LAW’S ALLURE: HOW LAW SHAPES, CONSTRAINS, SAVES, AND KILLS POLITICS

by Gordon Silverstein. New York: Cambridge University Press, 2009. 332pp. Hardback. $80.00/£40.00. ISBN: 9780521896474. Paperback. $23.99/£15.99. ISBN: 9780521721080. eBook format. $19.00. ISBN: 9780511530432.

Reviewed by Tom S. Clark, Department of Political Science, Emory University. Email: tom.clark [at] emory.edu.

pp.651-655

In LAW’S ALLURE: HOW LAW SHAPES, CONSTRAINS, SAVES, AND KILLS POLITICS, Gordon Silverstein sets out to provide a narrative framework for understanding the judicialization of policy choices. Central to his inquiry are two questions. First, why and how has judicial involvement in policy-making expanded throughout the course of American history (especially during the twentieth century)? Second, how does judicial involvement in policy-making play out, and what are the consequences of judicial involvement in political policy-making? Through a discussion of the Supreme Court’s growing breadth of engagement with political policy-making and a series of careful case studies, Silverstein provides an insightful “roadmap” for future scholars interested in exploring the causes and consequences of judicial policy-making. Indeed, the analyses in this book should provide considerable grist for the mill as this line of literature moves forward.

Silverstein begins in the Introduction by offering a term that will be at the center of his analysis. “Juridification” refers to “rel[iance] on legal process and legal arguments, using legal language, substituting or replacing ordinary politics with judicial decisions and legal formality” (p 5). Juridification represents the form of judicial intervention in policy-making in which Silverstein is interested. In Chapter 1, Silverstein then sets out to explore why a policy-maker may seek to juridify a policy, what role the courts play in the policy-making process once a question has been juridified, and how the process of juridification works.

Silverstein offers two possible reasons why juridification may take place. First, juridification may be preferred by relevant actors in the political system. There are four reasons why juridification may be preferred: (1) juridification may be believed to be the most effective, or a necessary, means of achieving a policy goal; (2) juridification may have “spill over” consequences, mobilizing or galvanizing a political movement; (3) the allure of law and the legal process may endow a policy change with a shine of normative superiority; and (4) juridification may be a politically expedient way of achieving a policy goal while allowing politicians to avoid blame for potentially unpopular changes. Second, juridification may take place because it is the only realistic option as a consequence of either profound institutional barriers or profound political barriers.

Two points in particular are worth noting here. First, Silverstein does an excellent job incorporating the relevant literature [*652] and demonstrates a strong command of the various factors that make “taking it to the courts” (my words, not his) the best way to achieve policy goals. However, the distinction between juridification as the only realistic option and juridification because it is preferred seems too strong. It seems, rather, that profound institutional or political barriers are simply an extreme case of an actor being motivated to pursue juridification for purposes of expediency or efficiency. In his later discussion of the process of juridification, and in his case studies, this distinction does not seem to play a critical role; the strict distinction early on is in some sense, then, distracting.

Second, Silverstein never provides a clear account of whom his theory addresses. Is it a theory about politicians? Activists? Somebody else? It becomes clearer later on that his claims are intended to apply broadly to anyone involved in pursuing juridification. However, it also becomes clear, then, that some of his claims apply better to certain types of actors than to others. I would have liked for Silverstein to draw out these distinctions more fully and describe the implications of the varying applicability of the possible incentives to the range of actors encompassed by his argument.

Having described the set of reasons why juridification may be pursued, Silverstein sets out to describe the process by which it takes place. Silverstein notes three functions the courts have traditionally served in American policy-making. When a policy question arises, the courts can (a) remain silent, (b) allow the government to take the action in question, or (c) block the government from taking a particular action. However, Silverstein argues, beginning in the 1960s, “the Warren Court first signaled the possibility that, in addition to its traditional function of saying what government could and what it could not do, the courts might now also be available to say what the government must do” (p.29). Except when the courts remain silent, judicial intervention – either blocking, allowing, or commanding – can either end the process or lead to an iterated process of policy-making with the elected branches of government. Silverstein asserts that more often than not, a court’s decision is “but the first step in a long, iterated chain, in which policies and decisions spiral from Court to elected branches, to administrative agencies, and back into Court” (p.30). Silverstein notes, though, that “juridification is not an all-or-nothing proposition, but rather spreads across a continuum” (p.38). Judicial decisions that end the process are simply one end of the continuum, and on-going, iterative policy-making is the other end. For Silverstein, the continuum extends from complete judicial control to an indeterminate back-and-forth between the courts and the elected branches. It strikes me, though, that the continuum of juridification actually extends from complete judicial control at one end to no judicial control at all, at the other end. The back-and-forth, indeterminate state is actually a point in between the two ends of the spectrum. While the range of interactions studied by Silverstein is reasonable and useful in its own right, I would have liked to see more discussion of the possibilities in the other half of the range of juridification – the half where the elected branches are more dominant, even while the courts still play some role. [*653]

Working together, the courts and other actors – specifically, the elected branches – can be either “constructive” or “deconstructive.” A constructive pattern emerges when the courts and other actors have aligned preferences and goals; their respective contributions work together to build a sound policy that operates well and continually evolves in a unified direction. A deconstructive pattern, by contrast, emerges when the various actors “are very much on different pages” (p.38). Deconstructive patterns need not be characterized by conflict among the various policy-makers but rather by poorly coordinated interactions. Silverstein argues that deconstructive patterns pose greater “risks” for policy entrepreneurs, because deconstructive processes can entrench problems and frustrate efforts to achieve specific goals. Whether the courts and the elected branches engage in a constructive or deconstructive process is driven by two factors: ideological alignment and the ways in which the various institutions approach the policy question.

In Chapter 2, Silverstein addresses the next point in his narrative: When did juridification begin to take place? Silverstein notes that courts have been actively involved in policy-making during many eras in American history and in areas involving important and salient policy questions. However, beginning after the New Deal, the courts, and the Supreme Court in particular, signaled their willingness to go beyond the allowing and blocking forms of juridification; the courts signaled their willingness to command government action. Silverstein points to three cases in particular that marked a changing judicial perspective on commanding government action. BROWN v. BOARD OF EDUCATION, and its progeny, commanded the government to take action to eradicate segregation in public education. BAKER v. CARR commanded the government to take action to protect voting rights and voting equality. GIDEON v. WAINWRIGHT commanded the government provide legal counsel to criminal defendants.

Silverstein does recognize, of course, that the Court’s command of government action is not new. “American judges have no problem telling people what they must do, and have done so for generations, although mostly in disputes dealing with property and contract claims. In areas concerning broader public policy claims, the shift from “can” and “cannot” to “must” represents and important break with past practice, though it followed quite logically from the American legal tradition” (p.60). Silverstein does not, however, provide much discussion concerning why this shift took place and what the consequences are. He provides some discussion of the historical division between law and equity, noting that the modern juridification of “broader public policy claims” is equivalent to the Supreme Court’s intervention in claims of equity.

Still, with the conclusion of Silvertein’s framework for thinking about juridification, one is left wondering why it matters. Why is it important to understand when and why policy questions become juridified? It is to this final point in his narrative that he turns in Chapter 3. The argument here is simple: courts are different. Courts are loath to overturn, or backtrack from, previous decisions, and juridified [*654] policies are therefore susceptible to a particular kind of path dependence. Crucially, either unilateral judicial policy-making, or an iterative process, in combination with the binding and constraining nature of judicial precedents, can shape the future and direction of the particular policy in question. And, the direction of judge-made policy can be stickier than legislatively-created policy. It is at this point that it becomes clearer what Silverstein has in mind when he refers to the “risks” associated with juridification. Judicial decisions in a given policy area can foreclose future options or entrench current choices to a greater extent than legislative decisions. At the same time, Silverstein recalls to the reader that there are upshots to juridification, not the least of which is that pursuing juridification may be a more expedient method to achieve some, if limited, success.

In Chapters 4 through 9, Silverstein embarks on detailed case studies of several notable policies that have been juridified, to demonstrate the process by which juridification takes place and its consequences. I will not go into great detail discussing his case studies except to note that he demonstrates a strong command of the historical record. In addition, the various case studies, covering abortion, environmental regulation, campaign finance, the separation of powers, presidential war powers, and tobacco regulation, both offer interesting and compelling accounts of substantively important policies and provide useful insights into how the various processes of juridification play out. These chapters are very compelling by themselves.

In the Conclusion, Silverstein steps back to reflect on the implications of his argument, the broader questions touched on, and the issues left unresolved. Law, he claims, is different because it is both a fast way to achieve policy goals and a mythic, special form of policy. While there are risks associated with juridification (Silverstein seems to have a narrow definition in mind, though the term is used broadly), juridification can help break through political barriers otherwise insurmountable. The trick, Silverstein notes, is in finding the right time to “juridify” and the proper balance of judicial policy-making and legislative (or executive) policy-making.

In the end, Silverstein’s analysis lays fruitful groundwork from which future research will surely build. Numerous questions are raised by his claims and argument. One question that readily jumps to mind is: Can we more fully define the institutional differences between courts and other institutions? Silverstein argues that deconstructive policy-making can take place when the courts and other actors are either ideologically misaligned or when they view policy issues differently. This raises an interesting question – in what ways do different institutions approach policy issues in different ways? How do those differential views affect their policy-making choices? Answers to these questions seem crucial to understanding precisely what institutional differences give rise to deconstructive policy-making. Numerous other questions abound, which I think is a testament to the provocative qualities of Silverstein’s study. I look forward to the future research that will extend and build upon [*655] the very interesting claims and insights offered in this book.

CASE REFERENCES:
BAKER v. CARR, 369 U.S. 186 (1962).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963).

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© Copyright 2009 by the author, Tom S. Clark.

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REGULATING AUTONOMY: SEX, REPRODUCTION AND FAMILY

by Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson, and Martin Richards (eds). Portland, OR: Hart Publishing, 2009. 298pp. Paper $70.00/£35.00. ISBN: 9781841139463.

Reviewed by Claire E. Rasmussen, Department of Political Science. University of Delaware. E-mail: cerasmus [at] udel.edu.

pp.647-650

REGULATING AUTONOMY: SEX, REPRODUCTION AND FAMILY brings together fourteen essays addressing some “hard cases” that arise at the intersection of personal autonomy and state regulation. By examining the legal and regulatory issues surrounding the family, sexual activity, and reproduction, the chapters wade into territory that many feminist legal scholars have identified as problematic for traditional liberal conceptions of autonomy, and that argue the state should at least avoid interfering with private autonomy and at best should enhance individual capacity for autonomous action. Since issues of family or sexuality almost inevitably involve the entanglement of more than one autonomous or potentially autonomous individual, the role of state regulation is complicated. The collection gives an overview of the autonomy and law literature, engaging in particular with the relational autonomy literature emerging from feminist critiques of autonomy (MacKenzie and Stoljar 2000). Relational autonomy suggests autonomy is best understood, not as a capacity of isolated individuals, but as emergent from relationships of interdependency in which socially-embedded selves make choices limited and enabled by others. The volume does not seek to further the theoretical analysis of autonomy but instead to consider autonomy within specific contexts in which the state seeks to regulate individual choices, whether as a means of protecting individuals from others and, potentially, from themselves.

The overall volume makes the somewhat banal point that autonomy is not always best served by an absence of regulation, especially in intimate choices surrounding sex, family and reproduction where social norms and deeply embedded power structures may be a greater hindrance than the state. While addressing many fascinating and thought-provoking case studies, they do not make a clear argument as a whole, limiting the contribution of the text to more theoretical debates about autonomy or to the significant body of literature on the legal regulation of intimacy. The text thus reads as an interesting set of chapters that address questions of sex, intimate relations, and reproduction, but not necessarily a volume that casts new light on questions of autonomy. The text would have benefitted from a more explicit conversation about autonomy across chapters as well as a more explicit examination of the idea of regulation. Some authors focus chiefly on state or legal intervention as regulation, while others use a broader definition that includes professional rules, social discourse, markets, activist framing, and moral norms. Such a definition is certainly necessary in the context, but the theoretical contribution of the text is [*648] limited somewhat by divergent views of what constitutes regulation and an incomplete analysis of the intersection of how different forms of regulation interact, highlighting the overall point that state regulation is not the only source of limitation on autonomy and, in fact, can enhance the capacity for autonomous action in other contexts.

After a terse but effective overview of the idea of autonomy and the literature on relationship autonomy, the volume is divided into two main sections, one titled “Intimacies and Domestic Lives” and the second titled “Reproduction.” Suzanne Jenkins’ chapter, “Exploitation: the Role of Law in Regulating Prostitution,” explores the regulation of prostitution. She makes an argument that the regulation of prostitution must recognize both the contextual factors that may rob women of choice in these contexts as well as the possibility that for some women prostitution may be an affirmative choice. Jonathan Herring’s chapter, “Relational Autonomy and Rape,” argues that the emphasis on consent often ignores the context in which consent is sought and obtained, and thus legal inquiries suggesting that consent is either present or absent are reductive, though Herring does not offer a legal remedy for this problem. Helen Reece’s chapter on “Feminist Anti-violence Discourse as Regulation” makes a provocative argument that the feminist expansion of the definition of violence has erased the context of violence by assuming the male perpetrator/female victim relationship, thereby eradicating a contextual analysis of the circumstances in which violence occurs and in which either party may be an agent of different kinds of violence. Although an interesting thesis, the chapter illustrates some of the overall problems of the volume in a failure to explicitly tie together the book in a coherent narrative. While most of the other chapters explicitly address state regulation, Reece suggests anti-violence rhetoric is a form of regulation, a controversial position that requires some elaboration. How does this rhetoric generate regulation; is it influential in the public narrative around domestic violence, does it lead directly to legal regulation, is it an idea internalized by individuals? These considerations are already addressed in socio-legal literature such as Jean Cohen’s REGULATING INTIMACY or even governmentality-influenced literature.

The next four chapters in the section examine less familiar territory. Ellie Lee and Jennie Bristow’s “Rules for Feeding Babies” is an interesting inclusion, addressing (as does Reece) primarily extra-legal sources of regulation looking at the discourse encouraging women to breastfeed, often through social pressure. They suggest that these forms of pressure to breastfeed may compromise women’s decisional autonomy, though they do not address, for example, counter influences such as workplace rules, the regulation of breastfeeding in public and other complicating factors. For example, what are the implications for women’s choices, when the predominant social discourse encourages breastfeeding but public/private regulations forbid breastfeeding in public? Jan Pryor’s “Regulating Step-parenthood” raises an obvious but rarely addressed issue of autonomy in families that are by necessity the product of state regulation, raising the issue of multiple parenting decisions as well as children’s rights. The authors clearly illustrate the [*649] ways that family relationships can be enhanced by greater legal intervention that establishes flexible relationships of responsibility. The chapter on the family bar addresses a useful question that arises as well in the next section on the role of professionals or experts in enhancing autonomy. Mavis MacLean and John Eekelaar’s “Legal Representation and Parental Autonomy” demonstrates the ways that legal representation can enhance autonomy for individuals navigating the legal system, though always tempered by dependence upon the expertise of others. Julia Davidson and Elenea Martellozo’s “Internet Sex Offenders: Individual Autonomy, ‘Folk Devils’ and State Control” considers the question of autonomy primarily through the lens of punishment for sexual offenders, considering when intervention is necessary (i.e., punishment for “grooming” children for abuse before physical abuse has happened, punishments for possession of pornographic materials) and whether some punishments such as chemical castration violate autonomy. The chapter addresses the question from a primarily criminal justice perspective without addressing some of the more complex questions of the regulation of sexual desire or the sexual desire of legal children, including recent moral panics over “sexting” and other uses of technology by “children” for sexual purposes.

The second, shorter section on “Reproduction” looks primarily at the regulation of technological interventions into reproduction, including assisted reproduction therapy, genetic selection, gamete and embryo donation, and abortion. This section considers a number of ethical dilemmas in which individual choices have broader social consequences, such as the sex selection of embryos (or selecting for or against specific traits), or the unequal distribution of assisted reproductive technologies. Theresa Glennon’s “Regulation of Reproductive Decision-making” and Martin H. Johnson and Kerry Peterson’s “Instruments for ART Regulation” suggest that regulation of assisted reproduction technology (ART) raises conflicts of interests between individuals, the state, and professionals. Martin Richards directly addresses the moral dilemmas involved in individual choices in “Which Children can we Choose?” in which he examines the arguments for and against allowing individuals/couples to manipulate the genetic composition of their children. Susan Golombok explores the complexity of reproduction with donors in “Anonymity – or not – in the Donation of Gametes and Embryos” and explicitly discusses the balancing of the rights of children, the right to privacy of donors, and practical questions of how a lack of anonymity may impact donation. Laura Riley and Ann Furedi’s “Autonomy and the UK’s Law on Abortion” makes the most definitive claim about regulation, arguing that the UK’s restrictions on abortion violate women’s autonomy by making them overly reliant on the professional opinions of service providers.

Several authors address the issue that uncertainty about the state’s role in these questions has left the regulation to the market which has definite class-based implications that are not as clearly addressed in these pieces. The exploration of these questions within the context of contemporary regulation does [*650] allow the authors to note specific issues that arise in practice, such as the denial of services to unmarried or same-sex couples. In addition, the authors do raise important questions of the autonomy of children who are implicated in these decisions. At times, these chapters illustrate the advantage of exploring some of these abstract questions of autonomy within concrete contexts, such as Richards’ discussion of deafness and whether deaf parents have the right to deliberately produce a deaf child. The chapters might have benefited from a more systematic exploration of the ways that all of these reproductive issues raise questions of class inequality, as well as gender and racial inequality.

Looking at autonomy in the context of specific cases clearly illustrates the opening argument that autonomy is rarely the autonomy of isolated individuals, but is instead a complex negotiation between multiple individuals, social norms, and state regulations. Many of the individual cases are thought-provoking and useful for scholars of family law, feminist legal theory, and autonomy. They raise many provocative questions about the relationship between autonomy and regulation by challenging the assumption that these two things are necessarily opposed to one another. However, scholars of autonomy or those already well-versed in the debates around relational autonomy will find the theoretical contribution somewhat lacking. The chapters are accessible and could be useful in an undergraduate or graduate course on gender and law or family law. Most of the empirical examples are drawn from the UK (and to a lesser extent New Zealand, Australia, Canada and the US) which may limit the text’s usefulness in the North American classroom.

REFERENCES:
Cohen, Jean. 2004. REGULATING INTIMACY: A NEW LEGAL PARADIGM. Princeton University Press.

Mackenzie, Catriona and Natalie Stoljar. 2000. RELATIONAL AUTONOMY: FEMINIST PERSPECTIVES ON AUTONOMY, AGENCY,AND THE SOCIAL SELF. New York: Oxford University Press.

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© Copyright 2009 by the author, Claire E. Rasmussen.

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AMERICA AT RISK: THREATS TO LIBERAL SELF-GOVERNMENT IN AN AGE OF UNCERTAINTY

by Robert Faulkner and Susan Shell (eds), with the assistance of Thomas E. Schneider. Ann Arbor: The University of Michigan Press, 2009. 288pp. Cloth: $35.00. ISBN: 9780472116683.

