EMERGENCY POLITICS: PARADOX, LAW, DEMOCRACY

by Bonnie Honig. Princeton and Oxford: Princeton University Press, 2009. 218pp. Cloth. $26.95/£18.95. ISBN: 9780691142982. eBook format. $26.95. ISBN: 9781400830961.

Reviewed by William Corlett, Department of Politics, Bates College. Email: wcorlett [at] bates.edu.

pp.114-118

Addressing legal scholars, political theorists, local activists, and other stakeholders in democracies, this remarkable book explores the paradoxical rhythms of progressive change and resurgent conservatism. Building upon her earlier work, especially POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS (1993) and DEMOCRACY AND THE FOREIGNER (2001), in ways that encourage living hospitably among strangers, Honig’s “linked essays” (p.10) supplement our understanding of “universal human rights, the agency of law, [and] faith in progress” (p.140).

Readers just beginning to recognize Bonnie Honig as a “must-read” scholar at the crossroads of legal studies and political theory will find an opportunity to catch up. Readers already familiar with Honig’s work will find a consolidating position on “overliving” (p.10), living life beyond bare necessity, as she prepares to “take us back to the Greeks” (Derrida, 2000:73) in her forthcoming ANTIGONE, INTERRUPTED. And, because Honig always brings new people to the table, all readers will benefit from her notable addition here of Moses Mendelssohn and Franz Rosenzweig to a discussion of what living more democratically can require of progressive lawyers, administrators, social movements, and other political agents.

Honig asks how we live with ourselves and others after making the impossible decisions sometimes required by emergency situations, especially when survival is it stake. Drawing on her earlier work, Honig resists the starkness of choosing between the needs of life and the added benefit (overliving) made possible by a politics she associates with Arendt (p.10). Honig develops a “doubled meaning of survival,” inspired by Derrida’s “sur-vivre.” Derrida distinguishes merely extending life (“plus de vie”) from that “something else” (“plus que vie”) that can attend a struggle to survive (Derrida, 1985: 25).Derrida recalls this distinction when asked about the survival of his work, sometimes through translation, especially in the United States. In this interview, he points out that a translation of his work can do so much more than extend the life of his corpus because “all sorts of other texts” are required to produce a translation. The survival of his work amidst critics (plus de vie) in France, for example, differs from and yet relates to the survival of his work in translation (plus que vie), in the United States. Honig finds Derrida’s distinction useful for drawing together the life and death struggles that we associate with everyday practices, on one hand, and the “surprise extra” that comes from extraordinary political activity when we get it right, on the other. She wants us to keep everyday needs in the picture as [*115] we pursue our political goals in an “agonistic mutuality of mere and more life” (p.11).

Honig uses the “mere life- more life” distinction to announce the central paradox of the book: folks who are so often asked to be “we the people” (more life) are also always necessarily a “multitude,” a sometimes heap of disaggregated, if not unruly, interests (mere life). In other words, the just-getting-by (not dead yet) that we associate with everyday life is necessarily imbricated with the “surprise extra” required by politics in its best Arendtian sense. Honig approaches the “daily” recurrence of this paradox from a “tragic perspective” (p.16), so as to remind readers of “our noncentrality in the universe” (p.11). “Overliving” is never all about us; it always already carries a remainder.

Honig would have political and legal theorists live with this “paradox of politics” by addressing it critically, as opposed to devising ways of overcoming it. She distinguishes her agonistic approach from two well-known attempts to transform the unruly multitude into a deliberative citizenry. The “democratic legitimation” (p.16) approach, which would require citizens to develop a more general will out of their everyday particularistic wills, tempts Seyla Benhabib to seek a universal “moral standpoint,” according to Honig. And the “constitutional democracy” approach tempts Jürgen Habermas to seek a “thin constitutionalism,” one which views “rule of law” and “popular sovereignty” as “mutually constitutive, not antagonistic,” because they make each other possible in time (p.31). Honig writes against these “solutions” on the grounds that they mask the “impurity” (p.38) of even the most successful political experiments. Impurity, infelicity, and undecidability are always in play in Honig’s “emergency politics.” Building on the work of William Connolly, she seeks to acknowledge “the remainders of all forms of life by actively but not uncritically supporting the efforts of new identities to come into being without prior guarantees about the rightness or justice of their claims” (p.39). This leads her to analyze the “emergent rights claims” readers might associate with LGBT rights, the right to doctor assisted suicide, and animal rights.

The two chapters that work through these claims are framed by the work of Moses Mendelsohn’s critique of so-called Enlightenment “progress.” Resisting Kantian cosmopolitanism, Mendelsohn argues that advances are always attended by setbacks. By extending new life to Mendelsohn’s counter-Kantian text, Honig shows how everyday materials at hand – the excess mentioned above – often complicate the universal pretensions that she associates with even the more critical forms of deliberative democracy, such as Habermas’s. Framing this chapter entitled “Emergence” with Mendelsohn’s sobering reflections as “a Jew living in Berlin under Frederick the Great” (p.42), Honig urges a distinction between “right-as-symbol” (which offers formal inclusion) and “the actual behavior of a right” (p.55) (which often spells exclusion). But – and this is her point – just as inclusionary gestures, such as Kantian Enlightenment progress, exclude, so can those excluded insist upon inclusion. Honig props open the door to law and politics by reminding us [*116] that people claiming odd new rights that do not seem to fit are part of how rights actually operate. In her phrasing, “New events can occur in all their overliving novelty because the right-as-symbol is an ideological one . . . not an accurate representation of a right’s behavior (p.56). The companion chapter, “Decision,” illustrates this potentiality in a vivid discussion of emergency politics, including fascinating work with the politics of the legal technicality, which honors the discretionary acts of U.S. Assistant Secretary of Labor, Louis Freeland Post, when he released detainees locked up after the Palmer raids.

