August 28, 2009

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).


© 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.


© 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/]


© 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.


© 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).


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


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August 23, 2009

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.


© Copyright 2009 by the author, Whitley Kaufman.

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