Reviewed by Michael Paris, The College of Staten Island (CUNY). Email: michaelpari [at] gmail.com.

pp.637-646

This book offers a collection of twelve essays on the current state of liberal democracy in the United States. Editors Robert Faulkner and Susan Shell, both political theorists at Boston College, state that the purpose of their volume is “to set forth and examine the most important dangers confronting America today.” Toward that end, they “sought out political analysts whom [they] had reason to think first-rate[,]” and asked “each to select a problem that he or she thought particularly serious.” Faulkner and Shell also note that we will not find in these pages the musings of any “visionary reformers, philosophic dreamers, angry revolutionaries, or gloomy reactionaries” (pp.1-2). While some readers might want to quibble with this assessment – I met one visionary reformer, albeit a right wing one, and at least two gloomy reactionaries – as a general matter this volume’s esteemed contributors do struggle mightily to steer judicious courses through our typically shrill and polarized political debates. In fact, the political orientations guiding these analyses range from conservative (sometimes of the Straussian persuasion) to moderately liberal (think Democratic Leadership Council).

The result of Faulkner and Shell’s efforts is a veritable intellectual feast. The essays are uniformly lively and highly engaging; sometimes they are wonderfully provocative. As someone who came to this collection from a political standpoint far to the left of its contributors, I can testify that it succeeds in achieving the editors’ stated goal of fostering “a conversation that speaks directly and productively, without the zeal of methodologies, schools, or narrow creeds, to the major challenges of the years ahead” (p.2).

Faulkner and Shell divide the book into four parts. In Part I, “the Wages of Empire,” Pierre Manent and Niall Ferguson offer contrasting views on American foreign policy and America’s place in the world. In Part II, “Creeds and Parties,” William Galston, James W. Ceaser, and Alan Wolfe each offer pieces taking up matters of contemporary political theory and the practical implications of current ideologies. In Part III, “A Divided People,” we find four essays on urgent topics of domestic politics: the condition and future of “the liberal family” (Susan Shell); growing economic inequality and its implications for liberal democracy (Kay Lehman Schlozman and Traci Burch); immigration politics and policy (Peter Skerry); and religion, secularism, and polarization (James Q. Wilson). In Part IV, “Dilemmas of Self-Government,” [*638] Peter Rodriguez discusses the implications of declining savings rates, Harvey C. Mansfield calls into question the value of the very idea of “rational self-control,” and Hugh Heclo sketches the key elements of a “new American political system” that, in his view, render American liberal democracy broken.

The dominant themes of the volume are the erosion of institutions and cultural norms that once better supported liberal democracy and the consequent enervation of active democratic citizenship. While the authors locate the origins of decline and risk in various places, their essays often focus on questions of character and its deformation, whether character refers to nations or national political cultures, to political leaders, or to ordinary citizens.

Part I: The Wages of Empire

In “The Transatlantic Predicament,” Pierre Manent offers an interpretation of the origins and implications of “the profound divergence about the world, and what we are supposed to do in the world, between Europeans and Americans” (p.15). For Manent, the Iraq War merely brought out into the open long-simmering trends. By 9/11, America had already developed a “militarized” perspective on the world (p.20-22). Manent quickly adds that he is no leftist railing against “militarism;” he is after something more elusive and potentially dangerous. The United States, he argues, “was largely forged through a succession of victorious wars waged for liberty and equality” [Vietnam notwithstanding] (p.22). He states: “Uniquely victorious, uniquely innocent, the Americans were uniquely aggrieved on September 11, 2001.” Manent invites us to pause over (and perhaps to tremble before) “the spreading self-definition of the United States as the only country that is simultaneously democratic and Christian” (p.23). Power, innocence, and vulnerability now give us wars for a “huge and unheard of reformation of the Muslim world” (p.24). And what of Europe? Manent’s commentary is equally withering. After the unspeakable horrors of the first half of the twentieth century, Europe withdrew from the world into the cocoon of “the European construction.” Tepid legalism and sentimental humanitarianism – politics conducted on the model of Doctors Without Borders, he says – has replaced meaningful politics and the capacity for action. The retraction of Europe from the world stage has “had a rather deleterious effect on American self-awareness” (p.20). Because neither America nor Europe properly understands itself, neither can understand the other.

In “American Democracy: The Perils of Imperialism?” Niall Ferguson takes a rather different view. Ferguson, a genuine polymath, prolific author, and leading intellectual cheerleader for the Iraq War, argues that America is in fact a liberal global empire. However, the problem is not that America is an empire – and what sane person could disagree with the claim that it is an empire of at least some sort? – but that America is in denial about the fact that it is an empire. Therefore, America’s understandings, commitments, and strategies leave a lot to be desired. Specifically, denial about empire gives rise to four “deficits.” Ferguson addressed the first three in an earlier book (2004), and he adds a fourth here. First, there is a “financial deficit,” [*639] which stems from tax cuts, increased domestic expenditures, and dependence on foreign capital. Second, there is a “manpower deficit.” The U.S. recruits and deploys only a small percentage of the military and civilian personnel actually needed to remake other countries. Third, there is an “attention deficit.” We lack the ability to sustain “public support” for protracted conflicts. Fourth, there is now a “legitimacy deficit” because the United States is rather unpopular in the rest of the world. The real problem, Ferguson says, is not “the ‘hegemonic pretensions’ of the United States, but its chronic lack of imperial stamina” (p.50).

In responding to Ferguson’s essay, one does not know quite where to begin. In this essay at least, he argues mostly by assertion, and sometimes by flawed historical analogy. When he gives reasons, the logical gaps can be astounding. For example, to support his claim that, unlike the denizens of empires from the days of yore, we Americans have an attention deficit disorder, Ferguson notes that it took but eighteen months for U.S. public opinion to turn against the Iraq War (p.43). It could not possibly be the case that Americans were sluggishly waking up to the fact the whole crisis over Iraq was a colossal con job in the first place, could it? Likewise, he says, our “legitimacy deficit” flows not from the immorality of the Iraq War, but rather from the fact that “mistakes were made” in how it was sold and carried out. Our leaders in the executive branch should have been more honest about what they knew and did not know about WMDs and the al-Qaeda link (pp.46-47). But, obviously, if our leaders had not recklessly exaggerated many claims, then they might not have had the war that they (and Ferguson) so desperately wanted. Ferguson also claims that things would have gone much better in Iraq had we not sent the boy to do the man’s job, as it were. In fairness, we should note that Ferguson did urge sending in more troops before the war started.

Ferguson’s view does make us confront a large question that we do not normally want to face. “Empires,” he writes, “are like the poor: always with us” (p.44). If we don’t do it, he seems to be saying, somebody else will. And, since our motives are largely benign (I’m not sure how he knows this) and our track record at reconstruction is mixed, more muscularity is superior to naïve isolationism. The lingering question is whether there is a third, viable alternative between these two extremes.

Part II: Creeds and Parties

In “Defending Liberty: Liberal Democracy and the Limits of Public Power,” William A. Galston provides a useful template of considerations to guide thinking about how to draw lines between public and private liberty. Galston’s premises are that the public/private distinction is and must remain “at the heart of liberalism” and that “all rightful government is limited government” (p.58). However, in our age, there are increasing pressures for government to encroach on private liberty. Galston’s objectives seem to be to foster mindfulness about these pressures and to fortify the lines of defense. After briefly canvassing four “practical challenges” and three “theoretical objections” to limited democracy, Galston reviews five possibilities for defending it. These [*640] arguments are familiar. However, Galston offers a twist in his fundamental claim that the strongest defense of limited government might be found in the nature and benefits of political pluralism. Because “our obligations are plural and heterogeneous . . . ,” he writes, “many important elements of life evade the grasp of politics.” There is a presumption here in favor autonomous zones of authority (say, the realms of faith and family).

In “A Clear and Present Danger: The Doctrine of Political Nonfoundationalism,” James W. Ceaser suggests that we are vulnerable to purposelessness and drift because of developments in political theory and their potential influence in public discourse. Ceaser’s essay draws on and extends his 2004 Tocqueville Lecture in American Politics (See Ceaser 2006, with comments by Jack Rakove, Nancy Rosenblum, and Rogers Smith). Oddly, this source for the more extended argument is not cited in AMERICA AT RISK. Interested readers might consult the larger lecture and ensuing debate.

For Ceaser, “the greatest threat to America today comes from a theoretical doctrine,” which he labels “political nonfoundationalism.” Nonfoundationalism draws its life from thinkers as disparate as Rorty, Rawls, Habermas, and Derrida. What these philosophers have in common is the desire “to erect a high wall of separation between foundations and politics” (pp.75-76). The nonfoundationalists deny the relevance of “foundational concepts” to the conduct of politics. Ceaser’s attack on nonfoundationalism is based on his argument for the existence and importance of a particular kind of idea (“foundational concepts”) in American political development. A foundational concept is “a first principle that explains or justifies a general political orientation.” Foundational concepts arise within political life itself and supply grounds “beyond which any further response is thought unnecessary” (p.79). Ceaser discerns three basic types of foundational concepts operative in American political development – those grounded, respectively, in Nature, History, or Faith (pp.79-84) – and argues that they have come to the fore during times of crisis.

The largest question Ceaser asks us to think about is whether a thriving liberal democracy can or cannot do without “fixed philosophical principles.” Ceaser thinks that we eschew foundations and foundational thinking at our peril. Why? On inspection, we find that Ceaser’s answer to this question is inextricably linked to his answer to another one: Who are we, really, as a people and a nation? In her response to Ceaser’s Tocqueville Lecture, Nancy Rosenblum asked Ceaser why he thought we could not now do quite nicely (thank you very much) without the search for and assertion of foundationally true principles. Why would not essentially contested “second-story concepts” (like liberty and equality) be enough to sustain us? (2006, p.119). Ceaser provided a spirited rejoinder to Rosenblum, but he did not answer this specific question (2006, pp.178-190). In this “clear and present danger” essay, he does so. For Ceaser, the American polity “is not entirely defined by its formal political model (“liberal democracy”), but is also made up of its animating spirit, which includes devotion to a version of natural rights [*641] and to biblical faith” (p.78). Nonfoundationalism will sap our moral energy. Without the pursuit of foundations, the “nation will be unable to extract from its members the added measure of devotion and resolve needed guarantee its survival” (p.93). Nonfoundationalism threatens who we really are.

In “The Dangers of Conservative Populism,” Alan Wolfe gives us some breezy yet astute political commentary on the end of the era of Nixon and Reagan. Once upon a time, liberals lost touch with the concerns and practical wisdom of broad swatches of the American public. Conservative ideas and policy proposals flourished. However, it turned out that conservatism in power was “conservatism without conscience.” The reason? The changes wrought by liberalism included the injection of many elements of unmediated, raw democracy. In order to win and keep power, conservatives became masters at populism. As dangers to democracy go, conservative populism far outstrips the defects of the liberalism it replaced (pp.98-99). Wolfe then takes us on a whirlwind critical tour of Bush 43’s foreign and domestic policies. Populism, Wolfe concludes, has always been a close cousin of authoritarianism, for it cuts out the mediating institutions and practices that foster deliberation and compromise (p.108). For a generation, conservatives have ruled. However, their capitulation to populism means that they leave little of lasting value behind them.

Part III: A Divided People?

In “The Future of the Liberal Family,” Susan Shell sees a danger in declining birth rates in Europe and the U.S. In this regard, the U.S. differs a bit from Europe; it maintains roughly a replacement birth rate overall. However, the U.S. also has “a relatively high rate of poverty, fatherlessness, and infant mortality. . . [compared to] other liberal societies” (pp.117-118). We are failing to invest sufficiently in the well being and moral development of the next generation. For Shell, one important force behind these troubling trends is “new legal definitions of marriage and the family that assign childbearing and child-rearing an increasingly marginal status” (p.119). Shell then turns to a fascinating account of the nature and place of marriage and the family in social contract theory (Locke, Rousseau, and Kant). The sketch mirrors later cultural changes in ideas about marriage. By the time we get to Kant, marriage is “a contract between two formally identified and equal adults.” From this exaltation of autonomy and choice, it is not a long step to marriage “as a contract among adults for their own mutual satisfaction, and without any essential relation to procreation” (p.130). Shell is no reactionary. She would grant gay and lesbian couples full rights of inclusion, including adoption rights, with the exception of the honorific title of marriage, and she rejects conservative efforts to turn back the clock with their heavy-handed approaches on marriage (See also Shell 2004). Her concern is with the articulation between family forms and practices and the liberal constitutional order. Liberal societies have always depended on families to inculcate norms and habits essential to democracy. For some reason (and I don’t mean to be snide here, but the reason escapes me), Shell believes that the presence of men and the definitional [*642] connection between marriage and “generation” are essential to the family’s performance of this role. Her preferred solutions to the problem she highlights involve gently “pushing back” against the new cultural and moral latitude. Many readers will no doubt disagree. For my part, I wondered what we know and what we might learn from empirical investigations of the questions Shell raises.

In “Political Voice in an Age of Inequality,” Kay Lehman Schlozman and Traci Burch explore the political implications of growing economic inequality in the United States. After describing increases in economic inequality since the mid-1970s, Schlozman and Burch note the standard findings from their field. Political participation varies directly and consistently with measures of class. Some say nonparticipation does not matter much because responses to survey questions show that participators and nonparticipators have the same range of partisan and policy preferences. However, some evidence comparing disadvantaged to advantaged participators also shows that class does influence what people say and do, once they are involved. The authors go on to ask whether growing economic inequality has resulted in commensurate increases in unequal political participation. Although, surprisingly, some evidence indicates that a bad situation has not gotten worse, it is still very much the case that Schattschneider’s argument basically holds: “the heavenly chorus still sings with a strong upper-class accent” (pp.157; and 156-166). This is not a crisis threatening the republic, but merely a very serious problem demanding our attention.

I would not be surprised if Schlozman and Burch’s piece made its way onto many syllabi in American politics. It is the kind of essay teachers crave – one that lucidly and elegantly covers vast bodies of work and competing arguments, and offers its own empirically grounded conclusions.

In “The Real Immigration Crisis,” Peter Skerry argues that the immigration issue cries out for strong, principled leadership but, alas, none is to be found. The failure of our leaders on both the right and the left is nowhere more apparent than in the incessant focus on illegal immigration, as opposed to problems of immigration generally. “Were it possible to stop illegal immigration tomorrow,” Skerry writes, “most of the concerns expressed by so many Americans would remain unaddressed” (p.184). For Skerry, a good starting place for leaders would be to take those economic and cultural concerns seriously. Skerry then practices what he preaches by evaluating, in turn, popular discontents and inadequate elite responses to them. In the end, he hints faintly at support for a moderate and measured restrictionism.

In “Religion and Polarization,” James Q. Wilson addresses the increasing significance of religious identification, and the increasing polarization between “people of any faith” and zealous secularists. Wilson’s wide-ranging and erudite piece is a revised version of his 2005 Tanner Lecture on Human Values. His basic point is that “America is a religious nation, but not one in which religion threatens politics, restricts [*643] human freedom, or seeks theocratic rule.” Many secularists, then, “have misjudged the relation between religion and American democracy” (pp.193-194). Proceeding both historically and comparatively, Wilson makes a strong case for this proposition. Comparatively, the puzzle is why religion has persisted and thrived in American while it has declined markedly in Europe. Interestingly, Wilson explains this divergence as a function of the separation of church and state at the national level in the United States. The United States was a de facto Protestant nation, of course, but it was not officially so, and this made all the difference. [Perhaps believers in the religion-based case for strict separationism might want to add Wilson’s essay to their playbook?]. But the important claim here, one that Wilson says is “easy to overlook,” is that the influence of religion has been largely democratic. This is so because American democracy shaped religion as much as religion shaped democracy (p.208). Moreover, religion has salutary effects on individuals and families. The faithful are more likely to live in two-parent families, achieve upward economic mobility, resist alcoholism, drug abuse, crime, and suicide, overcome health problems, and give to charity. Wilson acknowledges that secularists will find parts of his argument hard to swallow. He is right about that. However, most would also learn much from his interpretation and agree with his concluding plea for more humility and self-restraint all around.

Part IV: Dilemmas of Self-Government

In “The End of Savings,” Peter Rodriguez comments on our economic situation as of about 2006. He focuses on the recent and stunning decline in savings rates among households and government. From the mid-1980s on, household savings rates fell steadily, reaching below zero in 2005 (p.222). By 2006, the national debt had reach $8 trillion. A lack of savings, Rodriguez notes, is only a problem if it produces declining investment and growth rates. However, over these years, “investments have remained steadily high, funded by imported savings” (p.225). Rodriguez then canvasses the reasons why this situation may or may not be a problem, or perhaps even a grave threat to the nation. He concludes that the answer depends on how fast households and governments could return to saving in the event that relatively cheap sources of foreign capital were to evaporate. If not a crisis, our lack of savings is at the very least cause for great concern.

In “Rational Control, or Life Without Virtue,” Harvey C. Mansfield urges us to see “rational control” itself as a danger. Consider, he says, the way we are treated when an institution opts for the installation of automatic flush toilets. For our own good, we are deprived of the opportunity to be or to become virtuous – here, by flushing routinely, or perhaps by even learning to “flush with flair.” This is a small example of “rational control.” Rational control is entailed in the idea of modernity itself. It “requires subjecting our entire lives, holding nothing back . . . , to an examination by our reason as to whether we can live more effectively” (pp.238-239). Mansfield finds the origins of instrumental reason in Machiavelli. Its cause is liberty – which means [*644] “liberation” from internal control and custom – and progress. What Mansfield is suggesting here, as Faulkner and Shell put it in their introduction, is an insidious and always indirectly accomplished moral enervation; it is a new form of Tocqueville’s soft despotism. Manfield also suggests that liberal intolerance for traditional views or habits or customs, particularly when it comes to gender and sexuality, necessarily flows from the march of rational control. Such liberal intolerance no doubt exists, but is it necessarily connected to Mansfield’s “rational control”? In any event, I did not understand why Mansfield singled out liberal intolerance with respect to conservative views of gender and sexuality for particular attention.

In “The Corruption of Democratic Leadership,” Hugh Heclo explores the nature and implications of “the new American political system.” Against the grain of the Beardian persuasion, Heclo begins by taking seriously the framers’ claims about how their institutional design would promote rational deliberation and ordered liberty. In the complicated dialogic exchanges between citizens and representatives, all could “learn about and act on their common problems.” A breakdown in this “republican leadership transaction” would “mean representatives and the people hearing only what they want – rather than what they need – to hear.” Such a failure would lead “a self-governing people literally to lose touch with reality” (p.253). Heclo is quick to acknowledge that there never was a golden age. Still, he stands by his claim that our system’s new features amount to a whole new way of doing politics. It is now “a machine for the professional management of political power” (p.255). He then lists and briefly discusses seven new developments. As a result, citizens become spectators at spectacles – “a lumpen citizenry.” Many respond rationally with ironic detachment or simmering rage. Heclo sees reasons for hope in the existence of actors who work diligently at “trying to get beyond the gamesmanship [to] address the yearning for a more honest, honorable politics” (p.263). However, it is likely that only a grave crisis will produce the needed changes.

