MULTICULTURALISM AND LAW: A CRITICAL DEBATE

by Omid A. Payrow Shabani (ed). Cardiff: University of Wales Press, 2007. 338pp. Hardback. £60.00/$85.00. ISBN. 9780708320068. Paperback. £19.99/$35.00. ISBN: 9780708320051.

Reviewed by Warwick Tie, School of Social and Cultural Studies, Massey University. Email: w.j.tie [at] massey.ac.nz.

pp.167-171

Taking the reader beyond its overt goal, to review the capacity of law to traverse the gap between political equality and socio-cultural difference, the collection of scholarly essays that comprises MULTICULTURALISM AND LAW raises timely questions about the knowledge-production practices appropriate to this subject material. The prompt for those questions comes from the architecture of the text.

MULTICULTURALISM AND LAW structures its inquiry into law’s ability to mediate between equality and difference by dividing possible approaches to that issue into two analytic camps, each of which has two versions: liberal political theory and critical theory. ‘Liberalism1’ promotes the ideas of ‘individual rights and [of] a neutral state that is not committed to any sort of cultural, religious or collective project’ save those denoted by the goals of ‘personal freedom and physical security’ of individual citizens (p.2). Liberalism2 also highlights individual rights in the constitution of the liberal state but argues for the importance of ‘national-cultural context where an individual’s sense of belonging becomes important in exercising his or her rights.’ Critical theory, in contrast to the substantive orientation of liberalism, seeks the discovery of some or other procedural ‘principle of universalization’ through which the diverging political claims of distinct socio-cultural communities can be simultaneously engaged (pp.2-3). Adding sociological complexity to this vision, critical theory2 suggests that the simple quest for universal grounds should be supplemented with an historicized account of any such procedural solutions that come into being.

Providing content for the consideration of this philosophical debate are a set of themes germane to the issue of law’s prospects within societies that have come to be characterised by socio-cultural diversity: ‘the nature of political deliberation in pluralistic societies;’ ‘the nature of legal interpretation in pluralistic societies;’ the role of law in ‘reconciling equality and difference;’ and the increasingly globalized context of politico-legal decision-making.

Leading the reader’s consideration of each of these themes are principal essays by eminent scholars, each of which is accompanied by two or three commentaries written from perspectives whose divergences from the principle have the prospect of advancing insight into the points being initially made. No attempts are made to reconcile interpretive differences between the approaches at the level of the themes themselves. [*168]

Opening the theme on political deliberation from the perspective of critical theory2, James Tully argues that consideration of the relation between socio-cultural difference and political equality has traveled from the simple quest to recognise such difference to that of the establishment of norms through which mutual recognition might be forged between socio-cultural communities. A trend has become discernable within the latter, towards a normative architecture that assumes a measure of reasonable on-going disagreement over the nature of any such norms. Essays by Thomas McCarthy and Jocelyn Maclure work from the same procedural orientation as Tully, enlarging more than contesting key elements of the principal essay.

Reviewing the matter of judicial interpretation in a manner suitably catholic for a lead essay, Jeremy Webber’s ‘A judicial ethic for a pluralistic age’ seeks to develop a just methodology for interpreting cases in which the salience of socio-cultural difference outruns the address of the specific statutes being used in each instance. The model attempts to replace the default judicial practice common to such cases, of the judge inserting their subjective opinion, with that of an ethic through which the best substantive arguments put forward in the case are integrated in a manner which ensures that each participant sees their concrete situation reflected in the justice of the outcome. In agreement with the overall tenor of Webber’s proposal, Kenneth Baynes and Simone Chambers seek to rearticulate the ethic in terms of a more context-sensitive proceduralism, challenging an underpinning assumption in Webber’s ethic that the final signifier of law is substantive justice.

An essay by Jeremy Waldron opens for discussion the issue of law’s prospects for reconciling equality and difference. Writing within the tradition of liberalism1, Waldron identifies nine institutional instruments by which the law presently exhibits a capacity to accommodate socio-cultural particularity. This capacity has limits, however, limits that are quickly reached when legal decision-making interprets particularity in the concrete terms of plaintiffs’ socio-cultural practices rather than at the symbolic register of their ‘voice.’ It is at this level of voice and not socio-cultural practice, Waldron argues, that attempts to reconcile equality and difference stand a chance of succeeding. The two essays which reflect on Waldron’s argument, by Michel Rosenfeld and Douglas Moggach, begin to depart in style from other contributions, highlighting what thus far has remained an unspoken characteristic of the text as a whole, that is, its reification of the meanings of law and of multiculturalism. Rosenfeld’s contribution in particular interrupts that reification of law with a Hegelian interpretation that historicizes both the emergence of the philosophical dialectic of equality and difference and of legal responses to it.

The final theme, that of the global environment within which law and multiculturalism come into proximity with one another, in effect operates as two lead essays (by Jürgen Habermas and Will Kymlica) coupled with a commentary article on each (by Neil Walker and Courtney Jung, respectively). Habermas reviews the [*169] divergence in juridical styles that has emerged between the pursuit of international law as a means for resolving intra-state tensions and the pursuit of a world republic capable of acting to that same end (materializing in recent times in the doctrine of Pax Americana). Finding in favour of international law, Habermas proposes a principle of cosmopolitan multi-levelness for that law, through which supra-state, national, and sub-national agencies might successfully negotiate. Walker cautions that if this is to be any more effective than a rudderless ship, the proposition must be grounded in ongoing consideration of cosmopolitanism’s future as an analytic strategy in a socio-culturally diverse world.

Will Kymlica uses the context of Europe’s relation to cultural minorities in order to review the capacity that ‘international standards’ might have for giving due recognition to the concrete realities of locally embedded cultural identities. While supportive of the formulation of such standards, Kymlica indicates the persistence of problems where those standards give effect to either a right to territorial autonomy or the right to enjoy one’s culture. These problems take two related forms: threats of succession by minority cultural groups and an offensive tokenism on the part of majority cultures. In light of these problems, European states have moved towards a standard which focuses upon participation by minority communities in politico-legal processes, an approach that Kymlica supports for the pragmatic reason that it has the potential to hold the outbreak of ethnic violence at bay. Courtney Jung challenges an unacknowledged assumption which informs Kymlica’s liberalism: that culture constitutes identity. Her reason for doing so is that she contests the constitutional implication which follows, that consideration of culture must be the guiding analytic strategy informing legal innovation. Culture is, instead, primarily a political category, mobilised at the level of the polity not for the simple purposes of enhancing members’ senses of belonging but for gaining political traction for those communities. To this end, culture is particularistic and strategic rather than universal in character. Against Kymlica’s own declared intentions, Jung suggests, his currently pragmatic mood is moving him towards this same understanding.

Volume editor Omid A. Payrow Shabani suggests, in his introductory essay, that this diverging collection of essays demonstrates law’s capacity to productively address the tension between political equality and socio-cultural particularity. The argument collectively exhibited by the text’s contributors indicates that particularity – whether understood as difference, identity, self-determination, or plurality – is intrinsic to the notion of constitutionally unified political community. ‘At the core of this convergence’ between the essays, Shabani states towards this point, ‘one can find the idea of democratic self-determination as the necessary condition for participants in polity to see themselves in relation to the law simultaneously as its authors and its subjects. The principle of democratic self-determination as institutionalized in law, then, gives legitimacy to the system and bonds the citizen[s] together’ (p.15).

This finding by Shabani with respect to the contributions as a whole incites the [*170] question with which I opened regarding the knowledge production practices involved in the construction of the text, specifically the use of liberal philosophical debate to structure deliberation. Organised in this manner, the editor’s synthetic moment suggests that there exists no forms of difference pertaining to the social that cannot be rendered intelligible within (broadly) liberal political terms. The finding thus becomes at risk of courting a criticism that its knowledge production practices construct the notion of liberal order in a wholly ideological manner. As Fredric Jameson has described similar moves (1997, p.273), a liberal polity would thereby come to have ‘no outside in terms of which it could be found lacking.’

One contribution to the collection has already been noted as having the potential to productively interrupt the ideological closure thus inaugurated, that being the essay by Rosenfeld which historicizes the otherwise reified sense of law that characterises the text. One further dimension of the text also has the potential to interrupt this closure, this time adding in the reified view of multiculturalism that characterises the contributions. Dominating the cover of the book is a photograph with two figures: in the foreground, in sharp focus, we see the head of a woman dressed in Islamic burqa, her eyes moving obliquely to our own; in the background stands a UK constable, his image blurred, his eyes appearing to bear down upon the woman. A protest sign to the left of the image suggests that the surveillance is occurring under contested conditions.

The image introduces to the text an element that otherwise receives scant mention; the reliance by law in this historical conjunction – in which, as Habermas indicates, the distance between multiculturalism and ‘war on terror’ all but dissolves – upon the operation of a form of policing that can keep socio-political diversity within the limits required for the smooth operation of a unitary Rule of Law. In my own country, as in other jurisdictions, the policing involved departs from that depicted on the book’s cover – that of uniformed ‘law and order’ policing – involving instead the covert practices of political policing. These practices, as criminologist Jean-Paul Brodeur indicates (1983), regularly exceed what the law permits, operating through a principle of political performativity that, to borrow words from Slavoj Žižek (2002, p.192), ‘defines its own conditions’ by retroactively producing the very ‘grounds which justify it.’ Where such policing practices fail to inaugurate those new grounds and illegalities within those practices result in criminal trial, prosecutions tend to succeed. The illegality of those practices does not, however, thwart their ongoing occurrence. This capacity to exist both within and outside the law appears imperative to a power that is burdened to re-create the conditions within which law can function.

The cover photo thus brings in a genre of difference which resists integration into the architecture of dialectical debate by which the text organises its knowledge production, the unruly performativity of political policing. Not only does that performativity disrupt the very notion of a transparent legal order, it has the ability to dislocate the cogency of the [*171] political philosophy which legitimates liberal order intellectually. The apparently increasing deployment of this power within legally constitutional societies emerges as a shadowy underside to both multiculturalism and law, an underside to which a contemporary text on politics could valuably attend in a more thorough-going manner than by way of a witness given to the fact by its cover-photo. Such a development to the volume would, however, undercut the analytic sufficiency of the knowledge production practices deployed at the level of the text as a whole. Productively, an interruption of this magnitude might have the ability to incite maturation in those practices such that they outgrow the political innocence characterising the text’s present formulation of the dialectic.

REFERENCES:
Brodeur, Jean-Paul. 1983. ‘High Policing and Low Policing: Remarks about the Policing of Political Activities.’ SOCIAL PROBLEMS 30 (5): 507-520

Jameson, Fredric. 1997. ‘Culture and Finance Capital.’ CRITICAL INQUIRY 24 (1): 246-65.

Žižek, Slavoj. 2002. FOR THEY KNOW NOT WHAT THEY DO: ENJOYMENT AS A POLITICAL FACTOR. London and New York: Verso.

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© Copyright 2009 by the author, Warwick Tie.

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SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS

by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson (eds). Lanham, Md: The Becket Fund for Religious Liberty and Rowman & Littlefield, 2008. 344pp. Cloth. $85.00. ISBN: 9780742563254. Paper. $34.95. ISBN: 9780742563261.

Reviewed by Emily R. Gill, Department of Political Science, Bradley University. Email: Gill [at] bradley.edu.

pp.162-166

This timely edited volume begins with a thought experiment. It assumes that civil marriage has become inclusive of same-sex couples and explores the impact of this change on religious freedom. Its seven chapters explore the types of emerging conflicts involving religious freedom and also speculate upon how such conflicts might be resolved. As Douglas Laycock notes in his afterword chapter, “This is a depressing book” from a civil libertarian perspective, because all of the other contributors, whatever their religious or political perspectives, “agree that same-sex marriage is a threat to religious liberty” (p.189). On the other hand, both religious belief and sexual orientation may be regarded as core constituents of personal identity. Therefore, it should not be surprising that the practice of one’s beliefs or sexual orientation would produce tension when living out one’s sexual identity conflicts with others’ living out their religious identities, and vice versa. The contributors’ detailed analyses of these conflicts are both instructive and provocative, and they should aid readers in thinking through these issues to draw their own conclusions.

Although Marc Stern believes that clergy will not be forced to perform marriages of which they disapprove, he foresees a host of other religious disputes. He fears that the widespread acceptance of same-sex marriage, plus civil rights laws that prohibit discrimination on the basis of sexual orientation, will compel religious institutions and individuals to treat same-sex couples as married even if this violates their beliefs (p.25), based on both actual and hypothetical examples. His exhaustive review encompasses religious settings, the workplace, public schools, commercial and professional licensing, public funding for charities, and any part of the public square that may be affected by efforts to banish anti-gay religious messages. Exemptions for religious institutions or individuals from civil rights laws are likely to founder on the conviction that “the search for exemptions is a back-door effort to undermine equality rights generally” (p.28). Stern concludes that only the most insular groups or those strictest in their assertion of religious or ethical norms will be successful in avoiding state coercion. The recognition of same-sex marriage “would represent the triumph of an egalitarian-based ethic over a faith-based one,” and he predicts that advocates of sexual tolerance will not tolerate the “different ethical vision” represented by religion (p.57). [*163]

Although Jonathan Turley does not oppose same-sex marriage, he opposes any effort by the government to use tax exemptions or access to charity funds to discriminate against groups because of their religious views opposed to same-sex marriage. He believes that “the government has abandoned a neutral position in its dealings with political or religious groups in favor of enforcing nondiscrimination policies” (p.60). A strict neutrality principle would focus on the status of organizations as expressive of fundamental commitments concerning faith and/or morals, rather than on the substance of their practices, in awarding tax exemptions or access to charitable funds. Otherwise, denial of these benefits amounts to “a content-based punishment for religious views” (p.61). Free speech, the free exercise of religion, and the right to expressive association central to a pluralistic society must be protected if organizations such as the Boy Scouts are not eventually to be forced to conform to majoritarian views (pp.61, 69, 74-75).

Robin Fretwell Wilson seeks to draw lessons for religious freedom from the healthcare context. Once decisions such as GRISWOLD v. CONNECTICUT and ROE v. WADE transformed “noninterference rights into affirmative entitlements to another’s assistance” (p.79), healthcare conscience clauses were developed to protect both institutions and healthcare providers from being forced to participate in the provision of controversial services such as abortions or emergency contraceptives. Parallels with institutions and individuals who balk at supporting or facilitating same-sex marriage unions are clear. For Wilson, “The operative question is whether . . . a refusal would erect a significant barrier to a couple’s ability to obtain and enjoy all the privileges and benefits of marriage” (pp.98-99). Just as pharmacies in Illinois that do not carry emergency contraceptives must post signs directing patients to other pharmacies that carry them, county clerks’ offices might keep lists of those who are or are not willing to provide marriage licenses or solemnize marriages. This solution is imperfect, Wilson admits: remote locations may have only one clerk, or all clerks in an office may have objections. Refusals to solemnize a marriage here would amount to denial of an entitlement by the state itself, and the state might require a hardship exception to conscientious objection (pp.99-100). Overall, however, Wilson offers possible solutions to some of the conflicts that might arise.

Douglas Kmiec believes that religious organizations would not be constitutionally protected from performing same-sex marriages under the free exercise clause if antidiscrimination laws forbade all nonprofits, religious or not, from discriminating on the basis of sexual orientation. Statutorily, however, he argues that the Religious Freedom Restoration Act “should require the federal government to justify any withdrawal of a federal tax exemption that substantially burdens religious belief or practice” (p.105). Nonprofit institutions serve a public purpose and provide a public benefit. BOB JONES UNIVERSITY v. UNITED STATES is not a precedent for forcing religious organizations to recognize same-sex marriages on pain of losing their tax exemptions, Kmiec argues, because this case recognized “a common law public [*164] policy against racial discrimination in education” (p.110) that does not apply to sexual orientation. More important, “tax exemptions are not subsidies,” but only a recognition that charitable organizations do not collect taxable income. Government should allow tax exemptions to charitable organizations to which it might legitimately deny direct public funding. Although “government may not condition benefits on the relinquishment of constitutional rights” to speech, association, and religion (p.118), “it should not be surprising that the government gets to decide how to spend its own resources” (p.111). As I have argued, faith-based or morals-based organizations possess no constitutional right to direct public funding. If they are to receive it, conditions may be attached (Gill 2004).

Chai Feldblum’s essay is in some ways the most interesting in this collection. On the one hand, she argues that, when the government enacts antidiscrimination laws based on sexual orientation, it is not saying that same-sex relationships are either bad or good. Therefore its stance is one of moral neutrality, despite the implication that these relationships are not so problematic as to justify private discrimination in the public domain. Correspondingly, failure to prohibit discrimination or to allow same-sex marriage is not neutral, because this signals that same-sex relationships are “not morally neutral, but rather may legitimately be viewed by some as morally problematic” (p.132). On the other hand, Feldblum sympathizes with religious individuals who would argue that one cannot separate faith and practice by holding discriminatory views but refraining from acting on them, just as gay persons cannot be expected to separate sexual orientation and sexual activity. To her, it appears “the height of disingenuousness, absurdity, and indeed, disrespect to tell someone it is permissible to ‘be’ gay, but not permissible to engage in gay sex. What do they think being gay means?” (p.143). For this reason, gay people should “recognize the injustice of forcing a person to disaggregate belief or identity from practice” (p.142). Moreover, she would take individuals at their word when they allege that a burden on their belief liberty, which encompasses both religious and other moral beliefs, exists. Nevertheless, she concludes that when identity liberty based on sexual orientation conflicts with belief liberty, in a great majority of cases equality concerning sexual orientation reflects the public good and should therefore win out in these conflicts. Although neutrality is more elusive than she at first suggests, her equation of sexual orientation and religious or ethical belief is provocative.

Charles Reid provides a historical context as background for arguing that separating religious and civil marriage is ultimately unworkable. As a confluence of religious belief, marital union, and state authority, the legal categories of civil marriage “were shaped fundamentally by Christian theological insight” (p.159) and transcend the idea that the continuing consent of parties to a marriage is the ultimate value. Judicial decisions of the nineteenth and early-to-mid-twentieth centuries used religious terminology and “favored the fundamental values of procreation, permanence, and fidelity precisely because of ecclesiastical antecedents” (p.168; see also pp.162, 176). Far from [*165] being created by the state, marriage’s existence predates the state. In Reid’s view, contemporary social crises stem in part from the “effort to reduce marriage from a sacred enterprise, blessed and sanctioned and sustained by communal ritual, into something much more mundane, even banal” (p.179).

Finally, although Douglas Laycock agrees more substantially with Robin Wilson’s measured protections for both religious and sexual freedom than with either Feldblum’s or Reid’s proposed solutions, like Feldblum he perceives similarities in the dilemmas faced by religious and sexual minorities. Both “claim that some aspects of human identity are so fundamental that they should be left to each individual, free of all nonessential regulation, even when manifested in conduct” (p.189). Unfortunately, while religious conservatives point out that sexual liberty is nowhere in the Constitution, gay rights advocates recognize that the free exercise of religion is protected but “construe that protection down to the vanishing point” (p.190). Laycock, unlike Reid, argues that conflict would be reduced if religious and civil marriage were separated in the law. When conservatives argue that marriage is sacred and that same-sex marriage threatens its sanctity, they are using religious terms to defend a civil institution that no longer enforces the sexual morality central to religious understandings of marriage. Ideally, Laycock argues, “marriage” would apply only to religious unions, performed by clergy, while “civil unions,” performed by civil servants, would describe the legal unions contracted by both same-sex and opposite-sex couples. Couples could enter either or both of these statuses. Overall, he concludes, it would be a step forward to disabuse people of the idea that “the ‘sanctity’ of marriage depends on law, not faith” (p.207).