Moving to the world stage, “Orientation” turns to Jewish philosopher Franz Rosenzweig as a counter-text to Carl Schmitt on the “state of exception.” Schmitt’s approach to sovereignty sparks debates which normally include Hannah Arendt and Giorgio Agamben. But Honig’s emergency politics takes exception to the State as the ultimate “decider” of exceptions. Current debates are versed in the language of developing norms and viewing sovereignty as the right to make exceptions. But Honig, countering Schmitt’s take on the “miracle” of state sovereignty, offers the (counter) “miracle” presented by Franz Rosenzweig as displacing the norm-exception binary. When discussing the miracle of Bilaam’s “talking ass,” the animal who reveals human cruelty in NUMBERS 22:28, Honig cites Rosenzweig explaining that “All the days of the year...Bilaam’s talking ass may be a mere fairy tale, but not on the Sabbath,” and then explains more fully on her own the conditions under which this miracle might be said to occur:

that the hearer be in synagogue, on the Sabbath, on the specific Sabbath in which the portion of the Torah that is supposed to be read is the one containing the story of Bilaam’s ass, that the hearer be one of at least ten community members, in a community of similarly oriented hearers, that the reading not be theatrical, citational, or ironic, and so on and so forth. If these conditions are met, miracle may happen, which is to say, an event may be staged in which the human encounters the divine. If not, the hearer hears what can only strike him as . . . a fairy tale. (p.106)

Honig’s riff on the Rosenzweigian “miracle” resonates along and across cultural boundaries to include, for one of many examples, William Connolly’s suggestion of how a “militant electorate” might have interrupted everyday life at work and in the streets after BUSH v. GORE (p.108). Against “decisionist” approaches to state sovereignty, Honig issues this reminder: “the people when bound together can arrogate to themselves the rights of states” (p.111).

This possibility means, then, that for Honig there is no “doer behind the [sovereign] deed” (p.108), a move which makes “we the people” a potential force, but one which is at the same time entwined with the demands of everyday life. Honig gathers the threads of these carefully arranged chapters to distinguish her position on the international stage from Benhabib’s neo-Kantian cosmopolitanism. In this final chapter, entitled “Proximity,” she develops Rosenzweig’s duty of neighborly love in the direction of Derridian hospitality.

Derrida (2000:77) distinguishes, as an antinomy, unconditionally accepting unknown strangers and being more [*117] mindful of political boundaries (“conditional hospitality”). For Derrida, the law of unconditional hospitality reminds us that all borderlines mark the violence of their inscription, whereas the more familiar laws of conditional hospitality signify the necessity of drawing these inside-outside lines. His work addresses the “insoluble,” “non-dialectizable” and “antinomic” relation of these forms of hospitality.

Alerting us to the “heterogeneity” of these kinds of hospitality, Honig achieves a creative blend of Rosensweig and Derrida to build a case for “full hospitality to refugees and other nonimmigrant border crossers simply because they are here” (p.130). This requires taking a “both-and” approach to the (mere life) of democracy’s universal rights, agentic law, and faith in progress, on the one hand, and the (more life) infelicitous impurities of its counter-politics, on the other. Neither option – patrolling or ignoring borders – is obviously the right one, but under the right conditions keeping both options open carries the promise of a “miracle.”

And yet what happens to the “and” in the “both-and” relation of mere life and more life? Citing her award-winning earlier work, which also benefits from Derrida’s discussion of the “nuclear traits” of writing in general, Honig emphasizes what she calls “the force of rupture” (1993:95). But here we might ask if by privileging rupture on the horizon of meaning, Honig does not distract us from the violence of inscription which attends so much of our world-making, including neighborliness. Her work with “overliving” should be, I think, more attentive to all that exceeds the tension between mere life and more life. For example, when the hospitable Levite butchers his concubine in JUDGES 19:23-30 (cited by Derrida, 2000:154-55), does her violent death not haunt the “agonistic mutuality of mere life and more life” going on among the men? The double meaning of “survival,” designed to avoid stark contrast between mere life and more life, should not be exchanged too easily for the antinomic double meaning of hospitality. In other words, Honig’s work with Rosensweig and Derrida draws our attention to treating undocumented residents as citizens “because they are here.” But her inspired plea for hospitality must not allow us to forget possible violence on the part of citizens. Examples might include heteronormativity, imperialism, or overconsumption; in many cases, these forms of violence drive the newly arriving people from their homes in the first place.

