DEPORTATION NATION: OUTSIDERS IN AMERICAN HISTORY

by Daniel Kanstroom. Cambridge: Harvard University Press, 2007. 352pp. Hardcover. $45.00 / £29.95 / €34.00. ISBN: 9780674024724.

Reviewed by Leila Kawar, Department of Politics, Bates College. E-mail: lkawar [at] bates.edu.

pp.527-530

In 1995, Peter Brimelow, a Forbes editor and contributor to the National Review, and himself an immigrant (from the United Kingdom), issued a shrill and highly politicized attack against US immigration policy and practice. Brimelow’s work paved the way for the anti-immigrant backlash that crystallized in Proposition 187 as well as the harsh criminal deportation provisions of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Drawing upon unambiguously racialized language, Brimelow claimed that white America’s culture and traditions were threatened by “colored” immigration from Latin America and Asia, which had created a “teeming underworld” within US borders. Brimelow advocated doubling the size of the US Border Patrol and sealing the US-Mexico border “with a fence, a ditch, and whatever other contrivances that old Yankee ingenuity finds appropriate” (p.259). He also proposed that undocumented immigrants should be stripped of access to public benefits and summarily deported. The title that Brimelow gave to his polemical tract was ALIEN NATION.

During the past fifteen years, US policymakers have responded to xenophobic rhetoric, such as Brimelow’s, by putting in place an increasingly crude regime of immigration control. It is this current state of affairs that Daniel Kanstroom takes as a starting point for his book DEPORTATION NATION, a title that alludes to the disastrous consequences for immigrants of Brimelow’s earlier tract. As Kanstroom’s introduction illustrates, in the system that exists today, a young man from Panama, who has lived in the US since the age of four and who pleaded guilty to a very minor crime of assault, can be put in solitary confinement, with no right to a bail hearing, and deported because of a retroactive change in the classification of deportable crimes. According to Kanstroom, the current system is part of a decade-long “deportation experiment,” to which hundreds of thousands of immigrants and their families have been subjected and which tacitly serves as a means of exerting social control over foreigners. As Kanstroom points out, the fact that contemporary immigration laws have so utterly departed from Madisonian liberal ideals of due process is an unresolved and under-discussed contradiction within a state that prides itself as constituting “a nation of immigrants.”

Kanstroom’s primary project in writing DEPORTATION NATION was to investigate the historical roots of the current system, purposefully going beyond the anti-immigrant politics of the 1990s. He argues that contemporary immigration controls, viewed in terms of [*528] normative principles, are simply among the cruder manifestations of a centuries-old practice of deploying deportation for social control purposes. The book traverses more than two-hundred years of American history, and even some Canadian history, to investigate “the pedigree” of the current deportation system. Kanstroom provides an exhaustive, almost archaeological (in the Foucauldian sense), tracing of the ideas that govern contemporary immigration control. The book is written as a series of stories. For each story, the author: 1) gives the historical context – documenting what legislators and administrators did, 2) describes how the judiciary responded, and 3) analyzes how in each case the Court’s jurisprudence contributed to the slow, incremental, and reactive construction of the principles that ground contemporary deportation policy.

This reflection on history with an eye to contemporary policies can be quite evocative. In some instances, the historical vignettes deal with policies unrelated to immigration, understood in a narrow sense. For example, the history of the ante-bellum enforcement of the Fugitive Slave Law, does not involve immigrants per se. And yet the book evocatively argues that it is possible to locate the ancestral origins of the plenary power doctrine (which continues to dominate immigration control jurisprudence) in the legal theories adopted to legitimize these ante-bellum policies. The administrative system for returning fugitive slaves was a revolutionary expansion of federal bureaucracy, but judges dismissed arguments that it violated limits on the federal government’s powers as well as basic procedural protections. Kanstroom argues that the judiciary’s legitimization of the expanding migration control complex constituted by the fugitive slave return bureaucracy laid the groundwork for the creation of national institutions to control the movement of people and the current immigration control administrative apparatus. Similarly, he demonstrates that many procedural aspects of the Fugitive Slave Law (the summary nature of the proceedings, the nonjudicial status of the adjudicators, denial of a jury trial) were later adopted by Congress and accepted by the Supreme Court as legitimate components of the deportation regime. Kanstroom’s provocative claim is that the deep, almost unconscious, principles created by this ante-bellum history enabled both the creation of deportation controls and their legitimization.

Making such bold and suggestive claims, the book is thought provoking. It forces us to think about deportation at length and in new ways. The incredible scope and shockingly harsh consequences of contemporary criminal deportation policy are presented as having an illustrious, or perhaps infamous, pedigree. This is important, because these policies are not regularly featured in public discussions, or even in scholarly discussions outside of the narrow niche of immigration law scholarship. Taken in historical perspective, the deportation provisions associated with the “War on Drugs” are seen as simply another manifestation of the tendency of Americans to enforce moralistic social control regimes through immigration law. Previous episodes include the Colonial “Warning Out” system, and the Progressive Era criminal deportation laws. [*529]

So too, with the government’s use of national security deportation provisions to control noncitizens’ lives. Reading through two-hundred years of history, it becomes clear that in the category of persecution of political opposition movements through immigration laws, one could place the 1798 Alien Friend Act alongside the 1903 Anarchist Law, the 1918 Sedition Act, the 1950 Internal Security Act, and the 1990 Immigration Law’s support for terrorism deportation provisions. This historicization is essential if deportations based on claims of material support for terrorism are to be taken out of the reified polemic on national security on which American political discourse still seem to be fixated. The book is helpful reading for social scientists because it collects such a wealth of historical evidence from a mix of primary and secondary sources. It quickly becomes apparent to the reader that similar patterns of politics affecting immigration policy have manifested themselves with regularity over the course of American history.

Kanstroom covers extensive ground in his sweeping social and legal history and the book’s breadth inevitably leads at times to a lack of precision. For example, the book’s five chapters are historically bounded, but these historically-based chapter divisions are not explicitly explained by the author. Although they make sense for the most part, one exception might be the division between chapters four and five into what Kanstroom terms the second and third waves of the modern deportation system, which seem to correspond approximately to before and after the Great Depression. Yet, while the New Deal radically altered many areas of law, its effects on immigration control policies were less significant. For example, the Leftist immigrant defenders such as Carol Weiss King, who pioneered modern immigration defense work, were contesting policies in the 1920s and in the 1940s and ‘50s that similarly drew upon immigration control laws to target non-citizen labor activists and Communist Party members. If the chapter divisions were based on jurisprudential rather than political considerations, it would be helpful to make these more explicit.

A certain lack of precision likewise characterizes the book’s idea-oriented analysis, which does not always attend to the precise mechanisms by which principles move from one context into another. While the history of ideas does not need to make a sharp distinction between the concepts that motivate legislative and executive actions and the concepts behind judicial opinions, the institutional differences are of great interest to social scientists. Those who study courts as institutions would find it useful to have a description of the doctrinal or institutional mechanisms by which particular legal ideas that were enunciated in earlier periods have found their way into current doctrine. Clearly, there was a direct trajectory in the Chinese Exclusion cases whereby the plenary power doctrine contaminated first exclusion, then refusal of re-entry, then deportation of long-term residents. But, in terms of recent jurisprudence, arguments have been presented, by Kevin Johnson and others, that the immigration-related decisions of contemporary Circuit Judges are motivated, at least in part, by their adherence to the CHEVRON v. NRDC principle of deference to agency decisions. It would be interesting to [*530] investigate and disentangle the respective roles of the plenary power doctrine and the Reagan Era politics of administrative law in contributing to the current situation. The last chapter covering contemporary developments would be where this would need to be traced, but in that chapter the book switches into a much more doctrinal and normative register. Putting aside the question about CHEVRON deference, it would at least have been interesting to examine the historical context of the 1980s War on Drugs and its impact on the immigration acts of 1988 and 1990, which were the precursors to the major reforms in 1996.

Kanstroom’s legal and social history of the US deportation system reveals the extent to which the law of immigration control has at times operated as a state of exception, exempted from the due process principles at the root of Anglo-American rule of law. This raises the question of whether fighting to regain due process is the only course of action for those who care about immigrant rights. Over the past few decades, courts in other countries have found ways to enforce weak versions of social and economic rights, particularly in the context of immigration, rather than being bound to due process and equal protection rights. For example, the German Constitutional Court has ruled that long-term non-citizen residents are protected from deportation by a liberty-based right to individual personal development, and the European Court of Human Rights has found that the right of noncitizens to lead a normal family life must be balanced against the state’s interest in border control. DEPORTATION NATION examines more than two-hundred years of US immigration control and traces the assertion, development, and refinement of centralized, well-focused, and often quite harsh government power subject to minimal judicial oversight. It shows how the removal impulse has been integral to our nation of immigrants. Bringing attention to this unsettling but enduring feature of American legality may enable American immigration law to begin to chart a more human rights oriented path.

REFERENCE:
Brimelow, Peter. 1995. ALIEN NATION: COMMON SENSE ABOUT AMERICA’S IMMIGRATION DISASTER. New York: Random House.

CASE REFERENCES:
CHAE CHAN PING v. UNITED STATES (THE CHINESE EXCLUSION CASE), 130 U.S. 581 (1889).

CHEVRON v. NATIONAL RESOURCES DEFENSE COUNCIL, 467 U.S. 837 (1984).

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© Copyright 2008 by the author, Leila Kawar.

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THE INTERPRETATION GAME: HOW JUDGES AND LAWYERS MAKE THE LAW

by Robert Benson. Durham, NC: Carolina Academic Press, 2008. 204pp. Paper $25.00. ISBN: 9781594605017.

