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, Jeffrey A. and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.
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© Copyright 2008 by the author, Jeffrey K. Staton.

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ON THE ETHICS OF WAR AND TERRORISM

by Uwe Steinhoff. Oxford : Oxford University Press, 2007. 176pp. Hardbound. $65.00/£32.00. ISBN: 9780199217373.

Reviewed by Amanda DiPaolo, Department of Political Science, Middle Tennessee State University. Email: dipaolo [at] stu.ca.

pp.432-434

Uwe Steinhoff challenges the basic tenets of just war theory in ON THE ETHICS OF WAR AND TERRORISM. While it is often difficult to know whose voice is speaking because most of the book is dedicated to the analysis of others, Steinhoff sets a high bar for his own arguments suggesting that it “is a lack of intellectual integrity, in the form of breathtaking double standards and hypocrisy in the assessment of war and terrorism (and in the assessment of different perpetrators), which constitutes the main target of this book” (p.2). Upon working out the hypocrisies and double standards, the crescendo of the work moves from theories about war to ultimately a justification for some terrorist attacks.

In his attempts to expose the lack of intellectual integrity, and so forth, Steinhoff asks several provocative questions about the conduct of both war and terrorist attacks. In turn, the reader is provided with a variety of controversial answers to issues like who is a legitimate target of an attack? When is war justified? Can terrorism be justified? The overarching theme guiding Steinhoff’s theory is that the jus ad bellum, the reason for entering a war in the first place, can never be divorced from jus in bello, how the war is fought. He argues that such a separation is only “analytical,” and in reality the justification for entering a war is often “dependent upon the way in which the war will most likely be conducted” (p.2).

Chapter One analyzes who has legitimate authority to use force. Steinhoff rejects the assumptions of just war theory that are rooted in Christian moral theology and instead takes a more liberal, or individualistic, perspective suggesting that it is not the state that has the authority for the legitimate use of force. Instead, the authority to start war is within each individual. This leaves open the possibility that one person acting under his/her own authority is all it takes to declare war. Steinhoff points out that if an unorganized fighter blows up an Israeli tank in the Gaza strip it is considered terrorism, but when the Israeli government retaliates it is “considered something different” (p.8). It is this sort of reality that leads Steinhoff to bring back the possibility of private wars, long ago rejected in the name of minimizing the number of wars conducted. The lack of regard for already established international norms may be seen as problematic to some. Steinhoff simply replaces violent crime with conducting an act of war. This argument completely overlooks the fact that, with the growth of the nation state after the treaty of Westphalia, the notion of sovereignty has yet to be eroded to the point where an individual can legitimately use force. The individualist perspective Steinhoff takes seems to lack modern historical backing. [*433]

Chapter Two is very brief and puts forward the argument that entering a war for a just cause is still not permissible if the right intentions are absent. For example, if the United States enters a region to stop genocide from taking place, “such an intervention would nevertheless be illegitimate if it were not carried out in order to prevent the genocide but rather in order to expand one’s own sphere of influence. This is true even if the genocide is indeed prevented by the intervention” (p.25). Furthermore, proportionality matters. Steinhoff suggests that questions of morality in war refer to questions of loss of lives, arguing it does matter how many people die because of the war versus how many people will be saved by actions to end it. Disproportionality occurs when “the moral loss is greater than the moral gain” (p.30).

Chapters Three and Four discuss identification of the innocent in conflict who are thus not a legitimate target for attack, as well as the “double effect” and propotionality in loss of life. Steinhoff starts by explaining the premise that innocents and non-combatants are given immunity in armed conflicts. In other words, these individuals are not to be attacked. However, Steinhoff explains, although innocents and non-combatants are excepted from intentional killing, the laws of war currently allow the military to carry out operations in which those same innocents and non-combatants may be killed or harmed accidentally. This unfortunate side effect of war, or collateral damage, is considered to be acceptable. Steinhoff spends a considerable amount of time addressing the double effect concept, which goes back to St. Thomas Aquinas and the Catholic church’s need to justify war in light of the fact that the teachings of Jesus were about peace and pacificsm (p.35).
The double effect theory allows for actions to occur that have expected negative results when the intentions are good. The predictive negative effects are not desired and the negative effect is not a means to an end for any goal by the agent conducting the action in question (p.34). After a prolonged explanation as to how it is irrelevant if an innocent is killed by accident or intentionally in pursuit to one’s end, Steinhoff concludes that the doctrine of double effect itself is nothing more than an attempt to soothe the consciences of those responsible for killing innocent non-combatants.

The long discussion on the ethics of war presented in the first four chapters is the backdrop of the fifth and final chapter on the ethics of terrorism. Steinhoff notes that terrorism is a term used to describe the acts of others rather than one’s own actions. He further notes that the term has a clear negative connotation. Yet, Steinhoff suggests that acts of terrorism – which no one applies to their own deeds, but to acts which Steinhoff admits are committed by those with “a refusal to be bound by such rules of warfare and codes of conduct” (p.110) – can still be justified.

In the end, Steinhoff proposes to define terrorism as “the strategy of influencing the behaviour, perceptions, beliefs or attitudes of others than the immediate victims or targets of its violence” (p.122). Terrorism consists of a series of attacks, and terrorist acts “are such severe attacks on innocents or their property that they are part of such a strategy” (p.122). Justification comes in [*434] the form of narrowing who counts as a non-combatant or an innocent civilian. According to Steinhoff, being a civilian is not sufficient to qualify as an illegitimate target for a rebel group. If you are a voter, you may be considered guilty of the policies your country implements by virtue of your vote. And if a terrorist attack can be viewed as retaliation for policies of your government, then a terrorist attack may be considered self defense, or at least justifiable. As Steinhoff explains, when a state becomes victim to a terrorist attack, “it certainly cannot dismiss out of hand the question of motivation as irrelevant before it claims the right to take a bellicose countermeasure” (p.136).

It should be mentioned that Steinhoff concludes, in the end, by acknowledging what might be understood as the underlying theme of the book, with a stinging critic of American foreign policy. Steinhoff suggests that the US “war on terrorism, waged by state terrorists and with terrorist means, does not have as its object universal values, but rather the attainment of undisputed power” (p.137).

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© Copyright 2008 by the author, Amanda DiPaolo.

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CIVIL WAR AND THE RULE OF LAW: SECURITY, DEVELOPMENT, HUMAN RIGHTS

by Agnès Hurwitz with Reyko Huang (eds). Boulder, London: Lynne Rienner Publishers, 2008. 351pp. Cloth $59.95. ISBN: 9781588265319. Paper $24.50. ISBN: 9781588265074.

Reviewed by Daniel C. Kramer, Political Science-Economics-Philosophy Department, College of Staten Island CUNY. E-mail dkramer1 [at] si.rr.com.

pp.427-431

In recent years, many actors in the international realm have become interested in implementing the “rule of law” in societies torn by conflict. The United Nations has recently become enthusiastic about the subject: in 2004 its Secretary General released a report dealing with the problem of how to bring about the rule of law in lands riven by or newly emerging from strife. The volume under review is the product of the Rule of Law Project of the International Peace Academy and contains twelve essays written by academics, NGO and UN staffers, a lawyer, and an official (the editor, Agnès Hurwitz) in the Office of the President of the International Criminal Tribunal for the Former Yugoslavia.

Chapter 1, written by Hurwitz, is an overview of the volume. She notes that programs seeking to institute the rule of law in nations that have recently suffered from civil war have one or more of three broad goals: bringing about security, protecting human rights, and/or spurring economic development. She also asserts, and here she is in line with just about every contributor to the book, that these programs have rarely achieved their objectives.

Obviously, any work dealing with the “rule of law” has to define this rather vague concept, and Rama Mani devotes Chapter 2 to this very task. Mani contends, accurately, that though there are numerous definitions. These can be separated into two broad categories, to which she (and other scholars) refer as the “minimalist” and the “maximalist” conceptions, which mirror, respectively, legal positivism and natural law. As she clearly states the matter, both conceptions require that “laws be general, promulgated, clear and open, noncontradictory, prospective, constant and relatively stable, and possible, and that official action be congruent with declared rule” (p.25). This is all that the minimalist position demands. However, the maximalist position adds that the rule of law requires, as well, that there be equality before the law and respect for human rights. She rightly notes that the minimalist view is consistent not only with liberal democracy, but also with, e.g., “a theocracy or monarchy that follows established and regular procedures” (p.24). This reviewer would like to add that a system of state-required racial segregation is also consistent with the rule of law in the minimalist sense, if the laws mandating the apartheid are published, non-retroactive, clear, and consistently enforced by civil servants and judges. Obviously, such a regime would violate the maximalist view, and Mani strongly favors the use of the maximalist view by organizations and individuals seeking to [*428] restore health to nations that have been afflicted by massive internal violence.

Chapter 3, by Balakrishman Rajagopal, contends that overemphasizing the concept of the rule of law as a solution to the problems of such nations can blind us to the fact that the three major objectives of the rule of law – as articulated in the title of the book and by Hurwitz in Chapter 1 – can contradict one another, that often trade-offs have to be made among these goals. Balakrishnan, without explicitly making the point, adopts a “minimalist” definition of the rule of law, declaring that it is a procedural doctrine that emphasizes economic development over human rights which can threaten the attainment of the latter by leading to concentration of wealth in a few hands. Moreover, he points to the example of present-day China to indicate that creation of clear property and contract rights demanded by the rule of law is not always necessary to rapid economic development. As for the security sought by imposition of the rule of law, he points out that the “war on terror” in many nations has diminished rather than promoted human rights. To strengthen his point he could have brought up the fact that the American government has since September 11, 2001, harshly interrogated (tortured?) and detained without trial hundreds of individuals suspected of having ties to terrorism.

