THE POLICY OF LAW: A LEGAL THEORETICAL FRAMEWORK

by Mauro Zamboni. Oxford: Hart Publishing, 2007. 222pp. Hardback. £45.00/$95.00. ISBN: 9781841137230.

Reviewed by Beau Breslin, Department of Government, Skidmore College, bbreslin [at] skidmore.edu.

pp.467-470

Like so many areas of public law, the last ten years have witnessed an explosion of scholarship in legal theory. A quick (and admittedly unscientific) survey of the most recent volumes of the LAW AND POLITICS BOOK REVIEW reveals that close to two dozen books on legal philosophy have been reviewed in the last three years alone. In a sense, the intellectual giants in the field of legal philosophy – including, among others, Ronald Dworkin, H.L.A Hart, Hans Kelsen, Joseph Raz, and John Finnis – have given way to a new generation of contemporary legal theorists. Still, individuals like Jules Coleman, Trevor Allan, Jeffrey Goldsworthy, James Stoner, and David Dyzenhaus face a formidable challenge. To be taken seriously they must say something unique or different within a field of study that has been dominated for so long by relatively few intellectual figures. These scholars must find their way out of the enormous shadow cast by several intellectual giants, and they must do so by respecting the work of those who cast the shadow in the first place. The result is that fresh scholarship in the area of legal theory often feels as if it is reactionary; it has the distinct appearance of responding to the dominant jurisprudential voices. To be sure, all public law scholarship in some sense builds on the work of others; it just seems more acute or noticeable in the area of legal theory. The same names always seem to come up.

Lest I be mistaken, I do not believe that is a bad thing. There is a genuine and coherent order to the entire discipline of legal theory and jurisprudence. One can trace the development of the philosophy of law back to its intellectual roots, where there is a legitimate and meaningful grounding of fundamental ideas and first principles. Make no mistake, there is also legitimately interesting work coming from the pens of the newest generation of legal philosophers. The recent volume, COMMON LAW THEORY, edited by Douglas Edlin, typifies this reality.

Mauro Zamboni, a full-fledged member of the new fraternity of legal philosophers, is one who understands the tradition of his discipline. What is more, he fully respects that tradition. His short book, THE POLICY OF LAW: A LEGAL THEORETICAL FRAMEWORK, at once builds on the impressive scholarship of his intellectual forebears while at the same time offering new insight into a (surprisingly) understudied area of inquiry: the relationship between politics and law. He delivers a decent book – a good book, in fact – and thus manages to shore up an area of legal philosophy that needed greater attention. [*468]

Zamboni’s intellectual strategy in THE POLICY OF LAW will be familiar to those who study jurisprudence. It is in fact a very traditional approach to constructing a legal argument. He starts, in Chapter 1, by painting the scholarly landscape with sweeping, though not irresponsible, brushstrokes. In this case, he insists that there are three basic models of contemporary legal theory: the autonomous model, promoted by the writings of legal positivists and analytic jurisprudes like Hans Kelsen and H.L.A. Hart; the embedded model, sponsored by the principal scholars of the critical legal studies tradition, the law and economics proponents, and the natural lawyers; and the intersecting model, articulated most accurately by American and Scandinavian legal realists. The autonomous model, he notes, understands that the law is connected to political values articulated in the polity – or rather the law may reflect the political values in a given community – but that each phenomenon remains independent. In contrast, the embedded model suggests that a closer relationship exists between political interests and legal outcomes. Finally, the intersecting model insists that law and politics are forever intertwined. In short, he wants to ask the question “how much politics is there in law?” (p.11).

Once his general portrait is unveiled, Zamboni then settles into his principal task. Anticipating the intellectual direction in which he plans to take us, his general organization of the field is plausible because it derives from his perspective of the important link between law and politics. In other words, we are alerted, by his specific ordering of the field of legal theory, that he is primarily interested in that relationship between law and politics. Indeed, he claims that a critically important line of inquiry has been marginalized in most contemporary legal theory and that the result of such neglect has been only a partial picture of the nature and the study of the law. He understands that “the vast majority of contemporary legal theories recognize, in one way or another, that the legal and political phenomena have spaces where they touch upon each other” (p.62). And yet Zamboni insists that there is not as much self-conscious attention to the question of how much politics there is in law as the topic itself deserves. In a classic intellectual move, he has thus identified a niche, an intellectual space in which fellow jurisprudes have either refused to enter or, more accurately, treaded lightly to this point. That intellectual space is the intersection of law and politics, or, in his words, “the policy of law.”

Beginning in Chapter 2, Zamboni explores the relationship more fully. He chooses a metaphorical image – a “grey box’ – as his vehicle for detailing precisely how politics and law converge in each of the jusrisprudential models. He describes the convergence as a “transformational moment,” a “moment when the law-making and its actors transform the values expressed inside the political arena into legal categories and concepts” (p.63). According to Zamboni, contemporary legal theorists understand that the conversion of political values into law occurs in a “grey box,” not a “black box,” where there might be more clarity about that change. The metaphor of the “grey box” represents Zamboni’s subtle slap on the wrists of contemporary legal philosophers. “[L]egal scholars leave [*469] [the transformational] moment in a grey world, either as an underestimated or not adequately analyzed moment of the law-making processes” (p.64). That, he says, is a real problem.

The claim that contemporary legal theorists place the transformational moment at the “borders” rather than the interior of their scholarly work appears in various places throughout THE POLICY OF LAW. Yet in Chapter 3, Zamboni recalibrates the evaluation of the transformational moment, insisting now that legal scholars place the transformational moment “in a central position in their models of the law and of the working legal order” (p.120). All is not well, though; that abrupt recalibration does not mean that the critical thread of Zamboni’s volume is any less taught. He is not eager to let contemporary legal theorists off the hook. In the third chapter, Zamboni examines the way some of the most prominent political scientists – including Dahl, Lasswell, Easton, and Almond – think about politics and policy and pronounces them quite capable of understanding the relationship between politics and law. Turning to his own jurisprudential colleagues, he then highlights some of the “deficiencies” of legal theories when contemplating the complete picture of the policy of law. He claims that if one “accepts the political scientist’s definition of policy as a network of both processes and decisions with a conversional function of inputs and outputs” . . . what rises to the surface are the “deficiencies of the idea of policy as used by lawyers today; a legal perspective that limits the meaning of policy to only one part of the phenomenon as identified by political scientists, i.e. to only the final result (standards) in the form of political evaluations and decisions affecting the legal world” (p.120; emphasis in original).

Inspired by the work of these and other political scientists, Zamboni then “redesigns” the “theoretical frameworks of the transformational moment” so as to replicate as much as possible the admirable qualities of a policy-based approach presented in Chapter 3. The redesign takes place in Chapters 4 and 5. Here he finally lays out his “policy of law” theory, defined, in his words, as “the space in which values entrenched in political decisions are transformed into law, having an effect on the existing legal order,” or rather “as a web of conversional processes and decisions located inside the legal arena” (p.196). Zamboni is careful to distinguish his theory – the policy of law theory – from close relatives, the politics of law analysis and the sociology of law theory. He writes convincingly that his theory differs from these others. What is more, he is equally convincing that contemporary legal theorists can learn from important scholarship in political science.

There is much to recommend about THE POLICY OF LAW: Zamboni sheds light on an area of legal philosophy that is surprisingly understudied; he transcends disciplinary boundaries to borrow from the work of political science; and he offers an interesting and credible legal theory. The book is accessible to the sophisticated reader and will be particularly interesting to graduate students and advanced undergraduates who are curious about the ways in which different jurisprudential paradigms can be organized around political [*470] dimensions. On the negative side, the book is sometimes less clear than it should be; I found myself asking for a bit more detail during the portions of the volume devoted to descriptive analysis. The author is also repetitive – witness the fairly lengthy synopsis in Chapter 6 in which Zamboni uses almost verbatim language borrowed from the first five chapters of the text – and I am not at all sure that his attempt to apply the theory in more global contexts (in supranational and international dimensions) is as successful as his principal theoretical mission.

That said, it is still a fine book. Perhaps the volume’s greatest virtue is its ability to build upon and redefine some of the more familiar threads of legal philosophy. In seeking to narrow the scope of inquiry to just what the dominant legal theories have to say about the relationship between law and politics, Zamboni is broadening our understanding both of those foundational theories and of the connection between law and politics itself. As such, he has performed a real intellectual service for contemporary students of legal theory, all of whom should give this book a glance.


REFERENCES:

Edlin, Douglas E. 2007. COMMON LAW THEORY. New York, New York: Cambridge University Press, 2007.

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© Copyright 2008 by the author, Beau Breslin.

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HARRY A. BLACKMUN: THE OUTSIDER JUSTICE

by Tinsley E. Yarbrough. New York, NY: Oxford University Press, 2007. 424pp. Hardback. $35.00/£19.99. ISBN: 9780195141238.

Reviewed by Artemus Ward, Northern Illinois University. Email: aeward [at] niu.edu.

pp.456-466

Recently, a former Blackmun clerk told me the following story: “It seems that one day he got the short straw and was asked to go to the White House to swear in a new cabinet member. President Nixon praised the new cabinet member profusely. The conversation then went something like this. President Nixon: ‘I want you to know that of all the people we looked at for this job, this man was my very first choice. . . The outstanding thing about this man is that when we looked around the country we knew he would be our very first choice for this job. . .’ At this point President Nixon saw that Justice Blackmun was standing beside him. The President quickly recovered: ‘No offense to you, Mr. Justice.’” Blackmun laughed every time he told this story. While many interpreted his self-deprecating comments and stories to be the product of a confident man’s personal modesty, in HARRY A. BLACKMUN: THE OUTSIDER JUSTICE, Tinsley Yarbrough argues that they were instead the result of deeply ingrained insecurities born from the childhood wounds of family tragedy. The author suggests that in order to understand Blackmun the justice we must first understand “Poor Harry” the boy (p.348).

