PROPERTY IN THE MARGINS

by A.J. van der Walt. Portland, OR: Hart Publishing, 2009. 294pp. Paper. $70.00/£35.00. ISBN: 9781841139630.

Reviewed by Mihaela Serban Rosen, Institute for Law and Society, New York University. Email: mihaela.serban [at] nyu.edu.

pp.802-805

PROPERTY IN THE MARGINS explores the dynamic between stability and change in property regimes during periods of transformation, aiming to understand how this dynamic opens up spaces for uprooting inequality and injustice. The book shares with current property theory literature its conceptualization of property as power and as social relationship, as well as its normative thrust. It stands apart because it attempts to theorize property from a marginality perspective, and because of its comparative approach. The book focuses on eviction from the perspective of those at the margins of society and property distribution patterns. The primary method is legal analysis of eviction laws and cases in South Africa, Germany and the United Kingdom. In all three countries, at stake is the centrality of property in the rights paradigm: "a set of doctrinal, rhetorical and logical assumptions and beliefs about the relative value and power of discrete property interests in the law and in society" (p.27).

The book’s structure is straightforward: seven chapters, the first three setting out the theoretical approach of the book, the next three the substantive case law discussion – eviction in landlord tenant law, eviction of unlawful occupiers, and limitations on eviction in other contexts – and the last the conclusions and implications for change. The book also includes complete tables of cases and legislation, bibliography, abbreviations list and a useful index. Although the bulk of the book focuses on the three countries mentioned above, cases discussed in various sections also come from Australia, Canada, the European Court of Human Rights, the European Committee of Social Rights, India, the Netherlands and the United States.

The preface situates the book within the context of recent, mostly North American property theory, the origin of the book in the specific post-apartheid South African transition, and the hypothesis that the success of protections against eviction indicates the strength of the rights paradigm. The first chapter discusses in depth the South African context, the history of apartheid and its impact on property, in particular the need for significant changes in wealth distribution through removing apartheid era policies on access to land, natural resources, and freedom of movement. The key issue in the South African context, van der Walt notes, similarly to other transitions, is the simultaneity of peaceful political change and meaningful social and economic transformation. The theoretical framework of the book is Karl Klare’s concept of transformative constitutionalism, the idea that existing rights are protected but also restricted within a constitutional framework that demands and enables significant reform, thus allowing a broad enough framework [*803] for both stability and change. The first chapter also reveals one of the weaknesses of the book, namely the assumption that the intertwining of law and politics through open-ended, policy-oriented, contextual interpretations of the law are to be expected in periods of transition, yet the positivist separation of law and politics predominates under “normal” circumstances.

Chapter 2 analyzes in detail the rights paradigm, the centrality of ownership and property interests, and distinguishes between the civil law and common law models of property. In both traditions there exists the idea of absolute ownership, the rights paradigm is abstract and hierarchical, and they have similar rhetoric and values underlining property. However, while civil law systems, which draw from Roman law and include South Africa’s private law, have an overarching, supreme, abstract and acontextual notion of ownership, common law systems rely upon conflicting claims on possession to solve property conflicts, rather than a single, absolute title that will always trump any conflicting interest or claim. The chapter ends with a brief introduction to paradigmatic landlord-tenant cases in the three countries studied: BRISLEY v. DROTSKY (South Africa), the 1993 German Landlord-Tenant case, and the QAZI case (UK). Comparative property law is a relatively under-populated area, so this type of cross-system comparison is particularly welcome.

The third chapter focuses on eviction in the rights paradigm, mainly in the civil law model of property. It presents similarities between civil law, common law and South African law regarding the right to evict, largely defined by landlord-tenant laws adopted in most countries after the Second World War to protect tenants from exploitation. Van der Walt notes that even dramatic restrictions imposed on landlords nonetheless fail to undermine the landowner’s property rights in two ways: usually, only lawful occupiers such as tenants are protected, and not unlawful ones such as squatters. Second, even this protection usually turns on factors that are within the landlord’s control, such as non-payment, rather than external factors, such as the personal circumstances of the tenant. Courts in both common and civil law systems do not have discretion to look into the occupier’s circumstances, hardship or to take into account the general context. The chapter becomes truly interesting with the author’s analysis of eviction as a political tool during apartheid in South Africa, such as the way it was used to relocate entire communities, the changes to eviction law during apartheid, and their post-apartheid impact. Van der Walt illustrates his points by discussing the post-apartheid case law on eviction and the distinctions between the lower courts’ approach of eviction as a decontextualized tool, versus the Constitutional Court’s and other high courts teleological approach.

The fourth chapter presents in detail eviction in the landlord-tenant law of the three countries, as well as the key doctrinal debates. The statutory intervention in landlord-tenant relationships post-Second World War set out a tension between private law, favoring ownership and landlords, and statutory law, favoring tenants. The question for van der Walt is whether statutory protections against unfair, arbitrary or unlawful evictions change [*804] the rights paradigm. In all three countries, he concludes, landlord-tenant law qualifies the rights paradigm to various extents, mainly through imposing extensive due process controls over the termination of the lease and the eviction procedure. Substantive restrictions postponing or sometimes preventing eviction also exist, the most extensive of which is when tenants’ circumstances are taken into account. In all three countries, there is significant doctrinal resistance, rather than political conservatism, against major shifts in the rights paradigm. Without going into more detail here, I will only note that the case law analysis is informative and would be very useful for class discussions on comparative law and politics. However, the South African and UK sections of this chapter were very ambitious in scope, and as a result details were plentiful, but the overall picture was not always entirely clear.

Chapter 5 discusses eviction of unlawful occupiers, specifically three categories of active unlawful occupation: politically inspired urban squatters, anti-eviction protection in South African land reform law, and the situation of gypsies and travelers. Van der Walt takes a brief tour through the Dutch, German, English and American political squatting, and points out that although the rights paradigm has not been changed, housing laws in Western Europe were amended because of the political squatting movement. Similarly, post-apartheid land reform laws in South Africa introduced some very promising regulation and a major shift in anti-eviction area, yet the rights paradigm remains strong. In general, unlawful occupiers are more vulnerable than lawful ones, yet they do enjoy protection from eviction, at a minimum due process protection. It is only substantive protections such as the impact of eviction on occupiers that pose a serious challenge to the rights paradigm.

Chapter 6 deals with limitations on eviction in other contexts: acquisitive prescription and adverse possession, public access to private property, significant building encroachments, and the differential protection afforded to weak owners. They are discussed as examples of restrictions on the right to exclude and evict, thus questioning the rights paradigm. In the case of acquisitive prescription and adverse possession, bad faith possession leading to ownership is an indication that the security and exclusivity of ownership is sometimes sacrificed for other policy goals, such as legal certainty or economic efficiency. Public access to private property, such as equal access to public accommodations in the U.S., diminishes exclusivity as a core characteristic of property ownership. In cases of significant building encroachments in most countries compensation, rather than demolition, is the usual result. However, these cases still fit within the rights paradigm, according to van der Walt, since owners could have been spared had they looked after their property diligently, which fits with the autonomy language that underlies the rights paradigm. The real challenge to the rights paradigm is the differential protection of weak owners, in other words the weaker protection of rights held by some persons, such as black property owners in apartheid South Africa, or in forms unknown to Western law. [*805]

The concluding chapter reviews the findings of the book and opens up some interesting points for further analysis. Van der Walt’s broad conclusions regarding the strength of the rights paradigm is that ownership and similar property interests are not nearly as strong as the rhetoric of the rights paradigm might suggest – in some areas, eviction seems to have become a discretionary right that could be denied. Furthermore, this perspective from the margins needs to complement the traditional view of property if progressive change has a chance of happening. The author himself draws the line of when fundamental change happens when the “absolutist assumptions” and personal autonomy logic of the rights paradigm are undermined. Ultimately, his proposal for achieving progressive social change in property regimes depends upon de-centering property and further exploding the identified gap between the ideology and practice of property, a promising future area of research.

The book is outstanding on a number of levels: clarity, organization, questions raised, extensiveness and depth of comparative analysis of property law and doctrine, copious footnotes, and wide-ranging sources. The audience for this book is primarily legal academics, and to a lesser extent law and politics specialists, primarily those with an interest in the law and politics of transition and comparative study of courts. This is not, however, a socio-political or social scientific study, although it poses some of the same questions as studies of impact of law. Although van der Walt understands property as a fundamentally social and political institution with specific historical and cultural roots, this book is mostly a doctrinal analysis, with the political, historical and sociological forces serving as background. It is worth noting two of the inherent legal biases in the book: the reification of property and the silence of those at the margins of property, whose presence is felt only through the cases. Finally, even though the stated purpose of the book is property in times of transformation, the comparison is not with other transitional societies, but with “stable” ones, moreover covering fairly well known countries and cases. These are not essential problems, however. The book is a useful addition to the literature on property theory through its marginality perspective and comparative breadth, and to the broad genre of literature on transitions.

REFERENCES:
Klare, Karl. 1998. “Legal Culture & Transformative Constitutionalism.” 14 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 146-88.

CASE REFERENCES:
BRISLEY v. DROTSKY 2002 (4) SA 1 (SCA) (South Africa).

BverfGE 89, 1 (Besitzrecht des Mieters) [1993] [Landlord-Tenant Decision of the German Federal Constitutional Court].

HARROW LONDON BOROUGH COUNCIL v. QAZI (2004) 1 AC 93 (United Kingdom).

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© Copyright 2009 by the author, Mihaela Serban Rosen.

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ILLEGAL, ALIEN OR IMMIGRANT: THE POLITICS OF IMMIGRATION REFORM

by Lina Newton. New York and London: New York University Press, 2008. 240pp. Cloth $65.00. ISBN: 9780814758427. Paper $22.00. ISBN: 9780814758434.

