HUMAN SECURITY AND INTERNATIONAL LAW: PROSPECTS AND PROBLEMS (Español)

por Barbara von Tigerstrom. Oxford y Portland: Hart Publishing, 2007. 256pp. £40.00/$84.00. ISBN: 9781841136103.

Reseñado por Aparicio Caicedo, analista académico del Gertrude Ryan Law Observatory e investigador de la Cátedra Garrigues de Derecho Global de la Universidad de Navarra. Pamplona, España. Email: acaicedo [at] alumni.unav.es.

(Disponible en Inglés tambien)

pp.681-683

El periodista chino, Shi Tao, se encuentra cumpliendo una condena de diez años por el sólo hecho enviar por correo electrónico unos documentos del Partido Comunista sobre la masacre de Tianamen a un grupo de activistas en Estados Unidos. En Cuba, de acuerdo con Amnistía Internacional, 62 presos de conciencia siguen cautivos por expresar sus opiniones políticas sin violencia. Meses atrás, el ejército colombiano mató a 17 miembros de las FARC (Fuerzas Armadas Revolucionarias de Colombia), bombardeando su campamento situado en territorio del Ecuador, muy cerca de la frontera con Colombia. Durante los años setentas y ochentas, Augusto Pinochet, llevó a cabo una operación internacional conocida como Plan Cóndor. Esa estrategia tuvo como resultado la muerte de cientos de personas que se oponían y denunciaban los abusos cometidos por las dictaduras militares latinoamericanas. ¿Qué tienen en común todos estos actos y hechos? Que fueron realizados en nombre de la “seguridad de la nación”. La “supervivencia del Estado” fue fuente de legitimidad supuesta para todos estos crueles abusos. Casi todos los países del mundo han invocado la “seguridad nacional, en algún momento de su historia, para matar, capturar o silenciar a sus ciudadanos. En la mayoría de veces que esto ha sucedido, ninguna vida humana ha sido directamente amenazada por las actividades que los gobiernos han reprimido. Y, probablemente, la peor parte es que el Derecho internacional y nacional ha sido concebido de tal forma que permita que esto suceda. Es precisamente la necesidad imperiosa de cambiar el paradigma de la seguridad lo que ha motivado el libro HUMAN SECURITY AND INTERNATIONAL LAW, escrito por Barbara von Tigerstrom. La obra presenta un desafío al concepto tradicional de “seguridad nacional”, brinda el sustento académico para desarraigar la figura del Estado-nación como astro rey del debate de la seguridad en el Derecho internacional.

El libro profundiza inmediatamente en criticar fundamentos filosóficos de las posturas estatalistas (state-centered) que han monopolizado el discurso académico y político sobre la seguridad nacional. La idea que se propone es centrar la discusión y, por ende, el marco institucional del orden internacional, en un “paradigma centrado en las personas” (p.7). La autora señala “Human security was developed in reaction to views of security dominated by realist and neorealist perspectives, which, . . . focus on states as the primary actors in the international system and define interests of states in terms of power, especially military power” (p.50). Von Tigerstrom añade, esta postura ha sido criticada ampliamente porque toma a la seguridad [*682] del Estado-nación “as an end in itself rather than merely an instrument for the protections of the individual” (p.50). No puede tener mayor razón la autora. La concepción realista de la seguridad nacional, al estar tan incrustada en nuestro imaginario la mayor parte del tiempo, es tomada por supuesta. ¿La seguridad de quién fue defendida cuando el ejército colombiano bombardeó el campamento de las FARC en territorio ecuatoriano y mató a 17 miembros del grupo terrorista? La mayoría de las personas que defienden ese acto señalan que fue una maniobra de defensa propia para el gobierno colombiano. No obstante, si preguntas si alguna vida humana estaba en peligro eminente en ese momento te responden que era el Estado colombiano cuya supervivencia estaba en peligro y que, por ello, debía actuar para defenderse. De esa manera, la muerte de 17 personas, fuera de combate, se justifica para salvar a una abstracción. Algo anda mal con este razonamiento.

Von Tigerstrom define el concepto de seguridad humana basándose en el Reporte de Desarrollo Humano de 1994. Ese documento, del Programa de Desarrollo Humano de las Naciones Unidas, busca introducirnos un nuevo concepto “which equates security with people rather than territories, with development rather than arms,”. El documento examina la seguridad nacional desde la óptica nacional e internacional. El reporte define la seguridad humana como el estado de estar “safety from such chronic threats as hunger, disease and repression and protection from sudden and hurtful disruptions in the patterns of daily life.” La propuesta fue entregada ante la Conferencia Mundial de Desarrollo Social de 1995, y resalta tres categorías fundamentales de la seguridad humana: económica, alimenticia, sanitaria, ambiental, personal, comunitaria y política. El libro propone la aplicación de este nuevo concepto diferentes áreas del Derecho internacional como la defensa de los derechos humanos y la sanidad mundial.

Von Tigerstrom nos advierte, no obstante, de la posibilidad de que algunos operadores jurídicas apliquen esta nueva categoría normativa de forma oportunista, expandiendo deliberada e indebidamente su ámbito de aplicación: “Part of the rationale for introducing the concept of human security was that it would shift attention and resources away from military concerns toward other areas important to human survival and well-being. To designate something as a security issue lent it a degree of importance and urgency that may be useful from an advocate´s perspective. . . . The term ‘securitisation’ has been coined to refer to this process . . . Securitisation presents an issue ‘as so important that it should be dealt with decisively by top leaders prior to other issues’. . . . However, it has also negative connotations and consequence [if it] justify emergency actions. . . such things as secrecy, rights violations, and a lack of democratic accountability” (p.43).

HUMAN SECURITY AND INTERNATIONAL LAW constituye una sólida argumentación para acabar con el paradigma del [*683] Estado-nación. Tal como los diversos académicos de las relaciones y el Derecho internacional podrán descubrir en el libro, se trata de un intento por relativizar, en la medida de los justo y razonable, el papel del Estado en el diseño institucional del orden mundial. Como ha señalado, con mucho acierto, el profesor Rafael Domingo: el Derecho internacional, tal como lo conocemos, se basa en el consolidado principio de la auto-determinación concebido como un derecho exclusivo de los Estados-nación. En este contexto, los seres humanos reciben el status de meros actores secundarios. (¿Qué es el Derecho Global?, 2008) La seguridad, como muchas otras áreas de la actividad humana, necesita de aproximaciones analíticas más sofisticadas, nuevas respuestas que el actual sistema no puede dar.

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© Copyright 2008 del autor, Aparicio Caicedo.

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HUMAN SECURITY AND INTERNATIONAL LAW: PROSPECTS AND PROBLEMS (English)

by Barbara von Tigerstrom. Oxford and Portland: Hart Publishing, 2007. 256pp. Hardback. £40.00/$84.00. ISBN: 9781841136103.

Reviewed by Aparicio Caicedo, Research Fellow at the Gertrude Ryan Law Observatory and Academic Researcher at the Garrigues Chair on Global Law of the University of Navarra. Pamplona, Spain. Email: acaicedo [at] alumni.unav.es.

(Also available en Español)

pp.679-680

The Chinese journalist, Shi Tao, is serving a 10-year prison sentence for e-mailing a Communist Party document about the Tiananmen Square massacre to a pro-democracy group in the United States. According to Amnesty International, 62 prisoners of conscience continued to be held in Cuba for their non-violent political views or activities. The Colombian army killed, a few months ago, 17 members of the terrorist group FARC (Fuerzas Armadas Revolucionarias de Colombia), bombing their camp while they were sleeping in Ecuadorian territory, a few meters from the international border. During the seventies, several military dictatorships of Latin America, led by the Chilean dictator, Augusto Pinochet, implemented the international operation known as “Plan Condor.” That strategy resulted in the killing of hundreds of persons who opposed and denounced the abuses perpetrated by their governments. What do all these acts and incidents have in common? They were executed in the name of “national security.” The survival of the state was the supposed source of legitimacy for all these abuses. Virtually every country in the world has invoked “national security,” in some moment of their history, to kill, capture or silence its citizens. On the great majority of these opportunities, no real human lives were directly threatened by the activities targeted by the governments involved. And, maybe, the worst part is that the law, both international and domestic, has been shaped to let this happen. An incredible need to change the security paradigm, that is the leif motif behind HUMAN SECURITY AND INTERNATIONAL LAW by Barbara von Tigerstrom. The work presents a challenge to the traditional “national security” concept, an academic backgrounder to undercut the nation-state as the center of the security universe in international law.

The book soon engages in attacking the philosophical foundations of the state-centered approach that characterizes the national security issue on both the political and academic debate. The idea is to focus the discussion and, hence, the institutional frameworks of the international order, on a “people-centered paradigm:” (p.7). “Human security was developed in reaction to views of security dominated by realist and neorealist perspectives, which, . . . focus on states as the primary actors in the international system and define interests of states in terms of power, especially military power” (p.50). As von Tigerstrom states, this approach has been criticized because it takes national security “as an end in itself rather than merely an instrument for the protections of the individual” (p.50). That is completely true. The realist conception [*680] of national security, as deeply embedded in our mind most of the time, is taken for granted. Whose security was defended on the bombing of 17 FARC members in the middle of the night by the Colombian army across the border in Ecuador? Most of the people say it was a matter of self-defense for the Colombian state. So, when you ask if any real person was at direct threat of been killed that night, they will tell you that it was state security what was at immediate risk and had to be defended. So, the killing of 17 persons, not in combat, is justified to save a non-existent being, the state, rather than to save real human beings. Something is missing here.