Reviewed by Helen J. Knowles, Department of Political Science, State University of New York at Oswego. Email: Knowles [at] oswego.edu.

pp.523-526

In a May 1978 memorandum to his colleagues, Justice Blackmun concluded that whether the policy of affirmative action would pass constitutional scrutiny in REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE “will depend, I suspect, in large part upon our respective personal conceptions of the kind of America that was contemplated by Title VI and by the Fourteenth Amendment” (Blackmun 1978). In THE INTERPRETATION GAME: HOW JUDGES AND LAWYERS MAKE THE LAW, Robert Benson, professor of law emeritus at Loyola Law School in Los Angeles, concludes that legal interpretation is inevitably this sort of subjective enterprise. Benson argues that (most) judges and lawyers have a built-in reluctance to acknowledge this truth. They are, he says, the victims of their education, which leads them to disingenuously couch the obviously subjective nature of legal interpretation in language and arguments that evince an air of objectivity (and therefore legitimacy and superiority).

In chapter one, Benson explains the “Old Story” that lies at the heart of this legal “scam.” Covering much familiar territory, this chapter summarizes the ‘traditional’ legal rules of interpretation, not just for statutes but also for “constitutions, contracts, and other texts that attempt to guide future conduct” (p.5). Benson spends the most time discussing the plain meaning of language rule. Although there is much truth in Benson’s conclusion that linguistic ambiguities give this rule limited utility, he overstates his case by arguing that judges and lawyers are trying to hoodwink us into believing otherwise.

In the much longer second chapter, which again revisits material afforded extensive and rich treatments elsewhere, Benson tells the “Modern Story” of the twentieth century historical and cultural changes which brought to legal interpretation a modernism of pragmatism and moral relativism. He reaches beyond the field of law for interesting examples of works – such as THE WIZARD OF OZ – that are open to multiple interpretations. Chapter three takes us into the twenty-first century, with a “postmodern insight” that Benson argues has brought important “new intensity” to legal realism (p.69).

In chapter three, Benson draws on the semiotics work of Umberto Eco in order to construct a “semiotic web of legal interpretation.” The concept of a spider’s web could be a useful way to illustrate a semiotics appreciation of the nuances and subtleties of law. After all, Benson is surely right that our understanding of interpretive processes can be greatly informed by an approach that focuses on signs and symbols. Unfortunately, the [*524] lone diagram in this chapter is bereft of the requisite explanation. This reader was left with a desire for a separate set of signs and symbols to guide her through it.

Before proceeding to Part Two of THE INTERPRETATION GAME, in which he examines the conflicting “Old” and “Modern” stories in action, in chapter four – “How Judges Fool Themselves” – Benson reminds us of his main objection to the legal profession’s use of traditional interpretive methods. He considers it misleading to read the “constraints of culture and judicial bureaucracy” – the importance of which he laid bare in chapters two and three – as being “matters of legal doctrine” (p.97). This appears to ignore the fact that these “social and professional values” are important components of legal doctrine.

Part Two opens with chapter five, “How Statutes Get Their Meaning.” Benson introduces us to four hypothetical individuals, and in doing so demonstrates the lightweight nature of many of his arguments. How, he asks, would these people interpret a 55mph speed limit law? Both the highway patrol officer and the “average” driver would, he concludes, naturally engage in a highly contextualized and common-sense reading of the law; the first would be unlikely to ticket offenders unless they went over 62mph, and the latter would be likely to assume that this would be the chosen behavior of the first.

Benson focuses his attention on the other two individuals – heavily stereotyped judges – and their judicial reactions to a 20-year old, poor and uneducated, 1952 pick-up truck-driving, Asian resident alien who was ticketed for driving at 60mph. Both of the positivist judges believe in the “Old Story,” and in the importance of social stability and safety; these values influence their reading of the speed limit law. The white, 50-something male, Republican-appointed former prosecutor is very likely to enforce these values with a ‘55 means 55’ plain meaning reading of the statute. By contrast, the middle-aged Latino woman, who is a Democratic appointee with experience in immigration law and personal injury litigation, will be far more suspicious of the legal system. She, we are told, will tell the prosecutor to quietly drop the charges. It was no surprise to find, at the end of THE INTERPRETATION GAME, that Benson argues that the media are right to describe case outcomes using ideological labels such as ‘conservative’ and ‘liberal.’

Chapter six provides a brief dissection and analysis of BROWN v. BOARD OF EDUCATION. It is not clear why this particular case study was chosen (beyond its ‘stature’), because after a short summary of Warren’s opinion, Benson simply provides brief biographies of every justice who participated in the decision. These “sketches,” writes Benson, “suggest that each justice, filtering the question in BROWN through his own complex set of experiences and values, answered it essentially by deciding what he thought was the best social policy rather than by deciding that the law dictated a result” (p.117). This will not come as a surprise to many law and courts scholars.

Chapter seven pays homage to the realist legacy of Benjamin Cardozo by [*525] examining his famous opinion in PALSGRAF v. LONG ISLAND RAILROAD and his arguments in THE NATURE OF THE JUDICIAL PROCESS (Cardozo 1921).

Chapter eight rounds out the book with “P.S.s” for five groups of people. Benson feels sorry for law school students who can only hope to survive law school if they ingest and understand the “Old Story.” He hopes that for these individuals THE INTERPRETATION GAME will have a liberating effect, but he is aware that it could equally generate disillusionment or a roll-of-the-eyes ‘old news’ reaction. He remains hopeful that lawyers will heed his call for interpretive honesty, but he is aware he is fighting an uphill battle. Judges, he says, need to take the lead in facilitating change, because judicial independence should not hang its hat on the myth that is the “Old Story.” Journalists are treated very well in this book. It is in their nature to be critical, and they would appear to be the potential saviors because of their willingness to expose legal interpretation for the “sham” that it is.

Although THE INTERPRETATION GAME ends with chapter eight, Benson has posted a ‘ninth chapter’ on a website that accompanies the book (http://www.theinterpretationgame.info). This supplement applies the book’s arguments to analysis of the Bush Administration’s interpretation of international law, with an emphasis on the “Torture Memos.”

The fact that this Internet supplement was not included in the book exposes the rather disorganized nature of the work. It appears to be a synthesis of arguments Benson has made elsewhere over the past two decades. This could be a successful strategy, but unfortunately it falls short. This reviewer found it distracting that some of the citations and references were clearly not updated. For example, in chapter two Benson refers to an “up-to-date contracts hornbook” (p.10). It may have been “up-to-date” in 1987, but it is a treatise that has since gone through two more editions.

Generalizing beyond the five types of audience to whom he writes “P.S.s,” Benson tells us that his book is intended for “the serious, sophisticated reader” (p.xiv). Be that as it may, I am not convinced this book will find its way into many classrooms. Pedagogical problems abound when one asks undergraduates to cast an analytical eye over arguments that often attack a straw man. I would only assign the book to undergraduates if I were confident they were well versed in the nature of such arguments. Graduate students and those studying at law schools are usually better equipped to handle such material. However, I doubt this book will find its way onto many public law field exams, or syllabi for judicial politics or constitutional interpretation seminars. Why? There exists an abundance of works – which are undeniable ‘classics’ – that cover the same material but with a depth and sophistication that students (and their professors) will sadly find lacking in Benson’s volume.

To be fair, Benson does acknowledge that it was not his intent to add to the more “comprehensive manuals” on “the sort of Machiavellian manipulation that gives lawyers, and Machiavelli too, a bad name.” Libraries are already over-endowed with such works, he says. Perhaps this is why he clarifies his [*526] opening comment about the intended readership by saying that, ultimately, he hopes THE INTERPRETATION GAME will be used by “the practicing bar,” whose members “will use the analysis and examples here to shear away some of the overgrowth of doctrine, words and mystifying nonsense in the legal jungle, to clear a path so that attorneys, clients, litigants, judges and the public can see what actually is at stake in each legal battle and how the outcome will actually be determined” (p.141).

This is a noble goal, but if the arguments that Benson makes are to be believed, we should not be holding our collective breath in hopes that it will be achieved – at least, not anytime soon.

REFERENCES:
Memo from Justice Blackmun to the Court, May 1, 1978, Box I:441, Papers of William J. Brennan, Manuscript Division, Library of Congress, Washington, D.C.

Cardozo, Benjamin N. 1921. THE NATURE OF THE JUDICIAL PROCESS. New Haven, CT: Yale University Press.

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

PALSGRAF v. LONG ISLAND RAILROAD, 162 N.E. 99 (N.Y. 1928).

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

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© Copyright 2008 by the author, Helen J. Knowles.

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DOING JUSTICE TO MERCY: RELIGION, LAW AND CRIMINAL JUSTICE

Jonathan Rothchild, Matthew Myer Boulton and Kevin Jung (eds). Charlottesville: University of Virginia Press, 2007. 280pp. Cloth. $49.50. ISBN: 9780813926421. Paper. $19.50. ISBN: 9780813926438.

Reviewed by Brian Pinaire, Department of Political Science, Lehigh University. Email: bkp2 [at] lehigh.edu.

pp.517-522

One of the difficulties involved in contemplating the “criminal justice system” in the United States is that what we are really talking about are the “criminal justice systems” in America, in the sense that each state and the federal government maintains its own system. What’s more, critical decisions are generally made (regarding incarceration, bail, representation, and so on) at the county and municipal level and often with little consistency, but for various statutory and constitutional mandates. A similar problem presents itself as we seek to imagine how “religion” may shape our thinking on issues of crime and punishment in the United States, given the myriad faiths that proliferate in this nation today and the moral complexity lying at the heart of these belief systems. And indeed, as readers of the Law & Politics Book Review are well aware, the constitution of “law” implicates the same imprecision. To merge such freighted notions then – asking how religious perspectives may influence modern thinking on the legal system or matters of criminal justice, or how the dilemmas of the justice system(s) invite us to call upon religious foundations for fresh insight – is the task toward which DOING JUSTICE TO MERCY is directed.

