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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JUSTICE DENIED: WHAT AMERICA MUST DO TO PROTECT ITS CHILDREN

by Marci A. Hamilton. New York: Cambridge University Press, 2008. 168pp. Hardback. $23.00/£16.99. ISBN: 9780521886215.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu.

pp.543-547

Marci Hamilton contends in this thin volume that a “secret ocean of suffering exists” in our society in the form of a crisis of child sexual abuse (p.114). She lays the blame on our legal system that “perversely benefits predators and continually victimizes childhood sex abuse survivors” (p.114). She also claims to know the “clear and simple” solution for “what American must do to protect its children” (p.21): abolish statutes of limitations for sexual abuse. When these “arbitrary” SOL’s are eliminated, she claims, victims will finally “have a true opportunity for justice” and “all of society will benefit” (p.115). As the vagueness of both of these phrases indicates, it is unclear from her book just how much impact she thinks this reform would have on the problem of child sexual abuse. Nor does she provide an estimate of how many sexual abuse cases are affected by the statute of limitations. Indeed, as she reveals in an endnote, at least 11 states already have no statute of limitations for this crime, and an additional 6 states have no statute of limitations for the most serious cases of sexual abuse. It would therefore be interesting to see evidence showing whether the sexual abuse problem is any less serious in those states. In any case, Hamilton’s argument even for this modest reform is not convincing.

The author’s use of evidence in this book is problematic. She announces that “at least 25 percent of girls and 20 percent of boys are sexually abused” in the US (p.4). She does not however reveal that there is tremendous uncertainty about just how widespread the problem is, or that one’s estimate depends on how broadly one defines sexual abuse (nor does she attempt any such definition). In fact, a look at some of the very sources she cites for her figures reveals that they do not support her claim. One source holds that 5-10% of boys are abused worldwide, another (the World Health Organization) estimates 7 – 36% of girls and 3- 29% of boys are abused; these therefore undercut Hamilton’s unqualified assertion that at least 25% of girls and 20% of boys are abused. It may well be of course that the higher numbers are correct, but one cannot simply assume that they are (let alone preface them with “at least,” implying they are much higher). In another passage discussing the problem of false allegations, she references the “data” from California showing that there were “about a handful of false claims” (the qualifier “about” a handful is perplexing) (p.72). She then tells us that this constitutes “one half of one percent.” It is hard to verify her calculation, since it is unclear how “about a handful” out of 1000 claims constitutes one half of one percent, and moreover she does not give a citation to [*544] the source of these data. In fact, in most of the book the author relies mostly on anecdotes or open-ended assertions (“all too often,” “common,” “not unusual,” and so on). Her response to the insurance industry’s assertion that increased liability will cause significant negative financial impact is hardly satisfactory: “If the SOLs are eliminated, every private and public entity will need coverage for its employees who work with children. That sounds like more policies and premiums to me” (p.64). Nor does she mention that any such increased profits for insurance companies would mean equivalently increased costs for small businesses such as day care centers that will need ever more expensive coverage, in some cases enough to put them out of business.

The author’s portrayal of sex offenders is crude and sensationalistic. These people will, Hamilton asserts, “prey on children wherever they can find them” (p.26). She tells us that sex predators are “devious by nature” (p.44), though she provides no evidence that these predators are any more devious than anyone else, nor does she explain what she means by the phrase “by nature.” The author also makes the remarkable claim that sex predators deliberately take advantage of the law regarding the statutes of limitations, which has “created perfect opportunities for predators” (p.19). For each victim’s right to sue expires soon after the abuse, so that the predator “can move on with confidence, knowing the damaged victim was highly unlikely to gain access to the courts, and therefore the predator could molest more children under cover” (id.). She darkly and bizarrely hints that perhaps the law is even designed for this very purpose: “It is eerie how the law dovetailed with the pedophiles’s predilection for children of a certain age. When the pedophile’s interest would wane because the child became too ‘mature,’ the ability of the child to go to court would recede well before the child could alert others to the molester’s identity” (p.19). Hamilton does not however provide any evidence that any molesters are even aware of the laws regarding the statutes of limitations, other than a single anonymous email she claims to have received from an incest survivor who says her father laughed at her when he told her about the statute of limitations on his crime. In fact, Hamilton recognizes that the vast majority of the public do not even know what a statute of limitations is (p.110), so it seems hard to believe that even the naturally devious sex offender has detailed knowledge of these arcane regulations and manipulates them to his own advantage. If true, such an allegation would indeed provide a powerful reason to eliminate the SOL’s. However, it seems reasonable to require somewhat more evidence for such an unlikely assertion than a single unverifiable anecdote.

But if the demonization of the sex offender is predictable (and perhaps to some degree even excusable), more troubling is how Hamilton portrays all of the opponents of her proposed reform as only slightly less monstrous, whether they be school teachers, the church, the insurance industry or others. For Hamilton, those who support her proposed reform are “visionary,” “pioneers” (p.63) and “courageous” (p.83). But the “enemies of reform” apparently constitute an army of darkness. They “fight dirty” (p.21), engage in “skullduggery” (p.59) and [*545] “subterfuge” (p.70), are “sleazy” and “offensive” (p.94) and “vile” (p.91), are brilliant but “devious” (however she does not say if they are devious “by nature” like the predators) and “insincere” (p.88), “shameless” (p.54), engage in “dirty tricks” if they cannot win on the merits (p.80), react with “knee-jerk” opposition (p.65), have an “instinct to hide the truth” (p.99), choose their own interests over those of children (p.104), are constantly engaged in “plotting” behind closed doors (pp.78, 55), and are simply “immoral” (p.96). Naturally, while those on Hamilton’s side of the debate are motivated by a righteous concern to protect the children, those on the other side are motivated by base financial concerns or mere self-interest and do not care about the children. She does not, however, tell us how she has access to the internal motivations of her opponents, or how she knows what goes on behind “closed doors.”

Hamilton calls the statute of limitations a “technicality,” misleadingly implying that it has no legitimate purpose or function (moreover, the phrase “technicality” is a buzzword more suitable for politicians and cable news commentators than law professors and does not belong in a scholarly work absent a precise definition of this loaded term). In fact there are real arguments in favor of the statute of limitations and other procedural constraints. Nowhere in this book will you find any mention of the fact that the crimes of rape and sexual abuse are unique in that someone accused of such a crime can be sentenced to severe penalties, including life in prison, based solely on the uncorroborated testimony of a single witness, the accuser, without any third party witnesses or supporting physical evidence. The concern is obviously significantly heightened when the alleged crime took place 20, 40 or even 70 years before, and witnesses are unavailable or dead, physical evidence is gone, and memories are faded. Indeed, the mere accusation of such a monstrous crime can be sufficient to destroy the reputation and career of a person even if he is wholly innocent. Nonetheless the author refuses even to take seriously the concerns of her opponents. When she does briefly mention them, it is to dismiss their arguments as “poppycock” (p.71), “silly” (p.61), “sad” (p.107), or merely “curious” (p.106). Even more remarkable is her accusation that this systemic crisis is no mere accident or oversight, but reflects a deliberate social policy of favoring adults over the interests of children, given that children do not vote (pp.19-20; cf. 71). But it is rather difficult to believe that politicians identify more with the interests of sex predators than with children, simply because the politicians are adults, or because sex predators vote but children do not (never mind the fact that most politicians have children of their own). The author again gives no evidence to support this charge, and common sense and experience suggest the opposite: politicians have long recognized it is easy to score political points by sponsoring bills to protect children against sex predators.

Hamilton seems unwilling to accept the fact that some people might in good faith be concerned about the danger of false convictions of this horrendous crime. For her, anyone who defends the SOL is simply “morally reprehensible” and prefers predators to children (p.112). Her response to the problem of false [*546] allegations is minimal and perfunctory. She dismisses the concern as “exaggerated” and insists that “procedural safeguards to combat false allegations are already in place” (p.20). She does not tell us how many false allegations she believes there are, or how many false convictions she is willing to tolerate in pursuit of her cause. Nor does she us what these procedural safeguards are, how effective they are, or how she knows they are effective; indeed, her proposal is precisely to get rid of one of the procedural safeguards, the statute of limitations. Hamilton cites only one source to support her assurances, an article in “Risk Management” which simply asserts that “By applying techniques proven effective in the defense of other types of claims of sexual misconduct, false, fabricated or exaggerated claims of abuse may be exposed” (p.135). Again, we are not told what these techniques are, who has proven them effective, what “effective” means (surely it doesn’t mean 100% effective), or what the evidence is, or even what “may be” means (does it mean “will be” or “might be”?). Hamilton later in the book makes another response, equally unsatisfactory. The problem of the unavailability of evidence from a crime decades past is not a concern, she tells us, since the burden of proof of a crime is on the government (p.106). But this is a fallacious argument, since it would equally support eliminating the statute of limitations for all crimes, indeed eliminating virtually all procedural protections whatever; why would we need a right to a lawyer, or a right to an appeal, or a right against double jeopardy, or a habeas corpus right, since the burden of proof is on the government? The argument is naïve, as if the mere fact that requiring proof beyond a reasonable doubt is sufficient to guarantee there will never be a false conviction. Indeed, if her argument were correct, it would prove definitively that there has never been a single person wrongly convicted of a crime in the history of the United States! Hamilton also dismisses the concern about lack of evidence by claiming the existence of a “secret archive” of documents in the Catholic Church identifying the perpetrators of sexual abuse (p.61), suggesting a page from The Da Vinci Code. But even if this “secret archive” existed, it would hardly solve the problem. For Hamilton overlooks the very point she made in the previous paragraph, that the vast majority of cases of sexual abuse occur outside the church.

The concern about false accusations is far from idle, given the overwhelming evidence of numerous false allegations of child sexual abuse and convictions of innocent people in, for example, the Satanic abuse panics of the 1980s and the current strange, almost mystical belief in the idea of “recovered memories” of childhood sexual trauma. Martin Gardner discusses these abuses in his article “The Tragedies of False Memories” (Skeptical Inquirer, Fall 1994):

No one denies that children are molested, but memories of events that never happened are easily fabricated in the minds of suggestible patients by techniques that include hypnotism, regression therapy, drugs, dream interpretation, and guided imagery. These fake memories become so vivid that patients who acquire them make enormously convincing court witnesses. Jurors tend to believe them rather than the expected denials of those accused. The result: an epidemic of wrong [*547] convictions and a mass hysteria that is now far more extensive than the old Salem witch-hunts.

Hamilton nowhere addresses or even mentions these scandals in her book. But it is difficult to assess the argument for eliminating SOL’s without a serious discussion of the problem of false accusations. Hamilton may well be correct that we should eliminate statutes of limitation for child sexual abuse, and certainly she is correct that the behavior of some of the parties in this debate, including the church, has been in many cases reprehensible. And there are certainly legitimate arguments to be made in favor of this legal reform, including the fact that due to the shame and embarrassment, victims of such a crime often have great difficulty coming forward. The problem is that her approach is so one-sided that it is not likely to convince the thoughtful reader. For her, the issue reduces to a battle between those who support the children and those who support the sex offenders, as aptly illustrated by the polarizing final sentence of her book: “It is an either/or choice: we can protect the predators or the children” (p.116). The conclusion is reminiscent of the bullying style of the Bush/Cheney administration after 9/11: either you’re with us or you’re with the terrorists. But it is simply not the case that anyone who supports procedural protections such as a statute of limitations, the “enemies of reform” as she puts it, must be on the side of the sex predators and against the children, any more than that those who oppose torture are on the side of the terrorists. No doubt the author is motivated by a genuine and laudable concern to protect children from abuse. But it is also clear how easy it is in the pursuit of a good cause to lose one’s perspective and to begin to see it as a cosmic battle of good versus evil. In fact, those on both sides of the debate desire to protect children from abuse, but there is not likely to be a simple solution to the problem. It is to be hoped we can have a genuine debate even on this incendiary issue of how best to prevent child sexual abuse without dismissing the serious concerns about protecting the rights of individuals or institutions.

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© Copyright 2009 by the author, Whitley Kaufman.

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ELIGIBLE FOR EXECUTION: THE STORY OF THE DARYL ATKINS CASE

by Thomas G. Walker. Washington, DC: CQ Press, 2009. 284pp. Paper. $26.95. ISBN: 9780872894181.

Reviewed by James R. Acker, School of Criminal Justice, University at Albany. Email: acker [at] albany.edu.

pp.538-542

Just after midnight on August 17, 1996 a Hampton, Virginia bank surveillance camera recorded the chilling image of the driver of a pickup truck withdrawing money from an ATM while the man seated next to him – the truck’s owner, 21-year-old Eric Nesbitt – was held at gunpoint by a third man in the vehicle. Hours later, Nesbitt’s bullet-riddled body was found in neighboring York County. The ATM photos led to the arrest of the driver of the pickup truck, 26-year-old William Jones, and the man seen brandishing the gun, 18-year-old Daryl Atkins. In February 1998 Atkins was convicted of capital murder and sentenced to death. His case reached the United States Supreme Court four years later. In a 6-3 decision, the justices vacated Atkins’ death sentence and, renouncing their contrary ruling in PENRY v. LYNAUGH (1989), announced that the Eighth Amendment to the United States Constitution prohibits the capital punishment of mentally retarded offenders (ATKINS v. VIRGINIA 2002). Doctrinally, the ruling represented a major victory for opponents of the death penalty and for supporters of mentally retarded individuals. Ironically, Atkins gained little more than a reprieve from the landmark ruling that bears his name. Although he ultimately would be spared lethal injection, he teetered on the brink of execution after a Virginia jury rejected his own “Atkins claim” on remand.

While the Supreme Court’s 2002 decision and its antecedents are the centerpiece of Thomas G. Walker’s “ELIGIBLE FOR EXECUTION: THE STORY OF THE DARYL ATKINS CASE,” the narrative continuously evolves, taking twists and turns befitting an unlikely mystery novel. Indeed, the (apparent) last chapter in the case was written by the Virginia Supreme Court several months after the book’s publication (IN RE COMMONWEALTH 2009), a resolution that was anticipated in the volume’s pages and presumably soon will be announced in the companion website, http://walker.cqpress.com.

Walker, the Goodrich C. White Professor of Political Science at Emory University, confesses to having long been “intrigued” (p.x) by the prospect of undertaking an in-depth study of a major constitutional case. He chose ATKINS v. VIRGINIA (2002) and uses ELIGIBLE FOR EXECUTION to multiple ends: to lay bare the issues, rationale, and implications of the Supreme Court’s decision; to explain how a criminal case takes shape and progresses through the justice system and the courts; and to examine in greater detail the constitutional jurisprudence of capital punishment (pp.ix-x). The book [*539] is particularly edifying as “a reminder that important Supreme Court rulings on constitutional issues are not just about legal theories, doctrines, and precedents. These decisions involve real people – often society’s most vulnerable – who frequently have suffered catastrophic losses and have much at stake” (p.x).

ELIGIBLE FOR EXECUTION unfolds sequentially, beginning with the abduction, robbery, and murder of Eric Nesbitt. The crime details are followed by a description of the police investigation and apprehension of Jones and Atkins, and then the decision by prosecutor Eileen Addison to allow Jones to plead guilty to non-capital murder in exchange for his testimony against Atkins and to pursue a capital murder conviction and death sentence against Atkins. An interlude overviews the social and legal history of capital punishment, including the Supreme Court’s attempts to divine the meaning of the Eighth Amendment’s prohibition against cruel and unusual punishments by consulting and giving content to “the evolving standards of decency that mark the progress of a maturing society” (TROP v. DULLES 1958, p.101, plurality opinion). Nearly a decade before Atkins’ trial, as Walker explains, a divided Court had rejected Texas death row inmate Johnny Paul Penry’s claim that contemporary standards of decency precluded the execution of mentally retarded offenders (PENRY v. LYNAUGH 1989).

The issue of mental retardation would surface at Daryl Atkins’ trial and eventually dominate subsequent legal proceedings. Under Virginia law, only the actual killer can be convicted of capital murder; accomplices are not death penalty-eligible. Atkins was found guilty after the jury rejected his lawyers’ argument that the prosecution had failed to prove that Atkins, and not William Jones, shot and killed Eric Nesbitt. At the trial’s penalty phase, clinical psychologist Dr. Evan Nelson appeared as the only defense witness. He testified that he had interviewed Atkins, familiarized himself with Atkins’ medical and school records, and administered an intelligence test on which Atkins received an IQ score of 59. Nelson thereupon concluded that Atkins was mentally retarded. Under the Supreme Court’s ruling in PENRY, in effect when Atkins was tried, mental retardation did not exempt offenders from death penalty eligibility, although it could be offered as a mitigating factor for sentencing. Atkins’ jury deliberated only an hour and forty minutes before recommending the death penalty. The Virginia Supreme Court vacated Atkins’ death sentence on appeal because of erroneous jury instructions, but Atkins was again sentenced to die following a new hearing at which the prosecution offered its own expert witness, Dr. Stanton Samenow, who disputed that Atkins was mentally retarded. Although Samenow failed to administer a comprehensive standardized intelligence test, he had reviewed various records and interviewed Atkins, finding it significant that Atkins correctly used words such as “decimal” and “parable” and knew the identities of the president of the United States and the governor of Virginia (p.152). With two judges dissenting, the Virginia Supreme Court this time affirmed Atkins’ death sentence (ATKINS v. COMMONWEALTH 2000), setting the stage for litigation in the U.S. Supreme Court. [*540]

Atkins’ case became a constitutional watershed by happenstance. The Supreme Court had previously granted certiorari in a North Carolina case involving condemned murderer Ernest McCarver to re-examine whether, in light of significant shifts of legislative policy in the wake of PENRY, executing mentally retarded offenders remained consistent with evolving standards of decency and the Eighth Amendment. Atkins’ attorneys had not even presented the Eighth Amendment issue in their original cert. petition, which they amended in light of the justices’ decision to consider that question in MCCARVER. When North Carolina enacted legislation exempting mentally retarded offenders from capital punishment, the high court dismissed McCarver’s case as moot and granted certiorari in Atkins. Walker describes how Virginia’s attorneys and Atkins’ defense team, now led by New Mexico law professor James Ellis, an expert and leading advocate for the rights of mentally retarded individuals, prepared for and presented their cases in the Supreme Court, including their strategies to persuade the justices most likely to represent the swing votes. His analysis of the eventual 6-3 ruling that vacated Atkins’ death sentence and announced the constitutional prohibition against executing mentally retarded offenders is informative and accessible to readers not versed in law. Although the ruling was a jurisprudential breakthrough, Daryl Atkins’ case was far from over. As often occurs, Justice Stevens’ majority opinion concluded by directing that, “The judgment . . . is reversed and the case is remanded for further proceedings not inconsistent with this opinion” (ATKINS v. VIRGINIA, 2002, p. 321).

For Atkins, this result meant only that his scheduled execution was held in abeyance pending further state court proceedings to determine whether he in fact was mentally retarded. A jury was convened for the sole purpose of deciding whether Atkins could establish (by a preponderance of the evidence) that he came within Virginia’s definition of mental retardation, which required proof of “significantly subaverage intellectual functioning” as demonstrated by a standardized IQ test, “significant limitations in adaptive behavior,” and that the relevant symptoms were manifested prior to age 18 (p.243). “We’re all rookies here,” declared the trial judge presiding over Atkins’ hearing, the first of its kind in the state (p.245). The judge was right. After the jury determined that Atkins had not established that he was mentally retarded, thus reinstating the death sentence, the Virginia Supreme Court found on appeal that the proceeding was procedurally flawed. It remanded the case “for a new proceeding . . . to determine whether Atkins is mentally retarded” (ATKINS v. COMMONWEALTH, 2006, p.102).