Honig stands nevertheless in an enviable position to explicate the possibility of “miracles” and other “surprise extras” that can come from political life. Her wide reading, intellectual commitment to cross-cultural negotiation, and marked ability to explain her position clearly, combine to transform these “linked essays” (p.10) into a sustained argument for retrieving democracy. EMERGENCY POLITICS builds a compelling case for the twin motion of rupture and maintenance in any political experiment. Honig’s careful work enriches our understanding of democratic politics and asks us to remain vigilant after apparent political victories, while reflecting and perhaps acting upon what it means to look away when faced with impossible choices. [*118]

REFERENCES:
Derrida, Jacques 1985. “Deconstruction in America: An Interview with Jacques Derrida,” edited by James Creech, Peggy Kamuf, and Jane Todd, CRITICAL EXCHANGE 17 (Winter 1985). Pp. 1-33.

Derrida, Jacques. 2000. OF HOSPITALITY. Standford University Press.

Honig, Bonnie. 1993. POLITICAL THEORY AND THE DISPLACEMENT OF POLITCS. Cornell University Press.

Honig, Bonne. 2001. DEMOCRACY AND THE FOREIGNER Stanford University Press.

Honig, Bonnie. Forthcoming. ANTIGONE, INTERRUPTED.

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

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© Copyright 2010 by the author, William Corlett.

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THE ROLE OF ATTORNEYS IN COURT ORDERED MEDIATIONS IN NORTH CAROLINA: THE PILOT PHASE

by Elizabeth Ellen Gordon. Lewiston, New York: The Edwin Mellen Press, 2009. 164pp. Cloth. $99.95/£64.95. ISBN: 9780773448094.

Reviewed by Rosalie R. Young, Public Justice Department, State University of New York at Oswego, Emerita, email rosalie.young [at] oswego.edu.

pp.111-113

Elizabeth Ellen Gordon, associate professor in the Department of Political Science and International Affairs at Kennesaw State University in Georgia, documents attorney response to the North Carolina court-mandated mediated settlement conference (MSC) pilot program. Superior Court judges can require an MSC where the plaintiff has made a claim of at least $10,000 in a non-domestic civil case. Gordon describes the pilot program in 1992 and 1993 when she was part of the evaluation team at the Institute of Government at the University of North Carolina at Chapel Hill. The North Carolina General Assembly had requested that the Administrative Office of the Courts conduct an assessment of the MSC program. Although the program brought only marginal changes to legal practice and case disposition times, litigant response was favorable. In 1995, the program was expanded to all North Carolina superior courts.

The Institute of Government study drew data from five sources: surveys of litigants, certified mediators, and members of the North Carolina State Bar Association whose addresses were in the pilot areas;, observations of 31 mediated settlement conferences:, and court records. Summary data are available in an appendix and these are referred to throughout the book. Gordon also includes brief case descriptions which help to clarify her material.

Although the goal of this very readable volume is to clarify attorney reactions and roles, the author also provides clear descriptions of the goals, theory and philosophy of both ADR (Alternate Dispute Resolution) in general and mediation in particular. Especially valuable is her recognition of the contrast between the adversarial nature of legal practice, where attorneys are trained to advocate zealously for their clients, and the goals of mediation, which focuses focus on cooperation, the voluntariness of participants, and “win-win” conclusions.

While the MSC is closer to mediation than litigation, it differs in some ways. In traditional mediation, the clients are the primary participants and the focus is often on future relationships. In MSC cases, there may be no post-case relationships. In traditional mediation, litigant interaction and communication is a primary goal, but in the MSC lawyers control the process as they do in traditional legal negotiations. Despite lawyer control, the majority of litigants viewed mediation as positive and fair. Mediators were often viewed as willing listeners. Thus lawyers were able to maintain control while improving client [*112] satisfaction, two positive results for attorneys.

Gordon describes the development of the MSC program including a brief discussion of the influence of programs in Florida and Maine on North Carolina which closely followed the Florida model for civil mediation. The reader leaves the volume with a better understanding of both mediation and the mandated mediation settlement conference program in North Carolina.

North Carolina attorneys were involved with the program from its inception. A relatively small group of activist North Carolina Bar Association leaders and judges, widespread interest in mediation by the public and bar, and the success of the Florida mediation program were important factors in the development of the MSC. Supporters of the program met with many local bar associations. The Bar sought and received the endorsement of the North Carolina Supreme Court before taking the proposal to the North Carolina General Assembly. Objections from the Court would have derailed the plan. This process made the MSC appear to be noncontroversial and routine. Gordon explains the success using Herbert Jacob’s model of routine policy development (pp.34-41). Important factors were the lack of cost to the state and the proposal for a pilot program with an expiration date involving 13 of 100 counties. (As noted above, in 1995 the General Assembly approved the statewide implementation of MSC giving superior court judges the right to order mediation.

Gordon suggests that lawyer involvement was a political move which led to both ready acceptance of the MSC program and its minimal impact on the court system and the practice of law in North Carolina. While the stated goal was to increase case efficiency for both the courts and legal practitioners, surveys demonstrated only minimal change. Average case length decreased slightly, while settlement rates remained constant at about 90 percent. The basic legal pattern of a civil dispute remained, although the mediation might have altered the timing of settlement negotiations. The deadline of a mediation order or a conference date may promote settlement.