The book, edited by Jonathan Rothchild (Loyola Marymount University), Matthew Myer Boulton (Harvard Divinity School), and Kevin Jung (Wake Forest University Divinity School), is the product of a conference over several days, sponsored by the Martin Marty Center and the Institute for the Advanced Study of Religion at the University of Chicago Divinity School – with additional support from the University of Chicago Law School. There are fifteen different contributors, ranging from academics to activists, providing sustenance for the two main sections of the book: Part I, which deals with “case studies” in justice and mercy and Part II, dealing with “approaches” to justice and mercy. Ultimately, the “purpose” of the book is, as the editors put it, to encourage a “conversation” regarding the relationship between justice and mercy (p.2) – a project that they believe “can be complementary and provocatively constructive” for both law and religion (pp.2-3). In principle, it is hard to disagree with the call to “conversation”; the practice and the products of this discourse are, of course, the domains of detail where the “devil” resides. Reviewing a book with arguments spanning twelve distinct sub-topics (and three “Critical Responses” to various claims) is somewhat daunting, as the initiated know well. What follows then is a generally descriptive and necessarily economical account of each [*518] of the chapters, with some more general kudos and criticisms to follow.

Marc Mauer (Executive Director, Sentencing Project) begins the volume with an essay that “explores the hypothesis that the racial disparities produced by the punitive orientation of American criminal justice policy were not an unintended byproduct of a well-intended strategy to control crime, but were rather an outcome that was determined by the racial perceptions of the problem and that also could have been foreseen at various times of the adoption,” leading him to examine “both the framework by which policies have been developed as well as the processes by which they were implemented” (p.17). Criminal justice scholars will be very familiar with Mauer’s statistics and the sad state of affairs they portray, though he does conclude the essay with some reasons for relative optimism. Lois Gehr Livezey (McCormick Theological Seminary, Emerita) discusses the relationship between the churches and criminal justice as both confront problems of sexual and domestic violence. Providing some examples of reform and reconsideration from the legal realm over the last generation, Livezey’s primary claim seems to be that religious communities must more vocally and vigorously engage such problems in the public realm – requiring in the end that churches “reframe the issues of sexual and domestic violence as issues of power and investigate the spiritual, biblical, and theological roots of these meanings and uses of power” (p.47).

Ernie Lewis (Public Advocate for the Commonwealth of Kentucky) continues the conversation with some words “from the street” (my term). Specifically, Lewis (who also holds an M.Div. degree) notes at the outset that criminal justice in America is “mostly retributive” (p.51) and that “turning the other cheek” (my paraphrase – Lewis provides the literal biblical passage) is rare and he brings to bear his experience as the chief administrator of the statewide public defender system to stress that “mercy” – with respect to the death penalty, race, and sentencing – is detectable only in the form of “echoes.” The metaphor is a powerful one and provides a nice frame for Lewis’s realistic presentation of the prospects for “mercy” in a seemingly inhospitable punitive climate. Jonathan Rothchild (one of the co-editors) then considers the generally declining support for rehabilitation as a purpose for the criminal justice process over time, especially as manifest in the Federal Sentencing Guidelines which were designed to secure longer and more consistent terms of incarceration for offenders and which notably reduced discretion afforded to judges. Rothchild covers considerable ground in this essay, beginning with a discussion of the Walnut Street jail in Philadelphia in the early 1800s, and culminating in a call for “theological symbols and resources” to “challenge critically what we are and portray models of what we might become” (p.85). Rothchild realizes that his proposals are “inchoate” (p.85) – and his discussion of the various sub-themes is too abbreviated (I did not see even a reference to Robert Martinson’s (in)famous study, “What Works?”, arguably the most important assessment of rehabilitation in the twentieth century) – but this is forgiven by the breadth and significance of the questions he asks. [*519]

Albert Alschuler (Northwestern University Law and Law and Criminology Emeritus, University of Chicago) wonders whether “the concept of justice is so expansive that it leaves no room for mercy” (p.92) and concludes: “not quite” (p.92). With some fantastically thought-provoking examples along the way, Alschuler ponders the implications of mercy (for offenders), in terms of precedent established, and mercy (for victims), in terms of the well-being of those hoping to recover from their wounds. The example at the end, involving the murder of Matthew Shepard in Wyoming and the request of the victim’s family that the prosecutor not seek the death penalty, is a wonderful encapsulation of the themes of the essay – and the book as a whole. David Scheffer (Northwestern University Law) asks “Why International Law Matters in God’s World” and uses the essay to: argue for a new category of crimes (“atrocity crimes”), meeting his stipulated criteria and more obviously asserting the religious associations; to reject Robert Kaplan’s recent call for a “pagan ethos” in international affairs; and to demonstrate that accountability and forgiveness “reinforce each other” (p.113). Adopting this vernacular and these premises, Scheffer finds that we can “establish a credible means to pursue justice within a moral framework that recognizes the power of forgiveness in the proper context and for the appropriate category of criminals” (p.115). In a “Critical Response” to Scheffer, David Little (Harvard Divinity School) offers a sprawling critique that is sympathetic in some ways, but that ultimately presses Scheffer to develop his claims in greater detail. Why, for example, should the perpetrators of “atrocity crimes” be the target of retributive justice if, as the conference and this volume stress, “mercy” is the object of our desire – or at least our contemplation?

The essay by Matthew Myer Boulton (another co-editor) begins Part II of the book: “Approaches to Justice and Mercy.” Here, Boulton proposes a “theological account” of mercy as the “practice of transgressive care,” one which is “already pointing toward corollary accounts of both ‘justice’ and ‘neighborhood’” (p.130). In doing so, Boulton ably uses the story of the good Samaritan to develop his ideas and to draw some helpful contrasts with other authors’ accounts (e.g. Alschuler). The result is a quite persuasive account of “mercy” at a broader level, setting forth the notion of the “neighbor[hood]” as a trope for the consideration of the larger whole. Mark Lewis Taylor (Princeton Theological Seminary) argues that Christians are called upon to participate in “creative, popular movements against organized terror” (p.145) and then proceeds through four parts, specifying his understanding of “organized terror”; discussing the “theatric” components of such terror; presenting Christian practice as a “countertheatric”; and, orienting the above in terms of some examples from modern life. Many of my initial reactions to Taylor’s piece are fleshed out (much better than I could present them) in Sarah Coakley’s (Divinity, University of Cambridge) “Critical Response.” Specifically, Coakley pushes Taylor on his conception of “tactics” and the theory(ies) that would need to underlie them, as well as the particular relationship portrayed between Taylor’s notion of “terrorization” and the US prison system – a “terror” [*520] ongoing and expanding before our very eyes.

William Schweiker (University of Chicago Divinity School) develops his conception of “responsible mercy” from the perspective of Christian theological ethics. What this yields, according to Schweiker, is an understanding that such mercy is “nonnecessitated action, a forebearance, that enacts or discloses the worth of persons within a system of justice when that system has gone awry and threatens to eradicate or efface human worth” (p.185). The discussion and implications of “human wretchedness” is quite interesting in this chapter, but this piece seems (to me at least) to be the most removed from any immediate discussion of daily matters of law or criminal justice. There are some intimations at the end, but the essay mostly appears to be a (quite well done) discussion of various theological issues and philosophical stances (e.g. classical realist, amelioristic, and emancipatory approaches) that could have been improved with a more obviously practical contribution for the chapter. Kevin Jung (the final co-editor) sets forth a construction of justice and mercy as “belonging to independent but systematically related spheres of human action necessitated by the human condition of fallibility” and argues that human society must unite the two “in order to make it genuinely human” (p.207). To reject one in the interest of the other – even given their irreducible spheres and distinct purposes – is to miss their necessary relationship, Jung concludes, and throughout the essay provides a nice theoretical exposition of the book’s objectives and anticipations.

Peter Paris (Princeton Theological Seminary) follows this with a much too abbreviated essay for his compelling topic. Specifically, Paris’ most notable emphasis is to invite us to conceive of crime in terms of public health. Various scholars have begun to make this argument – e.g., that crime is an “epidemic,” requiring treatment along such lines – and Paris’ contemplation is at least in this spirit as he urges us to think of terms of problems to be rehabilitated rather than merely swept into the cycle of retribution. Inspired by the work of Norval Morris, W. Clark Gilpin (University of Chicago Divinity School) then provides a helpful overview of the history of prison conditions in the United States and uses Reinhold Niebuhr’s notion of equal justice as a means by which to evaluate the purposes of public theology. Gilpin’s essay draws a “Critical Response” from William Placher (Humanities, Wabash College), however, who finds that current conditions in the United States are ill-suited to explanations rooted in the language of sin. Placher uses the simple example of visiting prisoners as a way of illustrating his conception of the direction and degree of involvement (and resulting indignation) that is appropriate for Niebuhrian Christians.

There remains one final chapter to mention, which I will address below. But first, let me point to a few virtues in conclusion. With a few exceptions, the essays are well-written and scholarly (though also, obviously, fueled by the energy of faith and activism). The topics are generally all thought-provoking and take existing debates and dilemmas in new directions. And the editors have done a fine job of organizing the pieces [*521] into a logical sequence, such that the insights from the essays do accumulate in the reader’s mind while progressing through the book. The binary distinction between “case studies” and “approaches” did feel a bit forced at times (certain “cases” dealt with “approaches” and vice versa), but decisions of this sort do need to be made to satisfy publishers. Finally, the “Critical Responses” following three of the chapters were a nice touch and all that would have made them better is to have them following every chapter. Reading them, one felt as if one was really in the room to witness a commentary period.

But this “feel” of a conference leads me to a few criticisms as well. At least one author’s essay includes a sentence beginning with “For this presentation . . .” – a slip which is, I think, highly revealing of one of the book’s drawbacks: it is all over the map, much like academic panels and gatherings tend to be. This is good, to be sure, in that interdisciplinarity, creativity, and big, searching questions are at least my preference; but the book also lacks cohesion in many places because – while putatively focused on “justice” and “mercy” – several contributors make little effort to substantively address legal or criminal justice questions and seem, instead, to work only within their primarily theological training. (I will not address here the fact that all perspectives are, as well, from the Christian tradition, though this could also be a source of criticism for those hoping that the “Religion” in the sub-title might portend more heterogeneous contributions.) Where various essays do venture into legal or criminal justice debates, several do so without much attention to the immense literatures already associated with these fields.

