RIGHTS IN THE BALANCE: FREE PRESS, FAIR TRIAL, AND NEBRASKA PRESS ASSOCIATION v. STUART

by Mark R. Scherer. Lubbock, Texas: Texas Tech University Press, 2008. 256pp. $40.00. ISBN: 9780896726260.

Reviewed by Michael Paris, Political Science Department, College of Staten Island (CUNY). Email: michaelpari [at] gmail.com.

pp.854-858

In RIGHTS IN THE BALANCE, Mark Scherer tells the story of a landmark Supreme Court case, and he tells it well. NEBRASKA PRESS ASSOCIATION v. STUART, which reached the Court in 1976, involved the age-old conflict between freedom of the press and a defendant’s right to a fair trial before an impartial jury. The Court’s unanimous holding eliminated one weapon in the trial judge’s arsenal for dealing with the problem of pre-trial publicity: the blunderbuss gag order directed to the press barring the publication of certain categories of information prior to jury selection.

Many readers of these electronic pages will be familiar with the outline of the story from Fred Friendly’s famous account of “a crime and its aftershock” (reprinted in Friendly and Elliott 1984, pp.145-158). In his painstakingly researched and competently written volume, Scherer fills in all the details. We meet and follow the relevant actors – the disturbed perpetrator of a gruesome, “In-Cold-Blood” style massacre and his six victims, the law enforcement officials, prosecutors, defense attorneys, and trial judges who had to respond quickly to the horrific crime under great duress, the journalists who converged on the remote prairie village where the crime took place, determined to dig out the facts, the media executives (and their lawyers) who mobilized legal appeals to challenge what they saw as blatantly unconstitutional censorship, and the appellate justices, both state and federal, to whom it fell to rule on the conflict between a free press and a fair trial.

The story begins in 1975 in Sutherland, Nebraska (population 840). Charles Erwin Simants, then twenty-nine years old, lived in the basement of his sister’s house. On an October night, he entered his neighbor’s home with his brother-in-law’s .22 caliber rifle in hand, determined, apparently, to sexually assault ten-year old Florence Kellie, who was momentarily alone. When the girl resisted his attack, Simants shot and killed her. Simants then proceeded to slaughter five other Kellie family members, one-by-one, as they returned home. He also sexually assaulted at least two of his female victims, both before and after their deaths.

After the killings, Simants went back to his sister’s house, placed the weapon where he had found it, confessed the crime to his thirteen year-old nephew (“I just killed the Kellies”), telephoned his parents and confessed the crime to them as well, and left a hand-written note (“I am sorry to all. It is the best way out. Do not crie.”). Simants’ father was the first to arrive at the Kellie home, and it was he who notified the authorities. After Simants was apprehended at the [*855] crime scene the next morning, he gave the police a detailed confession.

Over the next few days, print and broadcast media accounts contained many statements by Simants’ family members and law enforcement officials linking Simants to the killings, including information about his admissions of guilt.

Scherer shows us that the lawyers and trial judges immediately began to worry about the problem of impaneling an impartial jury. They did so, clearly, in the difficult context of a wildly sensational crime in a small, rural community. But they also did so in a particular legal context. That context, Scherer notes, extended backwards to Chief Justice Marshall’s exposition on publicity and juror impartiality during the treason trial of Aaron Burr. However, it took on a particular coloration during the television age. The 1960s witnessed the bench and bar’s growing concern about adverse (and sometimes false and prejudicial) pre-trial publicity and the right to a fair trial. In several high profile cases, including IRVIN v. DOWD (1961) and SHEPPARD v. MAXWELL (1966), the U.S. Supreme Court reversed convictions obtained in the tainted atmosphere of media feeding frenzies. In SHEPPARD in particular, the Court berated the trial judge for failing to control sensational press attention and to otherwise orchestrate a fair trial. In response, legal and media elites across the country collaborated on voluntary codes about disclosures and pre-trial publicity. Nebraska’s version (the Nebraska “press-bar guidelines”) emerged in 1970. Among other things, the press-bar guidelines specified that a defendant’s confessions or admissions of guilt were not appropriate for reporting (see also Abramson 1994, Chapter 2).

Nebraska criminal procedure provided for a preliminary hearing in one court before one judge and for trial in another court before another judge. When prosecutors and defense attorneys joined in a motion to ban press reporting of the preliminary hearing, the hearing judge responded favorably. The one-day hearing was open to the public (Nebraska statutes precluded a closed hearing), but when it ended all persons present were given a copy of what purported to be a judicial order not to “reveal for public dissemination” any of the testimony or evidence they had witnessed (p.48). The hearing judge also incorporated the voluntary press-bar guidelines into his order.

To be sure, the hearing judge (Ronald Ruff, age 34) had a big problem. At the time, Nebraska law provided for a change of venue only to an adjacent county – no doubt a remnant of the days when jury justice was local justice – and such a change would make no difference here. And then there was SHEPPARD v. MAXWELL, which, on Ruff’s reading, seriously questioned the possibility of a fair trial. Still, as Scherer shows us, the gag order made little sense, for the cat was already out of the bag.

Over the next several months, Ruff’s gag order would be modified on three separate occasions: Once by the trial judge (Hugh Stuart, the named respondent in the U.S. Supreme Court), who basically re-wrote the same order using more precise language; once by Justice Harry Blackmun, who, in his [*856] capacity as the presiding judge for the 8th Circuit, entertained the media’s application for an emergency stay; and, finally, by the Nebraska Supreme Court, but only after full briefing and oral arguments. Both Blackmun and the state high court ruled that the trial judge had erred in incorporating the press-bar guidelines into his order. However, the state high court’s December 1975 opinion left in place a ban on the publication of “confessions made by Simants to law enforcement officials,” confessions or “admissions against interest” to any other third party, and “other information strongly implicative of the accused as the perpetrator of the slayings” (p.89).

Remarkably, through it all, journalists and media companies obeyed the gag orders, even as they vigorously and creatively pursued their state and federal appeals. As Friendly put it, and as Scherer reiterates, these particular media elites “did not believe in civil disobedience.” The Nebraska Press Association and its Washington allies (including well-connected Supreme Court advocates E. Barrett Prettyman and Floyd Abrams) were of course dissatisfied with the outcome in the Nebraska courts. For them, the remaining gag order was a prior restraint completely unsupported by facts and arguments brought out in court. Moreover, and centrally, the gag order violated “the principle that the press has an unrestricted right to publish information gleaned from a public hearing in open court or material contained in public documents” (p.89, emphasis in Scherer’s text).

The U.S. Supreme Court denied the media organizations’ application for a stay, but granted cert. Thus, the gag order remained in effect until the start of Simants’ trial in January 1976. By the time the Court handed down its decision in June, Simants, whose only defense was, plausibly enough, insanity, had been convicted and sentenced to die in the electric chair. In 1978, at the eleventh hour, the Nebraska Supreme Court ended up reversing Simants’ conviction and ordering a new trial. It turned out that the local sheriff, a key witness in the case, had visited with jurors at length while they were sequestered at the Howard Johnson’s Motel.

In three chapters (Chapters 5-7), Scherer follows the gag order appeal through the Supreme Court’s process, from the granting of cert., to briefing and oral arguments, to what is known about the Court’s decision-making in the case, and, finally, to readings of the justices’ various opinions. The case was not a close one. All nine justices agreed that the gag order was unconstitutional. However, the Court fractured on the question of how broadly or narrowly to cast the reasoning. No one opinion commanded the Court. Chief Justice Burger’s plurality opinion, joined by Justices Rehnquist and Blackmun, hewed most closely to the particular facts. Burger left open the possibility that the presumption against prior restraints could be overcome on a proper showing. Justice Brennan’s concurring opinion, joined by Justices Marshall and Stewart, advocated an absolute ban on pretrial gag orders directed to the press. Justices White, Powell, and Stevens each authored separate concurring opinions that expressed sympathy for Brennan’s view, but in the end pulled up just short of “never.” [*857]

Early in the book, Scherer tells us that his narrative will be guided not only by a conventional focus on the legal process, but also by “the human stories” that infuse it and give it life (p.7). Scherer, a lawyer turned historian, certainly keeps his eyes trained on the case and the people involved in it. Some readers will no doubt feel that they are getting more detail than they want or need. To take just one of many possible examples: Does it really matter that the trial judge who will have to rule on a motion for a gag order over a weekend will also have to attend to his daughter’s wedding? Scherer’s account also includes many mildly annoying digressions that consist of textbook-like treatments of things like the Court’s cert. process and biographical sketches of all of the justices. Still, on the whole, I think this is a very good book that clearly succeeds on its own terms. The thick narrative allows us to situate ourselves with various actors and thereby to gain a richer understanding of an important case. The book also does a very good job of incorporating the content and quality of media reporting in the case (the press reporting on the story of itself being muzzled).

Given that the motive for the gag order was the desire to impanel an impartial jury, I would have liked to have heard more about the jury selection processes in Simants’ criminal trials. Scherer mentions jury selection – for example, in the first trial, the judge seated four jurors who admitted that they had already heard much about Simants, but who insisted they could keep an open mind – but he does not go into much detail. Given his diligence elsewhere, it is likely that the historical record was a bit sketchy on this front.

I very much enjoyed reading “the human stories” and their attendant ironies. We find a young, ambitious DA who is so worried about pre-trial publicity that he seeks a gag order, and yet at a preliminary hearing he puts on a full day of testimony (with 9 witnesses), when probably twenty minutes of testimony would have sufficed. We witness a trial judge flouting elementary notions of jurisdiction and judicial authority by allowing media organizations to “intervene” in a criminal case. We see judges and justices holding fast to a gag order even after the dreaded disclosures are common knowledge in the community. We see state appellate judges who, miffed at the news organizations for running to the federal courts, take their own sweet time to decide the case before them. Human stories indeed.

As should be clear by now, Scherer is quite content to leave it to the reader to consider the possible broader themes and implications of his account. One theme that kept me moving through the details was the clash of local law (and norms and folkways) with alternative formal-legal norms emanating from “higher,” more distant places. As should be clear by now, the law enforcement officers, lawyers, judges, and jurors in this isolated rural setting certainly had customary ways of thinking and acting within local legal institutions.

The most telling example of this clash between what was old and local and what was new and national was the outmoded change of venue statute and its relationship to changing notions of jury justice and juror impartiality. In 1978, probably as a direct consequence of Simants’ case, the Nebraska state [*858] legislature amended the change of venue statute to allow trials to be moved to any county in the state. The new statute may have been a matter of life and death for Charles Erwin Simants. His second trial, which was largely a replay of his first, was moved to Lincoln, Nebraska. The jury found Simants not guilty by reason of insanity. Simants was then committed to the maximum security unit at the Lincoln Regional Center, where he remains to this day (p.182).

REFERENCES:
Abramson, Jeffrey. 1994. WE THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY. New York, NY: Basic Books. [Reissued, Harvard University Press, 2000].

Friendly, Fred W., and Martha J.H. Elliott. 1984. THE CONSTITUTION: THAT DELICATE BALANCE. New York, NY: Random House.

CASE REFERENCES:
BURR v. UNITED STATES, 25 Fed. Cas. 49 (1807).

IRVIN v. DOWD, 361 U.S. 717 (1961).

NEBRASKA PRESS ASSOCIATION v. STUART, 427 U.S. 539 (1976).

SHEPPARD v. MAXWELL, 384 U.S. 333 (1966).

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© Copyright 2008 by the author, Michael Paris.

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RETAKING RATIONALITY: HOW COST-BENEFIT ANALYSIS CAN BETTER PROTECT THE ENVIRONMENT AND OUR HEALTH

by Richard L. Revesz and Michael A. Livermore. New York: Oxford University Press, 2008. 262pp. Cloth. $34.95/£18.99. ISBN: 9780195368574.

Reviewed by Thomas W. Church, Department of Political Science, University at Albany, State University of New York. Email: TChurch [at] albany.edu.

pp.848-853

Richard Revesz, Dean of the NYU Law School, and Michael Livermore, a recent graduate of the same school, have written a book aimed at convincing environmentalists and others of a “proregulatory sentiment” that cost-benefit analysis (CBA) is not their enemy but a potential friend, that they “need not lose their souls in order to embrace cost-benefit analysis. They only need to be reminded that reason is often on their side as well” (p.19).

The book is thus an upbeat appraisal of the promise of CBA for those concerned with protecting the environment and public health:

This book argues that cost-benefit analysis, properly conducted, can improve environmental and public health policy. Cost-benefit analysis – the translation of human lives and acres of forest into the language of dollars and cents – can seem harsh and impersonal. But such an approach is also necessary to improve the quality of decisions that regulators make. Saving the most lives, and best protecting the quality of our environment and our health – in short exercising our compassion most effectively – requires us to step back and use our best analytic tools. (p.3)

This theme is echoed in the book’s title, “Retaking Rationality.” The clear implication is that CBA is simply another term for reasoned thinking – “coolly calculating, rational, disinterested” (p.19) – and it must be recaptured from the antiregulatory groups that have improperly biased its practice over the past two decades. These biases in CBA methodology arose, according to the authors, because progressives chose to sit on the sidelines when important governmental determinations were made regarding how CBA was to be practiced in agency decision making. If the book’s title leaves any doubt about either the intended audience or the political message, it is dispelled early on with a call to arms more reminiscent of the Communist Manifesto than an academic treatise on an esoteric analytical technique:

Proregulatory groups must shake off their torpor. Their opposition to cost-benefit analysis, even if it was understandable at the outset, has become very counterproductive. Their position is now hindering their goals more than it is helping them. They must recognize that cost-benefit analysis can – with work – become a goad as well as a brake on government. As soon as they reach this realization, cost-benefit analysis will cease to be inherently antiregulatory and will become a tool that is exactly as good as we can make it (pp.44-45).

The irreverent analogy to a work that brings heartburn to most economists suggests my overall predisposition [*849] toward CBA, which I should probably state at the outset. I am a political scientist. Though I have had some training in both economics and law, I do not share either discipline’s distaste for, and distrust of politics, nor their attraction to decision-making processes in government that attempt to eliminate administrative judgment and discretion in favor of purportedly “objective” or “rational” methods that – at least in practice – are frequently neither. This is not the place for an extended critique of cost-benefit analysis, either in theory or in practice. (Those looking for a spirited critique can find it in Ackerman and Heinzerling 2004). Indeed, I am something of an agnostic on the subject, and suspect that some version of CBA has a useful place among the tools used by policy analysts and administrators to evaluate alternate approaches to policy issues. However, I believe that the largely unqualified embrace by the authors of this book of “properly conducted” CBA as the primary source of guidance for would-be regulators, and their implicit identification of the narrow economic rationality embodied in CBA with “reasoned thinking,” may prove to be bad advice for their intended “proregulatory” audience and for the future of effective health, safety, and environmental regulation.

The book is divided into three sections. The first, “Decisions Are Made by Those Who Show Up,” sets out the errors made by environmentalists and others supportive of governmental regulation when they failed to participate in decisions concerning the mechanics of how cost-benefit analyses would be conducted in government. This strategic mistake left the field to opponents of regulation, and led to a number of antiregulatory biases introduced into the way CBA is now conducted. The final section sets out in broad outline the authors’ program for “Instituting Regulatory Rationality” through better use of CBA.

While the first and last sections outline the authors’ arguments for the embrace of CBA by groups that have tended to shun the technique in the past, the analytical meat of RETAKING RATIONALITY is found in the central section of the book, which discusses eight purported errors or “fallacies” in the way CBA is either currently used in regulatory decision making, or which seem to be on the horizon. These errors “amount to a virtual Berlin Wall blocking good regulations” (p.145). While these criticisms of the conduct of CBA are not new, the discussion is cogent and informative. It is also novel in that it comes from such obvious partisans of the technique.

Three of the fallacies speak to what might be termed technical issues regarding the conduct of CBA; they raise empirical questions that presumably could be addressed by correcting analytical errors or by further research into empirical assumptions:

• Ancillary positive benefits from regulation are seldom taken into consideration in CBA, while predicted negative consequences of regulation always find their way into the analysis.

• The “health-wealth tradeoff,” based on the assumption that the costs of regulation decrease overall societal wealth and thereby diminish human health, is improperly used to decrease the expected benefits of regulation; the [*850] authors argue that this analysis is empirically incorrect because it confuses the correlation of wealth and health with causality.

• Costs of regulation are frequently overstated, not only because it is in the interest of the regulated parties to make predicted costs as high as possible, but also because CBA infrequently considers the potential for innovation.

The remaining issues cannot be addressed empirically, because they pose fundamental moral, ethical, and political choices that lie at the heart of CBA, and which are also illustrative – at least in my view – of the underlying subjectivity and indeterminacy of the entire enterprise.

• CBA “discounts” future benefits, even the benefits accrued by saving human lives in the future, in the same way economists discount the value of an income stream in the future; the assumption is that future benefits are less valuable than those obtained immediately, and are therefore “worth” less. While this piece of economic orthodoxy makes sense when applied to purely financial decisions, it operates more problematically when applied to long-term environmental problems – particularly those that may not have major impact on ourselves, but on future generations. The decision to devalue benefits and harms to future generations in the service of reducing costs to the present generation obviously involves ethical and political considerations, and a strong dose of subjectivity in setting a discount rate, rather than empirical or technical issues.

• Since CBA requires benefits to be valued in monetary terms, even human life must have a price tag. Revesz and Livermore consider two aspects of this process, currently gaining sway among CBA practitioners, to be “fallacies” in need of correction. These involve placing differential values on human lives, based on either age or on the “quality of life.” In the former case, older peoples’ lives are valued at a lower price than younger people, based on the predictable fact that they have fewer years left to live. In the latter case, an increasingly popular CBA technique values lives differently based on quality of life being lived. For example, an individual who loses use of his limbs, or suffers from serious lung disease, or painful arthritis is said to have a lower quality of life, and therefore to benefit less from life than an individual in good health. In both cases, the diminished value of the lives being saved lowers the monetised benefits of a proposed regulatory action and thus justifies expenditure of fewer societal resources. The moral and political implications involved in deciding whether, and the inherent subjectivity in determining how, to make such choices are obvious.

• CBA cannot deal with benefits or “intrinsic values” that have no ascertainable market price. While conceptually and statistically problematic, techniques exist for determining an extrapolated price for some goods that have no direct market price (such as human lives, or risks to human lives) if there are prices for related goods in the market (such as the increment workers are paid for employment in highly risky jobs, or what consumers are willing to pay for safer products). Based on such studies, [*851] for example, EPA has set the monetary value of a human life (or “statistical life”) at $6.3 million (p.70). But no relevant market exists for “natural resource values” such as the preservation of wilderness areas or endangered species. How does one monetise the benefit of maintaining a pristine Alaska National Wildlife Refuge, or protecting the polar bear from extinction? The usual method is to conduct what are termed “stated preference” or “contingent valuation” surveys in which individuals are asked how much they would be willing to pay for preserving a species or wilderness area they may never see. These surveys are accompanied by a host of conceptual and technical problems, leaving some analysts (typically those in the “antiregulation” camp) to argue that natural resource values that cannot be extrapolated from the market should simply be ignored. Revesz and Livermore regard this as another “fallacy,” though their criticism seems based less on the strength of existing valuation methodologies than on the fact that in the absence of such methods, preservation of many intrinsic natural values will not show up on the benefits side of CBA at all.

There is a final problem with CBA that the authors discuss, but suggest that no solution exists within the confines of the analysis: the problem of fairness which, in the environmental arena, is subsumed in the concern with “environmental justice” or, more pungently, “environmental racism.” All CBA calculations of benefits are attempts to approximate the price that would emerge in a free market; the best approximation of such a value is typically “willingness to pay” or WTP. The equity problem here is that poorer people are necessarily less willing to pay for environmental or public health benefits because their incomes are consumed by food, shelter, and other essentials; they are less willing because they are less able to pay. Basing environmental and public health policy on WTP, then, would necessarily concentrate environmental and health risks and damages on those segments of the population least able to pay for their amelioration. Of course, this is typically the result of the play of the political and economic system, but when considering public policy from the position of a concerned scholar, it is surely problematic to label this arguably unjust and unfair allocation of harms to be the result of “coolly calculating, rational, disinterested” reason.

Revesz and Livermore’s solution to this problem is to undertake “distributional analysis:”

Distributional analysis is not an easy undertaking, but it is a necessary corollary to cost-benefit analysis. Cost-benefit analysis, on its own terms, excludes concern for the distribution of the benefits and burdens of regulations. This omission is acceptable only if a separate effort is undertaken to account for these effects. (p.182)

So, we learn in the final pages that CBA is unacceptable without distributional analysis. Of course, it goes without saying that a determination of who should benefit from, and who should pay for a governmental policy is the very definition of a political decision. Yet the authors devote only two paragraphs to this issue and do not indicate what a distributional analysis might look like, how its results would be integrated into [*852] the results of CBA, what weight it should be given in regulatory decisions.

While the authors make a cursory nod (on the last page of the book) to the fact that cost-benefit analysis is “not a panacea” (p.190), this caveat is drowned in their unbridled enthusiasm for a new, purified version of the tool as the sine qua non of rational regulatory decision making. There is no serious discussion of how CBA could accommodate concerns over equity and fairness, or how it might fit with other modes of analysis, other less mechanistic – more “subjective” or even “political” – decision-making processes.

The authors’ overselling the promise of CBA, and their explicit identification of the technique with broader notions of administrative rationality, is especially troubling because legislators and the courts may buy into the view that cost-benefit analysis defines reasonable decision making in a regulatory context, that if an agency does not follow the dictates of economic rationality embodied in CBA, it is acting arbitrarily. Arbitrary administrative behavior, of course, is subject to reversal by judges, especially federal judges, who increasingly distrust the exercise of discretion by bureaucratic agencies and are ever more ready to substitute their own notions of reasonableness for those of agency officials. It is not clear that regulatory policy making would be improved if administrative decisions were routinely second guessed by federal judges attempting to determine whether proposed regulations square with their understanding of the dictates of rational choice economics.

Cost-benefit analysis as depicted by the authors of RETAKING RATIONALITY promises to remove (or at least substantially reduce) agency discretion, always subject to influence by agency clientele or other political pressure, and take us to a landscape of impartial analysis and rational, disinterested decision making: “By providing a more accurate assessment of the real costs and benefits of a decision, formalized cost-benefit analysis reveals the distortions of politics – the backroom deals and special interest politics – for what they are” (p.12). As such, CBA, at least as viewed by those who fail to appreciate the transcendently political and moral assumptions underlying its application, can be seen as providing a clear, apolitical metric by which to evaluate regulatory decisions. But, as we have seen, critical assumptions in the very guts of CBA – such as differential valuation of human lives, discounting the interests of future generations, or inability to consider the societal distribution of the benefits and costs of regulation – are highly charged moral and political choices that will frequently have a profound impact on the calculation of costs and benefits that emerge from the allegedly disinterested analysis. As a result, as even its most enthusiastic supporters admit, the results of CBA are frequently “indeterminate:” reasonable and conscientious analysts may produce widely divergent assessments of the costs and benefits of a proposed governmental action. For example, Cass Sunstein – a more measured supporter of CBA than the authors of RETAKING RATIONALITY – found that defensible estimates of the societal benefits of EPA’s proposed regulation of arsenic in drinking water ranged from $13 million – well below [*853] regulatory cost – to a figure more than 260 times greater – $3.4 billion – substantially above the cost of the regulation (Sunstein 2002, p.177).

Judge Richard Posner, a vocal proponent of CBA, states the following in the “Advanced Praise” blurb printed on the back cover of RETAKING RATIONALITY: “It is true that in noncommercial settings, cost-benefit analysis often cannot yield definitive conclusions without the analyst’s adopting assumptions that may be politically charged. But the charge can be, as the authors show, liberal rather than conservative.” In this context, irrespective of one’s political leanings, it is difficult to accept Revesz and Livermore’s depiction of cost-benefit analysis as “coolly calculating, rational, disinterested.” And it is similarly unclear that committed environmentalists should enthusiastically embrace a technique that promises the removal of political judgment from agency decision making while reinserting it under cover of seemingly technical issues such as “discounting” and “quality of life” calculations.

The authors readily admit that CBA has not in the past been a friend of those supportive of governmental regulation to promote human health and the environment. In light of the underlying subjectivity of the enterprise, the technical problems inherent in the calculation of public benefits, CBA’s frequent indeterminacy and intrinsic inability to consider basic notions of fairness, it is not clear that environmentalists and other supporters of regulation would be well served by casting their lot with CBA, even if it were biased in a proregulation direction as the authors propose. In my judgment, the critical issue for those concerned with effective regulatory policy should be how to integrate the findings of cost-benefit analysis and other quantitative analytical techniques such as risk analysis, into a more inclusive decision-making framework that does not substitute form for substance, and which insures that the value choices made by administrators are explicit and defensible in broader terms than those embodied in economic models.

REFERENCES:
Ackerman, Frank and Lisa Heinzerling. 2004. PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING. New York: The New Press.

Sunstein, Cass R. 2002. RISK & REASON: SAFETY, LAW, AND THE ENVIRONMENT. Cambridge: Cambridge University Press.

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© Copyright 2008 by the author, Thomas W. Church.

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CORRUPTION AND THE SECRET OF LAW: A LEGAL ANTHROPOLOGICAL PERSPECTIVE

by Monique Nuijten and Gerhard Anders (eds). Burlington, VT: Ashgate, 2007. 234pp. Hardback. $99.95/£55.00. ISBN: 9780754671107.

Reviewed by Frederic Charles Schaffer, Department of Political Science, University of Massachusetts Amherst. Email: schaffer [at] mit.edu.

pp.845-847

We tend to view law and corruption as opposites. Where the law prevails, we typically hold that corruption has been held at bay. Where corruption prevails, we typically believe that the law has been transgressed. The contributors to this edited volume seek to challenge this dichotomous view. They aim to show the “hidden connections” (p.xi) that link law and corruption. To do so, they adopt the methods of anthropology, arguing that the tools of this discipline can be used to deconstruct simplistic binary oppositions and build up in their place more complex pictures of social reality. Except for the editors’ introduction and a methodological chapter by Giorgio Blundo, the book consists of (mostly) ethnographic case studies from China, Italy, Mexico, Burundi, Indonesia, pre-war Japan, and the US borderland with Mexico.

What are the hidden connections that join law and corruption? As Gerhard Anders and Monique Nuijten explain in their introduction, the law and its transgression cannot exist without each other insofar as one defines the other. That law makes its own transgression possible is the “secret of law” to which the book title refers (p.12). Unfortunately, this thesis is developed only abstractly in the introduction, and its implications are not fleshed out well in the remainder of the volume.