Two Final Thoughts

(1) These essays apparently went to press in late 2006 just before the meteoric rise of Mr. Obama. It is therefore not surprising that not one them mentions our current president’s name. With the benefit of hindsight, we can note how Obama’s campaign testifies to the insightfulness of the contributors to this volume. I am sure that some of the contributors voted for Obama, and that some did not. Still, in its rhetoric at least, Obama’s campaign was directly responsive to the felt needs and problems probed in AMERICA AT RISK. The linkages are quite interesting. For example: rhetoric respecting the yearning of citizens for a more honest and honorable politics and “to be told what they need to hear and not just what they want to hear” (Heclo’s and Wolfe’s respective essays); a commitment to repairing the breach with Europe (Manent’s essay); the emphasis on individual and family responsibility, including controversial disquisitions on “fatherhood” (Shell’s essay); the constant allusions to Declaration and Constitution, as in the speech on race, and the constant quotation and [*645] reworking of Lincoln’s words (Ceaser’s essay); the commitment to civility and productive dialogue between secular and faith communities (Wilson’s and Galston’s respective essays). What the rise of Obama will mean for culture and institutions over the longer term is, I suppose, anyone’s guess.

(2) Any collection from a roughly like-minded group of intellectuals will inevitably leave a great deal of importance out of the picture. The editors acknowledge that many particular concerns, “such as race and [poverty], are not adequately or directly addressed” (p.2). However, it is worth mentioning one very large and varied territory of inquiry that would seem to be ruled out of bounds, a priori, as it were. The territory I have mind generally goes under the banner of “political economy.” The relevant questions here involve possible linkages between structural and structurally-interwoven international and domestic economic developments since the mid-1970s (especially as these involve the nature and organization of work), on one hand, and the questions of “character” addressed in AMERICA AT RISK, on the other. For example, consider these lines from the Preface of Richard Sennett’s meditation on this very topic:

Character particularly focuses upon the long-term aspects of our emotional experience. Character is expressed by loyalty and mutual commitment, or through the pursuit of long-term goals, or by the practice of delayed gratification for the sake of a future end. Out of the confusion of sentiments in which we all dwell at any particular moment, we seek to save and sustain some; these sustainable sentiments will serve our characters. Character concerns the personal traits which we value in ourselves and for which we seek to be valued by others.

How do we decide what is of lasting value in ourselves in a society which is impatient, which focuses on the immediate moment? How can long-term goals be pursued in an economy devoted to the short term? How can mutual loyalties and commitments be sustained in institutions which are constantly breaking apart or continually being redesigned? These are the questions about character posed by the new, flexible capitalism (1998, p.10).

The bedrock philosophical commitments of the contributors to AMERICA AT RISK likely preclude them from going through this gate into the realm of political economy. They likely believe, not implausibly, that it amounts to a dangerous dead end. Others, like Sennett, would disagree. If the questions about political economy cannot be asked, they would say, then we will never investigate what it might mean for communities to grasp and control these economic developments through politics.

REFERENCES:
Ceaser, James W. 2006. NATURE AND HISTORY IN AMERICAN POLITICAL DEVELOPMENT [with commentary by Jack N. Rakove, Nancy L. Rosenblum, and Rogers M. Smith]. Cambridge, MA: Harvard University Press.

Ferguson, Niall. 2004. COLOSSUS: THE PRICE OF AMERICAN EMPIRE. New York: Penguin Group.

Sennett, Richard. 1998. THE CORROSION OF CHARACTER: THE PERSONAL CONSEQUENCES OF WORK IN THE NEW CAPITALISM. New York: W.W. Norton & Company. [*646]

Shell, Susan. 2004. “The Liberal Case Against Same Sex Marriage.” THE PUBLIC INTEREST, Summer 2004 [Available at: http://findarticles.com/p/articles/mi_m0377/is_156/ai_n6143562/]

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© Copyright 2009 by the author, Michael Paris.

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THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION

by Frank B. Cross. Stanford, CA: Stanford University Press, 2009. 248pp. Cloth $50.00. ISBN: 9780804759120.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bpeabody [at] fdu.edu.

pp.632-636

It has been sixteen years since Martin Shapiro (1993) exhorted law and courts scholars to turn their attention “outward and downward,” to continue moving their research (and teaching) away from a preoccupation with the Supreme Court and constitutional law. The intervening years suggest that many have answered Shapiro’s call, engaging in comparative studies, examinations of lower and state courts, research on state and local law, and widely participating in the interdisciplinary collaboration that Shapiro championed.

Frank Cross’s new book, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION, continues in this tradition by examining both the theory and practice of federal courts’ interpretation of statutory law. While the Supreme Court is certainly a vital reference point in Cross’s study, he also considers, in some detail, statutory interpretation by also U.S. circuit courts, and many of his observations and conclusions are relevant to the federal judiciary as a whole (not to mention state courts).

Broadly speaking, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION addresses the question of how courts should interpret the thousands of federal statutes “rife with ambiguities,” intentional and otherwise. As Cross notes, both courts and scholars have struggled in their efforts to create a “coherent system” (p.viii) for interpreting congressional law. He proposes to illuminate the debate about the “correct method” (p.23) a judge should employ in applying federal law, by presenting and evaluating various claims about these different theories of interpretation. Cross’s book is explicitly theoretical (he engages a vast literature discussing purported defects and benefits of the principal schools of statutory interpretation), empirical (he presents original and secondary research in testing these claims about various interpretive methods, and in conveying a more general picture of judicial behavior), and normative (as noted, Cross is interested in providing reliable orientation points in the debate about how judges should approach statutory interpretation).

At a number of turns, Cross trains his attention to the question of whether particular methods of statutory interpretation contribute to or inhibit “ideological” or attitudinal judging (p.23). Are some approaches, like textualism, more likely than others to compel non-ideological results primarily informed by legal rules and principles rather than personal predilections? As discussed further below, Cross ultimately presents results that may be surprising to some scholars and judges, finding, for example, that a reliance on [*633] textualism or “plain meaning” in statutory interpretation does little to inhibit ideological judging, while other approaches, such as pragmatism, may induce greater ideological neutrality.

In Chapter One, the author frames his queries by considering the goals of statutory interpretation. He argues that a federal court’s authority to interpret statutes is best understood by thinking of judges as “agents who do the bidding of Congress” (p.3). We should presume “legislative supremacy in the statutory sphere,” and regard the judiciary’s power to interpret Congressional law as being limited to advancing the legislature’s goals. Stated somewhat differently, under Cross’s delegation theory, “the legislature is the principal and the courts are its agent.” Cross notes that, under this framework, Congress inevitably delegates a great deal of responsibility to the courts through both “background delegation” (the legislature’s inability to anticipate contingencies and future developments) and “direct delegation,” more affirmative cessions of authority to the courts (pp.4-5).

In the next four chapters, Cross examines the four “leading” theories of statutory interpretation. He considers, in turn, textualism (focusing on the text of the statute and the “plain meaning” provided by Congress in the black letter law), legislative intent (interpreting statutes based on finding evidence of congressional purposes through a range of legislative materials), “interpretive canons” (judge-created rules that serve as grammatical and substantive guides in statutory interpretation) and pragmatism (which Cross associates with judge Richard Posner’s emphasis on heeding “consequences” and “reasonableness” in judging, and, separately, William Eskridge’s theory of “dynamic statutory interpretation”).

In each of these chapters the author reviews the “extensively discussed theoretical arguments underlying each approach” (p.ix) by drawing on scholarship as well as comments by judges and justices. In large measure, Cross considers the cases for and against his four approaches (and their variants), by evaluating the degree to which these different methods of statutory interpretation comport with or detract from his delegation model, or inhibit or promote attitudinal judging. On this latter point, Cross reflects upon both whether some methods of interpretation may constrain the ideological preferences of judges, as well as whether some approaches may inherently slant judges towards certain “political” outcomes. A case can be made, for example, that textualism is inherently conservative to the degree it “constrains the legislature, as well as the courts, and basically limits the scope of government” (p.55).

Chapters 6 and 7 examine the use of Cross’s designated methods of statutory interpretation in over 120 Supreme Court decisions from 1994-2002. Chapter 6 finds that, over this period, the justices used textualism more frequently than the other methods, “but not so much more often as might be presumed” (p.148) by someone who associates the Rehnquist Court era with an “age of textualism.” Cross also finds a link between the ideology of some justices and the methods they employ. For example, Justices Scalia and Thomas were far more likely to use textualism as [*634] opposed to legislative intent in their opinions, while Breyer and Stevens invoked pragmatic arguments about five times as frequently as their most conservative brethren (p.149). That said, justices favor “pluralism,” regardless of their ideology, that is, they are not shy about using multiple interpretive methods in rendering their statutory rulings.

In Chapter 7, Cross taps his eight year data set to examine the possible influences of political ideology on statutory interpretation. He finds that use of “plain meaning” is the most susceptible to ideological influence – viz., opinions relying on textualism are the least likely to alter the ideological predispositions of a justice. Conversely, both legislative intent and pragmatism tended to produce more liberal outcomes (than other methods employed) regardless of the ideology of the judges who employed these interpretive approaches. Cross notes that these results are perhaps surprising, given the frequently advanced view that textualism is supposed to be legally limiting, while legislative intent (with so many sources and forms) should be “especially ideologically manipulable” (p.166).

Chapter 8 looks at the influence of the Supreme Court’s use of different interpretive methods on lower federal courts, especially circuit courts. Cross finds that lower courts reference textualist and pragmatic interpretations by the Court more than the other modes although, apparently, they often invoke textualism “negatively,” that is, in the course of trying “undermine the authority of the cited case” (p.193). Cross also notes that legislative intent references have declined “dramatically” in lower courts since the late 1980s and pragmatism, canon, and especially plain meaning references began surging around 1990.

These results raise further doubts about the accuracy of identifying textualism as the favored tool of conservatives, and associating legislative history with liberal decisionmaking. After all, as Cross discusses, the use of legislative history peaked at a time when lower courts were becoming increasingly conservative, and decreased even as they were shifting back to the left following the election of Bill Clinton (p.186). On the other hand, the boom in textualism continued after the circuit courts’ ideological conservatism began to wane.

Cross speculates that one explanation for these developments may simply be that a more conservative Supreme Court, fronted by Justice Scalia’s aggressive campaign for plain meaning (and opposition to legislative intent) put circuit judges on notice, regardless of their ideology. Alternatively (and not considered by Cross) one might entertain an “embattled liberal” hypothesis: liberals relied on references to legislative history preemptively (precisely at that moment when they saw the ideological terrain shifting) in order to buttress their opinions, which they knew would come under greater scrutiny. When liberals achieved greater prominence again after 1992, they felt less pressure to use this tactic, and it faded.

There is much to admire, celebrate, and emulate in THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION. Cross is simultaneously ambitious and careful in presenting his arguments. He [*635] appropriately acknowledges and draws upon prior research, while still offering his own original ideas. He seamlessly integrates and organizes political science scholarship, legal research, and the work of sitting jurists, nimbly bringing these diverse voices into productive conversation.

Moreover, Cross’s work offers genuinely new insights about statutory interpretation and challenges established ways of thinking about this area of law. Throughout his inquiry, Cross adopts a curious, clear-eyed, and directed approach; he seeks to advance the project of “creating a coherent system” for interpreting statutes.

As indicated, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION is an ambitious book. As a result, it covers a great deal of intellectual terrain and encompasses numerous important themes. One hazard of this wide ambit, however, is that, at times, the precise goals and conclusions of the book can be difficult to discern. Cross is direct in stating that he does not seek to identify the best method of statutory interpretation but instead strives to clarify the debate about proper methods by uncovering the “facts that must underlie any solution” (p.viii) and “[which] arguments for particular methods are sound or unsound” (p.23). But what, exactly, are these intellectual building blocks? At the end of the book, what specific knowledge do we have for advancing our conversations about how to conduct statutory interpretation?

Cross suggests that following “social scientific” practices, he begins with “a theory and then tests it against practice” (p.x). Therefore, a reader might hope to get a view of Cross’s broader conclusions and purposes by looking to the particular theories he tests (and by assessing how they fare).

Clearly, one issue Cross explores in his book is how the specific strengths and weaknesses associated with his four theories of interpretation are born out in practice. In fact, however, each of his chapters on textualism, legislative history, the canons of statutory interpretation, and pragmatism are so complex and nuanced that they effectively introduce dozens of theoretical claims. Not all of these claims, however, are subsequently tested. To take just two examples: Do use of the canons promote legal “instability” more than other methods (p.98)? Does pragmatism produce more beneficial “social outcomes” than other methods (p.106)? Cross raises these and other questions in his “theoretical” chapters but does not systematically examine them in his empirical evaluations of judicial “practice.”

Conversely, some of the questions he empirically tests are not obviously derived from his earlier theoretical review of the different methods of statutory interpretation. For example, while Cross presents interesting results suggesting that only “pragmatism” shows a statistically significant effect in building consensus amongst the justices (that is, in bridging differences and attracting votes), it is not evident how this observation ties in to his theoretical claims about the different methods (p.156).

The sometimes loose connections between Cross’s different chapters and the different strands of argument within [*636] his book might lead one to wonder whether his core concern really is systematically testing the cogency and validity of different theoretical claims about the interpretive methods he presents. Alternatively, we might imagine that Cross’s book is primarily directed at examining the degree to which different theories of interpretation are amenable to “ideological manipulation” by judges, an issue which he calls “[p]erhaps the central dispute in statutory interpretation” (p.159). But as essential as this theme is, it comprises only a portion of Cross’s analysis.

In sum, the reader is left a bit uncertain how the different chapters of THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION are interwoven and related. Upon reaching Chapters 6 and 7, for example, we can not anticipate what claims about interpretive methods he will be testing in these chapters.

More importantly, the absence of an extended concluding discussion leaves the reader somewhat hesitant about how to build upon and use Cross’s interesting, impressive, and diverse findings. How should we apply his book to debates about the extent to which legal rules can meaningfully bind judges? Cross finds that for every justice, regardless of ideology, “greater use of legislative intent yielded more liberal outcomes.” Does this strengthen or weaken “rule of law” arguments? At a few points, Cross also suggests that the rise of textualism is closely associated with the leadership of Justice Scalia. If this is true, are there broader lessons here about the conditions under which a lone justice might significantly impact judicial behavior and legal method? Are any of Cross’s preliminary conclusions likely to apply to district courts? How about state judicial systems? By not exploring these and other potential implications of his book (and sketching future research that should follow his findings), Cross may be selling his project short.

While of great and immediate value to scholars, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION is a fairly demanding read for undergraduates. The book’s individual arguments are admirably clear, but the volume assumes some vital background information (the author, for example, does not sketch pertinent differences between statutory and constitutional interpretation). That said, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION could be a valuable part of an advanced course on the Supreme Court or federal law, particularly if instructors were willing to spend some time “walking” their students through its central arguments and implications. Such a strategy may be tempting for many instructors given the opportunity Cross’s book provides for directing students away from a fixation on constitutional issues and towards greater appreciation for how original research, empirical and theoretical argument, and mastery of a complex scholarly literature can all be effectively deployed in trying to answer genuinely interesting and significant questions about law and courts.

REFERENCES:
Shapiro, Martin. 1993. “Public Law and Judicial Politics.” in Ada Finifter (ed.), THE STATE OF THE DISCIPLINE II. Washington: APSA.

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© Copyright 2009 by the author, Bruce Peabody.

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BAD ADVICE & OUR NATION UNHINGED

BAD ADVICE: BUSH’S LAWYERS IN THE WAR ON TERROR, by Harold H. Bruff. Lawrence, Kansas: University Press of Kansas, 2009. 400pp. Cloth. $34.95. ISBN: 9780700616435.

OUR NATION UNHINGED: THE HUMAN CONSEQUENCES OF THE WAR ON TERROR, by Peter Jan Honigsberg. Berkeley, California: University of California Press, 2009. 324pp. Hardcover. $27.50/£19.95. ISBN: 9780520254725.

Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania.

pp.626-631

Because there is no dearth of books on the Bush administration’s (mis)management of the war on terror, future authors in this area would be well-advised to eschew the general for the specific. In two separate books, Harold H. Bruff and Peter Jan Honigsberg have done just that. BAD ADVICE: BUSH’S LAWYERS IN THE WAR ON TERROR, winner of the 2008 Palmer Civil Liberties Prize, is a critique of the legal advice provided to President Bush. OUR NATION UNHINGED: THE HUMAN CONSEQUENCES OF THE WAR ON TERROR tells the personal stories of those individuals who have suffered as a result of the government’s response to the terrorist attacks of September 11, 2001. Its thesis is direct and oft-repeated: Bush’s war on terror has done enormous damage to American values.

BAD ADVICE begins with a question: “Given the indeterminacy of law, how can we minimize the provision of bad legal advice to presidents?” (p.1). Its author, a professor of law at the University of Colorado, is a former senior attorney-adviser to the Office of Legal Counsel (OLC) at the Department of Justice (DOJ). That office occupied a prominent role in the Bush administration’s justification for certain tactics in the war on terror. Bruff dissects, and ultimately rejects, those justifications as being at odds with both American law and moral authority.

BAD ADVICE is divided into two parts. Part I focuses generally on executive advising. Bruff recounts some stories that “epitomize the enduring nature” of the dilemma of the executive adviser who wants to honor both the ruler and the law. These stories are intended to establish the inescapable conclusion that relationships between heads of state and their advisers are always vulnerable to the vagaries of human nature (p.13). He then provides a selective outline of the history of executive advising in the United States. Bruff discusses the president-legal adviser relationships under Franklin D. Roosevelt, Harry Truman, Richard Nixon, and Ronald Reagan, showing how some legal advisers served their presidents effectively in times of crises by offering independent and candid legal advice (even though such advice was often not well received) and others abandoned their responsibility to provide objective legal advice and became unrestrained advocates of the executive’s wishes. Bruff also explores the difficulty in [*627] combining the ethical duties of lawyers with their “special obligations” as executive advisers. Throughout, former attorney general Robert H. Jackson emerges as the hero for his substantive understanding of separation of powers and his sympathetic detachment as a lawyer. Bruff offers some suggestions for these legal advisers, most of which are related to preserving independent judgment. None of the suggestions comes across as landmark, but neither do any seem objectionable. The final chapter in Part I is a standard recounting of the competing visions of executive power. It is here that Bruff takes exception to the Bush administration’s view that executive authority is virtually absolute on matters of national security. Instead, Bruff prefers a functional approach that emphasizes the blending and balance of power. This basic disagreement between the administration and the author is a recurring theme.

In Part II Bruff turns his attention squarely to the Bush administration. His disappointment in the president for not welcoming contradiction is a recurring theme. In six chapters, Bruff explores three particular case studies of “bad” legal advising – authorization of warrantless surveillance by the National Security Agency, the indefinite detention and trial of enemy combatants, and harsh interrogation methods. He concludes that in each instance Bush made broad and unprecedented claims of executive power after receiving oversimplified and selective legal opinions from legal advisers who were driven by ideology and hell bent on achieving political ends, more interested in telling the president what he wanted to hear than in giving him relatively neutral, law-based advice. If Jackson is the hero of the book, John Yoo – deputy assistant attorney general in the OLC and architect of the Bush legal strategy in the war on terror – is the primary villain. Yoo drafted legal opinions supporting warrantless wiretapping, justifying detentions at Guantanamo, asserting the nonapplication of certain treaties, validating military commissions, and rationalizing harsh interrogation methods. Bruff parses these opinions carefully, concluding that Yoo’s legal advice was oversimplified and disingenuous. Given that many of Yoo’s assertions have been rejected by the courts and others narrowed by Congress, Bruff suggests that it is not a stretch to assume that if Yoo had given such advice in private practice he would have been fired multiple times. Yoo is not the lone villain, however. Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Attorney General Alberto Gonzales, and the vice president’s chief of staff and legal counsel David Addington make up the supporting cast. (Bruff mentions, without elaborating, that Cheney and Rumsfeld had gotten to know Bush when Bush was but a child, thus leaving the reader with the impression that Bruff thinks this may have led to disproportional influence.) Secretary of State Colin Powell, Attorney General John Ashcroft, and Assistant Attorney General Jack Goldsmith, though largely unsuccessful in countering the bad advice, maintained the proud tradition of providing sound legal advice to their executive.