In yet another highly readable judicial biography, Yarbrough once again delivers the kind of scholarly, yet thoroughly engaging, book that we have come to expect from one of the best practitioners of the genre. As in such previous works as DAVID HACKETT SOUTER: TRADITIONAL REPUBLICAN ON THE REHNQUIST COURT (2005), JUDICIAL ENIGMA: THE FIRST JUSTICE HARLAN (1995) and MR. JUSTICE BLACK AND HIS CRITICS (1988) – to name but a few – Yarbrough deftly blends careful political and legal analysis with thoughtful insights into the personal and psychological nature of his subject. In the pages of his latest book, Yarbrough provides an absorbing account of Justice Harry Blackmun’s life and work – with particular focus on his US Supreme Court years: 1970-1994. The author admits that Blackmun’s importance as a subject for judicial biography is largely predicated on his landmark opinion in ROE v. WADE (1974). Without it, and the controversy that it spawned during his tenure on the Burger and Rehnquist Courts, the author submits, “Justice Blackmun arguably would have achieved little prominence as a justice” (p.viii). Yet there is much to learn from Yarbrough’s account of Blackmun’s life, not only about the workings and decisions of the Supreme Court but also about how childhood experiences shape adult decisions.

Yarbrough explains that his initial thesis for the book was the degree to which Blackmun changed during his years on the Court from a conservative [*457] Republican, initially dubbed one of the “Minnesota Twins” along with his childhood friend and fellow Nixon appointee Chief Justice Warren Burger, to an alliance with the Court’s liberal members William J. Brennan and Thurgood Marshall. But Blackmun always felt that the explanation was that the Court became more conservative rather than that he became more liberal. While Yarbrough discusses this phenomenon, he explains that what he found most telling about Blackmun was his “outsider” roots and empathy for “little people” and how they affected his judicial decision making. Viewed through this lens, the author contends that Blackmun produced a “remarkably consistent” record over time and that “as Blackmun contended, the Court and the issues, not the justice, changed most during his years on the high bench” (p.xiii). Still, readers will have to draw their own conclusions about whether Blackmun is “exhibit A” for “ideological drift” as a number of quantitative scholars contend (e.g. Epstein, Martin, Quinn, and Segal 2007; Ruger 2005) or whether Yarbrough’s more subtle, qualitative evidence is convincing.

Yarbrough’s thesis is different from the one offered by NEW YORK TIMES reporter Linda Greenhouse in BECOMING JUSTICE BLACKMUN (2005). In her admittedly incomplete account of the justice based on her special/early access to his private papers, she argues that Blackmun not only changed, but he became a feminist icon. Tying ROE to the sex discrimination cases and linking them to the breakdown of his relationship with Burger and the rise of conservatism generally, Greenhouse suggests the justice underwent a kind of on-the-job training in women’s rights. In contrast, Yarbrough suggests that Blackmun’s broader concern for outsiders was tied to childhood experiences and remained remarkably consistent throughout his life. Yarbrough spends more time placing Blackmun’s behavior – or “continuing psychological therapy” as he ultimately terms it – in the larger institutional contexts of both the justices and clerks he served with and the political environment in which they operated (p.348). In this sense, Yarbrough’s book is a far more traditional judicial biography, more complete, and arguably more convincing, than what is seen by some as Greenhouse’s almost premeditated flattery.

A boon for researchers, Blackmun wrote a diary as a young man and later kept every scrap of paper that passed through his chambers as a justice. Yarbrough not only made extensive use of the extremely rich Blackmun Papers but also conducted interviews with his longtime secretary Wanda Martinson and a number of his clerks. He also mined the Black, Douglas, Brennan, Marshall, and Powell Papers. The result is a detailed, yet highly readable biography of Blackmun’s life. Indeed, one of the major strengths of the book is not just that the author consults Blackmun’s clerks but that he places the clerks squarely into his analysis as part of the decision-making team – something Greenhouse and many others fail to do. For example, in UNITED STATES v. VUITCH (1971) – a precursor to the landmark abortion case ROE v. WADE (1973) – we learn that Blackmun was inclined to consider extending the right to privacy to include abortion despite the fact that clerk Mike LaFond did not [*458] agree. This is but one clear-cut example of how Blackmun was anything but a puppet for activist clerks, as some have suggested. Of course, that did not mean that clerks were not influential, such as when Randall Bezanson helped Blackmun reconcile the trimester framework and viability with the state interests in health and life, which became the core of ROE.

Yarbrough paints a portrait of a shy, unassuming man whose self-doubts were evident from his initial days as a Harvard undergraduate through his tenure on the Court. The author convincingly argues that Blackmun’s deep-seated feelings of inadequacy allowed him to identify with and have empathy for “society’s ‘outsiders’ or ‘little people,’ those denizens of that ‘other world out there’” (p.ix). Blackmun himself recognized as much when he remarked during his lengthy post-retirement oral history, “I suppose growing up as I did there on the east side of St. Paul the people I knew were people of not great influence politically or by wealth or otherwise. They lived on the other side of town. And naturally I probably had empathy for them” (p.ix).

In chapter 1 – Dayton’s Bluff to Harvard – the author recounts the financial instability that plagued Blackmun’s childhood in Minnesota. Though he won a scholarship to Harvard, he was reluctant to attend for the financial burden it might place on his family. His letters home make constant references to the cost of living and his concern with family finances. He also felt like an outsider at Harvard. As a scholarship student who held various jobs, he immediately noticed the rigid social structure with the wealthy students at the top. We are also introduced to Warren Burger, about whom Blackmun recalled, “Warren was always a little stronger than the rest of us, much to my annoyance. . . . He liked to dominate things and, in a nice way, . . . make himself known” (p.7). Blackmun once wrote home from Harvard that his letter was “getting to be a book and [was], as Warren Burger has been claiming of all of [my letters], terribly incoherent” (p.18). A mathematics major, Blackmun thought about medical school before settling on Harvard Law School – not without a little encouragement from Burger who wrote him, “Believe me, old man, I have no end of admiration for you, for your courage and for your determination and fighting spirit that has carried you to the top. . . . I am sure and know that the day is not far when you will come to a place as high in life as you are now in the esteem of your friends” (p.25). In law school, Blackmun took courses from such legal luminaries as Felix Frankfurter, Calvert Magruder, James M. Landis, and Thomas Reed Powell.

In chapter 2 – Minnesota Lawyer – Blackmun comes into his own. After graduation from law school he returned to Minnesota to clerk for Eighth Circuit Court of Appeals Judge John Sanborn which led to a position at Junell, Driscoll, Fletcher, Dorsey and Barker – the largest, most prominent firm in Minneapolis. Blackmun was assigned to the dreaded tax department, perhaps because of his math background, but he soon took to the work which included drafting tax bills for the Minnesota legislature and writing briefs for two tax cases that made it to the US Supreme Court. This chapter, like the rest, are filled with wonderful vignettes of [*459] Blackmun’s life such as the time he and Burger attended President Herbert Hoover’s St. Paul campaign speech just days before the 1932 presidential election and Burger’s wedding where Blackmun stood as best man. Blackmun also married, had three daughters, made partner, and continued to advance in Minneapolis/St. Paul legal and social circles. He began doing legal work for the Mayo Clinic and in 1950 left the Dorsey firm to be resident counsel at one of the nation’s premier medical centers – a post he held until 1959. He described his years there as “the happiest decade of my life. If I had it to do over again, I’d probably go to medical school” (p.27).

Chapter 3 – Circuit Judge – details Blackmun’s years on the US Court of Appeals for the Eight Circuit. His appointment is a fascinating case study in the behind-the-scenes maneuvering and lobbying that takes place to secure a federal judgeship. In Blackmun’s case, both the departing judge – his former boss Judge Sanborn – and his close friend and newly appointed DC Court of Appeals Judge Warren Burger were instrumental in securing Blackmun’s appointment. Writing his patron Judge Sanborn, Blackmun was characteristically humble, “I appreciate your comments more than I can tell you, but I strongly feel my lack of experience and of qualifications” (p.70). When Burger made the final push for his friend’s selection, Blackmun wrote him, “As always, you demonstrate your friendship with unbelievable actions, and it is overwhelming to me” (p.78).

Yarbrough spends most of this chapter on various areas of the law that Blackmun encountered as an appeals judge: privacy, race, criminal justice, and religion. For each, the author suggests “Blackmun’s votes and opinions on the circuit bench did provide signals to the positions he would assume as a justice. Arguably, they also provide additional support for the thesis that he was largely consistent in his jurisprudence throughout his career” (p.85). For example, in MARION v. GARDNER (1966) Blackmun wrote a unanimous decision overturning a denial of social security benefits to a gay man who had been committed to a mental institution. In the 1966 case he wrote about the topic in respectful tones, “History and common knowledge teach us . . . that many persons with homosexual tendencies have been economically productive and, indeed, have achieved marked success in many fields” (p.85). A former colleague at the Mayo Clinic had urged Blackmun to go further, likening the issue to racial discrimination and BROWN v. BOARD OF EDUCATION (1954). While sympathetic, Blackmun chose to take a more moderate approach to achieve consensus among the other judges on his panel. On race issues, while he was supportive of the Court’s school desegregation decisions, he was sometimes sympathetic with southern judges and school officials. In criminal justice matters he regularly sided with the state. And though he was skeptical of the Court’s decisions expanding the rights of defendants, he applied their rulings from such landmark cases as ESCOBEDO v. ILLINOIS (1964) and MIRANDA v. ARIZONA (1966). Yarbrough also documents Judge Blackmun’s distaste for the death penalty and in particular his concern over the racial disparities in its application, as well as Blackmun’s opposition to prison brutality including [*460] the use of a strap called the “hide” in the Arkansas penal system.

Chapter 4 covers Blackmun’s appointment to the Supreme Court and how it hit him like “a ton of bricks” (p.118). Blackmun liked to refer to himself as “Old Number Three” as President Richard Nixon’s third choice after the failed nominations of southerners Clement Haynsworth and G. Harrold Carswell. While Burger, now Chief Justice, was consulted by the administration on Blackmun’s selection, there is little evidence to suggest that Burger played any significant role in the selection – certainly not compared to his earlier efforts to place his old friend on the Court of Appeals. Blackmun recalled, “I think he was content to let the facts speak for themselves” (p.111). Blackmun’s nomination was greeted enthusiastically by the press and his moderate lower court record was seen as a benefit. While early reports suggested that Blackmun was a Burger clone, some commentators suggested that he was more moderate, and Michigan law professor Yale Kamisar even went so far as to “wonder if Nixon might have been misled” (p.123). The American Bar Association assigned Blackmun its most favorable evaluation, and Blackmun’s confirmation hearing was largely pro forma. He explained that, while he would not inject his personal views into his decisions and would rely on the intent of the framers, he also pointed out that “this is a changing world” and that the Constitution is at times “obscure” on an exact meaning (p.134). He noted his concern as a lower court judge for “the treatment of little people, what I hope is a sensitivity to their problems” (p.135). Blackmun also explained to the committee that he would have qualms about disagreeing with the Chief Justice, despite their long-standing friendship. The committee voted 17-0 to recommend his confirmation, and the full Senate agreed on May 12, 1970 by a vote of 94-0.