Reviewed by Karen A. Woodrow-Lafield, Maryland Population Research Center, University of Maryland College Park. Email: WoodrowLafield [at] cs.com.

pp.795-801

This well-written and insightful book provides an interesting synthesis on the content and patterns of Congressional debate in the making of immigration policies. Newton examines how the official rhetoric about immigration reforms holds a set of narrative types matching policy options associated with images or social constructions of groups to whom reform measures would accordingly direct either rewards or punishments. Many social scientists, professionals, and practitioners have become knowledgeable of many aspects of the Immigration Reform and Control Act of 1986 (IRCA) and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA or IIRAIRA), and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (also known as the 1996 Welfare Reform Act, PRWORA, or PREWORA). Newton contributes to understanding immigration reform in the 1970s, 1980s, 1990s, what these laws involve, how these laws were made, and why immigration reform continues to be on the agenda. Despite considerable attention from policymakers, there is an accumulation of perceived and real inadequacies, failures, and brokenness, along with unanticipated consequences.

The published record from the Congressional floor serves as a database for Newton’s systematic discourse analysis, as she extracts specific narratives of the IRCA and the IIRIRA debates and contrasts the “causal stories” of 1984-1986 and 1994-1996. The “immigration problem” was defined as the focus of the Select Commission on Immigration and Refugee Policy (SCIRP) (1978-1981), because policymakers had not anticipated the considerable volume and heterogeneity of post-1970 legal immigration. This corresponded with the 1965 changes to the Immigration and Nationality Act which led to more Asian migration, but European flows were already lessening as Latin Americans were dominating U.S. immigration. With minimal statistical infrastructure for discerning quantity, dynamics, and consequences of immigration, U.S. policymakers have grappled with difficulties in shaping immigration policies and responding to demands of the public and interest groups, especially in regard to problems of illegal immigration.

Noting that IRCA passage was exceptional given the recessionary period of the early 1980s and both historical patterns and contemporary public opinion toward policies of immigration-restriction, Newton portrays IIRIRA as extending and expanding upon IRCA enforcement provisions and PRWORA restrictions on [*796] benefits for immigrants and defining both legal and illegal immigration as problematic from a fiscal cost standpoint. The IRCA was meant to solve the illegal immigration problem through provisions for granting legal temporary status for long-term residents and certain agricultural workers with capability for adjusting to lawful permanent residence, intensifying border enforcement, and imposing sanctions to promote employer responsibilities. It was only after enacting IRCA that Congress would seek to improve the legal immigration system and respond through the Immigration Act of 1990 (IA1990) to various demands for increased legal immigration of workers, family members, and others.

The specific narratives and counter-narratives that Newton finds woven in the IRCA debates were the Government-Off-Our-Backs Narrative, the Family Farmer Narrative along with the Corrupt Agriculturists Counter-Narrative, the Anti-Discrimination Narrative (two versions), and the Undeserving Illegal Narrative along with the Deserving Illegal Counter-Narrative. For each, she details the target group, narrative portrayal, target-group construction, narrative policy solutions, and anticipated policy tools based on Schneider and Ingram’s theory on social construction of target populations (1993, 1997). For both IRCA and IIRIRA, she notes the actual immigration policy tools conformed closely to theories based on social construction of the target groups, some coercive, some punitive, and some rewarding. The causal story that Newton finds for 1984-1986 is the classic “push-pull” immigration story in which illegal immigrants are pushed from home to abroad for jobs for which U.S. employers are seeking migrant workers, i.e, a systematic theme for immigration dynamics. Newton finds that the IRCA policy outcomes were not straightforwardly correlated with political power and public images of target populations, as predicted by Schneider and Ingram. Instead, legislators successfully challenged public images that were not fixed and created social constructions as they chose to argue for certain treatments for members of target groups and for including others beyond that group. For example, the Family Farmer Narrative allowed for emphasizing that others, such as food processors and truckers, would benefit from agricultural worker provisions. There were both neutral and contentious constructions and IRCA deemed as deserving those who had worked in seasonal agricultural services for only 1-3 years. Although the agricultural worker provisions were primarily supported by agribusiness, after IRCA, Mexican migrant workers became evident in even very rural Midwestern areas with inadequate local labor force pools.

For new and old scholars of immigration, Newton’s discussion of the early 1990s contexts will be interesting, as she sets forth passage of California’s Proposition 187 and implications for federal policy design based on an ideology of the undeserving. IIRIRA was a reversal of the climate underlying IRCA and the IA1990. In reaction to conservative ideology about the role of government, IIRIRA focused on both illegal immigration and requiring responsibility for family members for the support of sponsored legal immigrants. Beyond IIRIRA itself, immigrant access to federal aid [*797] programs was reinstated shortly thereafter and again in 2002. Newton found several narratives in the IIRIRA debates: the Zero-Sum Narrative, the Pathologies of Federalism Narrative, the Criminal Alien Narrative, the Lawless Border Narrative, and, again, the Government-Off-Our-Backs Narrative, but her analysis indicated only one true counter-narrative, the Cure-Is-Worse-Than-The-Disease Counter-Narrative. Mentioning critiques of border deterrence measures as futile, she gives the causal story for 1994-1996 as portraying illegal immigrants as taking advantage of a border that was not adequately enforced in order to seek jobs and benefits in the United States. Curiously, social scientists were already finding that migrants were altering behavior by staying longer to avoid crossing the border due to intensified enforcement (Massey 1998; Massey, Durand, and Malone 2002; Mexico-U.S. Binational Migration Study 1998). Following this shift and increased labor demand, the unauthorized population increased dramatically during the late 1990s (Bean, et al. 2001).

The book draws nicely upon core reports of the bipartisan Commission on Immigration Reform (1993-1998) and the report of the National Academy of Sciences panel on the Demographic and Economic Effects of Immigration (1996-1998), with sponsorship by the CIR, but findings and recommendations of the Mexico-United States Binational Migration Study (1995-1997), also CIR-sponsored, are omitted. The CIR was chartered to study illegal immigration, but its mission was amended to include legal and illegal immigration. Its work was simultaneous with Congressional debate leading to IIRIRA, and there were detailed briefings to Congressional staff (Gimpel and Edwards 1998). CIR recommendations against restricting legal immigrants’ access to welfare benefits would not be followed. Newton states “lawmakers actually did the opposite of what was recommended: they cut off benefits to legal immigrants (including many classes of refugees), and they did not wait for functional evaluation of existing border initiatives before calling for their expansion.” (pp. 62-63) Nor did Congress take action on CIR recommendations to reduce yearly immigration levels and give higher priority to spouses, minor children, and parents, and eliminate nonnuclear preference categories, to create an electronic eligibility verification system through computerized registry of Social Security numbers, to emphasize enculturation and naturalization of immigrants, and to make admission of parents contingent upon a legally enforceable affidavit of support.

IIRIRA did establish pilot programs for employer verification, including the Basic Pilot that became the national voluntary program in 2003 known as E-Verify. Reading Newton’s sections about the employment verification debate is enlightening. Along lines of the “Cure Is Worse than the Disease,” one legislator used the phrase “camel’s nose under the tent” to express concerns that such a program might evolve into police state tactics threatening individual privacy. Evaluations also flagged the problems of false positives, infringing on due process and the right to work, and prevalence of identity fraud. There was eventually action on CIR recommendations to increase the efficiency and integrity of the naturalization process and to emphasize [*798] the importance of substantive understanding of the basic concepts of civic participation. The Bureau of Citizenship and Immigration Services in the Department of Homeland Security (DHS) introduced the new naturalization test in 2008 with goals of standardization, fairness, civic learning and patriotism. I note here a small mistake (p. 172) that implied the DHS as encompassing the Departments of State and Justice.

As a demographer of undocumented migration and legal immigration, I am intrigued by this analysis of official immigration discourse. My perspective is that research guides policy formulation to some degree, and that sounder policy-making would follow from sharpening this link and from more research about unauthorized migration and populations, propensities to naturalize, immigration multipliers, propensities to return migrate, and demographic and economic impacts of immigration in the long run. An unofficial, illegal, unauthorized, or illicit population has long been resident, and IRCA provisions under which three million unauthorized aliens were legalized over 1988-1991 proved to be only a temporary solution because illegal migration persisted. Many others later became or may yet become IRCA beneficiaries due to outcomes of class-action lawsuits over application eligibility. We are reminded by Newton’s quotations that several legislators viewed the legalization program as a one-time thing, and, in extending legal status, some legislators were reasonably well informed in their discussions of numbers of unauthorized aliens, numbers who might receive legal status under IRCA provisions, and subsequent family reunification and impact on U.S. population growth (pp. 87-88). Congress seemed to recognize statistical needs, mandating various reports (on legalization, employer sanctions and border enforcement) and “a recurring ‘immigration impact’ report” that was to serve as foundation for the formation of immigration policy” (Gordon 2002). Recent debates on immigration reform also included considerations of long-run impacts (Lowell and Bump 2006). I am concerned that Newton’s discussion of unauthorized estimates might lead a reader (or legislator) to too easily accept existing unauthorized estimates and to misinterpret the methodology. Current estimates are not any better in quality than ones made in the 1980s and 1990s by government and other demographers, and the unauthorized population could turn out to be higher, as found for 1980 and 2000, or lower, than now estimated. Simplifying, two sets of aggregate population statistics are compared, that is, foreign-born population and legal foreign-born population, to derive residual unauthorized population statistics. Although unauthorized residents are included in the census, there is not an unauthorized count from the census as Newton implies (p. 151), which is a crucial point because some scholars and advocates argue for basing apportionment on legal residents only.

The control and abatement of unauthorized immigration may be perceived by some as an “intractable social policy issue” (p. 39), based on proven inadequacy of past policies, but others perceive the value of blended policies on trade, migration, and border enforcement to address the specific and unique relationship of the U.S. first with [*799] Mexico, the primary origin of U.S. unauthorized migrants, and possibly with other nations. Many experts explicitly attribute unauthorized migration from Mexico to U.S. failure to even consider structural adjustment subsidies, social harmonization policies, and provisions for labor mobility and immigration reform in shaping the 1994 NAFTA agreements (Massey 2009; Massey, Durand, and Malone 2002). With “migration as a non-starter in NAFTA discussion” (Newton, p. 152), this U.S. strategy of emphasizing border enforcement with only partial economic integration, both legal and illegal immigration from Mexico accelerated after NAFTA, and a disadvantaged population has resulted from unilateral militarization of the US- Mexico border (Massey 2004).

