THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY

by Helen J. Knowles. Lanham, Maryland: Rowman & Littlefield, 2009. 312pp. Hardback. $44.95/£30.00/€44.50. ISBN: 9780742562578.

Reviewed by Tobias T. Gibson, Department of Political Science, Monmouth College. Tgibson [at] monm.edu.

pp.347-350

With the recent announcement that Justice David Souter is retiring from the United States Supreme Court, there has been a great amount of wordage from journalists and judicial scholars about the type of justice that President Barack Obama will nominate to fill Souter’s seat. There is much discussion about the strength of decisions that the new justice will pen, especially given Souter’s reserved judicial demeanor. However, many court watchers believe that junior justices, like children in days past, are to be seen but not heard. Helen J. Knowles, in her excellent book, offers some insight into how a junior justice can have profound impact on the Supreme Court. Knowles suggests that Kennedy, as a junior justice, made significant jurisprudential arguments when still a junior justice on the Court, and continues to do so today.

Knowles chronicles Justice Anthony Kennedy’s career and jurisprudential views, especially as they relate to three important areas of civil liberties: privacy, race and speech.

Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut” (p.2). Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.
Importantly, Knowles approaches this study from a perspective related to neo-institutionalism and the strategic model of judicial decision making. Knowles views this as a key element in the book, because like the adherents of these models, she is “interested in asking why justices vote the way they do and how they are constrained and/or influenced by the broad political, historical, and cultural contexts within which they work” (pp.9-10).

In Chapter 1, Knowles begins to attack her overall hypothesis by defining libertarianism, with the assistance of such luminaries and Robert Nozick, Jeremy Bentham, John Locke and John Stuart Mill (whose ON LIBERTY is purposefully part of the title of the current book). Following the definition, the challenge is to see Kennedy’s application of libertarianism. Knowles uses interviews and speeches to convince the reader that Kennedy is a moderate libertarian who believes in tenets of libertarianism, such as toleration and personal responsibility. More importantly, in direct contrast to [*348] Justice Antonin Scalia and failed Supreme Court nominee Judge Robert Bork, Knowles notes that during his confirmation, Kennedy testified to the Senate about his broad understanding of rights that are not specifically enumerated in the Constitution.

The second chapter begins the heart of the book and focuses on Justice Kennedy’s views on the freedom of speech, which, for Kennedy, is particularly sacred because he sees speech as the “beginning of thought.” Knowles introduces this chapter with a quote from Justice Kennedy in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE (1992): “The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech” (p.53). This is an important belief for Kennedy and can be seen throughout his defense of speech. Knowles predictably, and correctly, also utilizes Kennedy’s famous concurring opinion in TEXAS v. JOHNSON (1989). The most interesting portion of this chapter, however, is the discussion about Kennedy’s views about the use of “strict scrutiny,” which was first made public in SIMON & SCHUSTER v. CRIME VICTIMS BD. (1991). Kennedy makes the argument, again in a concurrence, that the strict scrutiny test, applied in the opinion of the court, is unnecessary. Kennedy feels this way because he believes that the strict scrutiny test “has no real or legitimate place when the Court considers the straightforward question whether the state may enact a burdensome restriction of speech based on content only” (p.69). Knowles acknowledges that Kennedy’s position toward the freedom of speech is not absolute, but carefully notes also that even when his view is “tempered by the realities of the different cases he has confronted” (p.87), he remains true to his root belief that government should not try to control the thoughts or expression of its citizens.

In the third chapter, Knowles then turns to individual dignity, rather than “membership” in a group, based on race, sexuality or other particular characteristics. Knowles again does a convincing job of illustrating Kennedy’s dedication to libertarian ideals in this chapter. She effectively draws upon ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003) to make the point that in this area of law, Kennedy views too much governmental intrusion to be at odds with individual freedom. At issue in ROMER was a Colorado state constitutional amendment that prevented discrimination on the basis of sexual orientation. Kennedy wrote that the amendment was “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects” (p.110). Similarly, in LAWRENCE, Kennedy takes the Court’s decision in BOWERS v. HARDWICK to task by writing “Bowers was not correct when it was decided, and it is not correct today” (p.116). His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . . And, there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial boundaries” (p.121). [*349]

In the following chapter, Knowles extends the discussion of Kennedy’s aversion to group based characterization of the individual. Here, the focus turns to race. The case at the heart of the discussion in this chapter is METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990), in which preferential treatment for minority owned communications companies was given in issuing federal communications licenses. Kennedy dissented from the majority opinion which upheld these preferences in support of diversity. Kennedy voiced his preference for strict scrutiny here, which was at odds with the less exacting test employed by Brennan. Kennedy, in writing what one commentator described as an “apocalyptic” dissent, compares the majority opinion to the infamous PLESSY and KOREMATSU decisions. He elaborates on this by stating “[p]erhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin. Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored to escape condescension” (p.137). Knowles presents an impressive discussion of several cases here to make the point that Kennedy’s real concern is that, by focusing on group characteristics, the individual’s freedom is jeopardized because the individual cannot have all of the characteristics of the group.

The fifth chapter focuses on abortion cases, with a particular nod to PLANNED PARENTHOOD v. CASEY (1992) in which Kennedy coauthored the opinion of the Court with Justices O’Connor and Souter. Because Kennedy’s view is that there is no clear boundary of where individual liberties lie with regard to abortion, Knowles makes the argument that Kennedy’s understanding of abortion rights is based on the “relationships between (1) libertarianism and abortion and (2) libertarianism and personal responsibility” (p.163). Knowles supports this, observing that, while Kennedy and the other authors note the importance of the woman’s liberty to have an abortion, the decision is not “isolated in privacy.” This observation allows Knowles to come full circle from the first chapter, where she defines and describes Kennedy’s limited libertarian view.

The conclusion serves to reiterate the points made in the prior chapters. Knowles also uses this opportunity to note the political importance of understanding Kennedy’s views. For example, in the first term since John Roberts and Samuel Alito took their seats on the bench, Knowles reports that Kennedy was the sole justice to be in the majority in all 5-4 decisions. Perhaps the best indication of Knowles’ view of Kennedy on the current Court is the title of the concluding chapter: “It all Depends on Justice Kennedy.”

In THE TIE GOES TO FREEDOM, Knowles utilizes several sources. The primary sources come from Justice Kennedy’s opinions written during his tenure on the High Bench. Additionally, Knowles uses material from Kennedy’s speeches and written articles, and interviews he has given. Another strength of this work is Knowles’ ability to buttress her arguments between and among chapters. Although the chapters [*350] facially are unique, there are clear connections through the book. Additionally, Knowles does a wonderful job of displaying that Kennedy is not inconsistent with his jurisprudence or that he falls victim to the “Greenhouse Effect” by trying to please the reporters on the Supreme Court beat.

This book serves an important purpose. While Knowles focuses on Justice Kennedy, because of his position on the Supreme Court as the median justice, THE TIE GOES TO FREEDOM is also suggestive of the policies we are likely to see coming from the Court for years to come. Knowles’ work packs a punch and could be considered required reading for any number of undergraduate and graduate courses, including the typical constitutional law and jurisprudence classes, but also those related to the institution of the Supreme Court. This book is one of the more interesting and well written books that I have read in recent years.

CASE REFERENCES:
BOWERS v. HARDWICK, 478 U.S. 186 (1986).

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE, 505 US 672 (1992).

KOREMATSU v. US, 323 U.S. 214 (1944).

LAWRENCE AND GARNER v. TEXAS, 539 U.S. 558 (2003).

METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

ROMER v. EVANS, 517 U.S. 620 (1996).

SIMON & SCHUSTER v. CRIME VICTIMS BOARD, 502 U.S. 105 (1991).

TEXAS v. JOHNSON, 491 U.S. 397 (1989).

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© Copyright 2009 by the author, Tobias T. Gibson.

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COUNTDOWN TO UNITY: DEBATING IRISH REUNIFICATION

by Richard Humphreys. Dublin, Ireland and Portland, Oregon: Irish Academic Press, 2008. 256pp. Hardback. €60.00/£45.00/$74.95. ISBN: 9780716528777. Paper. €24.95/£19.95/$32.00. ISBN: 9780716533474.

Reviewed by Lee P. Ruddin LLB, MRes, PgCert, Roundup Editor, History News Network. Email: leepruddin [at] yahoo.co.uk.

Over the coming months a series of conferences will commemorate the 400th anniversary of the Ulster Plantation. The significance of “The Plantation of Ulster, 1609-2009: A Laboratory for Empire” to the shared histories of Ireland and Britain would be difficult to exaggerate.

An equally significant academic project is COUNTDOWN TO UNITY: DEBATING IRISH REUNIFICATION by Richard Humphreys. Despite the fact that the author is not a historian, concentrating on excavating the roots of nationalism and the modest material pertaining to seventeenth-century Elizabethan colonization, eighteenth-century legal questions about how much independence from Westminster the Dublin legislature did and should have, or nineteenth-century political debates in the wider United Kingdom, not to mention twentieth-century events such as World War I and the Easter Rising, the barrister’s book is nothing if not historic.

COUNTDOWN TO UNITY does not argue a case for unity – Humphreys takes this as ‘a self-evident premise’ (p.xx). Rather, this book acts as a vehicle for examining ways in which that desire for unity could be advanced in keeping with legal norms. Accordingly think of it as a practical legal roadmap to bring about the reunification of the island of Ireland. Given that it is a legal treatise, Humphreys fittingly eschews political opinion. Yet that is not to say the title is exclusively for students of law. This reviewer would go as far as to recommend that not only nationalists and unionists purchase a copy but students of Irish politics more generally, since Humphreys analyzes the policy of consent as part of political thought – political thought, no doubt, borne out of his experiences as legal adviser to the Parliamentary Labour Party. You need only refer as far as the introduction to understand the interplay of law and politics within such a debate:

A central question explored by the study is whether the reunification of the island of Ireland is something that should be viewed as entirely a rhetorical political project, insulated from being affected by action or inaction on the legal plane. (xix-xx)

However premature and inappropriate it is to some in making a case for a united Ireland, Humphreys, traversing law and politics, provides a most useful text setting out the principles that would require to be satisfied for any future negotiation. To be sure, for all the works in the political science field and legal academic journals over the past decade, COUNTDOWN TO UNITY is the first full-length treatment to tackle the subject [*345] of the legal and constitutional implications of unity in light of the Good Friday Agreement. But most of all it is the challenge to nationalists to accommodate the British identity in an opportunity to exercise self-determination based on an all-island majority that is the mature and appropriate thing to do as outlined in Chapter Seven (“Confidence-building Measures on the Irish Side”). Humphreys is confident from the outset:

The genius of the Good Friday Agreement, it might be contended, is that it permits the “majority” within Northern Ireland effectively to determine which state the Northern Ireland entity will belong to, but permits the “minority” within that entity a very significant share in the public administration of the six counties and a major stake in the orderly government and administration of the entity overall. (p.8)

Not forgetting that, ‘This aspect of the agreement is the other side of the coin to the fact that the agreement rejects joint sovereignty, independence, repartition or dual consent of both communities’ (p.110).

Albeit it is a ‘brief historical sketch’ (p.4), Chapter One (“Unity Denied: 1920-1937”) offers an even-handed history spanning the period from Henry VIII to Edward VIII, detailing the uneven scales of justice. Contained within the broader constitutional landscape is an intriguing insight into the current legal status of the 1921 Treaty and 1937 Constitution as well as featuring some of the main protagonists in the way of Éamon de Valera and Michael Collins.

Following on from 1937, Chapter Two (“Towards a Common Understanding of Sharing These Islands”) likewise continues with the ‘abuses and assaults on democracy’ (p.39) until the Sunningdale communiqué of 1974, the fundamentals of which ‘ultimately bore fruit in the Good Friday Agreement’ (p.46).

While in the main presenting an uncomplicated analysis of the complicated provisions of the 1998 agreement, Humphreys, in Chapter Three (“The Good Friday Agreement 1998”), not for the first time touches upon the possibility of obscurity and the continuing existence of obligations when considering ‘whether and to what extent the Good Friday Agreement is legally binding on the Irish government in international law after the achievement of a united Ireland’ (p.84).

Not only does Humphreys prove he has a firm grasp of the issues in Chapter Four (“The Agreement as a Roadmap to Reunification”) when it comes to the history of the models of unity, but rest assured no question concerning the status of pre-existing Northern Irish law goes unasked.

Chapters Five (“Implementing the Bilateral Treaty Contemplated by the Agreement”) and Six (“Uniting Peoples as well as Territory”) both compliment the thinking of earlier instalments, although recent – indeed post-publication – events are of interest to note. First, Humphreys would have approved of the latest attempt to reform the 308-year-old law which bars the monarch from marrying a Catholic (pp.168-9). And despite the fact that it was blocked, he will no doubt see this [*346] attempt as a catalyst to ‘remove some of the more offensive pieces of sectarian anti-Catholicism that still have the force of English law’ (p.138). Second, for all his talk about a vote for unity ‘kicking the sleeping dog of unionist/loyalist paramilitary violence,’ it was dissident republicans (both Real and Continuity IRA) that attacked, murdering two soldiers and a police officer (p.153).

The full texts (or even shortened versions) of both the 1937 Constitution and 1998 Good Friday Agreement would have been more than worthy inclusions in the appendices, especially when considering the book is intended for the general reader. That said, the reference notes at the close of each individual chapter, as opposed to being located at the book’s end, enhance the reader experience. This is to say nothing of the fluid thesis spanning seven equally-weighted chapters on the matters of legal obligation and political judgment in the debate on Irish reunification.

Rarely is a book as unbiased and urgent as COUNTDOWN TO UNITY undoubtedly is. But despite the inference of the title that there is a timetable for a countdown to unity, the most Humphreys proffers is a solitary paragraph in the conclusion where he talks about a 30-year-period of joint authority to reduce tensions, ‘commencing under the aegis of British sovereignty and gradually moving towards a transition to Irish sovereignty’ (p.205). And yet this is no bad thing. For the simple reason that, with the publication of this book, people will be encouraged to engage in the process of addressing the issue, in all its complexities, and help bring about reunification in a rational manner.

Notwithstanding predictions that a united Ireland could be achieved by the 100th anniversary of the Easter Rising in 2016 appearing increasingly premature, no matter how rational the reunification process is, you can be certain that by the time of the series of conferences to commemorate the 500th anniversary of the Ulster Plantation, Ulster would have been firmly uprooted from British rule.

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© Copyright 2009 by the author, Lee P. Ruddin.

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LANDING NATIVE FISHERIES: INDIAN RESERVES AND FISHING RIGHTS IN BRITISH COLUMBIA, 1849-1925

by Douglas C. Harris. Vancouver: UBC Press 2008. 256pp. Hardcover. $85.00. ISBN: 9780774814195. Paperback. $32.95. ISBN: 9780774814201.

Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email: l.westnewman [at] auckland.ac.nz.

pp.341-343

This book is both a history generated for a very specific purpose and a contribution to the steadily growing literature on law and colonialism in the British white settler colonies. It documents relations between the state and First Nations people in British Columbia during the settlement period when indigenous rights to land and to fisheries were, through differing but related processes, substantially alienated to colonial interests. That relationship is revealed as one of conflicting interests between settler state and indigenous inhabitants where incremental policy developments consistently worked to the latter’s disadvantage. The pattern described was replicated with variations in the colonies of Australia, New Zealand, and the United States with substantially similar outcomes of economic resources appropriated and reallocated to the newcomers; a wholesale conversion of natural resources into ‘property’ and the transfer of that property and access to it into the hands of new proprietors.

Douglas C. Harris’ specific purpose here – ‘to address the need for a clearer understanding of the deep historical and legal currents that inform the continuing conflict over the fisheries on Canada’s west coast’ – was formed in connection with the hearings of a set of indigenous fishing rights cases taken in the 1990s. The analysis deals with two specific legal constructs: the Indian reserve (on land) and Indian food fishery that facilitated the colonial state’s control over these crucial economic resources, focusing primarily on the fisheries while delineating the differing conceptually framed legal regimes that were applied to the two. The success of the state’s strategies is marked in a record of diminishing access to economic resources and a corresponding fragility of indigenous capacity for autonomous existence.