In a sense then, “Law” and “Criminal Justice” do not necessarily belong in the sub-title. With a few exceptions, in fact, I would suggest that the cumulative focus of these essays is less specifically criminal justice and more social justice, a concept with obvious religious implications and one that is inclusive of its antecedent, but one that also affords the range of movement across quandries that seems to be preferred by the contributors. The actual policy matters of criminal justice that receive the most attention (the death penalty, incarceration, sentencing, rehabilitation) are the most commonly-considered ones and are, as conveyed in this text at least, actually issues of social justice mapped out on the plane of crime and punishment – especially because the authors’ collective attention is directed toward the underlying elements of race, class, anomie, and the like, that pervade criminal justice but which obviously transcend this context. Meanwhile, there are substantial numbers of legal and “criminal justice” questions that receive almost no attention at all, such as juries, judging, representation, enforcement, profiling, collateral consequences, trials and so on.

A final criticism lingered with me throughout the book, but was more apparent to me as I read William Schweiker’s “Postscript”: the volume could have really benefited from a deep and probing theoretical overview at the start. Schweiker acts the role of a discussant of sorts, attempting to draw various essays into conversation and to distill their collective themes, but because of the divergence of the essays [*522] (in their vernacular, historical periods, jargon, assumptions, intentions, references, and so on), the onus is on the editors, it seems, to pull things together in a more cohesive way at the outset so that the reader can make some sense of what the essays are going to accomplish as a whole. The editors do provide an Introduction, certainly, and in their individual essays one can see them working with the themes of the whole, but a more detailed road map from the start would have helped me as I looked for that intersection of Justice Avenue and Mercy Lane.

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© Copyright 2008 by the author, Brian Pinaire.

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FRIENDSHIPS ACROSS AGES: JOHNSON AND BOSWELL; HOLMES AND LASKI

by Jeffrey O’Connell and Thomas E. O’Connell. Lanham, MD: Lexington Books, 2007. 202pp. Cloth. $60.00. ISBN: 9780739120347.

Reviewed by Brett W. Curry, Department of Political Science, Georgia Southern University. Email: bcurry [at] georgiasouthern.edu.

pp.514-516

FRIENDSHIPS ACROSS AGES is an unusual book. On the one hand, its protagonists are well-known figures in literary, legal, and political history. Samuel Johnson, author of the famed DICTIONARY OF THE ENGLISH LANGUAGE, is memorialized as a result of James Boswell’s meticulous biography, THE LIFE OF SAMUEL JOHNSON. Oliver Wendell Holmes, Jr., surely needs no introduction to legal scholars. And, while somewhat lesser known today, Harold Laski is associated with a number of the twentieth century’s important political and literary endeavors. His friendship and correspondence with Justice Holmes, in particular, makes him highly relevant to American legal history.

At the same time, Jeffrey and Thomas O’Connell’s narrative is much more than an examination of the dyadic relationships between Johnson and Boswell, Holmes and Laski. Rather, it looks to two overarching characteristics of those relationships – that they involved “truly close male friendships of long duration . . . between men of widely different ages” (p.2) – and relies on those commonalities to structure comparisons and contrasts involving these four individuals across time.

O’Connell and O’Connell establish the parameters of their work in the book’s introduction. There, they provide abbreviated biographies of Johnson, Boswell, Holmes, and Laski, and foreshadow several characteristics that unite Johnson and Holmes (“the Olympians”) and Boswell and Laski (“the Outsiders”). For example, both the Johnson-Boswell and Holmes-Laski relationships lasted for approximately twenty years and, while neither Johnson nor Laski were lawyers, all four individuals possessed interest in the law. The two younger men were more progressive than Johnson and Holmes, had similar family backgrounds, and encountered varying degrees of prejudice because of their heritage (p.3). Johnson and Holmes, by contrast, were both childless, independent, and exemplified their respective historical eras.

In Chapter One, O’Connell and O’Connell provide an overview of Johnson, Holmes, and Laski’s views on politics and the law. Though he was not a lawyer, because of his deep faith, Johnson believed that religion should inform the legal code. For Holmes, by contrast, it was not religious belief but “experience” that structured “the life of the law.” Rather, Holmes’ legal realism and his adoption of Darwinian views on matters such as reproduction (e.g., BUCK v. BELL 1927) set him apart from Johnson’s belief that law is a direct descendant of religion (p.33). Finally, the Chapter touches on Laski’s evolution [*515] toward Marxism and argues those beliefs took on an almost religious quality for the Englishman later in his life.

Chapters Two and Three concern Johnson and Boswell, respectively. In Chapter Two, O’Connell and O’Connell provide a thorough account of Johnson and his views. The most revealing portion of the chapter discusses Johnson’s thoughts on law, which are largely contained in the Vinerian Lectures he authored clandestinely with Robert Chambers (1758). Like Holmes, Johnson viewed the law as reflecting the society it was designed to govern (p.33). Johnson believed that law should be comprehensible, should draw clear legal rules, and should be administered strictly (p.36). Indeed, Johnson’s religious devotion cultivated a skepticism of human instinct that made it imperative for him that law be rigorous and uncompromising. Accordingly, “[t]he pragmatic test of laws for Johnson was always: Is the law clear enough to be understood? Will people know the consequences of their actions if those actions encroach on their neighbors?” (p.44).

Chapter Three’s discussion of Boswell is the most succinct of the book’s chapters on the four protagonists. Here, O’Connell and O’Connell convey elements of Boswell’s relationship with Johnson, noting that layman Johnson regularly gave attorney Boswell legal advice throughout their friendship (p.59). Boswell’s relationship with his father is discussed, as is his puckishness and penchant for licentiousness. The chapter also argues that Boswell’s legal training provided him with analytical tools that would be useful as he authored THE LIFE OF SAMUEL JOHNSON.

In Chapter Four, O’Connell and O’Connell address Holmes and, in Chapter Five, Laski. In Chapter Four, Holmes’ full biography is presented, accompanied by details of his upbringing, his marriage, and his interest in literary classics. The chapter centers on his legal career, and discusses the dramatic events surrounding his ascendance to both the Massachusetts Supreme Court in 1882 and the United States Supreme Court in 1902. Here O’Connell and O’Connell discuss Holmes’ relationship with his Supreme Court colleagues, giving particular attention to his deep irritation with the willingness of the Court’s conservatives to strike down legislation (p.80).

Chapter Five formally introduces Harold Laski, Justice Holmes’ junior friend and correspondent of some twenty years. A leading figure in both British politics and academics, O’Connell and O’Connell paint Laski as an individual with access to a number of important figures of his day. He was acquainted with President Franklin Roosevelt, the Kennedys, and Winston Churchill, among others. As such, “[l]argely through his role as informal adviser to those in the corridors of power, he helped in important ways to set the stage for a number of the key, positive developments that have come about in his and our time” (p.108). Even so, Laski does not come away flawless. His career is described as “quixotic,” his championing of Marxism is subjected to criticism, and his willingness to exaggerate his access to the echelons of political power is duly noted (p.106).

The book’s final three chapters return to comparative examinations of these characters, beginning with an in-depth study of familial relationships in Chapter Six. [*516] Chapter Seven compares and contrasts Johnson and Holmes – “the Olympians.” While their views differed on important topics such as religion and the permissibility of war, here O’Connell and O’Connell point to what they argue is a chief similarity between the two men: both rejected static conceptualizations of the law, believing that it must adapt with time if it is to be effective in regulating society. Chapter Eight juxtaposes Boswell and Laski. O’Connell and O’Connell note their physical similarities, as well as their ability to reinvigorate Johnson and Holmes during their later years. The Chapter also discusses Boswell and Laski’s generosity and their keen interest in writing. However, O’Connell and O’Connell acknowledge questions surrounding the veracity of Laski’s literary work – namely, his correspondence with Holmes – forthrightly. The Chapter concludes by noting that both Boswell and Laski lived to be approximately the same age, and died defeated men.

FRIENDSHIPS ACROSS AGES is, on the whole, an entertaining and enlightening read. It utilizes a structure that facilitates a series of biographical juxtapositions in an accessible, thoughtful way. However, the book is not without its shortcomings. First and foremost, I found a number of the historical anecdotes – such as Chapter Three’s portrayal of Boswell’s buffoonery (p.56-57) and Chapter Four’s discussion of Holmes’ marriage (p.71-73) – tangential and distracting. Second, in light of the comparative brevity of the chapters devoted to Boswell and Laski (Chapters Three and Five), I believe O’Connell and O’Connell might have incorporated those points more effectively by absorbing the discussions into a single Johnson-Boswell Chapter and, similarly, a Holmes-Laski Chapter. Finally, structurally speaking, Chapter Six’s discourse on “Fathers and Females” seems odd as a brief, stand-alone section of the book. In short, sections of that chapter seemed extraneous, and the authors would have been better served to intersperse the most relevant portions of this information into the earlier chapters.

That said, Jeffrey O’Connell and Thomas E. O’Connell should be commended for their willingness to approach these literary and legal relationships from a unique perspective. Given the centrality of close, almost familial, relationships to this book, it is particularly fitting that it is authored by two brothers.

REFERENCES:
Boswell, James. 1885. THE LIFE OF SAMUEL JOHNSON. London: G. Routledge and Sons.

Holmes, Oliver Wendell, Jr. 1923. THE COMMON LAW. Boston: Little, Brown.

Johnson, Samuel. 1755. A DICTIONARY OF THE ENGLISH LANGUAGE. London: W. Strahan, for J. and P. Knapton.

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

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© Copyright 2008 by the author, Brett W. Curry.

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PROPERTY: MEANINGS, HISTORIES, THEORIES

by Margaret Davies. New York: Routledge-Cavendish, 2007. 176pp. Paper: $37.95. ISBN: 9781904385844.

