WHEN LAW FAILS: MAKING SENSE OF MISCARRIAGES OF JUSTICE

by Charles J. Ogletree, Jr. and Austin Sarat (eds). New York: New York University Press, 2009. 320pp. Cloth. $70.00.ISBN: 9780814740514. Paper. $22.00. ISBN: 9780814740521.

Reviewed by Priscilla H. M. Zotti, Department of Political Science, The United States Naval Academy. Email: zotti [at] usna.edu.

pp.581-584

WHEN LAW FAILS, a collection of ten essays, exposes the reader to the problems and consequences of legal mistakes. Exonerations of those wrongfully accused are well known and publicized, and much has been written recently about wrongful convictions in the criminal justice system. The thesis of this collection is that these miscarriages of justice are more than just aberrations of the criminal justice system but are symptoms of a flawed system of justice. In other words, the delivery of justice is hamstrung by systemic flaws which are embedded. Wrongful convictions are not outliers but are outcomes of a deeper more complex problem. The writers illustrate the intrinsic systemic errors and call on scholars and lawmakers to consider a more complex and comprehensive solution.

In essence, law fails often enough to become a tool of injustice. Errors accumulate around the issues of quality of counsel, race and prejudice, and DNA and evidentiary problems such as informant testimony. These errors are more than mistakes. They are embedded flaws, organic in our system of justice. The essays here illustrate that the problem is not isolated to a time period or region of the country.

Part One “On the Meaning and Significance of Miscarriages of Justice” details the role justice plays in our national development and identity. Mary Dudziak in her essay, “The Case of “Death for a Dollar Ninety-Five”: Miscarriages of Justice and Constructions of American Identity,” recounts the case of African American handyman Jimmy Wilson who was convicted of robbing an elderly white woman in segregated Alabama in 1957. Dudziak’s thesis is that Wilson’s sentence of death was eventually set aside not for the reason of innocence and fairness but due to the political pressure created by a poor international image of the American system of justice.

In the era of BROWN v. BOARD OF EDUCATION and Little Rock, the State Department saw civil rights and segregation as damaging to US global prestige. The US embassy in London received over 1,000 protests about the Wilson case. Governor Folsom of Alabama “received an average of 1000 letters a day from all over the world, some of them containing one dollar 95 cents” (p.36). However, just as quickly as the case became an international embarrassment for the United States, it faded away as Wilson’s sentence was commuted. Cruelly forgotten, Wilson served a life sentence until he was paroled out in 1973 at the age of 70. He [*582] served 16 years in prison for stealing pocket change.

Charles Ogletree’s essay, “When Law Fails: History, Genius and the Unhealed Wounds after Tulsa’s Race Riot,” recounts the 1921 riots that ignited over a 19 year old African American shoe shiner who took an elevator to the colored only bathroom. Here he encountered an elevator operator, Sarah Page, a white teenager. Without any evidence that a crime was committed, Dick Rowland was arrested for sexual assault. The charges were dismissed, but angry crowds squared off and quickly fights ensued. The riots destroyed in excess of 1.5 million dollars worth of property, 17 million in today’s dollars. Deep seated feelings of distrust continued for decades, many white citizens arguing that the riots were started by blacks, justifying the property loss. Calls for restitution were met with reluctance on the part of the city. Even by 1999 when the Tulsa Race Riot Commission was created and then recommended a resolution for the miscarriage of justice, the Governor concluded that neither the state nor city would provide victim compensation. Ogletree and a team of lawyers took up the claim, even filing petitions in the US Supreme Court and the Organization of American States. Still no appropriate remedy has been realized. In this instance, law was a conduit of injustice. It failed Dick Rowland and the survivors of the riot.

“If the legal system acknowledges legal mistakes, how does it understand their significance in regard to the more heavily fraught notion of injustice?” (p.70). Thus begins the thoughtful essay by Robert Weisberg entitled “Margin of Error.” Weisberg explores the technical world of error and the problem of determining which are harmless and which are harmful to a defendant being tried. Through a series of hypotheticals of viewing error from both the defendants’ and the legal systems’ viewpoints, the thorny problem of categorizing errors and accessing and rectifying their effect is explored.

Jonathan Simon’s “Recovering the Craft of Policing: Wrongful Convictions, the War on Crime, and the Problem of Security” addresses the question of whether contemporary police practices lead to error. Simon acknowledges the increased professionalism, training, and expertise of police. However, the persistent war on drugs and now the war on terror compromise some of the previous gains made by emphasizing police training and recruitment. Simon’s essay left me unconvinced but made me reevaluate police reform in light of current stresses and demand.

Daniel Givelber considers the role of the American jury in “Kalven and Zeisel in the Twenty-First Century: Is the Jury Still the Defendant’s Friend?” Taking a fresh look at data on acquittal rates, judge-jury agreement, and evidentiary presentation, Givelber finds that, despite the due process revolution of the 1960s, defendants are provided less vigorous legal representation. Furthermore, privately retained lawyers present more evidence at trial than court appointed or public defender counselors and have higher acquittal rates. The essay is interesting and data rich in its discussion of the problem, leading the reader to consider the implications of such findings. Have the constitutional gains of the 1960s created a system which in [*583] the end provides a lower quality of defense at the criminal bar?

Douglas A. Berman’s essay presents the argument that extreme punishment is another form of miscarriage of justice. In “Extreme Punishment” he explores the social and political factors that contribute to the American support of harsh and severe punishment. We incarcerate more individuals per capita than any country on earth, and due to the change in sentencing laws, more are certain to die in prison than a generation ago. Berman discusses the death penalty and the focus on innocence and uniformity in sentencing as two political issues which have diverted the discussion from the inherent punishment itself.

Linda Ross Meyer, in her essay, “Miscarriages of Mercy?” considers the punishment of those guilty under the Uniform Code of Military Justice. Her thought provoking essay asks the reader to consider leniency and its role in military justice. Her view is that “Mercy is a miscarriage of justice anytime it cannot be recharacterized as justice – that is, understood as a form of “case-to-case equity” or maybe a global distributive justice of pain” (p.188). She notes that “military character” and the culture of chain of command alter our traditional understanding of responsibility and just deserts. Leniency and discretion take on a different context due to the nature of military life and service. At the heart of her argument is the rule of law and both its purpose and practice.

Austin Sarat considers the parameters of justice/injustice in terms of clemency in capital cases. Is executive clemency the fail safe of our judicial system, the righting of the ultimate wrong of conviction and punishment? Relief after the justice system has run its course is categorized less as an appeal to mercy than of a technical and legal nature: ineffective assistance of counsel, mitigating circumstances, insistence of innocence, and family, religion and contrition. Despite the lack of success, clemency petitions are regularly filed and tell the story of defendants who find the law dysfunctional in process. Sarat calls these “memorializations” an archive of stories of legal failings. The essay, “Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State,” is a sober essay of a legal system that makes mistakes.

Markus Dubber, in his chapter, “Miscarriage of Justice as a Misnomer,” argues that we can analyze the penal process from two perspectives which he labels police and law. The penal process from the vantage of the police is one of identification and elimination, and reducing the risk to the state. The law perspective focuses on doing justice, meting out punishment to offenders for injuries inflicted on victims. While in actuality a police institution, Dubber argues that most scholars focus on the law model. He argues that there is no miscarriage of justice, since the symptom does not seek to do justice in the first place but instead are miscarriages of the police. The discussion should be one of “miscarriages of police” and whether these constitute injustices or mere administrative errors. I found Dubber’s piece to be one of the more difficult to follow, leaving me to question his initial premise and dichotomy of the penal process. [*584]

The book ends with an essay by Patricia Ewick. She thoughtfully argues that miscarriages of justice take on more forms than the spectacular dramatic and tragic results that we envision. The system should focus on smaller injustices which are more mundane, cumulative and even indirect. In “The Scales of Injustice,” it is not just the breakdown of justice but the lack of it that Ewick suggests scholars and reformers consider.

WHEN LAW FAILS is a thoughtful consideration of the criminal justice system and the embedded failures that lie within. The book illustrates both the drama and daily consequences of miscarriages of justice. The authors bring the reader to ask, does the system of dispensing justice need to be revamped and if so, how? Do we need to re-theorize miscarriages of justice and consider not only when law fails but how and why? The scope of the problem both in terms of its breadth and depth, are revealed, requiring oversight and diligence. What all Americans should realize is that the system is a continual work in progress. The pursuit of true justice is a constant one.

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© Copyright 2009 by the author, Priscilla H. M. Zotti.

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PEYOTE VS. THE STATE: RELIGIOUS FREEDOM ON TRIAL

by Garrett Epps. Norman: University of Oklahoma Press, 2009. 296pp. Paper. $19.95. ISBN: 9780806140261. (Originally published as TO AN UNKNOWN GOD: RELIGIOUS FREEDOM ON TRIAL. New York: St. Martin’s Press, 2001. Epilogue added.)

Reviewed by Susan E. Grogan, Department of Political Science, St. Mary’s College of Maryland. Email: segrogan [at] smcm.edu.

pp.578-580

For some three decades following the U.S. Supreme Court decision in SHERBERT v. VERNER, the prevailing legal standard for determining violations of the First Amendment’s Free Exercise Clause was whether the challenged state action had been required by a “compelling interest.” But in 1990, the Court decided the case of EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, holding that the Constitution did not prevent a state from denying unemployment benefits to an individual who had lost his job because he had used peyote in a ceremony of the Native American Church. In a majority opinion by Justice Antonin Scalia, the Supreme Court abandoned the SHERBERT compelling interest test and ruled that religious beliefs do not put an individual’s conduct beyond the reach of generally applicable state laws. The 6-3 SMITH decision led to efforts by churches and religious groups across the nation to restore the SHERBERT standard. Congress acted to mute the implications of SMITH by legislating the use of a compelling interest standard in the Religious Freedom Restoration Act (RFRA) of 1993. Coming before a Supreme Court increasingly unwilling to accord broad powers to Congress, RFRA was held unconstitutional in CITY OF BOERNE v. FLORES. Congress, noted the Court, lacks “the power to determine what constitutes a constitutional violation” by the states. The SMITH ruling, the immediate target of RFRA, was again the final word on the level of scrutiny that would be given to state action that affects the free exercise of religion. PEYOTE VS. THE STATE provides the cultural, political, legal, and – most clearly – the personal influences that led to SMITH. Originally published in hardcover under the title, TO AN UNKNOWN GOD, this paperbound edition adds an epilogue that examines freedom of religion and establishment of religion cases after SMITH.