Other connections between law and corruption, thankfully, are explored more concretely. The most interesting of these play on the complexity of the word corruption itself. “Corruption” is a term that English speakers use to condemn from two distinct vantage points. To call an act “corrupt” is to condemn it as the violation of (certain kinds of) standards that are defined either by law or morality. Thus corruption can refer to either the transgression of law or moral depravity. Several contributors to this volume direct our attention to this duality. Illegalities, they remind us, may be viewed as moral by participants or member of the community. Thus the same act, practice, or institution can be both corrupt and not corrupt depending on the normative standard applied. The rich analytic possibilities opened up by this insight are well exploited in the book. Andrew MacNaughton and Kam Bill Wong, for instance, examine engagingly five illustrative civil service corruption cases heard by the Daishinin, the highest criminal appeals court in pre-War Japan. In two of these cases, the civil servants found guilty of corruption argued that they were merely acting in accordance with the Japanese traditional practice of gift giving, arguments which the court ultimately rejected. In another strong chapter, perhaps the most thought-provoking in the volume, Alan Smart and Carolyn Hsu examine the practice of guanxi (gift exchange, but [*846] literally, “relationship,” “network,” or “connection”) in China and tease out its complicated relationship with morality and corruption. Depending on how particular gift exchanges are performed, ordinary Chinese citizens can see them as either reasonable and legitimate or abusive and corrupt.

Given that laws vary from polity to polity, and that norms of morality vary from culture to culture, the contributors to this volume shy away from offering any “universal” or “cross-cultural” definition of corruption (p.7). Consequently, the burden is on the author(s) of each chapter to specify the contextual meaning of corruption in the particular country under investigation. This task is met with mixed success. Among the most problematic chapters in this regard is Josiah Heyman and Howard Campbell’s examination of corruption in various US government agencies operating at the Mexico border. In an otherwise fine chapter, the authors neglect to explain what they mean by corruption, and include among a catalog of corrupt acts the killing and sexual assault of immigrants (pp.204, 208). Without additional explanation about the motives for and context of such acts, it is difficult to see what makes them instances of corruption as opposed to some other form of misconduct. Smart and Hsu, in contrast, handle the definitional challenge with far greater care. They expertly explain the meaning of the Chinese rough equivalent of corruption - fubai and tanwu - and draw for the reader the fine moral line that distinguishes “corrupt” acts that are fubai or tanwu from “reasonable” ones that are guanxi.

On the whole, the ethnographic approach of the volume is well suited to the task at hand, and the case studies provide the kind of thickly textured accounts so often missing in political science. Deserving special mention in this regard is Pieter de Vries’ vivid portrait of Jesús Lopez, a gregariously corrupt Mexican cacique. There are, however, some methodological mis-steps in the book. Because corruption is difficult to study, some authors examine what people say about corruption rather than corruption itself. For instance Simon Turner, in his study of Burundi, focuses uniquely on narratives of corruption, and finds that through them people “attemp[t] to grasp their own misfortune” and “express fears that things are not what they appear to be” (pp.125-126). But because he never moves beyond an analysis of words, Simon cannot say for sure that the stories he heard were merely reflections of fear and concern. Maybe his informants were also keen observers of Burundian politics. In this context it is striking that some of the political practices described by Turner’s informants – buying off opponents in particular – correspond closely to the maneuvering described by Rosberg and Jackson (1982, at 38-58) in their classic study of uninstitutionalized politics in Africa.

Finally, a word on organization. There is, unfortunately, little thematic division of labor between the substantive country-based chapters. Each is oriented to diverse sets of questions, sometimes overlapping, sometimes not. And while Anders and Nuijten’s introduction provides an excellent overview of the anthropological literature on corruption, it fails to lay out a roadmap showing how the various chapters of this volume [*847] fit together. One chapter in particular seems disconnected from the rest. Livia Holden and Giovanni Tortora’s account of the twists and turns of the defense mounted by Tortora (an Italian defense lawyer) of a man accused of mob-land murder had, as far as I could tell, little to do with corruption, and is thus a curious addition to this book. There are, too, important themes developed in individual chapters that should have been brought together and explored further somewhere in the volume. Both Heinzpeter Znoj’s incisive chapter on bureaucratic corruption in Indonesia and Heyman and Campbell’s study of the US borderland advance compelling hypotheses, respectively, about the institutional and sociological causes of corruption. But the question of causation, regrettably, is not taken up seriously by the editors in their introduction, and the volume lacks a concluding chapter.

REFERENCES:
Rosberg, Carl G., and Robert H. Jackson. 1982. PERSONAL RULE IN BLACK AFRICA: PRINCE, AUTOCRAT, PROPHET, TYRANT. Berkeley: University of California Press.

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© Copyright 2008 by the author, Frederic Charles Schaffer.

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ETHICS AND CRIMINAL JUSTICE: AN INTRODUCTION

by John Kleinig. New York, NY: Cambridge University Press, 2008. 294 pp. Hardback. $90.00/£45.00. ISBN: 9780521864206. Paperback. $29.99/£15.99. ISBN: 9780521682831. eBook format. $24.00. ISBN: 9780511380143.

Reviewed by Julio Rios-Figueroa, División de Estudios Políticos, CIDE, Carretera Mexico-Toluca. Email: julio.rios [at] cide.edu.

pp.842-844

Should police violate the law in order to trap those who would otherwise escape its reach? Should prosecutors willfully withhold exculpatory information that would bear on a dangerous defendant’s guilt? Should judges and juries consider valid evidence obtained by setting up a situation that “invites” the commission of a crime and then using the ensuing criminal conduct as grounds for arresting the individuals who fall into the trap? In other words, is it right to do wrong, and under what circumstances? On what grounds can these actions be justified? John Kleinig’s interesting book discusses these and other ethical dilemmas that are prompted by the criminal justice system in the United States.

The first three chapters set up the theoretical framework that enables readers dealing with the broader ethical questions. The rest of the book is organized so that the chapters nicely mirror the sequence of a typical criminal case, analyzing in order of appearance the actors and processes of the criminal justice system: the police, the prosecutor, the defense lawyer, the judge, the jury, and prison officers. The ethical dilemmas that each one of these actors faces at different stages of the criminal process are presented by Kleinig in an attractive way that will likely stimulate rich discussions in classrooms.

The ethical discussions are set within the theoretical framework of liberal democracy, drawn mostly from work by theorists such as John Locke and John Stuart Mill. In setting up this framework, Kleinig avoids the theoretical extremes of both a Kantian perspective in which the means never justify the ends, as well as a completely consequentialist approach in which ends always justify means. Instead, he suggests keeping the discussion in a middle ground through balancing tests of ends and means (Chapter 3). The institutional actors of the criminal justice system are granted a certain degree of discretion required for performing their jobs, and Kleinig’s basic strategy is to consider the ethical boundaries of such discretion. To delineate this “bounded authority,” Kleinig proposes four steps in the balancing of means and ends: to take into account the importance of the ends; the proportionality of ends to means; the likelihood of the means actually securing the ends that they seek; and the possible downsides of using some means to ends rather than others (p.76).

Closely related to the ends/means tests, the theme of the professionalism of policepersons, prosecutors, attorneys, judges, and prison guards runs through [*843] the book. The author rightly emphasizes that, even though professionalization contributes to professionalism, the latter encompasses more than the former because it implies moral considerations in the performance of one’s job. In particular, professionalism in Kleinig’s view implies that one answer to who should set the boundaries of authority is “one self” (see, e.g., p.173). Importantly, this does not mean that the author is oblivious to institutional incentives that should be set to promote the right behaviors and to the circumstances in which particular cases take place. From a political science point of view, I found this combination of institutional and contextual analysis with the discussion of ethical dilemmas faced by actors in the criminal justice system – in particular policemen and prosecutors – to be the most engaging aspect of the book.

For instance, while we generally consider deception normally unacceptable, the police commonly use deceptive tactics in their criminal investigations – such as undercover policepersons, hidden surveillance devices, or unmarked police cars. Thus, the institutional design should set the right incentives for prosecutors and judges to ensure that in using those tactics the police do not overstepped the boundaries of their authority. Institutional links between police, prosecutors, and judges vary cross nationally, and Kleinig’s book provides a useful framework to evaluate the ethical dilemmas that are more likely to emerge in some criminal justice systems than in others. In civil law systems, where the judge plays a crucial role in the investigative phase, serving as an effective check on the abuse of deceptive tactics will be more difficult. Interestingly, the circumstances of each particular case also matter: judges allow greater police discretion in the use of deceptive tactics at the investigatory than at the trial phase. During trial, the use of testimonial deception is more damaging to social trust of courts and, as Kleinig notes, it also undermines the monitoring capacity of the court during the investigative phase (p.109).

While Kleinig acknowledges and discusses at length the strategies and dilemmas that police and prosecutors face, he does less so with judges who are also influenced and play with strategies that raise ethical concerns. For instance, vote trading in collegial courts – e.g., a judge voting contrary to her views in one case in order to get her colleague’s vote in another case – raise interesting ethical dilemmas that could be analyzed using the means/ends test proposed by the author. Of course, the role of the judge(s) in criminal cases tends to be stronger in systems other than the United States, and perhaps strongest in the civil law systems, but the practice merits an ethical evaluation. This can also occur with certain relations between judges and litigants in some cases, a topic briefly mentioned by Kleinig, which may cross the boundaries of professionalism – e.g., when powerful businessmen contact judges with whom they have personal relations pending the decision on a case that may affect the interests of the former.

In addition to more attention to judges, future editions of the book would benefit from more systematic comparisons between the Unites States criminal justice system and the other common law countries that are mentioned, the [*844] United Kingdom, Australia, and Canada. Furthermore, the inclusion of civil law countries would be helpful to appreciate a fuller range of angles of the ethical dilemmas faced by actors in criminal cases. As Kleinig briefly notes here and there, some of the dilemmas are more acute, or rather different, in transitional societies. For instance, Kleinig discusses the dilemma created by jury nullification in cases where police officers patently guilty of using excessive force are exonerated (p.181). This analysis can be enriched by looking at cases where police abuse takes place in contexts of profound social inequality, an overwhelming public support for “iron fist” actions, and different institutional relations between police, prosecutors, and judges (see Brinks 2008).

In sum, this book is an interesting and easy to read introduction to the ethical dilemmas prompted by the criminal justice system that is likely to generate vivid discussions in the classroom. The tension between security and liberty recently emphasized by the “war on terror,” as well as the security concerns that an increasing number of societies face around the world, make it also a timely contribution. In particular, the book can be an excellent complement in a course on judicial politics and judicial institutions that usually do not consider, or barely, ethical issues regarding the behavior of actors who populate the institutions of the justice system.

REFERENCES:
Brinks, Daniel. 2008. THE JUDICIAL RESPONSE TO KILLINGS IN LATIN AMERICA: INEQUALITY AND THE RULE OF LAW. New York: Cambridge University Press.

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© Copyright 2008 by the author, Julio Rios-Figueroa.

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MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS

by Vivienne H. Harpwood. New York: Routledge-Cavendish, 2007. 240pp. Cloth. $170.00. ISBN: 9780415428071. Paper. $53.95. ISBN: 9780415428095.

Reviewed by Christopher A. Riddle, Department of Philosophy, Queen’s University, Canada. E-mail: 9car [at] queensu [dot] ca.

pp.838-841

Vivienne Harpwood’s MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS offers a thorough examination of the rising incidence of clinical negligence claims. Harpwood questions, in light of recent trends, whether there is in fact, a litigation crisis in healthcare. MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS attempts to “put the debate about the so-called compensation culture on a sounder statistical, and hence, epistemological basis” (p.xiii). At its heart, MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS argues that the current Governmental claims that are reluctant to acknowledge, or are skeptical of the existence of a compensation culture are “sadly, possibly deliberately, short of the mark in the healthcare context” (p.xiii). Harpwood is fair in her treatment of these questions, and often offers thorough support through both quantitative as well as qualitative analysis.

Harpwood’s introductory chapter presents the reader with a thorough understanding of the figures and trends surrounding clinical negligence claims. She then proceeds to examine the “myth” of the compensation culture and asks us who is to blame for the rise in incidents of malpractice, the role the media plays in such a culture, as well as the status doctors hold in contemporary UK culture. MEDICINE, MALPRACTICE, and MISAPPREHENSIONS ends with Harpwood’s attempt to “treat the affliction.” It is here she presents novel ideas and suggestions on the role of the courts, government intervention, as well as legal reform.

The first chapter, “Data, Accuracy, Compensation, and Error: What Should We Believe?” serves as an introduction to the statistical trends in clinical negligence claims. It examines the information available about the number of claims and errors that occur in healthcare. Harpwood proceeds by examining what these claims and errors cost the public, and ultimately, concludes that there is almost certainly what she refers to as “a culture of under-compensation” (p.xiv). This conclusion is not expressed without a fair amount of reluctance however. Harpwood navigates the reader through a maze of contradictory data and often stops to highlight briefly why she believes such discrepancies exist.

While this chapter serves as an excellent introduction to the complexities in understanding malpractice claims in the UK, it does have at least one shortcoming. MEDICINE, MALPRACTICE, AND MISAPPREHENSION is, by and large, [*839] written in a style that everyone can enjoy. It is clear, concise, and often speaks to the reader in a casual style, demystifying complex issues and figures. Harpwood’s first chapter however, focuses on quantitative analysis more than the rest of the book, and is perhaps overly thorough. She presents the reader with a tremendous amount of data, and I suspect, it will serve to overwhelm some. Tom Baker’s THE MEDICAL MALPRACTICE MYTH (2005) presents similar trends within the American context in a much more accessible style. What THE MEDICAL MALPRACTICE MYTH lacked in thoroughness, it made up through developing greater interest and lasting knowledge. I fear Harpwood has presented too much data to make a lasting impression in Chapter One, and as a result, could alienate some readers.

That said, providing too much data is hardly a complaint with which those engulfed in this debate would concern themselves. The more casual reader may gravitate more heavily towards Baker’s THE MEDICAL MALPRACTICE MYTH or perhaps William M. Sage and Rogan Kersh’s MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM (2006).

The second chapter provides the reader with possible causes of the increase in clinical negligence claims. It is here Harpwood examines such phenomena as the impact of legal advertising, the rise of medical consumerism, as well as the new psychology of the doctor-patient relationship. Perhaps the most interesting section of this chapter is the timeline Harpwood provides us, outlining key events since 1984. She then associates these events to the number of claims reported in each corresponding year.

Harpwood then moves on to examine the potential reality of a compensation culture in the UK. In the third chapter, Harpwood focuses on the gap between myth and reality within the perceived contemporary culture of compensation, ending with a harsh critique of the government and other organizations that may “have an interest in promoting the idea that too many people, even those who deserve to be compensated, are making claims” (p.104).

The fourth chapter examines the role and influence of the media in informing the UK public of developments and incidents in healthcare litigation. Here Harpwood assesses how medical stories are reported, as well as the slant the media gives to accounts of clinical negligence. She notes how many of the reported errors or claims concern high awards of money to ensure the headlines are attention grabbing. However, despite this claim, Harpwood does present a well-balanced critique of the media and dedicates a good portion of this chapter to many examples of responsible media reporting. Ultimately, Harpwood does not present the reader with a strong conclusion, but throughout the chapter discusses many criticisms of media coverage in the healthcare context. These criticisms include, but are not limited to, the views of healthcare professionals, politicians, and lawyers.

Next, Harpwood attempts to draw some conclusions regarding how doctors are conceptualized in popular culture. “Over-paid, Out of Control, and Under-Regulated” examines how doctors are [*840] often depicted as over-regulated, out of control, practicing under pressure, and acting defensively. Again, Harpwood presents a well-balanced examination of the facts so as to ensure she is not perpetuating the myths she is attempting to demystify. For example, even though doctors in the UK earn well above their European counterparts, British doctors are also expected to achieve goals and meet Government targets and standards in a manner that represents significant departure from the remainder of Europe.

The primary shortcoming of this chapter is the overly-brief treatment of defensive medicine. Harpwood cites literature supporting the view that doctors practice defensively (meaning, they carry out procedures and treatments that are not clinically necessary, but because these measures are likely to prevent a legal claim of negligence). While she acknowledges the distinction between defensive medicine and risk management, Harpwood fails to thoroughly examine difficulties with defensive medicine arguments, as well as the positive and negative aspects of the practice.

Sandeep Jauhar (2008) recently penned an article for the NEW YORK TIMES addressing, amongst other topics, the reluctance of insurance companies to support what was perceived to be unnecessary tests or medication. He argues that practicing medicine was more difficult as a result of insurers “handcuffing” a selected course of treatment. He claims that insurance companies sometimes have more power over a patient’s course of treatment than the patient’s own doctor.

Additionally, despite the fact that most doctors admit to practicing defensive medicine, a postal questionnaire conducted in 1995 by Nicholas Summerton (1995) finds numerous positive outcomes of defensive medical practice. Some of these positive outcomes are more detailed note taking and explanation of procedures to patients, development of audit in practice, and increased patient satisfaction. Surely these outcomes are not of similar weight as many of the negative ones, but I believe that nevertheless, they deserve attention.

Finally, the sixth chapter concludes with Harpwood’s recommendations to progress to a better understanding of many of the misapprehensions about error and negligence claims in healthcare. These suggestions include improving statistical evidence, changing the culture, and developing the concept of primary liability, to name a few. Many of these suggestions are supported through conceptualization in previous chapters, but nevertheless, I believe the reader would benefit from more attention to these suggestions. Many of the suggestions are presented clearly and concisely, but some are relatively unsupported.

As a whole, Harpwood’s contribution is a large one. MEDICINE, MALPRACTICE, AND MISAPPREHENSIONS is a thorough examination of many of the nuances surrounding the contemporary culture of compensation in the UK. I suspect this monograph will be of primary interest to those working in healthcare litigation, it but would also benefit those interested in the politics of healthcare and bioethics. [*841]

REFERENCES:
Baker, Tom. 2005. THE MEDICAL MALPRACTICE MYTH. Chicago: The University of Chicago Press.

Jauhar, Sandeep. 2008. “Eyes Bloodshot, Doctors Vent Their Discontent.” July 18 2008 THE NEW YORK TIMES.

Sage, William M. and Rogan Kersh (eds.). 2006. MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM. New York: Cambridge University Press.

Summerton, Nicholas. 1995. “Positive and Negative Factors in Defensive Medicine: A Questionnaire Study of General Practitioners.” 310 BRITISH MEDICAL JOURNAL 27-29.

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© Copyright 2008 by the author, Christopher A. Riddle.

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ON HUMAN RIGHTS

by James Griffin. New York/Oxford: Oxford University Press, 2008. 360pp. Cloth. £25.00/$50.00. ISBN: 9780199238781.

Reviewed by Rory O’Connell, Senior Lecturer, Human Rights Centre, Law School, Queen’s University of Belfast. Email: r.oconnell [at] qub.ac.uk.

pp.834-837

This books makes a useful contribution to the theory of human rights, and importantly makes links between philosophical theory and the law of human rights, whether this be in international law or at the constitutional level. It is written in an engaging, even forceful style, and is very carefully structured, and generally extremely clear. A certain basic familiarity with some terms in moral and political philosophy is presupposed (e.g. deontology, teleology).

The book is an exercise in moral philosophy, not specifically political philosophy, and certainly not human rights law. James Griffin regularly makes the point that there is a difference between the list of rights offered by a theory in moral philosophy, and the list of human rights found in law (p.191). Nor does he insist that there should be an exact match between the two: society may well have good reason to make something a legal right and even insert it in a human rights document. For instance, Griffin prefers the term “legal group rights” to human group rights, seeing no difficulty with society deciding to grant rights in law to groups, though believing group rights are not properly human rights (p.276). The moral philosophy of human rights remains relevant nevertheless to the practice of human rights law; in particular it becomes relevant when we need (or courts need) to decide on the content of rights (p.206; see also O’Connell 2005).

Griffin believes that the most philosophically defensible notion of human rights is one grounded in “personhood,” the status of a person as a normative agent, the possibility of “deliberating, assessing, choosing and acting to make what we see as a good life for ourselves” (p.32). Griffin distinguishes this approach to an account of human rights from one based on the language of human needs (p.88). This basic ground of personhood is supplemented by a second one, practicalities, where this refers not to particularly concrete exigencies, but to general information about human nature, society, and knowledge of the type of being humans are (p.38).

Griffin limits himself to these two grounds; in particular he rejects Dworkin’s notion that equality is a ground for human rights (pp.39-44). This is not because equality is unimportant; on the contrary, it is extremely important. One of the major themes in this book is that the concept of human rights does not subsume every other important category in moral theory: there are important issues of fairness, justice and equality that should not be reduced to questions of human rights (p.43). This point, that there is more to moral theory than human rights, seems right. However, I am not entirely [*835] convinced that equality does not deserve a more exalted place in Griffin’s analysis. If we look at international human rights texts, these tend to stress equality and non-discrimination, usually providing that all rights should be enjoyed without discrimination, and that people have a right to equality (e.g. Universal Declaration of Human Rights, 1948, Article 2 and Article 7; International Covenant on Civil and Political Rights, 1966, Article 2 and Article 26). Further Griffin agrees that equality is important to human rights and that certain forms of discrimination violate human rights (pp.42-43).

These two grounds of human rights (personhood and practicalities) are fleshed out in three higher order rights: autonomy, liberty and “minimum provision of resources and capabilities” (p.33). These three higher order rights are then used to specify more specific rights, which include many but not all of the rights that figure in international human rights texts. Most importantly these two grounds and three high order rights allow Griffin to address one of his major concerns: the danger in the over-inflation of rights. Autonomy and liberty do not mean being allowed to follow one’s whim (e.g. driving the wrong way down a street because it is more convenient, or failing to wear academic dress when required to do so) or engage in any practice merely because it is enjoyable (e.g. smoking) (p.170). Rather they expressly refer to the autonomy and liberty needed to pursue a life as a normative agent, making decisions about how to lead a worthwhile life. Similarly, the higher level right of minimum provision, later called welfare (p.176), is a right to the minimum resources needed to live a life as a normative agent, but does not include the right to the “highest attainable standard of physical and mental health” (p.208, referring to Article 12 of the International Covenant on Economic, Social and Cultural Rights).

That this book is an exercise in moral philosophy, and not political philosophy or human rights theory, has an interesting consequence. Human rights and constitutional law tend to assume that human rights obligations fall on the state or other public authorities, though there are important exceptions in the constitutional law of Ireland, South Africa (Article 8.2 of the Constitution) and Namibia (Article 5 of the Constitution). In recent decades, lawyers have sought to deal with human rights violations by non-state actors. This they do frequently indirectly, by imposing duties on the state to prevent non-state actors from violating human rights. As an exercise in moral philosophy, this is not such a concern for Griffin. His theory can be applied to impose obligations on all persons, or at least negative duties of non-interference.

Where it becomes interesting is where one deals with what Griffin calls welfare rights (social and economic rights) and in particular the positive obligations commonly associated with welfare rights (though Griffin does not believe in a sharp distinction between rights having positive and negative obligations). Griffin believes these positive obligations can be kept within manageable limits by restricting the right’s content to that required by his theory of rights, the personhood account, and also allowing for the reasonable capacities and motivations of human [*836] beings (pp.98-101, 103). Griffin also addresses an objection to the universality of such rights. The objection is that these rights are not universal as they are owed only to some people and only by a particular duty bearer, their national community (p.102). Griffin solves this problem by introducing the notion of ability (p.102). The obligation to assist or help another, though a general obligation, depends on identifying someone able to help. In most cases this will be a national government, but if this is not possible, then positive obligations may shift to those better able to help, such as richer foreign states or trans-national corporations (pp.104-107).

The concluding chapters of the book apply the personhood account of human rights to some specific questions in human rights – the right to life, the right to privacy, the relationship between human rights and democracy and group rights. Griffin appears to be unflinching in following where this autonomy centred account leads him: “If one has a right to anything, one has a right to death” (p.221) (earlier Griffin concludes that infants have no human rights, though there are no doubt good reasons to protect them, p.91). This though needs to be qualified. Griffin also believes that practicalities have to be addressed and that most rights are subject to qualifications, so “The right to suicide seems especially vulnerable to being overridden” (p.222). Similarly when discussing privacy, democracy and group rights, Griffin is happy to challenge the prevailing language and jurisprudence in human rights law. He believes the right to privacy has been overextended, to include issues better treated as matters of liberty (e.g., sexual freedom, abortion, and so on). There is no good argument for group rights, at least as human rights, apart from those rights that are reducible to individual rights. This is not because Griffin is opposed to the types of claims groups make, but he believes we need language other than that of human rights to deal with them (e.g., rectificatory justice for indigenous peoples dispossessed during colonialization).

These are certainly thoughtful contributions to human rights theory, and Griffin does an excellent job of connecting theory to concrete human rights issues. I am not absolutely convinced by his description of his project as a “bottom up” one taking as its starting point how rights are discussed by politicians, activists, and the like, rather than a top-down approach that moves from abstract principles to concrete implementation (p.29). The political struggles from which human rights emerge (Klug 2005), and which would surely be central to any bottom up approach, take second place to Griffin’s project of understanding personhood as autonomous agency. In the actual struggle for law’s interpretation in the courts and beyond, there is a clear reason why rights are interpreted expansively. Terms like the right to privacy or a private life are interpreted to include matters that might be thought to fall under a right to health, or indeed might be thought to be important matters of environmental policy rather than human rights at all (on Griffin’s approach). The right to respect for a private and family life, and home in the European Convention on Human Rights has been interpreted to give rise to protection in relation to some environmental issues (e.g. pollution, noise pollution, and the like) in cases like GUERRA and [*837] HATTON. If these interests are not adequately protected elsewhere in the law, then this right can be interpreted to protect them. Similarly, Griffin’s suggestion that questions of sexual freedom should be dealt with as liberty and not privacy rights, though convincing philosophically, encounters a problem in Article 5 of the European Convention on Human Rights, or even the Fifth Amendment to the US Constitution. In these texts, the notion of “liberty” seems a narrower one than can be made to deal with sexual freedom. For this reason, both the European Court of Human Rights and the US Supreme Court have recourse to the right to privacy.

Griffin is concerned to protect an austere (though by no means impoverished) theory of rights, a view that sees human rights as the minimum level of protection needed to protect normative human agency. Human rights form a floor beneath which no society should fall. In setting this as his agenda, Griffin is standing against a particular trend in modern human rights law which sees human rights not as minimum entitlements, but as goals that should be progressively better realised. Griffin’s is a view of human rights that could be recommended to constitutional courts, but probably not to the many bodies whose job is to protect, promote and fulfill human rights, such as human rights commissions or even politicians. This more expansive view of human rights would appear to raise the question of the difference (if any) between human rights and politics more generally. In contrast, Griffin’s book offers a clear vision for demarcating human rights from other moral and political goals.

REFERENCES:
Klug, Francesca. 2005. “Human Rights: Above Politics or a Creature of Politics?” 33 (1) POLICY AND POLITICS 3-14.

O’Connell, Rory. 2005. “Do We Need Unicorns When We Have Law?” 18 (4) RATIO JURIS 484-503.

CASE REFERENCES:
GUERRA v. ITALY (1998) 26 European Human Rights Reports 357.

HATTON v. UNITED KINGDOM (2003) 37 E.H.R.R. 611.

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© Copyright 2008 by the author, Rory O’Connell.

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HONOR BOUND: INSIDE THE GUANTANAMO TRIALS

by Kyndra Miller Rotunda. Durham: Carolina Academic Press, 2008. 282pp. Hardback. $29.95. ISBN: 9781594605123.

Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov.

pp.830-833

US Army Captain (now Major) Kyndra Miller Rotunda served several tours as a Judge Advocate General officer, including one as a prosecutor at the Office of Military Commissions and one in Guantanamo Bay. She worked with the Criminal Investigation Task Force (CITF) to assemble evidence against suspected terrorists. Those assignments offered a good opportunity to understand the military commissions underway at “Gitmo” and correct misconceptions about the procedures. Certainly there were many stereotypes advanced by both sides, with the government regularly defending the commissions as “fair” and “open” and critics dismissing them as a “kangaroo court.”

For readers hoping for an even-handed assessment, the initial appearance is not promising. First there is the cover: a hooded Islamic Jihadist holding a Koran in one hand and a grenade in the other. The Foreword by Rear Admiral [Ret.] James J. Carey sets an unfortunate tone. His opening paragraph describes the detainees as “committed to killing all Americans.” All of the detainees, including hundreds who the administration concluded had been wrongly apprehended and, over time, set free? His remark is similar to one by Defense Secretary Donald Rumsfeld, who called the detainees at the naval base as “among the most dangerous, best trained, vicious killers on the face of the earth.” To White House spokesman Ari Fleischer they were the “worst of the worst.” Carey ends the Foreword with this observation: “HONOR BOUND makes it clear to me that the words spoken long ago by another American Patriot are as true today as is this book which echoes them in this, the twenty-first century – ‘We must all hang together, or assuredly we shall all hang separatedly.’ Or be beheaded.”

Rotunda begins the book by arguing that the United States has “over-lawyered this war.” She identifies four mistakes by the government: “paroling known terrorists back to the battlefield; changing the trial rules in the middle of trial; imposing rules that made it difficult for prosecutors to respond to defense counsel claims that deserved a response; and giving detainees more rights than the Geneva Conventions require.”

On the first point, there have been reports that some detainees who were released from the naval base returned to the battlefield and participated in terrorist activities. No one can tell if those individuals were terrorists when they arrived at the naval base or became terrorists as a result of abusive interrogations and treatment. Point two: It is true that trial procedures underwent many changes, to the frustration of both prosecutors and defense counsel. “Evolving rules were confusing, [*831] inconsistent, inefficient, and unfair” (p. 211).

Regarding point three, why was it difficult for prosecutors to respond to criticism? Defense lawyers “tried their case in the media,” and the government was somehow unable, or unwilling, to “set the record straight” (p.197). The executive branch is seldom shy about defending its actions and usually quite capable of giving its side of the story. What were the inhibitions at Guantanamo? She writes: “It is unclear why DoD often opted not to respond to criticism brought forth in the media. The DoD acted like a punching bag – receiving punches but putting up no defense” (p.200). She says the Defense Department had 23 public affairs officers assigned to Guantanamo Bay. The Pentagon is quite skilled in justifying its policies and programs and recruiting people from the private sector to join in the defense. The book never explains what constraints existed, if any, on the public affairs officers, other than perhaps confusion and uncertainty on the part of the department as to how to respond. She praises Colonel Morris Davis, chief prosecutor in the fall of 2000, for publicly responding to criticism (pp.201-203). What prevented other executive officials from doing what Davis did?

Finally, there was a reason why detainees at Gitmo were given more rights than required by Geneva. They needed them. Unlike prisoners of war, who are released after a war and do not face trial, the detainees were subject to prosecution and possibly the death sentence. Rotunda asks: “in a war our enemies call a ‘religious war,’ where radical Islamists use their religion to justify brutally beheading innocent civilians, is it smart to exceed the Geneva Conventions?” (p.61). She does not provide a precise answer, but detainees who look forward to punishment and possibly execution are not prisoners of war and need rights beyond those listed in Geneva.

Rotunda compares the conditions at Gitmo with a prison in Ohio, where inmates are deprived of environmental or sensory stimuli and most human contact (p.55). The difference, of course, is that the inmates in Ohio were charged, tried, given counsel, had access to procedural safeguards, were convicted, sentenced, and could appeal. Detainees at Gitmo were held year after year without formal charges or trial. Rotunda concludes: “Nobody objects to the way Ohio holds these US prisoners. But, for some reason, many people demand better prison conditions for suspected terrorists in Gitmo.” Suspected terrorists, whether US citizens or aliens, need to know the basis for the suspicions and have an opportunity to confront evidence against them. Prisoners in Ohio had the full protection of Sixth Amendment procedural rights. Detainees at Gitmo, not subject to criminal prosecution in civil court, had no such rights.

In the passage just cited, Rotunda refers to the detainees as “suspected terrorists.” Elsewhere she omits the qualifier, as when she speaks of sharing the island “with over 800 detained terrorist enemies” (p.59). Some detainees were terrorists, some were enemies, and some were innocently swept up on the battlefield or handed over to US authorities in exchange for payment, as part of a bounty system. Lt. Col. Diane [*832] Beaver, Staff Judge Advocate at Gitmo, at one point told Rotunda that the detainees were not POWs: “These people are terrorists” (p.67). They were suspected terrorists. Often the suspicions were found to be baseless. The whole purpose of the Combatant Status Review Tribunals (CSRTs) was to determine who was and was not an enemy combatant.

Some sections of the book explore the question of interrogation techniques. An interrogator for the Office of Naval Intelligence told Rotunda that building rapport with a detainee is the best way to obtain information. “If they like you, they’ll talk.” Other interrogators gave similar advice to Rotunda. Sharing tea with detainees, bringing sandwiches from Subway or french fries from McDonalds was effective. “Gentle interrogation approaches were the most effective” (p.81). A CITF agent and an FBI agent, both of them Muslim, “knew how to coax the truth from detainees’ lips. One word captures their effective, secret ingredient to successful interrogations – patience” (p.123). These accounts undermine the administration’s case for “harsh” interrogation methods, including waterboarding.

Chaplain James Yee, a Chinese-American West Point graduate who had studied Arabic and Islam, was assigned to Guantanamo. He was arrested, suspected of espionage, but those charges were dropped. Rotunda says he left the naval base with “sensitive documents” and asks: “Was Yee part of a greater plan to target US interrogators and their families? Was he attempting to aid the enemy – his Muslim brothers? If not, why would Yee leave Guantanmo Bay with this information? And what exactly were the documents? We don’t know because the government hasn’t told us” (pp.78-79). Why raise those questions about Yee if the facts are not known?

Rotunda reflects on her experience with the Office of Military Commissions. “I believe then, as I do now, that bringing detainees to justice is the right thing to do” (p.204). But she says “one important question” has been overlooked: “whether the government should proceed with military tribunals during a time of war, at all” (emphasis in original). The government “should consider waiting until the war is over. So long as we are at war with terrorists, perhaps the US has more to lose than gain by trying detainees in Guantanamo Bay.” Fighting a war “and prosecuting war criminals simply doesn’t work. Ordinarily we would prosecute war criminals after – not during – a war.” If it is the right thing to bring detainees “to justice,” why wait until the war on terrorism is over, if it ever is? Why are detainees at Gitmo “war criminals”? Rotunda concedes: “We have no idea when the war could end.” “Just like every other war, this one will end. We do not know when, and we cannot predict how, but eventually US troops will come home and active hostilities will end” (p.208). If military operations in Iraq and Afghanistan were to end and US troops returned home, the war on terrorism would not necessarily end.

Every book suffers from typing errors. This has more than its share. Rotunda recalls that in a training exercise a soldier pointed his gun at her: “I was in his sites” (sights). She refers to “Charles Garner” (Graner) and “Neil Kaytal” [*833] (Neal Katyal). Thousands “headed” (heeded) a warning. A decision was handed down by Justice “Stephens” (Stevens). “Chief Justice Robertson” (Roberts) made a remark about judges calling balls and strikes. A defendant was “Salem Ahmed Salem Hamden” (Salim Ahmed Hamdan).

Writing styles vary, with many authors deciding to include personal details in an effort to make a book more appealing. Here are some examples. “I pulled my Mazda Miata around the corner, and into the parking garage.” “I threw my stick behind a rock, and he picked at a callous on his thumb.” She “popped a lime-flavored Skittle” in her mouth. “The water trickled down my tired face” as she “lathered my palms with the Dial soap bar.” “The air conditioner on our vehicle was on the fritz, yet again.” “I lugged my bags from the cab.” “I lugged my bags out the door.” Soldiers disappeared into “the smoke filled bar.” The sun “peaked through the curtains.” Early one morning “I was brushing my teeth over the sink.” She took “a fistful of M&Ms from the M&M dispenser on our team leader’s desk.” One colleague was “tapping ashes from her cigarette.”

Other passages attempt to create a climate: “The cool air nettled my lungs, but the fall aroma always smelled so good that it was worth the sting.” “For November, it was a warm afternoon in Washington, D.C. I decided not to take my coat.” “I took off my beret and put it in my handbag as I stepped into the elevator, and pressed the button for the floor where my office was located.” “My story ends, as it began five years earlier, on a sunny September day. I parked my car in the faculty parking lot at the George Mason University Law School, and flung my bag over my shoulder as I walked toward the building.”

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© Copyright 2008 by the author, Louis Fisher.

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THE PREEMINENCE OF POLITICS: EXECUTIVE ORDERS FROM EISENHOWER TO CLINTON

by Ricardo Jose Pereira Rodrigues. New York: LFB Scholarly Publishing, 2007. 318pp. $75.00. ISBN: 9781593322120.

Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: davidddehnel [at] augustana.edu.

pp.826-829

According to Richard Neustadt’s classic study, the essence of presidential power is the power to persuade, not command. Yet, through executive orders and other vehicles, presidents often adopt the posture of command. In THE PREEMINENCE OF POLITICS, Ricardo Jose Pereira Rodrigues argues that in practice executive orders confirm Neustadt’s thesis. Executive orders are shaped by the president’s political environment, and their effectiveness is constrained by actors inside and outside the government. Rodrigues concludes that the active use of executive orders by modern presidents does not signify a dangerous expansion of executive power.

In this study, Rodrigues is concerned with political checks on presidential power, and, for the most part, sets aside legal considerations. Accordingly, the interaction of law and politics is not much explored in this book, rendering the study less interesting to scholars of public law than, for example, Phillip Cooper’s excellent BY ORDER OF THE PRESIDENT. Rodrigues implicitly follows Neustadt, not only by focusing on persuasion versus command, but also by downplaying legal aspects the separation of powers. In the Neustadt’s often quoted formulation, the structure of American government is one of “separated institutions sharing powers” (p.29). For Rodrigues, it does not matter whether an executive order has any foundation in statutory or constitutional law, the president is simply exercising power (executive or legislative) that is shared with Congress. As I will argue below, this approach necessitates that the book’s upbeat conclusions be qualified.

Rodrigues draws his conclusions from a qualitative study of executive orders in three policy areas across nine presidencies. Following earlier studies, Rodrigues defines executive orders as formal, published statements directed to members of the executive branch (p.14). He distinguishes between policy-oriented and housekeeping orders. The latter are described as “orders which deal with personnel matters and with matters that have to do with the mechanics of running the federal administration, such as building maintenance, etc.” (p.15). Setting aside the housekeeping orders, Rodrigues examines the policy-oriented orders relating to equal employment opportunity, central control of regulatory authority, and environmental policy. The presidencies of Eisenhower, Kennedy and Johnson are only represented in the analysis of employment opportunity. The discussions of regulatory review and environmental policy begin with the Nixon presidency.

Rodrigues’ contention that the use of executive orders is constrained by forces internal and external to the government [*827] is explored through the systematic application of hypotheses relating to the congressional environment, the public opinion environment, and the make-up of the president’s own supporting coalition. For each of the three policy areas, all of the policy-oriented executive orders are scored in relation to each of the six hypotheses specified in the study. These results are summarized in tables. Although the tabular data shapes the general conclusions, the core of the study is a qualitative analysis of the historical context of each order, based on a survey of the secondary literature.

With respect to Congress, Rodrigues considers three factors: party control, internal division over the issue, and congressional “intent.” Prior studies had suggested that presidents might resort to the use of executive orders when facing a Congress controlled by the opposing party (divided government), in order to enact unilaterally what they cannot accomplish through legislation. Rodrigues finds little support for this in his study. Instead, he contends that presidents tend to take the initiative when congress is internally divided on an issue, regardless of party control. If Congress is unified, the president generally does not attempt to issue orders that run contrary to the will of the body. In general, Rodrigues finds that while presidents do not use executive orders to govern in defiance of Congress, internal division in the legislature does provide an opportunity for presidential policy making.

With respect to constraints on the President from outside the government, Rodrigues explores the effect of three factors: public opinion, presidential prestige, and the make-up of the supporting coalition. Rodrigues finds that presidents usually issue orders in pursuit of policies that are supported by the public. This he sees as further assurance that presidents do not act as imperious free agents. Rodrigues doubts that presidential prestige is an important factor in the decision to issue an order. Although orders tended to be issued by presidents with high approval ratings, Rodrigues finds little evidence in his qualitative analysis to support the significance of high prestige as a causal factor. Finally, Rodrigues finds that, at least in some cases, presidents were motivated by sensitivity to the interests of important groups in their support coalition. Overall, Rodrigues sees presidents as responding to, and being constrained by, democratic political forces.

In the area of equal employment opportunity, the importance of the government as an employer and contractor allows presidents to initiate important policies using their supervisory authority over the executive branch. This has been the subject of a series of executive orders beginning with Eisenhower. Rodrigues argues that internal divisions in Congress on race issues, especially among the Democrats, have created political space for presidential initiative. On the other hand, he finds that presidents have been responsive to shifts in public opinion and the views of members of their support coalitions. On affirmative action, for example, Democratic presidents must balance the demands from minority groups in their support coalition against public skepticism. Ronald Reagan’s opposition to affirmative action was in tune with public opinion, but his attack [*828] was tempered because of support for it from corporate employers. The overall result, according to Rodrigues, is that policy change by executive order in this area has been incremental.

While Rodrigues’ overall argument on employment opportunity is persuasive, there are some weaknesses in the analysis. Richard Nixon is credited with introducing the strong form of affirmative action, including the use of numerical targets (a.k.a quotas). These policies, however, were initiated at the agency level, and Nixon’s support for them was informal. Given that most of the book sticks to executive orders, the discussion of Nixon’s role could be clearer. The discussion of Reagan, Bush Sr. and Clinton is plagued by much confusion over the term affirmative action. At times Rodrigues uses the term too broadly, applying it to equal employment policies generally. The management of claims of bias by the Equal Employment Opportunity Commission (p.76), the standard of proof in employment discrimination cases (p.92), and the inclusion of sexual orientation in anti-discrimination rules (p.98) are not “affirmative action” policies.

Given the breadth of environmental policy, it is not surprising that the strength of Rodrigues’ study lies in the rich details he describes rather than the generalizations he attempts to make. Throughout the book, Rodrigues treats internal division in Congress as a key variable, with such division creating the opportunity for presidential initiative. Ronald Reagan is seen as taking advantage of congressional division to launch anti-environmental initiatives in his first term, while Bill Clinton is depicted as exploiting division within the Republican controlled Congress for the opposite purpose during his second term. Yet, the empirical indicators of “internal division” used by Rodrigues are admittedly subjective (p.19), and it is difficult to define when it exists and when it does not. The blow by blow accounts of specific orders do show presidents taking advantage of their political opportunities, but the causal analysis runs into a danger of circularity. Successful presidents are seen as operating in a context of congressional division, while less successful or more cautious ones are deemed to be up against an undivided Congress.

The section on regulatory review is a careful study of presidential attempts, beginning with Richard Nixon, to establish centralized control over rule making by federal agencies. Rodrigues’ inattention to legal nomenclature creates some analytical confusion here as elsewhere. He uses the phrase “congressional intent” to signify the current policy preferences of the legislative branch, such that a president acts contrary to congressional intent if an executive order is in opposition to the preferences of a majority in Congress (p.18). Orders on regulatory review are said by Rodrigues to satisfy congressional intent if they match the ideological disposition of the current Congress towards regulatory policy. For scholars of law and politics, an order runs contrary to congressional intent when it violates the spirit of the legislation upon which it purports to be based. Intent relates to the purpose of congressional action, not merely to the preferences of its members. Agency regulation itself raises both legal and political questions about the authority to [*829] make law, and centralized review of proposed regulations by agents of the president adds another layer of complexity. Legislative intent and congressional preference should be distinguished.

The approach taken in THE PREEMINENCE OF POLITICS makes the book of tangential interest to public law scholars because legal factors are generally ignored. In particular, Rodrigeus’ upbeat assessment of executive orders does not account for their potential corrosive impact on the rule of law. Rodrigues does not examine the statutory or constitutional foundation of the orders he studies, or the lack thereof. He “makes no distinction between executive orders conceived as a means to implement a statute and executive orders designed to set unilateral policies” (p.15). Rodrigues’ study is limited to the policy substance of the orders, the political calculations of the president, and the response of other political actors to the order. Accordingly, his conclusion that the use of executive orders presents no serious threat to the balance of the political system does not account for their impact on legal institutions. In his important study of executive orders and other forms of presidential direct action, Philip Cooper (2002) argues that, when Presidents attempt to achieve their goals through actions of dubious legality, they undermine the formal and informal structures that bring coherence and legitimacy to public policy.

While it is certainly true that modern practice has made it is difficult to draw lines between legislative and executive power, political scientists should not yet abandon the possibility of retaining some coherence in the structure of governmental functions. It is reassuring to know, as Rodrigues concludes, that the president is not functioning as an unconstrained dictator, but the possible corrosive effects of unilateral presidential action on the rule of law remain a concern.

REFERENCES:
Cooper, Phillip. 2002. BY ORDER OF THE PRESIDENT: THE USE AND ABUSE OF EXECUTIVE DIRECT ACTION. Lawrence, Kansas: University Press of Kansas.

Neustadt, Richard. 1990. PRESIDENTIAL POWER AND THE MODERN PRESIDENTS. New York: The Free Press.

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© Copyright 2008 by the author, David Dehnel.

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POWER PLAY: THE BUSH PRESIDENCY AND THE CONSTITUTION

by James P. Pfiffner. Washington: Brookings Institution Press, 2008. 299pp. Cloth $28.95. ISBN: 9780815770442.

Reviewed by Graham G. Dodds, Department of Political Science, Concordia University (Montreal, Canada). Email: gdodds [at] alcor.concordia.ca.

pp.822-825

As the presidency of George W. Bush draws to a close, academics are beginning to debate Bush’s place in history, his impact on the institution of the presidency, and his overall legacy. Of course, the Bush presidency has been controversial not only politically, but also constitutionally. In Power Play, James P. Pfiffner examines Bush’s impact on America’s constitutional order. Pfiffner (University Professor of Public Policy at George Mason University and the author or editor of ten books on the presidency and American government) argues that Bush has not just pushed the limits of executive power but has transgressed them, threatening the very foundations of American government. For Pfiffner, Bush’s actions have challenged and undermined fundamental rights, the balance among the three branches, the possibility of republican government, and even the rule of law.

After a brief overview and introduction in the first chapter, the book proceeds in two parts. Chapters 2-4 are devoted to the theoretical, constitutional, and historical background of executive power, while Chapters 5-8 look at four cases of Bush overreaching: denying habeas corpus, permitting harsh interrogation techniques, engaging in warrantless domestic spying, and using signing statements to alter legislation – or as Pfiffner entitles the chapters – the powers to imprison, to torture, to surveil, and to the ignore the law.

In Chapter Two, Pfiffner considers “The Nature of Executive Power,” particularly how it has been legitimated and constrained. He discusses Machiavelli, Hobbes, Locke, and Montesquieu as sources of the framers’ ideas about executive power. Political theorists may well want more than the thumbnail sketches that Pfiffner offers, but this chapter serves to ground controversies about executive power in western political thought. In Chapter Three, Pfiffner moves from theory to constitutionalism and chronicles “the historical development of individual rights and the rise of Parliament in England” (p.32). The discussion here ventures fairly far afield, as Pfiffner goes all the way back to William the Conqueror, King John, and the 1628 Petition of Right. But the main point of this background is to set forth the various ways that Englishmen wrested power from kings over the years (p.54).

Pfiffner turns to the US Constitution in Chapter Four. He claims that the American founders sought to keep many of the checks on monarchical power that their English forebears had won, so they were careful to limit and check executive authority. Pfiffner mentions the experience of the colonial era and the Articles of Confederation, then recounts some of the history of the constitutional [*823] convention and the framers’ treatment of the presidency and war power. He maintains that the framers had a “distrust” of executive power (p.61) and therefore produced a document the “plain words” and history of which supposedly refute many of the Bush Administration’s claims (p.82).

With all of this background in place, Pfiffner then examines four actions in which the Bush Administration advanced radical claims about executive power. Chapter Five is devoted to Bush’s denial of the “Great Writ” of habeas corpus. Pfiffner traces the history of habeas from Stuart-era England through Lincoln and EX PARTE MILLIGAN to FDR and EX PARTE QUIRIN, then he briefly goes through the judiciary’s rejection of Bush’s actions in RASUL, HAMDI, and HAMDAN. Pfiffner also covers several less well known cases of individuals who were mistakenly imprisoned without legal recourse, as well as the Bush Administration’s policy of rendition, in which suspected terrorists are sent abroad to be tortured by foreign governments.

In Chapter Six, Pfiffner discusses the Bush Administration’s use of extreme interrogation techniques, including torture. He criticizes the legal memos written by John Yoo, David Addington, Alberto Gonzalez, and Jay Bybee that suspended the protections afforded by the Geneva Conventions and paved the way for torture, as well as an executive order that Bush issued in July, 2007 to assert his authority to interpret the application of the Geneva Conventions and to authorize harsh interrogation techniques, such as waterboarding. According to Pfiffner, “this was the first time in history that the decision to torture enemy prisoners was connected to and defended by the president” (129).

Chapter Seven examines Bush’s secret program of domestic spying, in apparent violation of the 1978 Foreign Intelligence Surveillance Act (FISA), which the NEW YORK TIMES revealed in late 2005, despite a Bush Administration request not to do so. Pfiffner presents and rebuts several different Administration arguments about Bush’s policy (p.174), arguing that even if it were necessary, Bush should have gone through Congress rather than unilaterally ignoring existing law.

Pfiffner discusses Bush’s use of signing statements in Chapter Eight. Signing statements accompany the president’s signature of legislation and can be use to interpret creatively or even undercut laws. For example, when Congress acted to ban torture by approving Senator John McCain’s amendment to the Detainee Treatment Act (DTA) of 2005, Bush sought to mitigate its restrictions through a singing statement that suggested the president would not be bound by the new law. Summarizing existing scholarship, Pfiffner notes that historically most signing statements were merely rhetorical, but this began to change under Ronald Reagan, when statements began regularly to make constitutional claims. The Bush Administration has openly tried systematically to use signing statements to carve out more power for the president. Bush has issued 159 signing statements, through which he recorded objections to 1,167 legal provisions (p.203). For Pfiffner, some of Bush’s signing statements amount to “threats to fail to execute the law faithfully” (p.227). As such, they “directly challenge the ability of Congress to constrain executive actions, the nature of [*824] the rule of law in the United States, and the meaning of the separation of powers system” (p.195).

Pfiffner thus covers a lot of ground in this book, from various background considerations about executive power to four cases of alleged overreaching. This is controversial stuff, and Pfiffner’s account invites a number of criticisms, most of which he seems to anticipate. For example, one might ask whether Pfiffner unfairly singles out Bush. After all, other presidents have engaged in some of these actions, too. Pfiffner concedes that during the twentieth century, most presidents have dominated Congress, but he claims that “this domination reached a peak under the presidency of George W. Bush” (p.57). For Pfiffner, Bush simply went much further than his predecessors.

Alternatively, one might charge that Pfiffner’s criticisms are unfairly partisan. But Pfiffner notes that many of the more damning criticisms of Bush’s actions have come from Republicans and even members of the Administration (p.185). Indeed, Attorney General John Ashcroft is presented as a critic of Administration policy in two of Pfiffner’s four cases (habeas and spying). Civil libertarians may scoff at the notion of the author of the Patriot Act being a hero, but Pfiffner’s presentation is fairly even handed.

A related criticism is that perhaps Pfiffner is just being too harsh, or that his charges are overblown or hyperbolic. And Bush does indeed come in for some damning criticism here. For example, Pfiffner claims that Bush has shown “contempt for the other branches of government” (p.244), “Bush claimed that the checks and balances in the Constitution did not bind him” (p.245), and Bush “claimed powers once asserted by kings” (p.2). According to Pfiffner, “He has expanded the constitutional authority of the president in extraordinary ways and has tried to undo constraints that the Constitution places on executive power” (p.229).

But Pfiffner seems to have defenses against the charge of hyperbole. First, he notes that most Americans think of their basic constitutional arrangements as being set in stone and safe, such that they tend not to notice the erosion of the rule of law (p.xi). In other words, maybe few citizens are up for the sort of eternal vigilance necessary to safeguard the system they take for granted, but constitutional transgressions must nevertheless be taken very seriously. Second, for Pfiffner, the real danger of Bush’s actions lies in their value as precedents. He says that “precedents make a difference” (p.242), so that Bush’s actions may serve as “loaded weapons” for future presidents to use (p.12). Indeed, Pfiffner twice quotes Madison in FEDERALIST No. 10: “Enlightened statesmen will not always be at the helm” (pp.127, 192). Therefore, Pfiffner says that Bush’s actions must be challenged and struck down: “If left to stand, these precedents may very well undermine the republican nature of American government” (p.57).

The question of the severity of Pfiffner’s charges may also turn on one’s view of exactly why Bush engaged in the actions that Pfiffner criticizes: did the president do it just for the sake of political expediency, to make what he regarded as good public policy, or to advance a particular conception about presidential power? The first possibility seems far-fetched, as none of these policies has been a political boon to Bush; indeed, [*825] they have contributed to his dramatic unpopularity. Pfiffner touches on the second possibility in admitting that the 9/11 attacks demanded a serious, thorough response and that some of Bush’s actions (excepting torture) might have been effective. He also concedes that Bush was sincere in his belief that he was acting in the nation’s best interests (p.174). As for the third possibility, Pfiffner maintains that the Bush Administration’s actions were part of a conscious, concerted effort to increase the power of the presidency. According to Pfiffner, Bush and Vice President Dick Cheney wanted to recapture presidential prerogatives that Congress had taken away, as they thought that the reaction to the “imperial presidency” after Watergate simply “went too far” (p.3). Insofar as Bush’s actions were part of an effort to advance this principled view of executive power, our assessment of them may turn on what we think about the status quo ante: were Congress’s actions after Nixon excessive or a legitimate reversion to the appropriate state of affairs?