This is undoubtedly a quite specialized book, containing an abundance of detailed and specific information, including maps of the traditional fishing territories of a number of tribal groups. It is therefore probably of most particular interest to researchers, and litigators in this area. It will be for scholars and those involved in legal actions over indigenous fishing rights what Maori in New Zealand describe as a taonga (treasured thing), to assist them in their endeavours. For those of us who are more general readers, although much of the detail might be of less interest, there is still some splendid material for anyone with an interest in colonial settlement and indigenous rights issues. Well chosen contemporary quotes encapsulate a world of indigenous experience where colonial comparisons operate always to [*342] the disadvantage of whichever form of ‘native’ existence is currently under scrutiny. A.C. Anderson, who was a Hudson’s Bay Company trader from 1832 to 1858 and became Canada’s first inspector of fisheries in British Columbia, left an example that reveals more of him than of his subjects in his description of the northwest fishing peoples. ‘Procuring an abundant livelihood with little exertion; gross, sensual, and for the most part cowardly – the races who depend entirely, or chiefly, on fishing, and immeasurably inferior to those tribes, who, with nerves and sinews braced by exercise, and minds comparatively ennobled by frequent excitement, live constantly amid war and the chase’ (p.7). By contrast, in contemporaneous British society, fishing for pleasure was a status enhancing prerogative of the landed gentry, associated with the desirable social attributes of patience, contemplation, and sport. But in the kind of paradox so often associated with cultural comparison, subsistence fishing is nevertheless a sign not of courage and resilience but of destitution as well as of laziness.

The place of ideological constructions and influences described in the previous paragraph is clearly and effectively drawn throughout the book, an attribute traceable to the influence of Douglas Hay on the author’s intentions. For this reason Harris’ analysis is clear about the role of power and inequality in the processes described, which adds considerably to the richness of his discussion. The chapters that describe the processes, both intentional and apparently inadvertent, by which the tribal groups and individuals were largely excluded from the progressive commercialization of the fisheries over the relevant time period, are particularly interesting. First Nations people were essentially faced with a legal regime that recognized neither ‘their prior rights to the fisheries or the correlation between land policy and fisheries’ (p.91). This meant that their participation in the development of, for example, the extensive salmon cannery industry was marginal, as workers not owners, and even as workers increasingly supplanted by labour from alternative (and migrant) sources. In the last fifty years of the period described, the Dominion of Canada developed a pattern of fisheries regulation on the Pacific coast that gave Indian fishers only ‘what amounted to a limited and discretionary protection for subsistence fishing,’ effectively opening the fisheries to the newcomers at the same time as the provincial government was opening the land also to settlers. The only argument of any persuasion for native fishery protection was the need to prevent Indian dependence on the state. Harris suggests that the existence of some public and official sympathy with Indians against the operation of laws that prevented them from access to this food source can be seen in the frequent cases of acquittal, but that this was of minimal effect in the light of fishery officials’ use of surveillance techniques and confiscation of gear to prevent the catching of fish for sale. The passing of the native fisheries is summed up in the fact that by the early twentieth century the Department of Fisheries described native fishing as a privilege, not a right.

Overall, this is largely a specialist’s book, but the broad themes encompassed in the introductory and concluding chapters, together with the range and quality of historical evidence, give it an [*343] interest well beyond its primary focus. Harris’ account gives evidence of the efforts of individual administrators who worked with good will and clear intentions to support indigenous special interests in the fisheries but also reveals how these were ultimately thwarted by political and bureaucratic interests, a pattern ubiquitous to the processes of white settler colonization.

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© Copyright 2009 by the author, Catherine Lane West-Newman.

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FROM WORDS TO WORLDS: EXPLORING CONSTITUTIONAL FUNCTIONALITY

by Beau Breslin. Baltimore: Johns Hopkins University Press, 2009. 232pp. Cloth $50.00. ISBN: 9780801890512.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University. Email: kewhitt [at] Princeton.EDU.

pp.337-340

Beau Breslin is an associate professor of government and assistant dean of the faculty at Skidmore College. FROM WORDS TO WORLDS is his second book, and his second with Johns Hopkins University Press. This one is published as part of the newly active Johns Hopkins Series in Constitutional Thought, now under the editorship of Sandy Levinson and Jeff Tulis. It is perhaps best described as a work of comparative constitutional theory.

Its inclusion in the series is particularly appropriate because Breslin’s new book is in many ways a nice realization of the form of constitutional studies associated with the “Princeton group,” a loose set of scholars connected with Walter Murphy in the 1980s and 1990s. Many of those scholars shared an interest in “a constitutionalist’s concern for constitution making, maintenance, and change” (Barber and George 2001, 2 [emphasis deleted]). This tradition of grand constitutional theorizing represented by the Princeton group and others was less concerned with justifying judicial review and guiding Supreme Court decision-making than with what functions constitutions perform within the political system and what the conditions of constitutional success might be (Whittington 2000). For Murphy in particular, such investigations led in a naturally comparative direction. His “Constitutional Theory” graduate seminar was rich on questions of constitutional design and nation-building, featuring literatures on such problems as civil-military relations and the establishment of educational systems in new nations. One fruit of the seminar recently appeared in the form of Murphy’s (2007) own book in the Hopkins series. Levinson and Tulis were both among the group of scholars who were associated with Murphy during that period. Breslin’s new book likewise reflects traces of some of the concerns that occupied his advisor, Will Harris, a Murphy student. As Harris (1993, 2) explored the conceptual difficulties of “the bonding of word and polity,” so Breslin is interested in how societies make the move “from words to worlds.” Where Harris was resolutely abstract and analytical, however, Breslin writes accessibly and grounds his analysis in comparative examples.

Breslin’s approach is to focus on constitutional texts. They are, he observes, important political documents in their own right and a building block of polities. Breslin is concerned, however, that constitutional scholars too often forget the text as they examine either the “legal” constitution or the “political” constitution, and too quickly move past the text itself to examine the legal doctrines, institutions, practices and cultures that grow up around and from the text. If “constitutions matter,” he [*338] suggests, then the distinct texts that different peoples adopt are worthy of study. Of particular interest to Breslin is the possibility that constitutions “help to form collective public identities; they help to shape a country’s public character” (p.4). They have the “ability to envision a distinct political community” (p.5). Examination of constitutional texts can help inform us of the kinds of political communities that different peoples have envisioned for themselves over time. Breslin is not interested in textualism as an interpretive strategy for understanding constitutional meaning. His interest is in the textuality of constitutions and content of comparative constitutional texts.

He posits that constitutions perform at least seven functions, and the book is organized to address each. Constitutions might 1) destroy an old regime and create a new one, 2) articulate collective aspirations, 3) structure governing institutions, 4) manage political conflict, 5) provide official recognition to minority groups, 6) empower institutions to make decisions and take action, and 7) limit government power. The book is designed to illustrate the fact that constitutions perform these functions and to observe some features of the constitutional choices involved in performing these functions.

This list of functions follows the order in which they are presented in the book. As a list, this organization does not seem quite logical. The chapters discussing these topics are largely independent from one another, but there is a choice to the structure. Breslin self-consciously decenters, if not necessarily subordinates, the function of constitutions that we tend to most emphasize, their power constraining function. Many would start with this issue, but Breslin chooses to save it until the end. Moreover, his discussion of constitutions as limiting government is paired with (and follows after) a discussion of constitutions as empowering government. In keeping with his broader theme, his opening chapters focus on constitutions as instruments of political transformation. The creation of a new political regime is now marked by the adoption of a constitution that overturns the old order and “represent[s] the birth of a new community” (p.31). In this new beginning, constitutional drafters are prone to using the occasion to telling a story of peoplehood that outlines a particular vision of national identity and political aspiration. Once Breslin has discussed these symbolic beginnings of a constitutional regime, often embedded in constitutional preambles or the very idea of adopting a new constitutional text, then he turns to functions associated with the operational features of the constitution and the management of political groups and conflicts that plays out across the remaining chapters in the book.

The individual chapters take the form of learned essays on each of these functions, with two introductory chapters on the textuality of constitutions and relationship between constitutions and constitutionalism. They are not analytical in argumentative style, nor do they systematically examine a variety of constitutions. Instead they offer meditations on a given issue, in dialogue with existing literature and informed by examples from across the globe and history. Thus, the chapter on constitutional aspirations observes [*339] that modern constitutional texts routinely imagine “a brighter political future” (p.47), and modern preambles have frequently become the place for drafters to “tell[] a story of oppression . . . and embrace[] the idea of the text as an instrument to achieve meaningful political and social reform” (p.51). Examples ranging from Cambodia to Bulgaria to Mozambique to Poland are offered to elaborate the point. On the other hand, his chapter on the use of constitutions to provide official recognition to minority groups references the American and South African case but primarily focuses on an extended case study of the Canadian constitutional experience, from the Constitution Act of 1867 to the Charter of Rights and Freedoms of 1982.

On the whole, FROM WORDS TO WORLDS is probably one of the most successful works of genuinely comparative constitutional theory to emerge recently. Breslin does not simply write about the American case or problems of American constitutionalism and reference a couple of foreign examples. He builds his understanding of constitutionalism on a broad foundation of thinking about what role such texts might play within political systems, particularly in new political systems, and the problems and examples that are front and center in the book and in his conceptualization of constitutions and what they do are not centrally or uniquely American. Breslin’s writing is also readily accessible, and the book could easily be assigned to undergraduates. His points are clearly developed, and his examples are illuminating.

The target audience for the book is less clear. It would function reasonably well as an introduction to constitutionalism. The essays rarely make evident what point, if any, they are contesting within the scholarly literature or how exactly the perspective offered here would alter prevailing understandings of constitutions and how they operate. Breslin’s chapter on how constitutions manage conflict is among the more interesting precisely because he departs from his usual style and identifies antagonists and arguments that he wants to take up and advance against criticism. Breslin begins the book by suggesting that the goal of his project is to demonstrate that there are “similarities both in the aims and in the functions of many of the world’s constitutions,” and that “most contemporary constitutions” share “important features” (p.4). He does not quite marshal the systematic empirical evidence to support that conclusion, but the book does provide good reason to think that many constitutions attempt to perform the seven functions listed above (whether they are effective in performing those functions is not Breslin’s project). In keeping with its learned essay style, the book is also a bit casual about empirical evidence. That is not necessarily to say that it gets things wrong, but there is little effort to give detailed evidence to support ready claims about such things as whether a given constitutional arrangement eases political conflict.

Breslin has produced an interesting introduction to constitutionalism that nicely weaves important questions about how constitutions operate and the functions they perform within a political system with myriad examples of constitutions from around the world and [*340] over the past two centuries. It focuses our attention away from the interpretation of any particular constitutional text and debates over the substance of constitutional law to the creation and ordering of political regimes. As such, it invites us to theorize with a constitutional drafter in mind rather than with a Supreme Court justice, and that is an invitation we should be prepared to accept.

REFERENCES:
Barber, Sotirios A., and Robert P. George. 2001. CONSTITUTIONAL POLITICS: ESSAYS ON CONSTITUTION MAKING, MAINTENANCE, AND CHANGE. Princeton: Princeton University Press.

Harris, William F., II. 1993. THE INTERPRETABLE CONSTITUTION. Baltimore: Johns Hopkins University Press.

Murphy, Walter F. 2007. CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER. Baltimore: Johns Hopkins University Press.

Whittington, Keith E. 2000. “Herbert Wechsler’s Complaint and the Revival of Grand Constitutional Theory.” UNIVERSITY OF RICHMOND LAW REVIEW 34:509-543.

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© Copyright 2009 by the author, Keith E. Whittington.

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FILES: LAW AND MEDIA TECHNOLOGY

by Cornelia Vismann, translated by Geoffrey Winthrop-Young. Stanford, CA: Stanford University Press, 2008. 216pp. Cloth. $65.00. ISBN: 9780804751506. Paper. $24.95. ISBN: 9780804751513.

Reviewed by Andreas Philippopoulos-Mihalopoulos, University of Westminster, London. Email: andreaspm [at] westminster.ac.uk.

pp.334-336

At first instance, this book is about the textuality of the law and juridical power in general. Indeed, the title FILES prepares the reader for a take on administration theory from a linguistic perspective. However, it quickly becomes apparent that this textuality is barely the beginning. After a short discussion of the connection between written and oral forms of communication, Cornelia Vismann invites the reader on a long and meandering historical voyage through the various turns which the recording of the law has taken, the linguistic turn included, ultimately showing what, at least for me, was the most important point of the book: the embodied materiality of the law as this appears in law’s textual apparatuses. The apparent linguistic turn of the law is taken to new levels with the introduction of the materiality of the text – the surface on which it was carved, the rod with which it was carved, the box in which it was stored, the room that contained the box, and so on. In what is often a lyrical and engaging language (“against old stories and rivers of files that never run dry, against whole oceans of texts, a dam is erected by industrious codifiers” (p.63)), Vismann describes the textuality of the law in its proper corporeality, by allowing a tactility to enter the law and its history with what I believe is an unprecedented intensity of engagement.

This intensity is not solely attributed to the academic merits of the text – and these are many. To start with, this an erudite book, full of unexpected insights and connections, historical research of the highest level and theoretical foundations of the most solid. It is also a book that takes risks. Vismann effortlessly combines Derrida, Weber, Luhmann, Kittler, Foucault, with often as little as a gesture towards their work but with a clear and solid understanding of the implications that their ideas might have on her study. With the exception of Derrida and possibly Weber, whose names appear more regularly, the others have contributed in not always explicit ways but whose implicitness somehow carries on performatively the subject of the book: namely, the concept of erasure, or to put it in the Derridean parlance, the trace left after the erasure, cancellation, loss, caesura. To put it briefly, the book’s main thesis is that the law (and with it political and juridical power) is produced through its very erasing: “deleting rather than writing establishes the symbolic order of the law” (p.26).Remarkably, this erasing is as much symbolic as it is physical, actual, tangible. Vismann uses a myriad of examples to illustrate this, in a loosely structured historical sequence which prioritises specific moments out of the history of writing law, with the running motif of the chancery informing the majority of her analyses. Chancery, as [*335] the institution of parallel legal order, is convincingly linked to the act of cancelling (etymologically, from the term cancellus, the latticed appearance of crossing out and deleting a text), in this case the cancelling of the draft once its text has been properly transferred onto its official form: “an erasable writing on wax tablets and its transcription into a durable inscription. The latter can attain validation and truth functions because it is preceded by a canceled ur-writing that has been rendered illegible” (p.56). This cancellation is also an act of violence, and it is perpetuated autopoietically with every cancellation, every annulment, and indeed any listing, codification and compilation that produces a new ‘original’ while deleting all its previous forms. It is also interesting that the act of cancelling occasionally turns against itself. Thus, when the time of files (at least in the conventional sense, since until then we had plaques and tables, scrolls and codices, parchments and papers) finally arrives in the sixteenth century, erasure as such is erased as a result of an obsessive retention of the textual progenitors of the (temporarily) final text. And when erasure is erased, the problems of authenticity, validity and priority rise to haunt the law: indeed, the law as we know it is precisely the product of an erasure, variably directed towards itself or towards the materiality of the law.

To give an example of the academic erudition of the book, it is probably enough to say that the research is equally thorough when it comes to the switch in the writing material from scrolls to codices in the Roman administration (and the magnificently drawn consequences for the law of the switch from the rolling and slowly unfolding papyrus of the scroll to the “detached and processed animal skin with fine hair” (p.44) of the parchment which was used for the codex and for which a knife – a clear technology of cancellation – was needed to cut it in manageable pieces for the codex). Equally thorough are the literary references with which the book is scattered, but whose more focused analysis takes place in the first chapter. There, Vismann offers the impossible: an interesting and at the same time novel reading of Kafka’s short story “Before the Law” in its connection to THE TRIAL. Using a heady mix of Deleuzian, Derridean and Luhmannian references, Vismann reads “Before the Law” as a preamble to THE TRIAL, namely a textual barrier that is announced by a cleric situated in a pulpit (as she correctly notes, the story is part of the chapter called “In the Cathedral”), a chancellor who turns into a prison-guard, a cancellus that discovers its identity with a carcer.