Gordon questions whether the MSC program was the result of the ADR movement, efforts at court reform, or privatization. She suggests that with MSC mediation has adapted to the legal environment without transforming the legal system. Lawyers remain in charge and neither voluntary participation by litigants nor the empowerment of disputants is a key goal. As is typical of lawyer-initiated court reform, the role of lawyers remains intact and change has been marginal. The MSC provides a new role for the lawyer, since at least initially all certified mediators were required to be experienced lawyers. She concludes that the MSC is not traditional privatization because it does not substitute a private action for a public activity. Instead the MSC is a mandated private dispute resolution device which at times replaces another private device, lawyer to lawyer negotiation. Gordon suggests that with the MSC the state sanctions private dispute resolution. Court mandates and determination of standards for mediator certification demonstrate public control, but disputant right to select mediators, the lack of judicial oversight of the fairness of the settlements, and disputant responsibility for paying mediators make court ordered [*113] mediation a “mandatory private enterprise” (p.109).

Despite MSC policies, during the research period settlement conferences were not always mandated for eligible cases by judges. Gordon noted that the mandate was often ignored by disputants or delayed beyond the specified dates. Some judges refrained from issuing a mediation order if either lawyer objected. Only rarely were penalties imposed for non-compliance by the judiciary.

The active involvement of lawyers in developing the program and setting standards has led to minimal change. Gordon notes, “lawyers set up the program and gave themselves starring roles” (p.100). However, she suggests that these modifications at the margins should not result in a dismissal of the mandated mediated settlement conference program. She argues that litigants are now more involved, more satisfied, and better educated about the civil justice system. Secondly, both mediation training and the activity of certified mediators have spread knowledge of traditional mediation activities to both attorneys and litigants, including the discussion of emotional concerns and the benefits of compromise. Finally, she suggests that mediation is generally seen as a positive concept by the public which frequently views the American justice system with skepticism.

In this brief volume, Gordon offers the reader an understanding of traditional mediation, mandatory mediation and the origins and initial implementation of the mandated mediated settlement conference in North Carolina. Her seven chapters concisely raise issues relating to the lawyer’s role and mediation values, the history of MSC, lawyers’ views of medication, the impact of mediation on attorney attitudes, the reasons why attorneys support MSC, the effect of mediation on the private practice of lawyers, and a concluding chapter on the impact of the mediated settlement conference.

Despite these positives, the volume has several serious limitations. First, most of the copious references date to the 1990s and earlier. At that time there was only limited research on court mandated mediation. As Gordon notes in her “Epilogue,” there has been considerable research since the implementation of the mandated MSC in North Carolina which could have profitably been added to her book. Secondly, the reader is left wondering what has happened in North Carolina since the mid 1990s. According to a brief summary on the North Carolina Court System website, disputants are now offered a “dispute resolution menu” from which to choose, including mediated settlement, neutral evaluation, arbitration and summary jury trial. Mediated settlement is the default if the parties do not make an active choice.

REFERENCE:
Jacob, Herbert. 1988. SILENT REVOLUTION. Chicago: University of Chicago Press.

MEDIATED SETTLEMENT CONFERENCE PROGRAM. http://www.nccourts.org/Courts/CRS/Councils/DRC/MSC/Default.asp

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© Copyright 2010 by the author, Rosalie R. Young.

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ZONES OF TWILIGHT: WARTIME PRESIDENTIAL POWERS AND FEDERAL COURT DECISION MAKING

by Amanda DiPaolo. Lanham, Md.: Lexington Books-Rowman and Littlefield Publishers, Inc., 2009. 262pp. Cloth. $75.00/£44.95/€51.95. ISBN: 9780739138335. Paper. $29.95/£18.95/€21.95. ISBN: 9780739138342.

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

pp.107-110

Amanda DiPaolo, assistant professor of political science at Middle Tennessee State University, explains how in her first year of doctoral work at Syracuse University her teaching assistant duties were changed radically from Western Traditional Political Philosophy to Constitutional Law, “a topic I knew nothing about.” I think it is often the case that someone tossed into a new area can ask fundamental questions that might escape more seasoned academics. For DiPaolo, the dispute over the exercise of war powers by President George W. Bush after 9/11 caused her to wonder how federal courts weighed the merits of broad presidential power over the need to protect individual liberties. Examining the initial decisions by the Supreme Court in HAMDI (2004) and HAMDAN (2006), she did not see what some might have expected: deference to the President. Instead, the Court deferred to Congress and determined whether President Bush’s actions had been legislatively authorized.

DiPaolo then wondered if Justice Robert Jackson in his concurrence in YOUNGSTOWN (1952) “had been right all along. Does the Court defer to the political branches when they work together, even if it means our protected rights will be limited?” What should the Court be doing: grounding its decisions on what the Constitution provides, including rights available to individuals, or look to see if the two elected branches are on the same page? If the latter, this type judicial analysis should be of concern. The President and Congress could act in ways flatly unconstitutional, as when they enact sedition laws that punish individuals who criticize the three branches. Should courts routinely acquiesce to these joint judgments?