Even if they do not all say so explicitly, the contributors to this book at least imply that both gay rights activists and religious [*166] believers desire not only space for their identities or beliefs, but also the freedom to engage in practices that flow from these identities or beliefs. Contemplating different meanings of neutrality may prove useful in thinking about ways to approach anticipated conflicts. Stephen Monsma distinguishes between two kinds of neutrality. Formal neutrality means that the government should not use religion as a basis for conferring particular benefits or for withholding generally available benefits. Although by prohibiting special liabilities, formal neutrality allows for greater cooperation of government with religion than strict separation does, it can also weaken free exercise protections by prohibiting special benefits or exemptions (Monsma 2002, 265-266). Substantive or positive neutrality, by contrast, requires attention not only to the intentions behind a law or public policy, but also to its consequences. If a generally applicable law “makes it harder for a person of devout faith to follow the tenets of his or her faith, that person’s free exercise of religion has been hindered,” even if no such intent exists (p.266).

Although positive neutrality is supposed to promote the free exercise of religion, the same arguments may be deployed to justify the “free exercise” of one’s sexual orientation, which is a core constituent of personal identity analogous, in my view, to religious belief. Both antidiscrimination laws based on sexual orientation and the recognition of same-sex marriage should then be accommodated under a regime of positive neutrality absent a compelling state interest in refusing to do so. These considerations appear to ratchet up the conflict between religious and sexual freedom. On the other hand, I agree with Laycock that a legal separation between religious and civil marriage is perhaps best calculated to give both sexual orientation and religion their due and to maximize a positive neutrality that might protect both. Whatever a reader’s personal opinion, however, the essays in this book promote thoughtfulness in assessing these competing claims.

REFERENCES:
Gill, Emily R. 2004. “Religions Organizations, Charitable Choice, and the Limits of Freedom of Conscience.” PERSPECTIVES ON POLITICS 2 (4): 741-755.

Monsma, Stephen V. 2002. “Concluding Observations.” In CHURCH-STATE RELATIONS IN CRISIS: DEBATING NEUTRALITY. Stephen V. Monsma (ed). Lanham, MD: Rowman & Littlefield, 261-271.

CASE REFERENCES:
BOB JONES UNIVERSITY v. UNITED STATES, 461 U.S. 574 (1983).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

ROE v. WADE, 410 U.S. 113 (1973).

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© Copyright 2009 by the author, Emily R. Gill.

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PHILADELPHIA FREEDOM: MEMOIR OF A CIVIL RIGHTS LAWYER

by David Kairys. Ann Arbor, MI: University of Michigan Press, 2008. 442pp. Cloth. $70.00. ISBN: 9780472116386. Paper. $24.95. ISBN: 9780472033102.

Reviewed by Patrick Schmidt and Cali Cope-Kasten, Department of Political Science, Macalester College. Email: schmidtp [at] macalester.edu and ccopekas [at] macalester.edu.

pp.158-161

It is rare in law to find an author who transcends genres, and much rarer in the same book. David Kairys – known by many readers of this review for his work for academic audiences, if only for the major THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE – certainly possesses enough war stories from over two decades of active public interest legal work to justify a memoir.

What kind of book should it be? Revealingly, each of the blurbs on the cover hint at different genres. Given his passion and his wide-ranging experience in the field, Kairys has the platform for what Steve Lopez (Los Angeles Times columnist) terms “a prayer for social justice and a call to conscience” – perhaps even a legal manifesto. With that experience, if taken as participant observation research, Kairys also has the material for a powerful academic-styled account on the possibilities and limits of progressive legal advocacy. Perhaps that is what U.S. District Judge John E. Jones III aimed at with his vapid remark that Kairys’ “compelling book properly explains the vital role that civil rights attorneys play in our system of justice.” It helps that Kairys’ fight for justice occurs in one of the more corrupt – hence interesting – cities in America, allowing his memoir to serve as a legitimate contribution to the historical record. William Marimow (editor of the Philadelphia Inquirer) accordingly praises the “spellbinding tale” of “how [Kairys] helped make history in the city of brotherly love.” Martha Minow, too, recommends the book to “anyone interested in American social history,” but in noting how the memoir “reads like a suspense novel,” she makes a nod to Kairys’ eye for yet another genre, that of legal thriller, with the hallmark elements of a powerful and sometimes evil politico-legal system, and a crusading lawyer whose work enmeshes him in the lives of his clients. In the end, perhaps Cornel West’s extravagant praise for “this marvelous book . . . Kairys’ gift to us” best captures the sense that many will find value in reading PHILADELPHIA FREEDOM: MEMOIR OF A CIVIL RIGHTS LAWYER, even if one does not quite know for what purpose to read it.

PHILADELPHIA FREEDOM is a memoir, not a mechanical autobiography, so it comes as only a mild shock when Kairys hits the ground running – or more precisely, driving – in the midst of what he hails as the most important case of the book, one that is not actually tried until Part II. A cloak-and-dagger meeting under a Philadelphia bridge, with every eye on the lookout for FBI agents, Kairys’ choice for a brief introductory chapter declares his intention to speed readers along at the [*159] pace of crime fiction. Rich descriptions of Philadelphia neighborhoods, the recurring backdrop for his cases, make their debut in the first two sentences when Kairys begins with shades of Bulwer-Lytton that, “It was an overcast evening in late February 1972, and mist rose above the Delaware River as I crossed the Ben Franklin Bridge, the ornate suspension bridge between downtown Philadelphia and Camden, New Jersey. As I slowed for the tollbooth on the Camden side, I could see the waterfront and the idle Campbell’s Soup factories” (p.1). Witty and exciting, the introduction makes good use of its four pages to draw these readers into the three parts of the book that lay beyond.

Kairys does return to his legal beginnings – Day 1 in his first legal job – in Part I, recounting his early days as a trial lawyer in the local public defender’s office. Somewhere between his musings on the angle of a legal pad sitting on his desk, and the rookie’s bold challenges to the standard operating procedures for public defenders in city courtrooms, Kairys begins to find his authentic voice. The world of 1960s justice provides a compelling setting for a young lawyer ready for a cause, and he soon finds one, resulting in a marvelous tale about his first against-the-odds victory fighting a problematic extradition to Georgia of an African-American resident of Philadelphia. Kairys never looks back, and the grand stage for this Philadelphia lawyer is all the more interesting because it is populated with distinctive characters like a young DA, Arlen Specter, and an even younger Assistant District Attorney, Ed Rendell, blazing their respective paths to become U.S. Senator and Pennsylvania governor. In exceptionally clear prose, and with a light touch for legal vocabulary that makes the criminal process approachable to any student, Kairys graduates from interviews to bail hearings, to preliminary hearings and pretrial motions, until Part I ends with his move into private practice.

Though each part of the book can be read for enjoyment and interest, Part I must be regarded as one of the most engaging and useful anecdotal introductions to the criminal process available for students. The coverage of actual case material is too sparse for very close legal study and the reflections on the legal system’s weaknesses are perhaps too specific to interest the wider public, but Kairys finds the balance in his keen display of creativity and strategic acumen that brought changes to the machinery of urban justice. The ebullient successes of these first 136 pages are balanced with reflection on his prejudices and commitments to the legal status quo. He supplies spare autobiographical background on a need-to-know basis, such as when he battles to understand his interactions with the black community in the late 1960s from his personal background. The basic plot of confidence versus self-doubt – the worries that he “might not live up to . . . expectations” (p.21) – might be too clichéd without the compelling critical perspective that Kairys’ lends to the young “do good” lawyer of his youth. Naturally, writing a memoir in retrospect, one would expect Kairys to speak with a unified voice, to show that from his start in the field to his finish in academe – a law professor at Temple University – he has been his own man, as unabashedly critical as necessary. But there is complexity in that portrait, [*160] particularly of a strategic nature, such as when he observes how “a satisfying moral stance” (p.89) threatened a loss in effectiveness within the organizational imperatives of urban courts, so well described by social scientists. There are numerous other targets of his criticism, including the organizational imperatives of the public defender’s office, and his colleagues in the law (such as his distaste for “lawyer banter” p.31). The clear depictions of trial preparation and proceedings, combined with his raw descriptions of the life and work of a young lawyer, would be excellent for undergraduate use in the study of criminal justice and for anyone considering a calling to the legal profession.

Those looking for the bigger fish in this memoir will look ahead to Part II, as we find a more confident and experienced Kairys who has begun to find his place in the world in the 1970s. It is here that the system’s challenges loom much larger and the villainy extends deeper. Chapter Five, the first chapter in Part II, chronicles a case in which Kairys represents two Philadelphia firemen against the Philadelphia police. Now in the ascent to the peak of his career as a practitioner, Kairys is trying bigger cases than ever, including ultimately the famous case of the Camden 28 opponents of the Vietnam War and the draft. Chapter-to-chapter, these successes bring him further afield, including geographically, and have him facing new injustices in new venues.

Unfortunately, two criticisms of Part II emerge. First, the storyline of the book loses the coherence that animated Part I, as the proximity of these cases to the height of Kairys’ career may be the most the chapters have in common. As a civil rights attorney with growing fame but still happy for the work, Kairys wins some important and recognizable cases with an interesting range of legal issues. The sympathetic reader will note that abuses of the Presidential war-making power, police brutality, and governmental corruption do not seem at all out of vogue thirty years later, so it is easy to begin each chapter. The lack of continuity between these chapters may, upon a deeper reading, suggest something of the challenges facing the public interest attorney: too many targets, perhaps an inability to define an overarching strategy, or even the absence of a definition for “success” in the war if not the battles.

A second criticism that emerges out of Part II is a lack of context for the battles he does recount, with memoir proving the weaker cousin of biography. As much as he has endeavored to piece together the records of his practice, the easiest things to bring to light are his present views and, by definition, his strongest memories of the trials. Kairys’ account of the Camden 28 trial, in particular, supplements the portrait one can find elsewhere, but here more than anywhere the reader may want him to frame the soaring rhetoric of his closing arguments with a wider social and political history of his advocacy. The case, which continues to attract interest today, receives parity of treatment to the cases in other chapters, where it might have been given much more. (On a more minor note in this chapter, it was Andrew Hamilton, not Alexander, who set the stage for modern jury nullification with the closing arguments in the 1735 trial of John Peter Zenger.) The reader need not take Kairys entirely [*161] on trust. For Chapter Eight, in which Kairys reaches the U.S. Supreme Court as counsel for Dr. Benjamin Spock (GREER v. SPOCK, 1976), the diligent reader can easily assess Kairys’ effectiveness as an advocate by delving into the transcript and audio recording of the oral arguments from the internet.

Part III continues what is constant throughout: his eloquence and verve as a writer. Rarely will a reader find a legal memoir beginning a story, as Kairys does in the first chapter of this part, with a line like “I could smell pot smoke wafting out of the kitchen, and I remember feeling particularly relaxed and content that evening,” as he describes receiving a phone call that brought him a suit against the CIA (p.265). Having earned a substantial reputation as a first-rate civil rights attorney, by Part III of his narrative Kairys possesses substantial discretion over case selection, leading to some focus on the particular interests of his later career but also showing the idiosyncratic nature of his practice. Nevertheless, the entire book provides a unique look at the behind-the-scenes politics of law, and Part III offers some of the best examples of it. The power of Coca-Cola, the strategies of the Philadelphia Electric Company, the manipulation of facts and legal loopholes in gun violence and manufacturing, and a crack in the mysterious wall around CIA practices are glimpses into the legal trade unparalleled by most accounts of the legal profession. The cases themselves are consistently unusual, and the book never regains the unified narrative that it has in Part I, but the final part has the substance on the issues, such as nuclear power and gun safety, to give the kind of context lacking in the middle section.

Overall, PHILADELPHIA FREEDOM proves an engaging and well-written tour through a stream of fascinating cases, from a legal career that displays both variety and significance. Though he continues some involvement in litigation, Kairys stops the memoir somewhat abruptly at his entry into an academic career in 1990. Kairys brings the reader up to the present day in a matter of a few paragraphs, though in that light the Epilogue he provides – a brief autobiography and attempt to assess the significance of his work – seems oddly out of place. That effort may be beside the point: the lasting significance he can hope for from this memoir is what others take from his passion and his experiences. It is unfortunate that, running almost four hundred pages, Kairys’ window into the world of a progressive lawyer may be too much for classroom use. Perhaps he might have recalled Elton John’s lyrics in the song with the same title as this book: “the less I say the more my work gets done.” Yet, despite the criticisms of this review, Kairys has accomplished in PHILADELPHIA FREEDOM what few people (and even fewer law professors) can: he has written of things he has done about which it is worth reading.

REFERENCES:
Kairys, David, ed. 1998. THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (3d ed.). New York, NY: Basic Books.

CASE CITED:
GREER v. SPOCK, 424 U.S. 828 (1976).

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© Copyright 2009 by the authors, Patrick Schmidt and Cali Cope-Kasten.

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BUILDING THE INTERNATIONAL CRIMINAL COURT

by Benjamin N. Schiff. New York: Cambridge University Press, 2008. 320pp. Hardback. $85.00/£48.00. ISBN: 9780521873123. Paperback. $25.99/£18.99. ISBN: 9780521694728. eBook format. $21.00. ISBN: 9780511402128.

Reviewed by Denise DeGarmo, Department of Political Science, Southern Illinois University Edwardsville. Email: ddegarm [at] siue.edu.

pp.155-157

In his book, BUILDING THE INTERNATIONAL CRIMINAL COURT, Benjamin Schiff provides one of the most detailed studies of the International Criminal Court written to date. Schiff not only traces the development of the Court, he further examines the interplay between historical context, legal norms and state compromises that have created the multiple challenges the Court faces today.

The book consists of an introduction and eight chapters. In the introduction, Schiff sets the stage for his analysis. Rather than mere description, Schiff employs the use of international relations and international organization theories in his analysis of the International Criminal Court. Specifically, he combines neorealist, neoliberalist and constructivist lenses to examine different aspects of the court and its workings. Schiff uses constructivism to shed light on the development of consensus upon which the Court is based. Realism is used to explain a state’s compulsion to protect its sovereignty and seek advantage, while liberal institutionalism is used to analyze how the International Criminal Court embodies states’ cooperative efforts to improve the “absolute welfare” of states. The remaining chapters explore the historical contexts in which the court emerged, the contributions of the ad hoc tribunals for Rwanda and former Yugoslavia to the construction of the International Criminal Court, and the challenges the Court faces as it moves forward in the twenty-first century.

It took several decades for the idea of a permanent international criminal court to find its way onto the agenda of the international community. The United Nations recognized the need for the establishment of international rule of law and the International Criminal Court following the Nuremberg and Tokyo Tribunals in 1948. In the early part of the 1950s, the General Assembly of the United Nations requested that the International Law Commission draft statutes to establish a permanent international criminal court. However, Cold War tensions between the east and west made the construction of such a court politically infeasible.

The idea of an international criminal court reemerged in 1989 when the Prime Minister of Trinidad and Tobago proposed the creation of an international court to deal with the illegal drug trade. While a draft statute for such a court was being negotiated, ad hoc tribunals were established to try war crimes in Rwanda and the former Yugoslavia. These ad hoc courts further highlighted the need for an international court system. [*156]

The General Assembly of the United Nations convened a conference in Rome in June of 1997 with the aim of finalizing a treaty for the creation of an international court. In 1998, the Rome Statute for the International Criminal Court was opened for signature. The Statute was adopted overwhelmingly. One hundred and twenty states voted for the treaty; seven states voted against the treaty, and twenty-one states abstained. The countries that voted against the Statute were China, Iraq, Israel, Libya, Qatar, Yemen and the United States. The Rome Statute became a binding treaty in April 2002. The Statute legally came into force in July 2002, and the Court can only prosecute crimes that occurred after this date. As of January 2009, there are 108 members of the International Criminal Court. Forty states have signed but not ratified the treaty, and in 2002, the United States and Israel “unsigned” the Rome Statute. This action was taken as neither state has any intentions of becoming parties to the treaty nor do they admit having legal obligations arising from their earlier signature.

The International Criminal Court consists of three “organs.” There is the Presidency and Chambers, the Office of the Prosecutor, and the Registry. Within the Rome Statute one can find the procedures upon which the Court functions. The Court can investigate cases, issue warrants, and take suspects into custody. Furthermore, it can carry out trials and protect victims and witnesses of crimes that fall under the Court’s jurisdiction. The legislative organ of the International Criminal Court is the Assembly of State Parties to the Treaty. The Assembly is charged with the election and removal of the Court’s judges and prosecutors. They must also approve the budget for the Court as well as adopt the International Criminal Court’s Rules of Procedure and Evidence.

The purpose of the International Criminal Court is to prosecute the perpetrators of war crimes, crimes against humanity and/or genocide. Not only does the court act to punish perpetrators of the aforementioned actions, it serves as a deterrent for those who might consider implementing these types of behaviors in the future. The Court can exercise jurisdiction only in cases where: 1) the accused is a national of a state that is party to the treaty; 2) the alleged crime took place within a state that is a party to the treaty; and/or, 3) the alleged crime is referred to the Court by the United Nations Security Council. Furthermore, the Court can only exercise its jurisdiction when the state court is unwilling or unable to investigate and prosecute such crimes. At this time, the International Criminal Court has launched investigations into Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.

The success of the Court rests upon its ability to deter criminal acts or influence states to enforce international human rights. If the Court fails in this regard, then it may be deemed useless by both perpetrators and victims alike. Furthermore, the international nature of the court makes it less likely to achieve success. First there is a lack of legislative structure associated with the court. Secondly, the court imposes upon the sovereignty of states. If states are not willing to cede their sovereignty to the court, there is little the court can do given that it also lacks tools for [*157] implementation of rulings. Furthermore, the international criminal court is subjected to outside influences, bias and poor administration. Schiff also draws attention to the fact that many of the challenges the court faces arise because the International Criminal Court is a treaty-based organization that encompasses a broad and diverse membership with a wide mandate. The challenges include: 1) Judicial-Political challenges; 2) Structural-Administrative dilemmas; 3) the Broad Mandate Dilemma; 4) Civil- and Common-Law Heritage; and, 5) Peace versus Justice Dilemma.

While the literature has many examinations of the sources, structure and implications of the Rome Statute, the International Criminal Court has not been extensively analyzed because of its relatively short lifespan. Of the examinations of the Court that have been conducted, BUILDING THE INTERNATIONAL CRIMINAL COURT is the most insightful, comprehensive and conscientious study of the International Criminal Court to date. Schiff blends history, jurisprudence and political science to provide a clear analysis of this relatively new international organization. The use of international relations and international organization theories is an added bonus and further legitimizes the analysis within the field of International Relations.

The clear and precise language used in this book makes it a perfect text for undergraduate and graduate courses in international law and human rights. The book provides the framework against which future studies of the Court will be conducted. BUILDING THE INTERNATIONAL CRIMINAL COURT will remain an important historical and political document for years to come. The book is an invaluable tool for scholars and practitioners of international law.

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© Copyright 2009 by the author, Denise DeGarmo.

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UNEQUAL UNDER LAW: RACE IN THE WAR ON DRUGS

by Doris Marie Provine. Chicago: University of Chicago Press, 2007. 193pp. Cloth. $45.00. ISBN: 9780226684604. Paper. $18.00. ISBN: 9780226684628.

Reviewed by Charles R. Epp, Department of Public Administration, University of Kansas. Email: chuckepp [at] ku.edu.

pp.151-154

Although it is widely known that the United States has experienced a “prison boom” (Western 2006) with dramatically harsher effects on African Americans than whites, no one has analyzed the racialized sources and implications of these disparities so deeply, subtly, and persuasively as Marie Provine in this thoughtful study.

Provine’s thesis is that American criminal justice policy on drugs is racially-framed at its core, resulting in a “war on drugs” that especially targets and imprisons African Americans. Provine argues that this bias, however, is institutional rather than intentional, complicating any attempt to correct the problem. Thus, Provine observes that, while punitive policies toward illegal drugs have targeted racial minorities and this bias follows deep historical patterns, efforts to correct it have been undermined by arguments that it is not intentional and therefore is perfectly acceptable. Provine builds a powerful case for her thesis by marshalling evidence from the consistent historical pattern of targeting racial minorities in America’s past and current wars on drugs; from the pervasive racial disparities in the effects of wars on drugs; and, especially, from the widespread resistance of elected officials and appellate judges to address these disparities with policy reforms.

