WHITEWASHED: AMERICA’S INVISIBLE MIDDLE EASTERN MINORITY

by John Tehranian. New York: New York University Press, 2008. 256pp. Cloth. $35.00. ISBN: 9780814783061.

Reviewed by Steven Tauber, Department of Government & International Affairs, University of South Florida. Email: stauber [at] cas.usf.edu.

pp.414-416

Middle Easterners living in the United States face a glaring contradiction concerning their racial status. On the one hand they have experienced the same kinds of discrimination that other racial and ethnic minority groups (e.g., African Americans, Latinos, Asian Americans, and American Indians) have experienced. Middle Eastern Americans have been subjected to employment discrimination, race-based harassment, and racial profiling, especially since the attacks of September 11, 2001. In fact, whereas civil rights has improved for Blacks, Latinos, Asian Americans, and American Indians, the civil rights situation for Middle Easterners has deteriorated. Despite this discrimination, Middle Easterners are not officially regarded as a racial and ethnic minority group. The American government formally treats them as white for the purposes of the census and does not include them in affirmative action programs.

Despite this glaring contradiction in the treatment of Middle Easterners, most public policy makers, legal scholars, historians, and social scientists have ignored Middle Easterners in their analyses of minority group law and/or politics. Fortunately, John Tehranian’s WHITEWASHED: AMERICA’S INVISIBLE MIDDLE EASTERN MINORITY addresses this gaping hole in the extant literature, and he provides an important contribution to the dynamic study of the legal and political status of racial and ethnic minorities in the United States.

Tehranian bases his analysis of the racial status of Middle Easterners on three theoretical frameworks. Tehranian employs Said’s Orientalism approach, which critiques Western scholars for viewing Middle Easterners through the lens of their Western culture – a form of scholarly imperialism. He also frames his analysis through the social construction of race literature, which emphasizes how the law, culture, and the media have constructed race in general and the status of Middle Easterners in particular. Finally, Tehranian uses critical race theory, but unlike previous critical race scholarship that focused on Blacks, Latinos, Asian Americans, or American Indians, he critically examines the treatment of Middle Easterners.

The first part of the book traces legal and political history of the construction of race in United States. Chapter One explains how the concept of race is socially, not biologically, determined. Moreover, Tehranian’s analysis of nineteenth century immigration cases demonstrates that the law has contributed heavily to the social construction of race in general. Despite the common view that racial categories are based on physical features, such as [*415] skin color, Tehranian shows that they are based on how well legal actors believe a group can assimilate into American society. He refers to this standard as “performing whiteness;” that is, how much does a group act as if it is white in terms of language, economic achievement, and cultural assimilation. Chapter Two analyzes the history of immigration law concerning Middle Easterners in particular, and it demonstrates that they have been traditionally regarded as white. Chapter Three expands this focus by explaining that throughout much of American history Middle Easterners acted white and assimilated into the dominant culture and economy; however, in recent years, especially after September 11, 2001, Americans have perceived Middle Easterners as alien and in some cases dangerous. Out of fear of facing discrimination and profiling, many Middle Easterners have hidden their cultural and religious identities to act more “white.” Chapter Four blames the media, especially the entertainment industry, for perpetuating the stereotype that Middle Easterners are violent, intolerant, and misogynistic.

The second part of the book focuses more on the contemporary legal status of Middle Easterners. Chapter Five examines how Middle Easterners have lost civil rights and civil liberties in recent years. Tehranian analyzes case law and relates specific examples of discrimination, harassment, and racial profiling. Finally, Chapter Six proposes reforms to alleviate the problems that Tehranian identifies. This chapter emphasizes having the American government treat Middle Easterners as a protected racial and ethnic minority, especially for the purposes of empirically assessing discrimination against them. Tehranian also argues for a greater Middle Eastern presence in academics, and he prods scholars to include Middle Easterners’ racial status as part of their inquiry and debate.

WHITEWASHED makes a major contribution to the study of race and American law. In general, critical race theory scholarship has brought a lively debate to the fields of law, history, and political science. Even those who reject its fundamental tenets must recognize that critical race theory has shaped key controversies over the past two decades. WHITEWASHED undoubtedly adds to that significant debate. However, Tehranian’s work goes even further because it changes the landscape of the critical race theory field, which has been confined mainly to African Americans, Latinos, Asian Americans, and American Indians. By forcing critical race theorists to examine Middle Easterners, who have previously been neglected, Tehranian has succeeded in expanding the scope of a dynamic discipline.

WHITEWASHED is also successful because Tehranian does an excellent job presenting his argument. His analysis of the case law is exhaustive, thoughtful, and well-cited. Not only will legal scholars, historians, and political scientists benefit from Tehranian’s profound scholarship, but this book will also be a tremendous benefit to law students, graduate students, and even advanced undergraduates. In a rare achievement for legal scholarship, Tehranian offers writing that is both erudite and accessible. His lively accounts of personal experiences nicely complement the technical legal analysis. [*416] Readers will be most impressed with the writing in Chapter Four, dealing with the entertainment industry. Tehranian deftly blends sarcasm and pointed criticism to reveal the media’s culpability in the negative portrayals of Middle Easterners.

Despite these strengths, there are a few problems with this book. The discussion is often repetitive, and at times unorganized. For example, Chapter Two focuses on the history of immigration law pertaining to Middle Easterners, but on page 38 the discussion deviates towards the current treatment of Middle Easterners in airports, which was already discussed in the Introduction and covered in great detail in Chapter Five. Additionally, Chapter Four’s main focus is on the entertainment industry’s portrayal of Middle Easterners, but the last part of that chapter (starting on page 106), discusses specific examples of actual discrimination, which again belongs in Chapter Five. There are other isolated examples of this problem throughout the book.

Considering the scholarly quality and thoroughness of this book, the end is somewhat disappointing. At the beginning of Chapter Six (page 165) Tehranian lists eight reforms that would alleviate the problems he uncovers in the first five chapters; however, he neglects to explain in detail most of those reforms in the remainder of the chapter. He should either discuss in detail all the reforms he mentions, or only list the reforms that he plans to discuss. Finally, a two page conclusion for an almost 200 page book is insufficient. Readers, particularly graduate students and law students, require a more substantial summary of Tehranian’s complex argument and a discussion of the implications it has for American law and politics. Although this drawback leaves the reader with a negative impression at the end of the book, the work as a whole is definitely worth reading.

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© Copyright 2009 by the author, Steven Tauber.

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AGAINST PERFECTIONISM: DEFENDING LIBERAL NEUTRALITY

by Steven Lecce. Toronto: University of Toronto Press, 2008. 352pp. Cloth. £45.00/$70.00. ISBN: 9780802092120; Paper. £20.00/$29.95. ISBN: 9780802094476.

Reviewed by Ryan K. Balot, Department of Political Science, University of Toronto. Email: Ryan.Balot [at] utoronto.ca.

pp.409-413

In light of recent challenges to liberal neutrality, Steven Lecce’s book is timely. According to Lecce, previous theorists, whether liberal or not, have typically misunderstood the conceptual foundations of liberal neutrality. In order to clarify the issues and to motivate his discussion, Lecce first revisits debates between Locke and Jonas Proast, J.S. Mill and James FitzJames Stephen, and H.L.A. Hart and Lord Patrick Devlin (Chapters 1-3). He then offers a critical appraisal of the liberal perfectionism of Raz and Dworkin, followed by a vigorous rejoinder to three important critics of contractual arguments for neutrality (Chapters 4-6). Finally, Lecce defends a particular version of contractualism and neutrality, developing his own ideas largely in conversation with Rawls’ POLITICAL LIBERALISM (Chapters 7-10). Lecce’s conclusion, along with parts of Chapter 10, explores the policy implications of neutrality, particularly in response to socialist and feminist critiques.

Lecce’s excursion into the historical controversies is interesting, but his normative arguments owe little to his investigation of them (consider the absence of any reference to these debates in the section entitled “The Argument Revisited,” pp.228-230). Meanwhile, his criticisms of Raz and Dworkin will be familiar to those conversant with the relevant literatures. The heart of the book is the normative account developed in the third part. Within their decidedly circumscribed parameters, Lecce’s arguments are carefully reasoned, plausible, and thorough (occasionally painstakingly so). On the way to fleshing out his own position, Lecce guides the reader through the subtle disagreements among a handful of generically similar or like-minded theorists, chiefly Rawls, Nagel, Barry, and Scanlon. Lecce’s own position bears a close family resemblance to theirs.

Lecce begins with the premise of the “equal primary importance of everyone’s life” (p.186). He helpfully distinguishes his variety of egalitarianism construed as a democratic ideal from arguments that justify moral equality, mysteriously and even incoherently, as he contends, on the basis of human capacities. If we accept democratic equality, then the cardinal question is how to construct a political life that enables citizens to stand in an equal relation to one another; and “the answer,” Lecce argues, “is a democratic politics tempered by contractually generated principles of justice” (p.229). What makes “tempering” necessary is the principle of equal respect combined with the need to take ethical pluralism seriously. Since “thickly” embedded citizens are unlikely (ex hypothesi) to agree on substantive principles of [*410] justice, and since legitimacy, in Lecce’s conception, demands that citizens consent to their polity’s regulative standards, we must find a way to abstract from contentious ethical claims in order to discover mutually acceptable principles. Lecce follows his chief interlocutors in proposing a hypothetical constitutional convention attended by abstractly conceived “reasonable people.” At this convention, perfectionist principles of justice would reasonably be rejected because they are based on controversial ethical or ontological premises. This much is relatively uncontroversial in the literature dominated by the views of Rawls, Nagel, and Scanlon.

At this stage, however, we reach an apparent impasse. As critics such as Simon Caney have asked, how can we be any more certain about liberal neutrality than we can be about comprehensive conceptions of the good? Why do liberal sensitivities to reasonable disagreement over the good not extend to liberal neutrality itself? If neutralists reject perfectionist principles because comprehensive conceptions of the good are not sufficiently certain to warrant imposing them on others, as Barry (for example) argues (p.168), then why should such skepticism not also apply to the hypothetical contract and its (seemingly inevitable) liberal results? Lecce argues that the major accounts of liberal neutrality all fall prey to this kind of objection, which he calls the “reflexivity thesis.” The reason is that previous neutralists have relied unnecessarily on a belief in “epistemic asymmetry” between our knowledge of contractually produced justice and our knowledge of comprehensive conceptions of the good.

Lecce aims to avoid this objection by proposing that it is not epistemic asymmetry, but rather moral equality (to be superseded by “democratic equality” in a later chapter: cf. pp.185-193), that underwrites the contractualist case for neutrality. In his own terminology, Lecce avoids the damning consequences of the reflexivity thesis by devising a conception of “reasonableness as fairness,” as opposed to the more typical “reasonableness as valid argument”: “The content of the reasonable is best elaborated by asking which principles of justice fairly situated hypothetical contractors would choose to regulate the democratic institutions of the civic equals for whom they are trustees” (p.230). Lecce’s distinction between moral and epistemic conceptions of reasonableness is one of the chief sources of his claim to originality, but he does appear to build directly on ideas already explored in Rawls’ POLITICAL LIBERALISM (cf. p.203) and in the work of Scanlon and others (cf. p.224). To his credit, on the other hand, Lecce helpfully sorts out the ambiguities and tensions in Rawls’ discussion of the “reasonable” (pp.210-221), although I am not convinced that Lecce’s thoughtful arguments are enough to refute Rawls’ view that a well-ordered society requires reasonable as opposed to simple pluralism.

To challenge Lecce’s argument on its own terms, I would draw attention to the familiar worry that the contracting situation antecedently “builds in” the principles of justice that theorists purport to derive from it. This not only gives rise to a vicious circle, but also appears, as Habermas and others have urged, to ignore the arguably valuable work of democratic politics. Although Lecce [*411] discusses this “circularity thesis,” as he calls this particular challenge, he gives particularly short shrift to this set of objections (pp.195-200).

There remains, however, the larger concern that L.’s approach is less ecumenical than it might have been. A book entitled AGAINST PERFECTIONISM really ought to confront the doubts about neutralism raised by the diverse perfectionists and non-neutralists writing today: neo-Aristotelians such as Stephen Salkever; republican theorists such as Michael Sandel or Ronald Beiner; capabilities theorists such as Martha Nussbaum; consequentialist perfectionists such as Thomas Hurka; or virtue theorists such as Alasdair MacIntyre, Peter Berkowitz, or Stephen Macedo. Lecce mistakenly assumes that his audience will be as saturated in and fascinated by the intra-mural debates that he examines, as he is. Readers might find that the most serious challenges have not been adequately addressed.

For example, Lecce does not directly grapple with the following, now almost proverbial, criticisms of liberal neutrality: (1) that liberal democracy, despite its characteristically neutralist intentions, constitutes a “regime,” an educative political order that largely erodes the traditional liberal distinctions between public and private; (2) that liberalism itself implicitly offers a conception of the human good, though perhaps not one that is truly admirable; (3) that liberal democracy habitually shuns the virtues, and yet, as many liberal theorists have begun to see, virtues are required to sustain the liberal order; and (4) meanwhile, the liberal order itself presents certain virtues (e.g., civility or toleration) as intrinsically valuable. (For discussion of these criticisms and others, see especially Collins 2006, along with Beiner 1992; Macedo 1990, 2000; MacIntyre 1984; Salkever 1990; Sandel 1996; and many others). As Susan Collins (for one) has argued, more specifically, it is hard to grant that courage, moderation, and justice are admirable and excellent qualities of individuals, and then to propose that these virtues are merely instrumentally useful for enabling individuals to pursue ends that are, by comparison, worthless (such as counting blades of grass or consuming pornography) (Collins 2006: 36-38).

Lecce’s inattention to these broader “perfectionist” challenges is symptomatic of his narrow outlook on political philosophy altogether. At a crucial juncture in his critique of Rawls, the highly Lockean Lecce declares, “The task of the political philosopher is to explain how political justification should proceed, what principles are ultimately justified, and on the basis of which considerations” (p.222). At the risk of minimizing the salience of justification and legitimacy, it is only fair to respond that canonical political philosophers have also focused on questions of ethos and character formation; on civic education; on the dangers and opportunities of rhetoric; on the relationship between economic productivity and political power; and on the development of humanity’s most distinctive and essential capacities. The “other” perspective – i.e., the perfectionist perspective articulated and defended most profoundly by Plato and Aristotle – addresses itself to the deepest and most important dimensions of human existence: scientific, [*412] philosophical, and artistic achievement; the ongoing exercise of deliberative prudence; the satisfactions of civic friendship; the maintenance of a respectful and proportionate attitude toward the natural world and our place within it; and, in general, the healthy development of human beings in whatever ways and to whatever extent they are capable of flourishing. These features of human existence have a serious claim on our attention, whatever religion or creed we do or do not accept. If Lecce understandably urges us to take pluralism seriously, then so too should we insist on creating opportunities for ourselves and our fellow citizens to develop the human faculties even to the vanishing point of excellence. It is the great merit of Lecce’s book to have clarified the neutralist position to a tee, though the book’s corresponding defect is to have polarized the debate between neutralists and perfectionists to an even more desperately irreparable degree.

That is a shame, because the real task of the political philosopher, right now, is to address the rival claims of liberalism and perfectionism without doing serious injustice to either. This will require theorists to avoid the Scylla of liberal bread and circuses (cf. Kateb 1992: 229) and, equally, the Charybdis of tyrannically monolithic visions of human goodness. Achieving this ambitious goal may be virtually impossible – as virtually impracticable, anyway, as Plato’s strategy of empowering philosopher-kings and abolishing the nuclear family. Be that as it may, however, political theorists should not simply throw in the towel. Instead, political theorists should raise their eyes to the horizon and think big – as big, if possible, as Plato did, when he offered his utopian Callipolis as a regulative ideal in the REPUBLIC. It is only by resuming the tradition of enlarged speculation that we can promote equality that refuses to pander and liberty that is not license (cf. Locke, SECOND TREATISE, §6).

REFERENCES:
Beiner, Ronald S. 1992. WHAT’S THE MATTER WITH LIBERALISM? Berkeley: University of California Press.

Collins, Susan. 2006. ARISTOTLE AND THE REDISCOVERY OF CITIZENSHIP. Cambridge: Cambridge University Press.

Kateb, George. 1992. THE INNER OCEAN: INDIVIDUALISM AND DEMOCRATIC CULTURE. Ithaca: Cornell University Press.

Macedo, Stephen. 1990. LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL CONSTITUTIONALISM. Oxford: Clarendon Press.

Macedo, Stephen. 2000. DIVERSITY AND DISTRUST: CIVIC EDUCATION IN A MULTICULTURAL DEMOCRACY. Cambridge: Harvard University Press.

MacIntyre, Alasdair. 1984. AFTER VIRTUE: A STUDY IN MORAL THEORY (2d edn). Notre Dame: University of Notre Dame Press.

Rawls, John. 2005. POLITICAL LIBERALISM. New York: Columbia University Press. [*413]

Salkever, Stephen. 1990. FINDING THE MEAN: THEORY AND PRACTICE IN ARISTOTELIAN POLITICAL PHILOSOPHY. Princeton: Princeton University Press.

Sandel, Michael J. 1996. DEMOCRACY’S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY. Cambridge, Mass.: Harvard University Press.

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© Copyright 2009 by the author, Ryan K. Balot.

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GOVERNMENT BY CONTRACT: OUTSOURCING AND AMERICAN DEMOCRACY

by Jody Freeman and Martha Minow (eds.). Cambridge, MA: Harvard University Press, 2009. 552pp. Hardcover $49.95/£36.95/€45.00. ISBN: 9780674032088.