It is most typical for studies of Supreme Court decisions or sets of decisions (as, for example, on the Commerce Clause or criminal due process) to focus on the development of judicial doctrine, on interbranch and/or popular politics, or – as we seem to see increasingly – on the politics and personalities within the Court itself. Some approaches, however, address the Supreme Court case or decisions with a particular emphasis on the litigant or litigants behind the cases. PEYOTE VS. THE STATE is clearly in [*579] this latter tradition, one that has long been dominated by Anthony Lewis’ GIDEON’S TRUMPET. Garrett Epps, now a professor at the University of Baltimore School of Law, is a former journalist and clearly demonstrates in this book the modern journalist’s skill in uncovering the human dimension of an event. Identifying Epps’ approach as heavily journalistic is not a criticism; rather, his technique is a strength and one of the most enlightening and distinguishing aspects of PEYOTE VS. THE STATE.

The respondent in the SMITH case, Al Smith, was an American Indian counselor in a drug and alcohol abuse program. Smith, himself, was a recovering alcoholic who had apparently only once used peyote, and that use occurred in a religious ceremony of the Native American Church. When he admitted his peyote use to his supervisor, Smith was fired. Smith’s claim for unemployment benefits was denied on the basis that he had been dismissed from his job for cause. Al Smith’s story is a compelling one and, in fact, had been covered in significant detail in a book length history of the case by Carolyn Long that was published around the time of the hard-cover version of Epps’ study. Long’s account surely gives considerable attention to Smith, whose picture adorns the book’s front cover. To what extent, one might ask, do Long’s and Epps’ books overlap one another? Can one who has read Long still benefit from reading Epps? Clearly, one can . . . as I did. These authors cover much of the same ground, but their perspectives and emphases differ. Long and Epps complement one another. Long’s work is, I believe, more specifically attuned to the legal arguments that surround SMITH, while Epps takes a broader approach.

One significant aspect of Epps’ study is that Oregon’s Attorney General, Dave Frohnmayer, receives as much attention as an individual as does Al Smith. The two men are quite different, Frohnmayer being a privileged member of Oregon’s political elite. His life is not without its own problems, however, as we learn from Epps’ sensitive account of Frohnmayer’s three daughters who suffer from a rare, often fatal, genetic disease.

Epps is also successful in describing the details of the historical, political, and legal landscapes of Oregon that provide the setting for SMITH. One chapter is devoted to the struggle of the Klamath Indian Nation, of which Al Smith is a member, to have its federal recognition restored. Another situates religious freedom in the context of the attempts of the followers of the Bhagwan Shree Rajneesh to gain political power in Oregon during the 1980s. Frohnmayer’s determination to resist settling the SMITH case in a way that permitted the Native American Church to use peyote ceremonially is illuminated by Epps’ discussion of the religion clauses of Oregon’s constitution that – as written and as interpreted by Oregon’s high court – do not allow the state to “make exemptions for some religions and not others” (p.116).

Above all, what is particularly significant in Epps’ telling of the SMITH decision is its reminder that the law is a human institution. Law is built or constructed by human beings acting individually and collectively to meet society’s needs. The law so constructed then determines the course of others’ lives in the future. PEYOTE VS. THE STATE is a very satisfactory book. It would be useful as a supplementary text in a variety of law and politics or [*580] religion and politics classes or in a course on American Indian politics.

REFERENCES:
Lewis, Anthony. 1964. GIDEON’S TRUMPET. New York: Random House.

Long, Carolyn N. 2000. RELIGIOUS FREEDOM AND INDIAN RIGHTS: THE CASE OF OREGON v. SMITH. Norman: University Press of Kansas.

THE RELIGIOUS FREEDOM RESTORATION ACT. 42 U.S.C. §2000bb.

CASE REFERENCES:
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, 494 U.S. 872 (1990).
CITY OF BOERNE v. FLORES, 521U.S. 507 (1997).
SHERBERT v. VERNER, 374 U.S. 398 (1963).

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© Copyright 2009 by the author, Susan E. Grogan.

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JUSTICE ACROSS BORDERS: THE STRUGGLE FOR HUMAN RIGHTS IN U.S. COURTS

by Jeffrey Davis. New York: Cambridge University Press, 2008. 320pp. Hardback. $85.00/£45.00. ISBN: 9780521878173. Paperback. $29.99/£17.99. ISBN: 9780521702409. eBook format. $24.00. ISBN: 9780511406089.

Reviewed by Srini Sitaraman, Government and International Relations, Clark University. Email: ssitaraman [at] clarku.edu.

pp.572-577

JUSTICE ACROSS BORDERS, as the title indicates, is an in-depth and fascinating examination of human rights litigation in American courts using the Alien Tort Statute (ATS) or Alien Tort Claims Act (ACTA). Professor Jeffrey Davis superbly demonstrates how the obscure provision of the Judiciary Act of 1789, also known as the Alien Tort Statute (ATS), has given the U.S. federal courts jurisdiction over civil actions pursued by aliens for violations of jus cogens international law outside the territorial jurisdiction of the American legal system. This study documents how ATS has been effectively wielded by victims of human rights violations and NGO activists in U.S. federal courts “despite jurisdictional barriers, sovereignty issues, and evidentiary problems inherent in trying cases hundreds of miles from where the wrong occurred” (p.3). What is particularly striking about the ATS is that human rights cases, as Davis points out, have been rarely litigated in U.S courts, because the courts have traditionally ignored human rights principles, abjured international human rights law because of their nebulous or indefinite character, and the executive branch has aggressively intervened to preserve its supremacy over international affairs and human rights by asserting control over such matters. As a result, legal activists have not been successful in pursuing human rights claims in U.S. courts until the United States Court of Appeals, Second Circuit opened the door in 1979 when it decided to hear DOLLY M. E. FILARTIGA AND JOEL FILARTIGA v. AMERICO NORBERTO PEÑA-IRALA under the Alien Tort Statute.

In this ATS filing, the plaintiffs claimed that their family member, Dolly Filartiga’s 17-year old brother and Joel Filartiga’s son Joelito, were brutally tortured and murdered by Americo Norberto Peña-Irala, who was then the Inspector General in the Department of Investigation for the Police in Asunción, Paraguay. Despite initial misgivings regarding the jurisdictional propriety of the case, the Second Circuit found in favor of the plaintiffs, arguing that the defendant in his official capacity had engaged in acts that violated universally accepted human rights norms and that this case was within the jurisdiction of the U.S. courts, because both the defendant and the plaintiff, although aliens, were residing in U.S. territory, effectively bringing the case within the territorial jurisdiction of the United States, even though the said crimes occurred in a foreign territory. Since then, the ATS has become a powerful legal tool to challenge the atrocities committed by corrupt officials, heads of state, police and military personnel, and even private corporations in U.S. courts [*573] through civil proceedings. Successful application of the Alien Tort Statute raises weighty questions regarding state sovereignty, jurisdictional rights, sovereign and diplomatic immunity, and it also directly challenges the supremacy of the executive branch over foreign affairs. Importantly, as Davis argues, these issues invoke several compelling questions: are American federal courts gradually heading towards universal jurisdiction; are they refuting traditional notions of territorial sovereignty and national jurisdiction; how is the executive branch responding to the intervention by U.S. courts; and what are the strategies and motivations behind the ATS jurisprudence movement launched by human rights NGOs, and have they been successful? In addition, Davis also examines whether U.S. courts have been holding private corporations liable for human rights violations through ATS, and whether political ideology influences the outcome of the ATS cases. Analysis of these crosscutting issues is segmented into eight chapters.

The first chapter begins with an examination of the Nuremberg precedent and its implication for the universal jurisdiction movement, its impact on international law of human rights, and its effect on indirect and private liability, which is evident in ROMAGOZA v. GARCIA and FILÁRTIGA v. PEÑA-IRALA. The second chapter focuses on how competing forces employed ATS as a civil litigation tool to seek justice in U.S. courts for human rights violations that have occurred outside U.S. territory. The third chapter provides a vivid account of how NGOs have acted as human rights entrepreneurs and single-handedly led the charge in seeking justice for extraordinary human rights violations, such as mass murder, genocide, rape, extra-judicial killings, and torture in U.S. courts by relying on ATS. This chapter begins with the sensational murder of Archbishop Oscar Romero in El Salvador and assesses the related DOE v. SARAVIA case litigated through the tireless efforts of the Center for Justice and Accountability (CJA). The fourth chapter discusses the complex constitutional issues related to separation of powers issues that these ATS human rights cases engender when U.S. courts are forced to intrude into the foreign policy arena and pass judgments on matters that are within the exclusive policy domain of the executive branch. This chapter is especially captivating, because it investigates cases bought against the United States government and analyzes the level of executive branch involvement in ATS cases, from Jimmy Carter through the administration of George W. Bush. In addition, the fourth chapter also reviews in detail the foreign policy and the political question doctrine – i.e., what are the conditions under which the courts must cede ground to the executive branch and refuse to hear a case because it infringes on the ability of the United States government to conduct foreign policy. This is a consequential matter that the courts must address every time an ATS claim is filed, because the courts must be careful not to be perceived as interventionist.