The book’s Introduction, Chapter 1, and a brief Epilogue clearly frame the above thesis. In these chapters Provine draws on a wide array of historical and social scientific literature, relying especially on recent work in the areas of American Political Development and social psychology. From the former area she draws the idea that institutions are both accretions of past ideological forces and the generators of continued biases in keeping with those ideological structures. Thus, following Paul Frymer’s (2005) influential observation, she observes that in the area of criminal policy, “institutions provide incentives that make racism rational” by predisposing elected officials and ordinary citizens alike to see racial minorities as sources of drug abuse and drug-related crime (p.10). From social psychology, Provine draws the observation that implicit negative racial stereotypes contribute to widespread perceptions that racial minorities represent a greater threat to order than do whites (pp.156-58). Relying on these insights, Provine argues that American criminal policy toward drugs has institutionalized the implicit expectation that drugs and drug-related crime are greater threats when associated with racial minorities and that it is necessary to respond to these threats with heavy criminal punishment. Finally, in order to address the problem, she observes that “negative stereotypes must be actively [*152] resisted to be avoided” and that only deliberate policy will reverse well-institutionalized racially-discriminatory patterns (p.158).

In Chapters 2 and 3, Provine turns to her historical evidence, demonstrating that punitive crusades against drugs historically have targeted racial minorities by portraying them as especially prone to abusing alcohol and other drugs and as morally corrupt threats to responsible white Americans. Provine’s history, although based largely on other studies, draws together the evidence in support of this thesis in a synthesis found nowhere else. Although most readers are likely to know generally of the moral crusades against alcohol, opium, and marijuana in American history, for instance, few are likely to know how thoroughly racialized were these campaigns. Thus, Prohibition in the South contributed directly to black disenfranchisement as its supporters relied heavily on images of drunken black men, fueling efforts not only to ban alcohol but also to restrict access to the ballot (pp.38, 52-58).

In Chapter 4, Provine analyzes the development of federal policy on crack cocaine in the 1980s, showing that members of Congress and law enforcement officials alike acted on racialized assumptions. As in earlier anti-drug crusades, they assumed that most crack users were racial minorities, that the drug represented an irresistible enticement and could not be shaken once tried, that the scourge was threatening to spread from black ghettoes to the white middle class, and that only extremely harsh punishment could discourage the hardened minority criminals who sold and used the drug. Although available evidence at the time discredited these assumptions, the country was seized by a “moral panic,” and Congress rushed into law a bill with draconian punishment even for carrying exceedingly small amounts of crack cocaine, resulting in the notorious “crack-powder” sentencing disparity of 100-1 (pp.107-115). Although Provine identifies some culprits in this story (namely Reagan administration officials and conservative members of Congress), she emphasizes that the racially-framed assumptions behind the disparity were widely held and that even many members of the Congressional Black Caucus supported the measure. Her target here, as in the study as a whole, is institutionalized bias, not intentional racism.

Provine examines the tragic racial impact of the crack policy in Chapter 5, with a particular focus on how federal officials responded to growing evidence of this impact. While whites have always represented a majority of crack-cocaine users, the rate at which African-Americans were incarcerated in federal prison more than tripled from 1980 to 1999, while the disparity between whites’ and blacks’ prison sentences for drug crimes increased dramatically from 6% in the mid-1980s to 93% in the late 1990s (p.127), largely as a result of enforcement targeted at black crack users and dealers. Under pressure from civil rights groups and social scientists, the Federal Sentencing Commission recommended a sharp reduction in the crack/powder sentencing disparity, and, under the existing law, this reduction was to take effect unless overridden by an act of Congress, signed by the President. The majority in Congress, however, led by members incensed by the claim that such disparities [*153] represented racism (they asserted no “intent” to discriminate) voted overwhelmingly to override the Commission’s recommendation, and President Clinton signed the legislation, thereby affirming the policy.

Provine examines the judicial response in Chapter 6, showing that while some federal trial judges objected to the gross injustices imposed by the sentencing guidelines (some going as far as to rule them unconstitutional), many adopted a position like that of federal judges in the early 19th century who were asked to enforce the fugitive slave law: they passed the buck, seeking to absolve themselves of responsibility. Worse, appellate judges, those theoretically with the power to affirm the few trial-court decisions challenging the policy, consistently held that, since the effects of the policy were not frankly and deliberately intended to be racist, the policy producing them was perfectly constitutional.

Provine’s synthesis, while largely drawing on existing research, is original and powerful. It offers the clearest observation yet of a fundamental problem whose contours are increasingly marked out in large bodies of research in several disciplines: while American law and policy admirably (and largely successfully) prohibit intentional racial discrimination, the problem is no longer intentional bias but rather deep racial disparities – in jobs, education, healthcare, imprisonment, traffic stops – that grow from systematic tilts in our policies and administrative processes. The situation is doubly tragic for, as Provine poignantly observes, the American commitment to stamping out intentional bias “constrains debate about racial justice” by inviting “angry denials of racist intentions” and thereby allowing officials to avoid responsibility for unintended but deep and systematic racial injustices (p.138). Such disparities, she observes, can be addressed only with deliberately crafted policy aimed at reversing the systematic biases in our policies.

My only quibble is that it the book does not fully address why the long-standing racial biases in American drug policy have resulted in an imprisonment boom characterized by gross racial disparities only in the period after about 1980. For an answer to that question, readers will have to turn to other books, notably Tonry’s analysis (1995; 2004) of politically conservative alternatives to social-welfare policies, and Gottschalk’s analysis (2006) of how weak state capacity in the area of social welfare channeled moral panics over drugs after the 1970s into criminalization and a prison-building boom. By the same token, however, neither of these powerful analyses helps us to understand so clearly, as does Provine’s, why the imprisonment boom has been racially-biased at its core.

UNEQUAL UNDER LAW is a very well-crafted policy analysis and an elegantly written teaching tool. Students and scholars at all levels are likely to find the book accessible and thought-provoking. It is a model of normatively-driven, theoretically-framed research.

REFERENCES:

Frymer, Paul. 2005. “Racism Revised: Courts, Labor Law, and the Institutional Construction of Racial Animus.” 99 AMERICAN POLITICAL SCIENCE REVIEW 373-87. [*154]

Gottschalk, Marie. 2006. THE PRISON AND THE GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA. New York: Cambridge University Press.

Tonry, Michael. 2004. THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE. New York: Oxford University Press.

Tonry, Michael. 1995. MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT IN AMERICA. New York: Oxford University Press.

Western, Bruce. 2006. PUNISHMENT AND INEQUALITY IN AMERICA. New York: Russell Sage Foundation.

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© Copyright 2009 by the author, Charles R. Epp.

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THE COMMON LAW IN COLONIAL AMERICA: VOLUME I: THE CHESAPEAKE AND NEW ENGLAND, 1607-1660

by William E. Nelson. New York: Oxford University Press, 2008. 216pp. Hardback. $35.00/£18.99. ISBN: 9780195327281.

Reviewed by George W. Liebmann, Liebmann and Shively, P.A. of Baltimore and Visting Fellow of Wolfson College, Cambridge. Email: george.liebmann2 [at] verizon.net.

pp.148-150

This slender volume by an outstanding scholar of colonial law sheds much light on continuing differences in legal and political culture among states on the Atlantic seaboard. It begins with the conventional premise that “Virginia was founded primarily for economic profit; New England, primarily to create a religious utopia; and Maryland, primarily to provide a haven for persecuted Roman Catholics.” As a result, Virginia law began as a body of coercive statutes (Dale’s Laws of 1611), replaced by a new codification 1n 1650 designed to enforce and extract labor; New England law was founded on views resembling the Protestant approach to the Bible, in which pre-existing English texts were of limited importance; while the Catholic minority in Maryland consciously adopted English common law to provide a fixed standard to shield a religious minority from future majority oppression. Virginia ultimately turned toward the English common law to provide assurance to providers of capital and because the colony could no longer be governed on a military command system.

Virginia was colonized by single male immigrants, many from the lowest rungs of society inhabiting widely dispersed homesteads; the New England colonies were settled by family groups required to live in towns in proximity to their church. The New England colonies resorted to statutory codifications to provide certainty. Virginia substantive law centered on debt collection; New England law, on community self development. The New England codifications tended to omit contract law, as in the Massachusetts codification of 1648; juries were relied on to curb the arbitrariness of magistrates. The master servant law of Virginia was far more severe than that of New England.

The Maryland Act of Religious Toleration of 1648 was designed to safeguard minorities; it was set aside during a period of later Puritan rule. The jury attained great importance in Maryland. In Maryland, the common law was adopted by statute no later than 1639. The tobacco economy caused Maryland master servant and debtor creditor law to evolve in the direction of Virginia’s laws, although by the time of the Civil War, 50% of Maryland’s blacks, but only 20% of Virginia’s had been freed. As Nelson notes, these origins “gave the law of those regions distinctive characteristics that would persist for years to come.”

Maryland is still in many ways a common law state; despite attempts in the 1870s and again in the 1970s, it has [*149] never adopted a codified criminal law, and a 1904 treatise (Hochheimer 1904) is still in use in many Maryland prosecutors’ offices, although there have been partial codifications, as with the law of theft. This sometimes produces amusing results; a pair of Maryland cases in the 1960s applied, with the benefit of much learning, the principle that a church, as ‘the dwelling house of God’ was within the common law definition of burglary, “breaking and entering a dwelling house in the night time with intent to commit a felony (MCGRAW v. STATE, 1964; DORTCH v. STATE, 1967).

Maryland lawyers until about thirty years ago had in their offices two thick volumes (Alexander 1912) which contained the pre-revolutionary British statutes found to have met the standard still embodied in Article V of the Declaration of Rights in Maryland’s still extant 1867 Constitution: “the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy six; and which, by experience, have been found applicable to their local and other circumstances.” As recently as 1966, the reviewer litigated a substantial landlord tenant case turning on interpretation of two seventeenth century English statutes. Chapter 12 of the Maryland Acts of 1974, enacted by section 14 115 of the Real Property Article, lists no fewer than 80 English statutes declared to be no longer applicable in light of the 1974 codification of Maryland real property law, the earliest of them being 9 Henry III, Ch.7 (1225).

Maryland also retains a considerable attachment to the jury system, and has preserved twelve member unanimous verdicts in criminal cases. Its Constitution contains a provision (Article 23 of the Declaration of Rights) making the jury judge of the law as well as the facts in criminal cases, the effect of which has been curtailed by judicial decision but not by amendment, a pity in light of current abuses of drug possession laws.

Virginia, by contrast, has a dizzying variety of jury statutes, some allowing majority verdicts and some allowing juries as small as five members (59 F.R.D.180, 1972).

Mr. Jefferson, although a Virginian, saw to it that the New England township system, complete with its reservations of land for schools and churches, rather than the large counties of Maryland and Virginia, provided the basis for local government in the Northwest Territory, an enormous service to both local government and public education in the upper Midwest, the suburban and rural areas of which are not afflicted with the huge bureaucratic school systems characteristic of Maryland and Virginia.

The Catholic/Protestant condominium resulting from the Maryland Statute of Religious Toleration also had a long and peculiar life. In 1915, when it was proposed to erect a statue commemorating the enactment, including figures of a puritan, a priest, and a cavalier, Cardinal Gibbons protested against this piece of sentimentality; he declared that Lord Calvert, and Calvert alone, was responsible for the policy of toleration, an accurate historical estimate. The list [*150] of Maryland Attorneys General which appears in the front of each volume of the Reports of the Attorney General of Maryland notes the religious affiliation of each attorney general appointed between 1657 and 1777 (citing Owings1953; 2004). Jewish emancipation in Maryland was accomplished in 1826, but religious test oaths for officeholders survived until the US Supreme Court decision in TORCASO v. WATKINS (1961), and those for jurors, until the decision of the Maryland Court of Appeals in SCHOWGUROW v. STATE (1964). Maryland was the last state to authorize civil marriages. In 1860, when the Baltimore City police force was reorganized in reaction to the ethnic strife of the Know Nothing period, a practice began of alternately appointing Catholic and Protestant patrolmen, which did not end until the appointment of Police Commissioner Donald Pomerleau in 1966.

The New England states are peculiar in that in several of them, judges are given life tenure, as in the English practice; the powers of the legislature as much as juries were relied upon to prevent abuse. Thus, Nelson’s succinct and lucid work is of considerably more than antiquarian interest, but contributes to an understanding of the roots of our institutions and the different courses on which they might have developed.

REFERENCES:

Alexander, Julian J. (ed.). 1912. BRITISH STATUTES IN FORCE IN MARYLAND. Annapolis: Maryland State Archives.

Hochheimer, Lewis. 1904. LAW OF CRIMES AND CRIMINAL PROCEDURE. Baltimore: Baltimore Book Co.

Owings, Donnell M. 1953/2004. HIS LORDSHIP’S PATRONAGE. Baltimore: Maryland Historical Society; Annapolis: Maryland State Archives.

CASE REFERENCES:

MCGRAW v. STATE, 234 Md. 273 (1964).

DORTCH v. STATE, 1 Md. App. 173 (1967).

SCHOWGUROW v. STATE, 240 Md. 121 (1964).

THE SIX MAN JURY: A DISCUSSION BEFORE THE JUDICIAL CONFERENCE OF THE FOURTH CIRCUIT, 59 F.R.D.180 (1972).

TORCASO v. WATKINS, 367 U.S. 488 (1961)

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© Copyright 2009 by the author, George W. Liebmann.

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CONCEIVING LIFE: REPRODUCTIVE POLITICS AND THE LAW IN CONTEMPORARY ITALY

by Patrick Hanafin. Burlington, VT: Ashgate Publishing Company, 2007. 124pp. Hardback. $99.95/£55.00. ISBN: 9780754646358.

Reviewed by Jennifer Woodward, Department of Political Science, University at Albany. Email: Jennifer.woodward01 [at] albany.edu.

pp.144-147

Why would a repressive piece of legislation be produced at the end of a period of substantial progressivism in society? Patrick Hanafin hopes to find out how this happened in Italy when repressive reproductive legislation was passed following a period of progress in the country’s gender relations. He explores the development of legal regulation on human reproduction in Italy from 1978 (when legalized abortion was introduced to the country) until 2004 when restrictive regulations on assisted reproductive technologies were passed. The central question he asks is how Italy, which was moving away from a heteropatriarchal conception of family in the 1970s, was successful in introducing a law that gave symbolic recognition to human embryos and restricted access to assisted reproductive technologies. Hanafin’s answer involves a complex interweaving of the relationship between the state and civil society, the transformation of the political party system in the 1990s, competing ethical worldviews found within society and legal documents, the rebirth of the Roman Catholic Church as a political force, the decline of the feminist movement, and the changing conceptions of the status of women in Italian society (p.2).

In the introductory chapter, Hanafin argues that “the regulation of human reproduction is intimately linked with the question of the relation of the citizen to the state” (p.1). Emerging from patriarchal discourses and law, he argues that women’s bodies within democracies are sites of ideological contestation regarding the nation, community, and identity. Although Hanafin focuses on contemporary Italy and the influence of the Catholic Church in producing a complex narrative of the family that is both progressive and traditional, his argument is applicable to other countries as well. His discussion of how feminists in Italy have provided counter-narratives to the patriarchal view of the family, in a manner that re-conceptualized the role of women in society and provided them a voice within the public sphere also provides insights into the feminist movement more generally (p.3).

In this chapter, Hanafin also presents vitapolitics, his theoretical framework. “Ethopolitics” (an individual governance of the self) found success in Italy’s feminist movement of the 1970s and enabled the reshaping of gender relations within the country. Vitapolitics (the interactions between micropolitics of the movements of individuals and public officials) provides a form of politics that allows for morality based law. Hanafin argues that in recent years “ethopolitics” has been eclipsed by “vitapolitics.” It allows for a perspective that considers embryos to be seen as active individual agents within the law and for women [*145] become mere vessels for the reproductive needs of the nation (p.5). Not only abortion, but the use of assisted reproductive technologies place women outside of the acceptable citizenship in vitapolitics. In other words, women in a society dominated by vitapolitics are not good citizens if they control (or even attempt to control) their reproductive decisions. As such, Hanafin argues, women are reattached to the private sphere and the embryo takes on a symbolic value that represents the survival of traditional heteropatriarchal notions of the family.

Hanafin does a particularly nice job describing the role of the Catholic Church in conducting a discursive war on the feminist movement in Italy with the change in political climate. With the Church allied to conservatives, moderates, and liberals the distinctions between the secular and religious blurred. As a result, diverse viewpoints were no longer heard in matters of bioethical controversy. The “culture of life” espoused by the Church became a “rhetorical devise for introducing a de facto theocratic state in a de jure pluralist democracy” (p.11).

In the second chapter, Hanafin discusses why it has been so hard for Italy to overcome its ideal of paternalistic families. The fascist state introduced a legal framework that resulted in a second class citizenship for women as they were relegated to the home. This occurred through laws prohibiting birth control and abortion, to incentives such as tax bonuses for women who gave birth on a regular basis. This narrative and its corresponding legal framework continued in the post-war republic (p.16). Then the Constitutional Court in 1968 overturned a discriminatory law on adultery, which Hanafin argues was the point of departure from the immediate post-war heteropatriarchal model of family. Thereafter, Italy’s legislature began a number of reforms that reflected the more liberal reconceived notion of the family, including the legalization of abortion, removal of provisions to obtain birth control, and the defeat of traditionalist referendums (p.23). This chapter contains a number of insights into the pre- and post-war conditions of gender roles that could find interesting parallels with other countries. My only criticism is that the chapter could benefit from more discussion of these roles and how they were transformed in the post-war conditions of Italy. In particular, it would have been worthwhile to have an expanded discussion of how the post-war democracy changed the relationship between men and the state, but not between women and the state (p.11).

The third chapter covers the debate over abortion and how it led to a questioning of acceptable forms of organization. Hanafin discusses a legal and subsequently a medical system that treats women obtaining an abortion with contempt and punishes medical providers who do not conscientiously object to the procedure. He argues that it is the patriarchal and conservative cultural values that undermined the seemingly more liberal legislation (p.38). Chapter four explores the evolution of conservative resistance to the legalization of abortion and the feminist movement’s quest for reproductive freedom. Hanafin concludes the chapter by arguing that the rights of embryos came to supersede the rights of women as a result of the convergence between Catholic interest [*146] groups campaigning to incorporate embryonic rights into the legislative agenda, the lack of ideological commitments of the political parties on this area of contestation (and their reliance on the Catholic Church for support), as well as a weakening feminist movement (p.58). In both chapters, Hanafin ties his arguments to Italian theorists in a superb manner in order to frame and support his arguments.

The fifth chapter looks at how the resistance of the Catholic Church was successful in introducing a 2004 law that greatly limits (and for single women prohibits) assisted forms of reproduction. This law, Hanafin argues, shows how heteropatriarchal power can overcome norms of autonomy in a pluralistic society and has resulted in declining in-vitro fertilization within Italy and more couples turning outside of Italy for the treatment if they can afford it (pp.12, 59, 79). The chapter includes a valuable account of the discursive history of the term “conception” and links former laws on adultery to the ban on donors found in the 2004 law (pp.60-63). As in chapter three, Hanafin incorporates Cavarero’s patriarchal framework of women as mere carriers of seeds in a manner that both supports and makes his arguments more applicable to a comparative framework. For example, his discussion of the evolution of abortion law in Ireland shows how discourses that consider women deceitful results in “forced pregnancy in the name of some notion of idealized citizenship” following rape (p.75). Hanafin also briefly includes Belgium and Spain in his analysis.

Finally, the sixth chapter calls for a reframing of reproductive citizenship. Hanafin argues that reconstructing autonomy and privacy can increase the odds of using rights claims to promote liberalism through the right to reproductive freedom. In this final chapter, Hanafin’s interest in Cavarero (1995; 2000; 2002) takes center stage as he argues for a reframing based upon her arguments. Cavarero provides a conception of women who have had their voices and bodies silenced and made invisible by a male symbolic order. Female symbolic spaces, what Cavarero calls the “absolute local,” must be created (p.94). This space requires a deconstruction of belonging and “the marginalization and of qualities and the depoliticalisation of the what” (p.94). In the end, Hanafin ties Cavarero’s political praxis with Cigarini’s (1995) notion of “above the law” (where women engage in their own relation with the law using their own voices rather than those imposed upon them by masculine law) in a manner that coincides well with the calls for reframing citizenship found within feminist thought.

