TRAUMA AND MEMORY: READING, HEALING, AND MAKING LAW

by Austin Sarat, Nadav Davidovitch, and Michal Alberstein (eds). Stanford, CA: Stanford University Press, 2007. 336pp. Cloth. $60.00. ISBN: 9780804754057.

Reviewed by Dimitri A. Bogazianos, Division of Criminal Justice, California State University, Sacramento. Email: dbogazia [at] ccolex.ccol.csus.edu.

pp.757-761

At its heart, TRAUMA AND MEMORY makes one crucial argument: collective memory, whether conceived of as trauma or, simply, “history,” fundamentally takes work. The observation that individuals, families, ethnic groups, whole cultures, and the sociopolitical institutions that negotiate, and often dictate the relations between them, are increasingly re-imagining and re-writing their histories according to the ever-increasing reach of trauma is the primary concern undergirding the contributions. Of course, the book does more than simply make one argument, and, as the editors – Austin Sarat, Nadav Davidovitch, and Michal Alberstein – make clear in their Introduction, an equally strong theme running throughout the volume is that what should be remembered is always a political choice with serious consequences for those whose memories have not been emphasized. And, once such memories have been “worked-up,” they must then be put to work, and, more often than not, wind up working in the interests of some at the expense of others.

Indeed, Part II of the volume focuses on identities, and examines issues that Parts III and IV fill out later. In Chapter 2, “Posttraumatic Stress Disorder of the Virtual Kind: Trauma and Resilience in Post-9/11 America,” Allan Young argues – after sketching the ways in which the definition of PTSD in the United States was expanded in the wake of Vietnam and efforts to better understand and help victims of sexual abuse – that a “new variety of PTSD has emerged” in the US since 9/11. Young suggests, however, that this new variety of PTSD should not be seen as an aberration, but, rather, as part of a long history of re-definition that started in the 1800s, and, through the War on Terror and the real-time footage of national disasters now digitally available, has come to produce more diffused, collective forms that have affected “an entire nation.”

The suggestion that trauma is now understood to affect such large groups of people reveals an important concern running throughout many of the contributions, if only implicitly: that trauma, in fact, is an essential element in nation-building, past and present. Indeed, the next chapter, “Female Trouble,” switches focus from national to personal and back again by analyzing the degree to which trauma “lies at the very foundation of relations between men and women in the West” (p.50). In it, Ariella Azoulay makes a provocative turn, arguing that trauma is the paradigmatic example of rape, rather than the other way around, which is the more common assumption. Azoulay suggests that rape is part of the infrastructure of the Enlightenment, and stems from an initial “abandonment” of [*758] women that can be seen, for example, in the Declaration of the Rights of Man, which, by implying that “those acts or actions that it does not discuss are allowed,” therefore, “paved the road for doing harm to women” (p.53). For Azoulay, actual physical sexual assaults are second-level events experienced by individual women, which are first structured by the universal female experience of abandonment.

The next chapter, “The Trauma of al-Nakba: Collective Memory and the Rise of Palestinian National Identity,” describes how multiple senses of Palestinian identity existed prior to the al-Nakba – the 1948 creation of a Jewish state in Palestine, which resulted in the massive displacement of those living there – and were articulated primarily by anti-Zionist writers based in the cities. In it, Issam Nassar argues that the 1967 occupation of Gaza and the West Bank allowed for the effective appropriation of the al-Nakba trauma, and, in his words, “deprived those who lived the al-Nakba experience of their ‘Palestinianness’” (p.75). Being Palestinian is now “universally” understood to revolve only around the territorial claims of those in Gaza and the West Bank, rather than the larger collective experience of displacement, as well as the dreams of returning to the cities that those originally cast out still retain.

Switching from the textual to the visual, the next chapter, “Trauma-Image: The Elephant Experience,” uses ELEPHANT – a film by Gus Van Sant, which was loosely based on the Columbine massacre – to suggest that alternative ways of visually representing trauma are possible if they adhere to a dialectical process of “looking without showing, and seeing without demonstration” (p.85). According to Roei Amit, this method creates “an image that is visible but opaque, flat but a simultaneously complex presence” (p.85). Ultimately, Amit suggests that films which focus on the inherently processual nature of trauma are better suited to capture its perhaps ineffable qualities than are films that attempt to didactically explain it.

While Part II focuses primarily on identities, Part III addresses the institutional means by which such traumatic experiences are acknowledged, exacerbated, and, it is often hoped, healed. In Chapter 6, “Trauma and Justice: The Moral Grammar of Trauma Discourse from Wilhelmine Germany to Post-Apartheid South Africa,” Jose´ Brunner teases out an important theme: trauma is, by definition, a disorder that has an “external” cause, and, therefore, inherently implies issues of responsibility, blame, and justice. It is a medical diagnosis with immediate legal repercussions. And, as every law and society scholar since the realists has argued, the legal is also inherently political. For Brunner, then, the legitimacy of victimhood first depends on successful political agitation. In his words, “The politics of trauma and victimhood is competitive” (p.107). Paradoxically, however, the transitional form of justice exemplified by post-Apartheid South Africa’s reconciliation efforts – which also, according to Brunner, exemplifies the move to postmodern forms of governance more generally – de-medicalized trauma, and, strangely, put victims in the position of having to become forgivers, which endowed them with power, but, also, the [*759] “responsibility of overcoming his or her victimhood” (p.112).

Chapter Seven, “Public Health, Law, and Traumatic Collective Experiences: The Case of Mass Ringworm Irradiations,” continues the investigation of such paradoxical consequences of legal efforts at healing. Looking at Israel’s massive efforts to irradiate new immigrants against ringworm during the 1950s, Nadav Davidovitch and Avital Margalit examine the problematic use of eugenics, and the promotion of the “new Jew” as techniques of nation-building. For many survivors, undergoing state-enforced treatment, which included isolation and quarantine, was reminiscent of the camps. And, in the following decades, a number of epidemiologists found that those who had undergone the irradiation had higher than normal incidences of cancer. After the first legal cases were brought by victims of the program in the 1980s, the limitations of the law in healing such trauma became clear: in continuing to separate the social from the legal, the “needs in the symbolic dimension of a social healing process” (p.147) remained, simply, unfulfilled. As Davidovitch and Margalit suggest, then, taking alternatives to legal compensation seriously – such as establishing centers devoted to the memory of traumatic events as well as taking personal testimonies of those affected most – is crucial to the process of collective healing.

Sarah Willen’s “‘Illegality,’ Mass Deportation, and the Threat of Violent Arrest: Structural Violence and Social Suffering in the Lives of Undocumented Migrant Workers in Israel” continues the examination of trauma in the service of Israel’s state-building practices. What a number of contributors suggest, Willen asks directly: If so many phenomena can be seen as trauma, “is it not reasonable to wonder whether the concept of trauma itself might be in danger of losing its capacity to facilitate understanding of the dynamics and lived experience of human suffering?” (p.171). While continuing to find relevance in the term, Willen prefers the more anthropologically-informed notion of “social suffering” when analyzing the collective experience of the approximately 200,000 migrant workers who came to Israel in the 1980s and ‘90s, and who, according to Willen, not only filled the labor gap left by Palestinians denied access in the wake of the second intifada, but also became central to a new campaign of criminalization fundamentally concerned with the possible threat that permanent settlements of non-Jews might pose to the security of the nation. Because many of the workers were from Third World countries, Willen argues, their obvious phenotypic traits have made them more visible, and, hence, easier to round up by the police. The effects of such efforts have been devastating, leaving families without parents, and communities without the informal bonds that provide their necessary infrastructures. The campaign, in essence, has relied on overlapping violences – structural, symbolic, and, most important in Willen’s argument, the physical violence that inheres as ever-present threat whenever police agencies are so heavily involved in social engineering.

The next two chapters focus on similar issues concerning the collusion – explicit and implicit – of the professions in the legitimization of the “science” behind [*760] Nazi practices, as well as the equally troubling denial of this complicity after the fact. In the first of these contributions, “Trauma, Memory, and Euthanasia at the Nuremberg Medical Trial, 1946-1947,” Etienne Lepicard asks a deceptively simple question: Why has there been far more worldwide concern with Nazi experimentation practices rather than its euthanasia program, which, by all accounts, killed far more people? Lepicard answers this important question by suggesting that the parsing-out of euthanasia from the rubric of eugenics has been, in effect, “a political way of coping with the trauma” (p.217), and has functioned implicitly to deny that eugenics was ever considered a valid medical science, even while the historical record clearly shows otherwise.

In the second of these chapters, “Trauma or Responsibility?: Memories and Historiographies of Nazi Psychiatry in Postwar Germany,” Volker Roelcke continues the examination of the professions, and argues that the problem of Nazi science in the post-war years became focused on individual, supposedly deranged Nazis, rather than the much more complicated and problematic complicity of psychiatry in the worldwide eugenics movement. During the aftermath of WWII, therefore, euthanasia and forced sterilization were re-defined by the medical professions as having been forced upon them by the Nazis, rather than being seen as having occurred amid a global climate that was already favorable to such theories.

The next chapter, “Trauma, Retribution, and Forgiveness: Should War Criminals Go Free?” begins the last section of the volume, which focuses more specifically on the possibilities of healing and forgiveness. In it, Daniel Statman, departing from the more historical orientation of the other contributions, focuses on the philosophical issue of justice in the context of the Palestinian-Israeli conflict, and, as the title suggests, asks the following question: Would setting war criminals from both sides free heal wounds, or, perhaps unintentionally, make things worse? Statman concludes that letting those clearly deserving of punishment go free, even in the interest of reconciliation, would be morally wrong, and that such efforts, if they are to have lasting effects, must be a matter of heart. In his words, “The path to reconciliation must be pursued through a process that reinforces the moral commitments of the parties involved, not one which condones or provides affirmation of moral atrocities” (p.258).

In an analysis of the foreign films FESTEN and THE SON, the next chapter, “The Secrets of Mediation and Trauma in Contemporary Film: A Search from the Perspective of Restorative Justice,” returns to the visual representation of trauma, and makes an interesting observation: alternative filmmaking – of which both films are examples – can also be in the service of envisioning alternatives to legal and medical approaches to healing trauma. Michael Alberstein argues that the healing represented in both films does not rely on formal rule-following, but, because the traumas occur to individuals within family contexts, suggests not only that evil is often banal, but also that recovery can occur within the everyday by regular folk who, in fact, may be better placed to deal with it alternatively. [*761] Alberstein ultimately suggests that recovery is not a one-size-fits-all affair, and that social and individual pre-requisites – such as equality before the law – must be in place before alternatives to legal and medical approaches can begin their healing work.

In the last contribution, “Healing Stories in Law and Literature,” Shulamit Almog moves away from structure, state, and policy, and towards the actual ways in which “trauma narratives” themselves are created through language. Because human beings comprehend the world around them primarily through stories, Almog asks, “what singles out trauma narratives from a poetic vantage point?” (p.292). Legal contexts, by requiring victims to articulate stories in specific ways, often do injustice to the victims. While the law requires stories with clear starts and ends, trauma narratives are fragmented, and progress in fits and spurts as the victims come to terms with what has occurred, re-orienting themselves to their abuse narratively. It is like, in Almog’s words, a “violent encounter between law and art” (p.294). Different poetics – the inclusion, exclusion, and stringing together of facts – are required, therefore, at different points in that progression. For Almog, however, both forms of storytelling are essential to justice, and must find ways to co-exist.

As a whole, this volume is a provocative examination of violence, suffering, and reconciliation, and will be of interest to those who are concerned with their interconnected nature, and are open to the analysis of such issues from multiple disciplinary perspectives.

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© Copyright 2008 by the author, Dimitri A. Bogazianos.

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THE ORIGINS OF AFRICAN AMERICAN INTERESTS IN INTERNATIONAL LAW

by Henry J. Richardson, III. Durham: Carolina Academic Press, 2008. 544pp. Hardback. $65.00. ISBN: 9781594603839.

Reviewed by Richard Middleton, Department of Political Science, University of Missouri-St. Louis. Email: middletonrt [at] umsl.edu.

pp.754-756

In THE ORIGINS OF AFRICAN AMERICAN INTERESTS IN INTERNATIONAL LAW, Henry J. Richardson, III, explores how racism directed towards people of African-heritage in the United States, emanating during the period of slavery, is linked to fundamental principles of international law. Richardson’s main argument is that African American appeals to principles of international law are inextricably connected to their historical enslavement in the United States and their ability to illuminate tenets of law outside of the American domestic legal context that tend to substantiate their claims to basic human rights. In the Introduction, Richardson lays out a cogent thesis by recounting W.E.B. Dubois’ testimony before the Foreign Relations Committee of the US Senate in 1945 – an appearance in which Dubois spoke in favor of the US ratifying the United Nations Charter. Richardson notes that ratification of the United Nations Charter (a form of international law) would have, in theory, given African Americans a legal basis to petition a federal or state court to find that they had a claim to human rights. The human rights provisions of the United Nations Charter would have been binding at the federal and state level of government given its status under the US Constitution as a ratified treaty. From this, the book explores a range of normative arguments emanating from international legal principles with which Blacks identify that create the basis to their claim to freedom and a better approach to law by which they should be governed. Among these principles includes the law of God, British policies during the American Revolution, liberation theory prominent during the Haitian Revolution, and natural law theories forwarded by American colonists.

This robust book is divided into sixteen chapters that chronicle the simultaneous evolution of wide-ranging international legal issues potentially significant to African Americans’ claims to freedom and equitable treatment under the law. The goal of each chapter is to provide substantive evidence that African Americans have an historical interest in international law.

Chapter One focuses on how sovereigns and elites attempted to fashion an international order of stability in the African slave trade in light of the reality that Africans would never come to accept their enslavement and would consistently work to free themselves. Richardson notes that at this time there were only a few legal claims/theories in place (e.g. the writings of Grotius and the Spanish empire’s legal approach to slavery) to which African slaves could turn in order to assert their human rights. However, emerging at this time were [*755] four main classes of issues – each of which are central to the book. These issues are: (1) international law’s emergence as a modern legal system in close historical proximity to the construction of an international slave system and what rights, under this system, would be denied to African slaves, (2) the ability to observe what happens when normative principles emergent from natural law (the wrongness of slavery) interact with a mercantile system whose livelihood depends upon eradicating such normative principles, (3) the attention commanded by the condition of millions of enslaved African people spread over various lands who were the focus of regulatory laws on an international basis, and (4) African cultural forms of expression and beliefs that, in an aggregate voice, would consistently chink away at the discriminatory regulatory armor put into place over them by elites.

The second chapter explores the arrival of the first Black slaves to Jamestown and how their arrival shapes the first Black claims. Richardson notes that the legal status of the first twenty Africans to arrive at Jamestown was one of ambiguity – local laws did not assign a particular legal standing on them; rather, their implied legal status was that of indentured servitude. Their arrival in the British colonies, after having been baptized by Portuguese captors, placed them under the jurisdiction of British law. Under British law, foreign Christian baptism was determinant of personal status for slaves within the Virginia territory – thus, this gave the first twenty Africans a claim to freedom rooted in international law. Richardson notes, however, that the extant literature provides no evidence that these Africans ever pursued such a claim in any court.

Chapter Three analyzes Black claims to outside law in Pre-Revolutionary New York. Richardson argues that Black claims to outside law began almost as soon as they were brought to New Amsterdam in 1609. This was manifested by their opposition to slavery and claims of rights to be free, flee, to assist runaway slaves, rebel (in 1712 and 1741), and live with Native Americans. Richardson notes that these claims and events were evidence of the intermingling of Black appeals to international law for the right of freedom with serious concerns about security in the New Amsterdam colony. The colonists made Black claims the focus of various aspects of international law by attempting to regulate Black behavior in their hopes to achieve colonial security and protect property interests.

The fourth chapter broadens the focus of Black slavery by looking at hemispheric slave revolts. Richardson touches upon the claims of Blacks in Latin America and the Caribbean and finds that the demands imply an assertion of claims to outside law. These claims are: (1) “that international law prohibits the slave trade and the institution of slavery in any territory held by a sovereign,” (2) that Africans have a personal right under international law to be free of any enslavement, (3) the doctrine of freedom of the high seas does not incorporate the right of any state to participate in or license commerce in slaves, (4) that slavery represents an aggressive and criminal use of military force against blameless people, giving such enslaved people the right to use force in self-defense to overthrow it, (5) that [*756] kidnapping African slaves for the slave trade does not render such Africans prisoners of war, and therefore gives the capturing sovereign no right to enslave them, and (6) that each slave has a right of, and slaves generally have a collective right of protected immigration away from territory where they are enslaved to a territory where slavery is prohibited or nonexistent.
Chapter Five explores the interaction of principles of natural law with international law and the institution of slavery. Richardson begins with a focus on Grotius’ jurisprudential approach to a new science of international law. Central to this approach is the maintenance of a social order consistent with human intelligence and observation of basic principles – such as refraining from meddling in that which belongs to another. Richardson further notes that Grotius, in writing about slavery, brought forward natural law and, with this as an underpinning, argued that it does not give masters the right to determine the life or death of their slaves. Richardson rounds out the chapter by exploring other prominent philosophers and thinkers and explores how the tension between natural law, positive law and the institution of slavery manifested itself in colonial discourse.

The sixth chapter analyzes the international legal process and African claims and rights by focusing on non-state actors, maroon communities, and the various arenas in which decisions about power were formed. Chapters Seven and Eight focus on Black assertions of freedom and equality made by Lancaster Hill in 1777. Chapters Nine through Eleven discuss African American interests in having international law-related language ratified as part of the US Constitution. Chapter Twelve explores federal court cases and African American claims to international law, while Chapter Thirteen addresses appeals to international law and their connection to property clauses, fugitive slave laws, the slave trade and Gabriel Prosser’s Rebellion. Chapter Fourteen focuses on the Louisiana Territory, and Chapter Fifteen analyzes Black claims to international law as they relate to the War of 1812. Chapter Sixteen concludes the book by exploring the birth of African American international jurisprudence.

In summary, Richardson presents a thorough analysis of African American interests in international law and how principles emanating from outside law have historically been linked to Blacks’ appeals to equality and freedom. The book is most appropriate for the graduate and professional (law) level and would be suited for courses in African American/American History, Race and the Law, and American Legal History.

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© Copyright 2008 by the author, Richard Middleton.

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ASPECTS OF HOUSING LAW

by Jill Morgan. London: Routledge-Cavendish, 2007. 512pp. Paper. £28.95/$56.95. ISBN: 9781845680145.

Reviewed by Caroline Hunter, School of Law, University of Manchester. E-mail: caroline.hunter [at] manchester.ac.uk.

pp.751-753

Housing law is a difficult subject to pin down. In the preface to the first edition of the leading practitioner text on the subject (Arden and Partington 1983), the authors state that they have “aimed to bring into a single volume as comprehensive a treatment as possible of the law that is likely to affect all classes of occupiers of residential accommodation.” The latest edition of that text now runs to over 1200 pages. But significantly, the text also deals with those who are not occupiers – the homeless. It is not enough to deal with those who have residential accommodation – we have to consider those without and how they access it, and those who wish to swap between different classes of occupation.

Another problem with writing housing law texts is that it is a subject which is intimately bound up with policy. It is an area (at least in the UK) which the government has for a century and a half sought to regulate in various ways – by empowering local government to intervene, by restricting contractual rights, or simply by creating criminal offences (e.g. in relation to illegal evictions). It not only a site of regulation, it is also used by governments to promote broader policy objectives. The most obvious of these has been the promotion of home ownership, but also in the UK in recent years it has been increasingly a site of policies of crime and social control (see e.g. Flint 2006)

How then does Jill Morgan’s new book seek to address these issues? The introductory chapter sketches out some useful approaches to considering how housing law and policy interact, particularly picking up on the ideologies identified by McAuslan (1980) in his work on planning law and also on notions of the home. The problem is that this conceptual approach is not carried through in the remainder of the book, which is structured along traditional lines – breaking housing down into its traditional UK sectors (private renting, council housing, housing association housing and owner-occupation). While McAuslan’s second ideology of “orthodox public administration” may today have been transplanted by ideas around the regulatory state, this book does not follow through with any analysis of how far the recent developments in housing law conform to or challenge these larger ideas of the development of the neo-liberal state in the early twenty-first century. For a more theoretical understanding of the development of housing law readers will have to look elsewhere, for example to Stewart (1996) and Cowan and McDermont (2006).