Whether Bush’s actions amount merely to pushing the constitutional envelope or to destroying it altogether, there is the question of what could and should be done about it. And here Pfiffner seems equivocal. One obvious response is to look to the other two branches, and Pfiffner notes that Bush’s actions almost “invite an overreaction by Congress” (p.228), presumably of the sort that Bush and Cheney discern after Watergate. Yet Pfiffner also notes that Congress had been largely ineffective in rebutting Bush and has even acted to legitimate some of Bush’s audacious claims by passing legislation that has “given the patina of law to Bush’s actions” (p.127). Pfiffner seems mainly to want Bush just to admit that he has limits, as if this simple act of self-realization would be enough to safeguard the constitutional system. He says, “For the Constitution to endure, governmental officials must act with restraint and admit that they do not have exclusive power” (p.192). Ideally, the well-functioning of the American polity would be assured by more institutional means and need not rely upon an individual’s inclination to act with restraint, but a presidential concession of limits could be a good place to start.

In sum, POWER PLAY is an accessible account of some the ways in which the Bush Administration has advanced controversial claims about executive power and why their actions are constitutionally dangerous. The book should appeal to scholars of American politics, the presidency, and public law. It is suitable for both undergraduate and graduate students, as well as a general audience.

CASE REFERENCES:
EX PARTE MILLIGAN, 71 U.S. 2 (1866).

EX PARTE QUIRIN, 317 U.S. 1 (1942).

RASUL v. BUSH, 542 U.S. 466 (2004).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).

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© Copyright 2008 by the author, Graham G. Dodds.

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THE POWER OF PRECEDENT

by Michael J. Gerhardt. New York: Oxford University Press, 2008. 352pp. Hardcover. $45.00/£23.99. ISBN: 9780195150506.

Reviewed by Douglas E. Edlin, Department of Political Science, Dickinson College. Email: edlind [at] dickinson.edu.

pp.811-821

Michael Gerhardt’s THE POWER OF PRECEDENT is an impressive achievement. The book is Gerhardt’s effort to “bridge[] the chasm” (p.3) that is all too familiar to readers of the LPBR: the divide between legal scholars who view precedent (and law more generally) as a substantial influence on judicial thought and action and social scientists who view precedent (and law more generally) as politics by other means. Spanning that chasm is a challenge no book can meet on its own, of course. But Gerhardt has made a real start. His book engages meaningfully with leading scholarship from social scientists and academic lawyers, without succumbing to reductionism or polemic. And he has written a book that is engaging, provocative, balanced and (I cannot emphasize this enough) a genuine pleasure to read.

In this review, I will summarize Gerhardt’s argument as it progresses, pausing along the way to interject comments, questions and the occasional criticism. Gerhardt frames his discussion of precedent with a limitation and an expansion in relation to traditional approaches, as an attempt to “combine conventional legal analysis with social science research” (p.79). He limits himself to an analysis of precedent on the Supreme Court in constitutional cases. But he also considers the creation and effects of what he calls “nonjudicial” precedent. His proposed conception of precedent, which he calls the “golden rule of precedent” (p.3), also reflects his desire to bridge the gap in approach between legal and social science analysis. According to the golden rule of precedent, as Gerhardt conceives it, justices “treat others’ precedents as they would like their own to be treated or risk their preferred precedents being treated with the same kind of disdain that they show others’” (p.4). By framing precedent in this fashion, Gerhardt allows readers to decide for themselves, to an extent, why justices follow precedent. It might be, as many legal scholars would have it, that justices follow precedent because of a sense of institutional obligation and mutual respect. Or it might be, as many social scientists believe, that justices follow precedent (if at all) because of a calculation of rational self-interest. This adherence to precedent may therefore be conceived as a normative judicial practice or as an individualized cost-benefit calculation. In other words, Gerhardt’s golden rule can be read as compatible with (and palatable to) legal scholars’ and social scientists’ approaches to the subject. And Gerhardt attempts to articulate this approach in a manner that will not alienate either of his target constituencies. This is an intriguing notion, which works well for Gerhardt’s purposes, although it raises a possible conceptual difficulty that I discuss at the end of this review. [*812]

Gerhardt begins his argument in Chapter 1 by asserting that a “basic principle of constitutional law” in the United States precludes Congress from overturning “the Court’s constitutional decisions through ordinary legislation” (p.9). This seems a curious place for Gerhardt to start, because some social scientists would disagree with this claim from the outset. For example, James Meernik and Joseph Ignagni (1997) argue that Congress enacts legislation in a statistically meaningful number of instances that effectively counteracts constitutional decisions of the Court. In addition, even if Gerhardt proceeds from an accurate understanding of American constitutional law, the basic principle to which Gerhardt alludes is itself the result of judicial precedent rather than constitutional provision. That fact troubles many of the scholars whom Gerhardt hopes to persuade and his assumption of this basic principle without any reference to the relevant underlying debates about departmentalism, democratic deficits or bootstrapping might seem slightly cavalier. In any event, and perhaps more to the point, nothing in Gerhardt’s argument depends upon this claim, so we need not detain ourselves further here.

The rest of Chapter 1 consists of a remarkably thoughtful and accessible collation and integration of statistical and doctrinal materials, supported by a series of very useful appendices that chart instances of explicit, implicit and urged overrulings by subject, court and justice. For example, Gerhardt provides detailed analysis of rates of overruling together with other judicial methods of minimizing or marginalizing disfavored precedents. In addition, these data are correlated to account for fluctuations in relation to time, caseload and personnel. Gerhardt provides an interesting breakdown of these decisions according to Chief Justices’ tenure and individual justices’ votes and efforts to persuade the Court to overrule (even when unsuccessful). Among other things, this individualized analysis exposes the unhelpfulness and oversimplification of attempting to categorize justices along a binary axis of judicial activism or restraint.

Gerhardt also rightly notes that simply counting the number of overrulings and attempted overrulings as conclusive evidence of judicial attitudes toward precedent is misleading, because this fails to account for repeated dissents by particular justices concerning the same legal issue (e.g., Thurgood Marshall’s and William Brennan’s dissents in death penalty cases). Gerhardt explains further that changes in the rate of overruling along with academic and popular fixation on the effect of personnel changes on the stability of precedent obscures the fact that “the Court usually employs the same criteria in reviewing its precedents” now as it has for at least a century (p.17).

Gerhardt examines various articulations of varying approaches to the relative force of existing precedent on later decisions. He considers, for example, cases involving the exclusionary rule, victim impact statements, abortion, affirmative action and state sovereignty. He concludes that, since 1999, the Court has “explicitly overruled” only seven constitutional precedents. In each of these cases, the Court’s stated rationale was “irreconcilability [of the relevant precedent] with subsequent case law” (p.31). [*813] Gerhardt also indicates that the Court usually attempts to avoid explicit overruling of its constitutional precedents. Instead, the Court more frequently opts to narrow the construction of precedent or to overrule precedent by implication or “sub silentio” (p.35).

Chapter 1 ends with Gerhardt touching on the important point that precedent influences judicial reasoning and decision making in many cases in which the justices do not address that influence directly. This influence can best be appreciated by considering the number and nature of cases in which certiorari is denied. The extensive “areas in which the Court no longer decides cases” highlight “the extent and number of the settled areas of constitutional law” (p.45).

In Chapter 2, Gerhardt surveys and evaluates what he calls the “most prominent” theories of precedent among legal scholars and social scientists. He divides these theories into two groups: the “weak view” and the “strong view” of precedent. Neither, as it turns out, is adequate. I should mention here, before going on to discuss his analysis of these views, that Gerhardt generally prescinds from consideration of whether the meaning of precedent can be definitively determined, how holdings are distinguished from dicta, and whether the content of precedent cases is necessarily found in a specific opinion or constructed through lines of argument and processes of interpretation. Although some readers may view this as problematic, I found it refreshingly forthright and pragmatic. While there surely are important issues of ambiguity in textual meaning and lapses in judicial candor, for the most part lawyers and judges know what the cases say. Typically, they disagree about whether they should follow what the cases say, and these are the most pertinent disagreements for Gerhardt’s purposes. In addition, some readers may be surprised to find that the work of certain scholars, e.g., Larry Alexander and Frederick Schauer, is not discussed in this book (although Gerhardt might say that the work of these scholars can accurately be placed into the two categories he identifies). I suspect there is a good reason for this. Gerhardt has written a book that engages a wide swath of scholarship from two disciplines in the hope of encouraging those groups to talk more directly with each other. To do so effectively, the scholarship cannot be allowed to overwhelm the discussion. Gerhardt has tried to represent various academic and judicial perspectives fairly while still allowing the pace of the discussion to remain crisp and lively. He has succeeded admirably. Everyone who reads this book will find something with which to disagree. That is to be expected. Everyone who reads it will also enjoy the feeling of intellectual frisson that the book generates. That is somewhat unexpected, but most welcome.

Drawing on the work of Thomas Lee, Gerhardt traces the origins of the weak view to writings of Blackstone and other seventeenth- and eighteenth-century British writers and judges. According to this well-known “declaratory theory” of law, judicial decisions are evidence of the law but are not necessarily law in and of themselves. Accordingly, judicial decisions deemed to be erroneous may be discarded as misstatements, or non-statements, of the law, properly [*814] understood. This approach, which Gerhardt characterizes as “treat[ing] common law as the model for constitutional adjudication” (p.48), involves relying more on distinguishing and analogizing, rather than overruling, in the exegesis of constitutional law.

Gerhardt then notes that certain justices and academics – Douglas, Black, Scalia and Thomas are cited as judicial examples – subscribe to the weak view. Raoul Berger is mentioned as an academic proponent of this view. Indeed, an interesting and counterintuitive (to some) observation here is that “conservatives have asserted a weak view of precedent more openly and boldly than their liberal counterparts” (p.54).

In criticizing the weak view, Gerhardt points out three problems. First, it has never enjoyed consistent support among a majority of the Court (or even among its purported adherents over the course of their careers). Second, the weak view’s basic assumption that precedents lack provenance as legal sources is belied by the Constitution’s “text, structure, and original meaning” (p.58). The constitutionally established authority to resolve cases and controversies necessitates “a power to determine the sources of authority on which constitutional rulings properly rest” (p.59, quoting Richard Fallon). Moreover, according to Gerhardt, Congress may not attempt to define or restrain the approaches the Court may take in relation to precedent without violating separation of powers principles. The norms and practices of reading and writing judicial opinions (including whether to produce those opinions at all) are left exclusively to the Court. For Gerhardt, these points demonstrate that the weak view accords inadequate credence to the constitutional foundation and significance of precedent in constitutional adjudication.

In contrast to the weak view of precedent, the strong view is grounded in constitutional text and structure, which explicitly empower the Court to make authoritative pronouncements of constitutional law. In addition, the Court itself sometimes continues to follow certain concededly dubious decisions and continues to maintain some areas of legal doctrine whose principal source is judicial precedent. These practices are broadly consistent with the strong view, according to Gerhardt. The strong view also supports the precedential values of stability and consistency and reflects the fact that precedent is cited so pervasively in constitutional cases. And some legal scholars perceive precedent as supplanting the constitutional text itself in specific areas of constitutional doctrine.

Reinforcing the support for the strong view in judicial decisions, Gerhardt mentions some prominent scholars, such as Ronald Dworkin, David Strauss and Kathleen Sullivan, who argue (in different terms) that precedents shape constitutional doctrine over time through “the force of their reasoning” (p.67) rather than grand theories or fixed rules. Sullivan, for example, argues that justices cannot be fitted into simplistic ideological categories based on their respective approaches to precedent.

According to Gerhardt, the most forceful critics of the strong view are social scientists whom he divides into five groups: (1) attitudinalists, (2) rational [*815] choice theorists, (3) empiricists, (4) postpositivists and (5) skeptics. In Chapter 2, Gerhardt addresses the first three groups’ criticisms of the strong view, and he discusses the final two groups in Chapter 3.

Harold Spaeth and Jeffrey Segal are Gerhardt’s (entirely reasonable) choices as representatives of the attitudinalists. Broadly speaking, the attitudinalist criticism is meant to demonstrate through quantitative analysis of case decisions that “the influence of precedent [on judicial decision making] appears to be quite minor” (p.70).

The rational choice criticism of the strong view takes a different tack. Rather than argue that precedent is largely irrelevant to judicial decision making, these theorists assert that precedent is employed primarily in instrumental terms. In other words, justices value and refer to precedent principally to aid themselves in arriving at their desired policy outcomes.

In response to these criticisms of the strong view, Gerhardt returns to his motivating concern about the disciplinary chasm separating legal scholars from social scientists. As Gerhardt sees it, “many if not most legal scholars ignore the dominant social science models . . . or argue judging cannot be quantified and consider empirical analysis untrustworthy” (p.71). This “impasse” between social scientists and legal scholars troubles Gerhardt, and he begins his effort to bridge the chasm in earnest in Chapter 3.

In Chapter 3, Gerhardt addresses the final two groups of social scientists whose views he categorized, but did not discuss, in Chapter 2: the postpositivists and the skeptics. The postpositivists on whom Gerhardt concentrates are historical institutionalists such as Howard Gillman. The virtue of this view, according to Gerhardt, is that it offers an empirical counterargument to claims by attitudinalists and rational choice theorists that “the Court primarily functions as a cipher for justices’ expressions of their individual preferences” (p.80). Moreover, historical institutionalism supports the fundamental notion that “legal variables explain and shape how constitutional doctrine has evolved . . . [and] the judicial process shapes practices and choices within constitutional adjudication” (pp.80-81).

The other group of social scientists whom Gerhardt cites as unpersuaded by attitudinalism and rational choice theory are skeptical of postpositivism, as well. This diverse group includes, for example, Herbert Kritzer, Mark Richards, Lawrence Baum, Cass Sunstein, Stefanie Lindquist and Frank Cross. Their approaches and results differ, needless to say, but they all share the conclusion that existing models of precedent inadequately express its authentic dynamics and effects in judicial decision making.

According to Gerhardt, the best conception of precedent in the Supreme Court should acknowledge its “limited path dependency” (p.94). This is important for two reasons. First, it counters the somewhat rigid and, as Gerhardt sees it, inaccurate view held by some social scientists that precedent generates no path dependency whatsoever. Second, it acknowledges [*816] certain constitutional and institutional realities in which the Court operates.

Gerhardt is critical of social scientists who analyze courts as though they were legislatures, and he criticizes other scholars who treat constitutional and common law adjudication similarly. The first criticism seems fair enough, but the second is based on two assumptions that are themselves problematic. First, Gerhardt states that the Court’s deference to constitutional precedent is less stringent than its deference to common law precedents. But Gerhardt traces this differential approach to the “structural” claim that “[i]n a common-law system, precedents are the exclusive source of legal authority” (p.97). Gerhardt makes this claim because he believes that, “[b]y definition, common-law cases are those in which a legislature or higher authority has not yet spoken” (p.97). This seems somewhat misleading. To take just one example of many, the Uniform Commercial Code has codified the law of sales in US jurisdictions, but this does not mean that courts no longer make law in this area or that commercial contract law can no longer be considered to be made through forms of common law adjudication.

In addition, switching from common law cases to common law systems, the claim that precedents are the exclusive source of legal authority seems historically, legally and politically untenable. To be sure, the extraordinary surfeit of legislative enactments has had a significant effect on the US legal system. But this has neither removed the US from the list of common law nations nor removed precedent from the list of legal sources. Moreover, scholars have considered the effects of increased legislation on the legal system and on the judicial institution (Calabresi 1982). It is also interesting to note in this connection that two scholars Gerhardt cites as endorsing the (in his view mistaken) position that “precedent imposes a degree of path dependency in constitutional adjudication similar if not identical to path dependency in the common law” (p.96), Frank Easterbrook and Richard Posner, are also federal circuit court judges. And one might also respond to Gerhardt that if this is Easterbrook’s and Posner’s view, then this also is likely the reality, at least in their decisions on their court.

Simply put, the fact that precedents are a recognized source of legal authority may help to differentiate common law systems from civil law systems. This does not and need not necessarily mean, however, that precedents are the only source of legal authority in common law systems. In every common law system with a legislature, which is to say, in every common law system that has ever existed, legislation and precedent are both recognized as sources of legal authority (although their respective scope and interaction have been differently understood over the years). And even where a legislature has spoken to an issue, this does not mean that courts may no longer do so.

Some other factors Gerhardt considers in relation to the path dependency generated by precedent are the difference between rules and standards, the entrenchment of certain Supreme Court precedents, and changes in Court personnel. In addressing the effects of precedent on later judicial decisions, Gerhardt notes that the limited path dependency of Supreme Court [*817] precedents is also modulated by the dynamics of an institution that operates via majority vote while not itself being subject to review by a higher authority and by the absence of fixed rules governing the Court’s approach when considering its own precedents.

Gerhardt concludes Chapter 3 by describing two additional influences on the longevity of Supreme Court precedent. The first Gerhardt calls the “X-Factor” (p.106). These are the social, economic and political forces that influence the justices’ reasoning (and the expression of their reasoning in written opinions) in various ways. The second are what Gerhardt terms “network effects” (p.109). Network effects may be evaluated, generally speaking, by assessing the way that later justices consider their predecessors’ work. The most straightforward of these assessments is captured by the frequency with which a given precedent is cited. More frequent citation means more significant precedent and vice versa. Gerhardt points out, though, that network effects have to this point been considered only in relation to courts and on the assumption that frequency of citation alone is sufficient when evaluating precedential value. We must also recognize, however, that precedents are cited for various purposes at different times (and not always approvingly). Gerhardt pursues these two points in Chapters 4 and 5.

In Chapter 4, Gerhardt examines nonjudicial precedent. Nonjudicial precedent is any constitutional judgment made by a nonjudicial public authority, which is claimed or treated as a norm by that authority. As Gerhardt sees it, the somewhat myopic focus on judicial precedent has skewed the focus of scholarship on the courts, and particularly on the Supreme Court. Indeed, the vast majority of precedents are nonjudicial, and these range from presidential signing statements to the use of senatorial courtesy. And most of these nonjudicial precedents remain undisturbed by the Court, indicating that most law of constitutional significance is not, in fact, made by the judiciary.

According to Gerhardt, the defining characteristic of nonjudicial precedent is its “discoverability” (p.111). Discoverability is, roughly speaking, the effort by public authorities to invest some, but not all, nonjudicial governmental action with “normative authority” (p.112). With this understanding in mind, Gerhardt describes three straightforward examples of nonjudicial precedents that have, over time, become invested with normative precedential force: vice presidential succession to the presidency, presidential signing statements and the nonimpeachability of members of Congress. The more complicated and interesting examples of nonjudicial precedent that Gerhardt considers are congressional actions to censure a president, majority rule in the Senate and treaty authorization by the Senate as a prerequisite for presidential commitments of military forces. These examples are more complicated than vice presidential succession and nonimpeachability of members of Congress for three reasons: (1) incomplete historical records, (2) conflicting precedents and (3) few citations to establish precedential authority. [*818]

There are a few problems with Gerhardt’s analysis of nonjudicial precedent. First, as I mentioned earlier, Gerhardt defines precedent in a judicial context as a “golden rule.” So when he discusses discoverability as the distinctive feature of nonjudicial precedent, it is not entirely clear whether that is supposed to supplant the “golden rule” as the definition of nonjudicial precedent or whether the precedential force of the nonjudicial action can be determined only by seeing what courts later do. Gerhardt believes that “a golden rule of precedent may be apparent outside the Court” (p.144). As I will discuss in more detail later, however, this leaves the crux of the normativity point up in the air. According to a prevalent view, if precedent is genuinely a judicial norm then judges must have some obligation to follow it. If members of Congress may sometimes act out of a “golden rule” motivation, that does not yet explain what the consequences are or should be when they opt not to act from such a motivation. Second, Gerhardt discusses examples of nonjudicial precedent that involve legislative or executive action. But this leaves unexplained Gerhardt’s preferred understanding of conflicts between the representative branches and the judiciary. In connection with this point, Gerhardt later mentions the famous instances of UNITED STATES v. NIXON and CLINTON v. JONES (p.150) in which the Court refused to accept executive efforts to establish as a nonjudicial precedent an absolute privilege of confidentiality for communications within and among members of the executive branch. Again, however, this leaves unexplained a more fundamental difficulty for the relationship between judicial and nonjudicial precedent: does judicial precedent trump nonjudicial precedent and, if so, why is the judiciary the institution empowered to make that determination? To advocates of departmentalism, this unanswered question might seem troubling.

As a partial response to some of these possible objections, Gerhardt notes that certain nonjudicial precedents are constitutionally established (p.129), and the Court’s authority to review certain nonjudicial actions is constitutionally limited (pp.131-135). Moreover, he points out that certain nonjudicial precedents are more intrinsically influential than others. He categorizes nonjudicial precedents as vertical-vertical (binding authority within the branch creating them and on other branches, such as presidential pardons), vertical-horizontal (binding within the branch that created them but persuasive in other branches, such as official opinions of the Attorney General), horizontal-horizontal (persuasive within the authority creating them and in other branches, such as the tradition of selecting a Chief Justice from outside the Court), and horizontal-vertical (persuasive authority within the institution that created them but binding on other institutions, such as approval of a judicial nomination by the Senate Judiciary Committee) (pp.136-138).

Two other characteristics of nonjudicial precedent that Gerhardt addresses are limited path dependency and effects on judicial supremacy. Nonjudicial precedent possesses limited path dependency, in Gerhardt’s view, because nonjudicial precedent is not ordinarily understood as a form of rule or standard. [*819] As a result, it is often difficult to assess precisely what effect nonjudicial precedent is intended to have on later actors and institutions. Part of the reason for this is the absence of any accepted rules for interpreting or applying nonjudicial precedents. Compounding these complexities is the potential challenge nonjudicial precedent presents for judicial supremacy. Gerhardt argues that an appreciation of the importance of nonjudicial precedent undercuts the conventional acceptance of judicial supremacy as a given in the US constitutional system. Rather than allow judicial supremacy to prevent the exercise of popular constitutional interpretation and to permit nonjudicial actors to ignore their independent obligation to consider the constitutionality of their actions, Gerhardt argues that nonjudicial precedents can serve to broaden the public awareness of and participation in the construction of constitutional meaning. This seems particularly valuable, according to Gerhardt, because the Court cannot and does not resolve many constitutional questions and nonjudicial precedents contribute far more to our law and culture than we tend to realize, given our preoccupation with judicial precedent and constitutional interpretation.

In Chapter 5, Gerhardt expands his discussion of precedent to include functions beyond constraining the actions of judges or other governmental actors. In addition to its constraining force, Gerhardt highlights the importance of precedent “as a mode of constitutional argument” (p.147), the form in which judges resolve legal disputes, a method of setting the Court’s agenda, a means of facilitating constitutional dialogue on the Court and between the Court and other nonjudicial actors, and a basis for defining the nation’s constitutional structure. In addition to these more immediate functions served by precedent, Gerhardt also considers three meaningful effects of judicial precedent beyond its role in judicial and nonjudicial decision making. First, judicial precedents have sometimes played major roles at key moments in US history. DRED SCOTT is commonly understood as a major precipitating event of the Civil War and BUSH v. GORE both determined the outcome of the 2000 presidential election and forever placed the Court at the center of that historical episode. Second, judicial precedents sometimes serve as records of historical events. Third, precedents are efforts, in certain circumstances, for the Court (or a nonjudicial actor) to position itself “on the right side of history” (p.166).

In the last part of Chapter 5, Gerhardt considers four additional functions that are often mentioned in relation to precedent. First, precedent is sometimes described as the Court’s medium for educating the public about the Constitution. Second, precedent can be invested with symbolic meaning as part of a larger social movement or historical period. Third, judicial and nonjudicial precedent play a role in constructing American national identity. Fourth, precedent can serve as the Court’s effort to articulate or defend constitutional values. Of course, the degree to which precedent does, or should, perform these functions is the subject of ongoing debate. But Gerhardt is right to note that each of these functions plays a role when considering the variegated functions that precedent is considered to fulfill. [*820]

In Chapter 6 Gerhardt examines so-called “super precedents.” These are the judicial decisions (or nonjudicial precedents) that are “so deeply embedded in our law and culture that they have become practically immune to overturning” (p.177). The most familiar examples of super precedents established the power of judicial review. MARBURY v. MADISON and MARTIN v. HUNTER’S LESSEE are the first super precedents Gerhardt cites in his discussion.

The next group of super precedents established what Gerhardt calls “foundational doctrine” (p.180). These are the cases involving incorporation of the Bill of Rights against the states and nonjusticiability of political questions. In contrast with the foundational doctrine cases, Gerhardt also discusses “foundational decisions,” which he views as “the most potentially controversial super precedents” (p.182). Foundational decisions are longstanding, often cited, shape doctrinal development, enjoy social approbation, and are viewed by courts as well-settled. Examples here are cases “upholding the constitutionality of paper money” (p.182), denying the constitutionality of segregation, and establishing the “framework for analyzing separation of powers conflicts” (pp.184-185). Gerhardt concludes Chapter 6 by responding to possible criticisms of super precedents and considering the implications of super precedents for constitutional law and theory.

In the conclusion, Gerhardt summarizes the Roberts Court’s use of precedent in terms of limited path dependence and network effects. Gerhardt views the Roberts Court and the Rehnquist Court as institutional demonstrations of his golden rule of precedent. In Gerhardt’s view, consideration of judicial and nonjudicial precedent is necessary for any accurate understanding of constitutional law in the US. And this understanding “requires recognizing that we can break with some particular precedents, but we cannot break away from precedent” (p.203).

I should discuss in a bit more detail one concern about Gerhardt’s argument to which I alluded earlier. By calling his preferred model of precedent a golden “rule,” Gerhardt seems to skirt or beg a fundamental question: does this mean that precedent reflects the conventional collective behavior of judges or that precedent functions as an internalized institutional norm against which judicial decisions may be critically assessed? This distinction between habitual behavior and authentic rule-following is central to one of H.L.A. Hart’s famous criticisms of John Austin (Hart 1994). Gerhardt need not enter into the jurisprudential debate, but he does need to say a bit more about what it means that precedent is a “rule” on his account. This distinction, between behavioral conventions and authentic obligations, would help in evaluating whether Gerhardt means to argue that precedent is an expression of a justice’s desire “to preserve the value of his own coin” (p.18, quoting Geoffrey Stone) or is an expression of an institutional directive that the justice feels bound to observe in some fashion. At the end of the book, Gerhardt states that “[a]dhering to the golden rule does not oblige public officials, or justices, to accept any particular precedents . . . with which they disagree” (p.201). But this will leave some of his readers wondering [*821] whether Gerhardt believes precedent actually influences decision making beyond the quid pro quo exchange that Gerhardt’s golden rule seems to suggest. Without knowing whether Gerhardt’s golden rule of precedent is best conceived as a convention or an obligation, it is difficult to assess the extent to which precedent is ever truly binding. In his most direct discussion of this point (pp.151-153), Gerhardt suggests that precedent figures in reasoning and decision making to the extent that it is deemed to apply to constituencies that find it meaningful and in circumstances in which it validates constitutional arguments or interpretive approaches. Given some commonly accepted definitions of precedent, however, this does not really answer the key question: does precedent ever require judges to reach decisions with which they disagree? That is not Gerhardt’s definition of precedent, and it need not be, but it is an understanding of precedent that Gerhardt might have addressed more directly than he does in this book.