Chapter 4 by Chandra Lekha Sriram discusses the use of the rule of law as a tool for conflict prevention, as distinguished from its being used to help a nation get on its feet after a civil war. She admits that it is mainly organizations such as the World Bank and the UK’s Department for International Development that have thought about this problem, and that on the whole there has been much less concern with it than about post-conflict recovery. She is aware that pre-conflict prevention is difficult to accomplish. One method of doing this for this is to deny aid to a country that, for example, refuses to reform its judiciary or delete unfair provisions from its laws or constitution. But a nation, though fragile, is always free to turn down the aid. In fact, she accurately says at the end of her essay that “governments not emerging from conflict….are unlikely to permit international interference of the sort so common in peacebuilding”.(p. 85)

Chapter 5 by William G. O’Neill then discusses various instances where peacekeeping groups such as UN agencies or NATO faltered, at least at first, when attempting to bring the rule of law to post-conflict societies. For example, the UN Interim Administration in Kosovo (UNMIK) was slow in stopping looting and gang crime after the NATO bombings of 1999 and decided to have those accused of war crimes tried by local judges. It was not until UNMIK realized that Serbs could not get fair trials in Kosovo courts that it decided to use foreign judges and prosecutors for certain sensitive cases. O’Neill feels that the UN and other peacekeeping groups might have to thoroughly train or retrain local police forces and judges and improve prisons, get local actors involved in rule of law reform, and educate the public on the importance of implementing the rule of law. One obvious way of providing post-conflict nations with elements of the rule of law is to draft model codes for criminal law, criminal procedure and police powers and duties, which, as Colette Raush and [*429] Vivienne O’Connor note in Chapter 6, has been done by the US Institute of Peace and the Irish Centre for Human Rights in cooperation with two units of the United Nations. As the authors rightly point out, these codes probably cannot be transferred in their entirety in any given nation. They will be rejected and thus useless if they completely bypass the country’s existing legal system or ignore the advice of local experts. And they will also not have much of an impact if adequate translators and/or judicial personnel are lacking there.

Simon Chesterman’s Chapter 7 discusses the concept of “ownership,” a term much used by those who study rule of law and other reforms in poor nations or in those recently plagued by civil war. Contrary to what this reviewer thought upon reading the title of the chapter, “ownership” as used in this context does not mean the seizure of property (e.g., oil fields) by the foreign nations or groups involved in implementing the reforms. Rather, it involves convincing the citizens of the aided country that the rule of law is not being imposed on them but is in a sense their “own” policy. Chesterman rightly points out the vagueness of the term “ownership” and says that it can be broken down into six senses. For example, it can refer to mechanisms for having local actors participate in decisions, holding international officials accountable, and taking into account local circumstances and culture, and the like. However, it is also important that power not be transferred too quickly: UNMIK’s unhappy experience with initially using local judges for trying persons accused of war crimes is one example demonstrating this point. Chapter 8 by Pablo de Greiff studies the problem of reparations to victims of human rights abuses. Reparations, he argues, are a form of recognition owed to citizens whose rights have been violated and can also build trust among citizens, a trust that is needed if the legal system is to function well. He lists several characteristics that a reparations effort can feature. For example, it can cover a small or a large number of beneficiaries, make restitution for just one crime or for several crimes, grant the beneficiaries a lot of money and/or other benefits or a minimal amount of such, and so on. De Greiff is aware of the related problem of punishing individuals who committed the rights abuses but intentionally ignores this issue because much more attention has been paid to it than to that of reparations for those seriously injured by their efforts.

Chapter 9 by Agnès Hurwitz treats of the relationship between the rule of law and housing, land and property (HLP) arrangements. She declares that HLP conflicts not only can bring about civil war but can make the recovery from the struggle more difficult. The rule of law can alleviate these quarrels in several ways. For example, it can reduce severe HLP inequalities, provide fair ways of settling HLP disputes, restore property to those who have been unfairly deprived, and provide security of tenure. Even the World Bank, she points out, recognizes the need for some sort of HLP redistribution where massive inequalities and serious rural poverty prevail. She adds that some HLP programs designed to restore land to those from whom it was wrongly taken have been implemented half-heartedly at best. However, she does realize that HLP restitution programs create a dilemma [*430] where the current occupants have lived there in good faith for years. Chapter 10 by Madalene O’Donnell treats corruption as a threat to orderly recovery of a society from conflict. Corruption, she rightly points out, “undermines both state effectiveness (the ability to govern) and state legitimacy (the recognition of the right to govern)” (p.227). Moreover, she accurately says, corruption can slow growth by reducing investment and the amount of money available for health and education. Admittedly, she declares, anti-corruption efforts can have deleterious effects. They may, for example, lead to military takeover with attendant human rights abuses. Various remedies for corruption are suggested, and the failure of anti-corruption efforts in, e.g., Liberia, Afghanistan, and the Democratic Republic of the Congo are depicted. She concludes on a note that is a bit more optimistic: “even in postconflict settings, addressing corruption is emerging as a fundamental and early priority that is strongly supported by local populations” (p.251).

Reyko Huang’s Chapter 11 is entitled “Counterterrorism and the Rule of Law.” She truthfully notes that the rule of law cannot prevail in a state plagued by significant terrorist activities. Her focus is on the steps the United Nations and other international bodies have taken to combat terrorism. For example, the UN Security Council, soon after 9/11/2001, obliged member states to “prevent, suppress and criminalize the financing of terrorism; freeze terrorists’ financial assets,” among other things (p.267), and ordered that they to report back to a newly-established Counter-Terrorism Committee on the extent to which they were meeting these obligations. At first, all states reported, but soon few did. Huang admits that the role of the UN in this area is limited, because it is mainly up to individual countries to take steps such as these. She rightly worries that antiterrorist efforts can lead to violations of human rights, including the labeling of minority groups as pro-terrorist and the American incarceration of prisoners in various known and unknown detention centers.

Agnès Hurwitz sums up the preceding chapters in her concluding essay. She repeats the thesis that the goals of security, development and human rights protection that the rule of law is supposed to promote sometimes are in conflict. Thus, although she obviously feels that the rule of law ought to safeguard human rights, it cannot simply be conceived of as coterminous with human rights protection. But as a “maximalist” she feels that programs ought to seek to achieve more than “technical outcomes”(p.293). Finally, she sensibly adds that those charged with implementation in a particular country should have some familiarity with the local culture.

CIVIL WAR AND THE RULE OF LAW is a fine effort. As seen, it makes many perceptive points. It provides political scientists and lawyers with a great deal of information that is probably new to most of us and should stimulate thought about the problems with which it deals. This is true even for those chapters, e.g., Chapter 7 on “ownership,” that hardly mention the rule of law. Moreover, the collection realistically avoids much optimism about the question of whether the rule of law can be introduced reasonably quickly in states emerging from internal conflict, and depicts the possible inconsistencies [*431] among the three goals noted in the above paragraph.

Of course, the volume is not without flaws. The treatment of individual countries in each chapter tends to be too brief. Stromseth, Wippman and Brooks (2006) spend considerable time on rule of law problems in places like Kosovo and East Timor, and in this respect is more absorbing. Looking at specific sections of the book under review, Chapter 4 on Prevention and the Rule of Law could at least have asked whether international military action against a nation totally ignoring the rule of law might not be the best way to import it there. Chapter 6 on “ownership” condemns international authorities in Bosnia for firing a president of Republika Srpska because he refused to accept a moderate prime minister. The author seems to feel that this ignored the Republic’s need to be self-governing. But surely the international actors would have been negligent had they not opposed the president’s step, which threatened to make it less likely that the Republic would peacefully accept its status as an autonomous yet integral part of Bosnia-Herzegovina. Chapter 8 defends reparations as recognizing the citizenship of the victims and at creating trust among citizens. These points certainly are true but really cannot be used to defend the massive reparations paid by Germany to Israel as the heir to victims of the Holocaust, the majority of whom were not German citizens. Chapter 9 plays down the importance of awarding and registering titles to property as a tool for economic development. But common sense would say that a farmer is likely to grow more efficiently if assured that the land will remain in his/her hands. Chapter 10 draws a distinction between administrative (“petty”) corruption and “grand” corruption, such as illicit influence over legislation. The author’s arugment is not convincing on the need to make this distinction. Why is bribing a legislator necessarily worse than bribing a chief of police? Chapter 12 ought to have defined and/or illustrated the “technical outcomes” about which the author seems to be skeptical. Despite these quibbles, CIVIL WAR AND THE RULE OF LAW is an impressive work that could be used in upper-division and graduate courses on peacemaking or international organization..

REFERENCES:
Stromseth, Jane, David Wippman, Rosa Brooks. 2006. CAN MIGHT MAKE RIGHTS?: BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS. Cambridge and New York: Cambridge Univ. Press.

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© Copyright 2008 by the author, Daniel C. Kramer.

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ANSWERING FOR CRIME: RESPONSIBILITY AND LIABILITY IN THE CRIMINAL LAW

by R.A. Duff. Oxford: Hart Publishing, 2007. 342 pp. Paper. $95.00/£45.00. ISBN: 9781841137537.

Reviewed by Adil Ahmad Haque, Assistant Professor of Law Designate, Rutgers School of Law – Newark. Email: adil.haque [at] aya.yale.edu.

pp.423-426

Every account of the structure of criminal law involves an attempt to explain the content of and relationship between four basic concepts: wrongdoing, responsibility, fault, and punishment. The most ambitious accounts focus on a single concept in terms of which the others can be understood. ANSWERING FOR CRIME contains illuminating discussions of a variety of discrete issues, ranging from the relationship between attacks and endangerments to the difference between strict responsibility and strict liability, to the justification of mala prohibita crimes. But the greatest contribution of this marvelous book lies in Antony Duff’s elegant and arresting vision of criminal law’s conceptual foundation.

Duff argues that the central concept in criminal law is responsibility, understood as the legal demand to provide a rational explanation for our illegal behavior. The criminal trial is not merely an instrument for identifying dangerous individuals; it is a communicative process by which individuals are made to account for their actions to their community. The commission of criminal wrongdoing is that which the law requires us to explain; the denial of fault, through justification or excuse, is the form such an explanation must take; and punishment is the consequence of an unsuccessful explanation.