I also found the structure which starts with an overview of the four housing tenures (plus homelessness), moves on [*752] to some universal issues (entitled “General Concerns) – the regulation of rents, repairs, succession and homelessness – before returning to the detail of the regulation of the private rented sector, and council and housing association sectors, both confusing and at times leading to repetition. The difficulty with providing an overview sketching the policy history in relation to the particular areas and then returning later to the detailed legal provisions is that it divorces any discussion as to how the two interrelate. Even within the chapters, the role of policy in shaping law and role of law in (mis)shaping policy are rarely debated. Thus the chapter on repairs touches on the decent homes standard (although what it comprises is not explained, and the reader who is not familiar with UK housing policy may be puzzled by the term) introduced by the current Labour government as a non-legal standard up to which all social housing landlords were required to bring their homes. Its interrelation with the legal repairing covenant is briefly touched on (p.123), but the discussion is very limited and does not begin to explore why a regulatory mode of governance which does not bring with it any individual rights has been far more successful in updating homes than 45 years of a statutorily implied repairing covenant.

The problem of what “housing law” consists, is illustrated by the difficulty many housing law text books find in knowing how to treat owner-occupation. In the UK it is the most significant form of tenure (with nearly 70% of households in owner-occupation) – yet there is less “law” in the sense of statute and case law relating to it. This book struggles similarly. Thus although the overview section includes a chapter on owner-occupation, it does not reappear anywhere else in the volume – neither under the general concerns, nor (obviously) in the sections dealing with the private rented and social housing sectors. Yet why not deal with it in relation to succession or indeed alongside the control of rents and the availability of housing benefit contrasting the (admittedly far more limited) control of mortgage rates and availability of income-support to meet mortgage costs. It is almost as if owner-occupation was only a ghost at the feast of housing law, making a brief appearance but unable to sustain its presence.

This leads to the most significant omission from this book. Save very briefly in relation to remedies for disrepair, it does not consider at all the position of long-leaseholders of flats. This is a sector that has grown phenomenally over the last 15 years or so, as we have seen the return to city living with the conversion of old commercial premises and the building of new flats in so many of our towns and cities. The law has struggled to regulate the ownership of flats for the last 20 years, and there has been a succession of legislation to give further rights to flat owners.

The later chapters which set out the principal legal provisions do so clearly and in a way which will make the book useful to students of housing law. I sometimes, however, found the particular mix of what was covered in detail, and what was not, hard to fathom. So we have 11 pages on the succession rights to private rented tenancies (which must in practice only occur once in a [*753] blue moon), while there are only 7 pages on all the new provisions of the Housing Act 2004 relating to the housing health and safety rating system and houses in multiple occupation.

Despite these criticisms, this is likely to be a popular book with students of housing law, whether undertaking social policy/housing degrees or law degrees. It provides a basic account of how housing policy has led to the current legal position and readable account of the current law.

REFERENCES:
Arden, Andrew, and Martin Partington. 1983. HOUSING LAW. London: Sweet & Maxwell.

Cowan, David, and Morag McDermont. 2006. REGULATING SOCIAL HOUSING: GOVERNING DECLINE. London: Routledge-Cavendish.

Flint, John. 2006. HOUSING, URBAN GOVERNANCE AND ANTI-SOCIAL BEHAVIOUR. Bristol: Policy Press.

McAuslan, Patrick. 1980. THE IDEOLOGIES OF PLANNING LAW. Oxford: Pergamon Press.

Stewart, William J. 1996. RETHINKING HOUSING LAW. London: Sweet & Maxwell.

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© Copyright 2008 by the author, Caroline Hunter.

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TRUTH OR ECONOMICS: ON THE DEFINITION, PREDICTION, AND RELEVANCE OF ECONOMIC EFFICIENCY

by Richard S. Markovits. New Haven: Yale University Press, 2008. 520pp. Cloth $65.00. ISBN: 9780300114591.

Reviewed by Scott A. Beaulier, Stetson School of Business and Economics, Mercer University. E-mail: beaulier_sa [at] mercer.edu.

pp.748-750

TRUTH OR ECONOMICS is a frustrating and incomprehensible book written by Richard S. Markovits, Professor of Law at the University of Texas Law School. The author’s primary aim is to both critique and “offer an appropriate response” to many of the flawed efficiency claims made by economists, legal scholars, and policymakers. While Markovits’ project might sound like an ambitious and intriguing one to readers initially, I doubt his book will succeed in persuading economists to rethink their arguments for economic efficiency.

The main reason why TRUTH OR ECONOMICS will fail in its attempt to persuade is because the book is poorly organized, poorly written – in some places it is redundant, and, in many places completely incoherent. The book is heavy on unnecessary and clumsy jargon, such as “monetized definition” (p.19), exaggerated claims and over the top assertions. On page 3, for example, Markovits claims that he will explain why a number of different definitions of economic efficiency – Pareto-superior, Kaldor-Hicks, Scitovsky tests – “are wrong.” He makes a similar assertion about the Coase Theorem on page 68.

While the book is chocked full of suboptimal presentation, it is too thin on applications and real world illustrations. Markovits’ main gripe is with the way economists use economic efficiency, arguing that,

if money has diminishing marginal value, any analysis of a private choice’s or a public policy’s economic efficiency that incorporates the compensating-variation definitions of its winners’ equivalent-dollar gains and losers’ equivalent-dollar losses will tend on that account to underestimate those gains and overestimate those losses . . . the diminishing marginal value of money will render any operationalization of economic efficiency that incorporates compensating-variation definitions of the dollar gains of a policy’s winners and the dollar losses of a policy’s losers not only inaccurate but also biased against economic efficiency. (p.24)

In other words, since the law of diminishing marginal utility appears to take on a hedonic shape, most efficiency benchmarks overstate the gains to “winners” and understate the losses to “losers.” Based on this simple proposition, Markovits’ analysis then turns to a sweeping critique of traditional efficiency arguments (e.g., Kaldor-Hicks, Pareto, Scitovsky, and so on), which he concludes by stating that “[economists’ definitions of efficiency] are inconsistent with both popular understanding and professional usage, and they create concepts that are not useful. [*749]

In the second part of his book, Markovits discusses the theory of second best, arguing that “The General Theory of Second Best demonstrates that, unless one can generate an appropriate, mixed theoretical/empirical argument to the contrary, one cannot assume that policies of any of the above sorts that reduce the Pareto-imperfectness of the economy will tend on that account to increase economic efficiency” (p.77). Markovits first discusses the theory of second best and then, in Chapter 4, criticizes economists for ignoring this theory. The final sections of the book (Chapters 5-6) continue to attack economists for flawed applications of efficiency arguments to moral theory.

As someone with a deep interest in the Austrian school of economics and their alternative notions of the economy (i.e., catallaxy) and efficiency (i.e., plan coordination), I approached Markovits’ with deep sympathies and tried to give him a charitable reading. However, to a mainstream economist, let alone an Austrian economist, the arguments Markovits makes against economic efficiency appear unsatisfactory and simplistic. I suspect that scholars outside of economics, such as legal scholars and political scientists, will also be disappointed with many of Markovits’ arguments.

Take, for example, Markovits’ discussion about marginal utility theory. Without ever mentioning that the diminishing marginal utility of income hypothesis is an empirical claim, Markovits proceeds to deconstruct most arguments for economic efficiency on this questionable initial hypothesis. Many subjectivist economists (see e.g., Rothbard 2004) and philosophers have pointed out the robustness problem that arises if even a few individuals have utility functions that are not “well-behaved.” In other words, what do we do with efficiency analysis if there are even a few misers in our population? Markovits gives us no guidance and swallows the diminishing marginal utility of income hypothesis hook, line, and sinker.

At other times Markovits is quick to attack economists, rather than look deeply for good reasons why efficiency analysis has evolved in the direction that it has. Wealth maximization as our efficiency standard is just one example. Economists rely on wealth maximization, not because it is perfect, but, rather, because it is a fairly objective yardstick that gets us around thorny philosophical issues that Markovits could care less about. The subjectivity of utility, coupled with the fact that interpersonal utility comparisons need to be avoided, are issues economists take seriously. Since we cannot know how much one gains or loses from an exchange (as measured by “utils”), we must rely on some kind of alternative measure of well-being, such as cash.

Nowhere in TRUTH OR ECONOMICS does the reader find a careful explanation for why welfare economics has developed in the way that it has. In fact, Markovits tends to avoid any deep engagements with any of the major contributors to welfare economics. By failing to provide any kind of context to the field, Markovits leaves the reader thinking that economists are a bunch of fools who are deeply mistaken about efficiency and public policy. While this might be a widespread belief outside of [*750] nomics profession, Markovits’ argumentative style is not going to persuade many within the discipline. Economists have encountered these kinds of criticisms and attacks in many different areas of economics (e.g., “Economists care only about efficiency;” “Homo economicus cares only about himself.”), and our standard reply to transcendent attacks of this sort is to dismiss them with a retort that the critic just does not understand what we are saying. I am afraid that is, in all likelihood, the response that TRUTH OR ECONOMICS is also going to receive. This is unfortunate because this book could have been an extremely important and damning critique of efficiency analysis had greater care been taken to provide context to the current state of welfare economics, followed by an immanent criticism of the field.

When reading back over my margin notes in preparation for this review and thinking more about Markovits’s manuscript as a whole, I could not help but recall Frank Knight’s reaction to John Maynard Keynes’ GENERAL THEORY when he said, “What’s new isn’t true and what’s true isn’t new.” Despite the book’s grand promises and quick dismissals of economists’ standard tools of efficiency, the same can be said for Markovits’ book. Our traditional standards of efficiency, while deeply flawed, have withstood the test of time. For better or worse, they have survived criticisms far more sophisticated than those found in TRUTH OR ECONOMICS.

REFERENCES:
Keynes, John Maynard. 1936/2007. THE GENERAL THEORY OF EMPLOYMENT, INTEREST AND MONEY. London: Macmillan

Rothbard, Murray N. 2004. MAN, ECONOMY, AND STATE WITH POWER AND MARKET. Auburn, AL: Ludwig von Mises Institute.

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© Copyright 2008 by the author, Scott A. Beaulier.

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HOW JUDGES THINK

by Richard A. Posner. Cambridge: Harvard University Press, 2008. 408pp. Cloth. $29.95/£19.95/€21.00. ISBN: 9780674028203.

Reviewed by Mark Kessler, Department of History and Government, Texas Woman’s University, email: MKessler [at] twu.edu.

pp.743-747

In his latest book, Richard A. Posner – distinguished federal appellate court judge, senior lecturer at the University of Chicago law school, prolific writer and one of the founders of the law and economics approach to legal studies – takes up the question of how judges and justices adjudicate legal disputes by focusing on the processes and calculations they employ in arriving at decisions. Blending broad theoretical interests with his more than twenty years of judicial experience, Posner sets out to provide a comprehensive, systematic, and realistic description and explanation of judicial behavior and to offer suggestions about techniques and methods for judges to employ in rendering optimal legal decisions. Eight of twelve chapters incorporate material from nine previously published articles that has been revised and elaborated to varying degrees. An introduction and first chapter written especially for this book place these materials in the context of contemporary debates surrounding judicial behavior.

In Posner’s quest to develop a positive theory of judicial decision-making, he takes aim at legal formalism, or what he terms “legalism,” the notion that judges rely solely on law and legal precedent to decide cases brought before them. Although legalism accurately depicts judicial decisions in “routine cases,” Posner suggests that judges, lawyers, many law professors, and others interested in legal education and its reform are naïve in the ways in which they think about judicial behavior in many less routine cases, and in most if not all cases involving constitutional law. “I am struck,” he writes, “by how unrealistic are the conceptions of the judge held by most people including practicing lawyers and eminent law professors, who have never been judges – and even by some judges.” In discussing their behavior, judges talk and write in ways that “parrot an official line about the judicial process (how rule-bound it is) . . . though it does not describe their actual practices.” This book, writes Posner, “parts the curtain a bit” (p.2).

While the curtain has been parted, more than a bit, by socio-legal scholars, this book by a highly regarded sitting judge confirms what social scientists like Baum (2006), Epstein and Knight (1997), Gillman (1993), Gillman and Clayton (1999), Langer (2002), Maltzman, Spriggs, and Wahlbeck (2000), Murphy (1964), Segal and Spaeth (2002), and so many others have demonstrated. Politics, ideology, and strategic concerns infuse judicial decision-making. Posner reviews and analyzes some of the major socio-legal works, using them productively to show that judges are and should be perceived as political actors, often acting as legislators. In his depiction of the myths and realities of judicial behavior he [*744] comes across as an early practitioner of critical legal studies. Like the Crits, he writes that “[t]he secrecy of judicial deliberations is an example of professional mystification,” a distortion that “helps them maintain a privileged status.” To overcome “the laity’s distrust” of legal professionalism and judicial power, judges and the legal profession more generally work hard to develop “a mystique that exaggerates not only the professional’s skill but also . . . disinterest.” “Judges,” according to Posner, “have convinced many people – including themselves – that they use esoteric materials and techniques to build selflessly an edifice of doctrines unmarred by willfulness, politics, or ignorance” (p.3).

While law and legal precedent may help explain some decisions, according to Posner, “judges . . . have . . . frequent recourse to other sources of judgment, including their own political opinions or policy judgments, even their idiosyncrasies.” He emphasizes the tremendous discretion possessed by judges, discretion that is a product, again consistent with the views of the early Crits, of law’s indeterminacy in many instances. “American judges,” Posner argues, “are not . . . legalists” (p. 7).

If law and precedent do not explain many decisions, then what does? Turning to socio-legal research, Posner grounds his view of judges and judicial decision-making in the “rich literature ignored by most academic lawyers and by virtually all judges” (p.7) and explores the findings of this research through a conceptual framework that borrows heavily from labor economics and the psychology of cognition and emotion. From these perspectives, “judges are not moral or intellectual giants (alas), prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers, responding as other workers do to the conditions of the labor market in which they work.” Viewing judges as “workers,” as rational participants in a labor market, Posner focuses on the influences of a great variety of factors on their work product, including personality, role expectations, personal backgrounds and experiences, demographic attributes such as race and gender, ideology, strategic considerations, institutional factors, and concerns about such workplace related factors as pay, the risk of appeals, tenure, and promotion. By and large, Posner’s discussion of judicial behavior is intelligent, nuanced, well grounded in appropriate and diverse scholarly literatures, and somewhat novel in folding concepts and findings from socio-legal research into an analytical framework borrowing from rational choice economics.

In separate chapters Posner provides critiques, often quite trenchant, of writings by academic lawyers and of a trend he sees and decries of “judicial cosmopolitanism,” the use by judges in the United States of international legal precedents. Within these chapters he criticizes an array of judicial opinions and writings, among them important books written by United States Supreme Court Justice Stephen Breyer (2005) and Israeli judge Aharon Barak (2006). These chapters, though quite interesting and even at times entertaining, seem somewhat disconnected from the major themes developed earlier, a product, it seems, of the way in which the volume [*745] is constructed primarily of previously published writings.

Posner uses the insight that judges act politically and as legislators to make a number of provocative suggestions. First, lawyers and judges should learn in law school the realities of judicial behavior. To facilitate such learning, according to Posner, courses in law school should focus on the factors most relevant in judicial choice. Since law schools have a long history of teaching legal formalism, they may need to hire social scientists, political scientists in particular, to assist in efforts at demystification. “It is high time,” writes Posner, that “some realism about judging was injected into the teaching of law. The appointment of political scientists to law faculties – a rarity today – deserves serious consideration” (p.212).

In addition, because much of law is indeterminate, with wide judicial discretion, and many cases present questions of public policy that clearly raise issues centering on policy consequences, answers to such questions cannot be derived from law and legal precedent. Not surprisingly to those familiar with previous works by Posner, he parts company with the Crits at this point as he believes such answers may be most legitimately and objectively derived by using the theories and methods of economics. Answers to important policy questions presented in legal cases, Posner argues, “perhaps can be answered with a fair degree of objectivity by judges armed with basic economic skills and insights.” Posner goes on to write that “[o]bjectivity is one of the main aims of legalists. It can sometimes be achieved by methods other than those of legalism.” Those unconvinced about the objectivity of economic analyses based on calculations of costs and benefits (e.g., Farber and Nelson, 1993; Kennedy, 1998), or about the possibilities of objectivity more generally in a postmodern era, may view this part of Posner’s argument as replacing one source of mystification with another. It is, at the very least, interesting to read an experienced jurist and professor of law who seeks to replace the methods of legal formalism, which he views as often ineffective due to law’s indeterminacy or as cover for decisions based on one’s political views, with one form of social science that itself has been criticized as furthering a particular set of political values. While Posner usefully argues that Bayesian decision theory suggests that judges acting as legal formalists possess “preconceptions” that influence their decision-making, he does not apply that insight to economists or to judges acting as economists in assessing the costs and benefits of various policy consequences related to legal disputes. Thus, it is not clear why economic analyses of legal disputes will produce more objective, less political, less ideological decisions that are not based on, or are influenced less by, preconceptions about what constitutes reasonable or acceptable costs and desirable benefits.

Since, according to Posner, “law is shot through with politics” (p.9) and many legal cases center on disputes regarding policy consequences, judges should act as “constrained pragmatists,” assessing the impact of judicial decisions on the creation of good public policy within the constraints of norms of objectivity, an understanding of the significance of law being predictable enough to guide behavior, and with respect for the [*746] written word in statutes and contracts. Again, this argument will not surprise those familiar with Posner’s previous works, but it may disappoint those seeking more amplification and consideration of the fundamental questions that his normative view of judging and the resulting suggestions raise. How may we think about the judge as policy analyst in a democracy? Are judges actually capable of making “good” policy decisions, if we can agree on a definition of what constitutes “good” public policy? Do we actually want judges, especially those who are not elected to office, making such decisions? If so, what gives them the authority?

Despite the fact that such questions are not addressed in any detail, there is much of interest for students of law and politics in this volume. Posner ranges very broadly over many subjects, reviews a great diversity of scholarly literatures with clarity and insight, and offers a number of fascinating comments and criticisms. Judicial behavior scholars in political science – whether embracing the attitudinal, strategic, or legal model, or some combination of them – will find validation of their research findings in this book, validation supported by the author’s many years of judicial experience. Students of judicial decision-making may also find a new wrinkle or two in the skillful manner in which Posner discusses familiar concepts in what are at times unfamiliar ways.

Ultimately, however, the book is disappointing in an important sense for those sympathetic to Posner’s project. Although his review of existing studies of judicial behavior is fairly thorough, well organized, and analytical, he does not meet his own goal of developing “a cogent, unified, realistic, and appropriately eclectic account of how judges arrive at their decisions in nonroutine cases” (p.19). Yes, he provides some realism, especially for judges, lawyers and some law professors schooled on legal formalism. And, certainly, it is eclectic. But, in part because it is so eclectic his framework and account is not cogent or unified, and it is far from being parsimonious. What we learn in this volume is that there are many and varied extralegal factors identified in previous socio-legal research that a sitting judge believes conform to his experience of relevant influences on judicial choice. And, further, we can understand some of these influences a bit better, or at least from a different perspective, if we think of the judge as a worker in a workplace, apply Bayesian decision theory, and adapt some other concepts from rational choice theory, labor economics, and psychology. Posner’s answer to the question of how judges think appears to be that it is a very complex set of processes, much more complex than legalists acknowledge. Judicial decisions are shaped by a wide variety of factors, some of which may be determinative in particular cases, while others explain other choices. We do not learn much, if anything, from this volume about the conditions under which various clearly specified legal and extralegal factors influence judicial choice. Nor do we learn about the conditions under which law, politics, and policy take precedence in judicial decision-making. Perhaps this is too much to ask, and perhaps Posner himself set the bar too high. It may be enough that this book provides its readers with excellent illustrations of [*747] how one very thoughtful and frequently incisive judge thinks.

REFERENCES:
Barak, Aharon (2006). THE JUDGE IN A DEMOCRACY. Princeton, NJ: Princeton University Press.

Baum, Lawrence (2006). JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR. Princeton, NJ: Princeton University Press.

Breyer, Stephen (2005). ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION. NY: Vintage.

Epstein, Lee and Jack Knight (1997). THE CHOICES JUSTICES MAKE. Washington, D.C.: CQ Press.

Farber, Marianne A. and Julie A. Nelson (eds.) (1993). BEYOND ECONOMIC MAN: FEMINIST THEORY AND ECONOMICS. Chicago: University of Chicago Press.

Gillman, Howard (1993). THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Durham: Duke University Press.

Gillman, Howard and Cornell Clayton (eds.) (1999). THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS. Lawrence, KS: University of Kansas Press.

Kennedy, Duncan (1998). “Law-and-Economics from the Perspective of Critical Legal Studies.” In Peter Newman (ed.) THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW. NY: Macmillan Reference Limited. pp. 465-474.

Langer, Laura (2002). JUDICIAL REVIEW IN STATE SUPREME COURTS: A COMPARATIVE STUDY. Albany: State University of New York Press.

Maltzman, Forest, James. F. Spriggs, and Paul J. Wahlbeck (2000). CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. Cambridge: Cambridge University Press.