CONCEIVING LIFE is an excellent example of the important intersections between politics, religion, civil society, gender, and the law. Not only does Hanafin’s work demonstrate a contribution to the aforementioned fields, but it also highlights the usefulness of a comparative approach to the study of law. Although firmly rooted in feminist theory, he shows a complex application of all these fields to his explanation for how regressive policy can be established in times of social progress. [*147]

REFERENCES:

Cavarero, Adriana. 1995. IN SPITE OF PLATO: A FEMINIST REWRITING OF ANCIENT PHILOSOPHY. Cambridge: Polity Press.

Cavarero, Adriana. 2000. RELATING NARRATIVES: STORYTELLING AND SELFHOOD. London: Routledge.

Cavarero, Adriana. 2002. A PIÙ VOCI: FILOSOFIA DELL’ ESPRESSIONE VOCALE. Milan: Fetrinelli.

Cigarini, Lia. 1995. LA POLITICA DEL DESIDERIO. Parma: Pratiche Editrice.

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© Copyright 2009 by the author, Jennifer Woodward.

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EU FOREIGN RELATIONS LAW: CONSTITUTIONAL FUNDAMENTALS

by Marise Cremona and Bruno de Witte (eds). Oxford, UK, and Portland, OR: Hart Publishing, 2008. 328pp. Paperback. $74.00/£35.00. ISBN: 9781841137575.

Reviewed by Angelos M. Syrigos, Department of International and European Studies, Panteion University-Athens, Greece. Email: angelos [at] syrigos.gr.

pp.139-143

One of the most intriguing moments during the teaching of the external relations of the EU is when the issue of its legal personality is reached. Students consider that the European Community (EC) is part of history, since they think that, by the time of their birth, it has been replaced by the EU. Suddenly, they learn that only the EC has legal personality and can conclude international agreements. On the other hand the EU is only a political and institutional framework with no legal personality.

This is a mere example of the various difficulties that are inherent in explaining the EU foreign relations law. And these difficulties become more complicated when it comes to speak about the “constitutional fundamentals” of this law. Thus, the task that has been undertaken by Marise Cremona and Bruno de Witte, who edited the volume, was difficult. They could have chosen the easy way to speak about the Treaty of Lisbon and how this Treaty alters the structure the EU’s external role. According to the new structure, the ancient problem of the legal personality of the EC/EU is to be solved. A single legal personality will strengthen the EU’s voice as well as its negotiating powers. Moreover, a new High Representative for the Union in Foreign Affairs and Security Policy and also Vice-President of the Commission is introduced. He is going to be supported by the new European External Action Service. Special decision-making arrangements concerning European Security and Defence Policy have been preserved in order to respect the particular interests of the Member States.

Nevertheless, the two editors decided to follow the rough path to examine and reassess all the main norms and principles of the EU external relations law as they have emerged during the last 50 years. Their task is complicated by the fact that the legal structure of the European Union is based on a detailed primary law of Treaties as it is interpreted by the European Court of Justice, and it lacks clearly marked main norms and principles which, based on the domestic analogy, could be considered as the EU constitution.

The volume is divided into five parts. In the introductory chapter, de Witte presents an overview of the European “constitutional” provisions on foreign relations. He considers that they are so complex that they are a burden rather than a support. Whereas in the beginning the relevant provisions could be characterized as few and laconic, in the 1980s they became more detailed and in the end more complex than many national constitutions. Additionally, since some of the rules were developed entirely through case law rather than [*140] through the text of Treaties, a judge-made complexity was added to the overall picture. Professor de Witte argues that the EU has lost an opportunity to adopt “constitutional” rules which could limit and steer the activity of the institutions instead of obstructing it.

The second chapter is the first of a group of three essays which describe the foreign relations law in a multi-pillar era. This chapter, written by Christoph Herrmann, tries to re-analyze the traditional approach to describe the EU as an ancient Greek temple based on three different pillars versus a single and unitary legal order. The charter is using a number of cases to show a growing trend in the European Court of Justice to disregard the three pillars and follow a “cross-pillarisation” approach of the EC/EU policies. Hermann concludes that, in spite of the intensity of the debate about unity of the EU legal order, in practice this unity makes little sense regarding the separation of the EU law in two Treaties. Beyond legal theory, this question is merely a “façon de parler.”

In the third chapter, Alan Dashwood analyzes the law and practice of the common foreign and security policy (CFSB) joint actions, especially since January 2001, when the European Security and Defence Policy (ESDP) was put in place. The chapter is divided into two parts. In the first part, the criteria that ought to guide the choice of joint actions as the appropriate form of legal instrument for adoption of measures pursuant to the objectives of the CFBC are examined. Although two main categories of joint actions are identified (joint actions that organize ESDP operations, and joint actions that provide financial or other assistance), it is pointed out that article 12 of the EU Treaty does not adequately provide for all of the purposes for which the adoption of binding legal acts is required. The lacuna is partly filled by sui generis decisions into the sphere of the Second Pillar, though of uncertain legality. The second part examines the constraints that article 47 of the EU Treaty (to be replaced by article 40 of the amended treaty, following the entry into force of the Treaty of Lisbon) imposes on the choice for the institutions between CFSP joint action or community measure adopted under the EC Treaty. According to case law, competences under the Third Pillar cannot be used in order to adopt measures identical to those that can be taken by the Community under the EC Treaty. On the contrary, instruments that have been adopted under the CFSP objectives are valid irrespective of the fact that the Community may also have the right to act in pursuance to different objectives of the EC Treaty.

The fourth chapter, by Christophe Hillion and Ramses Wessell, examines a similar issue, that of the restraint of external competences of EU Member States under CFSP. It is true that by the time of the adoption of the CFSP many states considered it as an intergovernmental issue that could not interfere with their freedom to conduct their own foreign policy and conclude international agreements. Nevertheless, in practice the rationale behind the CFSP entails a consultation obligation between the Member States. Moreover, their CFSP loyalty obligation creates certain restraints, especially when the Union has already acted. Hillion and Wessell also [*141] examine parallel competences between the Union and Member States to conclude international agreements with third states and international organizations. Their argument is that it seems too early to rule out exclusivity in the field of CFSP, especially if these agreements depart from established Union Law. Last but not least, they conclude that, in spite of “pillar specific” characteristics, the interplay between the pillars has a spill-over effect, which renders certain notions “principles of Union Law.” Additionally, the CFSP obligations cannot be approached in isolation from the other two pillars. This is further proved by the fact that powers retained by Member States in the field of CFSP cannot be exercised at their own discretion when action is to be taken at EU level, since Members States are not able to choose between a CFSP and an EC legal basis.

The second group which consists of two chapters is entitled, “The EU and its member-states.” It starts with an article by Marise Cremona, one of the editors of the volume. The article discusses the management of shared and overlapping competences between the Community and Member States. Cremona examines the tendency to regard exclusive competence as the best option to defend community interests, whereas shared competences are not necessarily a good solution. She argues that exclusivity is not the only way to defend community interests. More specifically, there are certain constraints imposed by the loyalty principle, as it is embodied in Article 10 of the EC Treaty, upon Member States when they exercise their foreign relations powers. Cremona concludes that Member States should respect the loyalty principle and comply with their community law obligations in repsect of international agreements falling under their competence. Moreover, the unity of the Community legal system and more generally of the Community order has to be preserved with respect to third states. Futhermore, there is a duty of co-operation, not only in the negotiations of mixed agreements, but more generally in the areas that affect the EU external relations sphere. When Member States operate within the scope of “community interest” they have to respect the autonomy of the Community legal order as well as its primacy and to incline towards the completion of its objectives.

The sixth essay, by Panos Koutrakos, focuses on the choice of the appropriate legal basis in the context of the EC external relations and more specifically on the interpretation of Articles 133 and 308 of the EC Treaty. If an agreement concluded by the Community is based on an incorrect legal basis, the agreement would be invalidated inside the EU legal order, whilst it would bind the Community under international law. As it is understandable, the internal constitutional repercussions of the European Union law do not have any significance in the international relations which need clarity and detest uncertainty. On the other hand, the ongoing process of the political formation of the EU renders impossible the quest for complete clarity and predictability. In order to avoid complications concerning agreements incompatible with EC law, which would undermine the interests of the EU in international negotiations, Koutrakos suggests that a mechanism should be established whereby the Court of Justice may offer its Opinion as a matter of [*142] urgency. Furthermore, he remarks that in the multilayered system of the EU external relations, as it is set out by the Treaties, there is no provision for a single legal basis. All legal bases should be taken into serious consideration.

The next group of chapters is about executive accountability. In the seventh chapter, Daniel Thym examines the parliamentary involvement in European international relations. In spite of continuous changes in the EU legal order, parliamentary involvement in international treaty-making at the European level is still limited and cannot be compared with the powers possessed by national parliaments in this field. The powers of the European parliament are limited to parliamentary consultation or consent under Article 300 of the EC Treaty. The Lisbon Treaty does not fundamentally change the picture, although some new rights for the European Parliament are introduced. National parliaments still maintain the decisive role with regard to defence policy and ratification of mixed agreements. Thym concludes that the internal integration progress of the EU does not merely project its domestic competences to the international relations field. Therefore, the role of the Parliament in foreign affairs is a “generic expression of the constitutional fundamentals” of EU’s foreign affairs.

Following the terrorist attacks of the 9/11 in the US and the “war on terror,” increased activity in fields which directly affect individual rights has been witnessed. Eleanor Spaventa discusses how this activity affects the protection of individual rights in the EU, focusing attention on the adoption of “terrorist lists” and more specifically in the inclusion of individuals who lack the necessary legal tools to counter-attack this inclusion. Spaventa concludes that the level of guarantees of individual rights is not as high as it used to be before the “war on terror.” Whilst an appropriate treaty amendment could provide a solution to the problem, in the meantime, Spaventa argues, the Member States should refrain from using EU instruments in matters that affect individual rights.

The last group of chapters concerns human rights and international law in EU foreign relations. In the ninth chapter, Päivi Leino examines whether human rights and “common values” are the guiding principles of the EU foreign relations law. “Common values” are the values referred to in Article 49 of the Lisbon Treaty, which are respected by all Member States and, in theory, guide EU action. Nevertheless, Leino posits that in practice these values, which are described as universal by the EU (in order to avoid charges of neo-colonialism associated with its policies), are offering a vague set of objectives rather than something that can be attained. Leino, clearly inspired by Jürgen Habermas, focuses on the more negative uses of human rights language. He asserts that there are few things that are automatic or generally accepted in the notions of human rights and “common values.” Moreover, these values do not offer neutral and independent standards that can be simply transformed to “legal” criteria. Instead, these values should be regarded as a shared basis for political discussion in order to receive their meaning and to attain priorities. [*143]

In the last chapter of the volume, Christine Kaddous, examines the relationship between international and EU law and tries to determine whether the EU follows a monist or dualist system. For that puprose, Kaddous examines international agreements to which the EC is solely a party, mixed agreements and agreements to which one or more Member States are parties but not the Community. From a series of recent judgments it seems that the Court follows a very open approach concerning direct effect and interpretation since all the agreements entered into by the Community are binding on Community Institutions. Direct effect is accepted as long as the provisions of the agreements are clear, precise and unconditional. Nevertheless, there are two important exceptions with the GATT and WTO case law. On the one hand, the GATT was considered as too flexible to be given direct effect. On the other hand, the WTO agreements involved the principle of reciprocity which had to be taken into consideration. Moreover, the Council and the Commission need room to manoeuvre in their negotiations with the other WTO members. Kaddous concludes that it is difficult to classify the EU system either as a monist or as a dualist system.

The book certainly succeeds in its aim to examine the main norms and principles of the EU external relations law. It provides an indispensable background for any thorough study of an area of EU law that has emerged over 50 years of Treaty-based and judicial development. It exemplifies the cross-pillar legal complexities by providing many concrete examples based on recent case law. It is a book that can be highly recommended to EU law specialists, as well as to lawyers and academics who want to contribute to the ongoing debate about the constitutional issues of EU foreign relations. Nevertheless, a solid legal background is needed for somebody to really enjoy the book.

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© Copyright 2009 by the author, Angelos M. Syrigos.

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THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND

by Barry Alan Shain (ed). Charlottesville: University of Virginia Press, 2007. 352pp. Cloth $45.00. ISBN: 9780813926667.

Reviewed by Paul A. Passavant, Department of Political Science, Hobart and William Smith Colleges. Email: Passavant [at] hws.edu.

pp.136-138

From the 1980s through the 2000s, scholars of political and legal theory, as well as those interested in Law and Society, have been preoccupied by debates over rights. Liberal theorists emphasize the value of legal rights, while communitarians emphasize the fragmenting or alienating aspects of rights claims. Critical legal studies argues that rights are inadequate to justice, while approaches more indebted to Michel Foucault or Jacques Derrida find that, in the context of a liberal legal order, the discourse of rights is open to political struggle and that the underprivileged might be able to frame their grievances within a discourse of rights in order to utilize a rhetoric in which their claims to justice could be comprehensible, and seem valid, if not compelling. Studies in the Law and Society field divide over whether legal rights demobilize social movements or whether they have the potential for facilitating social movements oriented towards greater social equality. More recently, Law and Society scholarship emphasizes that a language of rights can be just as useful to right wing social movements today as it was to more liberal social movements in the 1950s-1970s.

Many of these interventions, however, take for granted that the United States has always had a liberal or “Lockean” political or legal culture, and that this is a culture of individualism. American historians have troubled such assumptions by returning to the late colonial and founding period in American history to rediscover influences from the Scottish Enlightenment or civic republicanism. THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND, contains essays, organized more or less historically, from scholars who have added to our understanding of rights in American history and American political thought in especially significant ways over the last thirty years. Its main strength is that it contains exemplary essays from those whose contributions have spanned multiple volumes. Here, in one place, the reader can find an essay that seems to capture a scholar’s most important findings over the course of a career – such as John Philip Reid’s contribution discussing the importance of the British Constitution and the rights of Englishmen to late colonial and early revolutionary struggles.

This collection includes scholars of the revolutionary or founding period who bring their great breadth and depth of knowledge regarding these eras to bear on a particularly specific aspect of rights. Through this focused inquiry, they unpack late 18th century America as a political culture unleashing the potential for future political and legal struggles over rights. Jack Rakove’s [*137] essay, for instance, describes the dilemma of declaring rights the framers faced since any declaration at that historical moment risked both later interpretive ambiguity and risked limiting, unintentionally, rights later generations might find necessary (Thomas Jefferson’s view was that half a loaf was better than none). Gordon Wood’s contribution shows that rights have existed within a variety of political or legal orders and have become reinscribed within new political settings. The medieval king had a right to govern, and the English had their feudal rights, but over the course of the 17th century, rights came to be understood as something to be held against the monarch while Parliamentary sovereignty was understood to be the protector of the people’s rights. The American experience grew out of a tradition of rights claims against a monarch, but after the experiment with state sovereignty under the Articles of Confederation, republicanism developed, in the American context, a recognition that legislatures and executives, though agents of the people, might also threaten the rights of the people as monarchs once had.

Many of the contributors to this volume explore the rhetorical flexibility of rights as a political or legal discourse. Rights cannot be easily controlled by elites and can enable the politicization of conditions from below. Daniel Rodgers’ chapter, for example, shows how, immediately after the Declaration of Independence, rights talk reflected a “breathtaking inventiveness” (p.263). Moving from the late 18th to the early 19th century, then, Rodgers demonstrates that workingmen’s associations in the 1820s and 1830s took up the abstract phrases of the Declaration of Independence to argue against economic inequality, while the antislavery movement, and the women’s rights convention at Seneca Falls in 1848, followed suit, invoking their notions of inalienable rights against slavery and forced domesticity. American history has been constituted by multiple rights revolutions.

While many of the debates over rights during the 1980s and 1990s referred to rights talk as inherently individualizing if not atomizing, the benefits of a more historical approach to American political thought or legal controversy, as exemplified by Rodgers’ and Rogers Smith’s essays, complicates the communitarian critique. To be sure, as Rodgers notes, “rights do not exist outside a situation of real or potential antagonism,” since “to talk of rights has been to specify tyrannies” (p.276). Yet, the discourse of rights is more complicated than that. To speak of rights is to speak of “common possessions,” the “rights of the people,” and collective or corporate rights such as the “right to assemble, organize, worship, vote and strike.” Because a discourse of rights can be mobilized by such a variety of different interests, rights can help forge coalitions, political relations, or become constitutive of a particular collectivity or political identity. Situated historically, the political significance of rights is more than a “simple vehicle for possessive individualism” (ibid.).

This volume might have been improved through an editorial introduction specifying more explicitly the terms of historical debates regarding the revolutionary and founding periods, if [*138] not their stakes. Or, an editorial introduction might have brought some of the essays into critical dialogue with each other more explicitly. For example, in light of Rodgers’ essay describing numerous and frequent mobilizations of the rights of the Declaration of Independence, does it make sense to argue, as Barry Shain does, that Stephen Douglas may have gotten the Declaration “right,” and Abraham Lincoln may have gotten the Declaration “wrong,” when the latter argued that the Declaration’s Preamble, stating that “all men are created equal,” should apply to slaves of African origin (pp.118-119)? While some of the later chapters (such as those by Leif Wenar and Stephen Macedo, and the essay by Smith) do begin to create a dialogue among some of the essays, more might have been done in this regard through an introduction addressed more specifically to this purpose.

Although THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND, contains a number of essays devoted to questions of rights at the “founding,” “beyond” tends to get covered by essays devoted to a broad historical arc encompassing decades, if not hundreds of years. Perhaps, though, this just speaks to the need for additional volumes that might be addressed to the politics of rights in the 19th, 20th, and 21st centuries. In sum, students and faculty with interests in American political thought, legal history, the history of political ideas, and American political development will find value in this collection of essays devoted to the politics of rights in American history.

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© Copyright 2009 by the author, Paul A. Passavant.

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MUSIC AND COPYRIGHT

by Ronald S. Rosen. New York: Oxford University Press, 2008. 624pp. Paperback. $185.00/£102.50. ISBN: 9780195338362.

Reviewed by Irini Stamatoudi, LL.M, Ph.D, Athens, Greece. Email: stamatoudi [at] syrigos.gr.

pp.134-135

Copyright in itself is not an easy topic. It becomes even more difficult when one has to deal with the specialized area of music. Music is another kind of language, and in order for one to understand it in the context of law one has to be bi-lingual: s/he needs to understand both music and law to a considerable degree. The title of this book corresponds literally to what the book offers. It offers insights into music and copyright and merges them in an extremely talented way which allows the reader to focus on and understand the particularities of such an exercise as well as understand the journey a lawyer has to set off in order to reach the expected outcome. It also assembles and ‘codifies’ all important judgments referring to copyright and music, or copyright as such but which are relevant to music.

MUSIC AND COPYRIGHT, by Ronald S. Rosen, is essentially a book for US litigators. It is a detailed and thorough roadmap to litigation involving music infringement cases, as well as to cases dealt outside courts which can be solved through negotiations or arbitration. Rosen sets out with the basics, which turn out not to be so basic given the fact that structural notions, such as the idea and expression dichotomy, are not so clear when it comes to music. This book may also be of interest – to a lesser extent though – to other groups of people, such as record companies, songwriters or advertising companies, and in any case to academic researchers.