Reviewed by Amanda Harmon Cooley, Department of Management, North Carolina A&T State University. Email: abcooley [at] ncat.edu.

pp.405-408

In the portrait of the “flat” world, as offered by Thomas Friedman, competitive global outsourcing has seen marked increases, while becoming a controversial and sometimes contentious subject in the realms of business and industry. However, it would be naïve to think that this process of outsourcing, which seeks lower costs for products and services with limited regard to the entity that provides them, is solely exercised by private, non-governmental actors. In GOVERNMENT BY CONTRACT: OUTSOURCING AND AMERICAN DEMOCRACY, editors Jody Freeman and Martha Minow, both professors at Harvard Law School, provide a significant forum for discussing the complex issues that arise when governmental functions are no longer performed by public employees but are instead executed by private contractors. Specifically, this edited volume focuses on the United States’ practice of government outsourcing, deemed by the editors to be “government by contract.” By performing a macro-level analysis of the current unprecedented levels of outsourcing, the editors and contributors aim to answer the broader question of whether this contractual allocation of responsibility and authority can truly fit within the structure of our democratic system of governance.

The Introduction, “Reframing the Outsourcing Debates,” presents a comprehensive outline of the structure and objectives of the text. In it, Freeman and Minow argue that September 11, 2001 was a pivotal moment in the timeline of government outsourcing that unleashed a torrent of no-bid contracts and abandonment of certain standard governmental contracting procedures. Further, the editors claim that this practice extends not only widely into many diverse aspects of federal and state responsibility, but deeply as well into the nature of the contractual duties – ranging from traditionally non-governmental procurement contracts to arrangements that one could argue lie within the exclusive provenance of the government itself. The Introduction proceeds to detail the complexities of this practice, as well as the inherent risks that accompany it. Freeman and Minow then highlight the lack of transparency often found in the outsourcing process, the paucity of legislative oversight of implementation and enforcement of these contractual agreements, and the possibilities for reform that could reduce the amount of waste, fraud, and abuse that has become nearly synonymous with the term. Freeman and Minow conclude the Introduction by providing a succinct snapshot of the perspective of the volume, which frames the most salient issues: [*406]

Our current government contracting system does not work. It is largely invisible and unresponsive to the public in whose name it is undertaken. The existing rules and procedures fail to guard adequately against inefficiency, conflict of interest, and abuse. And much of the power being exercised through contracting is largely unaccountable to any regime of oversight – market, legal, or political. Yet government by contract has arrived, and it is here to stay. This fact should prompt serious and sustained public dialogue about the short- and long-term implications of outsourcing for American democracy. Offering contrasting and at times conflicting views, the contributors to this book aim to spark that dialogue in pursuit of better governance in this challenging age. (p.20)

This introductory discussion mirrors the basic structure of the text, as it is subdivided into Part One, “Recent Developments,” which provides, in part, the historical context of government outsourcing; Part Two, “Cases and Critiques,” which provides exemplars of this governmental practice and critical analysis of such exemplars; and Part Three, “Responses and Reforms,” which presents a comprehensive reformative call to action, including arguments for limits to increased regulation, use of existing tools and resources, and the insistence on constitutional limitations. Due to the length of the text, several particularly noteworthy sections will be highlighted to identify the major themes of the volume and their treatment by the various authors.

Chapter One, “Public-Private Governance: A Historical Introduction,” authored by history professor William J. Novak, provides historical contextualization of the U.S. government’s turn to privatization. Novak argues that, since colonial times, there has been a tension in the country between public and private forces for power and authority. As such, the interaction between the government and private entities is not as “new” a thing as some would assert. To support this position, Novak provides a litany of examples of the concept of public-private governance. Ultimately, he stresses that the “power of public-private governance as a technology of public action flowed from its ability to counter the twin evils of both public corruption and private coercion” (p.39). Finally, Novak asserts that public-private governance can be an effective tool for the distribution of power, so long as the focus on the primacy of public law remains unobscured.

John D. Donahue and Mathew Blum build upon the foundations established by Novak in the remaining chapters of Part One, providing specific examples of government outsourcing that range from the United States Postal Service to information technology, as well as outlining the federal framework for public-private competition. Each of these authors brings forth a perspective that is reflective of their backgrounds. In combination, their work rounds out the historical and policy environment in which outsourcing has operated and evolved. All of these efforts lay the groundwork for Part Two, “Cases and Critiques.”

Chapter Four, “Rent-a-Regulator: Design and Innovation in Environmental Decision Making,” by Miriam Seifter presents a framework to understand how governmental authority can be [*407] outsourced but in a different way than is usually thought. Seifter states her view in the following manner:

The model, which I nickname “rent-a-regulator,” transfers regulatory decision making to licensed professionals who directly serve regulated “clients.” Rather than contracting out regulatory functions or privatizing them entirely, the government licenses professionals, just as it would doctors or plumbers, to make compliance decisions pertaining to regulated parties – their paying “clients.” (p.93)

This perspective relays how outsourcing has even spread into the ways in which governments perceive their central oversight duties. The chapter also outlines instances in which government outsourcing has resulted in the sacrifice of long-term protection of the public for short-term political victories.

Chapter Five, “Outsourcing Power: Privatizing Military Efforts and the Risks to Accountability, Professionalism, and Democracy,” is authored by Martha Minow. This chapter takes on one of the most high profile recent examples of government outsourcing – private military contractors. The focus of Minow’s contribution here is on the troubling aspects of vesting non-governmental employees with positions that require a commitment to the public interest. Most disturbing is the legal loophole that these groups often fall into that leave them unaccountable to military courts or the courts of the countries in which they operate. Minow phrases it this way:

Due to impairments of legal and political oversight and defective private markets, the escalating use of private military contractors by the U.S. government poses serious jeopardy to the integrity and effectiveness of the military and to the interests of society. These interests include minimizing financial waste, maximizing military effectiveness, guarding against atrocities, and ensuring a functioning democracy. (p.123)

For Minow, the key to reforming this aspect of outsourcing is a functioning accountability system that provides oversight for contractors similar to those types of systems for governmental employees. If this reform cannot be achieved, Minow suggests eliminating these contracts until the chapter’s suggested requirements can be met.

The third part of the volume is titled “Responses and Reforms.” It is further divided into three subsections: A) “Don’t Increase Regulation”; B) “Use Existing Tools” and C) “Press Constitutional Restrictions.” The chapters of these sections provide explanations and strategies for improvement of the present system of outsourcing by ensuring economic efficiency and supporting the public aims of government. Throughout these chapters, the overriding themes of increasing accountability and transparency are emphasized. However, the authors also press the reasons why current “government by contract” fails to attain these lofty ideals. Too often, in government, greed, power, and self-preservation have trumped the noble goals of public service; this threat becomes even more acute when the acting entity only serves the people because of an independent contract.

Of particular interest in Part Three is Laura Dickinson’s Chapter Thirteen, “Public Values/Private Contract.” This [*408] chapter details aspects of international concerns that come into play in the outsourcing debate. The discussion is especially of note as many of the popular media outlets rarely address these important issues. Dickinson advocates a flexible policy and legal response to this movement. She states:

We must remember that the proper management of privatization will almost certainly require a variety of approaches, and we need not choose one to the exclusion of others. My aim here is simply to focus attention on privatization in the international realm as a crucial field of study, to call for dialogue among international and domestic scholars, advocates, and policymakers concerning appropriate responses, and to suggest that more attention be paid to the possibility of using contractual provisions to provide accountability. . . Only through such efforts will we be able to find ways to protect crucial public law values in the era of privatization that is already upon us. (p.358-359)

Overall, GOVERNMENT BY CONTRACT: OUTSOURCING AND AMERICAN DEMOCRACY provides a substantial introduction to and superb discussion of the legal, economic, social, and political aspects of government outsourcing in both domestic and international contexts. The significance of the book’s contributions will clearly resonate in academic communities concerned with these issues. However, it is less certain if the innovative ideas offered within the text will be taken up by the public policy communities that shape the legislative agendas in Washington, D.C. Of course, this is by no means a failure of the volume; rather, it is a failure of those policymakers and elected officials who do not live up to the ideals to which they so often appeal.

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© Copyright 2009 by the author, Amanda Harmon Cooley.

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COUNTERFEIT JUSTICE: THE JUDICIAL ODYSSEY OF TEXAS FREEDWOMAN AZELINE HEARNE

by Dale Baum. Baton Rouge, LA: Louisiana State University Press, 2009. 320pp. Cloth $45.00 ISBN: 9780807134054.

Reviewed by Doris Marie Provine, School of Justice & Social Inquiry, Arizona State University. Email: marie.provine [at] asu.edu.

pp.402-404

What is law when litigants pack the courtroom with armed men to intimidate witnesses, when voters are routinely beaten, and when employers argue that hanging a worker by his thumbs is a sound business practice? COUNTERFEIT JUSTICE is a solemn reminder that courts and legislatures can still operate in these circumstances. Legal documents can be duly recorded and lawyers can practice law. Racial apartheid actually requires a dual system that provides the protections of law for whites and systematically withholds those protections from non-whites. COUNTERFEIT JUSTICE is the history of a person who challenged this system, freedwoman Azeline Hearne. She is an unusual hero, a Rosa Parks of litigation who claimed the most prosaic of rights in a situation of extreme inequality, and in the process exposed the legal system’s tolerance for virulent racism. The difference is that Azeline Hearne is a forgotten heroine, lost in the history of her time.

Ms. Hearne became one of the nation’s wealthiest former slaves when she inherited Samuel R. Hearne’s estate shortly after the conclusion of the Civil War. Hearne owned one of the most profitable cotton plantations in Texas when he died. He was Azeline’s master, and also the father of her four children, only one of whom survived to adulthood. Before he died, Samuel Hearne, a bachelor, acknowledged his relationship with Azeline, implicitly challenging the prevailing Southern racial mythology, which placed Blacks in near sub-human status.

Most of the legal action in this saga took place in the Reconstruction era in Robertson County, a rural agricultural area of northern Texas that grew wealthy in the aftermath of the Civil War. The place was virtually unchanged by the War, which never reached this part of Texas. During the conflict, in fact, hundreds of slaves were “refugeed” to Robertson County plantations in order to protect the interests of their owners. The Reconstruction effort came late to this place, but eventually the Freedman’s Bureau did arrive. Azeline Hearne’s legal struggle thus occurred against the backdrop of a federal commitment to extend equality to the freed slaves. It was, in some ways, a valiant effort to re-configure the racial order through law. But the government’s effort fell far short of its ambitions, as the story of this ultimately unsuccessful litigant poignantly reveals.

This story has many missing pieces. One can only speculate about the domestic relationship between Azeline and Sam Hearne. It would be easy to over-simplify this relationship, which began in bondage but ended in a kind of partnership in which Sam gave his entire [*403] estate to their only surviving son Dock, with a life interest for Azeline. For this relationship, Sam Hearne was rejected by his family and community. He was accused of being an alcoholic and mentally ill. Azeline herself is also a mystery. There are no pictures of her and few records. She was probably illiterate. Her son died shortly after reaching adulthood. She was soon forgotten by her contemporaries.

Dale Baum, a skilled historian, nevertheless constructs a persuasive picture of rural life in the South during the Civil-War era. He constructs the story from court documents, deeds, diaries, government documents, news accounts of the time, and other original documents and historical sources. He is careful to warn the reader when the trail is faint, offering speculations of various possible scenarios when necessary.

For socio-legal scholars, the juxtaposition of law and non-law is the most startling element of the story. Thus Sam Hearne’s last will was dutifully recorded and treated as valid (much to the dismay of his family, who wanted that land for themselves). The Freedman’s Bureau adhered more or less to its legal mandate, attempting, from time to time, to force the judicial system to render justice to Ms. Hearne. Lawyers did not always behave unethically toward Azeline Hearne. One lawyer, who had previously sought to swindle Ms. Hearne, later became her staunch defender in court. The struggle to divest her of the rich productive, bottom land that made up the bulk of her estate was conducted entirely peacefully, with skilled lawyers taking unconscionable fees, but always recording their agreements in perfect legal order.

For many of the ex-slaves, conflicts with whites were settled with violence. Freedmen who believed the promise of Union soldiers that they could contact freely for their labor were routinely cheated and sometimes beaten or killed when they complained. Voting Republican was dangerous for these freedmen and their white supporters. Those who openly resisted the Ku Klux Klan and white landowners took even greater risks. Consider the fate of George Edward Brooks, one of Robertson County’s three voter registrars and a charismatic Methodist minister who had served in the Union army. His efforts to achieve justice for his people frightened the white establishment, and so a posse hunted him down with blood hounds, tortured him by stripping the flesh from his body, broke both of his legs, and then hung him as a warning to others. No Robertson County whites were ever punished for this or any other attack on their Black fellow citizens.

Azeline Hearne was not alone in her struggle for justice. Lawyers did represent her and she received some assistance from the Freedman’s Bureau. But no one worked assiduously for long on her behalf. The Freedman’s Bureau failed to assist her in paying off the debts of the estate or keeping proper records. Her lawyers filed papers, but only for extortionate fees. Sam Hearne had tried to convince his doctor, a man he trusted, to be executor of the estate, but he refused, fearing loss of friendship with other members of the Hearne clan. The basic problem was that the enthusiasts of the Confederacy, who endorsed slavery [*404] and believed in their own racial superiority, continued to hold most of the reins of power throughout Reconstruction. The federal government was a temporary presence, and often not very effective even when it was present. After years of legal struggle, Azeline Hearne lost her final appeal. She was defeated by the greed of the people she trusted to represent her. She died at about 65 years old a pauper, a tenant at will on her own former land.

COUNTERFEIT JUSTICE can be read as a straightforward historical account of a curious lawsuit that occurred during the unsettled period when slavery came undone legally, but not socially. It can also be read as an account of how ostensibly color-blind law can be manipulated to maintain extraordinary disadvantage. The book is much less self-consciously reflective about the historical role of law in constructing and maintaining inequality than, for example, to Ian Haney López’s WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE, or MANIFEST DESTINIES (2006) or Laura Gomez’s recent inquiry into New Mexico’s racial history (2008). Its illumination of racial relations and the construction of inequality is more indirect, in the style of Linda Gordon’s THE GREAT ARIZONA ORPHAN ABDUCTION (2001).

Readers may be somewhat deterred by parts of this book where Baum goes into detail about the series of cases filed against Azeline and her ultimately futile efforts to fight back. The details drive home the point that law can be obtuse, even when ostensibly searching for a just result. The reality of structural inequality is also brought home to the reader in these details. Fortunately, even with the weight of perhaps too much information about the movement of cases through the system, the story does shine through. This is a historical account that is both sad and revealing in demonstrating the power of racism, gender inequality, and the power of a determined elite to defeat honorable intentions.

REFERENCES:
Gomez, Laura. 2008. MANIFEST DESTINIES: THE MAKING OF THE MEXICAN AMERICAN RACE. New York: NYU Press.

Gordon, Linda. 2001. THE GREAT ARIZONA ORPHAN ABDUCTION. Cambridge, MA: Harvard University Press.

Haney-López, Ian. 2006. WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE. 10th Anniversary Edition. New York: NYU Press.

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© Copyright 2009 by the author, Doris Marie Provine.

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RACE AND EDUCATION, 1954–2007

by Raymond Wolters. Columbia, MO: University of Missouri Press, 2009. 328pp. Cloth. $44.95. ISBN: 9780826218285.

Reviewed by Jenny Diamond Cheng, Independent Scholar, Brooklyn, NY. jdc250 [at] gmail.com.

pp.397-401

In this book, historian Raymond Wolters argues that official efforts to promote interracial mixing in public schools have been both bad law and disastrous public policy. Wolters’s central thesis, recognizable to those familiar with his earlier work, is that during the 1960s and 70s, overzealous federal bureaucrats and a Supreme Court in thrall to liberal ideology equated desegregation with active integration. The resulting race-conscious school busing programs betrayed the race-neutral values of BROWN v. BOARD OF EDUCATION and were therefore doomed. Drawing on a number of case studies, tWolters argues strenuously that racial integration of America’s public schools – and especially court-ordered integration – has been an abject failure, prompting white flight and exacerbating racial tensions, while utterly failing to improve blacks’ academic achievement.

Wolters, who is a chaired professor of history at the University of Delaware, paints his narrative as a counterweight to a politically correct academic orthodoxy that purportedly brooks no dissent about the merits of integration. Despite his disingenuous claim that he is simply “explain[ing] the arguments on both sides of . . . controversial questions” (p.ix), it is never less than absolutely clear with whom his sympathies lie. This is the story of the Reasonable Everyman versus the Liberal Lunatics, and the author’s attempts to distance himself from the debates only irritate the reader.

Wolters devotes the first four chapters to the BROWN decision and its immediate aftermath. He argues that, although there were good reasons to end de jure segregation in the United States, there was no good originalist justification for the Supreme Court’s conclusion that segregated schools were unconstitutional. Furthermore, he maintains, the Court’s reliance on now-discredited social science evidence about how segregation harmed black children (the notorious ‘black dolls’ experiments) would later serve as the legal basis for misguided race-conscious balancing policies. As a matter of public policy, Wolters locates BROWN in the educational climate of the 1950s and early 1960s. He approvingly remarks that at that time, educational reformers were mainly interested in cultivating the most talented students, and ability grouping was standard practice. In this context, educators assumed that desegregation would erase the black-white achievement gap simply by giving black children access to better schools, and in any event, high achievers would be protected.

In practice, though, Wolters maintains, desegregation ruined perfectly good schools. Retreading ground he covered in his 1984 book, THE BURDEN OF BROWN, the author offers case histories [*398] of several locales that desegregated immediately after BROWN, including Topeka, the District of Columbia, and Wilmington, DE. He tells more or less the same story for all of these districts: desegregation brought in poorly performing, ill-behaved black students, white students were scared away, and the districts effectively resegregated. In the Deep South, states resisted desegregation for a full decade after BROWN. Eventually, though, even southern school districts desegregated, and Wolters details how once again, whites quickly fled the newly integrated public schools. In one of the book’s more interesting sections, Wolters examines the writings of intellectuals who bolstered popular resistance with theories about the biological inferiority of blacks. Although he does not fully make his case that most scholars and scientists at the time of BROWN agreed “not that the races were equal but that that the evidence of Negro inferiority was not conclusive” (p.99), his overview of the scientific racists is both intrinsically interesting and a well-taken reminder of how influential these theories have been at times.