The questions and criticisms raised in this review should be taken as an indication that the book deserves serious attention, not just for the value of Gerhardt’s own contribution to ongoing debates about precedent but equally for his thoughtful effort to expand and enliven those debates. Gerhardt engages social scientists and legal scholars in a discussion about precedent, distills and analyzes their scholarship, and provides a basis for continuing the conversation between these groups. Both groups should and will respond to Gerhardt’s work as the debate continues. We should respond to his example, as well.

REFERENCES:
Calabresi, Guido. 1982. A COMMON LAW FOR THE AGE OF STATUTES. Cambridge, MA: Harvard University Press.

Hart, H.L.A. 1994. THE CONCEPT OF LAW (2nd ed). Oxford: Oxford University Press.

Meernik, James and Joseph Ignagni. 1997. “Judicial Review and Coordinate Construction of the Constitution.” AMERICAN JOURNAL OF POLITICAL SCIENCE 41:447-467.

CASE REFERENCES:
CLINTON v. JONES, 520 U.S. 681 (1997).

MARBURY v. MADISON, 5 U.S. 137 (1803).

MARTIN v. HUNTER’S LESSEE, 14 U.S. 304 (1816).

SCOTT v. SANDFORD, 60 U.S. 393 (1857).

UNITED STATES v. NIXON, 418 U.S. 683 (1974).

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© Copyright 2008 by the author, Douglas E. Edlin.

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HIDDEN IN PLAIN SIGHT: THE TRAGEDY OF CHILDREN’S RIGHTS FROM BEN FRANKLIN TO LIONEL TATE

by Barbara Bennett Woodhouse. Princeton, N.J.: Princeton University Press, 2008. 376 pp. Cloth. $27.95/£16.95. ISBN: 9780691126906.

Reviewed by E. Wayne Carp, Department of History, Pacific Lutheran University. Email: carpw [at] plu.edu.

pp.806-810

Children’s Rights: A “History and Law” Solution?

Scholars have traditionally categorized children’s rights as the right to protection and the right to autonomy. In the United States, during the last quarter of the nineteenth century, the right to protection emerged when child-savers organized Societies for the Prevention of Cruelty to Children to protect children from parental abuse. By the Progressive Era, the movement led to the creation of the juvenile court system, and in the New Deal to child labor laws. In the 1960s, a second children’s rights movement emerged, characterized by “child liberationists,” such as John Holt (1974) and Richard Farson (1974), who advocated adult rights for children. In 1967, the Supreme Court in In RE GAULT (1967) granted minors involved in delinquency proceedings many of the constitutional procedural protections previously granted only to adult criminal defendants. Two years later, in another landmark decision, TINKER v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969), the Supreme Court finally designated children as persons.

Ultimately, however, Barbara Bennett Woodhouse, David H. Levin Chair in Family Law at the Frederic G. Levin College of Law, and Director of the Center on Children and the Law and Co-Director of the Institute for Child and Adolescent Research and Evaluation at the University of Florida, aims to convince readers to support the international human rights embedded in the United Nations Convention on the Rights of the Child (UNCRC). Adopted by the UN General Assembly on November 20, 1989 and ratified by 192 nations, the UNCRC is the most comprehensive United Nations human rights treaty in force today. In addition to recognizing and seeking to ensure a series of substantive and procedural rights, the UNCRC specifies the full range of civil, political, economic, psychological, social, and cultural rights of children. The UNCRC also provides four core principles for implementing these rights: nondiscrimination; commitment to the best interests of the child; the right to life, survival, and development; and respect for the views of the child. The United States and Somalia are the only two nations that to date have refused to ratify the UNCRC, although Woodhouse neglects to mention that the United States signed the UNCRC in February 1995. It also later ratified the Convention’s two Optional Protocols – the Optional Protocol on the Involvement of Children in Armed Conflict (raising the age of combat to eighteen years) and the Optional [*807] Protocol on the Sale of Children, Child Prostitution and Child Pornography.

Woodhouse’s study is thus a response to a substantial body of work produced over the last two decades by critics who oppose the US ratification of the UNCRC. Some of these earlier critics fear that it compromises US sovereignty by making UN law superior to the US Constitution, impinges upon states’ rights, undermines parent-child authority, and gives children rights identical to those of adults. The major stumbling block to US ratification, according to its critics, has been the UNCRC’s autonomy model, epitomized in Article 12; “State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, either directly, or through a representative or an appropriate body” (http://www2.ohchr.org/english/law/crc.htm).

Unfortunately, Woodhouse does not directly engage these critics; this is a book written for a general audience. Although she is the author of more than thirty-five law review articles on family law and children’s rights, HIDDEN IN PLAIN SIGHT, is Woodhouse’s first book. The bulk of it takes the form of biographical sketches drawn from her vast corpus of previous work, now rewritten, expanded, and revised in order to advance a child-centered approach to the law. Woodhouse uses few primary sources, the volume resting mostly on secondary sources. Woodhouse explains her research strategy in this way: “academic debate and endnotes play a supporting, not a starring role. In this book, I draw upon a lifetime of research and experience as an academic but also as a child and daughter, nursery school teacher, parent and foster parent, and grandmother” (p.xv).

HIDDEN IN PLAIN SIGHT comprises fifteen chapters divided into an introduction and five parts. The introduction, composed of two chapters, Woodhouse labels “theory.” In Chapter One, “How to Think About Childhood,” Woodhouse very briefly summarizes a number of theories drawn from the disciplines of history, psychology, sociology, and the health sciences, about child development, of which she believes an advocate representing the best interests of the child must be cognizant. These include Steven Mintz’s historical insights, pediatricians T. Berry Brazelton’s and Stanley Greenspan’s “six irreducible needs of children,” Jean Piaget’s and Erik H. Erikson’s models of psychological development, and Urie Bronfenbrenner’s and Glen Elder’s ecological perspective. To these, Woodhouse adds what she considers a fundamental aspect to the development of a child: “voice” or “agency,” based on the work of psychiatrist Robert Coles and sociologist James Garbarino. At the heart of Woodhouse’s concept of children’s rights is a child-centered approach to law, incorporating children’s voices and respecting their physical and cognitive development.

In Chapter Two, “How to Think About Children’s Rights,” Woodhouse augments the developmental perspective by introducing the term “ecogenerism” – “a way of thinking that combines the skills of an ecological perspective – a focus on the environments in which life unfolds – with Erik Erickson’s concept [*808] of generativity” – a state of human and social maturity marked by a commitment to the needs of the next generation” (Woodhouse 2007). But these theoretical concepts are undeveloped and not well integrated into the book: the term ecogenerism rarely appears again. And, though Woodhouse relies throughout the book on the term “developmental perspective” as a framework for understanding and advocating children’s rights, it remains ambiguous and is never clearly defined.

Also in Chapter Two, Woodhouse transcends the protection and autonomy children’s rights dichotomy, first by renaming them as needs-based and capacity-based rights and then identifying five basic human rights values – privacy, agency, equality, dignity, and protection – that incorporate both needs and capacity rights. Woodhouse finds these five values embedded in the Declaration of Independence, the Constitution, and in watershed moments in American history, such as the Civil War, the women’s suffrage, and the 1960s civil rights movements. However, HIDDEN IN PLAIN SIGHT is neither a constitutional history of children’s rights nor a history of those watershed moments. Instead, in the next eleven chapters Woodhouse grounds children’s rights in American history and personal experience through many different stories about the early lives of famous and unknown individual children, with each story meant to epitomize one of the human rights values. Thus, the experiences of slave children Frederick Douglass and of Dred Scott’s daughters, Eliza and Lisa, illustrate the principle of privacy; the apprentice Ben Franklin illustrates the principle of agency; civil rights marchers John Lewis and Sheyann Webb, as well as Helen Keller and Louisa May Alcott, the equality principle; Holocaust victim, Ann Frank, the dignity principle; and sexually abused children, Maya Angelou and a thinly disguised Barbara Bennett Woodhouse, the protection principle. Why use the discipline of history rather than the law to press the case for children’s rights? Woodhouse gives two reasons: “The stories of children are important as narratives but also as historical evidence that justice for children is integral to America’s fundamental values. The stories also provide proof that American children, through their own agency and voice, have earned their right to claim rights” (pp.46-47).

As a work of history, HIDDEN IN PLAIN SIGHT is disappointing. Woodhouse does not appear to be familiar with recent developments in the discipline. She believes that history is “written by the powerful,” though that generalization has been inaccurate for at least three decades. She also makes outdated statements that history books have been “purged of children’s stories of children’s agency and expression” (p.6) or that they still contain accounts of George Washington cutting down the cheery tree. Such statements ignore the fact that a sub-discipline, childhood studies, has been in existence for a quarter century, with its own professional organization – the Society for the History of Childhood and Youth – which publishes a journal and holds international conferences. More troubling, HIDDEN IN PLAIN SIGHT is profoundly ahistorical. Woodhouse asks a very important question: when does childhood begin? But she goes astray by answering it using only [*809] developmental psychology and the law, referring to the age of consent. The concept of childhood, however, is socially and historically constructed. Adolescence, for example, was not recognized as a separate stage of the life course until the late nineteenth century. What this means in practice is that the society in which they lived viewed “children,” such as colonial Virginia’s 14- to 16-year-old indentured servants, the 16-year-old apprentice Ben Franklin, the 15 year-old enslaved Frederick Douglass, and the teenagers on the orphan trains, as adults. And why not? As late as the mid-nineteenth century, when the age of consent was 13 and the median age of death was 35, a person’s life was half over by the age of 16. Viewing a Franklin or Douglass as children, as Woodhouse does, is presentist.

How can these problems be explained in a scholar as accomplished as Woodhouse? The answer, I believe, lies in the nature of Woodhouse’s methodology as a critical legal studies scholar. Woodhouse, in particular, practices “the law as literature” approach, which uses storytelling and personal experiences of discrimination to develop new critical approaches to law. Within this approach, as legal scholar Gary Minda has written (1995), one technique – narrative jurisprudence – “relies on the analyst to develop the text of a story for appraising the narrative content of the official stories told in the law.” An example of such an approach can be found in Woodhouse’s (1993) classic article, “Hatching the Egg: A Child-Centered Perspective on Parents,” where she famously used Dr. Suess’s HORTON HATCHES THE EGG as well as William Faulkner’s LIGHT IN AUGUST and the GOSPELS OF LUKE AND MATTHEW to deconstruct family law opinions in favor of moving “children from the margin to the center of formal legal analysis.” What is unique about HIDDEN IN PLAIN SIGHT is that Woodhouse has substituted historical events for literature – a sort of “law and history” approach. Like Richard Delgado (1989), Derrick Bell (1987), and Stephen L. Carter (1991), Woodhouse uses historical stories and her own experiences to destroy a mindset, in this case the widespread belief that children are incapable of reason, and to advance the idea that they deserve to be treated with dignity and respect and be permitted to express and act in their own interest.

Unfortunately, narrative jurisprudence, when transported to historical events will probably not change many minds about the ratification of the UNCRC. At bottom, HIDDEN IN PLAIN SIGHT is an appeal to emotion, not reason. The biographical vignettes, beautifully written and accessible to the general reader, are profiles in courage: all the children in the book are victims who react with bravery, honesty, creativity. But to the critically minded, such historical portraits are hardly representative of children in history; half of them are not really about children at all. They also avoid confronting the unintended consequences that have resulted from children’s rights “reforms:” trying children as adults or imposing zero-tolerance policies in schools. Nor will they spark debate, as Woodhouse hopes, when the world is already drowning in media saturation of child prostitution exposés in South Asia, news of the genocide of thousands of Bosnian Muslim children in 1995 [*810] following the capture of Radovan Karadzic, and the ubiquitous use of children as soldiers across Africa. Or rather, the plight of today’s children, in America and the world, underscores Woodhouse’s point that children need protection. But there is little argument from the critics of the UNCRC for this type of children’s rights. The real problem with these historical stories is that they fail to grapple intellectually with the legitimate objections of the UNCRC’s critics. HIDDEN IN PLAIN SIGHT has a noble purpose to support the UNCRC, but it will take more than these poignant and inspiring stories from the past to convince skeptics to accept the radical change in mindset – children’s autonomy – that is at the heart of Woodhouse’s eloquent plea for children’s rights.

REFERENCES:
Bell, Derrick. 1987. AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE. New York: Basic Books.

Carter, Stephen L. 1991. REFLECTIONS OF AN AFFIRMATIVE ACTION BABY. New York: Basic Books.

Delgado, Richard. (1989). “Storytelling for Oppositionists and Others: A Plea for Narrative.” 87 MICHIGAN LAW REVIEW 2411-2441.

Farson, John. 1974. BIRTHRIGHTS. New York: Macmillan.

Holt, John. 1974. ESCAPE FROM CHILDHOOD. New York: Ballentine Books.

Minda, Gary. 1995. POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY’S END. New York: NYU Press.

Woodhouse, Barbara Bennett. (1993). Hatching the Egg: A Child-Centered Perspective on Parents.” 14 CARDOZO LAW REVIEW 1747-1865.

Woodhouse, Barbara Bennett. (2007). “Race, Culture, Class, and the Myth of Crisis: An Ecogenerist Perspective on Child Welfare.” 81 ST. JOHN’S LAW REVIEW 519-532.

CASE REFERENCES:
In RE GAULT, 387 U.S. 1 (1967).

TINKER v. DES MOINES INDEPENDENT COMMNITY SCHOOL SISTRICT, 393 U.S. 503 (1969).

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© Copyright 2008 by the author, E. Wayne Carp.

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JUDGING POLICY: COURTS AND POLICY REFORM IN DEMOCRATIC BRAZIL

by Matthew M. Taylor. Stanford: Stanford University Press, 2008. 248pp. Cloth. $55.00. ISBN: 9780804758116.

Reviewed by Kathryn Hochstetler, Department of Political Science, University of New Mexico. Email: hochstet [at] unm.edu.

pp.802-805

Matthew Taylor’s book is one of a set of recent volumes tracking the rather surprising emergence of the judiciary as an important actor in post-transition Latin American politics. His central argument – strongly supported in the book – is that a number of recent policy decisions in Brazil simply cannot be understood without taking account of the interventions of the courts at key moments. A political scientist, Taylor places this argument in the larger context of recent disciplinary discussions of “veto players” and the ways that the number and preferences of such actors shape policy discussions and especially the ability to generate policy change. In his view, the judiciary is not simply another veto player placed alongside the executive and legislature, however. Instead, Taylor views courts as essentially reactive actors, who must be activated by others. What courts actually do in his causal story is to provide “veto points,” political moments when social and political actors might use judicial strategies to block policy if they are institutionally and politically placed to do so. This is a complex and sophisticated argument that leans heavily on institutional factors such as legal standing to explain the courts’ influence, without losing sight of tactical choices particular organizations might make within their institutional opportunities to use the courts to make or block policy. Taylor’s own phrasing is that “The broad premise on which this book is founded is that the rules governing access to institutional venues for policy contestation matter significantly to final policy outcomes” (p.5).

Empirically, Taylor begins by explaining the Brazilian federal court system, with its five “highest” courts (the constitutional court, the Supreme Federal Tribunal, is the highest among “equals” in practice) and corresponding regional courts. By the design of the democratizing 1988 constitution, the courts have lots of judicial independence, both from elected branches and for individual judges, and offer access to many more actors than in Brazilian history and in most other current Latin American cases. For example, corporate actors, like unions and political parties, have standing to bring constitutional cases directly. Consequently, the courts carry a staggering caseload and consume many resources. An internal legal culture of protecting the vulnerable and promoting societal well-being is overwhelmed by the congestion of the court system. The net result is that individuals have a hard time using the courts to contest policy that harms them, while opposition groups can block policy or even reverse it or, conversely, insist on its implementation. [*803]

The remainder of the book tracks specific dimensions of when groups choose to activate the courts and when they are likely to be successful. Taylor uses multiple methods to answer these questions, shifting between case studies and more comprehensive surveys. Thus Chapter 3 focuses on the nature of the policy issue, using eight exemplary cases to discuss four possible policy types (inspired by Lowi): those with concentrated costs and benefits, those with distributed costs and benefits, and the two mixed types. He concludes that groups are most likely to decide to pursue a court strategy to contest policy when benefits are widely distributed across society, while costs are heavily concentrated on a small number of actors. In Taylor’s prototypical case, the civil servants disproportionately harmed by proposed social security reforms indeed peppered the courts at all levels with challenges wherever they could claim standing.

They were not particularly successful, and Chapter 4 provides some insight into the broader patterns of success and failure in the courts. This chapter focuses on just one mechanism, the Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade, or ADIN), but catalogues all 1000+ instances of its use between 1988 and 2002. This is the chapter where Taylor introduces the concept of the veto point, with the constitutional standing to file an ADIN marking a very clear veto point, as a decision of unconstitutionality can stop a policy in its tracks. Actors who are minorities in electoral politics thus gain a very powerful tool to block policy, and can acquire policy influence simply because they have access to this tool. Nine different actors have such standing in Brazil following the 1988 constitution: the prosecutor general (the head of the Ministério Público; see McAllister 2008 for an excellent discussion of this actor), the president, leaders of the Federal Senate, leaders of the federal House of Deputies, state governors, the national bar association (Ordem dos Advogados do Brasil, or OAB), political parties with representation in the national congress, and unions and other class associations with national representation. Using a binary logit analysis, Taylor finds that state actors and the bar association are the most likely to be successful when bringing ADIN cases, and that cases challenging policies on the judicial structure and judicial benefits are most often successful. There are few significant results for different types of law or different administrations. Notwithstanding these results, Taylor notes that judicial contestation is still more often successful for groups in the political minority than is contestation in the arenas dominated by electoral winners, the executive and legislature.

Chapter 4 singles out two actors that use opposing legal strategies to approach the courts: the OAB rarely uses its judicial standing to file ADINs, but is unusually successful, while opposition parties file many challenges to policies, but have the lowest success rates. Chapters 5 and 6 return to a case study strategy to analyze why these actors choose to make such different uses of their common institutional access. Opposition parties, notably the Workers’ Party, used a multi-level strategy, bringing not just large constitutional cases, but often using its broad grassroots membership to file multiple similar cases in lower courts. Its lower success rate is in large [*804] part due to its frequently expressive use of the courts to score political points or introduce a generalized sense of the illegitimacy of the opposed policy. This kind of use of the courts, even when legal failure is certain, has been paired with genuine legal challenges as well. In this way, the Workers’ Party makes unusually full use of the opportunities the courts provide to both discuss and challenge policy – and its standing to do so is also unusually broad in Brazil. The OAB, in contrast, has a privileged role in the court process, which it helped to enshrine in the 1988 constitution. Its use of the courts balances an “institutional vocation” (p.119) of constitutional defense with its institutional imperative to protect the interests of the legal profession. These aims sometimes coincide, but not as often as the OAB’s rhetoric might suggest. Because of internal rules and a more limited membership, the OAB is more circumscribed in the cases it files, which also contributes to its higher success rates.

Finally, a quick comparative chapter on the different roles four Latin American courts played in their national pension reform debates illustrates that the Brazilian experiences cannot stand in for the rest of Latin America. Its particular mix of judicial independence with comparatively broad standing arrangements made the Brazilian courts unusually viable as veto points for opponents of reform. Brazil may provide some important lessons for would-be judicial reformers among its neighbors, although its appeal will depend on how much those reformers favor policy checks. As Taylor notes in the conclusion, the implications for Brazilian democracy itself are somewhere between “ideal” and “abysmal” (p.158). What cannot be debated is that these particular judicial arrangements have had important impacts on the outcomes of Brazilian policy debates.

As this lengthy summary suggests, Taylor’s book is an important contribution to the emerging study of the Latin American judiciary. It is especially innovative in its focus on the policy impact of the courts – although his comparative chapter argues that the courts do not play such a large policy role in many countries. JUDGING POLICY is also the most comprehensive English-language study of the Brazilian courts to date, filling an important gap in our understanding of an increasingly important institution in an increasingly important country. Even as the most comprehensive study to date, it is far from complete. With the public sector accounting for 79% of all litigation in the Supreme Federal Tribunal (the highest constitutional court) in 1999-2003 (p.40), its judicial strategies deserve their own study, as do the extensive state-level court systems with their 2400 districts (p.25). So do the sectoral military, electoral, and labor courts. Other unusual legal developments, such as the comparatively large role of the public prosecutor or Ministério Público, have now received some study (McAllister 2008), but still need to be woven more systematically into the story of the Brazilian judiciary and how it operates, and for whom. No single work can cover all issues of interest, of course, but Taylor’s rationale for his particular empirical focus is not fully developed. On the other hand, his research strategy of moving between different methodologies and approaches [*805] is salutary, especially in the way the detailed case studies of the OAB and the opposition parties unravel how those actors’ choices help account for the large-n patterns seen in court usage. In short, this book is an excellent starting point for what will hopefully be a number of additional studies of this emerging policy shaper.

REFERENCES:
McAllister, Lesley K. 2008. MAKING LAW MATTER: ENVIRONMENTAL PROTECTION AND LEGAL INSTITUTIONS IN BRAZIL. Stanford: Stanford University Press.

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© Copyright 2008 by the author, Kathryn Hochstetler.

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BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION

by Peter J. Spiro. New York: Oxford University Press, 2007. 208pp. Hardback. $29.95. ISBN: 9780195152180.

Reviewed by Rebecca Hamlin, Department of Political Science, University of California, Berkeley. Email: rebecca.hamlin [at] gmail.com.

pp.798-801

For many years now, citizenship scholars have been furiously trying to put themselves out of business by proclaiming the death of citizenship. This book is no exception to that trend. Earlier authors have argued that citizenship is being decoupled from rights because of the spread of international norms (Soysal 1994; Jacobson 1996). In BEYOND CITIZENSHIP, Spiro moves one step up the explanatory chain and argues that globalization is causing citizenship to be decoupled from territory. This unmooring, according to Spiro, loosens citizenship’s hold on rights, allegiance, identity and community in ways that cannot be reversed. While this book may not convince every reader of the larger argument about citizenship’s inexorable decline, BEYOND CITIZENSHIP does an excellent job of illustrating, through specific examples, the ways in which globalization has simultaneously expanded and contracted America; it can be found all over the world, but the concept of America has been diluted.

As an explanatory variable, globalization is slippery. Because it is a multitude of peripherally related phenomena, some of which are as old as the hills, it is unclear when the trend towards the global began, what its endpoint might look like, and how it can be measured. Globalization sometimes means changes in formal rules, but it usually refers to shifts in the behavior of individuals and organizations. Spiro talks about both. He begins by arguing that as people have become more mobile and connected across borders, the mismatch between territory and citizenship is expanding. In that sense, he argues, citizenship is an inaccurate measure of “Americanness:” one can be just as American (whatever that still means) living in Delhi as in Miami.

To illustrate the ways in which American rules of granting citizenship are both over and under-inclusive, Spiro describes how some people born in the US may not be American in either their political loyalty or cultural identity, while others who have no claim to US citizenship are thoroughly American in all other ways. Spiro examines the residency requirements for naturalization, which were designed to ensure a modicum of assimilation. He argues that for some immigrants, these rules are ineffectual because of the strength of ethnic enclaves, which can insulate an immigrant from learning English, or about American culture. At the same time, these rules are unnecessary for other immigrants who arrive half-assimilated already, having been exposed to American culture at home. These examples are all marshaled to illustrate a major theme of the book, which is that presence on the American territory means less than it once did as a [*799] predictor of a person’s values and allegiances.

A further example (explored in Chapter 3) is the rise of “plural citizenship,” which Spiro argues has led to the erosion of the concept; if people hold multiple allegiances to nations, their commitment cannot possibly be as powerful as a monogamous one. He describes the rise of plural citizenship in the US as an unavoidable development in light of the proliferation of the practice across most immigrant-sending countries, suggesting that the US has been caught up in an international tide of citizenship plurality. In this arena, the United States has not led the way, but has followed other nations and still maintains stricter official rules about holding multiple citizenships than many other countries do.

No book on citizenship in the United States would be complete without a discussion of non-citizenship, and in Chapter 4, Spiro takes on this controversial topic. He convincingly makes the argument that the most powerful distinction in America today is not citizen versus non-citizen, but legal versus illegal. He then goes further to argue that for legal residents, “the landscape has been changing to extend protection,” and while the franchise is generally limited to citizens, there are many other rights and benefits of citizenship to which non-citizens have access (p.81). To readers in the field of immigration studies, the assertion that the protections of citizenship are expansive and inclusive of non-citizens may seem overblown given the ways in which legal permanent residents were targeted by the immigration legislation of 1996, as well as the more recent use of immigration law as a tool of anti-terrorism enforcement. Just because legality is a more relevant distinction in America today does not mean that lack of citizenship status is irrelevant. In a book with so many convincing arguments, that claim rings a bit hollow in comparison.

Readers looking for a nuanced treatment of the issue of alienage will probably prefer Linda Bosniak’s excellent recent book, THE CITIZEN AND THE ALIEN. However, in the sense that it argues that our current conceptions of citizenship and membership are incompatible with observable realities, BEYOND CITIZENSHIP is very much in the same vein as Bosniak’s work. It offers a clear articulation of the dilemmas of citizenship in the modern age, and may be more accessible to undergraduates because it is geared towards a general audience. BEYOND CITIZENSHIP is targeted at the general public, and tackles large-scale themes. As such, it would be a fitting addition to an undergraduate syllabus on globalization or American studies.

The implications of the argument in BEYOND CITIZENSHIP are really elaborated in Chapter Five, in which Spiro echoes the concept of post-national citizenship, which was fashionable among scholars in the mid-1990’s, by claiming that “membership in the state is not the only game in town” (p.110). In a manner that is both systematic and lucid, Spiro takes on a number of schools of thought regarding how America should be conceived and explains why they are untenable, or unachievable in the current world. In particular, he devotes time to working through the assumptions of liberal [*800] nationalism, arguing against the tenet that national identity is the most inclusive or lasting source of identity and membership for people. Instead, he suggests that it is one of many sources vying for people’s loyalty and attention. In today’s world, people are governed by an overlapping patchwork of regulations and obligations of which the nation represents only one component. In addition, people are governed by state and local politics, religious and cultural group membership, NGOs and international governance organizations, and corporations. He argues that more theorists should shift their attentions away from defining nationality, and focus on mapping “the relationship of citizenship to other forms of membership” (p.135).

While this argument is quite thought provoking, the way it is formulated potentially opens it to accusations of Amero-centricity. Spiro claims that citizenship as a general concept means less than it once did, but because the argument only extends to the United States context, it is difficult to discern whether the phenomenon being described is particular to this country, or exemplary of a global trend. Spiro suggests in his Introduction that America may be leading a more universal shift, but he does not explain the mechanisms of diffusion to other national contexts, especially given the different laws governing citizenship, and varying global roles played by each country. Indeed, his discussion of plural citizenship suggests that America does not always lead but can be a reluctant respondent to the evolving citizenship rules of other nations.