Duff is not the first criminal law scholar to understand responsibility in terms of accountability or answerability for criminal acts or to identify responsibility as a precondition for fault or liability (Gardner 2003). Nor is Duff the first to argue that to deny responsibility is generally to claim that there is no rational explanation for the offense, or that we currently lack the capacity to provide such an explanation. But Duff is the first to make substantial use of a triadic conception of responsibility according to which agents must answer for their acts to a particular audience. One feature of the triadic account is that it identifies, as denials of responsibility, bars to trial based on various features of the defendant (official and diplomatic immunity), the alleged conduct (double jeopardy, lack of jurisdiction, expiration of a statute of limitations), the prosecution’s case (lack of probable cause), or official misconduct (estoppel, entrapment). On Duff’s view, denials of responsibility include claims that the prosecuting authority has no right to call us to account in the first place.

A second feature, and a more interesting one, is that the nature of the prosecuting authority places certain internal constraints on the substantive scope of criminalization. Duff argues that, in a [*424] democratic polity, the criminal law speaks in the name of the public, and individuals are properly held responsible to the public for the wrongs that properly concern the public. This contrasts with monarchical, authoritarian, and theocratic polities in which individuals are responsible to the ruler, the state, or religious authorities. However, in a liberal polity, respect for individual autonomy and private associations requires that the only moral wrongs that properly concern the criminal law are those related to attacks upon or endangerment of the defining aims and values of the polity. This contrasts with perfectionist polities in which all moral wrongs properly concern the public.

There is a sense, then, that responsibility to is logically prior to responsibility for, for although there can be liberal monarchies and perfectionist democracies, once we identify the type of polity to whom individuals are held criminally responsible we can infer which values are to be promoted, protected, and expressed through the criminal law. So although Duff is correct to say that the bare concept of ‘the public’ cannot fix the scope of criminalization, it seems that particular political conceptions of the public can, albeit with all the indeterminacy of the aims and values which the political conception identifies.

One might think that all this is just a roundabout way of saying that the criminal law of a liberal society should reflect liberal values, but this latter formulation contains an equivocation between the enforcement of liberal morality and the restrictions of political liberalism. For instance, Michael Moore is a legal moralist who believes that all moral wrongs properly concern the criminal law, but who also believes that most impersonal moral norms (for instance regarding consensual sexual relations) simply do not exist (Moore 1998). By contrast, Duff rejects legal moralism and argues that we need not answer to the polity for genuine moral wrongs if the values they implicate, even if real and important, are not among the defining values of the polity. For Moore, autonomy and privacy are countervailing moral values that may override the duty to punish wrongdoing; for Duff autonomy and privacy are political values that determine which moral values the state should even contemplate enforcing through the criminal law.

Duff’s triadic account of criminal responsibility can be seen as part of a broader ‘relational turn’ within practical philosophy as a whole. Moral philosophers seeking to break the stalemate between agent-neutral views such as consequentialism and agent-relative views such as Kantian deontology and virtue theory have tried to recapture the interpersonal aspect of morality. “What we owe to each other” could describe the content of morality, understood in terms of directed duties to others and corresponding rights against others (Kamm 2007), or the justification of moral principles to those affected by them (Scanlon 1998). It has even been suggested that the rational authority of morality itself is grounded in relationships of authority (to make claims or demands on others) and accountability (for our responses to the complaints and grievances of others) (Darwall 2006). Within criminal law theory, a more humble attempt has been made to articulate a relational account of [*425] retributive justice according to which an offender’s violation of a victim’s right gives rise to a duty of the punishing agent, owed to the victim, to punish the offender (Haque 2005).

There is a difficulty lurking here, however, because Duff seems to embrace relational accounts of wrongdoing, responsibility, and punishment involving different relata. Duff insists that criminal wrongs are primarily wrongs to their individual victims and not to the public, and seems to agree elsewhere that punishment is owed primarily to the victim rather than to the offender (Marshall and Duff 1998, p.9), yet maintains that offenders are responsible not to victims but to the polity as a whole. Why, instead, should offenders not be responsible to their victims for the wrongs done to them and for which they may be punished? For centuries, both the common law and Islamic law relied on private prosecution by victims or their families, although in both systems it was left to judges or juries to determine whether offenders had successfully answered the charges against them. What justifies our societies in controlling the criminal process from start to finish?

Duff’s reply is that our polities are not only liberal and democratic but also communitarian. As communitarians we identify and stand in solidarity with our members when they are wronged. As liberals we respond only to those wrongs which implicate our defining values, leaving individuals to respond to other wrongs informally or through private law. Shared membership in a common civic enterprise gives the community sufficient interest both in the wrongs its members commit and the wrongs its members suffer to demand accountability for those wrongs. It is in this sense, Duff argues, that wrongs to victims are also wrongs against the polity as a whole, wrongs which the polity may prosecute and punish on behalf of the victim or on its own behalf if the victim is unwilling or unable to do so.

Just punishment, however, requires both responsibility and fault on the part of the offender. Duff’s account of criminal responsibility informs his account of fault in at least three ways. First, criminal offenses and defenses must be defined in such a way that the offense alone specifies a public wrong for which we can be held responsible by the polity; for this reason, wrong-making features of the offense may not be converted into defense elements simply to ease the evidentiary burden on the prosecution. Second, the doctrine of justificatory intent, which states that a defendant can make out a justification defense only if the considerations that justified her conduct also motivated her conduct, can be grounded in Duff’s position that criminal responsibility demands that individuals provide a rational explanation rather than a post-hoc rationalization for their illegal conduct. Finally, excuses that compare a defendant’s defective conduct with the conduct expected of a reasonable person implicitly require individuals to display a certain level of commitment to the polity’s basic values on pain of public condemnation.

There is every reason to expect that Duff’s triadic account of criminal responsibility and his conception of public wrongdoing will quickly and warmly be embraced by the community [*426] of criminal law theorists. Many will also couch their views regarding justification and excuse within Duff’s framework. It is true that, of the four central concepts with which we began, punishment receives the briefest and most oblique treatment. Some readers may wish that Duff had done more to integrate this well-known theory of punishment into his overall account, and more fully explained why the failure to provide a satisfying account of one’s wrongdoing should result in coercion and
deprivation (Duff 2001). In particular, some may feel that Duff has not yet fully explained how the public’s interest in wrongs to individual victims can be sufficiently strong to permit prosecution and punishment of offenders without the victim’s consent yet sufficiently weak that the public does not displace the victim as the source of the underlying claim that prosecution and punishment seeks to vindicate. These are important questions, but it would be ungrateful in the extreme to ask more from Duff’s magnificent book than it already provides.

REFERENCES:
Marshall, S.E., and R.A. Duff. 1998. “Criminalization and Sharing Wrongs.” 11 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE 7-22.

Gardner, J. 2003. “The Mark of Responsibility.” 23 OXFORD JOURNAL OF LEGAL STUDIES 157-171.

Haque, A.A. 2005. “Group Violence and Group Vengeance: Toward a Retributive Theory of International Criminal Law.” 9 BUFFALO CRIMINAL LAW REVIEW 273-328.

Darwall, S. 2006. THE SECOND-PERSON STANDPOINT: MORALITY, RESPECT, AND ACCOUNTABILITY. Harvard: Harvard University Press.

Duff, R.A. 2001. PUNISHMENT, COMMUNITY, AND COMMUNICATION. Oxford: Oxford University Press.

Kamm, F.M. 2007. INTRICATE ETHICS: RIGHTS, RESPONSIBLITIES, AND PERMISSIBLE HARM. Oxford: Oxford University Press.

Moore, M. 1998. PLACING BLAME: A GENERAL THEORY OF CRIMINAL LAW. Oxford: Oxford University Press.

Scanlon, T.M. 1998. WHAT WE OWE TO EACH OTHER. Harvard: Harvard University Press.

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© Copyright 2008 by the author, Adil Ahmad Haque.

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CONSTITUTIONALIZING SECESSION IN FEDERALIZED STATES: A PROCEDURAL APPROACH

by Miodrag Jovanović. Utrecht, The Netherlands: Eleven International Publishing, 2007. 246pp. Hardback. €65.00/$114.00. ISBN: 9789077596272.

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

The fall of the Berlin Wall and the subsequent break-up of the USSR were celebrated by many in the Western world. At long last, the UN, free from its Cold War shackles, could live up to its post-World War II billing of self-determination and democracy for all peoples. One commentator, Francis Fukuyama, even published a book entitled THE END OF HISTORY AND THE LAST MAN; such was the triumphant feeling of those early Nineties. Yet fifteen years on and already such thinking appears supremely naïve. But why?

Now there is talk of a new cold war. Edward Lucas, author of THE NEW COLD WAR: HOW THE KREMLIM MENACES BOTH RUSSIA AND THE WEST, tells of the resurgent rivalry between East and West. Georgia is a case in point. Will the former Soviet satellite and its breakaway province of Abkhazia become the new cold war frontline, between NATO and the Russian Federation? Even before Lucas’ book, Norman Podhoretz had introduced us to WORLD WAR IV: THE LONG STRUGGLE AGAINST ISLAMOFASCISM. The most recent development in secessionist politics appears to have only added to the long war theses on offer. As a result, a pertinent question needs to be asked: Is Kosovo Islamism’s New Beachhead?

If ever a title traversed law and politics so effortlessly – making it a more than suitable candidate for THE LAW AND POLITICS BOOK REVIEW – it is Miodrag Jovanović’s CONSTITUTIONALIZING SECESSION IN FEDERALIZED STATES: A PROCEDURAL APPROACH. The success of secession conflicts will be, in the main, determined by international politics, realpolitik in other words. Yet since international recognition is of fundamental importance to secessionist movements, the domain and philosophy of international law is never too far away (p.xii). Enter Jovanović. In view of that, CONSTITUTIONALIZING SECESSION IN FEDERALIZED STATES is required reading for law graduates just as much as it is for political science students.

Miodrag Jovanović is certainly no Fukuyama or Podhoretz, though he tackles the history, law and politics of secession in a similarly authoritative fashion. All the same his thesis remains that much more complex and less easy to generalize (not to mention less hyperbolic) than that of Messrs. Fukuyama or Podhoretz.