In the next four chapters, Wolters turns to court-ordered busing, which he views as an unmitigated catastrophe. His discussion of how the staff members at the federal Office of Education interpreted the Civil Rights Act to mandate actual racial balance in schools is another one of the book’s high points. While the author is appalled at what he sees as a gross abuse of authority, his treatment usefully highlights the significant role that federal bureaucrats played in the civil rights movement. As John Skrentny has noted, “The images of the minority rights revolution are mostly of mainstream Euro-American males and minority advocates, wearing suits, sitting at desks, firing off memos, and meeting in government buildings to discuss new policy directions. While these are not romantic images, they are the images of power” (Skrentny 2002, 5).

Wolters sharply criticizes the Supreme Court – which upheld racial balancing programs in a series of cases – for abandoning the original meaning of BROWN and the language of the Civil Rights Act. He further implies that this legal shift was matched by a similarly misguided transformation among academics and policymakers, who began to define ‘equality of educational opportunity’ not to mean simply equal resources put into education, but equal results among groups. Although this notion “was at odds with the traditional American understanding of equality” (p.185), he suggests that elites were seriously frightened by the race riots of the 1960s and were trying to pacify the African American population.

If desegregation was bad for schools, then court-ordered integration was even worse, according to Wolters. Drawing on both ethnographic writings by other scholars and some of his own research, he describes how time and again, middle-class white schools were effectively destroyed by an influx of low-achieving, disruptive black students. Even when not mandated by the government, he argues, integrated education exacerbated racial tensions and did nothing to narrow the achievement gap between white and black students. He highlights the work of black scholars who questioned the value of integration, with particular attention to the debate about whether [*399] black students – especially those in integrated schools – viewed academic achievement as “acting white.”

Towards the end of the book, Wolters discusses the end of court-ordered busing in the 1990s. In two cases involving affirmative action, the Supreme Court emphasized that racial classifications had to meet the test of ‘strict scrutiny,’ and the federal courts began to strike down racial balance programs that were not specifically intended to redress proven discrimination. He argues that civil rights advocates were unable to prove that integration either raised African-Americans’ academic performance or improved race relations; they therefore turned to vague, unprovable arguments about the merits of “diversity.” To his chagrin, the Supreme Court invoked the diversity rationale in a 2003 affirmative action case, but four years later, the Court struck down racial balancing programs in two school districts. He concludes by praising the Rehnquist and Roberts Courts for “returning to the principle of nondiscrimination” (p.305) and for pushing educators to explore new avenues for school reform, the latter of which he promises to examine in his next book.

Wolters’s strident tone, coupled with his heavy reliance on secondary sources, makes this book considerably less persuasive than it might have been. To take just one example, in the chapter on desegregation in the Deep South, Wolters offers a series of case studies to argue that desegregation prompted white flight. The evidence he musters is compelling, even if the conclusion is not especially novel. However, when he notes that several of the scholarly studies upon which he relies fail to mention anything about the “misbehavior of black students at desegregated schools” (p.118), he promptly concludes that such omissions could only be the result of “the custom of political correctness in academia” (p.120). This sort of heavy-handed approach is unlikely to convince anyone who is not already committed to the author’s narrative.

More substantively, Wolters’s treatment of the Supreme Court does not particularly advance the ball. As a historical matter, he suggests that the Court has largely acted in accordance with the national mood, and when it has not – as in the cases upholding school busing programs – the Court has quickly retreated. This story is entirely plausible, and indeed many scholars have argued that BROWN in particular reflects the Court’s tendency to respond to a national majority (Balkin 2001, 19–22). However, this author does not make the case. For one thing, he seems completely disengaged from the extensive legal and political science literatures about the relationship between public opinion and Supreme Court decisionmaking. Furthermore, his tendency to locate each decision entirely in its own historical moment leads to some strange omissions. Most obviously, in his discussion of BROWN, he completely fails to mention that the Court was, centrally, grappling with PLESSY v. FERGUSON (1896). He therefore mistakenly dismisses Chief Justice Warren’s direct response to PLESSY, “separate educational facilities are inherently unequal” – as nothing but a “general statement” (p .10), and is apparently mystified as to why any reasonable person would think otherwise. [*400]

Indeed, a more acute awareness of the Supreme Court’s own institutional concerns might help to illuminate the Court’s support for busing in GREEN v. COUNTY SCHOOL BOARD (1968) and SWANN v. CHARLOTTE-MECKLENBURG (1971). Wolters finds these opinions both infuriating and baffling: “It is hard to account for this transformation, except to say that judicial objectivity was swept away by the vogue of integration” (p.139). What about the possibility that the Court was worried about its own legitimacy in the face of the South’s resistance to BROWN? As Bernard Schwartz has noted, “That the Court began to take an increasingly active role in the school cases . . . may be explained by the Justices’ increasing exasperation at southern refusals to implement BROWN” (Schwartz 1986, 64). As Schwartz’s book is one of Wolters’s key sources for his discussion of SWANN, presumably he is familiar with this argument; it would have been useful to know the extent to which he disagrees, and why.

The author’s normative claims about judicial decisionmaking are also less than convincing. For one thing, Wolters simply assumes that the Court is correct when it acts in accordance with public opinion and that it is inappropriate for courts to make unpopular decisions. There is certainly a case to be made for this point, and indeed countless reams of paper have been devoted to the question of whether courts should act as majoritarian or countermajoritarian institutions. Wolters, however, does not engage with any of these debates. Similarly, he is quick to criticize the Court for relying on social science evidence he views as faulty, and he implies that there was something shady about the civil rights strategy of using social science to establish favorable precedent and then rely on that settled caselaw in future cases. It would be unfair to expect this book, which is after all a history, to seriously grapple with the broader theoretical and practical questions that arise when the courts take into account (or fail to take into account) social science evidence. However, some acknowledgement that these questions even exist would have made the author’s treatment considerably more compelling.

In sum, while this book offers a few interesting and thought-provoking points, the author’s strong commitment to a particular narrative and extensive use of secondary sources will likely make it of limited interest.

REFERENCES:
Balkin, Jack M. 2001. “Brown as Icon.” In Jack M. Balkin (ed), WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID. New York: New York University Press.

Schwartz, Bernard. 1986. SWANN’S WAY: THE SCHOOL BUSING CASE AND THE SUPREME COURT. New York: Oxford University Press.

Skrentny, John D. 2002. THE MINORITY RIGHTS REVOLUTION. Cambridge: Harvard University Press, Belknap Press. [*401]

Wolters, Raymond. 1984. THE BURDEN OF BROWN: THIRTY YEARS OF SCHOOL DESEGREGATION. Knoxville: University of Tennessee Press.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

GREEN v. COUNTY SCHOOL BOARD, 391 U.S. 430 (1968).

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

SWANN v. CHARLOTTE-MECKLENBURG, 402 U.S. 1 (1971).

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© Copyright 2009 by the author, Jenny Diamond Cheng.

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AN AMERICAN TRILOGY: DEATH, SLAVERY, & DOMINION ON THE BANKS OF THE CAPE FEAR RIVER

by Stephen M. Wise. Cambridge, MA : Da Capo Press, 2009. 304pp. Hardcover. US $26.00/CDN $30.00/ £15.99. Paper $26.00. ISBN: 9780306814754.

Reviewed by Dylan Weller, Department of Political Science, Hobart and William Smith Colleges. Email: dweller [at] hws.edu.

pp.394-396

AN AMERICAN TRILOGY by Stephen M. Wise is, at its core, a book about the mistreatment of pigs by the American swine industry. It should be noted at the outset that while some of the author’s previous work has dealt specifically with issues surrounding the legal rights of animals, this book has very little to do with the study of law specifically. The primary goals of the text appear to be three-fold: First, to give the reader a visceral and emotionally wrenching tour of the modern industrial swine industry. Secondly, to draw similarities between the injustices suffered by Native Americans, African slaves and modern day pigs in one particular county of North Carolina. And thirdly, to consider the role that Christianity has played in sanctioning each of these injustices. These three themes developed by Wise have the potential to inform one another in interesting and provocative ways. Yet by the conclusion of the book, very little has been done to draw the variety of arguments and observations into an informative relationship with one another.

The book begins in Bladen County, NC, home to one of the largest slaughterhouses in the country. One of the self-professed goals of the book is to analyze the history of Bladen County in order to better understand its present condition as a place that tolerates the mass killing, and unjust treatment of pigs. The historical analysis of Bladen County is quite limited. The focus is on Native Americans and African slaves, two groups of human beings who have suffered at the hands of Christian colonizers. The injustices are laid side by side, and the reader is given the task of considering the similarities and dissimilarities for herself. This will be effective for those already predisposed to view pigs as worthy of certain rights and privileges, but will do little to persuade those who mark a categorical distinction between the rights of human beings and animals. Indeed, some readers will likely be offended by the comparison.

Wise discusses the plight of Native Americans and African slaves in the region briefly. Very little enlightening information is supplied concerning the inhabitants of Bladen County in particular. The information on each of these groups tends to be general, and those relatively familiar with these past injustices will find little of note here. Somewhat more enlightening is the examination of the ways in which certain Native American tribes tended to conceive of animals as members of their larger cosmology. A clear distinction is made between Native American culture, which often revered and respected animal life, and Christian European [*395] culture, which, according to Wise, tends to appreciate animals merely for their use-value to humans.

Through the first few chapters we learn a great deal about Wise’s attempts to uncover significant linkages between the swine industry and the slave trade in Bladen County. However, while a great deal of time is spent informing the reader of his difficulties in researching the matter, very little of that research bears significant fruit. Wise informs us that the slaughterhouse in Bladen County is in fact located on what was once a slave-holding plantation. But this information, unaccompanied by some further examination of the family lineages, or cultural inheritances that may have led from one form of cruelty to another, does not strike the reader as particularly revelatory. The reader is never told explicitly why this coincidence should be meaningful, and by the second half of the text, Bladen County, as a significant character within the narrative, is largely abandoned.

The middle portion of the book, which provides a synoptic history of the swine industry, as well as some insight into its contemporary policies and mechanisms, is the most interesting and enlightening section. Wise provides a good deal of interesting information regarding the present state of the swine industry and its development over time. A fairly broad range of information is covered, though the amount of time allotted to each issue is somewhat puzzling. An entire chapter is dedicated to examining the preferred fat content within pork, and the struggles the industry has undergone to maintain the proper balance, while only a paragraph notes the recent legislation in multiple states, banning certain types of animal crates. The somewhat more detailed analyses of the mechanisms and formulas at the center of the swine industry make obvious allusions to Eichmann and the banality of evil, but once again, those connections tend to be implied, rather than substantively defended.

Lest the reader become detached, as Eichmann, from the results of these abstracted formulas and mechanisms, this section is interspersed with an ongoing narrative about an emblematic pig named Wilbur. We are given a detailed account of the various horrors Wilbur experiences in his short life on a pig farm, all of which leads up to his eventual demise at the slaughterhouse. This information is related in a matter of fact tone, and can be very moving. The organization and interweaving of the Wilbur narrative with the rest of the more mechanical information concerning the swine industry could be more artfully rendered. Nevertheless, the middle section of the text gives the reader some interesting and specific information about the workings of the swine industry, as well as a more visceral understanding of the process from the perspective of the pig.

The last section of the book retrieves a theme originally introduced in the first few chapters. Wise argues that Christianity is centrally responsible for the cruelties perpetrated by Europeans against Native Americans, African Slaves, and animals. The argument would require far deeper analysis to be persuasive to the critically minded, but those predisposed to view religion as a negative force in human (and animal) history will find some plausibility to the claims made here. Although Wise [*396] clearly expresses some disdain for Christianity and the world-view it is capable of engendering, the book concludes with an optimistic assessment of the ways in which a particular branch of American evangelicalism may contribute to the expansion of animal rights in the future. Wise does some investigation into the “Creation Care” movement, which began relatively recently as an evangelical response to the looming threat of climate change. Evangelicals within the movement have begun to see the earth and its inhabitants less as a resource to have dominion over, and more as a Godly creation, which requires human stewardship in order to be properly maintained. Wise examines the current state of Creation Care, and clearly finds reason to hope that a movement such as this one, based in environmental stewardship, may some day turn its interests to the plight of factory farmed animals. However, while he interviews a variety of people associated with the Creation Care movement, none of them seem particularly interested in animal rights specifically, at least not yet.

The author repeatedly draws the reader into his experience in researching the book. Many of these adventures in researching are largely extemporaneous to the larger project. Nevertheless, by being forced to witness the author’s struggles in writing the book, the reader is, in some ways, brought more immediately into the dilemma faced by Wise in writing such a text. How does one gain recognition for an injustice that is at once ubiquitous and invisible? How does one make the mistreatment of animals a problem for people?

PETA has long dealt with this question, and in recent years has made many tactical adjustments to their outreach campaigns. PETA has garnered a variety of celebrity endorsements, and developed billboard, television, and internet advertisement campaigns that raise awareness about the health, sexual vitality, and clear consciences of vegetarians and vegans. This book tends to vacillate somewhere between preaching to the PETA choir, and speaking with a more scholarly voice to an academic audience. I can not see this book as successful in the latter endeavor. Nevertheless, those that view animal cruelty as a significant problem may rightly argue that in the face of glaring injustice, any attempt to give utterance to the suffering of the voiceless deserves our serious attention.

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© Copyright 2009 by the author, Dylan Weller.

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GUNS, DEMOCRACY, AND THE INSURRECTIONIST IDEA

by Joshua Horwitz and Casey Anderson. Ann Arbor, MI: University of Michigan Press, 2009. 296pp. Cloth. $65.00. ISBN: 9780472115723. Paper. $26.95. ISBN: 9780472033706.

Reviewed by Robert J. Spitzer, Distinguished Service Professor, Political Science Department, SUNY Cortland. Email: robert.spitzer [at] cortland.edu.

pp.390-393

On April 19, 1995, a truck bomb parked in front of a federal office building in Oklahoma City, Oklahoma was detonated, obliterating much of the building, and killing 168 people. The man convicted as the chief architect of the attack, Timothy McVeigh, had decided in the months before the attack that he was going to commit “a major act of violence against the government” (Michel and Herbeck 2001, 161), settling on the attack against the Murrah Federal Office Building because it housed regional offices of federal agencies including the ATF, DEA, and the Secret Service. In his own words, those who “betray or subvert the Constitution . . . should and will be punished accordingly” (Ibid., 153). The final straw for him was the looming enactment of new gun laws. The American government was edging toward tyranny, McVeigh felt, and it was up to him to strike back.

McVeigh was, to most, a dangerous criminal. But to some, he was a patriot, committing an act of insurrection against a tyrannical American government. What is most astonishing about the McVeigh case is not that he believed the government’s actions justified his violence against it, but that the theory he was invoking – insurrectionism – has met with increasing approval and legitimacy in otherwise serious circles. That this claim is no exaggeration is the basis for Joshua Horwitz’ and Casey Anderson’s disturbing and important book on this subject. As the authors note, insurrectionist theory has won legitimacy not only in public debate and in the pages of law reviews, but from the highest court in the land. In the 2008 Supreme Court case of D.C. v. HELLER, Justice Antonin Scalia wrote with apparent approval (and certainly not with disapproval) that the Second Amendment’s right to bear arms is an important right in part because men with guns and training “are better able to resist tyranny” (at 2801) and as a “safeguard against tyranny” (at 2802). More about that later.

Horwitz and Anderson note that the insurrectionist perspective argues not only that the government is to be viewed with the greatest suspicion, but that citizens should be “prepared to resist it with force” (p.4). As groups like the National Rifle Association insist, guns mean freedom; more guns mean more freedom; any government-enacted restriction of guns is, ipso facto, an infringement on freedom; and the threat of armed force by citizens against their government is beneficial, not corrosive; healthy, not harmful to freedom. The book begins by defining insurrectionism, noting that the insurrectionist sloganeering is largely detached from societal reality. They note one of many ironies of insurrectionism: it asserts that [*391] the “government is too weak to protect its citizens yet too strong to be trusted” (p.26). More than any other individual or group, the NRA bears primary responsibility for promoting and legitimizing the idea that the threat of political violence (and what is the point of the threat if it is not backed by the prospect of action?) is not only a good thing, but protected under the Second Amendment. The tipping point came in 1977 when hard-liners within the NRA took control of the organization at its annual convention. Since then, the organization’s direction has been ever more political, strident, and radical.

The meat of Horwitz and Anderson’s analysis focuses on three historical cases that they argue have been badly distorted to prop up insurrectionism: the founding period, the Civil War and post-war Reconstruction period, and the rise of Nazism in Germany. To the insurrectionists, Revolutionary War fighters were opposing British tyranny (as indeed they were), and their actions were “an individual right of self-defense against government tyranny” (p.87). This unfettered right, they say, was codified in the Declaration of Independence. What the insurrectionists fail to note – and which is easily gleaned by reading the Declaration – is that Revolutionary fighters were not only fighting against British oppression, but also for their own, indigenous government; it was a collective struggle with like-minded Americans, not one of lone individuals. The essence of the revolutionary struggle was support for the substitution of one government with another. And even before the struggle was concluded, the founders labored to institute a new government that would replace political violence and turmoil with the ballot box, the jury box, and other peaceful means of political expression. Indeed, the central reason for the replacement of the Articles of Confederation with the modern Constitution was because the government was too weak and ineffectual, especially regarding the two central powers of any government: the power over money, and over the use of force. As the Constitution itself said, militias (the same militias referenced in the Second Amendment) were to be used to “suppress insurrections,” not cause them.

