, “Whatever happened to Ms. X (or Mr. X) after the Supreme Court decided the case of State v. X?” Occasionally, an individual involved in a famous criminal justice case will receive continuing attention. Thus, for example, the details of Ernesto Miranda’s ultimate demise are widely known. By contrast, for most cases I must tell my students, “I don’t know,” with the explanatory comment that individuals provide the vehicles for judges’ examinations of legal rules, but the details of the lives and fates of those individuals are often lost to history.

The challenge of providing human context can be compounded when we move away from looking at the judicial postscript of individual consequences from legal processes and instead try to examine the precursory biographical details, demographic factors, and social contexts that may be associated with triggering specific events and systemic responses. Limited access to information impedes our ability to illuminate the human context of law by informing our students about the lives of individuals who are drawn into the justice system. These lives would seem to be especially important because they could show themes and patterns of behavior as well as demographic characteristics that are associated with the implementation of specific legal rules and processes. Thanks to Anthony Lewis, we know details about the life of Clarence Earl Gideon, and, thanks to the landmark cases series published by the University Press of Kansas, we are gradually learning more about the lives and events that shaped a small number of Supreme Court decisions. As for the individuals whose cases do not produce major Supreme Court decisions, it is even rarer to have access to the contextual underpinnings of their encounters with the justice system.

In WRETCHED SISTERS: EXAMINING GENDER AND CAPITAL PUNISHMENT, Mary Welek Atwell performs a valuable service by supplying rich descriptions of the developments in a small set of cases. She provides details about the lives and social contexts of a small number of individuals whose cases ought to be viewed as “important,” despite not producing landmark appellate decisions. There is no doubt about what happened to these individuals as a result of decisions in the justice system: they were all executed for the crime of murder. Thus Atwell’s descriptions and analyses are most valuable in looking at [*178] the development, rather than just the consequences, of contexts, events, and decisions in the criminal justice process.

Atwell examines the lives and cases of all eleven women executed in the United States in the past thirty years. Because of the relatively small number of women sentenced to death, Atwell is able to provide detailed, side-by-side comparisons of the entire universe of cases within a particular subset of executed offenders. In so doing, she is able to illuminate patterns and raise questions concerning the pivotal factors and key decisions that move particular cases along the path toward death penalty verdicts and executions. Not surprisingly, Atwell’s descriptions and analyses highlight issues about the effects of discrimination, arbitrariness, media influence, affluence – or rather the lack thereof – effectiveness of counsel, and risk of error in the capital punishment system.

Only two of the women whose lives and cases are described by Atwell had received significant public attention. Karla Fay Tucker of Texas received media attention when appeals for clemency from religious figures around the world were turned aside by then-Texas Governor George W. Bush who later received criticism for belittling the basis for these appeals. Aileen Wuornos, the convicted serial killer in Florida, became familiar to many members of the public through Charlize Theron’s Academy Award-winning portrayal in the film Monster (2003). Tucker, Wuornos and two other women are each the focus of individual chapters. The remaining cases are presented in three thematic chapters based on shared elements in particular cases, such as the death penalty system in Oklahoma (three cases), “black widow” convicted husband-killers (2 cases), and “aggravating circumstances” cases for killing police officers or children (2 cases).

Atwell opens her book with a chapter “explor[ing] what feminist criminology theory offers to explain the links between victimization and deviance” (p.xii). This chapter provides a useful, albeit relatively brief, orientation to scholars’ examinations of criminal behavior by women as well as analyses of theories about the justice system’s differential treatment of men and women. As the later chapters of the book describe the lives and cases of the individual women who were ultimately executed, Atwell refers back to themes and issues raised in the first chapter to link case characteristics to gender-based justice issues that have drawn the attention of scholars.

WRETCHED SISTERS is potentially susceptible to criticism for Atwell’s decision to raise and highlight the foregoing issues without providing more extensive explanation and analysis of the existing literature in the relatively brief opening and concluding chapters. Similarly, some readers may wish that Atwell had analyzed each of the eleven cases more systematically in light of the criminology literature that provides the framework for analysis in the first chapter. However, Atwell’s decision to limit the extent of her literature-based analysis ultimately provides a significant benefit: she has produced a book that is both useful to scholars and accessible to students and the general public. Books aimed at an audience of scholars often move beyond the interest and grasp [*179] readers with less expertise. In WRETCHED SISTERS, the richness of Atwell’s descriptions and her illumination of factors underlying death penalty cases create a wonderful resource to help students recognize the events and decisions that produce inconsistency and potential unfairness in the application of capital punishment.

Although Atwell’s critical stance toward capital punishment is clear at the outset, her descriptions and analyses are not biased by evident sympathy for the offenders convicted of murder in these cases. Instead, her careful attention to detail and her identification of key factors help to reveal the impact of such factors as gender-based stereotyping by the news media, arbitrariness in case outcomes, and the impact of poverty and specific personal problems on the contexts that produce death sentences for women. Overall, WRETCHED SISTERS makes a valuable contribution to knowledge about capital punishment and gender-based outcomes of criminal justice processes by providing an analytical orientation for and rich descriptions of the human contexts from which death sentences arise.

REFERENCES:
Lewis, Anthony. 1989. GIDEON’S TRUMPET. New York: Vintage.

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© Copyright 2008 by the author, Christopher E. Smith.

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