Von Tigerstrom defines the concept of human security based on the Human Development Report of 1994. That document, from the United Nations Human Development Program, seeks to introduce a new concept of human security, “which equates security with people rather than territories, with development rather than arms,” according to its own text. It examines both the national and the global concerns of human security. The report defines human security as “safety from such chronic threats as hunger, disease and repression and protection from sudden and hurtful disruptions in the patterns of daily life.” The document delivered to the World Conference of Social Development in 1995, outlines seven main categories of human security: economic, food, health, environmental, personal, community and political. The book analyzes the potential of the new concept on many areas of international law such as human rights and health.

Von Tigerstrom warns about the possibility of legal opportunism in over-expanding the concept of human security: “Part of the rationale for introducing the concept of human security was that it would shift attention and resources away from military concerns toward other areas important to human survival and well-being. To designate something as a security issue lent it a degree of importance and urgency that may be useful from an advocate´s perspective. . . . The term ‘securitisation’ has been coined to refer to this process . . . Securitisation presents an issue ‘as so important that it should be dealt with decisively by top leaders prior to other issues’. . . . However, it has also negative connotations and consequence [if it] justify emergency actions, . . . such things as secrecy, rights violations, and a lack of democratic accountability” (p.43).

HUMAN SECURITY AND INTERNATIONAL LAW elaborates a strong theoretical argument to change the state-centered approach. As many scholars of international relations will find, it is an attempt that seeks to ameliorate the role of the state on the institutional design of the world order. There is a lot of road to travel yet. Like Professor Rafael Domingo, the academic pioneer of Global Law, has stated: the International law, as we know it, is based on the consolidated principle of self-determination conceived as an exclusive right of nation-states. In this context, human beings are given the status of secondary actors. Security, as many other fields of human activity, needs a more sophisticated approach, new answers which the actual international regime cannot find anymore.

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© Copyright 2008 by the author, Aparicio Caicedo.

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CONFLICT OF INTEREST AND PUBLIC LIFE: CROSS-NATIONAL PERSPECTIVES

by Christine Trost and Alison L. Gash (eds). New York and Cambridge: Cambridge University Press, 2008. 276pp. Hardback. $80.00/£50.00. ISBN: 9780521881425. eBook format. $64.00. ISBN: 9780511380990.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu.

pp.677-678

Plato in his REPUBLIC famously declared that, in a well-governed state, the rulers must be philosophers. Though he is often mocked for believing that only people like him should be allowed to rule, in fact Plato was addressing the problem of conflict of interest in public life. For only the philosopher, Plato believed, was capable of transcending self-interest and acting purely with regard to justice. In this new book from Cambridge University Press, we are treated to an excellent overview of this problem as it is handled in modern democracies. This book helps demonstrate how difficult a problem this is, and how much more work needs to be done.

CONFLICT OF INTEREST AND PUBLIC LIFE is a welcome contribution to this neglected debate. The book, edited by Christine Trost and Alison Gash, is intelligently organized around a series of different approaches by its contributors; some take an empirical approach in examining what sort of techniques are used in regulating conflicts, others a normative ethical outlook attempting to derive a general moral theory of conflicts. The collection also provides a welcome and informative comparative international focus, with case studies of the United States, Canada, Britain, and Italy. The focus on Europe and North America is presumably because it is only in the advanced democracies that we see substantial conflict of interest regulation (although it would have been interesting to see a little more discussion of this issue, or more mention of the problem as it appears in other cultures, such as Africa or Asia). The contributions to this volume are of uniformly high quality. Most of them are in the field of political science or law (it would perhaps also have been helpful to have an economist analyze conflict of interest in terms of the distortion of incentives and the resulting loss of economic efficiency). The commentators do not always respond to each others’ entries; for instance Colin Macleod analyzes conflicts in terms of an ideal of deliberative democracy, neglecting Karen Getman and Pamela Karlan’s observation that one might also adopt a pluralist, interest-group model of democracy. As with any collected volume, the approach can be somewhat scattershot, but on the whole the book presents an outstanding overview of the many difficult issues associated with conflict of interest. Especially wise is the decision to present a final chapter which attempts a summary and overview of the issues.

Conflict of interest is a perplexing idea. We lack a clear definition of [*678] conflict of interest or a clear theory of what sorts of conflict are wrong, let alone how best to regulate it without compromising democratic values. Consider the apparently simple problem of distinguishing private interest from public interest. If a politician pursues legislation that would benefit himself or his family at the cost of the public interest, that would seem to be a clear conflict. But what if the legislation benefits his constituents at the cost of the public interest (say a pork barrel project)? On the pluralist model, that is what politicians are expected to do. On the deliberative democracy model, it would seem to be a clear example of a conflict, even though it is unlikely that it would ever be treated as one. Or what if a politician supports a bill that he thinks is bad for the country simply because he wants to be reelected? On its face, this seems to be a conflict of interest, yet it is unlikely it would ever be treated as such. And what is to count as a “private interest”? Does it mean the interests of oneself, close friends, and family members? What about a broader group with which one is associated (say, Greek-Americans)? And does private interest encompass more than financial gain? Things can get quite bizarre when a very broad view of private interest is taken; as Gillian Peele reports, in a British case it was ruled that one has a private interest whenever one’s well-being is enhanced by the outcome of a decision (p.184). Taken to its extreme, this would mean that a politician with strong environmentalist leanings would have to recuse himself from any decision that might affect the environment one way or another, because his personal well-being will be affected by it. This is clearly the reductio ad absurdam of the idea of private interest, and yet it is difficult to come up with a clear definition of “private interest” that would avoid this result. Further, as some of the contributors note, the very notion of a “public interest” is itself deeply contested and extremely difficult to define.

And then there is the problem of the relation between conflict of interest regulation and democracy. If the voters have chosen a particular representative, to force that representative to recuse herself from an important decision is to restrict the sovereignty of the popular choice. Things are even worse when the voters seem to have chosen their representative even knowing of the conflict of interest. Moreover, as one of the commentators points out, conflict of interest seems to be far more of a concern among the elites than among the common populace. Further, conflict of interest issues regularly become politicized, as politicians use ethics charges as means to discredit their political opponents (this raises the problem of a conflict of interest in conflict of interest regulations!).

The reader may well finish this book feeling more confused than ever about the topic of conflict of interest (at least, that is how this reader felt). But that is by no means a criticism of the book, but rather an indication of the deeply contested and problematic nature of the issue, as well as the embryonic stage of debate. This book is a welcome contribution to the literature and will no doubt stimulate much more work in this extremely important and surprisingly neglected field.

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© Copyright 2008 by the author, Whitley Kaufman.

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TERRORISM AND THE LIMITATION OF RIGHTS: THE ECHR AND THE US CONSTITUTION

by Stefan Sottiaux. Oxford, UK: Hart Publishing, 2008. 472pp. Cloth. £55.00/$115.00.. ISBN: 9781841137636.

Reviewed by Mathieu Deflem, Department of Sociology, University of South Carolina. Email: Deflem [at] sc.edu.

pp.673-676

In this timely book, Belgian legal scholar Stefan Sottiaux analyzes constitutional issues involved with terrorism-related legal measures on the basis of considerations of human rights. In order for governments to properly balance rights while also providing adequate security, Sottiaux particularly examines how the European Convention for the Protection of Human Rights and Fundamental Freedoms and the US Constitution can be relied upon to enforce certain provisions to limit important rights, while still safeguarding the basic intent and purpose of human-rights protections, in view of the threat of terrorism and the counter-terrorism measures that are being developed and implemented. It requires little if any explicit justification to argue for the relevance of these constitutional questions in the post-9/11 era. Terrorism and human rights, also, are closely related matters. Terrorist activities pose a serious set of risks to the enjoyment of the most basic rights of freedom, life, and public safety. At the same time, however, counter-terrorism measures may in turn also affect, and pose restrictions on, individual freedoms and rights. In modern democratic societies, counter-terrorism measures need to abide by the dual standard of offering effective protections against terrorism and of not violating fundamental rights while doing so. These human rights considerations pertain particularly in democracies when they are faced with extreme or sudden disturbances of social life, such as during times of war or under conditions of more or less enduring threats of terrorist violence. Under these circumstances, states need to respond to terrorism by neither over-reacting nor under-reacting in offering a proper balance between providing effective tools of counter-terrorism and securing guarantees of human rights.

Sottiaux’s study primarily considers the limitations of rights in relation to the effects counter-terrorism measures may have on human rights as they are constitutionally protected by the European Convention and the US Constitution. The comparative perspective of this study takes into account the global nature of the debate on human rights. The very notion of human rights, after all, is by definition not restricted to any one nation state. Further, the problem of terrorism as it exists today essentially defies the boundaries of historically more readily disconnected national jurisdictions. Additionally, the comparative nature of Sottiaux’s study serves to tease out the similarities and differences that exist between the two important documents seeking to respect rights on both sides of the Atlantic. The European Convention and the US Constitution are not of the same order, as one pertains to the international level and the other is a [*674] national instrument. The documents are also written in a different language, whereby, most essentially, the European Convention contains affirmative statements of rights and is more community-oriented, whereas the Constitution of the United States relies on a negative language to forbid government from interfering with basic rights from an individualistic viewpoint. Relatedly, the European Convention contains explicit clauses that specify when the human rights protections do not apply, whereas the US Constitution has no such provisions. As such, the European document has a more ‘militant’ orientation in detailing the limits of its provisions, whereas the US Constitution abides by a ‘tolerant’ conception of the exercise of rights.