The fifth chapter analyzes what happens when U.S. federal courts extend their jurisdictional reach beyond U.S borders, thus raising some very thorny legal questions, such as extraterritorial jurisdiction, forum non-conveniens, state sovereignty, official immunity, act of state doctrine, international comity, and statute of limitations. The sixth chapter [*574] concentrates on the impact of ATS litigation on private corporations for their alleged direct or indirect involvement in aiding and abetting, or even participating in, human rights violations. In the seventh chapter, the focus is on evaluating the overall findings using quantitative models to test for the impact of factors such as precedent and ideology; in addition, this chapter also examines the predictors of successful litigation in U.S. District Courts and Courts of Appeals, such as active NGO involvement in crafting legal cases. The eighth and the concluding chapter summarizes the previous chapters and describes how the ATS movement has evolved in the United States, how human rights norm entrepreneurs have marshaled legal mechanisms to their advantage to score critical victories and advance the cause of universal jurisdiction, and how they have sought accountability for perpetrators of egregious human rights atrocities.

One of the central questions at stake with regard to ATS claims are whether U.S. courts can exercise jurisdiction over acts that were committed by aliens under foreign authority outside U.S. territory. Analysis in this book categorically and unequivocally answers in the affirmative and provides strong evidence to suggest that the U.S. courts are indeed gradually edging towards the principle of universal jurisdiction, albeit with caution and bounded by certain conditions, such as the unanimous decision of the U.S. Supreme Court in SOSA v. ALVAREZ-MACHAIN. In the SOSA case, the Supreme Court argued that ATS does not give plaintiffs a new “private cause of action” and that it was “merely jurisdictional,” but it authorized the district courts to hear cases that were already found in U.S. federal common law. Particularly, in SOSA, the Supreme Court urged district courts to exercise judicial restraint when examining ATS claims, and stated that such violations should be “specific, universal, and obligatory” under international law (p.35). Universal jurisdiction under this instance means that every nation has the right and authority to pursue particular claims that are universally regarded to be extraordinarily offensive to the international community as a whole, and such offences are punishable under international law (p.38).

Two areas in which the courts have been highly reluctant to decide in favor of the plaintiffs are in instances when ATS claims are presented against sitting U.S. government officials or high ex-officials and against private corporations. In both instances, defendants have overwhelming rates of success. Among 24 District Court ATS cases against the United States government, only two have been found in favor of the plaintiffs, and of the 21 Court of Appeals cases, the defendant lost only one – TELESAT INC v. U.S (pp.96-97). According to Davis, ATS plaintiffs have routinely failed to win judgments against the U.S. government and its officials because they have been unable to overcome the formidable challenges of sovereign immunity defense, political question doctrine, and state secrets barrier. The courts have shown great deference to the United States government in cases that challenge human rights violations, as long as such violations are considered to be incidental to American foreign policy objectives (p.102). Similarly, plaintiffs have had great difficulty in pursuing cases against [*575] private corporations for aiding and abetting, because they have not been able to establish direct connections between instances of human rights violations and the involvement of private actors. In addition, Davis also observes that the considerable legal and financial resources and forceful lobbying of private corporations have proved to be a significant impediment in seeking ATS judgments against corporate defendants.

In the 200-year period since the proclamation of the ATS in 1789 and the FILARTIGA decision in 1980 only 21 cases were heard under the alien tort claims statute by two U.S. courts and only two judgments were made in favor of plaintiffs – one case involving a French captain who captured a Spanish slave ship in 1794, and another in 1961 involving a Lebanese national who petitioned against his ex-wife claiming that she had used forged passports to bring their children illegally to the United States (p.27). However, since FILÁRTIGA v. PEÑA-IRALA, 156 cases in District Courts and 77 cases in the Courts of Appeals have been litigated by relying on the alien tort claims law, demonstrating how far the U.S. courts have come in accepting the concept of universal jurisdiction in prosecuting human rights violations that have occurred abroad. Davis convincingly demonstrates that in instances where jus cogens human rights violations have transpired, U.S. courts have come to accept international law irrespective of the political leanings – conservative or liberal – of the courts and judges. He argues that political ideology has not significantly influenced judicial decisions regarding whether to hear ATS cases, nor has it affected the final outcome of the cases. The statistical tests in chapter seven further support this claim.

Another interesting finding that is consistent with the growing literature on international NGOs is the ability of human rights groups not only to influence the crafting of human rights norms and national policies (Keck and Sikkink 1998), but also to generate favorable outcomes when litigating for human rights. Lawyers at the Center for Constitutional Rights (CCR) launched the ATS human rights revolution in 1978 by assisting the Filartigas to craft a solid case, utilizing alien tort law to sue their Paraguayan torturer (p.54). Davis’ quantitative analysis reveals that cases in which NGOs represented plaintiffs “34 percent are more likely to win an ATS decision in the district courts and 41 percent more likely to prevail in the court of appeals” than those with other types of representation (p.75). NGOs have this positive impact on ATS litigation outcomes because they are determined, selective, and they depend on “particularized expertise, communication, and factual evidence,” and mobilize local grassroots networks to construct strong cases and draw upon the skills of expert pro bono private lawyers to present persuasive cases (p.76).

In JUSTICE ACROSS BORDERS, Davis has made an important contribution to the human rights law literature by carefully analyzing and documenting the evolution of human rights litigation in U.S. courts against different types of defendants. This book shows that there are avenues available, albeit circumscribed, for pursuing human rights claims outside domestic boundaries without necessarily [*576] exhausting all domestic remedies. Exhaustion of domestic remedies has proved to be a significant hurdle in bringing human rights cases to international venues. However, as Davis documents, federal courts have been increasingly ignoring defendant pleas to dismiss cases because the plaintiffs have failed to work through all domestic remedies. The courts have found that plaintiffs cannot bring such cases within their home countries because the country either lacks a functional legal system or, if it did have such a legal system, the likelihood that a human rights case would receive a fair hearing is negligible. Federal courts have asserted that, as along as the plaintiff and the defendant are physically present in the United States, the courts can assume jurisdiction under the ATS. One of the most unfortunate outcomes of these ATS cases is that plaintiffs are rarely able to collect the monetary awards sanctioned by the courts. Rarely, however, are these cases about seeking monetary damages; rather, they are a search for accountability and justice.
Davis brings his practical work experience as a state Attorney General, attorney for the Atlanta School Board, and Legal Aide to the Speaker of the Georgia House of Representatives, and scholarly knowledge of law and political science to bear upon his assessment. The mix of quantitative analysis and excellent primary data gathering, which includes extensive background interviews with ATS lawyers, human rights NGO administrators, and government officials lend strong evidentiary support to his work. One quibble with Davis’ argument is that he repudiates the role of political ideology as an explanatory variable in ATS litigation. This reviewer, although cognizant of the evidence presented, is not fully convinced. Maybe political ideology lurks in other forms that require further research in ferreting it out before its impact is fully understood.

JUSTICE ACROSS BORDERS is a detailed, well-researched, carefully analyzed, and cogently argued book; it answers pivotal questions on how ATS has become a new tool in overcoming territorial limitations in pursuing international human rights violations very thoroughly and in a high readable and engaging manner. I have made this book required reading for my seminar on international human rights law this fall, and surely this book will make the reading list at several universities and draw the attention of those interested in human rights law and litigation.

REFERENCES:
Alien Tort Statute, U.S. Code 28 § 1350.

Keck, Margaret E and Kathryn Sikkink. 1998. ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS. Ithaca and London: Cornell University Press.

CASE REFERENCES:
FILARTIGA v. PENA-IRALA, 630 F.2d 876 (2d Cir. 1980), 30 June 1980, on remand, 577 F.Supp. 860 (E.D.N.Y. 1984), 10 January 1984.

ROMAGOZA v. GARCIA, 434 F.3d 1254 (11th Cir. 2006).

DOE v. SARAVIA, 348 F. Supp. 2d 1112, 1121 (E.D. Cal. 2004). [*577]

SOSA v. ALVAREZ-MACHAIN (03-339) 542 U.S. 692 (2004) 331 F.3d 604, reversed.

TELESAT DE PANAMA, S.A. v. UNITED STATES DEPARTMENT OF DEFENSE, 1992 U.S. App. LEXIS 18469 (D.C. Cir. 1992).

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© Copyright 2009 by the author, Srini Sitaraman.

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PATENT FAILURE: HOW JUDGES, BUREAUCRATS, AND LAWYERS PUT INNOVATORS AT RISK

by James Bessen and Michael J. Meurer. Princeton, N.J.: Princeton University Press, 2008. 352pp. Hardcover $29.95/£21.95. ISBN: 9780691134918. Paper. $22.95/£15.95. ISBN: 9780691143217.

Reviewed by William T. Gallagher, Golden Gate University School of Law/Visiting Scholar, Center for the Study of Law and Society, U.C. Berkeley School of Law. Wgallagher [at] ggu.edu.

pp.568-571

The US patent system is often thought to play a vital role in promoting innovation and spurring economic growth. Indeed, that is the primary utilitarian justification that animates US patent law. In recent years, however, scholars have debated whether the contemporary patent system impedes rather than promotes innovation and is thus in need of fundamental reform (e.g., Jaffe and Lerner 2004; Burk and Lemley 2009). Responding to interest-group lobbying, Congress, too, has considered major changes to the patent system for several years, even though it has not yet enacted any in light of significant disagreement about the effect of proposed reforms. In PATENT FAILURE: HOW JUDGES, BUREAUCRATS, AND LAWYERS PUT INNOVATORS AT RISK, authors James Bessen and Michael J. Meurer argue that too much of the contemporary patent reform debate is based on anecdote, rhetoric, and idealized assumptions about how patents actually work rather than on sound data. PATENT FAILURE is an ambitious and challenging book that seeks to change all that by marshalling an impressive array of empirical data on the US patent system to inform issues of patent law and policy. Bessen and Meurer agree with critics that the US patent system is broken, and the main goal of PATENT FAILURE is to demonstrate how and why this is so and to propose directions for patent system reform.