“Instruments of federalism are often perceived as the only adequate substitutes for the full-statehood status [*421] of sub-state regions, but, paradoxically, prospects for a persistent and credible secessionist politics are much higher especially within the polities that have already adopted a federal structure” (pp.201-202).

This is where Jovanović comes in with his proposal that the constitutionalization of secession be introduced in federalized states.

Unlike his contemporaries, Jovanović is sympathetic to secession and secessionists, yet remains highly critical of the internationally brokered dissolution of federalized states (Chapter Three, “The Badinter Borders principle and the International Right to Secession”: pp.83-164). Indeed, it is through his sympathy for secession that he devotes himself unequivocally “to the task of defending the constitutionalized right to secession” (p.197) and ultimately, CONSTITUTIONALIZING SECESSION IN FEDERALIZED STATES.

But would an adequate constitutional response to secessionist politics prevent the triggering of interference of international actors, be they Eastern or Western? This is just one of the many questions posed by Jovanović. And the answer(s) make for an interesting read.

“To support the adoption of a constitutional institutional response to secession politics in states in which this politics has the potential to be most effective, might look like rubbing salt in a wound. However, leaving the exit option of federal units completely legally unregulated seriously increases the threat of the involvement of international actors in a potential secession crisis” (p.xvii).

This is Jovanović’s chief bugbear, given the absence of such a rule could lead to events similar to those witnessed in Yugoslavia, where a central state is not the sole master of its internal dynamics. This ought to be of great concern not only for today’s, but tomorrow’s, policymakers who inhabit a post-Badinter era, and the presiding impression “that the internationally recognized statehood of a federal state is somehow less solid than that of a unitary state” (p.202).

At the book’s end, the author acknowledges the rare occasion an academic study impacts the design of a legal or political institution, stressing that his study “certainly does not have that pretension” (p.203). This is unduly modest; in fact it digs far deeper and unearths far more than this recusatio would suggest. That there is arguably more yet to be uncovered (think power politics more so than case studies) is not a criticism of this book, but testimony to the comprehensiveness (historically, legally and politically) and complexity of the terrain its author has mapped out and made his own. Bravo.

Be sure, Jovanović’s volume is less general and more exhaustive than Marcelo G. Kohen’s (ed). SECESSION: INTERNATIONAL LAW PERSPESCTIVES, and arguably more specialised than Natalia Loukacheva’s THE ARTIC PROMISE: LEGAL AND POLITICAL AUTONOMY OF GREENLAND AND NUNAVUT. (SECESSION and THE ARCTIC PROMISE are two highly recommended texts in as many years.) [*422]

The hardback consists of five near enough equally-weighted chapters (as are the introduction and quasi conclusion) ranging from theory and uti possidetis to international practice and the ICJ decision in the Frontier Dispute case, to comparative case studies (from ‘First Generation Federations’: pp.49-64 to ‘Historic Examples of Constitutional Law on Secession’: pp.116-136 and ‘Present-Day Examples of Constitutional Law on Secession’: pp.136-148). Such case studies are fundamental in taking us closer to some standards and principles that in the future might serve as normative guidelines. A plausible procedural framework (as per the subtitle) rounds off a truly all-encompassing text (pp.183-195):

1. Right to Initiate the Secession Procedure
   
2. Determining Conditions of the Campaign and the Exact Date of a Referendum
   
3. Clarity of the Referendum Question
   
4. Eligibility to Vote
   
5. Threshold for Referendum Success
   
6. Accurate Establishment of the Referendum Result
   
7. The Waiting Period Between Two Secession Procedures

Approximately nine hundred footnotes together with a twenty-page bibliography complement Jovanović’s thesis tremendously, rendering CONSTITUTIONALIZING SECESSION IN FEDERALIZED STATES an incredible resource. (Even if, in parts, it reads like a rather elongated, over-quoted book review itself.) So much so, that no serious commentator of secession law and politics would be without a copy, especially when considering recent events in Abkhazia and Kosovo.

REFERENCES:
Fukuyama, Francis. 1993. THE END OF HISTORY AND THE LAST MAN. New York: Penguin Books.

Kohen, Marcelo (ed). 2006. SECESSION: INTERNATIONAL LAW PERSPECTIVES. Cambridge and New York: Cambridge University Press.

Loukacheva, Natalia. 2007. THE ARCTIC PROMISE: LEGAL AND POLITICAL AUTONOMY OF GREENLAND AND NUNAVUT. Toronto and London: University of Toronto Press.

Lucas, Edward. 2008. THE NEW COLD WAR: HOW THE KREMLIM MENACES BOTH RUSSIA AND THE WEST. London: Bloomsbury Publishing.

Podhoretz, Norman. 2007. WORLD WAR IV: THE LONG STRUGGLE AGAINST ISLAMOFASCISM. New York: Doubleday Books.

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

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THE INNOCENCE COMMISSION: PREVENTING WRONGFUL CONVICTIONS AND RESTORING THE CRIMINAL JUSTICE SYSTEM

by Jon B. Gould. New York: New York University Press, 2008. 320pp. Cloth. $39.00. ISBN: 9780814731796.

Reviewed by Priscilla H. M. Zotti, Department of Political Science, The United States Naval Academy. Email: zotti [at] usna.edu.

pp.416-419

THE INNOCENCE COMMISSION recounts the creation of Virginia’s Innocence Commission and the search for justice in a dozen cases involving wrongful convictions. The book is both a primer and how-to for those activists wishing to create such an entity and a discussion of larger issues of resulting errors in the criminal justice system.

The book is divided into five sections. Chapter One provides a history of wrongful convictions and the development of the responses by states, and in particular Virginia. Chapter Two discusses the creation of the Innocence Commission of Virginia (ICVA). The main focal point of the book lies in Chapters Three and Four which describe the likely source of wrongful convictions and the state response. Gould explains the main sources of wrongful convictions and the remedies that states can and do provide. Finally, Chapter Five updates research on wrongful convictions and sets out a strategy for ongoing criminal justice reform. Author Jon B. Gould gives currency to the problem, providing the reader with both an agenda and strategy for future reform.

The book begins with the predicate that the system of criminal justice should be able to accurately distinguish between the accused that is innocent and one that is guilty. Furthermore, there is a difference between factual innocence and legal innocence which is difficult for many to grasp. The issue is not only one that is personal for the individual accused and convicted wrongfully. As a societal issue, it undermines our sense of justice; it costs the taxpayers in terms of compensation and post-conviction litigation. At the heart is the very legitimacy of the criminal justice system. Are we willing to say that a system run by humans will inevitably have mistakes, or is it reasonable to place as many safeguards in the system as practically possible? If the cost to prevent such problems is a reasonable solution, such as videotaping confessions, in the long run most of these measures are embraced by law enforcement and are seen as a practical and logical step. The justice system is fraught with safeguards and technicalities that seemingly prevent most of the egregious errors. Still, considering the possibility of error and ways in which to alter it are responsible ways of running any complex decision making system.

Errors inevitably occur, and all systems become better ones by learning what causes the errors and how best to prevent them. Structural engineers study failure and why buildings collapse or are structurally compromised. Medical review boards consider medical mistakes [*417] and factors that contributed to them. Transportation experts look to understand why accidents occur and what can be done to prevent them in the future. Gould argues that the criminal justice system should take a cue from these other professional entities and embrace the retrospective that these commissions and boards provide.

One of the themes Gould echoes early on is the position of Barry Scheck and Peter Neufeld, the authors of ACTUAL INNOCENCE. States should stop wasting resources opposing exoneration claims and invest in preventive measures to minimize wrongful convictions. The investment in preventative justice gleans information that is useful in understanding the problem more fully. How do wrongful convictions occur? What measures are feasible to put in place both to lessen the volume of wrongful convictions and increase safeguards for future litigants?

The author finds the Virginia experience useful in discussing the larger issues of wrongful convictions and remedies and reforms to the criminal justice system. This portion of the book will likely be of less interest to scholars who want to understand the ramifications of DNA in the legal system, the death penalty or broader issues of justice and fairness. Nevertheless, the lessons learned in creating the ICVA are valuable to policymakers, activists and lawyers on both sides of the docket. Still some policymakers struggle with the idea of review or innocence commissions since the system has a host of safeguards already in place.

The book first describes the history of wrongful convictions. Whereas a generation ago Americans would find it incredulous that innocent individuals were convicted, a 2001 Harris Poll found that 94 percent of American believe that innocent defendants are sometimes convicted and even executed by the state. The most common components of erroneous convictions center on eye witness testimony, false confessions, and prosecutorial excess and faulty circumstantial evidence. Most of the known wrongful convictions occur in rape and murder cases, a small percentage of the criminal case load. The number of errors is quite small when considering the volume of cases handled annually. However, the development of DNA as an investigative tool and the introduction of its findings into the criminal justice system have illuminated the problem of wrongful convictions. DNA is used regularly both to include and exclude suspects. As of 2005 there had been more than 340 exonerations nationwide utilizing DNA evidence.

Gould then discusses a dozen wrongful conviction cases from Virginia. He gleans from each of them one or more of the nine primary factors identified by the ICVA that contribute to wrongful convictions: mistaken identification and eyewitness testimony, identification procedures such as photo arrays and lineups that are skewed and suggestive, “tunnel vision” by law enforcement early on in an investigation, outdated laboratory testing techniques, ineffective legal assistance, failure of prosecutors to disclose exculpatory evidence, defendants with mental defects, inconsistent statements by the defendant, and finally a lack of a review process post conviction. Gould discusses each of these factors briefly and indicates reforms that can be put into place, some [*418] more easily than others. While each of these receives brief treatment, it is fascinating to contemplate what small changes could do to the error rate in convictions.

Nationally three quarters of documented wrongful convictions were based on, in part, mistaken identifications by supposed eye witnesses. For example, eyewitness misidentification is a leading contributor to wrongful conviction in rape cases. Particularly cross-racial identification is a problem, accounting for half of rape exonerations, despite the fact that rape of white women by black men account for less than ten percent of reported cases. Multiple person line ups as opposed to single person “show ups,” as well double blind procedures where police who are conducting a photo array or lineup do not know the identity of the suspect, are easily instituted procedures that could reduce the influence, subtle or not, on eyewitness identification. Consider the impact of the following: Witnesses are told that the suspect may or may not be in the photo array or lineup; they are not obligated to make an identification; the officer in charge may or may not know the identity of the suspect; and all eyewitness procedures are recorded. These changes are tremendously effective in reducing the misidentification by witnesses.