Reviewed by David Schultz, School of Business, Hamline University. Email: Dschultz [at] hamline.edu.

pp.511-513

Concepts are embedded with ontologies and epistemologies. Much like the Rod Stewart song which once proclaimed that “every picture tells a story,” concepts envelop their own histories which provide a narrative of their meaning. Concepts can thus be viewed both historically and linguistically. Historically, as Bryce Gallie and others suggest, terms such as “power,” “authority,” and “democracy” are essentially contested terms, subject to indeterminate meanings that are fixed by historical circumstances and contexts. Linguistically, concepts, as Ludwig Wittgenstein articulates, derive their meaning both from their use and from their relationship to other terms. Concepts are situated within specific language games and assume their meaning within an ensemble words and usages. Concepts are social artifacts.

Yet to argue that concepts are embedded with ontologies and epistemologies suggests that terms are more than mere words. They are not only historically contingent and define other words but they have meanings that can structure social relations and therefore impact human behavior. Concepts have a Heideggerian sense in that terms such as “democracy” are not only descriptive, they can affect the structures of political power and organize the ways they operate as they are designed to produce specific outcomes or processes. Similarly, concepts such as “constitution” or “free markets” also are ontological in that they can affect specific ways human institutions operate.

“Property” too has its own ontology and epistemology. Explicating it is the subject of Margaret Davies’ short but informative and insightful book. Focusing primarily upon western conceptions of property, Davies aims to examine the term from multiple perspectives. According to the author, property is more than a legal concept. It is a pluralistic term, attached to it are three dimensions which form a “cultural matrix” for its understanding in the west. These three dimensions are its symbolic and cultural meanings, its legal, political, and social histories, and the philosophies that have justified its various conceptualizations. These three dimensions are the subject of the major chapters of the book – meanings, histories, and theories – which, along with the conclusion which seeks to offer critical alternative meanings to property, frame the structure of the book.

Chapter One aims to define the book’s project and orientation. Davies seeks to provide a critique of property, using a conception of critique that is reminiscent of the way the Frankfort Critical School applied the term. In doing so, she finds that liberal conceptions of the terms yield several major themes. First, property is a delineating term [*512] differentiating the public from the private. Second, property is often associated with class. Third, property is intermixed with concepts of person and selfhood. Fourth, property is almost always private, demarcating the boundary with the commons. Fifth, discussions of property divide over whether ownership is natural or a product of artifice. Sixth, disputes exist over how property relates to the law and, finally, questions persist regarding its linkage to power. These seven themes are explicated in the three chapters on meanings, histories, and theories.

Chapter Two (meanings) is a wide-ranging discussion of property within the west. It moves from looking at the term as a legal concept from a Austinian, Benthamite, and legal positivist perspective to its relationship to possessive individualism in the works of C.B. MacPherson. But Davies moves beyond the legal and philosophical and into the psychological and genealogical, drawing upon Derrida and Foucault to describe the role of property in constructing gender relations. Here, as well as in Chapter Four when she draws upon Lacan, she links property to the definition of the body and sexuality, showing how the term asserts and defends male heterosexuality and power.

Chapter Three (histories) continues the discussion that links property to male authority. Davies traces the concept of property to Roman notions of imperium and dominium. Her point in performing this genealogy is to connect property to power and then to the family. If families are the property of the father, then males have dominium over women and their children. If property also has a political dimension outside the family, its control provides imperium socially and legally. In either case, property provides control over women. Chapter Two also examines the role of property in the Middle Ages, indicating how the commons were privatized, comparing it to recent efforts in the electronic age to repackage common information for private sale. In effect, the postmodern commodification of knowledge is like a second enclosure movement.

Chapter Four (theories) examines Lockean and Hegelian conceptions of property. Davies describes how both are the major rival theories of property in the west, offering contrasting views on its relationship to personality. If for Locke property comes after the person has been defined, Hegel sees both acquiring meaning after being socially embedded. Davies explores the implications of these contrasting views of property and personality in this chapter, again noting its role in gender construction and in defining power.

The final chapter is less of a conclusion and offers more of an effort to critique where property is headed. Davies emphasizes numerous challenges to property, arguing for example that non-western conceptions of the term could [*513] force changes to its ontology. Second, in criticizing the commodification of knowledge, she discusses how the open source movement and Web sites such as Napster are challenging the idea that the tragedy of the commons associated with common ownership produce externalities. Within the file-swapping movement is an effort to contest patent and copyright laws that could produce new ownership patterns. Finally, alternative conceptions of property could force redefinitions of the body that yield new gender relations.

PROPERTY: MEANINGS, HISTORIES, AND THEORIES is a short book, yielding lack of detail as the most serious criticism of it. Yet Davies does not intend to present an exhaustive treatment of the subject, merely a summary overview. The book succeeds in that aim. It also is directly on target in arguing property is more than a “res,” it really is about the relationships among things and how we constitute the many “rei” within society. Finally, Davies performs a outstanding task in describing the inner relations between property, power, and sexuality. She takes the term property outside of its legal meaning and successfully explores the cultural matrix she sets out to articulate. Finally, Davies moves debate about the term beyond linguistics and into a realm of ontology that is highly informative and more interesting than most discussions of the subject.

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© Copyright 2008 by the author, David Schultz.

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INHERITED WEALTH

by Jens Beckert. Princeton: Princeton University Press, 2007. 384pp. Cloth. $85.00/£50.00. ISBN: 9780691124971. Paper. $39.95/£23.95. ISBN: 9780691134512.

Reviewed by Andrea Pozas-Loyo, Department of Politics, New York University. Email: apl228[at]nyu.edu.

pp.508-510

INHERITED WEALTH is a rich sociological study that explores the development of inheritance law in France, the United States, and Germany since the late eighteen-century. Beckert’s study focuses on four controversies over the regulation of private wealth transfer motis causa: 1) the dispute over testamentary disposition, 2) the debate over deceased’s relatives rights to an inheritance, 3) the abolition of entails, and 4) the conflict over inheritance taxation.

INHERITED WEALTH is foremost an enjoyable and erudite invitation to an extremely interesting yet understudied research area. Beckert successfully captures the reader’s interest in the empirical relations and normative issues addressed in his book. Inheritance law is revealed as a promising glass through which some questions central to political science can be investigated. For instance, the fight over the abolition of entails is a nice case to study when and why can we expect successful reform against legal clauses that entrench political power. Beckert also shows that inheritance law is a fruitful field for normative research. The transmission of “unearned wealth” from one generation to the other raises complex normative problems for democratic societies where merit is the normative justification of inequality. Political scientists interested in the empirical or normative study of law are therefore likely to find in INERITED WEALTH a rich source of engaging questions.

While in INHERITED WEALTH we find a remarkable amount of fascinating details on an extremely diverse range of political, social, economic and cultural factors surrounding the development of inheritance law, or perhaps because of it, I found the explanatory side of the book less satisfying. This is due in part to the methodological approach, a “multidimensional heuristics [that] incorporates economic interests, demands by the state, and the role of social institutions (especially the family and the legal system), as well as culturally based values that are expressed in the discourse on inheritance law” (p.5). This methodological approach seems to invite the incorporation of a very large amount and diversity of independent variables. Given the number of variables, systematically testing general hypotheses becomes unfeasible. Thus, the conclusion that “the contingency of social processes of institutionalization must be placed front and centered” (p.293) and that “the evolution of the law seems to be the result of concrete processes” marked by very specific political, cultural, social and legal conditions (p.293) seems to follow more [*509] from the methodological approach than from an empirical analysis.

INHERITED WEALTH has two theses. The first is that the justifications expressed in dominant patterns of argumentation, within which the contending parties over the terms of inheritance law defend their views (i.e. the discursive fields), are a necessary but not a sufficient independent variable to explain the development of inheritance law. To be sure, Beckert’s assertion is not that “the specific lines of conflict in legal discourse . . . can explain the development of inheritance law, but rather that [they] influence legal development ALONG WITH other aspects” (p.7).

In order to support his first hypothesis Beckert presents a very interesting account of different empirical and normative claims over the regulation of inheritance. Through the pages of INHERITED WEALTH we learn the views of people as diverse as Montesquieu, Ferdinand Lassalle, and Andrew Carnegie. In addition, Beckert analyzed thirty-six legislative debates, and he presents several nice tables with data of the speaker (party, gender, religious affiliation, and the like), of the speech (date, for or against a given position), and of specific reasons adduced. Does INHERITED WEALTH deliver on its promise of showing us the necessity of including the justifications expressed in the discursive fields to give a satisfactory account of the development of inheritance law in France, Germany and the United States?

Beckert claims that “the relevance of these symbolic orders for explaining institutions is revealed by correspondences between the structure of the normative problematization of inheritance law and its actual institutional expression” (p.283). However, these correspondences do not seem enough to make the point. A skeptic reader could argue that the specific development of inheritance law in each country could in principle still be determined by other variables and the correspondence, with specific orders of justification the result of their being strategically used by otherwise motivated law-makers. On Beckert’s own account, the role and importance of discursive fields vary, sometimes he claims that they only “support” the existing rules (e.g. p.87), or “legitimize” some socio-politically motivated change (e.g. p.59), or reflect specific economic goals, while other times they seem a central explanatory variable with independent effects over the legislative outcome (e.g. p.284). To be fair, the questions “when and how much do discursive fields matter?” and “which are the causal mechanisms through which they influence legislative outcomes?” are briefly explored in the conclusion; however, a fully developed explanatory model structuring the rich content of the book is still missing.

The second thesis of INHERITTED WEATH is that the development of inheritance law is not a linear evolution toward increasingly efficient institutional forms or increasing individualization. I found this second line of argumentation convincing. Throughout the book Berckert presents several interesting counterexamples against these teleological theories. For instance, the evolution of inheritance taxation does not present a clear move towards reducing fiscal intervention and [*510] increasing individual freedom of disposal; nor does the development of testamentary freedom where no important expansion of individual testamentary rights occurs in the more than two centuries under study. Beckert then successfully points to clear instances that disprove the increasing individualization theory both in its Weberian and Durkheimiam versions. INHERITED WEALTH also contains interesting counterexamples of the increasing efficiency thesis. From an efficiency perspective, the development of inheritance law does not have a clear upward trend, as the implementation of the real partitioning in France after the Revolution clearly shows.