Constitutional law is made up not only of the articles and amendments included in constitutional documents, but also of the decisions that are made by the relevant (higher) courts. Thus, it is important to consider the judgments rendered by the European Court of Human Rights in Strasbourg and the US Supreme Court. The role of the courts is amplified in Sottiaux’s study, as the author argues in favor of a flexible approach to human rights interpretation and application, whereby the courts can in their evaluations independently exercise judicial review in estimating the scope and applicability of human rights. This flexible method comprises a balancing perspective to human rights, whereby all relevant acts are considered in weighing the damage that results from infringements on human rights, on the one hand, and the specific threat from terrorism and other pressing problems which government conduct seeks to respond to, on the other. Unlike the bright-line rules of categorical methods to limit rights, the standards of limitations suggested in a flexible approach allow for more judicial discretion to respond appropriately to specific situations.

Generally, the flexible approach is better accommodated under the European Convention, in part because of its explicit derogation provisions, whereas the US Constitution tends to favor strategies of avoidance to leave final decisions to the political branch of government. The European Convention indeed contains a umber of specific limitation clauses that detail when human rights protections do not imply, such as restrictions imposed by (national) laws, the necessity to protect democratic society, and interests that serve national security, public safety, and economic well-being. The European Convention also contains certain implied limitations (except in cases where specific limitations pertain) in stressing that no right is absolute and must always be balanced with other rights and interests. Further, an emergency derogation specifies that governments may deviate from human rights protections under condition of war or other public emergencies that threaten the state. Finally, the European Convention implies a limitation by allowing for a margin of appreciation for individual states to interpret and apply specific laws within the general human rights framework, thus again demonstrating the Convention’s commitment to a flexible approach in specifying limitations of rights.

The United States Constitution does not explicitly specify conditions when its rights do not apply, yet the courts have [*675] drawn certain limits to its provisions by estimating the scope of certain rights and defining their contents. Further, certain standards or tests have been formulated to examine a right relative to a government interest that is meant to be served by restricting that right and to estimate the fit between a government interest and the means with which it is meant to be achieved. No emergency derogations are included in the Constitution except in the case of the privilege of the writ of habeas corpus, which can be suspended in the interest of public safety during a rebellion or invasion. As such, the US Constitution is more geared towards a categorical rather than a flexible approach in limiting rights.

From the above specified framework, Sottiaux proceeds to analyze the freedoms of expression and association and the rights of personal liberty, privacy, and a fair trail, devoting a chapter to each constitutional right and examining it comparatively under the provisions of the European Convention and the US Constitution. Summarizing the findings from this analysis, Sottiaux first contends that terrorism cannot be constitutionally protected as an expressive activity because of the violence involved. The situation is different for terrorism-related speech, in which case both the European and US constitutional courts have tests in place to determine whether speech is allowed or not. Similar to the restrictions in other areas, the European approach allows more room for ad hoc interpretations, while the US Constitution rules in a categorically-oriented manner. The freedom to associate has a specific relation to terrorist activities because they are typically planned and conducted by organizations, rather than individuals. The European Court leaves ample leeway for Europe’s states to outlaw certain organizations, while the US Court has been less willing to deal with an individual’s association with a group, while being more tolerant of the criminalization of providing material support to terrorist-designated groups. The judicial rulings in Europe and the United States with respect to the rights of personal liberty and privacy reveal the same basic pattern, whereby the European Convention is judged to allow for more flexibility, while the US Constitution is interpreted in categorical terms on the basis of fixed rules.

In view of the concerns over terrorism and the preoccupation with human rights protections in the contemporary world, Sottiaux’s study on the limitations of rights is a most welcome contribution to the legal scholarship. The debate on counter-terrorism and (human) rights, moreover, has generally been addressed in the by now too familiar terms of a need to balance rights and security. However, as Sottiaux aptly argues, in legislating counter-terrorism and other security measures, states need both to negatively respect rights of freedom and non-interference and positively protect those rights when they are under attack. Although Sottiaux does not always terminologically respect the consequences of this reformulation, preferring to hold on to the search for a balance between rights and security, the debate on counter-terrorism (and other) measures of law and policy thus needs to be approached as a struggle between (different) rights, rather than between rights and security. [*676]

There is little doubt that Sottiaux’s book provides ample evidence to sustain the notion that the flexible approach adopted in the judicial review of the European Convention has advantages over the US judicial framework that allows for an all-or-nothing approach to counter-terrorism measures and thereby differentiates categorically between situations (and people) when rights have to be protected or, conversely, can be suspended. However, because of its juristic (law-internal) rather than socio-legal perspective, this book has less to say about why this is the case. Most importantly, Sottiaux does not consider the characteristics of the societal contexts in Europe and the United States in which the differing judicial frameworks and their respective constitutional bases are applied and to which extent and how variable outcomes are produced. This societal contextualization also affects the interpretation and application of the two considered documents, which themselves are different in important respects. As Sottiaux realizes, the European Convention applies to the international level of the European Union, while the US Constitution pertains to the federal level of government. But this difference has important contextualized consequences. While a high premium is placed in the United States on the sovereign powers of the individual states, the principle of sovereignty is less at stake in the case of counter-terrorism because most of the provisions under the banner of the war on terror operate at the federal level. Thus, the comparison between the European Convention and the US Constitution proceeds from a distinct imbalance, which a broader socio-legal perspective could lay bare. Having said that, however, Sottiaux provides a useful analysis of the judicial review of contemporary strategies of counter-terrorism on the basis of human rights considerations. Especially the European dimension that is explained in this work will be useful to American scholars in order to be better get acquainted with, and possibly learn from, the principles that can, and perhaps better would be, be at work in judging counter-terrorism measures.

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© Copyright 2008 by the author, Mathieu Deflem.

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THE PRESIDENT SHALL NOMINATE: HOW CONGRESS TRUMPS EXECUTIVE POWER

by Mitchel A. Sollenberger. Lawrence, KS: University Press of Kansas, 2008. 320pp. Cloth $39.95 ISBN: 9780700615766.

Reviewed by Richard L. Vining, Jr., Department of Political Science, University of Georgia. E-mail: rvining [at] uga.edu.

pp.668-672

In THE PRESIDENT SHALL NOMINATE, Mitchel A. Sollenberger provides an informative, comprehensive, and timely historical study of the selection of nominees for appointed federal offices. The book addresses the powers shared by the legislative and executive branches in the selection process, and how their roles have developed over time. At a moment when the press and politicians scrutinize or criticize inexperienced appointees (e.g., FEMA director Michael A. Brown), the role of politics in their removal (e.g., seven United States Attorneys), and controversial appointments to the federal courts (e.g., Charles Pickering, Janice Rogers Brown, Harriet E. Miers), Sollenberger provides much-needed perspective.

Research examining nominations and appointments tends to focus on (1) confirmation votes and (2) federal judges. Sollenberger goes beyond each of these, turning a critical eye to the “pre-nomination process” (p.3) and the broader pool of nominees, including federal judges, cabinet members, ambassadors, US Attorneys, Customs Bureau officials, postal service employees, and other positions. This is largely unexplored territory. Scholars, including Michael J. Gerhardt (2003) and G. Calvin MacKenzie (2001), have also studied the federal appointments process, but neither matches Sollenberger’s attention to institutional interaction at the selection stage. The scarcity of studies on this topic alone makes this a welcome contribution.

As Sollenberger correctly explains, the Constitution speaks to the structure of the appointments process in Article II, Section 2. It states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” THE PRESIDENT SHALL NOMINATE illustrates that how this translates into practice has been the subject of controversy and compromise since the Founding.

The book, based on Sollenberger’s dissertation research, is organized chronologically. He culls historical detail from both existing studies and private records, with evidence from correspondence and manuscripts providing new insight into formal and informal aspects of the nomination process. Chapters 1-8 each focus on a particular period of American political history, from the colonial period through the tenure of George W. Bush. [*669]

Chapter 1 explains the historical roots of the appointment power in America. Sollenberger provides a novel and informative exploration of the selection of government officers prior to 1789 in both the state and national governments, arguing that contemporaneous practice informed the Framers.

The author posits that originalism and textualism are of little value in interpreting the Appointments Clause. Despite Alexander Hamilton’s argument for executive dominance in Federalist No. 66, often cited as evidence for the Founders’ intent, Sollenberger shows that there was dissent on the issue among the authors of the Constitution (pp.20-21). In fact, he explains that mistrust of a dominant executive led both the Continental Congress and delegates to the Constitutional Convention to establish legislative participation in appointments.

Chapters 2 through 4 describe the relationship between legislators and the president in the pre-nomination process from 1789 through 1869. These chapters include the period from the establishment of the appointment process after ratification of the Constitution through the birth of civil service reform.

Sollenberger depicts the period before Andrew Jackson’s presidency (prior to 1829) as one of adjustment, with both presidents and members of Congress finding their place in the appointments process. Presidents deferred to senators and representatives, particularly from their own political faction, because the latter had more information about the quality of potential nominees. Concurrent developments led to the association of appointments with the advancement of electoral and political goals. These chapters explain that, while not all early presidents exploited patronage appointments (John Quincy Adams did not, for example), events in this period established the custom that presidents rely on legislators to suggest and evaluate job candidates.