Gould underscores the synergistic effect of a variety of professionals who have realized that safeguards against wrongful convictions are a necessary part of the criminal justice system. He considers the Ryan Commission recommendations in Illinois, the American Bar Association, the ICVA and other criminal justice reforms. There appears to be a growing climate for reform. The most popular recommendation – electronically recording custodial interrogations, is a good example. By 2005, more than 300 police and sheriff offices in 43 states record full custodial interviews in a variety of felony arrests. Furthermore, police departments support the practice.

Innocence Commissions are likely to go the way of the MIRANDA warnings. Initially the reaction to MIRANDA v. ARIZONA was one of shock and backlash. The courts in 1966 appeared to some to be coddling criminals and handcuffing police. Police chiefs denounced MIRANDA as unworkable, but by 2000 in DICKERSON v. UNITED STATES, MIRANDA was viewed as an essential and symbolic safeguard, which professionalized the police rather than than providing a windfall to the accused. While the idea of safeguards to wrongful convictions may seem excessive to some, they may become standard procedure in the near future. Particularly with regard to the death penalty, these safeguards promise to serve justice and fairness when the cost of punishment is severe and irreversible.

Gould argues that states should provide this resource and not depend on private assistance. States should institutionalize post-conviction review – much like they do in Canada and the United Kingdom. This is not just a legal issue, but a societal and moral one.

It is perhaps unrealistic to say that the system MUST be error free but it is equally unrealistic to argue that errors do not occur and the system should not engage in post conviction review. [*419]

Sadly, it is unlikely that wrongful convictions will cease to occur. However, it is possible to reduce the rate of errors and the likelihood that questionable evidence or tactics will be used in prosecutions. THE INNOCENCE COMMISSION provides the reader with both the practical advice of creating and establishing reform as well as a very interesting discussion of errors and workable solutions to minimize them.

REFERENCES:
Scheck, Barry, Peter Nuefeld, and Jim Dwyer. 2000. ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED. New York: Doubleday.

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

DICKERSON v. UNITED STATES, 530 U.S. 428 (2000).

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© Copyright 2008 by the author, Priscilla H. M. Zotti.

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COMMON LAW THEORY

by Douglas E. Edlin (ed). New York, New York: Cambridge University Press, 2007. 262pp. $80.00/£45.00. ISBN: 9780521846424.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Strauber [at] Grinnell.edu.

pp.409-415

COMMON LAW THEORY, a volume in the Cambridge Studies in Philosophy and Law, consists of eight essays written by a group of international scholars addressing three central themes of common law jurisprudence: rules, reasoning, and constitutionalism. The front page asserts that the essays “will be valuable to lawyers, philosophers, political scientists, and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts, and the relationship of the common law tradition to other legal systems of the world.” These essays do indeed address these topics – but primarily, if not always solely, to illustrate the implications of a philosophical treatment of those three themes. Consequently, this volume is best suited for scholars and graduate students already well versed in philosophical contentions and refutations about rules, reasoning, and constitutionalism in the common law.

Accordingly, readers of this review: caveat emptor. This reviewer is decidedly not well versed in those philosophical debates, except, perhaps, as they relate to the common law and constitutionalism. Also to be taken into account is my reservation about whether, and the extent to which, philosophical debates clarify practical legal and political problems. In sum, other readers may be better situated to appreciate and assess the intrinsic value of these essays – on their own theoretical terms as well as in relation to their contributions to the various topics addressed. Consequently, this review’s goal is to give to readers who are comparatively inexpert about common law theory, but are curious about it and its implications for various topics, an impression of what this volume’s uniformly well written, accessible, and intellectually stimulating essays are about.

In his introduction to the volume contributions, the editor, Douglas Edlin (Dickinson College), indicates his deepest philosophical ambitions for the anthology. Edlin claims that the pursuit of the “theoretical foundations and applications of the common law” (p.1) in general, and common law reasoning and judgment in particular, is intended to parallel Immanuel Kant’s investigations of links between aesthetic and a priori judgments (p.2). However, Edlin does not pursue this claim at any depth. Instead, it primarily serves as a jumping off point to justify categorizing the volume’s contributions in terms of rules, reasoning, and constitutionalism (pp.2-3). As for the body of the introduction, Edlin provides an excellent detailed summary of the internal logic of each essay, and draws connections between and amongst them. This introduction will be especially helpful to readers less [*410] well versed in the philosophical ins and outs of common law theory

The first section of the volume consists of two essays about rules. The crucial concern of “Judge as Rule Makers” (Larry Alexander and Emily Sherwin) is to defend the normative and descriptive superiority of a rules-based version of precedent as an explanation of how much common law rules bind judges against competing result- and principle-based conceptions of precedent. Central to this defense of rule-based reasoning is the thesis that “Courts may not second-guess the outcomes of rules, nor may they ‘distinguish’ rules that appear to produce the wrong result in a particular case. When precedent rules are justified as rules – that is, when following the rules in all cases will produce fewer total errors than unconstrained deliberation – then erroneous results in particular cases are simply a by-product of the rules’ generality, which cannot be avoided without losing the benefits of rules” (p.49). In turn, the authors also argue that it is ill-conceived for judges to assess, let alone circumvent, a common law precedent by recourse to principles or results, even if, “all things being equal” a “rule” is arguably morally objectionable, mistakenly conceived, or outdated (p.49). Accordingly, the rule-based approach to precedent, whatever its admitted shortcomings, is said to confirm that a judge’s responsibility is almost always to abide by precedent except when a “rule is obviously and seriously unjustified” (p.50).

The second essay in this section is more of an architectonic exercise: its purpose is to situate the common law as a genre of positive law in relation to legislation, customary law, and case law. Accordingly, two of the major aims of “Some Types of Law” (John Gardner) are to explain why all forms of law are positive law (p.51) and why scholars who conceive of all law- makers as legislators (e.g., Ronald Dworkin) are mistaken. To fulfill these aims, Gardner, working in the positivist traditions of Jeremy Bentham, John Austin, and H.L.A Hart, advances three criteria to explain distinctions regarding the authority of legislation, customary law, and case law. Gardner deploys these criteria of law, made “expressly,” “intentionally,” and “by an agent” (pp.53-60), to classify and elaborate on common law as a combination of customary and case law. One of the major consequences of this architectonic exercise is a defense of legal positivism as a sound conception of the authority of common law and social rules that indicate the authority of law.

“The Principles of Legal Reasoning in the Common Law” by Melvin A. Eisenberg is the first essay in the second section on common law reasoning. Its central theme is that social propositions (i.e., regarding moral norms, policies, and social fact considerations), including the relationships amongst social propositions and doctrinal considerations, “should, and largely do, govern legal reasoning in the common law” (p.81). Eisenberg contends that two conceptions should guide thinking about these relationships: “legal rules can be justified only by social propositions,” and “consistency in the common law depends on social propositions” (p.81). These two conceptions lead into Eisenberg’s explanations for the constraints that surround the role of social propositions in justification and consistency in the [*411] common law. For example, the author explains that only those propositions related to moral standards or policies that are deeply rooted, have substantial support in the community, or have the support of “informed opinion” (p.83) are appropriate for justifying legal rules and maintaining the common law’s doctrinal stability. Another example is the institutional factors (p.92) that, in concert with common law criteria controlling the rule for which a precedent stands, cabin a judge’s discretion and maximize uniformity in the law (pp.87-93).

Within this context, Eisenberg discusses a range of matters related to justification, consistency, and reasoning in the common law. Prominent among them are the importance of common law courts, rather than legislatures, in generating rules for governing private conduct; how to describe and evaluate the manner in which courts determine the rule for which a precedent stands, and constructing criteria for understanding the appropriate balance between doctrinal stability and the need for social change (p.87). The overarching theme of these discussions is the extent to which social propositions are always at work in common law adjudication, either explicitly or implicitly, as the means by which the common law improves upon itself, primarily by generating new rules and by avoiding following poor ones (pp.94-96).

The second essay, “A Similibus and Similia, Analogical Thinking in Law” (Gerald J. Postema) is also concerned with how the common law recapitulates itself through case-by-case adjudication, First, Postema defends the intrinsic integrity of analogical reasoning in the common law. The Latin in the title – “part to part” – foreshadows his commitments to the corrigibility of classical and nineteenth century versions (i.e, John Austin) of how the common law moves along its path and is appropriate to its tasks. The Latin also foreshadows Postema’s commitment to defend (classical) analogical reasoning against a range of objections to it as inadequate for describing and evaluating the common law. This defense argues against analogical reasoning as theoretically empty, as a source of obfuscation, and as inefficacious in relation to policy, or perhaps most significantly, as inadequate for justifying common law adjudication understood as rule-governed or principled activity.

Although the author’s defense partakes of a number of inter-related claims, the underlying one is that objections to analogical reasoning do not recognize its full complexity and thus underestimate its value for common law thinking (p.116). To redress this, Postema characterizes the significance of two inter-related dimensions of analogical reasoning. The first dimension is analogy formation and argumentation in general. This is characterized as “an essentially discursive activity” (p.120), wherein those who construct analogies accept their “mode of argumentation” (p.117) as part of a normative activity (linked back to Kant) that requires publicly discernible reason-giving for the connections it makes in its “part to part” (p.160) constructions of the law. On this basis, the author explains, for example, why critics of analogical thinking are mistaken when they complain that it is either (merely) intuitive or implicated in a [*412] deductive/rule-governed approach to the law.