The final chapter offers some general ways to remedy bad legal advice to presidents. Since men are not angels, the overall strategy is greater checks and balances; more specifically, to employ [*628] ordinary administrative law techniques to address the separation of powers problem. Wisely, Bruff is cautious here; mandated layers of review are often unwise and counterproductive. Bruff mentions the deterrent value in crime and punishment for bad legal advice, but recognizes that neither criminal nor civil liability for legal advisers is likely.

BAD ADVICE is not written for general readers. The language is technical; the legal analysis is dense, perhaps too dense even for a standard undergraduate course. It is heavily documented with eighty pages of endnotes. Bruff relies on a cross section of original documents – Supreme Court cases, White House and DOJ memoranda, and other public records; interviews with participants; newspapers; and other publications, most law-based. It includes a lengthy bibliography.

OUR NATION UNHINGED is a much different book. While BAD ADVICE is about decision-making within the Bush administration, OUR NATION UNHINGED is about how those decisions, once translated into actual action, directly and seriously affected a dozen or more people who were ensnared in the antiterrorism dragnet. Although Honigsberg makes clear that he thinks the Bush administration abandoned the rule of law and the core values of due process and justice, his book is not really about the law.

OUR NATION UNHINGED divides into four parts. Part I talks about how the Bush administration “manipulated the law” in three specific areas – introducing the term “enemy combatant” to circumvent the Constitution and the Geneva Conventions, justifying harsh interrogation methods, and asserting absolute and unrestricted executive authority. In this part, the reader will find many of the same material, villains, and conclusions as in BAD ADVICE, although the legal analysis is far less detailed.

Part II tells the stories of Yaser Hamdi and Jose Padilla, both American citizens, and Ali al Marri, an American resident, all of whom were detained for lengthy periods of time in a naval brig in Charleston without basic due process protections. Honigsberg contrasts the absence of due process in these situations with the provision of due process to other more well-known enemies of the state – Nazi war criminals, captured Vietnamese soldiers, and Timothy McVeigh. More importantly, Honigsberg points out the illogic of some of the Bush administration’s arguments regarding these detainees. For example, after the Bush administration designated Hamdi as an enemy combatant, it held him for an extended period incommunicado, in isolation, and without access to counsel. Presumably this citizen was so dangerous that he did not even deserve the opportunity to contest his designation as an enemy combatant. Yet just months after the Supreme Court required the government to provide Hamdi with a hearing to challenge his status, the government released him. The public explanation for the release: Hamdi was no longer a threat. One must wonder how long Hamdi would have languished in the brig had the justices not compelled the administration to show its hand.

Part III – detentions at Guantanamo – takes up more than 40 percent of the [*629] text. The most informative and compelling part of OUR NATION UNHINGED is in the descriptions of the mental and physical difficulties – waterboarding, denial of medical treatment, deprivation of sensory stimulation, removal of human contact, beatings, druggings, forced feedings, and so forth – encountered by these detainees. Honigsberg is not satisfied simply to repeat the terms that had been commonly listed under the general rubric of “torture.” Instead, relying on interrogation logs, observations and conversations with military personnel at Guantanamo, and interviews with lawyers representing detainees, Honigsberg documents the specific abuses of particular detainees, often in graphic terms. It is also in this section that the author discusses the major Supreme Court decisions and acts of Congress dealing with detentions at Guantanamo. For the decisions, the holdings are repeated and the rationale neatly summarized; the counterpositions are ignored. This is certainly not the book’s strength, but it was not intended to be.

Two stories – one of crafty lawyering and one hilarious – are worth passing on. First, the role of the Cuban iguana in persuading the Supreme Court to grant review in RASUL v. BUSH (2004). Rasul’s lawyer argued that once a Cuban iguana crossed into the military base at Guantanamo, it was protected by the Endangered Species Act. Could it really be that the iguana was protected and human beings were not? Honigsberg writes that, while the Court never mentioned the iguana in its opinion, “if you looked carefully, you could see it proudly peeking out from behind the pages of the decision” (p.92). Second, the case of nonstandard issue underwear. Government interference with habeas lawyers representing detainees at Guantanamo was apparently quite commonplace. But one lawyer was accused of sneaking contraband underwear to his client. The letter from the Department of Defense (DOD) to the lawyer, and the lawyer’s response, are reprinted in full. The lawyer’s response is comical.

Part IV details the process and brutality of extraordinary rendition and CIA black sites. Although little is formally known about these “ghost detainees,” Honigsberg asserts that they are captured, beaten, tranquilized, stripped, diapered, goggled, hooded, short-shackled, and transported secretly to prisons in Egypt, Syria, Jordan, and Morocco for “interrogation.” Quoting multiple sources, Honigsberg puts the number of persons “rendered” at between one hundred and one thousand.

Part V examines detentions in the United States with due process. The people discussed here – John Walker Lindh, Richard Reid, Zacarias Moussaoui, and the Lackawanna Six – were all accused of supporting terrorism. Their stories are told to demonstrate the author’s conclusion that the Bush administration could have achieved the same result – national security – while observing the rule of law.

OUR NATION UNHINGED is a less traditional academic book, written for a more general audience. The narratives are easy to follow and told compellingly; it even has pictures of key detainees and [*630] lawyers. Honigsberg has done a yeoman-like job of getting connected people – military personnel; and lawyers, family members, and friends of detainees – to talk. And he has poured over transcripts of court filings, review board hearings, interviews, e-mails, and the like. These are the stories rarely reported in the popular press. This is part original investigation (perhaps this is why no bibliography is included). It is not the type of book that one could complete from behind a desk, even with access to the Internet!

My primary criticism of OUR NATION UNHIINGED is the author’s tendency to offer statements that are short on substance and long on bias. For example, “June 28, 2004” – the day RASUL was decided – “was a day of rejoicing” (p.113). When discussing HAMDAN v. RUMSFELD, the author writes that Justice John Paul Stevens
“must have smiled at the providence of life” as he prepared to announce HAMDAN (p.144). In BOUMEDIENE, Justice Anthony Kennedy “rose to the occasion” (p.170). Additionally, statements like “One hopes the day will arrive when customary international laws and norms of human rights will be valued and honored by our government” are more self-serving than instructive (p.224).

A few times, Honigsberg draws conclusions without informing the reader as to how he came to that conclusion. For instance, Honigsberg asserts, with no documentation, that Stevens offered the BOUMEDIENE opinion to Kennedy to bring him on board; Stevens was “not going to let authorship get in the way of making history” (p.170). The author also regularly repeats his assertion that America’s moral authority has declined. This may well be true, but it does not match the evidence offered in the book. Furthermore, it is certainly difficult to quantify how much our moral authority has declined, for what specific reasons, and what can be done to reverse that trend while remaining loyal to national priorities. And at least once, Honigsberg takes a cheap shot at the vice president. When describing the facility at Guantanamo, he informs that reader that one of the camps was built by a subsidiary of Halliburton, where “Cheney was CEO” (p.238).

BAD ADVICE and OUR NATION UNHINGED have some commonalities. Both assert that the president received legal advice that was not independent, candid, or truthful. Both place the blame squarely on specific advisers. Both acknowledge the rift between the White House and the DOJ, on the one hand, and the Department of State, on the other, bemoaning the marginalization of dissenting voices. Both are critical of the Hamiltonian view of executive power – BAD ADVICE for legal reasons, OUR NATION UNHINGED because of the human consequences. Neither accepts the proposition that this nation must choose between the rule of law and national security. Similarly, neither informs us precisely how to balance those values made more at conflict by modern realities. Benjamin Franklin’s aphorism about liberty and security is not helpful. Certainly there have been some negative consequences resulting from the Bush administration’s war on terror. But there would have been consequences for fighting this war via other means also. A true cost-benefit analysis would at least consider the benefits of Bush’s approach, and not just its costs. [*631]

If interested in both books, read BAD ADVICE first. It is the story of how the Bush administration came to interpret the law to justify certain policies in the war on terror. Then read OUR NATION UNHINGED, and learn about the human consequences of those decisions.

CASE REFERENCES:
BOUMEDIENE v. BUSH, 128 S.Ct. 2229 (2008).
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
RASUL v. BUSH, 542 U.S. 466 (2004).

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© Copyright 2009 by the author, Richard A. Glenn.

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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.

Reviewer’s Rejoinder: Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu.

(Editor’s note: The following is a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

pp.623-625

Marci Hamilton has replied to my review of JUSTICE DENIED, her argument for eliminating statutes of limitations on sexual abuse this book. I am glad to have a chance to respond.

Professor Hamilton says that I claim that “no one knows what the statute of limitations will accomplish – even though some states already have started to experiment with the approach I advocate.” But she has misunderstood my point, which is precisely the opposite. I pointed out that, given that a good number of states have already adopted this reform, it should be quite a simple matter to determine whether in those states the reform had a significant effect in lowering the rate of sexual abuse. Indeed, what we have is an extremely useful controlled experiment in which one can compare the rates in these states with states that still have the SOL. It is thus disappointing that the author did not do this research, for it would allow us to test her assertion that the reform would help solve the problem of child sexual abuse. The fact that the public learned the identities of hitherto secret child abusers in California is interesting, but hardly suffices to address whether this resulted in a substantial reduction in sexual abuse among children in California, which is of course the real issue. (Moreover, the ever-increasing use of sex offender lists is itself problematic; see “Unjust and Ineffective,” THE ECONOMIST, August 6, 2009).

Hamilton also asserts that I “ignore” the support for her factual claim that “at least 25% of girls and 20% of boys are sexually abused” in this country. Here I can only reiterate my original concern, which she appears to have misunderstood. Of the five sources she cites for this assertion, only one (Frawley-O’Dea) supports her factual claim, and the others are either irrelevant to it (e.g. one discussing sexual abuse in India), or contradict it. The World Health Organization figures are 7 – 36 % of girls and 3 – 29% of boys worldwide; Freyd reports figures of 20% of women and 5 – 10 % of men worldwide. It hardly needs pointing out, I hope, that both of these undercut Hamilton’s assertion and Frawley-O’Dea’s as well, since the actual number of abuse cases might be as low as 7% of girls and 5% of boys. Hamilton dismisses these numbers as irrelevant, since they relate to the international community rather than the United States. But if so, why did she cite irrelevant data as support for her claims? Moreover, if Hamilton is right, then it would entail that child sexual [*624] abuse is far higher in the United States than the international average. But this seems quite unlikely, and Hamilton does not argue for this point (it is also contradicted by the fact that the figures for India are dramatically higher than the global average – some 76% of women, if these numbers are credible). Hence, her assertion is supported by only 1 of the 5 sources she cites (the one she says I ‘ignore’). Hamilton has selectively chosen as her source one that gives estimates that are substantially higher than the mainstream view. In any case, the main complaint in my review was that she failed to indicate to the reader that these figures are quite controversial, and that she has deliberately chosen the highest estimate rather than one in the middle. Of course, it remains puzzling that the author uses as sources estimates that tend to contradict her own figures or that are by her own admission irrelevant to her figures.

Hamilton also professes to be shocked that I cite an article from 1994 as a rebuttal to her book (I did not realize there is a 15-year statute of limitations on citations to scholarly articles!). She asserts that the false memory movement has “ground to a halt with the repudiation of its leaders in courtrooms around the country.” But this is sheer rhetorical bombast. She bases it on a single court case, TAUS v. LOFTUS, in which a leading critic of recovered memories was sued for invasion of privacy regarding her investigation of a purported case of recovered memory, the “Jane Doe” case. But there are several problems here. First, Hamilton falsely implies that there has been a broad trend in the “repudiation” of “leaders” of the movement, though she only cites a single purported such case (misleading the reader by using “see, e.g.” to falsely suggest there are many more such cases). Nor is it clear in what sense the TAUS case “repudiated” Loftus. What Hamilton does not reveal is that 20 of the 21 counts against Loftus were dismissed as a blatant attempt to interfere with free speech rights, and that Loftus settled the remaining count for a nominal sum in order to avoid the harassment of litigation. And it is far from clear that Loftus did anything wrong or unethical in her careful investigation of the Jane Doe case and her convincing demonstration that it provided no good evidence of “recovered memory” after all.

Even more significant, however, is Hamilton’s use of the deliberately vague term “repudiation” to misleadingly imply that the TAUS case in any way discredited the substance of the argument against the use of “recovered” memories in the courtroom. On this point, Hamilton clearly has not read Loftus’ article on the case, “Who Abused Jane Doe?” (SKEPTICAL INQUIRER, May/June 2002, pp. 24-32). Contrary to Hamilton, there is overwhelming evidence of the ease with which false memories can be implanted in suggestible people, especially children, and there is to date not a single documented case of a “recovered” memory of childhood sexual abuse; indeed, the Jane Doe case is still often cited as a definitive example of such a case, despite Loftus’ clear demonstration to the contrary. Lest there is any doubt about the possibility of convicting innocent people on the basis of implanted false memories in children, everyone should read the Martin Gardner article referenced in my original review, which remains the classic [*625] discussion of the problem of false memories. For example, he describes the case of Robert Kelly, owner of the Little Rascals day-care center in Edenton, North Carolina, who was convicted in 1992 on 99 counts of sex offenses and given 12 consecutive life sentences, the longest sentence in North Carolina history (fortunately, the Court of Appeals later overturned the sentences on grounds of legal errors by the prosecution). Gardner describes some of the “memories” of the children who were purportedly abused:


Some notion of the accuracy of these “memories” can be gained by one child's recalling that “Mr. Bob” had taken a group of children aboard a ship surrounded by sharks. He threw one of the girls in the ocean. Was she eaten by sharks? No, the boy replied. He had jumped into the water and rescued her! Children recalled seeing Mr. Bob kill babies with a pistol and take photos of employees engaging in sex. They testified to sodomy by Mr. Bob, and said he routinely shot children into outer space on rocket ships. To this day the children, now young adults, swear their revived memories are genuine. “We know. We were there,” they have said many times on TV talk-shows.

Lawyers are trained in the skills of zealous advocacy of their positions and are not expected to present objective or balanced presentations of the issues, given that there will always be an opposing advocate on the other side and a judge and jury to attempt to determine what is the unbiased truth of the case. It is thus legitimate for a lawyer to omit facts troublesome to one’s case and selectively choose evidence to support one’s position. But while such an approach is legitimate for the courtroom, when an attorney enters the public arena, the standards are higher than merely the rhetorical effectiveness of one’s advocacy. In her response, Ms. Hamilton defends her book (twice) on the grounds that it was written for a “general audience,” though it is unclear what relevance this has to my criticisms. But an effective democracy depends on a full and objective presentation of the issue. This is particularly so for a book that is explicitly aimed to influence legislators as well as public opinion on a matter of the utmost public importance.

REFERENCES:
Gardner, Martin. 1994. “Notes of a Fringe Watcher, The Tragedies of False Memories.” SKEPTICAL INQUIRER 18(5), 464-470.

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© Copyright 2009 by the author, Whitley Kaufman.

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A Reply to Professor Whitley Kaufman’s Review of 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.

Author’s reply: Marci A. Hamilton, Benjamin N. Cardozo School of Law, Yeshiva University. Email: Hamilton02 [at] aol.com.

(Editor’s note: The following is a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

pp.621-622

In JUSTICE DENIED: WHAT AMERICA MUST DO TO PROTECT ITS CHILDREN, I argue that the state and federal governments should work toward eliminating the civil and criminal statutes of limitations governing childhood sexual abuse. While the book was written for a general audience, the supporting material solidly supports the public policy claims made. This is a response to the review by Whitley Kaufman, which appeared in the LAW AND POLITICS BOOK REVIEW, Vol.19, no.7 (July 2009), pp.543-547.

The reviewer claims that no one knows what statute of limitations reform will accomplish – even though some states already have started to experiment with the approach I advocate. In fact, I discuss California’s experience throughout the book. For example, on pp.30-31 and p.78, in particular, I explain that one important benefit of eliminating the SOLs is the public identification of perpetrators previously unknown. In California, the public learned the identities of 300 perpetrators whose proclivities and identities were secret until then. (The same phenomenon repeated itself in Delaware over the past 2 years since the book was published.) This point, which the reviewer either never picks up or ignores, is a major theme of the book and one of the most important arguments in favor of making this simple legal change.

Then he ignores the support for important factual claims. I state in the text that at least 25% of girls and 20% of boys are sexually abused and cite the most authoritative recent source on the prevalence of child sex abuse in the United States: the work of Mary Gail Frawley-O’Dea (chap 1, endnote 2). Frawley-O’Dea is a national leader among those studying this issue in the country, as well as an influential member of the highly respected Leadership Council. But this reviewer ignores that citation to national numbers and then tries to refute my statement in the book by picking numbers later in the footnote that go to evidence of prevalence in the international community.

Finally, I found it amazing that a scholarly journal would accept as a rebuttal to a point made in a recent book a quote from an article published in 1994. Had the reviewer done his homework, he would know that the so-called “false memory syndrome” [*622] movement has ground to a halt with the repudiation of its leaders in courtrooms around the country. See, e.g., the case of NICOLE TAUS v. ELIZABETH LOFTUS (2007), where the court required Loftus to pay $7500 for misleading plaintiff as part of study. The most recent research has reaffirmed the reality of repressed memories, the unlikelihood of children lying about sexual abuse, and brought into question the era of social science on which he relies. I recommend as a start Charles L. Whitfield (2001), who concludes there is “no convincing evidence in the clinical and scientific literature that anyone can ‘suggest’ or ‘implant’ enduring false memories of childhood sexual abuse, or induce the long-term effects of child sexual abuse in individuals or groups of people without actually abusing them.”

JUSTICE DENIED sets forth a crucial change in the law to help us as a society to identify child sexual predators. So far, we are rich in approaches like sex offender registries and harsher sentences that assume we know who those perpetrators are. The novelty of the reform of statutes of limitations is that it unmasks a large number of perpetrators who are grooming their next victims in relative anonymity – because the statutes of limitations typically elapse before victims come forward. The book was written for the public and, particularly, legislators to make this a better place for our children.

REFERENCES:
Whitfield, Charles L. 2001. “The ‘False Memory’ Defense: Using Disinformation and Junk Science in and out of Court.” 9 JOURNAL OF CHILD SEXUAL ABUSE (no. 3/4) 53-78.

CASE REFERENCE:
TAUS v. LOFTUS, 40 Cal.4th 683, 54 Cal.Rptr.3d 775 (2007).

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© Copyright 2009 by the author, Marci A. Hamilton.

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PRISON RELIGION: FAITH-BASED REFORM AND THE CONSTITUTION

by Winnifred Fallers Sullivan. Princeton, NJ: Princeton University Press, 2009. 304pp. Cloth. $35.00/£24.95. ISBN: 9780691133591.