The opening chapter presents an overview and summary of the book’s main arguments, which is particularly helpful given both the complexities of patent law and the extensive amount of data analyzed in the book (which is intended for a general audience). The next section of PATENT FAILURE (chapters 2-4) lays the groundwork for Bessen and Meurer’s central thesis that patents fail to “work as property.” By this, the authors mean that patents, a type of “intellectual property” that protect rights in intangibles, fare badly when compared with private property systems that protect tangibles (such as land) – with deleterious economic consequences. Specifically, the contemporary patent system fails to provide adequate notice of the legal rights patents confer, so that patent owners and potential infringers alike often cannot readily ascertain who owns what rights – a degree of legal uncertainty Bessen and Meurer argue would be intolerable in a system of tangible property rights. This “notice failure” (the inability to provide predictable property rights) undermines the economic utility of patents and therefore the effectiveness of the US patent system (pp.53-54). [*569]

Bessen and Meurer critique some of the main legal doctrines and institutional practices that have weakened the notice function of patents and exacerbated patent system uncertainty since the 1980s. The targets of their criticism include the Patent and Trademark Office (the “PTO”), the administrative agency that examines applications and issues patents, and the US Court of Appeals for the Federal Circuit (“Federal Circuit”), which since 1982 is the centralized appellate court for all patent litigation (Abramson 2007). Bessen and Meurer criticize the PTO for allowing vague patent claims to issue, which are subsequently enforced by the courts (pp.57-58). They are also critical of the practice of filing so-called “continuation” patent claims, which allow inventors to “hide” modifications to pending (and even published) applications and thus to delay public awareness of exactly what inventors claim as their property right – a practice that has grown seven-fold since 1984 (pp.62-63). Bessen and Meurer fault the Federal Circuit for failing to develop workable guidelines to assist lower courts in interpreting the meaning and scope of patent claims and for employing a de novo standard of review for claim interpretation on appeal. These practices prevent a definitive ruling on the meaning of patent claim language until a late stage in litigation, thus prolonging uncertainty as to what the relevant legal rights at issue are. The Federal Circuit and many district courts also are to blame, the authors contend, for unduly expanding patent owners’ rights by increasingly interpreting abstract patent claims very broadly, particularly in the areas of software and “business-method” patents (pp.64-68). All of these problems, along with the sheer “flood” of patent applications (which have more than tripled since the 1990s) weaken patent notice and thereby increase costs and uncertainty in the patent system (pp.68-71).

Chapter 4 of PATENT FAILURE explores further the authors’ argument that patents fail to work as property by comparing the relative effects of tangible property rights and patent rights on economic growth. This chapter is based on an extensive review of a by-now very substantial literature – including economic history, comparative econometric studies, and natural economic experiments. Surveying and synthesizing this literature, Bessen and Meurer highlight various ways that, when compared with systems of tangible property, patents do not necessarily provide the level of economic benefit they are often assumed to generate.

Having thus made the argument that patents do not always promote economic development, as is often assumed, in Chapters 5 and 6 Bessen and Meurer creatively estimate the benefits and costs (primarily the tremendous costs of patent litigation, which have exploded since the mid-1990s) respectively of patent ownership from the 1970s to the present. These chapters are based on an impressive synthesis of empirical data, including the authors’ own previous studies, on US public companies. The findings are striking. Perhaps the most important conclusion presented is that the benefits of patent ownership vary dramatically between industries. Indeed, the authors conclude that since the 1990s it is only in the chemical and pharmaceutical industries that the benefits of patent ownership clearly outweigh the costs (p.140). For most [*570] other industries, particularly high-tech and computer and software companies, patents act as a disincentive to innovation (p.141-46).

The next several chapters further explore how and why the US patent system’s failures are best understood as resulting from the historically recent, but increasing, deterioration of patent notice. Chapter 7 evaluates potential alternative explanations for the decline of the patent system, such as increasing business-to-business litigiousness, the rise of patent “trolls” – who enforce patents but do not manufacture or commercialize any products – or the supposed decline in patent examination quality in the PTO. Bessen and Meurer conclude that patent notice decline is the strongest explanation that comports with the empirical evidence. Chapter 8 details particular notice problems that affect small companies. And Chapter 9 focuses on the specific – and acute – notice problems associated with abstract software and business methods patents.

The substantial contribution of PATENT FAILURE lies in its careful, comprehensive, and ultimately quite convincing marshalling of empirical data to demonstrate the book’s main thesis: how and why over the past two decades the US patent system has become dysfunctional for all but a few actors and industries. The final two chapters of the book advocate for numerous reforms to both patent law and institutions aimed at alleviating some of the uncertainty that Bessen and Meurer show increasingly hobbles the patent system. These reforms include: strengthening the “non-obviousness” requirement for patentability (p.236); instituting a deferential standard of review in the Federal Circuit to patent claim interpretations made by the PTO (during the application process) and the federal district courts (during patent litigation) (p.237); creating specialized trial-level patent courts (p.238); requiring patent applicants to draft clearer patent claims and permitting the PTO to issue opinion letters on patent claim interpretation (pp.230-240); mandating early publication of patent applications and eliminating expansive post-application amendments (pp.242-243); creating special burdens for the patentability of most software and business-methods patents (pp.243-247); increasing the fees for required renewals of issued patents (p.247); and strengthening certain defenses to patent infringement lawsuits (pp.248-251).

This lengthy list of proposed reforms is somewhat daunting, which is perhaps not surprising given the nature and extent of the problems that PATENT FAILURE carefully explicates. Bessen and Meurer are forthright about their uncertainty that any of the reforms they advocate will actually work: “We are sure reform is needed but it is hard to say how effective any of these reforms will be or how successful they would be together at fixing the patent system” (p.235). Moreover, the authors recognize the likely formidable political resistance to reform that might be expected from powerful actors who benefit from the current patent system (e.g., the pharmaceutical industry or the patent bar) (pp.256-260). Yet they suggest that political resistance to reform may recede precisely because the patent system is increasingly dysfunctional for even those it currently benefits (p.259) (not a fully convincing argument) and that a flexible and data-driven approach [*571] to reform is necessary (which seems pragmatic and correct).

There is much room to debate whether the authors make a convincing case for any particular reform proposal. Moreover, readers of PATENT FAILURE may not be sanguine about the likelihood that Congress or other policy-makers even care about, much less rely on, empirical data to inform their decision-making. But this book successfully demonstrates that they should. Ultimately, PATENT FAILURE is a significant contribution to the growing literature on the problems and promise of the US patent system. The book is at times a challenge to read because it is so dense with information and with multiple arguments intended to bolster and test the authors’ main theses. But PATENT FAILURE rewards careful reading and is a book that cannot credibly be ignored by anyone seriously concerned about the fate of the US patent system.

REFERENCES:
Abramson, Bruce D. 2007. THE SECRET CIRCUIT: THE LITTLE-KNOWN COURT WHERE THE RULES OF THE INFORMATION AGE UNFOLD. New York: Rowman & Littlefield Publishers, Inc.

Burk, Dan L. and Mark A. Lemley. 2009. THE PATENT CRISIS: AND HOW THE COURTS CAN SOLVE IT. Chicago: The University of Chicago Press.

Jaffe, Adam B. and Josh Lerner. 2004. INNOVATION AND ITS DISCONTENTS: HOW OUR BROKEN PATENT SYSTEM IS ENDANGERING INNOVATION AND PROGRESS, AND WHAT TO DO ABOUT IT. Princeton, NJ: Princeton University Press.

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© Copyright 2009 by the author, William T. Gallagher.

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WE DISSENT: TALKING BACK TO THE REHNQUIST COURT, EIGHT CASES THAT SUBVERTED CIVIL LIBERTIES AND CIVIL RIGHTS

by Michael Avery (ed). New York: New York University Press, 2009. 304pp. Cloth: $29.95. ISBN: 9780814707234.

Reviewed by Lynne S. Viti, The Writing Program, Wellesley College. Email: lviti [at] wellesley.edu.

pp.564-567

This collection of eight simulated dissents by practitioners and law professors who specialize in constitutional rights and civil liberties is intended, according to Editor Michael Avery, to simulate dissents that never happened, but should have. Focusing on a civil liberty opinion by the Rehnquist Court between 1984 (predating Justice Rehnquist’s chief justiceship by two years) and 2003, each chapter includes a thorough summary of precedent and the facts giving rise to the litigation, followed by a strongly argued, extensively footnoted dissent. In theory, this seems a creative way to demonstrate how the Supreme Court under Chief Justice Rehnquist chipped away at, and in some cases completely rolled back, liberties that the Warren Court had established, and that the Burger Court to some extent kept in place. In practice, however, the book resembles a standard anthology of thematically related law review articles.

The weakness of WE DISSENT has more to do with the fact that it misses its intended audience, than any inherent flaw in the carefully constructed, well developed and supported arguments each author makes. In his Introduction, Avery asserts that in the interest of widening the debate about constitutional law, the authors have aimed for “a style that is accessible to the non-lawyer reader” (p.5). This is a worthy goal, but one hardly achieved. One dissent contains fourteen pages of footnotes, nearly as many as the “opinion” itself. Chapters are replete with sophisticated, sometimes arcane legal theories and concepts ranging from subjective intent in pretextual traffic stops to” the dangers of an expansive qualified immunity doctrine” (p.182). Those untrained in the law will almost certainly find these areas tough going.

Nevertheless, the book can serve as a valuable resource for teachers of constitutional law and advanced legal studies. The case background notes are useful to prepare students to read actual Supreme Court opinions. And the dissents can be used as models for constructing well supported progressive counterarguments to Rehnquist-era decisions in areas of law dear to the hearts of civil libertarians.

Avery’s dissenters, to a man and a woman, are clear about what they see as the role of the Supreme Court in our society; they espouse what Cass Sunstein calls a “perfectionist” philosophy, one which believes the Court should play a central role in making American society a better, fairer one. As Avery writes, these chapters’ eight dissents offer “a vision of constitutional law in the United States [*565] that differs considerably from the recent jurisprudence of the United States Supreme Court . . . a vision that takes seriously a commitment to democratic values, social justice, and racial equality and that insists upon governmental accountability to our citizens and others protected by the Constitution” (p.1).