The period from 1829-1869 is labeled the “The Spoils Era.” Sollenberger says that it began with the introduction of the “rotation principle” by President Andrew Jackson, after which appointees were routinely removed as the new executive distributed jobs to his supporters (pp.47-55). Sollenberger carefully delineates how and why some presidents (e.g., Presidents Tyler and Polk) sought to alter the balance of appointment power in their favor but failed in the face of legislative opposition. By the Lincoln administration (1861-1865) Congress is described as dominant in the appointments process, in part because Lincoln sought congressional cooperation with the war effort. Attempts to reverse this trend by Andrew Johnson after Lincoln’s assassination only added to his political problems. Johnson, like Tyler before him, is characterized as trying to restructure the pre-nomination process in his favor only to face backlash from Congress.

In Chapters 5 through 7, Sollenberger discusses the period from 1869-1977. He explains that during this time the process by which nominees were selected was reformed in a slow but meaningful way. Legislation such as the Pendleton Act (1882), the Ramspeck-O’Mahoney Act (1938), and the Postal Reorganization and Salary Adjustment [*670] Act (1970) professionalized components of the civil service and altered the relationship between the executive and legislative branches.

The existing pre-nomination process was challenged repeatedly from 1869 into the 1880s, with Sollenberger describing efforts by Senator Lyman Trumbull (R-IL), President Rutherford B. Hayes, and others to encourage reform. The event identified as the tipping point in this effort is the 1881 assassination of President Garfield by a disappointed office-seeker, Charles Guiteau. The resulting Pendleton Act (1882) limited congressional influence by requiring that some appointments be awarded on the basis of performance on civil service exams. Presidents continued to remove and replace officials not protected by the Pendleton Act, but incrementally increased the proportion of federal workers removed from the traditional pre-nomination process.

Despite these reforms, Sollenberger describes a system resistant to change and presidents who continued to mind (if not welcome) congressional advice. The Ramspeck-O’Mahoney Act (1938) took the radical step of placing postal appointments under civil service protection; Sollenberger rightly points out that this happened while the New Deal created about 100,000 additional positions to be distributed as patronage (pp.136-137). Subsequent presidents (with the exception of Lyndon Johnson) are described as initially resisting Congress from the 1940s through mid-1970s, but mostly falling in line with past practice after objections were raised. Major formal and informal reforms to the pre-nomination process came during the Nixon and Ford administrations, as the former reorganized the Postal Service as a government corporation and the latter (hobbled by political circumstances after Nixon’s resignation) allowed greater input from the party out of power in the selection of nominees. As explained in the final historical chapter, these efforts to increase professionalization and solicit minority input had consequences.

Sollenberger describes the last three decades, from 1977 through 2007, in Chapter 8. The strength of this chapter is its description of the modern pre-nomination process as it has incorporated elements of both its partisan past and legacy of reform. Presidents in the last 30 years are depicted as approaching the pre-nomination process differently, but in each case working with the Senate or other officials as necessary. President Carter sought to enhance the role of merit in judicial appointments by establishing merit commissions, but largely failed. President Reagan abandoned Carter’s attempt at merit-based reforms and increased White House control of nominations relative to Congress, a practice continued by President George H.W. Bush (pp.150-156).

The pendulum swung back toward the legislature during the Clinton administration, with the president seeking advice from Republicans in some cases. Sollenberger discusses in some detail President Clinton’s consultation with Senator Orrin Hatch (R-UT) with regard to his Supreme Court nominees, emblematic of the president’s willingness to cooperate with both the Senate and partisan opponents (pp.158-159). This may surprise some [*671] readers given Clinton’s difficulty achieving the confirmation of several high-profile cabinet and judicial nominees. Sollenberger places President George W. Bush somewhere between Clinton and his immediate Republican predecessors, in his eagerness to increase White House authority in appointments but also aware of political realities demanding that Democrats be recognized. Within this discussion is an examination of the “Gang of Fourteen” compromise and its consequences, an event that may be idiosyncratic or represent a shift toward increased bipartisan cooperation (pp.166-167).

Unfortunately, Chapter 8 is generally limited to a discussion of judicial selection. More attention to cabinet and bureaucratic posts would have been appreciated, as they receive far less attention from scholars than the federal courts. Sollenberger does, however, provide a valuable early examination of the use of recess appointments by George W. Bush to bypass legislative dissent. The fact that this tactic has usually been successful may show future presidents its utility in bolstering executive power in the pre-nomination process.

The author presents his analyses and conclusions in Chapter 9, revisiting many themes introduced in the introduction and Chapter 1. Sollenberger asserts that presidents favor compromise to conflict, and that the pre-nomination process is influenced by both the chief executive and legislative input as the two reach a mutually beneficial arrangement. The role of legislators varies with the strength of that chamber’s dominant personalities. Presidents behave in accordance with their goals – nominees are chosen to secure power, favor, or legislative accomplishments depending on the circumstances. Congress, however, uniformly reacts negatively when ignored.

Sollenberger concludes the book by discussing the modern pre-nomination process in relation to historical norms, republicanism, and the system of checks and balances established by the Constitution. He describes a system created through practice, with the relationship between the involved parties changing with their political and practical circumstances. He argues that efforts by the House and the Senate to maintain prominence in the pre-nomination process are justified as preserving minority rights and defends the use of holds, blue slips, filibusters, and specification of qualifications as means to accomplish that end. This, he claims, is consistent with republican principles because it assures the people’s representatives a voice in the selection of government officials. Sollenberger rejects a merit system as at odds with “democratic impulses” and civil service reformers as distrusting of “anyone or anything outside the executive branch” (p.182). Not surprisingly, Sollenberger rejects the unitary executive theory and dismisses its proponents’ argument that history is on their side. Indeed, there is little evidence in this text to support the notion that presidents do or should dominate the pre-nomination process.

Despite its many strengths, THE PRESIDENT SHALL NOMINATE will vary in the extent to which it satisfies particular audiences. It excels as a work of political history, and is obviously the product of meticulous and admirable [*672] research. However, social scientists may be dissatisfied by its lack of general explanation. Description is emphasized more than analysis with the exception of Chapter 9. There is only limited discussion of the circumstances, goals, or personal attributes (of the president or prominent legislators) associated with particular brands of appointment politics. Legal scholars may be interested in Sollenberger’s discussion of the Appointments Clause but find it to be less than novel. Including the argument against originalism, that there was dissent among the Founders, remains justified for the benefit of readers new to the debate. It is probably unfair to condemn Sollenberger for these omissions, as his is a historical study rather than a test of theoretical expectations or exercise in legal argument.

Sollenberger introduces several topics that may be of interest to scholars. The removal of appointees, obviously related to the availability of appointed positions, is given attention throughout the text but merits further exploration. The role of policy entrepreneurs in institutional reform is also invoked, though not discussed at length, as are the sources and consequences of institutional innovation. This text also serves as an informative study of attempted and successful civil service reforms, each of which altered the relationship between the executive and legislative branches. Overall, THE PRESIDENT SHALL NOMINATE is a welcome addition to scholarship on Congress, the Presidency, and the appointments process. It is a valuable resource for scholars of appointment politics throughout American history, particularly those whose interests are not limited to the federal courts.

REFERENCES:
Gerhardt, Michael J. 2003. THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS. Duke University Press: Durham, NC.

MacKenzie, G. Calvin. 2001. INNOCENT UNTIL NOMINATED: THE BREAKDOWN OF THE PRESIDENTIAL APPOINTMENTS PROCESS. Brookings Institution Press: Washington, DC.

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© Copyright 2008 by the author, Richard L. Vining.

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GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS

by Kingsley Chiedu Moghalu. Stanford CA: Stanford University Press, 2008. 240pp. Paperback. $24.95. ISBN: 9780804759717.

Reviewed by Mark A. Drumbl, School of Law, Washington and Lee University. Email: drumblm [at] wlu.edu.

pp.663-667

In GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS, Kingsley Chiedu Moghalu posits that international criminal courts and tribunals “are more instruments of political engineering than impartial justice for war crimes” (p.75). Moghalu draws from his legal experience with the International Criminal Tribunal for Rwanda (ICTR) and with the United Nations generally. He links his experience to the theoretical framework of the English School of international relations in support of his conclusion that “[t]he politics of war crimes trials are all around us. And it is major league” (p.2). In a concise and well-written forward, Pierre-Richard Prosper, a former ICTR lawyer who subsequently served as the US Ambassador-at-Large for War Crimes Issues in the Bush Administration, lauds Moghalu’s “realist perspective” and the “provocative conclusions” he draws therefrom (p.x).

GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS begins with a survey of the English School, in particular the work of Hedley Bull. Moghalu questions the scope of liberalism’s influence in the creation of international war crimes tribunals. He recognizes that “liberal ethics” play some role, but underscores how states’ unpredictable primordial self-interest, as posited by Hedley Bull in THE ANARCHICAL SOCIETY, is a major catalyst (pp.8-10). Chapter 2 follows with an assessment of the thorny question whether to prosecute or pardon serious human rights abusers. This Chapter unpacks the legacy of the Tokyo and Nuremberg trials and heralds the Nuremberg trials as “perhaps the most important postwar factor that shaped a democratic and prosperous [West] Germany” (p.39). Chapter 3 picks up the Balkans as a regional case study and focuses on Slobodan Milošević’s indictment by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Moghalu concludes that “[i]n his death, Milošević snatched himself from the jaws of justice” (p.75). Chapter 4 turns to the phenomenon of universal jurisdiction, namely when national courts claim jurisdiction over core international crimes committed abroad owing to the fact these crimes constitute violations of peremptory international norms that any court anywhere can redress. GLOBAL JUSTICE then returns to the case-study approach, with Chapter 5 devoted to Sierra Leone. This Chapter criticizes the work of the Special Court for Sierra Leone (SCSL), an internationalized tribunal created by treaty between the United Nations and the government of Sierra Leone. Chapter 6 addresses the politics of the International Criminal Court (ICC), including US opposition to the ICC and the quest to develop a definition of the crime of aggression. Chapter 7 explores [*664] another national case-study: Iraq. The Iraqi High Tribunal is not an international institution, and hence differs from the ICC, ICTR, ICTY, and SCSL. Chapter 8 concludes with the observation that international justice does not represent the “end of history” (a phrase which Moghalu properly attributes to Francis Fukuyama (1992) and transplants from the different context in which Fukuyama was writing).