Blackmun’s 23-plus years on the Supreme Court constitute the bulk of the book: chapters 5 through 9 at nearly 200 pages. Chapter 5 – The Chambers – begins by noting the self-doubt that the new justice felt upon assuming office. The day after his confirmation, Burger sent him a mail sack of 47 certiorari petitions that he could provide the fourth vote to grant. He decided that 17 were worthy of full consideration by the Court. Yarbrough details how Blackmun selected his staff including his clerks. His self-deprecating manner was apparent to the clerks from the start, as it was not uncommon for the justice to refer to himself as the “dumbest” member, or sincerely asking prospective clerks whether they were aware that he had authored ROE and whether they could work for a jurist who was the subject of so much vitriol because of it. Former clerk Pamela Karlan recalled, “I almost thought he was joking. How could you get through and not know this! But he was actually very sincere” (p.149). We read about Blackmun’s daily breakfasts with his clerks in the Court’s cafeteria, annual clerk-reunion dinners, and their ongoing relationships after their clerkships ended.

Yarbrough spends considerable time in this chapter detailing how Blackmun ran his chambers. He worked long hours, spending most of his time in the upstairs library cloistered away from his office staff and the other members of the Court. He spent considerable time briefing his [*461] clerks about what was said at the private conferences of the nine justices. Not only did Blackmun recount for his clerks the votes and reasoning of each justice, but he also did impressions of each – mimicking their inflections and tone! These detailed briefings gave the Blackmun clerks a decided advantage over clerks from other chambers as they knew where each justice stood on an issue and could use that information in the negotiations that took place across chambers via the clerk network. Initially, Blackmun drafted his own opinions, despite the fact that most opinions coming from other chambers were drafted by clerks. But after criticism from Justice Hugo Black that his chambers was taking too long to circulate drafts and Blackmun’s own clerks volunteering for opinion-duty, Blackmun largely conformed to the norm of clerk-written opinions and edited their work – sometimes substantially but sometimes hardly at all. Yarbrough enters the debate over whether Blackmun ceded too much authority to his clerks and abdicated his judicial responsibility by concluding that such arguments are “overdrawn, especially given the growing reliance of most justices on their clerks during Blackmun’s tenure. Instead, the pattern of decision making in his chambers was not substantially different, for better or worse, from that in the chambers of most of his contemporaries. The memos Blackmun personally prepared for cases demonstrate that he was hardly disengaged from the Court’s work. So, too, do his extensive post-conference briefings, daily breakfasts with his clerks, and the extraordinarily long hours he devoted to reviewing their work and the cases on which they relied” (p.168-169).

In chapter 6, Yarbrough delves into the nature of the Burger-Blackmun relationship on the Supreme Court. Yarbrough’s description of the Chief Justice is consistent with other portraits: “[Burger] displayed from the beginning a domineering and pugnacious temperament and an inability to suppress his personal preferences in the interest of Court collegiality” (p.172). Burger saw Blackmun as an ideological ally from the start. Breaking with the tradition that a new justice’s first opinion for the Court be in a unanimous, non-controversial case, Burger assigned Blackmun the opinion in WYMAN v. JAMES (1971), a contentions 6-3 decision upholding the requirement that recipients of public assistance submit to home visits by social workers or forfeit their eligibility for assistance. Blackmun, joined by Burger and Black, dissented in COHEN v. CALIFORNIA (1971) where the majority overturned the breach-of-peach conviction of a young man who wore a jacket with the words “fuck the draft.” Blackmun said that “Cohen’s immature and childish antic, in my view, was mainly [unprotected] conduct and little speech” (p.181). Similarly, “The Minnesota Twins” dissented in NEW YORK TIMES CO. v. UNITED STATES (1971) where the majority rejected the Nixon administration’s attempts to bar further publication of the so-called Pentagon Papers, the classified Defense Department history of US involvement in Vietnam. Yarbrough further details the general agreement between the two justices in other areas, including equal protection and race and sex discrimination: “In fact, until the Court’s 1977 term, Burger and Blackmun voted together in about 90 percent of nonunanimous civil liberties cases” (p.204). [*462]

Still, despite this general level of agreement, Yarbrough concludes, “There is simply no evidence to support the notion that Blackmun and Burger were ever the ‘Minnesota Twins’ in the sense that the chief justice exerted an undue influence over his boyhood friend” (p.205). While Burger’s handling of ROE frustrated Blackmun, it was Blackmun’s behavior in the Watergate tapes case, UNITED STATES v. NIXON (1974), that Blackmun felt caused the permanent breach in their relationship. After Burger circulated his majority opinion in the case, a number of justices suggested modest changes, including Blackmun who rewrote the fact-portion of the opinion. Burger felt betrayed after Blackmun received quick support from Brennan for the new section. Blackmun later recalled, “I’m sure that this case was a factor in the divergence from our former rather close relationship” (p.206).

In chapter 7 – “Roe and Beyond” – Yarbrough details Blackmun’s contribution to the landmark abortion case and the subsequent “fallout” from arguably the most controversial Supreme Court decision in the modern era. As I mentioned before, we learn that in the pre-ROE abortion case VUITCH, Blackmun commented in his pre-oral argument analysis that “I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented in the present case” (p.211). As he did for all attorneys, Blackmun graded Sarah Weddington’s initial oral argument in the case a “C+” and commented on her appearance. Yarbrough’s use of both Blackmun’s and Brennan’s conference notes place the reader directly inside the justices’ private conferences, and Blackmun’s initial conference position on ROE split the difference between the conservative “fetal life thesis” and the “absolute right to do what you will with your body” (p.213). Yarbrough details the internal politics surrounding Burger’s attempts to control the decision through his opinion assignment to Blackmun, as well as the decision to have the case reargued. Blackmun clerk Randall Bezanson told the author that Blackmun’s central focus was on women’s rights and not on physicians’ rights as some have suggested. The fallout from ROE is discussed, including the endless bags of mail, both positive and negative, that the justice received for the rest of his life. The balance of chapter 7 is spent on how the Court slowly dismantled the commercial speech doctrine. Yarbrough includes it here because, in addition to ROE, it was the only other area where Blackmun was the Court’s chief spokesperson in terms of opinion assignments.

Yarbrough spends a fair amount of time in the pages after ROE chronicling the hate mail and death threats that Blackmun routinely received. Consider this chilling threat: “I am preparing myself for sacrifice. You and I will enter eternity together before the year is over. It will happen outside Washington. It will happen when you least expect it. I dress well, belong to no political party, and have a pleasant middle-age prosperous appearance. I am ready to die” (p.278). Blackmun was relatively indifferent to it all until February 29, 1985, when a shot from a 9 mm handgun shattered his living room window, covered his wife Dottie in glass, and lodged in a chair in which she had been sitting moments before. Blackmun had just left the living room before the shot [*463] was fired. Yarbrough concludes that “opposition to ROE and whatever concerns Blackmun had about his personal safety in no way inhibited his commitment to causes he considered just” (p.283).

In chapter 8, Yarbrough rounds out Blackmun’s contribution to the Burger Court in the areas of freedom of the press and opening the criminal justice system to public scrutiny, the federalism debate from NATIONAL LEAGUE OF CITIES v. USERY (1976) to GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY(1985), his support for affirmative action in REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE (1978), and his dissent in the gay rights case BOWERS v. HARDWICK (1986) – a decision predicated on “the right to be let alone” and the opinion he later claimed he was most proud of. Yarbrough also includes the debate over whether Blackmun’s participation in the annual Aspen Institute retreats affected his behavior and specifically whether it cultivated what many saw as his increasing liberalism. Instead of taking a firm position on the matter, the author places Aspen in the context of a larger movement by the justice to “go public,” which included participation in THE BRETHREN (1979), 1982 interviews with CNN and the NEW YORK TIMES MAGAZINE, and his increasing selection of liberal clerks who the author suggests were drawn to him as the author of ROE. For Yarbrough, Blackmun’s increasingly public visibility was a direct result of “his growing reputation as the justice most sensitive to the needs of society’s outsiders” (p.277). The chapter closes with Blackmun’s public thoughts on Burger after the Chief’s retirement and death: “when disagreement came, his disappointment in [me] was evident and not concealed. The situation was not comfortable” (p.288).

The author covers Blackmun’s years as a member of the Rehnquist Court in chapter 9. The centerpieces of the chapter were the challenges to ROE including WEBSTER v. REPRODUCTIVE HEALTH SERVICES (1989) and PLANNED PARENTHOOD v. CASEY (1992). Again, Yarbrough places Blackmun’s clerks at the center of the insider-story of how ROE barely survived. Yarbrough details other areas as well. He notes that, while a clerk drafted Blackmun’s oft-cited, champion-of-the-underdog dissent in DESHANEY v. WINNEBAGO COUNTY (1989), it was Blackmun himself who added the “Poor Joshua!” introduction (p.292). In religious establishment cases Yarbrough recounts how Blackmun remained faithful to his initial separationist position in LEMON v. KURTZMAN (1971) despite attacks on its three-prong test by his conservative colleagues. Blackmun remained similarly consistent in supporting free-exercise claims in the face of the Rehnquist Court’s retreat from the broad protections of prior religious liberty cases. The author also covers the death penalty and Blackmun’s final statement in CALLINS V. COLLINS (1994) that he would “no longer tinker with the machinery of death” (p.319).