America is perhaps the easy case for arguing the decline of citizenship’s value, because it has always had a more amorphous character than that of other nations, and because, as Bickel reminds us, “we live under a Constitution to which the concept of citizenship matters very little indeed” (1973, at 387). Further, because of the decentralized nature of American governance combined with an extremely rich civil society, the patchwork of regulations affecting someone in the United States is particularly erratic and layered compared to those living elsewhere. These particularities raise questions about generalizability of Spiro’s theory to other nations. For example, if other countries are more unified in their governance and have far weaker civil societies, how do different identities, some of them based in a national membership and others more contested, interact with one another?

To be fair, it is a central goal of BEYOND CITIZENSHIP to get people asking just such questions. However, the book itself seems fairly uninterested in the global ramifications of the decline of citizenship, and focuses on the American story. As a result, Spiro’s description often leans toward explanation of a unidirectional threat, rather than description of an interactive global phenomenon. If, as Spiro asserts, “plural citizenship emerges as another tool in the global infiltration of American ideals,” it must also represent the infiltration of American ideals throughout the rest of the world in equal measure (p.78). While the overall claims of the book acknowledge citizenship’s changing role as an international process, the book’s rhetoric occasionally slips into phrases of lamentation such as: [*801] “once everyone is an American, no one is an American” (p.52).

The picture painted in BEYOND CITIZENSHIP will strike many readers as bleak, or at the very least, sobering. Spiro argues that the assumption that the nation state is of central importance leads both politicians and the public to place expectations on policy that cannot be fulfilled. Many of the organizations which compete for our loyalties are non-governmental and distinctly non-democratic, raising questions about how discrimination and oppression generating from these sources might be prevented.

Unlike most other scholars in the post-nationalist strain, Spiro is skeptical that “international human rights could prove instrumental in mitigating injustice in non-state membership practices” (p.157). For those readers who are frustrated by assertions that international human rights will impact non-governmental bodies, when they are only partially effective at mitigating injustice in state membership practices, this book will stand out in comparison to many others like it. Those who are looking for hope, or for policy prescriptions, will be left disappointed, because as Spiro openly admits, “this book is not intended to kindle correctives” (p.162). On the contrary, he makes a fairly impassioned argument for the impotence of domestic policy or international law to reign in the inevitable splintering of people’s identities and loyalties into endless factions. He concludes with the suggestion that because attempts to stop this shift are futile, concerned parties should turn their attentions to understanding the new world order of governance, allegiance and rights, one in which national citizenship is (if not dead) no longer robust.

REFERENCES:
Bickel, Alexander. 1973. “Citizenship in the American Constitution” 15 ARIZONA LAW REVIEW 369.

Bosniak, Linda. 2006. THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP. Princeton, NJ: Princeton University Press.

Jacobson, David. 1996. RIGHTS ACROSS BORDERS: IMMIGRATION AND THE DECLINE OF CITIZENSHIP. Baltimore, MD: Johns Hopkins University Press.

Soysal, Yasemin. 1994. LIMITS OF CITIZENSHIP: MIGRANTS AND POST-NATIONAL MEMBERSHIP IN EUROPE. Chicago: University of Chicago Press.

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© Copyright 2008 by the author, Rebecca Hamlin.

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SELF-DEFENSE IN ISLAMIC AND INTERNATIONAL LAW: ASSESSING AL-QAEDA AND THE INVASION OF IRAQ

by Niaz A. Shah. New York: Palgrave Macmillan, 2008. 208pp. Hardcover. $74.95. ISBN: 9780230606180.

Reviewed by Charles Robert Davidson, Department of Political Science, American University in Cairo. Email: cdavidson [at] aucegypt.edu.

pp.792-797

Well before the events of September 11, 2001 would spawn an almost overwhelming fascination with all things Islamic – particularly insofar as they were deemed to relate to terrorism – the language of Islamic law had begun to seep into general discourse. After al-Qaeda’s 1996 “Declaration of War against the Americans Occupying the Land of the Two Holy Places,” and the 1998 World Islamic Front pronouncement (signed by Osama bin Laden and Ayman al-Zawahiri, among others), was issued, declaring “jihad against Jews and Crusaders,” notions of so-called “holy wars” and Islam’s supposed division of the world into implacably hostile zones of dar al-Islam and dar al-Harb began to pervade discussions in the mainstream press and to capture increased scholarly attention. In the aftermath of September 11, the trend took on an altogether new magnitude with previously obscure Islamic legal terminology becoming firmly embedded in the popular lexicon. Journalists and jurists, pundits and professors all mined Islamic doctrine and adopted the idiom of Islamic jurisprudence employed by the militant Islamist groups in an attempt to explain what seemed inexplicable to much of the public. (Of course, these terms had already been in widespread usage throughout the Islamic world, particularly amongst the more radical Islamist movements that emerged after the 1967 war with Israel (See e.g., Khatab 2006, at 194-211). Analysts of all stripes engaged in often convoluted and tortured interpretive analyses of the tenets of Islam to demonstrate whether they comport with prevailing legal norms, particularly with regard to the use of force. At the heart of this contentious and on-going debate lies the hotly contested legal concept of jihad.

Contending Views
Jihad has come to serve as a polemical lightning rod. Those who seek to depict Islam as an inherently violent religion often point to the notion of jihad as dispositive proof that Islam is an expansionist religion driven by a pitiless and inexorable blood-thirst. Islamic law, they contend, plainly exhorts believers to propagate and protect the Islamic faith through the means of aggressive war. The word and deed of militant Islamist groups (who are often labeled “jihadists”) buttresses this essentialist view of Islam. Others take a contrasting position, advancing the view of the inherently peaceful nature of Islam, noting the resort to force is generally proscribed save in exceptional and unavoidable instances (See Ali and Rehman 2005, at 330-333). Adherents of this view contend that jihad has little to do with the wanton violence perpetrated by al-Qaeda and other radical groups, but is rather an inherently peaceful injunction, a call for [*793] “self-exertion in peaceful and personal compliance with the dictates of Islam” (An-Na’im 1990, at 145).

It is clear from his work, SELF-DEFENSE IN ISLAMIC AND INTERNATIONAL LAW: ASSESSING AL-QAEDA AND THE INVASION OF IRAQ, that Niaz A. Shah subscribes to the latter perspective on the relationship of jihad to the use of force. Shah sets out to provide a legal analysis of the principle of self-defense under both Islamic and international law. Specifically, Shah seeks to analyze the legal sufficiency of claims of jihad made by al-Qaeda as expressed in its 1996 declaration as well claims of self-defense made by the US and its allies with regard to the 2003 invasion of Iraq. In each instance, Shah concludes that the arguments made by both parties fail to satisfy the requisites found within either Islamic law or international law. The author’s ultimate goal in decrying the misuse of doctrines of self-defense, whatever their origin, is an admirably lofty one. Shah aims to show the fundamental conceptual convergence of Islamic and international law on the question of self-defense, and “by showing this legal compatibility, the trust of Muslims and non-Muslims [sic] worlds may be restored on both systems” (p.2).

Jihad as Self-defense in Islamic Law
Shah sets forth his view on the concept of self-defense in Islamic law by examining the concept of jihad in its “defensive” and “offensive” forms. According to the author, the Qur’an itself permits the “necessary and proportionate use of force in self-defense” (p.14), which characterizes the defensive – and according to Shah – proper theory of jihad. This outlook is contrasted with that taken by others who call for a more aggressive approach, exhorting Muslims to propagate the Islamic faith using peaceful methods, but in the event of hindrance, authorizing the resort to violence. This latter perspective represents the “offensive” theory of jihad, famously propounded by influential Islamist ideologues such as Maududi and Qutb, which Shah argues is based on a faulty, selective reading and misinterpretation of the relevant legal provisions.

Drawing largely upon the Qur’an, Shah explicates the permissible grounds for use of force, its duration, and limitations on the right of self-defense. Shah does a creditable job in making his arguments that the Qur’an delimits with some clarity the parameters of defensive use of force. His careful textual analysis allows him to declare, for instance, that Islamic law requires (much like public international law) that the limiting requirements of necessity and proportionality be fulfilled (p.17). After sketching the parameters of what he deems the permissible use of jihad in self-defense, he broaches the issue of who has lawful warrant to declare and wage jihad. Citing verse 4:59 of the Qur’an (“O ye who believe! Obey Allah and obey the Messenger and those charged with authority among you.”), Shah contends that only those in power have the authority to wage (defensive) jihad. This point is persuasively argued and is indeed supported by hadith and the writings of jurists, although not cited in the text.

Far less clear and persuasive is Shah’s claim that the decision to declare jihad is a question of public safety consigned to [*794] those in authority, so long as “the public trusts and believes that the government is Islamic.” If, however, “the government loses support and is considered un-Islamic, then those who have the trust and support of the public can take decisions on public safety after being put in a position of authority according to Islamic law” (p. 22). Shah then asserts that, where several pre-conditions are met (an attack on a Muslim land, a ruler “on the side of the invader, “and “a well-founded fear that the ruler will not protect the lives and properties of Muslims”) and there is consensus among “Muslim leaders,” jihad may be lawfully declared in defense of Muslims. Shah cites no authority for this proposition. He blithely states that this declaration of jihad by a non-state actor is in compliance with the principles of self-defense and self-determination in the U.N. Charter and Article 1 of the International Covenant of Civil and Political Rights. In support of this argument, Shah cites Frantz Fanon’s THE WRETCHED OF THE EARTH. He then goes on to make the seemingly inconsistent and oddly worded argument that pursuant to Art. 51, the right of self-defense is “available to states only, but in a case where the head of state works against the interest of his country, the consensus declaration of war by other Muslim leaders should be taken as a legitimate substitute” (p.23). Lacking greater specificity, this argument falls flat.

Shah concludes this segment with an analysis of the notion of offensive jihad, arguing that its proponents such as Sayyid Qutb, for instance, have selectively read key verses out of their broader context. While certainly not condoning the notion of “offensive” jihad, Shah suggests that the writings of Qutb and Mawdudi (and ostensibly others as well) advocating this type of jihad can be understood by reference to the sociopolitical contexts in which they were writing. He writes that Mawdudi, Qutb, and even the 14th century jurist ibn Taymiyyah’s “extreme” views on jihad were born of perceived situational necessity: a desire to get rid of foreign overlords (in the case of Mawdudi who wrote during the British occupation of the Indian subcontinent), un-Islamic government, (in the case of Qutb, who opposed the Nasser regime), and invading hordes (in the case of Ibn Taymiyyiah who wrote under threat of a Tatar invasion of Central Asia). There is no doubt that sociopolitical realities inform all writing, and it is crucial to foreground context, yet it does seem slightly inconsistent with Shah’s views on the fundamental doctrinal incompatibility of offensive jihad to suggest that the context might in some way justify its usage.

Shah builds upon his earlier arguments regarding defensive jihad to demonstrate that the 1996 and 1998 declarations of jihad by al-Qaeda failed to meet the prerequisites of Islamic law, namely the requirement that jihad be declared by a governing authority, and that civilians not be targeted in warfare. Shah argues that at the time of these declarations, no Muslim country was under attack nor was any attack deemed imminent, and that where Muslims were persecuted (Kashmir, Palestine, Chechnya, for instance), “[they], at the same time, were able to inflict harm on their persecutors”(p.57). Thus, according to his reasoning addressed above, no grounds existed for the lawful declaration of jihad by a non-state actor [*795] like al-Qaeda. Regarding Saudi Arabia, a focal point for the ire of al-Qaeda, Shah notes that the declaration of jihad against the Saudi regime is unjustified since “the government claims to be applying Sharia law,” and since “there are no serious internal disturbances or radical opposition groups against the government.” He goes on to note, somewhat oddly, that “people seem to live normal lives, as would be expected in that region”(p.58).

This segment contains the more provocative aspect of Shah’s work in which he warns that if the US-led coalition forces do not withdraw from Muslim lands, Muslim leaders might consensually decide to declare a Quranically sanctioned jihad against them. This argument ignores the divisive political realities of contemporary intra-regional politics, as well as the complexities of Middle Eastern-Western relations. Alternatively (and slightly more plausibly), he argues that Muslim leaders might begin providing support to al-Qaeda. Again, Shah’s argument seems to ignore the deadly hostility that exists between al-Qaeda and most governments in Muslim-majority states. If, Shah argues, there is “sufficient Muslim leaders’ consensus,” an otherwise un-Islamic jihad, such as that waged by al-Qaeda, might be cured of its illegitimacy and become legal under international law (p.48). To support this, Shah simply refers the reader back to his earlier and unconvincing argument that jihad declared by consensus (what quantum of consensus is required is not addressed) comports with international law.

This chapter contains a segment on Iraq, Afghanistan and the causes of terrorism. It appears that the author seeks to debunk the myth that terrorism has any relationship whatever with Islam, a point that, though frequently heard, is likely worth reiteration. Much of the information here is widely-known, and more thoroughly discussed in the literature on terrorism and political violence. It is an interesting chapter but this excursus into the shortcomings of US policy in the Middle East – though in large part accurate – detracts from the legal argument that Shah is attempting to construct.

Self-defense under International Law and the War in Iraq
Article 51 of the U.N. Charter, addressing the right to self-defense, has been extensively analyzed in its relationship to Article 2(4) of the Charter which seems to prohibit the use of force in international relations. Shah nicely summarizes the arguments made for and against a narrow interpretation of Art. 51, and concludes, as do many scholars that Art. 51 mirrors customary international law in permitting the use of force taken in “anticipatory self-defense.” He then tackles the thornier question of preemptive self-defense, a concept that has gained considerable attention since the US-led invasion of Iraq. Here again, Shah treats the contending legal arguments with clarity and balance. This chapter will make an excellent reading for an undergraduate international law class dealing with the use of force.

Concerning the legality of the invasion of Iraq, Shah concedes that there is a divergence of opinion among international lawyers but maintains that “those who support the invasion of Iraq are either on the payroll of Anglo-American administrations or politically [*796] aligned with them” (p.121). Here again, Shah does not cite any evidence to support this sweeping claim. He then goes through the now extensively analyzed flaws in the underlying evidence leading up to the war, and challenges the “revival theory” by which it has been suggested that that U.N. Resolution 678 authorized the use of force against Iraq, without need for further Security Council authorization. This chapter, though covering material that has been extensively covered elsewhere, is clearly written and well-organized and again would be appropriate reading for an undergraduate law or political science course dealing with the use of force.

In the final segments of the book, Shah makes his claim that Islamic law and international law, though different, remain fundamentally convergent regarding the use of force in self-defense. He reiterates the point that any law, whether domestic or international, is potentially subject to abuse, and both Islamic law and international law have been misused by al-Qaeda and the Anglo-American coalition in Iraq.

Shah closes by taking to task the international legal order as a whole, which he sees as dominated by a few states to the detriment of the multitude of less powerful states. In this imbalance lie the seeds of violent conflict. Shah rather wistfully advocates that “countries that are considered the seats of power should be at the forefront of setting up the best precedents of compliance with international law” ( p.178). To emphasize his point, he makes broad critiques of the composition of international organizations, naturally pointing out the inequities that inhere in a Security Council dominated by five veto-holders, as well as the injustice of contemporary nuclear legal regime, and the pitfalls of US-UK democracy promotion schemes in the Middle East.

Conclusion
Shah makes many important and valid points in support of his argument that law, whatever its source, is malleable and subject to manipulation. Shah rightly cautions the reader to be ever mindful of gross distortion, particularly given the sanctity that law of all sorts tends to (rightfully or wrongfully enjoy). His treatment of international law pertaining to use of force is particularly strong and well argued. The portion treating the Islamic law of self-defense, although thought-provoking, was less persuasively argued, and was undermined by unsubstantiated and overbroad conclusions. On a stylistic level, the volume’s readability might have been enhanced by a more stringent edit, as phrases are occasionally awkward and unclear, but none of this detracts from the overall value of this volume, parts of which I will add to my syllabus on Public International Law.

REFERENCES:
Ali, Shaheen S., and Javaid Rehman. 2005. “The Concept of Jihad in Islamic International Law.” 10 JOURNAL OF CONFLICT AND SECURITY LAW 321-343.

An-Na’im, Abdullah A. 1990. TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS, AND INTERNATIONAL LAW. Syracuse: Syracuse University Press. [*797]

Fanon, Frantz. 1966. THE WRETCHED OF THE EARTH. New York: Grove Press.

Khatab, Sayed. 2006. THE POWER OF SOVEREIGNTY: THE POLITICAL AND IDEOLOGICAL PHILOSOPHY OF SAYYID QUTB. London: Routledge.

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© Copyright 2008 by the author, Charles Robert Davidson.

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WHITE ENOUGH TO BE AN AMERICAN? RACE MIXING, INDIGENOUS PEOPLE, AND THE BOUNDARIES OF STATE AND NATION

by Lauren L. Basson. Chapel Hill: The University of North Carolina Press, 2008. 256pp. Cloth. $59.95. ISBN: 9780807831434. Paper. $22.95. ISBN: 9780807858370.

Reviewed by Daniel Lipson, Department of Political Science, SUNY New Paltz. Email: lipsond [at] newpaltz.edu.

pp.788-791

At a moment in United States history when Barack Obama is inspiring millions in his presidential bid, the reality of mixed-race Americans is becoming increasingly salient in a nation long obsessed with dichotomous black and white racial categories. With the population of people of color in the United States accelerating at rates unmatched by any other country in the world, racial discourse in the US has gradually come to accommodate the full cast of official minorities, moving beyond the limited focus on blacks and whites. Yet the historical precedent in the United States has been to leave little space for mixed-raced Americans, instead preserving the racial order by forcing them into monoracial categories. As Lauren Basson explains in WHITE ENOUGH TO BE AMERICAN? RACE MIXING, INDIGENOUS PEOPLE, AND THE BOUNDARIES OF STATE AND NATION, the turn of the 20th century proved to be a highly dynamic period that left a major imprint on the distinctive American model of racial categorizations.

Basson’s book conducts a microanalysis of mixed-race indigenous Americans during the period from 1885 to 1905, showing how conflicts over racial identity at the “margins” reveal central dynamics about the US nation and state – in particular, the shifting forms of white supremacy – during this volatile period of United States history. The first chapter covers the conflicts facing two “mixed blood” Indians who filed claims for land allotments following the dissolution of the Great Sioux Reservation in 1889. The legal challenges experienced by Jane Waldron and Barney Traversee in Chapter 1 reveal the different form white supremacy took. Whereas Americans with any African ancestry were labeled as black and excluded from the privileges of whiteness, American Indians faced the contradictory forces of assimilation and exclusion. Basson writes that “granting citizenship to American Indians formed part of a larger project to control the Indian population through partial assimilation, while simultaneously limiting Indian membership in the nation through the reinforcement of a strict racial hierarchy” (p.32). At the turn of the century, policymakers required definitions of racial identity that were increasingly precise in order to sustain and strengthen their racialized system. Whereas the prevalence of mixed-race Americans could have spurred policymakers to abandon the flawed racial scheme of racial categorization, instead they responded to this challenge with “renewed efforts to define race scientifically” that led them to “strengthen the rigidity of racial [*789] boundaries” (p.43). Blood quantum (as opposed to matrilineal descent, patrilineal descent, or tribal definitions of membership) began to emerge as the preferred government standard for identifying racial identity at the turn of the century, as the scientific community increasingly favored this approach. Basson argues that “the flexibility and fluidity of racial categories was diminishing, and the little room for mixed identities that had once existed was vanishing quickly” (p.1).

Whereas the last two case studies in Basson’s book examine activists who objected to being labeled as black by government officials and reporters, the first two case studies concerning Jane Waldron, Barney Traversee, and Louis Riel involve individuals who could pass as white. Jane Waldron’s mixed-race status hindered her efforts to obtain a land allotment under the Dawes Act of 1887. Waldron’s husband and father were white, while her mother was Indian. To win her allotment case, Waldron “had to present herself as if she were a widow in order to be recognized as a female head of family. In other words, she had to treat her husband as legally dead” (p.37). Barney Traversee ran into difficulty in his efforts to sell his allotment. The secretary of the interior prohibited even Indians who were US citizens from selling their land. Traversee shifted strategies and later denied being Indian, instead claiming to be white. His father was of French descent, while his mother was both European and Indian. Yet he claimed in his new narrative that both of his parents were white. In the end, the secretary of the interior ruled in favor of Traversee, allowing him to sell his land so long as he agreed to sever his ties to the Sioux Indian tribe. Government officials viewed Americans seeking to identify as mixed-race as such a threat to the American system of white supremacy that these officials went to great lengths to eliminate “mixed bloods” from the nation and state. US officials opted for delegating tribal status of such “mixed bloods” with claims to Indian identity to the specific Indian tribes, thus “conveniently absolv[ing] officials of the need to answer a question for which they had no adequate conceptual response” (p.52).

The second chapter examines the movement by the mixed-race Métis – and their leading activist Louis Riel – for a Métis homeland. The Métis practiced Catholicism and shared French, English and Scottish ancestry. During the late 19th century, Métis lived on both sides of the border between the US and Canada in the Northern Plains. Canada was moving quickly in the mid-1800s to purchase the Northwest Territories – which today consists primarily of the Canadian province of Manitoba – from the Hudson’s Bay Company. The United States chose not to pursue annexation of the Northwest Territories, in part to avoid angering Canada and Great Britain. Once Canada had annexed the territory, Louis Riel and his Métis followers declared a provisional Métis government and turned back federal government surveyors in the Red River Rebellion. One of their primary grievances was that Canadian officials were moving to parcel agricultural land into square private plots that conflicted with the Métis tradition of arranging their farms into narrow pieces of land, allowing each farmer access to the river. Riel moved to Minnesota and later to Montana after claiming to be a prophet [*790] and being released from being institutionalized in a psychiatric hospital. He was charged with and convicted of treason in the territory of Regina and sentenced by the jury to death by hanging for the crime of executing a Canadian Orangeman during the Red River Rebellion. The Métis challenged US officials’ constructions of race as well as conventional definitions of the US nation and state to such a degree that the US government eventually issued a large-scale deportation of Métis. One Indian agent on the Crow reservation in Montana went so far as to write that the Métis posed a greater threat than the Indians because of the superior intelligence of the Métis stemming from European American habits and European heritage.

The third chapter provides a case study of Robert Wilcox – Hawaii’s first delegate to Congress and founder of the Home Rule Party – and the role racism played in debates over annexation and statehood. Wilcox’s mother was a distant relative of a previous king of Maui, while his father was a Rhode Island sea captain who became a rancher in Hawaii. Although he was an American citizen, his dark skin excluded him from membership in the US nation. While the second chapter examines the US decision not to annex an adjoining territory, the third chapter explains why the US did annex Hawaii and the role white supremacy and capitalism played in the debates over annexation of a territory so far from the continental US. At a time of growing US imperialism, “definitions of the US nation became more abstract, ideological, and ascriptive” (p.97). Being American no longer required living or owning property on the American continent; instead, it became increasingly connected to one’s commitment to white supremacy and the institution of private property: “Americanism, like whiteness, became a possession and form of property with its own attendant rights and responsibilities. Indeed, the possession of whiteness became a major component of what it meant to be a member of the American nation” (p.98).

While the first three chapters focused on how policymakers and the press decided mixed-race individuals’ claims of being American, the fourth and final chapter examines allegations of un-American activity by mixed-race Americans. This chapter highlights Lucy Parsons, a leading anarchist activist who described her ancestry as Indian and Mexican (but not African). Parsons identified herself as an indigenous American, claiming that the “white capitalists” were the true foreigners. But US officials along with the mainstream media portrayed Parsons and other anarchists as non-white foreigners who threatened American ideology and territorial integrity. Despite Parson’s denial, reporters labeled her as being a Negro, which was part of a concerted effort to further marginalize anarchist activism.

Of theoretical interest is the book’s challenge to Rogers Smith’s “multiple traditions” approach to American political culture. Whereas Smith suggests that racism has been rooted in a discrete, ascriptive/ethnonational tradition that has existed throughout US history alongside liberalism and republicanism, Basson argues that “racism was inherent in the full range of political discourses in the United States at the turn of the twentieth century” (p.180). Smith acknowledges the [*791] contradictions among liberalism, republicanism, and ascriptivism – particularly the clash between the egalitarian ideals of the first two philosophies and the bigotry of the third. In contrast, Basson exposes the racist contradictions that were internal to each of these three discourses. This is revealed by scrutinizing the discourses in practice at the local levels rather than merely analyzing “elite proclamations or the passage of abstract laws and policies” at the national level (p.180). Not surprisingly, Basson has less faith than Smith in the promise of the liberal conception of the nation.

WHITE ENOUGH TO BE AN AMERICAN provides a rich, in-depth analysis of racism in the American nation and state. While the book’s audience may be limited by focus on four historical case studies at the social, political, and geographical margins, the theoretical and empirical contributions of this book extend far beyond the narrow period and cases being examined. That said, the book could have benefited from further elaboration on the impact this historical legacy of race mixing has had on the racial order today. Basson’s book would be an excellent addition to upper-level and graduate courses on race/ethnicity and the law, American political development and political culture, socio-legal studies, American Indian studies, and whiteness studies.

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© Copyright 2008 by the author, Daniel Lipson.

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TERRORISM, RIGHTS AND THE RULE OF LAW: NEGOTIATING JUSTICE IN IRELAND

by Barry Vaughan and Shane Kilcommins. Cullompton, Devon, UK and Portland, OR: Willan Publishing, 2007. 240pp. Hardback. $79.95/£50.00. ISBN: 9781843922650. Paperback. $35.95/£18.99. ISBN: 9781843922643.

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

pp.784-787

“It is a common conceit of the current era to believe that we are living in unique times, that present circumstances have thrust us away from previous habits and towards practices that are foreign to us. Currently, politicians are telling the public in many countries that the new forms of terrorism that have arisen since 9/11 demand responses that may cut into previously untouched freedoms. Furthermore the relationship between citizen and state may have to be reordered to cope with the risks to security that this new terrorism poses. And states may have to impose unusual restrictions on citizens’ movements and routines and dissolve some of the protections that have previously been afforded to suspects” (pp.4-5).

Albeit lengthy, the opening passage by Barry Vaughan (Institute of Public Administration, Dublin, Ireland) and Shane Kilcommins (Centre for Criminal Justice and Human Rights, U. College, Cork, Ireland) in Chapter One (“Ending or extending the long nineteenth century of criminal justice”: pp.4-18) is worthy of quoting in full.

First, with regard to the present, it is a common European retort to American policy since 9/11 to say that the only thing unique about the atrocities is that US citizens were the victims. “Welcome to the World,” Arundhati Roy – ungentley and inhumanely – writes in WAR WITH NO END (p.38).

Yet to miss the distinctiveness of Terror Tuesday is to misinterpret today’s terrorism and overlook, what Philip Bobbitt, author of TERROR AND CONSENT: THE WARS FOR THE TWENTY-FIRST CENTRY, calls its “profound periodicity” (p.44): from sixteenth-century privateers and eighteenth-century Barbary pirates to twentieth-century IRA and twenty-first century terrorism. So unique is this period that Bobbitt heads his opening chapter “The New Masque of Terrorism” (pp.23-84).

Secondly, with reference to the citizen and state, the relationship need not be reordered in toto. Rights of the citizen and powers of the state do not exist along a simplistic axial spectrum – moving between the latter in times of tumult or toward the former in times of tranquillity. An increase in one need not mean a diminution of the other.