Newton considers race and national origin in the immigration discourse. Which individuals are deserving of an immigrant visa for lawful permanent residence, and which individuals are undeserving of such admission or of receiving public benefits toward assisting with settlement and economic wellbeing? Although Mexicans outnumber Chinese, Filipinos, and Indians, those groups are sizable, and these governments, their ethnic organizations, and individuals are concerned with many of the same issues as in the case of Mexico. Newton notes the limits of a policy discourse racialized on Mexican origin and with a social construction of the “Mexican Other” as “Permanent Foreigner.” Defining Mexicans residing in the United States involves a maze of circularity, ambiguity, and invisibility (Bean et al. 2001), but the Mexican presence is unmistakable. Politicians have also defined non-Mexicans (Haitians, Guatemalans, Iraqis) as “problem” groups. Mexican immigrants have been stigmatized and disadvantaged in contemporary immigration policy, and Mexicans would benefit considerably from another legalization or regularization program, as they did from IRCA provisions.

Contrary to what would be expected from Schneider and Ingram’s theory that newly legalized immigrants benefiting from IRCA would then possess “deservedness,” the IIRIRA meant they were still undeserving until they became naturalized citizens. An unprecedented era of naturalization commenced just as IIRIRA passed, leading to remarkably high levels of citizenship. Micro-level explanations of economic motivation and the family reunification incentive are relevant, but the massive mobilization toward citizenship also occurred for achieving political incorporation in response to IIRIRA’s emphasis on citizens as deserving.

In the wake of IRCA and IIRIRA with its reversal of meaning of legal immigrant status, not surprisingly, many organizations, both restriction-oriented and immigrant advocacy-oriented, emerged, adding to existing organizations and think tanks and becoming highly engaged in efforts to influence the politics of immigration reform. Newton’s work may be helpful in resolving the tussle between symbolic or myth-based arguments and using science for public policy toward maximizing the public good. In one sense, organizations might promote more balanced treatment of different immigrant groups, as opposed to [*800] strategies playing to emotions and fears about immigrants.

Is Newton’s assessment of discourse on immigration and immigrants helpful in gauging the chances of comprehensive immigration reform during the next year or the next decade, possibly including due process protections and alteration of unpopular aspects of a deportation-driven enforcement system? I think she provides some pieces to the puzzle of the immigration reform debate and hints at the broader matrix. Americans value due process and they have realized that deportation orders may affect friends, neighbors, and U.S. born citizens. Many experts are convinced comprehensive immigration reform is needed and varying levels of consensus are found as to such specific measures as legalization or status regularization for some of the 11-12 million unauthorized migrants currently present, establishing a temporary worker program, providing for employer capability in hiring legal workers, and border controls (Massey 2007; Mangan 2008). Much evidence indicates costly, technological enforcement strategies, e.g., the Secure Border Initiative (GAO 2009), will not stop unauthorized migration without broader North American economic integration (Massey 2009).

One hopes Newton continues her focus on immigration politics because this book is worthy reading for faculty, students, practitioners, and researchers from law and political science, sociology, social work, government, public and international affairs, and public administration. At a minimum, I think readers will surely find this book enlightening and appreciate its depth, logic, and detail, but I suspect most will regard the book as an outstanding addition to their library. As Americans, immigrants and natives, we can find affirmation in the embracing of citizenship by millions over 1997-2008 despite the episode of punitive policy that IIRIRA represented.



REFERENCES:
Bean, Frank D., Rodolfo Corona, Rodolfo Tuirán, Karen A. Woodrow-Lafield, and Jennifer Van Hook. 2001. “Circular, Invisible, and Ambiguous Migrants: Components of Difference in Estimates of the Number of Unauthorized Mexican Migrants in the United States.” DEMOGRAPHY 38(3): 411-22.

Gimpel, James G. and James R. Edwards, Jr. 1998. THE CONGRESSIONAL POLITICS OF IMMIGRATION REFORM. Boston, MA: Allyn and Bacon.

Gordon, Linda W. 2002. “The Potential and Limitations of Reporting to Congress: The Triennial Report on Immigration,” 2002 PROCEEDINGS OF THE AMERICAN STATISTICAL ASSOCIATION, Section on Government Statistics [CD-ROM], Alexandria, VA: American Statistical Association: 1209-15.

Lowell, B. Lindsay, and Micah Bump. 2006. PROJECTING IMMIGRANT VISAS: REPORT ON AN EXPERTS MEETING. Institute for the Study of International Migration, Georgetown University. October. [*801]

Mangan, Katharine. 2008. “Immigration: A Campaign Primer.” THE CHRONICLE OF HIGHER EDUCATION, March 21. B10.

Massey, Douglas S. 1998. “March of Folly: U.S. Immigration Policy After NAFTA.” AMERICAN PROSPECT 37 (12): 22-33.

Massey, Douglas S. 2004. Review of WHO ARE WE? THE CHALLENGES TO AMERICA’S NATIONAL IDENTITY, by Samuel P. Huntington. POPULATION AND DEVELOPMENT REVIEW 30 (3): 543-548.

Massey, Douglas S. 2007. “When Less is More: Border Enforcement and Undocumented Migration.” Testimony before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. Committee on the Judiciary, U.S. House of Representatives, April 20.

Massey, Douglas S. 2009. “A Better Way to End Unauthorized Immigration,” Miller-McClune.com, January 10. http://www.alternet.org/story/118048/

Massey, Douglas S., Jorge Durand, and Nolan J. Malone. 2002. BEYOND SMOKE AND MIRRORS: MEXICAN IMMIGRATION IN AN ERA OF ECONOMIC INTEGRATION. New York: Russell Sage Foundation.

Mexico-U.S. Binational Study on Migration. 1997. BINATIONAL STUDY ON MIGRATION BETWEEN MEXICO & THE UNITED STATES. U.S. Commission on Immigration Reform and Secretaría de Relaciones Exteriores, Mexico, printed in Mexico.

Schneider, Anne, and Helen Ingram. 1997. POLICY DESIGN FOR DEMOCRACY. Lawrence: University Press of Kansas.

Schneider, Anne, and Helen Ingram. 1993. “Social Construction of Target Populations: Implications for Politics and Policy.” AMERICAN POLITICAL SCIENCE REVIEW 87 ( 2): 334-47.

U.S. Government Accountability Office. 2009. SECURE BORDER INITIATIVE: TECHNOLOGY DEPLOYMENT DELAYS PERSIST AND THE IMPACT OF BORDER FENCING HAS NOT BEEN ASSESSED. GAO-09-896. Washington, D.C.: U.S. Government Printing Office. September.

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© Copyright 2009 by the author, Karen A. Woodrow-Lafield.

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CHOOSING LIFE, CHOOSING DEATH: THE TYRANNY OF AUTONOMY IN MEDICAL ETHICS AND LAW

by Charles Foster. Oxford: Hart Publishing, 2009. 200pp. Paperback. £22.50/$45.00. ISBN: 9781841139296.

Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza, garruego [at] unizar.es.

To weigh up the relevance of the many advances in technology and biomedicine in recent decades has become, to some extent, a common place. These advances have been accompanied by equally transcendent changes in the dominant social and cultural values, which, among many other consequences, have led to the reconstruction of the law governing the biomedical context, and especially the patient-doctor relationship, mainly in terms of fundamental rights. For example, Article 1 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention) declares that “Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine”. But they are also the cause of many tensions in different areas of the Law. This assertion would be especially true for Constitutional Law and fundamental rights theory, due to the nature of most of the issues involved.

In this sense, lawyers are prompted to give from the existing Law precise juridical answers to the dilemmas and new scenarios derived from those advances which are expected to fit those changing cultural and social values. It has to be stressed, however, that most of the time those answers must be provided, if possible, from juridical structures which were not created to face the new biomedical challenges. Let us think, for example, about the many new problems arising from the perspective of fundamental rights such as the right to life, to physical and moral integrity, to privacy, and to freedom of religion or beliefs.

This is the framework of CHOOSING LIFE, CHOOSING DEATH, by Charles Foster, in which he engages in an “assault” on the alleged pre-eminence and hegemony of the principle of autonomy in the English medical law context. Accordingly, the intention of the book is to examine “the extent to which autonomy is already the ruling principle in English Medical Law,” to propose other different principles that should come into play, mainly non-maleficence, beneficence and justice, and to indicate “how those other principles might affect the law” (p.6). With this purpose, Foster examines some of the most relevant issues in English Medical Law according to the following thematic structure: “Before life” questions, “Between birth and death” issues, and “After death” problems. [*792]

The first part of the book is thus devoted to the principles that, in Foster’s view, rule and should rule English medical Law. In this sense, the first chapter (“Autonomy, Challenging the Consensus,” pp.3-15) is intended to set out the elements of a “fundamental critique of the extraordinary status of autonomy,” while the second (pp.17-19) suggests other principles different from autonomy that should contribute to medical ethics and medico-legal debates. It has to be stressed, however, that the reader should not expect a deep analysis of the meaning and legal implications of principles, such as non-maleficence, beneficence or justice, as that is not the intention of the author; principles which, according to Foster, are almost “ignored and at great cost” and are expected to play a fundamental role in his book. Finally, Chapter Three (pp.21-28) examines, almost exclusively, and defends, the doctor’s and even administrative staff’s conscientious objection clause especially in abortion procedures.