In chapter 10 – “Citizen Blackmun” – Yarbrough provides an account of the justice’s retirement decision and his post-Court years. The author shows how politics drove the justice’s choice to [*464] depart under a president – in this case Democrat Bill Clinton – who would select a like-minded successor. Yarbrough recounts the debate over Blackmun’s judicial legacy and the controversy over his former clerk’s widely publicized book about the internal politics of the Court and the influence of law clerks (Lazarus 1998). Though Blackmun did not hear cases during his retirement years, as many federal judges do, he continued to work full-time giving speeches, receiving honors, and even portraying Justice Joseph Story in Steven Spielberg’s AMISTAD (1997). But soon his health deteriorated and Yarbrough details his decline, death, burial at Arlington National Cemetery, and the controversy surrounding release of his papers and Linda Greenhouse receiving advance access.

In the epilogue, Yarbrough returns to his thesis of Blackmun “as an outsider, as someone who did not belong” and who had “deep-seated feelings of insecurity and self-doubt” despite his myriad accomplishments (p.346). The author reiterates how this manifested itself in his relationships with colleagues, clerks, and acquaintances and in the issues he confronted as a jurist: “Indeed, each blow he struck for one of society’s ‘Poor Joshua[s]!’ was in a very real sense a blow for ‘Poor Harry!’” (p.348).

While Yarbrough’s biography will not be the last word – see Kobylka (2005) for a window on his upcoming Blackmun book (2008) – it is an important addition to our understanding of the justice and the Courts upon which he served. There is still much room for future studies that place Blackmun more squarely in the judicial decision making literature: i.e., the borderline behavioral sink of the attitudinal, strategic, institutional, judicial-audience, and ideological-drift theories – to name but a handful. Yarbrough has aptly demonstrated that, contrary to what some see as an atavistic endeavor, contemporary judicial biography can augment broader judicial decision-making literature in important ways. Indeed, more systematic and comprehensive approaches my help us resolve the debates over whether Blackmun is best understood as feminist or outsider, whether he grew and changed over time or whether he was generally consistent, and the extent to which his clerks influenced his decisions. Toward that end, Yarbrough’s thought-provoking treatment is a welcome and important contribution.


REFERENCES:

AMISTAD. 1998. DreamWorks SKG.

Epstein, Lee, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Segal. 2007. “Ideological Drift Among Supreme Court Justices: Who, When, and How Important?” 101 NORTHWESTERN UNIVERSITY LAW REVIEW 1483-1542.

Greenhouse, Linda. 2005. BECOMING JUSTICE BLACKMUN. New York, NY: Times Books.

Kobylka, Joseph. 2005. “Tales From the Blackmun Papers: A Fuller Appreciation of Harry Blackmun’s Judicial Legacy.” 70 MISSOURI LAW REVIEW 1075-1132.

Kobylka, Joseph. 2008. THE JUDICIAL ODYSSEY OF HARRY A. BLACKMUN. Charlottesville, VA: University of Virginia Press (forthcoming). [*465]

Lazarus, Edward. 1998. CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLE INSIDE THE SUPREME COURT. New York: Random House.

Ruger, Theodore W. 2005. “Justice Harry Blackmun and the Phenomenon of Judicial Preference Change.” 70 MISSOURI LAW REVIEW 1209-1230.

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

Yarbrough, Tinsley E. 2005. DAVID HACKETT SOUTER: TRADITIONAL REPUBLICAN ON THE REHNQUIST COURT. New York: Oxford University Press.

Yarbrough, Tinsley E. 1995. JUDICIAL ENIGMA: THE FIRST JUSTICE HARLAN. New York: Oxford University Press.

Yarbrough, Tinsley E. 1988. MR. JUSTICE BLACK AND HIS CRITICS. Durham, North Carolina: Duke University Press.


CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

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

CALLINS v. COLLINS, 510 U.S. 1141 (1994).

COHEN v. CALIFORNIA, 403 U.S. 15 (1971).

DESHANEY v. WINNEBAGO COUNTY, 489 U.S. 189 (1989).

ESCOBEDO v. ILLINOIS, 378 U.S. 478 (1964).

GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, 469 U.S. 528 (1985).

LEMON v. KURTZMAN, 403 U.S. 602 (1971).

MARION v. GARDNER, 359 F .2d 175 (8th Cir. 1966).

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

NATIONAL LEAGUE OF CITIES v. USERY, 426 U.S. 833 (1976).

NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971).

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

ROE v. WADE, 410 U.S. 113 (1973).

UNITED STATES v. NIXON, 418 U.S. 683 (1974).

UNITED STATES v. VUITCH, 402 U.S. 62 (1971). [*466]

WEBSTER v. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490 (1989).

WYMAN v. JAMES, 400 U.S. 309 (1971).

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© Copyright 2008 by the author, Artemus Ward.

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NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS

by Richard H. Thaler and Cass R. Sunstein. New Haven: Yale University Press, 2008. 304pages. Cloth. $26.00. ISBN: 9780300122237.

pp.452-455

Reviewed by Benjamin Gregg, Department of Government, University of Texas at Austin. Email: bgregg [at] austin.utexas.edu.

Think of all the poor choices you could make in the course of a day, if not over an entire lifetime, and then think of all the better choices you might have made if only you had known better, had had better information, were paying attention, or had not been defeated by the sheer complexity of the issue. Richard Thaler and Cass Sunstein would help individuals and groups find their way to those better choices: to help not only you, gentle reader, but also your workplace, your retirement-account investments, not to mention the government, private business, even teenage girls vulnerable to getting pregnant. And that is just for starters. They offer a general theory of choice-management. With regard to Medicare, for example, they would “lead private sector firms to offer services allowing participants to input their data to help choose the best plan” (p.173). In public education, they would afford “greater choice” because “competition is likely to be good for kids” (p.197). As for medicine, they would “increase the freedom of patients and doctors . . . to contract with each other” (p.197). Same-sex marriage? They would “abolish ‘marriage’ . . . and rely on civil unions instead. If religious institutions want to restrict ‘marriage’ to heterosexual couples, they should certainly be permitted to do exactly that” while allowing same-sex civil unions in addition to a “wide range of experiments” (p.226), providing “freedom both for religious organizations and for people who love each other” (p.197). These are just random examples. Other possible areas for application include “Workplaces, corporate boards, universities, religious organizations, clubs, and even families” (p.252). The authors then invite their readers to develop their own applications and to submit them to a website. Can this POOR RICHARD’S ALMANACK for the 21st century (which shares both the sagacity and the witty and accessible style of its 18th century predecessor) redeem its aspirations?

The answer depends on how one evaluates (1) the authors’ underlying doctrine of libertarianism, (2) the psychological and sociological presuppositions the authors bring to it, and (3) their approach to applying that doctrine. I don’t suppose that all readers will share my particular evaluations.

(1) Thaler and Sunstein describe their approach as “libertarian paternalism.” It is one part paternalism, “self-consciously attempting to move people in directions that will make their lives better.” And as one part libertarianism, it would not forbid any options or significantly change addressees’ economic incentives. As a method, it would “be easy and cheap to avoid” (p.6) and would both preserve and honor [*453] “everyone’s freedom to choose” in ways “most likely to help and least likely to inflict harm” (p.72). Each of these two words, libertarianism and paternalism, is to modify the other. The method’s liberty-preserving efforts are to “influence choices in a way that will make choosers better off, as judged by themselves” (p.5). Such influence, as a coercion-free “nudge,” is something small in scale with potentially massive effects on group and individual behavior.

Thaler and Sunstein claim that policies flowing from their approach would satisfy an exceedingly diverse assortment of perspectives along the political spectrum. These policies would be “neither left nor right” (p.14). They could be “embraced by Republicans and Democrats alike” because they “cost little or nothing” and “impose no burden on taxpayers at all” (p.13). In other words: libertarianism not extreme. Perhaps extreme libertarianism is a straw man in the modern welfare state (for most people might agree that “we are not for bigger government, just for better governance” (p.14)). If so, then the authors provide not so much a “Third Way – one that can break through some of the least tractable debates in contemporary democracies” (p.252) – as temper libertarianism with non-libertarianism. Theirs is a gentle libertarianism, one (as we will see) that includes a moderate degree of governmental regulation.

(2) Someone who indirectly influences the choices of others is a “choice architect.” Good architecture requires a “good understanding of how humans behave” (p.83). Thaler and Sunstein locate that understanding in a number of presuppositions both psychological and sociological. They tell us that people think in two ways: alert (reflective and rational, deliberate and self-conscious) and not alert (intuitive and automatic, rapid and instinctive). The problem is very often the second way of thinking, individually – as inertia or knee-jerk preference for the unexamined default-position (p.8), and as unfounded and unrealistic optimism (p.33) – but even more so collectively, as bad influences (bad “nudges” that the authors would replace with good “nudges”): “Learning from others is how individuals and societies develop. But many of our biggest misconceptions also come from others. When social influences have caused people to have false or biased beliefs, then some nudging may help” (p.54). “It is almost as if people can be nudged into identifying a picture of a dog as a cat as long as other people before them have done so” (p.56). Better health, more wealth, and greater happiness depend on resisting the “blind internalization of the views of others (p.58); conformism (“social pressures nudge people to accept some pretty odd conclusions” (p.59); vulnerability to “spin” (“people tend to be somewhat mindless, passive decision makers” (p.37); and collective conservatism: the “tendency of groups to stick to established patterns even as new needs arise” (p.58)).

(3) One of the authors’ solutions, a touch unexpectedly for intellectuals, is not to encourage greater reflection and deliberation but rather to improve the quality of choosing by this second way of thinking (the non-alert kind) in ways that would allow people to “rely on their Automatic systems without getting into terrible trouble,” so that “their lives should be easier, better, and longer” (p.22) [*454] in a social and technological environment that perhaps increasingly relies on remote-control-thinking. But while it is more realistic not to expect people not to make an effort to be more thoughtful, encouraging a more efficient thoughtlessness would seem to render people more vulnerable, not less, to the types of manipulation to which the authors rightly object.