Reviewed by Faith Lutze, Department of Political Science/Program in Criminal Justice, Washington State University. Email: lutze [at] wsu.edu.

pp.618-620

PRISON RELIGION provides a dynamic interdisciplinary analysis of a recent trial challenging the constitutionality of a faith-based residential rehabilitation program in an Iowa state prison (AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE v. PRISON FELLOWSHIP MINISTRIES). Sullivan’s scholarly integration of law, religion, history, and penology achieves what most works on faith-based social service programs fail to accomplish and that is to answer the question, “What is the FAITH in ‘faith-based’” (p.1)? Her utilization of the trial transcripts, in addition to the program materials presented by Prison Fellowship Ministries (PMF) and the faith-based InnerChange Freedom Initiative (IFI) program, reveals the nuances of how language, symbolism, law, and religion intertwine and shift over time. Through the presentation of the actual words, interpretations, and experiences of individuals (both keepers and kept) who testified during the trial, she ultimately leads us through a detailed consideration of “the ongoing reintegration and ‘naturalizing’ of religion in the United States and its intersection with evolving understandings of the meaning of ‘disestablishment’” (p.2). She convincingly argues that the trial testimony shows how religious authority in the United States has shifted from traditional institutions to the individual, thus making disestablishment next to impossible.

Sullivan begins by presenting how IFI was established within the Iowa state prison, how the program was funded, and how inmates were selected for participation. She skillfully presents the social and political context of the Iowa state prison system and how budgetary restraints severely limited access to secular prison rehabilitation programs, thus making IFI’s faith-based program a solitary option for many inmates seeking change. She presents two models of how faith-based programs are generally implemented within U.S. prisons. The first model places secular evidence-based rehabilitation programs at the center of treatment with faith-based instruction and related activities being additional options for inmates to participate. This model generally relies upon volunteers from the community and a prison chaplain to organize religious activities within the prison. The second model, representative of IFI, places the faith-based program at the center of inmate life within an identified unit that isolates participants from the general inmate population and, as in this case, emphasizes full immersion in “Christian” values. This model often relies upon state funding to operate the program. Sullivan contends that both models are expected to show positive [*619] results by increasing pro-social behavior and decreasing recidivism.

It is Sullivan’s discussion of how IFI presents the process of change and measures of success for offenders that may be of most interest to those concerned with program integrity and prison treatment programs. Although many claims are made about the effectiveness of faith-based programs, few methodologically sound studies have been conducted that account for differences in offender motivation, participant selection, and program components. Unlike secular evidenced-based programs, when presenting the process for change and the outcomes for success, faith-based prison programs must serve two constituents: religious stakeholders and the secular state. It is within this context that Sullivan uses examples from the trial testimony and IFI publications to show how IFI staff articulated measures of success by switching between the language of Bible-believing Christians and the corrections community as if they measured the same thing. Christian values and outcomes were presented as being representative of both interfaith and secular values and outcomes. Inmates, however, did distinguish between IFI’s singular denomination of evangelical Christianity and their personal religious beliefs and practices. Given the limited options to participate in other treatment programs, Catholics, Jews, Lutherans, Muslims, and Native Americans testified that they were denied access to programs representing their faith, programs that were truly interdenominational, or secular evidenced-based treatment programs. Sullivan’s presentation gives clarity to the notion that the religious context in which one practices and believes in shared values across religions differs, and these differences may not be served through a unique form of Christianity.

It is at this point where Sullivan’s interdisciplinary expertise moves our respective disciplines forward in analyzing the importance of religion in understanding faith-based social service delivery and the constitution. Through a historical and sociological review, she brings us beyond the abstract notion of “faith” and discusses IFI and the Prison Fellowship Ministry within the context of contemporary U.S. evangelical culture. She concludes that, “in the context of a multitude of ‘Christian’ phenomena, the Christianity of IFI appears a distinctive and specific form of Christianity” (p.65). Sullivan easily weaves us through a complex history of the prison, politics, culture, and religion that is unique to the United States. It is through this interdisciplinary understanding that she inspires the necessity to analyze legal concepts of disestablishment through multiple lenses.

Sullivan concludes with the argument that the laws to separate church and state are rooted in a pre-modern model of religious authority that is based on hierarchal and institutionalized religions. Current debate swings from affirmative government support for the practice of various religions to total separation between church and state. Sullivan proposes that a third option is emerging in the United States, “one that acknowledges the impossibility of both separation and accommodation in their traditional forms” (p.228). Through a review of Gilpin’s typology of American Secularism (religious secularism, [*620] irreligious secularism, areligious secularism), she introduces how social historical contexts influence the overlapping nature of religion and the law, and how each is practiced. Through the three secularisms, she provides the opportunity for religious and legal scholars to expand their analysis beyond the dichotomy of church and state to consider the existence of “spaces for religious practice” defined not as ideologies or institutions.

Interestingly, after presenting a vibrant, interdisciplinary review that addresses the debate concerning faith-based initiatives within prisons and their constitutionality, the very last paragraph of Sullivan’s book contemplates that, “A modest step in addressing the scandal and brutality of massive incarceration in the United States might begin by listening to the prisoners, rather than to the tired debate about religious clauses” (p.235). These final words capture what is so refreshing about her analysis. Integrated throughout each chapter are the words of the inmates, corrections staff, and IFI staff about their experiences, beliefs, and interpretations of a prison faith-based program. Sullivan captures the expert and the lay person, the public and the personal, the intellectual and the emotional, the mundane and the interesting that actually inspires the ongoing and sometimes “tired” debate. This book is relevant to scholars and students who are interested in moving beyond over simplistic accounts of policy initiatives and their legal consequences and into the interdisciplinary complexity of criminal justice, public law, religion, and sociology.

CASE REFERENCE:
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE v. PRISON FELLOWSHIP MINISTRIES, 395 F.Supp.2d 805 (S.D. Iowa 2005).

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© Copyright 2009 by the author, Faith Lutze.

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RIGHTS IN REBELLION: INDIGENOUS STRUGGLE AND HUMAN RIGHTS IN CHIAPAS

by Shannon Speed. Stanford: Stanford University Press, 2007. 264pp. Cloth. $55.00. ISBN: 9780804757331. Paper $21.95. ISBN: 9780804757348.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: Richard.Brisbin [at] mail.wvu.edu.

pp.613-617

Despite studies of the impact of judicial decisions, quantitative analyses of popular support for courts and court decisions, studies associating procedural and distributive justice to obedience to the law, and interpretive studies of the effects of law and judicial decisions on social identity and political behavior, many aspects of the political outcomes of legalized disputing and judicial actions remain in need of more extensive examination. One such topic is resistance to legality. Resistance to legality is individual or group recognition of legal disadvantages that generates a struggle against existing legal relationships in order to achieve an idealized future. Such struggles can occur through the use of legal institutions, as with the NAACP LDF campaign to end school segregation, or it can occur outside or against the law through various acts of civil disobedience or social disorder that challenge the law, such as the sit-in movement’s defiance of Jim Crow laws. Although resistance to American legality has received scholarly attention, especially in historical case studies of minority group and labor politics and political movements such as abolitionism, studies of resistance to legality in other regimes are rare (but see Lazurus-Black and Hirsch 1994).

In RIGHTS IN REBELLION cultural anthropologist Shannon Speed provides a valuable addition to the comparative study of resistance to the law in third world regimes. Her book explores how various ideas of rights and legality contributed to a discourse of opposition and a range of acts of resistance to legality in the state of Chiapas, Mexico. Although the rebellion against the laws and political order imposed on the indigenous people (Tezeltal, Tzotzil, Ch’ol and other ethnic Indian groups) came to a head during an armed insurrection in 1994, Speed notes that the actions of the militants were but one part of a much longer history of resistance to state law in Chiapas. She does not offer a detailed chronological history of these events, but rather offers an analysis of resistance and, in her fourth chapter, an ethnographic case study of the evolution of resistance in one community. (For those who are interested, her bibliography provides a guide to the extensive English and Spanish language literature on the history of political unrest in Chiapas).

Speed opens her study with a preface about her research methodology. As an employee of human rights NGOs working in Chiapas, she admits that her political commitments colored her participant-observation data collection and assessment of the rebellion. However, she claims that such an approach afforded her inside knowledge of the motives and emotions of the [*614] indigenous population and their vision of law and justice. Accustomed to a tradition of neutrality in data collection and the quantitative assessment of hypotheses, some political scientists might find her interpretive approach questionable. For this reviewer it provides alternative insights on human behavior and the role of law and rights in the Chiapas resistance movement.

In the first and second chapters, Speed argues that an underlying set of tensions and occasional acts of defiance against the law of the Mexican state by indigenous people took on a new form in the early 1990s. The trigger was the recognition of new knowledge by both the state and the local Chiapas population. The Mexican state leadership determined that its quasi-socialist, corporativist, and protectionist policies required recasting to conform to the neoliberal policies required for its entry into the North American Free Trade Agreement in 1992. The regime then ended land redistribution policies and removed restrictions on rent and sale of land that had protected the income of the rural corn and coffee-raising populace of Chiapas. At the same time the government amended the constitution and abandoned text that stated all Mexicans shared a common mestizo ethnicity. It then constitutionally recognized some rights of cultural self-regulation by the indigenous people who populated much of Chiapas. Meanwhile, using the natural rights discourse provided by liberation theology, a Catholic bishop and many priests conveyed a message of human rights and dignity. Also international human rights groups and nonprofit organizations became active in Chiapas during the 1980s. Some of these groups taught the value of liberal legal rights and litigation to indigenous leaders, while others conveyed the importance of identity-based cultural rights for indigenous communities. Although Speed discusses it more in passing than in depth, the neo-Marxist leadership of the Zapatista Party (EZLN) and other leftist political parties exploited the increasing conflict between state and indigenous peoples’ interests. The EZLN organized politically autonomous communities and opposed government efforts to control them, an opposition that grew into armed combat with the Mexican army in early 1994. After a cease fire and two years of negotiation, the state and the EZLN signed the San Andrés accord on indigenous rights and culture that allowed indigenous communities some freedom in their governance and construction of legality.

As Speed discusses in her third chapter, the accord did not terminate the conflict because the Mexican government failed to implement fully its provisions. Rather, both sides shifted their tactics. What is striking is how the local mestizo economic and landowner elites, the Coletos, and the leadership of the regime co-opted the discourse of rights to counteract human rights claims made by the EZLN and indigenous communities. By claiming that the collective rights interfered with their personal liberties as property owners and threatened the rule of law, they sought the legal protection of their interests as “rights.” These rights-claims by elites justified government intervention to repress local activists, especially those of the EZLN and other indigenous peoples’ parties attempting to establish local political [*615] autonomy for indigenous people and agricultural landholding collectives.

In chapter four, Speed describes how the indigenous people of a community developed a sense of collective rights to contest state law and the individual rights claims of elites. For the agricultural populace of the community, who had identified themselves as campesinos or peasants, perceptions of rights gradually evolved. Especially in the years after the 1994 insurrection, these individuals abandoned the identity of campesino and began to consider themselves as members of an indigenous people who possessed collective cultural and land ownership rights. Their recognition of an identity as rights-bearers fostered a reconstruction of their views on politics and the economic order. They also reconstructed the meaning of rights through a unique meshing of cultural and individual rights. Especially in chapter five, devoted to the emergence of women’s rights, Speed illustrates the localized conflation of multiple ideas of natural, liberal, feminist, and collective rights of women in the effort to assert autonomy and overcome subjection. She argues that the conflation of these ideas produced a cultural climate conducive to a reconsideration of the role of women within the local villages.

In chapter six, Speed further details the sources of the multiplicity and conflation of rights discourses among the indigenous population. She credits NGOs with introducing human rights and political education. These groups supported identity-based rights claims and provided something of a support structure for claims for community rights through the expression of claims that community assemblies should assign control of land through popular consensus. They encouraged local organizations such as Red de Defensores Comunitarios to defend indigenous people within the Mexican legal system. Thus, they tended to resist state laws through legal forms or act “inside the law.” However, in chapter seven, she examines how the EZLN approached resistance by acting “outside the law.” Party supporters in many communities took over the governing process and established the autonomy of these communities from the Mexican state. In so doing they replaced a privileged neoliberal legality and liberal constructions of rights with collective rights for community members to determine how to manage land. To suppress the community’s choice to act outside state law and reconstruct rights discourse, the state determined to apply its legal monopoly of force and violence to control the Chiapas resisters. Military units occupied some communities. As the conflict continued, local elites allied with PRI, the governing political party, apparently supported a paramilitary campaign against the leadership of the EZLN and other activists for the rights of indigenous communities. Paramilitary groups’ violence resulted in hundreds of deaths and thousands of refugees.

Through her bottom-up study of resistance to law and the role of rights in struggles against powerful interests and the state, Speed offers further evidence of the constitutive power of law in contemporary politics. She also exposes eddies in the development of a legalized international discourse of human rights, the possibilities and limitations of a politics of rights, and the emergence of [*616] violence both under and against legality. Finally her book provides an illustration of the ways in which people mix ideologies and conceptions of collective and individual rights to address political and economic disadvantages in the distinct context of their communities. She therefore shows the reader how local politics and other circumstances constitute popular ideas of rights and legality that do not fit into the neat categories offered by jurisprudential scholars. In their efforts to alleviate their social, political, and economic disadvantages act as bricoleurs who create their resistance to legality from a diverse range of ideas about the meaning of rights.

Despite its positive attributes, Speed’s book could benefit from a broader compass and critical engagement with other studies of legal and political resistance. For example, she neglects the law and society scholarship about resistance to legality “outside the law.” Whether undertaken by sociologists (e.g. Ewick and Silbey 1992, 1995, 1998 pp.165-220, 2003; Lazurus-Black and Hirsch 1994; Polletta 2000; Wagner-Pacifici 1994) or political scientists (e.g. Brisbin 2002; Gilliom 2001; Lipsky 1970), comparison of her findings to these studies would situate her research in terms of the broader body of scholarship on resistance to legality. Much more comparison to the various strands of social movement theory also might confirm and expand the significance of her findings.

Speed’s study also exposes one of the gaps in the resistance literature. As with many political scientists and sociologists who conduct research on resistance, she focuses on the behavior of social movements and institutions. She fails to give much attention to the individual psychology of resistance. We do not learn much about why only some indigenous people become conscious of a disadvantage, become motivated to act, blame legality or legal institutions for their disadvantage, and express their anger through subversion, complaint, organized protest, or violence directed at the elites and institutions that enforce their legalized subordinate status. We do not learn why others appear to be content to be inactive or free riders. She also gives only limited attention to the role of individual leaders, as opposed to institutions such as the NGOs and the EZLN, in nurturing new ideas of rights and encouraging acts of resistance among the local populace. Despite these limitations, through her exposition of the discursive practices of the Chiapas resisters, Speed presents an important corrective to the progressive assumption that law and liberal rights are always instruments for the creation of a more just and humane political order.

REFERENCES:
Brisbin, Richard A., Jr. 2002. A STRIKE LIKE NO OTHER STRIKE: LAW AND RESISTANCE DURING THE PITTSTON COAL STRIKE OF 1989-90. Baltimore: Johns Hopkins University Press.

Ewick, Patricia and Susan S. Silbey. 1992. Conformity, Contestation, and Resistance: An Account of Legal Consciousness. NEW ENGLAND LAW REVIEW 26: 731-49. [*617]

Ewick, Patricia and Susan S. Silbey. 1995. Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative. LAW AND SOCIETY REVIEW 29: 197-226.

Ewick, Patricia and Susan S. Silbey. 1998. THE COMMON PLACE OF THE LAW: STORIES FROM EVERYDAY LIFE. Chicago: University Chicago Press.

Ewick, Patricia and Susan S. Silbey. 2003. Narrating Social Structure: Stories of Resistance to Legal Authority. AMERICAN JOURNAL OF SOCIOLOGY. 108: 1328-72.

Gilliom, John. 2001. OVERSEERS OF THE POOR: SURVEILLANCE, RESISTANCE, AND THE LIMITS OF PRIVACY. Chicago: University Chicago Press.

Lazarus-Black, Mindie and Susan Hirsch, eds. 1994. CONTESTED STATES: LAW, HEGEMONY, AND RESISTANCE. New York: Routledge.

Lipsky, Michael. 1970. PROTEST IN CITY POLITICS: RENT STRIKES, HOUSING, AND THE POWER OF THE POOR. Chicago: Rand McNally.

Polletta, Francesca. 2000. The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961-1966. LAW AND SOCIETY REVIEW 34: 367-406.

Wagner-Pacifici, Robin. 1994. DISCOURSE AND DESTRUCTION: THE CITY OF PHILADELPHIA VERSUS MOVE. Chicago: University of Chicago Press.

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© Copyright 2009 by the author, Richard A. Brisbin, Jr.

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RACE TO INJUSTICE: LESSONS LEARNED FROM THE DUKE LACROSSE RAPE CASE

by Michael L. Seigel (ed). Durham, NC: Carolina Academic Press, 2009. 434pp. Paperback. $40.00. ISBN: 9781594605147.

Reviewed by: Lisa L. Miller, Department of Political Science, Rutgers University. Email: miller [at] polisci.rutgers.edu.

pp.609-612

Most readers probably remember well the March 2006 case of the three white Duke University students who were accused of sexually assaulting an African-American woman who had been hired to strip at a party for the university’s lacrosse team. The case initially brought national media attention to race, class and gender power dynamics at Duke and its surrounding community, but when it became apparent that the charges against the students were false and the prosecutions not only unwarranted but unethical, the case was quickly revealed as a terrible travesty. The initial facts of the case seemed impossibly horrible and yet simultaneously, utterly plausible. Few would have guessed that the case would end in the charges being dismissed, the accused being completely exonerated of any wrongdoing, and the District Attorney in the case being disbarred. RACE TO INJUSTICE takes this case as an opportunity to explore a variety of issues, including the dynamics of college communities with respect to sexual assaults, alcohol consumption on campuses, town-gown relations, media coverage of crime, prosecutorial discretion and misconduct, zealous defense tactics, grand jury indictments, eye witness identification, DNA profiling and rape law. The edited volume covers a broad terrain and touches on a number of important issues, most significantly the role of prosecutors in the justice system.

The book is organized into five sections: an Introduction that simply lays out the facts of the case; Lessons Learned about College Campuses, which includes chapters on the response of the Duke faculty to the case, town-gown relations, alcohol on college campuses, male-peer groups and sexual aggression; Lessons Learned about Race, which covers topics such as the role of race and gender in campus and academic reactions to the case, racial politics of the criminal law; Lessons Learned about the Criminal-Justice System, including chapters on free press and fair trials, prosecutorial discretion, the criminal defense system, District Attorneys and unethical conduct, and charging decisions; and Lessons Learned about Criminal Evidence, with discussions of eyewitness testimony, DNA profiling and the treatment of rape victims.

The first two sections are far-reaching, exploring the Duke academic community after the allegations. The opening chapter by Robert J. Luck and Michael L. Seigel provides a chronology of the facts, useful even for those of us who followed the case closely. The subsequent chapters raise questions about the relationship between faculty and their students, and between universities and their surrounding [*610] communities in the wake of a traumatic event. Michele Alexandre’s, Janine Young Kim’s and Michelle S. Jacobs’ chapters each seek to de-mystify the accuser and illustrate the ways in which race, class and gender power differentials can operate even in a case where the wronged parties were white males. Sharon Rush, Robert M. O’Neil and George W. Dowdall take on the more sweeping topics of town-gown relations, academic freedom and faculty reactions, and alcohol on college campuses, respectively.