Notwithstanding the explanatory concerns I have expressed, INHERITED WEALTH is an extremely stimulating book, on a set of issues that has not received much attention from political scientists. It is an impressive work that invites further research on this fascinating topic. Hopefully this generous invitation will be answered by scholars and students from the fields of legal, political, social, and economic analysis.

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© Copyright 2008 by the author, Andrea Pozas-Loyo.

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CYBERCRIME: THE TRANSFORMATION OF CRIME IN THE INFORMATION AGE

by David S. Wall. Cambridge, UK: Polity Press, 2007. 288pp. Hardback. £55.00/$69.95. ISBN: 9780745627359. Paper. £17.99/$26.95. ISBN: 9780745627366.

Reviewed by David O. Friedrichs, Department of Sociology/Criminal Justice, University of Scranton. Email: friedrichsd1 [at] scranton.edu.

pp.505-507

All of us learned about the industrial revolution during the course of our secondary school education. Will the “computer revolution” of the current era be regarded at some future time as a transformative historical event on the same scale as the industrial revolution? While it may still be too early to give a definitive answer to this question, we can certainly say that computer technology – and the internet as one conspicuous manifestation of this technology – has had a dramatic impact on many aspects of contemporary social existence. The book under review addresses one significant dimension of the computer revolution: the emergence of a wide range of crimes and harmful activities now carried out over the internet, and increasingly only made possible as a consequence of the existence of the internet, as well as the new and formidable challenges involved in controlling such crime.

David Wall, the author of CYBERCRIME, is a professor of criminal justice at the University of Leeds in the United Kingdom. He has published quite extensively over the past ten years or so on various dimensions of cybercrime and its control, including a 2001 book, CRIME AND THE INTERNET. Of course there are others who have engaged with this topic – notably Peter Grabosky of the Australian National University, most recently in ELECTRONIC CRIME (2007) – but due to its novelty the literature on cybercrime is still pretty much in its infancy. The present book is best described as a rather comprehensive survey of what is presently known about cybercrime and its control. In this realm the term “presently” has to be emphasized in light of the exceptionally dynamic character of such crime, and the almost dizzying challenge of coming up with novel responses to each new technological break-through on the part of those engaged in cybercrime. The book is intended as a text for advanced undergraduate and graduate students in criminology and criminal justice in particular, but is also intended to be useful to a broad academic and professional audience interested in cybercrime issues from some vantage point. It is written in a style and format; however, that may render it more appealing to an academic than to a professional audience. The term “cybercrime” itself encompasses not only crimes in a legal sense that are carried out in cyberspace – the realm of networked computer activity – but more broadly actions in that space that are deemed harmful (or simply irritating) in some way. At the outset of the book, Wall introduces his “transformation thesis,” that networked technologies have transformed the character of criminal activity and opened up broad [*506] new opportunities for such activity. Following the influential law professor Lawrence Lessig, Wall adopts a “digital realist” perspective that seeks to contextualize cybercrime. Perhaps inevitably, he also applies an interdisciplinary approach to this complex and multi-faceted topic.

The complexity of cybercrime begins with the multiple competing discourses that are invoked in relation to it, and which Wall attempts to sort out. The specific “media construction” of cybercrime merits some attention here, as well as the exceptionally problematic efforts to generate meaningful statistics relating to such crime. Wall notes the range of both individual and corporate disincentives to report instances of cybercrime, which in turn limits the criminal justice system response. The inclusion of questions relevant to cybercrime on large-scale crime victimization surveys (in both the United States and the United Kingdom) is a very recent development. Accordingly, many different types of claims relating to cybercrime are open to challenge, and the on-going power struggle for control over cyberspace informs the complex mix of responses to such crime. Prosecutors who attempt to address allegations of wrong-doing in this realm confront exceptional challenges, with the lines between potential criminal and civil wrong-doing especially blurred.

David Wall distinguishes between first generation cybercrime – the use of computers for criminal activity – second generation cybercrime – crimes across networks – and an emerging third generation of cybercrime – crimes that are automated and wholly mediated by internet technology. This typological distinction is arguably useful, if somewhat abstract. Wall then proceeds to delineate the range of offenses that are carried out on the internet. “Phishing” – fraudulently obtaining personal information online – and its automated version, “pharming,” is one form of cybercrime that has received considerable attention recently. Altogether, many different frauds are perpetrated in cyberspace, including deceptive ads, investment schemes, phony auctions, “credit repair, and the like. The “Nigerian” advanced fee frauds – email solicitations claiming that the recipient can receive a high percentage of a large sum of money that is miraculously available – are surely familiar to all readers of this review. Intellectual property piracy in various forms is widespread. Wall also addresses what he characterizes as “computer content” crime, notably pornography and violence on the web. The internet has given rise to cyber-stalking, and has facilitated a sexual focus on children. The perceived “anonymity” of victim-offender relationships is a distinctive feature of this and all other forms of cybercrime.

Wall addresses at some length a form of activity carried out over the internet that impacts measurably on all of us who use email, “spam” as it is commonly labeled. In some jurisdictions sending out spam is itself a criminal offense. It is all too often a means of committing criminal offenses (and spammers themselves, we are informed, may be victimized by those who sell fraudulent spam lists!). These mass email solicitations are at the least a significant source of annoyance and irritation for internet users, and at worse are wholly disruptive to legitimate use of the internet. In light of the monumental volume of spam, it is rather striking that the actual size of the perpetrator class appears to be quite [*507] small. Disturbingly, increasingly sophisticated ways to ensnare victims are on the rise with spam, which is ever less reliant upon direct human activation, and fears are intensifying of the exponential growth of spam-based infections cutting across different operating systems. Organized crime entities are now becoming involved with spam.

The final three chapters focus upon the immense challenges of effectively controlling cybercrime, broadly defined. The fact that the scope of individual victimization is often quite modest, although in bulk is very great; that it is under-reported, and non-routine; that law in this realm is still very unsettled, filled with gaps; and that its inter-jurisdictional nature allows for “forum shopping” by those being pursued, are among these challenges. As cybercrime comes to be increasingly driven by technology it seems likely that the policing of such crime will also be increasingly technological, by computer “code” as opposed to law. The traditional police are not organized (or trained) to address this type of crime effectively, and to date play a small role in responding to it. Although cyberspace is not the wholly lawless and disordered world it is sometimes made out to be, control in cyberspace is mediated by a complex of different forces. Some preventive strategies directed at online fraud, such as centralized payment systems, are at least somewhat effective. But altogether the fundamental conundrum arising here is how to devise mechanisms of prevention and control that are effective but do not compromise the whole range of productive transmissions on the internet. Accordingly, Wall concludes that the cybercrime issue will increasingly compel us to rethink such core concepts as “security” and “privacy.” Solutions to the cybercrime problem cannot be generated by technology alone, but require a complex consideration and balancing out of legal, social and economic dimensions. In an abrupt conclusion to this book Wall wonders whether the call for a more transparent internet will set the stage for 21st century witch hunts. His own “digital realism” requires sophisticated, multi-dimensional responses to cybercrime.

How useful is this book for the primary readership of this online journal? Although the author touches upon the political construction of law in relation to cybercrime, and the socio-legal context within which cybercrime operates, this is not the principal focus of his book. But certainly the book provides those who might want to explore more fully the political, jurisprudential and socio-legal dimensions of such crime with a useful mapping of the terrain, major emerging trends, key issues, and the specific vocabulary invoked. As a reader not naturally enamored with “high tech” – indeed, as someone more in the “technophobe” camp – I cannot claim to have experienced this book as an especially enjoyable or engaging reading experience, but it is indisputably quite useful and informative.

REFERENCES:
Grabosky, Peter. 2007. ELECTRONIC CRIME. Upper Saddle River, NJ: Pearson.

Wall, David S. 2001. CRIME AND THE INTERNET. London: Routledge.

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© Copyright 2008 by the author, David O. Friedrichs.

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ATTITUDINAL DECISION MAKING IN THE SUPREME COURT OF CANADA

by C. L. Ostberg and Matthew E. Wetstein. Vancouver: UBC Press, 2007. 288pp. Cloth. CDN$85.00/ US$93.95. ISBN: 9780774813112. Paper. CDN$32.95/US$36.95. ISBN: 9780774813129.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: roy [at] politics.tamu.edu.

pp.500-504

The attitudinal model in the study of judicial decision making draws its influence from its parsimony and explanatory power. Judges single-mindedly pursue their personal policy preferences which can be located on a single ideological dimension along with the issue raised in a legal dispute. The interaction of preferences and issue determines how judges ultimately vote (Segal and Spaeth 2002). It is simple, though some complain it is too simple. But it works, most of the time, and perhaps in many places, though that remains an open question. One reason this remains an open question is that the institutional features of courts vary considerably.

Next year will be the fortieth anniversary of the publication of a book, edited by Glendon Schubert and David J. Danelski, devoted exclusively to studies of comparative judicial behavior. This path breaking book included two chapters on the Supreme Court of Canada that found the justices’ voting patterns during the 1950s and 1960s were structured along various policy dimensions (Fouts 1969; Peck 1969). This led Fouts (at 284) to conclude “the Supreme Court of Canada resembles its U.S. counterpart in significant respects.” Interest in the behavior of the justices unfortunately waned after this burst of enthusiasm until various internal and external changes occurred that expanded the Supreme Court’s authority, particularly the adoption of the Charter of Rights and Freedoms in 1982. The Charter piqued scholarly curiosity about how the justices behaved in this new legal regime and raised expectations that the resemblances between Canadian and American judges would become stronger.