In this and other textual folds lies what I called earlier in this review the intensity of engagement. This book is clearly not just about files – although one would be very careful to say ‘just’ files after having read the book. It is about a loss, or even the process of losing and the nostalgia that comes with this loss. A loss of origin, or of the need for origin; a loss of writing in the digital age; a loss of materiality in its tactile and almost olfactory intensity with which some of the writing matter is described in the book. Vismann’s vertiginous trailing of cancellation from Kafka to Melville, from Goethe to Stasis, from Rome to Greece (in this order), from Prussia to Germany, unfolds an intense nostalgia that culminates in the coda dedicated to [*336] Anselm Kiefer’s gigantic metal books. These art installations-objects, prohibitive and monumental in their immovability, Vismann reads as files: renewable, comprehensive of their past and binding of the future, and able to exist (as art) only through their own cancelling (as files). In that sense, this is a most un-academic book. It is, in fact, a literary achievement, in the best sense of the word, that comes out equally from a writing style that manages to be lyrical about administrative files, a subtle sense of humour that makes some passages astonishingly personal, and a cohesive narrative that stops the reader from putting the book down.

Special merit should go to what I think is an excellent translation by Geoffrey Winthrop-Young, both faithful and playful, that has managed to convey the subtleties of meaning. The only problem with the book is the lack of index, either a general one or even a main names’ one. As a final observation, a question more than a criticism: all this compilation of information, the piling up of levels of different materiality and the assembling of writing surfaces and technologies, so artfully presented as to make the reader forget the origin; all this then has managed to leave the present reader wondering: what was erased for this text to become possible? What sort of cancellations did the author have to make in order to produce this self-standing but hopefully renewable and continuing metafile? This is neither a quest for marginalia, nor some psychological inquiry. Rather, it is a genuine indication that this book has achieved its goal of showing the visible invisibility of the process of cancelling and its foundational role in the production of any text.

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© Copyright 2009 by the author, Andreas Philippopoulos-Mihalopoulos.

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THE END OF LAWYERS? RETHINKING THE NATURE OF LEGAL SERVICES

by Richard Susskind. Oxford, England: Oxford University Press, 2008. 256pp. Cloth. $50.00/£24.99. ISBN: 9780199541720.

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

pp.331-333

Richard Susskind has come out with another new book predicting how technology and other social changes will affect the art of lawyering and the nature of the legal profession. While the title of this new book is quite provocative, the real theme is in the subtitle, RETHINKING THE NATURE OF LEGAL SERVICES. Susskind wants lawyers to think about how their work could be undertaken more efficiently and more cheaply. He thinks changes in the legal market and client expectations will force lawyers to decide what kind of work they should continue doing and what kind of work could be better done by non-lawyers using new legal technologies. This book builds on and updates the arguments he made previously in THE FUTURE OF LAW: FACING THE CHALLENGES OF INFORMATION TECHNOLOGY (1996) and TRANSFORMING THE LAW: ESSAYS ON TECHNOLOGY, JUSTICE, AND THE LEGAL MARKETPLACE (2000). Given the fact that he holds degrees both in law and in computer science, it is not surprising that he has spent a great deal of time thinking about the effects of new technologies on legal practice.

Susskind is British, and his starting place is certainly with the practice of law as undertaken in the United Kingdom. However, he is really talking to a much broader audience in the entire English speaking world. Almost all of his arguments could be made about any of the legal professions in the Common Law tradition, and some of his insights might even apply to lawyers in certain parts of Continental Europe. Although he uses some strictly British terminology throughout the book, he does translate almost all of these terms into American English for readers not familiar with the British usage.

In his opening chapter, Susskind talks about the need for lawyers to approach the world from a multidisciplinary perspective. He notes, “Whether consciously or not, in order to survive, many lawyers are widening their range of skills, broadening their sphere of impact, and are anxious that the world does not pigeon-hole them as detached scribes who sit in ivory towers. Many lawyers, in other words, can no longer eke a living from the law alone” (p.6). He hints that English law schools are too narrow in their training, although he does not comment on the trend in many American law schools to begin to bring interdisciplinary perspectives into the faculty and thus into the classroom. He also thinks that law firms will include many non-lawyers in the future.

As he pondered the future of the legal profession, Susskind makes the following rather startling assertions that underlie his thinking: “(1) lawyers [*332] might fade from society as other craftsmen have done over the centuries; (2) lawyers are denying that they are lawyers because they recognize they need to change and diversify in response to shifts in the market; (3) no-one seems to be worrying about the fate of the next generation of lawyers; and (4) the delivery of legal services will be a very different business when financed and managed by non-lawyers” (p.12). But the rest of the book really does not talk about the end of lawyers as we know them. Instead he explores how the legal profession and the work of lawyers may change because of technological advances. His point is that new communication technologies require rapid changes in the law and thus the legal profession, even though most lawyers are slow to adopt new technologies.

After a broad and sweeping introductory chapter, the second chapter explores a model of what the provision of legal services might look like in the future. Susskind believes that a great deal of legal work can be standardized and computerized, thus resulting in lower legal fees for the clients. He is clearly interested in the interplay between client demand for the commoditization or standardization of legal services with information technology advances. The model of legal work he presents (p.29) says that some legal work is personalized and individualized (“bespoke” in British usage), some is standardized, some is systematized, some is packaged, and some is commoditized like form wills or software to help prepare individual tax returns. Lawyers assume that all of their work is highly personalized and individualized, but Susskind argues that much legal work can and will fall into the latter categories. It is these latter types of legal work that threaten the future of the legal profession as we currently know it.

The third and fourth chapters deal with what Susskind expects in the development of future technologies. He argues that these technologies will accelerate the movement toward more commoditization of legal services. He notes, “Many lawyers exaggerate the extent to which their performance depends on deep expertise. Lawyers, like other professions, cloak themselves in a web of mystique, jargon, and apparent complexity, in part to project market value and partly, no doubt, as a matter of bolstering their self-respect. My point here is that simply because lawyers assert that expertise underpins their performance, we should not take this at face value” (p.90). Susskind continues, “Lawyers often overstate the extent to which the content of their work is creative, strategic, and novel” (p.90). He does say that new technology can also help lawyers be more creative. Comparing lawyers to medical professionals, for example, he argues that lawyers need to develop closed on-line communities where they can ask and answer legal questions among fellow professionals much like medical doctors already do now.

The fifth chapter is an unusual exploration of how new technologies will affect corporate in-house counsel and their legal work. This chapter also looks at how the changing expectations of clients will affect the legal work of all lawyers, not just those who are in-house. But the main thrust of the chapter is to predict how the practice of law will [*333] change in the future for those who are in-house corporate lawyers. Chapter 6 examines how litigation will change for law firms as technological changes come to court filings, discovery, and the like. In Chapter 7, Susskind focuses on the concept of access to justice, which he defines as preventing legal disputes from arising in the first place. Thus he compares the work of lawyers to the work of medical doctors practicing preventative medicine. The final chapter serves as a summary of the arguments and a call to action for the profession. As Susskind concludes, “I predict that lawyers who are unwilling to change their working practices and extend their range of services will, in the coming decade, struggle to survive” (p.268).

For those who ponder how the practice of law will change as technology advances, this book raises a host of fascinating issues. Thus Susskind does not really believe that the legal profession will cease to exist. Instead, Susskind argues that, “I believe that lawyers, in order to survive and prosper, must respond creatively and forcefully to the shifting demands of what is a rapidly evolving legal marketplace” (pp.272-273). This book makes some clear predictions about what lawyers will do and not do in the future, but it is most valuable for raising the issues in the first place. It is a provocative peek into the possible future of legal work and the lawyers who perform it.

REFERENCES
Susskind, Richard. 2000. TRANSFORMING THE LAW: ESSAYS ON TECHNOLOGY, JUSTICE, AND THE LEGAL MARKETPLACE. Oxford: Oxford University Press.

Susskind, Richard. 1996. THE FUTURE OF LAW: FACING THE CHALLENGES OF INFORMATION TECHNOLOGY. Oxford: Oxford University Press.

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© Copyright 2009 by the author, Mark C. Miller.

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TRIAL COURTS AS ORGANIZATIONS

by Brian J. Ostrom, Charles W. Ostrom, Jr., Roger A. Hanson and Matthew Kleiman. Philadelphia: Temple University Press, 2007. 204pp. Cloth. $56.50. ISBN: 9781592136308.

Reviewed by Paul Lermack, Department of Political Science, Bradley University. Email: pnl [at] bumail.bradley.edu.

pp.326-330

This small book reports on a large study. Court administrators and others who are trying to make court communities more modern and efficient will find it useful. Scholars will find it timely, and perhaps suggestive, in light of the present interest in empirical studies of law and courts.

Brian J. Ostrom, Charles W. Ostrom, Jr., Roger A. Hanson and Matthew Kleiman are empirical researchers who have previously separately studied various aspects of judicial process. Here they attempt something more general, and more ambitious. They want to create a model that can be used to describe the trial court communities of various cities, and within which these communities can be compared. They focus on organizational culture, those bundles of shared norms, values and expectations that grow up in any community. They assume that differences between communities can be accounted for by differences in cultures, and that differences in how well various communities accomplish their goals, operate justly, and satisfy the demands of their constituents are similarly affected by cultural differences. In looking to culture as a critical variable both for study and for policy changes, the authors follow the pioneering work of Robert Quinn, who has studied organizational culture in the business world.

They also draw on a thought-provoking, if not very large, heritage in the field of judicial process. As early as 1978, Church, et al. determined that differences between court systems in the speed of disposition of cases were largely the product of cultural differences between them. Various cultural differences also explained differences in the ability to reform procedures, clear up case backlogs, and modernize in general.

At about the same time, James Eisenstein and Herbert Jacob (1977), who were studying court systems as organizations, discovered that plea bargaining was conducted quite differently in the three large cities that they observed. The differences were partly attributable to differences in organization, including such things as how closely together the offices of the various negotiators were located. But in large part, the differences reflected differing expectations about how negotiations should be conducted and what outcomes were appropriate. Differences in court organization and procedure – for example, in where leadership originated and degree of centralized decision making – also seemed to have as much to do with cultural differences as they did with formal legal requirements. [*327]

Individuals who work together constantly can be expected to develop shared values and norms. It is perhaps surprising that observed court communities vary so much from one another considering that all, at their cores, are applying the same laws, respect the same standards of professional ethics, and must obey the same formal rules that govern procedural fairness. But court communities work in relative isolation from each other. (Before the days of extensive professional organization activity and required continuing education, when travel was harder, court communities were even more isolated.) And, as Abraham Blumberg (1966) argued, their members come to depend on each other. Inevitably, they will share their own values, habits and even crotchets, and pay little attention to those of outsiders.

Eisenstein and his collaborators moved cultural considerations to the center of their work, eventually arguing that shared norms and values contribute greatly to differences between criminal courts (e.g. Nardulli, et al. 1988; Eisenstein, et al. 1987). There the state of theory remained for perhaps twenty years: culture is generally considered an important variable, and distinctive local values have been described for some communities, but little has been done to permit systematic comparisons, and little is known about how values encourage or work against change and modernization.

The present authors, reviewing Church’s work, conclude that “local legal culture is a needed and a welcome starting point to examine how things are done in trial courts, but a fuller understanding of its nature and significance calls for more extensive conceptualization and measurement making it possible to connect different norms to differences in performance in a coherent analytical framework” (p.9). This book is their attempt to provide, and to begin to test, that framework.

The authors construct their model along lines commonly used in the business world, and reflecting the work of Quinn (1988), Goffee and Jones (1998), and others. They define one bundle of variables as constituting a dimension of variability they label “solidarity.” Communities high in solidarity pursue shared goals and tasks through agreed-on procedures; those low in this attribute stress “independence, autonomy and individuality among the judges and court staff in how they carry out their work” (p.37). A second dimension is labeled “sociability.” High-sociability communities are “closely connected in a communal or clan-like way” (p.37), while low-sociability communities manifest little social interaction.

When these two dimensions are set at right angles on a sheet of paper, they divide it into a graph with four quadrants. Real court communities can be located in this graphic space according to how closely their observed attributes approach one or another of four ideal-types, constructs that represent the extremes. High-sociability/high-solidarity courts, for example, the type that the authors label “networked,” are agreed on their tasks and goals, and work out among themselves how they will achieve these objectives. Low-low communities (“autonomous” types) allow the various members to conduct business as they see fit, with limited discussion of their differences. [*328]

The authors then must determine whether observable communities can be reliably plotted within the model. For this purpose, they study twelve described communities in three states. They develop and administer a questionnaire, the “Court Culture Assessment Instrument,” to judges and administrators. The CCAI asks about case management style, interpersonal relations, leadership, internal organization and change management. Based on their analysis of the responses, they assign each community an overall culture location within the model’s four quadrants. None of the observed court communities is located anywhere near the extremes of the model. But other findings surprise them nevertheless; they caution that courts vary within themselves more than expected, and that community culture may very well be different when different tasks are being discussed. “[P]ublic organizations may not have the luxury of a single culture and instead face multiple or competing cultures” (p.67). On one level, this seems intuitively plausible. Professionals who may work together amiably on routine tasks, and mouth unexamined platitudes about goals, may then develop independent streaks – and become distinctly less sociable – when they are forced to confront unpleasant change.

But on a different level, this observation also reveals a limit of the model itself. The authors locate the twelve observed courts precisely within the model’s physical space. No court community approaches the extremes that are defined in the ideal types. But the authors have no other tool to interpret what the locational placement means except the ideal types. They devote a full chapter to elaborating these four ideal cultures, based on “extensive and structured conversations” (p.68), beyond the CCAI, with court personnel. The conversations ask respondents about their perceptions of actual court culture, and their ideas about what court culture ought to be. Based on this, the authors provide detailed portraits of what the idealized “communal,” “networked,” “autonomous” and “hierarchical” courts would be like if they existed.

But there are no portraits of, say, half-hierarchical, half-communal courts. Nor are there portraits of courts that are 0.734 hierarchical, or 0.132 communal. It is as though mathematicians had worked out the value of pi to many decimal places, but then, when they plug pi into equations, must treat it as though it were sometimes exactly three and sometimes exactly four. As a result, any observed court will inevitably show characteristics of more than one ideal type. Analysis will have to be more or less – or when and where – rather than either/or. In this context, it is a valuable finding that the various respondents are aware of the “distinctive patterns to ‘the ways things are done’ in their courts” (p.69), that they perceive cultural differences, and that this awareness shows in the stories that they tell. It should be possible to compare observed courts directly, without reference to the ideal types, and to induce verifiable conclusions about the effects of, say, greater or lesser solidarity.

The authors then test a number of hypotheses, all subdivisions of the general claim that court culture is an independent variable that affects court performance. Culture seems to affect the timeliness of case processing, as [*329] expected. When they ask prosecutors and defense attorneys about their perceptions of access to procedural fairness and managerial effectiveness, the authors find that their respondents tend to rate courts with similar cultural types similarly. The data provide some support for the conclusions that community culture exists, can be measured reliably, and can be a useful research variable.

The model seems most useful when discussing those aspects of organizational life that most resemble those in the business world. There is a sense in which case management, like the flow of parking ticket paperwork through a court clerk’s office, resembles, say, the flow of claims through an insurance company. Court administrators, especially, will be interested in the unexamined norms and customs that govern this flow; the model’s insights will serve them well when they have to decide how much time to allow, for example, for community members to become comfortable with a new computer system. The model can potentially show them, if nothing else, which neighboring court communities are similar enough, in appropriate ways, to serve as guides and good examples. As courts adapt to change, they will find many uses for this approach.

The need to adapt quickly to change is a running theme in this book, and perhaps reflects the business-world origin of so much that the authors have borrowed. Quinn (1988) and others argue that quick adaptation is critical to survival, since less-successful business communities have to mimic, or at least adapt to, innovations and changes that have given their successful rivals their advantages. In the business world, there is no concept of due process, which may require slowness (for research, for deliberation, for repeated appeals) as often as it requires speed.

In this sense, court communities are emphatically not like businesses. Economists do not make moral distinctions. They make no distinction between, say, the vending of tobacco and the running of a charity hospital. But in courts, questions of justice, fairness and equity are never far from the surface. Moral values are as much a part of community culture as attitudes toward leadership, efficiency and sociability. There is little attention to this distinctive feature of court communities here. (Even when the authors ask about procedural fairness in the “extended conversations” summarized in Chapter 4, they record only the respondents’ perceptions about how well courts provide this critical value, and they do not provide an objective definition of fairness itself.)