Murphy, Walter (1964). ELEMENTS OF JUDICIAL STRATEGY. Chicago: University of Chicago Press.

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

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© Copyright 2008 by the author, Mark Kessler.

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RACIAL UNION: LAW, INTIMACY, AND THE WHITE STATE IN ALABAMA, 1865-1954

By Julie Novkov. Ann Arbor: University of Michigan Press, 2008. 368pp. Cloth. $75.00. ISBN: 9780472098859. Paperback. $26.00. ISBN: 9780472068852.

Reviewed by Claire E. Rasmussen, Department of Political Science, University of Delaware. Email: cerasmus [at] udel.edu.

pp.739-742

Julie Novkov’s RACIAL UNION: LAW, INTIMACY, AND THE WHITE STATE IN ALABAMA, 1865-1954 is a compelling narrative about the regulation of interracial intimacy in the state of Alabama, primarily using appellate court rulings. The text provides a careful analysis of the case law to provide a snapshot of race relations in Alabama during the postbellum period. The book will be of much interest to scholars of the intersection of race and law in the United States and provides a window into the rapidly changing cultural constructions of race during this period of time. Novkov’s analysis will also be illuminating for scholars of gender and sexuality, as the text traces the variety of ways that race, gender, and sexuality intersected to produce differing and sometimes surprising legal outcomes. Novkov’s emphasis on the regulation of interracial intimacy highlights the legitimating influence of family law that defines the parameters of acceptable intimate relationships. Novkov uses this insight to demonstrate the ways that white supremacy was crucial in state development and to highlight the contemporary importance of this history including the residue of institutionalized racism and comparisons between bans on interracial marriage and anti-same sex marriage laws.

RACIAL UNION comes on the heels of the publication of several important texts examining the history of racialized legal structures in the United States. The text differs from others, however, in limiting the scope of the analysis to the regulation of interracial intimacy (laws not only against marriage but also regulating adultery, fornication, rape and property) and to an assessment of state rather than national developments. The limited scope enables a nuanced analysis of the development of legal practices in Alabama relative to local politics, as well as unpacking the complexities of race, class, gender, and sexuality within a particular context. Even further, the historical entrenchment of unequal race relations in Alabama calls for an understanding of the ways that white supremacy has influenced legal development. Novkov argues: “Supremacy was a political doctrine, grounded politically on racist beliefs but also reflecting a particular view of political power and the state’s obligations. Rather than being a simple reflection of racist attitudes, supremacy was emerging in these years as a system for the organization and articulation of governance” (p.72).

The analysis at the state level illuminates the ways that whiteness of citizenship was entrenched within law, culture, and politics in Alabama, using the “normal” family as the baseline for full [*740] membership in the political community. Further, while this period of time was tumultuous in terms of the meaning and institutionalization of race, changes in power relations were often motivated by tensions within the white supremacist community, rather than between white supremacists and those who opposed the structure of white power. Indeed, changes in the law were often motivated by the power struggles within the white community and, later, in power struggles playing on and against national politics. Novkov generates a narrative about race in America through reading state-level cases challenging the regulation of interracial intimacy that demonstrates just how deeply entrenched white supremacy was and, perhaps, continues to be.

The focus on the regulation of interracial intimacy is based upon an argument that white supremacy is in large part motivated by a desire to privilege the white family as the model of appropriate citizenship. Interracial intimacy was a challenge to the family and thus required not only the outright ban on interracial marriage but also the regulation of ongoing relationships (e.g., with restrictions on fornication and adultery). Miscegenation (sexual relations between the races) was threatening not only because of the potential for interracial children but also because it threatened the appropriate racial hierarchy that maintained a strict social order that privileged white citizenship. The more closely these relationships resembled the appropriate white family, the more they were regulated. As Novkov argues, “adultery and fornication were . . . violations of the legitimate family. The courts did not look at the concrete violations to family . . . but rather the violation against the concept of family” (p.103). Thus, an entire legal edifice was built to maintain the heterosexual white family as the privileged form of citizenship.

Using an exhaustive array of case materials, Novkov examines the bases for challenges to convictions to illuminate the contingent grounds on which white supremacy was based. Two of the most interesting include demonstrating the ongoing nature of the sexual relationship and demonstrating the race of the accused parties. In the latter cases, for example, the lack of ongoing relationship might be policed less stringently because the illicit sexual relationship was considered criminal but not as threatening as the attempt to establish a relationship similar to the family. As a consequence, adultery and fornication might be punished more severely than prostitution because the former relationships pose a greater threat to the traditional family. Cases often considered the social status of the woman, demonstrating the intersection of gender and race in which interracial intimacy laws were used to police the behavior of women, considering her credibility and culpability according to very specific gender and race-based rules.

Novkov also traces the very interesting shifts in the understanding of race by looking at cases in which defendants raised questions about the racial composition of the accused parties, requiring that the state define race for the purposes of policing interracial intimacy. The rise of scientific racism placed greater emphasis on “blood,” which on the one hand heightened the importance of regulating interracial [*741] intimacy to avoid the “contamination” of white blood, but, on the other, also made demonstrating race more difficult since science could not provide definitive evidence of race in cases of racial ambiguity. Consequently, the case history reveals tension between the desire to appear objective and scientific and the reliance upon questionable testimony about appearance and social networks to attempt to define one’s racial makeup.

While cultural norms of gender and social interpretations of race placed an important role in the development of law, so too did struggles within the white supremacist community. Power struggles between white elites, who often populated the legal system, and more unruly cultural forces like the KKK led to a desire to make the legal system conform to expectations of elites. Believing their racism to be motivated by rational understandings of racial order rather than by irrational animus, they sought to cleanse the legal system of overt and hate-filled expressions of racism. Later, a desire to insulate racist traditions against national (and international) attention and criticism, generated by events like the nomination of former KKK member Hugo Black to the U.S. Supreme Court, made elites even more determined to make institutionalized racism appear to be an objective and rational system. Thus the courts placed a great deal of emphasis on rules of evidence and obedience to the rule of law. Thus what appear to be victories against white supremacy – such as throwing out cases in which prosecutors made racially inflammatory statements –actually further entrench the racialized structure under cover of the rule of law.

One of the more fascinating elements examined in Chapter Six is the consequence of property laws between 1914-44. In these cases the court grapples with the problem of maintaining white male autonomy, particularly in the distribution of property, even when he left property to his non-white (and thus non-institutionalized) family. Black litigants often prevailed because of white supremacy and of a desire to protect the privilege of white males to acquire and distribute their own property (p.217).

Novkov begins her text with the narrative of the November 2000 vote in Alabama to repeal the constitutional ban on interracial marriage. While the ban appears to be the relic of an ugly but long past history of racial exclusion, 40 percent of Alabamans voted to retain the provision. The anecdote demonstrates the ways that racial hierarchy has been deeply entrenched in American law and culture, placing these issues firmly in the present. She chooses to close the text with a discussion of the ways that the comparisons between interracial marriage and same-sex marriage are both valuable and obfuscating. She correctly identifies that both bans rely upon privileging the family as a core location of citizenship but notes that we must also be attentive to the differences between white supremacy as a system that intersects with sexuality and heterosexism that has a different history and different forms of institutionalization. The analogy, while emotionally powerful, may not be entirely historically or, ultimately, politically useful.

Novkov’s brief discussion of same-sex marriage raised some questions about [*742] the connection between the normative family, citizenship, and politics that remain unanswered and could warrant further discussion. The political coalition that fell under the umbrella of white supremacy was complex and often reflected class tensions within Alabama. The enforcement of interracial intimacy laws themselves were also entangled with class relationships, as the law sought to retain proper hierarchies of race, gender, and class, meaning that even amongst whites the laws were unevenly enforced. The focus on primarily legal materials leaves out the stories of struggles amongst non-elite whites and their position relative to the legal and cultural formation of race. This issue seems relevant in light of the discussion of same-sex marriage in understanding the continued privileged status of the white heterosexual family and the realignment of party politics in the South generally and Alabama in particular. Does this history illuminate anything about the new conservative alliance that unites economic and cultural conservatives against same-sex marriage but also draws upon some of the residue of white supremacy in the South with an anti-crime platform, opposition to welfare, and the rhetoric of family values? If the preservation of the white family helped maintain the system of white privilege, who benefits from the regulation of same-sex intimacy, and does there continue to be overlap in these political coalitions, their motivations, and their justifications?

RACIAL UNION is a valuable text for scholars of race in America and builds upon and modifies the studies of American law often focusing on the national context. As Novkov argues, the dynamism of race relations requires examinations at a variety of scales in order to see the complexity of struggles within and against white supremacy. The case narratives are carefully presented and analyzed.

In addition, RACIAL UNION is also an important contribution to the historical study of sexuality and gender in the American context. The text highlights the ways that the family has been seen as a gateway to citizenship, demonstrating that contemporary debates over family values are neither new nor inconsequential. Privileging white, heterosexual families has operated in a variety of ways to exclude certain groups from full participation. Novkov’s analysis provides a valuable supplement to many of the historical studies of marriage law published in the last decade that, like the studies of race, tend to look primarily at the national level. The book presents complex ideas in a format that would also be accessible to graduate students and upper-level undergraduates.

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© Copyright 2008 by the author, Claire E. Rasmussen.

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GLOBAL OUTLAWS: CRIME, MONEY, AND POWER IN THE CONTEMPORARY WORLD

by Carolyn Nordstrom. Berkeley: University of California Press, 2007. 256pp. Cloth $60.00/£35.00. ISBN: 9780520250956. Paperback. $22.95/£13.50. ISBN: 9780520250963.

Reviewed by Mitzi Dorland, Institute for Law and Society, New York University. Email: mmd322 [at] nyu.edu.

pp.734-738

Combining the narrative styles and techniques of the travel memoir, the journalistic exposé, and the scholarly ethnography, Carolyn Nordstrom has produced in GLOBAL OUTLAWS: CRIME, MONEY, AND POWER IN THE CONTEMPORARY WORLD a uniquely inspired and insightful study of the world of extralegal commerce in our global economy, those who have a hand in it, and how. Wildly ambitious in scope and method, GLOBAL OUTLAWS follows the placeless “flow” of extralegal trade across four continents, from the local to the global, revising traditional conceptions of the economy to fit twenty-first century realities, while exploring the question of who the “criminals” really are in this globalized economy when the line between legality and illegality is often blurred and when extralegal profiteering may also bring positive development and enable survival.

Nordstrom is Professor of Anthropology at the University of Notre Dame and the author of several powerful ethnographies conducted on the front-lines of war, including, most recently, SHADOWS OF WAR: VIOLENCE, POWER, AND INTERNATIONAL PROFITEERING IN THE TWENTY-FIRST CENTURY (2004). The funding for the fieldwork behind GLOBAL OUTLAWS also has a distinguished pedigree. As Nordstrom notes in the Acknowledgments, her three years of global research and ambitious efforts to write “a new kind of ethnography that can convey the roiling complex global realities of the twenty-first century” were funded by fellowships from both the Guggenheim and the MacArthur Foundations. Coinciding with this aim of creating a “new kind of ethnography,” GLOBAL OUTLAWS is neither framed nor presented in a conventional academic form, and the style and format of the final product seem to speak to an aim beyond the traditional academy. As Nordstrom explains in the Preface, the book is “meant to be experiential as well as academic,” an “experiment with creating a genre of creative academic nonfiction.”

With these goals in mind, Nordstrom shares with us in accessible and engaging, and often poetic, prose a personal journey through Africa, Europe, Asia, and the United States, “exploring on foot the pathways of global crime” and the “invisible (illegal) realities and placeless hyper-placed global flows” of our twenty-first century global economy. These “invisible” realities of extralegal trade – the illegal, illicit, informal; undeclared, unregistered, unregulated – are elucidated and brought to life by the diverse group of players she encounters along the way, from the Angolan war [*735] orphan selling Marlboros on the streets of a small town to the chief financial officer of a well-known multinational corporation describing the “vast non-formal” that is “a fact of all business” but knowingly kept invisible. Nordstrom intersperses her description of this journey and far-reaching interviews of actors at all levels of involvement with the intellectual insight and scholarly commentary that give her story a clear academic bent, while not sending it too far into the abstract.

GLOBAL OUTLAWS is part of the UC Press California Series in Public Anthropology, which seeks to “continue[] anthropology’s commitment to being an ethnographic witness, to describing, in human terms, how life is lived beyond the borders of many readers’ experiences,” while “add[ing] a commitment, through ethnography, to reframing the terms of public debate – transforming received, accepted understandings of social issues with new insights, new framings.”

GLOBAL OUTLAWS fits well into this rubric, as Nordstrom’s aim in the book seems both descriptive and revisionist. At the first level, in the vein of Roscoe Pound’s famous distinction between “law in the books” and “law in action,” Nordstrom is pointing to a gap between the classical or “textbook” ways of thinking about economies, measuring only the formal, the legal, the regulated – the business “on the books,” if you will – and the full extent of commerce that actually flows through our globalized economy, both legal and extra-legal, formal and informal – our global economy “in action.” So, in the simplest sense, Nordstrom is advocating an alternative way of thinking about the economy, one that is much more complicated, and perhaps ambiguous, than the traditional or textbook approaches, but which is meant to represent more accurately the realities of the twenty-first century. As Nordstrom aptly posits, “The sum total of all extra-legal activities represents a significant part of the world’s economy and politics” (p.xvi). The illegal, illicit, informal “aren’t the exceptions to the rule of economy. They are the economy” (p.24).

At the next level, Nordstrom is exploring the qualities and intricacies of the world of the extra-legal – “the actual life of the extra-legal: who is doing what, how, and why” (p.xvii) – and questioning the impact of this world on the economy as a whole and the links between its networks, money, and power. But the picture is complicated even further than this, because the flow of trade cannot so easily be categorized or separated dichotomously into the “legal” and the “illegal,” the “formal” and the “informal.” Things are not so black and white. Rather, Nordstrom tells us, one flows into the other, and back again, and it’s not so clear where one ends and the next begins or where the line between the two really falls. Really, Nordstrom argues, despite our at least formal pretensions otherwise, the illegal and informal pervade all. “[E]conomics is a dance of the il/legal: a pas de deux,” she tells us. “But talk to many formal economic and political analysts, and you find that these complex extra-state realities fade into incomprehensibility” (p.206).

Along the way, Nordstrom uses her foray into the world of the extra-legal to complicate our conceptions of the [*736] “criminal” and the “illegal” act, pressing us to question who the “criminals” in our global economy really are, and why. Why are certain illegalities or informalities treated as “criminal,” while others are not? Is there really such a clear line between criminal and non-criminal acts? And how should we think about technically “criminal” activities that also produce something of value? The extra-legal profiteer who simultaneously provides access to essential goods largely unavailable through formal, legal channels? Nordstrom adds even another layer to these issues by bringing in the question of power, exploring its links to finance and the world of the extra-legal.

Despite this quite abstract, “invisible,” and “placeless” subject of study, what Nordstrom actually produces in GLOBAL OUTLAWS is very grounded. This is largely attributable, I think, to two things. First, to Nordstrom’s superb ethnographic fieldwork, covering vast ground and reaching out across the global web of the extra-legal to pull in the knowledge and experiences of a wide range of actors from all walks of life and levels of involvement. And second, to her initial grounding of the subject in the local and the national, before spiraling out to the international and then global levels. Nordstrom aptly describes this approach as an “expanding funnel.”

The expanding funnel is also the book’s main organizing principle: “each chapter is devoted to a site along a continuum from the decidedly local to the vast transnational interrelationships defining the global market” (p.xix). The book’s twenty short chapters are grouped and ordered in four larger sections that follow this funnel design, expanding from “National” to “International” to “Global,” and then concluding with “Home.” The Preface describes this model of progression and the logic behind it and sets out a blueprint for what follows in the rest of the book.

In the first section, “National,” Nordstrom explores how they “do business” in Angola, ethnographically investigating and documenting the on-the-ground reality of estimates from organizations like the United Nations that 90% of Angola’s transactions and exchanges in the late 1990s occurred outside of the formal economy. Using her fieldwork in Angola, Nordstrom describes the country’s booming informal economy, the way it really “works” on the ground, and the various actors who take advantage of or profit from it while simultaneously, in many cases, contributing to the country’s development. Her story here begins with a war orphan selling Marlboros on a dusty street, whom she connects to the shop owner who fronts him the cigarettes; she moves on up the line of economic exchange all the way to the Gov’nor and the military, elucidating the connections between financial power and political power, the issues these raise, and their practical implications. This was my favorite of the book’s four sections, but I do think it would have benefited from at least a short passage of historical or background information on Angola for readers who are not familiar with the country’s recent past. This information would better contextualize the story and set the stage for what unfolds.

Nordstrom moves from the national to the international in the second section of the book, exploring the border posts [*737] “where truckers and global supermarkets meet” and providing the first of two lessons on the dynamics and realities of money-laundering. The “camaraderie and dollars” shared by the truckers, Nordstrom finds, are the key to why unregulated flows “work” in this setting, where goods flow across national borders.

In the book’s third, and longest, section, we move to the global. Noting that more than 90% of world trade is conducted by the international shipping industry, Nordstrom explores the what, why, and how of intercontinental smuggling and the global flow of illegal goods. Visits to both Cape Town’s port and the port of Rotterdam in the Netherlands, the largest port in Europe and one of the largest in the world, provide fascinating material and insight. Some of the interviews in this section are also particularly illuminating, from a ship captain describing ship crews’ customary “skim-offs” from the fuel charges at port, to the Goffman-inspired insights of a Scotland Yard detective on how people keep a sense of integrity while engaging in illegal behavior. But overall, this section just does not cohere as well as the others, or have the same flow. Chapters on the “cultures of criminals” and the “cultures of cops” seem ill-named and out of place, and the second chapter on money laundering seems to spring up unannounced with no transitions or ties to what immediately precedes or follows it. And in the last chapter of the section, as well the first chapter of the fourth (and last) section of the book, Nordstrom turns to a new theme – the illusion of security in a post-9/11 world – that felt, for me, like it had come out of a different book, throwing off the overarching thread or logic I had tried to follow elsewhere. While there are surely ways to tie this theme in (for instance, as demonstrating another implication of our having, but not recognizing, such a vast system of extra-legal commerce), these connections are not made for us, and ending on this theme without fleshing out these connections creates a disconnect, I think, with the first half of the book and fails to satisfactorily tie together the various issues and themes raised throughout.

Overall, I did appreciate Nordstrom’s general approach to structuring the book. Focusing first on a local site and then following the links of trade from the local to the global, rather than jumping headlong into the intercontinental flow, both makes sense conceptually and gives the subject a more grounded and personal feel. Each chapter also begins with a photo – the war orphan selling cigarettes on an African street; truck drivers taking a break at a border post; Nordstrom herself on a trans-Atlantic voyage as “human cargo” – bringing a human face or local landscape to many levels of her story. However, the transitions between chapters are sometimes weak or non-existent, leaving the reader to adjust to abrupt shifts in subject matter and tone, and the many further divisions within the chapters themselves (although the headings are colorful and informative) can sometimes detract from the flow of the story and analysis. I think the book might have benefited from a slightly less staccato presentation, or at least smoother transitions between topics and levels of analysis.

Ultimately, I think Nordstrom was much more successful in raising important issues and posing important questions in [*738] a way that makes them real for the reader – contextualizing what can be, on their own, very abstract ideas with concrete examples and experience, using vivid imagery and a highly engaging narrative – than in ultimately tying together all of the issues she raises and leaving the reader with any firm conclusions or clear answers. But despite any dissatisfaction with the latter, I would still wholeheartedly recommend GLOBAL OUTLAWS for an undergraduate course exploring crime, the global economy, or globalization. I expect that Nordstrom’s eloquent prose and the imagery brought to mind by her words will hold the attention of undergraduates in a way that many traditional academic texts might not. And by illuminating the vast world of the extra-legal and the ways in which it is interwoven with the legal or formal, Nordstrom has made an important contribution toward rethinking and complicating classical views of economies and how to study them, while challenging us to rethink and complicate our reflexive image of “crime” and the “criminal.”

REFERENCES:
Nordstrom, Carolyn. 2004. SHADOWS OF WAR: VIOLENCE, POWER, AND INTERNATIONAL PROFITEERING IN THE TWENTY-FIRST CENTURY. Berkeley: University of California Press.

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© Copyright 2008 by the author, Mitzi Dorland.

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PUBLIC OPINION AND THE REHNQUIST COURT

by Thomas R. Marshall. Albany: State University of New York Press, 2008. 269pp. Hardcover. $85.00. ISBN: 9780791473474.