Then came the truly startling development in the case – in Walker’s words, “a final surprise” (p.262) that was as unexpected as it was removed from the Supreme Court’s epochal ruling. After a decade’s silence, the attorney who had represented William Jones, Atkins’ accomplice in the robbery and murder of Eric Nesbitt, came forward to disclose what had occurred during discussions involving Jones, himself, and prosecutors as they interviewed Jones in anticipation of his testifying against Atkins at his original trial. Although the bulk of the lengthy session [*541] had been tape recorded, and the recording shared with Atkins’ trial lawyers, Jones’ attorney maintained that the tape recorder at one point was turned off while Jones was coached by the prosecutors to make his testimony more damning. The prosecutors adamantly denied improperly coaching Jones, but they conceded that the tape recorder had been silenced for approximately 16 minutes while they discussed Jones’ narrative with him. They did not reveal the existence of the 16-minute gap to Atkins’ attorneys, nor disclose the contents of what they had discussed with Jones during that interval. Atkins’ attorneys secured a hearing, alleging that the prosecution had breached its duty under BRADY v. MARYLAND (1963) to disclose exculpatory evidence. The trial court agreed, ruling in January 2008 that “the suppressed information probably would have affected the outcome of Daryl Atkins’ trial had it been revealed to Atkins’ counsel in 1998” (IN RE COMMONWEALTH, 2009, pp.*2-*3). The court then exercised its discretionary authority under Virginia law to reduce Atkins’ death sentence to life imprisonment, a judgment that was upheld by the Virginia Supreme Court following the publication of Walker’s book (id.).

In addition to navigating the factual and legal issues surrounding Daryl Atkins’ case, tracking the commission of the crime through the trial, appeals, Supreme Court litigation, and the eventual denouement, ELIGIBLE FOR EXECUTION digresses frequently to offer readers elementary descriptions of matters ranging from the workings of the adversarial system of justice, to the hierarchical structure of the judiciary and the function of precedent, the importance of federalism, and related topics. Readers familiar with the rudiments of criminal justice, law, and government will find these excursions mildly tedious. The book is written at an introductory level, appropriate for undergraduates rather than more advanced students or specialists in capital punishment, and is expository rather than deeply analytical. Those already versed in death penalty law are unlikely to find fresh insights about litigation strategies, doctrine, or emerging and continuing developments concerning “Atkins issues” (see, e.g., Blume, Johnson and Seeds 2009). These observations about the volume are not offered as criticisms, but rather as signposts to help direct readers with more and less familiarity with issues of criminal justice, law, and capital punishment accordingly. Undergraduate students, particularly in criminal justice and political science, and less initiated readers generally, will find Walker’s ELIGIBLE FOR EXECUTION to be informative and captivating. The book is a sobering case study at the intersection of biography and constitutional doctrine, bearing kinship to the classic tradition of literary tragedy.

REFERENCES:
Blume, John H., Johnson, Sheri Lynn and Seeds, Christopher. 2009. “Mental Retardation and the Death Penalty Five Years after Atkins.” In Charles S. Lanier, William J. Bowers and James R. Acker (eds), THE FUTURE OF AMERICA’S DEATH PENALTY: AN AGENDA FOR THE NEXT GENERATION OF CAPITAL PUNISHMENT RESEARCH. Durham, NC: Carolina Academic Press. Pp.241-259. [*542]

CASE REFERENCES:
ATKINS v. COMMONWEALTH. 2000. 534 S.E.2d 312 (Va.).

ATKINS v. COMMONWEALTH. 2006. 631 S.E.2d 93 (Va.).

ATKINS v. VIRGINIA. 2002. 536 U.S. 304.

BRADY v. MARYLAND. 1963. 373 U.S. 83.

IN RE COMMONWEALTH. 2009. ___ S.E.2d ___, 2009 WL 1566819 (Va., June 4, 2009).

PENRY v. LYNAUGH. 1989. 492 U.S. 302.

TROP v. DULLES. 1958. 356 U.S. 86.

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© Copyright 2009 by the author, James R. Acker.

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THE CONSTITUTION OF THE UNITED STATES OF AMERICA: A CONTEXTUAL ANALYSIS

by Mark Tushnet. Oxford: Hart Publishing, 2009. 288pp. Paper. £12.95/$28.00. ISBN: 9781841137384.

Reviewed by Michael P. Allen, Professor of Law, Stetson University College of Law. Email: allen [at] law.stetson.edu.

pp.534-537

THE CONSTITUTION OF THE UNITED STATES: A CONTEXTUAL ANALYSIS is the second volume in a planned series discussing the constitutional systems of various counties around the world. Harvard University law professor Mark Tushnet provides his highly readable take on the Constitution of the United States in this book. As discussed below, Tushnet’s effort is quite successful for those readers with a solid, pre-existing understanding of the basic American constitutional structure. It may not be as useful for those starting with less of an understanding of the United States Constitution.

The key to understanding the strengths and principal weakness of this book is its Introduction. Tushnet explains that his focus will be less on the “written” Constitution and more on the “efficient” Constitution (borrowing the term coined by Walter Bagehot.). As Tushnet explains, this focus flows from three facets of the written Constitution: it “is old, short and difficult to amend” (p.1). As such, true constitutionalism in the United States is a product, Tushnet opines, of two features. The first, and less important, factor is the Supreme Court’s interpretation of the written Constitution. The second, and primary, factor in understanding the efficient Constitution is politics. As Tushnet writes: “one can understand how the US government actually operates – that is, the efficient constitution – only by seeing it as a government fundamentally structured around the existence of two nationally organized political parties” (p.5).

Tushnet carries out the project he describes in the Introduction in seven chapters. True to his promise, these chapters focus little attention on the terms of the written United States Constitution and only marginal consideration of the Supreme Court’s interpretations standing alone. Instead, American constitutional law is principally described through the lens of politics in the United States, including how politics affects the Supreme Court and its constitutional decisions. Chapter One is an overview of United States history designed to provide context for the discussion that follows. I should note that Tushnet does an outstanding job dealing with the daunting task of providing a concise yet informative overview of over two hundred years of American history. Chapters Two through Four discuss the “constitutional politics” of the legislative, executive, and judicial branches of the United States national government respectively. Chapter Five considers the vertical structural features of government in the United States and its system of federalism under the Constitution. Chapter Six focuses on the [*535] Constitution’s protection of individual rights. Finally, Chapter Seven addresses the formal and, more importantly, the informal means by which constitutional change occurs.

For readers with a solid understanding of basic American constitutional law, that is someone who has at least the understanding of a student at end of the basic course in constitutional law in a law school, every part of this book works well. The reason is that such a reader can fully appreciate Tushnet’s almost masterful weaving together of history, politics, and constitutional theory to explain the development of contemporary constitutional doctrine. While such a reader will not agree with every interpretation of the efficient Constitution Tushnet advances, he or she will no doubt enjoy the experience of digesting the material in this volume.

While one could select many examples to illustrate the best features of Tushnet’s effort, two suffice to make the point. As mentioned, Chapter Two discusses the “constitutional politics of the legislative branch.” After a very brief description of congressional structure under the Constitution, the chapter focuses almost entirely (as its conclusion notes) on the reality that “[p]olitical parties, unmentioned in the written constitution, are the tools that define Congress” (p.77). To reach that conclusion, Tushnet explores the growth and development of political parties over the course of American history. He then describes how a number of issues such as candidate selection, legislative redistricting, and campaign finance help construct the operation of the efficient Constitution. This discussion is particularly interesting in the way in which it turns the normal take on such issues on its head. Instead of focusing on how the Constitution shapes campaign financing, for example, Tushnet describes how campaign financing actually affects the Constitution. This general type of discussion continues in Chapter Five dealing with federalism, which in many ways seems like a continuation of many of the themes present in Chapter Two. That discussion is equally as effective.

Chapter Six’s discussion of individual rights also highlights the book’s positive features. Instead of approaching individual rights under the Constitution as a collection of discreet, if connected, categories (e.g., free speech, due process, equal protection, and so on) Tushnet provides an intellectual history of sorts that connects various changes in American constitutional law. To take one example, the chapter links the growth of the so-called rights jurisprudence generally in the Twentieth Century to three principal developments: (1) lawyers’ use of “rights litigation;” (2) political parties in conjunction with social movements; and (3) the movement of rights protection from Congress to the courts (pp.221-33). Of course, such observations are not unique to Tushnet. However, he is able to explain these complex matters well and connect them to a broader consideration of constitutional liberty in a highly readable manner. The discussion is an excellent example of how a contextual analysis should work.

One final useful feature of the book that is worthy of mention is its use of references to other works. There is an inherent difficulty concerning citation in writing a text that provides an overview [*536] of something as complex as the American constitutional order over the past two centuries. One must make broad statements while at the same time providing at least some detail. Given this, it is tempting when facing such a challenge to either omit most references or, conversely, overwhelm the reader with citations to other, more specifically focused works. Tushnet avoids both pitfalls. He provides enough textual references in footnotes to substantiate his assertions while not disrupting the flow of the text in a material way. Moreover, at the end of each chapter he assembles a brief list of additional resources that can be used to extend the discussion. These references are an additional positive aspect of the work.

Despite its many strengths, there is one significant weakness with this book. For readers who are unfamiliar with what Tushnet describes as the written Constitution (or at least the principal ways in which that document has been interpreted by the courts), there is a real danger that the book provides an insufficient foundation to understand the American constitutional system. To borrow from the classic movie THE WIZARD OF OZ, Tushnet’s approach is akin to immediately focusing discussion on the “man behind the curtain.” The problem is that if one does not have a basic understanding of the Wizard, it is impossible to fully appreciate a discussion of the person pulling the levers who is meant to be hidden from view.

Interestingly, one of the examples showing the book’s strengths also demonstrates this principal weakness. As described above, Chapter Six’s discussion of individual rights is a fascinating account of how the political process shaped the growth of constitutional law. Yet, one can only appreciate that discussion if one has an understanding of what the cluster of individual constitutional rights looks like. It may be the case as Tushnet argues that “[t]he central place rights have in the US constitutional culture would make it foolish to attempt to survey the substantive law or individual rights under the US Constitution” (p.187). But without at least some attempt to paint such a picture with even a broad brush it seems unlikely that a person unfamiliar with basic principles of American constitutionalism will get the full benefit of the discussion.

Perhaps the chapter of the book that works the best in terms of speaking to both types of reader – that is the person with a basic understanding of American constitutional law as well as the person without that base of knowledge – is Chapter Three. That chapter discusses the “constitutional politics of the executive branch.” Tushnet remains faithful to his claim to focus on the efficient Constitution less than the written document. However, in this part of the book he weaves into his discussion of politics greater mention of what can be termed the basics of the written constitutional structure and its interpretation. It does not appear that anything is lost in terms of the higher level discussion in other chapters. Indeed, one may say that something important is gained, at least for the relatively uninitiated.

In the end, one should not take the last several paragraphs to suggest that this is not an excellent book. It most certainly is, which should not come as any [*537] surprise to anyone who is familiar with Professor Tushnet’s work. If the book were meant only for those with a solid grounding in American constitutional law, I would have almost nothing critical to write. It is only for that portion of the potential audience that has relatively less knowledge that I find fault. But none of this should stop anyone from reading the book. One might simply have to read this volume after obtaining some more basic knowledge about American constitutionalism.

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© Copyright 2009 by the author, Michael P. Allen.

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THE IRAQ WAR AND INTERNATIONAL LAW

by Phil Shiner and Andrew Williams (eds). Oxford: Hart Publishing, 2008. 358pp. Hardback. £30.00/ $63.00. ISBN: 9781841136691.

Reviewed by Maxwell O. Chibundu, University of Maryland School of Law. Email: mchibundu [at] law.umaryland.edu.

pp.525-533

A frequently rehearsed story tells of an encounter between the venerated Chinese Prime Minister, Zhou En-Lai and a worldly Westerner. When reportedly asked for his thoughts on the French Revolution, the Eastern sage answered “it’s too early to say.” That observation needs to be taken to heart by International Lawyers for whom the 2003 invasion and occupation of Iraq, and the measures taken to suppress the resulting insurgencies and strife currently appear as momentous “game changing” events. If, looking back a century from now these events are seen to have successfully migrated from the hyperbole of journalistic front-page stories into that realm inhabited by the likes of the French Revolution, it is likely to be, not because of the uniqueness of the violent overthrow of a “Third World” potentate and his depleted third rate army by the skilled military, political and economic might of two of the most technologically advanced and coordinated post-industrial states of our time, not because of the duplicitous and/or manufactured reasons for going to war, not because of the use of falsified or manipulated “intelligence,” not because of the hyperactive media propaganda and hysteria about the existential threat to humanity supposedly presented by an unchecked recalcitrant “rogue” regime erroneously said to be sneakily and illegally in possession of weapons of mass destruction, not because of the depth of destruction, human sufferings and misery visited on an already blighted country, and especially not because of the apparently infinite capacity and hubris of imperial states to persuade themselves and their citizens of their innate altruism and ability to bring peace, happiness, justice and “civilization” to other societies; prior historical examples of all of these are too numerous in the West’s encounters with the rest for the Second U.S.-Iraq War and its aftermath to be anything but another illustration of axiomatic realities. If this Second “Gulf War” is to afford a more or less unique didactic legacy, it is as likely to be found in the ways that international law discourse shaped or has been shaped by that war. THE IRAQ WAR AND INTERNATIONAL LAW, edited by Phil Shiner and Andrew Williams, constitutes the engagements of twelve international lawyers in such a discourse.

The thirteen essays collected in the volume (Williams has two contributions) cover a broad range of issues including rehash of some of the debates over the legality under International Law of the grounds officially advanced for the attack on Iraq; the impact of the war on the jurisdiction of English courts and the European Court of Human Rights to engage in the substantive review of the field activities of British military [*526] personnel; the legal obligations of the United Kingdom under various international agreements that are implicated in her conduct of the war; treatment of possible claims of violations of International Human Rights and Humanitarian laws; the intersections of both sets of laws and the application of extraterritorial concepts in their spheres; emerging trends in the extra-treaty regulation of the proliferation of so-called “weapons of mass destruction” (what Daniel H. Joyner in his contribution terms “counter-proliferation”). The central themes of the contributions, however, indisputably revolve around the legal obligations of the United Kingdom under International Law for her participation in the waging of the war against Iraq and the subsequent occupation of that country.

The investigations, Andrew Williams says in his introductory chapter, are best organized under three themes: international legal constraints on countries going to war – so-called “jus ad bellum,” the regulation of the manner in which war is fought (jus in bello), and the obligations that occupiers have in the temporary administration of conquered territory (p.9). The relevant legal material are ably presented and competently discussed. A teacher of International Law who is looking for a compact volume of essays that intelligently critiques the Tony Blair Government’s participation in the war can do a lot worse.

That there is complete consensus among the contributors as to the illegality of the war is neither surprising nor a poignant criticism of the collection, even if a token representation of British officialdom would have been welcomed. (We are told that an adviser to the Blair Government had agreed to pen a contribution for the collection but failed to do so) (p.14, n.16). The writers all are lawyers, and in many cases regular practitioners steeped in the art of advocacy: purporting to present the opposition’s claim before demolishing it. The legal doctrines on the use of force – especially with regard to jus ad bellum, and almost equally so in the case of jus in bello – are now so reasonably familiar that it is no stretch to call them boringly conventional. The writers thus present no genuinely controversial arguments, when relying on many of the disclosures unearthed since March, 2003, they demonstrate that the attack and invasion of Iraq could not be justified under any of the standard legal arguments for the lawful use of force by one state – or group of states – against another. Although extensively discussed and presented in Chapters 2, 4, 5, 7, 8 and 9, Sir Nigel Rodley’s contribution in Chapter 12 succinctly and with creditable dispassion confidently shows why, under International Law, as it now exists, no genuinely tenable legal argument can be advanced by the United Kingdom or United States for their use of force against the territorial integrity of Iraq or to suppress the political independence of that country. The typical arguments of “self defense” (even when extended to encompass “preventive” (or, as it is more commonly termed “preemptive”) war, when properly understood), Security Council authorization and even “humanitarian intervention” (assuming the last to be a valid gloss on the exceptions to the prohibition of the use of force), were simply unavailable. [*527]

The pedagogical core of the collection exists not in the now pedestrian arguments about the proper interpretation of Security Council Resolution 1441, nor the scope of the self-defense exception to the provisions of Article 2(4) of the United Nations Charter, but in the claims about U.K. legal liabilities for her conduct of the war and her participation in the occupation of Iraq. Because U.K. policies and actions charitably can be viewed as sidekicks of those of the U.S., the material here is potentially useful not only for the exploration of the scope and reach of international rules on the waging of war and the administration of conquered territories, but more significantly for investigating the status under International Law of shared responsibility in these areas. Within domestic or national legal orders, questions of “joint or several liability” for conspiracies, complicity, common actions, common purposes, joint enterprises, as well as vicarious, secondary and/or derivative liability in similar circumstances pose some of the thorniest issues in fashioning and assigning culpability for wrongful conduct where two or more actors are involved. At core, culpability tends to be premised on the existence of some notion of fault, and while intentional behavior may provide the clearest illustration of fault, deterrence policies often aim for a broader sweep. One might say, the idea is to put on an actor a duty not only to scrutinize her own behavior, but to provide her with an incentive for scrutinizing the conduct of a co-participant in the venture. If this is an area that has been extensively explored in national laws, its investigation in the international legal order is very much embryonic. This doubtless is in part because of the relative newness of the coming of age of International Law (at least as a practitioner engagement), but it is also surely a result of the nature of International Law as primarily “consent based.” In the case of the Iraq War and occupation, the ordinary complexities are compounded by the ambiguous roles played by the Security Council – first in refusing to adopt a “war authorizing” subsequent Resolution to 1441, and then in accepting a “successful” invasion as a fait accompli, and seemingly seeking to impose terms and conditions for the occupation and administration of Iraq, notably in Resolutions 1483 and 1511.

Considerations of co-participant liability by the United Kingdom for policies and actions crafted primarily in Washington are especially interesting because of the lack of symmetry between British and American commitments to and undertakings in International Law. In particular, the British like the vast majority of their European neighbors, and unlike the United States, have signed onto most of the newly fanged institutions and policies that have given a genuine bite to the barks of International Law. British officials, contend some of the writers, face the real possibility of being hurled before the International Criminal Court, and their policies challenged and invalidated by the European Court of Human Rights under the European Convention on Human Rights. (See contributions by William Schabas, Christine Chinkin, Rabinder Singh, Keir Starmer and Bill Bowring.) Similarly, the U.K.’s accession to several other treaties to which the U.S. is not a party may create additional legal hazards for her (Stefan Talmon, p.203). An exceptional (one [*528] might say uniquely interesting) discussion relates to possible liability by British officials for the conduct and policies of the Coalition provisional Authority. This was an administrative body set up to run defeated Iraq. But as the United States and the rest of the world learned, the toppling of the statue of Saddam Hussein, far from being indicative of a “mission accomplished,” launched Iraq into internecine conflict that progressively got worse until at least January, 2008. Meanwhile, the CPA, under the leadership of the American viceroy, Paul L. Bremer, was charged with running Iraq’s affairs until the nominal “return of sovereignty” to Iraqis in June 2004. United Kingdom officials, and indeed the nationals of over 29 other countries were employed by the CPA, a body that seemed sui generis in International Law. Thus, an interesting issue in International Law is the extent to which its activities and those of its employees can be attributed to the likes of the United Kingdom (or even the United Nations) that provided support but had little say in the making of the policies of the CPA.

These and other “secondary liability” issues provide interesting insights into the international legal order that can and should be profitably exploited in the pedagogical setting of the class room. The extent to which the contributors have done so adequately in this volume is more debatable. The stance that one takes in no small measure depends on the extent to which one shares the view that International Law, as the vast majority of the contributors to the volume seem to view it, is primarily about its capacity to obtain correct behavior through the imposition of sanctions on wrongdoers.

This brings us to my first substantial problem with the volume. With one exception (of which more will be said shortly), the contributors appear to view the utility (if not conception) of International Law almost exclusively through the lens of judicially decreed enforcement of prescribed texts. And so we have the rather incongruous but far from unusual depiction of International Law as formal texts to be enforced by judges, and whose meaning is normatively self-evident to the contributors. Because this objective is ends-driven, the writers often overlook perfectly sensible debates about the proper distribution – at least in any functioning liberal democratic society – between rule by judicial oligarchies and the prerogatives of an executive branch that is accountable to an electorate. Moreover, this perspective seems to consciously ignore or significantly discount the potential for systemic harm to judicial institutions themselves, and to their intended primary beneficiaries, those who have suffered injury from the breach of reasonably narrowly defined legal rights. Two examples illustrate the point.