The Civil War case offers a second instance of the manipulation of history to serve the contemporary political agenda of the insurrectionists. Leaving aside the inconvenient fact that the Civil War was fought to defeat the notion that states, or individuals within them, are somehow entitled to commit armed rebellion against the American government (for that, by definition, is what insurrection means), insurrectionists insist that Reconstruction’s failure to extend rights to African Americans could have been averted if only former slaves had been given access to firearms to avert white violence. Some southern blacks did have guns, and indeed were armed by the federal government and organized into black militias. But the inadequacy of these efforts lay at the feet of the North for failing to sustain governmental protection for southern blacks, and the embrace of insurrectionism by whites, who visited violence not only on those blacks who resisted, but also upon pro-North governments. The insurrectionists in the Reconstruction-era South were the white terrorists like the Ku Klux Klan. [*392]

Horwitz and Anderson’s third case, the rise of the Nazis to power in Germany, also disassembles insurrectionists’ fortune cookie history which insists that strict gun control laws during the Weimar Republic paved the way for the Nazi rise to power by keeping guns out of the hands of Jews and others who would have resisted the Nazis’ brutal tactics. It turns out that gun laws in post-World War I Germany were relaxed during the inter-war period, not tightened. The weakness and eventual breakdown of the Weimar regime opened the door to exploitation by the brutal Nazis, who out-muscled the political left, yet maintained a veneer of respectability by tying their movement to German traditions. Jews were demonized by Nazis in a nation already acquainted with antisemitism, but they were only a small minority of the German population, and only became the focus of systematic Nazi extermination long after they captured the power of the state.

The book concludes with several brief chapters that address the troubling theoretical and practical problems with the unbridled mistrust of government and threats of private citizen violence against the government that define insurrectionism. At bottom, insurrectionism can only occur at the expense of other vital freedoms, from free speech to public safety. And while last year’s HELLER case did not expressly rule that the Second Amendment protected an insurrectionist right of rebellion, the ruling, in Horwitz and Anderson’s words, “waded into dangerous waters” (p.173).

Take the Supreme Court’s controversial ruling in a case like BUSH v. GORE in 2000. Many considered the ruling a case of judicial overreach, a kind of de facto political coup that denied a full and fair recount and instead handed the election to the candidate with fewer votes. Judicial tyranny? Many thought so. How, exactly, would Justice Scalia deny, in light of HELLER, the “right” of armed citizens to halt government oppression by, say, storming the Supreme Court building, taking the justices hostage, or killing them outright, in the name of halting government oppression? That is what insurrection means: politically motivated violence against the government. If Scalia, the NRA, and the rest, mean what they say, then citizens are really entitled to make that determination, on their own, under the terms of the Second Amendment. Yet legal scholar Roscoe Pound’s (1957, 90-91) verdict on this theory from decades ago offers a definitive reply when he wrote that a “legal right of the citizen to wage war on the government is something that cannot be admitted. . . .a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.”

REFERENCES:
Michel, Lou and Dan Herbeck. 2001. AMERICAN TERRORIST: TIMOTHY McVEIGH AND THE OKLAHOMA CITY BOMBING. New York: Regan Books.

Pound, Roscoe. 1957. THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY. New Haven: Yale University Press. [*393]

CASE REFERENCES:
BUSH v. GORE, 531 U.S. 98 (2000).

D.C. v. HELLER, 128 S.Ct. 2783 (2008).

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© Copyright 2009 by the author, Robert J. Spitzer.

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LAWYERS IN THE DOCK: LEARNING FROM ATTORNEY DISCIPLINARY PROCEEDINGS

by Richard L. Abel. New York: Oxford University Press, 2008. 584pp. Cloth. $75.00/£44.00. ISBN: 9780195374230.

Reviewed by Herbert M. Kritzer, through June 29, 2009, William Mitchell College of Law; effective June 30, 2009, Law School, University of Minnesota. Email: kritzer (at) umn.edu.

pp.386-389

Richard Abel is one of the leading students of legal professions in the common law world. In his new book, LAWYERS IN THE DOCK, he takes on the issue of malfeasance by members of the profession. As Abel explains, his interest in this topic flowed in part from more than 30 years of teaching the required course on professional responsibility (p.497); he reports that he “wrote these case studies in the belief that only by understanding the social, structural, and psychological conditions of lawyer deviance can we take effective steps to rebuild the trust that is the essential foundation of our legal system” (p.491). The material at the core of the book comes from seven contested disciplinary proceedings from Manhattan. Because discipline had been imposed in these cases, the detailed records of the proceedings are public, and hence available to scholars as a basis for research and analysis. As I will discuss below, Abel’s reliance on these detailed records is both the strength and the weakness of the book.

The book consists of eight chapters: an introductory chapter framing the issue of attorney malfeasance in terms of the betrayal of trust, six chapters detailing his case studies, and a concluding chapter entitled, “Restoring Trust.” The six chapters of case studies deal with three types of malfeasance: client neglect, overreaching on fees, and excessive zeal in pursuing a client’s case. Abel specifically chose not to consider cases involving mishandling or misappropriating funds in clients’ trust accounts, cases involving solicitation of personal injury clients, disciplinary proceedings following criminal convictions, or relatively rare problems such as sexual harassment. The three areas of focus represent relatively common areas of complaint by clients (i.e., neglect and excessive fees), or an area of popular concern about legal processes (i.e., lawyers who pursue their clients’ cases with excessive zeal).

The introductory chapter is a wide-ranging discussion of trust and betrayal, first covering the need for trust generally in society, and then an extended consideration of betrayal and the lessons to be derived from betrayal. As Abel spells out, many actors can engage in acts of betrayal: parents (and parent surrogates), environmental polluters, manufacturers, service providers (professional and nonprofessional), and competitors in settings such as sports. A section entitled “the sociology of trust violation” discusses mechanisms of betrayal through confidence games, white collar crime, and “fiddling” (routinized cheating of employers or customers by acts such as small-scale overcharging or shorting). Abel reports [*387] that it was his working through of these literatures that “helped frame my inquiry into how and why lawyers betray trust,” and particularly how that literature shows that “[d]eviance’s very ordinariness is what allows it to persist” (p.52). It is this last point that suggests what may constitute the major weakness of the book: the cases that Abel goes on to detail are striking by their lack of ordinariness (or, alternatively, by Abel’s failure to provide any way of judging their ordinariness). In fact, Abel acknowledges that he makes “no claim that my cases are representative of the population of lawyer misconduct” (p.55). Abel does make mention of many cases beyond those he studied in detail (see pp.64-69), but these mentions are not dealt with in any kind of systematic fashion. It would have been helpful to the reader if Abel had provided a brief statistical profile of disciplinary proceedings in New York, in terms of both types of complaints and outcomes (including the nature of sanctions); this would have allowed the reader to place the cases Abel details into some context.

This is not to say that the cases Abel describes are unimportant or uninteresting. The six chapters of case studies are detailed accounts, at times perhaps more detailed than necessary, of how lawyers made mistakes and then proceeded to dig themselves in deeper and deeper either by repeating the mistakes or by failing to understand how they had erred (“all but one of the lawyers were convinced that they had done nothing wrong,” p.491). Three chapters describe lawyers who neglected their clients (one personal injury lawyer, one immigration lawyer, and one business lawyer); much of the neglect described in these chapters arose from the lawyers taking on more cases than they could handle. Two chapters describe lawyers who engaged in unethical billing practices. In both cases the lawyers failed to have clear, written retainer agreements with their clients, complicated in some situations by the absence of (or inconsistency in) records purporting to track the amount of time the lawyers devoted to the work at issue (when pressed for supporting time records, one lawyer managed to generate records such that his unpaid time and expenses exactly equaled the amount of a tax refund he had kept as payment). In one case the arrangement had been very informal because the lawyer and client were friends prior to the legal engagement. The third case, labeled by Abel as “excessive zeal,” involved a situation where the client (who was at the time also working as a paralegal for the lawyer) obtained access to some of the opposing party’s privileged documents, and then the lawyer failed to promptly and properly report the breach; the lawyer worsened the situation by attempting to use what he learned from the breach to leverage a settlement. The chapters consist largely of narrative, supplemented by relatively brief analytic conclusions, and in two cases “responses” by the lawyers to Abel’s narrative. In several of the cases, the lawyers were simply unable to grasp their errors, and responded by becoming increasingly self-righteous regarding their actions and increasingly convinced of the injustice of the disciplinary proceedings. Perhaps the most extreme case of self-denial was one of the billing cases (in which the lawyer had taken on the representation of a friend without a written retainer agreement); this was one of the examples where the chapter included a reply by the lawyer, and in [*388] that reply the lawyer repeatedly referred to Abel’s narrative as the “dishonest professors’ tale,” insisting that he had done nothing wrong and that it was the disciplinary system that was corrupt.

As noted previously, the central problem with the narratives forming the core of Abel’s “data” is that the reader is given no sense of how representative they are even of the case types that Abel chose to include (i.e., client neglect, billing practices, and excessive zeal). It seems likely that the cases represent extreme examples of these types of ethical violations. One would like to know what percentage of the cases that resulted in discipline had gone through the full disciplinary process, as opposed to the lawyer “admitting” the violation and consenting to discipline. What percentage led to suspension or disbarment? What percentage resulted in appeals? If I were teaching a professional responsibility course, Abel’s narratives would provide excellent examples of how an attorney can make a bad situation much worse. While this is an important lesson, I suspect that the majority, perhaps the vast majority, of disciplinary violations and proceedings are typically much more banal than the cases described by Abel, and a more important lesson for future (and current) lawyers is that most ethics violations do not take on the extreme form found in Abel’s examples.

In the concluding chapter Abel discusses how ethical breaches by lawyers could be reduced. In one sense, Abel’s six cases make a good vehicle for thinking about this because, as noted above, all but one of the lawyers whose cases he described did not believe that they had done anything wrong, and if we can reduce violations which are not recognized, then we should also reduce those that are recognized. One important point that Abel notes is that these lawyers did not get embroiled in disciplinary proceedings due to inexperience, which matches the general pattern that “lawyers typically become embroiled in disciplinary proceedings in the middle of their careers, not at the beginning” (p.496); one of Abel’s examples involved a lawyer well beyond the middle of his career. Abel’s analysis is that ethical failure comes from a combination of lapses in professional self-discipline, the institutional structure of practice, and the lack of institutional oversight. He draws comparison to concerns about medical error and institutional successes and failures to reduce iatrogenic injury and illness. He notes, for example, that lawyers working outside institutional settings (i.e., in solo practice rather than in firms) seem more likely to be caught up in ethical violations. The hospital provides a setting that both produces errors and seeks to reduce error through institutional structures. What Abel does not discuss is that the comparable institutions for lawyers would be the court or other institutional decision-maker; however, unlike the hospital which often bears financial responsibility for errors, the legal institutions have no such responsibility (and some may even be precluded from disciplining lawyers).

While not minimizing the issue of ethical violations by lawyers working in firm settings, Abel discusses reasons that ethical issues may be more likely to arise (or get to disciplinary authorities) with solo or very small firm lawyers: the marginal nature of some solo/small firm [*389] practices (lack of support staff, lack of backup from colleagues), clients of solo/small firm lawyers may have no recourse other than the disciplinary authorities (clients of larger firms can seek redress from firm management, and those firms are usually anxious to maintain client good will), and lack of internal monitoring by colleagues or management (in large firms, the firm may be at financial risk for malfeasance of its lawyers, and supervisory structures can identify potential problems and correct them in a way that is not possible in solo/small practices). Abel calls for some mechanism to allow potential clients to determine if a lawyer has had ethical issues in the past (similar to what is provided through the National Practitioner Data Bank for physicians; http://www.npdb-hipdb.hrsa.gov). Abel describes efforts of medical providers to reduce the incident of error; much of this involves standardizing procedures and enforcing the implementation of those procedures, even those as simple as hand washing. However, central to much of this effort is the finding that highly specialized medical providers who do a large number of a particular procedure, whether that is something as complex as heart bypass surgery or as routine as simple hernia repair, have lower error rates than do generalist or low volume providers. Abel discusses the need to allow more competition, a point with which I sympathize, although while such competition would probably reduce costs, it is not clear that it would reduce errors unless the clients of the personal services sector of the bar were to become much more sophisticated in how they choose and consume (i.e., monitor) legal services.

One point not discussed in the book is that all six of the lawyers upon which Abel focuses are male. Is this coincidence? It may be that women are less likely to run afoul of disciplinary authorities, either because of the types of practice settings in which they work or because of greater attention to ethical strictures. Alternatively, it may be the women do not appear among the lawyers discussed because women who do commit ethical violations are more willing to recognize that they have done something wrong and agree to discipline, rather than continuing to insist that their behavior is perfectly appropriate as did all but one of the lawyers in the book. This is a question that warrants future inquiry.

In summary, as he has done repeatedly in his books and other writings, Richard Abel has produced an interesting and provocative book. Anyone interested in the nature of lawyers’ work, and the problems lawyers can create for themselves in carrying out that work, will be interested in what Abel shows in his case studies and in his analysis of why the problems exist and what might be done to reduce ethical violations. At the same time, as Abel himself acknowledges, his selection of cases dictates caution in drawing generalizations about the day-to-day nature of ethical issues lawyers confront and deal with, or about the nature of everyday disciplinary proceedings.

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© Copyright 2009 by the author, Herbert Kritzer.

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THE TRANSFORMATION OF THE SUPREME COURT OF CANADA: AN EMPIRICAL EXAMINATION

by Donald R. Songer. Toronto: University of Toronto Press, 2008. 384pp. Cloth. $70.00/£45.00. ISBN: 9780802096890.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: roy [at] cs.tamu.edu.

pp.380-385

Plus ça change, plus c’est la même chose. Perhaps: but maybe not. In Canada, Donald Songer, after a very detailed empirical investigation of its Supreme Court, finds considerable continuity in how the justices decide and what they decide but also significant change. One reason why Jean-Baptiste Karr’s epigram is not entirely apropos is Canada’s Charter of Rights and Freedoms. Most observers agree that the Charter, beginning in 1984, has rearranged the country’s constitutional landscape. So, it would be surprising if the Supreme Court’s norms, routines, and decisions somehow remained untouched. Another reason, integral to the political reforms leading to the Charter, included Parliament’s 1975 grant of authority to the justices that gave them new and considerable discretion over appeals they would hear. The impact of this reform also seems obvious enough: changing how justices decide to decide should produce a new agenda and new priorities. Finally, the simple political routine of replacing justices on the bench could alter the dynamics of the court.

With the largest and most complete empirical dataset available on the Canada’s court, the “High Courts Judicial Database,” Songer analyzed nearly 3500 decisions for the years 1970-2003 or roughly 100 cases per year. This unusually hefty resource helped him to nail down patterns and to empirically verify previous observations based on more limited information. In addition, Songer interviewed ten current or retired justices and four former clerks to the justices. (The book includes the protocols used in the interviews.) Songer’s aim is to explore changes in multiple indicators of outcomes and processes of the Court within the context of current research.

While Songer’s chief goal is to chart the various ways in which Canada’s high court has been transformed, his book has other purposes. Special attention is paid to introducing readers who are unfamiliar with the Supreme Court to how it works and to political science models of judicial voting behavior. For more knowledgeable readers the book elaborates on findings from earlier research that limned the contours of judicial behavior in Canada (e.g., McCormick 2000; Greene, et al. 1998). At times, these goals get in the way of one another; technical issues are sometimes slighted even as descriptions about the court and summaries or critiques of prior research accumulate. In the end, a veritable forest of findings and a thick undergrowth of commentary take root. This is a tree-top overview of the forest with an eye toward basic trends in the Canadian Supreme Court over the past three or more decades. [*381]

When the justices gained discretion to pick and choose cases they wanted to hear, many civil and criminal appellants lost their automatic right of appeal, and the effect on the Court’s docket was dramatic. Songer cites McCormick (2000) that before 1975 nearly 85 percent of the Court’s caseload was due to appeals as of right while leave to appeal petitioners accounted for the other 15 percent. Shortly afterward, the proportions were reversed. (A subsequent law in the late nineties made the Court’s docket almost entirely discretionary.) Justices, when asked by Songer, emphasized their interest in reviewing questions of “public importance” that would develop the law rather than merely correct lower court errors. The Charter naturally seems to have egged on this shift in judicial priorities. As a consequence of both interventions in the Court’s jurisdiction, private disputes diminished in importance as public law matters replaced them.

Songer’s comparisons of the docket shares of cases for various kinds of issues pretty much confirm casual and more systematic observations. Canada’s justices, given the latitude by Parliament to hear cases that piqued their interest along with the opportunities the Charter created for developing the law, granted leave to appeal to petitioners whose cases raised general public policy questions that were not mired in factual or narrow legal squabbles of concern only to the immediate parties. Tracing the mix of issues in cases heard by a high court over time, however, catches only the end result of the underlying processes that shape a court’s agenda. In this instance, Songer assumes the Charter changed the selection criteria used by the justices as they culled requests for leave to appeal; those involving the Charter presumably stood a better chance of being reviewed that those that did not.

This assumption at least for the years 1993-1995 received no support (although the “public importance” criterion and related indicators did) which suggests the Supreme Court Act of 1975 had more influence on the agenda-setting process than the Charter (Flemming 2004). This does not mean appeals involving the Charter failed to make it to the Court’s docket; only that petitions for leave to appeal that included a Charter claim were not automatically granted. It is possible the justices gave these petitions greater weight immediately after the Charter took effect but over time have discounted the importance of Charter claims. The Court’s Bulletin of Proceedings includes basic information about leave petitions from 1975 to the present that could be used to see if the odds that applications for leave with Charter issues have decayed over time.