The second part of the book, dealing with “Before Life” biomedical issues, opens with a focus on “Reproductive autonomy” (pp.31-39). Based on previous case-law, Foster examines the questions of whether one should be required to reproduce (Blood and Evans) and whether you should be entitled to have a child in three different contexts: adoption (with special attention and critique of how the criterion “best child interest” is understood), prisoners [ELH and PHB v UK, ECHR (1997)] and assisted reproduction procedures. The final purpose would be, according to Foster, “to make the point that once we step out the medical world we do not expect autonomy to have the last word” (p.38). He then addresses the problematic question of “Abortion” (pp.41-54), beginning with the assumption that “There is no reason to distinguish a foetus in utero and a child ex utero” (p.53). Finally, Foster also explores “Questions raised by reproductive technology” (‘pp.55-62), following the same line of reasoning with the exposition of different case-law material and with special attention to the issues raised by genetic selection.

In the most extensive section of the book, part three, Foster deals with different biomedical matters, grouping them with the generic title of “Between birth and death.” Chapter Seven examines, again departing from real case-law such as the Sue Axon case, some of the problems posed by “Confidentiality” (pp.65-82) in biomedical law. Chapter Eight is devoted to “The Law of Consent” (pp.83-125), which Foster defines as the “fundamentalist heartland of traditional autonomy” (p.82). The chapter opens with the examination of a diverse set of cases, including REEVES v. COMMISSIONER OF POLICE OF THE METROPOLIS (relating the duty to prevent suicide), R. v. BROWN and OTHERS (concerning consensual sadomasochist sexual intercourse) and the so-called caesarean section cases. Foster then moves to the analysis of some problems of the decision making process in the medical context, such as the information required by the exigency of informed consent prior to any intervention in the health field, the limits of consent, the problems posed by Biobanks, and the complex issue of capacity with special attention to children. [*793]

Chapter Nine, entitled “Litigation, rights and duties” (pp.127-132), begins with examination of issues relating to litigation in English tort Law but then moves to the doctor’s duty to treat a patient and the allocation of resources in a public and universal healthcare system and some questions connected – for example, whether a right to demand a certain treatment exists. “Medical research on humans” (pp.133-142) considers the issue of medical research carried out with both competent and incompetent human beings and raises questions regarding the law governing these matters in the UK, the Oviedo Convention and the Helsinki Declaration. It also treats some problematic and controversial cases, such as those depicted in SIMMS v. SIMMS and in some clinical trials carried out by the pharmaceutical industry in the Third World.

The closing chapter of this section (pp.143-161) is devoted to the question of end of life decisions (euthanasia, assisted suicide and advance directives) and, as in the abortion case, Foster’s principles framework is clear from the outset: the principle of sanctity of life and the primacy of the fundamental right to life, which, although controversial, is considered by the author as a “usual and logical hierarchy” as a consequence of the factual argument that “unless one has life, one has nothing to which any article 8 right can attach”(pp.147-148) In exploring this issue, Foster adopts the classical distinction between “the withdrawal of life-sustaining treatment and the performance of an act whose intention is to bring about death,” which is simply described as “the deliberate execution of a patient” (p.149), and shows a clear worry for the questions connected with “competence” and “free choice” in such a complex context.

The final part, “After Death,” is structured in two chapters. Chapter twelve, “Transplantation” (pp.165-171), focuses on live donor transplantations and especially underlines some issues arising when the donor is an incompetent person and the question of whether those donations which imply the death or serious harm to the donor should be allowed. Chapter thirteen (“The ownership of bodyparts,” pp.173-180) describes the main contents of the English Human Tissue Act 2004.

When reading Foster’s book, one should be aware of some special features which are not usually present in what it could be called a “classic” piece of academic work. It has to be underlined, however, that to write an unusual book was Foster’s original intention, at least accordingly to the views and opinions he expresses throughout.

From a strictly stylistic point view, Foster’s anthropomorphic discourse concerning the principle of autonomy, to which most of the time he refers as a real being, is notable. However, problems arise as many times the reader might have the impression that far from being a mere literary device, this anthropomorphic way of writing seems manipulative, a problem which increases as soon as these formal questions are connected to issues concerning the book’s essence. It is not only that the author’s discourse can be perceived as unidirectional, as he continuously presents autonomy as a being with authoritarianism, egocentric or dictatorship manners (autonomy is for example described as “ruthless,” “fat and [*794] brutal in power”), while the other “contenders for a voice” are always described as humble, positive and just looking for their place without pretending to monopolize the bio-legal debate. The really problematic question is that the reader would probably expect much more evidence and juridical reasoning to sustain such vigorous criticism. In this sense, legal argumentation should not be dangerously subordinated to or abandoned to mere “logic,” “decency” or “common sense” (compare, e.g., pp.89, 148). This is obvious, too, when examining the questionable use and content Foster gives to the principle of justice, the appellation usually made to beneficence, non-maleficence and justice or some inconsistencies present in his work.

Furthermore, sometimes the reader could have the feeling that the image of the principle of autonomy provided and criticised, is a deformation and exaggeration of the implications and possible meanings of the principle of autonomy in a democratic context characterized by the recognition and protection of fundamental rights and freedoms, as well as of other constitutional principles, goods and values. This intuition could be extended too to the alleged “tyranny” of the principle in the medico-legal debate and in the medical Law.

In the end, it could be argued that all the questions articulated in the book, which are many and problematic indeed, and which according to Foster are attributable to the “hegemony” of the principle of autonomy, are most of the time constitutional issues, where what it is at stake are constitutional rights, values and principles; fundamental rights, by the way, which can be conceived and interpreted in different ways. Some clearly diverge from the conception of autonomy portrayed by the book. Of course, in a democratic context, the solutions provided by the Law and its interpretation by the Courts are open to criticism, but one should never miss the point. In this context, the general impression is that Foster would probably feel more comfortable in a medico-legal context where heteronomous criteria had a more prominent voice, as it happened when “old fashion medical paternalism” ruled medical Law.

CASE REFERENCES:
SUE AXON v THE SECRETARY OF STATE FOR HEALTH (The Family Planning Association: intervening) [2006] EWCA 37 (Admin).
The Caesarean Section Cases:
ST. GEORGE’S HEALTH CARE NHS TRUST v. S [1998] 3 All ER 673.
Re MB [1997] 8 Med. LR 217.
ELH and PHB v UK [1997] 91 A-DR 61.
REEVES v. COMMISSIONER OF POLICE OF THE METROPOLIS [2000] 1 AC 360.
SIMMS v. SIMMS [2003] 1 Fam 83.
R. v. BROWN and OTHERS [1993] 2 All ER 75.

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© Copyright 2009 by the author, Gonzalo Arruego.

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JUDGE MADE FEDERALISM: THE ROLE OF COURTS IN FEDERAL SYSTEMS

by Beniamino Caravita di Toritto, Jutta Kramer, and Hans-Peter Schneider (eds). Baden Baden, Germany: Nomos Verlagsgesellschaft, 2009. 260pp. Paper. $61.00/€49.00. ISBN: 9783832942229.

Reviewed by Kirk A. Randazzo, Department of Political Science, University of South Carolina. Email: randazzo [at] mailbox.sc.edu.

pp.788-790

Many political issues around the world arise because of the relationship between superior and inferior governmental units in federal systems. Lacking appropriate political solutions, these issues often enter the judicial arena through specific litigation. For many scholars, questions concerning federalism and judicial decision-making are extremely important. Yet, few examinations exist that focus on federalism across multiple institutional environments. Thankfully, Professors di Toritto, Kramer, and Schneider – and their edited volume, JUDGE MADE FEDERALISM: THE ROLE OF COURTS IN FEDERAL SYSTEMS – provides insights taken from several countries.

The book is organized around country-specific chapters, with authors providing details pertaining to important constitutional and federalism questions within the specific jurisdiction of their courts. The countries represented include Italy, South Africa, Spain, Great Britain, Germany, Russia, Australia, Canada, the United States, and Austria. Additionally, a final chapter focuses on questions of federalism as they manifest in common law versus civil law countries. Without discussing each chapter individually, let me comment on a few notable examples to illustrate the types of information provided in JUDGE MADE FEDERALISM.

The book begins with a chapter written by Beniamino Caravita di Toritto on the Italian Constitutional Court and its role in recent constitutional reforms. Professor di Toritto notes the myriad of problems involving questions of federalism since the constitutional reforms of 1999 and 2003. For example, several substantive areas of law are covered by concurrent legislation from the central State and the Regions. The resulting confusion has allowed the Italian Constitutional Court to modify “the relationship between the central State and the Regions, based on the relation [of] fundamental principles” (p.26). These fundamental principles include a) detail legislation; b) a sense of bargaining in the Court’s jurisprudence; and c) more involvement of the Regions in the political decision making procedures of the central State.

Nico Steytler then discusses questions of federalism in the Constitutional Court of South Africa. Here, Professor Steytler notes that in the past ten years, the Court has adjudicated several important federalism questions and has stressed that each question was approached “from a position of judicial neutrality, neither for nor against national or provincial government” (p.27). Rather, Professor Steytler argues that when the Constitutional Court renders decisions, “the pragmatics of good governance [*789] become the overriding concern, namely as it most basic level, the ability to deliver services in terms of the law” (p.40).

In examining the Constitutional Court of Spain, Miguel A. Cabellos Espiérrez makes a distinction between two different types of decisions. The first type seeks to “establish doctrine in relation to the major concepts on which the autonomic system is based” (p.43). These include autonomy, the structural principles of the autonomic system, and the relationship between legal orders. The second type of decision focuses on competences in specific areas. Professor Cabellos Espiérrez also notes the somewhat unique legal system in Spain, where “either the State or an Autonomous Community may challenge the norms, provisions, and resolutions of the other body, and one Autonomous Community may also initiate such challenges in relation to another” (p.44). One additional issue that confronts the Spanish Constitutional Court involves substantial delays with decisions. As Professor Cabellos Espiérrez explains, “as a result of these delays, the resolution of a conflict of jurisdiction frequently arrives when the norm under appeal has already been in effect for many years, and in many cases when the damage done cannot be repaired” (p.61).