In fact, some of the authors’ reasons for why good “nudges” are needed suggest that they would often have their addressees rely on the first way of thinking (the alert kind which, as we will see shortly, actually often reinforces the second way). And, rather surprisingly for libertarians, they advocate this thoughtful alternative in the form of governmental regulation (a “mild” form, they assure us, a “species of libertarian paternalism that we call RECAP: Record, Evaluate, and Compare Alternative Prices” (p.93)). For governmental regulation is the best means to attack the greatest cause of poor-choice-making: the over-complexity of so much of everyday life: “For mortgages, school loans, and credit cards, life is far more complicated than it needs to be, and people can be exploited. Often it’s best to ask people to take care of themselves, but when people borrow, standard human frailties can lead to serious hardship and even disaster. Here as elsewhere, government should respect freedom of choice; but with a few improvements in choice architecture, people would be far less likely to choose badly” (p.144). Again: “if the underlying decision is difficult and unfamiliar, and if people do not get prompt feedback when they err, then it’s legitimate, even good, to nudge a bit” (p.155). And if the task just “has to be complicated to be functional, then it is best to offer plenty of signs to help people navigate” (p.174). This goal then leads back to the un-alert way of thinking, which is a good thing insofar as the authors want to “ensure that the Automatic System doesn’t get all confused” (p.83).

“Paternalistic libertarianism” turns out, then, sometimes to be more paternalistic, sometimes more libertarian. This combination is what makes the theory original. The problem it seeks to confront, un-alert ways of thinking, is an old one indeed. One prominent example from history is Émile Durkheim’s analysis of “ways of acting, thinking and feeling which possess the remarkable property of existing outside the consciousness of the individual,” ways “endowed with a compelling and coercive power by virtue of which, whether he wishes it or not, they impose themselves upon him.”

So NUDGE does not so much tell us things we do not know about our own frailties as to suggest clever ways in which we might better cope with them. To be sure, persons clueless about basic aspects of investing, college loans, mortgages, or retirement plans would surely benefit from reading this book. But what if such a book is more likely to be read by thoughtful, well-meaning, highly intelligent, college-educated persons who already know that they might benefit from subtle techniques either to make them more alert or to hone their skills at un-alert navigation in an overly complex daily life? Sunstein himself self-mockingly admits, repeatedly, to not following his own best advice. How can NUDGE nudge him or people like him – just the sort of person likely to read NUDGE and its evaluation [*455] in the LAW & POLITICS BOOK REVIEW?

REFERENCE:

Durkheim, Émile. 1982 [1895]. THE RULES OF SOCIOLOGICAL METHOD. Translated by W.D. Halls. New York: Free Press.

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© Copyright 2008 by the author, Benjamin Gregg.

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FEDERAL DATAVEILLANCE: IMPLICATIONS FOR CONSTITUTIONAL PRIVACY PROTECTIONS

by Martin Kuhn. New York: LFB Scholarly Publishing, 2007. 294pp. $65.00. ISBN: 9781593322304.

Reviewed by Robert M. Pallitto, Department of Political Science, Seton Hall University. Email: pallitro [at] shu.edu.

pp.449-451

The anti-terror initiatives created in the wake of 9/11 have generated vigorous debates about privacy, and one facet of those debates has been an effort to conceptualize privacy in ways that reflect contemporary experience. The most explicit constitutional warrant for privacy protection – the Fourth Amendment’s limitation on search and seizure – simply does not cover the range of privacy issues that confront the 21st century subject via state/individual interactions. In particular, data-mining activities, termed “knowledge discovery in databases” or KDD, have vast implications for individual privacy, as the ongoing litigation over warrantless surveillance by the Bush administration shows. Martin Kuhn’s FEDERAL DATAVEILLANCE reviews both the theorizations of privacy in scholarly work and the application of privacy conceptions in federal court jurisprudence, and the work provides a useful reference for recent developments in privacy law.

Kuhn articulates five conceptualizations of privacy that correspond to developing case law. These conceptualizations also map experiences of privacy (or lack of privacy) in social life. They are privacy as space, secrecy, information control, confidentiality and knowledge control. The fourth and fifth of these – confidentiality and knowledge control – are newer categories, and knowledge control in particular corresponds to the KDD activities that are the primary focus of the book.

We are familiar with spatial conceptions of privacy through Fourth Amendment jurisprudence: the home, or the car, is a space shielded from public view where, in ordinary circumstances, the state may not enter without advance judicial authorization. Privacy as secrecy, though more limited, is similarly familiar: “only information that individuals consciously hide from others can be considered private” (p.16). However, there has been a tremendous increase, since the mid-1900s, in the “surrender of personal information” (credit-related and identity-related information, for example), and consequently the privacy-as-secrecy conceptualization has been gradually replaced by privacy-as-information-control. To put it another way, we know that some of our personal information will inevitably be released to third parties, and the resulting questions are about the scope of disclosure rather than the fact of disclosure. First Amendment cases relating to anonymous pamphleteering fall into the information control category. The pamphlet or handbill author seeks to publish his/her views, but wishes to remain anonymous while doing so, thus controlling the information to be released. [*450]

Privacy as confidentiality emerged as a new privacy dimension with the 1977 Supreme Court decision in WHALEN v. ROE, a case involving the release of medical information by physicians. Confidentiality differs from information control, Kuhn tells us, by virtue of the agent of control (p.121). In information control generally, the individual remains the agent of control, whereas confidentiality imposes restrictions on what other agents may do with one’s personal data once they have it. This distinction leads Kuhn to emphasize the importance of confidentiality as a distinct variety of information privacy.

Knowledge control is an even newer dimension of privacy, distinct from information control and confidentiality in an important way: the knowledge produced through manipulation of data is more than the sum of its parts. While the release, or loss of control, over individual bits of information might not, by itself, be objectionable, it is the knowledge produced through data matching and other applications that generates harmful effects on the individual subject. In the same way that market research produces consumer profiles that are then used to target subjects for marketing activities, data matching to create suspect profiles results in the targeting of individuals for surveillance (and, potentially, other actions). This much is not news; however, the book’s key insight here consists in pointing out that the knowledge is obtained through use of information not necessarily confidential in itself, but rather processed to create something new that is more threatening and dangerous. Flight records, for example, are not ordinarily information that individual travelers want to keep secret. However, when those records are matched with other data sets (e.g., biometrics, membership lists), the ceding of control over one piece of information can lead to unwanted results. Privacy-as-knowledge-control is complicated further by the “state action obstacle”: the involvement of private entities in KDD applications can place these activities beyond the reach of constitutional challenge because the KDD applications in question are not being performed by the state. This is another key insight. Although other causes of action are potentially available to an individual or class plaintiff in such cases, constitutional claims based in privacy may be precluded because of the lack of state action. In this important section of the book, Kuhn maps out the law of state action and cites the showing plaintiffs would have to make in order to overcome the state action problem.

The knowledge production element of KDD renders it less susceptible to control by privacy doctrine. Kuhn points out that because “KDD analysis applications generate new knowledge, . . . it is unlikely that plaintiffs would be able to claim privacy protection for information they have not actually surrendered to the government” (p.200). Moreover, it is “treated by the courts more like surveillance than like a search,” and thus it is not regulated the way law enforcement searches are (Ibid.). Here, as it cites the surveillance/search distinction, the book would benefit from a discussion of the Foreign Intelligence Surveillance Act (FISA), which creates a warrant process for intelligence surveillance and requires a lesser showing of particularized suspicion (as compared to the law enforcement warrant process) before a [*451] surveillance warrant can be granted. Although FISA is of course statutory rather than constitutional, its warrant process certainly has constitutional implications.

The methodology of FEDERAL DATAVEILLANCE is chronological case law analysis. Beginning with a set of 135 cases referencing privacy, surveillance and related keywords, Kuhn culls that set down to “landmark” cases often cited by the Supreme Court. Those cases are analyzed to see how they reflect and shape privacy law in the five dimensions under examination (space, secrecy, information control, confidentiality and knowledge control). It is important to note that only constitutional privacy doctrines are considered here: common law and statutory privacy protections are beyond the scope of the study. The book also references privacy theorists whose work supports the five classificatory divisions. The philosophical works could be integrated more fully into the discussion than they are; as things stand, the work of Anita Allen, Daniel Solove and others does not interact with existing decisional law and therefore cannot offer much guidance for future litigants and policymakers. This limitation is probably intentional, as Kuhn does not seek to make normative claims. As he puts it, “the book is intended to provide insight into the legal interpretation of constitutional privacy rights in regard to emerging data technologies and is not intended as a contribution to current policy debates about dataveillance” (p.33).

The insights provided through case law analysis in FEDERAL DATAVEILLANCE can be useful to scholars, advocates and policymakers despite the book’s avoidance of normative critique. For instance, Kuhn explains that courts use a balancing test to determine the applicability of confidentiality when the government seeks to make private information public. In the “war on terror” context, however, “national security” will often be the item placed on the pro-government, pro-disclosure, side of the balance, and recent experience tells us that national security will be found to outweigh most confidentiality claims. This unfair balancing becomes even worse when we factor secrecy into the equation. The state secrets privilege, as used in the warrantless surveillance and extraordinary rendition litigation, has enabled the federal government to withhold information and terminate lawsuits without disclosing specifically why national security requires such measures. In short, while claims of “national security” distort balancing tests in the privacy context, the state secrets privilege renders the balancing process incomprehensible because we do not know what is being balanced. One of the virtues of this book is that its elucidation of constitutional privacy doctrines provides conceptual and doctrinal frames for debates about privacy that will continue to emerge around anti-terror initiatives involving KDD.

CASE REFERENCES:
WHALEN v. ROE, 429 U.S. 589 (1977).

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

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THE CRIMINAL LAW OF GENOCIDE: INTERNATIONAL, COMPARATIVE AND CONTEXTUAL ASPECTS

by Ralph Henham and Paul Behrens (eds.). Aldershot, UK and Burlington, VT: Ashgate, 2007. 283pp. Hardcover. $99.95/£55.00. ISBN: 9780754648987.