It is a blunder to think of rights and powers as a zero-sum game (Vaughan and Kilcommins say as much: p.14). Paradoxical as it may seem, increasing the powers of the state can increase the liberties of the people (the authors do not say as much). [*785]

“It may be true that it’s better to let a hundred guilty persons go free than to have one innocent person be detained. But is it also true that it’s better that one hundred innocent people die so that one innocent person not be detained? That’s the world we enter when we go from mere crime to the mass murder of twenty-first century terrorism” (Bobbitt: p.247).

For all of Vaughan and Kilcommins’ hyperbole pertaining to “squashing the values of due process” (p.6), “executive encroachment upon the rule of law” (p.6), “the vulnerability of the rule of law to governmental decree” (p.7) and “the machinations of the executive” (p.14), al Qaeda remains by far the gravest threat to citizens’ movements today – not the “inconvenience and annoyance occasioned by more rigorous law enforcement” (Bobbitt: p. 246).

That said, as Vaughan and Kilcommins point out, “There is a legal dialectic at work which is often overlooked when commentators talk of the suspension of law. They neglect how the judicial habitus, in its constant re-articulation of the rule of law via individualised cases, affirms due process values and continues to provide some protection from arbitrary states power” (pp.13, 18). Chapter Eight (“Conclusion: The war on terror and campaigns for rights: pp.171-177) is a case in point. Rest assured there is certainly no “neglect of the past” on the authors’ part (p.171) and, what is more, neither do they align themselves with the “liberty lobby” (p.172).

Historically-speaking, Chapter Two (“Justice, rights and reciprocity”: pp.19-40) and its chronicling of “crime and modernity” (p.20) followed by the change “from sovereignty to government” (p.21)” proves a page-turning affair. Shortly thereafter, Vaughan and Kilcommins examine the work of three theorists: John Lea, Pat O’Malley, and John Pratt within the neo-conservative and neo-liberal discourses. Talking of neo-conservatism, while “Manichean” (p.27) is one such incontrovertible definition, “baleful” and “malign” (p.29) are – fashionable as they are in academic circles – less so.

Chapter Three (“Reconstructing truth in the criminal law: Moving from an exculpatory to an inculpatory model of justice”: pp.41-66) charts the transformation of the accused in the justice system at different historical points in time: from the birth of centralised production and the death of localised law to the lawyerisation we have today. All the same, Chapter Seven (“Justice beyond the nation-state”: pp.152-170) reports that 1980s “Concerned Parents Against Drugs” practices parallel with trials in the eighteenth and early nineteenth centuries (p.168).

Condensing the Irish story between the eighteenth and twentieth century models of justice is surprising albeit understandable pages later. Up until this point, however, it must be noted that Vaughan and Kilcommins have yet to tackle the subtitle (NEGOTIATING JUSTICE IN IRELAND) – fifty pages in and all we have is the odd reference to its constitution (pp.10, 39) or its colonial status (pp.31, 43).

Chapter Four (“Law in the shadow of the gunman”: pp.67-96), building upon Chapter Three and the localised model of justice being tested to the limit across [*786] Irish Sea from England and Wales, shows how the perpetual paramilitary action entailed that law resided under the shadow of the gunman. The fallout is a dual system of justice: rule of law and rule by law. (Be sure the executive-judiciary polarity is the central theme of the book.) Normalisation of the exception, extraordinary law normalised, call it what you may, but Vaughan and Kilcommins offer five examples of how unconventional laws deal with conventional crime (pp.81-90):

1. Gardaí holding and information gathering tactics
   
2. Extra-ordinary measures and non-paramilitary activity
   
3. The retention of the non-jury Special Criminal Court for non-paramilitary activities
   
4. Seizing criminal assets without requiring a criminal conviction
   
5. The acceptance of supergrass testimony in the ordinary criminal justice system

Yet, in stark contrast to the preceding chapter and the shadow cast by the gunman, Chapter Five (“Entrenching the ‘equality of arms’ framework in the ordinary criminal justice system in Ireland”: pp. 97-119) illustrates case law that illuminates a working inculpatory justice system. A conceptually – not chronologically – rich installment is in store.

Of a similar tone, Chapter Six (“Disaggregated Justice”: pp.120-151) charts the delicate equilibrium between accused/state relations and the protection from the state to protection by the state. Vaughan and Kilcommins are at pains to highlight the “thickening” periods of detention concomitant with the “thinning” of interrogation particulars. In a similar vein to Oren Gross and Fionnuala Ní Aoláin (2006), Vaughan and Kilcommins shed light on a dark corner of the legal universe and emergency powers.

Law and politics aside, it is worth noting the authors’ animated style of writing: “Advancing this engine of judicial oversight requires the ‘carriage of due process’ to preserve a space of liberty from executive encroachment” (p.14).

“Our purpose in this chapter is to attempt to paint a very large landscape, capturing broad contours and the sharpest of contrasts rather, than a portrait that is consumed by detail and precision” (p.42).

“. . . herding Irish exceptionalism into one chronologically disordered section” (p.44).
“. . . swampy textual lowlands” (p.98).
“. . . dying sting of the modernist wasp” (p.119).

Make no mistake about it, Vaughan and Kilcommins’ lively intelligence is a beneficial rarity. Historically nuanced, disciplined, not to mention, multidisciplinary, TERRORISM, RIGHTS AND THE RULE OF LAW is a title that is as historical as it is new-fangled which renders it all the more important given that we are living in unique times.

REFERENCES:
Berger, John (ed). 2007. WAR WITH NO END. London: Verso Books. [*787]

Bobbitt, Philip. 2008. TERROR AND CONSENT: THE WARS FOR THE TWENTY-FIRST CENTURY. London: Penguin Books.

Gross, Oren, and Fionnuala Ní Aoláin. 2006. LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE. Cambridge: Cambridge University Press.

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© Copyright 2008 by the author, Lee Ruddin.

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SAVING THE CONSTITUTION FROM LAWYERS: HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL MEANING

by Robert J. Spitzer. New York, NY: Cambridge University Press, 2008. 206pp. Cloth. $85.00/£45.00. ISBN: 9780521896962. Paper. $27.99/£15.99. ISBN: 9780521721721.

Reviewed by Patrick Schmidt, Department of Political Science, Macalester College, Email: schmidtp [at] macalester.edu.

pp.779-783

With apologies to Archilochus and Berlin, Robert Spitzer, as viewed through SAVING THE CONSTITUTION FROM LAWYERS, might be a hedgehog who knows two big things. He knows that there is something deeply wrong with the constitutional politics advanced, primarily by conservatives, over the past few decades. He also knows the mode of production of legal ideas in the United States is something of a duckbill platypus: a species among the world’s creatures that evolution hath wrought but that no one would imagine or design if left to their own devices. For both of these views, Spitzer will undoubtedly find a ready audience for his thorough and vigorous attacks. If he “has you at hello” so far as his attack on student control over law reviews or John Yoo’s views on executive power, Spitzer’s ultimate step requires fox-like dexterity: as stated plainly by the title, there is a connection between these two observations about the world of contemporary legal scholarship and thought.

In a fast-paced fifty-one pages, the first two chapters present the two-fold problem of legal scholarship. In the first chapter, he explores the distinction between advocates and scholars. Trained for contestation, the instincts of lawyers have been honed by education and socialization to value client needs and interests over truth. Spitzer defends these instincts for adversarial adjudication but, leaning heavily on Epstein and King (2002a), rejects this sensibility for the work of the social sciences. Lawyers never develop the culture of diligence and care required of scholarship. Spitzer seems to appreciate that the “social sciences” represents an ideal type, imperfect in practice, though his thumbnail sketch could do more to flesh out what should be expected of constitutional theorizing. In Chapter Two, Spitzer seeks to link the moral economy of “advocacy scholarship” with a structure of publication – law reviews – that provides no check. He very helpfully synthesizes the history of legal writing and publication and rehearses the criticisms of the law review system, including the familiar problems of footnoting and article length. The key to his account lies in the further comparison with the “academic gold standard” of professional peer review (p.49). While imperfect in practice, “the logic of peer review is self-evident” (p.50), and student control over legal publication lacks a “barrier to writing that is incompetent, bad, and wrong” (p.55), giving the legitimacy of publication to false ideas that then seep into constitutional discourse. [*780]

How bad, exactly? And what does it matter if some “wrong” claims get published among the 1,100 law publications in print? Three case studies, in Chapters Three through Five, are Spitzer’s data for the claim that the problem is quite serious. Here Spitzer’s commitments are most evident, as he engages in a blow-by-blow analysis of the arguments made for three contemporary constitutional positions: Chapter Three takes on the “inherent veto” argument, that the President holds line item veto power irrespective of whether Congress attempts to delegate it (as it did in 1997). Chapter Four engages the arguments concerning the “unitary executive” theory, especially as it pertains to the powers of the Commander-in-Chief. Chapter Five reviews the arguments that have been advanced in favor of an individualist interpretation of the Second Amendment. All three chapters are sterling in their close analysis of the issues, and they can serve as valuable reference points to these debates. Consistently and emphatically across all three of these, Spitzer rails against the faulty scholarship that found expression in law review articles, and he never strays far from his indictment of the (mostly) conservative “invention of a fictionalized constitutional past. The desire to mold constitutional, originalist understandings to fit contemporary political needs is understandable but reprehensible” (p.127).

In order to sustain his larger argument, a couple questions must be answered. First, were “advocacy scholarship” and the sloppy standards of law reviews essential in driving the proposed change in constitutional meaning? To put it counter-factually, in the absence of legal scholarship as it is now understood, would the movement for change have had any life? Second, would a system of peer review have prevented the publication of these materials or otherwise frustrated the causes? Spitzer may assert neutrality on the second question, claiming as he does, for example, that the policy merits of gun control is irrelevant; he claims simply to oppose the form of the argumentation being used to give the Second Amendment an individualist meaning. But that feint is difficult to sustain because his arguments about historical understandings drive at the impossibility of certain new constitutional meanings as well as of the separate arguments being used to arrive there. And, as I will note below, his willingness to outline more acceptable arguments for the positions taken by conservatives creates its own problem.

In recounting the three debates, Spitzer must demonstrate the clear dependence of the constitutional debates in Washington, DC on what was happening in law reviews. Unquestionably, law reviews are a battleground of ideas, but even as revealed by Spitzer’s citations for the arguments he attacks, those debates have other outlets in newspapers, books, book chapters, speeches, and the briefs of government lawyers. Spitzer thus sometimes struggles to remind readers that his well-grounded attacks on contemporary constitutional views should be read as an indictment of law reviews, such as when he writes, “The Bush Administration’s 2003 ‘Working Group Report’. . . articulated a singularly broad and sweeping view of the CIC power. The evidentiary support for its executive-power claims consisted almost entirely [*781] of court cases, although its logic and case law cites were rooted in Yoo’s 2001 memorandum, which in turn arose from his 1996 law journal article” (p.109). In a similar vein he pens, “the inherent item veto was planted, cultivated, and legitimated in the pages of legal publications” (p.62), though many of the most important arguments that he engages (the work of Stephen Glazier and Forrest McDonald especially) found expression in books. The counter-factual question, raised above, is a useful exercise: if law reviews had not been available for the scholarship by conservatives in the past thirty years, where would the movement be? Clearly, as recent work has elegantly noted (e.g., Haltom and McCann 2004, Teles 2008), conservatives long ago recognized the need to fight the battle of ideas, but that work just as much points to the multiplicity of venues – including think tank publications, newspaper editorials, mainstream and academic books, and public speeches and discussion – that successfully nurtured the passage of interests into policy. The regular appearance of non-law review publications in Spitzer’s own recounting of the debates makes it difficult to pin the blame on law reviews, when there are alternative paths available for those attempting to change the Constitution’s meaning.

Spitzer does have the other leg of his argument, that “advocacy scholarship” should not even see the light of day. “[P]artisan advocacy,” he concludes, “cannot be allowed to twist evidence, distort or ignore the rules of inquiry, or offer up certainty for that which is anything but certain” (p.179). The thoroughness of his case studies brings many scholars into his sights – including those with credentials beyond law (such as Forrest McDonald) – and widens the sweep of his critique. Perhaps we live in an age in which we have thoroughly muddied the ideal of scholarship with the culture of American adversarialism. The presence of a few liberal law professors in his critique – including Lawrence Tribe and Akhil Amar, named in a 1999 Wall Street Journal article as supporters of an individualist reading of the Second Amendment – strengthens that reading, though it also invites the thought that perhaps Spitzer has merely launched an ad hominem, accusing of bias anyone any lawyer with whom he disagrees.

Spitzer’s most frequent tack against such an accusation is to assail the “reasonable minds differ” standard that would allow legitimate scholarly disagreement over the meaning of the Constitutional provisions in question. If reasonable minds can disagree on these questions, views contrary to his own might have been published, even after peer review. “No such standard is useful or appropriate,” he injects into Chapter Three, “for the empirical research question of whether Article I, sec. 7, of the Constitution actually gives such a power to the president, for this is a matter to be resolved by a careful weighing of legal, historical, and political evidence” (p.87). Spitzer leaves no doubt about his belief in definite meanings to the Constitution, writing that “if the Constitution can be said to mean the opposite of what it does mean, then it has no meaning at all” (p.176).

In Chapter Five, similarly denying the possibility of reasonable disagreement, he describes as “transparently false” [*782] Sanford Levinson’s arguments – published in the YALE LAW JOURNAL, he notes – that the Second Amendment protects the rights of citizens to use firearms for self-defense, as well as the suggestion that the 19th century decisions on the 2nd Amendment are irrelevant because they were made prior to incorporation (p.151). Setting aside the unfortunate pre-HELLER timing of this chapter, overall Spitzer can reject the opposing arguments as unreasonable only by out-originalizing the Originalists. This approach privileges an understanding of constitutional meaning-making that gives primacy to historical analysis. He is willing nevertheless to entertain a “bona fide constitutional argument” that advocates of the individualist view could offer: that “the original, collective/militia-based meaning of the Second Amendment is now obsolete . . . .Therefore, the Second Amendment should be vested with a twenty-first-century meaning to confront contemporary needs” (p.176). Spitzer simply cannot tolerate the sheer disingenuousness of the scholarship in this field, but apparently he would suffer more gladly arguments constructed along the lines of contemporary non-interpretive theorizing – that law can be made to adapt, if freed from the artifice that it is historically grounded.

That turn might make it safe for lawyers to be advocates, just as long as they do not pretend to be scholars. But then could anything that Spitzer might have wanted by way of peer review have prevented advocates of a constitutional counter-revolution from spinning new theories, protected by the banner of “reasonable disagreement”? Can we view any constitutional arguments, under a non-interpretivist frame, as beyond reasonableness? The answer to that casts doubt on whether peer review of legal writing or any reconceptualization of the role of the legal professoriate could forestall the ebb and flow of constitutional reformations and counter-reformation. His call, in a brief concluding chapter, for reform to legal training and publication certainly faces an uphill struggle, but what happens ex ante through student editing or peer review may be beside the point. Instead, Spitzer has given us a window into the relationship between advocacy and the production of “the law” in practice through an ex post marketplace, in which the political quest for a different constitutional order seeks inspiration, direction, and sometimes legitimation. Contrary to Epstein and King’s emphasis on the importance of social science methods for “learning about the world” (2002b, at 194, 195), what passes for legal scholarship and theorizing may be more about “imagining” and “making” the world. Do precedents, text, and history factor into the possibilities and limits of constitutional meaning? Clearly they can. But they may be no more determinative today than they were when the hedgehogs of the past struggled quixotically against revisions – sometimes liberal in origin – to what people thought they knew about the Constitution. Spitzer has staked out his position in these fascinating debates, revealing for us how political movements throw off generations of precedent and historical meaning and take on a new cloak of constitutional authority. [*783]

REFERENCES:
Epstein, Lee and Gary King. 2002a. “The Rules of Inference.” 69 UNIVERSITY OF CHICAGO LAW REVIEW 1-133. Available at SSRN: http://ssrn.com/abstract=1082915

Epstein, Lee and Gary King. 2002b. “A Reply.” 69 UNIVERSITY OF CHICAGO LAW REVIEW 191-209.

Haltom, William and Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago, IL: The University of Chicago Press.

Teles, Stephen M. 2008. THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW. Princeton, NJ: Princeton University Press.

CASE REFERENCE:
DISTRICT OF COLUMBIA v. HELLER, 554 U.S. ___ (2008).

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© Copyright 2008 by the author, Patrick Schmidt.

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ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE: A HISTORICAL INQUIRY

by Edward A. Purcell, Jr. New Haven: Yale University Press, 2007. 320pp. Cloth $45.00. ISBN: 9780300122039.

Reviewed by Justin Crowe, Department of Politics, Pomona College. Email: justin.crowe [at] pomona.edu.

pp.774-778

In reflecting on the proposed Constitution in FEDERALIST 39, Publius concluded that it was “in strictness, neither a national nor a federal Constitution, but a composition of both.” Though he preceded this statement by exploring the ways in which five different aspects of the Constitution – its foundation; the sources, operation, and extent of the powers it granted to the government; the mode of introducing amendments – were either “federal” or “national,” Publius did not, in either FEDERALIST 39 or elsewhere in his advocacy of ratification, detail the exact contours of a constitutional system that was both federal and national. He did not, that is to say, prescribe a specific relationship between state governments and the national government or establish a precise line at which the authority of one level of government ended and the other began.

The absence of clear answers in either Publius’s writings or the Constitution itself provokes several queries. What is the constitutional balance of federal and state authority? What did the Founders originally believe it to be? What did they hope to accomplish by constructing a “compound republic”? What did they actually accomplish? With these sorts of questions as his guide, Edward Purcell offers a “historical inquiry” into the original meaning (or lack thereof) and consequences of federalism as a structural feature of American constitutionalism. Weaving together meticulous historical research, deft analysis of political thought, and wide-ranging exploration of political development, Purcell demonstrates – in clear and methodical prose – how the Constitution “neither gave the federal structure any proper shape as an operating system of government nor mandated any particular and timeless balance among its components” (p.7). Far from having a fixed balance that must be politically recovered and jurisprudentially protected, federalism, Purcell contends, is instead characterized by an “elasticity and dynamism” (p.6) that belies any attempt to articulate the “true,” “proper,” or “original” understanding of the balance between state and national power.

Purcell’s “inquiry,” as he likes to call it, consists of two distinct parts preceded by an introductory chapter to frame the debate and a concluding chapter to synthesize lessons learned. Part I (Chapters 2-5) focuses on what Purcell terms the “structural intrinsics” of American federalism – on the defining characteristics of the vertical division of governmental power at the Founding. Part II (Chapters 6-9) examines the “consequential dynamics” of American federalism – the evolution of and types of politics produced by the federal structure. Together, these two halves of [*775] the book do more than simply illuminate both the theory and practice of federalism; they challenge the application of a leading constitutional theory and fundamentally reinterpret the meaning and history of a core structural pillar of American government.

Each of the four chapters in Part I explicates a different facet of the original federal structure. Chapter 2 details how federalism was “doubly-blurred” – both “ambivalent” in that it provided states and the national government with overlapping powers and “ambiguous” in that it lacked clear boundaries between different levels of government. Chapter 3 explains how it was “fractionated,” characterized by “many-sided and multi-linked” (p.10) relationships rather than a strict binary division between national and sub-national authorities. Chapter 4 describes how Founding-era federalism was “instrumentalist” in the sense that it was consciously designed to achieve certain desirable outcomes (self-government, protection of individual rights) and prevent against objectionable ones (the triumph of private over public interest, abuse of power). Chapter 5 depicts the federal structure as “contingent” upon constitutional provisions either designed to ensure governmental evolution (elections, a decennial census, the possibility of constitutional amendments) or requiring pragmatic adaptation in order to be satisfied. Thus, Purcell’s overall conception of federalism is as a structure rife with “ambiguities and elasticities” and composed of “dynamic and interlocking parts, all of which were themselves both mutable and manipulable” (p.12).

Each of the four chapters in Part II, which I found both more intriguing and slightly less focused on the subject of federalism than the chapters in Part I, explores a different outcome that resulted from the doubly-blind, fractionated, instrumentalist, and contingent character of the original federal structure. Chapter 6 discusses the “kaleidoscopic” politics – the volatile and shifting sets of alliances between states, within states, between states and the national government, and between states and private organizations – that emerged in the early republic and continue to animate American government today. Chapter 7 outlines the ways in which a flexible federal structure enabled and encouraged the continual “readjustment” of the institutional components of American politics and a continual renegotiation of their relationships to one another. Chapter 8 addresses the implications of the Constitution’s failure to identify exactly how disputes between “contested authorities” would be resolved, emphasizing in large part the different roles played by the Supreme Court in adjudicating between state and nation. Chapter 9 considers the “evolving understandings” of both the values of federalism (protecting liberties, allowing the states to act as laboratories of democracies, deferring to local values and interest) and the nature of federalism (cooperative, dual, competitive, coercive). By the end of Part II, the reader has an intimate sense of not only how the federal structure was conceived at the founding but also how it changed – how it strengthened and weakened, how it was modified and transformed – over the course of American history. Federalism, Purcell makes clear, was dynamic in both theory and practice. [*776]

Though Chapters 5-9 seem to cohere somewhat less effectively than Chapters 2-4, the fusion of the more political thought-oriented treatment of Part I and the more political development-oriented treatment of Part II makes ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE a unique and intellectually stimulating book. Chief among its many virtues is the fact that, although revolving primarily around the political thought of the late eighteenth century, it speaks to topics of contemporary relevance and importance. Between the attempts (some successful, some failed) by Republican presidents Richard Nixon, Gerald Ford, Ronald Reagan, and George H.W. Bush to shrink the size of the federal government and devolve greater responsibility back to the states (Conlan 1998); the Rehnquist Court’s “federalism offensive” (Whittington 2001; Pickerill and Clayton 2004); and the recent conservative successes in law and politics (Rosen 2005; Teles 2008), questions involving originalism and (especially) federalism are not simply quaint and abstract questions of legal history. Though Purcell might have gone to greater lengths to illustrate the connections between the primary subjects of his inquiry and these late twentieth century and early twenty-first century political dynamics more explicitly, it is clear from the opening page that he has them in mind and clear by the closing page that his historical work speaks directly to them.

In addition to its relevance, albeit sometimes indirect, to present-day politics, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE excels in at least three other realms. First, it provides for federalism, often misunderstood (especially by students!) as fixed and archaic, something akin to what Richard Neustadt’s famous aphorism – that American government was one of “separated institutions sharing powers” (Neustadt 1990) – provided for the separation of powers: a call for understanding structural features of American government as contested, dynamic, and perpetually evolving. In this way, the book suggests that the relationship between state governments and the national government is characterized by the same type of rich and volatile politics as the relationship between branches of the national government itself.

Second, as befitting historical work that seeks to inform current political and legal practice, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE is simultaneously bursting with primary sources and embedded within secondary literature from a range of academic disciplines. From the records of the Philadelphia Convention to THE FEDERALIST to the proceedings of state ratifying conventions, Purcell marshals an impressive array of original research to illustrate the diversity of opinion about federalism at the Founding. In terms of secondary literature, he engages the work of historians, legal academics, and political scientists not only on federalism specifically but also on constitutional law, political thought, and political development more generally. The result is a piece of historical scholarship that is immersed in the period under consideration yet also attuned to [*777] theoretical insights and empirical analyses from a variety of intellectual traditions.

Third, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE, is explicit about what it is doing and what it is not doing, even if what it is doing grows dense at points. Purcell cogently and concisely walks the reader through his argument, unpacking the complexities surrounding his subject, bringing new evidence and analysis to bear on those complexities, and helping his audience to gain a more comprehensive perspective on the ideas and debates he analyzes. Moreover, at virtually every stage of the book, he supplies a clear roadmap for where his argument is headed, numbering the points he intends to make and then making them without (for the most part) legal jargon or needless detail. Given that federalism is a subject many find difficult and dry, attempting to write an accessible and lively book on it is no small task, and succeeding (as Purcell does) no small accomplishment.

Of course, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE is not without warts. Most crucially, the book fails to engage originalist constitutional theory – or theories (Whittington 2004) – in any meaningful sense. Although it attempts to use federalism as a way to show the weakness of originalism as a mode of constitutional interpretation, it does not contemplate how originalists such as Randy Barnett (2004) and Keith Whittington (1999) might deal with some of the challenges it identifies. Obviously, Purcell is not responsible for making originalists’ claims for them, but, as a skeptic of their approach, he should at least make the reader aware of – and have his own retort to – their counterarguments. Yet beyond introductory and concluding chapter criticism of the Rehnquist Court’s “Federalism Five” (Rehnquist, O’Connor, Scalia, Kennedy, and Thomas), a group of justices that is far from a unified originalist cabal, Purcell presents little sustained and direct criticism of originalism per se. Even if originalism is, as I suspect, less the target of his inquiry than federalism, its central place in the book means it nonetheless deserves more extensive analysis.

Less significantly, even if Purcell regards them as unimportant, the absence of a serious discussion about either the Tenth Amendment (which receives one paragraph of analysis on page 31) or the Eleventh Amendment (which receives only a passing mention on page 51) seems odd. The problem is not that, by excluding the Tenth and Eleventh Amendments from his analysis of the Founding-era understanding of the federal structure, Purcell necessarily biases his conclusions; rather, it is that the concepts of reserved powers and state sovereign immunity that emerge from those amendments are presumably relevant considerations in any attempt to capture the character and meaning of federalism.

These concerns aside, ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE is a provocative and erudite analysis of the historical roots and developmental trajectory of American federalism. Accordingly, it [*778] should be of substantial interest to scholars of the Founding, of federalism, and of constitutional history generally. Although the book is probably too sophisticated for the basic undergraduate constitutional law course, it could fit seamlessly in graduate courses – whether in history, law, or political science – on structures of power or legal and constitutional thought and development. Whatever its audience, Purcell’s ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE should prompt discussion and disagreement about the past, present, and future of the compound republic. Given his agreement with James Wilson’s contention that implementing a system of divided powers would “be accompanied with much difficulty” (p.30), I cannot imagine Purcell would expect – or desire – anything less.


REFERENCES:
Barnett, Randy E. 2003. RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY. Princeton: Princeton University Press.

Conlan, Timothy J. 1998. FROM NEW FEDERALISM TO DEVOLUTION. Washington: Brookings Institution Press.

Neustadt, Richard E. 1990. PRESIDENTIAL POWER AND THE MODERN PRESIDENTS. New York: The Free Press.

Pickerill, J. Mitchell and Cornell W. Clayton. 2004. “The Rehnquist Court and the Political Dynamics of Federalism.” 2 PERSPECTIVES ON POLITICS 233-248.

Rosen, Jeffrey. 2005. “The Unregulated Offensive.” THE NEW YORK TIMES MAGAZINE (April 17) 42-49, 66, 128, 130.

Teles, Steven M. 2008. THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT. Princeton: Princeton University Press.

Whittington, Keith E. 1999. CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW. Lawrence: University Press of Kansas.