The most compelling sections are the ones that relate most directly to the particular circumstances of this case: specifically, the role of prosecutor Mike Nifong in continuing to press forward with charges, long after it became clear that the accused were almost certainly not guilty of the crimes that were alleged. In Kenneth Williams’ chapter on Nifong’s conduct, he first situates prosecutorial misconduct in its legal context and then systematically marches through the various allegations against the prosecutor – among which were the failure to disclose evidence, making false statements in court, prejudicing the proceedings, pursuing charges not supportable by probable cause, and intimidating players who remained silent. Williams assesses the claims and makes a compelling case that some of Nifong’s actions clearly violated ethics rules, while others occupied a grey area that is probably occupied by many prosecutors on a regular basis. This chapter is particularly useful because it situates Nifong’s conduct in the larger context of routine prosecutorial efforts to win cases and gain media and public support for their prosecutions. For those who are unfamiliar with the day-to-day norms that govern prosecutorial behavior, the chapter offers a framework to determine just how far Nifong actually strayed. Williams concludes that on several key points, such as failing to disclose to the defense that the DNA test results of the victim did not identify any semen, blood or saliva, making false statements in court, prejudging the proceedings and disparaging the accused, Nifong engaged in clear violations of North Carolina’s Rules of Professional Conduct. On other issues, Williams is less certain and he offers a balanced review of the concerns. At the very end of the chapter, Williams does offer some brief evidence of just how pervasive prosecutorial misconduct is, though for obvious reasons this is a difficult empirical picture to ascertain. He also illustrates how infrequently prosecutors are actually sanctioned for their misdeeds, yet another way in which this case was unusual.

Michael L. Seigel’s chapter on grand juries is also quite revealing. By providing a brief history of the origins of grand juries, Seigel is able to illustrate how far modern grand juries have strayed from their original purpose and how they were particularly devastating for the defendants in this case. Though their purpose was to serve as a check on government abuse of power, Seigel argues, that “a grand jury with traditional safeguards will rarely be in a position to second-guess a prosecutor who is acting with ill motive” (p.293). While Seigel acknowledges that professional incentives largely mitigate against such behavior, he suggests that the costs of wrongful prosecutions to the accused are so high that important revisions to the charging process should be implemented. After reviewing and [*611] analyzing a number of proposed reforms, he concludes that “a grand jury operating as an indictment mill is simply no use to a defendant” (p.301) and suggests that preliminary hearings would probably do a better job of serving as a counterweight to prosecutorial power than grand juries currently do.

The chapter on the defense attorneys for the accused students, by Rodney Uphoff, provides a compelling narrative of the role that the well-trained lawyers for the Duke students played in bringing the facts to light. Andrew Taslitz’ chapter on the conflicts between a fair trial and a free press takes the reader through some of the implications of pretrial media publicity and important legal issues and cases addressing the fairness of judicial proceedings. Lenese Herbert uses a ‘disaster capitalism’ framework to understand prosecutorial discretion. The chapters in this section offer little by way of comparisons between this case and the broader contours of prosecutorial and defense behavior more generally, and the section would have benefited from some original research or, at the very least, from a more thorough summary of existing research that could situate this case within larger questions of injustice in the criminal justice system. Despite these limitations, these chapters explore some of the most intriguing aspects of this case, namely the vast discretionary authority of prosecutors and the substantial resources that defense attorneys must deploy if they are to counter it.

The last section, detailing problems of evidence in the justice system, points to reforms in eyewitness identifications, DNA profiling and rape allegations that might have alerted judges and others in the process to the seriously flawed case. Gary L. Wells, Brian L. Cutler and Lisa E. Hasel have a particularly useful chart at the end of their chapter analyzing eyewitness testimony in which they lay out several recommended identification procedures and compare them with those actually used in the Duke case. At least three of the five procedures that are generally recommended were not observed in that case, and the authors suggest that this failure contributed to the miscarriage of justice. Paul C. Gianelli provides a thorough chapter on analysis of the DNA evidence in the case and its ultimate vindication of the suspects. “In sum,” Gianelli concludes, “DNA did its job. Unfortunately, Mike Nifong did not do his.”

Aviva Orenstein’s concluding chapter seeks to understand whether and how defendants accused of sex crimes may occupy a unique legal space, much as victims of sex crimes do. “I am concerned,” she notes at the outset, “about deriving the wrong conclusions from the Duke case . . . [in particular] the temptation to over-read the Duke case as a cautionary tale about the dangers of legal reforms in sex-crime prosecutions” (p.352). Orenstein suggests that even with the unethical behavior of the prosecutor and the devastating accusations against innocent men, the Duke case nonetheless invoked many standard narratives about race, class and gender, and that efforts to ensure that innocent men are not wrongly prosecuted for rape should not undermine the laws that rightly shield women from attacks on their sexual history and other mechanisms traditionally used to undermine their credibility. [*612]

The breadth of the book provides a wide range of readings for people interested in just about any angle of this peculiar case. This strength is, however, also the book’s limitation. There is little new research, and a number of chapters rely heavily on a single and same source, including the opening chapter’s chronology of events. In addition, it is not clear how the chapters hang together conceptually, other than the fact that they all begin from the facts of the same case. But the facts and trajectory of this case, by many of the authors’ own accounts, are really quite extraordinary, so it is not always clear why this particular case serves as a unifying or illustrative example of all of the issues raised by the book’s fifteen chapters. Nonetheless, I know a lot more about the case now than I did before I read the book and it has the potential to provoke new research possibilities.

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© Copyright 2009 by the author, Lisa L. Miller.

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THE LEGACIES OF LAW: LONG-RUN CONSEQUENCES OF LEGAL DEVELOPMENT IN SOUTH AFRICA, 1652-2000

by Jens Meierhenrich. New York and Cambridge: Cambridge University Press, 2008. 406pp. Hardback. $90.00/£50.00. ISBN: 9780521898737. eBook format. $72.00. ISBN: 9780511434433.

Reviewed by Stacia L. Haynie, Department of Political Science, Louisiana State University. Email: pohayn [at] lsu.edu.

pp.605-608

In THE LEGACIES OF LAW: LONG-RUN CONSEQUENCES OF LEGAL DEVELOPMENT IN SOUTH AFRICA, 1652-2000, Jens Meierhenrich suggests that the effect of established, professionalized legal systems, even those within authoritarian regimes, can have positive effects on subsequent democratic transitions. By providing a common reference to respect for laws – as opposed to the rule of law – the legal system of the prior regime can temper the transition from oppression and repression to democracy.

Meierhenrich uses the South African experience as the laboratory to both develop and test his assertion. Broadening Weber’s ideal types (formal, substantive, rational and irrational – and the relevant combinations thereof), the author suggests that laws can be legal (i.e. Weber’s ideal formally rational) but not legitimate. For Meierhenrich, this distinction becomes critical when societies, such as South Africa, face democratization. The transitioning authority competes for power, wealth, and security while confronting a number of strategic dilemmas including lack of information concerning principal goals, preferences and strategies among the parties at conflict, commitment problems, and the exacerbation of insecurity. This increasingly contentious process leads to “the uncertainty predicament – and the concomitant bargaining predicament” facing the transitioning power and the incoming one.

Meirenrhenrich then shifts to the exploration of the “path dependence” of the law. Based on Ernst Fraenkel’s (1941) “rarely mentioned” (p.43) book on dictatorship, Meierhenrich grounds his theoretical approach in Fraenkel’s concept of the dual state, i.e. the prerogative state and the normative state. Fraenkel, influenced by his own experience in Nazi Germany, argues that in the prerogative state the government rules by arbitrary decree and violence with no respect for formal justice (p.64). In contrast, the normative state is governed by law focusing on procedure and protection. That is, rules are “legal when they display functional competence based on reason” (p.24). Legitimate law, on the other hand, “is a synthesis of morality and legality embodied in the law” (p.24). Meierhenrich “advances a procedural theory of law” (p.24) in that the substance of the law matters much less than how decisions and decision-making authority are allocated in society. Such duality (when laws are legal but not legitimate) predisposes the ultimate outcome for regimes but does not ensure a path dependent trajectory for the politics that flow from the structural [*606] conditions of either democratic or dictatorial systems. As he argues, the “law’s common knowledge produces, under certain circumstances, behavioral regularities that can vastly reduce the uncertainty predicament in democratization” (p.48). Ultimately, formally rational law produces both “behavioral” and “hermeneutic” effects that emerge in the “interplay between legal structures . . . and social preferences” as societies democratize (p.50). Legal structures then serve to shape the fundamentals of the “constitution of the law” – institutions, interests, and ideologies. Using the “duality of the law” societies, even authoritarian ones, may develop a culture of law leading to common expectations, thus providing some certainty despite the fact that all laws are malleable.

The complex theoretical arguments presented in the book are not easily condensed to a few paragraphs, but ultimately, Meierhenrich argues that apartheid law was adopted within a constitutional framework and applied within a legal culture that recognized the rules and functioned “legally” within that context. That foundation allowed for a smoother transition to democracy. Because the population at large maintained respect for the rules, the focus then becomes on the rules themselves (majority rule, minority rights), rather than the process by which those rules will be enforced.

The second section of the book provides an historical overview of the apartheid state that divides his analysis into the evolution of the normative state which Meierhenrich suggests was undergirded by exposure to “progressive, liberal ideologies imported from Great Britain” (p.90) and by the importation of capitalism from the British and Dutch colonists. The prerogative state, of course, emerges as racism dominates the politics of South Africa culminating in the victory of the National Party (NP) in 1948 with its institutionalization of segregation in every facet of South African life. Meierhenrich extends his analysis of the prerogative state to include the extra-legal violence and repression embedded in the apartheid state as well as the use of the law by the opposition to provide some protection of rights and liberties – the ultimate irony of the dual state. South Africa’s “rule-guided” tradition was grounded both in its religious and legal traditions and “embraced” for three reasons according to Meierhenrich:

• law demonstrated its utility by serving as an effective method of control;
  
• law promised to better the apartheid government’s standing in the internal community by providing a modicum of legitimacy; and
  
• law embodied a sincere belief in its appropriateness.

Meierhenrich’s analysis of the unraveling of the apartheid state spends significant attention on the “endgame” and the processes by which the new democratic order was constructed. Specifically, Meierhenrich focuses on the electoral design selected (proportional representation) and the miscalculations by both the NP and the Inkatha Freedom Party (IFP) regarding its potential advantages for them. Despite such miscalculations, he argues, the moderation of preferences in determining who governs – i.e. groups [*607] select cooperation over confrontation – is a fundamental objective of democracy. He further asserts that the “usable state” – the remains of the old regime – were necessary for the “convergence on secondary institutions,” such as a constitution that encompasses the governing structure. Further negotiations leading to adoption of a bill of rights and the adaptation of the prior judicial structure were “fought on the foundation of an elaborate legal tradition” (p.218). Indeed, as Meierhenrich notes, black South Africans had surprisingly high levels of confidence in the apartheid legal system – 50% of black South Africans had “quite a lot” (26%) or a “great deal” (24%) of confidence in the legal system in 1981. A remarkable 62% had a “great deal” (27%) or “quite a lot” (35%) of confidence in the legal system in 1990. Such confidence played a critical role in the transition to democracy according to the author.

Another critical aspect of the successful transition to democracy, argues Meierhenrich, was the establishment of the Truth and Reconciliation Commission (TRC). The extra-legal nature and the immorality of the apartheid system was fully exposed in the proceedings of the TRC, but Meierhenrich notes that the TRC “became a reinforcing bridge in the transition from the rule by law to the rule of law” (p.266). The TRC was “the missing link between legality and legitimacy – a link that helped turn law legitimate” (p.267).

Meierhenrich’s final chapter is intended to serve as a “plausibility probe” for his theoretical model. Connecting all the disparate dots within the theoretical model offered by Meierhenrich is not an easy task, and verifying its plausibility in a terse examination of the “redemocratization” of Chile is less than compelling confirmation. Nonetheless, he provides an examination of its dual state and its endgame and finds that here, too, the “legacies of the law” facilitated democratic development in that state (pp.295-313).

Meierhenrich’s work provides an impressive synthesis of scholarly research on authoritarian transitions generally and dismantling of apartheid in particular. While the disparate threads of the argument are more tightly woven in some parts than others, overall, the work provides a strong historical and legal framework within which to understand how fundamentally illegitimate systems can function and ultimately even further the democratic process. It may be, however, that Meierhenrich’s evaluation of the South African transition is a bit too optimistic. Recent developments in South Africa suggest that the path to a legitimate legal system may be taking some less than desirable, if not fundamentally destructive, turns. Meierhenrich’s argument in part is grounded in the respect that not only black South Africans had for the rules of the law and the boundaries the laws imposed, but the respect that government officials had as well. Machinations over the past year suggest that the latter has been seriously eroded. Beginning with the resignation of Thabo Mbeki and culminating in the recent manipulations of the composition of the Judicial Services Commission (JSC), one would be naïve to argue that the independence of the judiciary is not under threat. Jacob Zuma’s ascendency to the presidency was enabled in large [*608] part by the decision of the prosecuting authority not to pursue corruption charges against him stemming from his alleged involvement in a 1999 arms procurement deal. Those of us who study judicial politics are not surprised by its persistent evidence in the legal system, but its visibility on the national stage brings a notoriety lacking in the apartheid regime. The subsequent decision by the South African prosecuting authority to abandon the case leaves it largely moot. In the mean time, justices of the South African Constitutional Court have submitted allegations of misconduct to the JSC that a Cape High Court Judge President, John Hlophe, had improperly attempted to influence the court’s decision in the Zuma case. Further complicating the matter, Judge Hlophe has filed suit charging that the Constitutional Court’s decision to make their allegations public through a press statement constituted a violation of his rights to equality and dignity, a charge he won in the trial court but lost on appeal. He has since appealed the reversal to – you guessed it – the Constitutional Court, and is now calling for the recusal of 10 of the 11 members who were party to the allegations of misconduct. As if that were not sufficiently convoluted politically, President Zuma has altered the composition of the JSC allegedly with some Hlophe supporters. If all that were not complicated enough, Zuma has made a shortlist of nominees for the JSC to consider for membership on the Constitutional Court.

While the Mbeki-Zuma-Hlope saga could simply be a tale of politics not more or less intriguing than many of our own Supreme Court nomination processes (Clarence Thomas’s chief among them), what is even more troubling are the structural changes being proposed by the Zuma regime. Particularly disconcerting to many is the call for material aspects of the administration of the judiciary to be vested in the executive branch, something many consider a fundamental attempt to undermine the independence of the judiciary and the rule of law. While the current sub-plot may simply be a few pages in the longer novel of South African politics, many fear it is something far more sinister. Whether Meierhenrich’s legacies of apartheid law provide the foundations he suggests remains to be seen. I hope for South Africa and its people he’s right.

REFERENCES
Fraenkel, Ernst. 1941. THE DUAL STATE: A CONTRIBUTION TO THE THEORY OF DICTATORSHIP. New York: Oxford University Press.

Weber, Max. [1921] 1972. WIRTSCHAFT UND GESELLSCHAFT: GRUNDRISS DER VERSTEHENDEN SOZIOLGIE, 5th ed. (Tübingen: J. C. B. Mohr).

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© Copyright 2009 by the author, Stacia L. Haynie.

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NO LAW: INTELLECTUAL PROPERTY IN THE IMAGE OF AN ABSOLUTE FIRST AMENDMENT

by David L. Lange and H. Jefferson Powell. Stanford: Stanford Law Books, 2009. 456pp. Hardcover. $75.00. ISBN: 9780804745789. Paper. $27.95. ISBN: 9780804745796.

Reviewed by Debora Halbert, Department of Political Science, University of Hawai`i at Manoa. Email: halberd [at] hawaii.edu.

pp.601-604

David L. Lange’s and H. Jefferson Powell’s book, NO LAW, addresses the intersection of intellectual property law and the First Amendment. NO LAW is not the first argument regarding the possibility of a conflict between the First Amendment and intellectual property. However, it offers something other books do not – a thorough rethinking of the First Amendment as an absolute prohibition against government interference in areas of expression. Given the implications for the First Amendment of a government-sanctioned monopoly over expression, the argument made in this book is long overdue.

The book is divided into five parts; the first two parts focus on intellectual property, the second two, on the First Amendment, and the final part addresses possible concerns raised about the argument. Chapters One and Two offer the obligatory review of intellectual property law as it is grounded in court decisions and the legal literature. The primary trope used in the initial chapters is to couch intellectual property within a framework of exclusivity versus appropriation. Chapter Two does a good job of providing a comparative analysis of copyright and patent law using the exclusivity versus appropriation framework.

Chapter Three offers a thorough examination of the exclusivity of intellectual property with a specific focus on copyright. Especially well done are the sections on fair use, the concept of originality as understood within copyright law, and the way copyright hinders free expression. I especially liked the notion that originality should not be privileged over expression. Expression often includes imitation and appropriation (p.98), and there is no reason that a First Amendment reading would protect only “original” expressions. The chapter also argues that doctrinal exceptions, like fair use, are not sufficient to protect new expressive works. By Chapter Three the argument becomes centered on copyright law and the other forms of intellectual property introduced in the first few chapters are not fully explored or included in the First Amendment analysis. The case for copyright is very clearly made, but cases for other forms of rights are ancillary at best.

Chapter Four sets out the authors’ argument regarding the First Amendment as an absolute bar against government action. Lange and Powell introduce former Supreme Court Justice Black’s absolutist approach and contend that copyright violates the First Amendment. The argument here is well written, insightful and thought [*602] provoking. The chapter itself does quite a bit – from dissecting the poorly made arguments regarding the First Amendment in the ELDRED decision (pp.116-122), to providing a literature review of law professors working on the issue over the years (pp.138-142).

The second part, which includes Chapters Five and Six, transitions between the copyright section and the First Amendment section. Lange and Powell argue that copyright should be limited by First Amendment concerns and that action must be taken legislatively rather than judicially. They recognize that a First Amendment centered law will not be popular with current monopolists. However, we need an understanding of expressive ideas that is sufficiently public – meaning that once an idea becomes public, it is available for sharing, and exclusive rights must be limited.

The third part of the book outlines the history of the First Amendment. Chapters Seven and Eight provide a historical account of the First Amendment and conclude that it did not have a prescribed and definite meaning to the framers, but was subject to interpretation. Chapters Nine and Ten follow the constitutional jurisprudence of Holmes (a balancing approach) and Black (an absolutist approach) to clarify how our interpretation of the First Amendment has changed over time. The authors reject the Holmesian approach and revive a version of Black’s absolutist paradigm, which, they argue, would have been constitutionally viable from the perspective of the framers. Unlike Black, however, Lange and Powell want to create a structural analysis of the First Amendment instead of seeing it as protecting individual civil liberties.

Chapter Eleven develops a structural interpretation of the First Amendment that requires an absolute ban on government action. In response to the argument that it is impossible to impose absolute limits on Congressional power, the authors point out that the Court has accepted absolute limits in their interpretation of the 11th Amendment. This chapter suggests that we need to rethink the First Amendment in the face of a new crisis brought on by intellectual property rights, and that it is consistent with the framers’ intent to rethink the First Amendment along the lines the authors suggest.