With the transformation of the Court’s agenda, the outcomes of appeals heard by the Court might also change. One measure of these outcomes deals with challenges by appellants to statutes or executive actions based on constitutional grounds. The Charter encouraged these challenges, and Songer shows that they became more frequent after it went into effect. Since then, cases raising constitutional issues make up about a third of the Supreme Court’s docket. From the perspective of the overall docket, these challenges are rarely successful and only marginally increased after the Charter; the justices strike down [*382] a small fraction of federal or provincial laws on constitutional grounds. Looking at just those cases with Charter claims, appellants win about 40 percent of the time; good enough perhaps to gamble on an appeal to the high court, but also far from being a lead-pipe cinch. A second indicator, the flip side of the first measure, shows that in the aggregate government parties usually win in Canada’s high court, and Songer’s data reveal no changes in the success rates of governments because of the Charter. Finally, a third measure indicates the Court is no more or less liberal than it has been in the past. The trend in “liberal outcomes,” defined, for example, in terms of whether underdogs win or civil liberties are expanded, merely fluctuates around its historic mean. While it appears that continuity has carried the day, a word of caution is warranted.

Songer generally relies on “ocular tests” rather than time-series models to assess whether trends are stationary or not and the impact of the Charter or other exogenous events on these trends; this places a premium on whether we can trust what we see. For instance, to the naked eye it looks like the Charter reduced the rate of liberal decisions, but without more rigorous tests it is hard to tell. Another limitation is that the thirty-four years in the study are collapsed into five periods corresponding to before the 1975 agenda reform, after the reform, and then, beginning with 1984 when the Charter took effect, three periods roughly coinciding with the tenure of three chief justices. The rationale for these three categories is hazy as leadership is a minor and relatively undeveloped theme in the book. Indeed, “natural courts” would seem a better alternative if not a complementary option considering the significance of new appointments to the bench and that an entire chapter is devoted to the “changing profile” of justices on the bench. Be that as it may, another stumbling block besides the loss of valuable information is the absence of statistical tests of differences in the measures across the time periods, leaving judgments about movements or changes in the indicators more impressionistic than they need to be.

Although general trends suggest the Charter had a limited effect on the outcomes of cases heard by the court, more subtle shifts at the micro-level affecting the relative advantage of parties may have occurred. Using the “index of net advantage” as a proxy for the status or resources of parties (individuals, business, associations, local and provincial governments, federal government), which is consistent with McCormick’s (1993) earlier study of the court, Songer calculates the indices for various categories of parties and compares their success rates. His strongest test of the Charter’s impact rests on a before-and-after comparison of the coefficients for the parties from a logistic regression model where the dependent variable is whether the appellant won and with criminal cases as a control variable.

Continuity, once more, reigns with one important exception. Associations, when appealing lower court rulings, seem to have lost their clout in the post-Charter period. This is contrary, as Songer points out, to the “Court Party” thesis promoted by Morton and Knopff (2000) who argued the Charter encouraged groups to seek out the [*383] Supreme Court as a venue to gain new policy ground for their interests or to solidify them. Otherwise, the Charter had little impact on the success of other categories of parties. Individuals, however, were the benchmark category for this model. Songer therefore prepares two separate logistic regression models, one for criminal cases and one for civil cases, with the Charter as one of the independent variables; the dependent variable is whether individual parties won or lost. The Charter apparently produced two different effects: it increased the chances that individuals won their criminal cases but reduced their chances in civil disputes. The first result makes sense, but the latter finding is counter-intuitive, and Songer provides no explanation for it. In general, the findings are mixed with respect to who wins, with the weight of the evidence suggesting the Charter only marginally disturbed the Supreme Court’s decision patterns.

If the Charter has not changed very much who wins in Canada, perhaps it altered the justices’ working relationships. The Charter presents knotty problems of interpretation that could make deliberations more contentious; underlying divisions may surface and broaden or sharpen cleavages between the justices. Even in the face of political controversy over their decisions, this has not occurred; if anything, the Charter has blurred at least traditional cleavages among the justices.

Although dissents occur relatively infrequently in Canada, when disagreements arose in the past, before the Charter, the justices clustered according to ideology and background. These clusters reflected three variables: the party of the prime minister who appointed the justices, whether the justices came from Quebec or Ontario, and if they were Catholic or not. In the years following the Charter, Songer’s logistic regressions suggest, these factors lost their statistical significance in civil liberties and private economic disputes, but not in criminal cases.

Songer claims the changed profile of the justices offers an explanation. In non-criminal cases, a justice’s gender now trumps the traditional factors and has replaced them, while for criminal cases it joins the other factors in explaining divisions on the bench. Thus, dissents in civil liberties and private economic questions stem from differences in how female and male justices vote and not whether they were Liberal or Conservative appointments. This change stems from changes in the political priorities regarding the appointment of female judges, although the prime ministers and the justice ministers involved probably did not anticipate how their choices would affect the decisional dynamics on the Supreme Court. At the same time, it is not clear how the advent of the Charter figures into this new scheme of things.

Canada’s Supreme Court is the mirror image of the U.S. Supreme Court in that Canadian justices typically agree with one another and are more likely to affirm lower court decisions than reverse them. Unanimity remains a vibrant, effective norm that governs how Canada’s jurists go about the business of judging: three-quarters of the time the justices agree on judgments in cases, concurrences are few and far between (for thirty-four years the proportion of cases without concurrences averages nearly 87 percent), [*384] and minimum winning coalitions occur only in one out of ten cases. Fluctuations occur from year to year but with little visual evidence of upward or downward trends, much less of breaks in the trends after the Charter. The persistence of unanimity in Canada thus becomes a puzzle, certainly for American observers. Equally puzzling, when compared to the United States, is Canada’s high rate of affirming lower court decisions, which, despite ups and downs, also appears relatively constant over time. In perhaps the most intriguing discussion of his book, Songer tackles the thorny problem of unanimity by building on Glendon Schubert’s spatial version of the attitudinal model.

The basic argument is that unanimous votes occur according to how the ideological diversity of the panel or coram hearing the appeal maps onto the ideological space occupied by the lower court judges. This argument generates several testable hypotheses, some intriguing results, but often dense discussions that are not helped by mislabeled columns in two of the tables. The key indicator is a variant of one kind or another of ideological diversity; the attitudinal model, however, regardless of how diversity is measured is found wanting and apparently is time-bound.

Songer points to “strong evidence” to support his conclusion that decisions to vote unanimously “are not solely ideologically driven” (p.228), but this applies only to the post-Charter years. Since the Charter, ideological diversity has declined in significance as unanimity became unmoored from judicial ideology even as the statistical relationships between unanimous votes and the political salience of cases – i.e., the presence of a constitutional issue, whether the cases involved statutory interpretation, and if they attracted interveners – have grown stronger. Canada’s justices are more likely to cast dissenting votes when the environment surrounding cases gets more divisive. It remains as a mystery, however, why the Charter muted judicial ideologies in the Court’s deliberations, if it did, even as it seems to have raised the importance of political cues in the justices’ voting decisions.

When things vary, do they also change? Sometimes: but not always. Songer focuses on the who, the what, and the how of decisions in roughly 3500 appeals heard over more than thirty years by Canada’s Supreme Court. His data and interviews limit him to this internal perspective, and given the amount of information at his disposal he had his hands full. The dynamics of decision making on Canada’s high court appear unexpectedly resilient and mostly unchanged, even while the statutory and constitutional contents of its judgments have been transformed by politics and history. The larger picture is that the role of the Supreme Court within Canada’s Westminster parliamentary system has been transformed even as the court persists in its traditional and customary ways of disposing of appeals. The dynamics of this transformation are beyond the reach of Songer’s book, even though he recognizes it, and thus he does not participate in or contribute to the debate over the “dialogic” relationship between the court, parliament, and provincial governments (Hogg, Thornton, and Wright 2007). And yet it appears that it is the role of the Court that has changed most. [*385]

REFERENCES:
Flemming, Roy B. 2004. TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA. Vancouver, BC: UBC Press.

Greene, Ian, Carl Baar, Peter McCormick, George Szablowski, and Martin Thomas. 1998. FINAL APPEAL: DECISION-MAKING IN CANADIAN COURTS OF APPEAL. Toronto: James Lorimer & Company, Inc.

McCormick, Peter. 2000. SUPREME AT LAST: THE EVOLUTION OF THE SUPREME COURT OF CANADA. Toronto: James Lorimer & Company, Inc.

McCormick, Peter. 1993. “Party Capability Theory and Appellate Success in the Supreme Court of Canada.” 26 CANADIAN JOURNAL OF POLITICAL SCIENCE 523-540.

Morton, F. L., and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Peterborough, ONT: Broadview Press Ltd.

Hoggs, Peter W., Alliason A. Bushell Thornton, and Wade K. Wright. 2007. “Charter Dialogue Revisited – Or ‘Much Ado About Metaphors’” 45 OSGOODE HALL LAW JOURNAL 1-65.

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© Copyright 2009 by the author, Roy B. Flemming.

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GLOBAL GOVERNANCE AND THE QUEST FOR JUSTICE (VOL. 3) - CIVIL SOCIETY

by Peter Odell and Chris Willett (ed). Oxford: Hart Publishing, 2008. 174pp. Paperback. £22.95/$48.00. ISBN: 9781841134079.

Reviewed by David Wallace, Department of Law, United States Military Academy, West Point, New York. Email: David.Wallace [at] usma.edu.

pp.376-379

Peter Odell and Chris Willett’s book, GLOBAL GOVERNANCE AND THE QUEST FOR JUSTICE (VOL. 3) – CIVIL SOCIETY is one in a four volume set of scholarly works entitled Global Governance and the Quest for Justice.

The overall purpose of the four volume collection is to address the legal and ethical deficits associated with the current round of globalization and to discuss the building blocks for modes of global governance that respect the demands of legality and justice. Volume 3, CIVIL SOCIETY, focuses on themes of citizen organizations and empowerment set in the context of globalizing legal processes. Odell and Willett’s book is a collection of eight scholarly essays addressing a wide range of contemporary issues regarding various aspects of the way in which the law shapes, mediates, and reacts to the evolving relationship between globalization and civil society. These articles are preceded by an insightful introduction (Chapter One) in which Odell and Willett not only briefly summarize the contributions of the authors contained in the book, but also offer their own valuable insights into the development of the law in this area.

Overall, the collection of essays is well written and logically compiled. A welcome feature of GLOBAL GOVERNANCE AND THE QUEST FOR JUSTICE (VOL. 3) – CIVIL SOCIETY is a roadmap appearing on the first page of the book. Coupled with Odell and Willett’s introductory chapter, the reader has an excellent sense for the way ahead. After the introductory chapter, the next three chapters focus on other challenges that globalization creates for the application of private law. By way of illustration, the authors explore how contract and tort legal principles that have been created and developed largely in domestic legal systems, adapt and apply to global transactions and civil wrongs. Chapters Five, Six, and Seven consider procedural, professional and institutional challenges to the access to justice in a globalized world. Chapter Eight addresses public service and the limits to competition law. Finally, in Chapter Nine, the author discusses the issue of democracy in a globalized world. Although all of the essays are informative with exceedingly important analyses and are absolutely worth reading and interesting in their own ways, I will highlight three of the essays below for further consideration.

Annette Nordhausen, a lecturer in Law at the University of Sheffield, contributed Chapter Three, “Can Soft-Law Solve the Problems Arising in International Electronic Contracts,” to the collection. Well organized and easy to read, Nordhausen’s essay examines [*377] problems and possible solutions for online international consumer contracts and the advantages and disadvantages of using “soft law” as a means of regulating international consumer contracts. As defined in the essay, soft law is self regulation put into place by non-governmental organizations, international organizations or industry. Nordhausen argues that the main advantages of soft-law are (1) such regulation can provide adequate and specialized solutions; (2) it can be introduced quickly and does not require a lengthy legislative process; (3) it is independent from national borders and can more easily be introduced world-wide; and (4) it has a high level of acceptance amongst those who subscribe to it. By contrast, Nordhausen notes that the primary disadvantages of soft law include: (1) a lack of democratic legitimacy; (2) interests of individuals and minority groups have a competitive disadvantage; (3) a lack of comprehensiveness; (4) being only binding on those who opt for it; and lastly (5) it is not enforceable. In sum, Nordhausen concludes, although soft-law has some advantages, it cannot wholly replace formal statutory law in regulating international consumer contracts in cyberspace.

Among the essays in the collection is one on dispute resolution and access to justice by Axel Halfmeier, an Academic Assistant at the University of Bremen, titled, “Is There a World Courthouse on Foley Square? On Civil Procedure, Private International Law and Human Rights in the Age of Globalisation.” Halfmeier’s essay addresses the forums that are evolving to address private litigation in the context of globalization. In a very clever way, the title of the piece draws the reader in like a moth is drawn to a light. The United States District Court for the Southern District of New York is located in Manhattan at Foley Square. As Halfmeier points out, the federal district court at Foley Square, like many others around the United States, have functionally become “world courts” because such courts are constantly dealing with cases that have little connection to the United States. By way of illustration, Halfmeier points to the case of WIWA v. ROYAL DUTCH. The case, which was tried in the United States District Court for the Southern District of New York, involved a transnational defendant corporation located in the Netherlands. The plaintiffs were Nigerian nationals, some of whom lived in the United States, who claimed their human rights were violated by the Royal Dutch Corporation in connection with its oil exploration activities in Nigeria. As the author notes, there are, of course, countless examples such as cases including: German companies and Swiss banks for their behavior during the era of the Third Reich; war crimes in the former Yugoslavia; torture in Ethiopia; and summary execution and torture in the Philippines, among others.

Not surprisingly, Halfmeier observes that the response to such litigation is a matter of perspective. Plaintiffs welcome US courts because such forums may be the only way that they can bring their case to a court. By contrast, others are far more critical. They believe that it is arrogant for US courts to interfere in the business of other nations. The author explores the above issue from the limited perspective of private international law. In terms of the framework for the essay, Halfmeier initially addresses the issues of jurisdiction and sovereign immunity. [*378] He then argues that the question of the applicable substantive law challenges traditional conflict of law rules under the conditions of globalization. Halfmeier argues convincingly the future of private litigation in the context of globalization will not be a centralized world court system. In his view, it will be a patchwork of national court decisions regarding transnational issues. According to the author, a transnational tort law regarding human rights violations can emerge. Such a development can be supported, in Halfmeier’s view, by adequate jurisdictional rules such as the doing business jurisdiction in the United States.

The third essay highlighted in this review is Bob Watt’s “evoting and e-empowerment – the Case against Cyberdemocracy.” Professor Watt is a Senior Lecturer and the Head of the School of Law at the University of Essex. Thematically, Watt’s essay explores the impact globalization has on democracy. In the first part of his essay, he sets the stage for his reader by noting that the number of people voting in political elections in Great Britain has declined dramatically over the past several decades. He also notes that such a phenomenon is not, in his words, wholly British. The United States has experienced a shrinking voter turnout as well. According to Watt, the UK’s response to the decline was the Political Parties, Elections and Referendums Act of 2000. Among the various pilot programs established under the law, it created a program for voting by using digital technology – e-voting. Arguably, e-voting will increase the number of people participating in elections because they can vote from home, work, or any place with digital media.

Watt next considers the legal reasons for excluding e-voting. Of note, he argues that e-voting via the Internet carries with it grave risks to secrecy, which is well established as a fundamental principle of democracy enshrined in both English and international law. For example, according to Watt, if an individual votes in the workplace by means of the Internet, his or her employer can easily intercept or watch the vote. Likewise, home voting can degenerate into a group activity. In the course of his analysis, Watt considers how Irish courts have dealt with this issue, as well as how human rights rules apply. The author concludes, in part, that e-voting may be legally problematic unless there is no other alternative for exercising a right to vote. In the later part of his essay, Watt discusses the general types of reasons qualified voters abstain from voting: disengagement, disenchantment, and disempowerment. After some introductory remarks about the reasons, Watt focuses his essay on disempowerment. Within the context, he effectively makes the argument that globalization and digital technologies may work synergistically both to lower turnout and improve the chances of non-traditional candidates.

In sum, the well-written and argued essays in GLOBAL GOVERNANCE AND THE QUEST FOR JUSTICE (VOL. 3) – CIVIL SOCIETY, taken together, will contribute substantially to the reader’s understanding of the phenomena of globalization in the context of civil society. Put differently, this volume provides a comprehensive panorama of the range of issues [*379] regarding globalization and civil society. The editors and authors of this work should be highly commended for undertaking this important venture.

CASE REFERENCES:
WIWA v. ROYAL DUTCH, 226 F.3d 88 (2nd Cir. 2000), cert. denied, 532 U.S. 941 (2001).

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© Copyright 2009 by the author, David Wallace.

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SACRED VIOLENCE: TORTURE, TERROR, AND SOVEREIGNTY

by Paul W. Kahn. University of Michigan Press, 2008. 248pp. Cloth. $70.00. ISBN: 9780472070473. Paper. $22.95. ISBN: 9780472050475.

Reviewed by Fiona de Londras, UCD School of Law, University College Dublin. Email: fiona.delondras [at] ucd.ie.

pp.371-375

In our increasingly rights-based expressions of law and legality, the absolute prohibition of torture sits at the apex of domestic and international norms. Nevertheless, and as we are all aware, torture has not been eradicated. In SACRED VIOLENCE, Paul Kahn offers a deeply philosophical, reflective and beautifully-expressed treatise on why and how this is, basing his theory firmly in the assertion that, in spite of the aesthetic shift from sovereignty to law, there continues to exist a space beyond law; a space dominated by sovereignty in which sacrificial violence, including torture, plays a powerful expressive role. Making out this argument, Kahn masterfully interlinks history, politics, philosophy, international relations and law in what is a must-read book for all of us interested in understanding the uncomfortable but unavoidable reality that states still see a role for torture, particularly when confronted with terror. The book is certainly not easy reading for those who have placed their faith in the potential for an international legal order with a strong normative grounding in conceptions of human rights to have a restraining impact on states’ behaviours, but that which is uncomfortable is nevertheless important.