Reviewed by Justin Wedeking, Department of Political Science, University of Kentucky. Email: justin.wedeking [at] uky.edu.

pp.729-733

Should the US Supreme Court adopt a majoritarian stance and defer to lawmaking majorities? Or should the Court serve as an independent check against a tyrannous majority? While judicial scholars have focused much time and energy on those questions, within that debate is an empirical question: Is the Court consistent with public opinion? Resolution of that question holds implications for the larger normative debate. In PUBLIC OPINION AND THE REHNQUIST COURT, Thomas Marshall addresses two primary questions: Were Rehnquist Court decisions consistent with American public opinion? And, to the extent the decisions were consistent, what best explains why they agreed with American public opinion? To answer those questions, Marshall identifies fifteen potential theoretical explanations, gathers data and then empirically tests the theories. Those familiar with Marshall’s earlier book on this subject (Marshal 1989) will find similarities and comparisons throughout.

The book is full of interesting facts about the Court. Chapter 1 reviews how justices view public opinion and finds that the Rehnquist Court uses specific poll results in 15% of Court opinions, while 28% of opinions do not cite a specific source when referencing public opinion (Table 1.2, p.7). This is remarkable and provides fuel for normative debates (for both sides) on whether the Court should represent majoritarian positions. Marshall also examines how often the Rehnquist Court invokes four judicial theories of public opinion: (1) an informed public opinion; (2) judicial restraint; (3) contemporary public opinion; and (4) public opinion as a threat. Marshall shows how use of the theory, ‘law and policy should reflect contemporary or evolving public opinion,’ increases substantially during the Rehnquist Court compared to previous Courts. Conversely, the Rehnquist Court declined its usage of the theory, ‘public opinion alone is an adequate check on policy.’ These comparisons to earlier Courts are made throughout the book and are a great strength in demonstrating to the reader how the Rehnquist Court both changes and maintains continuity. Chapter 1 finishes with a brief introduction to 15 different linkage models tested throughout the book.

Chapter 2 discusses representation and two ways of studying it: the trend method that tracks policy and Court decisions over time; and the pairwise method that “matches” specific Court decisions to poll questions. Marshall uses the pairwise method and bases the analysis and results on 111 poll-to-decision matches during the Rehnquist era. This represents a tremendous data collection effort and should be [*730] commended. One cautionary note with using poll results, however (aside from the possibility that organizations may have different sampling and contact methods), is that respondents are sensitive to question wording. It would be beneficial for readers to have access to the actual question asked for each poll, response choices, sample size, frequencies and the margin of error. This is important given that Segal, Spaeth, and Benesh (2005, at 365) provide a clear example of how different sources and question wordings produced diametrically opposed poll results for RUST v. SULLIVAN (1991), which is, incidentally, one of the cases in the sample (Appendix 1, case # 23, p.164). Given that research shows even the smallest change in question wording can produce significant changes on topics like ideological constraint (Sullivan, Piereson, and Marcus 1978) and party identification (Burden and Klofstad 2005), displaying basic information is imperative for ensuring the facial validity of each poll.

Chapters 2 through 8 ambitiously tests 15 different linkage models, and while there is not enough space to summarize each model adequately, Marshall explains how each model generates specific predictions on how public opinion and the Court are linked. Table 1 contains a summary of the results, the left column identifies the linkage model, the second column lists the corresponding chapter, and the third column contains the key finding for each model. As Table 1 shows, six models explain the relationship between public opinion and the Court, and one receives partial support, while eight models fail to garner support. The last column of Table 1 pertains to Chapter 9 and whether Marshall included the model into his final empirical linkage model of public opinion. The purpose of this final model is not clear, other than the included factors were found to be useful in earlier analysis. I anticipated a multivariate test of the final model, but it never materialized. Instead, Marshall summarizes the relationship between the Rehnquist Court and public opinion as consisting of three ties: “the context of a controversy, the justices themselves, and the Court’s current norms” (p.162). Moreover, the criteria for inclusion into the final model are not clear. For example, four relationships were tested for the “state of public opinion model” in Table 2.4 (p.44) and only one reached statistical significance, yet the “state of public opinion model” was included in the final model. In contrast, the “realignment model” found support for one out of four statistical tests (Table 5.9, p.101), but was labeled as “mixed support” for the Rehnquist Court and excluded from the final model. A separate question also arises whether many linkage models might be useful at the individual level of analysis.

Marshall carefully walks the reader through each chapter’s analyses, and the book is meticulously footnoted, demonstrating extraordinary effort in covering the subject matter. The book’s main finding is that the Rehnquist Court continued the long tradition of earlier Courts (dating back to the 1930s) of being consistent with public opinion majorities in 64% of its decisions. Knowing this fact is helpful for scholars who want to evaluate normative claims about the Court. However, it would be beneficial to have a measure of certainty (e.g., 95% confidence interval) for the 64% estimate. The finding would be [*731] more persuasive if we were reassured that the lower bound does not cross the 50% threshold, which is crucial to sustain the claim that the Court aligns with public opinion a majority of the time.

Another quibble is the use of public opinion polls taken after the Court decision. While use of post-decision polls is ideal when examining whether the Court affects public opinion, it presents a challenge for answering the book’s main question – whether the Court is consistent with public opinion – because it suggests a different temporal ordering. Using post-decision polls to examine whether the Court is consistent with public opinion assumes that public opinion is stable across Court decisions. This concern is bolstered by Marshall’s results in Table 2.4 (p.44), where one of the few statistically significant findings indicates that Rehnquist Court decisions are consistent with public opinion 71% of the time for pre-decision polls, but only 52% with post-decision polls. Why does this gap appear, and is this research design issue worthy of further investigation? The gap is indirectly addressed in Chapter 7 with the test of the “Short-Term Manipulation Model.” In 16 cases where a decision had both pre- and post-decision polls, Marshall found no evidence the Court moved public opinion towards its decisions, but did find mild support for the public moving away from the Court’s position. This finding runs counter to the “positive response” theory investigated by others and suggests the possibility of a “negative response.” Fortunately, the shift works in favor of the book’s main finding and suggests that the 64% estimate is conservative.

Regardless, caution should be exercised when using post-decision polls to make inferences about the Court’s consistency with public opinion majorities, and it highlights a potentially new problem for researchers using polls that correspond to a single Court decision – a “pollster selection bias.” This would suggest that cases that have only a post-decision poll are fundamentally different to the public than cases with a pre-decision poll. In other words, public discussion of an issue sometimes increases after a decision (Johnson and Martin 1998) and may spark pollsters’ interest in the topic.

Marshall covers an extensive number of polls, and analyzes them across an array of explanatory variables, with the dominant mode of analysis being crosstabulations. If readers are interested in multivariate tests, few are mentioned and with little detail. Additionally, some analyses would benefit from a more transparent explanation. For example, when evaluating the “test-of-time model,” Figure 8.1 graphs the probability that a Rehnquist Court decision will survive the test of time and shows that unpopular Rehnquist Court decisions have an expected half-life of 17 years, but 24 years if popular. However, it is not clear how a decision can have an estimated half-life of 24 years if the period under analysis is only 19 years (1986-2005).

These criticisms by no means diminish Marshall’s main finding that the Court often agrees with the public a majority of the time. PUBLIC OPINION AND THE REHNQUIST COURT would be a welcome addition to any undergraduate political science course on public opinion, the judicial process, or a [*732] specialized course examining linkages between institutions and the public.

REFERENCES:
Burden, Barry C. and Casey A. Klofstad. 2005. “Affect and Cognition in Party Identification.” POLITICAL PSYCHOLOGY 26: 869-86.

Johnson, Timothy R., and Andrew D. Martin. 1998. “The Public’s Conditional Response to Supreme Court Decisions.” AMERICAN POLITICAL SCIENCE REVIEW 92: 299-309.

Marshall, Thomas R. 1989. PUBLIC OPINION AND THE SUPREME COURT. Winchester, MA: Unwin Hyman.

Segal, Jeffrey A., Harold J. Spaeth, and Sara C. Benesh. 2005. THE SUPREME COURT IN THE AMERICAN LEGAL SYSTEM. New York: Cambridge University Press.

Sullivan, John L., James E. Piereson, and George E. Marcus. 1978. “Ideological Constraint in the Mass Public: A Methodological Critique and Some New Findings.” AMERICAN JOURNAL OF POLITICAL SCIENCE 22(2) 233-249.

CASE REFERENCE:
RUST v. SULLIVAN, 500 U.S. 173 (1991). [*733]

Table 1: Summary of Results for 15 Public Opinion-Court Linkage Models

Linkage Model	Chapter	Marshall’s findings on whether there was any empirical support for a public opinion linkage with the Rehnquist Court?	Included in the final linkage model?
State of Public Opinion	2	Some support	Yes
Federal Policy	2	Less support than earlier Courts	No
State/Local Policy	2	Less support than earlier Courts	No
Business-as-Normal	3	Strong support	Yes
Interest Groups	4	Strong support for Solicitor General No support for other groups	SG - Yes Others – NO
Political Parties & Ideology	5	No evidence for political parties Moderate justices consistent support	Party- No Ideology- No
Political Socialization	5	Strong support if justice moved between regions or had D.C. job experience	Yes
Appointment Process	5	Inconsistent support	No
Judicial Roles	5	Support for Chief Justice and intellectual leader; no support for oral argument leaders	Yes
Length of Tenure	5	Longevity decreases representation	Yes
Realignment	5	Mixed evidence	No
Symbolic Representation	6	No support for race or gender; some for religion and political party	No
Short-Term Manipulation	7	No positive shift, some negative shift	No
Long-Term Manipulation	7	Decisions did not grow in popularity	No
Test-of-Time	8	Public opinion affects longevity	Yes

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©Copyright 2008 by the author, Justin Wedeking.

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THE AGE OF IMPEACHMENT: AMERICAN CONSTITUTIONAL CULTURE SINCE 1960

by David E. Kyvig. Lawrence KS: University Press of Kansas, 2008. 554pp. Cloth. $34.95. ISBN: 9780700615810.

Reviewed by Bruce E. Altschuler, Department of Political Science, SUNY Oswego. Email: altschul [at] oswego.edu.

pp.725-728

Historian David Kyvig believes that since 1960, impeachment has been used so often that this period can be termed “the age of impeachment.” In the preface to THE AGE OF IMPEACHMENT, he writes that the book’s goals are to explain this frequent use and evaluate how well this constitutional mechanism serves the country today.

Before 1960 there were only eleven Senate impeachment trials with four lower court judges convicted and removed from office and another four resigning prior to a verdict. Because the two most prominent trials resulted in the acquittals of Supreme Court Justice Samuel Chase in 1805 and President Andrew Johnson in 1868, impeachment became a largely unused weapon. However, every two-term president since 1960 “heard his impeachment seriously proposed.” Richard Nixon and Bill Clinton faced impeachment proceedings while Reagan “narrowly escaped a similar fate” (p.5). Demands for the impeachment of eight federal judges during that period made Congress more comfortable with the process, as three were removed from office and another three (Kyvig includes Justice Fortas) resigned while their impeachment was under consideration.

The bulk of the book consists of case studies of all proposed impeachments since 1960. Kyvig begins with the efforts of conservative groups such as the John Birch Society (JBS) to impeach Chief Justice Earl Warren which, despite their apparent eccentricity, he believes “turned out in retrospect to be the opening shot in a volley of impeachment initiatives over the next four decades” (p.38). This seems quite an overstatement, as no impeachment resolutions were introduced in the House, not even by the two representatives who belonged to the JBS. Nor was there a truly serious impeachment effort prior to that against President Nixon. The chapter itself is more the story of the rise and demise of the JBS, devoting considerable space to relations between the organization and such conservative luminaries as William F.Buckley and Barry Goldwater. Kyvig concludes that the impeachment campaign had a “negligible effect” on Warren (p.58) and later terms it “comparatively feeble” (p.63). Kyvig seems unable to resist a good story even if it is of limited relevance to his subject. Another of many examples is his chapter on the resignation of Spiro Agnew which includes discussions of impoundment, the Pentagon Papers and Watergate.

Although Kyvig interviewed some of the participants and made use of manuscript collections, the case studies depend largely on published sources. He relates these narratives well with a good ear for the telling anecdote and the interesting [*726] quote but very few revelations. I enjoyed his tales of how both Senator John Kennedy, in a letter to a constituent, and Representative Gerald Ford, during his efforts to impeach Justice Douglas, showed a lack of knowledge of the process. I also had not realized that the first person John Doar attempted to recruit for the House Judiciary Committee staff investigating Richard Nixon was Bill Clinton who declined because he planned to run for Congress. Instead, he recommended Hillary Rodham who was drinking coffee in his kitchen at the time.

Unfortunately, the studies of presidential impeachments provide little analysis of the crucial legal issues or major court decisions which are given brief summaries with barely a comment. When Kyvig does comment, he provides little or no evidence to support his opinions. For example, when Spiro Agnew argued that a sitting vice-president could not be indicted on a criminal charge, Kyvig suggests that the constitutional basis of Solicitor General Robert Bork’s brief claiming that, unlike a trial of a president, one of a vice-president would not hamper the functioning of the executive branch “was far from unassailable” without elaborating (p.136). The events and court results prior to the “Saturday Night Massacre” are described without a discussion of the arguments over executive privilege or an analysis of the decisions themselves. Kyvig lays out the Judiciary Committee staff’s conclusions defining impeachable offenses and the reply by Nixon’s attorney, James St. Clair, but his only analysis is a sentence about “the almost desperate tone” of St. Clair’s argument underscoring its weakness” (p.157). The intriguing suggestion made by John Dean in an interview with Kyvig that Nixon might have been acquitted in a Senate trial is merely stated without evaluation. The chapter on Clinton’s impeachment briefly mentions the possible alternative of censure, listing its use against Presidents Jackson, Tyler and Polk yet, surprisingly in a book written by a historian, does not discuss any of these precedents. Since the Senate elected in 1836 rescinded its predecessor’s censure of Jackson, such a discussion would have highlighted the defects of censure.

Kyvig also needs to make better use of polls. He compares a July 1973 Gallup Poll showing that 24% of those interviewed believed that Nixon should be impeached and removed from office with a June 2005 Zogby survey showing 42% agreeing that Bush should be impeached if he had not told the truth about why the United States invaded Iraq to show how much impeachment had been legitimized in the interim period as well as the increase in partisan division. Instead, the difference in these polls is most interesting for the changes in phrasing which show that those who take polls had learned something. The Zogby question asked whether, if certain facts were proven, Bush should be impeached and then tried. In contrast, Gallup asked, without suggesting what evidence or offenses were charged or proven, whether Nixon should be both impeached and removed from office. No mention was made of a Senate trial. The logical answer would be to take no position without waiting for a more complete presentation of the evidence.

Since much less is known about judicial than presidential impeachments, LPBR readers are likely to find these chapters [*727] more interesting. Kyvig’s argument that, because the judicial impeachments of the 1980s were driven by the need to strengthen public trust in government, the results showed that the process was more political than judicial, is well supported. In each case, after the original criminal charges proved an overreach, prosecutors continued with lesser ones. When three grand juries failed to indict Judge Harry Claiborne on bribery charges, a fourth was convened. Although it did bring charges, the trial resulted in a hung jury. Only after all charges except for two counts of income tax evasion were dropped was Claiborne convicted. Based on the testimony of witnesses whose penalties were sharply reduced, Walter Nixon was convicted of perjury despite being acquitted of the underlying offense, accepting an illegal gratuity, and not being charged for covering up the crime for which he supposedly took the gratuity. As his lawyer told the Senate, Nixon was “accused of having lied to conceal his innocence” (p.283). Despite his acquittal on all charges, Alcee Hastings was impeached by the House and convicted by the Senate. Subsequently he achieved a measure of redemption by winning a seat in the House of Representatives where he voted against the impeachment of President Clinton.

Kyvig concludes that impeachment is now far more often discussed than prior to 1960, even when there is no actual attempt to impeach. He cites conservative criticism of the court rulings in the Terry Schiavo case even though he concedes it was primarily “political posturing” with no impeachment resolutions even introduced (p.365). How much of such invocations of impeachment is mere rhetoric and how much is a serious threat is worth additional analysis.

Theodore Lowi (1997) has argued that impeachment is part of a larger process of “politics by other means” in which a lack of party competition causes candidates to worry more about legal prosecution and personal disgrace than debate over policy stands. Benjamin Ginsberg and Martin Shefter (1999) continue this by examining Republican attempts in 1996 to use the investigative powers of Congress to prevent President Clinton from pursuing his legislative agenda. At that time, they had little interest in impeaching him. Ginsberg and Shefter believe that, as the media have shown increased interest in exposing political scandal, the result has been “a major new weapon of political combat: revelation, investigation, and prosecution,” first developed as a weapon against Nixon but later adopted by the Republicans as well.

Although he dates the origins of “politics by other means” to the movement to impeach Earl Warren, Kyvig agrees with the conclusion that this changed process has failed to arrest the dramatic expansion of presidential power. However, for Lowi, Ginsberg and Shefter, impeachment is but a small part of “politics by other means.” Kyvig’s book does not really refute this. He ends with a brief evaluation of alternatives to the existing impeachment process, concluding that all have even greater flaws. [*728]

REFERENCES:
Ginsberg, Benjamin and Martin Shefter. 1999. POLITICS BY OTHER MEANS: POLITICIANS, PROSECUTORS, AND THE PRESS FROM WATERGATE TO WHITEWATER, Revised and Updated Edition. New York: W. W. Norton.

Lowi, Theodore. 1997. “President v. Congress: What the two-party duopoly has done to American separation of powers.” CASE WESTERN LAW REVIEW 47 (Summer): 1219-1237.

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© Copyright 2008 by the author, Bruce E. Altschuler.

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THE JUDICIAL RESPONSE TO POLICE KILLINGS IN LATIN AMERICA: INEQUALITY AND THE RULE OF LAW

by Daniel Brinks. New York: Cambridge University Press. 2008. 302pp. Hardback. $85.00/£50.00 ISBN: 9780521872348.

Reviewed by Enrique Desmond Arias, John Jay College of Criminal Justice and the Graduate Center, City University of New York. Email: dearias [at] jjay.cuny.edu.

pp.721-724

One of the greatest challenges facing Latin American democracies is the problem of growing crime rates and high levels of police abuse. The poor treatment of large segments of the population at the hands of police in countries as diverse as Jamaica, Haiti, the Dominican Republic, Mexico, Brazil, Colombia, Guatemala, and Honduras raises serious questions about the depth and strength of these political systems (Diamond and Morlino 2005, at xiv-xvi; Chevigny 1997). In his recent book THE JUDICIAL RESPONSE TO POLICE KILLINGS IN LATIN AMERICA: INEQUALITY AND THE RULE OF LAW, Daniel Brinks has made a major contribution to the study of this problem in the region that will help to define both methodological and substantive debates in the growing literature on this subject. Brinks’ account discusses the response of courts to police violence against civilians in Buenos Aires and Cordoba, Argentina, São Paulo and Salvador, Brazil, and in the national court system of Uruguay. Using an innovative methodology that combines analysis of a random sample of police homicide cases in each jurisdiction with qualitative interviews with relatives of victims, NGO activists, and actors in the legal system, Brinks shows with considerable nuance how different social, political, economic, and institutional conditions in each location affect overall judicial outcomes. He is able to build on these comparisons within and between countries to show that, while institutional structure makes a difference, the national and local political and social contexts have a substantial impact on the efficacy of those institutions.

At the core of Brinks’ argument is a random sample of 599 cases brought against police for murders in these five jurisdictions. In Chapters One and Two, Brinks introduces his theoretical argument and provides an initial analysis of the data. His main contention is that that higher degrees of inequality in a social system will lead to higher levels of police violence and a lower probability that aggrieved citizens will receive redress. Through a detailed examination of these cases, Brinks identifies a number of factors that affect outcomes in the cases in his sample. Among the variables he uses to explain these differences are whether the victim had a history of criminal activity, the race of the victim, the socio-economic status of the victim, whether the claimant had the assistance of a private lawyer in supporting the prosecution, and if the claimants had developed broader political support for their efforts in court. Brinks shows that particular political, social, and institutional circumstances can affect these outcomes. [*722] Thus, public protests play a substantial role in forcing courts to punish violent police in Argentina. Across the cases we see that, if relatives of the victim have access to a private lawyer, either by hiring one themselves or having one provided to them by an NGO or the courts, substantially increases the chances of a conviction.

At the center of the book sits a theoretical argument based on the complex relationship between claimants, judges, prosecutors, police investigators, and defendants in police homicide cases. The author correctly observes that the relationship between these critical actors functions differently during a normal trial when a private citizen is accused of a crime and in a case when a police officer is accused. In the former case police investigators are often closely aligned with the claimant and the judge acts as a final buffer between the claimant, the police, and the prosecutors and the citizen defendant. In the latter case, police, trying to protect one of their own, align themselves most closely with the defendant. Under these circumstances, Brinks shows, the police have an incentive to produce less accurate information for prosecutors. Prosecutors, for their part, have long-standing relations with police and, while they might be willing to rigorously prosecute a case, often are hampered by imperfect information from police and by a general predisposition towards other members of the law enforcement community. Judges act as a buffer between the other elements of the criminal justice system and the claimant although, for reasons similar to prosecutors, they also show some bias towards police and are subject to outside political pressures that may have the effect of predisposing them towards members of security forces.