In the United Kingdom, devolution to Scotland, Wales, and Northern Ireland came following referenda in 1998. As Robert Hazell explains, while these regions operate under the sovereignty of the Westminster Parliament, there are “different sets of powers and functions” granted to each and “very different constitutional designs of the Scottish Parliament, National Assembly for Wales, and Northern Ireland Assembly” (p.66). Yet, the three regions are supposed to litigate ‘devolution issues’ before the Judicial Committee of the Privy Council as required by legislation. However, “in the first six years of devolution no division of powers cases have been referred to the courts” (p.66). Consequently, as Professor Hazell explains, “in the absence of court judgments, the Law Officers provide opinions which are treated as authoritative” (p.67). One of the primary explanations provided for a lack of litigation involves the “Labor-led administrations in London, Edinburgh, and Cardiff, and that this harmony will break down once there are governments of different political persuasions” (p.77).

Jutta Kramer’s essay focuses on questions of federalism in Germany, and notes that “the federal system is submitted to judicial review not only by the Federal Constitutional Court but also by the sixteen Constitutional Courts of the Länder” (p.89). Consequently, it is not unusual to encounter a wide variation of decisions pertaining to federalism at both levels, which sometimes deviate from each other. Additionally, Professor Kramer notes that “the Länder more often challenge the Federation before the Federal Constitutional Court arguing that that Federation has legislated on matters of their exclusive competence” (p.89). The overall conclusion from Professor Kramer’s examination is that the “German Federal Constitutional Court is neither a real promoter of unitarisation nor of decentralization of competences within the German federal system. It rather tries to interpret the Basic Law as narrow as possible” (p.97). [*790]

Hans-Peter Schneider’s examination of Germany focuses on three principles of judge made federalism – loyalty, solidarity, and subsidiarity. He notes that “the German Basic Law provides for no less than five different procedures which can be used in order to take federal disputes between the Federation and the Länder to courts (p.99). As a result, “this vast range of competencies of the courts in federal matters has caused an enormous bulk of decisions dealing with the relationship between the Federation and the Länder or with the constitutional relations of the Länder amongst themselves” (p.99). According to Professor Schneider, the principle of loyalty dates back to the first German Empire established by Bismarck and requires levels of government to “treat each other with respect, kindness, and favor” (p.100). The principle of solidarity is based on the fundamental structure of Germany as a social state. Finally, the principle of subsidiarity means “that matters should be handled by the smallest or the lowest competent authority, so that a central authority should have only subsidiary functions performing only those tasks which cannot be performed sufficiently and effectively at a more immediate or lower level” (p.103).

While I enjoyed reading each of the country-specific essays provided by the various authors, there is one minor (and I stress minor) criticism I could levy against the entire edited volume – the lack of a single, organizing theme. Without such a theme, the essays seem to reflect a simple collection of country anecdotes related to federalism. The inclusion of a well-articulated theoretical framework or organizing theme could have brought the disparate chapters together in a more cohesive volume. It is possible that such a theme is present in the book’s introduction. However, that introduction is written in German – a language which is foreign to me. This raises an interesting question concerning the editors’ choice to offer an introduction in German. It is not clear why this choice was made, perhaps to broaden the appeal of the book to audiences outside the United States. Unfortunately, it seems that a bilingual volume is more likely to reach a narrow audience (i.e. those who are fluent in both languages) rather than a broad set of readers.

Despite this criticism, I believe this is a well-written book that accomplishes an important goal – to help explain how judges in various institutional environments adjudicate disputes involving questions of federalism. For those scholars interested in this topic, I would recommend this volume.

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© Copyright 2009 by the author, Kirk A. Randazzo.

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THE JUROR FACTOR: RACE AND GENDER IN AMERICA’S CIVIL COURTS

by Sean G. Overland. El Paso, TX: LFB Scholarly Publishing, 2008. 178pp. Cloth. $62.00. ISBN: 9781593323288.

Reviewed by Randolph N. Jonakait, Professor of Law, New York Law School. Rjonakait [at] nyls.edu.

pp.780-787

A civilized society needs a civilized means of resolving disputes. Juries are at the heart of our method. Hundreds of times every day juries make decisions that affect not only the lives, fortunes, and futures of individuals and organizations but of society generally. Even so, while anecdotes about juries abound, good research about how juries, our most direct form of participatory democracy, reach decisions is scarce. By presenting new data about juror decision-making in civil cases, Sean G. Overland’s new book, THE JUROR FACTOR: RACE AND GENDER IN AMERICA’S CIVIL COURTS, provides a valuable, but limited, addition to the research literature.

Dr. Overland, a trial consultant who assists clients with case strategy and jury selection, precedes that data with a solid summary of jury research. He reports that most studies conclude that “jurors do a very good job of understanding case evidence and using that evidence to reach decisions” (p.4), and that judges agree with the jury verdicts in a large majority of cases. Furthermore, while it may seem intuitive that the racial and gender composition of juries will affect the verdicts, “most of the academic research on juror decision-making has reached the rather surprising conclusion that jurors’ personal characteristics, including their race, gender, socioeconomic status and so on, have relatively little, if anything, to do with their verdicts in most trials” (p.11). Instead, studies consistently show that “the most powerful determinant of a juror’s verdict in both civil and criminal cases is the strength of the competing evidence. . . . . Several studies have confirmed that the litigant that presents the strongest case is likely to prevail, regardless of any other factors that might affect jurors’ decision making, including the demographic composition of the jury” (p.12).

Overland notes that researchers do not have access to jurors during trials. Instead, data are usually derived from one of three alternative sources. All have their limitations.

Interviews following the completion of juror service are time-consuming and expensive, depend on jurors’ memories and self-reported perceptions that may be faulty, and usually yield sample sizes too small for statistically significant results.

Trial simulations or mock trials, the most common source of data on jury decision-making, can control variables, such as the evidence presented, in order to study factors of interest, such as the demographic characteristics of the jurors. Many such studies, however, have used convenience samples of research participants, most often college [*781] students, who do not accurately represent the pools from which real jurors are drawn. The quality of the evidence presented in mock trials varies widely, from brief, written descriptions of a trial to more lengthy audio and videotaped presentations. In contrast to an actual trial, the mock jurors do not make decisions with real-world consequences, and many of the studies collect information from the individual participants without having them deliberate in panels. Consequently, doubts exist about whether the information gathered from mock trials really applies to actual trials.

Archival data about actual verdicts along with census data from the trial venues allow researchers to seek correlations between verdicts and awards and the venues’ population characteristics. Such information, however, is limited. Not all jurisdictions’ verdicts are available, and the collected information usually reports only the verdict, the size of any award, and the general type of case. The characteristics of the juries are not catalogued, and the correlations with the census data are valuable only with the assumption that that demographic data accurately represent the jury pools and trial juries. Furthermore, as Overland states, “a major drawback of such data is the lack of any control over the types of cases heard or the evidence presented. . . . [B]ecause these data sets include only the most general information about each trial – typically just a broad classification, such as ‘medical malpractice’ or ‘product liability’ – little or no control is possible over the variations presented in each case” (pp.37-38).

Overland further maintains that much of the research suffers from unsophisticated statistical analyses and concludes that good “data [about jury decision-making] are extremely rare, and this scarcity of reliable data may have led researchers to some incorrect conclusions about the relationship between jurors’ characteristics and their verdict decisions” (p.39). He contends that trustworthy information about civil juries is especially scarce. He concedes that the bulk of research on civil and criminal trials, alike, finds little evidence of correlations between those characteristics and verdicts, but he also reminds us that the majority of jury research has concerned criminal trials. He notes that the decisions jurors make in civil cases may allow juror demographics to play a greater role than in criminal verdicts.

Only a small percentage of filed cases result in a trial on either side of the justice system, but the prosecutor has great control in what criminal cases go to trial. As a result, the evidence in criminal trials usually favors the prosecutor, and, not surprisingly, most often the result is a guilty verdict. In contrast, neither civil party has the predominant power in settling cases. As a result, civil liability verdicts tend to be equally split between plaintiffs and defendants. Since civil cases are often more closely contested than criminal ones, it is possible, as Overland maintains, that “jurors must rely to a greater degree on their own intuitions, experiences and personal judgments when reaching a [civil] verdict, [and] their personal beliefs will have the greatest impact on verdicts” (pp.13-14). [*782]

In addition, in civil cases jurors are often asked to do more than merely determine what happened. In a negligence case, the jurors must decide whether the defendant acted as a “reasonable” person under the circumstances; in a products liability case, the jurors may have to determine whether a product was “unreasonably dangerous.” This qualitative assessment of “reasonableness,” Overland concludes, allows for an “inherent subjectivity in the civil verdict decision [that] opens the door for jurors’ personal views to play a greater role than they might in a criminal trial” (p.44).

Overland’s summary of jury research, its limitations, and the differing nature of civil and criminal verdicts, while unsurprising to those familiar with jury studies, should be of interest to others. The real value of THE JUROR FACTOR, however, is the new data presented about juror decision-making in civil cases. They come from the archives of a litigation consulting firm that runs and analyzes mock trials for corporate clients facing major civil litigation. Through random phone numbers and other similar devices, mock jurors from the actual trial venues were recruited to provide a representative sample of the jury pool. Participants supplied both demographic information and, through multiple-choice questions, their attitudes about such things as politics, lawsuits, and corporations. Then through videotapes or live performances, attorneys presented condensed versions of the evidence to the mock jurors, with presentations varying from one hour summaries to three-day sessions. Finally, the participants answered questions about their reactions to the case including their assessment of who should win.

Three different sets of civil cases, analyzed separately, generated the data. In eight mock trials, plaintiffs claimed that accidents with resulting personal injuries were caused by a design defect in an automobile. In nine trials, plaintiffs alleged that a prescription medicine caused severe side effects that were not disclosed by the manufacturer. And in seventeen instances, plaintiffs argued that an accounting firm’s malpractice caused financial losses.