The centrality of justice as a value is most visible when courts hold jury trials, which are never efficient. But it is also central in plea bargaining. Many scholars, prominently including the Eisenstein group, have found that plea bargaining works most efficiently, and is most equitable, when it is done in a community that shares values not only about how to do it but about what outcomes are fair. The “going rate,” the generally accepted punishment for a given crime, is a moral, as well as an economic, concept. It is the achievable, and perhaps optimal, goal of the bargaining process. But it also reflects accepted notions of what is fair and [*330] appropriate. Even parking ticket processing is not entirely arbitrary.

For this reason, the Ostrom approach will be less useful for scholars of plea bargaining. It may not be as useful for studying the ways in which court communities change in response to, say Apprendi as it is for calculating which cultures will be quickest to embrace a new computer system.

REFERENCES:
Blumberg, Abraham. 1966. “The Practice of Law as a Confidence Game,” 1 LAW AND SOCIETY REVIEW 15-39.

Church, Thomas W. Jr., Alan Carlson, Jo-Lynne Q. Lee, and Teresa Tan. 1978. JUSTICE DELAYED: THE PACE OF LITIGATION IN URBAN TRIAL COURTS. Williamsburg, Virginia: National Center for State Courts.

Eisenstein, James, and Herbert Jacob. 1977. FELONY JUSTICE: AN ORGANIZATIONAL ANALYSIS OF CRIMINAL COURTS. Boston: Little, Brown.

Eisenstein, James, Roy Fleming and Peter Nardulli. 1987. THE CONTOURS OF JUSTICE: COMMUNITIES AND THEIR COURTS. Boston: Little, Brown.

Goffee, Rob, and Gareth Jones. 1998. THE CHARACTER OF A CORPORATION. New York: Harper.

Nardulli, Peter F., James Eisenstein and Roy B. Fleming. 1988. THE TENOR OF JUSTICE: CRIMINAL COURTS AND THE GUILTY PLEA PROCESS. Urbana, Illinois: University of Illinois Press.

Quinn, Robert E. 1988. BEYOND RATIONAL MANAGEMENT. San Francisco: Jossey-Bass.

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© Copyright 2009 by the author, Paul Lermack.

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THE CONSTITUTION AND ECONOMIC REGULATION: OBJECTIVE THEORY AND CRITICAL COMMENTARY

by Michael Conant. New Brunswick, New Jersey: Transaction Publishers, 2008. 324pp. Hardback. $59.95. ISBN: 9781412807746.

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

pp.324-325

Michael Conant’s THE CONSTITUTION AND ECONOMIC REGULATION is an insightful, well-researched book. I enjoyed it, and I think legal scholars, philosophers of science, and economists will read it with delight. While Conant describes the work as an economic analysis and critical commentary on particular economic clauses of the Constitution, the book could be better described as an epistemological or hermeneutic analysis of law with applications to particular clauses of the US Constitution.

The fact THE CONSTITUTION AND ECONOMIC REGULATION is less about economics and more about knowledge and truth takes nothing away from its overall value, however. In fact, the great strength of the book can be found in the early chapters when Conant establishes the meaning of intent and argues persuasively for an objective approach to the Constitution. For Conant, Truth (with a capital T) and intent in the Constitution can be found if we look hard enough at the social context and legal framework at work in the 1780s when the Constitution was being developed. As he puts it (p.27), “the search for subjective intent of the framers and ratifiers, a popular slogan of some political conservatives, is an impossibility.” Though we cannot determine subjective intent, the project of understanding or interpreting the meaning of the Constitution (what Max Weber and a number of Austrian economists describe as verstehen) is not pointless. Instead, meaning can be found through careful “textual analysis” and a study of the “total social context.” In other words, to be good legal scholars, people need to be good historians, too, and Conant insists the Constitution cannot be understood in the absence of a clear understanding of the legal theory influencing it. In addition to reading British law, he encourages readers (p.31) to study the “common-law canons of documentary construction” that influenced the Constitution.

For Conant, then, objectivity is attainable through careful analysis. The existence of objectivity leads Conant to argue against stare decisis. He does not want to see precedent followed for precedent’s sake when there is an underlying true law that is at our disposal. Conant’s faith in objectivity also pushes us away from the “Anything goes” kind of relativism we find in contemporary law. For Conant, good law and bad law depend on whether or not they were consistent with the original intent of the Constitution, and this thing we call “intent” is something “reasonably educated” people can get at through hard work and careful study. [*325]

Conant is at his best in the early chapters of the book (Chs 2-4). Here he lays out his objective theory of law and the US Constitution before then applying it to particular clauses in the Constitution. In these chapters, the reader will enjoy a meaty discussion of epistemology and the search for meaning. As someone with an interest in philosophical hermeneutics, I was intrigued by Conant’s discussion, particularly how an objective approach to law would limit judicial review to constitutional issues. Chapters 5 through 10 then apply Conant’s discussion of objectivity to clauses like the Commerce Clause and the Fourteenth Amendment. While these chapters were also well-researched and important in demonstrating the need to have a correct constitutional understanding to guide legal decisions, I started to feel like I “got” the Conant approach towards the tail end of these chapters and found the number of different topics to be a bit overwhelming.

While I am a fan of the book as a whole, I have a few minor quibbles. First, I think Conant at times gives too much credit to the founders. He says (p.31) that they were “mere agents of the people as a whole,” and he wants us to think of them as framers of an important legal text who went about drafting this document influenced only by law and the social context that surrounded them. There are, of course, more skeptical (cynical?) interpretations of the founders’ motives that point out the role their own personal economic interests played in their attitudes towards the constitution. I wonder how Conant’s arguments would change if he assumed a greater level of self-interest in the people at the Constitutional Convention.

Second, the book starts off with a paper-thin chapter on economic theory and promises to apply basic economics throughout. As I stated earlier, though, Conant’s discussion of economics is minimal, and he does not appear to be relying on any kind of economic model at all. His model, and the work as a whole are contributions to epistemology, rather than law and economics. While I believe the works are nice and important discussions about meaning and knowledge, I think the book’s title is inappropriate and the Chapter 1 discussion is unnecessary.

Third, while the book is explicitly aiming to be interdisciplinary, it was at times too confusing and esoteric. Conant often assumed too much knowledge on the part of the reader when it came to past legal cases, and he could have done more with less by covering a few less clauses and providing more detail on each of the ones covered.

Finally, a concluding chapter could have greatly enhanced the work. The reader is left with a dangling chapter on the Equal Protection Clause with nothing more following. For a book that takes such a unique and important approach to understanding flaws in our current legal system, a concluding chapter that wraps up the work would have been nice.

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© Copyright 2009 by the author, Scott A. Beaulier.

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THE TRANSFORMATION OF CITIZENSHIP IN THE EUROPEAN UNION: ELECTORAL RIGHTS AND THE RESTRUCTURING OF POLITICAL SPACE

by Jo Shaw. Cambridge: Cambridge University Press, 2007. 416pp. Hardback. £65.00/ $125.99. ISBN: 9780521860703. Paperback. £25.99/$52.99. ISBN: 9780521677943.

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

pp.321-323

As the global economy has blurred the boundaries between nations, new questions have arisen about what it means to be a citizen of a particular nation. As people migrate away from their home countries to work elsewhere, there are new debates regarding migrant access to citizenship in their host countries, particularly the scope of electoral rights in these host countries. In her new book, THE TRANSFORMATION OF CITIZENSHIP IN THE EUROPEAN UNION: ELECTORAL RIGHTS AND THE RESTRUCTURING OF POLITICAL SPACE, Professor Jo Shaw chronicles in meticulous detail the debates over citizenship that have emerged over the years in the EU, largely as a result of EU citizens’ right to move and work across borders within the EU. Drawing extensively on information gleaned from EU community treaties, legislation, reports and proposals, Shaw analyzes the development of migrants’ electoral rights (those of EU citizens and non EU citizens, who are referred to as “third country nationals”) as the primary metric of how citizenship has evolved in the European Union. The book will prove useful for anyone seeking a greater understanding of how electoral rights are affected by the EU single market. On the other hand, some readers, particularly political scientists, may become frustrated by the book’s historical, legal approach which lacks a cohesive theoretical argument.

Shaw organizes the book by dividing it into three main sections: a three-chapter introduction which outlines the book and states the main theories and arguments behind the citizenship debate, a seven-chapter empirical section on the evolution of migrants’ electoral rights in the European Union, and a one-chapter concluding section. In the introductory section, Shaw states that her main purpose is to “illuminate the relationships . . . between the contested concepts and practices of citizenship and membership, of nation and nationality, and of states and state-like polities, such as the European Union” (p.1). In order to accomplish these research goals, Shaw is not interested in employing normative arguments about electoral rights, nor does she aim to use social scientific methods to explain or predict variation in electoral rights regimes across the EU. Rather, she utilizes “constitutional ethnography,” a method that allows for detailed comprehension of the political and legal landscapes in question.

Shaw’s empirical chapters are divided into two sections, the first of which details the chronology of citizenship debates within the EU, while the second [*322] looks more closely at the actual contestation of electoral rights in EU member states. In the first section, chapters four and five show us how the debates on citizenship have progressed since the early days of the European Community, with the 1993 Treaty of Maastricht representing an important turning point for the EU. Shaw emphasizes that in the 1960s and 70s, the movements of workers across member state borders were still somewhat hindered by the ability of member states to exclude or deport nationals of other member states “on the grounds of public policy, public security and public health” (p.97). However, in time, the European Court of Justice (ECJ) ruled that member states must interpret this law narrowly. Additionally, the need to complete the single market before 1992 goaded the member states into adopting political reforms, such as expanded electoral rights, that would facilitate the EU common market. These reforms eventually culminated in the Treaty of Maastricht of 1993, which conferred local electoral rights on non-nationals in member states, as well as allowing non-nationals to stand for election in municipal elections.

However, as Shaw points out, since 1993, the realization of the potential of such rights has been hampered by different standards of implementation across member states, as well as general ignorance on the part of EU citizens as to the scope of their full voting rights. A related issue, which is a major theme of the book, is the fact that most EU member states do not offer electoral rights in national elections to non-nationals or third country nationals. Although the book does not seek to make normative arguments, there is an underlying tone indicating that the lack of national electoral rights for non-nationals and third country nationals is problematic. Shaw cites numerous authors who claim that extending such rights can only strengthen democratic principles. Moreover, she argues that there is no logical justification for restricting national electoral rights to non-nationals, if local electoral rights are permitted and economic integration is sought. With this idea in mind, Shaw frequently returns to the legal instruments that member states can use to expand citizenship rights for non-nationals, if they so choose – legal instruments such as the European Court of Justice Gibraltar and Aruba cases, referred to throughout the book.

The second set of empirical chapters amounts to mostly a descriptive examination of barriers to citizenship and national electoral rights that non-nationals face in EU member states. Chapter eight is a case study of immigration in Ireland, and chapter nine compares the restrictions on citizenship to non-nationals in Germany and Austria, focusing on the dynamics between political parties and levels of government in the quest for migrant electoral rights. Particularly interesting is the Austrian case in which the Viennese government proposed laws which would grant local electoral rights to third country nationals. The proposals were successfully challenged in the Federal Constitutional Court by members of Austria’s right wing parties, as the Court did not find any foundation in Austrian or EU law to grant electoral rights to non-EU citizens. Finally, chapter ten examines these issues in the context of new EU member states, such [*323] as the Baltic nations. The location of these nations calls into question the treatment of ethnic Russians living in the Baltics, and Shaw finds that, while Russians in Lithuania and Estonia enjoy access to citizenship, Latvia, which contains the largest ethnic Russian population of the three nations, completely bars third country nationals from participating in local elections.

As one reads through this treatise on the ideas and practices of EU citizenship, it is difficult not to be impressed by the astounding wealth of research that fuelled its development. Shaw does an excellent job of pulling together all the details for every case study, and telling a rich story about the law and politics of citizenship. Shaw is also, more or less, true to her aims of producing a body of research that is in the spirit of constitutional ethnography. That said, this reader found the book’s style a bit frustrating, as Shaw does not seem intent on indicating to what literatures in law and politics her findings contribute. Indeed, an ethnographic study is based on the idea that the extant literature is not sufficient to formulate hypotheses, but Shaw might have provided more of a theoretical backdrop in which to explain her findings in the conclusion. Furthermore, there is a bit of a contradiction here, as she claims not to be making normative arguments, yet much of the literature that is cited comes from normative political theory. Finally, the confusion is compounded in the first section by the fact that a full roadmap and statement of the research purpose is not presented until the end of chapter three, which is nearly 100 pages into the book. Regardless of these points, one can not ignore the richness of Shaw’s historical analyses, nor can one disregard the painstaking detail with which she draws together coherent narratives out of voluminous EU documentation. After all, one can always enjoy the factual detail of the book, while applying one’s own theoretical perspective.

CASE REFERENCES:
EMAN AND SEVINGER v. COLLEGE VAN BURGEMEESTER EN WETHOUDERS VAN DEN HAAG, ECJ, Case C-300/04 [2006]. (Aruba)

SPAIN v. UNITED KINGDOM, ECJ, Case C-145/04 [2006]. (Gibraltar)

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© Copyright 2009 by the author, Colin L. Provost.

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JUDGES AND UNJUST LAWS: COMMON LAW CONSTITUTIONALISM AND THE FOUNDATIONS OF JUDICIAL REVIEW

by Douglas E. Edlin. Ann Arbor: The University of Michigan Press, 2008. 336pp. Cloth $65.00. ISBN: 9780472116621.

pp.316-320

Reviewed by Jack Wade Nowlin, The University of Mississippi School of Law, Email: jnowlin [at] olemiss.edu.

Douglas E. Edlin is an associate professor of political science at Dickinson College. His book JUDGES AND UNJUST LAWS is a study of the tradition of Anglo-American common law constitutionalism. Edlin examines the common law comprehensively as a “legal system, a legal tradition, a legal method, a mode of legal thought, and a body of legal principle,” which functions at both “structural” and “substantive” levels implicating structural questions such as the scope of the judicial power and substantive questions such as access to courts as an individual right (p.122). The ultimate focus of Edlin’s analysis is the practice of judicial review, but he is concerned with judicial review under the traditional principles of the common law rather than the more familiar topic of judicial review under the principles established by formalized written constitutions. This focus on common law judicial review distinguishes Edlin’s work from most books written today on the subject of judicial review and should make it of special interest to scholars in the field of judicial power.

Edlin frames his argument as inquiry into the perennial question of legal philosophy referenced in his title: What should judges do when faced with unjust laws? Edlin’s central argument flows from his dissatisfaction with a conventional approach to the question of “judges and unjust laws,” an approach which assumes that “unjust laws create a conflict between a judge’s moral obligations as a person and [his or] her legal obligations as a judge” (p.2). This conflict, as conventionally conceived, requires a judge either to fulfill one of these two sets of fundamental obligations at the expense of the other or to resign from office. Edlin contends that the conventional account is inadequate and that judges in common law systems have an additional important alternative in responding to unjust laws in a significant range of cases: judicial review of unjust laws under the common law.

What Edlin calls “common law” judicial review involves both the judicial recognition of the fundamental principles of justice incorporated in the common law and a limited judicial duty to declare acts of government that conflict with these principles “void” or invalid under the common law. Edlin argues that embracing this understanding of the common law will relieve some of the pressure on judges who confront unjust laws and who wish to display fidelity to both law and to morality. Obviously, Edlin’s understanding of the tradition of common law judicial review of statutes parallels in many respects the constitutional [*317] judicial review of statutes under the US Constitution. This parallel is no accident since, as Edlin demonstrates, American constitutional judicial review both originated in and reflects the continuing influence of the traditions of common law judicial review.

Edlin contends that common law judicial review is a function of the dual obligation judges have in common law legal systems (i) to apply the law and (ii) to develop the law in ways which promote its substantive justice. The judicial obligation to apply the law in common law systems is expressed in the familiar principle of stare decisis (respect for the application of law in the form judicial precedent) and what Edlin calls the principle of “legislative primacy” (respect for the application of law in the form of statute and the primary authority of legislatures to make law by enacting statutes). The obligation to develop the law to promote substantive justice, Edlin maintains, finds its expression in the practice of common law judicial review, entailing a duty to overrule some precedents despite the force of stare decisis and to declare some legislative enactments void under the common law despite the force of legislative primacy. Edlin defends his understanding of common law judicial review by invoking two alternative and mutually reinforcing forms of argument: a legal “source-based” argument which relies principally on historical precedents in support of common law review in the Anglo-American legal tradition and a “conceptual” argument which relies principally on a conception of the proper judicial function in light of the basic purposes of the common law and common law adjudication.