GLOBAL JUSTICE’s greatest strength is its impressive “insider’s” account of the background and politics of the prosecutions at the international criminal tribunals. The book sets out the gritty hydraulics of the process of institution-building, the generation of indictments, and the volatile task of bringing suspects into custody. Moghalu’s integration of the theoretical insights of the English School complements the work of US public choice/rational choice academic lawyers, such as Eric Posner and Jack Goldsmith, who examine the role of state self-interest in the formation of international law generally, including international criminal law. Another of the book’s strengths is its dissection of “legalism” as a “Western ideal that those countries have sought to impose on countries of other political or historical cultures” (p.14). In underscoring the importance of the local to the actuation of justice, Moghalu reminds us of the limits of international criminal law and the reality that powerful states may evade its grasp, meaning that only tragedies occurring in weak states or committed by nationals of weak states become the subject-matter of international judicialization. In this regard, GLOBAL JUSTICE clarifies that the internationalization of justice for war crimes differs from the globalization of justice, both as a matter of procedure and as a matter of substance (p.172). Finally, Moghalu’s work charts the tension between the promotion of order in international society and the pursuit of justice. Insofar as foreign national courts acting unilaterally through claims of universality are more disruptive to international order than the ICC, Moghalu is more skeptical of the former than the latter.

The scholarship of the English School is complex. As such, its application to contemporary international justice institutions is far from straight-forward. On the one hand, international criminal prosecutions may upend the idea of a sovereign society of states with immune state representatives and thereby threaten disorder. On the other hand, with the creation of the ICC (along with ad hoc tribunals through Security Council resolutions), the international society of states apparently has reasoned that impunity for serious human rights abuses itself constitutes a threat to order. In light of the anemic actuation of prevention in international politics, the most realistic response to this perceived disorder may be retributive criminal sanction. International criminal prosecutions, however flawed, may be intended to serve the interests of international order.

Granted, in some of their actions international criminal tribunals bend the law at the behest of politics. The ICTY Chief Prosecutor’s decision not to pursue charges of war crimes against the NATO states that bombed the Federal Republic of Yugoslavia could be read, as Moghalu does, to represent the politics of international justice (p.75). The ICTR [*665] Appeals Chamber’s decision to reconsider and reverse the dismissal of charges against Jean-Bosco Barayagwiza clearly was animated by pressure from the Rwandan government. Yet, there are also plenty of situations where legalistic renditions of due process trump the enormous political pressure to prosecute and convict. For example, in June 2008, ICC Trial Chamber I stayed the trial of Congolese militia leader Thomas Lubanga, who is accused of the conscription, recruitment, or use of child soldiers, because of the Prosecutor’s failure to disclose confidential, and potentially exculpatory, evidence to the defense and to the bench. Trial Chamber I held: “This is an international criminal court, with the sole purpose of trying those charged with the ‘most serious crimes of concern to the international community as a whole’ and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial” (at paragraph 91 of the judgment). Trial Chamber I has ordered Lubanga’s release, although this order is suspended until the Prosecutor’s appeal is adjudicated. What is more, international courts have not shied away from acquitting suspects in the face of significant political pressure to the contrary.

Moghalu’s experience is personal, anecdotal, or acquired from a perusal of secondary sources. Accordingly, although Moghalu describes his work as “an empirical review” (p.171), GLOBAL JUSTICE lacks the rigor, original qualitative research, or quantitative method that other political scientists, such as Victor Peskin (2008), Lara Nettelfield (2008), or Scott Straus (2006) fruitfully bring to the table in their recent scholarship.

There is good reason to express skepticism about international criminal law’s ability to attain the ambitious objectives it has ascribed to itself (Drumbl 2007). These objectives include deterrence, retribution, reconciliation, truth-telling, and narration of historical tragedy. In this regard, the arguments advanced in GLOBAL JUSTICE are appealing. To some degree, the shortfall between judicial output and justificatory aspiration arises from the fact that international criminal lawyers may have oversold the quality of the product they are delivering. That said, to claim – as GLOBAL JUSTICE does – that international criminal lawyers ever viewed international courts and tribunals, in particular the ICC, as the “end of history” is a strawman (pp.xii-xiii, 126).

Moghalu writes: “I set out in this book to interpret the phenomenon of war crimes trials and tribunals in international law and politics from the perspective not of liberal legalism, which is the conventional wisdom, but through that of a pluralist international society of states” (p.171). Any thorough understanding of the coming into force of contemporary international criminal tribunals and courts, however, also must include the role of non-governmental organizations, interest groups, victims, and networks of expert activists. Non-governmental organizations were extremely active in the creation of the ICC. They catalyzed the criminalization of certain conduct, such as sexual violence during armed conflict, and in the practice of the ad hocs successfully encouraged international prosecutors to file charges and international judges to issue convictions. [*666]

Moreover, international courts are not unitary actors. Not only are there differences among the various courts and tribunals inter se, there are also major tensions within each institution. Judges do not necessarily share the same interests as the prosecutors, for example, and often find themselves on different sides of issues. This intra-institutional tension reflects the interplay between the application of law and the force of realpolitik. For example, a fracture line emerges within the ICC regarding the role that victims should play in the administration of justice in the Democratic Republic of the Congo, with the judges preferring a more robust interpretation of the Rome Statute’s provision of victim involvement than the Office of the Prosecutor.

A state-centric analysis rooted in sovereignty does not fully assess the influence of non-state actors in the cascading process of law-making, nor of internal actors within institutions. Furthermore, binary analysis that views international law and state sovereignty in opposition one to the other in a zero-sum game fails to recognize the synergistic, transnational, constructivist, and expressive manner in which politics and law can conspire to establish norms.

Notwithstanding these limitations, GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS is a valuable book that reminds us of the importance of politics in the creation and implementation of international criminal law. GLOBAL JUSTICE also helpfully elucidates the need to incorporate the local into the justice matrix. As international criminal courts continue with their work and become a permanent part of the fabric of international relations, questions of how to improve their effectiveness become increasingly important. Meaningfully anchoring international proscriptions into local contexts is a daunting challenge.

REFERENCES:
Bull, Hedley. 1977. THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS. New York: Palgrave McMillan.

Drumbl, Mark. 2007. ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW. Cambridge: Cambridge University Press.

Fukuyama, Francis. 1992. THE END OF HISTORY AND THE LAST MAN. New York: Free Press.

Nettlefield, Lara. 2008 (forthcoming). COURTING DEMOCRACY: THE HAGUE TRIBUNAL’S EFFECTS (unpublished manuscript, under consideration with publishers).

Peskin, Victor. 2008. INTERNATIONAL JUSTICE IN RWANDA AND THE BALKANS: VIRTUAL TRIALS AND THE STRUGGLE FOR STATE COOPERATION. Cambridge: Cambridge University Press.

Straus, Scott. 2006. THE ORDER OF GENOCIDE: RACE, POWER, AND WAR IN RWANDA. Ithica: Cornell University Press. [*667]

CASE REFERENCE:
PROSECUTOR v. LUBANGA, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008 (Trial Chamber I, June 16, 2008), available at http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1401-ENG.pdf

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© Copyright 2008 by the author, Mark A. Drumbl.

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SEED WARS: CONTROVERSIES AND CASES ON PLANT GENETIC RESOURCES AND INTELLECTUAL PROPERTY

by Keith Aoki. NC: Durham: Carolina Academic Press, 2008. 280pp. Paper $40.00. ISBN: 9781594600500.

Reviewed by Krishna Ravi Srinivas, Research Information System for Developing Countries, New Delhi, India. Email: krsriniv [at] gmail.com.

pp.659-662

Plant Genetic Resources (PGRs) have played a crucial role in the global agriculture and food production system. For centuries they were treated as part of the common heritage of (hu)mankind, which meant that it was free for all and might was right in dealing with PGRS. With the industrialization of agriculture and development of modern plant breeding based on genetics, commodification of seeds was made possible. Availability of intellectual property protection for plant varieties and seeds gave rise to many issues, because until then seeds were considered products of nature and were not covered by intellectual property protection. Globally, the North-South divide in the late seventies and early eighties regarding access to germplasm, and the signing of TRIPS in 1994, changed the rules of the game in transactions involving PGRs. The International Treaty on Plant Genetic Resources for Food & Agriculture (ITPGFRA) was an initiative that sought to combine conservation and access to PGRs with benefit sharing mechanism and recognition of Farmers’ Rights. Still the global regime of PGRs is far from clear, as at least three treaties/conventions have considerable overlap among them, i.e. ITPGFRA, TRIPS and CBD (Convention on Biological Diversity). Keith Aoki in SEED WARS, gives an overview of the developments in the past, the current trends, and discusses future directions in this acrimonious issue of intellectual property rights (IPRs) on plant genetic resources.