In the opening dissent to ALDEN v. MAINE (1999), Erwin Chemerinsky of the University of California at Irvine Law School and a frequent advocate at the Court, presents a vehement rejection of sovereign immunity. The facts of the underlying case are certainly intelligible to a second or third year law student with a deep interest in this area of the law, but it is a stretch to think that a lay reader could follow Chemerinsky’s discussion of why the doctrine of sovereign immunity flies in the race of the supremacy clause. This opening opinion, like the seven that follow, is written more or less like a law review article, not a dissent.

Subsequent dissenters excoriate the Court’s decisions in: ARKANSAS EDUCATIONAL TELEVISION COMMISSION v. FORBES (1997), allowing the exclusion of a third party candidate from a televised debate on a public station (the volume’s most readable and succinct dissent, by Jamin Raskin); CUYAHOGA FALLS v. BUCKEYE (2003), holding that a city conducting a voter referendum opposing a low-income housing development did not offend the equal protection clause because there was no intentional discrimination by the city (a long and pensive essay by Eva Paterson and Susan K. Serrano, with those 14 pages of footnotes).

Three dissents in this collection focus on cases that would make good fodder for discussions in undergraduate constitutional law courses, as well as for graduate seminars in constitutional history and law school seminars that allow for close reading both of full decisions and discussion of the arguments set forth by the justices. In his dissent to WHREN v.UNITED STATES (1996), Tracy Maclin rejects the Court’s decision concerning a pretextual traffic stop – one resulting in a drug arrest. In WHREN, one of the more perplexing decisions of the Rehnquist era, the Court rejected the defendants’ Fourth Amendment challenge to the stop. The Court unanimously decided that even when established police policy stated otherwise, officers could conduct a traffic stop as a pretext to search for drugs, and that this did not amount to a violation of the Fourth Amendment. The question of the subjective intent of police in such a case is a fascinating one, particularly since in WHREN, the Court appeared to go well beyond the “good faith reliance” standard articulated by the Burger Court in police inventory searches of motor vehicles. Besides presenting a thoroughgoing account of the history of the Fourth Amendment and police conduct in traffic stops, Maclin adds a dose of realism to the WHREN Court’s Fourth Amendment analysis, writing, “At its core, the [Fourth] amendment is aimed at discretionary police power”(p.116). Wishing to assure black motorists, like the defendants in WHREN, an “effective constitutional remedy,” Maclin endorses a remand of the case and a deeper analysis by the Court of Appeals into whether the police officer’s stop deviated from written, established police guidelines: “If it is determined that the [*566] stop was a departure from standard practice such that a reasonable officer would not have made the stop, then the seizure was arbitrary and in violation of the fourth Amendment’s bar” (116), and the exclusionary rule would apply.

Two other dissents are particularly noteworthy: editor Avery chooses to dissent from the Court’s opinion in COUNTY OF SACRAMENTO v. LEWIS (1998), a substantive due process case arising from a high speed police chase of a motorcycle, a process that ended in the death of the sixteen year old passenger. Contravening the majority opinion (by Justice Souter, joined by Justices Ginsburg and Thomas, with separate concurrences by Stevens and Rehnquist), Avery argues that the slippery “shocks the conscience” test should be replaced by a “reckless disregard” standard: “The appropriate test for whether an officer has committed a substantive due process violation in connection with a high-speed police pursuit is whether he has caused an injury by proceeding with reckless disregard for public safety” (p.145).

The third dissent which may be most fruitful for analysis and discussion in the classroom is Marjorie Cohn’s on CHAVEZ v. MARTINEZ (2003). Her compact and succinct argument not only relies on her cogent analysis of MIRANDA and its progeny, but also calls for the Court to pay more heed to the International Covenant on Civil and Political Rights and the Convention Against Torture (p.153), both treaties ratified by Congress. In this case, a police officer repeatedly and aggressively questioned a defendant who had been blinded and seriously wounded in an altercation with Oxnard, California police. During a 45 minute interrogation in the hospital emergency trauma room, “The medical staff asked Chavez [the police officer] to leave the trauma room several times, but he repeatedly returned and resumed questioning Martinez [the defendant]” (p.155). As Cohn notes, dissenting Justices Stevens, Kennedy and Ginsburg introduce the term “torture” in their rejection of the majority’s finding that there existed no basis for Martinez to claim a violation of his Fifth Amendment right against self-incrimination because his ostensibly coerced statements were never used against him in a criminal prosecution. Taking her cue from this analysis and determining that Chavez clearly violated the Due Process clause, Cohn goes a step farther, arguing convincingly that the Court should factor the precepts of international human rights treaties into the due process analysis. In the post 9/11 world, where ordinary American citizens as well as lawyers and judges have increasingly inquired into the legitimacy of waterboarding and other forms of aggressive interrogation amounting to “torture,” Cohn’s dissent is well worth reading and taking up in the classroom.

David Rudofsky’s dissent to SAUCIER v. KATZ (2001) rests on a highly academic and sophisticated parsing of the doctrine of qualified immunity. In the final chapter, Abbe Smith writes a fascinating dissent to STRICKLAND v. WASHINGTON (1984), complete with a disquisition on GIDEON and later right to counsel cases. She examines the tragic outcome when wholly incompetent counsel in capital cases, “walking violations of the Sixth Amendment” (p.205, citing David Bazelon), fail to observe even the most [*567] basic ethical norms of the legal profession.

This collection of scholarly notes with a decidedly left-leaning bias is not in the same vein as the more easily digested, instantly engaging work of the Jeffreys (Toobin and Rosen), or Court watchers Dahlia Lithwick or Nina Totenberg. Rather, this is a wholly serious book, destined only for academia.

REFERENCES:
Bazelon, David L. 1973. “The Defective Assistance of Counsel.” 42 CINCINNATI LAW REVIEW 1-46.

CASE REFERENCES:
ALDEN v. MAINE, 527 U.S. 706 (1999).
ARKANSAS EDUCATIONAL TELEVISION COMMISSION v. FORBES, 523 U.S. 666 (1997).
CHAVEZ v. MARTINEZ, 538 U.S. 760 (2003).
CITY OF CUYAHOGA FALLS v. BUCKEYE, 538 U.S. 188 (2003).
COUNTY OF SACRAMENTO v. LEWIS, 523 U. S. 833 (1998).
GIDEON v. WAINRIGHT, 372 U.S. 335 (1963).
MIRANDA v. ARIZONA, 384 U.S. 436 (1966).
SAUCIER v. KATZ, 533 U.S. 194 (2001).
STRICKLAND v. WASHINGTON, 466 U.S. 668 (1984).
WHREN v. UNITED STATES, 517 U.S. 806 (1996).

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© Copyright 2009 by the author, Lynne S. Viti.

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AGAINST THE DEATH PENALTY: INTERNATIONAL INITIATIVES AND IMPLICATIONS

by Jon Yorke (ed). Burlington, VT: Ashgate Publishing Company, 2008. 334pp. Cloth. $124.95/£65.00. ISBN: 9780754674139.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.

pp.560-563

Editor Jon Yorke, a Lecturer in Law at Britain’s University of Surrey School of Law, has published extensively on the death penalty and worked on death penalty projects in Britain, the United States, and Africa. He observes that all of the book’s contributors “provide a valuable engagement, in various ways, with the abolitionist pedagogy and they demonstrate that an educative process is still required” (Preface, xiv) and that the text shows “that the world should do without the repugnant punishment of death” (p.xv). The twelve chapters are divided into three parts, including (I) regional conspectus and analysis; (II) perspectives and questions for retentionist countries; and (III) overview of abolitionist strategies and alternatives to the death penalty.

After an Introduction, Part I comprises Chapters 2 through 5. In Chapter 2, Ireland scholar William Schabas traces actions opposing the death penalty which transpired in the United Nations (UN) from its inception in 1945 through 2007. In certain instances, provisions prohibiting or limiting capital punishment were included as part of treaties, declarations, conventions, or protocols. In other cases, a separate resolution advocating elimination of the death penalty was initiated. Examples of the latter strategy occurred in the 1968, 1997, and 2000 annual sessions of the UN Commission on Human Rights. Sometimes, anti-death penalty actions were taken by individual nations, such as in the case of Italy’s 1994 proposal for a moratorium on executions. On the other hand, the entire European Union sponsored the resolution opposing capital punishment which was approved by the UN General Assembly in December 2007. Book editor Jon Yorke contributes Chapter 3 on how the Council of Europe has led the way in renouncing use of the death penalty. All of the signatories to the 1950 European Convention on Human Rights opposed capital punishment. From that time until 1981, four European nations ceased utilization of the death penalty, so that by 1981 all Western European nations stood united in opposition. During the present decade, only a few nations in Central and Eastern Europe have not ratified specific parts of the European Convention on Human Rights which contain limits of the use of the death penalty. Chapter 4 on capital punishment in Africa is offered by Lilian Chenwi, a senior researcher on the topic at the University of the Western Cape in South Africa. Approximately one-quarter of nations on the continent have outlawed the use of the death penalty in law and practice. One of the major organizations fighting to eradicate the death penalty is the African Commission on Human and People’s Rights, which was established in 1987 as a monitoring mechanism under the African Charter. The [*561] aforementioned group passed a resolution for a moratorium on capital punishment in 1999 and likewise created a Working Group on the Death Penalty. British barrister Quincy Whitaker contributes Chapter 5 on the manner by which Caribbean countries have dealt with capital punishment. While most of the nations in this region historically tapped the Judicial Committee of the Privy Council – composed of Law Lords from the British House of Lords – for judicial rulings, the creation of the Caribbean Court of Justice in 2005 was viewed as an alternative jurisdiction. The combination of these competing courts and the legacy of colonial domination has led to retention of capital punishment in several Caribbean nations.