As Kahn notes early in the book, criminal justice systems – both domestically and internationally – have progressively become more rights-based, procedure-driven and intelligence-oriented over the past decades, but that notwithstanding, “many of us have no confidence that modern criminal procedure will allow us to obtain the information we seek or that the ordinary tools of criminal punishment will have much relevance as either deterrence or punishment” (p.2). Therein lie three of the primary aims of state violence, whether that violence is seen as legally legitimate (as in the criminal justice paradigm) or illegitimate (as in the case of torture): information gathering, deterrence and punishment. Added to that, however, is the important expressive character of state violence, particularly when that violence is a reaction to what is perceived as an existential threat to our sovereign identity. For Kahn, we can never fully understand the practice of torture unless we think about the ways in which “violence creates and sustains political meaning” (p.4). Once we have done that we are likely to appreciate (although not welcome or enjoy the fact) that an absolute prohibition on torture “reflects a kind of utopianism founded on an idea of a global order of law that never really emerged” (p.5). By the fifth page of this book, then, the human rights lawyer is both distinctly discomforted and deeply engaged – a state of affairs that persists throughout. [*372]

Kahn proceeds to elaborate on the close relationship between sovereignty and violence. This relationship, of course, is not new although it has changed as our conceptions of sovereignty have shifted from the sovereignty of the king to the sovereignty of the people. Violence has long been an expression of sovereign power – think, as Kahn compels us to, of the public violence of the scaffold and the ways in which such violence not only served as punishment (often resulting from a confession acquired through torture) but also as a spectacle designed to bring about “a combination of dread and awe before the sacred mystery of sovereign power” (p.25). In that context, torture produced truth – not, perhaps, epistemic truth but rather the truth for the tortured of their willingness to self-sacrifice and the truth for the torturer of sovereign power. Later in the book, Kahn demonstrates how this relationship continues to exist within the context of torture: the tortured sacrifices the self for ‘the cause’ and the torturer witnesses the production and expression of the sovereign power of the state in resistance to the terror that would challenge it (p.133). Through reaffirming sovereign presence, torture continues to produce this kind of truth and thereby to reaffirm sovereignty (p.31). As sovereignty moved from the monarch to the people, the link between sovereignty and violent sacrifice was not severed but rather transformed – rather than the state torturing its citizens, sacrifice became “an ordinary condition of life” (p.35) in the form of, for example, conscription (or the possibility thereof), and torture became an abuse of the citizen and of power (p.37). However, Kahn argues that to read this shift in the nature of sacrifice as a complete turn away from torture is to misinterpret it; rather than abandoning torture altogether, we continued to imagine ourselves a sovereign entity prepared to torture the enemy. “The torture of the enemy citizen,” Kahn writes, “is not the same kind of metaphysical mistake as the torture of the citizen. A regime that prohibits torture domestically could theoretically be reconciled with the pursuit of torture abroad” (p.41).

For Kahn, the historical conception of torture as “the performance of sovereign violence against enemies” makes possible the migration of torture “from an internal ritual of sacrifice to an external means of deploying the power of the state” (p.42). Preventing exactly such a migration was, of course, one of the purported aims of the development of an international legal regime that evolved over time from a system to regulate inter-state conduct, to one that regulates the relations between states and international institutions, to one that regulates not only inter-state and state-institution relations but also state-individual relations. This development is most clearly reflected in the growth and formalisation of international human rights law which has grown from the non-binding Universal Declaration of Human Rights to the creation and promulgation of binding covenants and treaties on human rights (including the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), to the creation of juridical institutions to ensure accountability for human rights violations (including the International Criminal Court). This development happened on a wave of what seemed to be sweeping democratisation peaking in the aftermath of the Cold War. In this [*373] new paradigm, torture assumed the position of law’s antithesis (p.50) but states’ apparent willingness to move away from violence and constrain themselves (albeit subject to the somewhat malleable concept of “self-defence” in Article 51 of the Charter of the United Nations) was, Kahn claims, “somewhat surprising” (p.51). Less surprising, perhaps, has been the apparent “reappearance of sovereign violence” in the aftermath of the attacks of 11 September 2001 (p.53). This, for Kahn, reflects that fact that “[t]he autonomy of [international] law, including the privileging of the torture prohibition, was purchased at the cost of recognition of political reality” (p.59). As long as terror – which operates in the space beyond law – persists, so too will torture as a state response that also takes place in that sovereign space beyond law. This is particularly so since, while the enemy and the tactics of sovereign violence may have changed, “the imaginative construction of meaning through sovereign violence has not” (p.69).

Against this background it is of little surprise that, when considering ongoing moral and legal debates about whether, and if so, when and how to use torture in the ‘war on terrorism,’ Kahn urges us to rethink how we conceive of the ticking time bomb scenario that is so frequently used as the hypothetical through which the ‘should we torture?’ question is posed. This hypothesis raises moral and legal questions, both of which Kahn addresses at length in the book. His treatment of the these questions, however, is particularly interesting for his well-made argument that how we conceive of rights (their content, their weight, and their restraining force) is very much dependent on our “background expectations” which may themselves shift in certain situations (p.74). Thus, the prohibition on torture was formulated and became a binding, enforceable legal norm against a set of background expectations that suggested the imperative was to protect the individual from the state. Where a state is a terrorist target, those background expectations and the imperatives that flow therefrom may change to a situation where it is the state that appears to need protection, this time from the individual terrorist (pp.74-75). This, Kahn claims, is “the inversion threatened by terror” (p.75). This claim causes us to consider where the fundamental justificatory claim of the absoluteness of the prohibition on torture might lie. Is this absoluteness really sourced in a profound opposition to torture per se, or is it the case that that international law contains no exceptions to the prohibition on torture “only because the drafters could not imagine the sort of asymmetrical disadvantage that the modern terrorist may pose to the state?” (p.75).

Rather than being based in the underlying grammar of human dignity, then, Kahn causes us to question whether the absoluteness of the prohibition on torture is a product of circumstance and whether we ought to reconsider that absoluteness given the change of circumstance and the emergence of a situation in which terrorists hold the potential to carry out destruction on a massive scale. This positivistic legal question is somewhat eclipsed in practice, of course, as in reality there never was a point in time at which the state would not use torture in its own defence; the absolute [*374] prohibition, Kahn writes, “is really nothing more than an expression of Western atheistic preferences regarding forms of violence” (p.76). Arguing for an absolute prohibition allows absolutists to enjoy the moral uplift of that position, but those who argue either against absolutism or for some kind of legal accommodation of torture in extremely limited circumstances are willing to take on “the burden of dirty hands” for the sake of political necessity (p.77). In essence, then, the prevailing debate surrounding torture – in the legal scholarship at least – seems to Kahn to miss the point. This is not a debate about deontologist approaches v utilitarian approaches; rather it is about “our political commitment to defend [a] particular community against its enemies. The person to be tortured is always imagined as an enemy” (p.78).

If it is the case that the state will sometimes find it politically necessary to engage in such ‘sacred violence’ within the realm of sovereignty and beyond the realm of law, then the real task is not to come up with models of when and how torture might be used, but rather to properly understand the nature of political necessity and its difficult relationship to law and legality (p.83). Understanding that relationship is, of course, a matter of understanding the relationship between sovereignty and law and the point(s) at which the border between them lies. That border is not immobile; its position, as Kahn elaborates at some length, is very much dependent on time (the moment of terror at which the revolutionary/combatant/terrorist has the dual “experience of terror and transcendence” (p.137)), space and the territorial border (“every war imagines itself as a ‘pushing back’ of an enemy across a border” where that pushing back is literal or metaphorical (p.141)). Once the border has been crossed and the state reacts to behaviour that has a source outside of the law by engaging in “[t]he killing and being killed of war [that] occur[s] on a symbolic field of sacrifice and sovereignty, which simply cannot appear within the ordinary order of law” (p.151), torture becomes not only possible but a deeply expressive sovereign exercise; a showcase of “sacred violence.”

SACRED VIOLENCE is a complex, engaging and impressive piece of work that leaves the reader wondering whether, if violence really is such a formative and important sovereign expression, the entire project of law – particularly the project of international human rights law – has been a futile and largely optical exercise. It seems to this reviewer that such a conclusion is not what is intended by Kahn, but a way of imagining a situation where the state would not ever be engaged in that sovereign space beyond law – far less finding a manner in which to bring such a situation about – is difficult. Arguably this arises from the fact that Kahn appears to accept that the terrorism unleashed on the United States on 11 September 2001 is really representative of a type of violence that forces the state into that sovereign space in a new and more compelled way. In other words, the author appears to accept the ‘difference’ argument around Al Qaeda and modern transnational terrorist networks without interrogating that alleged difference to too great a degree. More of an engagement with that position would have been welcome, but this is – in the scheme of the book and the intriguing [*375] argument that it lays out – barely more than a quibble.

This book is disturbing, provocative, engaging, learned and essential; it challenges those of us who believe in international law’s autonomy and in the possibility of a world without sacrificial violence to revisit and interrogate the basic precepts and underpinnings of this belief and strive for more effective operationalisation. There is surely little more than one could ask of a book or an author than this.

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© Copyright 2009 by the author, Fiona de Londras.

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CHAMPION OF CIVIL RIGHTS: JUDGE JOHN MINOR WISDOM

by Joel William Friedman. Baton Rouge: Louisiana State University Press, 2009. 376pp. Hardcover. $49.95 ISBN: 9780807133842.

Reviewed by Brett W. Curry, Department of Political Science, Georgia Southern University. Email: bcurry [at] georgiasouthern.edu.

pp.366-370

In many ways, Judge John Minor Wisdom’s was a life of contradiction. Though he is known today as a pioneering appellate judge who contributed to numerous civil rights advances for African Americans, few would have expected the genteel Eisenhower Republican to follow such a path. Born in the segregated South to a socially prominent Louisiana family, his father was a cotton broker and a Democrat. Wisdom was also one of the rare sons of the Bible Belt to have little use for organized religion (p.10). Moreover, even as Judge Wisdom advanced the cause of civil rights as a member of the “Fifth Circuit Four,” breaking down racial barriers in opinion after opinion, he maintained memberships in racially restrictive clubs (p.xi). Ultimately, President Bill Clinton best summed up this tension when he awarded Judge Wisdom the Presidential Medal of Freedom in 1994: “He is a son of the Old South who became an architect of the new South” (p.374).

As one of the twentieth century’s most formidable jurists, John Minor Wisdom has not wanted for scholarly attention. Wisdom’s dedication to enforcing the promise of BROWN v. BOARD OF EDUCATION merited his inclusion as one of Jack Bass’ (1990) “Unlikely Heroes.” Peltason (1971) termed him one of the “Fifty-Eight Lonely Men” charged with carrying out school desegregation in the South. Despite the scholarly interest Wisdom has engendered, Joel William Friedman’s judicial biography paints a comprehensive portrait of the man, based on personal interviews, historical materials, and – most importantly – Wisdom’s judicial opinions themselves. In doing so, Friedman has produced a thoughtful, evenhanded appraisal of Wisdom’s life and work – topics surely deserving of a stand-alone biography.

John Minor Wisdom was born on May 17, 1905 – forty nine years to the day before the Supreme Court razed the separate but equal doctrine in BROWN. As Friedman’s careful narrative makes clear, Wisdom’s mother had a profound influence on his worldview and, ultimately, his judicial career. She “instilled in all three of her sons the notion that everyone was entitled to be treated fairly and with dignity, regardless of their personal circumstances or station in life . . . If and when they were in a position to do anything about it, they should strive to ensure that everyone was given a fair shake” (p.12).

One of the major manifestations of Wisdom’s commitment to fair play was his alignment with the Republican Party. According to Friedman, Wisdom’s active involvement in the Louisiana Republican Party principally resulted from his view that healthy democratic [*367] government was “incompatible with a one-party system” (p.46).

Once he became a Republican, Wisdom quickly aligned himself against the state party’s longtime leader, John E. Jackson. As leader of the party’s “Lilywhite” faction, Jackson controlled the State Central Committee and effectively used the organization to distribute patronage positions. The growing schism between the Jackson and Wisdom wings of the state party was ultimately reflected in the battle for the 1952 Republican presidential nomination. Jackson and the entrenched party cadre supported Ohio Senator Robert A. Taft; Wisdom and his sympathizers supported Eisenhower, believing the former general “offered the best opportunity for bringing about a rethinking of the old attitudes that had contributed to keeping the party small in southern states and out of the White House” (p.53). Wisdom led the Eisenhower forces in Louisiana, while his future Fifth Circuit colleague Elbert Tuttle headed the Eisenhower coalition in Georgia.

After Eisenhower was elected president, with Wisdom playing an integral role in his nomination by the Republican Party, the future judge found himself involved with nearly every federal appointment or project involving the state of Louisiana. (p.81). In 1957, he was nominated by Eisenhower and confirmed to a seat on the U.S. Court of Appeals for the Fifth Circuit.

In the years after BROWN, the Fifth Circuit heard more civil rights cases than any other appellate court in the nation (p.182). And, during that time, John Minor Wisdom became known as one of the “Fifth Circuit Four.” Along with Chief Judge Elbert Tuttle, John Robert Brown, and Richard Rives, Wisdom would issue a series of decisions that advanced the cause of African American civil rights. That said, Wisdom did not invariably vote in a progressive manner on racial issues. For example, though he would come to regret the decision, in GOMILLION v. LIGHTFOOT Wisdom’s vote led the Fifth Circuit to reject a constitutional challenge lodged by African Americans in Tuskegee, Alabama, to a state redistricting statute that significantly diluted the voting strength of the city’s black population.

In Chapter 8, Freidman chronicles one of the book’s most interesting episodes – Judge Wisdom’s role in the “Showdown in Mississippi.” That controversy involved both James Meredith’s attempt to enroll at the University of Mississippi and Governor Ross Barnett’s efforts to circumvent the Fifth Circuit’s decision in that case. Friedman skillfully discusses this high drama, referencing both public reactions to the decision (pp.154-155) and Fifth Circuit Judge Ben Cameron’s unprecedented efforts to meddle in the case, despite not having served on the three judge panel that decided it (pp.155-158).

While MEREDITH v. FAIR was one of Wisdom’s most high profile cases, UNITED STATES v. JEFFERSON COUNTY BOARD OF EDUCATION is the focal point of Friedman’s discussion of Judge Wisdom’s lasting jurisprudential contributions. Indeed, Wisdom himself viewed it as his finest judicial opinion (p.200). In it, he gave detailed instructions to school boards and endorsed tough guidelines for the assignment of students and teachers to particular schools in order to achieve [*368] integration. According to Wisdom, “the only adequate redress for a previously overt system-wide policy of segregation directed against Negroes as a collective entity is a system-wide policy of integration” (p.220). Wisdom also devoted a portion of his opinion to discrediting the so-called “BRIGGS Doctrine,” enunciated by Judge John J. Parker in 1955. According to that dictum, while governments could not enforce segregation, integration was not required by the Constitution (Patterson 2001, 145). In dismantling the edifice of BRIGGS, Wisdom “brought judicial involvement in the schools to a plane undreamed of in the BROWN era and gave plaintiffs real reason to hope that they could force the dismantling of segregated school systems” (p.227).

In the book’s final chapter, Friedman recounts Judge Wisdom’s involvement in the oft-discussed campaign that eventually led to the division of the Fifth Circuit. Though chronicled in detail elsewhere (Barrow and Walker 1988), Friedman’s overview of the controversy underscores Wisdom’s commitment to both the Circuit’s preservation and its civil rights jurisprudence. Wisdom played an active role in opposing the Circuit’s division and, although he was ultimately unsuccessful, his actions did succeed in postponing the Circuit split for nearly two decades.

Joel William Friedman’s CHAMPION OF CIVIL RIGHTS: JUDGE JOHN MINOR WISDOM provides an intimate picture of “one of the most progressive and influential federal judges of the twentieth century” (p.2). In particular, Friedman’s work effectively conveys three of Judge Wisdom’s most central characteristics – his eloquence, his emphasis on practicality, and his general belief in the limited role of the judge.

Wisdom was, above all, pragmatic (pp.115, 216). When U.S. Supreme Court Justice Stephen Breyer once asked Judge Wisdom “whether it was better for a judge to be theoretical or practical,” Wisdom chose the latter (p.285) – and he displayed that trademark practicality in opinion after opinion. Perhaps the best example of his pragmatism is contained in UNITED STATES v. JEFFERSON COUNTY BOARD OF EDUCATION where he succinctly noted, “The only school desegregation plan that meets constitutional standards is one that works” (p.211). Such statements, Justice William Brennan would later note, displayed Wisdom’s ability to “forthrightly ground [his opinions] in practical realities, rather than platitudinous theory” (p.212).

Friedman’s work also conveys Wisdom’s recognition of the limits on the judiciary. Wisdom never viewed his judicial role as “that of reformer” (p.191), and Friedman even notes that Wisdom believed “judicial micromanagement of school desegregation” to be “perilously close to the perimeter of the judicial function” (p.206). Finally, in an observation that echoes contemporary notions of “judicial minimalism” (Sunstein 1999), Friedman concludes that, “where a case could be decided on its specific facts, [Wisdom] felt no urgency to address far-reaching constitutional questions” (p.298).