Chapter One introduces the reader to the global transfer of PGRS, the technological progress and developments in agriculture and their impact on PGRS, and the important role played by PGRs from other countries in development of agriculture in the US. Aoki shows how hybridization brought in changes in seed supply and use and transformation of the seed industry. This process was a major step in commodification of germplasm. One of the effects of this commodification was the move to apply intellectual property protection to plants.

Chapter Two deals with developments in applying IP rights over plant varieties and the advent of technology in which prompted new questions, and the outcome of the technological revolution in agriculture. Within seven decades, the extension of IP rights resulted in ever stronger protection. The decision in DIAMOND v. CHAKRABARTY (1980) paved the way for patenting of genetically modified organisms, and subsequent decisions affirmed the availability of patent protection for plants. With the availability of Plant Variety protection under PVPA and patents under Patent Act, the industry sought and obtained the elimination of [*660] farmers’ exemption that enabled their reuse of saved seed. The industry underwent a major transformation during the last two decades of the twentieth century. Consolidations and mergers created firms that not only dominated the agro-chemical industry but also became major players in seeds and agricultural biotechnology as well. Thus the commodification process was complete. Decisions in ASGROW (1995) and SCHMEISER (2004) confirmed that patent law was applicable to seeds and use of patented seed was like use of any other patented product. In SCHMEISER, the Supreme Court of Canada expanded the meaning of patent law and held that unauthorized use of patented seed material was an infringement of patent rights. The dual protection was affirmed by the US Supreme Court in J.E.M.AG SUPPLY (2001). Thus the farmer was reduced to the role of a mere consumer of seeds who had no right to reuse, sell or exchange the output as seed material.

Chapter Four discusses developments at the international level and the transformation of the discourse on ownership and control over PGRS. PGRS were no longer considered as Common Heritage of (Hu)mankind but as resources that were subject to sovereign rights of countries. The Convention on Biological Diversity linked conservation, and access with sovereign rights of nations over genetic resources. It established norms for access and benefit sharing. It was a compromise solution for North-South conflict over access and use of PGRS. The TRIPS (Trade Related Intellectual Property Rights) Agreement of the WTO sought to harmonize the rules for a global intellectual property regime. Article 27.3(b) of TRIPS extended IP protection to plant varieties, but whether it mandated patent protection was a controversial issue. Developing countries took advantage of the sui generis option and tried to craft a regime that balanced IP protection with farmers’ rights.

The International Treaty on Plant Genetic Resources for Food & Agriculture complicated matters further as it brought in a Multi-Lateral System for PGRs and recognized farmers’ rights, while also giving shape a to benefit sharing regime. Aoki discusses the regime shifting and the consequences for global management of plant genetic resources. He addresses the breakdown of ‘common heritage’ system through multiple international conventions/treaties and suggests the consequent possibility of the tragedy of anti-commons. He rightly states, “While it is important not to overstate the argument, at times it seems that the expansion of intellectual property has taken on a strange but dynamic life of its own” (p.97).

In the final chapter Aoki examines the alternatives that have been suggested as a solution to the problems created by expansion of intellectual property rights as well alternative regimes/models based on notions on ‘commons’ and Open Source models. He discusses ideas like ‘Limited Commons’ and the applicability and limitations of Open Source models, and the issue of Open Access to plant genetic resources. He concludes, “If we do not take into account the distributive effects of intellectual property law and practices regarding PGRs, the question is this : Do we control our institutions and inventions or do they, like [*661] Frankenstein’s monster control us?” (p.129). The appendix provides the excerpts from relevant international agreements and treaties and laws of the US and Canada, as well as important US and Canadian court cases.

To sum up, SEED WARS provides an excellent overview of the issues and suggests a range of options to overcome the ill effects of expanding intellectual property rights on access to plant genetic resources, seeds and plant varieties. Aoki does a nice job of drawing the linkage between IPRs and PGRs, without suggesting a return to the old Common Heritage system or arguing for a revision in the current IP regime. He thus suggests a solution by favoring alternative IP regimes based on Open Source models and treating plant genetic resources as a sort of ‘commons.’ This is the strength of the book, as it goes beyond merely discussing the problem.

A substantial portion of the book is devoted to excerpts from treaties and case law. This could have been avoided, as most of this material is available in the public domain, and a simple reference to the sources would have been sufficient. Those pages could have been devoted to more analysis and discussion.

Aoki does provide an excellent analysis of the issues, but his focus is more on case law in the US and Canada, and the development of an IP regime for plants and seeds in the US. Thus the formation of the International Union for the Protection of New Varieties of Plants (UPOV) and developments elsewhere do not get the attention they deserve. Similarly, Aoki could have explored the literature on issues like deskilling and hybrids and the consequences of colonialism for plant genetic resources. Many developing countries have developed sui generis systems that attempt to strike a balance between the norms of TRIPS and the need to affirm Farmers’ Rights, in addition to providing for Plant Breeders’ Rights. The discussion on this and on the linkage between TRIPS, the Convention on Biological Diversity, and ITPGFRA is not adequate given the focus of the book. Similarly the analysis on commons and Open Source models also misses examples like the SNP consortium (a scientific group which assesses DNA sequence variations) or the International HapMap project (whose goal is to develop a haplotype map of the human genome) and fails to have an in depth discussion of debates on applying the Common Heritage Principle to the Human Genome. Nor does he consider the relevance of similar debates regarding the United Nations Convention on the Law of the Sea for understanding the problems and merits in applying the Common Heritage Principle. Another significant omission is the discussion on the relationship between the Principle of Permanent National Sovereignty over Natural Resources and obligations under the conventions and treaties. Although Aoki addresses the issue of Farmers’ Rights, the discussion does not take into account shifts in the discourse on Farmers’ Rights and related developments at the global and national level. In fact, in many places, Aoki could have explored the issues in depth and could have connected to the extensive literature to buttress his observations and arguments. In that sense, 120 and odd pages of text are not sufficient to discuss complex issues like plant genetic resources and intellectual property rights, to map the [*662] trends, and suggest some alternatives. One hopes that Aoki will explore these themes more in detail elsewhere in the future.

Notwithstanding these shortcomings, the book is an excellent source for understanding this important set of issues. As there are not many books that deal comprehensively with these questions, particularly regarding the impact of expansion of intellectual property rights for access to and use of plant genetic resources, this book is a welcome addition to the literature.

CASE REFERENCES:
ASGROW SEED CO. v. WINTERBOER, 513 U.S. 179 (1995).

DIAMOND v. CHAKRABARTY, 447 U.S. 303 (1980).

J.E.M. AG SUPPLY, INC. v. PIONEER HI-BRED INTERNATIONAL, 534 U.S. 124 (2001).

MONSANTO CANADA INC. v. SCHMEISER [2004] 1 S.C.R. 902.

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© Copyright 2008 by the author, Krishna Ravi Srinivas.

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REBUILDING NATIVE NATIONS: STRATEGIES FOR GOVERNANCE AND DEVELOPMENT

by Miriam Jorgensen (ed). Tuscon: University of Arizona Press 2007. 384pp. Cloth. $40.00. ISBN: 9780816524211. Paper. $20.00. 9780816524235.

Reviewed by Ronald Steiner, Department of Political Science, Chapman University. Email: Steiner [at] chapman.edu.

pp.656-658

The chapters in REBUILDING NATIVE NATIONS are a product of the Native Nations Institute for Leadership, Management, and Policy (NNI) at the University of Arizona and the Harvard Project on American Indian Economic Development. These collaborating programs study and promote self-determination, self-governance, and development for Native nations. The Harvard Project conducts research and provides advisory services and executive education, with the goal of understanding the conditions under which self-determined development is achieved among American Indian nations. NNI’s particular focus is on nation building, or “nation re-building” and involves comprehensive, professional training and development programs, including tribal executive education, entrepreneur training, policy analysis and accessible research on governance and development in Indian Country, and work with Indigenous groups on strategic and organizational development. As reflected throughout this edited volume, NNI believes that re-building Native nations through the construction of effective institutions of self-government that meet their unique needs and priorities is the only path to successful and sustainable development in Indian Country.

REBUILDING NATIVE NATIONS is something of a companion volume to THE STATE OF THE NATIVE NATIONS: CONDITIONS UNDER U.S. POLICIES OF SELF-DETERMINATION, published by Oxford University Press for the Harvard Project, which is also a multi-author volume featuring some of the same experts. Both books offer comprehensive, interdisciplinary examinations on current conditions and trends in Indian Country. THE STATE OF NATIVE NATIONS featured short summaries of the current state of knowledge regarding tribal governance, land and natural resources, and economic and social development, to arts and culture, the large off-reservation Native population, and federal Indian policy. Unlike the current volume, the earlier book also contained first-person companion essays so as to more fully include the personal perspectives of noted native figures.

Based on their experience studying and working with native nations, Miriam Jorgenson and her NNI colleagues believe that five elements are critical in successful nation building:

1. Sovereignty. Native nations which seize and exercise self-governing power show significantly increased prospects for sustainable economic development.
   
2. Capable governing institutions. Sustainable development therefore requires native nations to put in place effective dispute-resolution mechanisms and build capable bureaucracies, which necessitate [*657] insulation from the internal politics of the nation.
   
3. Cultural match. Effective institutions tend to be respectful of indigenous conceptions of authority, even where they include some degree of innovation.
   
4. A strategic orientation. Success in developing governing institutions and economic development programs will come when native nations approach these tasks with a long-term commitment to building a society that works, rather than as a quick fix based on funding that happens to be available.
   