For several years now, C. L. Ostberg and Matthew E. Wetstein have probed the limits of the attitudinal model in Canada’s Supreme Court; in their estimation “one of the easiest test cases” around to see if this warhorse of American judicial behavioralism can go the distance in another venue. Ostberg’s dissertation compared the American and Canadian high courts following Canada’s adoption of its Charter of Rights and Freedoms (Ostberg 1995). In subsequent work, among other things, Ostberg and Wetstein extended Segal’s (1984) search and seizure model to Canada and assayed how case facts and attitudes influenced judicial votes regarding this issue (Wetstein and Ostberg 1999; Ostberg and Wetstein 1998). A recent article more broadly explores attitudinal decision making on Canada’s high court during the mid-1990s (Ostberg, Wetstein and Ducat 2002). [*501]

Ostberg and Wetstein’s new book builds on their prior research but expands on it in ambitious ways, making it a stand-alone and worthy piece of work. Their study surveys the voting decisions of twenty-three justices who sat on the bench from 1984 to 2003. The authors’ central concern is determining if the justices’ policy preferences significantly affected whether they voted liberally in three different legal domains (criminal, civil rights and civil liberties, and economic) with cases in two specific issues drawn from each issue domain – for example, cases involving unions and taxes in the economic domain – the foundations for the analyses .

Measuring judicial preferences, of course, is an immediate and critical concern. Taking a cue from Segal and Cover (1989), Ostberg and Wetstein conducted content analyses of commentaries in nine Canadian newspapers regarding the justices at the time they were nominated. Their measure is operationally different, however, from the original one. Their coding procedure is more broadly framed to avoid the civil liberties/civil rights bias of the Segal/Cover scores, and they varied the weights that make up the scores to take into account the particular features of Canada’s newspaper industry. Ostberg and Wetstein are sensitive to this measure’s underlying assumption that judicial preferences are stable over time; tests of this assumption persuaded them that sufficient stability existed that the measure was appropriate. In addition to these scores, the authors employ indices of personal attributes of the justices and the party of the prime minister who appointed them as other ideological indicators. Chapter 3 fully and carefully covers the construction of these variables, assesses their external validity, and how they match up with measures used in previous research.

A common template structures Chapters 4-6, the book’s central chapters that correspond to the three legal domains. First, the domain’s docket is described. The domain’s annual share of Canada’s docket over the twenty year period is presented along with how often the domain’s cases are decided non-unanimously and the average size of the corams, or panels, that heard the cases; Canada’s court does not always sit en banc but often in panels of five or seven justices. (The chief justice decides both the size of panels and which justices will sit on them if the court does not sit en banc.) The average size of panels, typically around seven, varied across the three legal domains and over time. Next, the voting patterns of the individual justices are described: how often they dissented, how often they wrote majority, concurring, or dissenting opinions (to flag those justices who were leaders or followers on the bench in a particular domain), how often they voted liberally and to overturn a law as an indictor of “activism,” and whether these voting patterns were stable over time. The chief concern of these descriptions deals with what appears to be a strong “consensus norm” on the Canadian court and the leadership of the chief justice.

The final piece tests the efficacy of the attitudinal model in the specific issue areas of the particular domain. In addition to the ideology measure and the party of the prime minister or other personal attributes of the justices, the logistic models include the facts related to the cases, what litigants were [*502] involved, and who the chief justice was at the time of the votes. (There were three chief justices during the twenty year period.) Ostberg and Wetstein weave into their statistical analyses illustrations from pertinent court decisions to help explain the results of the models. The book, nonetheless, is driven by its findings both expected and unexpected (of which there are many). Broader theoretical considerations tend to be left in the back seat as ad hoc explanations for anomalous results steer the discussion.

This becomes especially evident with Ostberg and Wetstein’s strategy of testing their models with data for both unanimous and non-unanimous decisions and then running the models separately for only the non-unanimous cases. In many instances, this switch dramatically affects the results; statistical significance rises or falls; signs for variables flip from what they were before; variables get dropped because the smaller number of non-unanimous cases creates multicollinearity problems. As a consequence, it is often difficult to interpret the competing results. For example, the ideology measure in search and seizure and in right to counsel cases jumps in importance when only non-unanimous decisions are used as compared to the “all cases” results. But would this variable be influential if only unanimously decided cases were used? This strategy also makes it difficult to know whether case facts are more strongly related to voting decisions in unanimous cases than in non-unanimous cases and thus evidence for the influence of the “legal model” when the justices agree on cases.

Setting aside these concerns, does the attitudinal model work in Canada? Chapters 6-7 wrap up the book’s findings and place them in perspective. Ostberg and Wetstein ultimately conclude “the impact of ideology is not as crystal-clear or as systematic as that found in the US context” (p.226). Their biggest surprise, given the success of the Segal/Cover scores in the US, is that the newspaper-based measure of judicial ideology flunked the test in cases involving equality and free speech issues drawn from the civil rights and liberties domain. The same thing occurred for the two issue areas in the economic domain. Only in the criminal law domain did the measure meet expectations. Indicators of the justices’ personal attributes as alternative indicators of ideology did much better in civil rights and liberties issues; female justices were significantly more likely than their male counterparts to vote liberally, and the party of the appointing prime minister had a marginal effect. In the economic domain, justices who spent most of their careers in private practice were more likely to vote against unions, but no other personal attribute variable came into play in tax cases. (For a recent reconsideration of the personal attribute model in Canada, see Songer and Johnson 2007.) While these are suggestions that policy views matter some of the time in Canada, it nonetheless means that case characteristics, the type of litigant, and who the chief justice was at the time of the cases did much of the empirical heavy lifting in the statistical models.

It is a mixed picture to be sure and one that Ostberg and Wetstein anticipate in Chapter 2 when they consider multiple political, institutional, and [*503] Charter-related reasons for why Canada’s justices might be variously encouraged or discouraged to follow their ideological leanings. Most of these factors, however, remain on the shelf until Ostberg and Wetstein need them to explain findings; they are generally not incorporated or not capable of being incorporated into the statistical models. For instance, the chief justice’s discretion to set the size and composition of panels, an institutional factor, and how it relates to consensus on the bench frequently comes up in the book’s discussions, but it is not systematically integrated into the analysis. Nor is it immediately obvious how the chief justices’ decisions are linked to whether the justices on the panels vote liberally or not.

So, what’s next? Perhaps a new, improved measure of Canadian judicial ideologies? Alarie and Green (2007) adapted Martin and Quinn’s (2002) approach to generate estimates of the ideal points of Canadian justices and compared them to those for the US Supreme Court. The ideal points for the Canadian justices were less dispersed and more clustered than those for the American justices, which is consistent with a stronger norm of consensus on Canada’s court. However, further analysis suggested that the justices’ votes “are not driven by an underlying attitude that is distributed unidimensionally” (at 211), which may be why Ostberg and Wetstein’s newspaper-based ideology measure proved disappointing and which may also limit the utility of the Martin and Quinn approach in Canada.

Maybe the way forward is to acknowledge the intricacies of judicial behavior in Canada while continuing direct comparisons with the US. Ostberg and Wetstein, joined by Songer and Johnson, in a forthcoming article take exactly this approach to question whether a unidimensional voting model makes sense in Canada’s Supreme Court compared to the US Supreme Court. They conclude it does not, after factor analyses of non-unanimous decisions in the two courts reveal not only that the primary dimensions underlying voting on the two courts differ but also that Canadian jurists are less consistent and more unpredictable than American justices. Another way may be to take a long term view of Canada’s Supreme Court with the hope of capturing the effects of the institutional changes it has undergone that simple applications of the attitudinal model cannot reveal. Songer’s forthcoming book, THE TRANSFORMATION OF THE SUPREME COURT OF CANADA: AN EMPIRICAL EXAMINATION holds out the promise that it will begin to unravel the complexity of the Canadian case. In the meantime, it seems that Fouts may have misjudged how closely Canada’s Supreme Court would come to resembling its American cousin.

REFERENCES:
Alarie, Benjamin R.D., and Andrew Green. 2007. “The Reasonable Justice: An Empirical Analysis of Frank Iacobucci’s Career on the Supreme Court of Canada.” 57 UNIVERSITY OF TORONTO LAW JOURNAL 195-226.

Fouts, Donald E. 1969. “Policy-Making in the Supreme Court of Canada, 1950-1960.” In COMPARATIVE JUDICIAL BEHAVIOR: CROSS-CULTURAL STUDIES OF POLITICAL DECISION-MAKING IN THE EAST AND WEST, eds. Glendon Schubert and David J. Danelski. New York: Oxford University Press. [*504]

Ostberg, C.L. 1995. “A Comparison of US and Canadian Supreme Court Decisions after the Addition of the Charter of Rights and Freedoms to the Canadian Constitution.” Ph.D. dissertation, Northern Illinois University, DeKalb, Illinois

Ostberg, C.L., and Matthew E. Wetstein. 1998. “Dimensions of Attitudes Underlying Search and Seizure Decisions of the Supreme Court of Canada.” 31 CANADIAN JOURNAL OF POLITICAL SCIENCE 767-87.

Ostberg, C. L.,and Matthew E. Wetstein. 2002. “Attitudinal Dimensions of Supreme Court Decision Making in Canada: The Lamer Court, 1991-1995.” 55 POLITICAL RESEARCH QUARTERLY 237-58.

Ostberg, C.L., Matthew E. Wetstein, Donald R. Songer, and Susan W. Johnson. Forthcoming. “Ideological Consistency and Attitudinal Conflict: A Comparative Analysis of the U.S. and Canadian Supreme Courts.” COMPARATIVE POLITICAL STUDIES.

Peck, Sidney R. 1969. “A Scalogram Analysis of the Supreme Court of Canada, 1958-1967.” In COMPARATIVE JUDICIAL BEHAVIOR: CROSS-CULTURAL STUDIES OF POLITICAL DECISION-MAKING IN THE EAST AND WEST, eds. Glendon Schubert and David J. Danelski. New York: Oxford University Press.