It is divided in 12 chapters. It is difficult for one to find any area of interest on the subject which Rosen does not touch upon. He starts with an introduction (referring to it as a prelude) where he gives some insights into the idea/expression dichotomy (he will come back to it in much more detail in Chapter 1) and the history of copyright. Chapter 2 presents an overview of the subject, and in particular an overview of basic issues, which could be regarded as blocks in the further building of his argument. Rosen discusses issues such as the lawyer’s mission, the idea/expression dichotomy, the distinction between protected and unprotected elements, expert testimony, defenses, lack of jurisdiction and others. Chapter 2 focuses on every detail of remedies (from actual damages and profits, to attorney’s fees and costs). In the same chapter the issue of arbitration is also discussed. Chapter 3 brings again into focus the idea/expression dichotomy and the distinction between protected and unprotected elements from another standpoint. There Rosen explores music as a language and its particular components. He assesses and presents what these components are and how they can be classified within the legal notions and structures of copyright. Once this is done, the lawyer can gain knowledge of whether a work is original and therefore [*135] protected by copyright or not. If a work is not protected by copyright, then no infringement could have taken place. Rosen explores the melody, harmony and rhythm. He examines the building blocks of music, such as the phrase, the motiv, the tempo, the meter and so on. He also looks into the scenes à faire, the musical forms and other building blocks of musical ideas and expressions. This chapter is the most challenging one. It is a chapter which is equally relevant for all those involved in authoring, publishing or exploitation of music. It is even more useful for those litigating in this area, irrespective of jurisdiction. It is in this part of the book that the reader realizes that law alone cannot serve the needs of litigation in the area of music, and that law and music should interact.

Chapter 4 deals with the very start of a litigation process. Rosen looks into issues such as the initial meeting with the client, the demand letter to the defendant and the response, the role of the lawyer, ‘exploring’ of the client and his demands, the pleading, litigation plan and so on. He even provides sample documents to help lawyers and makes practical suggestions with regard to approaching both the client and the case. No matter how well trained a lawyer is, s/he cannot be a musicological expert. And the issue of an expert is rather important in this kind of litigation. This forms the subject of Chapters 5 and 6. Rosen discusses issues such as how one chooses an expert, what is expected by her/him, how s/he can help the process, how a lawyer should cooperate with her/him, and so on. Chapters 7 and 8 deal with one of the cornerstones of US copyright law: the fair use doctrine. The fair use doctrine is important not only because, if it is proven that it applies in a case, infringement cannot be established, but also because the requirements for its application are not set in stone and differ from case to case. This makes it even more difficult when it does apply to music. Rosen decodes all most relevant case law and helps the reader to find a way through it with step-by-step guidance. Chapter 8 deals with more specialized issues, such as parody, satire and quotation. Chapter 9 discusses the basic discovery tools used in American litigation, i.e. written interrogatories, requests for admissions, requests for production of documents and deposits upon oral examination. Chapter 10 explores the history and evolution of summary judgment in the area of music essentially though case law. Chapter 11 explains all the phases of a trial. Chapter 12 deals with the impact of new technology of music and copyright. In particular, Rosen discusses secondary liability, file sharing in conjunction with secondary and direct liability and the role of digital rights management. At the end he presents some thoughts with regard to the evolution of technology and its impact on music and copyright.

This book contains it all – case law, practical suggestions, sample documents, specialized litigation tips, thorough research, reflected experience and thoughts on new technologies. I think it would only be fair for one to allege that apart from the fact that this book presents a thorough, exhaustive and very well researched work, it could also be referred to as a bible for US litigators in music and copyright.

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© Copyright 2009 by the author, Irini Stamatoudi.

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THE INTERNATIONAL CRIMINAL COURT AND NATIONAL JURISDICTIONS

by Mauro Politi and Federica Gioia (eds). Aldershot, UK: Ashgate, 2008. 192pp. Cloth. £55.00/$99.95. ISBN: 9780754674368.

Reviewed by Edward Gordon, Palo Alto, California, Honorary Vice President, International Law Association (American Branch). Email: egordon23 [at] gmail.com.

pp.129-133

These papers, and an accompanying discussion of the issues they raise, are from the third in a series of colloquia dealing with the International Criminal Court (ICC) organized by the Faculty of Law at the University of Trento (Italy) and funded by the Italian government. All but two of the papers presented here are in English, as is the discussion.

Unlike the earlier colloquia (Politi and Nesi 2001; Politi and Nesi 2004), which were held before the ICC had become fully operational, this one, in May 2007, focused upon the difficulties the ICC is encountering in practice in balancing the ambitious objectives expressed in its constituent instrument (the “Rome Statute”) with what appears to be considerable hesitation among some state parties, as well as non-party states, in cooperating fully in its implementation.

The principal organizing theme of the Colloquium, and that of a veritable spate of other new books dealing with the ICC (e.g., Stahn and Sluiter 2009; El Zeidy 2008; Schabas 2007; Brown 2007) is complementarity – a diplomatic dilly of a term that offers the reassuring image of mutually reinforcing regimes and responsibilities, national and international, rather than a zero-sum game infought by competitive bureaucracies. Like pursuit of excellence in academic mission statements, complementarity helps bring about broad acceptance of obligations being undertaken precisely because it obscures their nature. This proved critical to gaining support when the Rome Statute was in negotiation because, despite being promoted attractively as a post-Cold War campaign to deny impunity for the commission of globally condemned crimes, the existence of a permanent international criminal court of potentially unlimited jurisdiction represents a serious challenge to jealously guarded traditions of sovereign prerogatives over crimes taking place within national territory.

The views expressed in the Colloquium tend to assort themselves according to two different mind sets. One, reflecting the attitude of speakers closest to the ICC, or most willing to accord it some latitude in starting off on its mission, holds that parties to the Rome Statute have been altogether too sluggish in carrying out their part of the bargain – that is, in assisting the ICC in its investigations of situations, developing trial-worthy evidence and apprehending the bad guys, as well as in revising their own laws to remove legal impediments to cooperation. The other, more concerned with the ICC both as a bureaucracy in itself and as a vehicle for the political will of the states that seem to be exerting undue influence in its [*130] operation, is critical both of the Rome Statute itself and of the ICC’s interpretation of it so far.

One illustrative bone of contention is the application of the Statute’s standard of gravity as a criterion for assessing the suitability for prosecution by the ICC itself of any alleged crime. Employing a numbers count, says William Schabas (Belfast) (Not all those participating in the Colloquium are identified by institutional affiliation, presumably because they were well-known to the audience), referring to using the number of innocent civilians killed as a criterion for prosecution by the ICC, only reinforces the likelihood that groups rebelling against a government are more likely to be prosecuted than are an incumbent regime’s own forces or ones loyal to it. Incidentally, Schabas, who appears to be reserving his enthusiasm for the ICC until it shows its true colors, finds his remarks here characterized by one of the Colloquium’s organizers as “uncomplimentary” to complementarity, a cute play on words that sounds like what The Wizard would say about Toto.

The ICC should learn from the Nuremberg example, says Maria Chiara Malaguti, and concern itself only with individuals who have played a major role in the commission of internationally recognizable crimes, leaving the prosecution of lesser figures to national authorities. In its initial prosecutions, for reasons of political expediency (i.e., to counter complaints that it was moving too slowly), the ICC seemed to ditch gravity as a criterion in favor of earning some quick institutional credits.

Another area of dispute is whether, or to what extent, the obligation of states to cooperate with the ICC extends to the sharing of intelligence, even when, say, a state regards such intelligence as politically sensitive and sharing it with an international agency as not in its overall best interest, or where it regards sharing intelligence gathered through national technical means as incompatible with civil rights protected under its own law. States’ apprehension along both lines is scarcely alleviated by remarks such as those of ICC Judge Hans-Peter Kaul, who not only urges member states to publicly support “the Court’s general or situational policies” – which seems to call upon states to act as unquestioning cheerleaders – but also calls upon all states, whether or not party to the Rome Statute, to “provide intelligence, satellite images, analytical support and communications.” “[J]ust imagine for a moment,” adds Judge Kaul, “how it would help the Prosecutor if US satellite images taken over Darfur would be available to him.”

That Judge Kaul nowhere refers to the interests of defendants or persons under investigation wails like a police siren to defense counsel, especially ones trained in the procedures of Anglo-American criminal law, and only serves to reinforce the impression that the ICC’s Prosecutor and judges are all but joined at the hip in attitude, zeal for prosecution and assumption of the guilt of the accused. For reasons that are themselves suspect, some of the states that dominated the drafting of the Rome Statute maneuvered to reject every effort to assure separation of the roles of accuser and judge. Its procedures contain no equivalent, for instance, to the role of grand and trial juries, and fail to provide for appeals from adverse judgment to a genuinely independent appellate body. [*131] No American trial lawyer is apt to be comfortable with the extent to which persons prosecuted by the ICC are at the mercy of a handful of people who know and work in close proximity with each other every day, whose elections, appointments and careers are intimately intertwined in institutional politics, and who consequently have little or no motivation to upset one another. It is the continental European model, with scant improvement of its known deficiencies, and it jars the spirit underlying, as well as the specific content of, the American Constitution’s Bill of Rights. Judging from its use in Europe and elsewhere, it all but invites abuse in pursuit of personal ambitions and political agendas.

Only two of the papers refer to defendants’ civil rights at all. An otherwise enthusiastic paper by Annalisa Ciampi does note the vagueness of references in the Rome Statute to the “human rights” of subjects of investigations and defendants. Interpretation and application of the Statute “must be consistent with internationally recognized human rights,” the Statute says, for instance, fully cognizant of the tensions between human rights and civil rights activists that precluded provision for more specific guarantees. A suspect can only be arrested “in accordance with the proper process” – ditto that. Federica Gioia’s paper asks whether prosecution is subject to any time limits, such as routinely provided for in national criminal law statutes, but omitted in the Rome Statute.

An adjacent but far more politically potent issue is raised by Theodor Meron (New York University), a judge on the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY), in his introductory remarks as moderator of the second day’s discussion. Most of the individuals prosecuted so far by the ICC have been Africans, and much of its investigatory efforts have been focused on situations in Africa. This pattern “is bound to lead to a groundswell of resentment,” Meron says (tactfully using the subjunctive). What is worse, although Meron himself diplomatically refrains from saying so, is the ICC’s insensitivity to the resentment and to the likelihood that Africans will come to see the ICC as an instrument of neo-colonial domination of African political development. Incredible, even after being raised by Judge Meron, the subject seems to have been all but ignored by the participants, at least on the record.

What are the ICC’s European members and academic constituencies thinking, for heaven’s sake? Can they really be oblivious to how quintessentially European an institution they have created? Not only are the Court’s procedures mere replicas of continental European models; not only is the ICC physically located in Europe, indeed in the very city (The Hague) that symbolizes the international law prevalent during the heyday of colonialism; not only, at least at the time of the Colloquium, were a disproportionate number of the ICC judges themselves European nationals; but on top of everything else, for no more profound a reason than bureaucratic expediency the ICC spent its first years focusing almost exclusively on situations in Africa. Gilbert and Sullivan, anyone? [*132]

Some of the papers address sources other than the ICC’s own initiatives from which its prosecutions may emanate. Member states are authorized to refer crimes to the Prosecutor, but in so doing are they not virtually certain to favor their own armed forces and incumbent officials over others? The UN Security Council is authorized by the Rome Statute to refer situations to the ICC, too. But is the Security Council’s political role – i.e., its responsibility under the UN Charter to maintain international peace and security – altogether compatible with the detachment from politics normally hoped for in criminal investigations and prosecutions? And, given the Security Council’s clout, is its involvement in the ICC’s investigations and prosecutions really consistent with complementarity and, for that matter, with the UN Charter’s prohibition of UN interference in matters essentially within the domestic jurisdiction of states? Finally, since even without authority from the Rome Statute the Security Council can establish ad hoc tribunals to deal with specific situations – and, as noted, has already done so – in what circumstances should it favor one approach over the other? Although alluded to, these more or less fundamental questions get short shrift in the Colloquium.

Of greater interest to participants, it seems, is to what extent the willingness or ability of local authorities to investigate a situation and proceed to prosecution should weigh in the ICC’s own determination to do so – the buzz words here being substantial collapse or unavailability of a state’s own criminal justice system. What weight should be given to the existence of an ongoing civil insurrection, say, or periodic interruptions to civil order? Under what circumstances should the prospect that its investigations or prosecutions will exacerbate existing political instability, and result in more crime and more victims, outweigh the ICC’s goal of eliminating expectations of impunity for crimes?

Not discussed, though, is why prosecutors, or any specialized UN agency, should be accorded discretion to make these political judgments in the first place. The issue arises less severely when the Security Council establishes ad hoc tribunals, such as the ones for the former Yugoslavia and Rwanda, for, in these cases, as with the Nuremberg prosecutions, the most critical political determinations are made by political bodies, not left to prosecutors.

Listening to the Colloquium with one’s proverbial third ear, it is not difficult to sense that a rivalry is developing beyond the one anticipated from the outset between the ICC and national criminal justice bureaucracies – that is, one between the ICC and the several ad hoc international criminal tribunals the UN Security Council has created. In fact, personal as well as institutional rivalries are becoming all too apparent among all extant international adjudicative tribunals, criminal and non-criminal alike. For reasons not yet fully explained, these have been springing up like weeds in the past decade or so – the currently preferred reference being to proliferation. Comments from, or enthusiastically encouraged by, members of the International Court of Justice have taken to warning ominously, for example, that proliferation threatens the authority and finality of interpretations and decisions made in the name of [*133] international law when there is only one international court, or at least one high court. Applied to too many new products, the brand name international law itself is likely to lose something of its market value. And so on.

Why proliferation – and why now? Take your pick: (1) because globalization has intensified not only the interaction of peoples across national boundaries, but personal identification with this interaction as well; (2) because the world community is no longer as tolerant as it had to remain during the Cold War of armed conflict as a justification for outrageous abuses of human rights. But then again maybe (3) because the word-concepts international law and global justice provide a marketable cover for that which, on closer analysis, looks remarkably like old-fashioned power politics, an alternative to military resources in pursuit of global political clout; or even (4) because international law, especially its humanitarian and criminal aspects, has become a cottage industry in a way that, if it involved less upstanding folks, could easily be confused with career profiteering. Didn’t someone – Galbraith? – once say that, if nothing else, economics provides full employment for economists?

Besides, even in the absence of smoking gun evidence, it is tempting to wonder if some in the international community would like nothing better than to assure that the authority to make decisions in the name of international law is dispersed among many courts, rather than monopolized by a single panel or two. Separation of the power to originate, and to compel obedience to, standards of legitimacy may not be entirely unintended, after all, or, even it is, be entirely unwelcome.

REFERENCES:
Brown, Chester. 2007. A COMMON LAW OF INTERNATIONAL ADJUDICATION. Oxford: Oxford University Press.

Politi, Mauro, and Giuseppe Nesi (eds). 2001. THE ROME STATUTE OF THE CRIMINAL COURT – A CHALLENGE TO IMPUNITY. Aldershot: Ashgate.

Politi, Mauro, and Giuseppe Nesi (eds). 2004. THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION. Aldershot: Ashgate.

Schabas, William. 2007. AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT. Cambridge: Cambridge University Press.

Stahn, Carsten, and Goran Sluiter (eds). 2009. THE EMERGING PRACTICE OF THE INTERNATIONAL CRIMINAL COURT. Leiden, The Netherlands: Martinus Nijhoff.

El Zeidy, Mohammed M. 2008. THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL CRIMINAL LAW. Leiden, The Netherlands: Martinus Nijhoff.

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© Copyright 2009 by the author, Edward Gordon.

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FREE EXPRESSION AND DEMOCRACY IN AMERICA: A HISTORY

by Stephen M. Feldman. Chicago: The University of Chicago Press, 2008. 544pp. Cloth. $55.00. ISBN: 9780226240664.

Reviewed by Jerome O’Callaghan, Associate Dean, Arts and Sciences, State University of New York at Cortland. Email: jerome.ocallaghan [at] cortland.edu.

pp.126-128

Stephen Feldman has created a history of free expression and democracy that describes and analyzes the mainstream of American history through two ever-present and complementary traditions: one of suppression and one of dissent. From the War of Independence to the War on Terror, everyone who matters is engaged in, or by, this tug of war. Presidents, political theorists, judges, and the public, support dissent and then worry that it has gone too far. It is no surprise that in 200 years of American history freedom of expression came to mean different things to different generations, but if there is one trend that you can count on it is this: in times of war the tradition of suppression is in the ascendant. Feldman adds to the basic duality of his suppression-dissent framework an overarching theory of American political history – i.e., the transition from a republican democracy to today’s pluralistic democracy. The result is not a simple four by four matrix; in Feldman’s hands we have a thorough and engaging 470-page treatise (plus 60 pages of footnotes).

Spread over thirteen chapters Feldman’s review begins with a nod to English and colonial traditions and proceeds to the Civil War. This segment (five chapters long) establishes the basic characteristics of republican democracy: the importance of virtue, the primacy of the people’s sovereignty and the pursuit of an objective common good (which, in turn, serves as a key limitation on government). Revolutionaries asserting a freedom to dissent (in other words, a freedom to promote treason against the crown) became in short order legislators passing the Alien and Sedition Acts. There lies the duality that is the theme of this book.

The next segment, covering only three chapters, is devoted to the difficult and complex transition from the Civil War to the great Depression (corresponding to the three regimes described by Bruce Ackerman in WE THE PEOPLE). Immigration, industrialization and urbanization permeate upheavals in American politics; they also help reconfigure constitutional priorities. This is the start of the evolution to pluralist democracy where government’s role is to provide a neutral forum for the contest between multifarious groups and interests. At this stage the part played by the Supreme Court in explicating freedom of expression becomes prominent. We learn too that the Court, and the judiciary in general, were slow to adapt to these changes. (For more on that, read Eugene Debs’ Canton speech in full. Then read the Supreme Court opinion upholding his ten-year sentence. It is a sobering contrast.)

The next four chapters examine contemporary pluralist democracy (over [*127] the last 80 years) and delve more into the highlights of free-expression case law. The final brief chapter is devoted to “open questions” – these focus more on First Amendment doctrine than on the larger issue of democracy’s decline/revival in American culture. In fact the focus on doctrinal techniques used by the Supreme Court lacks the clarity evident elsewhere in this text, and suggests that the author cannot quite see the forest for the trees.

Nevertheless, given the enormity of this undertaking, Feldman has done a remarkable job. This text is virtually jargon-free and the lines of thought are kept largely untangled. Even when explaining some of the Supreme Court’s more arcane doctrines, Feldman’s writing is clear and concise. Fans of free-speech case law, in its unadorned casebook style, will be frustrated. It takes 200 pages to get to Oliver Wendell Holmes, and that is just for the dissent in LOCHNER. Though he is attentive throughout to the work of political scientists, judges, and lawyers, this is a historian’s book through and through. Some readers may stumble over the back and forth involved in his treatment of democratic pluralism. Depending on whether the context is judicial review (Chapter 10), the Supreme Court on free expression (Chapter 11), or, the traditions of dissent and suppression (Chapter 12), you will find yourself immersed in the same timeframe on three different occasions. For example there is a lot to be said, in the suppression/dissent tug-of-war vein, on the abrupt reversal that occurred between the GOBITIS decision in 1940 and the BARNETTE decision in 1943. In Feldman’s treatment, the contrast between the two cases is diluted; the cases are dissected in piecemeal fashion, and spread across three chapters.

Nevertheless the attentive reader will find a treasure of free expression nuggets in this text. There are the great cases, from ZENGER to SCHENCK, from MASSES PUBLISHING to COHEN’s infamous jacket. There are the wars too, from Independence, to Civil War, to the world wars, to Vietnam. Then there are the leading lights in developing and challenging free-expression doctrine: Hamilton and Holmes, Chafee and Hand, Martin Luther King and Eugene Debs. Let us not forget Joe McCarthy, Anthony Comstock, and J. Edgar Hoover, three villains in what might be called the “Suppression Hall of Fame.” Feldman is particularly persuasive on the tentative role played by Holmes in liberalizing free speech doctrine – to a large extent the gains made under his famous “clear and present danger” test were the work of Chafee and Brandeis. More often than not Holmes held up the rear.

Revisiting the twentieth century evolution of free-expression doctrine reminded this reader of the staggering impact of the era marked by the world wars. Here we have the transition from LOCHNER to WEST COAST HOTEL, the court-packing plan and footnote #4, GOBITIS and BARNETTE. We also have Justice Holmes upholding convictions of minor dissidents in 1919 and coming to the defense of communist speech in 1925. Another measure of the change in this period is the widespread suppression of dissent in the 1916-25 era, followed by the selection in 1941 of a Solicitor General who was a member of both the ACLU and the NAACP. (Lest we see this as an unequivocal [*128] victory for the tradition of dissent, Feldman is quick to remind us of that the Solicitor General went on to defend Japanese relocation camps).