5. Leadership. Successful native nations tend to rely, at least initially, on a group of individuals who recognize the need for fundamental change in the way things are done and can bring the community along with them in building that future.

The introductory chapters provide a theoretically rich academic overview, while the core of the book is a series of discrete how-to guides for specific strategies for governance and community and economic development. These substantive chapters provide guidelines for governance structures and constitutional reform, plans for building justice systems and promoting both nation-owned enterprises and citizen entrepreneurs, as well as outlines for developing better and more mutually respectful relationships with non-Native governments.

The substantive discussion of nuts-and-bolts reform begins with a call for “rebuilding the foundations” of native governments, initiated by Stephen Cornell’s explorations of how colonial legacies continue to infect the standard approach to governance, and how indigenous solutions that draw from the past can point the way forward. This will often mean, according to an article by the Harvard Project’s Joseph P, Kalt, re-writing tribal constitutions as a first step in rejecting the faux sovereignty imposed on tribes in favor of new provisions that reflect a better cultural match, and which draw from recent learning gleaned from successful tribes. Critical to that constitutional restructuring is an independent and politically insulated system of courts and dispute resolution mechanisms, discussed in a chapter by Joseph Thomas Flies-Away and others, and, as discussed by Cornell and Jorgenson, a re-constructed tribal bureaucracy that focuses on “getting things done for the nation” rather than serving the narrower interests of the faction in power.

The book gets even more hands-on when it turns its attention to economic development issues. Kenneth Grant and Jonathan Taylor discuss successful and less successful strategies for improving the prospects of tribally-owned enterprises, with the key strategy being to monitor carefully the boundary between business and politics. When a tribal council member’s brother-in-law gets fired for poor performance from a job with a tribally-owned business, is the business sufficiently insulated from the politics of personality that the dismissal will stick? If not, experience suggests trouble ahead. Another economic development strategy is discussed by Cornell, Jorgenson, and others in a chapter on encouraging entrepreneurship among tribal members, both on and off the reservation. Thus, the NNI has partnered with the First Nations Development Institute and others in seeking to implement matched saving [*658] account programs in native communities, supported by financial education, credit counseling, and home buyer education programs, in an attempt to extend the benefits of wealth building to low-income individuals and families.

A chapter by Alyce S. Adams, Andrew J. Lee, and Michael Lipsky, and one by Sarah L. Hicks discuss specific features of successful governance, including the establishment of internal services and programs that really meet the needs of tribal members and reservation residents, as well as external, intergovernmental relations in which the native nations unequivocally project expressions of tribal sovereignty. For example, NNI has substantial research and experience with the various forms intergovernmental co-management agreements into which tribes in North America have entered to improve resource stewardship, so native nations can learn what models exist, and which are best suited to their own circumstances.

The book ends with another set of more theoretical chapters that explore the examples of individual successful leaders and ask why some nations manage to “seize the future” while others do not. In these chapters, Begay, Cornell, Jorgenson, Kalt, and others explore the themes for which the NNI and Harvard Project were initiated: what has research and experience taught us that can be of immediate and specific application to native people trying to survive and thrive among dominant settler societies that do not always have the tribes’ best interests at heart.

This book is a must-have for any scholar or teacher serious about really understanding the prospects for political and economic development among native nations. Few people are better situated than its contributors to discuss with both theoretical sophistication and practical experience the real situation of indigenous peoples.

A small caveat: like many who work in Indian Country, NNI walks a precarious political line in its work, and this difficult situation is reflected in the examples used in the text. Many of the success stories are drawn from the current experience of indigenous nations with representation on its advisory council. Perhaps that is not surprising; NNI would want to have successful indigenous leaders on its board. Its examples of failure and bad models, however, are presented with pseudonyms or drawn from the safe reaches of the past. Thus, while many indigenous leaders are duly celebrated for successful innovations, few current native leaders will suffer any embarrassment from this otherwise concrete and specific book. To its credit, NNI is in the trenches getting itself deeply involved in the daily lives of native nations – and it may be a telling commentary on the state of Native America that even they have to pull their punches.

REFERENCES:
Henson, Eric C., Jonathan B. Taylor, Catherine E.A. Curtis, Stephen Cornell, Kenneth W. Grant, Miriam R. Jorgensen, Joseph P. Kalt, and Andrew J. Lee. 2007. THE STATE OF THE NATIVE NATIONS: CONDITIONS UNDER U.S. POLICIES OF SELF-DETERMINATION, Harvard Project on American Indian Economic Development. New York: Oxford University Press.

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© Copyright 2008 by the author, Ronald Steiner.

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BLEACHED FAITH: THE TRAGIC COST WHEN RELIGION IS FORCED INTO THE PUBLIC SQUARE

by Steven Goldberg. Stanford, California Stanford University Press, 2008. 176pp. Cloth. $24.95. ISBN: 9780804758611.

Reviewed by Caren Dubnoff, Department of Political Science, College of the Holy Cross. Email: cdubnoff [at] holycross.edu.

pp.651-655

In her much acclaimed book about the Declaration of Independence, Pauline Maier observed that “separation of church and state was one of the most radical innovations of the American Revolution.” (Maier 1997). But if much current legal commentary is correct, separation may have been a historical innovation whose day has now passed.

According to many observers, the Supreme Court has moved from reading the Establishment Clause as requiring separation of church and state toward seeing it instead as requiring only neutrality – not favoring one religion over another, and not favoring religion over irreligion. And even if the Court’s retreat from separation has not been complete, support for the principle has clearly eroded. These changes are moreover increasingly welcomed by many commentators. Some support neutrality because they believe it to be a more accurate reading of the Establishment Clause command. Others do so because they believe that neutrality will provide more principled decision-making than has occurred under the separation principle. Neutrality would add clarity and consistency to an area of law that they argue is now confused and incoherent. Some argue that separation weakens religion, and with it the moral values upon which the development of the civic virtue essential to a good functioning democracy depends. Others argue that the conditions that supported separation have changed, and a new doctrine is needed to promote either the Clause’s most fundamental concern, the promotion of religious liberty,
or other constitutional values such as equality.

In this brief volume Steven Goldberg writes in opposition to this approving trend. He challenges the argument that because religion has a positive effect on moral values and civic virtue, it merits government support. He also responds to the argument that barring religion from the public square violates the free exercise rights of the religious. With respect to outcomes, it is Goldberg’s contention that government sponsorship actually harms religion. According to Goldberg when religion enlists government support in putting forth its message, it compromises its ability to be a positive force in society. “[I]n American culture public religion is inevitably watered down religion.” But if religion is to be “a source of moral values in a materialistic, scientific culture it must have real content” (p3). Real content “arises in hearts, homes, houses of worship, and in the private sector, not in government bureaucracies” (p.2). Goldberg thus does not challenge the importance of religion to the formation of moral citizens, but rather contends that government hinders this process.

Furthermore, Goldberg points out that the limitations on government sponsorship of religion have not created [*652] a secular society. Religion in the United States is much more vibrant and its free exercise is more protected than in other Western societies where limits on state sponsorship are absent. This religious vitality “flows from restricting the embrace of government while protecting free exercise. The real danger to religion comes “not from its failure to be recognized in the public square but from the costs that come with that recognition . . . . [Its] true power . . . . flows from restricting the embrace of government while protecting free exercise” (p.5). This is of course the core separationist position. Goldberg goes on to argue that the Court has been more solicitous of free exercise in crafting doctrines supportive of private individual choice than have other government actors and the public.

Goldberg builds his argument around three cases: the controversy over the posting of the Ten Commandments; the argument over the introduction of Intelligent Design in school biology classes; and the argument over holiday displays. He later focuses on the constitutional protections of free exercise, including, but not confined to, the free exercise clause. Along the way he provides some doctrinal background.

Chapters 2-4 form the heart of the book. Chapter 2 takes up the controversies surrounding the display of the Ten Commandments. No doubt most readers probably believe they know what these are. But, as Goldberg makes clear, there are several versions of the Ten Commandments. Different Bibles and the religions that use them count, order and define the Commandments differently, and so the actual content of the Ten Commandments is variable, depending on which Bible (Hebrew, King James, or New American) one uses and which Biblical passage (Exodus or Deuteronomy) one invokes. Further while the Ten Commandments in whatever form do contain much that is important to the regulation of human behavior, much of what they say is clearly about man’s obligations to God. The Ten Commandments are therefore undeniably religious and their different versions are sectarian.

It follows that since most Justices of the Supreme Court hold that the Establishment Clause forbids at least the permanent advantaging of one religion over another, displays of the Ten Commandments can be made acceptable only by stripping them of their religious meaning. According to Goldberg, this is exactly what has happened, with defenders asserting it represents only an acknowledgement of a religious history or by characterizing it as one among many sources of law. There are in fact three Supreme Court decisions that are directly on point: STONE v. GRAHAM, where the Court in a 5-4 decision struck down a Kentucky statute that required the posting of the Ten Commandments in all classrooms in the state; MCCREARY COUNTY v. ACLU, another 5-4 decision striking down a Ten Commandment display in a Kentucky Courthouse because the recent placement of secular objects did not suffice to transform a display that had originally been religious into one that was now secular; and VAN ORDEN v. PERRY, a 5-4 decision finding no constitutional violation of a display in a sculpture garden along with secular objects, because in that setting it showed no religious purpose. Goldberg builds a convincing case that the moral teachings of the Ten Commandments get lost in these displays. [*653]

The argument that government support for a display of the Ten Commandments does not really strengthen its religious force assumes that the primary purpose of the display is its actual religious teachings. But what if the display’s actual purpose is symbolic, a statement of who we are as citizens, a measure of acceptability? If so, and in the end Goldberg acknowledges that this may indeed be so, then the criticism that the result is watered-down religion is unlikely to persuade supporters that they are pursuing a false goal. Having identified the symbolism in these displays, Goldberg then fails to pursue an important implication of that finding, that they then violate the constitutional principle of equality embodied in the religion clauses. As Justice O’Connor stated in LYNCH v. DONNELLY, religion cannot be made a basis of “a person’s standing in the political community” (LYNCH, at 687).