Edlin discusses at length the historical precedents which provide a set of authoritative legal sources for common law review, and he covers a wide range of English and American cases. As one might expect, Edlin relies heavily on both DR. BONHAM’S CASE and FLETCHER v. PECK. Edlin defends a “strong reading” of BONHAM, which views the case as asserting a power of judicial review to declare a statute void under the common law rather than asserting a mere canon of statutory interpretation. Edlin also defends what may be called the “common law” reading of BONHAM, which views the case as asserting a judicial power to declare legislative enactments void under the fundamental legal principles of the common law sharply distinguished from the extra-legal moral principles of the natural law. In a similar fashion, Edlin contends that the Supreme Court in FLETCHER invoked extra-constitutional fundamental principles of law as an independent and alternative basis for its decision to invalidate a state law on constitutional grounds and that these principles of law were drawn from the Anglo-American common law – and not from extra-legal principles of natural justice as a number of other scholars have contended. Edlin ultimately concludes that the understanding of common law judicial review on display in BONHAM supplied a “foundation for the modern doctrine of judicial review” as “developed in the United States” (p.73) and that “the principles of the common law provide[d] a legal basis for judicial review of legislative action independent of,” though often exercised “along with,” judicial review under written constitutions in the early American republic (p.100).

Edlin’s discussion of the “conceptual basis” for common law judicial review is grounded in an understanding of the [*318] proper judicial function at common law and turns on two simple but crucial points about the operation of common law legal systems: (i) “the common law is designed to develop over time in the direction of [substantive] justice;” and (ii) judges are “the primary institutional actors designated by the common law system” to ensure that development in the direction of justice occurs (pp.112-113). Perhaps the most interesting part of Edlin’s conceptual argument is his exercise in the Dworkinian interpretation of the contours of the proper judicial role. Here Edlin asserts that an interpretation of the judicial function which includes a power of common law judicial review both “fits” the law reflected in “Anglo-American common law traditions, methods, and sources” and best justifies that law by “permit[ting] a better interpretation of a society’s law” (p.129). Edlin bolsters these points by attending to the social harms that can flow from the failure to invoke the proper fundamental principles of legal justice to invalidate acts of government – including judicial legitimation of and complicity in unjust practices such as racial segregation.

Edlin provides a full analytical account of the practice of common law judicial review. In his view, judges have a legal obligation to apply the law – whether in the form of judicial precedents or legislative enactments – but this obligation can be overcome by the higher order legal obligation to develop the principles of the common law in the direction of greater substantive justice. This higher order obligation entails a duty to exercise common law judicial review. Even so, this duty is far from a simple judicial license to invalidate all putatively unjust laws. Edlin is quite clear that the principles of justice invoked in common law judicial review must be principles incorporated into the common law legal system by authoritative “express[ion] in legal form[s]” and that “not all social, moral, or political injustices are legal injustices” (p.13). Edlin also maintains that the exercise of common law review to invalidate a statute requires that a high threshold of “certainty” and “gravity” be met. “Certainty” here refers to the judge’s confidence that a conflict with the common law exists, and “gravity” refers to the judge’s evaluation of the moral importance of that conflict. Edlin would carefully restrict the power to declare a statute void under the common law to those instances where a judge is “thoroughly convinced” that an act of government conflicts with the common law and that it “involves an issue of the first moral magnitude” (p.141). That such an approach can be adhered to by judges with the proper restraint and respect for principle is demonstrated, in Edlin’s view, by the case law surrounding the Supreme Court’s well-known “shocks the conscience” test established in ROCHIN v. CALIFORNIA and used to review executive action as a matter of substantive due process. Finally, Edlin argues that common law judicial review requires that a judge “void” a statute only in the narrow sense of “refus[ing] to apply or enforce the statute against a particular party in a particular case” and that common law judicial review need not involve a greater power – in effect – to “excise the statute from the nation’s body of law” (p.149).

As suggested, Edlin frames his analysis as an inquiry into the over-arching problem of judges who must confront [*319] unjust laws, and therefore he examines the implications of his argument for contemporary judicial practices in the common law legal systems of the UK and US In the UK, Edlin recognizes that any recognition of common law judicial review will require overcoming the serious challenge posed by traditional English legal practices in favor of very strong forms of stare decisis and legislative supremacy. In the US, Edlin observes that the challenge for common law judicial review is far less substantial – given American legal practices in favor of only weaker forms of stare decisis and legislative authority. Still, here the problem for Edlin may be that common law judicial review appears to be in most cases substantively and structurally duplicative of the established practice of constitutional judicial review. Common law judicial review may therefore provide only limited benefits in terms of a broader judicial power to invalidate unjust laws while imposing substantial costs in terms of perceived judicial innovation.

Edlin – perhaps realizing the full force of this argument – recognizes that his analysis of common law judicial review, in addition to providing an independent ground for judicial review in the US, can illuminate, buttress, and guide the practice of traditional constitutional judicial review. As Edlin observes, common law and constitutional law are inextricably intertwined – historically and conceptually – and the common law approach “best describe[s] and explain[s] CONSTITUTIONAL adjudication in modern common law legal systems” (p.28) (emphasis added). Therefore, Edlin’s work remains of great value as a historical and conceptual exploration of the foundations of constitutional judicial review even as one may question whether common law judicial review provides much beyond an alternative ground for the exercise of already well-established judicial powers. Finally, there is at least one significant point where Edlin’s common law judicial review clearly extends the power of individual judges beyond the contours of constitutional judicial review as practiced in the United States: vertical stare decisis. On this point, Edlin asserts that common law judicial review extends to lower court review of the precedents of HIGHER courts. Edlin thus claims that a federal district judge could legitimately refuse to apply a precedent of the US Supreme Court in a particular case if all the requirements of common law judicial review were met in the judge’s honest evaluation of the case. Notably, Edlin recognizes that this is the “most unorthodox part of [his] argument” (p.152).

Edlin’s analysis is original and highly provocative, and readers will find much food for thought as well as much with which to disagree. To take just one example, proponents of judicial restraint in the US will have to grapple with Edlin’s thoughtful defense of a potentially quite expansive conception of the judicial power, even as they will likely object to Edlin’s incautious statement that “most” of their arguments ultimately “boil down” to the “absence of explicit references to judicial review in the US Constitution,” a contention which fails to recognize that the motive force behind judicial restraint is often the felt-need to harmonize the exercise of the judicial power with constitutional norms such as the separation of powers and federalism (p.127). Finally, even those scholars who disagree strongly [*320] with Edlin’s analysis will find that the book is well researched, well argued, and well written. In sum, JUDGES AND UNJUST LAWS deserves a welcome place on the bookshelf of any scholar working in the areas of judicial power, judicial review, constitutionalism, or the common law.

CASE REFERENCES:

DR. BONHAM’S CASE, 8 Co. Rep. 107a, 114a C.P. (1610).

FLETCHER v. PECK, 10 U.S. (6 Cranch) 87 (1810).

ROCHIN v. CALIFORNIA, 342 U.S. 165 (1952).

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© Copyright 2009 by the author, Jack Wade Nowlin.

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WHERE WE LIVE NOW: IMMIGRATION AND RACE IN THE UNITED STATES

by John Iceland. Berkeley and Los Angeles: University of California Press, 2009. 240pp. Cloth. $50.00/£29.95. ISBN: 9780520257627. Paper. $19.95/£11.95. ISBN: 9780520257634.

Reviewed by Kevin R. Johnson, School of Law, University of California, Davis. Email: krjohnson [at] ucdavis.edu.

pp.312-315

WHERE WE LIVE NOW is a concise (142 pages of text, with appendices, notes, references, and a subject index), well-written book that touches on a fascinating and important confluence of issues not thoroughly considered in immigration scholarship. Its author, John Iceland, a professor of sociology and demography, employs rigorous quantitative analysis of US Census data to shed light on the complexities of the impacts of immigration on residential housing patterns in the modern United States.

Despite monumental social changes wrought by the civil rights revolution of the 1960s, residential segregation continues to plague the nation. Major cities, North and South, East and West have long suffered from deep and enduring housing segregation. The segregation most often analyzed in academic research has been that of African Americans and whites, with so-called “hypersegregation” of Blacks in American social life prevalent today (Massey and Denton 1993). Due to the nation’s devotion to neighborhood schools, segregation in housing contributes to the segregation of the public schools across the United States.

Going beyond Black/white analysis of the issue, WHERE WE ARE NOW analyzes in a sophisticated fashion residential segregation through the lens of immigration. It specifically considers the impacts on housing patterns of the migration of diverse peoples from Mexico and Latin America, Asia, and Africa. Such an analysis is much-needed. The demographic diversity of the United States has grown exponentially since Congress eliminated discriminatory national origins quota system from the US immigration laws in 1965. The book tells the important story of the integration over time of immigrants of different races and national origins and their offspring in neighborhoods across the country. By so doing, WHERE WE LIVE NOW highlights the growing diversity of the American population and how, in certain instances, the struggle for civil rights implicates Latinos, Asians, and other groups as well as African Americans.

Iceland provides much detail – presented in easy-to-understand tables and graphs – showing how immigration is reshaping housing patterns in the United States. But the analysis goes considerably further than simply housing. It addresses questions important to evaluating the current state of modern immigration to the United States. The book considers the assimilation of immigrants residentially, evaluates whether the process of social integration differs for immigrants of different races [*313] and national origins, and studies how immigration from Asia and Latin America affects the residential patterns of native-born Blacks and whites. Theories of immigrant incorporation (pp.23-30) that attempt to explain the different integration experiences of immigrants of different races and national origins (e.g., Portes and Rumbaut 2006), are tested by the data.

WHERE WE LIVE NOW shows that, despite the critics, immigrants in fact are residentially assimilating in major metropolitan areas and are not splintering into hostile, homogeneous, and segregated neighborhoods. The book specifically concludes that

immigrant groups and their descendants are by and large becoming residentially assimilated in American metropolitan areas. For example, native-born Hispanics, Asians, and blacks are all less segregated from whites than are the foreign born of these groups. Immigrants who have been in the United States for a longer period of time are also generally less segregated from other groups than new arrivals. (p.4)

Not surprisingly, the socioeconomic class of immigrants and native-born minorities affects residential segregation, with minorities with higher incomes more likely to live in integrated neighborhoods (p.50). In addition, Iceland shows that the time to residential integration differs by group. Native-born Hispanics, for example, are less segregated than foreign-born Hispanics. I will return to group differences in housing patterns, one of the book’s major contributions to the literature, shortly.

From 1970 to 2000, residential segregation significantly declined for whites, Blacks, Asians, and Hispanics (p.49). One of the central (and hopeful) themes of WHERE WE LIVE NOW is that “immigration has softened the black-white divide. In particular, black segregation from other groups, including whites, tends to be lower in multiethnic metropolitan areas” (p.6). Put differently, “[i]ncreasing diversity was associated with declining African American segregation from other groups” (p.113). The percentage of predominately white neighborhoods fell from 61% in 1980 to less than 43% in 2000, as an increasingly diverse cohort of immigrants came to the United States. Over the same period, the number of integrated neighborhoods increased from one-quarter to one-third (p.117). Although integration at times has resulted in tensions, evidence exists of growing interracial cooperation and harmony, as evidenced by increasing rates of intermarriage.

Rejecting the common perception of Hispanics as monolithic, Iceland scrutinizes residential patterns of various Hispanic groups, recognizing the great heterogeneity among Latinos in the United States (p.82). The results are interesting and rich, if not always altogether surprising. Black Hispanics are more segregated than other Hispanics, both immigrants and native-born (p.85). US Black Cubans are not less segregated from other Cubans than the foreign born (p.103). “[W]hite Cubans and white Puerto Ricans show a strong pattern of assimilation with Anglos but not with Hispanics of other races” (p.103). Hispanics tend not to be segregated from Hispanics of different national origins, which offers support for [*314] the concept of a panethnic Hispanic identity (p.85). Often pointed to as an exception to Hispanic assimilation, Puerto Ricans are more segregated than other Hispanic groups (p.90). “[W]e see a pattern of assimilation of Hispanics not only with Anglos but also with African Americans” (p.102). However, presumably because of a significant immigrant component, “Mexicans are a little more segregated from Anglos than from African Americans” (p.91).

WHERE WE LIVE NOW serves as an effective rebuttal to the persistent criticism of generations of immigrants – that they fail to assimilate, live in separate ethnic enclaves, and cling to non-English languages, foreign cultures, and non-Protestant religions (e.g., Huntington 2004). Time and time again, whether from Germany, Ireland, China, Japan, and southern and eastern Europe, immigrants to the United States slowly but surely have become integrated into US social life. Although often challenged as a visible sign of racial separatism, immigrant-dominated neighborhoods provide the support and comfort that helps facilitate the adaptation to, and success in, a new land by immigrants and often serve as an important stepping stone to their full social integration.

After initially settling in immigrant enclaves, Latino and Asian immigrants tend to see more integration with whites over time. These groups of immigrants seem to serve as a kind of “buffer,” facilitating the greater integration of African Americans and whites discussed previously.

Interestingly, continued immigration also suggests continued residential segregation of new waves of immigrants. As new immigrants come and settle in segregated immigrant neighborhoods, there will – at least for a time – be more residential segregation than there would be without immigration. Thus, continued high levels of Hispanic immigration presumably would translate into continued levels of high segregation of Hispanics (p.78). Although restrictionists might endorse a “close the border” approach ostensibly to reduce residential segregation, policies that promote integration of immigrants, such as increasing access to English-as-a-Second language classes and facilitating naturalization, make more sense given the existing realities of labor migration to the United States.

Although the book provides room for optimism, there may be cause for concern in light of the evidence offered by WHERE WE LIVE NOW for the claim of Black exceptionalism – i.e., that the racism directed at Blacks in the United States is more virulent, and possesses more staying power, than that directed at various immigrant and racial groups. Despite declines in residential segregation, “blacks and black immigrants continued to be considerably more segregated from whites than other groups” (p.78). Levels of segregation among immigrants are highest among Blacks and least among white immigrants (p.5). Most fundamentally, assimilation among Black immigrants lags behind that of white ones. Although white/African American segregation has decreased over time, it has declined much less quickly than it has with most (i.e. non-Black) immigrant groups. African immigrants and Black Hispanics generally experience rates of residential [*315] segregation that remain long past that of other immigrants.

As this discussion suggests, Iceland offers important lessons for students of immigration. However, his discussion of US immigration history (pp.32-37) is not as sophisticated as the rest of the book. For example, in summarizing this nation’s immigration history, which is not without its blemishes (Johnson 2004), the book fails to mention that, from 1790-1952, only “white” immigrants were generally eligible to naturalize (Haney López 2006), thereby stifling the full integration of generations of immigrants from Asia. Similarly, the concluding chapter suggests that an increased emphasis on skills-based immigration in the US immigration laws might decrease residential segregation (p.140) but fails to acknowledge that endemic enforcement problems (e.g., approximately 12 million undocumented workers, many of them unskilled, currently live in the United States) would undermine efforts to limit immigration to exclusively skilled workers and professionals.

In conclusion, WHERE WE LIVE NOW offers important insights into the effects on immigration on the residential segregation in the United States. More generally, Iceland offers much food for thought as the nation strives to guarantee the civil rights of all racial minorities in this country – US citizens and immigrants alike.

REFERENCES:
Huntington, Samuel P. 2004. WHO ARE WE? THE CHALLENGES TO AMERICA’S NATIONAL IDENTITY. New York: Simon & Schuster.

Johnson, Kevin R. 2004. THE “HUDDLED MASSES” MYTH: IMMIGRATION AND CIVIL RIGHTS. Philadelphia: Temple University Press.

Haney López, Ian. 2006. WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (10th ann. ed.) New York: NYU Press.

Massey, Douglas S., and Nancy A. Denton. 1993. AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS. Cambridge: Harvard University Press.

Portes, Alejandro, and Rubén G. Rumbaut. 2006. IMMIGRANT AMERICA: A PORTRAIT. Berkeley: University of California Press (3d ed.).

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© Copyright 2009 by the author, Kevin R. Johnson.

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BLACK ROBES, WHITE COATS: THE PUZZLE OF JUDICIAL POLICYMAKING AND SCIENTIFIC EVIDENCE

by Rebecca C. Harris. New Brunswick, New Jersey: Rutgers University Press. 208pp. Cloth. $65.00. ISBN: 9780813543680. Paper. $24.95. ISBN: 9780813543697.