Feldman is right on the underlying tug of war between suppression and dissent in American culture. In his later chapters he cites a variety of public opinion polls showing American intolerance of dissent. He reminds us that in 1919 a young J. Edgar Hoover worked on compiling a list of 200,000 “political heretics” (p.254), at about the same time as the Department of Justice initiated 2,000 prosecutions for seditious libel (p.251). Feldman is also right to point out that political parties trade on these traditions for electoral advantage. Consider this speech by a Republican nominee for high office, castigating the Democratic party establishment:

They are all cynics who scoff at our simple virtues, particularly those simple virtues that you and I learned here in . . . . They think that the people and most of us are too dumb to understand. Their idea is that they, the intelligentsia, can govern us . . . . Give our country back to us. It belongs to us. We want it.” (p.327)

Was that Sarah Palin, John McCain, George W. Bush, Richard Cheney, or Ronald Reagan? The answer is none of the above; it was Wendell Wilkie speaking in 1940. Maybe recycling is one those great American political traditions.

Feldman is to be congratulated for his rigorous blending of judicial history, American history, and constitutional jurisprudence, all the while keeping dissent and suppression at the fore. For this reader, the lesson was clear. In a free society one function of law is to elevate speech in pursuit of the common good. Another function of law is to suppress speech in the pursuit of the common good. Feldman demonstrates the inevitability of that paradox; a comprehensive review of free expression in America should do no less.

REFERENCES:
Ackerman, Bruce. 1991. WE THE PEOPLE VOLUME 1: FOUNDATIONS. Cambridge: Harvard University Press.

CASE REFERENCES:
COHEN v. CALIFORNIA, 403 U.S. 15 (1971).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

MASSES PUBLISHING CO. v. PATTEN 244 F. 535 (S.D.N.Y. 1917), rev’d 246 F. 24 (2d Cir. 1917).

MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310 U.S. 586 (1940).

NEW YORK v. JOHN PETER ZENGER (1735). Available at http://www.law.umkc.edu/faculty/projects/ftrials/zenger/zenger.html

SCHENCK v. U.S., 249 U.S. 47 (1919).

WEST COAST HOTEL v. PARRISH, 300 U.S. 379 (1937).

WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 (1943).

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© Copyright 2009 by the author, Jerome O’Callaghan.

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THE HOUSEHOLD: INFORMAL ORDER AROUND THE HEARTH

by Robert C. Ellickson. Princeton, Princeton University Press, 2008. 272pp. Cloth $24.95/£17.95. ISBN: 9780691134420.

Reviewed by Patricia McGee Crotty, Department of Political Science, East Stroudsburg University. Email pcrotty [at] po-box.esu.edu.

pp.124-125

This is a brief work that makes innovative contributions to a topic that political scientists rarely investigate. Robert C. Ellickson, a professor of property law at Yale University, dissects the household for us. This is an important topic because we all live in households which serve as the basic building blocks of political life. However, relationships within the household rarely receive academic scrutiny. Ellickson unpacks the household by using legal, economic, and sociological analysis. This approach reveals how much the use of a mixed methodology can enrich the understanding of political phenomena. Another strength of this work is its meticulous documentation. Although it contains some explanatory footnotes, the major references are contained in its endnotes. This makes it much easier to read than most legal works whose footnotes often take up more page space than their text.

Ellickson notes that his analysis pertains primarily to households in liberal societies that allow freedom of entry and exit as well as private property in capital, land and labor. A major criticism of this work is that it does not pay sufficient attention to the writings of feminists who claim that it is exactly these conditions that have helped foster patriarchy, create norms that are beyond the reach of the law, mask violence in the home, diminish the rights of children, and increase the subjugation of women. Although Ellickson acknowledges these criticisms, he spends little time explaining how these situations can be remedied within liberal societies.

The first two chapters clarify how households differ from marital and familial arrangements and enumerate the possible combinations of owners and occupants that can exist within individual households. Ellickson creates a model household containing five individuals and uses this model throughout the text to illustrate his major points. This makes his analysis much broader than economists’ game theoretic models that usually focus on two-person games. He also goes beyond traditional economic analysis to account for the influence of love and altruism in determining relationships within the household.

This theme is the focus of Chapter 3 which analyzes the calculations that govern the freely chosen relationships that usually exist in households. It is here that more attention should be paid to the physical safety and financial concerns of women and children in households where intimacy does not lead to altruism or peaceful bargaining. By using examples of households across time and space, the following two chapters review the challenges that large, [*125] voluntary communal societies face and explain why the size of most households has declined over time.

The analysis in Chapters 6 and 7 gives a new meaning to the term, ‘home economics.’ Here, Ellickson builds on Ronald Coase’s theory of the firm and uses transaction cost analysis to examine the challenges of household ownership and the interactions that occur among household occupants. He illustrates how ownership offers decisive transaction cost advantages and how transaction costs rise as the number of household members increase.

In Chapter 8, Ellickson coins the term, ‘homeways,’ to encompass the household-specific norms that serve as the basis of internal household governance. However, his discussion of midgame and endgame strategies that household members adopt and their concomitant transaction costs rarely focuses on household situations that involve dependent children and vulnerable adults who do not have the option to exit the arrangement. The paterfamilias model this chapter portrays has been particularly offensive to feminists.

This section of the text also investigates the interaction between homeways and government policy as well as the extent of privatization that exists in household spaces. Ellickson believes that the norms established by household members through the medium of gift exchange and oral contracts are preferable to norms government imposes. Legal rules usually do not affect the development of homeways until households dissolve. Although Ellickson reviews how government programs can shape the household, future studies could also focus on explaining how households can help shape the government policies that affect them.

In his concluding chapter, Ellickson reiterates the importance of saving on transaction costs in governing the household and argues that a more complete understanding of household relationships would exist if the theory of the firm were better understood. Through its methodological synthesis of economic with legal and sociological analysis, this text serves as an important primer on household structures in liberal societies.

REFERENCES:
Coase, Ronald H. 1937. “Nature of the Firm.” 4 ECONOMICA 386-405.

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© Copyright 2009 by the author, Patricia McGee Crotty.

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LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION

by Ann Southworth. Chicago: The University of Chicago Press, 2008. 272pp. Cloth. $50.00. ISBN: 9780226768335. Paper. $19.00. ISBN: 9780226768342.

Reviewed by Joshua Wilson, Government Department, John Jay College, CUNY. Email: jcwilson [at] jjay.cuny.edu.

pp.120-123

Much of the scholarship on law, politics, and social movements has dealt with progressive causes and the political Left. Recently, however, some scholars have begun to focus their attention on the other end of the political spectrum. Some of this work concerns the Right’s efforts to develop political infrastructure (e.g. Teles 2008), while others have looked at Conservatives’ use of litigation and rights discourse as political tools (e.g. Brown 2003; den Dulk 2006; Dudas 2005; Moore 2007). Ann Southworth’s LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION is among the most recent additions to this growing literature.

As the title suggests, Southworth looks at issues related to both infrastructure development as well as the “conservative coalition’s” use of litigation as a political tool. The book’s main task, however, is to describe who the various lawyers within the broader conservative coalition are (e.g. where they went to school, their socio-economic status, what motivates their work, and so on), as well as what connects and separates the various groups that these lawyers represent and to which they belong. As such, the book puts a conservative spin on the intersection of the cause lawyering and social movement literatures.

The conservative coalition that Southworth studies includes social conservatives, libertarians, business advocates, and “mediators.” The first three of these groups consist of six somewhat distinct conservative “constituencies” – religious conservatives, anti-abortion activists, order maintenance groups, anti-affirmative action activists, libertarians, and business groups. Southworth’s final category, mediators, includes organizations that are somewhat separate from the other members in the conservative coalition. Mediators are multi-issue organizations that seek to create and maintain ties across the spectrum of specific conservative issues and advocacy groups.

The substance of Southworth’s book begins with a compact overview of the developmental history of modern conservative legal advocacy – from the 1980 Horowitz Report’s call for Conservatives to respond to the Left’s grip on public interest law and the wider legal establishment, through to the creation of the Federalist Society and the proliferation of highly specialized conservative public interest law firms. While a single-chapter synopsis of the development of conservative legal and political infrastructure obviously cannot match the richness found in Steven Teles’ book-length account of the subject, Southworth provides a solid [*121] summary that can be useful for teaching or for those otherwise seeking a fast introduction to the issue (Teles 2008). This being said, it should be noted that Southworth’s brief account provides a broader scope than Teles’ given that she includes information about the Social and Religious Conservative elements of the conservative coalition that Teles excludes from his book.

With the context set, the next five chapters comprise LAWYERS OF THE RIGHT’s main contribution by delving into the descriptive details that open the “window into the world of lawyers for conservative causes and probes the little discussed cultural conflict among them” (p.1). Southworth begins this section by asking “whether lawyers of the conservative coalition are likely to contribute to mutual understanding and cooperation within the alliance or whether disagreements and dissimilarities among them make them unlikely to build consensus” (p.42). The short answer to this question is that the lawyers, like the constituencies they represent, are divided by social space and policy goals.

Chapters Three and Four use data about law schools attended, practice location and setting, religion, funding sources, motivation, and professional identity to illustrate the social differences between the various groups of lawyers. Chapter Five begins by continuing this demographic data argument by applying generational grouping to the various lawyers, but it also transitions to investigating other potential substantive or issue-based bridges for the gaps exposed thus far. The issue-based bridges examined range from illuminating to predictable. For example, the finding that the lawyers of the conservative coalition “were generally united in their disapproval of liberals” is to be expected (p.99). In contrast, the disharmonies around the specifics regarding the desire to reshape the Federal bench and other issue-items, as well as the shared “dissatisfaction with what they viewed as the pillars of the liberal legal establishment” were quite compelling (p.116).

Chapter Six is possibly the most interesting in the book. The data from the preceding three chapters expose multiple rifts that lead one to question the usefulness of collectively identifying the groups as being part of a conservative coalition or movement. In the words of one interviewee, “you quickly find out that [conservative public interest law groups] are really autonomous and inward looking. And there’s not a lot of [collaboration]” (p.121). Chapter Six, however, with its focus on mediator organizations provides the support for the claim that these groups are still part of a common movement.

Southworth uses the Heritage Foundation and the Federalist Society to illustrate how mediator organizations “seek to promote communication among the lawyers, to mobilize lawyers’ participation in conservative and libertarian causes, and to elevate legal over extralegal strategies” (p.126). Mediator groups do this in part by adhering to the message of the Johnny Mercer song “Ac-Cent-Tchu-Ate the Positive.” By “promoting cooperation and suppressing conflict within the conservative movement, primarily by convening meetings and fora of diverse [conservative] activists,” these groups [*122] have become the center that holds the coalition together (p.127). This point is clearly illustrated by Southworth’s graphic displays of communication and membership data. While these mediator organizations are studies here as well as in Teles’ recent work, their obvious importance makes them worth further study.

In spite of the connective role played by these mediator organizations, the preponderance of Southworth’s data, even within this chapter, argue that the groups remain divided. The most significant gap exists between the Social Conservatives on the one side, and the Libertarians, Business Conservatives, and Mediator groups on the other. This finding is illustrated in the previous chapters and is repeated in Chapter Seven’s observations regarding the coalition members’ differing views on the efficacy of litigation and their corresponding use of lawyers. Given the repeated illustrations of the gaps between Social Conservatives and the rest of the conservative coalition, the need to learn more about the separate social networks and other institutional infrastructure used by “religious people and the lawyers who work for them” is exposed (p.145).

By concentrating on opening a “window into the world of lawyers for conservative causes and prob[ing] the little discussed cultural conflict among them” (p.1), Southworth’s book provides interesting information about the types of lawyers within the coalition, but it largely avoids developing the subtitle of the book – PROFESSIONALIZING THE CONSERVATIVE COALITION. As Southworth states in the introduction, her “primary purpose in writing this book was to portray lawyers of the conservative coalition rather than to evaluate their causes” (p.4). As a result, she is describing who the lawyers of the right are, rather than how the conservative movement came to use, or prefer using, lawyers and other professionals as opposed to nonprofessional grassroots activists.

Sticking to the descriptive task, Southworth notes but does not develop many interesting points and arguments. For example, Southworth posits in the concluding chapter that “the very lawyer tendencies that have been decried by critics on the left – their [i.e. lawyers’] propensity to channel energy into law-related strategies and to promote ties among elites at the expense of the rank and file – may actually have contributed to the conservative movement’s success” (p.184). This is a very compelling thesis and one that would advance the study of lawyers in social movements generally, as well as the professionalization of this movement specifically. The development of this thesis is, however, beyond the intended descriptive scope of Southworth’s project, and therefore provides fertile ground for future work that applies her observations.

Southworth elsewhere points to a collection of specific cases where the branches of the conservative coalition have publicly “clashed in high-profile litigation” (p.178). The most developed argument in the book is that the data illustrate that tensions and divisions exist within the conservative coalition. The binary classifications of liberal and conservative are so broad, however, that one should assume that diversity, and thus tension, exists within them. The argument and the reader would benefit [*123] from a more in-depth exploration of one or two of the specific cases that Southworth identifies. Such an addition would illustrate the potential seriousness of the rifts within the conservative coalition, as well as the work that mediator organizations perform in order to maintain the coalition.

To conclude, Southworth’s book is valuable in that it highlights the fault lines that exist within the conservative coalition, begins to explore the role of lawyers within the conservative movement, and identifies, but does not fully explore, many interesting points about the conservative legal movement. In doing so it pushes the field further and identifies the avenues along which it can continue to develop.

REFERNCES:
Brown, Steven. 2003. TRUMPING RELIGION: THE NEW CHRISTIAN RIGHT, THE FREE SPEECH CLAUSE, AND THE COURTS. Tuscaloosa: University of Alabama Press.

den Dulk, Kevin. 2006. “In Legal Culture, But Not Of It: The Role Of Couse Lawyers In Evangelical Legal Mobilization.” In A. Sarat and S. Scheingold (eds). CAUSE LAWYERS AND SOCIAL MOVEMENTS. Stanford: Stanford University Press.

Dudas, Jeffrey. 2005. “In The Name Of Equal Rights: ‘Special Rights and the Politics of Resentment in Post-Civil Rights America.” 39 LAW AND SOCIETY REVIEW 723-758.

Moore , R. Jonathan. 2007. SUING FOR AMERICA’S SOUL: JOHN WHITEHEAD, THE RUTHERFORD INSTITUTE, AND CONSERVATIVE CHRISTIANS IN THE COURT. Grand Rapids: Wm. B. Eerdmans Publishing.

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

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© Copyright 2009 by the author, Joshua Wilson.

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TRANSITIONAL JUSTICE FROM BELOW: GRASSROOTS ACTIVISM AND THE STRUGGLE FOR CHANGE

by Kieran McEvoy and Lorna McGregor (eds). Oxford, UK, and Portland, OR: Hart Publishing, 2008. 233pp. Paperback. £30.00/$63.00. ISBN: 9781841138213.

Reviewed by Lesley A. Jacobs, Law & Society Program, York Centre for Public Policy & Law, York University. Email: jacobs [at] yorku.ca.

pp.117-119

When political transition and regime change occurs, in particular when the move has been towards democratization, the historical legacy of the previous regime often includes gross violations of human rights and sometimes, indeed, crimes against humanity. The idea of transitional justice is at its core grounded on the belief that there is a need to address that historical legacy rather than just ignore it. This need to take seriously transitional justice stems from its importance for the political stability and legitimacy of the new regime. The most common metaphor is a medical one – heal past wounds before moving on to meet future challenges.

Measures designed to address concerns with transitional justice are not an especially new phenomenon. They are, for example, evident in many of the initiatives made by Congress in the reconstruction period immediately following the American Civil War. However, it was only in the post WWII period that transitional justice received careful scrutiny. The most familiar example is the Nuremberg trials where some individuals from the Nazi regime were held accountable for their actions. Those trials were formal, and the US Chief Prosecutor was Robert Jackson, a judge on leave from the US Supreme Court. A nice contrast is to efforts to address transitional justice in the People’s Republic of China after 1949. There, the government supported a practice of “suku” which was much more informal than the Nuremberg trials. In effect, this practice involved many millions of people telling their stories in public places – village squares, and the like – about the pain and suffering they had experienced during the previous regime and under Japanese occupation, to show how much better off they were under the new communist regime. Unlike the tribunals in Nuremberg, in China neither the ideal of the rule of law nor lawyers played any role in its scheme of transitional justice.

In their new book, TRANSITIONAL JUSTICE FROM BELOW: GRASSROOTS ACTIVISM AND THE STRUGGLE FOR CHANGE, editors Kieran McEvoy and Lorna McGregor have gathered together a collection of articles about transitional justice in many parts of the world, including Colombia, Guatemala, Northern Ireland, Rwanda, Russia, South Africa, and Timor-Leste. The thirteen authors have diverse backgrounds, although many have done research in Northern Ireland. Most of the papers address international law and situate their case studies in a comparative context. What the editors have sought to do is illustrate the diverse ways in which transitional justice is pursued in different countries. [*118]

In her contribution to the book, Lorna McGregor usefully identifies two phases in the development of transitional justice since WWII. The first phase involves familiar quasi-legal institutions such as war crime trials and sanctions. Transitional justice in this stage involved targeting individuals and holding them accountable for their actions by legal means. The Nuremberg trials are of course the paradigm example. The second phase is marked by truth commissions such as those utilized in Latin America and South Africa in the late 1980s and early 1990s. These commissions were concerned less with individual accountability and more with healing, social cohesion, and reconciliation. They typically involved a process that was not modeled on traditional legal dispute resolution. Indeed, these commissions were often premised on granting blanket amnesties for individual wrongdoers. These two phases have produced two corresponding meta-models of transitional justice. One is the trial court model; the other is the truth and reconciliation commission model.

In the international law community, when the need for transitional justice arises, these two meta-models are often presented as exhausting the alternatives. McEvoy and McGregor challenge this, claiming “Transitional Justice is and should be a contested space” (p.2). Various chapters in the book illustrate that neither of these meta-models accurately capture how transitional justice works and that instead there is immense diversity and plurality in the modes of transitional justice. This is evident if you look below the formal institutions at how transitional justice plays out in particular communities. Yet, among international lawyers, the focus is almost exclusively on national transitional justice initiatives. Laura Arriaza and Naomi Roht-Arriaza write,

national-level initiatives by themselves are insufficient to capture the meaning of the conflict for people living in specific villages, towns, ‘hills’, or other local spaces, whose experience may vary widely from that of people elsewhere in the country. When it comes to post-conflict interventions aimed at reconstructing a shattered society, international and national policy-makers have treated countries as an undifferentiated whole . . . such efforts ignore existing local dynamics aimed at reinforcing or transforming the power relations that are often most relevant to people’s lives . . . In transitional justice as elsewhere, all politics is local (p.144).

Indeed, often the local politics can be in tension with national transitional justice initiatives. Catalina Diaz in a chapter on Columbia discusses the community response to the demobilization of paramilitary units and, in effect, the amnesty for ex-combatants under the 2005 “Justice and Peace” Law, enacted by the national government. Under this law, ex-combatants were not required to make reparations to victims. Nonetheless, in the communities where these ex-combatants and their victims both lived, local governments have developed ways to hold the ex-combatants accountable. In the city of Medellin, for instance, Diaz describes a program that returns property and houses held by ex-combatants back to their legitimate owners in spite of the “Justice and Peace” Law.

Many of the chapters distinguish between top-down approaches to [*119] transitional justice and transitional justice from below. The main idea is that top-down approaches are directed by international organizations or national governments, typically modeled on one or the other of two meta-models noted above, with little input from local communities or victims about their design. Elizabeth Stanley, in her chapter on transitional justice in Timor-Leste, effectively makes the point that top-down approaches can be ineffective at addressing the injustices that underpin the conflict. The context for her study is the treatment of the Timorese minority by the Indonesian majority and national government. Stanley argues that national transitional justice schemes provided political cover for many Indonesian political elites, marginalized and “othered” the Timese minority, and failed to problematize the power structures in Indonesian society. Yet, transitional justice from below schemes have a host of other problems, many of them stemming from a lack of critical distance from cultural traditions and practices. In Timor-Leste, Stanley emphasizes the corrupting influence of nepotism and the ways in which women are silenced in the process.