Friedman also observes that the eloquence of Judge Wisdom’s opinions reflected, in part, his early interest in literature and grammar. According to “Wisdom’s Idiosyncrasies,” a style sheet [*369] which the judge would distribute to his incoming law clerks, they were to “state the key question in the first sentence” and “put the sex appeal in the first sentence and last sentence of each opinion” (p.122). Not surprisingly, then, Wisdom’s many opinions contained more than a few memorable phrases. In reversing District Judge Sidney Mize’s ruling against James Meredith in his case against the University of Mississippi, Wisdom opined that “This case was tried below and argued here in the eerie atmosphere of nevernever land” (p.151). In another case, expressing exasperation with the languid pace of desegregation efforts in the wake of BROWN, Wisdom pointedly proclaimed that “The clock has ticked the last tick for tokenism and delay in the name of ‘deliberate speed’” (p.214). Most famously, perhaps, he reconciled the equality required by the Fourteenth Amendment with what he viewed as the necessity of remedying the effects of past discrimination in JEFFERSON COUNTY saying, simply, “The Constitution is both color blind and color conscious” (p.214). In doing so, Friedman argues that Judge Wisdom played a critical role in laying the analytical foundation for affirmative action.

While Friedman’s work should be commended, there are two minor ways in which the book could have been strengthened. First, in my estimation, Friedman risks overstating President Eisenhower’s commitment to civil rights early in the book. He asserts that, in appointing Wisdom to the Fifth Circuit, the President “was looking for someone who would bring a sympathetic ear and unbiased judgment to [the Fifth Circuit’s] burgeoning caseload of civil rights disputes” (p.xi). In reality, however, the President’s views on civil rights were generally ambivalent, although his cabinet – principally his Attorney General, Herbert Brownell – was somewhat more aggressive (e.g., Pacelle 2003, 74- 81). At a minimum, additional elaboration on this point would have been useful. Second, while Friedman frames Wisdom’s affiliation with the Republican Party as a product of “his absolutely unshakeable conviction that a healthy democratic system demanded the existence of two vital, rival political parties” (p.43), he might have given greater emphasis to the role that Wisdom’s disenchantment with Democrat Huey P. Long likely played in shaping that decision (e.g., Gill 1997, 203). Friedman does address Wisdom’s personal and ideological disgust with Long (pp.45-46). However, in developing the more general theme that it was Wisdom’s innate sense of “fair play” that led him to the Republican Party, Friedman’s discussion implicitly downplays the Kingfish’s central role in catalyzing Wisdom’s political epiphany.

Aside from these admittedly trivial quibbles, I very much enjoyed reading Friedman’s work. It promises to be a useful addition to the field of judicial biography as well as scholarship on both the evolution of African American civil rights jurisprudence and Southern politics.

REFERENCES:
Barrow, Deborah J. and Thomas G. Walker. 1988. A COURT DIVIDED: THE FIFTH CIRCUIT COURT OF APPEALS AND THE POLITICS OF JUDICIAL REFORM. New Haven: Yale University Press. [*370]

Bass, Jack. 1990. UNLIKELY HEROES. Tuscaloosa: University of Alabama Press.

Gill, James. 1997. LORDS OF MISRULE: MARDI GRAS AND THE POLITICS OF RACE IN NEW ORLEANS. Oxford: University Press of Mississippi.

Pacelle, Richard L., Jr. 2003. BETWEEN LAW AND POLITICS: THE SOLICITOR GENERAL AND THE STRUCTURING OF RACE, GENDER, AND REPRODUCTIVE RIGHTS LITIGATION. College Station: Texas A&M University Press.

Patterson, James T. 2001. BROWN v. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY. New York: Oxford University Press.

Peltason, J.W. 1971. FIFTY-EIGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL DESEGREGATION. Urbana: University of Illinois Press.

Sunstein, Cass R. 1999. ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT. Cambridge: Harvard University Press.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

BRIGGS v. ELLIOTT, 132 F. Supp. 776 (EDSC 1955).

GOMILLION v. LIGHTFOOT, 270 F.2d 594 (5th Circuit, 1959).

MEREDITH v. FAIR, 305 F.2d 343 (5th Circuit, 1962).

UNITED STATES v. JEFFERSON COUNTY BOARD OF EDUCATION, 372 F.2d 836 (5th Circuit, 1966).

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© Copyright 2009 by the author, Brett W. Curry.

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EXPLORING SOCIAL RIGHTS: BETWEEN THEORY AND PRACTICE

by Daphne Barak-Erez and Aeyal M. Gross (ed). Oxford and Portland, OR: Hart Publishing, 2007. 416pp. Hardback. £48.00/$95.00. ISBN: 9781841136134.

Reviewed by Gad Barzilai, Professor of International Studies, Law and Political Science, University of Washington. Email: gbarzil [at] u.washington.edu.

pp.363-365

Social rights surely merit exploration and in-depth examination. Both the concept of ‘social rights,’ primarily debated in the professional literature after the 1960s, alongside their practice in a variance of socioeconomic and political settings, require scholarly attention. There are various epistemological and theoretical, empirical and methodological perspectives one could apply to look into this central topic. One key outlook is to inquire whether social needs and social predicaments may be addressed through legalization regarding basic needs, such as shelter [housing], food, health and work. The other perspective is to examine different legalistic issues of legalization of social needs. In an ideal intellectual space these ways of comprehension should be complementary since protection and maintenance of basic social expectations may be only very restrictively articulated through legislation and court rulings (Barzilai 2003; 2005).

The excellent edited volume by Daphne Barak-Erez and Aeyal Gross, EXPLORING SOCIAL RIGHTS: BETWEEN THEORY AND PRACTICE, is an important contribution to debates about social rights, especially but not solely in the second perspective mentioned above (pp.1-17). The bulk of the book is devoted to drilling into major concerns regarding the legalization of social needs. The chapters in the book reflect a diverse range of theoretical perspectives. Frank Michelman struggles in his essay to sort out a legalistic strategy to entrench social rights without imposing on the state and the judiciary a specific legalistic concept with an economic and political burden that the judiciary and the government may not be able to maintain (pp.21-40). The intellectual result is a compound essay that offers a neo-liberal, neo-Rawlsian, minimal definition of a social right that should be entrenched in law. Upendra Baxi, on the other hand, offers to see social rights in the neo-Marxian perspective and hence to encourage developing them as part of decolonization of the state (pp.41-55). Lucie White, in a superbly important essay (pp.57-73), analyzes the problems in the language of social rights, if that rhetoric is not embedded in an essential ontology that promotes social accessibility and practical equality: “Human rights consciousness would train them [deprived people] to think of themselves as good, liberal, rights consuming subjects as they watched their children die” (p.72).

However one may conceive the actual and potential virtues of social rights’ discourse, this volume testifies to an empirical growth of international legislation, in both domestic and international law, as well as more court [*364] rulings referring to social rights. Thus, Yuval Shany’s chapter points to such a legalistic growth. Yet, Shany critically and forcefully argues that there is a severe discrepancy between the more prevailing legalistic language of social rights in multilateral covenants and the absence of ex-post facto support of nation-states to comply with and practice international law of social rights in their domestic municipalities (pp.77-106). Above the issue of compliance, crucial as it may be, Kerry Rittich’s chapter prominently addresses the need to have a concept of distributive justice that is necessary for actualization and mobilization of social rights. Social rights are important as a tool to reform and eradicate socioeconomic inequalities (pp.107-134). Similarly, Eva Brems, in a very systematic chapter, demonstrates that the European Court of Human Rights has only implicitly developed a certain discourse of social rights through rulings over political and civil rights. Brems illustrates why this judicial tactic of developing social rights discourse only implicitly is unsatisfactory (pp.135-167).

The volume devotes a significant portion to concrete analysis of nation-states as well. Dennis Davis’ analysis argues that South Africa is a good example showing how the lack of a clear concept of distributive justice allows the courts not to develop a package of social rights (pp.193-212). In some other countries, however, courts have generated a more empowered discourse of social rights. Jayna Kothari’s chapter about social rights in India demonstrates that despite the absence of a definition of social rights in India’s constitution, the Indian judiciary has formed those rights in response to large number of public interest litigation cases. Thus, the Indian judiciary has sanctified rights to food, clothing, and shelter (pp.171-192). Social rights in Canada, argues Patrick Macklem, were generated through some rulings that adapted international law by Canadian courts. Hence, international law was useful where legislation was missing (pp.213-242). Yet, it is very doubtful whether litigation may be a proper and effective replacement to a public policy that promises to generate and activate social rights. The editors, Barak-Erez and Gross, demonstrate through the case of Israel that, with no such public policy, court rulings may have only a very limited effect (pp.243-261). The editors analyze how the Israeli Supreme Court developed a vague set of social rights based on right to equality and human dignity. The level of success in generating social rights in Israel is very limited and “Social citizenship is still second class to civil and political citizenship” (p.261).

Dealing with specific types of social rights is also crucial. Accordingly, the edited volume refers to explication of a right to education (Rabin, pp.265-288), health (Gross, pp.289-339), and work (Mundlak, pp.341-366). Especially Gross’ and Mundlak’s chapters are important in their emphasis on social consciousness of distributive justice, as a necessary condition to make social rights a practical reality, and a space to challenge further socioeconomic inequalities. The last part in the book refers to two sociopolitical groups that may deserve special attention – physically challenged people and women. Neta Ziv, in a very insightful chapter (pp.369-395), carefully analyzes the ambiguity about the empowerment that disabled people may gain from [*365] social rights. While aware of the ability to use social rights for litigation, the chapter critically ponders whether individual rights may change the power and knowledge that frame physically challenged human beings as incapacitated. Because women are significantly discriminated against in the labor market, Barak-Erez underscores the need to use social rights to empower and protect women. Social rights should also become a prioritized feminist matter (pp.397-408). To summarize, this very valuable and well edited book is a must read to adherents of social rights.

REFERENCES:
Barzilai, Gad. 2003. COMMUNITIES AND LAW: POLITICS AND CULTURES OF LEGAL IDENTITIES. Ann Arbor: University of Michigan Press.

Barzilai, Gad. 2005. “The Evasive Facets of Law: Litigation as Collective Action.” 10 ADALAH’S REVIEW 1-5 (February)

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© Copyright 2009 by the author, Gad Barzilai.

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THEORETICAL FOUNDATIONS OF LAW AND ECONOMICS

by Mark D. White (ed.). New York: Cambridge University Press, 2009. 302pp. Hardback. $85.00/£45.00. ISBN: 9780521889551. eBook format. $68.00. ISBN: 9780511460784.

Reviewed by Michael C. Macchiarola, Adjunct Professor, Seton Hall University School of Law and St. Francis College. Email: macchiarola [at] gmail.com.

pp.360-362

As the modern law and economics movement enters its fiftieth year since Ronald Coase first offered his groundbreaking work, “The Problem of Social Cost,” it remains as relevant and vibrant as ever. Concerned that proponents of this approach to law “have been almost entirely unreflective on the methodological foundations of their field” (p.xv), and unsatisfied by the scattered nature of what critical appraisals there are of the law and economics ethos, Mark D. White offers a collection of fourteen essays from contributing philosophers, law professors and economists in the THEORETICAL FOUNDATIONS OF LAW AND ECONOMICS.

Professor White does a real service by gathering these works into a single volume, especially since – as Peter Huang tells us – “most academic and professional lawyers do not know any microeconomics whatsoever” (p.170). While the essays do well, as a group, to highlight some of the achievements, developments, inadequacies and frustrations of the law and economics scholarship to date, one cannot help but be humbled by how much remains unanswered. Against the backdrop of our current Great Recession, then, the arguments offered in these works have real context – with the next round of academics, policymakers and judges playing with the highest of stakes. One can only hope that the assertion made by Richard Epstein’s foreword holds true, that “in the grand scheme of things the negative consequences of wrong decisions are outweighed by the positive consequences of the correct ones” (p.x).

The volume is divided into four sections. The first, concerning “The Role and Use of Law and Economics in Legal Studies” begins with Lewis Kornhauser’s “Modeling Courts,” which examines the manner in which judges make decisions. Kornhauser views “case space” (treating cases as fundamental, where individual facts and circumstances dominate) as the bedrock of good decision-making. “Policy space,” by contrast, (where judges care exclusively about “policies”) is more mischievous for Kornhauser. Next comes, “Is There A Method to the Madness?” – Michael Dorff and Kimberly Kessler Ferzan’s enjoyable attempt at examining three of the more controversial claims of earlier law and economics scholarship. The authors probe the limits (if any) of welfare maximization in the eclectic worlds of baby selling, racial discrimination and insider trading. Along the way, the essay grapples with the real dilemma at the heart of law and economics: how best to calculate something not easily reduced to a number? The piece does well to illuminate the problems that rise from an uncompromising application of the law and economics framework, [*361] arguing that “legal economists who fail to take fairness preference into account are ignoring a variable essential to their calculations” (p.40). The first section of the book closes with the highly skeptical “Legal Fictionalism and the Economics of Normativity.” Horatio Spector examines government coercion, arguing that “the law’s justified normativity is a fiction created by the state’s ideological apparatus as a mechanism for the reduction of policing and enforcement costs” (p.57).

The second section, entitled “Efficiency,” opens with one of the book’s best essays – Mark Tunick’s “Efficiency, Practices and the Moral Point of View: Limits of Economic Interpretations of Law.” Tunick examines the roots of what he calls a “totalizing viewpoint” that remains unsympathetic to any considerations apart from efficiency, utility or welfare. Characterizing such a mindset as “deeply problematic” (p.80), Tunick walks the reader through a series of examples to highlight that there are non-utilitarian reasons for a policy that are not simply mysterious, unfathomable or unintelligible, as the totalizer might have us believe. While the author concedes that “[t]he reasons may not convince the economist,” he notes that his purpose is “to show not that they are decisive reasons, only that they are worthy of consideration” (p.93). Building on the notion that law must be born of more than just a spreadsheet, Sarah Holtman offers “Justice, Mercy and Efficiency.” This essay makes for quite an interesting read against the backdrop of President Obama’s stated desire to appoint “empathetic” judges to the bench. In her essay, Holtman describes an individual judge’s application of principles of “mercy” in a baby shaking case in Massachusetts, and argues for conceptions that “are richer and more true” (p.135) than the simple efficiency that might result from the reflexive, unemotional and mechanical application out of the law and economics toolbox.

The highlight of the “Rationality and The Law” section of the book is Peter Huang’s appealing essay “Emotional Reactions to Law and Economics, Market Metaphors, and Rationality Rhetoric.” Huang distinguishes between those schooled in microeconomics and those practicing without training in mathematics. For Huang, the mathematics provides a level of abstraction, rigor and precision that does not exist in the “language of anecdotes, metaphors, rhetoric and stories” (p.172) applied by too many in the field. Huang believes that, armed with this more proper foundation, many would come to see that the arguments in this field of study are far more nuanced than we have appreciated thus far. As one of those practicing without a license (so to speak), I was happy to see that Huang stops short of answering whether we are better off practicing as amateurs – or whether the entire playing field should be ceded to those schooled in the hard science.

Part Four concerns “Values and Ethics in Civil and Criminal Law.” The section contains compelling pieces from Brian Bix and Mark Geistfeld concerning the operation of law and economics to the worlds of contract and torts, respectively. It is only fitting, however, that the finest essay in the book’s final section is the editor’s own effort, “Retributivism in a World of Scarcity.” White shows the application of the law [*362] and economics methodology to a real world example, while exploring the two primary justifications for criminal punishment – deterrence and retributivism. After acknowledging the allure of retributivism, White uses basic law and economics principles to conclude that retributivism, while appealing, requires “unrealistic degrees of government intelligence and tremendous allocation of scarce societal resources” (p.270).

At times, the volume can seem uneven – as the essays range from the interesting and timely to the somewhat more vague and convoluted. All in all, however, the large majority of the contributions tend toward the former. Each of the contributors brings a unique perspective to the law and economics genre and each falls at a different point on the spectrum – ranging from pure skeptic to true believer. None can eschew, however, (and none tries!) the notion that the law and economics movement has had a profound influence on legal education and legal doctrine in the last half-century. Moreover, there is no denying that the application of law and economics principles has had welfare maximizing effects in many different arenas. What remains unsettled instead, is a question of degree and limitation. Are there some things that simply transcend efficiency and defy the mathematician Philolaus’ assertion that “[e]verything that can be known has a number?” After all, as the story goes, even the Almighty inefficiently rested on the seventh day!

White has advanced the discourse in this lively field. His collection offers a fine law and economics primer, framing the arguments and leaving the reader better equipped to understand the theoretical underpinnings of the difficult accommodations that continue to be made in a world of scarcity.

REFERENCE:
Coase, Ronald H. 1960. “The Problem of Social Cost.” 3 JOURNAL OF LAW AND ECONOMICS 1-44.

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© Copyright 2009 by the author, Michael C. Macchiarola.

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ELLERY’S PROTEST: HOW ONE YOUNG MAN DEFIED TRADITION AND SPARKED THE BATTLE OVER SCHOOL PRAYER

by Stephen D. Solomon. Ann Arbor: University of Michigan Press, 2009 (paper). 432pp. Cloth. $29.95. ISBN: 9780472108374. Paper. $24.95. ISBN: 9780472033454.

Reviewed by Brian K. Pinaire, Department of Political Science, Lehigh University. Email: bkp2 [at] lehigh.edu.

pp.355-359

At a certain point the mind goes numb to the full and complete names of parties to even the most famous Supreme Court cases. One attempts to remember the holdings, the significance, the logical (in)consistencies, but I must confess that, even as a teacher of High Court opinions, sometimes I fail to reflect sufficiently on the “real world” origins, individuals, and implications of even canonical cases. What’s more, as the initiated are well aware, we generally shorten case names to the name of one party – though not necessarily the “winner.” I have succumbed to this tendency over time, but admittedly have never really understood the “rules,” if you will. (Why, in other words, is WEST VIRGINIA v. BARNETTE simply BARNETTE? How did BUCKLEY v. VALEO end up “BUCKLEY,” instead of “VALEO”? And what led “FERGUSON” to lose out to “PLESSY” in the historical record?) Clearly, names get the nod over localities, but what of CITY OF PHILADELPHIA v. NEW JERSEY?

