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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