Part II of the book reviews recent trends on the death penalty in nations which have used the punishment for a prolonged period. Chapters 6, 7, and 8 highlight the United States. Chapter 6, by Julian Killingly of Birmingham City University in England, presents an overview of the background of capital punishment in America. Probably the most valuable element of this chapter is the discussion of classes of offenders who have been exempted from execution as a result of recent Supreme Court decisions, including mentally retarded and juveniles. In Chapter 7, University of Surrey School of Law Lecturer Jane Marriott probes the manner by which delays in post-conviction executions have become a rallying cry for those opposing capital punishment. In Chapter 8, New York City attorney Richard Dieter relays the results of a March 2007 National Omnibus Poll on the death penalty. He notes that respondents’ support for the death penalty is reduced when issues such as innocent people sentenced to execution, cost of executions, and the uneven application of executions based on race, gender, and geography are considered.

Chapters 9 and 10 describe Asian nations which have retained the death penalty. Nicola Macbean, founding director of the The Rights Practice, a non-government organization devoted to adherence with international human rights standards, contributes Chapter 9 on China. As a communist country with a long, dynastic history, China is less vulnerable to international pressure to abolish capital punishment than most nations. In the contemporary period, China has been inconsistent in its approach to this issue. For instance, revisions of the Criminal Procedure Law in 1979 and 1996 strengthened protections for defendants. However, these advances were mitigated by the Strike Hard campaign of 1983-1987 and by the brutal response to the Tiananmen Square democracy protests in 1989. Although the Supreme People’s Court stated its intention to reform the death penalty in the current decade, government reaction to several events pointed to its continued use. Chapter 10 is written by Sangmin Bae, an Assistant Professor of Political Science at Northeastern Illinois University. The purpose of the chapter is to compare how two East Asian nations, South Korea and Taiwan, have lessened utilization of capital punishment in recent years despite strong public support for its retention. While South Korea imposed a moratorium on executions in 1997 which is still in effect, Taiwan has not performed any executions since 2006. In both nations, advocacy groups have sought to reform [*562] the respective judicial systems. Finally, recent leaders in both countries have been vocal in opposition to the death penalty.

Part III of the text contains the final two chapters. In Chapter 11, Lina Gyllensten and Peter Hodgkinson of the University of Westminster School of Law in England present various proposals to eradicate capital punishment, including following international convention protocols, focusing on factors which reduce public support for executions, recommending implementation of moratoriums, continuing litigation efforts, and offering an alternative punishment to death. Rachael Stokes of the Penal Reform International group contributes Chapter 12, which concentrates on life without parole as the most legitimate alternative to execution. While recognizing that life imprisonment may have different meaning in various nations and contains its own set of shortcomings, Stokes nonetheless documents how several nations and states within the United States have chosen this path for punishment over the death penalty. Yorke’s edited volume may be compared to other recent books which examine capital punishment from a cross-national perspective. A 2005 edited book by Austin Sarat and Christian Boulanger probes how the death penalty is administered in eleven different nations. This text is about fifty pages longer that the Yorke text and has three more contributors, though Sangmin Bae authors chapters in both books. Other experts who offered chapters in the Yorke book published their own single-author international studies of capital punishment, including William Schabas in 2002 and Roger Hood in 2003. A 2004 book by Carsten Anckar evaluates determinants of the death penalty using a comparative approach. Two other recent books assess the use of capital punishment in single countries, including Robert Turrell’s 2004 study of the death penalty in South Africa and a 2005 examination of executions in China by Hong Lu and Terance Miethe.

The Yorke text clearly continues a decade-long trend toward global studies of the death penalty topic. The contributors are well-known experts, many of whom have published their own research on capital punishment. Yet, there are some deficiencies in both organization and content. First, the inclusion of three chapters on America’s utilization of capital punishment in Part II creates an imbalance. Because Chapters 6 and 7 overlap somewhat and are distinct from the Chapter 8 focus on public attitudes about the death penalty, one of the aforementioned chapters could be eliminated. Second, Part III ends without a dedicated Conclusion chapter. Given that void, the order of the two chapters found here should be switched, such that Chapter 11 on various alternative strategies to the death penalty should follow Chapter 12 on the specific proposal of life imprisonment. Third, while the content of information within chapters is generally adequate, the repeated reference to international treaties, conventions, and protocols probably necessitates including some of those documents in appendices to the book, even if in an excerpted form. Fourth, while the first seven chapters of the text employ footnotes as the main citation protocol, the final five chapters either use the in-text citation format or mix the in-text method with explanatory notes. [*563]

Despite the flaws discussed above, AGAINST THE DEATH PENALTY: INTERNATIONAL INITIATIVES AND IMPLICATIONS makes a positive contribution to the literature on the death penalty. At the least, the book reminds us that the fight to eliminate capital punishment in the United States cannot be properly understood without awareness of how other regions of the world or individual nations treat the death penalty.

REFERENCES:
Anckar, Carsten. 2004. DETERMINANTS OF THE DEATH PENALTY: A COMPARATIVE STUDY OF THE WORLD. New York: Routledge.
Hood, Roger. 2003. THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE. New York: Oxford University Press.

Lu, Hong, and Terance D. Miethe. 2007. CHINA’S DEATH PENALTY: HISTORY, LAW, AND CONTEMPORARY PRACTICES. New York: Routledge.

Sarat, Austin, and Christian Boulanger (eds). 2005. THE CULTURAL LIVES OF CAPITAL PUNISHMENT: COMPARATIVE PERSPECTIVES. Palo Alto, CA: Stanford University Press.

Schabas, William A. 2002. THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW. New York: Cambridge University Press.

Turrell, Robert. 2004. WHITE MERCY: A STUDY OF THE DEATH PENALTY IN SOUTH AFRICA. Westport, CT: Greenwood Press.

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© Copyright 2009 by the author, Samuel B. Hoff.

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NO WINNERS HERE TONIGHT: RACE, POLITICS, AND GEOGRAPHY IN ONE OF THE COUNTRY’S BUSIEST DEATH PENALTY STATES

by Andrew Welsh-Huggins. Athens: Ohio University Press, 2009. 248pp. Hardcover. $55.00. ISBN: 9780821418338. Paper: $24.95. ISBN: 9780821418345.

Reviewed by Aaron R.S. Lorenz, Law & Society Program, Ramapo College. Email: alorenz [at] ramapo.edu.

pp.557-559

In this book, Associated Press reporter Andrew Welsh-Huggins investigates the history of the death penalty and examines its fairness. Exploring the implementation of the death penalty through a single state, Ohio, Welsh-Huggins juxtaposes Ohio’s moderate Midwestern values with its long history of being one of the country’s most active death penalty states. Welsh-Huggins’ central thesis is that the law as it is currently constructed in Ohio, with intent to punish the state’s worst killers, does not function effectively given that intent. Rather, Ohio’s capital punishment system is often arbitrary and capricious. Welsh-Huggins outlines, in great detail, how capital punishment has evolved in Ohio and argues that the state’s performance of the death penalty does not achieve justice.

Welsh-Huggins, who is a reporter for the Associated Press in Columbus, Ohio, crafts his thesis by combining history and law. While incorporating some “classic” sources on the death penalty – Hugu Adam Bedau, William Brennan, Thurgood Marshall, Austin Sarat – Welsh-Huggins maintains a reporter’s objectivity and pens a clear explanation as to why the current death penalty system in Ohio is unfair. This is a book about how Ohio, in many ways, is no different than the rest of the United States in regards to capital punishment: arbitrary.

The book initially addresses notions of justice, what Welsh-Huggins calls “early justice.” It is this first chapter that outlines the history of capital punishment in Ohio. He traces executions from the 19th century which is especially insightful in explaining how Ohio’s current death penalty scheme came about. The specific examples of various executions are especially enjoyable to read. Welsh-Huggins subtly shows that very few changes have been made in Ohio in regards to executions. It is here that his work lays the foundation for the subsequent chapters which combine law, politics, and history.

After providing the 19th century history, Welsh-Huggins moves on to an integral discussion in death penalty circles: the 1972 case of FURMAN v. GEORGIA. Welsh-Huggins is considerably painstaking here in his account of the various cases that led up to FURMAN (ALABAMA v. RUDOLPH and MAXWELL v. BISHOP). His historical accounts are wonderful as he summarizes the FURMAN Court’s opinion on cruel and unusual, arbitrariness, and capriciousness. The FURMAN Court attempted, as Welsh-Huggins notes, to define these terms so [*558] the states could establish fair and just executions.

Instead of moving on to GREGG v. GEORGIA and the impact of that seminal case, Welsh-Huggins explains how the capital punishment debate evolved in Ohio, across other states, and at the national level. This discussion is rich with detail and also symbolic of the contested debate over where the power should lie – state or national level – as well as whether the Court should address the constitutionality of the method of execution.

The middle chapters of the book are equally as valuable as the historical introduction. Welsh-Huggins juxtaposes what occurred in Ohio in the 1970s and 1980s (post-GREGG) with what occurred at the national level, with the Supreme Court being a focal point. This method of using the State of Ohio versus the Federal level is quite effective. He accounts for conversations between police and prosecutors, explains grand jury indictments, addresses the politics of the various governors of Ohio, and explains how the people of Ohio understood the possible issues of inequity, including race. While race in particular is not an issue that Welsh-Huggins spends in an inordinate amount of time on, he does devote a chapter to the issue and notes the persistency of race in regards to the death penalty dating back to the 18th and 19th centuries.

Unlike many books on capital punishment, Welsh-Huggins actually devotes a chapter to what he terms “the bargaining of death.” This chapter is undoubtedly the most valuable chapter in the book. Welsh-Huggins meticulously outlines how various county prosecutors in Ohio decided whether they would seek the death penalty. This area of research is especially valuable to political scientists because it addresses both the politics of the state as well as the role of public opinion. Explaining clearly that the criminal justice system would collapse without plea bargaining, Welsh-Huggins analyzes how plea bargaining affects the goal of the death penalty: “punishing the worst of the worst with the ultimate penalty” (p.96).