Phil Shiner and Rabinder Singh perhaps rightly praise the apparent emergence in English jurisprudence of a less categorical stance against judicial review in the foreign affairs arena, and a less deferential judicial attitude to executive branch assertions of legality, but the force of their arguments would have been significantly improved by indications of their awareness of some of the complexities the judicialization of these so-called “political questions” may raise. There is, for example, in the United States a rich literature born out of experience, and while my sentiments and [*529] those of other readers may well concur with theirs, I would feel a lot more comfortable recommending these contributions if they had taken on and debunked such rather obvious shortcomings as the manipulations, not only of the definition and scope of the concept of “political question,” but even more radically, that of the concept of “standing” (or, as they say in international law, of “admissibility.” While the trade-offs may not be susceptible to easy quantification, one cannot ignore the possibility that conceptually enlarging judicial intervention may erode the frequency and nature of the grant of relief, and the respect accorded such relief.

Similarly, in his contribution, Bill Bowring labors hard to sustain an argument as to why the United Kingdom might be called under the European Convention on Human Rights to account for its activities in Iraq by the European Court of Human Rights. Either discounting or overlooking outright salient prior rulings of the Court on the reach of the Convention to activities in Iraq (one of which, SADDAM HUSSEIN v. U.K. AND OTHERS, would seem to have telegraphed the views of the Court) (Chinkin, p.173; Talmon, pp.215-216), Bowring chose to anchor his analysis on the solicitude the Court has shown for human rights claims under the Convention against the Russian and Turkish Governments. But rather than using this opportunity as a gateway for investigating or pondering why the Court seemingly has treated the latter set of claims differently from those asserted against European member states of NATO for their alleged violations of the Convention in the Balkans (BANKOVIC v. BELGIUM), or against individual European states for their alleged negligence in carrying out policing functions in the Balkans (e.g. BEHRAMI v. FRANCE, SARAMATI v. NORWAY), Bowring strains to make the quite incredulous argument that the Court’s Russian and Turkish cases, rather than those of the Balkans are applicable to the United Kingdom. The quite implausible explanation offered is that the former cases involve “wars of colonialism or imperialism.” Yet, there is not a single citation to the Court’s opinions that indicate that the members of the Court view “colonialism” or “imperialism” (unlike extraterritoriality or the implied judicial review of Security Council policy decisions) as legal criteria to be taken into account in its jurisprudence, let alone whether the Court would consider U.K. participation in the Iraq War as falling into the “colonial” or “imperial” category. The more plausible explanation for the arguments advanced in the essay is that having written a paean to the Court’s activism in seeking to make Russia account for her policies in Chechnya, Bowring simply saw the unpopularity of the United Kingdom’s participation in the Iraq war as a vehicle for lauding and encouraging the Court’s decisions on Russia. But that activism has not been an unqualified success. Among other consequences, Russia has effectively paralyzed the work of the Court by refusing to ratify fairly minor procedural changes that all agree would enhance the efficiency with which the Court carries out its work. Perhaps the Court’s activism is worth whatever roadblocks to justice it has generated for the ordinary petitioners seeking relief – Russian and non-Russian alike – but at least it behooves writers to consider such trade-offs, [*530] rather than as here blithely ignoring their existence.

The approach to the treatment of International Law as “hard law” by insistence on adjudication is not infrequently paralleled by a competing tendency to undermine the strength of the claim by situating it within a setting which, while flattering to the normative preferences of the writer, does so by ignoring the realities of politics and power in the international order. Thus, despite copious citations to formal legal documents, the commentators in the main present their claims and arguments in hypothetical (if not illusory) terms. William Schabas’ suggestion that British officials might be prosecutable under the Rome Treaty for the crime of aggression, while facially less plausible than most of the other supposedly legal claims advanced here, is in fact representative of the tenor of the arguments. Many of the contributors simply conflate the prescriptions of international law with their preferred normative international legal order. Remarkably absent from these engagements is any serious effort to confront realistically the trade-offs between formal legal rules and socio-economic and political realities that decision-makers juggle. This is not to say that the writers are unaware of these trade-offs, but they studiously avoid having to confront them, and in the process, they impoverish the ample raw material that is otherwise at their disposal. International Law, in this volume, is treated entirely as an autonomous and self-contained activity. The concern of the writers is to demonstrate how international actors, especially British officials, have fallen short of legal prescriptions, and to explain how they can be or should be chastised for their shortcomings. For those who find the core failing of International Law to be the problem of “impunity,” this kind of argumentation is doubtless morally satisfying. For those who are concerned about the interplay between International Law and other societal forces such as military power, economic resources, media culture and technocratic expertise, just to name a few, the practice of International Law, if it is to be taken seriously, must transcend the ritual rehearsal of normative preferences and prescriptive rules.

Andrew Williams, in his introduction, suggests the existence of at least five approaches to or outlooks on International Law. These he identifies as follows: First, those who place “reliance on international law as though it were a fully formed rule system.” Second, those who “look to reconcile international law with new world circumstances” by “reconcil[ing] it with practice while retaining the basic tenets of the law.” Third, “those who look to a fundamental reformation of international law, making their starting assumption that international law, or some of its significant components, is critically flawed and requires reform.” Fourth, those engaged in “tactical resistance” to International Law “by using international law and its institutions as well as domestic processes of law, advocacy networks and civil society activism in all its multiple forms.” Finally, “we might consider the development of a project of rebellion. This encompasses those determined to rebel against international law and its institutions by framing action both inside and outside its parameters, establishing alternative methods for resolving [*531] conflict and achieving justice” (pp.4-6). This is a rich and inviting menu for a book on International Law, and if the collection came anywhere close to delivering these offerings, even if ultimately unsuccessful, this would be a terrific book indeed. Unfortunately, with one exception, the constellation of essays falls at most within the first two approaches. It is true that Phil Shiner, in his contribution, does invoke litigation by “peace” activist groups (such as the Campaign for Nuclear Disarmament) to press his arguments about changing attitudes towards justiciability in English courts (presumably vindicating Williams’ fourth approach), but the arguments are so steeped in the formal application of conventional international legal doctrines that they overwhelm the claimed innovative methodology of “tactical resistance” by “civil society.”

The one contribution that seriously attempts to take the reader outside Williams’ realm of those who view International Law “as though it were a fully formed rule system” is placed at the back-end of the collection. This placement, whether intended or otherwise, symbolically serves to underscore the marginalization in contemporary International Law of the views espoused by the contributor, Jayan Nayar. For its distinctiveness, Nayar’s views are worth a few inches in this review.

Nayar contends that “indeterminacy prevails” in contemporary International Law, and in support of the claim identifies three distinctive schools of thought. There are the lawyers who will argue over the legality of the Iraq war by scrutinizing “the texts of relevant international treaties and varyingly determine whether such and such an act falls within the ambit of the permissions, prohibitions, discretions and obligations therein enshrined” (p.329). (This is clearly the dominant, indeed excepting Nayar, exclusive school represented in this volume). Among such lawyers, whom Nayar calls “UN Charterists,” some will find “hope” in the debate over the legality of the Iraq War because the debate suggests the relevance of international norms in constraining behavior, while others will despair because of the failure of those norms to restrain seemingly illegal behavior. The differences between these two groups is in fact not about the existence of rules, but the extent to which those rules determinately can be pressed into the service of particular ends such as “power” or “justice” (pp.333-334).

An alternative entry into International Law discourse is provided by the so-called “Third World Approach to International Law” (“TWAIL”). According to Nayar, “TWAIL-ian perspectives are grounded on a general critique of the past and continuing, colonial/imperial foundations of international law” (p.335). Proponents of TWAIL are said to have three objectives: First, “to understand, deconstruct, and unpack the issues of international law as a medium for the creation and perpetuation of a racialized hierarchy of international norms and institutions;” , to construct and present an alternative normative legal edifice for international governance; and third, to eradicate the conditions of underdevelopment in the Third World “through scholarship, policy, and politics.” While sympathetic to TWAIL’s deconstructive and critical projects, Nayar trenchantly (and I think [*532] correctly) points out that TWAIL has fallen significantly short of realizing its constructive and programmatic projects as outlined in its second and third objectives. Nayar is in fact doubtful that these objectives can ever be realized in no small measure because proponents of TWAIL, despite their desire to create a transformational international legal order, are bound up both by training and placement within that legal order. Their critiques may be on the mark, and their rhetoric vigorous, but their proposals amount to little more than changing the arrangement of the seats on the deck, and here, they will find that other competitors possess more resources with which to order the seating arrangements.

Nayar then offers up as a third alternative “Cosmopolitan Subaltern legality.” This is “law from below” supposedly rooted in “a people’s movement orientation to international law which seeks to reflect and articulate voices of the dispossessed and marginalised, out of ‘absence’ into ‘emergence’ as it were” (p.342). It is law that requires that “suffering” be taken seriously. And it is offered as a response to “imperial” and “hegemonic” International Law. The claims of this “law” are said to be grounded in such postulates as: “[w]e exist within a global system, not an international system. Any decolonisation imagination must therefore delink from the state/international duality that presupposes much political framing;” “what is traditionally regarded as international law now falls increasingly within an encapsulating global law regime where, contrary to the international legal precept of state sovereignty as the primary determinant of law, it is the global law precept of devolved management which defines the statist division of the world into legal zones of control. Any decolonisation imagination must therefore delink from the national law/international law duality that presupposes much legal framing;” and “[t]he global law system is constructed and put into effect by global legal actors,” notably “the new coordinated networks of regulation policed by national regulatory authorities,” and “the transnational regimes of global social domains exemplified by the new lex mercatoria” (pp.343-344). What this means, argues Nayar, is that International Law as a state-based regime must be rejected, apparently because the state cannot be decolonized or separated from its subservient function as the transmitter and enforcer of hegemonic interests. Legality becomes (or perhaps emerges) from the internecine struggles of “the people” against the state, and their rejection of the claimed “civilizing” mission of law (pp.345-346). The role of international lawyers, says Nayar, is to recognize and affirm the legitimacy of that struggle (p.347).

I think there is much with which to quarrel in this portrait, not the least of which is the vagueness of the affirmative program prescribed. But that is not the purpose of this review. That purpose is to point out the differences between Nayar’s arguments and those advanced elsewhere in the collection.

What then to do with this volume? Much has been written about the Iraq War, and international lawyers, as much as any other recognizable group (with the possible exception of fighting soldiers and self-exculpating politicians) have done their fair share in the wanton [*533] destruction of forests to make self-serving claims. Yet, the collection does gather in a single volume competently written essays that explore from the vantage point of British liberal legal internationalists (or, in Nayar’s phrasing “UN Charterists”) the miscues and potential liabilities of their Government in going to war in Iraq. While, as might be expected, the quality of the essays is uneven, and while none is spectacular, many – especially those that seek to address co-participant liability in International Law – provide rich material for class room discussions. I wish the writers did a bit more, such as attempting to infuse discussions of international rules with unavoidably intertwined issues in international politics or international sociology. If the bulk of this collection is representative of the claimed “middle road” between “American Voluntary” and “European Absolutist” approaches to International Law that is supposedly offered by the English, the alternative can benefit from more seasoning.

CASE REFERENCES:
BANKOVIC v. BELGIUM AND OTHERS (App No 52207/99) 11 BHRC 435 (Judgment of 12/12/2001).

BEHRAMI v. FRANCE (App No 71412/01) (Judgment of 05/31/2007).

HUSSEIN (Saddam) v. UK AND OTHERS (App No 23276/04) 42 EHRR 16 (2006).

SARAMATI v. FRANCE, GERMANY AND NORWAY (App No 78166/01) (Judgment of 05/31/2007).

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© Copyright 2009 by the author, Maxwell O. Chibundu.

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HOUSING, LAND AND PROPERTY RIGHTS IN POST-CONFLICT UNITED NATIONS AND OTHER PEACE OPERATIONS: A COMPARATIVE SURVEY AND PROPOSAL FOR REFORM

by Scott Leckie (ed.). New York: Cambridge University Press, 2008. 390pp. Hardback. $85.00/₤50.00. ISBN: 9780521888233. eBook format. $68.00. ISBN: 9780511460777.

Reviewed by Allan K. McDougall, Professor Emeritus, Political Science, University of Western Ontario. Email: akmcdll [at] uwo.ca.

pp.522-524

HOUSING, LAND AND PROPERTY RIGHTS IN POST-CONFLICT UNITED NATIONS AND OTHER PEACE OPERATIONS comprises a set of detailed case studies of UN involvement in housing and property rights issues. The book delivers on its title. Scott Leckie is an international human rights lawyer with extensive experience in numerous international theatres. All of the authors have practical and detailed experience in at least the mission they are analyzing. Leckie introduces the book and concludes it with eight recommendations for a global policy on housing, land and property rights in post conflict situations. An institutional framework for the implementation of that policy is then defined. The recommendations are not naïve. Leckie acknowledges the importance and uniqueness of each situation, but he argues, using the data amassed in the case studies, that his recommendations must be addressed if international peace operations are to have the capacity to address the rights to property defined in international law.

The book assumes that a conflict is over and that peacekeeping is in place. The challenge is to solve conflicts over property rights as an aspect of returning the population to peace. As Leckie states “The agonizingly slow recognition that the resolution of land- and property-related disputes following war is one of the cornerstones of any sustainable peace operation has proven frustrating for those charged with unraveling the chaos of displacement and restoring the rights of survivors” (p.xvii).

The first case study, on Cambodia, provides a good historical context and an introduction to the challenges posed by multiple shifts in property ownership, the lack of documentation in traditional systems, and the resultant complexity of unraveling land issues. The second case, on Kosovo, adds an institutional dimension to an analysis of the problems surrounding property rights. In both cases the literature on international property rights and United Nations legal documents frame the discussion. Experiences of peacekeeping in East Timor, the Solomon Islands and Bougainville accentuate the complexity of matching expectations inherent in individual rights with customary practices in defining rights to physical assets (see p.135). Cases on Afghanistan, Burundi, Rwanda and DR Congo follow. These cases follow the same pattern as the earlier ones, describing the emergence of an international property rights regime, introducing the history of the conflict, and describing the efforts of the UN mission and peace agencies [*523] insofar as they address, or fail to address, property and housing issues. The most institutional analysis is the case focusing on Iraq. Possibly reflecting the size of the international intervention and its efforts to create a new sovereign entity, the chapter analyzes the migration of restitution systems as property rights are addressed. The iterative quality of housing and property rights administration leads to a number of recommendations including “the consideration of a more unified policy approach to this critical human rights issue.” Finally a case on Sudan is written in a more futuristic tone attempting to harness the experience of earlier international agencies to the challenge of preparing for anticipated returning populations.

The book includes an interesting chapter acknowledging that the presence of well paid UN and International Peace agency employees in post-conflict areas skews property values and housing prices. A large contingent thus exacerbates the housing issues experienced by the populations in these regions. No solution is offered, but the analysis is of potential interest to those studying urban gentrification and issues of economic redevelopment.

The contributors all have extensive experience in peace keeping and in addressing international human rights. Their shared interest in international human rights frames their analysis. The detail in the case studies reflects the depth of their knowledge and makes the book an excellent reference work. None of the cases are weak. All provide a good historical and institutional review of the limits of the application of property and housing rights in post-conflict situations, but none directly addresses their dependence on the struggles which led to the conflict in the first place and the subsequent agenda of the victor. If community action leads to conflict, these tensions cannot be left unaddressed in a peace accord. For example, if Albanians were a problem to Serbian residents in Kosovo, it is not a surprise that returning property is a thorny political issue. Restitution or property rights enshrined in a peace accord could run counter to the reason for the conflict in the first place. The inclusion of a property rights regime in the peace agreement predicated on international human rights then becomes intensely political. Such questions are not addressed. Instead, tensions are recognized in the case studies as an aspect of the property problem but in the context of defining prior legal title, equality and fairness. In an aloof international regime, that approach has salience but, to the participants, it seems that resolving the property issues may require very different solutions.

A second problem was the failure to address the Palestinian property issue. Given its historic and chronic quality, it is surprising that it appears once, in a list of places where property rights are contested (p.15), and then disappears. Instead Leckie distinguishes between conflicts over property and issues in peace agreements. His book documents provisions, or lack of provisions, in agreements and the importance of implementing property rights under them, highlighting the need to strengthen property rights provisions in the agreements and to address their implementation seriously. [*524]

Overall the book offers an excellent resource on the challenges of realizing an emerging international property rights and housing regime in post-conflict areas. The authors have years of experience in the field and know the challenges. Their quest is a quest in process. The book provides a snapshot of their work to date. Sadly, they do not link the emergence and imposition of a property rights regime to the land issues which framed the prior conflict. In a positive sense, this might lead one to believe that the imposition of a property regime would avoid the need for conflict. However, in a pessimistic sense a property rights regime cannot be realized if the prior conflict was provoked by property related issues and the result entrenched the agenda of the victor! Maybe that can be the focus of their next book.

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© Copyright 2009 by the author, Allan K. McDougall.

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REJECTING RIGHTS

by Sonu Bedi. New York: Cambridge University Press, 2009. 220pp. Hardback. $81.00/£45.00. ISBN: 9780521518284. Paperback. $29.99/£15.99. ISBN: 9780521732154. eBook format. $24.00. ISBN: 9780511501319.

Reviewed by Beau Breslin, Department of Government, Skidmore College, bbreslin [at] skidmore.edu.

pp.517-521

Readers of The Chronicle of Higher Education, Inside Higher Ed, and other similar publications will attest to the growing frequency of articles that take direct aim at the contemporary professoriate. It seems we are doing a lousy job in so many areas of the academy. Just a few months ago The New York Times echoed such criticism when it ran a piece by Mark C. Taylor – a member of the Religion Department at Columbia – entitled the “End of the University as We Know It.” In the article, Taylor bemoans the ways in which we now run our colleges and universities. He talks about the exploitation of part-time instructors, the irresponsible use of graduate students, and the archaic allegiance to disciplinary divisions and identities. Yet he reserves his harshest condemnation for faculty who are increasingly asking insignificant intellectual questions and pursuing “ever-increasingly specialized” scholarly agendas. “As departments fragment,” he remarks, “research and publications become more and more about less and less.”

Mark C. Taylor clearly has not read Sonu Bedi’s new book, REJECTING RIGHTS, a provocative and accessibly written monograph that asks one of the most fundamental questions facing any student of normative legal and political thought: are individual rights really worth preserving? That’s right, Bedi has placed individual rights and liberties directly in his crosshairs in an attempt to ask whether Americans are better off pursuing a course that rejects rights and, in their stead, sets clear expectations and standards for political institutions to satisfactorily “justify” any infringements of our freedom. The book is interesting and even playful in its prose; its greatest virtue, though, is its capacity to make us think about the often-unquestioned dominance of rights in contemporary American culture. This is no insignificant line of inquiry.

The book is divided into three parts and eight chapters, each intended to build an unapologetically normative argument about the way in which America’s liberal-democracy can ensure meaningful limited government. In Part I Bedi describes the “conventional” method for constraining the power of majorities. He says that, although some theories and arguments might fiddle with the margins, all current positions use the language of rights as the principal means of combating public authority. America’s model of limited democracy, in other words, relies on the idea that individual rights will control self-interested and reckless majorities. For Bedi, the conventional reliance on rights cannot guarantee limited government. He draws on contemporary debates heavily infused with rights – including debates about abortion, same-sex [*518] marriage, sexual privacy, and the like – to suggest that the typical use of rights to control state action has not been all that successful. In fact, Bedi believes that such a conventional account is antithetical to the vision of a robust democratic polity. The predominance of rights, he insists, “entail no genuine role for democracy. By its very terms, the classical account of rights has no necessary relationship to a positively expressed democratic common good” (pp.8-9). Classical rights theorists like Locke, Nozick, Rawls, and Dworkin, as well as “reflexive rights theorists” like Habermas, Michelman, and Benhabib inevitably underrate the importance of democratic decision making when compared to the force of rights.

Bedi begins to build his retort to the conventional account in Part II of the book. He believes that a more effective path to genuine limited government is to reject the standard role of rights and, instead, embrace a “theory of Justification” whereby public policy is only defensible or legitimate if it seeks to “minimize (mitigate, prevent, regulate, etc.) demonstrable, non-consensual harm” (p.60). There is, in short, only one justification for any state action (minimizing demonstrable, non-consensual harm), and thus government must provide a rationale for its actions based on that single principle. Bedi’s “theory of Justification” allows for the rejection of rights because it insists on a mechanism to ensure that government rationalizes all that it does. The limitation of public authority presumably comes from the simplicity and singularity of the plan: if all agree that the only legitimate state action does no demonstrable, non-consensual harm (and institutions actually live by that one rule), minorities need not worry about abuses by an oppressive majority.