After laying out this theory and analyzing the comparative data, Brinks disaggregates the cases to explain the specific factors that lead to different outcomes in each jurisdiction. Chapter Three offers an analysis of why courts do not succeed in convicting police. Brinks categorizes the types of errors a system generates as emerging from normative or informational failures. Thus, a police officer accused of committing a killing may be acquitted by a court because the members of the court or jury may not think that the killing merited a conviction, even though evidence clearly showed the police officer had committed the murder. On the other hand, the police officer may not be convicted because the police investigators or the prosecutor provided incomplete or inaccurate information to the court. Brinks then arrays his research sites to show that these jurisdictions face different degrees of success and failure along these variables. Thus Salvador and Buenos Aires face simultaneous informational and normative failures. Among the cases discussed, Salvador experiences the worst conviction rates. Buenos Aires, despite suffering from both types of failures, experiences lower levels of failure in outcomes because of effective popular political efforts to bring violent police to justice and substantial NGO activities designed to assist claimants in the prosecution of police. São Paulo and Cordoba generally face normative successes but informational failures. In these cases courts are willing to convict if provided with accurate data but tend to acquit as a result of bad information generated by the investigative process. [*723] While none of the individual jurisdictions examined encounter normative failure but informational success, Brinks shows that, in cases involving victims with a history of violence, accurate information provided by police regularly fails lead to a conviction as a result of a failure on the part of the court to enforce the law in light of the victim’s violent history. Uruguay generally encounters success along both dimensions as a result of low levels of inequality in the broader social system that create political pressures for effective prosecution of police killings.

Chapters Four through Eight are made up of detailed case studies that offer a complex discussion of the specific dynamics in each jurisdiction that lead to different outcomes. The data in these chapters are based generally on the qualitative analysis of cases and in interviews the author conducted with the claimants and actors in the criminal justice system. The chapters are divided into sections that discuss the social context, sources of information, and the operation of the courts. They provide a rich analysis of the social context and overall criminal justice system that are useful, not just for analyzing the politics of each case, but also in providing readers with a detailed account of the particular ways that the criminal justice system operates in each place. Beyond providing rich detail critical to understanding case dynamics and supporting Brinks’ theoretical claims, they also provide a solid account of each of his cases which will be very useful when the book is used for teaching, as it is one of the only a few projects providing a close and detailed analysis of the political interactions in different civil law criminal justice systems.

The concluding chapter brings the book back to its principal themes and makes two interesting theoretical arguments. The first is that institutions should be looked at through the lens of social context. A good deal of the writing on politics in Latin America today examines the role of political institutions in helping to consolidate existing democratic regimes and improving the quality of democratic governance. Brinks takes issues with this contention, making the important argument that institutions should be assessed in their social context rather than through the abstract lens that he argues characterizes much of research in this area. He compellingly argues that his data show that the political, social, and economic context in which criminal justice institutions operate plays a critical role in their functioning. This is an important and concrete call for a reorientation of the literature that will hopefully spur new research into institutional context. The second argument laid out in the conclusion is that individual reforms to the criminal justice system are unlikely to achieve substantial changes in the questions that the author is considering. He argues that real reform will not be achieved from above through the specific efforts of government officials, but rather through widespread political mobilization focused on changing how the system itself is structured. I think Brinks is also correct in this point, but it is neither clear how this type of reform movement might come about nor whether the very factors that he analyzes will themselves prevent the type of political movement that might support reform. The prospect of police violence focused on the very sectors of society most likely to demand change appears to foreclose this solution over the short [*724] term. The book, thus, leaves us substantially more enlightened but with little clarity on what might be the bases for overcoming this problem.

This difficult conclusion is not uncommon among scholars of conflict and violence in Latin America. It is worth pointing out, though, that there is some evidence today that São Paulo, Brazil and Bogotá, Colombia have each experienced substantial declines in homicide rates as a result of comprehensive reform efforts that brought together civic activists with reform-minded officials. While there is some disagreement about the depth of improvements in São Paulo, it would have been interesting if Brinks had provided an epilogue to discuss how possible improvements in security in São Paulo have affected “judicial response to police killings.” At the very least, this recent change provides the basis for an interesting future research project either by Brinks or by another scholar working on these issues.

This volume provides important insights into the question of police violence in Latin America and is likely to have a substantial impact on the field. Brinks’ contribution provides a methodological basis for future studies on these issues and offers empirical grounding for understanding this complex issue across a range of cases.

REFERENCES:
Diamond, Larry and Leonardo Molino. 2005. “Introduction.” In Larry Diamond and Leonardo Molino (eds). ASSESSING THE QUALITY OF DEMOCRACY. Baltimore: Johns Hopkins University Press.

Chevigny, Paul. 1997. THE EDGE OF THE KNIFE: POLICE VIOLENCE IN THE AMERICAS. New York: The New Press.

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© Copyright 2008 by the author, Enrique Desmond Arias.

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DISMANTLING AMERICAN COMMON LAW: LIBERTY AND JUSTICE IN OUR TRANSFORMED COURTS

by Kyle Scott. Lexington Books, 2007. 186 pp. Cloth $65.00. ISBN: 9780739123768. Paper. $24.95. ISBN: 9780739123775.

Reviewed by Kathleen S. Sullivan, Department of Political Science, Ohio University. Sullivak [at] ohio.edu.

pp.718-720

DISMANTLING AMERICAN COMMON LAW suggests that political scientists have not paid enough attention to the common law and its development in the United States. Established topics in law and courts, such as the studies of juries or judicial behavior, encounter the common law but rarely address its presence or role in the American legal system. Because of this lack of attention, Kyle Scott determines, political scientists (and legal theorists and historians) have failed to weigh the consequences of change for democratic politics, the judicial system, the structure of government and, essentially, freedom.

Scott identifies the common law system through its use of juries, precedent, procedure, uncodified law, adaptability, reflection of community sentiment, and natural right foundation. Over the course of American history, this system has been dismantled, resulting in the overjudicialization of politics and a preference for national authority over state authority. Scott identifies the factors that led to the dismantling of the common law system. Following James Stoner and Paul Carrese, he is driven by concern for changes in the common law in the American political tradition and legal system. Departing from Stoner and Carrese, he derives a causal explanation using event history analysis. He tests for causes of four state reforms that introduced codified laws or procedures where there had once been common law rules. The first reform is the adoption of the Uniform Commercial Code (UCC) at the state level, measuring both initial and total adoption. Factors that influence the initial adoption of the UCC are involvement of the American Bar Association (ABA), competitive party system, growth in state government, size of the state Gross Domestic Product, high number of bills passed, and a full-time legislature. These factors are likewise used in measuring the second reform, legislation that replaces common law crimes, adding state population and particularistic content as factors. In measuring for adoption of a state sentencing commission, factors are involvement of the ABA, percentage of urban population, state GDP, a full-time legislature, number of judges, and the method of judicial selection. Factors measured in the decision to adopt rules of civil procedure are the same as those for measuring adoption of the UCC. He finds that in adopting the UCC, the Growth variable acted contrary to expectations, with increasing growth of state government leading to slower adoption. Scott attributes this phenomenon to resistance to change by bureaucracies. Other factors acted as anticipated. In rejecting common law crimes, state GDP and Growth variables reacted contrary to expectation. Again, the higher the growth of GDP, the longer until policy adoption. The variable that [*719] emerges as a significant factor is the involvement of the ABA, with lawyers acting as policy entrepreneurs.

Scott’s findings are somewhat counterintuitive. Active involvement of lawyers results in fundamental change to the legal system. Growth of bureaucracy would seem to be inimical to the community orientation of the common law, but its dynamics have held out, at least temporarily, against reform that is, in fact, dismantling of the common law system. Historical contests likewise turn the common law on its head. As Scott recounts, a long-running feud between Joseph Story and Andrew Jackson saw the opponent to national government having distrust of judges and promoting codification. Contained in such phenomena are, perhaps the contradictions of the common law. Unfortunately, Scott does not pursue them. One chapter of the book is devoted to the event history analysis and one to the decline of juries. Other chapters address the intellectual origins of common law change in the legacy of Alexander Hamilton, Sir William Blackstone and, fundamentally, Montesquieu. These chapters stand out from the quantitative chapters and threaten the coherence of the book. Nevertheless, there is quite a bit of promise in this book. Scott asks us to reconsider familiar areas of public law and see the role of the common law in them. If the common law system has declined, then we can at least ask if the features of the common law have likewise diminished. This perspective offers a new lens to ask questions about democracy, authority, and stability.

While the book may not accomplish these goals, it indicates that there is opportunity for a more thorough incorporation of the common law into law and courts scholarship. One way is to draw more from other disciplines. While Scott finds that historians have looked to the founding for the philosophy of the framers rather than for the presence of the common law, there is plenty of scholarship in law and legal history that tracks the development of the common law, from the classics of Morton Horwitz and Lawrence Friedman to more recent contributions by A.K. Sandoval-Strausz, Bernadette Meyler, and David Strauss. Rather than jump from Montesquieu, Blackstone, and Hamilton to the Uniform Commercial Code, political scientists can draw from the methodologies of legal historians who have traced the incremental change in specific areas of law. Scott can add to this pursuit an appreciation for quantitative methods, which is well regarded in social science history. By asking theoretical questions and testing for variables drawn from that inquiry, Scott is encouraging an expansion of methods in studies of legal development.

REFERENCES:
Carrese, Paul O. 2003. THE CLOAKING OF POWER: MONTESQUIEU, BLACKSTONE, AND THE RISE OF JUDICIAL POWER. Chicago: University of Chicago Press.

Friedman, Lawrence M. 1973. A HISTORY OF AMERICAN LAW. New York: Simon & Schuster.

Horwitz, Morton J. 1977. THE TRANSFORMATION OF AMERICAN LAW, 1780-1860. Cambridge: Harvard University Press, 1977. [*720]

Meyler, Bernadette. 2006. “Towards a Common Law Originalism.” 59 STANFORD LAW REVIEW 551-600.

Strauss, David. 1996. “Common Law Constitutional Interpretation,” 63 UNIVERSITY OF CHICAGO LAW REVIEW 877-935.

Sandoval-Strausz, A.K. 2007. HOTEL: AN AMERICAN HISTORY. New Haven: Yale University Press.

Stoner, James R., Jr. 1992. COMMON LAW AND LIBERAL THEORY: COKE, HOBBES, AND THE ORIGINS OF AMERICAN CONSTITUTIONALISM. Lawrence: University of Kansas Press.

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© Copyright 2008 by the author, Kathleen S. Sullivan.

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UNDERSTANDING BIOETHICS AND THE LAW: THE PROMISES AND PERILS OF THE BRAVE NEW WORLD OF BIOTECHNOLOGY

by Barry R. Schaller. Foreword by Todd Brewster. Westport, CT: Praeger, 2008. 264pp. Cloth. $49.95/£27.95. ISBN: 9780275999186. eBook format. $54.95. ISBN: 9780275999193.

Reviewed by Lynne S. Viti, The Writing Program, Wellesley College. Email: lviti[at] wellesley.edu.

pp.713-717

Connecticut Supreme Court Justice Barry R. Schaller teaches bioethics at Trinity College and participates in several working groups at Yale’s Bioethics Center. In this book, he brings his extensive experience as an advocate, a trial judge, and an appellate judge to bear on this complex, emerging discipline. Standing at the intersection of philosophy, law, science, medicine and in some cases, theology, bioethics encompasses some of the most troubling questions of the past two decades. Here, Schaller addresses and analyzes in depth a range of bioethical issues: the use of human subjects in scientific research; wrongful birth and wrongful life claims; in vitro fertilization and use of embryos; genetic diagnostic techniques; embryonic stem cell research; organ transplants; and end-of-life issues, including withdrawal of artificial nutrition and hydration.

Schaller combines a practical sense of how the law works, with a reflective approach to all these contemporary legal and ethical issues. His basic premise, to which he returns repeatedly, is that recent developments in medicine and biomedical technology have far outpaced the written law developed by state legislatures and, on the federal level, by the US Congress. As a result, a full and open debate on bioethical issues has thus far been stifled. Disputes arise in the aforementioned areas, and courts seem compelled to use traditional means – jury trials, protracted litigation, the adversarial system – to resolve a particular dispute, and at the same time, to address the lacunae in public policy on bioethical issues. Schaller deplores this; as he sees it, courts are making policy rather than ruling narrowly on the disputes before them. Judges, often appointed, not elected, and often unschooled in bioethics, resort to the traditional tools of their profession in these cutting edge cases, with mixed results. Schaller is outspoken in his opposition to judges who intrude on the territory of legislatures, while at the same time, he finds such judges blameless, since they cannot be expected to cite or rely on statutes that do not yet exist. He is deeply concerned about the many ways in which litigation is inadequate to address fundamental ethical issues in twenty-first century America. To support his thesis and to explore the intricacies of contemporary bioethics and the law, he includes extensive analysis of the factual background, the bioethical context, litigation, and the outcome of a half dozen high profile cases from the past two decades.

In keeping with his teaching of undergraduates with no background in the law, ethics, or public policy, Schaller [*714] assumes little previous knowledge of these disciplines on the part of his readers. For this reason, the text will appeal to novices. Schaller begins with what he identifies as the touchstone documents of bioethics: the Nuremberg Code (1947), the Helsinki Declaration (1964), and the Belmont Report (1974). In subsequent chapters, Schaller reiterates the principles set forth in these, particularly on the question of informed consent in research using human subjects. It is therefore perplexing why, often, Schaller assumes a certain amount of sophistication on the part of readers. In the Introduction, “Bioethics on Trial,” he refers in passing to Tuskegee, Willowbrook, and Jewish Chronic Disease Hospital, assuming that his audience is familiar with these cases of “human experimentation abuse” (p.6), or perhaps expecting the inexperienced to consult general reference sources to gain historical context. He sprinkles his prose liberally with a confusing array of acronyms and abbreviations for federal statutes, governmental departments and institutes, for example: The Office of Human Research Protection (OHRP), the Institute of Medicine (IOM) of the National Institute of Health (NIH), the Health Resources and Services Administration (HRSA) of the Department of Health and Human Services (HHS), the Organ Procurement and Transplantation Network (PRTN), the National Organ Transplant Act (NOTA). Thus, some readers will find themselves all too often flipping back and forth within the text, or in the Index, to navigate through a chapter. A glossary would have been useful, particularly since Schaller explicitly contemplated “undergraduate, graduate and law students” in his intended audience (p.xvii).

Apart from the introduction, a second chapter on the context of bioethics, law and society, and the conclusion, five middle chapters constitute the meat of Schaller’s foray into contemporary bioethics. The first of these, on using human subjects for scientific and medical experimentation, begins with the case of Jesse Gelsinger, a young man who suffered from a rare genetic disorder. Gelsinger died in 1999 as the result of an immunological response to an injection of genetically altered virus, in a clinical trial at the University of Pennsylvania‘s Institute for Gene Therapy. Schaller provides details of the study itself, the issue of parental consent for their minor children’s participation in the study, the lawsuit filed by Jesse’s parents against the University and individual researchers, and University of Pennsylvania bioethicist Arthur Caplan, who was later dropped from the lawsuit. Schaller uses a companion focus case, that of Ellen Roche, who died in a 2001 asthma study at Johns Hopkins, to show how litigation (or in the case of Roche, a formal inquiry by the federal government into Hopkins’ research protocol) inspired two immediate results. The Maryland legislature passed a law extending federal protections to all human research subjects in Maryland, and both the University of Pennsylvania and Hopkins instituted improved self-regulatory measures.

Schaller discusses the ways in which bioethical issues fit, or fit poorly, into traditional forms of litigation that are based on theories of medical malpractice, assault and battery, breach of fiduciary duty, product liability, strict tort liability, intentional infliction of emotional distress, and even Fourteenth Amendment claims. Because the [*715] relationship between medical researcher and human subject differs considerably from that of doctor and patient, Schaller argues, courts are not well suited to be arbiters of such claims. And when courts do make policy in the act of resolving a claim by a human subject who claims an injury, this discourages legislatures from conducting the sort of open debate and exchange of ideas that makes for good public policy and progressive, effective legislation by elected representatives of the people, as opposed to judges, who are often appointed and isolated from citizens’ input.

Schaller sees litigation as a poor method of resolving bioethical controversies like these because “judicial decisions, once made, become precedent and thus have normative effect on the actions and conduct of citizens other than those before the court in the present controversy. . . Decisions will have far-reaching impact on decision making in the ethical context” (p.65). Setting norms ought to be the business of legislatures, not courts; the public interest in setting standards for human subject research – as well as for embryonic stem cell production, use and ownership of human embryos, organ transplants, and end-of-life protocols and treatment decisions – is paramount, and deserving of a robust and thorough public debate, and corresponding debate, negotiation and consensus among legislators.

Schaller’s chapter on organ transplantation issues is particularly detailed and thought-provoking. He poses and explores a range of perplexing questions: Which would-be organ recipients ought to have priority? How is the waiting list of potential recipients affected by delay, or by inadequacy in the supply of organs? How should negligence on the part of physicians and hospitals be addressed – by traditional litigation, or by new measures? What risks exist for living organ donors? As well, Schaller points to disparate ethical issues arising for different kinds of organ transplants – liver, kidney, heart, even facial transplants. And while Schaller sees litigation as a way of revealing flaws in the organ transplant system currently in place, he believes lawsuits fail to challenge the way the current system works, in setting priorities for recipients finding sources, and controlling access to organs. Instead, plaintiffs claim only that those entities involved in the collection, distribution, and transplanting of human organs have violated the basic principles of the system.

Above all, whether presenting a disquisition on organ transplantation, embryonic stem cell research, or end-of-life issues ( Chapter 7, “Boundaries at the End of Life,” is an extended analysis of the Schiavo debacle), Schaller consistently rejects the retrospective view of bioethical controversies embodied in traditional litigation: “In bioethical issues, legal standards and concepts are poor substitutes for the values and standards used in ethical decision-making by individuals and communities. The retrospective outlook of judicial decision-making has no place in the ethical decision-making process” (p.130).

Schaller proposes a radical restructuring of our medical, political and legal culture’s approach to bioethical issues. He advocates ethical decision making as a process – one that depends on reasoned [*716] and pragmatic negotiation or mediation, is based on clearly stated principles, and is always open to revision as science develops new technologies, or, in end-of-life decisions, as the patient’s medical status and prognosis shifts. He asserts that legislative decisions should consider public opinion and the most recent scientific or medical information, and promulgate broad guidelines for behavior, based on commonly accepted ethical standards. The public policy debate he sees as essential in this context would address the tension between our wish to improve our quality of life, and the desire to respect all life, particularly, as Schaller repeatedly emphasizes, in the early stages of development. Competing values and limited resources, he writes, make this debate essential.

Schaller asserts that judges and courts have a role to play in this bioethical debate, but “a methodology ought to exist that will enable participants (medical professionals and interested participants) to resolve most of their problems without turning to courts” (p.201). He believes judges must be better trained to handle cases turning on bioethics or biotechnology; they must understand the nuances and complications present in this new discipline. They must be aware of the clinical consequences of their decisions in particular cases, as well as the effects on parties to the litigation. They must exercise judicial restraint, taking care not to get ahead of “the leading edge of social change” (p.202). Judges ought to turn more to experts to guide them through the bioethical minefield. As well, Schaller makes a case for changes in the way bioethical litigation is conducted. Participation in a lawsuit involving organ transplantation, end-of-life decisions, cloning, and other issues arising from new biotechnology should be expanded beyond the traditional roles of plaintiff and defendant; the more views on controversial topics represented, Schaller suggests, the better. Judges ought to take the lead in encouraging legislatures to take up and enact better laws to address bioethical quandaries. Both trial and appellate judges can utilize judicial notice more frequently, and if local rules permit, retain jurisdiction over some cases so that parties can return when necessary – a proposal clearly designed to avoid the protracted litigation seen in SCHIAVO. Court-appointed counsel should be made more available in these civil disputes to widen access to the law for those who cannot afford attorneys’ and court fees.

Schaller closes on a somewhat pessimistic note, reminding readers of the “boundary –defining function” (p.206) of courts: “Courts tend to place themselves at the center of the controversy and the decision process” (p.206). This phenomenon stymies legislative action and results in a proliferation of new cases, each of which resolves a single dispute but does nothing to clarify the particular bioethical question at the heart of a case, or create a comprehensive policy that prevents future litigation on the same bioethical issue.