Reviewed by Dr. James Sloan, University of Glasgow, School of Law. Email: j.sloan [at] law.gla.ac.uk.

pp.444-448

The word “genocide” connotes a level of wickedness associated with no other crime. It speaks to actions that are based not on financial gain, military strategy or reprisal, but on a hatred for another group so toxic that the protagonist’s objective is to eradicate that group from the face of the earth. It is the “crime of crimes;” those who commit it are viewed as “the worst of the worst.” In view of this, it is natural for victims and others to want to see serious crimes so characterized. However, the crime of genocide has a very specific legal meaning. The term genocide was coined by Ralph Lemkin in the context of the Holocaust and was codified into international law with the Genocide Convention in 1948. In defining the word genocide, states were circumspect, providing several elements that must be met before the crime could be found to exist. It was not enough that the behavior being examined was criminal or that it resulted in death – even death on a large scale. The Convention definition imposed particular requirements relating to the nature of the criminal conduct, the nature of individuals against whom the conduct was perpetrated and the nature of the intention of the perpetrators. This narrow definition of genocide was adopted by the Security Council in establishing the statutes of the two ad hoc tribunals – the International Criminal Tribunal for the former Yugoslavia (ITCY) and the International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994 respectively – and by the states drafting the Rome Statute of the International Criminal Court (ICC) in 1998.

In THE CRIMINAL LAW OF GENOCIDE: INTERNATIONAL, COMPARATIVE AND CONTEXTUAL ASPECTS, editors Ralph Henham and Paul Behrens offer a collection of 21 essays on genocide (including one by each of the editors), most of which were presented at a 2005 conference on genocide. The editors advise us that the contributions have been “carefully revised and edited to present a topical work which fulfils high standards of academic quality.” And, for the most part, they are right. The range of topics is broad and features the discussion of atrocities widely considered to be genocide (some formally adjudged as such, some not), including the treatment of the Armenians by the Ottoman Empire, the treatment of the Jews by the Nazis and, more recently, the atrocities in Cambodia, Srebrenica, Rwanda and Darfur. The reference in the book’s title to the criminal law of genocide is generally accurate, though the vast range of topics covered frequently strays into historical or political areas. A main theme which emerges in many of the contributions is [*445] the difficulty of applying genocide’s specific legal definition with consistency, in particular in view of the political pressures associated with international criminal justice. Like other words with particular meanings in international law – such as “war” or “refugee” – the word genocide has been co-opted by politicians, the media and the wider public, who frequently consider the legal elements of the definition to be old-fashioned or overly legal.

The first two contributions in the book indicate the importance of the question of whether the crimes in Armenia in the early 20th century are characterized as genocide. In the first chapter, Raffi Sarkissian – who is described as the Chairman of “a single-issue pressure group” devoted to recognition of the Armenian Genocide – chronicles the refusal of the Turkish government and Turkish groups to characterize the atrocities against the Armenians as genocide. While he is certainly single-minded in his discussion of the events, he frequently neglects to provide sources for his (often controversial) statements. For example, in his second paragraph he quotes the Turkish Minister of the Interior of the day as stating: “all of the Armenians living in Turkey are to be destroyed and annihilated . . . Without taking into consideration the fact that they are women and children and disabled, their very existence will be ended, regardless of how terrible the means of the destruction may be, and without being moved by feeling of compassion.” A truly bone-chilling statement; however, given that no source is provided, one is left wondering how Sarkissian – as well as his readers – can know that the quote is accurate. None of which is to deny Sarkissian’s thesis that a genocide took place, but given his intention to expose the exaggerations, half-truths and outright falsehoods of the Turkish authorities, surely he must be expected to adhere to rigorous standards of scholarship. This, in part, is the point made by the next contributor, Sadi Cayci, a retired member of the Turkish Armed Forces, who calls for a treatment of the “Armenian massacres” from a critical perspective.

Given the level of opprobrium associated with genocide, it is essential that any determination of whether or not it occurred must be done with great care. When judges of the ICTY, the ICTR or the ICC are asked to determine if the actions of an accused amount to genocide (or a related offense such as conspiracy, attempt, and the like), it is their job to apply the law as it stands. They ought not to concern themselves with how the general public might define the crime or, indeed, how the judges themselves would like to see it defined. While opinions may differ as to whether activist judges at the national level who overrule national legislatures may, in some instances, be a good thing, it may not be credibly argued that activism is ever acceptable in the case of defining a crime. To punish an accused for conduct which was not illegal at the time of the crime would be a violation of the fundamental (and non-derrogable) human rights norm of nullen crimen sine lege – as well as any sensible notion of fairness. However, what emerges from several of the contributions in the collection is a recognition of the tendency on the part of judges of the two ad hoc tribunals to attempt to categorize crimes as genocide (or crimes linked thereto) despite the definitions of [*446] genocide in the Statutes of the two tribunals – and in the Genocide Convention on which they are based – indicating otherwise. The judges of the ad hoc tribunals tend to do this in one of two ways. Either they offer up a creative interpretation of the Genocide Convention’s definition (frequently based on a clumsy and selective reading of the travaux préparatoires), or they rely on the accused being bound by customary international law which, they argue, has progressed and developed beyond treaty law.

In a valuable chapter, noted genocide legal scholar William Schabas relies on the “Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur” (the Commission of Inquiry) and its controversial finding that genocide had not been committed by the Sudanese government in the Darfur region, as a basis to re-examine some of the case law on genocide of the ICTY. Noting the Commission of Inquiry’s willingness to ignore certain aspect of the JELISIC case, Schabas considers the approach of the Trial Chamber and the Appeals Chamber in that case in a politically dispassionate, highly legal way. Regrettably, as he illustrates, some of the conclusions of the ICTY chambers make it less than clear that their decisions have always been politically dispassionate and legally sound. For example, he cites the selective use of travaux préparatoires and a willingness of the Appeals Chamber to simply set out the law without providing convincing reasoning in certain cases. A chapter by Larissa van den Herik continues with the theme, outlining the schism between the “legal” and “social” concept of genocide. Like Schabas, she is compelled to point out what is frequently shoddy reasoning on the part of the tribunals, apparently arising out of a desire to make the charge of genocide stick. She notes that the legal definition of genocide is a strict one and applies to four specific groups only: national, ethnical, racial or religious groups. This leads her to ask: “Why is mass murder on [sic] these groups genocide and on [sic] other groups not?” As she makes clear, the answer – politically unpalatable though it may be – is simple: because states, concerned with their narrow interests, chose to make it so. In a similar vein, Michael Karnavas highlights the desire of the judges of the ad hoc tribunals to find a crime of “complicity in genocide.” In a careful study of the jurisprudence, he outlines the chipping away of the special intent requirement, either though judicial reasoning which offers innovative – and frequently contradictory – opinions of the meaning of the statutes or, in the case of a dissent opinion in KRSTIC, through the reliance on a rule of customary international law for which very limited support was provided.

No study of genocide would be complete without consideration of the role of the international community to prevent it. Roméo Dallaire and Kishan Manocha discuss the lack of political will on the part of France and the US – and to a lesser extent the UK – to take steps to limit or prevent the genocide in Rwanda. Given Dallaire’s role as the United Nations Assistance Mission in Rwanda’s Force Commander during the tragic events that unfolded there in 1994, it is hardly surprising that the tone of the piece is at times emotional. Even if the case is sometimes over-argued (“All that [*447] [Rwanda] had was a surplus of people and, in [the view of France, the US and the UK], this was clearly a most dispensable commodity.”), the provocative discussion is valuable and has many echoes in relation to the reaction of the international community to the atrocities currently taking place in Darfur. Also valuable, was a discussion by Zachary Kaufman of the circumstances surrounding the US’s decision not to veto the Security Council’s referral of the Darfur situation to the ICC.

The chapters cover a remarkable variety of areas, touching upon difficult – and in some cases quite fascinating – issues addressed by or likely to be addressed by international judicial bodies. A chapter by Fiona de Londras argues that the prosecutors at the ad hoc tribunals are unwilling to prioritize sexual violence, including genocide-related sexual violence. Another chapter by Paul Behrens considers the variable ways the ad hoc tribunals have dealt with inconsistencies in the behavior of individuals accused of genocide, including, in some cases, a tendency to simply ignore it. Tonja Salomon’s chapter provides a helpful overview of the issues and jurisprudence in relation to the incitement of genocide through hate speech in the context of the Rwanda Genocide. Paul Ng’arua, a Trial Attorney at the ICTR, writes (in his private capacity) about the difficulties surrounding that tribunal’s compliance with the Security Council’s Completion Strategy, in particular the problems of the Office of the Prosecutor (OTP) relating to the specificity and amendment of indictments. Juan Méndez, UN Special Adviser on the Prevention of Genocide, discusses the functions of his office – though his message appears to be one of “do not expect too much of us.” Shivon Byamukama and John Huntley co-write a chapter about criminal justice at the national level in Rwanda (Gacaca). In addition, each of the last two chapters in the book, written by the book’s co-editor Ralph Henham and Shahram Dana, respectively, provides a careful and scholarly legal discussion of the difficult and controversial sentencing procedures of the ad hoc tribunals in the context of genocide.

Of course, the primary international legal body empowered to deal with genocide, the ICC, has, to date, only had limited jurisprudence and none directly touching on genocide. Nevertheless, some valuable analysis is offered about how the ICC may deal with genocide. For example, writing in his personal capacity, Tuiloma Neroni Slade, the Presiding Judge of Pre-Trial Chapter II of the ICC from 2003-2006, examines how the crime of genocide has been incorporated into the jurisdiction of the ICC. While, as he notes “it is too soon to tell how the Judges of the International Criminal Court might approach any of these issues,” his thoughts are nonetheless valuable. Another discussion, which is necessarily speculative in view of the ICC’s relatively recent creation, is Chris Gallavin’s thesis that a “hierarchy of referrals” exists, depending on the “triggering” mechanism that brought a matter before the ICC. He speculates that cases coming to the Court through the Prosecutor’s much-fought-for proprio motu authority will inevitably be sidelined, as such referrals provide “the OTP with a weak mandate upon which to investigate,” and that third party state [*448] referrals will, likewise, “fail to fulfil the pragmatic requirements of the Prosecutor who must conduct investigations with minimal resources.” To him, it is “[o]nly in the case of State self-referrals or [Security Council] referrals [that] the Prosecutor [will] be assured of the necessary state cooperation.” An interesting idea, but again, it is too soon to judge its accuracy. Similarly, Alex Bates’ contribution on the likely effectiveness of Cambodia’s Extraordinary Chamber, while helpful, has a “wait and see” quality, given that that Chamber has only begun to function recently.