He is, of course, not the only intellectual to endorse a theory of justification. Chapter 3 – the first chapter in Part II – offers a critique of liberal theorists who propose, in Bedi’s opinion, rather weak versions of such a theory. Bedi contends that no liberal theorist offers a compelling theory of justification. Ackerman doesn’t, Habermas doesn’t, and neither does Rawls. Michael Oakeshott comes close, though. His conception of the civil condition in ON HUMAN CONDUCT sketches the framework for a persuasive theory of justification – one that downplays rights and still constrains majoritarian impulses – and yet he, too, does not go as far as Bedi imagines. Bedi argues that these theories, while probably better in some sense than the conventional rights-based accounts, still do not effectively “balance the values of liberty and democracy” (p.60). In Chapters 4 and 5, he tries to correct the defects of these liberal theories by offering his own, alternative vision.

To this point in the book, the argument can be characterized as primarily theoretical and almost exclusively normative. Bedi makes a series of intellectual moves, all intended to convince the reader that a Bedian theory of Justification is both more sound than the theories that have come before and more capable of delivering on the promises of liberty, equality, and democracy. In Part III, Bedi introduces a new, empirical dimension. Here, he attempts to argue that “contemporary constitutional law has moved in the direction of [his] theory of Justification, turning away from the core rights of the [*519] private sphere: property, religion, and intimacy” (p.10). In other words, the author will now try to convince the reader that, at least within the federal judiciary, his theory of Justification actually has some traction.

Citing Supreme Court cases in the areas of property, religion, and sexual intimacy, Bedi insists that the Court has rejected the very rights on which these freedoms rest. Take the establishment and free exercise of religion cases as an example. Bedi argues that in all but a handful of cases over the past several decades, the Court has refused to provide special or “unique” protection for religious freedom. In case after case – GOLDMAN v. WEINBERGER (1986), EMPLOYMENT DIVISION v. SMITH (1990), CITY OF BOERNE v. FLORES (1997), and so on – the Court has refused to acknowledge any special protection for religious liberty. Consistent with his theory of Justification, he writes, “the Court appropriately [has] turn[ed] away from a focus on the religious observer and her right to religion, looking instead to the democratic polity’s reason for enacting the regulation” (p.131). Religion, he argues, “is like any other association, group, or preference deserving no more and no less protection” (p.131). The Court is rejecting rights, at least in the areas of property, religion, and intimacy, and that, according to Sonu Bedi, is both wise and exciting.

In the last significant chapter of the book (there is a one-page conclusion at the end), Bedi endeavors to adapt his normative theory of Justification to legal questions that are less about individual freedom and more about equality. He spends most of the chapter investigating what he describes as “the Court’s perverse equal protection logic” (p.166), especially as it applies to affirmative action. For many scholars of law and courts, his central argument – that courts should abandon the tiered approach to judicial scrutiny in the equal protection arena and adopt a single test based on a credible application of rational review – will seem familiar. John Paul Stevens, of course, has argued for such an approach at various points in his career. It is interesting, however, to imagine how such an interpretive standard dovetails with Bedi’s overall theory of Justification. If the basis for the theory is the expectation that political institutions have to constantly justify their decisions as rational or reasonable, a single interpretive test that asks precisely that question makes a good deal of sense.

If the measure of a good book is its capacity to foster different ways of thinking about familiar problems, Sonu Bedi’s REJECTING RIGHTS succeeds admirably. The very notion of rejecting rights as the primary means to facilitate greater degrees of freedom and democracy is provocative and counterintuitive. It is also deeply refreshing. Bedi does not try to tackle too many issues in this book, and the result is a lean, well-written, lively piece of scholarship. The book was a joy to read. Its greatest virtue is perhaps its ability to move important, though sometimes stale, conversations about rights and the authority of government in fun new directions.

The problem with REJECTING RIGHTS is that I am not sure the argument is as successful as the questions are fundamental. The author [*520] makes a few assumptions about the actual administration of his theory that are unconvincing. Relatedly, he uses his case studies to draw somewhat tenuous conclusions about the judiciary’s overall attitude. For example, he is essentially asking judges to engage in the type of jurisprudence that smacks of substantive due process. In his words: “we need simply proclaim that the law is irrational, arbitrary, even ridiculous” (p.1). Later, he writes, “the Court need not appeal to rights or suspect classes/classifications to ensure liberty. It should turn its complete attention to legislative purpose” (p.123; emphasis his). That may not be theoretically alarming (after all, courts evaluate the substance and purpose of laws all the time), but it will not be easy to get the institutions of American politics – especially the courts – to fully embrace such an interpretive strategy, especially when they must do so in every single case involving individual rights, equality, and democracy.

Similarly, I am not convinced we can always measure “demonstrable, non-consensual harm.” Laws often impose a demonstrable harm on individuals or groups in order to prevent an even greater perceived harm to others. In hindsight it is clear that the internment of Japanese Americans during World War II was criminal. Even still, it is a good illustration of the difficulty here. Few would disagree that interning a portion of the population against its will constitutes a “demonstrable, non-consensual harm.” And yet, at the time, Justice Black and a majority of the jurists on the U.S. Supreme Court endorsed that policy under the assumption that national security was at stake. The problem is a temporal one. Policy-makers and judges are often willing to allow a demonstrable harm in the present so as to prevent the possibility of what they convince themselves is an even greater harm later. Sometimes the harm comes to pass and sometimes it doesn’t, and yet that uncertainty does not prevent politicians and judges from making the calculation. Unless we can manage the temporal problem, I suspect it will be hard for Bedi’s theory of Justification to get off the ground.

The book spawns other questions, some of which may derail parts of the normative project. A few that come to mind: Can a group of political institutions as complex as those in the United States rely solely on questions of rationality when there is no dominant conception of the good to guide them? Is the rejection of rights a repudiation of the founding principles embedded in the Declaration of Independence? What about those rights that are enumerated in the original, unamended constitutional text? Do we reject them as well? And what does that mean for the constitutional document itself? Can we make claims about the direction of the Court’s jurisprudence – in Bedi’s estimation towards his theory of Justification – from three areas of the law (property, religion, and intimacy)? How about when one of those areas – intimacy – is heavily (though not entirely) dependent on only two cases (BOWERS v. HARDWICK [1986] and LAWRENCE v. TEXAS [2003])? Is rejecting rights throwing the baby out with the bath water?

I view the fact that these (and many other) questions emerge from this work as stimulating. Sonu Bedi has done [*521] students of legal and constitutional theory a rare service: he has managed to say something fresh and provocative. What is more, he has confronted important, fundamental questions about the nature of liberty and democracy in America and he has forced us to do the same. Assuming we accept his invitation, we may just have some ammunition for Professor Taylor.

REFERENCES:
Oakeshott, Michael. 1975. ON HUMAN CONDUCT. New York: Oxford University Press.

Taylor, Mark C. 2009. “End of the University as We Know It.” THE NEW YORK TIMES, April 27, 2009.

CASE REFERENCES:
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).
GOLDMAN v. WEINBERGER, 475 U.S. 503 (1986).
EMPLOYMENT DIVISION v. SMITH, 494 U.S. 872 (1990).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

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© Copyright 2009 by the author, Beau Breslin.

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JUDGING MOHAMMED: JUVENILE DELINQUENCY, IMMIGRATION, AND EXCLUSION AT THE PARIS PALACE OF JUSTICE

by Susan J. Terrio. Stanford, CA: Stanford University Press, 2009. 368pp. Cloth. $75.00. ISBN: 9780804759595. Paper. $24.95. ISBN: 9780804759601.

Reviewed by Clare Ryan and Patrick Schmidt, Department of Political Science, Macalester College. Email: clare.f.ryan [at] gmail.com and schmidtp [at] macalester.edu.

pp.513-516

The surge of interest in constitutionalism, flowering in the wake of post-1989 legal transplants and the growth of human rights regimes, has sometimes passed over older or less visible cross-national transfers. The juvenile court, an American invention long embedded elsewhere, is one such vehicle capable of illustrating the deep connections between legal institutions, individuals, and cultures. The international notice garnered by the 2005 suburban riots drew to attention the deep racial tensions in France and simultaneously provides a useful frame for Susan Terrio’s project of understanding juvenile courts as a site of conflict between the dominant social order – particularly the ideological and cultural biases of “French identity”– and the racial, religious, and ethnic diversity of contemporary France. Whatever its limitations, JUDGING MOHAMMED’s exploratory, anthropological study of Parisian juvenile courts offers readers an insightful journey through the juvenile justice system, with particular interest for those interested in comparative judicial studies or race relations in France.

Terrio’s fieldwork of observations and interviews began in 2000, well before the rioting fixed our gaze. Since 2005, with elevated political stakes, the clash between France’s foreign population (and their French children) and its legal and political structures has been vaguely credited to problems with immigration, integration, criminal youth, and Islam. Then Interior Minister Nicolas Sarkozy’s reaction to the riots, which included calling youth from suburban slums “trash” and promising to deport large numbers of illegal immigrants, was heard around the world, and his election as president added weight to his voice. France walks an uncertain path between its self-image as a human rights leader and its mounting fear of “young, lawless foreigners.” But beyond television footage of rock-throwing youths, racial tension manifests itself in a number of ways which resist examination, particularly because France’s assertion of égalité means they do not recognize or use “race” as a category in the collection of statistics. The traditional barriers to observation of juvenile court processes (in France and elsewhere) add to the difficulty. Terrio’s enterprising efforts to gain access to juvenile courts, amid a legal culture that resist challenges to its authority, are worthy of recognition.

As Terrio notes in a wide-ranging opening chapter, many important questions intersect here, and since she seems to want to pursue all of them, in a sense the first four chapters aim to provide all the possible historical and [*514] thematic frames necessary for understanding the ethnographic data. One of the dominant questions, and one of those most ripe for comparative study, lay in the ebb and flow of rehabilitative and punitive models of juvenile justice. Long a common refrain in the American juvenile justice literature, Terrio tells a comprehensive narrative about juvenile court development in France since its creation in 1945, with an arc similar to that of America’s juvenile system, where early rehabilitative goals get eroded by public safety concerns driven by media constructions of a crisis, demands for greater accountability for juvenile offenders, and a lack of resources to help endangered youth. Her account does not simply mimic those of the American experience, however. She also provides a detailed description of the French inquisitorial system, whose principles and legal values dramatically change the larger legal and political context of the developing juvenile court. (Anglo-American readers with a predisposition for the adversarial model may nod approvingly through this discussion, anticipating that Terrio is setting up later chapters’ report that minority youths are frequently denied meaningful due process.) Further, her treatment of French criminal procedure in the context of the historic French concern for social order over the rights of individuals contributes a valuable picture of the whole French attitude toward crime, punishment and rehabilitation, which is often missing – or assumed – in American scholarship on juvenile courts.

Terrio is fiercely critical of the French juvenile court’s move toward punitive reform and the corresponding cultural attack on children of immigrants, painting a portrait of a strict divide between the white, middle to upper-middle class, majority female court personnel and the poor, typically male, African and Asian population of juvenile “delinquents” who are overwhelmingly the constituents of the court system. Lacking a meaningful adversarial process, court actors – even those that emphasize rehabilitation – participate in a process that labels youth as guilty and denigrates them and their families. As she later notes, “Throughout France the courts are run by mainstream French professionals who prosecute and try those of immigrant and foreign ancestry. The implicit message is that the juvenile courts are not ‘for’ the French except in the relatively rare cases where those from the mainstream population end up at trial” (p.219). Her approach finds added depth, particularly in Chapter Three, by linking the political currents surrounding delinquency with the veins of French social science (including studies in ethnopsychiatry) that produce a “delinquency of exclusion,” a perspective shared by both court actors and politicians blaming immigrant cultures for disproportionate numbers of children of immigrants in the juvenile justice system. The thought that racism – in the police, in the judicial system, in social services, in French society – may play a role in the essentially all-minority composition of the French juvenile system strikes Terrio’s subjects are anathema. Instead, the currents of social science research accord with the dominant view that immigrant delinquency stems from the clash of values (family, parenting, work ethic, and the like) between immigrant cultures and mainstream French culture. In the course of the book, which occasionally employs a first-person voice as a chronicle of her experience and personal [*515] reflection on what she witnessed, Terrio provides myriad stunning illustrations of the court’s attitude toward immigrant families and the judges’ perception of inherent cultural handicaps to French integration.

Chapters Five through Seven unfold in the mode of the venerable studies of courts by organizational sociologists and political scientists, following the path of youth through arrest, informal pre-trial processes, and eventually formal court proceedings. Chapter Eight, the last before a brief concluding chapter, spans these processes with a special look at the problem of undocumented minors. The bulk of these fast-moving chapters consists of cases Terrio has observed, and though we must take on faith that they are representative, they are well illustrated through dialogue and spun persuasively in light of the case she builds against French juvenile justice. Legal details are kept at a minimum, and she toys with innumerable interesting themes, from spatial relationships in the courtroom to the linguistic power of the French tu and vous forms of address. Such is the richness of the new ground she is uncovering that she could follow so many new directions. Her forays will reward the reader who can make a meal out of tantalizing but tiny hors d’oeuvres. This is also the case with Terrio’s repeated mention of France’s “colonial past” and the relationship of colonialism to French treatment of immigrants; another example lay in her passing treatment of French attitudes toward multiculturalism. Similarly, Terrio uses as a hook for the later chapters the notion that the biased interactions of the parties in juvenile courts threatens the legitimacy of liberal democracy. Yet, as important as that suggestion may be in light of the recent violence, the idea is unexplored. Still, she has done a service by marking the possibilities, and many readers will enjoy considering the implications of the foundational evidence Terrio provides. A more serious concern with the book is that readers may not always be willing to accept Terrio’s interpretations of her observations. In her sometimes not-so-subtle attempt to criticize the French court for its condemnation of immigrant culture, Terrio occasionally undermines her own assertions. While criticizing the court for its cultural generalizations, in the same breath Terrio claims to know how African fathers feel when confronted by legal sanctions. Without interviewing these men, Terrio asserts that “They felt targeted as bad parents,” arguing that their “appearance in court was particularly traumatic, because the stigma of cultural difference they had hoped to keep at bay was both visible and intensified under court scrutiny” (p.231). Perhaps to have witnessed the faces she saw and the full dialogues she heard, we could conclude the same; only, her reading of them does not always leap from the data.

Naturally her methodological approach, like any, has its hazards, and Terrio’s tone and attitude seem to shift whenever she moves from interviewer to court observer. Rather unsettled by her position within the court, where her race and other characteristics link her to the court professionals, she explicitly reflects that she “did not anticipate that the space of the court as . . . an architecture of control would constrain me to the extent that it did. . . Most [juveniles] were ready to believe that I was a judge or affiliated with the court” (p.31). Terrio is also clear about her [*516] own political perspective, writing, “I should point out that my position as an objective observer of the juvenile court proceedings was compromised by the fact that, given my family background, I am a strong proponent of prevention and rehabilitation” (p.30). Bursts of frustration about her complicated position in the court come through at various points during the narrative, including a particularly revealing incident where the prosecutor uses her to prove a point about a juvenile’s culpability. Clearly she is attentive to the problem, but both forces beyond her control and her own limits may sometimes cause the cautious reader to recoil with skepticism.

For comparative scholars of courts, JUDGING MOHAMMED should be read for how it illuminates professional identity among the French judiciary. Terrio reveals a fascinating French legal culture, produced by training all judges at the same professional school in Bordeaux, from which juvenile judgeship is the lowest position in a highly competitive professional community. “Making a career [as a juvenile judge] is considered an ‘unfortunate’ choice,” Terrio writes, “because it suggests insufficient talent or ambition” (p.96). Her remarkable interviews with several key members of the Paris juvenile court set up powerful juxtapositions between the occasionally brutal and surprisingly candid remarks made by court actors and her observations of daily juvenile court experience. She quotes one judge as saying, “So you’re suggesting that there is racism in France? . . . No, Madame, there is always a possibility to make it here” (p.129). Terrio highlights beautifully the contradictions in a system where external critics call juvenile judges too soft, but where the attitudes displayed in practice belie a much harsher perspective on the “immigrant problem.” In fact, for the window she provides, a more accurate title for this book might be Mohammed’s Judge.

For whatever purpose one might read the book, and despite the limitations of this foray into the French justice system, her observations provide a unique and largely compelling view of a legal world often hidden from public view. Those familiar with France’s almost hostile silence on the issue of institutional racism will likely be sympathetic to her openly critical perspective, while it may grate more for those reading it as a study in judicial politics. Even so, Terrio’s accessible, personable narration and wide-ranging inquiry makes her an excellent tour guide for the twists and turns of French juvenile justice, the side of Paris that tourists do not see though it sits just steps away from Notre Dame.

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© Copyright 2009 by the authors, Clare Ryan and Patrick Schmidt.

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STATE HIGH COURT JUDGES: INSTITUTIONAL AND ENVIRONMENTAL CONSTRAINT

by Tara W. Stricko-Neubauer. Berlin: Verlag Dr. Müller. 2008. 164pp. Paperback. $89.00/€68.00. ISBN: 9783836437271.

Reviewed by C. Scott Peters, Department of Political Science, University of Northern Iowa. Email: scott.peters [at] uni.edu.

pp.509-512

In JUDICIAL REVIEW IN STATE SUPREME COURTS (2002), Laura Langer examined how legislatures and governors influence the exercise of judicial review on state supreme courts. Judges, Langer hypothesized, have certain “safety zones” where they can be comfortable making decisions consistent with their own policy preferences without fearing retaliation from the other branches. These safety zones are shaped by institutional rules and procedures that guard judicial independence – length of term, for example, or method of retention. They are also shaped by the preferences of the actors within the other branches and by the likelihood that those actors care enough about a particular issue to engage in retribution against the court’s decision. Based on these assumptions, Langer expected, and found, that judges are more cautious in acting upon their policy preferences in areas of law most important to state legislators, and in political systems with rules that make retribution more likely.

Tara W. Stricko-Neubauer’s STATE HIGH COURT JUDGES: INSTITUTIONAL AND ENVIRONMENTAL CONSTRAINT attempts to add to this basic model by introducing another set of factors that shape judges’ safety zones: the preferences of the public, especially where judges are retained by election. The book’s focus on such issues is welcome, and it introduces a way to apply Langer’s theoretical and methodological insights to aid in the examination of the impact of selection and retention systems on state court decision-making. Ultimately, however, the work suffers from an overall lack of clarity in theory-building and hypothesis generation that limits its contributions to the literature.

Stricko-Neubauer hews closely to Langer’s theoretical grounding and research design, adding one crucial element: the influence of mass preferences. As she explains, Langer tended to assume that mass preferences will be expressed through the views of other elite actors, especially legislators and governors. But, “[t]here are many opportunities for the mass public to express their policy preferences directly and force judges to care how the mass public perceives their decisions, and adjust their rulings accordingly” (p.31). Chief among these are selection and retention systems. Much like Langer, she expects the judges to behave differently depending on whether they may face reprisals from the other branches. But she also expects them to consider the possibility of reprisals from the electorate. She tests her expectations using cases across areas of law with differing levels of salience to the public and to elites. She hypothesizes that the death penalty and social issues (abortion, [*510] right to die, gay rights and church-state issues) will be salient to the public as well as to elites in the other branches, while electoral law will be salient only to elites. Finally, she expects neither elites nor the public to find welfare law to be salient, setting up a sort of control where she expects that judges will not be constrained by the public or the other branches. Estimating two-stage selection models that explain the court’s decision to take a case as well as the individual justices’ votes on the merits, she finds, like Langer, that judges are constrained by separation of powers issues. She also finds that when elites (governors or legislators) have power over retention, judges are constrained in their decision-making in electoral law and social issues. She further finds that judges are constrained by the electorate’s preferences in cases dealing with welfare issues, an area where she did not expect to find any such relationship. And, in a major departure from previous research, she reports no connection between public preferences and death penalty decisions. The book ends with two brief case studies of reprisals for court decisions in death penalty and gay marriage cases. The case studies add some qualitative detail to the work, but follow no particular research design and test no specific hypotheses.

