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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