This abstract question took specific shape in 2006 during the hearing to confirm Samuel Alito as Justice of the Supreme Court. Senators on the Judiciary Committee asked him how he would evaluate presidential action to engage in warrantless foreign security surveillance. He suggested that a starting point would be Jackson’s concurrence and its three categories: “where the President acts with explicit or implicit congressional approval, where the President acts and Congress has not expressed its view on the matter one way or the other, and the final category, where the President exercises executive power . . . in the face of explicit or implicit congressional opposition to it” (p.1). Did the decision by President Bush to authorize warrantless surveillance fall in the last category because it violated the Foreign Intelligence Surveillance Act (FISA) of [*108] 1978, which required a warrant from the newly created FISA Court? DiPaolo adds: “What is interesting about Justice Alito’s answer is that he did not mention the Bill of Rights, or, more specifically, the Fourth Amendment’s protections against unreasonable search and seizure” (p.1). If Presidents and lawmakers jointly decided to violate the Fourth Amendment, would the Court be satisfied that they had both agreed to that policy? Under such conditions, the Court ignores the Constitution.

What DiPaolo finds in reviewing court cases on the war power is that the judiciary, “more often than not, will defer to the political branches of government when they are working together. This means that the Court has been less influenced by rights provisions and more concerned with the separation of powers, or congressional approval, of executive actions.” Under this analysis, rights-based claims “take a backseat” to judicial deference to the agreements worked out by the President and Congress (p.2).

Consider what happened during World War II when President Franklin D. Roosevelt issued an executive order to remove about 110,000 Japanese Americans from their homes on the west coast and place them in detention camps inland. About two-thirds were U.S. citizens. Congress passed legislation to support Roosevelt’s action. This is Jackson’s first category: the President acting with explicit or implicit congressional approval. In a decision widely condemned today, the Court in KOREMATSU (1944) upheld the detention policy. The Court said it adopted the standard of “strict scrutiny” in this case, but in fact it failed to apply that test because it deferred wholly to military judgments, with or without evidence to support the removal. The strict scrutiny standard requires independent judicial judgment, which did not occur in KOREMATSU. As DiPaolo points out, “a separation of powers approach to wartime judicial decision-making offers less protection to individuals than looking at the case through rights-based language and by answering the constitutional questions presented before the courts” (p.4).

Jackson’s concurrence in YOUNGSTOWN, while generally admired, creates a number of serious constitutional problems. DiPaolo identifies one: courts upholding actions by the federal government simply because the two political branches agree on policy. With that approach the Constitution goes out the window. A second problem is that the three categories are at most an initial orientation. Jackson admitted that his model was “over-simplified.” Try applying it to Bush’s warrantless surveillance plan. Critics objected that the plan violated FISA and therefore belonged in Jackson’s third category, where presidential power is at its “lowest ebb.” Defenders insisted that the plan was fully covered by the Authorization for Use of Military Force (AUMF), enacted shortly after 9/11, and deserved to be in the first category where presidential power “is at its maximum.” DiPaolo regards Jackson’s framework “as a useful guide for the adjudication of war-powers cases” (p.19). It is useful if the Supreme Court is looking for an easy and unprincipled escape. Often it is of no use in protecting constitutional rights and of no use in resolving a [*109] constitutional dispute, as is evident from Bush’s warrantless surveillance.

Chapter 6 focuses on free speech, and it is here that the Jackson concurrence is conspicuously dangerous. Just because the President and Congress endorse a particular policy does not mean it is constitutional and does not excuse the courts from exercising independent judgment. In reviewing cases involving the exercise of free speech during emergencies and wars, DiPaolo emphasizes that courts “often decide these First Amendment cases by answering the constitutional questions in contrast to my earlier case studies, where a separation of powers framework is prominent” (p.162). She covers the sedition laws of 1798, World War I, and the Smith Act of 1940, and also the years of repression during the investigations by Senator Joe McCarthy and the Cold War. The performance of federal courts during these periods was highly uneven, exhibiting little evidence of the judiciary acting as a reliable “guardian” of individual liberties. For DiPaolo, when individual rights, “guaranteed by the Constitution, are limited by executive action, we expect judicial challenges to be adjudicated using a rights-based discourse” (p.199). Reliance on the separation of powers model “is a way to protect both the Judiciary and the Constitution itself from overzealous justices who in a time of great panic might grant too much authority to the Executive, thus potentially damaging rights enumerated in the Constitution beyond repair after the end of hostilities” (p.199). In essence, DiPaolo would rather the courts avoid deciding cases when they see no independent role for themselves and must defer to decisions by elected officials or the military.