Reviewed by Timothy M. Hagle, Department of Political Science, The University of Iowa. Email: timothy-hagle [at] uiowa.edu.

pp.307-311

Questions of the reliability and validity of scientific evidence have long been of interest to legal practitioners and those who study the judicial process. The US Supreme Court’s decision in DAUBERT v. MERRELL DOW PHARMACEUTICALS (1993), produced a fundamental change in the way federal courts evaluate evidence produced by new and emerging science. Prior book-length treatments have examined how DAUBERT changed the evidentiary standard (Foster and Huber 1999) or, more generally, the relationship between law and science (Caudill and LaRue 2006). Missing from these analyses is an empirical examination of how state high courts have handled the evidentiary questions surrounding new science. In BLACK ROBES, WHITE COATS, Rebecca C. Harris aims to provide such analysis.

The first chapter is an introduction to the notion that judges are gatekeepers. This comes as no surprise, of course, but it is still worthwhile to recognize how state court judges function in this gatekeeping role regarding the admissibility of new types of scientific evidence.

The second chapter provides a combination literature review and explanation of the factors that likely influence whether state judges grant or deny the admission of new scientific evidence. The factors that appear relevant to the decision to admit or reject the evidence are similar to factors commonly examined in other models of judicial decision making. Some factors are clearly attitudinal (ideological orientation), while others derive from institutional characteristics (repeat players and litigant status). A third set of extra legal factors include professionalization of the science and third-party (non-legal) approval.

Another important factor for any state court decision is the legal standard used. Unlike the federal courts which must follow the standard mandated by the US Supreme Court, state courts may follow any of the three primary standards (or something else). As Harris observes, the easiest is the “reliability” standard characterized by state versions of Federal Rule of Evidence (FRE) 702. The most difficult is the “general acceptance” or FRYE standard, after the federal court of appeals decision in FRYE v. UNITED STATES (1923). The DAUBERT standard forms a middle ground.

With these various factors in hand, Harris turns to an examination of how state courts have dealt with three different types of scientific evidence: forensic DNA, lie detectors (polygraphs), and syndrome evidence [*308] (both rape trauma syndrome and battered woman syndrome). These three types of evidence provide a good contrast in that they differ in terms of being “hard” or “soft” science, by which party tends to support admission, and by the amount of interpretation required by experts.

Harris begins with forensic DNA and shows how, although DNA matching is not as straightforward as is often assumed, most courts approved of its admission even when the first cases appeared in the state high courts in 1989. Several tables are included to demonstrate the relationship of the identified factors with the admissibility decision. For example, one table shows the relationship between the scientific standard used and the acceptance rate. The results here clearly support the author’s characterization of the FRYE standard being the most difficult (77% acceptance rate), the DAUBERT standard being of medium difficulty (86%), and the FRE 702 standard being the easiest (93%). Of the chronological factors, the effects of two reports by the independent National Research Council (NRC) were examined. The first NRC report in 1992 cast some doubt on the statistical calculations used to determine the chance that the sample came from someone other than the defendant. Several courts cited this report in rejecting DNA evidence in the next few years. A second NRC report in 1996 was much more approving of DNA matching, and many courts cited this report in deciding to admit DNA evidence from 1996 on. These and other factors seemed to have a direct link to state court decisions.

Polygraph evidence is examined next. Although the timeline for polygraph decisions starts much earlier (1933 for the first polygraph case as opposed to 1989 for the first DNA cases), the number of cases decided is about the same. A striking difference is that although state courts admitted DNA evidence 82% of the time (126 of 153 cases), the state courts rejected polygraph evidence by the same percentage (136 of 163 cases). Like the examination of forensic DNA, Harris examines the polygraph cases using many factors in a bivariate fashion. Some factors help to explain the different treatment of polygraph evidence by state courts, but two primary explanations seem to lie outside the main factors. One of these is the level of interpretation needed for the data. DNA evidence essentially indicates that some bit of evidence (hair, blood, and the like) found at some location belongs to the suspect with a specified degree of certainty. In contrast, the theory behind polygraph evidence is that when a person is being deceptive it causes measurable physiological changes (blood pressure, heart rate, and so on). After taking baseline measurements, a trained expert could indicate when the subject was being deceptive based on changes from the baseline. The greater level of required interpretation of the measurements and the greater possibility of error (i.e., “beating” the machine or a false positive) seems to have made more courts dubious as to its reliability.

An additional complicating factor is that the decision on polygraph evidence is not a simple accept or reject. A third possibility is that the parties may stipulate in advance to admission of the results. Even if the parties so stipulate, state court judges still may reject the [*309] results as being insufficiently reliable. As Harris notes, this results in six possible outcomes. Aside from generally complicating the analysis, the number of cases in any cross section was often quite small.


The syndrome evidence cases assessed in the next chapter further complicate the analysis. Here, two different types of syndrome evidence are considered: rape trauma syndrome (RTS) and battered woman syndrome (BWS). Both are generally a form of Posttraumatic Stress Disorder (PTSD). As such, they were developed more for diagnostic than evidentiary purposes. Between the two, RTS tends to be presented by the prosecution in sexual assault cases, whereas BWS tends to be presented by the defense as part of a self defense argument. The science behind these two types of syndrome evidence is even softer than polygraph evidence and is heavily interpretative. Even so, state courts were much more likely to accept syndrome compared to polygraph evidence (55% of 31 RTS cases and 68% of 40 BWS cases).

Although Harris again provides several tables to highlight how the various factors are related to the outcome decision, it is difficult to determine why syndrome evidence is approved at a much higher rate than polygraph evidence, because the former is also not a simple accept/reject proposition for the courts. For RTS in particular, there may be more than one purpose for the evidence. It could be used to help prove that a rape occurred, or it could be used as evidence of a lack of consent to an acknowledged sexual encounter. In addition to the multiple outcome categories, the far smaller number of cases makes rigorous analysis more difficult.

Some comparison between the approaches to each of the types of evidence is presented in the individual chapters, but Harris follows this with a short chapter that provides further comparisons. The concluding chapter is mainly a “where do we go from here” discussion.

The main strength of the book lies in the empirical analysis of each of the three types of evidence. Even without a comparison across the types, each analysis is informative and interesting. The bivariate examination of the identified factors is quite useful. Also interesting is the reaction of the state courts to science that is more complicated. The science behind forensic DNA may be highly technical, but it is straightforward. Such evidence is also used for a fairly simple purpose. As such, courts have a relatively easy accept or reject decision. In contrast, the more interpretative nature of polygraph evidence, as well as the possibility of stipulations, makes the decision more complex. Similarly, the multiple purposes for which RTS evidence might be admitted adds further difficulty to any attempts to apply a scientific standard.

There are some weaknesses to the book. One could quibble about minor things, but three items are worth noting.

First, there seems to be some important aspects of evidence that are not mentioned. For forensic DNA, Harris notes that for every case in the analysis the evidence was a tool for the prosecution. Of course, forensic DNA [*310] has been used by defense advocates to free those convicted of crimes, many of whom were on death row. One could understandably exclude these cases from the analysis, but some discussion of this would have been appropriate. Similarly, more explanation would be welcome regarding two aspects of polygraph evidence. On the question of reliability, Harris notes that studies find it to be reliable between 70% and 90% of the time. Even at the high end of that range, is it enough to carry the burden of proof using the “beyond a reasonable doubt” standard? Judges may reject polygraph evidence because it does not meet the legal standard as opposed to a scientific standard. A second issue with polygraph evidence concerns the Fifth Amendment right against self incrimination. Even to the extent that a defendant may stipulate that the results may be used at trial, the Fifth Amendment is implicated and judges may look ahead to what that may mean in a variety of judicial contexts.

Second, Harris indicates how the cases were identified using a LEXIS search. She then made a judgment whether to include a case based on the legal issues. I performed a search on one aspect of RTS and identified two cases not included in her analysis. One could understandably be rejected based on the actual grounds for decision, but the other seemed appropriate for inclusion. Thus, more information on the inclusion criteria would have been helpful. Along similar lines, intermediate appellate court decisions denied review by the state high court probably warrant assessment. If there were no other cases from a state in the database, perhaps such lower court decisions served as the law for that state. Either way, some discussion of this issue would have been helpful.

Third, some external factors directly affecting the legal analysis should have been noted early on. In the concluding chapters, Harris indicates that some legislatures passed laws specifically related to one or more types of evidence. Even if this did not result in any state courts changing their positions, it should have been mentioned as part of the court’s decisional landscape. Similarly, did the US Supreme Court hear appeals on any of the included cases? Evidentiary questions may be primarily a matter for state courts, but it is possible some federal constitutional right could be implicated.

On the whole I found much of value in the book. It would have been nice had the analysis for each of the three types of evidence been longer and more thorough, but if one views it as preliminary empirical examination, the book functions quite well as an introduction to both these evidence types, as well as to how state courts deal with emerging science. As an initial cut at these topics, BLACK ROBES, WHITE COATS does a good job of laying the groundwork for more rigorous analysis to follow.

REFERENCES:
Caudill, David S., and Lewis H. LaRue. 2006. NO MAGIC WAND: THE IDEALIZATION OF SCIENCE IN LAW, by Lanham, Maryland: Rowman & Littlefield Publishers, Inc. Co-published with The Center for Public Justice. [*311]

Foster, Kenneth R., and Peter W. Huber. 1999. JUDGING SCIENCE: SCIENTIFIC KNOWLEDGE AND THE FEDERAL COURTS. Cambridge, Massachusetts: MIT Press.

CASE REFERENCES:
DAUBERT v. MERRELL DOW PHARMACEUTICALS, 509 US 579 (1993).

FRYE v. UNITED STATES, 293 F 1013 (1923).

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© Copyright 2009 by the author, Timothy M. Hagle.

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FIRST NATIONS CULTURAL HERITAGE AND LAW: CASE STUDIES, VOICES, AND PERSPECTIVES

by Catherine Bell and Val Napoleon (eds). Vancouver: UBC Press, 2008. 544pp. Cloth. CDN$85.00/US$98.00. ISBN: 9780774814614. Paper. CDN$34.95/US$39.95. ISBN: 9780774814621.

Reviewed by Anthony J. Connolly, Law School, Australian National University. Email: tony.connolly [at] anu.edu.au.

pp.303-306

The topic of indigenous rights has gained an increasingly prominent place in the law and politics of many nation states over the past decade or so, as well as well as at the international level. With the adoption by the United Nations in 2007 of the Declaration on the Rights of Indigenous Peoples, this trend seems set to develop even further. Amongst the many dimensions of the topic, those concerning the recognition, protection and repatriation of indigenous cultural heritage are of particular note. The phenomena comprising indigenous cultural heritage include tangible things such as sites and landscapes of spiritual, historic, social and economic significance, culturally significant objects and artefacts, and human remains, as well as intangibles such as indigenous languages, knowledge, stories, songs, and designs.

As Catherine Bell and Val Napoleon’s book makes compellingly clear, the importance of their cultural heritage to many indigenous peoples lies in the fact that for them that heritage serves as the fundamental expression of – indeed, in many cases, the very foundation of – their collective identity as a people. And this identity serves, in turn, to ground all the other claims and interests – all the other rights they assert in the world as indigenous peoples: rights to land, to political self-determination, to proper participation in wider polities, and to an appropriate degree of recognition and respect, more generally. Cultural heritage matters to indigenous peoples. Its recognition and protection is a necessary condition of their survival and well-being as indigenous peoples. So too, it matters to those non-indigenous persons who care about that survival and well-being.

For such persons and, indeed, for anyone interested in issues to do with indigenous culture and rights, whether they be students, academics, lawyers, anthropologists, museum professionals, social workers, or policy makers, this book provides a distinctive and valuable set of resources for deepening their understanding of those issues. It is, quite simply, one of the most innovative, interesting, and (though I am reluctant to use the term in an academic piece) inspiring books on indigenous rights that I have read. It operates on a complex and fascinating range of levels and establishes a new and quite exciting framework, I think, for researching and writing about indigenous affairs within an academic context. It is at one and the same time a work of oral history, anthropological case study and analysis, philosophical reflection, policy retrospective, law reform manifesto, and – in some of those parts transcribing the ideas and words of indigenous people [*304] themselves – strikingly poignant literature.

The book has something valuable to say about a range of issues associated with the broad topic of indigenous cultural heritage, including the difficulties of repatriating indigenous artefacts and human remains from non-indigenous possession; the past, present and future role of museums in relation to the protection and repatriation of indigenous heritage; the various modes of appropriation of intangible indigenous heritage by non-indigenous agents and institutions; the social and economic costs to indigenous people of seeking the repatriation and protection of their heritage; and the conceptual and practical obstacles that stand in the way, generally, of adequate and appropriate recognition and protection of indigenous heritage. Notwithstanding its Canadian roots, this is a book that will be of great value to indigenous people and those otherwise interested in indigenous rights and culture all over the world.

The book comprises a collection of essays written by an array of indigenous and non-indigenous authors. It is the result of a six year collaborative process involving academic and practicing lawyers, anthropologists, social workers, and, most importantly, a selection of the indigenous people of Canada (particularly, indigenous elders) and is the first of a pair of books on the topic. It opens with a preface and detailed introductory essay which together outline the history and methodology of the research, writing and publishing process associated with the book and articulate the ethical and political values which inform that process. Unusually, perhaps, I found the discussion of the project’s methodology to be one of the most interesting and valuable parts of the book. It is a methodology which addresses head-on the critical challenges posed by collaborative cross-cultural research in both a theoretically sophisticated and eminently practical way. As a result, the book displays a fascinating mix of identities, operating as an analysis of indigenous cultural heritage and its legal and policy environment; as a reflexive commentary on and inquiry into the very project of compiling such a book; and as a demonstration and artefact of how best to go about that project.

At the heart of the book’s methodology lies a commitment to ensuring the “active and meaningful” involvement of its indigenous participants in all stages of the research process: a methodological commitment which is entirely consistent with the substantive ethical and political values informing the book. From the project design phase, through the funding application phase, to the active interviewing phase, on through the collating and analysis of information gained and into the writing up phase, and beyond this into even the publishing and copyright negotiation phases, the indigenous people at the heart of this book have been empowered to deliberate, participate, and otherwise maintain a significant degree of ‘ownership’ of the project and its products. Further, throughout the process efforts were made to ensure that it complied with relevant indigenous laws and protocols. In this respect, the book provides a self-reflective and well documented paradigm for others researching indigenous issues. The book is an exercise in cross-cultural dialogue and collaboration, something to which [*305] theorists in the social sciences often pay lip service but too rarely put into practice in their research and writing.

Following the introductory essay, Part 1 of the book comprises a series of discrete case studies, articulating and analysing the views and experiences of six Canadian indigenous groups in relation to their own cultural heritage. These case studies form the substantive core of the book and serve as the focus of later more reflective and theory-based essays. It is in the case studies that the main themes of the book come to life in detailed and vivid accounts of the nature and significance of indigenous cultural heritage and associated indigenous law and practice; of the history of the treatment of that heritage by the Canadian state and non-indigenous society together with indigenous responses to that treatment; and of the strategies indigenous people themselves have formulated for future law and public policy reform in this field, as well as the challenges facing those strategies.

In these case studies, abstract issues of theory, law and policy take on a personal, human dimension. Further, though, in each of them the views and stories of the indigenous participants are carefully supplemented with an informed and sensitive linking discussion (historical, legal and theoretical) provided by the essay authors. The book mediates academic description, explanation and analysis with communal autobiography. It conveys an understanding of the issues not merely through presenting facts and analysing and explaining them, but through giving expression to the beliefs and values of the most important participants in those issues – indigenous people. Though there are clear commonalities of concern amongst the various groups encountered in the case studies, one of the most significant aspects of the book is its articulation of the subtle differences in conception and concern maintained by the indigenous groups involved. In this respect, the book acts to subvert the homogenising and stereotyping tendencies often maintained by non-indigenous readers in relation to the experiences and practices of indigenous peoples.

Part 2 of the book comprises a solitary essay providing an overview of a number of initiatives and outcomes relating to cultural heritage protection and repatriation in Canada over the past twenty years. Its professed intention is to enable readers to explore and reflect upon repatriation and protection issues beyond those detailed in the case studies. Its key value – for this reader at least – is in providing an analytical and law and policy rich backdrop for better understanding the earlier case studies.