The book would benefit from a more coherent theoretical framework that clearly presents expectations and places them within a particular body of literature. Its theoretical underpinnings clearly fall within the broad realm of neo-institutionalism, and while it is clear that the author is attempting to address what she sees as an oversight in Langer’s models, it is never clear what important unanswered or unaddressed question within this body of literature will be answered by doing so. Put another way, Stricko-Neubauer needs to explain what she thinks her approach will tell us about the influence of electoral sanction on judicial decision-making that we do not already know from the past twenty years of research spearheaded by people like Paul Brace and Melinda Gann Hall.

Moreover, several of the author’s findings confound her expectations, but the book does not offer very satisfactory explanations for them. Most significantly, Stricko-Neubauer finds that judicial decision-making on the death penalty was not constrained by elite or mass preferences. Given the rich body of research by Melinda Gann Hall and Paul Brace, among others, that has centered on judicial decision-making in capital cases, this is a major deviation from the literature that is not satisfactorily addressed here. Another example comes in her finding that a judge’s ideological distance from the electorate constrains decisions in election law cases where judges are elected in partisan elections. This was an area of law where she did not expect judges to be subject to major constraint by mass or elite forces, but she offers no real satisfactory explanation for why the theory failed or how it might need to be adjusted.

Some issues of operationalization are also less than clear, and at least some of them belie the work’s deeper theoretical deficiencies. Too often, Stricko-Neubauer fails to generate the kinds of hypotheses that could help her test what she is really interested in. Perhaps the best example comes in the measurement [*511] of state procedures for amending their constitutions. This is of theoretical importance in the separation of powers game envisioned here because justices are assumed to be less constrained in overturning laws when their exercise of judicial review is most costly. First, there is some confusion about how the variable is actually measured. Stricko-Neubauer includes a measure in her models indicating whether states have “difficult” amendment procedures, but it is not clear what constitutes difficult procedures. Early in the book (p.26), and again during the operationalization section of Chapter Three, she suggests that the key is whether a state requires only legislative approval versus also requiring mass approval. But in Table 2.2, she indicates that a difficult procedure is one where a supermajority is required in the legislature and public approval is also required; an easy procedure is described here as “requiring the approval of two legislative sessions” (p.27). Thus, both Iowa and Massachusetts, which require the approval of two legislative sessions as well as approval by the electorate, are categorized as “easy.”

But what matters here – and what should have been measured – is not only how “easy” or “difficult” amendment procedures are from a legislative perspective, but how much power the public has in the process. More attention in the theory-building stage to her central research question – the ability of the public to constrain judges’ use of judicial review – would have led to specific hypotheses regarding how institutional rules that include the public affect judges’ safety zones. Of particular import might be whether the public can amend the constitution through initiative, for example. The implications of this shortcoming can be seen when one looks at recent events pertaining to gay marriage in California and Iowa. In each state, the high court declared void laws defining marriage as between a man and a woman. In California, voters quickly overrode the decision through initiative. In Iowa, the rules for amending the constitution, coupled with Democratic control of the statehouse, have assured that any amendment to overturn the court’s decision will not happen within the next two years. This complicated interaction between institutional rules and public preferences is exactly what Stricko-Neubauer is interested in, but she does not fully explore the implications of her theory or generate the hypotheses necessary to find those answers.

Despite these weaknesses, Stricko-Neubauer has presented a framework that could form the basis for future research along these lines. This book was based on the author’s dissertation, and it is probably true that most dissertations (this reviewer’s included) are not ready for publication, whether as a book or as one or more articles, without considerable revision or rethinking. That the research has already been published in this form, however, should not prevent the author from further exploring the implications of the public sanction on judges’ safety zones. Future work should zero in on the specific theoretical and empirical contributions that this approach can add to the larger body of literature and should leverage the theory to produce specific hypotheses that fully test the implications of the theory. [*512]

REFERENCES:
Langer, Laura. 2002. JUDICIAL REVIEW IN STATE SUPREME COURTS: A COMPARATIVE STUDY. Albany: State University of New York Press.

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© Copyright 2009 by the author, C. Scott Peters.

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PRESIDENTIAL CONSTITUTIONALISM IN PERILOUS TIMES

by Scott M. Matheson, Jr. Cambridge: Harvard University Press, 2009. 248pp. Cloth. $45.00/£33.95/€40.50. ISBN: 9780674031616.

Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov.

pp.505-508

Scott M. Matheson, a member of the law faculty at the University of Utah, has prepared a thoughtful analysis of the exercise of presidential power during national security crises. When do presidential initiatives fall within the permissible bounds of constitutional authority? When do they fall outside? He focuses on five periods: Abraham Lincoln’s suspension of the writ of habeas corpus during the Civil War, Woodrow Wilson’s enforcement of the Espionage Act during World War I, Franklin D. Roosevelt’s evacuation and internment of Japanese Americans during World War II, Harry Truman’s seizure of steel mills during the Korean War, and George W. Bush’s torture, surveillance and detention programs following the 9/11 terrorist attacks.

Matheson advocates what he calls “executive constitutionalism,” a presidential attitude that respects the need for statutory authority, judicial checks, and a significant role for the press, academics, public interest groups, and the public. Executive constitutionalism means “accountability to the Constitution and the people by basing government action as much as possible on the broadest basis of legitimacy – executive action authorized by Congress” (p.31). The presidency “requires a constitutional conscientiousness that was lacking in the George W. Bush administration” (p.5). Matheson concludes that certain security measures by the Bush administration “crossed into extraconstitutionalism” (p.153). The Bush “obsession with expanding executive authority has been one of the most ideologically aggressive in U.S. history” in pursuing “unchecked unilateral power” (p.6). One of the “great ironies” of the Bush administration was “the spectacle of the United States promoting democracy and the rule of law as the ultimate answer to chaos and crisis in the Middle East when the President simultaneously claimed powers that would compromise our own commitment to constitutionalism” (p.31).

At the outset, Matheson rejects the “simple tradeoff between security and liberty,” where liberty interests are automatically subordinated to the needs of national security. Depending on the security measures taken, they can “potentially both burden and protect individual liberties” and thus call for “careful and realistic analysis of how to limit the former and safeguard the latter” (p.1). Matheson reviews the framers’ intent to create a single executive who “must derive its authority from the Constitution itself” and not from unbounded monarchical powers (p.7). The Constitution was designed to work not just in times of stability and peace but in times of crisis. When threats to national security appear, the principle of [*506] separation of powers requires that “for virtually every significant government action . . . at least two branches of government must be involved.” No branch, acting either unilaterally or in concert with another, has the power to violate the Bill of Rights. Executive authority “should govern within this constitutional framework” (p.9).

This theme of executive constitutionalism is not always developed in a consistent manner. For example, Matheson states that experience “has shown that legislative and judicial predisposition to defer to the executive in matters of foreign policy and national security enhances the structural advantages of the presidency to act in time of emergency” (p.11). What effect does legislative and judicial deference to the President have on the constitutional checks that flow from separation of powers, requiring “at least two branches” to agree on government action? Deference by Congress and the Supreme Court to Franklin Roosevelt’s initiatives led to the detention of Japanese Americans during World War II. In both HIRABAYASHI and KOREMATSU the Court deferred to Roosevelt’s curfew and detention decisions, resulting in what Matheson calls “among the most egregious infringements of individual liberties in American history” (p.63). The evacuation and internment policy marked “a failure of all three constitutional branches to accommodate both liberty and security in time of war. The executive overreacted, the Congress rubber stamped, and the Supreme Court lost its nerve” (p.73).

At times Matheson fails to analyze superficial concepts and doctrines that administrations use to inflate presidential power. He refers to the “sole organ” doctrine that is frequently invoked to justify unilateral, unchecked executive actions. Here is language from a Justice Department memo in 2001: “We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations” (p.18). The sole-organ doctrine flows from serious misconceptions by Justice George Sutherland in dicta he prepared for the CURTISS-WRIGHT case. The language “sole organ” comes from a speech delivered in 1800 by John Marshall when he was a member of the U.S. House of Representatives. Nothing in that speech gave the President any type of plenary or exclusive power in foreign relations. Marshall plainly contemplated that the President would function as the sole organ only after receiving either statutory or treaty authority from Congress and the Senate. See my article on the sole-organ doctrine in the March 2007 issue of PRESIDENTIAL STUDIES QUARTERLY. For more detailed analysis, my August 2006 study is available at http://www.loc.gov/law/help/usconlaw/pdf/SoleOrgan-Aug06.pdf and in the category “Presidential Inherent Powers” at http://www.loc.gov/law/help/usconlaw/index.php.

Matheson refers to CURTISS-WRIGHT as the “leading Supreme Court statement of executive supremacy” but acknowledges that Justice Sutherland’s theory “has been thoroughly criticized as contrary to the Constitution’s enumeration and delegation of foreign [*507] policy powers to Congress and the President and to the Framers’ intent for a presidency with limited powers” (p.19). Sutherland’s argument about the President possessing exclusive power over foreign affairs and being “extraconstitutional in character” is “historically flawed” (p.29). Dissecting the deficiencies of the sole-organ doctrine would have helped drive home that point.

According to Matheson, President Bush separated himself from “his predecessors” by not calling “for suspension of the writ of habeas corpus” (p.85). He did not do so formally, but he claimed the right to hold U.S. citizens and aliens indefinitely as “enemy combatants” (a designation made solely within the executive branch), without legal counsel or trial. The Bush administration claimed it could hold detainees at the Guantanamo naval base without giving them access to federal courts. It gained statutory authority from Congress to deny detainees the right to bring habeas petitions to federal district courts, offering them only access to the D.C. Circuit after conclusion of military tribunals at the naval base. On all those issues, in HAMDI, RASUL, HAMDAN, and BOUMEDIENE, the Supreme Court rejected those claims of executive power.

The book invites a discussion on the concepts of “inherent” presidential power and “extraconstitutionalism.” Matheson says that the Bush administration “did not expressly claim that a President facing wartime exigencies has the power to act outside the Constitution to protect the nation” (p.104). Yet Matheson acknowledges that the Bush administration argued that the President claimed “inherent” powers to act in violation of treaties and statutes (p.91). Moreover, Matheson states that the phrase “‘inherent power’ connotes extraconstitutionalism” (p.83). He further notes: “Although the Torture Memo attempted to rely on the Vesting and Commander-in-Chief clauses, its claim of absolute authority cuts so deeply against the grain of the Constitution’s separation of powers foundation as to amount to extraconstitutionalism” (p.104).

In certain places Matheson seems reluctant to state flatly that Bush acted outside the Constitution. Yet his analysis of the Terrorist Surveillance Program (TSP) conducted by the National Security Agency seems to offer no other conclusion. The administration argued that the Authorization for the Use of Military Force (AUMF) enacted after 9/11 could not “authorize silently” what the Foreign Intelligence Surveillance Act (FISA) “prohibits expressly and specifically” (p.116). If so, Bush acted outside the Constitution. For the Bush administration to claim that the AUMF authorized the TSP “would necessitate a finding that the AUMF repealed specific FISA provisions by implication, which the legislative record does not support and which courts generally disfavor” (ibid.). FISA “expressly prohibited the secret NSA surveillance program” (p.117). The book seems to provide sufficient evidence that Bush acted not only illegally (against a statute) but unconstitutionally. Consider this: “But the Bush administration did not seek congressional support for the TSP program, choosing instead to violate FISA” (p.119). And again: when the Bush administration argued that it had power “to override a statute in a realm of [*508] significant individual liberty interest, in this case Fourth Amendment interests, it crossed the extraconstitutional border” (p.125).

Oddly, Matheson concludes with this thought: “Ultimately the nation places its trust in the hands of one person whose constitutional mandate is to keep America safe and free” (p.160). That formulation contradicts his earlier position that the Constitution cannot place that trust in one person, and that joint action with at least another branch is needed to satisfy constitutionality. In fact, Matheson provides a list of guidelines on page 161 that looks not to the President alone for safety but to the larger political system. Presidents should work with Congress “to develop the legal framework that will enable government to keep the nation safe and the people free.” There is need for support and respect regarding “an independent judiciary and judicial review of executive actions and decisions.” Presidents must understand that balancing liberty and security “cannot require a choice between the two but a strategy to achieve both.”

REFERENCES:
Fisher, Louis. 2007. “Presidential Inherent Power: The ‘Sole Organ’ Doctrine.” 37 PRESIDENTIAL STUDIES QUARTERLY 139-152.

CASE REFERENCES:
BOUMEDIENE v. BUSH, 553 U.S. ____ (2008).

HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

HIRABAYASHI v. UNITED STATES, 320 U.S. 81 (1943).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).

RASUL v. BUSH, 542 U.S. 466 (2004).

UNITED STATES v. CURTISS-WRIGHT CORP., 299 U.S. 304 (1936).

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© Copyright 2009 by the author, Louis Fisher.

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TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF PROFESSOR MORTON J. HORWITZ

by Daniel W. Hamilton and Alfred L. Brophy (eds). Cambridge: Harvard University Press, 2009. 408pp. Hardcover. $45.00/£33.95/€40.50. ISBN: 9780674033467.

Reviewed by Stuart Banner, UCLA School of Law. Email: banner [at] law.ucla.edu.

pp.502-504

This book is the first of two planned festschrift volumes in honor of the legal historian Morton Horwitz, who has been teaching at Harvard Law School since 1970. Horwitz’s most well known books are both called THE TRANSFORMATION OF AMERICAN LAW (Horwitz 1977 and 1992), which explains the title of this volume. Seventeen of the eighteen contributors are former students who are now law professors or historians themselves. The eighteenth is Horwitz’s longtime colleague Charles Donahue. As is often true in collections like these, there is no common theme to the chapters. Most of the authors have contributed substantive historical essays within their various fields of expertise. The exceptions are William Treanor and Daniel Hamilton, who offer short appreciations of Horwitz himself, and Donahue, who appraises the state of legal history generally. The authors of the substantive historical pieces make varying degrees of effort to connect their work to Horwitz. On one end of the spectrum, Daniel Hulsebosch prefaces his discussion of the early American judges James Kent and Joseph Story with a few pages analyzing what Horwitz had to say about them, and Assaf Likhovski frames his research in the law of British Palestine as “Horwitzian journeys.” On the other end, a few of the authors do not mention Horwitz at all.

Some of the essays suggest the influence of Horwitz’s own work. Polly Price’s chapter on “Stability and Change in Antebellum Property Law” is reminiscent of Horwitz’s first Transformation book, both in its subject and in the way Price amasses early reported court opinions to build up a sense of what judges believed they were doing. Dalia Tsuk’s essay on “Pluralism, Individualism, and Democracy” in the twentieth century recalls Horwitz’s second Transformation book, which was more of a high-level intellectual history of legal thought. But the chapters are in a wide variety of styles, most of which are very different from Horwitz’s. Stephen Siegel traces the doctrinal origins of “strict scrutiny,” an important concept in constitutional law in the second half of the twentieth century. Alfred Brophy examines the role of utilitarian thinking in debates over the Fugitive Slave Act of 1850. Elizabeth Blackmar contributes a history of the “free rider,” who has played a leading role in the economic analysis of law. Gregory Mark offers what he calls a “speculative essay” on the shifting purposes served by the limited liability of corporate shareholders. Mary Bilder and Alison LaCroix each explore the colonial origins of different aspects of early republican constitutionalism. It is hard to draw any conclusion from these diverse essays, other than that Horwitz’s former students evidently do not [*503] constitute any particular school. They span the full range of approaches to legal history.

As with many festschriften, most of the chapters read like small parts of larger works in progress or already published. The contributors are all very good at what they do, so the essays are all interesting and well crafted, but few would likely have been published on their own. For example, Sally Hadden’s close study of the account books of a two-man Charleston law firm in the 1790s would make a fascinating part of a chapter of a book, as would Lewis Grossman’s account of the arguments made by James Coolidge Carter in three Supreme Court cases of the 1890s. But neither would feel complete as a journal article in its own right. Not that there’s anything wrong with that, as Jerry Seinfeld would say. It is good to have a forum for shorter papers. That is, it’s good so long as people will read them, which brings up a perennial problem.

Festschriften for law professors were once very rare, but they are becoming much more common. This may be a function of the turn toward interdisciplinarity in legal scholarship. The normal vehicle for honoring a law professor was once a special issue of a law review, and that is probably still the most common way, but the legal academy has shifted toward the norms of disciplines like history and philosophy, and the festschrift is one of them. There are still relatively few American law professors, compared with professors in other disciplines, who send enough students on to academic careers to populate a festschrift. The ones that do are usually the ones, like Morton Horwitz, with one foot in another discipline, so it is not surprising that most of these recent volumes have honored law professors in interdisciplinary fields like legal history, jurisprudence, and international law.

The problem is that the papers published in these books can be nearly impossible for researchers to find. The articles in a special issue of a law review are indexed just like regular articles, and they are word-searchable in the same electronic databases. There is no comparable research infrastructure for essays in books, with one exception – Michael Taggart’s index of common law festschriften (Taggart 2006) – but even that index is not widely known. As a result, very few of the papers published in festschriften get much notice. Someone interested in Hugo Black, for instance, would learn a lot by reading Christopher Schmidt’s chapter in this volume on Black’s changing views of the civil rights movement, but first he or she would have to find it, and that would be no easy task. Students of the history of intellectual property will want to read Oren Bracha’s essay on early republican conceptions of the inventor, as well as Steven Wilf’s chapter on the role of morality in the nineteenth-century law of copyrights, patents, and trademarks. Unless students hear of these essays by word of mouth, however, they are not likely to hear of them at all. A festschrift can be like a witness protection program for scholarship.

One obvious solution would be to publish festschriften online. Harvard University Press has not done so with this book, nor, to my knowledge, have any of the other publishers of festschriften in recent years. If the reason is that publishers need to sell [*504] enough copies to recoup printing costs, perhaps the ultimate answer is to dispense with physical books and move toward the virtual festschrift. Maybe one day Google Books will rescue festschrift chapters from oblivion; even if you cannot read the full text, at least you can find out that a given search term is in the book somewhere. An intermediate solution would be for the authors to post pre-prints of their contributions online themselves. The Social Science Research Network would be a natural location for the chapters in this book, but when I checked in June 2009, only four of the eighteen authors had posted their chapters there. It is a shame, because all of these essays are worth reading.

REFERENCES:
Horwitz, Morton J. 1977. THE TRANSFORMATION OF AMERICAN LAW, 1780-1860. Cambridge: Harvard University Press.

Horwitz, Morton J. 1992. THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY. New York: Oxford University Press.

Taggart, Michael, ed. 2006. AN INDEX TO COMMON LAW FESTCHRIFTEN: FROM THE BEGINNING OF THE GENRE UP TO 2005. Oxford: Hart Publishing.

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© Copyright 2009 by the author, Stuart Banner.

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SURVEILLANCE AND GOVERNANCE: CRIME CONTROL AND BEYOND

by Mathieu Deflem (ed.). Bingley, UK: Emerald Group Publishing Limited, 2008. 292pp. Hardback. £57.99/$99.95. ISBN: 9780762314164.

Reviewed by Sawyer Sylvester, Department of Sociology, Bates College. Email: ssylvest [at] bates.edu.

pp.497-501

SURVEILLANCE AND GOVERNANCE is a collection of essays offering a variety of contemporary examples of the use of information for social control. In the introductory essay, Mathieu Deflem tells the reader that the essays which follow are, to a greater or lesser extent, colored by the theories of Michel Foucault especially as revealed in Foucault’s major work, DISCIPLINE AND PUNISH. In his book, Foucault demonstrates how the eighteenth century in Europe saw criminal punishment change from the state’s rending of the body of the condemned to its “meticulous surveillance of the soul” (p.3). Imprisonment largely replaced the scaffold and the oubliette, and the ideal prison became Jeremy Bentham’s Panopticon. The all-seeing eye of the warder in the central tower looked down the grilled cell blocks – every prisoner in view, all the time. Thus viewed, the criminal became an object of study and taxonomy, a statistic; and criminology became a science, the practical outcome of which is policy, or policing. The remaining articles deal with examples of contemporary uses of surveillance to bring about governance, social order, or, what the first Lieutenant of Police of Paris was charged to accomplish –“une bonne police.”