The second dimension concerns analogy formation and argumentation as they play themselves out in legal institutions. Here the author pivots on Karl Llewellyn’s view of legal inquiry and reasoning as a process of giving comparative examples for why certain cases fit specific facts. Hence, Postema situates analogical reasoning in the process whereby “cases fall into a class of like cases because the kind of reasons they provide for . . . hang together in a way that makes practical, legal sense” (p.123). Thus situated, Postema makes the argument that common law rules are a result of this process and principled concerns of analogical reasoning in general, rather than as a prerequisite of case-by-case adjudication. He concludes with a discussion of five conditions that constrain analogical reasoning in the law, giving special attention to the role of a “sense of justice” which he addresses from the perspective of HLA Hart’s conception of “impartiality” (p.128), as well as his own views on analogical legal reasoning and common law rules as a function of “local coherence” rather than “broad moral vision” (p.132).

The third contribution, “Reasoned Decisions and Legal Theory,” by David Dyzenhaus and Michael Taggart, challenges on historical and philosophical grounds the identification of common law adjudication with the duty of reason giving. To that end, the authors characterize some of the central attributes of the common law system, as they locate them historically, in defense of the conclusion that “[it] has hardly ever been the case” (p.135) that, generally speaking, Anglo-American judges ever had a deeply rooted duty to give reasons. They go on to contend that it is the impact of later nineteenth century developments related to jury trials and appeals, and twentieth century statutory provisions regarding administrative law, that best explain why common law judges have come to be seen as having a duty to give reasons for decisions. They also differentiate across forms of common law reason and duty in UK, Canada, and New Zealand.

The philosophical part of their challenge comes into play when the authors address the otherwise received wisdom that the common law has always been and should be “a reason-based conception of authority” (p.152). With Thomas Hobbes as their starting point, the authors develop an argument for an on-going theoretical tension between the practice of law as command, and the ideal of law as reason giving. This argument proceeds into comparisons and contrasts among aspects of Jeremy Bentham’s, H.L.A. Hart’s, and Ronald Dworkin’s philosophizing about the law as it manifests itself in competing commitments between law as sovereign power on the one hand. and reason-giving in defense of the interests of citizens on the other. The argument ‘s conclusion is that this is a tension that cannot be overcome and that the best one can hope for is a philosophical “rapprochement” that balances arguments for the common law as command and as reason giving.

The concluding section’s initial essay on common constitutionalism is James R. Stoner, Jr.’s “Natural Law, Common Law, and the Constitution.” Stoner’s commitment is to a natural law [*413] interpretation of how common law tradition and reason represent the common good as “real individualism . . . and [a] language of rights” (p.183). Stoner writes in the Aristotelian-Thomist natural law tradition, with the work of John Finnis as paradigmatic of its contemporary face. From that perspective, the author contends, “the resources of liberalism are inadequate to all of today’s challenges and [that] liberalism has never given an adequate account of either the human person or our constitutional order” (p.178). The specific foil for this Finnis-inspired natural law challenge to liberalism is the latter’s fellow analytic philosophers, Ronald Dworkin and John Rawls. Stoner deploys them to frame his claims for natural law conceptions of reason giving, legal reasoning, individualism, and the common good as worthy criteria to contend with liberal philosophy’s treatment of constitutionalism.

Also framing these claims are Stoner’s own historical and philosophical scholarship on the common law and its relation to constitutionalism at the founding. There Stoner has interpreted the intersections of common law’s secular and sacred relation with American constitutionalism and its innovations (e.g., separation of powers, federalism), Blackstone, and the nature of precedent, all as expressions of commitments to reason giving as a means “to give liberty and virtue a better home” (p.178). Within these two frames, Stoner situates (Finnis’) natural law theorizing about a plurality of principles, human goods, practical reasonableness (pp.180-181), and their connections to a jurisprudence of “transcendent meaning” (pp.181-182) as a good or better version of constitutionalism and the common law than its more popular alternatives. The essay closes with a brief discussion of Stoner’s recommendations for a Finnis-based approach to gay marriage as holding out promise for a rational debate about gay and traditional marriage.

Next is T.R.S. Allan’s “Text, Context, and Constitution, The Common Law as Public Reason.” Allan’s focus parallels Stoner’s, inasmuch as both are concerned with the relationship among the common law, constitutionalism, and reasoned, as well as moral, judgments. But whereas Stoner’s commitment is to the reasoned and moral judgments of natural law, Allan’s approach is closer to Eisenberg’s commitment to social propositions. For Allan, like Eisenberg, it is the balance between precedents and their “conformity to prevailing moral and social standards” within the context of “present circumstances” (p.185) that constitutes the legitimacy of the common law. For Allan, this balance is a foundation for the legitimacy of constitutional government: “American constitutionalism is in fact best understood as an evolutionary common law system, making settled doctrine and traditional practice more important than the original text on which they have built” (p.203).

For Allan, understanding common law constitutionalism as an evolutionary process is especially important because it displaces approaches to constitutionalism supposing the primacy of a text. Allan contends that an evolutionary approach is required to see well- reasoned common law and constitutionalism for what they are – “a steadily evolving order of justice, rooted in historical experience but open to [*414] changing ideas and perceptions, it can form the basis of a genuine public reason” (p.200). Furthermore, Allan seeks to defend the proposition that case law and statutory interpretation are very much alike. He characterizes and affirms both forms of interpretation as reasoned efforts to balance doctrine and social facts, arguing that their mutual great strength is that they construct a middle course between two fatal flaws: a sheer textual commitment to rules and capricious legal improvisations.

Moreover, in relation to common law constitutionalism in particular, the author identifies three seminal achievements of a middle course: 1) it is a meld of legal and political arguments; 2) it “is always . . . in a state of flux as it struggles to accommodate competing pressures and conflicting goals” (p.201), notwithstanding the pull of precedent; and 3) it provides broad discretion in case-by-case deliberations (p.194) to take into account shifting attitudes and agreements about what the public good requires (p.200). To Allan, these achievements are important in their own right but also have two seminal implications. First, their complements in statutory interpretation underpin a legal process that puts public reason giving at the forefront of the subordination of authority (whether that be precedent or statute) for the sake of the protection of fundamental rights. Secondly, these three achievements are also characteristics of a deliberative politics. Accordingly, Allan recommends that common law constitutionalism, legislation, and deliberative politics be seen as necessary complements to a polity of cross cutting and competing conceptions of a public good, where consensus on abstract principles is difficult to achieve.

In the final contribution to the volume, Jeffrey Goldsworthy provides an historical and political cultural counter-point to the Allan’s view, shared by others in the volume, that common law should be understood as a companion to non-judicial politics, at least within a particular cultural context. “The Myth of the Common Law Constitution” argues against conceptions of common law that would displace the primacy of Parliamentary rule. Goldsworthy’s main contention is that it is an historical mistake to see the common law as any kind of legal orthodoxy in Britain until before the late eighteenth century (at the earliest). He also finds little historical evidence before then to regard judges as representing conceptions of an unchallengeable ancient constitution of limited powers, to regard the common law as binding king or Parliament as High Court (in contrast to the claims of scholars like C.H. McIlwain and J.G.A. Pocock), or to regard the common law as “the fundamental legal framework of English government” (p.208).

To warrant these findings, the author addresses five questions about the makeup of common law principles as they relate to an unwritten constitution – two questions about the scope of the common law, and three about the ultimate authority to articulate it. He also presents an overview of the historical complexities that have attended answers to these questions, concluding that there is scant, if any evidence, that Parliament or royal succession were ever bound by the authority of common law constitutionalism in the pre-modern [*415] period. As for the early modern period, Goldsworthy finds that precious few supported the authority of common law constitutionalism, and most supported principles associated with legislative sovereignty and Parliament as a High Court. As for today, the author acknowledges that the scope of common law has expanded over time, but insists that its authority ought not be conceived to “sweep the field” (p.229).

Although Goldsworthy is confident in his historical analysis for why the authority of common law constitutionalism is much weaker than its proponents make it out to be, he recognizes that many of those proponents depend on philosophical rather than historical reasons for their position. Accordingly, he contests philosophical claims for the prominence of common law constitutionalism by analyzing their weaknesses as they relate to parliamentary authority and the nature of common law legal norms. The heart of this challenge is his argument that there are four competing variations of a strong version of common law constitutionalism; all things considered, he believes that the most promising version of them belongs to Ronald Dworkin; and Dworkin’s views are incompatible with the way in which many English judges think about parliamentary sovereignty and legal authority. This is the basis for the author’s driving home his claim that soundest philosophical arguments for the legal authority of the common law should not be located in constitutional common law, however necessary it may be for understanding legal authority, but in the broader “general consensus . . . among the senior officials of all branches of government” (p.235).

Thus, as Edlin implies in his introduction, the Goldsworthy essay brings to the forefront the contentious status of contemporary philosophical claims about the nature and scope of the common law that are overt or implicit in the contributions to this volume (p.23). Indeed for those like me, this volume provides an excellent snapshot of some of the complications surrounding present-day theorizing about the common law within and across cultures. And conceivably those who are more expert in theory and the common law will find more than enough here to draw their attention, in regard to both the nature and scope of the common law as represented here, and in relation to Edlin’s closing claim that the explicit and implicit debates of this volume “mirror the process of the common law” itself (p.23).

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© Copyright 2008 by the author, Ira L. Strauber.

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WORST CASE SCENARIOS

by Cass R. Sunstein. Cambridge: Harvard University Press. 2007. 352pp. Cloth $24.95/£16.95/€19.00. ISBN: 9780674025103.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: RushM [at] wlu.edu.

pp.404-408

As I read WORST CASE SCENARIOS it invoked many different memories from my teaching career. The principal one concerned a visit from a bright eyed student who was doing a survey for our then-nascent environmental studies program. The survey that was centered on one question: Was I willing to pay to clean up a local creek. I asked “How much.” The interview went downhill from there. I was not willing to answer without a price. I was not willing to pay just any price to clean up the creek, and, depending on how clean we were talking, I was willing to pay more or less. The student, on the other hand, discovered that the economics course she had not yet taken really was a vital component of environmental studies.

I do not mean to reduce the lessons of WORST CASE SCENARIOS to a simple vignette such as this. Sunstein’s book is a much broader, intriguing and thoughtful (though occasionally a bit too meticulous) analysis of how rationally to weigh the costs, benefits, and probability of potential disasters (large and small scale) and how normative considerations enter into those calculations. But, it also nicely takes episodes such as my student’s survey and a terrorist attack and demonstrates the connections.