This book represents a diverse and topical collection of essays on genocide, of value to the student of the law, as well as to students of politics. Although the ad hoc tribunals have attempted at times to indicate that there is no hierarchy of crimes under their jurisdiction, genocide remains the gold standard for evil behavior. As such, many groups will, understandably, feel outraged if the term is not used in relation to the crimes of which they were victim. One of the key lessons that emerges from the book, however, is that, unless and until states redefine genocide more broadly, judges of international criminal bodies must resist political pressure to do so themselves. From a public policy standpoint, such judge-made changes in the law motivated by hard cases are undesirable; from an individual human rights standpoint, they are unconscionable.

CASE REFERENCE:

THE PROSECUTOR v. JELISIC, Case No. IT-95-10-T, Judgement, ICTY TC, 14 December 1999.

THE PROSECUTOR v. JELISIC, Case No. IT-95-10-A, Judgement, ICTY AC, 5 July 2001.

PROSECUTOR v. RADISLAV KRSTIĆ, Case No. IT-98-33-A, Judgement, ICTY Appeals Chamber, April 19, 2004.

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© Copyright 2008 by the author, James Sloan.

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HUMAN RIGHTS AND HEALTHCARE

by Elizabeth Wicks. Oxford and Portland, Oregon, Hart Publishing, 2007. 314pp. Paperback. $58.00/£28.00. ISBN: 9781841135809.

Reviewed by Barbara A. Noah, Professor of Law, Western New England College School of Law. E-mail: bnoah [at] law.wnec.edu.

pp.441-443

In her broad-ranging and carefully written survey of medical law (what we in the United States call “bioethics”) in Great Britain, Dr Elizabeth Wicks begins by questioning whether medical law is a distinct legal subject at all. As she observes, “[d]oubt has arisen because medical law is an academic version of the cuckoo. When a medico-legal problem arises, medical law utilises the principles and remedies of other branches of law” (p.1). As medical technologies evolved over time, lawyers confronted more complex and novel medico-legal dilemmas, and it became apparent that the traditional legal rules of tort, criminal law, and family law were insufficient to resolve these conflicts. Medical lawyers began to understand that ethical principles of autonomy, beneficence, sanctity of life, and dignity of the person could provide a unifying coherence to an otherwise fragmented legal field.

The book begins with a brief overview of the sources of human rights law in Britain, including international treaties, the British Constitution and common law, and the Human Rights Act of 1998. The chapter then focuses on developing a more detailed description of human rights that are particularly germane to health care and medical law. Wicks divides the discussion into four parts, examining privacy rights, the right to life, the right to dignity, and the concept of reproductive autonomy.

Within the realm of privacy rights, the book considers the right to self-determination in medical decision-making, and related rights to bodily integrity and confidentiality. Under the umbrella of right to life, the author considers whether and to what extent this right includes positive rights to medical treatment and, more controversially, to assistance in dying. As part of the right to dignity, Wicks includes a detailed consideration of the right to be free from degrading treatment and its implications in support of potential withdrawal of life-sustaining treatment from patients who are terminally ill. Finally, within the realm of reproductive autonomy, Wicks discusses both the “negative” right to choose to avoid reproduction and the “positive” right to assistance with conception.

A closer examination of two of the chapters will illustrate the strengths of the book. In both chapters, the right to life as described in Article 2 of the European Convention on Human Rights plays a prominent role. (p.181; Article 2 of the ECHR states that “[e]veryone’s right to life shall be protected by law.” It does not, however, further describe who is included in “everyone,” leaving the question of whether an unborn fetus [*442] is included.) In the chapter titled “Termination of Pregnancy: A Conflict of Rights,” Wicks describes existing law dealing with the complex debate about abortion, beginning by acknowledging that in most cases a “conflict of interests between mother and fetus is almost inevitable” (p.181). She also wisely concedes that the moral issues posed by abortion are beyond the scope of the law to resolve, noting instead that the law can at best move the debate closer to a “reasoned response” to particular aspects of the debate. As an example, she discusses cases addressing the question of whether Article 2 applies to the fetus. After reviewing several cases that skirt the issue, she criticizes the judiciary for failing to answer the question directly. At the same time, she notes that there appears to be sufficient support among individual judges in the European Court of Human Rights for a finding that Article 2 in fact applies to the fetus, although the Court has not formally done so. The chapter also contains a thoughtful discussion of the ethical issues surrounding abortion, particularly the question of personhood of the fetus, and it examines English law dealing with abortion from the perspectives of rights of the fetus, and rights and obligations of the mother, the father, and participating medical professionals.

In the chapter titled “The Right to Life at the End of Life,” Wicks again confronts a deeply divisive moral question that the law is ill-equipped to address. The chapter begins by examining the boundaries of the right to life as a substantive element in end of life decisions. In addition to the statement discussed above, Article 2 adds that “[n]o one shall be deprived of his life intentionally” (p.228). None of the very few exceptions to this principle (such as the use of lethal force in law enforcement) address the concepts of withdrawal of life-supportive measures, assistance in suicide or euthanasia that sometimes arise at the end of life. Wicks observes, very importantly, that Article 2 does not create a right to life; rather it recognizes that when life exists it is entitled to protection by law. She notes that England’s acceptance of the whole brain definition of death deals with the problem of wholly brain dead individuals whose bodies are maintained on life support, but leaves unresolved the problem of treatment of patients in permanent vegetative states. If Article 2 protects the right to life of these patients (if they are, in fact, considered alive), Wicks asks whether this means that the life of PVS patients must be preserved indefinitely via artificial feeding or even more invasive measures such as organ transplant? The remainder of the chapter explores relevant case law attempting to resolve the rights of patients in this situation in the context of the human rights principles in Article 2, including discussion of questions such as whether artificial feeding is a form of medical treatment, whether withdrawing treatment is an act or omission, and whether the distinction between act and omission is helpful in this context, and the conclusions of the courts on these fundamental issues. Those in the United States who followed the controversy surrounding Theresa Schiavo’s life and death will be familiar with these questions. Finally, Wicks reviews the implications of the British judicial approach to these cases for future practices.

The author adroitly identifies and discusses how existing law sometimes [*443] fails to address adequately the particular challenges posed by the multi-layered problems of health care decision-making. Wicks provides appropriately critical commentary on the state of the law for some of the more controversial medico-legal questions but is careful to provide a balanced and descriptive picture of all of the issues she covers. As she observes in her introductory chapter, “the book seeks both to describe and analyse the involvement of human rights law in medicine and simultaneously to justify its application to this field . . . . While it is in the nature of medico-legal issues that there are no easy answers when the disciplines of law and medicine collide, human rights law at least provides a useful framework in which to consider the dilemmas and the one most fitting in a democratic society” (p.15). Although the book focuses mainly on rights within the United Kingdom, those familiar with healthcare and bioethics issues within the United States or elsewhere will find it an extremely useful comparative resource.

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© Copyright 2008 by the author, Barbara A. Noah.

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ESTABLISHING JUSTICE IN MIDDLE AMERICA: A HISTORY OF THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

by Jeffrey Brandon Morris. Minneapolis: University of Minnesota Press, 2007. 441pp. Cloth. $39.95. ISBN: 9780816648160.

Reviewed by Daniel Reynolds, College of Law, Northern Illinois University. Email: danreynolds [at] niu.edu.

Students of America’s courts come to their subject from a variety of perspectives that do not always play well together. Legal scholars and political scientists can sometimes seem in need of a mutual translator as they probe and describe various aspects of the same elephant. Some of this disconnect may be attributable to an excess of attention from both camps to the work of the United States Supreme Court. There appears a seemingly intractable reluctance on the part of “legal science” (so to speak) to admit forthrightly the inescapably political nature of the Supreme Court’s exercise of its largely discretionary jurisdiction. For its part, some political science can strike a lawyer as being too quick to dismiss the internal premises of adjudication, too quick to quantify only a manageable corner of a larger process of complex interactivity among uncertain variables and pronounce that corner representative of the whole.

Some help for this may be had in turning attention away from the fewer than 100 annual opinions of the United States Supreme Court and looking at the vast law machine grinding away beneath it. There, in pride of place, are the twelve United States Courts of Appeals and the more than 50,000 dispositions they produce each year. A number of fresh looks at the product and the process of these courts are recently on offer: from an empirical, quantitative analysis (Cross 2007) to a richly qualitative and theoretical view from inside the tent by a most perceptive and prolific scholar-judge sitting on the Court of Appeals itself (Posner 2008). Yet a third way of addressing the imbalance is offered by the present work under review: a narrative historical account of one of the Courts of Appeals, from its earliest presence on the raw frontier of what we now call the Midwest down to the present day.

The author, Jeffrey Brandon Morris, is a scholar of both political science and law with a strong pedigree in history as well. (He co-edited the ENCYCLOPEDIA OF AMERICAN HISTORY with his late father, the eminent colonial and constitutional historian Richard Morris.) Morris has made previous forays into this largely uncharted territory with institutional histories of the very important Second Circuit (covering New York as well as Connecticut and Vermont) and the Court of Appeals for the District of Columbia Circuit (the nation’s premiere administrative law court and a fertile source of Supreme Court nominees.) With the present volume from the University of Minnesota Press he turns to the heartland – the Eighth Circuit Court of Appeals, whose writ today runs from Minnesota [*439] and the Dakotas through Nebraska, Iowa, Missouri and Arkansas.

To the author’s credit (and that of his apparent sponsor, the Eighth Circuit Historical Society), he avoids the worst pitfalls of commissioned institutional histories. There is no artificial teleology here, no inevitable progress toward the best of all possible presents. Morris’ voice is narrative, reportorial; the presentation, chronological; the point-of-view, decidedly neutral. He is simply recounting a story, unencumbered by the “higher criticism,” grand theory or the crochets of statistical analysis.

In each of seven chronologically-ordered chapters, Morris provides a capsule biography of each judge who sat during the period under review and an analytic, topical summary of the court’s jurisprudential output. Inevitably, some lives (and some cases) are more interesting than others. And the cumulative effect of encountering so many long-forgotten white males (as they all were, up until the most recent of times), most with apparently useful political connections, confronting such a range of disputes, all concisely described, could be (and, in truth, sometimes is) mind-numbing. What saves the effort, however, are the author’s attempts to contextualize these judges and their work within the bigger picture of social and political developments both locally and in the nation at large. With only the occasional lapse (as in some 19th century senators’ “noses out of joint”), Morris’ gifts at historical narrative are on display throughout, as in his description of the devastating impact of the Great Depression on people coming before the court in the 1930s or in his engaging and even moving setting of the scene for the court’s confrontations with apartheid in Arkansas and the Little Rock school cases.