In several places I wish that DiPaolo had explored the source of presidential authority more carefully. It is true that Justice Grier in THE PRIZE CASES (1863) upheld Lincoln’s blockade of the South, but he did so only with the understanding that the country was in a civil war, not in a military conflict with another country. He said explicitly that the President “has no power to initiate or declare a war either against a foreign nation of a domestic State.” During oral argument, Richard Henry Dana, Jr. for the White House agreed that the President’s power did not include “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.” DiPaolo states that President Harry Truman “relied on authority from the U.N. rather than from a congressional declaration of war” (p.20). The UN Charter never envisioned the UN Security Council as a substitute for “authorizing” war. The President cannot through the treaty process (the UN Charter) strip Congress of its constitutional power to declare or authorize war. In various places DiPaolo suggests that Presidents must rely on their “own enumerated constitutional powers” (p.28). This notion of a constitution of enumerated powers appears elsewhere in the book (pp.5, 9). The framers never intended to limit each branch to express powers. Each branch has a broad variety of implied powers, including the implied power of Congress to investigate, the implied power of the President to remove department heads, and the implied power of federal courts to invalidate the actions of the two political branches and the states. [*110]

At the end of the book DiPaolo offers this thought: “In my suggesting that the Executive must find institutional legitimacy from a source outside its own authority granted in the text of the Constitution, I echo the likes of Richard Neustadt who several decades ago argued that the power of the president is found in the Executive’s ability to persuade” (p.213). The position of Neustadt, according to DiPaolo, was “restated by Arthur Schlesinger, Jr. who suggested that the power to manage the vast, whirring machinery of government derives from individual skills as persuader, bargainer, and leader” (p.213). However, both Neustadt and Schlesinger supported Truman’s unilateral decision to go to war against Korea. There was no effort to “persuade” Congress. Neustadt and Schlesinger were among the academics who glorified presidential power and had no interest in the constitutional system of legal constraints and checks and balances. See my article, “Scholarly Support for Presidential Wars,” in the September 2005 of PRESIDENTIAL STUDIES QUARTERLY (available at http:www.loc.gov/law/help/usconlaw/pfd/Fisher.scholars.pdf).

I agree with DiPaolo that, if the courts defer to Congress, “it is up to Congress to again reassert itself in reclaiming power away from the Executive.” In such cases “the courts will follow suit by reaffirming the need for the Executive to seek, and achieve, some sort of congressional approval of its war-powers policies” (p.214). This type of congressional reassertion requires lawmakers to understand the powers and duties of their institution and to take steps to protect legislative interests. Unfortunately, the record over the last six decades reveals a Congress regularly lacking in institutional awareness and will. Academics can help by explaining to students that structural checks are essential in protecting individual rights and liberties.

REFERENCES:
Fisher, Louis. 2005. “Scholarly Support for Presidential Wars.” 35 PRESIDENTIAL STUDIES QUARTERLY 590-607.

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

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

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

THE PRIZE CASES, 2 Black (67 U.S.) 635 (1863).

YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

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© Copyright 2010 by the author, Louis Fisher.

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MATERIAL LAW: A JURISPRUDENCE OF WHAT’S REAL

by John Brigham. Philadelphia: Temple University Press, 2009. 240pp. Cloth. $54.50. ISBN: 9781592139644. Electronic Book. $54.50. ISBN: 9781592139668.

Reviewed by Joseph Reisert, Department of Government, Colby College. Email: jrreiser [at] colby.edu.

pp.103-106

In MATERIAL LAW, John Brigham aims to illustrate and develop the “constitutive” conception of law he introduced in his earlier work, THE CONSTITUTION OF INTERESTS. In contrast to the “instrumental” conception of law, which, in Brigham’s characterization, views law as the outcome or product of political processes, the constitutive conception holds that the law is not only a consequence, but also a cause of political and social action and even of individual and collective self-understandings. In nine wide-ranging and eclectic chapters, Brigham illustrates the ways in which law is “part of the process by which people construct all sorts of things” (p.viii). Rather than articulate a linear and tightly unified argument seeking to define the constitutive conception, the individual chapters develop the main theme episodically and discursively, offering various examples of “places and things [that] are fashioned by law” (p.viii). Although the contrast Brigham seeks to develop, between instrumental and constitutive conceptions of law, is tantalizingly suggestive, it was also frustratingly elusive.

MATERIAL LAW is divided into three parts, of three chapters each, although the unifying themes linking the chapters grouped together were sometimes difficult to perceive. The first part, “Theorizing Material Life,” is said to describe “the ways material life has been theorized, or examined” (p.xiv). The first chapter, “The Map and the Territory,” describes the intellectual journey which led Brigham to adopt his constitutive theory of law. Chapter Two, “The Public in the Womb,” argues that abortion law has “changed the meaning of human life in the United States” (p.24). Justice Blackmun’s opinion in ROE v. WADE “gave the fetus official recognition in public policy and law,” Brigham observes, and in the wake of ROE, pro-life activists brought the unborn from obscurity to “political prominence” as they sought measures to protect fetal life (p.27-28). In “Habeas Corpus at the Temple,” the third chapter, Brigham “explores mortality and individuality on the Supreme Court and the significance that bodily images of the justices have for law in general and the death penalty in particular” (p.49); in short, the chapter narrates the changing of the Court’s membership during the fifteen years from FURMAN v. GEORIGA (1972) to MCCLESKEY v. KEMP (1987) and the concomitant changes in its death penalty jurisprudence.