Despite clearly identified chapter topics and useful headings within chapters, the text can often be dense, circular, and replete with judicial jargon. Although this book is a useful analysis of bioethics and the law from an experienced and thoughtful jurist, Schaller’s prose style makes for slow going at times, even for readers well versed in law, politics, and [*717] bioethics. Schaller’s work would fit best in a bioethics and law course as purely supplementary reading, with judicial opinions in Schaller’s focus cases as required reading for class discussion and analysis.

CASE REFERENCES:
BUSH v. SCHIAVO, 2004 WL 980028 (2004).

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©Copyright 2008 by the author, Lynne S. Viti.

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AFTER BUSH: THE CASE FOR CONTINUITY IN AMERICAN FOREIGN POLICY

by Timothy J. Lynch and Robert S. Singh. New York, New York: Cambridge University Press, 2008. 396pp. Hardback. $28.00/£20.00. ISBN: 9780521880046. eBook format. $22.00. ISBN: 9780511402609.

Reviewed by Darren A. Wheeler, Department of Political Science and Public Administration, University of North Florida. Email: dwheeler [at] unf.edu.

pp.709-712

It seems that people are rarely ambivalent when it comes to the policies of George W. Bush. Minds have been made up and many do not want to hear opposing viewpoints. Fortunately, one need not be convinced by Timothy Lynch and Robert Singh’s arguments in order to find something of value in their book, AFTER BUSH: THE CASE FOR CONTINUITY IN AMERICAN FOREIGN POLICY. It lays out a provocative, compelling case for the authors’ positions without much of the hyperbole that is, unfortunately, often associated with much scholarship on the Bush administration and its policies in the War on Terror. It is thought-provoking and forces the reader to examine the Bush administration’s policies in the context of past US foreign policy and, perhaps more importantly, the contemporary international system. If Lynch and Singh are correct in their belief that “jihadist Islam” is “an existential threat of a generational nature” (p.259), then debating the assertions raised in this book will be obligatory for both academics and policy practitioners in the coming years.

Two key themes run throughout the book. First, the Bush Doctrine – the right to unilaterally and preemptively use force against potential threats to the United States – is not a radical departure from past American foreign policy but should be “better understood as a revision rather than a rejection of the dominant American foreign policy tradition” (p.17). As a result, the Bush Doctrine will survive far beyond George W. Bush’s departure from the Oval Office. Future administrations, argue Lynch and Singh, may adapt the Bush Doctrine, but they will not abandon it.

Second, the War on Terrorism, while admittedly unique in some important respects, is not the type of conflict that requires a completely different foreign policy blueprint for American action. Only incremental change is needed. This is because the current struggle with radical Islamic fundamentalism has much in common with the Cold War which pitted the ideologies of democracy and communism against one another. Lynch and Singh contend that many of the lessons learned in the Cold War can be successfully applied to the current struggle – the “Second Cold War on Islamist Terror.” For instance, this Second Cold War should be approached as a conflict that is generational in nature. For many, there was no foreseeable end to the Cold War in the 1950s, and many today wonder if/when the War on Terror will end. The sooner we treat this new threat as a conflict which may take decades to overcome, argue the authors, the sooner we will embrace tactics that will put the United [*710] States on the path to success.

While these are the two main arguments that the authors wish to convey, the book actually does quite a bit more than this. It reviews the case for an executive-centered view of national security and foreign policy, discusses both positive and negative critiques of the Bush administration’s War on Terror, defends its actions in Iraq, and assesses how this Second Cold War will impact US relations with numerous other countries. The sum total is a wide-ranging defense of the Bush administration’s foreign policy efforts and a discussion of the implications that such an approach will have for future US foreign policy.

In Chapter One, Lynch and Singh briefly review what they consider to be some of the fundamental components that have historically shaped US foreign policy (e.g., geography, ideology, security, trade) as they make the argument that the post-9/11 Bush administration foreign policy is largely consistent with the manner in which past presidents have conducted foreign policy. The Bush administration has been roundly criticized for “excessive” unilateralism abroad, yet the authors make the case that presidents have never hesitated to act unilaterally when they felt it was in the best interest of the United States. The idea that US foreign policy is one that blindly adheres to multilateralism or international law is one which is overblown.

Chapter Two lays out a strong argument – historical, functional, and constitutional – for the view that “presidential primacy is the central feature of the constitution of American national security” (p.82). Conceding at the outset that theirs is a minority opinion, the authors argue that the Constitution is really – quoting Corwin here – ‘an invitation to struggle for the privilege of driving foreign policy.’ This is a struggle in which the president has emerged as the dominant force. Lynch and Singh argue that the structure of the Constitution itself, the changeability of a “Living Constitution,” and the practice of the last fifty years all support the conclusion that the president has expansive national security and foreign affairs powers. Bush’s post-9/11 actions are entirely consistent, they conclude, with this approach to the Constitution and national security. If these arguments sound familiar they are. They are quite similar to John Yoo’s writings and Office of Legal Counsel Memoranda that have permeated the Bush administration since 9/11.

Chapters Three and Four review both the negative and positive “audits” of the Second Cold War on Islamist Terror. The criticisms are divided into three categories: conservative/realist, left-liberal, and ‘old European.’ There is nice coverage of the literature in this area though occasionally a little more depth would be helpful. Chapter Four contains a spirited defense of Bush administration policy initiatives in this Second Cold War, the war to “defeat terrorism of ‘global reach.’” The authors laud the administration’s combined application of “hard” and “soft” power abroad although their conclusion that civil liberties at home are “essentially unaltered” (p.117) is questionable.

In Chapter Five, Lynch and Singh tackle the criticisms that the conflict in Iraq is comparable to the conflict in Vietnam. [*711] From the outset, they reject this comparison. Iraq was a “necessary war” in part due to the “unsatisfactory” resolution of the 1991 Gulf War. They also include some brief statistical data to buttress their conclusion that, in terms of lives and money, the Iraq war has thus far been relatively cheap when compared with past military conflicts. It is in this chapter that readers can find one of the weaknesses that occasionally surfaces throughout the book. While the authors are quick to acknowledge that there are certainly major, justified, criticisms of the administration’s policy in Iraq, they are at times too quick to gloss over these criticisms in an attempt to advance their arguments in support of the Iraq war.

In Chapter Six, Lynch and Singh outline a strategy to win this Second Cold War in which we are currently engaged. The key to victory involves “successfully reforming the Middle East and assisting its peoples to reach a genuine and lasting reconciliation between the ‘non-negotiable demands of human dignity’ and the faith of Islam” (p.190). Democracy is an important component of this strategy as is bringing the seemingly insoluble Israeli-Palestinian question to some type of peaceful resolution. Their point-by-point recommendations are sure to provide any classroom with great discussion topics.

In Chapter Seven, Lynch and Singh look beyond Iraq and the Middle East to explore how US foreign policy in a Second Cold War should look with respect to a variety of different countries and organizations (e.g., Russia, China, ‘Old Europe’, NATO, the UN). Relations with all these countries and organizations should be based on a foreign policy grounded in a “democratic realism” that emphasizes international cooperation rather than international law. These individual country/organization summaries are necessarily brief and only give the reader a brief glimpse at the international dynamics that might result from the policy orientations advocated by the authors.

The authors reiterate one of the main themes of the book in Chapter Eight when they contend that “both at home and abroad the Bush approach has generated a consensus likely to endure” (p.257). After reviewing internal political divisions – liberal and conservative critiques – and alternative foreign policy visions, they conclude “A minority of Americans may reject the [Bush] Doctrine in substance, but the majority does not” (p.288). Many readers may blanch at this conclusion arguing that, while there may be a general consensus for fighting terrorists, there is not overwhelming support for the tactics (e.g., “enhanced” interrogation, warrantless wiretapping, extraordinary rendition) adopted by the Bush administration in this struggle.

This book would clearly be suitable for a graduate or advanced undergraduate class in American foreign policy and it could certainly be used in a class that covers global issues, the War on Terror, or perhaps even the presidency. As a caveat to those seeking “law” or “courts,” there is very little of either in this book. It is not a legal critique of the administration’s War on Terror policies. The book is not a difficult read but some rudimentary knowledge of international relations theory (e.g., realism, neo-liberalism) would help readers tease the [*712] most out of Lynch and Singh’s arguments (especially the material in Chapters Three and Seven). Bush foreign policy defenders are sometimes difficult to find in academia, and for this reason alone the book has value. It could easily be paired with any number of books critical of Bush administration policy to provide a nice point-counterpoint on the future direction of US foreign policy.

It is easy to identify the current Bush administration with the War on Terror. It is all we have known since 9/11. Still, the War on Terror/Second Cold War will continue even after the Bush administration has departed from office. How will American foreign policy change? This is an important question, one that should be examined apart from the personal animosity that drives so much of the discussion surrounding American foreign policy under President Bush. The ultimate goal should be the development of coherent, long-term policies that are grounded in American traditions and based on American national interests. AFTER BUSH is a useful book that can help facilitate the discussions needed to move us towards this goal.

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© Copyright 2008 by the author, Darren A. Wheeler.

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FAT RIGHTS: DILEMMAS OF DIFFERENCE AND PERSONHOOD

by Anna Kirkland. New York: NYU Press. 2008. 224pp. Cloth. $65.00. ISBN: 9780814748077. Paper $21.00. ISBN: 9780814748138.

Reviewed by Michele Morrone, Environmental Health Science, Ohio University. Email: morrone [at] ohio.edu.

pp.706-708

When you see an obese or overweight person, what thoughts come into your head? Do you think that he or she must eat too much and not exercise? Do you consider being overweight a medical condition? Do you have compassion or revulsion? As I was reading FAT RIGHTS, I surveyed numerous friends and colleagues about their perceptions of fat people, and everyone had a different opinion. Even though their opinions were different, most everyone believed that obese and overweight individuals are a group of people with differences, and these differences could affect how they are treated in society in general and in the workplace specifically.

Now consider, if you were an employer and a well-qualified, obese person wanted a promotion in your office, would you be able to overlook the person’s appearance and make the promotion? Your answer to this question is at the heart of how you view fat people specifically, and may be an indicator of how you view other groups, such as African Americans and women as well. If you answered something like, “if this person could do the job, then the weight wouldn’t matter,” you likely believe that some people can function perfectly well despite their differences. You may have answered along the lines of, “I would encourage the fat person to enroll in a program to lose some weight because fat people cost the company money in lost productivity and healthcare.” With this type of answer you are exposing a sort of bias against fat people by placing a monetary value, or actualizing, their condition.

If you did not promote your fat employee, but promoted a thinner person instead, would you be prepared to fight a discrimination lawsuit? Your reaction to this question might be even more telling of your views about people with weight problems. Maybe you think that fat people have no grounds to file a discrimination lawsuit because being fat is not a disability. You would be correct if you thought this, because according to current US law, fat people are not a protected class, and they have not been very successful in winning discrimination lawsuits. The big question that this book asks the reader to think about is what it would take for overweight people to become a protected class, one that would be viewed by the legal system similar to the way in which it views race, religion, gender, and disability.

Anna Kirkland asks many questions in her book, FAT RIGHTS, and all of the questions eventually lead one to examine his or her own personal biases about several groups of people, including those who are full-bodied. If you pick up this book with the notion that it will be an essay advocating rights for fat people, [*707] you will soon find that the author is very clear that this was not her motivation for writing the book. As she explains in the very beginning, her purpose is to examine the way that we develop our opinions and biases about different groups of people. The process that we go through is somewhat logical in that we may come to a conclusion about certain groups of people, such as heavy people, only to have this conclusion challenged and lead us to change our view. This is why she focuses on describing what she calls “logics of personhood.”

Personhood is the term that is used to explain why people are the way they are, including what makes them different and how they are similar. There is no one “personhood;” rather there are numerous ways or “logics” of thinking about how people live and work in communities. Kirkland uses antidiscrimination law to frame her explanation of these logics of personhood. She identifies six different logics that could contribute to how certain groups of people are sometimes discriminated against in society. These six logics include: 1) functional personhood; 2) embedded personhood; 3) blame-shifting; 4) actuarial personhood; 5) diverse personhood; and 6) managerial individualism.

Kirkland does not organize the book according to the logics she originally identifies; she weaves these logics throughout the five chapters that are the heart of the book. This approach to organizing the discussion is one that I found a little confusing, because once she laid out the 6 logics, I expected to settle back and read an explanation of each one as it applies to fat people. This was not the case, and it becomes more confusing when apparent inconsistencies arise in the semantics of the logics. For example, functional personhood is also discussed as functional individualism. There were times that I had to re-read passages to be sure that I was understanding the points that the author was trying to make. On the other hand, a reader who enjoys legal theory, sociology, and cultural anthropology will probably cruise through the book in one sitting.

In the introductory chapter, Kirkland lays out 5 strategies, or options, for protecting different classes of people from being discriminated against. In her view, as the legal system considers granting new groups rights in antidiscrimination law, the first step involves the logics of personhood, and the second deals with the strategy that accompanies these logics. In other words, the decision about how to treat people is based on how we view and understand them. When it comes to an overweight person in the workplace, if we believe that s/he will contribute to diversity, then we may choose a strategy of embracing the difference and take steps to ensure that s/he fits in. On the other hand, if we view obesity as serious medical issue, we may choose a strategy of exclusion based on the healthcare cost that the person could represent.

The book does not seek to answer the question: Should fat people have rights? Indeed, Kirkland notes that, if you believe the answer to this question is “yes,” then the challenge is in finding a “politically appealing argument about why fat people should be protected from the negative consequences of being fat.” What the book offers is a rather philosophical discussion about discrimination based on a variety of [*708] factors, including weight, gender, and race. The author also mentions other groups, such as smokers and those infected with HIV, as parallels to the way in which some people may think about obesity.

Throughout the book, Kirkland integrates actual cases in which fat people have been discriminated against in the workplace. She tells stories of individuals losing out on promotions, not getting hired, and even being fired because of their weight. This aspect of the book is what I found the most compelling, because the author applies the philosophical discussion to real world accounts of discrimination. While reading these accounts, the reader will come to a better understanding of his or her own prejudices regarding fat people in the workplace.

Kirkland shares an insight about her own beliefs when she discusses the Americans with Disabilities Act (ADA). She argues that the ADA requires that the disabled employee shoulder most of the responsibility for an accommodating workplace, rather than the employer. She believes it should be the other way around, and that employers should bear more responsibility than they currently do under ADA. One of the biggest problems with ADA is that it does not adequately define what it means to be “disabled.” While this ambiguity is par for the course in American law, it generally makes it difficult for anyone to win an antidiscrimination lawsuit, including a fat person. Especially since, as the author explains, most people view obesity as a behavioral problem rather than a disability.

Kirkland argues that there is a “politics of fat” that includes a debate about why people are overweight and what this means to their productivity in the workplace. This implies that there is disagreement in society about what is means to be fat, and the logics of personhood are at the heart of these disagreements. The political nature of fat means that it will be some time before there is a conclusion about whether to include weight as a characteristic that should be offered protection in antidiscrimination law. Nevertheless, the author convincingly argues that it does not really matter if laws are changed to include obese people. What matters is that society should not stigmatize entire groups of people on the basis of appearance, be it weight, color, disability, gender, or whatever.

This book should contribute to the scholarly discussion about the legal meaning of fatness. Since it provides both philosophy and actual cases, it could serve as a resource for students of both law and theory. Regardless, it does make you think about your own prejudices and perceptions of fat people and leaves you wondering whether weight will ever be a factor in antidiscrimination cases, especially since, according to public health experts, more and more Americans are entering this class every year.

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© Copyright 2008 by the author, Michele Morrone.

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LAW, JUSTICE, AND SOCIETY: A SOCIOLEGAL INTRODUCTION

by Anthony Walsh and Craig Hemmens. New York: Oxford University Press, 2007. 416pp. Paper $39.95. ISBN: 9780195334081.

Reviewed by Andreas Broscheid, Department of Political Science, James Madison University. Email: broschax [at] jmu.edu.

pp.703-705

This review is somewhat unusual for the LPBR – it is comparatively short and rather harsh. But LAW, JUSTICE, AND SOCIETY by Anthony Walsh and Craig Hemmens is somewhat unusual: a textbook from a reputable publisher that unfortunately has so many errors that instructors should take care when considering it for classroom use. That is a pity: We could use more overviews of law and justice from a multidisciplinary perspective that do not primarily target prelaw students. But the book under review here will not do, at least not in the current version: On too many important points it is either misleading or plain wrong; referencing at times falls short of expectations; and there are too many typos and other misprints. My first focus will be on explaining and exemplifying the weaknesses and errors of the book. Following this, I explain why I believe that these weaknesses and errors undermine the book’s use in the classroom. Finally, I note why I think that the book has potential and should be corrected, revised, and republished.

Some of the problematic points in the book under review are justifiable arguments that get simplified to such an extent that they become misleading. For example, discussing Aristotle’s view of law, Walsh and Hemmens state on page 12 that “Aristotle’s ideas were given impetus by British philosopher and lawyer Jeremy Bentham, who popularized the ‘greatest happiness for the greatest number’ principle in England in the early nineteenth century” – a fair point, considering the fact that happiness was a central concept for both Aristotle and the utilitarians, although it overlooks the differences between Aristotle and Bentham about the nature of happiness. However, 11 pages on, in the chapter summary, the authors compress this point into the following statement: “For Aristotle, the most important goal of the legislature was to provide for ‘the greatest happiness of the greatest number’ in society” (p.23). Suddenly, Aristotle becomes a utilitarian and the famous quote is attributed to him, a suggestion that will mislead many students.

Other examples of misleading passages deal with the role of juries, the ratification of the US Constitution, and the application of the Bill of Rights to the states. On page 97: “the common law system from the beginning has been one in which matters of law were the domain of the judge while matters of fact were the domain of juries.” According to Friedman’s HISTORY OF AMERICAN LAW (1985, at 155-156), the role of the jury as fact-finder evolved in America only in the early 19th century – not a direct contradiction to Walsh and Hemmens (it all depends on what “from the beginning” and “domain” mean), but students will take away the point that [*704] juries have always decided only the facts of a case – definitely a wrong conclusion. As to constitutional ratification, the authors state on page 61: “With the addition of these ten amendments [i.e. the Bill of Rights], the Constitution was ratified by the original thirteen states in 1791.” This gives the impression that the states put the constitutional ratification on hold until Congress had added the Bill of Rights, and I am sure that many students would adopt this erroneous conclusion. In Chapter 3, the authors seem to suggest that Frankfurter’s Fundamental Liberties approach to incorporation was part of, or an example of (that is not clear), the Total Incorporation Plus approach (p.76). This makes no sense. Is there a missing subsection heading, leading to the impression that the authors subsumed Fundamental Liberties under Total Incorporation Plus when in fact they had intended to place it in a separate subsection? The suspicion is supported by the fact that the heading formatting in Chapter 3 is inconsistent – maybe the entire formatting of the chapter is messed up, distorting what the authors intended to say. But on the other hand there is no “Fundamental Liberties” section in Table 3.1 (p.77), which summarizes the different incorporation theories.

More important are perhaps several clear-cut errors. On page 89: “All Supreme Court decisions are precedents that bind all lower federal and state courts. Only future Supreme Court decisions or a constitutional amendment can overturn a Supreme Court decision, although the Court usually respects its own precedents.” Of course, not all Supreme Court decisions bind all state courts – but that is a minor quibble compared to the implicit suggestion that all Supreme Court decisions test the constitutionality of laws. On page 346: The European Court of Human Rights “is the court of final appeals among the nations of the European Union.” Here the authors either confuse the European Court of Human Rights with the European Court of Justice, or the European Union with the Council of Europe.

I could name more examples. Part of the problem is suboptimal referencing. The statement about the European Court of Human Rights is not supported by any sources; had the authors cited an appropriate source, they would have probably caught the error. The statement about the role of judges and juries in the common law refers to an article by Barbara Shapiro (2002) on the relationship between the legal and scientific concepts of fact in the 17th century. While Shapiro does mention the roles of judges and juries in common law courts, this is only a minor issue that she addresses in a few sentences. Had the authors sought out a source that centrally deals with the history of juries, their summary probably would have been more precise. Overall, the use of references in the text is of mixed quality. Chapters that deal with the authors’ central areas of expertise are well sourced, while the chapters more removed from their research rely more on textbooks, popular sources, and occasionally on no source at all (see the European Court of Human Rights example, among others).

The most peculiar aspect of the book is the fairly large number of typos and printing errors. I already mentioned the inconsistent subsection heading formats [*705] in Chapter 3. Additionally, there is an unusually large number of errors that should have been caught by the copy editors, including typos that are normally corrected by spell-checking programs (for example, “onsent” instead of “consent”, p.64). Did Oxford University Press mistakenly print an early draft?