The lingering question in the book is the extent to which the rule of law, lawyers, and judges are a constitutive part of transitional justice. Clearly, in the case of the meta-model of the trial court, there is no real question or contest. But, for those who favor the meta-model of the truth commission or pure bottom-up approaches to transitional justice, it is less clear. Kieran McEvoy, in his chapter, tries to make the case that, while “law matters” in transitional justice, its significance is often greatly exaggerated, especially by legal professionals. And this leads to an unnecessary distance between schemes of transitional justice and “justice which is actually ‘embedded’ in communities that have been directly effected by violence and conflict” (p.29). Instead, he argues that there is need to recognize the limitations on law and its functions, that there exist human rights traditions outside the legal paradigm, and that many of the injustices that are the subject of transitional justice schemes are best understood through an interdisciplinary criminology. Whilst all of these points strike me as reasonable, it would, I believe, have been instructive in the book to have a case study that examined a transitional justice scheme that genuinely did not rely on law whatsoever such as the example of “suku” from the People’s Republic of China I mentioned at the outset.

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© Copyright 2009 by the author, Lesley A. Jacobs.

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MAKING LAW MATTER: ENVIRONMENTAL PROTECTION AND LEGAL INSTITUTIONS IN BRAZIL

by Lesley K. McAllister. Stanford, CA: Stanford University Press, 2008. 288pp. Cloth $55.00. ISBN: 9780804758239.

Reviewed by Diana Kapiszewski, Department of Political Science, University of California, Irvine. Email: dianakap [at] uci.edu.

pp.110-116

Over the last two decades, political science analyses of comparative public law have focused on judges and judicial politics (e.g., Widner 2001; Ginsburg 2003; Hirschl 2004; Lasser 2004; Helmke 2005; and Moustafa 2007) and more recently, on justiciable social and economic rights (e.g., Gargarella, Domingo, and Roux 2006; Brinks and Gauri 2008) and public interest litigation (e.g., Sathe 2002; Mate 2009; Trubeck and Cummings 2009). English-language studies of comparative public law have paid comparatively little attention to other elements of the infrastructure of justice, although important exceptions exist, including studies of the police (Ungar 2002; Brinks 2007), prosecutors (Alberti 1996; Guarnieri 2008), judicial councils (Hammergren 2002), lawyers (Pérez-Perdomo 2007), and actors included in the broader “legal complex” (Halliday, Karpik, and Feeley 2008).

Further, few book-length studies of comparative public law address the Brazilian justice system at all (Kapiszewski 2007; Taylor 2008; Ingram 2009, notwithstanding). This is surprising, given Brazil’s increasing importance on the regional and world stage, the fact that its courts are some of the most professional and powerful in Latin America, and the existence of an innovative and important fourth branch of government (operating at both the federal and state levels): the Ministério Público or “procuracy,” staffed by prosecutors tasked with – and increasingly involved in – defending “diffuse and collective interests” (broader societal well-being) (p.4).

Lesley McAllister’s incisive and well-organized study of public prosecutors’ involvement in environmental protection in Brazil, published as part of Stanford University Press’ law series, is thus a welcome addition to the comparative public law literature and to Brazilian literature on the procuracy (e.g., Sadek 1997; Kerche 1999; Arantes 2002). As Brazil’s Amazonian rainforest is a focal point for the public policy challenge of balancing conservation, human rights, and broader public interests, McAllister’s study is also extremely timely, and represents a significant contribution to the literature on the politics of environmental regulation and regulatory enforcement (e.g., Vogel 1986; Hochstetler 2002; Espach 2009). With a J.D. from Stanford and a Ph.D. from Berkeley’s Energy and Resources Group, McAllister is the ideal scholar to write this book, as the breadth of her knowledge and the passion underlying the analysis attest.

The study is based on fieldwork involving an impressive array of data-collection techniques: McAllister engaged in participant observation through internships in state procuracies [*111] and environmental agencies, conducted more than 100 semi-structured interviews, and gathered a range of documents and information from archives. Two Brazilian states are used throughout the book as counterpoints for evaluating the efficacy of environmental law enforcement: São Paulo in the more-developed Southeast, and Pará in the underdeveloped Northeast. Indeed, McAllister’s use of sub-national comparison distinguishes her work from other books that examine public law dynamics in Latin America (Chávez 2004 and Ingram 2009 represent important exceptions).

McAllister begins by observing that, while Brazil has some of the most “rigorous and complete” environmental laws in the world (p.4), including a constitution enshrining the right to a healthy environment, its environmental regulatory agencies have failed to enforce those laws. State and federal prosecutors have sought to counteract this shortcoming by engaging in “prosecutorial enforcement” of environmental law (a more legalistic approach than the “administrative enforcement” carried out by agencies), thereby contributing to the development of a “robust, effective environmental regulatory system” (p.10). The keys to the procuracy’s success in insinuating itself into the defense of environmental concerns (and other public interests) were its political skill in portraying itself as an institution positioned to defend key democratic rights, and political leaders’ receptivity to those arguments (pp.57, 66). Yet McAllister’s analysis reveals that Brazil is not homogeneous with respect to these dynamics: environmental agencies demonstrated greater institutional capacity and a stronger enforcement record in São Paulo than they did in Pará; likewise, institution-building and specialization within the procuracy occurred more quickly and more extensively in the former.

Three central empirical chapters (Chapters 4 through 6) describe the mechanisms by which Brazilian prosecutors have attempted to make environmental law matter. The experiences of São Paulo and Pará are considered within each chapter (rather than having chapters dedicated to each state), facilitating comparison and the drawing of inferences. Chapter 4 examines how prosecutors have sought to combat impunity via prosecutorial enforcement of environmental law. McAllister identifies and examines three types of significant state-level variation in prosecution. First, she analyzes the difference in the level of activity by prosecutors in São Paulo (high for both federal and state prosecutors) and by their peers in Pará (high for federal but low for state prosecutors). Second, she explores the range of environmental problems addressed by prosecutors (a proxy for the types of powerful political and economic actors they confront), which is far broader in São Paulo than in Pará (at least at the state level – federal prosecutors in Pará cast a wider net). Finally, she examines prosecutorial strategies, finding that in São Paulo civil prosecution is used far more than criminal prosecution at both the state and federal levels, while in Pará federal prosecutors employed both criminal and civil enforcement (state prosecutors’ priorities are less clear).

In explaining cross-state differences in levels of prosecutorial activity and the [*112] range of environmental problems prosecutors addressed, McAllister discusses the role played by state environmental agencies’ institutional capacity (which can be a key resource for prosecutors), but assigns more causal weight to prosecutors’ independence from the executive branch (political independence) and lower-level prosecutors’ independence from their bosses (functional independence) (pp.86-87; 108-120). In order to evaluate each procuracy’s political independence, she examined governors’ public quotes regarding the procuracy and its work, financial and other resources governors granted to the procuracy, and governors’ attorney general picks – and also spoke with prosecutors (e.g., pp.110-11). Her analysis thus avoids two pitfalls in the literature on judicial independence: measuring political independence by assessing how often an institution challenges political leaders, or by evaluating how much independence the rules “on the books” seem to afford prosecutors (when the reality of independence on the ground is often quite different, p.109). McAllister’s acknowledgement that prosecutorial independence is not an absolute good is also refreshing: the procuracy’s lack of accountability has sometimes led to prosecutorial inconsistency (p.115), and its lack of cooperation with other actors charged with enforcement has compromised its work (p.179).

Chapter 5 examines the procuracy’s oversight of and assistance to environmental agencies, explaining that, while the state procuracy developed oversight of the state environmental agency in São Paulo, the state agency remained relatively unaccountable to the state procuracy in Pará, in large part because of the procuracy’s lack of political independence (p.136). Yet along with describing how the work of procuracies can increase the accountability of environmental agencies (helping to build a “culture of lawfulness” within those agencies, p.122) and how its backing can provide agencies with leverage that improves compliance (pp.122, 142, 146-149), McAllister also highlights the tensions that can arise between prosecutors and regulators, and observes that prosecutors’ influential role can result in a counterproductive degree of legalism.

Chapter 6 overviews Brazilian prosecutors’ assumption of the role of “lawyer for society” (p.157) since democratization, explaining how environmental groups increasingly turn to the procuracy to help them resolve disputes – either in the courts, or extra-judicially. Again, McAllister’s analysis is impressively balanced. The procuracy has provided a new forum for resolving public-interest conflicts, augmented access to justice for environmental interests, and likely helped to secure environmental rights included in the 1988 Constitution. But with its increasing involvement came a “prioritization problem:” squeaky wheels and insignificant issues often received attention while more important environmental problems were not addressed (p.162). At a systemic level, the fact that the procuracy and the courts are increasingly acting as a “substitute” for elected institutions raises the specter of the “counter-majoritarian difficulty” (Bickel 1986) and facilitates the judicialization of environmental politics, the downsides of which McAllister addresses adeptly (pp.174-175). [*113]

McAllister is less successful at convincing the reader that law has indeed “begun to matter” more in Brazil – an admittedly difficult phenomenon to measure. The book does contain some evidence that prosecutorial enforcement of environmental law communicates a sense that impunity is waning (p.86) and heightens some actors’ awareness of the risks associated with illegality. For instance, McAllister provides interview data showing that polluters fear actions brought by prosecutors (pp.88, 147) and prefer to avoid the bad press generated by the filing of a criminal case against them (p.149). Yet additional evidence that Brazilians have changed the way they think about law and the legality of their actions – that law has actually come to be “taken more seriously” by certain actors (p.181) – might have been provided. Alternatively, McAllister might have offered behavioral evidence that such ideational change has occurred (keeping in mind that behavior maps imperfectly to preferences). For instance, she might have provided data demonstrating a decline in illegal environmental activity over time (although continued deforestation in the Amazon would suggest this phenomenon may be regional); showing (all else equal) a decrease in extra-judicial conflict resolution or court cases regarding environmental disputes and/or the emergence of less-serious cases over time; or indicating that those implicated in extra-judicial conflict resolution or found guilty in court cases regarding environmental conflicts increasingly adjusted their conduct or complied with such rulings. If McAllister had better substantiated her claim that a robust relationship exists between prosecutorial enforcement and a stronger culture of “law abidingness,” her study would have had significant theoretical and policy implications for debates regarding how actors’ preferences and values can change over time, and what role external constraints might play in that process.

The final chapter considers whether prosecutorial enforcement could “diffuse” to (and be successful in) other developing countries. McAllister appears optimistic that diffusion to other Latin American countries of the “Brazilian model” could bring rule of law benefits. Yet many Latin American countries differ from Brazil in ways that her analysis suggests are fundamental for this more legalistic enforcement strategy to be effective. It is certainly true that most Latin American countries have weak environmental agencies, and that governmental accountability remains a major concern in much of the region (as McAllister notes, p.195). However, most countries lack Brazil’s rigorous and complete environmental laws, its legal culture characterized by a “palpable sense of the importance of laws and legality” (Roett quoted in Rosenn 1990: 774), and its legal community’s reverence for the constitution. Considering the procuracy to be a fourth branch of government is relatively unique in itself; moreover, prosecutors are not chosen via competitive exams in most other Latin American countries, and as a result, few prosecutors are as independent and professional as Brazil’s, and few would likely be as adept at creating this new role. In short, Brazil represents a “most-likely case” for prosecutorial influence, and it is unclear that prosecutors could hold as much sway elsewhere.

These critiques aside, McAllister’s analysis offers a strong foundation on [*114] which to build future research about the emergence of prosecutorial enforcement in Latin America and to develop theory regarding the conditions under which a procuracy may contribute to rule-of-law entrenchment. The book represents an important effort to understand the evolution and role of a crucial (and under-studied) Brazilian legal actor in a particularly critical area of law. McAllister’s writing is clear and accessible, and the study contains fascinating accounts of environmental cases brought to life by McAllister’s skilled deployment of interview data. Moreover, McAllister examines and portrays the dynamics she studies from various angles, producing an unusually evenhanded analysis that gracefully blends insights on rights enforcement, institutional evolution and inter-institutional relationships, and the development of the rule of law. The book is one from which most readers will learn a great deal, and scholars of comparative public law, comparative constitutional law, comparative legal institutions, and Brazilian law and politics in particular will profit from critically engaging this fine volume.

REFERENCES:
Alberti, Adriana. 1996. “Political corruption and the role of public prosecutors in Italy.” 24 CRIME, LAW, AND SOCIAL CHANGE 273-292.

Arantes, Rogério Bastos. 2002. MINISTÉRIO PÚBLICO E POLÍTICA NO BRASIL. São Paulo: EDUC Fapesp.

Bickel, Alexander. 1986. THE LEAST DANGEROUS BRANCH. Indianapolis: Bobbs-Merril.

Brinks, Daniel M. 2007. INEQUALITY AND THE RULE OF LAW: THE JUDICIAL RESPONSE TO POLICE VIOLENCE IN LATIN AMERICA. New York: Cambridge University Press.

Chávez, Rebecca Bill. 2004. THE RULE OF LAW IN NASCENT DEMOCRACIES: JUDICIAL POLITICS IN ARGENTINA. Stanford, CA: Stanford University Press.

Espach, Ralph. Forthcoming 2009. PRIVATE ENVIRONMENTAL REGIMES IN DEVELOPING COUNTRIES: GLOBALLY SOWN BY LOCALLY GROWN. New York: Palgrave-Macmillan.

Gargarella, Roberto, Pilar Domingo, and Theunis Roux (eds). 2006. COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES: AN INSTITUTIONAL VOICE FOR THE POOR? Aldershot, UK: Ashgate.

Gauri, Varun and Daniel M. Brinks (eds). 2008. COURTING SOCIAL JUSTICE: JUDICIAL ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN THE DEVELOPING WORLD. New York and Cambridge: Cambridge University Press.

Ginsburg, Tom. 2003. JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES. New York: Cambridge University Press. [*115]

Guarnieri, Carlo. 2008. “Courts enforcing political accountability: the role of criminal justice in Italy.” Presented at the Plenary Session of the Andrew W. Mellon Foundation Sawyer Seminar on Comparative Judicial Power, UC Berkeley, Berkeley, CA, 08 November 2008.

Halliday, Terence C, Lucien Karpik, and Malcolm M. Feeley (eds). 2008. FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM. Oxford and Portland, OR: Hart Publishing.

Hammergren, Linn. 2002. “Do Judicial Councils Further Judicial Reform? Lessons from Latin America.” Working Paper Number 28, Rule of Law Series, Democracy and the Rule of Law Project, Carnegie Endowment for International Peace.

Helmke, Gretchen. 2005. COURTS UNDER CONSTRAINTS: JUDGES, GENERALS, AND PRESIDENTS IN ARGENTINA. Cambridge: Cambridge University Press.

Hirschl, Ran. 2004. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge: Harvard University Press.

Hochstetler, Kathryn. 2002. “After the Boomerang: Environmental Movements and Politics in the La Plata River Basin.” 2 GLOBAL ENVIRONMENTAL POLITICS 35-37.

Ingram, Matthew. Forthcoming 2009. CRAFTING COURTS IN NEW DEMOCRACIES: THE POLITICS OF SUBNATIONAL JUDICIAL PERFORMANCE IN BRAZIL AND MEXICO. Doctoral Dissertation, Political Science, University of New Mexico.

Kapiszewski, Diana. 2007. CHALLENGING DECISIONS: HIGH COURTS AND ECONOMIC GOVERNANCE IN ARGENTINA AND BRAZIL. Doctoral Dissertation, Political Science, UC Berkeley.

Kerche, Fábio. 1999. “O Ministério Público e a constituinte de 1987/88.” In M.T. Sadek, ed. O SISTEMA DE JUSTIÇA. São Paulo: IDESP, Editora Sumaré.

Lasser, Mitchel. 2004. JUDICIAL DELIBERATIONS: A COMPARATIVE ANALYSIS OF JUDICIAL TRANSPARENCY AND LEGITIMACY. Oxford: Oxford University Press.

Mate, Manoj. 2009. THE VARIABLE POWER OF COURTS: RIGHTS, GOVERNANCE, AND THE INDIAN SUPREME COURT. Doctoral Dissertation, Political Science, UC Berkeley.

Moustafa, Tamir. 2007. THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW, POLITICS, AND ECONOMIC DEVELOPMENT IN EGYPT. Cambridge: Cambridge University Press. [*116]

Rosenn, Keith. 1990. “Brazil’s New Constitution: An Exercise in Transient Constitutionalism for a Transitional Society.” 38 THE AMERICAN JOURNAL OF COMPARATIVE LAW 8773-802.

Sadek, Maria Tereza. 1997. O MINISTÉRIO PÚBLICO E A JUSTIÇA NO BRASIL. Série Justiça. São Paulo: IDESP, Editora Sumaré.

Sathe, S.P. 2002. JUDICIAL ACTIVISM IN INDIA: TRANSGRESSING BORDERS AND ENFORCING LIMITS. New York and Oxford: Oxford University Press.

Taylor, Matthew M. 2008. JUDGING POLICY: COURTS AND POLICY REFORM IN DEMOCRATIC BRAZIL. Stanford, CA: Stanford University Press.

Trubeck, Louise and Scott Cummings. 2009. GLOBALIZING PUBLIC INTEREST LAW. UCLA JOURNAL OF INTERNATIONAL LAW AND FOREIGN AFFAIRS 13 (Special issue).

Ungar, Mark. 2002. ELUSIVE REFORM: DEMOCRACY AND THE RULE OF LAW IN LATIN AMERICA. Boulder, CO: Lynne Rienner Publishers.

Vogel, David. 1986. NATIONAL STYLES OF REGULATION: ENVIRONMENTAL POLICY IN GREAT BRITAIN AND THE UNITED STATES. Ithaca, NY: Cornell University Press.

Widner, Jennifer. 2001. BUILDING THE RULE OF LAW: FRANCIS NYALALI AND THE ROAD TO JUDICIAL INDEPENDENCE IN AFRICA. New York: W.W. Norton & Company.

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© Copyright 2009 by the author, Diana Kapiszewski.

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FRIENDS OF THE SUPREME COURT: INTEREST GROUPS AND JUDICIAL DECISION MAKING

by Paul M. Collins Jr. New York: Oxford University Press. 2008. 248pp. Cloth $60.00/£41.00. ISBN: 9780195372144.

Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email: paul.chen [at] wwu.edu.

pp.104-109

In FRIENDS OF THE SUPREME COURT, Paul Collins makes an outstanding contribution to the literature on interest group litigation by expanding our empirical and theoretical knowledge of the influence of amicus briefs on the voting behavior of Supreme Court justices. Specifically, on whether law has any influence on judges’ decisions or whether judges are basically politicians in robes whose decisions reflect their policy preferences, Collins finds the results of his research “overwhelmingly supportive of the legal persuasion model” (p.110).

Early in his book, Collins notes that the scholarly consensus – that “amicus briefs, with the exception of those briefs filed by the Solicitor General, have little measurable influence on the justices’ decision making on the merits” (p.5) – flies in the face of statements to the contrary made by the justices themselves, and also contradicts the behavior of interest groups, who file amicus briefs in nearly every case reviewed by the Supreme Court, ostensibly to influence the Court’s decision. He also notes that previous studies lacked generalizability, suffered from selection bias, were time-bound, or used “imprecise or incomplete measures” (pp.6-7). The most serious weakness of these studies was failing to provide an adequate theory explaining why amicus briefs should influence the Court (p.9). Collins fills this theoretical gap by incorporating the concept of information overload into his analysis to help “explain how political actors with ideological goals respond to persuasive communication that sometimes supports and sometimes is contrary to these goals” (p.12).

The book addresses three main questions: (1) whether amicus briefs influence the ideological direction of justices’ votes; (2) whether amicus briefs influence the consistency of justices’ votes (i.e. do the briefs make a justice’s voting more consistent or less consistent across cases); and (3) whether amicus briefs influence justices’ decisions to write or join separate opinions (pp.10-11). Each of these questions is addressed, respectively, in Chapters 4, 5, and 6.