In all three data sets, a higher percentage of blacks than whites and a higher percentage of women than men favored the plaintiffs, although the differences varied by the case. A multivariate analysis, however, that considered income, education, age, political ideology, and attitudes towards big business and lawsuits showed a more complex picture. Each factor, varying by the specific case, correlated with the verdicts. The strongest factor in each case was the attitude toward business. The more a juror trusted big business the more likely the juror would find for the defendant. The second strongest factor in both the car and drug case was the attitude towards litigation. The less a juror thought lawsuits were an effective way of resolving disputes, the less likely the juror would find for the plaintiff. However, even after other factors were controlled for, race and gender still correlated with the verdicts.

In addition to these mock jury studies, THE JUROR FACTOR also presents new data about the deliberations of juries. Other research has cast doubt upon the importance of deliberations. [*783] These studies show a “majority effect” where the ultimate verdict usually follows the jurors’ first vote, indicating that deliberations after the first ballot seldom affect the outcome.. Overland summarizes one such study that found if the initial ballot favored conviction, the jury convicted in 151 of 160 trials, while if that first ballot favored acquittal, the jury acquitted in 37 of 49 trials.

Overland’s deliberations data comes from post-verdict juror interviews after eleven trials involving an alleged automobile design defect. Nine of the verdicts followed the majority’s first vote, eight for the defense and one for the plaintiff. The other two juries were equally split on the first ballot, and both found for the defendant. Overland also reports that non-white jurors were more likely to switch votes during deliberations than whites, but the correlation was small. No significant correlation was found between gender and vote-switching. In addition, those initially favoring the plaintiff were more likely to change their vote than those first finding for the defendant.

The literature suggests two reasons why jurors may switch their votes. Jurors in the minority might succumb to social pressure and switch their votes. Or jurors may change their opinions as they gain new information and perspectives from other jurors. In Overland’s sample, jurors overwhelmingly said that new information caused their vote change.

Furthermore, Overland suggests that his data may show a “leniency bias” in civil cases. This term comes from criminal jury studies reporting that when a jury is equally split on the first vote, juries are more likely to return a verdict of acquittal. Since the two 6-6 civil splits also ended with defense verdicts, the author suggests that a leniency bias may also affect civil cases.

Classifying a verdict for an automobile company as a leniency bias, however, ought to give pause. The data come from jurors who rendered ten defense verdicts out of eleven. This is not generally representative of civil cases, but seemingly a sample where the evidence strongly favored the defendants, and if so, generalizations from it are suspect. Thus, it does not seem surprising in such a data set to find that jurors who first voted for plaintiffs were more likely to switch their votes than the other group. Surely, if the data had come from trials where plaintiffs won 90% of the time, jurors initially favoring the defense more likely would have changed to favor the plaintiff. That the two equally split juries returned verdicts consistent with the overwhelming majority of the other juries perhaps only shows that those favoring the defense had the better of the arguments, not that a leniency bias was operating.

In contrast, the mock trial data do seem more reliable than the data from many other jury studies, as Overland maintains. “The use of a representative sample of ‘real’ people recruited from the trial venue, combined with real attorneys and realistic courtroom conditions, increases confidence in the validity of the conclusions drawn from an analysis of the data” (p.57). However, while the data from each of the three kinds of trial were reported separately, it is not clear that the data could be validly aggregated in this way. In each set there appear to be multiple, uncontrolled [*784] variables. For instance, the mock trials were held in different parts of the country. Can we assume that jurors with similar demographic and attitudinal characteristics from Bethesda, Maryland, Laredo, Texas, Union County, New Jersey, and Riverside, California (some of the locations for the mock drug trials) all behave the same, so that the data from these disparate places can be validly lumped together? Or do the locations of the jurors matter as many attorneys seem to believe? Overland does not tell us.

The evidence presentations within each set seem to have varied from a one-hour videotape to an extended three-day session with live attorneys. We cannot tell from the presented data whether the differing forms correlated with outcomes. The plaintiffs’ cases were not all the same. For example, in the drug prescription cases, the severity of the claimed injury varied. Moreover, the length of time the person used the drugs, and their pre-existing conditions were not constant among the trials. Overland does not report in detail what those variations were, but it is possible that cases of significant differing evidentiary strengths were presented in this set. For example, if two plaintiffs claimed that a drug caused heart arrhythmia, but one used the drug for a week and had a pre-existing heart condition while another used the drug for a year and did not have the pre-existing problem, jurors, because of the evidence, might react differently to the two cases. Such a possibility could have affected the conclusions reached by Overland. For example, 1% of the Charleston, West Virginia, participants were black, while in Houston 60.8% of them were black. If, however, the Houston evidence presented a stronger plaintiff’s case than did the Charleston one, then aggregating the two might lead to the conclusion that blacks were more likely to favor the plaintiffs when the varying strengths of the cases actually produced the apparent racial effect.

In other words, even though Overland’s mock trials do seem more realistic than many other ones, variables that were not controlled could have affected the data. It simply cannot be concluded that the results Overland found truly apply to actual trials. This is a fundamental issue for mock jury studies generally.

The author, however, certainly wants to conclude that his data are generalizable. He converts regression coefficients into “verdict probabilities.” In the car accident case, for example, he concludes that holding other factors constant, women would find for the plaintiff 49% of the time compared to 32% of the men; blacks would find for plaintiffs at a 22% higher rate than other racial groups; and low income jurors would favor plaintiffs 47% of the time compared to those with high income at only 31%. While the author also concludes that the attitudinal variables produce even more striking differences, he notes, “These are large substantive differences, and directly challenge the findings in the literature that jurors’ demographic characteristics have no effect on their verdicts in civil trials” (p.73).

Certainly such a conclusion has an important consequence for our justice system. If juror attitudes and demographics correlate with verdicts, then lawyers selecting juries will wish to eliminate potential jurors based on these characteristics. Attorneys have to act [*785] with the available information, and information about potential jurors’ attitudes is often limited while demographic factors are often obvious. This leads Overland to ask, “Would striking jurors based on their race or gender – given that those easily observed traits may serve as rough proxies for attitudes – constitute unwanted and unfair discrimination. . . .?” (p.80).

The author then summarizes the Supreme Court cases holding that neither party in either a civil or criminal case can exclude potential jurors based on their race or gender through the use of peremptory challenges, a discussion which should be useful to those not familiar with these opinions. Critics, however, have maintained that the Court’s framework for interpreting and enforcing this principle have made it too easy to circumvent and that lawyers continue to challenge based on race and gender. Perhaps so, but meaningful data on this issue have not been collected.

This issue, however, highlights a difficulty about drawing inferences from mock jury studies. Jurors only serve after having passed the challenge process. Any potential juror who cannot impartially decide a case based on evidence to be presented can be struck for cause. In addition, attorneys have peremptory challenges to strike a set number of potential jurors who have survived the for-cause process. Attorneys can eliminate biased jurors, and this may include those with the kind of characteristics that most strongly correlate with verdicts in jury studies. Furthermore, if jury studies merely produce findings that coincide with the folk wisdom of attorneys, they will have little effect on jury selection. If the intuitions of plaintiff’s attorneys in Overland’s cases, for example, were that whites and those who had favorable opinions of big business were less likely to find liability than others, then their use of peremptory challenges will tend to balance out the defense use of the challenges. Potential jurors whose characteristics most strongly indicate a particular verdict will be eliminated.

And, of course, real jurors do deliberate. While the so-called “majority effect” can be interpreted to conclude that deliberations hardly matter, the data reported here indicate that verdicts in 10% of the cases do not follow the initial ballot, indicating deliberations can affect a large number of cases. Furthermore, the prospect of jury deliberations must be considered. Jurors expect deliberations to be important, and they know they will have to take a stand, justify their position, and perhaps try to persuade others. They cannot expect justifications based on gender, economic status, or ethnicity to be convincing. Instead, what the jurors all share is the trial itself. They expect to discuss that, and this can affect how they pay attention to and process the presented evidence and arguments. As I have written elsewhere, if our system returned verdicts based upon the majority vote after the first ballot, jurors would only have to decide how they were going to vote. “They would not have to prepare themselves to justify their decision or persuade others to endorse it. Surely jurors’ behavior would be different under such a system. Because they would not have to construct defensible and convincing positions from the evidence, they would not have to pay much attention to it. The evidence would have less primacy, allowing [*786] extralegal factors more play. Thus, the expectation of deliberations brings a critical focus on the evidence” (Jonakait 2003: 232).

Several studies support this. Research has shown that after deliberations jurors recall the evidence more accurately than without deliberation. Mistaken views of the evidence by an individual juror are corrected by others. In other words, the jurors debate and focus on the evidence.

Indeed, Overland reports another study that found the composition of the jury mattered in deliberations. More information was exchanged in racially diverse juries than in all-white ones. The author notes, “[J]ust the prospect of deliberating with a heterogeneous group seemed to affect white jurors’ judgments, as white jurors in diverse groups were more lenient toward black defendants in their pre-deliberation verdicts than were white jurors who knew they would be part of an all-white jury deliberation panel” (p.128).

This last finding could be important in a number of ways. It indicates that at least for race, how the information from trial is absorbed may be affected by the prospect of deliberating with a heterogeneous group. Perhaps that dynamic is more extensive. Are the first votes of those who are pro-big business affected when they know they will deliberate with those who hold other views? Are the first votes of women affected when they expect to deliberate with men? If so, mock jury studies that collect verdict preferences when the participants do not expect to deliberate may be overstating any correlations uncovered between the jurors’ characteristics and the outcomes.

We do know a crucial fact about outcomes after deliberations that should not be overlooked. Overland’s data about verdict probabilities suggest that, if twelve women comprised the jury in the car accident case, the jurors would split equally on liability. We know, however, that even when juries must be unanimous, a verdict is almost always rendered. Hung juries are rare. A prediction based on jury characteristics that half the jury would find for the plaintiff and half for the defendant almost always turns out to be false.