Along the way, the book provides a useful reminder of the importance of judicial administration – broadly conceived as the nuts-and-bolts structure and functioning of the court system, a subject on which the author has written elsewhere (Morris 1981). His description of the early (pre-1891) incarnations of the court, including the era of Supreme Court justices “riding circuit,” is quite evocative. The historically-minded may hear in Morris’ account of the 19th century echoes of 12th century England and Henry II’s royal justices fanning out from London to create a law common to all England. The sea change of 1891, imposed by Congress, is appropriately emphasized as not only the birth of the Courts of Appeals in their current form but also, and as a consequence, the elevation of the Supreme Court to its now-familiar Olympian status as our national constitutional court with a self-limited, largely discretionary jurisdiction. From 1891, the Courts of Appeals are the real de facto courts of last resort for the burgeoning reach of federal law. And from that date they are exquisitely positioned to perfect their role as the strong centralizing force which Morris ascribes to them.

The genre of institutional history has its shortcomings. Institutions, particularly ones embedded within a set of larger historical processes, do not necessarily display a constant or even compelling theme. And the pressure for comprehensive inclusion itself precludes the more detailed, more nuanced [*440] elaboration of salient points that might otherwise be expected in such an undertaking. That said, the collation of the historical record in this work achieves its purpose and brings into focus the work of a major player in the American judicial order.


This volume is a natural acquisition for any college, university or law library, where it may find its highest and best use simply by sparking that curiosity which leads to further reading and learning. It could prove a rich source for launching a flood of seminar papers, reports and theses. Who but a specialist knew, for example, that North Dakota once experimented with “nationalizing” its banks and granaries? Or that there once was, in the early years of the 20th century, a short-lived but full-blown Article III United States Commerce Court? These nuggets, and many, many others, are scattered throughout the narrative and enliven what otherwise might have been a tedious catalog. It is good to be reminded that, whether coming at our subject with the tools of political science or of academic law, at some level we are all doing history.

In this regard, however, the publisher must be faulted for an all too frequent sin of omission in academic publishing today – the absence of a bibliography of cited works, sources and cases or even a simple “Suggestions for Further Reading.” The story itself is fully documented by the author and richly end-noted (including some intriguing citations to unpublished work of the estimable Richard Arnold, the scholar-judge of the modern Eighth Circuit whose elevation to the Supreme Court by fellow Arkansan William Clinton was prevented only by Arnold’s untimely and ultimately fatal illness.) With enough back-digging through the usual underbrush of ibids and op cits one could, of course, do the work oneself. But what, after all, is the justification of the university-housed publication enterprise in the first place, if not to ease the path to the diffusion of knowledge even in this most mechanical aspect of the task?

REFERENCES:
Cross, Frank B. 2007. DECISION MAKING IN THE U.S.COURTS OF APPEALS. Stanford: Stanford University Press.

Morris, Jeffrey Brandon. 1981. “The Changing Federal Courts” 34 PROCEEDINGS OF THE ACADEMY OF POLITICAL SCIENCE 90-103.

Morris, Richard B., and Jeffrey Brandon Morris (eds). 1996. ENCYCLOPEDIA OF AMERICAN HISTORY. New York: HarperCollins.

Posner, Richard A. 2008. HOW JUDGES THINK. Cambridge: Harvard University Press.

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© Copyright 2008 by the author, Daniel Reynolds.

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JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE

by Lisa Hilbink. New York: Cambridge University Press, 2007. 316pp. Cloth. $80.00/£45.00. ISBN: 9780521876643. eBook format. $64.00. ISBN: 9780511292859.

Reviewed by Jeffrey K. Staton, Department of Political Science, Emory University. Email: jeffrey.staton [at] emory.edu.

pp.435-437

Lisa Hilbink opens her JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE by asking why judges trained during a period of robust Chilean democracy facilitated the human rights violations of the Pinochet regime by deferring completely to the government’s authority over public security and order matters. In the first few pages, Hilbink dispenses with an obvious potential explanation – that judges were pressured by the military into abandoning a commitment to human rights. Hilbink demonstrates that Chilean judges allowed significant governmental restrictions on individual rights not related to the holding of property long before 1973 and continued to do so after the transition back to democracy. This critical piece of evidence transforms the book’s central research question from a relatively narrow concern for judicial deference under authoritarianism to a more general concern for why Chilean judges have historically failed to constrain the Chilean state. The answer, we learn, turns on the institutional structure of the judiciary and how that structure perpetuated a narrow 19th century conception of judicially cognizable rights.

The book’s content nicely reflects the decade of research the author devoted to the project. It provides an historically rich yet accessible account of the Chilean judiciary’s role in politics across two centuries, derived from careful archival work and more than one hundred interviews with scholars, justice ministers and judges. JUDGES BEYOND POLITICS can be used effectively in both undergraduate and graduate courses on law and politics, Latin American politics or political institutions. I wish to summarize Hilbink’s argument and highlight how she evaluates competing explanations. Despite a small conceptual concern I wish to raise, JUDGES BEYOND POLITICS delivers on its promise to identify how institutions, in concert with particular ideological proclivities, can powerfully influence legal constraints on political power.

Hilbink’s explanation centers on rules that guide judicial appointment and promotion. The Supreme Court enjoys extraordinary control over judicial career trajectories. The Court conducts yearly performance evaluations for the entire lower judiciary and is responsible for retention and promotion. In fact, although the president appoints the Supreme Court, the Court itself provides the slate of nominees, which gives it nearly complete control over its succession. Two primary consequences resulted from this structure. First, by [*436] rewarding judges that reflected the Supreme Court’s own deferential view of the law and punishing those who pushed new interpretative theories, the Court created strong incentives for lower court judges to behave largely as it desired. Hilbink demonstrates persuasively that judges who fell out of step were simply purged through negative performance evaluations. Second, giving the Supreme Court control over its successors made it impossible to radically change the Court itself. In short, institutions of judicial administration ensured that the Supreme Court’s preferences were relatively stable over time and that the judiciary as a whole reflected those preferences well.

On its own, however, the institutional element to the argument can only do so much work, because it stops short of predicting what type of individual rights protections we ought to expect. We only know that whatever these protections are, they should reflect what the Supreme Court wanted. For this reason, the second piece of Hilbink’s argument is ideological. The author suggests that the dominant “institutional ideology” in the Chilean judiciary holds that judges should restrict themselves largely to the resolution of private law problems (violations of property rights and contractual obligations) and give great deference to government in the context of public law problems (protection of order, security and morality). In Chile, to do otherwise is to be an illegitimate, “political” judge. Hilbink provides considerable evidence in Chapter 2 that this conception of the judicial role reflected a 19th century notion of what violations afford judicial remedy, and when the Court was given administrative control over its inferiors in the 1920s, this ideology was frozen into the judiciary. Appointment and promotion rules locked-in an antiquated conception of rights, and it is this combination of institutions and ideology that explains the Chilean judiciary’s failure to protect human rights.

JUDGES BEYOND POLITICS is most persuasive when Hilbink addresses alternative and quite plausible class and legal explanations for the behavior she observes. The class explanation suggests that the Chilean judiciary has historically reflected the interests of the landed elite, and for this reason, we should observe strong protections for property rights but little protection for civil and political rights, especially for individuals mobilizing to change Chile’s economic structure. Although Hilbink finds that judges of the 19th century were indeed drawn largely from the oligarchy, she shows that by the 1960s Chilean judges had been overwhelmingly raised by families in the lower-middle to middle classes. Thus, a straightforward class-based account cannot explain the judiciary’s behavior.

The legal explanation Hilbink addresses suggests that Chilean judges are guided by a strongly positivist legal theory, which “renders [them] insensitive to the substantive content of the laws they apply, and unconcerned about the outcomes of their decisions” (p.166). By carefully identifying ways in which Chilean judges have given expansive interpretation to statutes, interpretations that go well beyond the clear language of the law, but only when coming to a result that favored the protection of property rights, Hilbink suggests that it cannot be positivism per se that explains the historical trends she observes. [*437]

Despite the overall persuasiveness of the book, perhaps because it is so persuasive, I believe it is worth raising a question about a key concept in the analysis. Hilbink’s attempt to distinguish between an “ideological” concept, as, for example, we find in Segal and Spaeth (2002) and the “institutional ideological” concept that she advances. The institutional ideology of the judiciary, as discussed on pages 37-38, is an ideology of “anti-politics.” As I have discussed above, it envisions a judicial role in which courts give high deference to government over public order and security policies but closely scrutinize policy choices in the context of property rights or contractual obligations.

The concern here is that this anti-politics ideology seems indistinguishable from a concept of conservatism in which judges simply prefer a world characterized by 19th century policies concerning economic liberty and social control. In other words, it is possible that the “institutional ideology” of deference over public law concerns merely hides familiar ideological preferences, as Segal and Spaeth would suggest. Highlighting this ambiguity in the text itself, on page 39, Hilbink notes that the “central claim of this book is that institutional features of the Chilean judiciary promoted a conservative bias among judges” [my emphasis]. In order to keep the concepts of ideology and institutional ideology distinct, a more precise summary might be that the institutional ideology of anti-politics, in the context of Chilean institutions of judicial appointment and promotion, induced a conservative bias in judicial outcomes. Either way, it strikes me that this adds a bit more complexity to the argument than is needed or can be supported by the evidence. Without an independent measure of ideology (either in the conservative-liberal sense or whatever would make sense in Chile), which Hilbink does not have, it is not clear what we gain by invoking this new ideological concept. No doubt it matches the way that Chilean judges talk about the judicial role, but it does not take us conceptually much beyond the political ideology concept judicial scholars typically adopt.

Despite this minor concern, JUDGES BEYOND POLITICS represents an excellent contribution to the literature on comparative judicial politics. The argument is highly plausible, and Hilbink’s efforts to rule out alternative explanations are extremely persuasive. This is clearly a must read for anyone in judicial politics who focuses on Latin America.

REFERENCES:
Segal,