The “central controversy” tackled by scholars of the Court concerns the extent to which judicial behavior is influenced by legal as opposed to ideological factors (p.80). Stated more bluntly, is it law or politics, the legal model or the attitudinal model? In Chapter 4, Collins integrates his research into this central question by formulating two competing hypotheses that predict “how amicus briefs are expected to influence the individual justices’ decision making consistent with these two divergent approaches to judicial choice” (p.82). [*105]

Behavioral studies have traditionally defined the legal model as entailing three key tenets: the plain meaning approach to legal interpretation, the framers’ (or legislators’) intent, and precedent. In contrast, Collins tests a “legal persuasion” aspect which differs from these tenets which seem to imply that “justices engage in mechanical jurisprudence” or “robotically apply precedent and other legal rules to any given case to reach an objectively correct decision” (p.83). The hypothesis for his legal persuasion model, which presumes that the influence of amicus briefs on the justices’ decision making is not mediated by their ideologies, predicts that “[a]s the number of liberal [or conservative] amicus curiae briefs increases, so too will the likelihood of observing a liberal [or conservative] vote,” regardless of the justices’ ideology (p.92). The rationale is that judges, “consistent with their legal training and as unbiased decision makers” (p.84), “explore alternative legal perspectives . . . [t]o reach what they believe to be the correct decision” (p.89). Amicus briefs, which “present alternative or reframed legal arguments” are meant to persuade the justices of the legal correctness of the amici’s position (p.90).

Whereas the legal persuasion model views all justices as unbiased seekers of the correct legal decision, the attitudinal model views justices as influenced by amicus briefs depending on whether the information in the briefs reinforces or undermines the pursuit of their policy preferences. This view is supported by research in social psychology showing that we tend to discount or ignore information that contradicts our predetermined attitudes, while we view as being more persuasive information that reinforces our attitudes (pp.92-93). Collins’ attitudinal congruence hypothesis predicts that “[a]s the number of liberal [or conservative] amicus curiae briefs increases, so too will the likelihood of observing a liberal [or conservative] justice cast a liberal [or conservative] vote” (p.94).

Note that “the predictions are identical, although the theoretical reasons for them are not.” The legal persuasion congruence model views justices, regardless of their ideology, as seeking information to apply the law to a case correctly, but the attitudinal congruence model views justices as seeking information, based on their ideology, to maximize their policy preferences. The way to determine “which theory best explains the justices’ behavior comes from an examination of how a liberal ([or] conservative) justice responds to an increasing number of conservative ([or] liberal) briefs.” The attitudinal model hypothesizes that no correlation exists between an increasing number of liberal (or conservative) briefs and the likelihood that justices will vote in the direction of those briefs (because the justices would ignore the briefs and simply vote their policy preferences). The legal persuasion model, however, hypothesizes a positive correlation between the two: as the number of liberal (or conservative) briefs increases, so too the likelihood of justices voting in the direction of those briefs, regardless of their ideology (pp.97-98).

The legal persuasion model predicts 66% of the votes (p.106). In cases involving asymmetric amicus participation – i.e. where the number of amicus briefs supporting one party [*106] outnumber those supporting the other party – Collins finds the influence of amicus briefs “rather dramatic”:

With regard to conservative briefs, the results indicate that compared with a case in which a single conservative brief is filed (and a single liberal brief), when 10 conservative briefs are filed (and one liberal brief), the most liberal justice in the data . . . is 6% more likely to vote conservatively. This increases to 14% for the vast majority of the Court . . . and is slightly attenuated for the most conservative justices in the sample, who are 12% more likely to vote conservatively in this situation. The results are virtually identical for liberal amicus briefs: the most liberal justice in the data is 6% more likely to cast a liberal vote as the number of liberal briefs moves from 1 to 10, while the majority of the Court is about 14% more likely to cast a liberal vote (pp.109-110).

“[W]ith the exception of three extremely conservative justices for short periods of their careers,” Collins finds that the justices’ ideology does not mediate their reception of the information in the amicus briefs, and concludes that “the legal persuasion model best explains the influence of amicus briefs in the Court.” This shows that “judicial decision making on the Court is more than a function of the justices’ ideological preferences.” Collins highlights the point that “by persuading the justices to adopt positions consistent with the legal argumentation in the briefs, amicus briefs provide us with insight into one way in which the law matters to Supreme Court decision making” (p.114, emphasis in original).

In Chapter 5, Collins tests the hypothesis that increasing the number of amicus briefs filed in a case will decrease the consistency of justices’ voting across cases. The concept of information overload, taken from other disciplines that study decision making, states that an inverse relationship exists between the complexity of a decision and the likelihood of reaching a correct decision. Therefore, as the amount of information that a decision maker must consider increases – i.e. as the decision’s complexity increases – the certainty of his or her reaching a correct decision based on the available information decreases. Collins’ model predicts 66.6% of cases (p.127), confirming his hypothesis that an increase in the number of amicus briefs in a case decreases the consistency of justices’ voting across cases. “By bringing new issues to the justices’ attention, the amici make it difficult for the justices to determine what the correct application of the law is in any given case” (p.120). (In Chapter 3, based on an analysis of fifty-two amicus briefs filed in twelve cases containing a total of 121 arguments, Collins found that over 70% of the amicus briefs provided information not contained in the parties’ briefs, and that every amicus brief provided additional legal authorities not cited in the parties’ briefs [p.66]).

In Chapter 6, Collins tests the hypothesis that increasing the number of amicus briefs in a case will increase the likelihood of a justice writing or joining a separate opinion (p.154). By providing, in the form of additional information and arguments, a “substantial basis from which a justice can cultivate a separate opinion,” amicus briefs reduce the resource costs of writing concurring or dissenting opinions, thus making it more likely that justices will do so (p.151). “[E]ven after [*107] controlling for more conventional influences” – e.g. justices’ ideological proximity to the majority opinion writer, justices’ institutional role on the Court, a case’s legal complexity and its political salience (pp.155-159) – Collins finds strong support for his hypothesis, noting that the effect “is especially enhanced in cases attracting a large number of briefs” (p.161).

The significance of this finding is that the inclusion of additional legal arguments via the submission of amicus briefs decreases the consistency or stability of justices’ voting across cases, whereas voting consistency is enhanced when judges decide cases based on extreme ideological biases. This “conundrum” presents for Collins “a most unsettling tradeoff”: “If we value [legal] consistency, this can be achieved through the appointment of ideologically extreme judges who will regularly vote to etch their preferences into law and seldom deviate from this behavior. If we value reasoned and neutral deliberation, provided by legalist judges, we must recognize that their behavior will be marked by instability due to the inherent indeterminacy of the law” (p.177).

Chapter 2 mainly provides background information on interest group litigation, and surveys the research on amicus activity by organized groups. In Chapter 3, Collins discusses, more specifically, amicus participation in Supreme Court cases, and mentions several noteworthy empirical findings, of which I will mention two. One concerns the ideological bias of the interests participating in Supreme Court litigation: contrary to the perception that during certain decades Supreme Court litigation has been dominated by liberal and progressive interests, throughout all four Court eras under analysis (1946-2001) “the overall correlation between the average number of liberal and conservative briefs [submitted per case per term] is an astonishing .97” (p.55). The fact that the number of conservative (or liberal) amicus briefs does not increase during conservative (or liberal) Court eras “provides compelling evidence that amici file briefs in cases that genuinely touch on their interests, rather than ‘cherry pick’ cases for the purposes of appearing efficacious” (p.56).

The other finding concerns the range of organized interests represented in amicus briefs. Collins finds that the range of organized groups participating in Supreme Court litigation “reflects a much more diverse set of interests” than lobbying in other branches, suggesting that the justices receive a broader range of views via the submission of amicus briefs. This pluralism holds true not only for the positions advocated by amici (i.e. liberal and conservative) but also for the types of organizations represented (e.g. corporate interests, minority interests, even ad hoc organizations of individuals) (p.63). When reviewing criticisms of legal instrumentalism in Chapter 7, Collins suggests that the plurality of views aired before the Court should give us some comfort, because it serves to “overcom[e] this troubling perspective of interest group instrumentalism [by] enabl[ing] judges to hear from a diverse spectrum of organizations who present conflicting views of the public interest” (p.170).

In summarizing his theoretical and empirical findings in Chapter 7, Collins [*108] affirms that “attitudes are likely the primary influence on judicial decision making.” But he notes that his research provides strong evidence of a “bottom-up approach” in which “justices carefully review all of the available evidence and argumentation for the purpose of reaching a sound legal decision.” This is also supported by research from management science and social psychology showing that “individuals who are required to justify their decisions . . . are especially likely to be motivated by accuracy goals.” “[T]he bottom-up approach to judicial decision suggests that opinions might well reveal factors that motivate judicial choice” (pp.176). Collins then considers competing theories that posit the influence of public opinion on, or separation of powers considerations by, the Supreme Court as providing adequate explanations for his findings, and ultimately rejects them (pp.177-182).

Collins tackles the central question in the field of public law using a research design that tests theoretically-grounded hypotheses based on the stated normative goals of justices. By measuring the influence of amicus briefs on individual justices’ votes rather than on case outcomes, he is able to test whether the justices’ ideologies mediate their reception of information from amicus briefs. He carefully circumscribes his findings, noting key issues not addressed in his research, including whether certain types of arguments, certain types of amici, or certain types of organized interests are more influential than others (pp.183-184). Most importantly, he disclaims any attempt to explain how or why law and legal arguments matter – that is, what is the “exact mechanism under which amicus briefs influence the justices’ decision making” (p.177).

While Collins’ regression models have shown that amicus briefs do influence justices’ votes, it remains the work of qualitative studies to show how and why this is so. Nevertheless, Collins’ research has taken a big step in the right direction: first, by showing systematically and empirically that legal arguments do influence justices’ voting behavior; and second, by testing a “legal persuasion” model that differs from the traditional legal model posited by attitudinalists who fail to understand that the indeterminacy of law does not necessarily make the purported influence of law either delusional or a sham. Collins’ hypotheses are based on the stated normative goal of justices to make decisions that most closely align with their views of the correct application of law. Although justices may disagree whether certain precedents require a particular outcome in a case, the subjectivity of their judgment does not necessarily make their decisions unprincipled or arbitrary.

The findings of Collins’ research also carry normative significance for the rule of law by showing that the law matters to justices when they decide cases. Not only has he provided a rigorous and theoretically-informed methodology to test the influence of amicus briefs on the justices’ decision making, but his findings provide empirical support for the assumption underlying most qualitative analyses of the Court – namely, that law matters. Collins, in closing, enthusiastically encourages methodological pluralism, recognizing that, because “the study of the law is [*109] inherently interdisciplinary, . . . we must be attentive to the fact that no single discipline” – or methodology – “has a monopoly on legal decision making” (p.185).

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© Copyright 2009 by the author, Paul Chen.

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ACCOUNTING FOR MOTHER NATURE: CHANGING DEMANDS FOR HER BOUNTY

by Terry L. Anderson, Laura E. Huggins, and Thomas Michael Power (eds). Stanford, CA: Stanford University Press, 2007. 312pp. Cloth. $34.95. ISBN: 9780804756983.

Reviewed by Debra S. Emmelman, Department of Sociology, Southern Connecticut State University. Email: emmelmand1 [at] southernct.edu.

pp.100-103

Should the wealth of nature be viewed as its value for the production of commodities or for its intrinsic worth? Should we permit market forces to determine the use and (hopefully) preservation of nature or should we rely on government to regulate these activities? According to the authors of this book, while these competing visions tend to predominate in policy discussions today, none are wholly correct or useful. Instead, it is time to consider how the visions and policies of the Old West (i.e., the commodity view) might be successfully blended with those of the New West (i.e., the amenity view).

In Chapter 1, Thomas Michael Power provides an overview of public policy regarding the regulation of natural resources in the U.S. He finds there are a number of instances when market mechanisms for managing natural wealth are unsuitable. Included here is environmental damage that is dispersed and not tied to commercial activities (e.g., air pollution caused by day-to-day living) as well as certain eco-services not produced through human agency or clearly understood (e.g., the production of naturally clean water). Popular opposition to privatizing the wealth of nature is also very strong and presents an obstacle to market-oriented approaches. On the other hand, Power perceives that public ownership and management of natural landscapes also has its problems. If not managed on the basis of bureaucratic inertia and pork-barrel politics, for example, management and use on a fee basis tends to result in service skewed toward the interests of clients rather than the preservation of biodiversity. On the whole, Power asserts that what is important is not whether the institutional framework for managing natural resources is public or private but instead whether the locus of control and the scale of the organization are appropriate for specific problems. He also cautions us to keep in mind that

. . . collective arrangements, meaning citizens acting together, need not involve government ownership or control. Similarly, private arrangements need not mean commercialization. Nor does the deployment of marketlike instruments imply an acceptance of market outcomes no matter what they might be. Only our social imaginations limit the innovative institutional arrangements we can craft. We need creative entrepreneurs not only in the commercial sector but also in the private non-profit and government sectors (p.29).

Of what specifically might institutional innovation consist? In general, what is being advocated here is greater consideration of a “property rights approach.” As Terry Anderson explains in Chapter 2, [*101]

Property rights are best thought of as the “rules of the game,” which determine who has the right to use, access, and derive value from valuable assets. As such, property rights might be as formal as the title to your house or car or as informal as your right to hike in a forest. They might be very carefully delineated . . . restricted . . . or they might be defined by social norms and customs.

In any case, crucial to the concept of property rights is restricting access and thereby preventing the “tragedy of the commons,” a situation whereby unlimited access results in overuse because users are competing among themselves for limited resources. In order to maximize the wealth of nature (no matter one’s viewpoint), Anderson argues that it is important to establish a willing buyer-willing seller situation instead of resorting to political reallocation that is typically costly, arduous, rife with conflict, and likely to result in zero or even negative-sum outcomes. Overall then, the objective of the property rights approach appears to be acknowledging that all the players in a game have something at stake, and that ultimately cooperation and the negotiation of settlements will result in outcomes that benefit everyone to at least some extent. In the remainder of the second chapter, Anderson shows that with the increasing intervention of state and national governments in resource allocation matters, local residents increasingly lose out. He concludes that one way to encourage institutional reform that promotes cooperation is to devolve decision making to levels where local actors have a greater stake in the outcome.

In Part II, Daniel Kemmis and Holly Lippke Fretwell discuss some possible methods for devolution. Kemmis begins by first examining two factors that he believes have contributed to the current policy debacle of public land management: the dynamic relationship between land tenure systems and political economy, and changes in democratic theory and practice. Both of these factors appear essentially to have resulted in diverse, conflicting, and largely insoluble expectations regarding property rights. As a possible way out of the debacle, Kemmis proposes a type of “diversified portfolio” of solutions. One part of this portfolio involves the creation of a commission to review public land law in an effort to understand the problems facing public land agencies. The second element involves incremental changes to the operating system in order to address systemic problems where the opportunities present themselves. The final element involves deliberate experimentation with new approaches to managing public land, the most promising of which is titled Region Seven. Region Seven is actually a virtual region that consists of a collection of experimental projects on national forest lands across the country and which would permit innovative solutions to be tested and evaluated. Following Kemmis, Fretwell shows us in Chapter 4 how public parks benefit when its management is decentralized, when the influence and cost of state and national politics are reduced, and when the power of the consumer who has a vested interest in seeing the park flourish is increased.

Part III of the book explores the property rights approach through specific examples. In Chapter 5, Anderson and Huggins examine the struggle over water rights in the Klamath Basin. They argue that the best approach to resolving this [*102] dispute is through the negotiation of property rights among all the interested local parties. In this manner, while no one will get everything they want, everyone will get something instead of wasting their time and resources fighting one another. Similarly, Leal considers in Chapter 6 how best to control the problem of over-fishing. Instead of state or federal stipulations of quotas, he makes the case that local multi-party involvement in negotiations of allocations (which may take such various forms as Individual Transferable Quotas, Private Harvesting Agreements, Territorial Fishing Rights, and Angling Management Organization) appears to work best because all fishers then perceive their vested interest in keeping the fish population healthy and at the same time are able to maintain the viability of their individual businesses.

Meiners and Morriss argue in Chapter 7 that the mining laws of the Old West were ideal in many ways because they encouraged individuals to expend substantial private resources in order to claim federal land and develop or safeguard it for future purposes. They maintain that the law did not go far enough, however, because it did not allow non-miners the same type of property rights. According to these authors, “Only when competing land uses have equal access to private title to land in the West will the incentive exist for entrepreneurs to design solutions that allow the peaceful coexistence of mining and tourism” (p.161).

Finally, in Chapter 8, Parker argues that the current system of tax incentives to acquire ownership or conservation easements through land trusts is flawed for two major reasons. First, it promotes corruption and abuse by property owners who seek tax breaks simply to increase profits. Second, rather than encouraging land trusts to uphold high standards of conservation it merely encourages them to compete among themselves for the acquisition of the most acreage. Parker also distinguishes a problem with perpetuity clauses because they mean that the assets cannot be easily extinguished and converted into cash to be reinvested in perhaps more beneficial conservation elsewhere. Although he proposes that reform of the tax code would help solve the problems, he believes that a matching grant program would work better by providing incentives for land trusts to uphold high standards as well as enabling local citizenry to participate in and actually see their tax dollars at work.

Various problems in measuring the wealth of nature are examined in Part IV. Hanssen begins the discussion by providing an overview and critique of the “wealth of nature” literature that largely contends unspoiled nature is a source of economic value in its own right. The problem, he states, is that these proponents do not adequately assess the comparative costs and benefits of preserving nature as opposed to extracting natural resources. Fitzgerald and Freeman follow up by assessing various methods of determining the economic value of nature and, although asserting that such calculations would be especially important and beneficial in today’s world, conclude that it is currently difficult if not impossible to do so. Johnson then presents evidence that states whose economies are based mostly on extractive industries do not actually perform any more poorly than others. Instead, the apparently slow economic growth of the former states is best explained by low population density [*103] that results in fewer jobs. The major point he wants to make here is that shifting from an extraction economy to one based on natural amenities will not necessarily or always result in greater wealth. Some localities, for example, are unlikely to attract viable alternatives. Finally, in Chapter 12, Haddock argues that government does not possess a monopoly when it comes to providing public goods. On the contrary, many private individuals contribute them either directly or indirectly. Nevertheless, he also carefully states that neither the property rights nor governmental approaches are perfectly suited to provide public goods and that sometimes it is necessary to draw upon government authority.

All in all, I believe the authors have presented a very convincing argument not only that there is a need for innovation in institutional frameworks for managing natural resources but also that a property rights approach may at times be the most feasible response. It is important to keep in mind that this affirmation is coming from someone who is generally quite skeptical of marketplace solutions to anything but maximizing profit. On the other hand, it is indubitable that our government has also failed to solve many of our problems. Thus, I applaud the wisdom of the authors’ contributions for the reasons described below.

First and foremost, these policy architects are careful not to condone an all-or-nothing approach to natural resource management. They view neither the government nor the marketplace as altogether equipped to solve environmental problems. In fact, they caution us to be open-minded in any case. Neither do they advocate a “one-size-fits-all” method for dealing with every situation. Instead, they acknowledge that every situation is unique and encourage us to be both creative and flexible, while at the same time not eschewing governmental authority and accountability when necessary. In essence, we should do “whatever works best” to preserve our environment.

Other than this, the authors provide us with numerous examples of how devolution and the property rights approach have been successfully employed in the past and afford us with suggestions for how certain methods might be successfully employed in the future. I was especially impressed with Daniel Kemmis’ proposal for a diversified portfolio of land management techniques, a portfolio that involves carefully monitored and responsible investigation, experimentation, and implementation of change. It is extremely difficult to scorn such a proposal when it poses a possible threat to so very little and yet holds the promise of increasing substantially the bounty of that which we already possess. Nonetheless, other contributors offer tantalizing alternatives as well.

There is a great deal more I could say about this book, but I instead encourage everyone who is concerned about environmental problems and policy to review it themselves. It is definitely an interesting, thought provoking, and worthwhile read. I would also recommend it for both undergraduate and graduate courses focusing on these matters.

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© Copyright 2009 by the author, Debra S. Emmelman.

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