The question, of course, is whether these errors warrant the conclusion that the book should not be used in the classroom. After all, most textbooks contain minor errors or passages that can be misinterpreted; these may in fact provide an educational opportunity for students who are still developing their critical reading skills. Also, the occasional citation of popular sources may show students that not all material they deal with is difficult and dry to read.

To answer this question, I think that the combination of errors and weaknesses is crucial. First, a textbook has to have credibility for students to read it. An occasional error does not destroy this credibility, but a combination of errors, typos, and misprints undermines it: Students will stop reading the text. Second, a textbook should provide students with a model of how they can use and document sources and how they can summarize their own research. This involves questions about what constitutes credible sources in the social sciences, what facts have to be supported by references, and what facts can be assumed to be common knowledge. Several of the chapters in the Walsh and Hemmens book provide guidance that is not helpful to students in this regard. Third, I require my students to spell-check and proofread their writing assignments; books that we require them to read should be relatively free of spelling and grammatical errors.

As I note above, all of this is a pity, because the text is promising: The overall framework used by the authors – law as part of social control institutions and agent in the process of social change – is very useful to introduce non-prelaw students to the study of law. The book provides more detailed discussions of criminal law, juvenile justice, different legal systems, and women and the law (the latter contributed by Mary K. Stohr) than many judicial process textbooks. Finally, the writing is generally brisk and accessible, and the price of the book is lower than that of comparable texts. As a result, I can only encourage the authors and the publisher to revise the text and publish a cleaned-up version.

REFERENCES:
Friedman, Lawrence M. 1985. A HISTORY OF AMERICAN LAW. 2nd ed. New York: Simon and Schuster.

Shapiro, Barbara J. 2002. Testimony in Seventeenth-Century English Natural Philosophy: Legal Origins and Early Development. 33 STUDIES IN HISTORY AND PHILOSOPHY OF SCIENCE 243-263.

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© Copyright 2008 by the author, Andreas Broscheid.

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FREEDOM FROM POVERTY AS A HUMAN RIGHT: WHO OWES WHAT TO THE VERY POOR?

by Thomas Pogge (ed). New York: Oxford University Press, 2007. 425pp. Hardback. $125.00. ISBN: 9780199226313. Paper. $27.95/£14.99. ISBN: 9780199226184.

Reviewed by Brian M. Harward, Department of Political Science, Southern Illinois University Edwardsville. Email: bharwar [at] siue.edu.

pp.698-702

Thomas Pogge and his colleagues at the UNESCO project on severe global poverty have provided a very readable, insightful, well-reasoned, timely, and exceedingly important collection of essays on the human right to be free from poverty. When more than one billion persons worldwide live below the $1 per day international poverty line, unable to access adequate food and other essential items, we are faced with a disastrous deprivation of basic human need and are forced to confront our own complicity in sustaining such an arrangement. The best essays in this series do this quite well, not by journalistic finger-wagging, but by compelling argumentation. This book would be a wonderful centerpiece to an advanced undergraduate or graduate seminar in political theory, especially if distributive justice and its critiques figure prominently, or an international institutions course. It may also work nicely as an adjunct to a philosophy of law or law and society course. However, the book is much less satisfying in this particular area as the explicit discussion of legal context is fairly limited.

The essays draw from philosophy, economics, law and political science to address what a human right to be free from poverty demands. The moral, human right to be free from severe poverty is not disputed among these authors. A number of compelling themes do emerge, however, as points of departure among the contributors. These include: the origin and nature of the right itself, the consequent duties and obligations such a right imposes, the scope and limits of a human right, mechanisms for achieving the right, the moral and legal effects of the non-attainment of the right.

While most of the essays in the collection can stand on their own as important contributions, reading them together is gratifying, as the authors provide welcome extensions and critiques of others’ works within the volume. In particular, the Pogge and Campbell essays become useful touchstones for many of the subsequent contributors.

In the opening essay, Thomas Pogge considers when and if severe poverty violates human rights. He argues that human rights are understood to grant individuals a moral claim to protective action from not just their own governments, but also from foreign governments and citizens (p.23). His analysis here focuses on negative duties – that actors must not actively cause another’s harm. That is, the moral right of a citizen imposes a negative duty upon those whose actions affect that [*699] citizen. Specifically, citizens in poverty stricken areas have moral claims against those who participate in arranging and imposing social and economic institutions that have pernicious effects on the welfare of the poor. This is the case because, as Pogge notes, “rules governing economic transactions are the most important casual determinant of the incidence and depth of poverty in the modern world” (p.26). As a consequence, an institutional arrangement that “foreseeably produces a reasonably avoidable excess of severe poverty . . . manifests a human rights violation on the part of those who participate in imposing the order” (p.30). The wealthy, then, have imposed an order that perpetuates and indeed may deepen world poverty. This constitutes a human rights violation insofar as the effects of the global order have been foreseeable. The wealthy then have the negative obligation to eliminate severe poverty.

Pogge calls for global institutional reform to address the discrete effects of any individual, state or corporate actors. The modifications he seeks are designed to bring about a more “evenhanded institutional design” (p.41) by limiting the asymmetries in privileges between rich countries and poor countries. It seems the principal mechanism for doing so would be the Global Resources Dividend (GRD) which he does not discuss in this essay, but develops elsewhere (e.g. Pogge 2001; 2002).

Alternatively, Tom Campbell argues that emphasizing violations of negative duties, for example, has the “unfortunate implication that the only poverty that we should privilege is that which results from official action or failures of unjust social and economic systems, rather than, for instance, the product of natural disasters or in themselves innocent individual acts whose unforeseeable cumulative effects result in economic harms” (p.62). His thesis is that emphasizing humanitarian bases for eradicating poverty has important advantages over approaches from justice. He notes that “if poverty is a violation of human rights it is primarily because of the stringency of the moral demands arising from the existence of suffering (humanitarianism), irrespective of the special characteristics or merits of those involved (justice)” [parentheses added (p. 66)]. The universal obligation to relieve extreme global poverty, then, is grounded in a humanitarian impulse and requirement backed by coercive international tax and transfer mechanisms like his Global Humanitarian Levy (GHL). While the coercive nature of such a system may seem to run counter to his thesis, Campbell insists that once we have made the moral progress necessary to recognize the universal humanitarian obligation, failure to live up to it may raise issues of justice such as those discussed by Pogge in the previous essay.

John Tasioulas develops a different thesis in the third chapter. He argues, contra Pogge, that a human rights claim in any particular case need not be linked to a particular institutional arrangement that failed to protect the claimant. Rather, a right of freedom from poverty is founded upon “the rights-generating notion that some universal human interests of individuals have the right kind of significance to justify the imposition of duties” (p.101). [*700]

In the next essay, Alvaro de Vita builds upon Pogge’s analysis and offers a counterpoint to Campbell by exploring the global institutional arrangements and their effect on severe poverty. Specifically, de Vita distinguishes between humanitarian aid and justice. In his view, a moral basis for the responsibility to provide humanitarian aid is only sufficient to cover some of what is morally significant in terms of international inequality. By his view, justice demands a consideration of how to rectify the dramatic inequalities generated by global institutional arrangements (p.107). The unfair distributive effects of international arrangements, he argues, make a focus on distributive justice (as opposed to simply humanitarian aid) compelling.

In a particularly insightful essay, Marc Fleurbaey proposes that any inequality in wealth carries with it oppressive qualities. When the parties to trade include one who is severely poor, the effect is all the more pernicious. His thesis is that inequality (especially severe poverty) forces participants to accept options (work, for example) they would otherwise refuse. That is, “a society in which the poor are legally constrained to ‘accept’ degrading living and working conditions thus allows an oppression to be brought to bear on them which is close enough to physical violence for one to regard it as a violation of their personal integrity” (p.144). Such an analysis is interestingly connected to familiar objections to redistributive programs (e.g. Nozick 1974), as this perspective involves the consideration of the fairness in acquisition and transfer of holdings among unequal participants to trade.

Regina Kreide addresses the question of whether severe poverty is a violation of human rights by distinguishing between two interests human beings have – a strong interest in achieving basic capacities (including health, shelter, food, and the like) and a weak interest in achieving advanced capacities (pursuing one’s view of the good life). The strong moral claim on the fulfillment of basic capacities, she argues, is “not up for political discussion” (p.166) and includes a universal moral claim to comprehensive health care. The weaker moral claim on the fulfillment of advanced capacities is contingent on the political will and economic capabilities of local and national institutions. These two claims constitute a right to social autonomy which carries with it obligations that extend to the relevant duty-bearers, namely the nation state (and other nation states) as well as transnational corporations.

The Elizabeth Ashford essay accepts that there are negative duties that attend agents in relationship to the severely poor. But, she argues, there are also positive duties deriving from both utilitarian and Kantian deontological bases. The implementation of both negative and positive duties is a responsibility to be borne by global institutions and the citizens who participate in those institutions. That is, the severe poverty that is maintained by unjust institutional arrangements presents a claim on the duty-bearer to accept their responsibility to take action to reform the institutions.

Alan Gerwith argues for an agency-empowering approach to alleviating severe poverty. Rather than pursuing remedies that force the poor to rely upon [*701] the effectiveness of their own governments, or the efficacy of international aid, an agency-empowering approach –buttressed by democratic institutions – aims to enable individuals in the poor countries to develop “their own human capital, their own abilities of productive agency so that they can provide for their own needs” (p.233).

Marcelo Alegre suggests that severe poverty violates a basic human right, which draws from the principle of humanity and also from justice. The means to secure freedom from severe poverty are best achieved through the constitutionalization of the right in democratic systems, as an independent judiciary may be uniquely situated to address violations of the right.

Leif Wernar proposes that the responsibility for eradicating severe poverty rests with the agent who can most easily avert the threat at the least cost. The chain of responsibility is traced from the individual in severe poverty, to her co-nationals, to the international community, and ultimately to individuals in the developed world. That is, if all prior responsibility holders are unwilling or unable to be responsible for the basic needs of those in severe poverty, ultimate responsibility may rest with individuals vary far removed from the suffering.

Simon Caney argues that Pogge’s institutional approach and the attending duties of justice are necessary, but not sufficient to eradicate severe poverty. A scheme of negative as well as positive duties of justice, he argues, is needed if severe poverty is to be eliminated.

Stephane Chauvier establishes three empirical conditions for poverty to be considered a violation of a right: it must be possible to remedy poverty; the poverty must be involuntary; and it ought to be regarded as a result of negative externalities (since intentional acts of poverty inducement are rare and the obligations of its perpetrators are immediately apparent). The concept of the social contract obligates the state to live up to its promise of securing subsistence for its citizens. In addition, conceiving of freedom from poverty as a human (natural) rights violation implicates each property owner worldwide to compensate those who are vitally insecure through a system of taxes, transfers and market adjustments.

Arjun Sengupta views freedom from poverty as an important element of a composite right to development. The right to development involves a process by which all human rights and fundamental freedoms are secured (p.338). The principal duty-bearer, in this context, is the state, though international organizations and other states have an obligation to provide assistance as individual states develop appropriate methods to address poverty.

Osvaldo Guariglia, like Sengupta, sees the state as the primary duty-bearer in the eradication of poverty. His essay explores the notion of positive and negative rights and duties with special attention to libertarian objections to the notion of positive obligations.

The final essay, by Roberto Gargarella, is quite distinct from the preceding contributions. Gargarella’s principal interest is in the limits to citizens’ obligation to obey the law when the state [*702] has legally alienated a class of citizens. Drawing from Locke and Jefferson, he argues that when the primary duty-bearer (the state) affords disadvantaged groups no protection from severe deprivation, the law is “causally and morally implicated in their suffering” (p.369). As a consequence, those groups have no general duty to obey the law.

Few topics are as important, and few texts are as nourishing in addressing the issues involved. If one is inclined to incorporate this text into a course, selection of several thematically linked essays would work nicely – whether the topic is negative or positive rights and duties; justice versus humanitarian aid; legal as opposed to moral rights and duties; distributive justice and its libertarian critique; or liberalism and communitarianism. The compiled essays are clear, accessible, and forward-thinking, with plenty to offer the seminarians in terms of contemporary context. As a whole, the chapters challenge the reader’s consumptive way of living – and in particular his or her relationship with local, national and international institutions, as well as his or her understanding of the complexities of rights and obligations, justice and humanitarianism. Most significantly, the book will demand a reconsideration of the relationship between transnational corporations, international institutions, governments, and individuals of the developed world and those suffering severe deprivation worldwide.

REFERENCES:
Nozick, Robert. 1974. ANARCHY, STATE, AND UTOPIA. New York: Basic Books.

Pogge, Thomas. 2001. “Eradicating Systemic Poverty: Brief for a Global Resources Dividend.” JOURNAL OF HUMAN DEVELOPMENT, 2(1): 59-77.

Pogge, Thomas. 2002. WORLD POVERTY AND HUMAN RIGHTS: COSMOPOLITAN RESPONSIBILITIES AND REFORMS. Cambridge: Polity Press.

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© Copyright 2008 by the author, Brian M. Harward.

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LINCOLN AND THE COURT

by Brian McGinty. Cambridge, MA: Harvard University Press, 2008. 384pp. Cloth $27.95/£18.95/€20.00. ISBN: 9780674026551.

Reviewed by Daniel Farber, School of Law, University of California, Berkeley. Email: dfarber [at] law.berkeley.edu.

pp.696-697

The Civil War raised deep constitutional questions about the meaning of the Union, the extent of Presidential power, and the extent of civil liberties in wartime. Much has been written about these questions in the context of Civil War and Reconstruction history. LINCOLN AND THE COURT, by Brian McGinty, provides a lively popular introduction to these Civil War issues and their treatment by the Supreme Court. McGinty provides colorful vignettes of the leading figures, including some Supreme Court Justices who are not exactly household names. He also explains the constitutional issues and judicial rulings in very clear lay terms.

Political scientists, historians, and legal scholars will find little new here. The non-judicial side of the story is standard fare. The details about the Court’s rulings and its Justices are less familiar, but developed in painstaking detail in the Holmes Devise Supreme Court history volumes covering this era. In short, the book is not a contribution to scholarship, nor does it claim to be.

Within its own terms, however, the book is successful. It weaves together the legal developments with the breakdown of the Union, the Civil War, and the beginnings of Reconstruction. The results are sometimes genuinely enlightening. For example, McGinty effectively justaposes KENTUCKY v. DENNISON, which held that state governors could not be coerced into performing their duty to extradite prisoners, with contemporary events on the eve of Fort Sumter. The implication is a contrary ruling might have had potentially explosive implications for the Union’s then-debated power to “coerce” seceding states. It is also an interesting commentary on how far Taney was out of touch with the movement of history that the voters of his own state adopted a constitution abolishing slavery the day after he died.

LINCOLN AND THE COURT is also full of intriguing historical detail. We learn that Lincoln had first-hand experience with the Supreme Court’s occasional inconstancy in following precedent long before he was elected. We are also informed about the somewhat surprising number of Justices who weighed in at the three hundred pound level; Chief Justice Taft would have felt completely at home with this group. And we get the benefit of Senator Wade’s dour assessment of Taney’s longevity after Lincoln took office: “I prayed with earnestness for the life of Taney to be prolonged through Buchanan’s Administration, and by God Im [sic] a little afraid I have overdone the matter.”

While it can be considered a successful exercise in popular history, the book is disappointing in two respects. First, the [*697] discussion of Lincoln’s commitment to legality and constitutional regularity is superficial. The familiar facts are paraded along with the usual quotations, but we do not get much sense of penetrating more deeply into Lincoln’s character. Second, a brief discussion of the modern Supreme Court’s recent rulings on terrorism cases is tacked on at the end of the book. Perhaps this was a marketing inspiration by the publisher. In any event, it seems to add little to the book, even for those of us who agree with the author’s perspective.

The bottom line is this: If you research these topics, you do not need to read the book. If you are looking for a book for undergraduates or to recommend to a lawyer friend with an interest in the period, LINCOLN AND THE COURT could be an excellent choice.

CASE REFERENCE:
KENTUCKY v. DENNISON, 65 U. S. 66 (1860).

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© Copyright 2008 by the author, Daniel Farber.

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THE IMPORTANCE OF BEING HONEST: HOW LYING, SECRECY, AND HYPOCRISY COLLIDE WITH THE TRUST IN LAW

by Steven Lubet. New York: New York University Press, 2008. 272pp. Cloth. $27.95. ISBN: 9780814752210.

Reviewed by Mark C. Miller, Department of Government, Clark University. Email: MMiller [at] clarku.edu.

pp.693-695

Steven Lubet, who holds the Williams Memorial Professorship of Law at Northwestern University, is a prolific academic author and a columnist for the AMERICAN LAWYER magazine. In this book, Lubet provides 43 short vignettes that deal with the issue of honesty in the practice of law. Most of the vignettes were adapted from newspaper and magazine columns written or co-written by the author. Taken as a whole, the short stories or case studies provide an interesting look at various questions of ethics and the law. I could see this book being used in the classroom to help students grapple with issues surrounding honesty and the law.

Lubet expresses the underlying theme of all of the short stories (generally each story is only a few pages in length) in the following sentences from the introduction, “Honesty is elusive for all of the players in the legal system – clients, lawyers, judges, teachers – even with the best intentions, because it is inherently difficult to recognize, communicate, and appreciate the truth. . . . Without basic honesty, our entire judicial system – with its structure of rights, autonomy, due process, and the rule of law – would collapse because we could not rely on the good faith of the human beings who administer it” (p.2).

The vignettes are divided into five different categories. The first category examines issues of when clients are not totally honest with their lawyers. One story explores the question of whether President Bill Clinton was honest with his lawyers before and after his now infamous deposition in the Paula Jones case. A second vignette ponders whether the Catholic Archdiocese of Boston went too far in vigorously defending lawsuits brought by those who claimed sexual abuse by priests. The chapter is entitled, “My Lawyer Made Me Do It,” and it explores whether the church was hiding behind the alleged advice of its legal counsel when it initially used extremely aggressive tactics to defend against the lawsuits brought by those claiming to have been sexually abused by the clergy. A third story explores the case of a Wal-Mart photo lab employee who was fired for going to the police with photographs that showed potential child abuse without first clearing her actions with her superiors. Another story talks about the incident where former Congresswoman Cynthia McKinney (D-GA) claimed racial discrimination when a congressional police officer stopped her from entering the Capitol because she was not wearing the appropriate lapel pin that would have identified her as a Member of Congress. Other stories deal with issues of tort reform, the conviction [*694] of Martha Stewart, or Oscar Wilde’s various civil and criminal trials.

The second section deals with issues that arise when lawyers are not totally honest with their clients or with the courts. One story discusses white lies that lawyers often tell judges when dealing with scheduling of trials, and the like. Sometimes these relatively innocent falsehoods can have serious future ramifications or can be used to prove a pattern of dishonesty when a lawyer eventually gets into trouble. A second story talks about a district attorney who pretended to be a defense attorney as part of a police interrogation of a suspected serial killer. Should he have been sanctioned for his deceit? A third story talks about a radical lawyer who may have helped her client continue committing acts of terrorism by facilitating communication between the jailed client and others outside the prison despite court orders not to do so. Another chapter in this section reexamines the lessons from the so-called Scopes monkey trial. Other stories deal with issues of lawyer malpractice, manipulation of juries, and the Gunfight at the O.K. Corral. Another vignette examines some of the legal issues surrounding the actions of Virginia Tech University during the recent shootings on that campus.

The third section deals with honesty among judges. Some of the chapters look at what federal judges say and more importantly do not say in their confirmation hearings. One story looks at whether Justice Scalia should have recused himself in any cases dealing with his good friend and duck hunting buddy, Vice President Cheney. One chapter looks at the question of whether federal judges are really as poorly paid as they claim to be. Another chapter looks at the public comments of the wife of Justice Thomas and asks whether judicial ethics rules should apply to judicial spouses. Other chapters deal with whether judges try to hide their prejudices in their courtrooms, for instance prejudices against Muslims. Other stories question whether specific judges are too hard on the lawyers who appear before them.

The fourth section deals with cases of honesty or dishonesty among legal academics. One chapter deals with issues of potential cheating among international students on a law school exam. Were the cultural expectations of the professor clearly communicated to the international students? Another chapter explores potential problems with new US citizenship tests. One chapter deals with the question of whether student applications for Fulbright awards should have been disqualified because they were postmarked too late by the faculty sponsor at their university. Some of these chapters question the honesty of various academic approaches taken by faculty who ignore the practical effects of their theoretical arguments.