We still do not know how mock jury studies relate to real trials or whether the work of jury consultants can affect verdicts, and it is disappointing that THE JUROR FACTOR does not do more to advance knowledge on these issues. The presented mock jury data were not amassed as an academic exercise, but apparently collected to help attorneys representing corporations in real trials. If trials did result, presumably the mock jury data were used to make predictions about specific potential jurors that were considered in the jury selection. What predictions were made? What, if anything, can be said about the predictions in light of verdicts actually rendered? If there were a number of trials, presumably the jury composition on demographics and attitudes were not all the same. Did results vary? If so, how, and how did those variations gibe with any predictions made about potential jurors?

If such additional information were available, it would have been valuable in both assessing the external validity of the jury studies and in learning whether lawyers aided by jury consultants can truly affect verdicts. Even so, however, [*787] Sean Overland’s book presents new, interesting data and summarizes well existing research. Thus, it is valuable to those interested in way juries behave.

REFERENCE:
Jonakait, Randolph N. 2003. THE AMERICAN JURY SYSTEM. New Haven, Yale University Press.

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© Copyright 2009 by the author, Randolph N. Jonakait.

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UBIQUITOUS LAW: LEGAL THEORY AND THE SPACE FOR LEGAL PLURALISM

by Emmanuel Melissaris. Burlington, VT and Farnham, England: Ashgate, 2009. 178pp. Hardback. £55.00/$99.95. ISBN: 9780754625421.

Reviewed by Roger Cotterrell, Department of Law, Queen Mary University of London, UK. Email: R.B.M.Cotterrell [at] qmul.ac.uk.

pp.774-779

It may not yet be true that we are all legal pluralists now. Nevertheless, the concept of legal pluralism – the idea that different kinds of legality co-exist in indeterminate relations in the same social space – is much discussed by legal researchers. An important stimulus for this growing interest lies in the usefulness of legal pluralist theories for those who wish to detach law from any necessary relation to the state. Emmanuel Melissaris, a legal philosopher teaching at the London School of Economics, is among this company. His book, which seeks to theorise the idea of legal pluralism, opens with a brief reference to Islamic Shari’a law in the UK to ask: if all law is state law, or authorised by the state, what is the status of Shari’a as a form of legality? The issue can be generalised: are there forms of legal experience that are highly valued by particular populations but that the state cannot or will not recognise?

In fact legal pluralism has often been discussed in the light of multicultural legal experience, as well as in the context of many kinds of transnational law (law intended to operate across nation state borders) that are now developing and competing for jurisdictional space. Most literature on legal pluralism has been produced by sociolegal theorists or legal anthropologists, and it grounds itself in the sheer empirical diversity of contemporary legal experience – from conflicts of state law and religious or customary law to the interactions of World Trade Organization law, European Union law and national legal systems.

Melissaris’ book is different, however, and more abstract in focus. He aims to provide ‘a philosophical grounding of a social-theoretical approach’ to law (p.4). While he argues that legal theory must now combine philosophical and sociological approaches, and his text draws on a wide range of theory in sociology of law and recent legal philosophy, essentially this is a work of legal philosophy. It addresses the time-honoured jurisprudential issue ‘What is law?’ but in a new context in which, in Melissaris’ view, familiar legal philosophical assumptions no longer hold. Thus, law cannot be understood (as by H. L. A. Hart) from an ‘external’ (observer’s) viewpoint (which, in fact, merely generalises an ‘internal’ view of the legal experience typical of certain kinds of legal systems). Nor is a Dworkinian ‘internal’ understanding of law adequate, because it is unable to see beyond the parameters of its own parochial legal experience. Even critical legal theories fail insofar as they attack orthodox state-focused understandings of law without trying to replace these [*775] with more appropriate conceptualisations of law.

The book’s key argument is that law cannot now be understood solely through state-law experience, which distorts the range of actual and possible legalities. And the state-law concept cannot just be replaced with another uniform concept of law that treats it as existing apart from the state. That would be to impose a single view of legality on diverse kinds of legal experience. Legal pluralist ‘empiricist-positivist’ approaches (p.28) that purport to set out new ‘objective’ indicia of the legal cannot represent the variety of subjective legal experience. That experience is merely distorted or rejected if any universal theory of law is imposed on it. Furthermore, the whole idea of legal pluralism is denied by postulating some single uniform legal conception.

Where then does this leave us? Is a pluralist legal theory possible? Melissaris is sure that it is; indeed, for him, legal theory must be a theory of legal pluralism; any other approach denies law’s reality. The aim is to strip away from the legal all those institutional elements that are merely contingent characteristics of state law. Law resides in shared normative experiences entailing ‘presuppositions on the part of participants concerning their ability in common to transform the world through their normative commitments’ (p.109). These subjective normative experiences are historically situated; they reflect particular understandings of space and time; they are beliefs rooted in specific contexts of co-existence or social interaction; and they combine the empirical and the normative. So law is always sociologically-rooted in particular contexts and in the interactions of specific social networks.

However, if this were all, there would be no way to speak of legality as an idea that traverses these different contexts and subjectivities. There is also, according to Melissaris, a minimal ‘universal sense of law’ (p.5). Speech act theory, on which he relies, suggests the centrality, in the legal, of performative acts that usually give rise to institutional facts; law is basically about the transformation of words into deeds, norms into facts, and vice versa. But because Melissaris is dealing with such an irreducibly foundational level of legality – an extremely ‘thin’ conception of law that can only be fleshed out in particular contexts by particular communities – the discussion becomes opaque and very vague. Mere glimpses of this foundational sense of law appear throughout the text. We are told that ‘some degree of objective rightness’ is built into it (p.56), Kantian norms of autonomy and respect for every moral agent are relevant (p.56), and the development of the legal sense in any context demands participation, democracy and autonomous agreement (pp.58, 71). Law is the product and expression of communal networks of social interaction.

The striking result of the analysis is that state law may or may not be truly law, or may be law only in part, because of its ultimate reliance on force (p.59) and its characteristic blindness to basic criteria, suggested above, that define the necessary bedrock of legality (pp.55, 124). Hence Melissaris suggests not only that legal theory must recognise a different, far more diverse and fluid [*776] legal reality from the one it has traditionally portrayed, but that law’s ties to morality (while it retains its distinctiveness from the latter) require a more critical view of the state’s manipulation of legal forms. This kind of critical thrust also comes across in his condemnation of orthodox legal theory as an expert culture privileging official, professional priorities and juristic views, and consistently devaluing lay legal experience; and in his argument that law, in the broad sense outlined in the book, should be seen as ubiquitous – a part of all aspects of social life – and, as such, essentially a general resource for organising meaningful co-existence rather than a coercive instrument of control.

The book is sophisticated and very thoughtful, but undoubtedly not an easy read. Some sociolegal scholars attracted by the promise of this text to integrate legal pluralist perspectives into legal theory will be disappointed by the lack of empirical detail of contemporary regulatory pluralism. Discussion here is pitched at a very high level of abstraction in trying to address the question of what the concept of law can be taken to be if the challenges of legal pluralism are accepted. The book’s orientation is explained by the fact that the author has entirely avoided the usual sociological approach to legal pluralism, which is to specify a provisional model (or ideal type) of the legal as a basis for organising, describing and comparing the range of proliferating normative regimes or normative aspirations that are increasingly referred to under some such labels as ‘global legal pluralism’ or ‘cultural diversity and law’ (see e.g. Snyder 2002; Berman 2007; Grillo, et al 2009).

Early in his book, Melissaris makes some seemingly critical comments about the scope of sociological inquiry in relation to conceptual analysis: a sociologist aiming at description can, he says, only ‘observe and record regularities, which she will have already picked out by employing a pre-selected concept. . . . In turn, observation will help clarify and refine the concept…. Thus a descriptive sociologist will be able to raise rather modest, context-bound and indexical claims’ (p.9). The legal philosophical project, by contrast, would be to try ‘to account for the concept of law in an a-historical, a priori manner,’ which cannot be done by description and then abstraction (p.9, emphasis in text). Melissaris is clearly attempting to hold on, in some way, to this legal philosophical project of clarifying the concept of law in general. He considers it a necessary project to underpin any sociological enterprise of mapping developing legal pluralism in the form of regulatory regimes beyond state law; hence the search for a ‘philosophical grounding of a social-theoretical approach.’ A century ago Hans Kelsen declared a parallel dependence of sociology of law on a philosophical-juristic conceptualisation of law (see e.g. Van Klink 2009). But now, as then, the claim of dependence may be false (in fact a reversal of the real situation) – and a misrepresentation of the tasks of both sociology of law and legal philosophy.

Reflection on this book’s conclusions shows why. Melissaris’ ‘universal sense of law’ is, on his own admission, very ‘thin’ indeed, and rather obscure and hard to pin down, so much so that this may indicate two basic flaws with his project. The first is that, as a practical [*777] matter, it may simply be premature or unnecessary to try, however tentatively, to suggest ‘the concept of law in an a-historical, a priori manner;’ it may be more valuable to map and explore the diversity of regulatory regimes using merely provisional concepts of the legal that are sufficient to organise specific projects of empirical inquiry. The ‘global legal pluralism’ associated with the increasingly intense interaction, competition and conflict between international, transnational, national, and intranational regulatory regimes is at present both immensely rich and hugely diverse. It is unlikely to shed these characteristics in the near future. So a conceptualisation of this vast regulatory universe surely needs, in itself, to be much richer and fuller, with far more explanatory power, than Melissaris’ universal sense of law; but it should also be purely provisional, and empirically-oriented to rapidly changing and developing regulatory patterns and regimes.

In other words, empirically-focused, contextualised theory, I suggest, is more important than aspirations to portray universals. Sociology of law, as the basic inquiry here, surely needs philosophical assistance along the way. But a fundamental philosophical conceptual underpinning is not needed to make possible the projects of legal sociology in exploring legal pluralism; such projects are already in progress. Nevertheless, Melissaris’ effort to think out an irreducible basic idea of law not dependent on any of the orthodox institutional supports of state law is very stimulating.