Whittington, Keith E. 2001. “Taking What They Give Us.” 51 DUKE LAW JOURNAL 477-521.

Whittington, Keith E. 2004. “The New Originalism.” 2 GEORGETOWN JOURNAL OF LAW AND PUBLIC POLICY 599-613.

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© Copyright 2008 by the author, Justin Crowe.

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THE INTERSECTION OF RIGHTS AND REGULATION - NEW DIRECTIONS IN SOCIOLEGAL SCHOLARSHIP

by Bronwen Morgan (ed). Hampshire, England, and Burlington, Vermont: Ashgate Publishing, 2007. 234pp. Hardback. £55.00/$99.95. ISBN: 9780754649823.

Reviewed by Colin Provost, School of Public Policy, University College London. Email: c.provost [at] ucl.ac.uk.

pp.768-773

THE INTERSECTION OF RIGHTS AND REGULATION is a thought-provoking edited volume, in which the authors explore how the concepts of rights and regulation overlap, both in the social world and in the social science literature. The book’s chapters are written from a variety of different perspectives, as the book’s editor, Bronwen Morgan, brings together scholars from anthropology, geography, law, political science and sociology. Readers of this book will find that each of the chapters makes contributions to the literatures on rights, regulation or both, but at the same time, readers looking for a core argument or a narrow set of findings will be somewhat frustrated.

Morgan, in the introductory chapter, lays out one of the book’s major premises by stating that rights and regulation are typically seen as being in opposition to each other. For example, government regulation infringes on property rights by forcing businesses to adopt health and safety standards in the manufacturing process. However, Morgan questions the universality of this opposition, noting that regulatory regimes can often enshrine and support rights claims. Additionally, even when rights and regulation are in opposition to each other, there are additional institutional and policy factors that mediate the relationship between the two. Indeed, that the relationship between rights and regulation is a complex and dynamic one appears to be the main point of the book, and Morgan raises a series of empirical questions in the introductory chapter as a means towards reaching this realization.

What follows are a group of well-written, yet largely descriptive chapters that address a variety of different issues concerning rights and/or regulation. The social contexts studied range from federal regulatory agencies in the United States, to the World Bank and United Nations, to urban political environments, to online internet communities. The chapters are divided into three sections to address first, the “contrasting forms and logics” of rights and regulation, second, the “complementarities” between rights and regulation, and third, “hybrid dialectics” between rights and regulation. Each chapter presents its own set of findings, but synthesizing them into a larger, coherent set of observations for the book proves to be a formidable task.

Orly Lobel’s chapter on the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Hazard Administration (OSHA) in the United States (Chapter Two) right away presents the allegedly contrasting forms and logics, yet also shows how [*769] limiting exclusive frameworks of rights or regulation can be. Lobel claims that the EEOC has been guided by an adjudicative process which serves to uphold the civil rights of individual workers, while OSHA has sought to ensure worker safety and health through a process of administrative rulemaking. Arguing that each agency has been constrained by the framework in which it has operated, she shows that the strict, command-and-control style exhibited by OSHA has often been costly and ineffective, while EEOC’s focus on particular cases has drawn attention away from encouraging a broader culture of equal rights. Lobel suggests that policy makers in each setting are realizing the limits of each framework, as OSHA strives for a more conciliatory approach to regulating business, while EEOC, is starting to adopt a more regulatory approach in order to foster a culture of equal rights in the workplace, rather than simply addressing one case of discrimination at a time.

Lobel essentially demonstrates that both agencies can benefit more by exhibiting greater levels of cooperation – by working with business through education and incentives. Each agency’s trajectory is well illustrated by the author, but the conclusions are not particularly new. Lobel cites literature showing that the EEOC could benefit from broader rule-making powers in addition to its adjudicative duties, while the creation of regulatory negotiations in US federal agencies in the early 1980s was explicitly designed to allow a more cooperative framework for rulemaking. Indeed, on the latter point, Morgan presents the same contrast in the introductory chapter, through her discussion of Bardach and Kagan’s “regulatory unreasonableness” in the United States (1982) and Hawkins’ (2002) “law as a last resort” in the United Kingdom.

Tola Amodu’s study of regulation and land-use planning in the United Kingdom from 1909 to 1943 (Chapter Four) contrasts well with the regulatory unreasonableness allegedly displayed by American agencies like OSHA. Amodu argues that negotiations over property rights in England and Wales were shaped over time, as planning authorities sought to embed into private contracts regulatory mechanisms that would achieve collective policy goals. Amodu demonstrates that cooperation in negotiations between landowners and planning authorities helped to establish a regulatory framework for land use, one that bound successive generations of landowners. Ultimately, this shows us how regulation helped to shape property rights, without significantly infringing upon them. Amodu’s story is well-written and theoretically solid, but it repeats the main point too often without incorporating empirical examples that illustrate the evolution of planning agreements in one town or county over time.

Backtracking slightly to Chapter Three, Amanda Baumle introduces us to what gradually becomes a major theme in the rest of the volume, the use of discourse to shape discussions about rights – in this case, how the use of legal discourse can mobilize claims for rights in gender discrimination. Baumle cites Quinn (2000) who argues that failing to use legal terminology to describe gender discrimination or sexual harassment renders the law less useful in seeking remedies for those harms. She then [*770] employs internet ethnography to observe the discourse of an online community of associate attorneys in the United States, called the “Greedy Associates.” Relying on Quinn (2000) to a large extent, Baumle argues that the attorneys can effectively mobilize to address harms when they occur, by determining what activities constitute legal infractions and using legal terminology to label them as such. She presents discussion threads from her dataset which includes six years of internet posts and observes a heightened use of legal terminology to label wrongdoing. Baumle suggests that the discussions could mobilize behavior, although she has no evidence for this actually occurring. However, she succeeds in implicitly highlighting problems with the notion of absolutely inviolable rights, particularly in gender discrimination – problems such as simply identifying whether discrimination has actually taken place legally, to say nothing of the concerns an attorney can have for their career, if they file a complaint against a superior.

Anders Walker then introduces the second section of the book, “Complementarities between Rights and Regulation,” with two case studies of rights in the context of local politics in the United States (Chapter Five). Walker examines school integration in North Carolina school districts after 1954, as well as the issue of death penalty reform in New York City in the 1960s and shows that the difficulties in implementing rights can also make them less than absolute. For example, open defiance in the South of the Supreme Court’s BROWN v. BOARD OF EDUCATION decision hindered blacks in their pursuit of integrated education, leading North Carolina Governor Luther Hodges to tell local school districts that they could close public school systems altogether and parents would have the opportunity to build their own private schools. As Walker points out, this provided a safety valve for extremist parents, yet it also substantially raised the costs of defying integration for all parents. As a result, integration was more likely to occur and the rights of blacks to public education were enhanced. Similarly, in New York, blurring the legal definition of first and second-degree murder led to more capital punishment convictions and a weakening of the rights of criminal defendants, yet support for capital punishment was still quite strong. Rather than abolish the death penalty, Herbert Wechsler, who advised the commission to revise New York’s Penal Law, recommended separating criminal trials into conviction and sentencing phases, so that juries could decide for themselves whether the death penalty was truly warranted. Thus, such a recommendation would abide by popular support for capital punishment, but also place the burden of distributing such punishment to the citizens themselves. Walker’s cases provide fascinating examples of entrepreneurial policy makers who sought middle-of-the-road measures in order to prevent majoritarian intrusions upon particular sets of rights. The lack of any real theoretical framework here into which to place these cases is a bit disappointing, but overall, Walker nicely illustrates how some policy makers must become creative in order to uphold certain rights.

In Chapter Six, Galit Sarfaty demonstrates convincingly how different professional orientations at the World Bank led to competing frameworks of [*771] human rights. Sarfaty analyzes the instrumental framework, primarily employed by economists, which emphasizes upholding human rights in order to achieve development goals, as well as the intrinsic framework, used by lawyers and those in the social development unit. This framework dictates strong pursuit of human rights as intrinsic goods. Sarfaty provides an excellent example of how these differences actually matter, by examining two separate investment projects related to HIV/AIDS. In one project, the creators employ an intrinsic approach and conclude that a major goal should be to reduce discrimination and stigma attached to the disease. In the other project, a cost-benefit analysis was conducted and the creators concluded that funds would be spent more wisely on other methods of prevention. The importance of discourse is once again raised in this chapter, as we see how professional orientation shapes not only the thought, but also the language of human rights, which in turn, shapes the actual content of packages designed to improve the state of human rights.

In the final chapter on complementarities, Erik Larson writes about the emergence of indigenous peoples’ rights as a basic set of human rights by which nation-states must abide. Because indigenous rights have emerged in international organizations, Larson presents this case as a contrast to world polity theory which states that “the diffusion of a global culture shapes the behavior of nation-states and individuals.” Larson’s case is one of agenda setting, as he illustrates how indigenous peoples created organized movements, which succeeded in enshrining their rights into international agreements, thereby obliging nation-states to respect these new rights conventions. The story and examples presented are both cogent, yet readers who do not have a background in international relations, such as this reader, may find the chapter slightly muddled theoretically. World polity theory, the theory to which Larson refers as his benchmark, appears a bit confusing, as it is not clear how “global culture” shapes the behavior of nation-states and individuals without the reverse being true, to some degree. That said, global culture, appears to be so broad and all-encompassing, that it is not clear why the emergence of indigenous peoples’ rights would not also fit into this theory, however flawed it may be. Despite this criticism, Larson does fit this story nicely into the broader theme of persuasion, via discourse and agenda-setting, by demonstrating how collective peoples utilize international institutions to get nation-states to abide by new human rights laws.

The book’s final section begins with Laam Hae’s chapter on regulation of dance clubs in New York City as a means towards enhancing “quality of life” (Chapter Eight). Hae recounts how dance clubs were tolerated in New York City for many years, despite their alleged association with drugs and prostitution, but when hard times hit in the late 1970s, city governments abandoned notions of Keynesian economics and saw the growth of business within the city as the answer to the economic problems. The overarching goal then became attracting business to the city and eliminating drugs, prostitution and homelessness from potential centers of commerce. Thus, the Koch Administration altered [*772] zoning laws to make it increasingly difficult for aspiring dance club owners to get licenses and for existing owners to maintain licenses. Mayor Rudy Giuliani took this a step further by using nuisance laws to monitor and, when necessary, raid clubs, all in the name of increased quality of life.

Hae illustrates well a case in which one set of rights – the right to own, run and enjoy dance clubs – lost out to another, the right to a good quality of life. Of course, it is highly controversial to claim that dance clubs somehow decrease the quality of life in a city, yet this again shows the power of discourse. By framing the desire to bring thriving business into a city as a “quality of life” issue, successive mayors of New York were able to drive out particular types of businesses, while attracting others. This case also presents a considerably different use of regulatory instruments from those illustrated in Lobel’s and Amodu’s chapters. For Lobel and Amodu, regulation is used to correct market failures, such as negative externalities or information asymmetries, but in this case, the use of regulation appears more nakedly political, designed to benefit one group at the expense of another.

In Chapter Nine, the book returns emphatically to the subject of rights discourse, as Jeffrey Dudas analyzes language employed by the “New Right” in the United States to claim that zealous pursuit of minorities’ rights have infringed upon the rights of white, blue-collar Americans. Again, we are confronted with the question of what rights are and how discourse shapes their definition. Dudas quotes William F. Buckley, in saying that the definition of “civil rights” has been distorted to justify claims to a multitude of privileges and resources. Dudas then cites Barry Goldwater, who argued that such rights claims resulted in an explosion of new social programs in the federal government (Goldwater 1970). These programs then caused resentment among many “forgotten Americans” who later became Reagan Democrats. Ultimately, this conservative rights discourse seeks to bring shame to minorities making rights claims, yet at the same time, distracts the forgotten Americans from the root causes of their social and economic grievances. Dudas presents little evidence on the latter claim, but in support of the first claim, he offers a wealth of written and rhetorical evidence, from scholars and politicians, ably demonstrating the salience of rhetoric and discourse in rights formation.

In Chapter Ten, Sundhya Pahuja concludes the book by discussing human rights in the context of development, thus returning to the subject broached by Galit Sarfaty in Chapter Six: whether human rights are intrinsic or instrumental towards economic development and growth. Pahuja walks us through the work of Hernando de Soto (2000) and Amartya Sen (1999) in creating her logical pathways. De Soto argues that poor people often remain poor because of corrupt political institutions and thus, strong legal institutions and property rights are necessary to facilitate development. Sen, on the other hand, argues that basic freedoms, such as civil rights, are both intrinsic and instrumental to development. Pahuja argues that both theories make rights subservient to the achievement of economic growth, which [*773] in turn negates the political quality of rights and thus hinders the mobilization for new rights from outside the law. While Pahuja eloquently makes clear her belief that instrumental rights are problematic, she never gives the reader a sense of what an intrinsic rights framework looks like and how it would function in development policy. Sarfaty’s example from Chapter Six of intrinsic human rights at the World Bank provides an appropriate complement here, and Pahuja might have cited Sarfaty’s chapter in order to round out her argument.

Overall, THE INTERSECTION OF RIGHTS AND REGULATION is a reasonably well-presented edited volume that contains many intriguing cases of how rights and regulation relate to each other. There are several overlapping themes that the reader can infer from the essays, most notably, that rights and regulation are not always necessarily contradictory, and that rights, no matter how popular or widely claimed, are hardly ever absolute. As the power of discourse is demonstrated repeatedly, rights are often whatever powerful groups want them to be. However, readers who are looking for one overall coherent argument will search in vain. Indeed, the book’s somewhat vague subheading, NEW DIRECTIONS IN SOCIOLEGAL SCHOLARSHIP, indicates that there is not one big take-away point, but rather several smaller ones. This, in no way, detracts from the contributions of the collection, and, as the reader discovers progressing through it, the very nature of the subjects fails to lend itself to one all-encompassing, theoretical argument. If willing to tolerate the lack of an overall, unifying theme, the reader will find a substantively and methodologically diverse volume of studies that makes several worthy contributions to the respective literatures on rights and regulation.

REFERENCES:
Bardach, Eugene, and Robert A. Kagan. 1982. GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS. Philadelphia: Temple University Press.

De Soto, Hernando. 2000. THE MYSTERY OF CAPITAL: WHY CAPITALISM TRIUMPHS IN THE WEST AND FAILS EVERYWHERE ELSE. London: Black Swan.

Goldwater, Barry. 1970. THE CONSCIENCE OF A MAJORITY. New Jersey: Prentice Hall.

Hawkins, Keith. 2003. LAW AS A LAST RESORT: PROSECUTION DECISION-MAKING IN A REGULATORY AGENCY. Oxford: Oxford University Press.

Quinn, Beth A. 2000. “The Paradox of Complaining: Law, Humor and Harassment in the Everyday Work World,” LAW AND SOCIAL INQUIRY, 25: 1151-1185.

Sen, Amartya. 1999. DEVELOPMENT AS FREEDOM. Oxford: Oxford University Press.

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© Copyright 2008 by the author, Colin Provost.

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EXPLORING JUDICIAL POLITICS

by Mark C. Miller (ed). New York, NY: Oxford University Press, 2008. 368pp. Paper. $42.50/£22.99. ISBN: 9780195343076.

Reviewed by William Haltom, Department of Politics and Government, University of Puget Sound. E-mail: Haltom [at] ups.edu.

pp.765-767

EXPLORING JUDICIAL POLITICS offers instructors and students 20 chapters that could complement conventional texts and common organization of courses regarding judicial behavior. The compendium’s dual themes are that judging blends law and politics and that the approaches researchers deploy reveal the essence of judicial behavior. Editor Mark Miller introduces the volume and subsequent chapters to highlight approaches to and questions in research on judges and their behavior. He notes (pp.1, 3) that political scientists wrote almost all chapters and that the book is very much a work of and in political science. Perhaps it follows that the collection features many chapters about the Supreme Court of the United States, but instructors will find erudite, succinct chapters concerning state courts, lawyers, and jurors as well. The back cover of the book highlights its chapters on race, gender, and terrorism, on interactions between courts and other political or governmental institutions, and comparative judicial behavior. Helpful notes end each chapter and cross-references within chapters deftly direct readers to related material in other chapters. The bibliography is 45 pages long.

As a supplement, this book would offer students figures, graphics, and tables that illustrate important facts about judges and judiciaries. Table 2.1 on judicial selection in states, for example, presents basic information that may pique students’ curiosity and will inform them about vagaries in recruitment of state judges. Table 11.1 provocatively labels regimes and structures of clerks at the Supreme Court from 1882 to the present: Supreme Court clerks as “sorcerers’ apprentices should grab students’ attention. Six formulations of comparative judicial studies (Table 20.2) may usefully introduce some of the approaches scholars have taken to study judges and courts. Jeb Barnes’ diagrams (pp.98-99) and those in other chapters likewise provide revealing frameworks. Richard Pacelle’s heuristics on free exercise policy (Ch. 12) will strike most students as revealing and generalizable for term papers on other policies or policy domains.

For instructors less interested in political science than they are in politics and government, Chapters 4 and 15 are among the more promising. Michael Comiskey’s brief chapter should reveal to students that “the countermajoritarian difficulty” is more often a facile device for practicing politics than a genuine caution about adjudicating appeals. Instructors might profitably combine Comiskey’s chapter with Richard Brisbin’s essay on resistance to judicial decisions and Miller’s chapter on other branches’ interactions with US courts (Ch. 19) to suggest to students that adjudication and litigation are parts of [*766] political and governmental dialogues and dynamism that is legal, political, cultural, and evolutionary.

Nancy Maveety admirably situates research on the behaviors of judges in the behavioral tradition within political science and suggests some newer approaches as well, albeit that many instructors will demand that contextualization range across history, regimes, and cultures beyond internecine disputes within political science. Indeed, interdisciplinary instructors, sociologists, and anthropologists may demand attention to comparativists who formulated ideas about politicking amid law before political science’s behavioral revolution. Many “law and society” instructors, for example, mention Blackstone, Bentham, Marx, Holmes, Durkheim, Pound, Weber, Malinowski, or Hoebel and Llewellyn among big names that preceded Pritchett and Schubert.

Lynn Mather’s consideration of communities of practice among lawyers begins from lawyer jokes but quickly moves readers to a broader cultural understanding of important actors, only some of whom become judges. Readers will see how cultural analysis not common in political science deepens and complexifies understanding of jural phenomena in ways not easily pigeon-holed as either legal or political. Mather exposes puzzles that may entice students to reject simplistic dichotomies in favor of more sophisticated notions.

In like manner, the logistical regression model in Chapter 13 may elude many undergraduates and not a few instructors, but alongside that model the authors of that chapter supply a balanced, sensible conclusion far more sophisticated and fecund than yet another contest in which the Washington Generals represent some deracinated “legal model” and are routed by the Harlem Globetrotters, who play for some attitudinal or other political model. Students who learn that the Supreme Court both follows pre-existing rules and reshapes legal authority to suit the justices’ views will be better prepared for further coursework and reality.

Chapters explicitly devoted to policy (12, 16-18) provide useful substantive information in accessible prose. Barbara Perry’s discussion of race (Ch. 16) and Judith Baer’s discourse on “Women and the Law” (Ch. 17) exemplify, according to Miller, a legal approach to jural policy and so might be compared and contrasted with Pacelle’s modeling of freedom of religion to establish what Miller takes to be legal and regards as political or scientific or both.

If Louis Fisher’s chapter on “Federal Courts and Terrorism” (Ch. 18) also represents case analysis as practiced in law schools more than in political science classes, then we political scientists should be ashamed. Every political science undergraduate would profit from Fisher’s deconstruction of Judge Luttig’s cleverly phrased opinion regarding Jose Padilla. Few readers of that chapter would likely be so dull as to miss that judicial rhetoric often employs argot and chicanery to practice as well as to hide politics. Moreover, the more students learn about Guantánamo and “enemy combatants,” the more they are likely to realize about judges, executives, legislators, and other politicos. [*767]

The collection is explicitly and rigorously focused for a subset of political science courses concerning judicial behavior and courts. For courses in law schools, other social sciences, or interdisciplinary programs, this anthology will probably serve best as a reserve reading in the library.

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© Copyright 2008 by the author, William Haltom.

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GUARDING LIFE’S DARK SECRETS: LEGAL AND SOCIAL CONTROLS OVER REPUTATION, PROPRIETY, AND PRIVACY

by Lawrence M. Friedman. Stanford: Stanford University Press, 2007. 360pages. Cloth. $29.95. ISBN: 9780804757393.

Reviewed by James A. Gardner, University at Buffalo Law School, State University of New York. E-mail: jgard [at] buffalo.edu.

pp.762-764

If you are reading this – a book review published in a specialty journal that exists exclusively on-line – then you are surely more aware than most people how modern technology has remade the world. Much of this technological revolution has been beneficial. The internet provides us with instant access to a previously unimaginable wealth of information, and permits us to upload, download, and redistribute it virtually at will. Yet the same technology permits any jerk with a scanner, a cell phone camera, and a laptop to broadcast instantly to the world a plethora of words and images that we never intended for public consumption and that might cause us embarrassment or even more serious harm.

The law has struggled to come to terms with this rapidly changing social landscape. Do criminal and civil causes of action already on the books apply to the nonconsensual capture and dissemination of information about individuals? If so, to which individuals do such laws apply, to what kind of information, and in what circumstances? Can access to certain information be denied to some users? What remedies are available for harm that people suffer from exposure of private information, and against whom do such remedies lie? Or is the real problem the reverse: what recourse do people have who have been denied access to information about or possessed by others? Indeed, the new information environment, along with rapidly changing baseline social assumptions about access and exposure, raise difficult yet profoundly fundamental social questions. What is “privacy”? Why do we value it? What precisely is the harm caused by its invasion?

In his new book, Stanford legal historian Lawrence M. Friedman does not address these questions directly, but lays some useful groundwork for their contemplation by providing a social history of the legal remedies most commonly associated with protecting the privacy of personal information and behavior. Friedman’s argument is discomfiting: the array of legal remedies that we have inherited – the laws of libel, slander, blackmail, censorship, and so on – were designed in different times to treat very different social problems, and speak little if at all to contemporary circumstances.

The heart of Friedman’s account is his contention, persuasively documented, that many legal regimes now commonly thought to protect personal privacy evolved originally during the nineteenth century to protect something quite different: reputation. According to Friedman, strict nineteenth-century [*763] codes of public morality reflected demanding collective ideals of personal virtue. These ideals defined the best life as one characterized by discipline, self-control, hard work, piety, temperance, and frugality. Personal reputation – the key to social respectability and economic prosperity for the upper classes – depended upon compliance with these standards. Strict laws of defamation, for example, prevented public revelation of reputation-damaging misbehavior, even when the charges were true.

At the same time, however, Victorians recognized that human beings were weak, and that few could live up consistently to the highest ideals. Lapses, even among the most privileged and powerful, were inevitable. The result, argues Friedman, was the “Victorian Compromise,” in which harsh legal standards were available in principle to punish serious moral breaches, but were generally applied in a way that permitted otherwise respectable men and women to avoid the consequences of more predictable, run-of-the-mill lapses – the occasional affair, for example, or patronizing a prostitute. What looks today like hypocrisy was justified, Friedman argues, by the nineteenth-century belief that protecting the private reputation of the elite served a public good. Democracy during this period was seen as fragile because it depended on the virtue of leading citizens and officials. Preventing stains to their reputations thus served the benevolent public purpose of ensuring social stability. Originally, then, the law’s creation of a private space in which individual behavior – and misbehavior – could remain shielded from unwanted view served a social interest in protecting the good reputation of respectable persons.

On Friedman’s account, the stable and relatively long-lived Victorian Compromise collapsed toward the end of the nineteenth century, ushering in – or more accurately, reflecting – a period of rapid evolution in social norms, a period from which we have not yet emerged. Friedman breaks this tumultuous era into two very different periods during each of which a different piece of the Victorian Compromise was publicly rejected. In the first period, which lasted until roughly 1920, reformers attacked the belief that human weakness among the elite is inevitable and must therefore be indulged to some degree if social stability is to be maintained. Led by moral zealots like Anthony Comstock, reformers of this ilk argued that the best way to enforce the moral standards upon which a democratic society must rely is simply to enforce them, and to do so uncompromisingly. “Society,” Friedman writes, “was capable of perfecting itself” (p.176). Thus, governments began to enforce with great vigor existing laws against prostitution, obscenity, and abortion, and tightened legal restrictions against sex with minors or among unmarried people.

Around 1920, however, Friedman writes, American society suddenly reversed course, now rejecting the first and in some ways much more fundamental piece of the Victorian Compromise – the belief in personal self-restraint as a pillar of elite social respectability and democratic stability. During this period, enforcement of antivice laws like obscenity, fornication, adultery, seduction, and alienation of affections quickly diminished and [*764] ultimately all but ceased. What had previously, with the cooperation of the law, been hidden was suddenly brought into public view, but without shame or adverse social consequence. The world that social and political elites now inhabit, Friedman suggests, could not be more different from the one they inhabited during the nineteenth century. Today, not only does the law fail to protect the privacy of celebrities, but it positively abets the destruction of their personal privacy. This is, Friedman tells us, only a logical consequence of the undermining of the Victorian Compromise: if reputation is no longer damaged by the indulgence of personal weakness, then the exposure of such indulgences hardly requires legal protection.

Friedman tells his story mainly through chapters focusing on specific legal regimes such as defamation, blackmail, and censorship. A fascinating chapter on legal protection of the reputation of women walks the reader through a series of now-archaic prohibitions such as the crime and tort of seduction, common law marriage, breach of promise to marry, criminal conversation, and alienation of affections.

Friedman also raises several additional themes in the course of the narrative. A chapter on status and mobility in the nineteenth century explains how geographical and social mobility in the nineteenth-century United States allowed people to escape their prior reputations and start fresh in a new place. At the same time, the ability to move beyond the reach of one’s reputation created opportunities for all manner of fraud – bigamy seems to have been a popular method of jettisoning an unwanted earlier identity – and the laws that protected the reputation of the respectable could in these circumstances be used to reveal the serious moral breaches of the unrespectable. Friedman also alludes occasionally to a fundamental change in the very concept of privacy. Whereas in the nineteenth century, maintaining control over personal information was a matter of reputation management, in the twentieth century it became more a matter of individual dignity and autonomy.

The book tells its main story clearly, entertainingly, and persuasively. If there is a weakness, it lies mainly in Friedman’s inability to find a clear place in the story for his secondary themes. It would be nice to know more, for example, about recent changes in social conceptions of privacy and whether the law might be made to accommodate such changes. Friedman also asserts repeatedly, but without much explanation, that changing social and legal treatment of privacy are linked to changing conceptions of democracy, or at least of what constitutes the main source of threats to democracy. Unfortunately, this intriguing thesis is never developed.

GUARDING LIFE’S DARK SECRETS is likely to be of greatest interest to legal scholars and political scientists who take an historical approach to the evolution of legal and political norms, who study the legal and judicial protection of privacy, or whose work examines the interaction of legal and social forces.

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© Copyright 2008 by the author, James A. Gardner.

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