At the outset, I will acknowledge that, while I enjoyed the book, in the end I found it frustrating. This is not a reflection on Sunstein’s analysis. He develops his discussion thoughtfully and thoroughly. It affirms the complexity of public policy analysis and the difficulty policy makers encounter in seeking to fashion regulations that are not (and probably can ever be) truly positive-sum. In this respect, Sunstein’s analysis of the different approaches to and ethical yardsticks used in developing laws to deal with everything from small problems to great catastrophes ends up providing the reader with powerful tools to critique such policies, but little with which to resolve the tensions among competing principles and considerations that inform ethical and economic approaches to public policy.

Sunstein begins WORST CASE SCENARIOS with a series of queries concerning the limits of individual and collective rationality.

How do human beings and their governments approach worst-case scenarios? Do they tend to neglect them or do they give them excessive weight? Whatever we actually do, how should we deal with unlikely risks of catastrophe?” (p.1)

As examples of particularly vexing worst case scenarios, Sunstein asks us to ponder the wisdom of the United States’ approach to terrorist threats in the wake of the World Trade Center bombings and our resistance to the Kyoto Protocol on climate change. [*405]


To the former, we have taken the approach outlined by Vice President Dick Cheney’s “One Percent Doctrine”: even though another terrorist attack (of this scale) is quite unlikely, we still need to treat it as a certainty and expend potentially unlimited resources (and make potentially unlimited sacrifices to civil liberties) to prevent its reoccurrence. To the latter, the United States has taken a contradictory approach. Even though climactic catastrophe is no less ominous (and perhaps more certain under the current circumstances) than another terrorist attack, the United States has resisted the Kyoto protocol. While the positive impact of the Protocol on the environment is subject to much conjecture, and its implementation raises very valid concerns about fairness in terms of sharing its costs and benefits, the nature of American resistance to the Protocol has allowed critics to focus more on US stubbornness than on seeking to resolve the Kyoto agreement’s flaws and develop a new, more equitable and more effective approach to climate change. In both cases – terrorism and climate change – Sunstein laments the steps taken by the United States.

WORST CASE SCENARIOS is not, however, just a critical book. As he notes in the introduction, Sunstein has three specific goals. First, he wants to understand people’s tendencies to respond to worst case scenarios either by excessive overreaction (in the case of terrorism) or utter neglect (to a point, the American approach to climate change). Second, he wishes to “consider” how individuals and public officials might address low-probability risks of disaster more effectively. Finally, he looks to explore the limits of cost-benefit analysis in dealing with problems and potential disasters that may occur in the future (p.5).

Sunstein takes the reader on a tour de force of various approaches to real and potential disasters. In the first two chapters, he juxtaposes the American approaches to terrorism and climate change, then demonstrates that a key aspect to ensuring the success of a comprehensive approach to a common problem (be it terrorism, global warming or, as he discusses in Chapter 2, the ozone layer) is to ensure that the actors who will bear most of the cost will also garner substantial and quick (if not immediate) gain.

Hence, he concludes that the success of the Montreal Accord on the Ozone layer can be attributed to both American support for the Accord and a general perception across the globe that the benefits of repairing the Ozone layer could be achieved quickly and at a rather small cost in terms of regulation. In contrast, American resistance to the Kyoto Accord is based on the fair perception that the United States (and other developed nations) will bear a disproportionate share of the cost, while the benefits from a slowing (or reversal ) of global warming will not be realized any time soon.

Clearly, this analysis may trouble some observers. Whether we like it or not, the success of the most elegant ethical or analytical framework for policymaking may, ultimately depend on the self-interest (however poorly informed) of electors, government officials or other political actors. Collective action problems such as free riders and the [*406] tragedy of the commons loom as a threat to even the most comprehensive ethical framework.

In the middle of the book, Sunstein embarks on a discussion of “Catastrophe” (Chapter 3), “Irreversibility” (Chapter 4) and “Money” (Chapter 5). In each chapter, he assesses different principles on which individuals or societies perceive and address risks and threats. These chapters are the strongest aspect of the book. Insofar as all public policy problems involve choice, they inextricably link ethical and economic analysis. When they involve potentially disastrous outcomes, the link becomes more obvious and more discomforting. Sunstein makes this clear as he discusses the many different principles one can bring to bear when formulating public policy – cost benefit analysis, one’s (or a society’s collective) willingness to pay to secure particular benefits or avoid certain harms, the statistical value of a human life, the Precautionary Principle, and so on – and the shortcomings posed by each. No one principle will resolve any public policy problem without controversy.

In the space of a review-length essay, it is impossible to do justice to the detail with which Sunstein develops his discussion. In each chapter he demonstrates the fatal shortcomings to decision rules that we might apply to potential catastrophes. No matter how good or robust an ethical principle may first seem to be, its use invariably bears costs of its own and, in the end, begs reconsideration.

The truly vexing aspect of the subject is the fact that individual and collective decisions about potential catastrophe (of any scope) are frequently made with incomplete or, at least, disputable information about the probability of a particular catastrophic event, its true impact (in terms of monetary loss, loss of life, and the like), the value of that loss, who will bear the impact of the loss, and the real cost (measured in any terms) of seeking to prevent or at least manage the impact of a potential catastrophe. Even if an actor has complete information, the assignment of values, losses and benefits is, inextricably, a subjective exercise. As a result, Sunstein’s discussion is characterized by a tension that results from one’s desire on the one hand to determine costs, benefits and probabilities clearly and objectively and, on the other, to deal with the fact that individuals are entitled to make different determinations based on their own subjective tastes and preferences.

An especially illuminating aspect of this discussion takes place in Chapter 5 (“Money”) where Sunstein discusses the use and shortcomings of cost-benefit analysis. Were regulators and policymakers able to determine “costs” and “benefits” of controversial policies clearly, they might be able to agree on the amount of resources to devote to a policy, how to distribute the costs and benefits, and how to be sure that the associated burdens would be equitably assumed by different members of society. However, in an environment of “scientific uncertainty,” “implausible judgments of value” (pp.206-207), incomplete information or inaccurate or debatable assessments of risk and probability, any cost-benefit analysis will be subject to question. [*407]

It seems we are stuck. What Sunstein offers us is, in some ways, a reassertion that there is no escaping risk and loss in an environment of incomplete or, in Anthony Downs’ terms, imperfect information. Since perfect information exists only in theory, the assessment of the best way to deal with worst-case scenarios always runs the risk of costing too much and doing too little. So, what to do?

Sunstein leaves us hanging. In the end, he offers suggestions for developing a more effective, rational policy for preventing (or at least delaying) environmental catastrophe. He states four principles to address the climate change issue. Any international agreement should have four central features (p.283):

• fully global emissions trading, so as to drive down compliance costs


• sensible and nonarbitrary emissions limits


• inclusion of the developing nations


• financial and technological assistance from wealthy countries to poorer ones

After reading the previous chapters in the book, it is clear that these points can only be a starting point for discussion. The reader wonders whether she would avoid being bogged down in the ethical quagmire through which the author navigates in each of the prior chapters. Again, this is not a criticism of Sunstein’s desire for a wise, reasonable approach to climate change or his careful analysis of the ethical problems that plague any attempt to develop effective public policies that will address both collective and individual concerns about fairness and equity. Instead, it is an acknowledgment that his prior analysis is thorough enough to render any such statements of principle subject to a lot of questioning.

While Sunstein nicely presents the difficulties confronting anyone who seeks to resolve the ethical dilemmas he discusses, in the end, his principal problem lies, I believe, with democracy. Even if regulators and officials were to formulate an ideal solution to a potential catastrophe, they would still need to deal with the fact that they might not be able to sell it to their constituents or critics. Even though it makes no sense to do so, “humans neglect low probability high consequence risks if the cost is immediate and benefits are distant” (p.138). It is therefore up to their leaders to make the right decision and, despite the electoral consequences, seek to educate those constituents.

V.O. Key told us long ago in THE RESPONSIBLE ELECTORATE that voters are not fools. Sunstein’s point is that humans are not necessarily wise, either. Since “life is short, people are busy and occasionally they are more reluctant to take risks than an analysis of expected value suggests” (p.151), democracy requires that we pay attention to those voters even if they are poorly informed or irrational. Similarly, we need to trust our elected officials and bureaucrats even if we disagree or do not understand their decisions.

In the end, Sunstein says that “for most of us, worst-case scenarios rarely deserve sustained attention. Life is short, and we might as well enjoy it. But, if we are alert, on occasion, to the worst that might happen, we should be [*408] able to enjoy life a lot longer” (p.286). In that case, one can do a lot worse than reading WORST CASE SCENARIOS. It is a thought-provoking read by a thoughtful scholar.

REFERENCES:
Downs, Anthony. 1957. “An Economic Theory of Political Action in a Democracy.” 65 JOURNAL OF POLITIAL ECONOMY 135-150.

Key. V. O. 1966. THE RESPONSIBLE ELECTORATE. Cambridge, Belknap Press of Harvard University Press.

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© Copyright 2008 by the author, Mark Rush.

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THE CONSTITUTION ON THE CAMPAIGN TRAIL: THE SURPRISING POLITICAL CAREER OF AMERICA’S FOUNDING DOCUMENT

by Andrew E. Busch. Lanham, MD: Rowman & Littlefield, 2007. 331pp. Cloth. $75.00. ISBN: 9780742548480. Paper. $28.95. ISBN: 9780742559011.

Reviewed by Trevor Parry-Giles, Department of Communication, University of Maryland. E-mail: tpg [at] umd.edu.

pp.401-403

Andrew Busch takes rhetoric seriously – so seriously, in fact, that he authors an entire book exploring how presidential campaigns rhetorically argue about, debate, discuss, and decide on weighty constitutional issues. As someone who studies political communication and as someone who believes that campaigns are fundamentally good and important events that tell us a great deal about our nation, our community, ourselves, I find much to commend in Busch’s examination of THE CONSTITUTION ON THE CAMPAIGN TRAIL. This is an important work that beckons further research beyond its descriptive parameters. Indeed, Busch’s implied call for more critical engagement is perhaps THE CONSTITUTION ON THE CAMPAIGN TRAIL’s greatest strength.