A further possible flaw in the project is that its two contrasting aspects may be ultimately incompatible: One aspect involves recognising that legal theory’s task is to participate in and mediate a very open conversation about the nature of legality between communities (or between networks of social interaction – Melissaris rejects any strong sense of community). Legal theory must, therefore, discard its ‘expert culture’ stance and recognise that it is involved in an enterprise of mutual learning from the innumerable subjective experiences of legality in different contexts. The other aspect of the project, however, is to hold to some overall, ultimate (if minimal) universal view of the legal which legal theory can then use as an ‘appellate tribunal’ to test discursively the ‘self-understandings, beliefs and normative commitments’ of conflicting legal orders (p.77). Does legal theory then merely modestly engage in conversations across different normative experiences of legality; or does it still seek to engineer a dominant master narrative of legality to unify the field of the legal?

This uncertainty cannot be removed without confronting a further issue not adequately addressed in this book: what is a legal theory of legal pluralism for? Despite Melissaris’ sensitive discussions of sociolegal theory, his outlook remains that of a legal philosopher. His implicit reason for grappling with legal pluralism as a conceptual problem for legal theory seems to be to address the challenge that legal pluralism poses for legal philosophy’s ability to continue to ponder its traditional central question: ‘What is law?’ The project, then, is surely to save legal theory’s established philosophical universe of conceptual inquiry in the face of challenges that threaten to destabilise it completely. But [*778] sociolegal theorists, for whom conceptual inquiries about law are only part of a larger project of developing social explanation, may be much less interested in Melissaris’ central concerns here.

At the same time, it may not be as clear as he thinks that orthodox Hartian or Dworkinian theory cannot be adapted to apply to non-state forms of law, even if the authors of these theories themselves assume a state-law focus in them. For example, the ‘officials’ who play such a major role in Hart’s concept of law may not need to be state officials; and the ‘community’ that creates its own law in Dworkin’s interpretive theory does not need to be understood (as Dworkin understands it) as the political community of a nation state. So the attack on legal philosophy may not need to be quite as radical as Melissaris thinks if the aim is to harness it to projects of provisional social explanation rather than to continue to search for a definitive conceptualisation of law.

My conclusion, then, is that this very thought-provoking, original and ambitious book skews its inquiry too much towards an assumed need to save certain traditional legal philosophical projects, seen as fundamentally threatened by legal pluralism. In so doing it perhaps neglects more urgent and less parochial concerns that might guide theories of legal pluralism – for example, how conflicts of authority between different legal orders may be understood and usefully addressed; how different forms of transnational regulation may be provisionally categorised and compared to facilitate more orderly relations between them; and how empirical sociolegal inquiries about regulatory regimes might locate those regimes in relation to larger networks of community and the diverse regulatory environments in which they exist.

Nonetheless, Melissaris’ book deserves to be judged in relation to its own project, not others that could be chosen. In pursuing its legal philosophical ambition it provides a wealth of insightful, scholarly and wide-ranging discussion. It deserves to be read by anyone interested in the now vitally important task of exploring the nature of legal pluralism as a contemporary phenomenon, and as a key organizing idea for current theoretical inquiries about law.

REFERENCES:
Berman, Paul S. 2007. ‘Global Legal Pluralism’. SOUTHERN CALIFORNIA LAW REVIEW 80: 1155-1237.

Grillo, Ralph, Roger Ballard, Alessandro Ferrari, André Hoekema, Marcel Maussen and Prakash Shah (eds). 2009. LEGAL PRACTICE AND CULTURAL DIVERSITY. Burlington, VT and Farnham, UK: Ashgate.

Van Klink, Bart. 2008. ‘Facts and Norms: The Unfinished Debate Between Eugen Ehrlich and Hans Kelsen’. In LIVING LAW: RECONSIDERING EUGEN EHRLICH, M. Hertogh (ed). Oxford: Hart, pp. 127-55. [*779]

Snyder, Francis G. 2002. ‘Governing Globalisation’. In TRANSNATIONAL LEGAL PROCESSES: GLOBALISATION AND POWER DISPARITIES, M. Likosky (ed). London: Butterworths, pp. 65-97.

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© Copyright 2009 by the author, Roger Cotterrell.

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THE LEAST WORST PLACE: GUANTANAMO’S FIRST 100 DAYS

by Karen Greenberg. New York: Oxford University Press, 2009. 288pp. Cloth. $27.95. ISBN: 9780195371888.

Reviewed by Emily Crawford, Faculty of Law, University of New South Wales. Email: emilyjtcrawford [at] gmail.com.

pp.771-773

Eight years have have passed since the ‘9/11’ terrorist attacks on the United States, and the commencement of the ‘War on Terror,’ involving armed conflict in both Afghanistan and Iraq. These past eight years have been something of a boon to authors, from all disciplines – law, politics, philosophy, religion and spirituality, to name a few. The initial attacks and the international political and legal responses to those attacks – not the mention the mistakes made in those responses – have provided a rich source of material for the scores of books that have been published about these events.

A new entrant into this field is Karen Greenberg’s THE LEAST WORST PLACE: GUANTÁNAMO’S FIRST 100 DAYS. The title derives from the name bestowed on the Guantánamo Bay detention facility by then Secretary of Defence Donald Rumsfeld. It is an apt description for both the facility itself, as well as the general attitude towards detainee treatment that would come to typify US and coalition-run detention facilities, that of trying to get away with the minimum possible standards of treatment.

In her introduction, Greenberg makes it clear that the period of time charted by her book predates the 2002 ‘Torture Memo,’ the abuses that took place at Abu Ghraib, and the stories of torture and mistreatment that came out of Guantánamo itself. Instead, Greenberg focuses on the first months at the facility in Cuba looking at how the site was chosen and how the people on the ground had to implement the policies devised by Washington. From December 21 2001 to March 31 2002, the US military facility at Guantánamo Bay was forced to transform itself from a state of ‘permanent hibernation’ in early 2001. A relic of the Cold War era, the Guantánamo Bay site was considered a low-priority for the American military. Part of the post-Cold War downsizing of the military, Commanders at ‘Gitmo,’ as it was nicknamed, were given instructions to ‘keep the lights on’ – run the facility at a minimum, and not ask for nor expect anything but basic funds with which to finance operations.

The events of September 11, 2001 were to radically transform the base. Greenberg charts the three month period where the military at Guantánamo were forced to hastily prepare a high-security detention facility for a rapidly increasing number of Taliban and al-Qaeda prisoners transported from Afghanistan. The speed with which the facility had to be brought to operational capacity was demonstrated in the appalling institutional short-comings the facility experienced during its first months; those running the camp were not told that their Muslim charges would require [*772] Korans, specific foods prepared in specific ways, or that the prisoners would need culturally-dictated hygiene facilities and practices.

In limiting herself to this first 100 days, Greenberg attempts to see if the ‘groundwork’ for later events in Iraq and Guantánamo itself – such as the abuse at Abu Ghraib prison – were sown in these first months in Cuba. What emerges from the book is a devastating picture of lost opportunity – soldiers on the ground who wanted to treat the battlefield detainees humanely but were stymied by confusing and contradictory instructions from above; officers who believed that ‘principled humanitarianism’ was fundamental to operations in Guantánamo Bay, who believed that observing the Geneva Conventions was the only logical and sensible way to operate, but who were ignored and often deliberately countermanded by those higher up the military and political hierarchy.

It is easy to see the seeds of Abu Ghraib in Greenberg’s account – not through the negligence of the military commanders, but through the subversion and outright exclusion of military input into Gitmo – that the bureaucracy in Washington were pulling the strings, often against the instructions of the persons having to implement the plans. When instructions were provided, they were frequently vague and unhelpful – such as the infamous edict that the US would be guided by the Geneva Conventions and their comprehensive protections, but not bound by them. Greenberg shows us the confusion that this ‘policy recommendation’ produces amongst a group of people used to operating within defined parameters and with definite rules. What is particularly sad to read, especially in light of what we now know happened in Guantánamo Bay in later years, is that many of the officials ordered to implement these minimal rules were often entirely reluctant to do so. Greenberg cites examples of how attempts to communicate with the Office of Legal Counsel was met with stonewalling and obfuscation, as Gitmo officials and lawyers tried to refute John Yoo’s statement that the Geneva Conventions were not applicable, and that neither Taliban nor al-Qaeda detainees were POWs; worse still, early requests to contact the International Committee of the Red Cross – standard procedure in situations where battlefield detainees exist – were denied by senior officials.

Greenberg also shows us that for every Rumsfeld, Bush and Lynddie England (the US reservist who was pictured in photos participating in prisoner abuse in Abu Ghraib), there were and are decent and honourable officials trying to protect their country while protecting its dignity and international standing – often having to defy their own government to do so. We are shown the courage and integrity of Michael Lehnert, the facility’s first commander, who struggled to ensure humane conditions for the detainees, often fighting both his own superiors and those serving under him, and Manual Supervielle, Corrections Officer at Gitmo in 2001, who took the initiative to contact the ICRC directly, requesting they visit the detention facilities, and incurring the wrath of the Bush Administration in doing so.

In terms of execution, Greenberg writes in an elegant and thoughtful manner. Though we are aware that she [*773] disapproves the course taken by the US during the ‘War on Terror,’ the book does not proselytise; it is critical, without carping. Greenberg shies away from discussing the relative guilt or innocence of the detainees, choosing instead to focus on those tasked with the unenviable duty of running the most highly publicised and highly scrutinised prison in the world at the time, with little to no guidance on how to accomplish such an endeavour. She presents her narrative in a straightforward, well-structured and logical way, and depicts the protagonists in a respectful and considerate manner. Greenberg gives us a picture of Guantánamo from the ground-up, showing us the functionaries and officials who instituted the policies and procedures that have come to notoriety, and she does so in an approachable and engaging style. The book is accessible for those without a legal background, and fascinating for those with an understanding of the legal machinations that ensued in those first few months following 9/11.

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© Copyright 2009 by the author, Emily Crawford.

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