Perhaps the most thought-provoking section compares the ethics of lawyers with those of medical doctors. One chapter looks at non-competition clauses in the employment contracts of doctors. Another examines medical malpractice lawsuits and the legislative attempts to limit damage awards in these cases. A third looks at the question of whether patients should be consulted before doctors prescribe antibiotics and other drugs that may have no effect on the patient’s illness. How much information [*695] do patients deserve from their doctors compared to how much information do they deserve from their lawyers? These chapters raise some very exciting points of comparison between the two professions.

Thus this book raises many interesting questions that might work well in certain classes on legal ethics. Many will want to read this book as a useful diversion from their other academic work. The author brings his own wit and charm to the story telling, but sometimes I wished that I heard less of the author’s voice on these issues because that would allow more space for students to make up their own minds on these controversial questions. My only concern is at times that the author presents his own opinions so forcefully that students might be unwilling to challenge his assertions. I think all of the stories in this book raise interesting and difficult questions about the role of honesty among actors in the legal system broadly construed. Some of the vignettes, of course, are more thought-provoking than others. But the book will ignite many conversations about the role of honesty in our legal and academic processes.

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© Copyright 2008 by the author, Mark C. Miller.

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ENERGY SECURITY: THE EXTERNAL LEGAL RELATIONS OF THE EUROPEAN UNION WITH MAJOR OIL AND GAS SUPPLYING COUNTRIES

by Sanam S. Haghighi. Oxford, UK, and Portland, Oregon: Hart Publishing, 2007. 510pp. Hardback. £65.00/ $136.00. ISBN: 9781841137285.

Reviewed by Nicholas P. Guehlstorf, Department of Political Science and Environmental Sciences Program, Southern Illinois University Edwardsville. Email: nguehls [at] siue.edu.

pp.690-692

ENERGY SECURITY: THE EXTERNAL LEGAL RELATIONS OF THE EUROPEAN UNION WITH MAJOR OIL AND GAS SUPPLYING COUNTRIES responds to the claim that intensified multilateral legal implementation and enforcement is necessary to establish the guaranteed sustainable use of oil and gas in Europe. While “Energy Policy” about natural resource markets or greenhouse gas emissions is a fashionable topic in the world today, this book offers a much broader and more noteworthy contribution to international politics scholars, legal researchers, global trade practitioners, and environmental scientists. This is because Sanam S. Haghighi’s meticulous analysis describes the legitimization of European Union (EU) energy policy that goes far beyond a historical level of regional influence justified in securing and controlling energy supplies for the economic alliance of all European Member States. In fact, one of the greatest offerings made by this book lies in the chapters which calculate the external forces, programs, institutions, and markets necessary for building the EU’s internal framework laws for over twenty nation-states that have a finite supply and increasing demand of oil and gas. An example of the book’s ability to address the complexity of the European internal energy market is seen in Chapter Four, when Haghighi rudimentarily explains the confusing directives which do not mandate that countries stock or reserve natural gas just in case of an unexpected shortage, unlike when it comes to crude oil and petroleum. This multifaceted legal idea based upon the energy sources in question, in addition to the external importing and exporting countries involved, is an important element for comprehending the pluralistic economic and political competitions involved in guaranteeing availability of varied energy sources for the EU.

Research is very well collected and documented by Haghighi, but occasionally the text seems to be read better as a series of individual articles or legal essays on the foreign relations involved with a modern European policy, rather than a text of interrelated Chapters outlining EU law on a single natural resource topic. Haghighi does a more than acceptable job of discussing general energy politics in Europe and offering some brilliant cause and effect relationships about EU current and evolving directives, but occasionally the individual chapter ideas are not synthesized into the central persuasive thesis of the book. This observation is not a criticism of the author or limitation [*691] of the book, but rather the result of the ambitiousness of the project. The lack of fluidity is best illustrated in Haghighi’s inclination to list items, facts, or statistics as layers of multi-level governance rather than evidence of a social phenomenon relevant to energy as a unique international law and/or economic situation. Although she clearly identifies the book’s thesis in the introduction and conclusion, some of the Chapters drift to less than relevant details – like dollar amounts of foreign investments, or how long an administrative regulation about infrastructure has been ignored – without any advancement of the central argument. The book demonstrates exhaustive primary research and shows mastery of the secondary material necessary to become a valid resource in the field; however, the text does not always relate the research to general environmental concerns, economic problems, and political complexities involved within the distinctive policy she is meticulously examining. It is for this reason, that I think the book would be best understood and most effectively utilized as a resource of collected chapters in EU policy rather than a stand alone text of European energy politics and law. Although the book’s significant message is clear – a suitable EU security framework should be a balanced triangular legal approach with adequate attention toward commercial, political, and developmental concerns – the chapters alone merit the attention of serious intellectuals and legitimate administrators who desire a competent assessment of energy as a strategic sector of European policy.

A chapter that is an accurate illustration of Haghighi’s strong analytical skills is titled, “EU Relations with Russia, the Mediterranean and the Persian Gulf Countries: The Missing Elements.” The political agreements and development cooperations already made and subtly suggested in this chapter nicely explain the confusing matrix of the EU’s economic relationships with energy-producing and energy transit countries. While outlining the association agreements in the exiting legal framework, Haghighi quietly discusses the potential shortcomings, probable scenarios of concern, and legal problems to be addressed for stakeholders involved with multi-national energy companies, ruling regimes of neighboring countries, and bureaucratic officials in Brussels. Although she maintains that there are some European partnerships or associations in the Mediterranean, Persian Gulf, and Russia, Haghighi unequivocally argues these current agreements are both inadequate and erroneous attempts to secure EU demands for oil and gas. Instead she argues for numerous bilateral and multilateral agreements to be established between regional consuming and producing nation states. It is this type of research that makes her collection of chapters a valuable text on the shelf of a University professor or researcher, as well as a reference for EU officials or energy industry stakeholders.

The author implicitly argues that the law, political economy, and regional strategy of the EU energy security initiatives and directives should dismiss the moniker of “low politics,” which is usually assigned foreign economic alliances. Instead, she forces the reader to begin viewing energy security in the same echelon or paradigm as the “high politics” of military [*692] policy. Commenting on the legal rights and foreign policy of European energy stakeholders in that way is not surprising for this American political scientist, as it appears similar to recent attempts of the United States to influence China by sublimating or assimilating their Communist culture into an emerging capitalist power in the global economy. Although this example is not addressed by the author, she more precisely discusses various Ukraine, Algerian, Turkey, and Russian cases with the EU over different years and topics. The book contains many examples of informal legal arrangements and external policy alliances which are illuminating and disturbing to comparative political and environmental scientists. Unfortunately the terrorist attacks in Spain, the French environmental protests about genetically modified organisms, and the financial predicaments in Great Britain have diverted the spotlight of European public criticism away from the significance of the EU energy security campaign. Amidst the wealth of information and political focus on Global Warming and alternative fuels, this considerable book thankfully compels academics around the globe to reassess previous opinions on the oil and gas demand and supply issues, and the elite politicians and businesses involved in making, framing, and securing these deals.

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© Copyright 2008 by the author, Nicholas P. Guehlstorf.

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REGULATING LABOR IN THE WAKE OF GLOBALISATION: NEW CHALLENGES, NEW INSTITUTIONS

by Brian Bercusson and Cynthia Estlund (eds). Oxford: Hart Publishing, 2008. 290pp. Hardcover. £50.00/$105.00 ISBN: 9781841137667.

Reviewed by Lawrence E. Rothstein, Department of Political Science & Charles T. Schmidt, Jr. Labor Research Center, University of Rhode Island. E-mail: LER [at] URI.EDU.

pp.684-689

This is an edited volume, the second from the Columbia University-University of London Law Schools’ comparative law series. It brings together essays from a number of distinguished authors in labor and employment law. As the introductory chapter by the editors, Brian Bercusson and Cynthia Estlund, notes, the essays all analyze trends in the responses to the decline in the effectiveness of collective bargaining and traditional labor law to protect labor standards. The decline is attributed to the “usual suspects”: globalization, deregulation and outsourcing. The responses, according to the contributors, reflect efforts to move the locus of regulation to smaller of governance, such as firms and local communities and upward to international organizations, including the ILO, EU institutions, bilateral and multilateral treaties and NGOs. Along with the focus on new levels of labor regulation come new forms of regulation, such as “soft law,” self-regulation, private litigation and multilateral alternative dispute settlement. The central thesis of the authors and the editors are that these new levels and new forms of regulation must be utilized to restore workers’ voice and industrial democracy.

What the introductory chapter lacks is a clearly set out theoretical perspective that links global economic changes in employment law to points of pressure for responding to perceived detrimental changes in work lives and workers’ lives. This theoretical omission is addressed by Ulrich Mückenberger’s essay “Alternative Mechanisms of Voice Representation.” Even though this essay is the penultimate chapter of the book, I would recommend reading it first, and I will so treat it. Using A.O. Hirschman’s (1970) now classic notions, Mückenberger suggests that workers’ and citizens’ “voice,” i.e. their ability to collectively influence key decisions that affect their lives, has declined because of factors relating to “exit,” the ability to depart from organizations that do not respond adequately to their needs. The opportunity for exit must be balanced. If exit is too easy, then there is little incentive for a worker to stay and exercise voice in order to improve conditions at work. If exit is too difficult, because reasonable alternatives to the present job are lacking, then the worker fears losing the job for exercising her voice. Exit has been greatly limited by the decline in “good jobs,” which provide employment that is full-time, long-term, family wage earning, skilled, with progressive responsibility and increased protection based on seniority. Workers’ exit is also limited by the attack on and limitations of the social [*685] safety net which provide protection for the unemployed.

On the other hand, employers’ voice has been greatly enhanced because of their superior opportunity for exit through outsourcing and global capital mobility. They have exercised that voice by depressing wages and benefits, combating unionization, reducing taxes and social welfare expenditures and promoting deregulation. Thus, the participation of workers in the governance of the workplace has been drastically reduced, both through trade unions and law. Mückenberger suggests that restoration of workers’ and citizens’ voices must come through a reinvigoration of civil society, i.e. through new associations for advocacy that link concerns such as health, workers’ rights, the environment, protection of minorities and women’s rights. While admitting that such organizations have no legal or coercive power, he argues that they can advocate to government, monitor and negotiate the actions of MNCs in local communities and publicize their concerns. The hope is that this will restore the political will of nations, communities and workers to make the economy and economic institutions better serve workers and citizens.

In keeping with the ideas outlined by Mückenberger, Harry Arthurs in chapter two discusses three examples of “reflexive law,” voluntary codes of conduct, “ratcheting labor standards,” and the United Nations Global Compact. I did not fully understand Arthurs’ explication of reflexive law. As a result, and given his examples, I did not fully understand what was new about it. Arthurs states that reflexive law represents a “post-modern socio-legal theor[y]” which denies the state’s centrality in the administration of law, maintains that social systems, including the law, are autonomous and closed and stresses the “self-referential, self-regulating and self-reproducing” character of law. Reflexive legal theory holds “that law acts not so much by imposing itself on other social domains directly as by regulating their self-regulatory processes as well as its own” (p.20). Huh??!!! I guess this may mean that, along with the traditional makers and enforcers of law, legislatures and courts, many social institutions make and administer rule governed systems with considerable impact on everyone. This, however, is neither exceptional nor new. To be fair, Arthurs treats reflexive law theory and the examples he gives skeptically.

Voluntary codes of conduct, according to Arthurs, are adopted by corporations ostensibly without compulsion, but in reality because of adverse publicity or the threat of political or economic sanctions. He notes that typically their provisions are vague, administrative responsibility for implementing and monitoring is not designated and enforcement procedures and penalties are not specified. But he also sees a new generation of codes as arising through the reinvigoration of civil society. These codes involve to a much greater extent transnational and local advocacy organizations in their formation, extension of the codes to suppliers and subsidiaries and professional arms-length monitoring, sometimes performed by one of the advocacy organizations. Unfortunately, Arthurs provides no examples of the new codes. [*686]

Ratcheting labor standards refers to compiling, advocating, monitoring and publicizing adherence to a set of best practices. Advocacy organizations combine with the best performing corporations to promulgate the standards and at times to promote government action to diffuse them. The United Nations Global Compact, signed by the Secretary General, more than 50 of the world’s largest corporations and several labor, environmental, human rights and social organizations, is the result of an ongoing dialogue among these transnational entities. The Compact includes nine principles, two concerned with human rights, four with the environment, and four with labor. The signatories agree to advocate the principles, to enact and support the principles within their areas of influence, to submit an example of progress in implementing one of the principles at least once each year, and consult with their social partners concerning further measures. The Compact also establishes specific procedures for disseminating the principles. Arthurs concludes with the remote hope that reflexive law, the principles and procedures developed by the confluence of multiple non-governmental actors, will develop into a coherent, progressive system of labor regulation that can be looked to by courts and ultimately legislatures in formulating a new labor law system.

In chapter three Mark Barenberg of Columbia Law School recounts two case studies, in which he participated, of corporate codes brokered by an NGO and monitored by managers and outside for-profit and non-profit professionals. I will summarize the Mexican case only because the Indonesian case was very similar. The Worker Rights Consortium is supported by more than one hundred colleges and universities for the protection of the rights of workers who make the schools’ logo-labeled merchandise. This NGO investigates complaints made by workers and their own organizations. When investigating, the WRC experts assemble local teams, as much as possible including local workers, and conducts extensive on-site interviews. In the case of a Mexican factory owned by a South Korean supplier of Nike and Reebok, workers had complained about and staged a walkout over a number of health, safety and wage issues that they claimed had been ignored because of collusion between the company and the politically connected Mexican trade union confederation. The workers had rejected the confederation’s union and tried to organize their own union. They complained to the WRC which began an investigation that was stonewalled by the company. The WRC contacted Nike and Reebok asking them to encourage the company to participate in the interviews. Through the urgings of the licensing universities and the focusing of media attention, Nike did so.

The investigation report established many violations of labor standards promulgated by the coalition of universities for the manufacture of their logo products and recommended a comprehensive program of remediation, including a free and fair union election. At first Nike resisted the recommendations and hired their own labor auditor (with no background in labor law), keeping the auditor’s reports secret. Continued university pressure and the monitoring reports of the WRC-established committee soon made the obviously unfair and substandard work [*687] conditions obvious, and Nike published its expert’s “activity reports.” The South Korean company resisted allowing striking workers to return and particularly the return of the strike leaders, until Nike was finally pressured to broker a deal leading to the return of the workers and the election of a new union.

Barenberg assesses the conditions for success of the WRC. Structurally, the WRC is neither governed nor funded by business corporations or labor unions. There is a second monitoring group charged with seeing that the participating schools back the WRC’s recommendations. Because of its origin, the WRC can easily draw on the expertise of university faculties. The investigations are much more extensive than managerial sponsored or funded investigations, devoting ten to twenty times the person-days to on-site interviewing. The investigation teams include local representatives of workers, rights advocates and experts. The interviewing takes place in social settings of high trust for workers, managers and local officials, while managerial audits conduct interviews almost entirely in company offices. The investigation and monitoring process is designed not only to deal with immediate grievances, but to build a process for long-term monitoring, consultation and remediation.

Simon Deakin’s comparison of the historical advent of the liberal contract of employment in Britain and Continental Europe seems very difficult to fit into the framework of this volume. He argues that the early industrialization of Britain did not depend on or bring with it the development of a liberal contract of employment, but rather continued reliance on the master/servant relationship. The obligations to protect the servant in times of sickness or old age rested only on the moral obligation of the master. However, industrial conditions were such that this obligation was mostly ignored and the small governmental provisions for these situations, such as the Elizabethan Poor Laws, had been severely weakened. The later industrialization in France and Germany, while simultaneous with the development of the notions of equality of bargaining power and that either party could terminate the contract, also included the idea that the worker’s subordination to managerial control required some degree of social protection to make equality of bargaining power more of a reality. This quid pro quo was provided indirectly by the state through social insurance and recognition of collective bargaining rights. Deakin’s point is that capitalist industrialization does not require a particular legal regime but can develop under many different legal settings, many of which provide much greater citizen control of corporations and are much more protective of the worker than those of England or the United States.

Cynthia Estlund of NYU Law School analyzes “Responsible Regulation” which builds on self-regulation embedded in a system of public oversight, but envisions a greater role for third parties, including workers and their organizations, in monitoring compliance and the use of private litigation as part of the enforcement mechanism. Estlund proposes a Sarbanes-Oxley approach, which includes vigorous and independent monitoring, protection of employee whistleblowers, and private [*688] causes of action for those injured by violations. One example of such a program was the Department of Labor’s use against sweatshops in the garment industry of the “hot goods” provision of the Fair Labor Standards Act, which allowed the embargo of goods manufactured in violation of the law. The threat of embargo induced some of the larger manufacturers to enter into agreements with their subcontractors to comply with the wages and hours laws, keep records and submit to inspections by outside monitors generally hired by the manufacturers. Another example Estlund mentions was the New York City Greengrocer Code of Conduct. Resulting from a parade of wage and hour enforcement actions that taxed the resources of the New York Attorney General’s Labor Bureau, the GGCC bound subscribing employers to adhere to wage and hour laws, keep adequate records, advise employees of their rights and submit to regular inspections by outside monitors appointed by the AG with consultation of employers and unions.

Citing the pressure on workers and their organizations from flexibilization, globalization and privatization, factors similar to those outlined by Mückenberger, Katherine Stone of UCLA Law School advocates the revival of collective action at the local level, ideally by “citizen unions.” Coalitions of labor and other advocacy groups at the local level can pressure resident businesses to improve the economic condition and social life of local citizens. She cites the work of organizations such as the Industrial Areas Foundation, the Boston Center for Contingent Work, the National Federation for Fair Employment and local living wage campaigns as examples.

The difficulties of the formal legal system in dealing with workplace discrimination that is constituted by a set of cultural, psychological and social factors that do not reflect conscious intent, but that normalize the values of dominant groups, prompt Susan Sturm of Columbia University Law School to argue for a more participatory, deliberative, pluralistic and informal dialogue on appropriate anti-discrimination norms and policies. She wants courts to be involved to a greater extent in encouraging this type of non-binding and free-ranging dispute settlement. Here again, however, it is hard to see what is new about encouraging courts to facilitate negotiation and settlement or alternative dispute resolution techniques.

K.D. Ewing of King’s College London discusses 31 international framework agreements between global union federations and MNCs. These agreements generally bind the companies to uphold core international labor standards. As Ewing notes, however, without an international legal regime backing these agreements, their success is mixed. Performance is varied on key requirements for effectiveness, such as the extent of dissemination within an enterprise, identification of responsible administrators, regular and periodic procedures for monitoring effectiveness of agreements, trade union involvement in monitoring, procedures for complaint of breach, and procedures for correcting violations and rectifying oversights. [*689]

Three of the last five chapters in the book deal specifically with the European Union’s use of reflexive law and can be treated together. Bob Hepple contrasts the EU’s use of the Generalized System of Preferences (GSP) with that of the US. The EU’s system universally applies the eight core standard ILO conventions, six of which have not even been ratified by the US. The EU is required to follow standard and transparent procedures which begin with a request for GSP treatment from an interested country, which then has to show that its legislation complies with the ILO core standards. The US Trade Representative’s decision is characterized by almost complete discretion, which often seems to depend primarily on domestic protectionism or foreign policy considerations. The EU system is less protectionist, because it was initially designed for assisting former colonies and later applied to other developing countries. Hepple suggests unilateral GSPs and multilateral trade agreements are more suitable than the WTO as potential enforcers of labor standards to the extent that they incorporate labor representation in their structure.

Brian Bercusson holds up the example of the EU social dialogue among European level social partners, particularly the negotiation of the Framework Agreement on Fixed-Term Work, as a new use of the open method of coordination. This Agreement and the open method leave the substantive details to national legislation, which must comply with the statement of principles, and procedural requirements established in the Agreement. Enforcement of substantive provisions which devolve upon the labor relations processes, courts and administrative bodies of the member nations, while compliance with the principles and procedures can be the subject of action in the European Court of Justice. Similarly, Marie-Ange Moreau of the European University Institute raises as a model of transnational social norms the European Works Council Directive which was the subject of dialogue among the social partners and requires negotiation at the firm level. She seconds Bercusson on the importance of the possible recourse to the European Court for clarification and enforcement of European, rather than national, social norms.

While many of the essays are interesting, I found this a very disappointing volume. There is an air of desperation in each announcement of new initiatives that are really not new, plentiful nor particularly successful. There is an excessive amount of repetition in the litany of global forces that have curtailed industrial democracy. In the end, each essay seems to fall back on the hope that some of the new initiatives will spur a return to a more active participation of trade unions and governments in the regulation of labor.

REFERENCE:
Hirschman, A.O. 1970. EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINES IN FIRMS, ORGANIZATIONS, AND STATES. Cambridge, MA: Harvard University Press.

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© Copyright 2008 by the author, Lawrence E. Rothstein.

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