Another outstanding chapter and wonderful addition to the field is Welsh-Huggins’ chapter on judges. He looks at the rural and urban relationship with capital punishment and subtly demonstrates the inequity issues that surface. Ohio, like many states in the U.S., has its share of struggling cities, towns, and counties. Welsh-Huggins explains how state and national politics affected Ohio’s death penalty history. The Justice Department’s 2000 analysis of the death penalty system showed bias in various areas, including geography. This fact does not get past Welsh-Huggins, and his work on the issue shows his ability to see that bias, in regards to capital punishment, comes in numerous forms and not simply the classic themes like race or mental capacity.

The final chapters address the fairness of the death penalty in Ohio as well as the future of capital punishment in the state. Welsh-Huggins, quite objectively, explains that the death penalty in Ohio, like in Texas, is most likely not going anywhere soon. While there may be a de facto moratorium on the death penalty in some states, Ohio seems intent on [*559] continuing to use capital punishment regardless of the claims about its unconstitutionality. Welsh-Huggins does note the 8 Ohio cases in which judges have thrown out a death sentence since 1981.

For political scientists who are interested in the general topic of capital punishment, this book provides the basic information helpful as an introduction. What Welsh-Huggins does especially well is juxtapose the state versus national issues that arise in political science and certainly within death penalty debates. The book is heavily weighted on case law, again, at both the state and national levels. For those interested in understanding the politics behind the death penalty in Ohio and beyond, this book is invaluable.

CASE REFERENCES:
ALABAMA v. RUDOLPH , 375 U.S. 889 (1963).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

GREGG v. GEORGIA, 428 U.S. 153 (1976).

MAXWELL v. BISHOP, 398 U.S. 262 (1970).

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© Copyright 2009 by the author, Aaron R.S. Lorenz.

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SAFEGUARDING FEDERALISM: HOW STATES PROTECT THEIR INTERESTS IN NATIONAL POLICYMAKING

by John D. Nugent. Norman: University of Oklahoma Press, 2009. 344pp. Hardcover $45.00. ISBN: 9780806140032.

Reviewed by Philip A. Dynia, Political Science Department, Loyola University New Orleans. Email: dynia [at] loyno.edu.

pp.552-556

It is (arguably) the “oldest question of [American] constitutional law,” as Justice Sandra Day O’Connor suggested in NEW YORK v. UNITED STATES, namely, “the proper division of authority between the Federal Government and the States” (at 150). As with a leading competitor for “oldest question” laurels (i.e., the proper division of foreign policy and war-making authority between Congress and the President) the Constitution gives us not so much a clear solution as an “invitation to struggle” (Edward S. Corwin’s felicitous phrase).

Justice O’Connor was a key player in the Rehnquist Court’s relatively short-lived, tentative, and perhaps ultimately futile efforts to restore “state sovereignty” to its rightful role in “our federalism.” Other Justices, Blackmun most notably in GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, argued (echoing scholars like Herbert Wechsler and Jesse Choper) that the interests of the states were best protected by the political process and that the Court should allow the political branches to work out the boundaries of federal and state authority.

Recent decades have produced a growing scholarly literature on how political and policy making efforts clarify the ambiguities and silences of the Constitution’s text (e.g., Keith Whittington’s notion of “constitutional construction”). But, as John Nugent notes in his introductory chapter, the focus of this literature has been on separation of powers and civil liberties questions more than federalism. Nugent seeks to fill the gap “by describing and explaining the many nonjudicial determinants of the state-federal balance of authority” (p.5). (Nugent eschews, because of their analytic weakness, concepts such as “state sovereignty” or “states’ rights.” He prefers his concept of “legalistic state-governmental interests” (p.28) which encompasses statutory, constitutional, and judicial demarcations of the boundaries of state and federal authority.)

Nugent argues that there is no single scholarly literature on federalism but rather (at least) two literatures. Political scientists (Nugent’s training and background) “almost never cite law review articles on the constitutional aspects of American federalism, and legal scholars rarely give more than cursory citations of the political science literature on federalism, intergovernmental relations, and public administration” (p.7). Nugent sets himself the task of synthesizing the constitutional and policymaking approaches to provide an explanation of how state officials perform a vital constitutional function by attempting to check and balance their counterparts in the federal government. Such a synthesis [*553] involves four streams of research by legal scholars and political scientists: the literature concerning the “political safeguards of federalism;” scholarship concerning the ways in which Congress and the President participate over time in clarifying and interpreting ambiguous constitutional text, a process variously “referred to as nonjudicial interpretation, constitutionalism outside the courts, constitutional construction, coordinate construction, and departmentalism” (p.10); political science and public administration works on federalism and intergovernmental relations; and the literature of public policymaking and public administration.

Little is said – a conscious decision on Nugent’s part – about the role of the judiciary in protecting the interests of state governments, for two reasons: much has already been written on the ways the federal courts safeguard state-governmental authority, and (more importantly) judicial review may invalidate actions outside the bounds of federal power but does little to constrain the exercise of power within those bounds. Nugent wants to discover “what states can do to protect their interests vis-à-vis the federal government even when perceived federal encroachments do not rise to the level of constitutional violations” (p.15).

Specifically, he poses and answers three questions: “How do state governments protect and promote their interests vis-à-vis the federal government today? What exactly are those interests? How do state officials’ efforts to protect and promote the various interests of their states affect our understanding of the U.S. Constitution’s division of authority between the states and the federal government” (p.4)?

The answers he develops come down to certain essentials. State governments protect their interests today through constructive engagement with the federal government rather than “brinksmanship” (e.g., Governor Wallace standing in the schoolhouse door). The interests that are of most concern to states officials are three-fold: legalistic (i.e., states’ legal authority to act independently of the federal government), fiscal (i.e., states’ desire for adequate and predictable federal funding), and administrative (i.e., states’ desire for at least some flexibility and autonomy when they implement federal policies).

Since the text of the Constitution contains few formal means by which states can check the federal government, state officials (governors, state legislators, and state administrators being the key players) utilize a set of informal powers and practices these officials have developed over time. They are by no means as decisive as a formal veto over federal action; rather, they provide state officials with ongoing opportunities for constructive involvement in making and carrying out federal policy. These opportunities exist at the prelegislative, legislative, and postlegislative stages of the federal policymaking process.

Thus, in any particular policy area, state officials may attempt to retain policymaking authority for themselves by passing quality legislation that obviates the need for federal policymaking in that area (e.g., the Uniform Commercial Code, whose uniformity is the result of the Code’s [*554] legislative adoption in each of the states). If Congress decides to act, state officials can attempt to influence the content of federal policies as they are being written by Congress (e.g., governors’ involvement – most notably then-governor Bill Clinton – during committee markups of the 1988 welfare-reform legislation). Finally, state officials can attempt to influence the rulemaking process through which federal agencies spell out the details of frequently sketchy federal law (e.g., state officials and lobbyists contacting agencies during the process of formulating and promulgating rules and regulations), and where states are given a role in the process of enforcing federal policies (as they are in a greater number of ways than often realized) they can promote their state interests in the enforcement process (e.g., states’ implementation of the “highly qualified teachers” requirement of the No Child Left Behind Act – a term that was largely left to the states to define).

Slightly more than one-half the book is devoted to three chapters dealing with a variety of case studies that document in depth the examples in the above paragraph, in addition to a number of others. These chapters provide considerable empirical evidence for Nugent’s central claim that state officials currently have a variety of means of checking and balancing federal power (in a sense, the real political safeguards of federalism) and thus retain a significant reserve of authority in the American constitutional system. That conclusion, rooted in an understanding of state-governmental interests, was developed through “two streams of original qualitative research in the form of personal interviews and content analysis” (p.231). The personal interviews involved several dozen individuals working on state-federal relations in some capacity; the content analysis examined the 1998 policy positions adopted by the National Governors Association and the National Conference of State Legislatures and of the governors’ 2002 state-of-the-state addresses.

Among the personal interviews were 22 done with various staff members of governors’ Washington office staff. Many (this reviewer included) might be surprised at the notion of a state’s governor having a Washington office and staff. (As of the date this book went to press, 35 governors maintained offices in the nation’s capital – as did hundreds of individual counties, cities, townships, and other special districts.) Nugent was intrigued, when he learned of this fact in a brief conversation with a colleague at a political science convention, as to what staffers in those offices did. From that casual conversation came the research that led to Nugent’s dissertation and now this book.

Some of his initial conversations with these staff members convinced him that state officials perceive interests that frequently differ from those perceived by U.S. senators (their own included) and other federal officials. By the end of his project, Nugent had demonstrated that states have significant, manifold opportunities to protect those interests in the national policymaking process.

Nonetheless, Nugent notes in a chapter “summing up the political safeguards of federalism” (p.213) what he describes as the “apparently widespread scholarly and popular belief today that the federal [*555] government has swallowed up our state governments and that it is ever growing, all powerful, and generally successful at running roughshod over those helpless governments” (p.215). While even the neophyte political science undergraduate has heard of “Article VI” and “preemption,” Nugent shows that even if states “lose” their fights at one stage of the federal policymaking process, they generally have opportunities during the next stage to affect a policy’s content, interpretation, implementation, or reauthorization.

Nugent’s view of federalism is not, he explains, widespread for several reasons. First, media coverage of state-governmental policymaking and implementation “tends to be inconsistent at best” (p.214). Few people care what is happening in states other than their own, and political journalists have little incentive (or perhaps even requisite training) to present “a broad comparative picture of how officials in a variety of states interact with their federal counterparts” (p.216). Second, national politicians of both major parties (who tend to get disproportionate media attention) “have little incentive to tout the power and capacity of state governments” (p.216). Republicans interested in shrinking the federal government will exaggerate its size and scope to justify proposed tax cuts, deregulation, and “getting Washington off our backs.” Democrats interested in – (a) initiating (b) maintaining (c) expanding (d) all of the above – federal programs undoubtedly exaggerate the federal government’s capacities to cure our ills even as they question the ability of states to provide solutions. (Nugent also observes that even state officials often overstate the power of the federal government in order to promote the view that they are at its mercy.)