THE CONSTITUTION ON THE CAMPAIGN TRAIL is guided by four general propositions: 1) “All other things being equal, more constitutional rhetoric is better than less;” 2) “More open discussion of the Constitution is better than veiled or opaque discussion;” 3) “Constitutional rhetoric that is broader and more varied is better than constitutional rhetoric that is narrowly focused;” and 4) “It is better for campaigns and candidates to engage one another on constitutional issues than to talk past each other” (pp.8-9). One might quibble with some of these propositions, but they form a solid and reasonable basis for Busch’s ensuing discussion of a wide range of campaign discourse concerning constitutional issues.

So exhaustive is Busch’s analysis that he covers major campaign discourse from 1840 through 2006, examining party platforms and nomination acceptance letters and speeches from 1840 to 2006, television campaign advertising from 1952 to 2004, and presidential debates from 1960 to 2004. To extend the analysis, Busch also discusses the campaign communications from minor party and independent candidates receiving more the 5% of the national popular vote and the Inaugural Addresses and State of the Union speeches from 1841 to 2006. Put simply, that is a tremendous amount of discourse to analyze.

The result, of course, is an analysis that is largely driven by description and numbers. So, for instance, in the chapter on the Constitution in party platforms, Busch reveals that there has been an overall decline in the constitutional references per 1,000 words from 1840-2004 but that the number of constitutional “mentions” has increased in that time period, particularly in Republican Party platforms. Busch identifies the differing levels of explicit rhetoric versus implicit rhetoric in the [*402] discourses he discusses, and he meticulously offers a coding scheme that identifies the different types of constitutional argument present in the various texts. Further breakdowns of his data reveal that the differing categories of constitutional argument in party platforms (about rights, constitutional structure, and constitutional interpretation) have all increased in frequency since 1840, with rights rhetoric increasing at a faster rate in party platforms.

Busch offers this same level of detailed analysis in each chapter of THE CONSTITUTION ON THE CAMPAIGN TRAIL, and the reader learns much from his comprehensive rendition of this rhetoric. The overall lesson from Busch’s book is that constitutional rhetoric in campaign discourse has a complicated and varied history, dependent on the context of the campaign, the predilections of the candidates, the media of communication involved, and the salience of constitutional questions for the voters. Along with all of the painstakingly gathered content data, Busch also provides a narrativized rendition of the flow of campaign constitutional discourse across campaigns and his readings of the ebb and flow of such rhetoric is compelling, clear and honest. Bringing together his narratives with the data, Busch is able to tell a convincing story not only about presidential campaigning, but also about the nature of constitutional argument.

Another important lesson learned from THE CONSTITUTION ON THE CAMPAIGN TRAIL is the care and dedication required to perform and record the results of careful content analysis. What makes Busch’s analysis so convincing is its completeness. Modestly, Busch suggests that there are limitations to the thoroughness of his analysis – he does not discuss media coverage of constitutional campaign rhetoric, and he only focuses on national general election campaigns (p.10). While those might be limitations to some, I believe they instead offer clarity and focus to the analysis. That is, a switch to media coverage of these types of constitutional arguments, or a discussion of how such arguments are manifest in congressional or primary campaigns would have unnecessarily diverted Busch’s analysis away from the important discourse coming from presidential candidates in general election campaigns. And such a diversion would only have served the purpose of greater thoroughness – it is possible to speculate that discourse of mass media sources or in congressional campaigns might very well have mirrored the constitutional arguments discussed in the sources Busch does analyze, if only because of the inevitable trickle-down effect in political discourse.

Perhaps the most significant “limitation” of Busch’s THE CONSTITUTION ON THE CAMPAIGN TRAIL is his acknowledged reluctance to “offer a normative evaluation of the plausibility, morality, or constitutional correctness of the constitutional arguments offered by candidates and their campaigns” (p.11). That is the next step. Busch’s work is required reading for anyone seeking to engage in such a “normative evaluation” if only because it provides the clear framework, the precise discussion of the data, that could undergird such a study. A rhetorical critic, for instance, would use Busch’s work to springboard into a [*403] discussion of how presidential candidates articulate constitutional arguments effectively or ineffectively for audiences, how they use constitutional arguments to achieve electoral ascendancy, how such arguments function in the formation of issues of national identity, ideological certainty, and rhetorical efficacy. THE CONSTITUTION ON THE CAMPAIGN TRAIL would be crucial for the political philosopher who sought to explore the morality in the invocation of constitutional argument in an electoral context. The legal commentator would begin with Busch’s book, and examine how various campaign articulations about the constitution squared with precedent, were attempts to influence subsequent constitutional interpretation, or worked as ways of reshaping the constitutional document itself. Regardless of the orientation, or the discipline, the normative scholar seeking to understand the interface between the Constitution and electoral politics would do well to begin with Busch.

Even the most casual observer of Campaign 2008 would be forced to admit that constitutional argument, thus far at least, is not front and center for the candidates. Amidst the exhaustive discussions of mortgage crises, balanced budgets, the War in Iraq, and competing health care plans, there is infrequently only passing discussions of constitutional rights, the structure of our constitutional system, and/or the range and nature of constitutional interpretation. This general silence on constitutional questions would not surprise the reader of Andrew Busch’s THE CONSTITUTION ON THE CAMPAIGN TRAIL even as it might trouble us all. Surely, we should be discussing such questions, and surely the citizenry should demand that its presidential candidates confront these critical matters. If nothing else, Andrew Busch provides a fascinating tale of the vagaries of constitutional argument in a campaign context, and that tale comes none too soon.

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© Copyright 2008 by the author, Trevor Parry-Giles.

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A Response to Professor Terry Aladjem’s comments regarding my review of THE CULTURE OF VENGEANCE AND THE FATE OF AMERICAN JUSTICE

by Terry Kenneth Aladjem. New York: Cambridge University Press, 266pp. Cloth $85.00/ £45.00. 9780521886246. Paper $26.99/£16.99. ISBN: 9780521713863.

Reviewer’s Reply: Whitley Kaufman, University of Massachusetts Lowell. Email: whitley_kaufman [at] uml.edu.

pp.399-400

(Editor’s note: The following is a response to a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

I welcome the opportunity to engage Professor Aladjem in a debate about his thesis that liberalism suffers from an internal contradiction in its failure to confront the vengeful impulses. I am sorry that he feels that I have “not seriously engaged” or “miscast” his arguments. However, I see nothing in his reply to my review that leads me to believe I have misunderstood or mischaracterized his position. Here I will briefly recapitulate my two central criticisms of his thesis. After that, it is up to the reader to decide whether liberalism suffers from the deep incoherence that Aladjem claims to have discovered.

My first objection to Aladjem’s account is that he provides a one-sided and even caricatured depiction of the vengeful impulses, according to which they are always and necessarily extreme, irrational, indiscriminate, arrogant, and self-deceptive. Moreover, Aladjem fails to engage (or even mention) the philosophical tradition with its source in Aristotle according to which retaliation can and should be moderate, measured, and rational. Indeed, a substantial contemporary literature exists, which Aladjem does not mention, defending a moderate and balanced form of vengeance. I am thus perplexed that Austin Sarat could call this either a “sympathetic” or “nuanced” treatment of vengeance. Nor do I see any serious argument for the claim that vengeance is always an attempt to “reverse the effect of an injury on life and time.” Some cases of revenge may (irrationally) want to do so, but why should we believe that vengeance always and necessarily is this way? Aladjem ignores the more traditional interpretation of vengeance, found in Nietzsche and in many other places, that the goal of revenge is not to undo the past, but to restore one’s honor. Nor is this latter goal an irrational attempt to reverse the past.

My second objection is that Aladjem’s central thesis does not seem to fit the facts. The “culture of vengeance” that is his concern – the rise of an extremely harsh punitive system, vengeful outbursts in response to 9/11, and the like – are all issues that are essentially unique to America. Yet the book is devoted to a critique not of the American system, but of the liberal tradition in general as failing to handle the problem of revenge; Aladjem’s rhetoric throughout is aimed specifically at “liberalism,” rather than at, say, the American version of liberalism. And [*400] most of the liberal philosophers he cites are Europeans, not Americans; even in his reply, he criticizes “liberal philosophy from Kant to Bentham, and Hegel to Mill” – all Europeans. But this is puzzling, since European liberalism has not seen the rise of a culture of vengeance in the way that America has. Indeed, based on the evidence, one might well conclude that liberal democracies have handled the vengeful impulses impressively well, and it is only America that has not. Thus it would seem that the book should be focused not on what is wrong with liberalism, but what is wrong with the uniquely American approach to liberalism. (Nor is it even clear why Aladjem finds the root of the trouble in liberalism, rather than, say, in America’s failure to live up to the liberal tradition.) The central problem, it seems to me, is why America has diverged so radically from the rest of the world’s liberal democracies. I do not claim to know the answer to this question. But I am not convinced by Aladjem’s claim that the problem can be traced to the “logic of democratic necessity” (whatever that means). Aladjem claims that the “secularism” of America might explain why it has gone this different route. But this cannot be correct, since Europe has become far more secularized than America, and on his theory should thus be more vengeful, not less. Aladjem also suggests it might be the “justice of equity” in America that explains the difference. I do not know what “justice of equity” means, nor why this is something distinct from liberal democracy (aren’t justice and equity, both for race and gender, essential components of liberalism?). Again, I see no evidence that other liberal democracies lack “justice of equity,” in which case this explanation will not work. But the deeper problem, to reiterate, is that the argument of the entire book is framed not at the American version of liberalism, but at liberalism in general as it developed from the European tradition: even in his reply, Aladjem indicates the problem is one “endemic to liberal theories of punishment” and a “dilemma for democracy.” In that case, why have the vast majority of the world’s liberal democracies not experienced the rise of the “culture of vengeance” that we have seen in America? But at this point we will leave it to the reader to decide for herself on the merits of Aladjem’s thesis.

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© Copyright 2008 by the author, Whitley Kaufman.

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