Chapter Twelve completes the first amendment analysis by revisiting Blackstone’s views regarding government monopolies. It turns out that Blackstone sought to ban government-sanctioned monopolies over expression. The implications for modern intellectual property rules – government enforced monopolies over expression – should be obvious.

As a whole, the logic of part three is compelling. The authors supply a way of thinking about the First Amendment that is not directed at balancing individual liberty and government interests, but instead argues that a more structural reading of the First Amendment was actually what the framers had in mind. This section is a bit disjointed, however, compared to the first two sections. The connection to intellectual property is never longer than a sentence or two at the end of each chapter. However, they conclude the third section, applying their framework to “[t]hink the supposedly [*603] unthinkable: the First Amendment to the Constitution of the United States forbids the American government, in any of its parts including the courts, to undertake in any fashion to create or maintain a monopoly over expression” (p.301). At this point, the writing should be on the wall for copyright law – it is, after all, a government sanctioned monopoly over expression.

The final chapter summarizes the book’s central themes. As the authors note, “with the benefit of two hundred years of accumulated wisdom, that exclusive intellectual property regimes in expression qua expression cannot be squared with the vision of the First Amendment we have presented here” (pp.311-312). Lange and Powell ask us to employ an interpretation of the first amendment that respects the literal wording of the text – that the phrase, “Congress shall make no law,” actually means “no law” in an absolute sense. Not only do they take on the substantive task of offering an alternative to contemporary First Amendment analysis, they also argue that intellectual property is inherently at odds with the First Amendment. The question is, what do we do about it?

While offering a compelling argument for why intellectual property is at odds with the First Amendment and that Congress should not construct intellectual property laws that create a government sanctioned monopoly over expression, the authors shy away from the logical conclusion – that copyright law is unconstitutional. In fact, they say, such a claim made by David Nimmer years ago in one of the first treatments of copyright and the First Amendment goes “too far” (p.137). However, the notion that an absolute interpretation of the First Amendment means Congress can make “no law,” combined with the clear analysis suggesting that intellectual property laws are exactly the kinds of laws Congress should not be able to make, seems to suggest the unconstitutionality of copyright law itself.

Such a conundrum leaves me wondering why the authors refuse to take the final step. They posit that, “intellectual property as we know it could be abandoned altogether without permanent damage to the economy, and without serious harm to our culture” (pp.142-143), so it cannot be that they see copyright doing what its advocates suggest – incentivizing creation. The fine line they seek to create is that copyright cannot be an exclusive right. As they note,

What is forbidden by the First Amendment is exclusivity of the sort that arises, for example, when copyright, acting on behalf of a proprietor, opposes appropriation of an original work by others for the purposes of further expression, or when it conditions such an appropriation upon the payment of rents in excess of profits accruing from such an appropriation. In either case copyright abridges freedom of expression. Against this understanding of “exclusive rights,” we think (as we imagine both Jefferson and Black might have thought) that much of the present copyright act is otherwise unobjectionable, or at least unobjectionable from the perspective of the First Amendment (p.138).

Thus, their argument becomes a bit bifurcated. On the one hand, the bulk of the book has proven that, at the very least, copyright law is at odds with their reading of the First Amendment. On the other hand, they conclude that, “it is possible to imagine the conditions for coexistence between the intellectual [*604] property doctrines and an absolute First Amendment” (p.146). The question is why bother to craft a First Amendment interpretation that absolutely prohibits Congress from making laws controlling expression, arguing that copyright is such a law, but then pull back from the final blow and claim instead that the law under this new analysis will, “retain (or can retain) their present shape to a remarkable degree” (p.306).

The book is more consistent in its argumentation than the previous paragraph suggests, but the vacillation does cause some confusion. The concluding chapter offers a fairly radical rewriting of copyright law that eliminates the possibility of exclusive ownership once an expression has left the privacy of one’s mind or home and entered the public. Thus, for Lange and Powell, there can be no prohibition on how others use ideas and expressions that have entered “the universe of discourses” (p.307). Not only would non-commercial appropriation and use of expressions be perfectly acceptable under a First Amendment conscious copyright law, but commercial appropriation that competed with the original would also be allowed because “interests in expression will no longer be consigned exclusively to proprietors recognized by the state” (p.307). If the authors advocate such a position, then it is not clear how copyright retains its present shape. Instead, it would appear that the authors have gutted copyright law. They are not opposed to incentives to create, just not incentives in the form of government granted monopolies. Thus, systems of digital rights management or “virtual venues” (pp.314-315) are perfectly appropriate mechanisms for protecting works.

Overall, I strongly recommend the book. It was a complex and intellectually stimulating read. It clearly describes the field of intellectual property today, though the book is really about copyright law and the argument for how the First Amendment interacts with copyright doctrine. The links between patent or trademark law and the First Amendment are never consistently made. NO LAW also develops the First Amendment analysis in a very insightful manner. The book should be required reading for anyone interested in the area of copyright law and would find a home in any course focused on constitutional law, intellectual property or public policy.

One last comment seems necessary. The authors by remaining theoretical in their approach are able to sidestep the politics of their proposals. While they acknowledge that content owners will not like the change in the law, they steer clear of the inevitable hysterical reaction that would result should Congress even hint at endorsing their perspective. I would not normally demand an action plan from a book making a theoretical argument, but given the powerful forces supporting the current monopoly system, that the system is out of control and badly in need of change, and that this book is perhaps one of the most subtly radical ones to be written in quite some time, I really hope a plan to make this transformation possible exists. In other words, how do we make NO LAW the law? If such a plan exists, sign me up.

CASE REFERENCE:
ELDRED v. ASHCROFT, 537 U.S. 186 (2003).

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© Copyright 2009 by the author, Debora Halbert.

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MULTI-PARTY LITIGATION: THE STRATEGIC CONTEXT

by Wayne V. McIntosh and Cynthia L. Cates. Vancouver (Canada): University of British Columbia Press, 2009. 296 pp. Cloth $85.00. ISBN: 9780774815963. Paper. (Price Not Available) ISBN: 9780774815970.

This review was commissioned by Roy Flemming, LPBR Editorial Board member.

Reviewed by Stephen Daniels, Research Professor, American Bar Foundation. Email: sdaniels [at] abfn.org.

pp.598-600

Wayne McIntosh and Cynthia Cates have produced an important, insightful, and provocative work in area too often ignored by political scientists – the civil justice system. Their specific topic is multi-party or collective litigation, meaning class actions or mass tort litigation. They focus on three areas of multi-party litigation: tobacco, guns, and food. While each of these areas has received substantial attention in the media and in the policy debates over the civil justice system, McIntosh and Cates look beyond the usual debates in order to “consider the effectiveness of collective litigation as a tool for political change, particularly for regulatory change” (p.3). These issue areas serve as vehicles to explore this broader concern. Ultimately, McIntosh and Cates assert that such litigation is not likely to be all that effective. While not quite willing to explicitly go as far as Gerald Rosenberg’s conclusion that litigation as a strategy for bringing about political and social change is a “hollow hope” (Rosenberg 1991), the authors offer little in the way of optimism. In their conclusion they note that in each of the three issue areas examined, “the politically and legally more experienced and resourced party, if not always a clear winner, was always at least able to cut its losses to the disadvantage of the would-be regulators. In some instances, the sheer mismatch in experience and resources was overwhelming” (p.193).

To reach this conclusion, McIntosh and Cates draw from an extensive bibliography of scholarly and journalistic materials and from over 400 cases. As if to foreshadow what their findings reveal, they structure their discussion around Marc Galanter’s (1974) classic article “Why the Have’s Come Out Ahead: Speculations on the Limits of Legal Change” and Galanter’s observation that the “have’s” – those with substantial resources – use litigation on a regular basis and generally prevail in the long run despite occasional setbacks. These “repeat players,” as Galanter calls them, prevail because their superior resources and experience give them access to better legal talent and the ability to play long term strategies. When they fail in the litigation arena under a given set of rules, they will move to change those rules to their advantage or move the battle to other arenas that allow repeat players to blunt, if not reverse, the effects of occasional litigation defeats. Accordingly, McIntosh and Cates continually emphasize the importance of rules and rule changes that govern access [*599] to the civil justice system for multi-party cases.

Multi-party litigation is one possible strategy for trying to counter the advantages of “have’s” or “repeat players” and to bring change about. McIntosh and Cates’ analysis is essentially a test of this possibility. Each of their substantive chapters – on tobacco, gun, and food litigation, respectively – incorporates a discussion of the politics of the litigation in a given area. This includes not only the main legal issues and the major cases, but the players and political coalitions on each side in those issue areas. The conclusion to each chapter also has a section on “litigation as regulation” (the political purpose of multi-party litigation) and a section “winners and losers” (the evaluation of multi-party litigation). Finally, each of these chapters has an appendix that presents an annotated litigation timeline of key cases – something essential for readers not familiar with the litigation battles in these three areas. Of the three issue areas, tobacco and guns reflect more clearly the idea that the “have’s” ultimately come out ahead. The outcome for collective litigation around food-related issues, McIntosh and Cates argue, is mixed; but they are not prepared to say that the “have-not’s” – those bringing collective litigation – have won.

To set the stage for these three substantive chapters, McIntosh and Cates provide a one chapter overview of the history and theory of collective litigation in England and the United States. The history is actually a long one and they emphasize a crucial tension that has always plagued multi-party litigation. In their words, “there is a significant tension between safeguarding individual rights and achieving individual justice, on the one hand, and promoting collective justice, on the other” (p.41). The potential conflict is important because the way in which courts or legislatures deal with it – emphasizing the traditional individual nature of litigation or being open to the possibilities of collective litigation – will determine how multi-party litigation is used. The way this tension has been addressed has varied over time within the U.S. as well as from one nation to another within the common law world. The use of multi-party litigation has varied accordingly. The authors also provide a chapter on the contemporary landscape of multi-party litigation in the U.S. which gives the reader a sense of the range of issues, the players, and the purposes involved in multi-party litigation. In both of these chapters, McIntosh and Cates want to show the reader that multi-party litigation is about group struggle and that “in short, [it] is politics by another name” (p.71). To drive home the point, they even go so far as to characterize multi-party litigation as being “nakedly political” (p.151).

While these two chapters form one bookend for the three substantive chapters, the other bookend is a chapter that expands the discussion beyond the U.S. to three other common law legal systems: the United Kingdom, Canada, and Australia. For the reader whose usual focus is the American context, this chapter may be the most interesting. McIntosh and Cates argue that “the worldwide trend seems to be in the direction of accommodating, even in small ways, group litigation” (p.160). As to why, they point to a series of more [*600] fundamental movements: toward more independent policy-making authority for high courts; the increasing sense among judges on high courts in different countries that they see themselves as members of a shared community; and globalization. Still, there are differences in the degree of acceptance of multi-party litigation in different countries and none has gone as far as the U.S. Of the three countries examined, Canada may have come closest to accepting group litigation, with the U.K. and Australia exhibiting more of a preference for legislative rather than judicial solutions to the kinds of regulatory issues at the heart of multi-party litigation. McIntosh and Cates return to this trend in the last section of their concluding chapter in their discussion of areas for future research, and they argue that the trend is likely to continue. Whether the “have’s” would continue to come out ahead remains unclear.

MULTI-PARTY LITIGATION is tightly-organized, well-written, and thoroughly researched. Any political scientist interested in law and politics should have it on their reading list. It makes an important contribution to our understanding of the political uses of litigation and it is sure to enliven the debate over litigation as a tool for change (see McCann, 1992).

REFERENCES:
Galanter, Marc, 1974. “Why the Have’s Come Out Ahead: Speculations on the Limits of Legal Change.” LAW & SOCIETY REVIEW 9 (1): 95-160.

McCann, Michael, 1992. “Reform Litigation on Trial.” LAW & SOCIAL INQUIRY 17 (4): 715-743.

Rosenberg, Gerald, 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

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© Copyright 2009 by the author, Stephen Daniels.

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THE U.S. SUPREME COURT AND THE JUDICIAL REVIEW OF CONGRESS: TWO HUNDRED YEARS IN THE EXERCISE OF THE COURT’S MOST POTENT POWER

by Linda Camp Keith. New York: Peter Lang Publishing Group, 2008. 199pp. Paper. $32.95/€21.20/£15.90. ISBN: 9780820488806.

Reviewed by Joseph L. Smith, Department of Political Science, The University of Alabama. Email: josmith [at] bama.ua.edu.

pp.596-597

Linda Camp Keith’s book presents a very comprehensive review of the behavior of the U.S. Supreme Court as a whole and of individual justices in cases involving judicial review of Congress. All of the analysis focuses on cases challenging federal laws as exceeding the powers of Congress. As Keith notes, this is Court’s most high-profile and controversial jurisdiction. It is in these cases that the Court fulfills (or does not) its putative role as a controller of majority rule and defender of minorities and civil liberties. The research presented here builds upon and updates the work of Dahl (1958), Funston (1975), and Casper (1976).

This book would fit well in a graduate or upper-level undergraduate course on the Supreme Court. It features a comprehensive description of previous relevant research and coverage of the Court’s history in this important domain.

Among the main conclusions of the book, Keith reports that the Court as a whole has been very deferential toward Congress, finding a challenged law unconstitutional in less than 17% of cases raising this issue. Moreover, cases challenging federal statututes have become more frequent over time, as have Court decisions nullifying laws as unconstitutional.

Moving to the individual justices as units of analysis, Keith finds that, like the Court as a whole, justices vote to support Congress most of the time. Over the Court’s history justices have supported federal laws about 77 percent of the time. However, there is a great deal of variation around this mean level of support. Justices appointed since about 1953 are much less deferential as a group than justices appointed earlier. Among recent justices, deference rates of less than 60 percent are common.

In terms of ideological voting, most justices exhibit relatively even-handed records in cases evaluating federal laws, and ideology appears to play a smaller role in the cases challenging federal laws than in other categories of cases. However, the ideological element in justices’ voting records in these cases has increased since the 1930s.

In examining whether the Court acts as a protector of civil rights and liberties, Keith finds a significant uptick in such protection after CAROLENE PRODUCTS in 1938. However, overall the evidence supports Dahl’s (1958) description of the Court as a legitimator of majoritarian policies rather than Casper’s (1976) description of the Court as a counter-majoritarian protector of civil rights and liberties.

In comparing the influences of attitudinal and strategic factors on the justices’ votes, Keith concludes that variables associated with the attitudinal model outperform variables associated with the strategic model. However, the particular variables Keith uses in the analysis, and the way she links those variables to the theoretical models, can be questioned. For example, For example, Keith regards the fact that justices’ religions, childhood upbringing and social status, and their careers before coming to the Supreme Court all show statistically significant influence on their voting behavior, thus supporting the attitudinal model. It is plausible that these social factors do engender some sorts of psychological structures in the justices, but these are not the sorts of attitudes that are most closely associated with the “attitudinal model” as explicated by Segal and Spaeth (1993; 2002). In general, one shortcoming of the book is that it does not adequately discuss how the independent variables in the regression models fit into the theoretical concepts being tested. The book’s comparison of the attitudinal and strategic models is very comprehensive in terms of the variables it considers, but the implications of the variables could be explained more thoroughly.

The book is more empirical than theoretical. For example, in the last substantive chapter Keith evaluates the influence of attitudinal and strategic factors, respectively, on the voting behavior of the justices. The hypotheses associated with the strategic model are all derived solely from previous empirical results, with no attempt to evaluate the theoretical plausibility of those results.

With that being said, one area in which Keith should be commended for discussing theoretical issues is in regard to the coding of federalism cases. As she notes, it is often not obvious how cases testing the authority of states should be coded. She discusses the history of the ideology of federalism, and presents two versions of the empirical results associated with federalism cases.

REFERENCES:
Casper, Jonathan D. 1976. “The Supreme Court and National Policy Making.” 70 The AMERICAN POLITICAL SCIENCE REVIEW 50-63

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

Funston, Richard. 1975. “The Supreme Court and Critical Elections.” 69 AMERICAN POLITICAL SCIENCE REVIEW 795-811.

Segal, Jeffrey A. and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge: Cambridge University Press.

Segal, Jeffrey A. and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.

CASE REFERENCE:
UNITED STATES v. CAROLENE PRODUCTS COMPANY, 304 U.S. 144 (1938).

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© Copyright 2009 by the author, Joseph L. Smith.

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THE DETENTION OF UNLAWFUL ENEMY COMBATANTS DURING THE WAR ON TERROR

by Colleen E. Hardy. El Paso: LFB Scholarly Publishing, 2009. 240pp. Cloth $70.00. ISBN: 9781593323257.

Reviewed by John E. Finn, Department of Government, Wesleyan University. Email: jfinn [at] wesleyan.edu.

pp.594-595

THE DETENTION OF UNLAWFUL ENEMY COMBATANTS DURING THE WAR ON TERROR, by Colleen E. Hardy, is a study of the “the three major components of the United States’ detainment of unlawful combatants” (p.8). These are 1) the legal aspects “surrounding the classification of lawful and unlawful combatants,” 2) a “thorough investigation of policies” relating to combatants, and 3) a discussion of “terrorism and military and legal responses to fighting terrorism” (p.8). The absence of a thesis or critical perspective in Hardy’s description of her work is a fair guide to what follows. Unfortunately, the book is more akin to an undergraduate overview of the subject matter (complete with infelicities of style and typographical errors) than a scholarly study of the judicial decisions, legal doctrines, and public policy concerning terrorism.

If there is value to these essays, it is in the comprehensive history of the treatment of unlawful combatants in American law. In Chapter Two, Hardy traces that history, beginning with a discussion of the differences between jus in bello and jus ad bellum. Hardy then addresses a series of questions, including whether the U.S. is involved in an international armed conflict (noting that this determination affects how enemy combatants are “detained and designated”), the distinction between lawful and unlawful combatants, the appropriate classification of members of al Qaeda and Taliban and the consequent questions concerning the applicability of the Geneva Conventions, and finally the history of lawful and unlawful combatants in U.S. armed conflicts. Hardy’s review is lengthy and fair-minded, in the sense that she duly records the academic arguments in favor and opposed to the various decisions taken by the Bush administration after 9/11. But this chapter (like the others), rarely if ever amounts to more than a simple collection of arguments and quotations pro and con. Hardy does not engage or investigate the arguments in any depth.

The chief difficulty with this book, then, is that Hardy does not develop the analytical framework or tools necessary to come to an informed or meaningful assessment of the policies and arguments she surveys. Perhaps the best example of this failure is at the end of Chapter Three, following a discussion of the HAMDI and PADILLA cases. After reviewing the decisions and some of the Bush administration’s responses to them, Hardy simply observes that “All three branches of the United States government have played a key role in the United States’ [*595] response to the tragic events on September 11, 2001 . . . . Therefore, every branch provided an essential part to the United States’ response and has acted in accordance with the powers afforded to them by the Founding Fathers” (p.150). Even as a casual observation, this conclusion is stunningly simplistic. Hardy offers no evidence in support of the claim, provides no standard against which to measure or evaluate it, and gives the reader no tools with which to make an assessment of one’s own. Nowhere will the reader find any indication that what the Founders envisioned for the control of foreign policy was less a finely honed system of legal rules and more an “invitation to struggle.” The uninformed reader is given no indication that there are difficult issues surrounding the war on terrorism that go to the very meaning and definition of the rule of law and separation of powers.