Nugent also responds to those who argue that American federalism is not “real” federalism but rather a pale reflection of what the Framers had in mind (how one knows what it is they had in mind is another story entirely). “Unless state governments possess at least some decision-making authority that cannot be trumped by the federal government . . . there are no real limitations on federal authority” (p.224). Nugent disagrees (even as he concedes that American federalism is certainly different today from what it was 50 or 100 or 150 years ago).

In the final analysis, states’ ability to check and balance perceived federal encroachments on state-government interests stems from their capacity to generate effective public policy, the expertise and experience they bring to the implementation of state and federal policy, their employment of large state workforces that give them considerable administrative capabilities, and the fact that elective state officials represent the popular will. If anything, Nugent argues, the evidence he presents suggests “that states have greatly increased their capacity for democratic, professional, and effective self-governance and that they have developed a robust set of institutions to facilitate interstate cooperation and to strengthen their individual and collective hands in dealing with federal officials” (p.225).

This reviewer agrees. At the same time, one must also agree with Nugent’s characterization of his conclusions – they are “preliminary and warrant further testing in a wider variety of [*556] policy areas” (p.217). The search for generalizations in these matters is complicated by the fact that every public policy generates its own particular grouping of supporters and opponents, takes place in a particular (political, cultural, social, and economic) context, and is driven by complex factors not all of which may be discernible by scholars. Moreover, federalism is not “a single relationship between states and the federal government but, rather, a heterogeneous set of relationships whose features and dimensions are not all agreed on or unidirectional” (p.227). Such problems notwithstanding, the approach that Nugent has laid out – fully recognizing the complexity of American federalism and the difficulty of saying in any given policy area exactly where federal power ends and state power begins – is sound and deserves further studies taking their inspiration from this important and valuable work.

REFERENCES:
Choper, Jesse H. 1980. JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS. Chicago: University of Chicago Press.

Corwin, Edward S. 1962. THE PRESIDENT: OFFICE AND POWERS. New York: New York University Press.

Wechsler, Herbert. 1954. “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government.” COLUMBIA LAW REVIEW 54: 543-560.

Whittington, Keith E. 1999. CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING. Cambridge: Harvard University Press.

CASE REFERENCES:
GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, 469 U.S. 528 (1985).

NEW YORK v. UNITED STATES, 505 U.S. 144 (1992).

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© Copyright 2009 by the author, Philip A. Dynia.

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A GOOD QUARREL: AMERICA’S TOP LEGAL REPORTERS SHARE STORIES FROM INSIDE THE SUPREME COURT

by Timothy R. Johnson and Jerry Goldman (eds). Ann Arbor: University of Michigan Press, 2009. 216pp. Cloth. $65.00. ISBN: 9780472116362. Paper. $24.95. ISBN: 9780472033263.

Reviewed by Richard L. Pacelle, Jr., Georgia Southern University. Email: rpacelle [at] georgiasouthern.edu.

pp.548-551

How many times do you walk through a store and see a product and think “I wish I thought of that?” When I received the book, A GOOD QUARREL, those were my exact sentiments. For some reason (for a number actually), the academy has until recently largely ignored the significance of oral arguments. And why shouldn’t political scientists who study the courts ignore oral arguments? From a sheer practical perspective, it is difficult to treat the information gleaned from a mass of oral arguments systematically. Content analysis is very difficult to do well. Substantively, the barrier was even higher. The dominant framework for understanding Supreme Court decision making has been the attitudinal model. Taken to its logical conclusion, the notion that due to their lifetime tenure and position atop the judicial hierarchy, justices vote their sincere policy preferences (Segal and Spaeth 2002) suggests that oral arguments are nice window dressing, but little more. If attitudes are determinant of decisions, then oral arguments cannot, almost by definition, influence individual level decisions. Even some justices have remarked that they are a waste of time and seldom change a vote in a case. But intuitively and theoretically, most analysts just assume that cannot be correct.

The discipline’s two primary scholars of oral arguments, Timothy Johnson and Jerry Goldman, have edited a book that peels back the purple curtain to look at oral arguments from the perspective of many of the major court reporters of our time. And if that was not enough (and don’t you think it ought to be?), the editors have added a website (www.goodquarrel.com) with audio links so readers can listen to excerpts of the actual oral arguments they are reading about. This certainly adds to the experience for judicial process and public law wonks and should be an added inducement for today’s I-Pod toting, shorter attention span generation. Political science continues its advances into the twenty-first century.

The editors have enlisted most of the best known court reporters of the time, including veterans like Fred Graham, Nina Totenberg, David Savage, Tony Mauro, Lyle Denniston and Tim O’Brien. Each brings an insider’s perspective and most have an apparent facility with the academic research as well. The Court reporters write about oral arguments for a range of cases from the most visible to much less momentous decisions about which most readers will never have heard. Among the interesting arguments included in this book are one by a white supremacist who argued his own case, badly, but still won, an oral [*549] argument that led to a malpractice suit against the attorney who lost, BUSH v. GORE, the Michigan affirmative action cases, PLANNED PARENTHOOD v. CASEY, an extremely restrictive state campaign finance law, and an oral argument by Richard Nixon in between his stints as a presidential candidate.

We get interesting glimpses into the personalities and styles of the justices and into the strategies of the litigants. The chapters are enlivened by the audio recordings on the website. Readers (and listeners) will hear Justice Scalia parrying with the attorneys and often throwing a lifeline to a foundering advocate whose position he is trying to rescue. We get a sense of the impatience of Justice O’Connor when an argument has wandered. Justice Stevens is portrayed as generally quiet, listening intently, until the end when he often asks “the question they [the lawyers] fear most” (p.137). Justice Thomas, as we have come to know, does not engage in such banter. Chief Justice Roberts comes across as a tough questioner, and many of the authors note his success and preparation as a litigant before he ascended to the center seat. We get to see the good, the bad, and the ugly oral arguments, although in not every circumstance does that correlate with the result of the case. We are reminded that, though the litigants may come to the Court with a script, they may quickly be forced to depart from it. In a few instances, like the PLANNED PARENTHOOD case, the litigants had ulterior motives that went beyond the charge the Court gave them when it granted the petition.

For veteran analysts of the judiciary in the academy, there will be few surprises about the general operation of the Court. But for the uninitiated, there are treasure troves of information about the formal and informal process (including the idea that this is really the only time that the justices really interact to discuss the case). For those who are teaching constitutional law or judicial process, there are all kinds of “inside baseball” (no pun intended) information that can enliven the discussion of the various cases in class. The cases chosen for this book are certainly not representative of oral arguments as a whole, but it is amazing to discover how many decisions on who is going to argue these particular cases were settled by a coin flip.

If there are doubts about the importance of oral arguments, they are lost on the authors of the chapters. There is an adage that says in effect, a good oral argument cannot win a case, but a bad one can surely lose a case. But the court reporters do not subscribe to that. They acknowledge that some justices have largely made up their minds before they come in the room and that some litigants have an uphill climb regardless of the quality of their presentations. But they all see the merits of this opportunity to ventilate issues. On the larger normative grounds, a number talk about the spectacle and would agree with the editors when they write “justices in open court put on a most remarkable – arguably the most impressive – display of any of our federal institutions” (p.3).

There is something almost paradoxical about this book that adds to its appeal (again, no pun intended). Clearly the reporters covering the Court chafe under some of the restrictions that the Court places on media coverage. We are told in a number of chapters about the Court’s [*550] reluctance to open its doors to cameras (the retirement of Justice Souter removes one obstacle). Several of the justices provide explanations for their position on this issue (and they are the usual litany). As a result, Court processes, in general, oral arguments, in particular, are far from the public view. The Court does almost nothing to educate the public about its role or procedures. This book unmasks a little of the mystery. It also suggests that the fears of opponents of televised coverage exaggerate the deleterious effects. This is a book that would be useful in a number of introductory and upper level courses. I hope that the University of Michigan Press will try to market it more broadly. It is the type of book that informed citizens should read.

The book provides a number of stark examples of the fine lines that the Court often has to draw in cases. Virtually all of the cases discussed had a relevant precedent that, while close, was not exactly controlling on the instant case. Some justices wrestle with their felt need of reconciling the present with the past. Other justices search for the reed that will permit them to grab on to a precedent they favor or the loose thread that will permit them to decide the case in the opposite direction without overturning the existing precedent. The litigants, reporters, and justices know there are certain minds that cannot be swayed no matter how persuasive the argument. There is an attempt to identify the justices in the middle who hold the key to victory or defeat and to pitch the arguments to them.

It is necessary to quibble a little with the book. In the next edition, the editors should really consider putting a broader context in place. The introductory chapter should be expanded to develop the notions of the importance of oral arguments a little more fully. But more importantly, the editors should have spent a brief concluding chapter summing up and tying together for the audience the major points they should take from reading these serial narratives while reiterating the importance of oral arguments.

Another small problem that consistently runs through the vignettes is the lack of closure. Most of the reporters tell us the results of the case, but it is often a terse recitation of who won (Nina Totenberg’s seven word P.S. being the most extreme example). Some would argue that the true value of the oral arguments is not so much in changing votes in a case, but in influencing the language of the opinions. But we get no sense of that from most of the reporters. I offer this critique advisedly because it is very difficult to attribute the language of an opinion to anything in the briefs or orals or to know what the justices might have written had the oral argument been different.

None of that should detract from the overall message that this is a book that experts and neophytes will enjoy and find interesting. As the forward by Richard Lazarus concludes “Read, listen, and enjoy.” And if this book contributes to the debate surrounding public access to the Court and televised oral arguments, that is an added bonus. In the words of Justice Brandeis (quoted by Tim O’Brien) “Sunlight is the best of disinfectants” (p.41). The authors have put their acknowledgments at the end of the book. I presume that this is so that the last word in the book would not belong to Richard Nixon. [*551]

REFERENCES:
Segal, Jeffrey, and Harold Spaeth, 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. New York: Cambridge University Press.

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

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

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© Copyright 2009 by the author, Richard L. Pacelle, Jr.

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