The chapters comprising Part Two, “Constituting Legal Spaces,” explore a number of sites where law “constitutes the terrain by setting the stage for conflict, for politics, and for social life” (p.75). “Law’s Neighborhoods” [*104] juxtaposes Robert Ellickson’s study of conflict and dispute resolution among ranchers in Shasta County, California, ORDER WITHOUT LAW, with the author’s own study of political conflict and decision-making in the Lower East Side of New York. Ellickson had found that the ranchers settle many of their disputes informally, without recourse to formal, legal institutions such as courts and the police. Brigham endorses Ellickson’s sociological approach, but objects to the idea that “the law” exists only or even characteristically in legal rules and the actions of public officials. Where Ellickson finds a limited role for the institutions of the law, Brigham contends that the informal norms that constitute the ranchers’ community are themselves law. Turning to his own work in the Lower East Side, Brigham finds that “law constitutes forums for politics, legal forms shape political claims, and law influences political positions” (p.88). Thus, in Brigham’s account, squatters “explicitly and consciously redefine the meaning of eminent domain,” while middle class homeowners invoked park rules against camping in their effort to have the homeless removed from Tompkins Square Park (p.94). After insinuating that the squatters’ bourgeois opponents invoked the law to mask the self-interestedness of their behavior, Brigham disclaims any intention to “uncover a true politics behind the mask of the law” (p.94). He aims, more modestly, “to understand the ways in which law, in the form of parks department rules, community boards, forms of housing, and claims of right determines the sort of politics that is possible” (p.94). But this aim seems too modest, for how could political actors make claims without reference to positive law and abstract norms?

Chapter Five, “De Facto Discrimination and the Double Standard” offers a sharply critical indictment of the Supreme Court’s treatment of racial discrimination, culminating in the accusation that the Roberts Court has “placed the constitution firmly on the side of the white resistance” (p.103). In Chapter Six, Brigham examines a series of “occupied territories” in the United States: 1960’s-era Harlem, Indian reservations, the Commonwealth of Puerto Rico, and the federally administered Hispanic land grants in New Mexico. In each case, he finds a disjunction between the formal, institutional legal system and the lived practices of the “occupied” peoples.

In Part Three, “Materializing Law,” Brigham depicts the “material forms law takes.” This description aptly characterizes the topic of Chapter Seven, which links the changes in the architectural design of courthouses, away from the grand and monumental towards the efficient and bureaucratic, to changes in the institutional practice of the law. Modern courts, he argues, “minimize claims on justice in favor of improved process” (p.167). “In place of the lawgiver and the blindfolded maiden holding the scales, we have computer systems frameworks and video monitors,” writes Brigham; the result is an “environment dominated by technical expertise with few links to the normative practices of the culture generally” (p.167). Correlation is not causality, of course, but the linkage Brigham draws is suggestive nonetheless. By contrast, Chapter Eight discusses “the commodity form as law” (p.169), and Chapter Nine, [*105] globalization and its relationship to the study of law.

Brigham admirably aims to situate his contribution within a larger critical tradition in law and within the law and society movement in particular. To that end, he adverts frequently to the work of other scholars working within these traditions, and he discusses autobiographically the effect his encounter with these ideas had upon his own life and intellectual development. To a reader already deeply immersed in the law and society literature, the allusions and biographical references may provide clarity and serve to orient them in the intellectual terrain Brigham inhabits. To this reader, however, many of the life details were intrusive and distracting – do we really need to know about the “chicken salad plate” served at the 1995 annual meeting of the Law and Society Association? (p.196) – and the numerous allusions to others’ contributions, more confusing than clarifying.

Brigham repeatedly invokes “liberal legalism,” legal realism, and behavioralism in political science as his dialectical opposites, though he does not so much use these as terms of analysis but as epithets; the views he would reject are not so much sketched as gestured towards. Apparently, the legal liberal takes an abstract, universalistic picture of how society ought to be, and enacts legislation or wins favorable court rulings to re-shape society according to that image. By contrast, Brigham’s “constitutive work in socio-legal scholarship looks at the way relations among people are formed by or with reference to law” (p.17). Some of the individual chapters, most notably Chapters Four and Six, effectively illustrate ways in which law can be seen as entering into the self-definitions of individuals and communities.

Nevertheless, it was difficult to perceive the larger, conceptual lessons Brigham aimed to draw from these case studies, in part because Brigham offered neither a sustained articulation of his own outlook nor provided a detailed and sympathetic critique of his intellectual adversaries. More fundamentally, it is not clear that the contrast between constitutive and instrumental conceptions of law is likely to yield any radically new insights into the nature of law, because each perspective entails the other. Law can only work as an instrument for the shaping of a society to the extent that its normative directives constitute the people it governs. Likewise, norms that constitute regular patterns of behavior are only intelligible in light of the ends or purposes at which they aim; whether a constitutive norm has emerged from the ground up, out of the practice of a community, or has been enacted through the agency of a single lawgiver, action-guiding norms always entail a picture of how society ought to be.

Readers already well versed in the law and society literature will find in MATERIAL LAW some provocative observations and piquant theoretical claims; readers from outside the subfield looking for a first taste of the law and society literature would best seek their nourishment elsewhere. [*106]

REFERENCES:
Brigham, John. 1966. THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS. New York: New York University Press.

Ellickson, Robert. 1994. ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES. Cambridge: Harvard University Press.

CASE REFERENCES:
FURMAN v. GEORGIA 408 U.S. 238 (1972).
MCCLESKEY v. KEMP 481 U.S. 279 (1987).
ROE v. WADE 410 U.S. 113 (1973).