James Walsh’s paper on the Minuteman Project is the first example of Foucault’s “governmentality.” Walsh begins by noting that maintaining geographical borders and the inclusiveness shown to those allowed within borders is of the essence of state control. Especially in an age of rapid internationalization of trade and commerce, the power to survey, classify, and control the physical passage of goods and people across a country’s boundaries is both politically and economically vital. However, Walsh sees Foucault’s vision of governance and surveillance as no longer limited to the monolithic state, but dispersed among a variety of state agencies, and increasingly to private agencies. Walsh’s example of such privatization is the Minuteman Project begun in 2004. This is an organization of private citizens whose goal is to aid in the exclusion from our borders those whose presence has been defined as a threat. The group does not see itself as outside the law but acting in support of the state’s border control agents through extending the reach of the state’s surveillance. Their claim to legitimacy is not as a sub-agent of the state but exists by reference to the residual law enforcement powers imbedded in citizenship. In this role they stand watch at the border (the southern border), survey with private helicopters, watch day labor centers, and transmit the information they gather to border authorities. [*498]

Walsh distinguishes organizations like the Minutemen from community policing. In the latter case, it is the state agency that seeks partnership among citizens in order to improve its function. Whereas with the Minutemen, it is they who see a weakness in law enforcement and seek to remedy it. At the conclusion, he uses the example of the Minuteman Project (but perhaps community policing as well) to show the decentering of surveillance and its dispersion further beyond the orbit of the state.

The Haggerty, Huey, and Ericson article on CCTV is a lesson in how security technology has its cultural as well as physical setting. Generally, when one thinks of CCTV, Great Britain comes to mind, especially London with its widespread electronic surveillance of public places. This article, however, deals with the attempted installation of CCTV by the police department in two public places in the City of Vancouver. The first was a poverty stricken area of the city known as Downtown Eastside. Cameras were to be introduced here as a means of crime prevention. There was also a similar plan for a popular entertainment district. In both cases, but particularly the Downtown Eastside, the police failed to understand the cultural fabric of the population they were about to survey and saw the area solely as a law enforcement problem. They failed to realize that such an area not only contained groups such as drug addicts, but also a significant population of professionals there to help them – professionals who could protest loudly in the right ears that they did not want their privacy, or that of their clients, invaded. Moreover, such a low rent district not only had more than its share of the poor and homeless, but also working class families, and writers and artists, all of whom could be equally vocal about their privacy. And they all could vote. The authors’ conclusion is that the march of the technological “gaze” is anything but unstoppable.

Kirsten Christiansen begins the article, “The Conquest of Space,” with a discussion of how distinguishing public from private space is no longer simple and is a distinction always socially constructed – a construction involving elements of power, rights, occupancy, and what people may say and do in such spaces. In contemporary society, the distinction between private and public space is often blurred, together with the rights adhering to each. Christiansen’s illustration is the effort of the New York City police in 2006 to increase restrictions on, and surveillance of, parades and other street gatherings by amending the rules governing such activity and by adding some 3000 new CCTV cameras to the existing publicly and privately owned cameras in the area. All of this was done ostensibly for public safety, but failed to take into account the threat to the protected uses of public space that viewing, recording, classifying, and analyzing those uses implies.

Fabien Jobard and Dominique Linhardt in “The Check and the Guardianship” describe two quite different types of surveillance in France. One type, the “check,” was established at Orly airport; the other, “guardianship,” at a housing project in Dammarie-les-Lys. At Orly, the “check” is surveillance limited in time and purpose. A body of strangers is sorted into classes, those who may enter and those why may not enter a privileged space. For this limited [*499] surveillance, a person need open only a small part of the self for inspection. In contrast, the housing project was subject to the permanent occupancy of a special police unit sent there to govern a potentially unruly populace. Everyone was constantly under the supervision of agents of the state. Repeated identity checks were just one reminder that every resident was perpetually a suspect.

The final paper in Part I, “Lex Vigilatoria,” is by Thomas Mathieson. Its subject is the growth of large data systems of criminal information bases, not those of any single country under that state’s control, but those which have become the shared property of international consortia such as the EU. Examples are the Schengen Information System, the SIRENE Exchange, Europol Communications System, EURODAC, and others that Mathieson uses to illustrate his thesis – that such data bases (with their attendant capacity for error, threat to privacy, and possible misuse) are escaping even the minimal control by an individual government with its elected representatives and local pressure groups. What he sees is the creation of a parallel to Gunther Teubner’s idea of a modern international law of commerce, the “lex mercatoria” (p.119). As the various transnational information systems slip their connections to individual governments, Mathiesen sees them forming horizontal connections among themselves, creating a veritable “lex vigilatoria.”

While all of the articles in Part I deal with the strategy of social control through surveillance, Part II is concerned with the tactics used to bring about those strategic objectives. Staples and Decker, for example, consider the practice of house arrest. Although usually thought of only as a form of community corrections or intermediate sanction (and thus a minimization of the constraints of imprisonment), the authors see it as a method for the offender’s self transformation. The ostensible freedom given by house arrest can be taken away at any time under a program of constant surveillance; whereas in prison, there is very little left to take away. Under such a system of intense scrutiny a person tends to become self-governing, which is the true object of the program.

Scott White recounts the history of attempts by the FBI to gain access to library borrowers’ records, especially using provisions of the Patriot Act. Librarians and their clients alike might well consider surveillance of their records an invasion of privacy, a violation of academic freedom, or perhaps even an infringement of First Amendment protections. Particularly troubling was a gag rule that initially prevented anyone receiving a National Security Letter demanding such records from even discussing it. Later, this provision was ruled unconstitutional. However, as White points out at the end of the article, such a ruling may not have resulted in much protection since today such records are kept electronically and are more likely subject to clandestine electronic search.
David Cunningham and John Noakes are concerned with another aspect of covert surveillance, the fear on the part of social movements that they are being observed and infiltrated by state agents. The authors are particularly concerned with the constraints that movements and organizations may impose upon themselves and their activities in fear of such infiltration. The authors use the FBI’s [*500] COINTELPRO to detail the scope of the efforts involved in disrupting a social movement and the emotional impact of such scrutiny had on its subjects.

The final article in Part II by Michael McCahill is on “plural policing” and the use of CCTV. McCahill begins with the common historical view that policing before the nineteenth century was in the hands of a variety of agencies, private as well as public, and became predominately a state function only later. While noting that policing probably was never the exclusive possession of the state, McCahill claims that policing has recently seen a return to a more pluralistic form. This organizational change has been accompanied by a functional shift from a solely law enforcement role to one of risk management and crime prevention. This, in turn, involves a technique for discovery of the antecedents to crime and some sort of risk assessment protocol. CCTV has been one of the discovery tools. But when CCTV becomes a surveillance tool in both private and public hands, the pool of potential suspects expands greatly, and when class characteristics are used to choose actual suspects from the pool, the ecological fallacy is unleashed. McCahill also suggests that private policing may invoke a more cost effective private justice system, a system considerably less constrained by Constitutional protections.

Janet Chan begins Part III of the book with a discussion of what she terms “lateral surveillance.” She notes that technology provides the contemporary West with surveillance schemes that “permeate and connect in a rhizomatic network of sensors and detectors, memories and logic” (p.224). This includes a kind of vertical surveillance by police and security agents. But what Chan focuses on is lateral or “peer-to-peer” surveillance, citizens watching each other, encouraged to report suspicious activity, especially in an age of terrorist threats. In a time and place notably lacking in community, Chan claims that we have replaced lateral trust in fellow citizens with vertical trust in government agents and have created what she sees as a culture of suspicion. And that suspicion becomes categorical, in that we become suspicious of those who appear to fall into mistrusted stereotypes.

Karen Glover’s article deals with one of those mistrusted stereotypes. Using theoretical constructs of both Foucault and DuBois in a study of racial profiling, she demonstrates how the discriminatory surveillance of a racialized traffic stop is the undeserved watchfulness accorded to one who is defined as not a complete citizen. Chen fills out these constructs with a number of narratives of those who have been victims of such profiling.

Benoît Dupont’s article, “Hacking the Panopticon,” and Kevin Stenson’s “Surveillance and Sovereignty” end Part III of the book. In a way, they both serve as critiques of earlier articles in the section. Dupont feels that the stone and steel of Bentham’s Panopticon is poor material for a metaphor of contemporary surveillance, for two reasons. First, the Internet has so distributed the capacity for surveillance that it is no longer just the all- seeing eye of the state on the citizenry, but citizens can survey each other and even watch over the government itself. Second, the Internet [*501] supplies to everyone the tools to block surveillance by others by way of encryption and other ways of hiding in the digital world. For his part, Stenson, while acknowledging that there has been a broad distribution of the capacity for surveillance and its attendant power, sees many of the points of distribution still looking to the state as the ultimate source of coercion. As a result, the state remains the final guarantor of order.

The final section of the book is titled “Beyond Crime Control” and contains three articles that together show the pervasiveness of surveillance techniques. John Gilliom states that the federal legislation known as No Child Left Behind is one of the most extensive surveillance programs in U. S. history. In a mammoth effort to ensure that elementary education meets minimal outcome benchmarks, standardized tests have been mandated. The consequences, however, were certainly not those anticipated. Gilliom claims that the quality of education has actually fallen as teachers teach for the tests and curricula emphasize only those subjects covered by the tests. And, not surprisingly, advantaged students test better than disadvantaged. The law has truly been iatrogenic.

Nathan Harris and Jennifer Wood discuss another iatrogenic surveillance policy in the field of child protection. The authors claim that, in an effort to leave no case requiring protection undiscovered, agencies have concentrated on detection and the imposition of standardized solutions, to the exclusion of more individually designed responses to support families in need.

Finally, Minas Samatas’ article “From Thought Control to Traffic Control” shows how cultural forces can defeat some surveillance programs. In Greece, there has been strong resistance to the installation of CCTV even for traffic control because of the memory of the repressive police regime after 1950 and their keeping of surveillance records and their using such information for punishing political dissidents. Heavy-handed surveillance at one time can poison the well for even moderate and well intentioned efforts at another time.

Although a few of the articles are fairly dense for those not fluent speakers of Foucault, the book as a whole is a useful source for a number of rich examples loosely connected to the common theme of surveillance. The surveillance society is not a new idea, but these articles demonstrate the breadth of the application of that idea both in crime control and other areas. Benoît Dupont’s observation, for example, that the distributive quality of the Internet has given citizens the capacity for surveillance of the state itself has surely been played out recently in the streets of Iran.

REFERENCES:
Foucault, Michel. 1977. DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON. New York. Pantheon.

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© Copyright 2009 by the author, Sawyer Sylvester.

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LEGAL RESPONSES TO HIV AND AIDS

by James Chalmers. Portland, OR: Hart Publishing 2008. 194pp. Paperback. $63.00/£30.00. ISBN: 9781841137261.

Reviewed by Michael J. Bosia, Department of Political Science, Saint Michael’s College. Email: mbosia [at] smcvt.edu.

pp.492-496

With more than 25 years passing since the US Centers for Disease Control reported the mysterious syndrome known as AIDS and a quarter century since HIV was identified, we might assume that legal disputes over AIDS had been laid to rest long ago. The initial fears and prejudices were calmed, communities at risk mobilized for their own protection, and the medical and scientific establishment made significant progress hand in hand with those living with the disease. So does that mean James Chalmers’ LEGAL RESPONSES TO HIV AND AIDS is more history than engagement with a lively controversy in the law?

Quite the contrary. We find today a rekindling of efforts to criminalize HIV transmission and a renewal of debates over questions of medical confidentiality and informed consent in research, as well as a global challenge to international patent law centered on HIV/AIDS. It is in this context that a book such as this is important, addressing legal issues in the United Kingdom and the ethical questions at stake. Chalmers’ methodical and studied approach, however, does not go much beyond the law to consider the power and politics of HIV/AIDS and questions of marginalization that are present in every social aspect of this disease, instead leaving those concerns to lurk in the background of his analysis.

The criminalization of HIV transmission was of particular concern at the 2008 International AIDS Conference in Mexico City, with outrage coming from activists and policy makers led by South African Supreme Court Justice Edwin Cameron – who is HIV positive (Cameron, Burris, and Clayton 2008). This recent wave of criminalization has been shocking in its quick diffusion and its ignorance of both science and past contention over the same issue in the 1980s. Last year, a Texas jury found that the saliva of a person with HIV was a “deadly weapon,” sentencing the defendant to a 35-year term for spitting on a police officer despite the fact that there is no risk from casual contact, and in fact no “saliva” related case has been documented. A “model” criminalization law was developed at a 2004 conference in N’Djamena, Chad, and subsequent legislation across Sub Saharan Africa could criminalize mother-to-child transmission, even though access to drugs needed to prevent transmission is curtailed by the failure of these very same governments to increase access to treatment.

AIDS and HIV remain contentious in legal and ethical disputes outside criminalization, despite a public health approach to HIV/AIDS that emerged early in the disease, emphasizing community-based prevention strategies and the active engagement of researchers with communities touched by HIV. This [*493] includes confidentiality, anonymity, informed consent, and access to experimental treatments in appropriate settings. But as pharmaceutical companies and researchers relocate drug trials to sites in the developing world, global activists have divided over the methods of science and questions of medical ethics. Some activists remain committed to the core community-based protocols adopted in 1983 (the Denver Principles) calling for greater involvement in research design and implementation. Others embraced scientific method and good relationships with researchers (Bosia 2009). As well, increasing access to drugs in the developing world despite international protections for intellectual property rights known as TRIPs has generated significant global contention (Smith and Siplon 2006). Even the debates around the distribution of HIV contaminated blood and blood products seemed to be resolved long ago through criminal trials in some cases, indemnification and civil proceedings in others, and government inquests in a few more (Feldman and Bayer 1999; Bosia 2005). Yet, in Britain a thorough and independent inquiry was not convened until 2007, only recently completing its work (Archer 2009)

Chalmers engages some of these debates through a carefully constructed elaboration of the development of legal and ethical reasoning related to HIV and AIDS. He begins with HIV testing and informed consent, delving into the reasoning of governing boards, the medical establishment, and jurists. This includes a focus on the elaboration of testing protocols and court decisions where no precise law exists and, though largely unstated, when the government seemed unwilling to take action. He proceeds through one of the most contentious issues in the early response to the epidemic: when are medical personnel able to or required to break confidentiality to warn the partner of an HIV positive patient in their care? As well, he examines legal claims arising directly from government action, including questions of harm reduction, such as the ban on distribution of condoms and clean needles in prison settings, and the expulsion of undocumented immigrants with HIV.

Because these issues are not unique to Britain, or even unique to HIV and AIDS, Chalmers cites decisions and policies from Canada, Australia, New Zealand, and the US, and legal or ethical guidelines related to other transmissible diseases. Nevertheless, and despite a cover description claiming to offer a “comparative perspective,” the text is sharply focused on British debates and a methodology clearly governed by legal reasoning and not the fullest form of comparative law and politics that American political scientists might anticipate. Context, for example, is confined to the narrow analysis of legal precedent, argument, and the elaboration of medical ethics. Nowhere is relative institutional power considered as a variable in the law, with discussions that travel across the British legal, public health, and medical establishments but that provide little sense of which institutions are important or responsive, what their constituencies might be, and how integrated into lines of authority and decision-making they actually are. Even the various and diverse discussions of human rights and the law as related to HIV and AIDS are left calling for a much broader discussion of the [*494] European Court of Human Rights (ECHR) and the use of ECHR precedent in legal argument and case law in Britain and elsewhere.

In addition, the reader thirsts for the concerns about gender, sexuality, and race often at the heart of law and politics, for clearly HIV and AIDS entangle each of these dimensions, as well as a number of other questions related to marginalization strikingly evident in recent controversies over both criminalization and research ethics. Chalmers only nods in this direction, with, for example, an 1880s case where a husband was prosecuted for infecting his wife with gonorrhea, charges that were ultimately overturned. Though hinting at issues such as an exemption in the law for marital rape and the viability of the wife’s consent to intercourse, he does not delve into questions of gender, the structures of power in marital law and practice, or the ability of women to make claims at a time they were disenfranchised. Similar concerns about marginalization should have emerged again in the discussion of a right to exile for HIV positive undocumented immigrants. And only later, in his analysis of criminalizing HIV transmission, does Chalmers directly address sexuality: to dispute the argument that criminalization drives people with HIV into hiding by citing statistics showing gay men are much less likely to be prosecuted. Nowhere, does Chalmers mention the adoption of Section 28 of the Local Government Act of 1988, which prohibited authorities from conducting any activities that might promote homosexuality and was adopted almost coincident with the elaboration of the first national measures related to HIV and AIDS. This law revealed the biases, fears, and attitudes that permeated British institutions and gave birth to a new generation of more radical LGBT and HIV/AIDS activism in Britain.

So Chalmers is best at the beginning of LEGAL RESPONSES, focusing keenly on how courts and health care professionals considered medical and legal ethics as it relates to responsibilities within health care settings. By concentrating so unhesitatingly on legal and administrative texts, Chalmers provides the reader with an opportunity to explore the overt reasoning of the various institutional bodies and authorities involved in the elaboration of practices and guidelines related to the use of some of the most controversial tools in the anti-HIV kit, such as voluntary, routine or mandatory testing and the distinction between confidentiality and anonymity in a medical environment. These deliberations are not like parliamentary or ministerial debates, as they do not involve public accountability, heated partisan rhetoric, or interest articulation evident in the legislative setting, but they are controversies in the elaboration of AIDS and HIV related policy.

After following an intensely legalistic approach to HIV and AIDS in the law that ignores institutionalized bias in decision-making almost to assume that medical professionals, jurists, and health care administrators (and maybe even scholars) work in a world removed from such prejudices, the reader arrives at Chalmers’ discussion of the expulsion of undocumented immigrants and the criminalization of HIV transmission. It might even seem that the dispassionate analysis of legal and administrative texts [*495] and ethical reasoning serves as a calming precursor to these highly charged issues, as criminalization is much closer to Chalmers’ works elsewhere (Chalmers 2001, 2002, 2004). But even as a wave of criminalization grips governments around the world, Chalmers remains clinical as he engages the prosecution’s obvious evidentiary problems, such as questions of consent in sexual relationships. Turning as well to the debate over when a right to exile amounts to a right to treatment, these two sections combined are where the failure to engage theories of marginalization is the most compelling.

Lured into a world of law and legal reasoning, the reader is tempted to agree with Chalmers when he finds that expulsion is settled practice even if it is morally problematic, or that a narrowly construed crime of grievous bodily harm is legally reasonable and the public health concerns raised by the opponents of criminalization from around the world are unfounded. Chalmers does express concern for the disproportionate use of criminal charges against men of African descent in early prosecutions, but he quickly dismisses the argument of discriminatory effect in noting the eventual overrepresentation of heterosexual white men among the 14 convicted of transmission related offenses in Britain. Without an analysis of gender, race, and sexuality as it relates to the sweep of HIV/AIDS politics in Britain, Chalmers’ use of these statistics has no meaning.

These are the kinds of questions that, in contrast, concern Weait (2007) in his focus on criminalization and HIV within social and historical contexts, understanding the disease in the first instance as a public health issue. In the matter at hand, Weait explains the statistics on prosecutions by suggesting that the heterosexuality of most of the accused might relate to the gender of the victim, with an ethos of shared responsibility more common among gay men than mixed gender couples.

Overall, Chalmers is insightful when focusing on a kind of legal path dependence in the elaboration of AIDS related law, demonstrating how concepts even a century old continue to constrain reasoning as new circumstances arise, shaping contemporary outcomes that weigh human rights and medical ethics, individual as opposed to collective goods. But when his clinical approach moves beyond the exploration of legal and administrative texts to contest socially engaged scholarship on HIV/AIDS and the law as well as public health studies, he is on decidedly shaky ground. Useful as part of a broader discussion and debate, LEGAL RESPONSES nevertheless provides neither an important work on highly contentious debates about the application of law to HIV and AIDS around the world, nor an argument grounded in the kinds of scholarship that more often concern studies of law and politics.

REFERENCES:
Lord Archer, chairman, Independent Public Inquiry Report on NHS Supplied Contaminated Blood and Blood Products, www.archercbbp.com.

Bosia, Michael. 2009. “AIDS and Postcolonial Politics: Acting Up on Science and Immigration in France.” FRENCH POLITICS, CULTURE, AND SOCIETY 27:1, 69-90. [*496]

Bosia, Michael. 2005. “Assassin! AIDS and Neoliberal Reform in France.” NEW POLITICAL SCIENCE 27:3, 291-308.