The point of such ruminations is this: I agreed to review ELLERY’S PROTEST knowing only that it was a book about an important Supreme Court case dealing with school prayer. That said, even as a teacher of civil liberties, seeing the name “Ellery” did not clue me in to the identity of the party or even the particular case it would consider. It was not until I read the second paragraph of the Acknowledgements – where the author, Stephen D. Solomon (Department of Journalism, New York University) thanks “Ellery Schempp” for his assistance – that things began to come into focus. Aha! Of course, this book was about prayer in the schools and the landmark case of ABINGTON v. SCHEMPP and – wait, I live there! I mean here.

Indeed, I am sitting here, right now, in Abington Township, Pennsylvania, writing a review of a book about a case that implicated the Abington public schools. Cue the eerie music. (I must assume the esteemed editor of the REVIEW researches such connections before soliciting essays.) But it is not just that I pay my taxes to this municipality; I actually live within two miles of Ellery Schempp’s childhood home on Susquehanna Road. I have gone jogging by that residence hundreds of times. I know exactly the route he walked to school. Indeed, my kids will soon be going to school within that district. For me, the case had become simply “SCHEMPP” – like the related “EVERSON,” “McCOLLUM,” and “ENGEL” of establishment law fame – but in its full glory, of course, it is ABINGTON SCHOOL DISTRICT v. SCHEMPP. Its central character is [*356] Ellery Frank Schempp. And this book is the story of his “protest.”

Solomon’s account begins by explaining that, on this November morning in 1956, Schempp was “not in the mood to conform” (p.3) and thus, when the King James Bible verses began to be read over the public address system, he opened up the Koran he had borrowed from a friend’s father and began reading silently. But as we see from the outset, this case was very much a family affair for the Schempps. In discussing the impetus for this action within the generally conformist 1950s, Solomon portrays a home environment where religion was not, in fact, disfavored, feared, or eschewed (the family regularly attended Unitarian Universalist meetings). Raised as a Lutheran, Ellery’s father, Ed, knew the Bible well and would later argue at trial that this familiarity with the text, and particularly its more violent episodes, was what led him to resist even more the compulsory reading of Bible verses in the schools. Importantly then, the Schempps were not the Murrays – that is, the family of Madilyln Murray (O’Hair), discussed in detail in this book – who challenged similar practices in the Baltimore public schools, whose case became a “companion” case to SCHEMPP, and who were hounded and harassed virulently for their professed atheism.

In-depth interviews with Ellery Schempp, among many others, afforded Solomon a window into the upbringing of the Schempp children and stressed, as much as their religious contemplations, the encouragement from their parents that led them to stay abreast of current events (Ellery read THE NEW REPUBLIC magazine regularly), and the expectation that they “care about First Amendment freedoms” (p.17) – even as 1950s teenagers who might otherwise have been consumed of rock ‘n’ roll and bubble gum. Such an understanding of the plaintiffs gives the reader an important framework for assessing what is to come as the complaint is initially filed, as various backers line up (or pull away), as interested and ideologically sympathetic parties (e.g. Leo Pfeffer) express their reticence about challenging the Pennsylvania law, and as a confluence of cases reaches the U.S. Supreme Court at the dawn of “history’s Warren Court” (p.207), as the legal scholar Lucas Powe has referred to it in his examination of the period.

Even with relatively little case law at the federal level, for many it was clear that the school district was violating the Establishment Clause of the federal Constitution. The Employees’ Handbook and Administrative Guide instructed school district employees to
“Comply with the state regulation in reading at least ten verses of Scripture each morning without comment,” and then went beyond the statute in additionally calling upon school officials to follow this with the Lord’s Prayer (p.22). As district officials stressed during the trial in U.S. district court, the reading of the verses and prayer were to provide some sort of moral foundation for students in this environment, even though “comment” – i.e., elaboration or explication – was not allowed. For a student such as Ellery, again one who had been taught to question and probe and who was reading Thoreau’s “Civil Disobedience” at that time in his English class (p.21), the need for resistance – a [*357] “protest” – could not have been more obvious.

But others were not so sure. While his friends agreed with him in many ways, there were obvious fears of repercussions, reprisals, withdrawn letters or offers of recommendation for college applications, and so on. But Ellery persisted and so, following his act of resistance, and the initial confusion but eventual formal administrative response that followed, he wrote to the local chapter of the American Civil Liberties Union for support. Mired as it was in the consuming battle against McCarthyism throughout the 1950s, the ACLU was initially unsure whether it could or should take the case. There were obvious resource questions to consider as well as the issue of the case’s imminent mootness, at least on one front (as Ellery was presently a junior in high school). But what we learn from Solomon, as well, is the back-story and internal discussions of reluctance that one might not have expected.

For one thing, the president of the Philadelphia chapter of the ACLU, Clark Byse, was personally a supporter of the law – believing it to be a “good thing that the Bible is read to the children every day” (p.40) – and, given the need to confront McCarthyism nationally, was therefore cool to the idea of the Schempp case. He relented, however, when he saw that half of the board was in support of the challenge and then gave the action his blessing. But on another front, the case faced strong resistance from Leo Pfeffer and Shad Polier, of the American Jewish Congress, individuals who had made their mark as scholars of the First Amendment and as shrewd legal strategists. As such, they felt that the facts of the Abington situation did not present the right test case for the matter because it could be difficult to develop a deep trial record and because at this time no one was exactly sure that courts would tend to find such devotionals unconstitutional.

Indeed, Chapter 12, “The Race to the Supreme Court,” discusses in-depth Pfeffer’s preferred case emanating from Miami, Florida – a “nearly perfect case” according to Solomon (p.190) – involving a “fire-and-brimstone sermon by a fundamentalist clergyman” who informed the students (many of whom were Jewish) that they “had to accept Christ” and if they did not “they would suffer damnation forever in hell” (p.189). If the Schempp case were to proceed, however, Pfeffer wanted it to be filed in Pennsylvania rather than federal court, “thus avoiding the near certainty of an eventual decision by the U.S. Supreme Court and, he thought, the likelihood of a disastrous loss” (p.58). This notwithstanding, the ACLU filed in federal court, won in front of a three-judge panel (twice), stayed with the case as it was appealed, won an historic victory at the U.S. Supreme Court, and then the matter was resolved. Right?

Among the many virtues of this book is that Solomon remains as objective as possible in tracing the steps of the litigants, in drawing the reader into the minds of the actors at decision points, and in taking seriously that famous notion from THE FEDERALIST, Number 78, stressing that the Supreme Court has neither the power of the purse nor the sword, but only the power of judgment. The book succeeds in its description of this particular case at this particular time in American history – but [*358] it excels in its rich and immensely readable history of church-state relations (Chapters 5-8), as well as its detailed discussion of the inter- and intra-court dynamics that Solomon gleaned from careful attention to various justices’ papers, materials from the national archives, interviews with Supreme Court clerks at the time, and other original bits of data. The analysis of the back-and-forth in Justice Tom Clark’s drafts of the opinion for the Court (finding unconstitutional the District’s policies) is particularly intriguing and will inform even the most seasoned students of establishment law (see: Chapter 18, “In Chambers”).

All of this comes together in the end, as the nod to THE FEDERALIST suggests above, to an intriguing consideration in the final two chapters, the Epilogue, and the Afterword (new to this paperback edition), wherein Solomon takes stock of where we stand on this matter as a nation, already well into the 21st century. Readers seeking a pushing of the doctrinal analysis envelope or “large N”-type investigation may find the book lacking; but those interested in a wire-to-wire study of a case, representing an issue that is with us as much today as when Ellery first protested, will enjoy and learn much from this excellent study. Ideally we would have a book like this for every such landmark case, because there is “knowing” a case, and then there is knowing the full scope of a case. ELLERY’S PROTEST gives us the complete story, in fluid prose and with original archival and interview data.

Things have changed in the Abington School District, I am happy to say as a resident and parent. Solomon notes that Abington High School inducted Ellery Schempp into its hall of fame in 2002 for his achievements as a scientist (p.348). But of course, in most communities in this country – not many, but most – majorities still support teacher-led prayer in the schools, districts (e.g. in Dover, Pennsylvania – about 80 miles down the road from Abington) still concoct plans to allow the teaching of “Intelligent Design,” and graduation ceremonies (e.g. in Georgetown, Delaware – about 130 miles in the other direction from Abington) still include pastors who state that “We pray that You direct them [the students] into the truth, and eventually the truth that comes by knowing Jesus” (p.349), leading a Jewish family to protest and eventually be driven out of the community. And so on. One can read a casebook and think that the Supreme Court has spoken – the matter is resolved. And one can read a book like this to be reminded that it is not. Indeed, in a certain sense it has just begun. There will be more “Ellerys” and more “protests” to come.

I should note in conclusion that this past Memorial Day I walked by the former Schempp home. This residence, referred to as an “atheist” and “communist” house by the peers of the Schempp children as the litigation was underway fifty years ago (p.205), had eight American flags flying in the late spring breeze. That was the most on the block. I was proud. It seemed right. I think Ellery would agree.

REFERENCES:
Powe, Lucas A., Jr. 2000. THE WARREN COURT AND AMERICAN POLITICS. Cambridge: The Belknap Press of Harvard University Press. [*359]

Rossiter, Clinton, ed. 1961. THE FEDERALIST PAPERS. New York: Signet Classics.

CASE REFERENCES:
ABINGTON SCHOOL DISTRICT v. SCHEMPP, 374 U.S. 203 (1963).

BUCKLEY v. VALEO, 424 U.S. 1 (1976).

CITY OF PHILADELPHIA v. NEW JERSEY, 437 U.S. 617 (1978).

ENGEL v. VITALE, 370 U.S. 421 (1962).

EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).

McCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1948).

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

WEST VIRGINIA v. BARNETTE, 319 U.S. 624 (1943).

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© Copyright 2009 by the author, Brian K. Pinaire.

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A WORKING LAWYER’S LIFE: THE LETTER BOOK OF JOHN HENRY SENTER, 1879-1884

by Karen S. Beck. Clark, NJ: The Lawbook Exchange, Ltd., 2008. 267pp. Cloth. $64.95. ISBN: 9781584779223. Paper. $39.95. ISBN: 9781584779292.

Reviewed by Jill Norgren, Department of Government, John Jay College and the Graduate Center, The City University of New York (Emerita). Email: jnorgren[at] gc.cuny.edu.

pp.351-354

Our knowledge of the everyday work, achievements, and problems of nineteenth century lawyers is constantly expanding. Much, however, remains to be learned. Karen Beck, Curator of Rare Books, Boston College Law Library, helps in this enterprise with this valuable contribution to the literature on legal practitioners. The volume combines commentary by Beck with her transcriptions of several hundred letters written by Vermont lawyer John Senter during the first five years of his law career.

John Henry Senter (1848-1916) was a self-made man. In the mid-1870s, while teaching school in his home state of Vermont, he read law in the Montpelier offices of attorney Clarence Pitkin. In 1879, at the age of thirty, Senter was admitted to the bar. By his own account, he was happy to leave the classroom and to establish a solo law practice in Warren, Vermont. It is our good fortune that, in April of 1879, Senter purchased a Japanese Letter Copying Book. For the next five years, using letter press technology, he copied 326 of his letters, preserving them in this copy book. The (one-way) correspondence constitutes a record –“first-hand evidence [of] what one nineteenth century lawyer did on a daily basis”(p.xii). Beck makes no claim that Senter was a typical lawyer of the time, “if indeed a ‘typical’ lawyer ever existed” (p.xii). Rather, she argues that the letters contribute to our understanding of Senter’s early career as well as the lives of many other lawyers working in small New England towns during this period, professional lives sometimes overlooked in our tendency to write about judges. A WORKING LAWYER’S LIFE takes its place alongside other studies of nineteenth century legal practitioners who did not join a court, including the work of Barbara Babcock (2006), Gordon Bakken (1991), Virginia Drachman (1993), Michael Grossberg (1996), Morton Horwitz (1977), Jill Norgren (2007), and, of course, American novelist Winston Churchill (1908).

John Senter’s letter book affirms that the first years of a nineteenth century law practice required an optimistic outlook combined with an instinct for business opportunity. Senter made the transition from the field of education slowly, resigning his teaching position while maintaining an administrative position that gave him significant say over the textbooks adopted for use in his county. In his first year of law practice, 86 of 136 letters pertained to education issues, while only 35 pieces of correspondence dealt with legal matters. Reminding us that lobbying over book selection is [*352] nothing new, in one letter Senter defends his choice of the APPLETON READER against a temperance advocate who has objected to a paragraph describing the mores associated with neighbors sharing a sip of wine (pp.52-3).

By 1882, three years into the practice of law, Senter is finished with school policy matters, fully engaged as an attorney, and increasingly involved in Vermont politics. In his letters he shows himself to have a “fair and forthright nature,” as refusing to recoil from a fight, and as willing “to go to bat for those he deemed of deserving character” (pp.63-4). Later, Senter will be portrayed as a “striking and original personality,” a well-read man with a quick mind (p.85).

How, then, did this smart, community-minded lawyer spend his days? By the evidence of his correspondence in the years 1879 to 1884, he chased down people who did not pay their bills. Seventy-one of 204 “law” letters reveal that Senter had been hired to carry out some form of collection suit or was, himself, trying to collect fees owed for legal services. The letters show his understanding of the need for strategy, as in this caution to a collaborating attorney: “Do no let Williams know that you have the claim untill (sic) you can secure it. He does not mean to pay and would be on his guard if he knew that you had the claim” (p.59). The letters also reflect his maturation as an attorney. In early letters he politely cautions deadbeats and miscreants: “An early settlement will save you costs” (p.109). His words turn sharp, however, with the passage of time: “I said you would pay it and stop his howling” (p.81); “If I do not hear from you soon . . . you will hear from me by the way of a writ” (p.197); “I am desirous of cleaning you out” (p.212); or, “Now my dear sir do not waste more valuable time or stationery writing [more] letters about this, but if you have a good case go ahead and we will endeavor to meet [you.] But look before you leap . . .” (p.253).

Collections were important but procedural matters also figured strongly in Senter’s business. This included filing papers and setting dates for depositions and trials. The correspondence documents his fees: three dollars a day in 1882 to represent a client at trial, increasing to five dollars a day two years later. Ten letters show Senter engaged as an agent, securing and canceling insurance policies, or writing strongly worded notes to insurance agencies on behalf of a policy-holding client. Another fifteen involve issues of real or personal property, while four present the problem of a mentally incompetent individual. Curiously, little of Senter’s work involved wills, trusts and estates – at least, as represented by his correspondence.

Senter’s maturation also reveals itself in letters which, initially, seek legal advice from Clarence Pitkin, with whom he read law: “Friend Pitkin, A. sells B. a house, in the house is a sink the frame of which is fastened to the house. . . . Does the sink pass as part of the realty, and a fixture, or is it a chattel?” (p.65). Later, he poses fewer questions and offers more of his own opinions whose content and style, Beck argues, show his increasing confidence and expertise. He also refers more frequently to his personal law library, eventually one of the best in the area: “Since my return from County Court I have been mousing around my library hunting for law to fit [*353] my views and wishes in divers and sundry cases in which I am anxious to thrash the other party. . . I have found the case of . . . and if that case is not a clinker in the case of which you have heard . . . then I am at sea . . .” (p.67).

Although the area in which Senter lived was strongly Republican, he was a Democrat. After five years in Warren, Senter pulled up stakes and moved his family to Montpelier where he practiced as a partner. Life in Montpelier provided him with the opportunity to act on his civic and political ambitions. He held many municipal offices in Montpelier including justice of the peace and mayor. In 1906 he represented the city in the state legislature. For several decades he held leadership positions in the Vermont Democratic State Committee and, as a delegate, frequently attended the Democratic Party’s national conventions. When Democrats took the White House, Senter was favored with appointment as National Bank Examiner (1885 to 1889) and U.S. Attorney for Vermont (1893-1897).

Senter’s life nicely demonstrates the arc of opportunity available to striving white males in the nineteenth century. In contrast, most men of color who were attorneys, as well as the early women lawyers who won admission to various local bars beginning in 1868-1870 (and the U.S. Supreme Court bar in 1879), could not attain Senter’s level of success. Attorneys Clara Foltz, Marilla Ricker, and Belva Lockwood, among others, struggled to maintain sustaining legal practices. Ricker had independent wealth but Foltz and Lockwood worked hard through their long lives to bring in clients and to maintain a middle class standard of living. Equally critical, in the measurement of a democratic society, women attorneys, and most non-Caucasian male attorneys, were not considered for the kind of elective and appointive positions won by men like Senter. Their training and experience were trumped by race and gender discrimination. A WORKING LAWYER’S LIFE, therefore, augments our knowledge of nineteenth century legal professionalism by showing the road Senter was able to travel, a career path not fully open, until much later, to members of these other groups. The book is a strong addition to the literature and, implicitly, a cautionary tale.

REFERENCES:
Babcock, Barbara Allen. 2006. “Inventing the Public Defender.” AMERICAN CRIMINAL REVIEW 1267-1315.

Gorden Morris Bakken. 1991. PRACTICING LAW IN FRONTIER CALIFORNIA. Lincoln: University of Nebraska Press.

Winston Churchill. 1908. MR. CREW’S CAREER. New York: Macmillan.

Virginia G. Drachman. 1993. WOMEN LAWYERS AND THE ORIGINS OF PROFESSIONAL IDENTITY IN AMERICA: THE LETTERS OF THE EQUITY CLUB, 1887 TO 1890. Ann Arbor: University of Michigan Press.

Michael Grossberg. 1996. A JUDGMENT FOR SOLOMON. New York: Cambridge University Press. [*354]

Morton J. Horwitz. 1977. THE TRANSFORMATION OF AMERICAN LAW, 1780-1860. Cambridge: Harvard University Press. In particular, chapter 5.

Jill Norgren. 2007. BELVA LOCKWOOD: THE WOMAN WHO WOULD BE PRESIDENT. New York: New York University Press.

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© Copyright 2009 by the author, Jill Norgren.

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