On those few occasions when Hardy does offer an appraisal of policy, she does so without explaining the basis for her conclusions and without offering a metric for assessment. Hardy, for example, simply asserts that military commissions “will ensure classified information will not be released to the accused or the public while also providing the accused with the opportunity to view and dispute all evidence against him” (p.219). This is far from plain. Hardy also concludes that “Protecting classified information is essential to ensuring national security and preventing future attacks and therefore I believe that military commissions are the most appropriate method to prosecute individuals suspected of terrorist activity” (p.219). Reasonable observers might agree with this conclusion, but it is not incontrovertible, and Hardy does little more to buttress it than produce quotations from scholars who support her position. Some readers may also agree with Hardy’s remark that granting the protections of the Geneva Conventions “to those who so blatantly and intentionally disregard all laws and customs of war . . . would surely place the thousands on (sic) innocent lives lost on September 11, 2001 in vain” (p.222), but a scholarly study of anti-terrorism law and policy ought to do more than appeal to raw emotion.

In sum, this study falls short of expectations for scholarship. It covers no new ground and fails to engage the material critically.

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

PADILLA v. BUSH, 233 F. Supp. 2d 564 (S.D.N.Y. 2002).

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© Copyright 2009 by the author, John E. Finn.

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GAY RIGHTS AND MORAL PANIC: THE ORIGINS OF AMERICA’S DEBATE ON HOMOSEXUALITY

by Fred Fejes. New York: Palgrave, 2008. 292pp. Hardcover. $79.95. ISBN: 9781403980694.

Reviewed by Susan Burgess, Department of Political Science, Ohio University. Email: Burgess [at] ohio.edu.

pp.590-593

The drive for gay civil rights gained steam after the now famous rebellion at New York’s Stonewall Inn in 1969. As communities across the country debated gay rights, the LGBT community became more visible and well-organized, fostering the development of a national LGBT movement. Around the same time, the religious right became a force to be reckoned with, owing in no small part to its strong resistance to gay rights in the political sphere. GAY RIGHTS AND MORAL PANIC provides a detailed exploration of these developments, focusing on the high-profile debate on gay civil rights that occurred in Miami in 1977 and its immediate aftermath in various other localities. Fred Fejes argues that events in Miami serve as the origin of the ongoing debate about gay rights, reflecting important social, political, and cultural changes, including the emergence of a national movement for LGBT rights as well as the rise of an increasingly politicized religious right. This book focuses on the clash between these two groups in an effort to understand the political conflict over gay rights in the late 1970s, as well as in our own time.

Fejes sets the stage for the story by offering an interesting narrative of gay and lesbian life before Stonewall , relying largely on media accounts that unselfconsciously characterized homosexuals as perverted, criminal, and mentally ill. Respectable institutions typically did not cater to openly gay people at this time. Many states and localities had passed laws making it illegal for homosexuals to meet or work in state-licensed venues, including bars and restaurants. Institutions that did cater primarily to gay populations, such as the Stonewall Inn, were typically controlled by organized crime which paid off the police in lieu of obtaining formal liquor licenses.

Since many believe the modern LGBT movement began with resistance to such treatment at the Stonewall Inn, one might have expected New York City to be among the first to pass a gay civil rights law. However, two Midwestern college towns shared this honor in 1972, when both East Lansing (home of Michigan State University) and Ann Arbor (home of the University of Michigan) successfully adopted legislation that provided protection against discrimination on the basis of sexual orientation. A number of cities and counties in various regions of the country followed suit, including communities with both traditionally progressive and conservative political cultures ranging from Berkeley, California to Columbus, Ohio. Around the same time, Rep. Bella Abzug (D-NY) introduced the first national gay rights bill to Congress in 1974. [*591]

While noting these developments, Fejes argues that the struggle that occurred in Miami in 1977 had a unique impact on the shape of the debate for years to come. Like many other localities in the late 1970s, the Dade County Commission passed a gay civil rights bill, protecting homosexuals from employment, public accommodation and housing discrimination throughout the greater Miami area. This development was not especially eventful in and of itself. However, when former beauty pageant queen turned religious and patriotic singer Anita Bryant began to lead the first movement in the country to repeal a gay civil rights law, her celebrity and the novelty of the repeal effort drew an enormous amount of national attention.

Anita Bryant became involved in opposing the Miami law at the behest of her minister, Rev. William Chapman. Head of a large Baptist church in the area, Chapman was part of a growing wave of politically oriented Christian fundamentalists who opposed gay rights as well as equal rights for women. Once Dade County passed the gay civil rights law, Bryant became the face of the campaign for its repeal. Fejes argues that this campaign set the terms of the debate about gay rights for the next three decades, as the religious right combined homophobia with broader fears about child safety and the future of the nuclear family to ignite a full blown moral panic in American society.

While opponents of gay rights had long argued that homosexuals should not be allowed to teach, Bryant brought a new fervency to the debate. Leading a group called “Save Our Children,” she claimed that homosexuals had to recruit converts from each new generation because they could not reproduce on their own. Playing off fears that parents would be endangering their children by approving gay civil rights laws, she argued that homosexuals were immoral and prone to pedophilia. Despite opponents’ compelling evidence that most child molesters are heterosexual, Bryant’s continued exploitation of this myth generated powerful support for her cause among fearful Miami residents. Bryant steadfastly maintained throughout the campaign that her opposition to gay rights was God’s work, and her high-profile activism was influential in encouraging the Florida Legislature to pass bills outlawing both gay marriage and adoption during the four-month Miami repeal campaign.

In contrast, some supporters of the new law argued that gay rights should be understood as one part of a larger drive for universal human rights, while other supporters viewed gay rights as a key component of the sexual revolution that was increasingly at the forefront of 1970s popular culture. Despite these compelling counterarguments, the media accounts that Fejes analyzes regularly focused the majority of attention on the celebrity of Anita Bryant and her persistent claims about pedophilia and moral corruption.

In June 1977, Miami area residents voted to repeal their gay civil rights law by an overwhelming 2-1 margin, making Dade County the first locality in the nation to do so. Although the loss was a significant blow for the LGBT community, several movement leaders said that Anita Bryant had done gay men and lesbians a favor by uniting them in a national campaign against public [*592] prejudice and discrimination, noting that people who had never been involved publicly in gay rights came out of the closet due to the fierce bigotry that was regularly on display in Miami.

The impact of the Miami campaign was substantial. On the night of the Miami vote, an apparently spontaneous protest march emerged on the streets of New York City, with an estimated crowd of 5,000, while the White House received written protests from as far away as The Netherlands. Politicians across the country including Mayor George Moscone of San Francisco and Rep. Edward Koch of New York stated that they were disappointed in the Miami outcome, as did many national and local leaders of LGBT groups. Leaders on both sides of the issue presciently agreed that this was only the beginning of a larger national debate on gay rights that would continue for years to come.

Miami’s repeal of its gay civil rights law led to similar campaigns in several cities, even as others continued to pass new laws protecting the rights of homosexuals. Fejes focuses on the former, grouping the post-Miami anti-gay initiatives into two separate chapters. The first set includes St. Paul, Minnesota and Eugene, Oregon both of which voted to repeal their gay civil rights laws by a 2-1 margin, as well as Wichita, Kansas which did so by a whopping 5-1 margin. The second set includes a state-wide initiative in California, a local repeal effort in Seattle, and a new vote on gay civil rights in Miami. California’s Proposition 6, or what came to be known as the Briggs Initiative, proposed the mandatory firing of all public school teachers who were homosexuals or who advocated homosexuality. This initiative failed by a 58-42% margin in the November 1978 elections with somewhat surprising opposition arising from conservative stalwarts such as Ronald Reagan and the state chapter of the John Birch Society. Repeal efforts also failed in Seattle, which resoundingly supported its gay rights law in a 63-37% vote. However, the Miami proposal to protect gay rights went down with 58% opposed.

Fejes argues that these events led LGBT communities across the nation to create what Benedict Anderson has called a unified “imagined community” held together by a shared social and political affinity, rather than physical proximity. Shortly thereafter, that virtual community became at least temporarily proximate during the first gay and lesbian march on Washington in 1979, attended by over 75,000 people.

In the wake of her divorce a few years later, Anita Bryant retreated, at least somewhat, from her hard line stance against gay rights, claiming to adopt more of a “live and let live” strategy. Be that as it may, Fejes amply demonstrates that the moral panic strategy that she adopted in the Miami campaign has a continuing legacy in contemporary debates about gay rights. He concludes: “After the dramatic campaigns of 1977 and 1978, the battle between gay rights activists and social and religious conservatives settled into a kind of cultural trench warfare that has continued over the next quarter of a century” (p.228).

This clearly written book offers an excellent analysis of the development of gay and lesbian civil rights laws. It is [*593] chock full of interesting details and anecdotes that are essential to understanding the complex politics of this issue. The conflict over gay civil rights laws is a topic that is frequently overlooked in casebooks on law and sexuality, perhaps because court cases are not central to the story. This book would work well as a supplemental book in such classes, particularly for those wishing to move away from a court-centered syllabus. It would also be useful in undergraduate and graduate classes on civil rights or LGBT politics, as well as in courses on politics and religion or politics and the media.

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© Copyright 2009 by the author, Susan Burgess.

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WOMEN, CRIME AND SOCIAL HARM: TOWARDS A CRIMINOLOGY FOR THE GLOBAL ERA

by Maureen Cain and Adrian Howe (eds). Oxford, UK: Hart Publishing, 2008. 234pp. Hardback. £45.00/$95.00. ISBN: 9781841138428. Paperback. £22.00/$46.00. ISBN: 9781841138411.

Reviewed by Mathieu Deflem, Department of Sociology, University of South Carolina. Email: deflem [at] sc.edu.

pp.587-589

The field of criminology is moving in all kinds of directions, at least there where it moves. For it would be too naive a view to assume that, because the field has been changing in some areas, it would not stand still in many others. Just have a look at the mainstream criminology journals to see what most criminologists still do and keep on doing despite the little gains they have made in seeking to find the real causes of crime and formulate solutions accordingly. Alternative modes of doing criminology sometimes fare no better as exercises in futility as they are mired in utopian projects with no realistic expectations, neither in scholarship nor politics. But there are fresh perspectives that have effectively urged criminologists to look at their area of research differently and with a more hopeful view of constructing useful new ways of research and theorizing. Among these developments, the elaboration of a criminology adjusted to our global era may count, at fortunate times at least, as both the most urgently in need of expansion and the most successful in already having produced favorable results. This edited collection fits this movement very well and admirably adds to our understanding in global criminology, specifically with a focus on the position of women.

An edition in the Oñati International Series in Law and Society, this volume contains contributions that were originally presented at a workshop at the Oñati Institute in Spain. What is probably most remarkable about this collection, apart from its various chapters’ substantive merits, is that it reads truly as the work of a collective. Clearly the authors were on the same page and coordinated their activities according to the respective contributions of one another. The editors, Maureen Cain and Adrian Howe, are to be commended for securing this cohesion, which, as we know, is not always easily attained in edited volumes. In the remainder of this review, I can therefore also discuss the substance of the book as a collective work rather than by identification of the individual authors.

The book is divided into four parts, the first of which presents a general programmatic background to the study. Most essentially, this collection is involved in the problem of violence against women on a global scale. Special attention goes to the harmful effects of global structures and processes on women at the local level. The concept of harm is rooted in the work of Edwin Sutherland, who introduced the notion to differentiate from a narrower (legal) concept of crime. Defined in opposition to common welfare in society, harms can [*588] be or cannot be recognized by law, an empirical variability that is far from trivial, especially in terms of the likelihood of the enforcement of sanctions against harmful behavior.

At the global level, harms can be produced by nation-states or by international organizations. Such harmful conduct may be an unintended but nonetheless very real consequence of behavior. Particularly discussed throughout this book are the political, legal, and economic policies of states and international corporations. An added problem with such conduct is that its harm-producing nature at the structural level is often not recognized and hence difficult to address, legally or otherwise. By example, economic policies by the World Bank and the World Trade Organization that may be useful to the economic conditions in the Western and Northern world are detrimental elsewhere, especially to women who already find themselves in a vulnerable position. Because of the focus on harm against women, it is not unwise to also look at the movements that are taking shape to address violence against women. Thus, certain local groups that have been seeking to redress the harm done against women in various places across the world are also discussed in this volume.

Parts II and III address empirically a variety of concrete instances where women are victimized and how, in response, human rights are relevant in this context. Among the concerns that receive special attention are the trafficking in women, the relocation of minority groups, and the international organization of sex work. The problem of responsibility to pinpoint who exactly causes these harms is specifically addressed, as the perpetrators of global harms are typically much more difficult to identify than, by comparison, in the case of direct inter-personal violence. Additionally, even when an offender has been identified and charged, convictions are often hard to achieve. From the viewpoint of human rights and human rights law, the authors show how gains have been made, yet they also expose the limitations of the realization of human rights protections, particularly at the level of international law but also at the local level. In some contexts, for instance, human rights are articulated locally in terms of so-called ancient customs which, in truth, are ahistorically constructed in contemporary cultural settings in terms women refer to as ‘bullshit law.’

The book’s final part addresses certain lessons that criminologists should learn from the global study of harm on women. A call is made to engage scholarly with these problems, and also to work towards an activist orientation. The work that is done by global and local movements to address the harm against women is therefore discussed in order to build an effective anti-movement. Of course, this does not need to imply that a “committed criminology” needs to be developed, as Cain and Howe argue (p.12), but could also lead to the development of a criminological commitment – an activism that is, at least to some extent, based on insights from criminological research, rather than a criminology infused with activist concerns.

This is a very exciting book, with a wealth of empirical findings on important problems and a range of [*589] thoughtful suggestions that benefit the study of women and harms in the global world. Given the scope of this volume, I am only disappointed by the title of the book, which is not sufficiently precise in suggesting the focus on women and social harm in the global era. The subtitle in particular does not rightly convey the delineated but valuable focus of this collection and thus also does not do justice to other works in the broader field of global criminology that do not address feminist problems. The book could also have benefited from a concluding chapter. Although the last section of the editors’ introduction contains some broader reflections, a separate chapter might have drawn the various contributions more closely together and open up vital questions and avenues for future research. In all other respects, however, this is a very competent work that demonstrates the value of research in global criminology as it is being conducted today. It thereby also shows, as do many other extant works in related areas, that the need to argue for the development of a global criminology need no longer be made, as global criminology is now being practiced and has already borne many fruits, more of which are surely to come in the near future.

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© Copyright 2009 by the author, Mathieu Deflem.

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AMNESTY INTERNATIONAL AND U.S. FOREIGN POLICY: HUMAN RIGHTS CAMPAIGNS IN GUATEMALA, THE UNITED STATES, AND CHINA

by Maria T. Baldwin. El Paso: LFB Scholarly Publishing LLC, 2009. 306pp. Cloth $75.00. ISBN: 9781593323295.

Reviewed by Lawrence M. Friedman, Law School, Stanford University. Email: LMF [at] law.stanford.edu.

pp.585-586

This book, by Maria T. Baldwin, adds to the literature of the human rights movement by focusing on three campaigns of Amnesty International. These campaigns were “designed to encourage the United States to construct policies befitting a human rights leader” (p.35). A close examination of the three campaigns, Baldwin believes, would help to “gauge AI’s effectiveness in elevating the human rights issue for U.S. policymakers and its citizens.” The three case-studies chosen were the campaigns to improve human rights in Guatemala, in the United States itself (with regard to the death penalty), and in mainland China.

The three case-studies are somewhat curious choices, in the light of the book’s professed goal – that is, to show how AI influenced the policies of the government of the United States. Yes, AI struggled to raise consciousness about the appalling human rights conditions in Guatemala, as one wretched regime after another crushed opposition forces, destroyed villages of indigenous peoples, and either tolerated or supported the notorious death squads. Yes, AI fought hard to mobilize opinion against the death penalty in the United States. And it raised its voice against human rights abuses in China. Baldwin thinks these three campaigns were successes, at least in a limited way; that AI indeed “influenced the policy environment in the United States” (p.35). In Guatemala, for example, Baldwin thinks that AI “made it too difficult to reconcile American values with the continued support of . . . a brutal regime” (p.277). In the United States, there was of course resistance to campaigns to get rid of the death penalty; but AI has “been involved in rallying governments and people to the anti-death penalty campaign for over three decades and the change over those years is significant” (p.280). AI has also been working hard for years to persuade the outside world to act on behalf of political prisoners and dissenters in China; and the release of some prisoners from Chinese prisons suggests that AI “has some impact on the conditions in China” (p.282).

I have to say that I read the story Baldwin tells rather differently. I read it as a story of failure, not success. During the Cold War, the United States was simply not interested in stopping the slaughter in Guatemala; after all, the various military regimes were anti-Communist, and that was enough to excuse anything they did, including the death squads. Similarly, there is a strong argument that AI wasted its time fighting the death penalty in the United States. To be sure, there have been some positive developments in recent [*586] years – the death penalty is less popular than it was, and a few states seem to be moving to abandon it. But it is hard to see that AI had anything to do with these developments. China is hardly a success story either. AI has no actual organization within China (the government will not tolerate such things), and it is “not allowed into the country for the purposes of human rights research” (p.281). All of the pressure has to come from outside. To be sure, the United States every once in a while asks China to please release some political prisoners. At least this is what we are told. Whether the United States government actually presses very hard for human rights reform in China is another question. In general, any claim that AI has been successful or even influential in achieving human rights improvement in China rests on very flimsy evidence indeed.

Baldwin’s implicit reply to these objections would be that she is not in fact arguing for a “direct cause and effect relationship between AI’s work and U.S. policy.” Rather, AI has made an effort to influence public opinion; and public opinion is a crucial factor that affects the behavior of the U.S. government (p.39). This effect is certainly possible, but of course cannot be proven. Somehow I doubt that AI’s role in this chain of events has been very significant. AI of course often has little choice but to pursue this goal – that is, to try to get the United States government involved. Guatemala, for example, was closely tied to the United States, and the best chance to get Guatemala to stop the killings was to persuade the United States to put pressure on Guatemala. For a long time, however, the American government was unwilling to lift a finger to help.

My skepticism does not mean that I found the three case-studies uninteresting or unimportant. But they do show AI battering its head (so to speak) against a stone wall. Amnesty is probably least effective when it tries to achieve results with regard to big powers like China (or the United States). Guatemala is hardly a big power; but in the context of the cold war it was able to operate with impunity under the protection of Uncle Sam.

Amnesty is, to be sure, a wholly admirable institution. It spends enormous amounts of time, energy, and money fighting against injustice and political oppression throughout the world. And it certainly does make a difference – but mostly not in big powerful countries. When some small-bore dictator throws a human rights worker into prison, or causes the leader of the democratic opposition to “disappear,” Amnesty will try to come to the rescue. It galvanizes its membership. Irate letters and telegrams flood the dictator’s in-box. It subjects the dictator and his regime to the pitiless glare of publicity. And the publicity in many cases does save the victim’s life, or his skin, and sets him free.

Baldwin’s book – even though I tend to doubt one of its major premises – is valuable as a chronicle of how Amnesty operates, against the backdrop of three difficult situations. It tells three interesting and significant stories. It thus adds to our understanding of the human rights movement, and one of the most active and important of the NGO’s that labor in this field.

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© Copyright 2009 by the author, Lawrence M. Friedman.

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