The concluding Part 3 comprises three essays in which a mix of indigenous and non-indigenous thinkers reflect upon a small number of key themes arising out of the case studies. These themes have to do with the place of language within indigenous culture, the history and effects of State assimilationist policies on indigenous peoples and their heritage, and the ubiquitous issue of conceptual difference and its limits. The last of these essays by Brian Noble on the politics of conceptual difference, in particular, is outstanding. This is, at its heart, a book about cultural difference – conceptual, practical, and institutional – as well as the possibility of overcoming it to some mutually satisfactory degree. [*306] Noble’s piece, when read in conjunction with the case studies, conveys a clear and compelling sense of the nature and importance of the issues in this regard.

To sum up, I think the book is an important contribution to the increasing body of indigenous rights literature which is likely to influence the course of future academic inquiry into this topic. The editors and participants are to be congratulated on their remarkable efforts and achievement.

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© Copyright 2009 by the author, Anthony J. Connolly.

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COURTING CHANGE: QUEER PARENTS, JUDGES, AND THE TRANSFORMATION OF AMERICAN FAMILY LAW

by Kimberly D. Richman. New York: New York University Press, 2009. 288pp. Cloth. $39.00. ISBN: 9780814775950.

Reviewed by Isaac West, Department of Communication Studies, University of Iowa. Email: isaac-west [at] uiowa.edu.

pp.299-302

The recent legal victory securing civil marriage equality in Iowa, VARNUM v. BRIEN (2009), signals a decisive shift in the terms of this cultural debate about the acceptability of kinship units positioned outside of heteronormative logics. The ushering of legally-recognized same-sex marriages into the heartland by a unanimous court literally altered the terrain of the so-called “culture wars” from the coasts to the Midwest. More than a shift on the spatial front, VARNUM, in a decision written clearly for lay audiences to digest, supplied rhetorical reinforcements to lesbian, gay, bisexual, and transgender (lgbt) advocates with clear legal reasoning about the elasticity of equality, the changing definitions of families, and the need for more expansive regimes of legal recognition to accommodate queer couplings. Whether or not a direct result of VARNUM, a number of states have extended, or are considering extending, civil marriage rights and civil unions to lgbts. Thus, in many ways, the future looks bright for lgbts who desire the legal recognition of their relationships. Yet, in spite of these impressive gains in such a short period of time, this march toward full and complete equality will be a long one requiring extensive litigation and lobbying, and, in the interim, lgbt parents and guardians will rely on other legal arrangements to protect their parental/guardian rights. Kimberly Richman’s exemplary scholarship reminds us of the incremental gains made by queer advocates and just how much work we have left in front of us.

COURTING CHANGE turns conventional legal wisdom on its head in its defense of legal indeterminacy as a potentially productive site from which lgbt litigants might gain legal victories. In contrast to orthodox critical legal studies that focus on the detrimental effects of legal indeterminacy, Richman privileges those moments when legal advocates and judges have found ways to expand family law to make it more inclusive and responsive to lgbt needs. Writing within the constitutive tradition of sociolegal studies, one more receptive to and hopeful about the interpenetration of law and culture than critical legal studies, Richman alerts us to the complex cultural flows underwriting both judicial reasoning processes and dynamic understandings of families. In this vein, Richman makes a compelling case for studying both the law and larger cultural formations to understand better how each influences the other within particular cultural milieu. Absent the unrealistic wholesale restructuring of our liberal-democratic legal regimes, Richman rightly notes, equality’s promise requires that we must learn how to maneuver within these prevalent legal [*300] logics while also working to expand cultural understandings of families.

Of course, family law, by design and in practice, is one of the most localized and fragmented fields of law, which presents numerous obstacles for lgbts. With few explicit statutory guidelines, Richman acknowledges with extended examples instances in which judges have used the double-edged word of indeterminacy against the interests of lgbt parents and guardians. Richman assembles an impressive archive including every appellate court decision involving an actual or perceived lgbt litigant in a child custody, visitation, or adoption case since 1952, interviews with legal advocates and judges associated with this area of law and some of the cases analyzed, and even a few of the litigants themselves are interviewed to supply their understanding of the law. With this historical context and the explanation of contemporary cases, Richman optimistically forecasts greater inclusion and legal tolerance, if not eventual acceptance, of lgbt litigants, and this argument unfolds logically and clearly, making it appropriate for audiences spanning from lay audiences to undergraduates and graduates students.

One of the most impressive accomplishments is the way that Richman bridges and translates distinct yet cognate fields such as law, sociology, and lgbt/queer studies. The second chapter provides sufficient background and context for the different audiences imagined by this book. For example, Richman provides legal scholars unfamiliar with kinship studies, such as Kath Weston’s FAMILIES WE CHOOSE, with a concise review of how lgbt contestation of heteronuclear normativities has altered the commonsensical understanding of families. For those less familiar with the legal landscape informing this area of case law, Richman succinctly reviews landmark cases and general family law principles to frame her arguments. Richman’s synopses of these different discursive communities and her integration of them into a coherent lens of analysis is an instructive example of how to study law and culture.

The benefits of this kind of interdisciplinary work are evident in the third chapter in its consideration of the legal negotiation of identity, particularly categories such as “parent,” “family,” and “homosexual.” The use of all of Richman’s available resources, including legal decisions and interviews with interested parties, gives her unique insight into the agonistic mediation of these seemingly obvious identity descriptors when they are mobilized within and outside of legal contexts. There are numerous examples of legal restrictions placed upon parents who were penalized for being too gay, too dangerous for their child’s psychological development, or too selfish for pursuing a life outside of the closet. There are even examples of parents who lost their full parental rights because of suspicion about their sexual identity. However, Richman also presents substantial evidence of instances where lgbt litigants successfully challenged narrow conceptions of “family” to make allowance for lgbt parents. Upon review of the totality of these cases, Richman presents both statistical and narrative examples about the liberal progression of this area of case law. This is not to suggest that Richman reads these trends as uninterrupted or even progressions, but the overall trend appears headed for greater legal acceptance of lgbt parenting and guardianship. [*301]

In further support of Richman’s arguments about the malleability of legal identities, chapter four tackles one of the most important issues of critical legal studies, namely the problems associated with the invocation of rights and the individuating effectivities of these claims. While rights claims implicate lgbts in liberal narratives and hegemonic formations beyond their control and sometimes hostile to their lived lives, Richman argues for an alternative conception of how rights claims work within the realm of family law. When lgbt litigants articulate themselves as worthy of legal recognition and protection, Richman suggests, they demand rights to familial and relational bonds, thus ameliorating concerns about the entrenchment of liberally-duped legal subjects. That is, when individuals claim parental and guardian status, they occupy a more complex subject position than an individual asking for legal respect when they announce themselves as responsible for others and valuable in the lives of their children. These enunciated relationalities stipulate obligations and responsibilities beyond the respect and governmental non-interference afforded by the right to privacy or the right to bear arms. For those who might want a queerer reading of the law, meaning that they would want to critique the potential heteronormativity implicit with claims to equal parental/guardian rights, Richman implicitly addresses these concerns by exposing the potential to queer the law while working within its parameters. A more pragmatic view than a radical one, nonetheless, this chapter complicates overly simplistic calls to reject or trash the law in its explication of how individuals can tactically employ the law to unintended and unimagined ends.

Richman’s emphasis on the dialectical nature of the law spills over into the next chapter when she analyzes judicial dissents and how they influence majority opinions and produce resources that might benefit future litigants. The initial framing of the chapter, one which situates judicial dissents as similar to studies of legal resistance in everyday life, is a little strained, but the rest of the chapter deftly translates legal decisions for lay audiences and soundly defends its thesis. Less theoretically situated than previous chapters, the analysis of the selected judicial dissents nevertheless provides fascinating readings of how legal practitioners influence each other in a give and take that opens the door for social change. The range of cases is representative of the complex issues associated with lgbt parental/guardian claims, and, as a result, may be of most interest to those readers concerned with the pragmatic practice and consequences of this area of case law.

The concluding chapter neatly summarizes and draws out the implications of Richman’s provocative claims about the utility (and pitfalls) of legal indeterminacy. The most interesting part of this discussion puts family and custodial law in conversation with decisions legalizing same-sex civil unions or marriage. Here Richman addresses the debate about judicial activism and how progressive justices, often tarred with the label “activist judges,” are one of the best hopes for lgbt parents/guardians. Acknowledging the potential for judges to use indeterminacy against the best interest of lgbt litigants and their children, Richman stresses the potential benefits of legal activism, reminding us that there may be little to no choice in the matter. As long as individual judges retain wide latitude [*302] to render their decisions, Richman sees these situations as generative opportunities for lgbt-affirming litigation. Undoubtedly, this road to social change is a rocky, if not an unpredictable, one – the indeterminacy of the law cannot guarantee in advance progressive interpretations of the law. Yet, as Richman concludes, this is the system in which queer parents/guardians must work.

Again, COURTING CHANGE can and should be read by a wide audience. Richman’s extensive archive and innovative approach supplies an instructive guide to how scholars can integrate various approaches to the law to influence judges, legal advocates, and other interested parties. And as we approach a potential tipping point in this larger cultural debate about the rights and privileges of lgbt citizens, this type of engaged intellectual labor and the lessons learned from it deserve our respect and engagement, be it in the courtroom, classroom, or our everyday lives.

REFERENCES:
Weston, Kath. 1991. FAMILIES WE CHOOSE: LESBIANS, GAYS, KINSHIP. New York: New York University Press.

CASE REFERENCES:
VARNUM v. BRIEN, No. 07-1499 (Ia. Sup. Ct. April 3, 2009).

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© Copyright 2009 by the author, Isaac West.

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PRIVACY: THE LOST RIGHT

By Jon L. Mills. Oxford University Press: New York, New York, 2008. 408pp. $65.00/£28.99. Cloth. ISBN: 9780195367355.

Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas. Email: Gloria.Cox [at] unt.edu.

pp.295-298

In February, 2001, Dale Earnhardt, a well-known and highly successful NASCAR driver, was killed on the final lap of the Daytona 500. Although several years have passed, video clips of the deadly crash are still widely available on the Internet. Because Earnhardt’s death was accidental, Florida law required an autopsy, which resulted in photographs being taken of the body. When news organizations requested copies of the autopsy photos, Earnhardt family members began a legal fight to keep them out of public view. Although an agreement was reached to limit their disclosure, the battle was a tough one for several reasons, including the fact that the death of a famous person is newsworthy. Moreover, the person of whom the photographs were taken was deceased, and a deceased person has no right of privacy under US law. Add to that the fact that Florida’s strong freedom of information law requires disclosure of most public records, and the autopsy photographs qualified as public documents.

Representing the Earnhardt family in efforts to limit disclosure of the photographs was attorney and legal scholar, Jon L. Mills, Dean Emeritus and Director of the Center for Governmental Responsibility at the Levin College of Law at the University of Florida. As author of PRIVACY: THE LOST RIGHT, Mills provides a well-organized, scholarly work that gives a fine overview of information privacy, as well as an examination of legal theories, laws, and court decisions. Mills balances his highly detailed analysis of the shortcomings of the legal system with a chapter on “The Worst-Case Scenarios” in which he summarizes eleven cases about information privacy. These cases are all the more interesting because in some of them, as with the Earnhardt matter, Mills represented family members asserting privacy rights over various kinds of information. The result is a book that draws on the author’s expertise in both theory and practice.

Mills relates the story of a case involving a ship’s captain who was depicted in a negative and false light in a movie that was based on an actual tragic incident at sea (The Perfect Storm). Family members, upset at the distortion of their deceased relative’s reputation, turned to Mills for a legal remedy. It was another difficult case, as movies enjoy First Amendment protection, making it difficult to win in a standoff, even if the movie contains distortions. In this case, the movie’s director defended his actions with, “Is it correct in every single detail? Of course not, because we had to – made [sic] up a lot of things” (p.251, ftn 1329). Other cases detailed by Mills are similarly interesting – and disturbing – as when readers learn that the family of a deceased child could not recover damages even though a copy of the autopsy video of the child was taken [*296] home by police officers and played for entertainment at a private party (pp.252-53).

The history of information privacy is commonly traced to an article entitled “The Right to Privacy” published in 1890 by Samuel Warren and Louis D. Brandeis. Their discussion of the privacy right is said to have resulted from irritation over newspaper coverage of Warren family parties. Years earlier, Thomas Cooley had already written about privacy in a discussion of torts, using the phrase, “the right to be let alone.” It would, however, take a century for information privacy issues to take on the urgency they have now. Well into the 1980s, concerns about information privacy were primarily about how much and what kinds of information the institutions of government were collecting, and, once in government hands, what had to be released upon request and what had to be withheld as private. These discussions were largely couched in terms of The Freedom of Information and Privacy Acts.

Mills describes how the recent rush of technology has brought the profit motive to bear on information privacy in a major way, causing the formation of numerous businesses that deal in the collection and distribution of information, much of it individually identifiable data. One need only think about the number of recent news stories concerning credit scores and reports to realize the power of three credit reporting firms that collect information on how people pay their bills. In thousands of ways, information has become a profit machine as businesses meet the demand for information on individuals. Add to that the fact that everyone seems to have a camera in hand now, and pictures of all types find their way to the Internet and print media. Mills discusses a number of incidents involving celebrities, including a story about how actress Reece Witherspoon was surrounded and trapped in her own vehicle by photographers, and Arnold Schwarzenegger had a wreck as photographers pushed in against his car in what he said he thought was a kidnapping attempt. Occasionally, someone will take a person or business to court for violation of their information privacy, only to hear from the courts that people have no privacy interest whatsoever in their bank records, telephone numbers, Internet Addresses, or other information.

A key idea Mills offers is that much of the information out there about each of us is the result of our own doing. He reminds us that we voluntarily give up information to get things, such as a mortgage, a job, a bank account, medical care, a credit card, and even just to save money at the grocery store. It must be acknowledged that at the same time some people are protesting having to give up so much personal information to engage in the ordinary pursuits of life, there are many others who willingly reveal a great deal about themselves. In this regard, Mills comments on the work of Jeffrey Rosen, who has written about the “growing culture of self-revelation” (p.34).

Of course, people give up information in small increments that may seem to be of little consequence. Believing that these small encroachments amount to nothing is a mistake, according to Mills. He notes that data mining is common, not [*297] just by private companies but by governments. And although we disclose information in small quantities, a piece at a time, what goes on is the aggregation effect, by which amazingly-revealing dossiers can be created on individuals out of tidbits (pp.56-57). Many are shocked to learn that anything disclosed voluntarily is no longer invested with any right of privacy.

While there is evidence that people have valued privacy for hundreds of years, expectations of privacy and threats to it have changed with time. Mills argues throughout the book that privacy serves important needs for both the individual and society. In his words, “Privacy promotes individuality, intimacy, and liberty” (p.26). He argues that we lose something important when privacy goes away and that its loss “also impairs creativity in art, science, and living” (p.27). At the same time, however, Mills says that “Today’s culture has evolved to a point where individuality and privacy are challenged by virtually all aspects of contemporary society” (p.25).

The author provides important information about why existing legal tools are simply inadequate for privacy protection. He points to the gaps in the law resulting from fragmentation, as well as the problem of balancing privacy protection with First Amendment free speech and press guarantees. He makes it clear that privacy protection in the United States lacks the unified nature it has in the European Union. While there is a strong predisposition toward release of information or making everything public in the United States, laws in the European Union protect personal privacy as an aspect of dignity. The result is an overarching framework that protects privacy in a way that our fragmented system never can.

Mills notes that complacency has turned to concern among many, and that there is increasing interest in trying to protect whatever information about us remains private. A major fear is identity theft, which has become increasingly common. As people hear about more and more such incidents, apprehension has increased, to the point that our fear of identity theft is greater than our fear of getting cancer or being involved in a terrorist attack (p.241). There are also concerns about the possible consequences of medical information being disclosed, especially with the increasing use of genetic tests that may reveal a predisposition toward certain diseases. Yet there are numerous obstacles to effecting reform, including our anxiety about terrorism and national security, our commitment to the First Amendment’s guarantees, the fact that buying, selling, and distributing information is big business, and laws demanding that the public’s business be done in the open (p.241).