Cameron, Edwin, Scott Burris and Michaela Clayton. 2008. “HIV is a virus, not a crime.” HIV/AIDS POLICY & LAW REVIEW 13:2-3, 64-68.

Chalmers, James. 2004. “Criminalisation of HIV Transmission: Can Doctors Be Liable for the Onward Transmission of HIV?” INTERNATIONAL JOURNAL OF STD & AIDS 15:12, 782-788.

Chalmers, James. 2002. “The Criminalisation of HIV Transmission.” JOURNAL OF MEDICAL ETHICS 28:3, 160-163.

Chalmers, James. 2001. “Sexually Transmitted Diseases and the Criminal Law.” JURIDICAL REVIEW 5: 259-278.

Feldman, Eric, and Ronald Bayer. 1999. BLOOD FEUDS: AIDS, BLOOD AND THE POLITICS OF MEDICAL DISASTER. New York: Oxford University Press.

Smith, Raymond A., and Patricia Siplon. 2006. DRUGS INTO BODIES: GLOBAL AIDS TREATMENT ACTIVISM. Westport, CT: Preager.

Weait, Matthew. 2007. INTIMACY AND RESPONSIBILITY: THE CRIMINALISATION OF HIV TRANSMISSION. New York: Routledge-Cavendish.

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© Copyright 2009 by the author, Michael J. Bosia.

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WITH GRIT AND BY GRACE: BREAKING TRAILS IN POLITICS AND LAW, A MEMOIR

by Betty Roberts with Gail Wells. Corvallis, OR: Oregon State University Press, 2008. 288pp. Paperback. $24.95. ISBN: 9780870711992.

Reviewed by Julie Novkov, University at Albany, SUNY. Email: jnovkov [at] albany.edu.

pp.489-491

WITH GRIT AND BY GRACE is Betty Roberts’ fascinating personal account of her liberal feminist journey from a hardscrabble existence in Texas as a child to the Oregon Supreme Court. While Roberts is telling her own story, she narrates two other stories as well: one of a state and its sometimes tumultuous political development, and another of the path of professional American women from the era of the feminine mystique to an era of equal rights under the law. Roberts is justly proud of the progress she identifies in both of these narratives, but she is by no means complacent that feminism has completed its work. Overall, the book is a lively, arresting read in which Roberts establishes herself as a tireless worker and keen political strategist, but also speaks in a no-nonsense, lightly humorous, and quintessentially Oregonian voice.

Roberts begins her narrative with her childhood in Texas, discussing the struggles of her mother to raise her family in the face of Roberts’ father’s absence and illnesses. In 1941, she began college at Texas Wesleyan, but in 1942 met and married a banker from Oregon serving as an Air Force drill instructor. She and Bill Rice moved to Oregon after the war, beginning her lifelong investment in the state and its politics as a determined Democrat. Fourteen years and four children later, after dropping out of Texas Wesleyan, Roberts returned to Eastern Oregon College to complete her degree, much to the consternation of her husband and their social acquaintances, who had trouble accepting a banker’s wife as a college student. Roberts graduated from Portland State and became a teacher, but her decision to enter the workforce signaled the end of her marriage (pp.31-42).

Roberts, newly divorced, still managed to win her first political campaign for a seat on the school board. Her involvement in politics contributed to the development of her relationship with Frank Roberts, a Democratic Party leader, whom she married in 1960. Both she and Frank ran for the state legislature in 1962 but lost primary races. In the mean time, Roberts had completed a master’s degree at Portland State and considered entering a Ph.D. program and becoming a professor. The chair of the University of Oregon’s political science department, however, informed her that she was too old to begin the program at 39; Roberts noted that the department had never had either a female professor or Ph.D. student at that point. This roadblock was a turning point for her, as she opted to matriculate in the Northwestern College of Law instead, earning her degree in the mid 1960s (pp.51-54). She began her service as a legislator in 1965, joining six other [*490] women in Oregon’s House of Representatives. As a house member, Roberts worked with Democratic allies to advance their agenda, but also supported agendas for women, raising issues like workplace discrimination and reproductive freedom in the late 1960s. She also divorced Frank Roberts in 1966 and married Keith Skelton in 1968, which led to a struggle with the Oregon State Bar over whether she could continue to retain Roberts as her professional surname (pp.102-03). (She succeeded with the bar, but had to cast her 1968 vote for candidate Betty Roberts under the name Betty Roberts Skelton, as the Registrar of Elections refused to issue her a voter registration card under the name Betty Roberts.)

After moving on to the Senate in 1968, she fought for unrestricted access to abortion (ultimately contributing to the passage of a more limited legalization of abortion) and was instrumental in getting the Senate to adopt a bill barring racial and sex-based discrimination. She worked relentlessly on behalf of education and helped to steer Oregon’s innovative bottle-deposit bill through treacherous legislative shoals to adoption. She also contributed to the ERA’s relatively uncontroversial passage in Oregon (pp.147-58). These accomplishments inspired her to run for governor, announcing her candidacy in 1973. She came in second in the race for the Democratic nomination, but the name recognition she garnered in the campaign convinced the party to choose her as a replacement candidate for Wayne Morse, whose unexpected death mid-campaign against Bob Packwood for Oregon’s US Senate seat left an enormous void in Oregon’s politics (pp.186-96). Upon losing to Packwood, Roberts returned to the Oregon Senate and continued to work for women’s rights and to support Democratic and progressive initiatives.

In 1977, Roberts’ life changed again as she became a judge on the Oregon Court of Appeals, the intermediate appellate court in the state. She was the only female judge on the court, and had to struggle for acceptance and respect. Most egregiously, at a judges’ conference in 1978, another male judge groped her. She persisted, however, persuading her sometimes reluctant and clueless colleagues to recognize her professionalism. Nonetheless, it was not until newer judges were appointed in 1980 that the court became a moderately comfortable environment. In 1982, Betty Roberts became the first woman to serve as a Justice on the Oregon Supreme Court (pp.211-37). She remained on the Court only until 1986, but her impact was lasting on a state supreme court that was already known for its independence and creativity.

Roberts notes her most important opinion as HEWITT v. SAIF, in which a male claimant sought benefits after his female companion and the mother of his child died in an industrial accident (p.241). The state denied benefits on the ground that they were only available for female survivors. Roberts’ opinion identified gender as a suspect classification under Oregon’s constitution, generating an independent basis for the flowering of state equal protection law (653 P2d. 970 (1982)). As a Supreme Court Justice, Roberts continued to press both on and off the Court for more recognition of women’s issues. [*491]

In 1985, Roberts decided that she wanted to spend more time with her husband, who had begun the process of winding down his legal practice. After surviving a heart attack, he became a member of Portland’s Community College Board, and Roberts helped to found a new group, Oregon Women Lawyers, and became involved in arbitration and mediation. Skelton died in 1995, but as of the publication of her memoir, Roberts was still an active arbitrator and mediator, as well as a mentor for many Oregon lawyers (pp.252-65).

While Roberts describes a challenging journey, she clearly relished her successes along the way. Overall, the reader gains a sense of her as a relentless optimist, a woman who never allowed others’ negative attitudes or the adverse circumstances she faced to prevent her from moving forward. Her tone is deceptively conversational and down-to-earth, at times almost obscuring the extraordinary nature of her accomplishments: her repeated breaking of gender barriers with electoral successes in the state house and senate, her near capture of nominations for two state-wide offices, and her service as an appellate, and then supreme court judge. She achieved these milestones not just as a woman, but as a divorced woman with children in a time when both divorce and motherhood were seen as political millstones. While Roberts does not reflect extensively on why she was able to overcome these barriers, attributing it mostly to her persistence and good fortune, her narrative suggests that both elite Oregonians and Oregon voters appreciated her straightforward, matter-of-fact attitude.

Liberal feminism – the belief that women are inherently equal to men – has been a lifetime lodestone for Roberts. She writes frankly about her own path toward extending her personal liberal principles of equality to incorporate sexual orientation; she eventually performed Oregon’s first same-sex marriages in Multnomah County. She has less to say about race, but most of her active political career encompassed a period in Oregon’s politics when racial struggles tended to be more local and often occurred outside of formal political structures. The liberal feminist principle of choice also characterized Roberts’ active career, both in her decisions to run for various offices and her decision in 1985 to step back from active engagement in high-level law and politics. Some might frame her choice to follow her husband into retirement as an anti-feminist act, but Roberts clearly understands it as representing her own secure capacity to choose her life path with wisdom and sensitivity toward achieving an appropriate balance for herself and her family.

I recommend Roberts’ memoir as an engaging read for anyone interested in the real world of law and politics. In particular, it would make a great gift for a starting law student or for someone who has just completed the bar exam.

CASE REFERENCES:
HEWITT v. SAIF, 294 OR 33, 653 P2d 970 (1982).

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© Copyright 2009 by the author, Julie Novkov.

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THE SODOMY CASES: BOWERS v. HARDWICK AND LAWRENCE v. TEXAS

by David A. J. Richards. Lawrence: University Press of Kansas, 2009. 232pp. Cloth $35.00. ISBN: 9780700616367. Paper. $16.95. ISBN: 9780700616374.

Reviewed by Miriam Smith, Law & Society Program, Department of Social Science, York University. Email: mcsmith [at] yorku.ca.

pp.486-488

This fascinating study of two landmark cases on the constitutionality of state sodomy laws will be required reading for those interested in the right to privacy, lesbian and gay rights, and women’s rights. David Richards, a law professor at New York University, provides a detailed account of the jurisprudence and legal strategizing in these cases. As such, the volume provides vital background for current controversies over lesbian and gay rights in the US, including the current direction of litigation on same-sex marriage in the states as well as the important pending challenges to the federal Defense of Marriage Act (DOMA).

In tracing the history of the jurisprudence around privacy beginning with the GRISWOLD case, Richards links the story of lesbian and gay rights claims with broader social changes such as shifting gender relations, the rise of the women’s movement (both in its residual first wave as symbolized by Planned Parenthood in GRISWOLD and its second wave as represented by the feminist advocates of ROE) and the rise and legacy of the civil rights movement. While most literature on lesbian and gay litigation makes passing reference to other movements, Richards integrates these discussions throughout the volume. At the same time, he also emphasizes the importance of slavery’s legacy in jurisprudential and political debates over the role of the states in abridging the right to intimate life. Thus, one of the strengths of this analysis is its implicitly intersectional approach to exploring the politics and jurisprudence of these landmark cases on state sodomy laws.

After providing this background, Richards moves on to the meat of the volume, the discussion of the BOWERS and LAWRENCE cases, as well as an overview of other key gay rights cases (e.g. ROMER) that occurred between the Court’s refusal to strike down Georgia’s sodomy law in BOWERS in 1986 and its decision in LAWRENCE in 2003 that the sodomy statute of Texas was unconstitutional. For each case, Richards provides a detailed account of the origins and facts, the briefs, the arguments of amici and the oral arguments.

The accounts of the behind-the-scenes politics of the Supreme Court in the BOWERS case are also important. While Justice Powell’s change of heart on BOWERS is well known – Powell initially planned to vote in favour of Hardwick, but then changed his mind, a decision he later famously described as a mistake – the machinations among Powell’s clerks were not known to this reader. Tellingly, Justice Powell had one law clerk who was a Mormon and another who was a closeted gay man. This juxtaposition symbolizes the sociology of lesbian and gay rights in the [*487] US. In fact, lesbian and gay people are everywhere – even in Justice Powell’s office. On the other hand, the strong role of religion in American life also shapes the gay rights debate.

Richards also provides a thoughtful discussion of the implications of LAWRENCE for same-sex marriage. In LAWRENCE, Justice Kennedy, writing for the majority, went to great lengths to state that the judgment would not lead to same-sex marriage. Justice Scalia vehemently disagreed in a typically caustic dissent. Here, Richards’ book comes full circle to the constitutional rights of married couples. Based on the Court’s reasoning in LAWRENCE, he feels that Scalia may well be right in his dissent and sketches out two possible routes by which the Supreme Court could decide that denying the right of same-sex couples to marry (or the recognition of that right in federal law) would be unconstitutional. Given the LAWRENCE decision, it will be difficult for the Court to find the jurisprudential ground to deny the right of same-sex marriage, especially if, as is the case with at least one of the pending challenges to the Defense of Marriage Act, the case is tailored narrowly to the question of federal recognition of same-sex marriages that are already lawful in the states (see GLAD 2009). Richards ends by arguing that “[i]f past is prologue, the long-term consequences of the long overdue decriminalization of gay/lesbian sex in the United States will lead, as European experience shows, to advances in both the areas of antidiscrimination and same-sex marriage” (p.176). I could not agree more.

Richards does not provide a detailed account of the changes to sodomy laws in the states over the period, although he does allude to the importance of the fact that sodomy laws were gradually changed, sometimes through legislative action, even before the BOWERS case. Political scientists might want to consider the broader pathways to policy change over the longer term and the role of other political institutions beyond courts in shifting public policy in this area (see, for example, Smith 2008). Those interested in social movements will want to consult the work of political sociologists such as Malinda Kane (2003; 2007) and Mary Bernstein (2003) who have written extensively on the impact of the lesbian and gay movement in challenging state sodomy laws. Like other books in this series, this text contains a bibliographic essay that roughly follows the themes of the chapters. I find this inconvenient as there is no author list or even page range given for specific sources, even when authors are mentioned in the text.

For political scientists who are interested in the general topic of judicial decision-making, this book also provides an interesting case study. Richards describes LAWRENCE as a BROWN-like decision for lesbian and gay Americans, and, indeed, it also has its PLESSY in the BOWERS decision. Very few high courts reverse themselves as cleanly as did the US Supreme Court in LAWRENCE. More remarkably, this PLESSEY-to-BROWN reversal was achieved with only a 17-year gap between the two decisions. In addition, it is rare for a Supreme Court justice to state that his opinion was a mistake. Yet, this is what Justice Powell said after his decision in BOWERS. This swift [*488] turnabout by the Supreme Court raises questions about how the Court reacts to social change and to shifts in public opinion. There is no doubt that the period from 1986 to 2003 saw a fundamental shift in the role of lesbians and gay men in American society and the open emergence of families headed by same-sex couples with children. From this perspective, the BOWERS-to-LAWRENCE switch might be read as reflecting social change and public opinion, even though the Court itself became more conservative over this period. Because sodomy laws had already been changed in most of the states prior to LAWRENCE, the switch might also be read as an example of Robert Dahl’s 1957 argument in which he argued that the Supreme Court tends to follow the law-making majority (although Dahl excluded state lawmakers from consideration in his article). For those of us who ponder these general questions as well as for those specifically interested in the regulation of sexuality and intimate life, this book is a welcome addition to the literature.

REFERENCES:
Bernstein, Mary. 2003. “Nothing Ventured, Nothing Gained? Conceptualizing Social Movement ‘Success’ in the Lesbian and Gay Movement.” SOCIOLOGICAL PERSPECTIVES 46 (3): 353-379.

Dahl, Robert A. 1957. “Decision Making in a Democracy: The Supreme Court as a National Policy Maker." JOURNAL OF PUBLIC LAW 6: 279-295.

Gay and Lesbian Advocates and Defenders (GLAD). 2009. “DOMA Means Federal Discrimination Against Same-Sex Couples.” http://www.glad.org/doma/lawsuit/

Kane, Malinda. 2003. “Social Movement Policy Success: Decriminalizing State Sodomy Laws.” MOBILIZATION 8 (3): 313-34.

Kane, Malinda. 2007. “Timing Matters: Shifts in the Causal Determinants of Sodomy Law Decriminalization, 1961–1998.” SOCIAL PROBLEMS 54 (2): 211–239.

Smith, Miriam. 2008. POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA. New York: Routledge.

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

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

GRISWOLD v. CONNECTICUT, 381 US 479 (1965).

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

PLESSY v. FERGUSON, 163 US 537 (1896).

ROE v. WADE, 410 US 113 (1973).

ROMER v. EVANS, 517 US 620 (1996).

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© Copyright 2009 by the author, Miriam Smith.

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THE NEW LAWYER: HOW SETTLEMENT IS TRANSFORMING THE PRACTICE OF LAW

Julie Macfarlane. Vancouver: University of British Columbia Press, 2008. 304pp. Hardcover. $85.00. ISBN: 9780774814355. Paperback. $32.95. ISBN: 9780774814362.

Reviewed by Deborah Macfarlane, School of Information Systems, Faculty of Business and Law, Victoria University. Email: deborahmacfarlane [at] live.vu.edu.au.

Editor’s note: The author and reviewer are not related.

pp.480-485

In THE NEW LAWYER Canadian professor Julie Macfarlane examines the changing dynamics of the legal profession and practice over the past three decades and what future is likely to emerge out of those changes. In particular, as the subtitle indicates, she analyzes the ways in which the high rates of case settlement and alternative dispute resolution have already radically transformed the work of today’s lawyer despite the fact that legal education, advocacy, the public perception of lawyers as ‘client warriors,’ and traditional legal norms and values have largely remained static. Analyzing also the changes within the adversarial system in recent decades she paints a picture of two powerful and very different systems, ADR and the adversarial, on the cusp of merger. Finally, Macfarlane extrapolates from her research to provide a very believable, coherent projection of what law and the qualities and skills of the new lawyer will look like as a result of that merger in the early decades of the twenty-first century.

The first half of the book deals with the status quo, including the changes to date and the embryonic emergence of the new lawyer; the second describes how the changes are likely to transform the profession and the lawyer-client relationship, throwing up new ethical challenges in the process, making different demands of educators and judges and requiring greater inter-professional collaboration. Macfarlane’s reliance on solid research and the factual tone of the book provide relief from the relentless proselytizing of some academics in the ADR industry. The material is easy to read, and despite some inevitable repetition given the topic, the chapters are well organized with a good forward momentum. The book is directly relevant to a wide range of people working in law, the courts, universities, ADR and the social sciences, and is also of general interest. Although Macfarlane chiefly focuses on Canada and the United States, her work is generally applicable to other common law countries, such as Britain, Australia and New Zealand.

In the introductory chapters, Macfarlane details the structural and organizational changes which have occurred in the legal profession in recent decades: the enormous increase in the size of the lawyer population; the growth of megafirms leading to the development of a hierarchy and corresponding decline in the professional autonomy and job satisfaction of young lawyers; the [*481] decrease in numbers of sole practitioners and small firms facing competition both from paralegals and poorly paid contract lawyers in larger firms; and the growth in numbers of minorities and women who now constitute a sizeable proportion of graduates. Over the same period, courts have introduced substantial reforms, such as case management and mediation largely because the costs and delays involved in trials have blown out considerably and the relative number of judges has declined. These are all factors which have contributed to the well documented ‘vanishing trial’ (although, it should be said, historically few cases, only around 5-10%, ever did make it to trial). Consequently most legal work now relates to settlement, and some partners in law firms have never actually appeared in a full trial.

Yet, Macfarlane observes that the fundamental norms and values of lawyers have not been re-examined in the light of these significant changes, including those wrought by ADR: ‘At the critical point of entry to the profession, there is a continued failure to recognize the skills and qualities that are needed by a new generation of lawyers’(p.15). She considers the core of the problem to lie in the attitude of educators and law firms to advocacy, an attitude arising out of the belief in an aggressive ‘rights-based expertise’ within an adversarial system – ‘zealous advocacy’ – to be seen as the most fundamental attribute of the successful lawyer. The pace of change in law schools has been ‘glacial’; substantive knowledge and case law is still taught within an adversarial framework and only analyses reflecting it are rewarded. Similarly, substantive knowledge, high marks and a ‘pit bull’ mentality are valued by law firms, which in turn reward adherence to the model with more interesting and better-paid work. Professional codes of conduct complement the process. The result, she concludes, is that despite the need to broaden negotiation and interpersonal communication skills and to develop a problem-solving rather than a paternalistic relationship with clients, there does not yet exist a ‘critical mass for change.’