Goldberg’s next example is the controversy over including Intelligent Design in the biology curriculum. These efforts are the latest iteration in the debate over the teaching of evolution. Goldberg begins with a brief history that traces the controversy from the Scopes trial to an Arkansas law prohibiting the teaching of evolution, then to a Louisiana law requiring that if evolution is taught, equal time must be afforded creation-science. More recently, there have been efforts to require that Intelligent Design be taught as an alternative to evolution. Such cases have not yet come before the Supreme Court. For a brief period of time, it appeared that such a test was in the offing when a federal district judge held that inclusion of Intelligent Design in the curriculum in Dover, Pennsylvania, violated the Establishment Clause. But before the city could appeal, the election of a new school board on that issue led to its removal from the biology curriculum, thus mooting the issue.

Goldberg is less interested in the particulars of the Dover controversy than in the broader questions raised by the movement to include Intelligent Design in the biology curricula. Goldberg argues that Intelligent Design is as objectionable in a biology class as was creationism and so-called “creation-science,” because like these it is not science. None of these teachings can be disproved by empiric evidence, and the potential for refutation is a hallmark of true science. But the more important issue for Goldberg is what would happen to religion if proponents of Intelligent Design succeed in persuading the public and the courts. In his view, religion would actually be weakened, because the Intelligent Designer described by these teachings is little more than a tinkerer, a force that fills in the blanks that evolution has yet to explain. It is not the God that some scientists have in mind when they speak of Intelligent Design – that God is of cosmic magnitude, a God that created the laws and the very order of the universe, without which the fabric of space would not exist. The classroom Intelligent Designer is also not the God of traditional religion, the God who gives us our souls and teaches us how to live. In Goldberg’s view, “intelligent design . . . . empties religion of everything that makes it important. God is no longer the creator of the universe, a source of ethical teachings or the inspiration for a sense of awe and humility. God is instead a second-rate engineer” who fills in the gaps left in evolution’s account of creation. The better remedy for religious parents is [*654] subsidized private religious education, a solution that Goldberg supports.

Does Goldberg answer the concerns of fundamentalist parents? I doubt it. The problem here is that there can be a real conflict between religious and secular views of how our world came to be. In this case these positions may be irreconcilable, and the private school opt-out, even if partially funded by government as Goldberg suggests it should be in Chapter 5, is only a partial answer because of the other benefits that may accrue from a public school education. He further overlooks the possibility that for proponents of Intelligent Design a fundamental objective is satisfied just by casting doubt on evolution, part of a strategy to get religion a “foot in the door.” That said, Goldberg is clearly correct that Intelligent Design does not belong in a science class. It is not science, and as Goldberg correctly notes, its proponents also distort the meaning of a “theory” as it is used in science. Whatever one’s position on the constitutional issue, this chapter is worth reading because it provides the nonscientist a window on how scientists who accept the theory of evolution can also believe in God.

The disputes surrounding holiday displays, or more precisely Christmas and Chanukah displays, provide the third case. For Chanukah, the result has been its elevation from a once minor Jewish holiday to one that gets great attention. Its religious message as a celebration of a distinctly Jewish event has been distorted by its more recent identification as a symbol of Jewish participation in a larger American culture. From a religious standpoint, the prominence of the Chanukah menorah in public displays has distorted traditional teaching by causing many Jews to consider it the most important menorah, losing sight of the more important and different Temple menorah. If the religious importance of Chanukah has been magnified, that of Christmas has been diminished by commercializing it. For both holidays, “the display must be devoid of any meaningful religious content” (p.67). Goldberg acknowledges that some of these costs are the consequence of constitutional requirements but contends the religious message would in any event have had to accommodate a very diverse nation with the same general result. Here again Goldberg discounts the possibility that a display may be more important as an expressions of one’s position in a broad community of believers than as a promoter of strong religious content.

Despite many concerns that separation of church and state would harm religion, America is a more religious country than many others with direct ties between government and a church. Chapter 5 proposes that the reason is the privatization of religion in America that separation’s critics so often criticize. Whatever limitations are imposed on religion by the Establishment Clause are more than compensated by the strong protection afforded free exercise rights by the Constitution and the political culture. The Supreme Court has reached a broad understanding under free exercise that the state may not target religion for adverse treatment, may not regulate religious beliefs and may not judge the truth of religious doctrines. There have been holdings that the due process clause protects parental control over upbringing and schooling and that religious speech must be treated on a par with other speech. Not surprisingly Goldberg favors a robust understanding of free exercise rights, including [*655] granting religious exemptions to generally applicable law. He characterizes such actions as equalizing rather than advantaging religion, and therefore not in conflict with the earlier argument against government support for religion.

This chapter is of a different order than the others. The doctrines that Goldberg describes certainly do provide an environment within which religion can thrive, but it does not follow from this that this environment is actually responsible for such religious vitality. There may well be other, more important factors.

I would conclude with the following observations. Goldberg takes the law as it is when he argues that government support for religion weakens its religious message. But were the Court to adopt the position of Justices Scalia and Thomas that the Establishment Clause bars only the establishment of a state church, the law would then permit much more religious content in government-supported endeavors. It remains to be seen whether the diversity of American society would then serve as a similar check via the political process.

In the end, I liked this book despite the reservations I have expressed. Though the broad argument it advances is not new, some of the evidence presented is based on very current issues, such as the discussion of Intelligent Design. The Court’s jurisprudence in this area remains highly contested, and I think this book provides a useful counterweight to those who oppose the separation principle. For this reason, I believe Goldberg’s book would be particularly useful in a course such as Religion and Law. Similarly, it would work very nicely in a basic American Government course that includes a section on civil liberties.

REFERENCES:
Maier, Pauline. 1997. AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE. New York, NY: Alfred A. Knopf, Inc.

CASE REFERENCES:
COUNTY OF ALLEGHENY v. AMERICAN CIVIL LIBERTIES UNION GREATER PITTSBURGH CHAPTER, 492 U.S. 573 (1987).

EDWARDS v. AGUILLARD, 442 U.S. 578 (1989).

EPPERSON v. ARKANSAS, 393 U.S. 97 (1968).

KITZMILLER v. DOVER AREA SCHOOL DISTRI COURTS, 400 F. Supp. 2d 707; 2005 U.S. Dist. LEXIS 33647.

LYNCH v. DONNELLY, 465 U.S. 668 (1984).

MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, 545 U.S. 844 (2005).

STONE v. GRAHAM, 449 U.S. 39 (1980).

VAN ORDEN v. PERRY, 545 U.S. 677 (2005).

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© Copyright 2008 by the author, Caren Dubnoff.

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COMPLEX JUSTICE: THE CASE OF MISSOURI v. JENKINS

by Joshua M. Dunn. Chapel Hill, NC: The University of North Carolina Press, 2008. 240pp. Cloth $37.50. ISBN: 9780807831397.

Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania. Email: bsweet [at] clarion.edu.

pp.645-650

Joshua Dunn has written an enlightening book on MISSOURI v. JENKINS, one of the most controversial desegregation cases. When many people think of this case they envision a federal district court judge gone amok. Judge Russell Clark more than doubled property taxes and even attempted to implement new taxes. He ordered salary increases and the construction of cutting-edge facilities. By the time his mandates had run their course, in about a ten-year period, he had ordered the spending of $2 billion. There was little to show for all the spending. The district remained predominantly African-American, and test scores barely budged. How could a judge do something that seems so excessive and irrational? Joshua Dunn’s book, with clarity and simplicity, makes Judge Clark’s actions almost understandable.

Dunn starts by explaining how the judge had to operate within a judicial straightjacket established by Supreme Court precedents and an activist Eighth Circuit Court of Appeals. In GREEN v. NEW KENT COUNTY SCHOOL BOARD (1968), the Court imposed an affirmative duty to desegregate; simply ending legally imposed segregation was not enough. Furthermore, desegregation efforts would be “judged by their results – how effectively they eliminated racially identifiable schools” (p.18). The Court wanted to see the vestiges of discrimination eliminated. In SWANN v. CHARLOTTE-MECKLENBERG SCHOOL BOARD (1971), the Supreme Court held that any school system that had a history of legally imposed segregation and still had racial disparities in its schools was presumed to be unconstitutionally segregated. As Dunn points out, school systems in the South, and in border states like Missouri, had to overcome this presumption of unconstitutionality.

The Supreme Court seemed to be moving in the direction of blurring the distinction between de facto and de jure segregation. This distinction appeared to be nearly eliminated in KEYES v. DENVER SCHOOL DISTRICT NO. 1 (1973). The KEYES case placed the burden on school boards to prove that they did not contribute in any way to segregated housing patterns that led to racially imbalanced schools. Because this negative would be difficult to prove, school boards essentially had an affirmative duty to integrate. Some school districts thus faced an insurmountable task. How do you integrate schools when an overwhelming number of available students are minority? One suggested solution was to impose an interdistric