Even with all these obstacles, there are steps that, when taken, would serve to strengthen our ability to control information about ourselves. Mills discusses several ideas beginning with creating a right of information privacy like that of the European Union (p.273). Other recommendations include more laws to protect specific areas, such as genetic information and consumer information. He also recommends establishing a federal agency “with power to set standards for privacy protection, investigate abuses of individual privacy, and enforce privacy policies” (p.279). Overall, the author [*298] subscribes to a comprehensive approach that would allow the fashioning of a new view of information privacy while also plugging holes in current legal theory and practice.

Information privacy has many dimensions and is certainly not an easy subject to discuss. Mills has done a fine job of organizing its many points of contention while still providing important underlying principles for understanding the issues. This is a book for the serious reader with considerable interest in the topic. Beyond the 307 pages of text, Mills provides a section about his own career, including a brief overview of some of the notable information privacy cases he has litigated. In addition, he includes appendices examining privacy provisions in federal statutes, an overview of privacy provisions in state constitutions, and examples of privacy provisions in consumer protection policies.

The expertise of the author shines through in this book, inspiring the reader’s confidence that Mills knows both the legal and practical aspects of privacy. He deals deftly with the details and nuances of the subject, causing one to suggest that this book is just right for the person looking for a solid introduction to the subject of information privacy.

REFERENCES:
Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right To Privacy.” 4 HARVARD LAW REVIEW 193-220.

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© Copyright 2009 by the author, Gloria C. Cox.

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COURTING SOCIAL JUSTICE: JUDICIAL ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN THE DEVELOPING WORLD

by Varun Gauri and Daniel Brinks (eds). New York: Cambridge University Press, 2008. 384pp. Hardback. $90.00. ISBN: 9780521873765. eBook format. $72.00. ISBN: 9780511426841.

Reviewed by Jamila Smith-Loud, Department of Government & Politics, University of Maryland. Email: jamsmith [at] gvpt.umd.edu.

pp.292-294

COURTING SOCIAL JUSTICE: JUDICIAL ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN THE DEVELOPING WORLD, edited by Varun Gauri and Daniel Brinks, asks the important question of what role do judicial bodies play in the implementation of social and economic rights? It also asks, when comparing the judicial branches of different countries, how if at all do differences in political and legal culture affect a court’s social justice agenda? Through the use of in depth case studies, the authors of this book were successful in delivering an extremely useful and important analysis of the judicial process and how the process through which a country constitutes social and economic rights may affect the legal outcomes for underrepresented members of the community. By the end of the book readers will recognize that whether courts expand or limit the protection of social and economic rights will depend on a host of social, legal and political factors.

The book offers a comparative analysis of five countries, South Africa, Brazil, India, Nigeria and Indonesia. Each case study is equally rich in empirical detail, as well as relevant social and political factors. All of the case studies examine social and economic rights by focusing primarily on health and education rights litigation. This book is written to be accessible to both the serious empirical scholar of law and justice, as well as anyone interested in social justice and the protection of rights for disadvantaged populations. The ideas presented offer academics, scholars, and activists, alike, the possibility of applying theoretical and empirical analysis to their own practices to further social justice.

In the introductory chapter, Gauri and Brinks set out a theoretical framework for understanding courts and social and economic rights. This chapter serves as a useful guide for the reader in recognizing the common themes of the book, despite the vast differences in each country with regard to legal norms, processes and outcomes. At the outset, Gauri and Brinks explore the intersection of formal rights and legalization. The editors define the “legalization of policy” as the life cycle of public policy litigation, which they say occurs in four stages: 1) legal mobilization; 2) judicial decision making; 3) bureaucratic, political and private responses; and 4) follow-up litigation.

For Gauri and Brinks, the question of whether the legalization process can occur in countries where the constitutional process does not allow [*293] substantive rights to be attached to a formal right appears to be an essential question. I agree that the question of whether social rights are enumerated in the constitution is the starting point for understanding how these types of rights will be handled, but the most striking and distinguishing factor between the countries is not the existence of the formal right, but how, through the process of judicial review, the relationship between constitutional rights and state actors is enforced. In each case study, the extent to which the judicial branch can delineate duties to state actors is a determinative factor of the overall success of social and economic rights litigation. For example, Nigeria’s constitution contains provisions for social and economic rights, including access to health care and education, but issues regarding access to the legal system and procedural issues, such as standing, seem to limit the extent to which courts can be influential with regard to social and economic rights.

The connections between constitutional decision making and the state and the resulting relationships that emerge between state and provider represent a set of issues that reappears throughout the book. Helen Hershkoff further explores the relationship between social and economic rights, constitutionalism and private entities in a chapter entitled “Transforming Legal Theory in Light of Practice.” Hershkoff examines the extent to which judicial decisions could affect the manner in which private organizations provide social services, particularly in areas such as health care in which the government is often not the provider of the service. This analysis is particularly relevant and useful in light of the case studies which consistently challenge the notion that constitutional enforcement is only applicable to government activity. In Brazil, where access to health care is considered a fundamental right, as well as an essential part of “humane democracy,” health rights litigation addresses the fulfillment of obligations by not only the government, but also private health entities, including insurance companies. In India, health and education rights are considered non-justiciable rights, as the Indian constitution distinguishes between enforceable fundamental rights and non-enforceable directive principles (p.148). Hershkoff uses India as an example where courts reshape constitutional norms to affect how private contracts and market regulation impact social and economic rights. Evidence from India provides particularly useful insights into the potential for courts to influence social change, as the Indian Supreme Court not only has constitutionalized health care rights, but as explained by Hershkoff, has applied constitutional principles, such as the right to health care in litigation against private entities.

While there is significant literature questioning the ability of the courts to protect rights or effect social change (e.g., Rosenberg 2008), the editors of this book seem optimistic about the courts and role they play. As prior research has indicated, the ability of the courts to produce social change is limited by issues such as access of litigants to the judicial process (Galanter 1974). For many countries, as noted in the India case study, common law systems only permit courts to hear cases from those personally affected (p.140). This procedural rule has a significant [*294] impact on access to the legal process for marginalized groups. In Brazil, Nigeria and South Africa, the furtherance of social and economic and rights have been thwarted by potential litigants’ lack of resources, which limits their ability to pursue social and economic rights litigation. Regardless of the existence of a social or economic right, either enumerated in the constitution or created by legislative or international law, the quantity and substantive importance of these types of cases is rather unimpressive. In Nigeria, the standing requirements have proved to be particularly problematic because “individual victims who are required to disclose personal interest in the matter rarely succeed because, personal interest, defined as interest over and above that of the general public, is difficult to prove where the alleged violation (or governmental failure) also affects other members of the public” (p.198). A question that arises and needs to be addressed more thoroughly in this book is what significant role can courts play in the policy process when individuals or groups in most need of legal protection have limited resources to participate in the process. Furthermore, do such procedural hurdles add to the argument that courts enhance the distance between “the haves” and “the have-nots” by allowing only the interest of those with resources to find protection in the judicial branch.

Overall, this book successfully merges theoretical analysis regarding the courts as policy makers and their ability to protect rights with empirical data through the case studies. The value of the comparative model allows for a comprehensive assessment of the myriad of factors that influence the judicial review process, specifically with regard to social and economic rights litigation. The case studies identify numerous factors related to the ability of courts to make policy changes, including the political will of the court, as well as historical political and social factors. However, the volume of factors that are considered may leave readers with a fragmented understanding of the circumstances necessary for courts to be effective in social and economic rights policy making. In sum, I expected a more definitive conclusion about the role of courts and the protection of rights, but I also accept that there is no perfect set of circumstances, and positive social change is difficult to achieve.

REFERENCES:
Galanter, Marc. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” 9 LAW & SOCIETY REVIEW 95-160.

Rosenberg, Gerald N. 2008. THE HOLLOW HOPE : CAN COURTS BRING ABOUT SOCIAL CHANGE? (2nd ed). Chicago: University of Chicago.

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© Copyright 2009 by the author, Jamila Smith-Loud.

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PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM’S CORE QUESTION

by William W. Buzbee (ed.). Cambridge: Cambridge University Press, 2009. 319pp. Hardback. $90.00/£50.00. ISBN: 9780521888059. eBook format. $72.00. ISBN: 9780511474279.

Reviewed by Staci L. Beavers, California State University San Marcos. Email: sbeavers [at] csusm.edu.

pp.288-291

Reviewing edited volumes can prove tricky, particularly when the reviewer’s previous exposure to a book’s complex subject matter is somewhat limited. In reading this volume with “fresh eyes,” I found the authors’ work truly eye-opening in that it powerfully brought home to me the complexities and the impacts of federal policy-makers’ decisions to preempt state policy discretion. While this deceptively slim volume (319 pages) made for dense and challenging reading for me as a social scientist rather than a legal scholar, it was definitely a worthwhile investment of my time as a professor who teaches a range of courses within US politics.

The thirteen chapters in this volume, along with the introduction and conclusion by editor William W. Buzbee, focus attention on various aspects of preemption, whereby the federal government can limit or eliminate state-level policy responsibilities and choices in a multitude of policy areas. Taken together, the chapters explore the many players involved in preemption decisions across all branches and all levels of government, as well as citizens who may lose access to legal remedies or political options if the federal government stems state policy alternatives.

All of the book’s contributors are legal scholars currently holding academic appointments, with most having also logged time serving in various posts in the federal government. While the authors consistently acknowledge federal preemption authority under the Constitution’s Supremacy Clause, they also consistently challenge a host of federal decisions to preempt. The book seeks to “contribute to the development of normative arguments against preemption by using theoretical, legal, and historical analysis” (Buzbee, p.3), with authors typically supporting “regulatory schemes . . . embrac[ing] overlapping, shared, and often-intertwined jurisdiction” (Buzbee, p.2). The “norm” established with the Supreme Court’s acceptance of the New Deal and rejection of the dual federalism tradition in 1937 (Schapiro, p.41) provides the preferred model for these authors, whereby “partial preemption” provides “minimal federal protections, or floors” that still allow “states [to] retain latitude to enact non-conflicting positive law and litigants can continue to seek relief in [state] court[s] through common law regimes” (Buzbee, pp.2-3). Case and agency decision examples across chapters illustrate the breadth of preemption’s potential reach, ranging from regulations of grain elevators to immigration to greenhouse gases (all of which are discussed by Christopher H. [*289] Schroeder in Chapter 6, “Supreme Court Preemption Doctrine”). However, a few areas receive particular focus, most notably environmental policy. (Environmental policy is addressed across several separate chapters, but most particularly in Buzbee’s “Federal Floors, Ceilings, and the Benefits of Federalism’s Institutional Diversity,” Chapter 5; William L. Andreen’s “Delegated Federalism Versus Devolution: Some Insights from the History of Water Pollution Control,” Chapter 12; and David E. Adelman’s and Kirsten H. Engel’s “Adaptive Environmental Federalism,” Chapter 13).

Though the book’s premise is reasonably simple, the materials in some chapters are extraordinarily complex for those without legal training and/or regulatory backgrounds. I remain skeptical of the latter half of editor Buzbee’s early assertion that the “book’s chapters are offered at a level of legal rigor that will provide insights to lawyers, legal scholars, and law students, but it is also written to be accessible to other disciplines, especially students and scholars of government, political science, business and regulation, economics, and history” (p.4). While a few chapters could be easily integrated into an undergraduate course in judicial process (David C. Vladeck’s Chapter 3 on “Preemption and Regulatory Failure Risks” and Thomas O. McGarity’s Chapter 11, “The Regulation-Common Law Feedback Loop in Nonpreemptive Regimes,” immediately come to mind), undergraduate instructors teaching in fields such as constitutional law, environmental policy, and public administration who are looking for readings on preemption would need to consider carefully the accessibility of the readings offered here. Instead, I would suggest that this book should be strongly recommended reading for the actual players in the federal government, serving across the legislative, executive, and judicial branches, who make the decisions regarding preemption with which state and local officials and their constituents have to live. In Chapter 4, “The State Attorney General and Preemption,” Trevor W. Morrison argues for increased consideration of the authority of states’ attorneys general in federal preemption decisions. Morrison states very clearly that he is pitching his arguments primarily at federal legislators and agency officials (p.81), and this seems an appropriate target audience for many of the chapters.

While the authors consistently concede that preemption is the prerogative of the federal government, significant concern is registered over expansive exercises of preemption authority by various federal agencies during the George W. Bush era. Asserted by William Funk (Chapter 10, “Preemption by Federal Agency Action”) to be the Bush Administration’s unilateral attempt both to impose limits on state-level tort litigation and to reduce business regulation more broadly (p.225), critics in this volume repeatedly express concern that the executive branch may be going too far here. (In addition to Funk’s chapter, also see particularly Christopher H. Schroeder’s Chapter 6, “Supreme Court Preemption Doctrine.”) In light of the Bush administration’s recent exit from office, and given the recurring assertions in the book that the Bush record marked such a significant break from past policy, I believe that the book’s timeliness could have been [*290] extended by some attention to likely directions with the coming of a new administration. Depending on when the book went to press, perhaps even simply a brief “afterword” would provide some clues to whether the dangers the authors ascribe to the Bush administration are likely to be continued into the near future and/or whether future administrations may be more open to the normative arguments offered here. Given the book’s title and the repeated theme of “preemption choice,” some hints of likely future choices would be helpful.

While each of the book’s chapters could stand alone as a strong discussion of preemption for its intended target audience, the organization of the book’s chapters occasionally proved frustrating for me as a non-expert in this field. For example, I found that reading Robert L. Glicksman’s very complex “Federal Preemption by Inaction” (Chapter 8) would have been facilitated by the earlier placement of William Funk’s discussion of “Preemption by Federal Agency Action” (Chapter 10), in which Funk walks readers through the argument that agencies may be illegitimately usurping preemption authority and that greater attention should be paid to legislative language regarding delegations of preemption authority (p.215). On the other hand, as much as I enjoyed reading both of the chapters advocating the value of state-level tort litigation, the chapters by David C. Vladeck (Chapter 3) and Thomas O. McGarity (Chapter 11) seemed just a bit redundant to me. The chapters do focus on separate case examples, and McGarity’s later chapter shines a more positive light on the contributions of federal regulatory decisions and also addresses how state court litigation can contribute to federal policy changes. However, both chapters really focus on the argument that state tort litigation makes indispensable contributions to public safety by allowing state courts discretion to use common-law tools, including financial judgments against various industries, to incentivize industries’ greater attention to such matters as product safety and environmental considerations than may be required or enforced by federal law. Fundamentally, both authors argue simply that further preemption of state tort law is unacceptable. Finally, separate discussions of representation of the interests of states’ citizens in Trevor W. Morrison’s “The State Attorney General and Preemption” (Chapter 4) and Bradford R. Clark’s “Process-Based Preemption” (Chapter 9) echo each other more subtly, and readers might have benefited from seeing more explicit connections between the respective discussions of representation via Morrison’s emphasis on the interest of “democratic accountability” served by states’ attorneys general (see especially pp.84-87) and Bradford’s discussion of the representation of the respective states in Congress and the importance of this representation in determining what constitutes a legitimate federal preemption decision.

Perhaps the most frustrating chapters of the book to ponder were those giving the most in-depth attention to judicial preemption doctrines, in that these chapters help make clear just how unclear and uneven the Court’s overall record in this area has been. Even as Christopher H. Schroeder echoes previous authors in his skepticism of the value of the distinctions he discusses [*291] (p.125, cites omitted), Schroeder’s “Supreme Court Preemption Doctrine” (Chapter 6) goes a long way toward sorting out the many forms of preemption recognized by the Court over time. In Chapter 7, “When Congress Goes Unheard: Savings Clauses’ Rocky Judicial Reception,” Sandi Zellmer suggests wording for Congress to insert in future legislation to make its intent regarding preemption more clear and less subject to possible misinterpretation or limitation by federal judges (p.165). However, given Zellmer’s earlier assertion that, in cases dealing with state regulatory authority, “it is hard to avoid the conclusion that judicial outcomes appear to be driven by a results-oriented, antiregulatory sentiment rather than by statutory language or overarching congressional goals” (p.145), it would be helpful to see further discussion of how and why Zellmer believes that her recommended language will be treated more respectfully by judges.

In short, this book is a challenging read. However, it is a useful investment of time for professionals who make and have to abide by preemption decisions, as well as for academics who teach in the many fields in which preemption should be getting a share of attention.

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© Copyright 2009 by the author, Staci L. Beavers.

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