Macfarlane sees the key to changing legal culture as moving away from an approach based solely on what she calls the ‘three key professional beliefs’ (chapter 3) which she considers inadequate to meet the needs of the twenty-first century: the default to rights-based dispute resolution, justice as process and lawyers in charge. A belief in a rights-based advocacy means that good advocacy is seen as positional, and easily becomes very adversarial, other solutions are too easily overlooked, and many inappropriate disputes go down the trial track, often reaching inappropriate outcomes. The author in fact notes a widespread cynicism with the unpredictable outcomes of justice and a corresponding, misplaced faith in due process as a means of ensuring justice. Finally, the expertise required for rights-based advocacy leads lawyers to the third belief, that they are ‘in charge’ of the dispute, thereby distancing the client from participating in both the process and possible solutions to their own problems.

According to Macfarlane ‘the interdependence of values and structure means that challenge to traditional bargaining practices is both difficult and complex’ (p.66). She paints a picture [*482] familiar to most litigation lawyers. Despite the fact that most cases settle, they do so within the adversarial paradigm. Although trials are now rare, full discovery is still normally carried out, even when mediation is ordered, and pre-trial adjudication and motions activity have significantly increased, what has been termed ‘non trial adjudication’. Relatively little time is spent on negotiation compared with the legal process; it is stylized, unimaginative, and positional, focusing principally on rights and monetary solutions. Moreover, as research cited by the author has demonstrated, negotiation usually ends in rapid settlement after only one or two offers and counteroffers from each side, shortly before trial and in the absence of clients. In fact, while lawyers conceive their main ethical duty is to serve the client’s interests at all costs – ‘zealous advocacy’ – the client traditionally has little to do or say at any stage of the proceedings, an approach that hinders problem-solving. The outcomes are expensively inefficient and disliked by clients: in a 1995 Ontario study carried out by the author only 8.5% of trial group litigants said they were completely satisfied with the outcome of their case. Significant numbers of lawyers are also unhappy with the unproductive results of positional bargaining.

THE NEW LAWYER does not of course end here. There is light at the end of the tunnel. Changes in the courts affected by public policy makers, such as case management and mandatory mediation, to the practice of law by collaborative lawyers and others interested in consensus-building processes have begun to alter the behavior of some lawyers and the nature of their relationships with their clients. Macfarlane notes the emergence of an alternative form of advocacy, what she calls conflict resolution advocacy (CRA). Here the primary focus is the ‘best possible negotiated settlement’ for the client, although adjudication remains one of a number of options available. Negotiation is the central focus of CRA, and should, according to the author be addressed at the earliest stages of file development. The negotiation skills required for CRA are a lot more complex than for zealous advocacy, and necessitate an understanding of the goals not only of the client but the other parties in order to work out the best scenario for the client. Likely costs and the client’s overall financial situation also need to be taken into account. Information gathering in CRA is also more complex, comprising not only what is necessary for the presentation of legal argument, but also information useful for supporting the client’s interests and needs. Moreover, the need to work collaboratively means that information is viewed as a resource to assist all parties to achieve a mutually satisfactory settlement.

Macfarlane provides a thoughtful analysis of the new dynamics of the lawyer-client partnership in CRA. Clients are seen to have a difficult time in the traditional system. ‘Virtually “invisible” in law school . . . their position understood and framed through the prism of the lawyer in charge’ (p.125), they are in practice directed what to do by a lawyer under the guise of taking instructions, their stories transformed to suit positional arguments. However, this is changing; clients are becoming more assertive and knowledgeable and less deferential in [*483] the same way as doctors’ patients have recently begun to play a more active role in their own medical management. Business clients are scrutinizing ever-increasing costs and delays at the same time as mandatory mediation has enabled personal clients to see the limits of the traditional lawyer-client relationship, and sometimes ignore counsel’s advice in order to follow their own inclinations. Easy access to legal information through the internet has also led clients to expect a share in decision-making. The new lawyer is not afraid of this shift in the balance of power, establishing a working partnership with the client with respect to transparency over process preferences, information-gathering, joint strategy planning, hands-on decision-making and involvement in settlement processes. The author stresses the need to educate clients to make fully informed decisions, and prepare them for unfamiliar processes such as mediation to maximize the effectiveness of client participation. She also considers that the new lawyer’s working partnership with the client entails a more supportive role that does not exclude emotions and feelings (an exclusion still regarded as appropriate by most traditional lawyers) but also avoids over-personalization of the relationship.

Nevertheless, Macfarlane considers that the primary expertise of the lawyer remains the law and the giving of professional legal advice. She insists that one cannot speak of a ‘paradigm change’; instead, the role of law and legal advice must be carefully reformulated under CRA, a task she describes as the most challenging for the practice of the new lawyer. Legal analysis alone may cause non-monetary solutions to be overlooked or prevent an understanding of the importance of non-legal problems which bar the way to the resolution of the dispute. While the lawyer’s use of legal knowledge to predict the final outcome remains critical in determining the best alternative to settlement should negotiation fail, it comprises only one of a number of factors surrounding a dispute that need to be considered and weighed by the client and their lawyer when looking at settlement options. However, consideration of those other factors enables the lawyer to see more clearly how legal principles can be used to obtain the best possible solution for the client in that particular dispute.

The chapter dealing with the ethical dilemmas facing the new lawyer is one of the most interesting. The author observes that, while traditional law in a public context deals with ethical problems according to a rule based approach, this does not apply to informal dispute resolution processes, where the sorts of problems that arise are only just becoming apparent and the correct responses to them remain instinctual rather than defined. She outlines a number of situations where ethical issues may arise. To prevent these, the new lawyer has certain new obligations which include, for example (the list is not exhaustive), the obligation:

• to discuss process options with clients (a new rule of professional conduct in Ontario where Macfarlane is based);
  
• to give sufficient information for the client to form realistic and accurate expectations of whatever process they choose;
  
• to maintain the proper balance between establishing a working [*484] relationship with the other side while remaining loyal to the client;
  
• to protect vulnerable clients from harm in ADR processes where there are power imbalances particularly those due to abuse and violence;
  
• to negotiate in good faith and ensure that clients also do so;
  
• not to pressure clients into settling without adequate reflection or allow them to be pressured by anyone else including the mediator; and
  
• to advocate for ‘a consensus solution that meets, above all, the needs of [the] client’

The examples given make it clear that lawyers need to feel their way carefully in the relatively uncharted waters of the new advocacy.

Finally Macfarlane identifies three ‘critical sources of influence and leadership’ or ‘sites of change’ which ‘have the potential to bring forward and promote initiative and innovations that will play an important part in the evolution of the new lawyer’ (p.125): legal education, the new judge and inter-professional collaboration. In an excellent section on law schools, she states, inter alia, that they ‘exist in a zone that is conceptually and practically isolated from legal practice’ (p.226), tend to assume that a choice must be made between two dichotomous goals for legal education, vocational training and intellectual development’ (p.226), offer practical skills or ADR subjects as ‘soft’ options, and continue to concentrate on advocacy skills in mooting programs and the like, rather than the broader skills needed for settlement advocacy. The section on the new judge is also interesting. It is clear from the author’s research that change is being initiated and embraced by many of the judiciary more wholeheartedly than by the lawyers who appear (albeit less and less frequently) before them. In a survey carried out by the author for the Canadian National Judicial Institute in 2002, ‘45% of judicial respondents stated that enhancing settlement conferencing skills was a personal priority’(p.234). Macfarlane considers that ‘qualities sought in prospective judges (will need) to reflect the nuances of a settlement as well as an adjudicative role’ (p.236). Finally, she discusses how the legal profession must, to a certain extent, abandon its traditional isolation and embrace collaboration with a number of other professions in order to remain viable in the future.

As far as I am aware, THE NEW LAWYER is the first book to thoroughly research and describe the massive changes in the legal profession and practice in the last three decades, and to make a serious attempt to predict what will happen in the decades to follow. This is a subject I suspect will be increasingly examined in the next few years as researchers realize that these changes are about to revolutionize the work of lawyers. Already another book by English professor Richard Susskind (2008) on the topic has been reviewed in this online venue. Its perspective is quite different; every author will approach the topic differently according to his or her training and experience. In her conclusion to the book Macfarlane sums up the current situation well:

To construct a complete picture of the many ways in which legal practice is changing, it is necessary to include many disparate elements: structural, economic, demographic, procedural, and cultural. [*485] These elements do not fit seamlessly together to form a single consistent theory of change. Nor do they provide us with a clear prediction of what the legal profession will look like twenty years from now . . . Questions about what that new professional identity, or choices among multiple identities, will look like are a long way from being answered – in fact, the questions themselves are only just being asked. This book is an effort to ignite and advance this debate.

Her book is in fact an outstanding effort. Readers will not be disappointed.

REFERENCES:
Susskind, Richard. 2008. THE END OF LAWYERS? RETHINKING THE NATURE OF LEGAL SERVICES. Oxford: Oxford University Press.

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© Copyright 2009 by the author, Deborah Macfarlane.

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THE TENSION BETWEEN GROUP RIGHTS AND HUMAN RIGHTS; A MULTIDISCIPLINARY APPROACH

by Koen De Feyter and George Pavlakos (eds). Oxford: Hart Publishing, 2008. 318pp. Hardback. £45.00/$95.00. ISBN: 9781841138299.

Reviewed by Upendra Baxi, Emeritus Professor of Law, University of Warwick. Email: U.Baxi [at] warwick.ac.uk.

pp.475-479

This book is a product of 2006 Utrecht Network Summer School on human rights, initiated by Matilde Callari Galli, Professor Emerita of Cultural Anthropology at Bologna. The network comprises as many as 33 European Universities ‘co-operating on the internationalization of higher education.’ (The reader is well advised to retain the loose leaf preface, which was surprisingly, for so scrupulous a publisher as Hart, ‘omitted in printing.’) Conversion of a summer school set of lectures into a serious academic publication is always a hazardous task, even when as the Preface to this book says that the ‘educational venture’ now develops ‘into a research enterprise.’ Truth to say, this book would have indeed benenfitted a great deal by some ruthless excisions. However, even the cognoscenti may find stimulating some contributions. This review article seeks to explain why.

The problem of group rights is rather well-worn, and so, in a manner of speaking, is the claim to multidisciplinarity. Multidisciplinarity has for long been an object of mimetic theoretic desire and perhaps nowhere the desire becomes as acute as in the sphere of ‘human rights.’ What may constitute the distinctively human is a question surely as important as what rights humans may have. The production of the human may be, as Giorgio Agamben educates us, the function of the modern ‘anthropological machine’ which operates ‘through the opposition man/animal, human/inhuman.’ The machine ‘necessarily functions by means of an exclusion (which is also always already a capturing) and an inclusion (which is also always already an exclusion).’ And indeed ‘precisely because the human is already presupposed every time, the machine actually produces a kind of state of exception, a zone of indeterminacy in which the outside is nothing but the exclusion of an inside and the inside is in turn only the inclusion of an outside’ (Agamben 2004, 37).

Agamben may well have been describing the notion of group/minority rights, and indeed the critical conception of ‘inclusive exclusion’ does help us grasp better the history of the ‘modern,’ and the making/unmaking of the ‘contemporary’ human rights. Certainly as to the former, postcolonial and post-enlightenment ways of reading suggest that, since the inception of the ‘modern’ human rights, the practices of violent epistemic and social exclusion remained rampant: certain classes of people and specified individuals were designated as either non-human (akin to objects in nature) or sub-/inferior humans (lacking the faculties of free will and powers of [*476] reason) and were therefore placed always outside the pale of human rights. In contrast, the contemporary theory and practice of human rights tends towards an expansive normative inclusiveness. Those born as human possess thus an inherent right to dignified life, and what counts as such life remains exponentially inclusive (See, for a further analysis, Baxi 2009). Even so, troublesome exclusions remain in place for many claimants of new rights (for example, those claiming a human right to sexual orientation and conduct, the asylum seekers, internally displaced peoples, and undocumented aliens). Further, the normative triumphalism of contemporary human rights values, standards, and norms – precious as this is in terms of the growth of collective moral sentiment – remains elusive in terms of actual exercise, enjoyment, and ‘realization’ of human rights. Overall, this work specifically illustrates this new dialectic in terms of group or collective rights. Any readerly weariness, orders of a dull familiarity marked by ‘we-have-been-there-before’ may thus miss out on the embarrassment de riches here fully offered.

At the outset, it may not be uncharitable to suggest that this work does not directly address the issue of authorship of contemporary human rights norms and standards by communities of resistance and peoples in struggles. What matter here primarily are acts of manifold engagement with the normative histories of group/collective/minority rights; I would be sincerely delighted for readings that suggest otherwise.

Multidisciplinarity here registers dynamic tensions, even contractions. Danilo Turk, in his introduction to this work, describes a series of manifest tension articulated by the ‘process of human rights realization . . . expressed in relationships between individuals and the community and between the individual and a variety of social groups in which the individual exists,’ a site of complexity and contradiction between ‘a firm status of the individual’ and ‘his or her right . . . to belong’ (p.2). This insistence on ‘firm status’ names a part of the problem because it must always elevate the non-reducible individual self beyond the bounds of ascribed and even achieved identities. This work, moreover, does not contemplate the ‘firm status’ of firms – multinational and other corporations and related business entities – which at the selfsame moment appropriate the languages and logics of human rights (as Michel Foucault once descried this) for the ends of ‘hyperprofit’ and ‘infrapower,’ while repudiating all forms of accountability for human rights violations and human abuse. Clearly, then, the narratives of multidisciplinary grasp of human rights invite several points of departure from the liberal theory and history of contemporary human rights, even when these remain rather indeterminate concerning some points of arrival.

Multidisciplinarity remains far from an easy virtue. This volume suggests many ways in which it stands annexed to our specific burdens and responsibilities within our singular professional traditions. Thus, even Galli, while excitingly accentuating aspects of ‘cultural dynamics of contemporariness,’ primarily cautious us against the ‘anthropological method of the previous century’ and reminds us of the desperate need to grasp ‘the potential destiny of local identities, of local cultures,’ and [*477] the ‘infinite localisms that will be assumed’ by the continual ‘interface with the dizzying processes of globalisation’ (p.78). A ‘different logic’ demands a ‘universalization of difference’ pitted ‘in opposition to the principle of identity’ (p.79). Yet the ‘grammar of human rights’ that now encourages ‘automatic translation of expectations into rights’ that are very difficult to uphold in the absence of adequate tools of governance’ (p.79). Galli thus foregrounds the enormous and enabling pertinence of the discourse of ethnography of human rights and philosophic anthropology; from this we learn of ‘multiple diversities that ‘characterize institutions, [human rights oriented], customs, and practices’ (p.86; see generally, pp.76-86). This provocation finds a variety of responses from other contributions to the volume.

For Koen de Feyter, multidisciplinary approach remains important primarily because it allows viewing ‘human rights law’ from the standpoints provided by ‘other disciplines.’ But these latter refer in the main to anthropological or sociological approaches. There is little narrative space here for a conception of multidisciplinarity that more fully acknowledges hybrid movements of thought represented by law and literature, law and economics (e.g., Baxi 2003), the craft of doing jural and juridical histories, and further law and technoscience traditions (e.g., Baxi 2007).

To say this is not to diminish de Feyter’s important contribution (pp.20-34). His essay focusing upon the ways in which recourse to ‘other disciplines’ may assist the ‘realization’ of contemporary human rights may best be described as instrumental multidisciplinarity. I do not sense its other in this volume – that is the pertinence of what I may crudely name here as intrinsic multidisciplinarity. Even so, it is not clear why contributions from the sociology of law may not assist the development of a comparative social theory of human rights. The contrast between the law-in-the books and the law-in-action, the notions of the limits of effective legal action, the promise and the peril of such ‘legalization’ (e.g., Meckled-Garcia and Cali 2006), and the problem of studying impact of legal norms on political and and social conduct do not just affect our understandings of human rights but all forms of modern law ( see, generally, Stone 1966).

Equally crucial, multidisciplinary approaches surely ought to revisit the potential contribution that human rights theory and practice may make to the doing of social theory. I remain rather diffident concerning the achievement of this volume in this sphere consistent with a sincere respect for the many worthwhile contributions of this volume..

The broadly empirical contributions offered by Part IV remain diversely instructive. Rebecca Pates situates poignantly in the contexts of ‘prostitution’ the ‘search for the right rights,’ juxtaposing ‘local epistemologies’ with ‘creative hybridity’ (Chapter 8). The cameo study, by Giovanna Guerzoni and Daniela Soci, focuses on a Italian research-action project, ‘Adopt A Right,’ in the context of school education and child rights (pp.198-204) and speaks further to the imponderables of the so-called human [*478] rights education/leaning at micro-level. So does the rather rich programmatic suggested by Bruno Ricco and Giuspee Scandurra, in the troubled contexts of migrations and social exclusion, constructing some dire forms of ‘citizenship’ (Chapter 10). Lisanne Wliken offers good insights concerning recent histories of specific EC narratives of the Federal Union of European Nationalities (FEUN) and specifically of the little known European Bureau For Lesser-Used Languages (EBLUL) (respectively at 97-98 and 100-101). The messages so richly offered transcend the terms of the EC discourse for global South societies, ravished by violent disorders of human rights passions and struggles for linguistic and cultural autonomy. I invite ‘readerly’ attention as well to other contributions, especially Anca Minscu (addressing inter-group determinants: Chapter 11) and the essays in Part V, even when traversing the all too familiar ground. Overall, the authors direct attention to what Galli refers to as ‘infinite localisms,’ though with vastly varied contextual messages.

Respecting all along other contributions to this volume, perhaps it may be justly said that the discursive piece de resistance is offered by George Pavlakos concerning ‘non-individualism and rights (Chapter 7). Pavlkaos offers a justified critical move away from what he calls ‘shallow communitarianism’ (pp.156-159), followed by a remarkable set of reflections concerning the ‘practice theory’ (pp.159-164), and supplemented further by some exemplary formulations about ‘persons and communities’ (pp.163-170). Various communitarian thinkers may well contest the point that their work, after all, does not always ‘rise above the set of polemical remarks’ (p.155). Even granting Pavlakos’ critique of human rights praxes in which the activist performativities remain not ‘readily fathomable by the subjects that partake of them’(p.161), the jury may well remain out concerning what is described here as ‘a better means for formulating what distinguishes normative from non-normative . . . conceptions of practice’(p.163).

While few may call into question the claim that ‘personhood is a normative concept which is linked with a non-individualist conception of reason’ and the accompanying notion of human rights agency as a ‘capacity to handle reasons’ (p.165), this neo-Kantian narrative runs the risk of ignoring the sentimental ‘unreason’ of many practices of non-normative human rights and social movement folks. The otherwise persuasive discussion concerning ‘universalization’ and autonomy’ pp. 167-170) suggesting that personhood . . . is intertwined with the idea of universalization’ (p.170) after all seems to provide little, or no, deliberative attention to the forms of politics of desire that so insistently contributes to the contemporary human rights implosion. A ‘practice theory’ may not be complete without a full account of sentimental and passional practices of reason. As critical race and feminist theorists would altogether too readily ( and rightly) remind us all neither ‘universalization’ nor ‘autonomy’ talk may any longer afford to ignore or discount struggles as an aspect of practice theory. This work offers grist to the mill of that which Pierre Bourdieu (1997) critically named as ‘theory of practice.’Put another way, the suffering [*479] humanity’s praxes ought to remain central to any ‘practice theory.’

REFERENCES:
Agamben, Giorgio. 2004. THE OPEN: MAN AND ANIMAL (trans. Kevin Attell). Stanford, CA: Stanford University Press.

Baxi, Upendra. 2009. THE FUTURE OF HUMAN RIGHTS (3rd ed). Delhi, Oxford University Press.

Baxi, Upendra. 2007. HUMAN RIGHTS IN A POSTHUMAN WORLD. Delhi/Oxford: Oxford University Press.

Baxi, Upendra. 2003. ‘The Colonial Inheritance,’ in Pierre Legrand and Roderick Munday (ed.). COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS. Cambridge: Cambridge University Press, 46-75.

Bourdieu, Pieere. 1997. OUTLINE OF A THEORY OF PRATICE. Cambridge: Cambridge University Press (Trans, Richard Nice).

Meckled-García, Saladin, and Basak Çali (ed.). 2006. THE LEGALIZATION OF HUMAN RIGHTS: MULTIDISCIPLINARY APPROACHES. London: Routledge.

Stone, Julius. 1966. SOCIAL DIMENSIONS OF LAW AND JUSTICE. Sydney: Maitland Publication.

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© Copyright 2009 by the author, Upendra Baxi.

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