Segal, Jeffrey A. 1984. “Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-1981.” 78 AMERICAN POLITICAL SCIENCE REVIEW 891-900.

Segal, Jeffrey A., and Albert D. Cover. 1989. “Ideological Values and Votes of US Supreme Court Justices.” 83 AMERICAN POLITICAL SCIENCE REVIEW 557-65.

Segal, Jeffrey A., and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.

Songer, Donald R. Forthcoming. THE TRANSFORMATION OF THE SUPREME COURT OF CANADA: AN EMPIRICAL EXAMINATION. Toronto: University of Toronto Press.

Songer, Donald R., and Susan W. Johnson. 2007. “Judicial Decision Making in the Supreme Court of Canada: Updating the Personal Attribute Model.” 40 CANADIAN JOURNAL OF POLITICAL SCIENCE 911-34.

Wetstein, Matthew E., and C.L. Ostberg. 1999. “Search and Seizure Cases in the Supreme Court of Canada: Extending the American Model of Judicial Decision Making across Countries.” 80 SOCIAL SCIENCE QUARTERLY 757-74.

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© Copyright 2008 by the author, Roy B. Flemming.

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PROVOKING DEMOCRACY: WHY WE NEED THE ARTS

by Caroline Levine. Malden, MA: Blackwell Publishing, 2007. 256pp. Cloth $79.95. ISBN: 9781495159265. Paper $29.95. ISBN: 9781405159272.

Reviewed by Paul Parker, Political Science, Truman State University. Email parker [at] truman.edu.

pp.496-499

Since its development in the late 19th century, avant-garde art has challenged democratic sensibilities. As the title suggests, Levine argues that democracy is the better for it. From de Tocqueville to Sunstein, theorists have taught us that the democratic equality may produce a culture of the lowest common denominator (pp.13-17); avant-garde art subverts oppressive leveling tendencies of the mass culture to which it is by definition opposed (p.5; p.23). Her evidence is a series of cases studies, mostly from the US and England, on art that has challenged the status quo. An English professor at Wisconsin, Levine makes this argument in five chapters and a conclusion that comprise 200 pages of text. Chapters Four and Five most directly implicate law and courts, as judges and juries have had occasion to determine whether an artifact is art, or something else that subjects it to greater regulation. Before discussing that, I will introduce the foundation of the argument.

Chapter Two, THE PEOPLE v. THE ARTS, is organized to show the danger of democracies attempting to limit the avant-garde – perhaps a natural reaction given that the avant-garde is defined precisely by its challenge to majoritarian culture. Levine juxtaposes the outcry over two pieces of public art, a sculpted memorial in London’s Hyde Park in 1925, and Richard Serra’s TILTED ARC in New York in the early 1980s. While Jacob Epstein’s RIMA is now little noted, several times it was physically vandalized and the sculpture and its Jewish creator were accused of cultural vandalism. This case illustrates “the most fundamental question raised by democratic societies . . . What is the place of outsiders, dissidents, and foreigners in the democratic collective?” (p.45) Levine’s answer is that the avant-garde can be transformative, and that art exists for the public of the future: today RIMA is well accepted.

The contrast to Richard Serra’s TILTED ARC is dramatic: four years of public outcry led to its 1985 removal – its destruction, since it was created for a specific site. Levine titles this section “Majority Rule: Voting Art into Extinction” although the story told appears to be more bureaucratic than democratic decision making. Through this case Levine revisits the nature of majorities in a democracy: who counts (workers at Jacob Javitts Plaza? all Manhattan? the world, for whom art is made? our future selves, capable of being transformed – as with Epstein’s RIMA and Duchamp’s NUDE DESCENDING A STAIRCASE?). Levine does not discuss how public funding of the art might bear on the ability of democratic majorities to vote art into extinction. [*497]

In Chapter Three, “Propaganda For Democracy: The Avant Garde Goes To War,” Levine discusses how support of the arts – especially art that challenges democratic sensibilities – helps democracies to demonstrate their freedom. Two examples are the CIA’s support of artists such as Jackson Pollack (pp.91-96) and Richard Nixon’s expansion of the National Endowment of the Arts (pp.97-101). This is one of several times she bridges dualisms that she has created; indeed, rooted in her definition of the avant-garde is the thesis that the two camps structurally need each other.

The next two chapters involve law and courts directly. In Chapter Four, “Obscenity and the Democratization of Culture,” Levine traces the replacement of the restrictive HICKLIN RULE with the much more tolerant test of MILLER v. CALIFORNIA. Under the former, a published work could be banned if a portion of it offended those with delicate sensibilities. This rule was seriously undercut in the United States’ trial of James Joyce’s ULYSSES, which ruled the work to be considered as a whole, and which also introduced expert artistic opinion – two features that demonstrate how courts are countermajoritarian (p.116). Levine argues that this shifted the dualist tension from mass culture versus elites capable of discerning true art, to a tension between a democratic sensibility and expert opinion. The difference is that in the second dualism, the democratic majority can be educated into the value of a work, as occurred with a jury in the obscenity trial of Robert Mapplethorpe (p.145). Indeed, that 1990 trial usefully illustrates how the current constitutional standard announced in MILLER v. CALIFORNIA (1973) incorporates both democratic and expert opinion: the test demands satisfaction of both contemporary community standards and “serious artistic” value.

Avant-garde art and the judiciary thus are both countermajoritarian institutions that help to save democracy from its own worst impulses. Both are simultaneously rooted in the past and open to future possibilities. This is best illustrated by a tax law case judging whether a Brancusi’s artifact was in fact art, or merely craft: at stake was a hefty tariff or duty-free import into the U.S. (pp.150-165). While the taxman argued that the sculpture lacked representational form (‘that’s not a bird’), expert testimony identified other artistic ‘not-birds’ dating back 3000 years. Using the language and the traditions of the old, the court allowed the boundaries of the new to be pushed, even overturning the precedent. Art and the law are not so forgiving, however, if we refuse to speak their language. Jeff Koons’ commissioned sculpture was judged a violation of copyright; its close copying of a note-card photograph, offered as a post-modern reference to the banality of mass culture, did not exempt it from judgment of infringement Indeed, it appears Koon’s status as artist was his central defense: whatever an artist creates is art and therefore not subject to the legal niceties of the copyright law. Levine argues Koons lost in part because he did not argue within the logic of the avant-garde, which aims to challenge majoritarian culture. He was dismissive of the photograph and culture that he copied (pp.165-190). Despite his argument, the law does not exempt all that artists do. [*498]

Levine ends with a short conclusion on artists and academics – elites who are criticized for being above and beyond authentic people who eat at Applebee’s. Levine argues that academics have two audiences, their professional colleagues and their students; translating the language of the (by definition) elite for the masses is central to academics’ professional success. This parallels the argument of the rest of the book, the aspirational view that democracy is best when we are open to new ideas, new peoples, new ways, and successful artists push the boundaries in ways that include rather than exclude. The avant-garde art world, the countermajoritarian courts, and now in a brief 10 pages, academics, are institutions that make democracy better.

Levine privileges the minority over the majority, and in doing so does not explore how the opposition to majoritarian tastes that defines the avant-garde can readily slide into transgressiveness that amounts to a poke in the collective eye. Consider two works not discussed in this book, PISS CHRIST, a photograph of a crucifix in the artist’s urine, and THE HOLY VIRGIN MARY, a painting involving elephant dung. Far from promising transformation, such work may divide us into communities of the targeted religion or the thin-skinned majority, versus the cultural elite that expects us to pay for the creation and display of their work: Andres Serrano received National Endowment for the Arts funds for PISS CHRIST, and Mayor Rudy Giuliani threatened to defund the Brooklyn museum that displayed THE HOLY VIRGIN MARY (another offended Catholic defaced the artwork (Broughton, 1999)). Is the democratic majority better off for having a debate about the nature of art? Does the provocation involved in these examples disrupt the comparison she draws between the majority’s tyranny of artists and of ethnic or religious minorities? One book cannot cover everything, and perhaps that I engage such questions substantiates her thesis.

Finally, while Levine cites several legal scholars, this is not a book about law and courts. Several court cases are discussed, but not at a level of sophistication to which most Review readers are accustomed. Indeed, the citation for the tax law case – an excellent illustration of her thesis – is not to be found in the book. Like the Serra and Koons controversies, her discussion of this case depends on earlier book treatments. Courts are assumed and asserted to be a countermajoritarian institution, with a brief discussion of the Carolene Products footnote (p.107) – although discussion of the Koons’ case leads her to conclude that “courts have increasingly favored a ‘bloated’ copyright that is bad for both art AND democracy” (p.171, emphasis in original). This discussion of legal interpretation of law is context-less and unconvincing: might it be more accurate to state copyright is the province of legislators, and the courts continue to be deferential to legislators? A more nuanced consideration of law (constitutional law of obscenity versus the legislative law of copyright) would not fit nearly so well into the thesis however, that courts and avant-garde artists check majorities. [*499]

REFERENCES:
Broughton, Philip Delves. 1999. “Catholic defaces 'Virgin',” TELEGRAPH (December 18). http://www.telegraph.co.uk/htmlContent.jhtml?html=/archive/1999/12/18/wdung18.html

De Tocqueville, Alexis. 2000 (1835). DEMOCRACY IN AMERICA. Many editions available. Trans. Harvey C. Mansfield and Debra Winthrop. University of Chicago Press, 2000.

Joyce, James. 1960 (1922). ULYSSES. New York: Random House.

Lawrence, D.H. 1993 (1928). LADY CHATTERLY’S LOVER. New York: Cambridge University Press.

Sunstein, Cass. 2001. REPUBLIC.COM. Princeton: Princeton University Press.

CASE REFERENCES:
MILLER v. CALIFORNIA 413 U.S. 15 (1973).

REGINA v. HICKLIN LR 3 QB 360 (1868).

UNITED STATES v. CAROLENE PRODUCTS, 304 U.S. 144. (1938).

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© Copyright 2008 by the author, Paul Parker.

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