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© Copyright 2010 by the author, Joseph Reisert.

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DILEMMAS OF MODERNITY: BOLIVIAN ENCOUNTERS WITH LAW AND LIBERALISM

by Mark Goodale. Stanford, CA: Stanford University Press, 2009. 264pp. Cloth. $65.00. ISBN: 9780804759816. Paper. $24.95. ISBN: 9780804759823. E-book $24.95. ISBN: 9780804769884.

Reviewed by Raul Sanchez Urribarri, Department of Political Science, Tulane University. E-mail: sanchezu [at] tulane.edu.

pp.100-102

To what extent do liberal principles and values – as defined, understood and shaped by the different actors that participate in the development of a global liberal discourse and the legal institutions that accompany it – shape the social consciousness and actual experiences of indigenous communities and peoples in different contexts, especially in Latin America? In his newly published work, DILEMMAS OF MODERNITY: BOLIVIAN ENCOUNTERS WITH LAW AND LIBERALISM, Mark Goodale addresses this and other related questions in a sophisticated and cogent manner. The book is the product of a decade of sustained research efforts to observe, document and evaluate the role and meaning of liberal principles in different instances of social and political life in contemporary Bolivia. The result is an extensive and thought-provoking ethnographic study of law and liberalism in this (still) understudied country, which challenges traditional understandings of the topic while building upon a wide array of works from several disciplines.

The analysis focuses on the remote area of Bolivia’s Norte del Potosí, an inaccessible location where one would not expect law and liberalism in their different manifestations to be actively sought and experienced by potosinos, but instead resisted or, at best, inconsequential. However, Goodale compellingly shows that this is not the case, exploring patterns of intention rooted in the country’s longstanding liberal project, dating back to the moment of its foundation as an independent nation-state in 1825. Thus, the book focuses on explaining “the ways in which specific kinds of social practices in Bolivia reveal a set of dilemmas at the heart of the modern project itself, dilemmas that appear in stark relief through both legal practices and contemporary struggles over the meaning of the legal-ideological principles through which Bolivia emerged in the early nineteenth century” (p.53).

The book is well organized, along seven chapters. The introduction and Chapter 2 offer the theoretical underpinnings of the work: Whilst the former succeeds in summarizing and introducing the argument, the latter further develops a thorough understanding of how liberalism, as a pattern of intention, continues to shape modern Bolivia. According to Goodale, Bolivian Law from the start placed the individual at the center of the country’s project and developed a logic of rights to regulate the individual’s relations vis-à-vis the state, establishing a structure that has endured in Bolivia despite remarkable [*101] social, economic and political changes over the country’s history until today. The subsequent chapters then provide a detailed view of how the linkages with liberalism shape individual and social experiences. Chapter 3 discusses how transnational legal principles rooted in liberal values influence local practices. The chapter challenges common assumptions about the role of courts, judicial institutions and legal actors in Latin America, and invites scholars to jointly consider other modalities of rights adjudication present in the region. This analysis is particularly relevant after the approval of the new 2009 Bolivian Constitution, which explicitly and officially recognizes the existence of separate ‘general’ (ordinaria) and indigenous jurisdictions (Bolivian Constitution, Second Part, Title III, JUDICIAL BRANCH AND PLURINATIONAL CONSTITUTIONAL TRIBUNAL, arts. 178 ss.), and creates a new Plurinational Constitutional Tribunal, with the ability to solve conflicts between these jurisdictional orders (2009 Bolivian Constitution, article 202). Next, Chapter 4 explores disparate perspectives on gender, in which local cultural values and principles stand in opposition to the global legal discourse and the values that inspire it; whilst in Chapter 5 Goodale offers an analysis of how the human rights ideological framework is adapted or ‘vernacularized’ through local practices and developed, not only as a strictly juridical discourse, but also as a moral parameter. Chapter 6 discusses local understandings of development, as the inhabitants of Norte del Potosí meet and confront different instances of modernity brought about by different projects targeted at improving their socio-economic conditions.

Finally, in the book’s conclusion, Goodale ties the argument up and briefly considers what is, perhaps, the most important question that remains after reading the book: What is the true nature of the recent political reforms carried out in Bolivia? Do they stand in contraposition to the liberal project that, following the book, serves as a core pattern of intention for the country’s social, political and economic development? The arrival of Evo Morales (2005) to the presidency has catalyzed ongoing social and institutional transformations backed by the overwhelming support of Bolivia’s indigenous majority and a broader social coalition, leading to the subsequent creation and approval via referendum of the 2009 Bolivian Constitution. Scholars have tried to explain the different social, political and legal implications of these changes (see, for example, Postero 2006). To Goodale, it is still early to draw any conclusions, but consistent with his explanation, the new revolution also incarnates, at least to some degree, the values of liberalism. I find this approach particularly valuable; it not only helps to evaluate Bolivia’s most recent transformations, but also presents an alternative paradigm to study other political projects emerging in the region, including Ecuador and Venezuela, countries with which the process of changes share some core common aspirations of social justice and inclusion, and which have also been channeled through democratic politics (though their actual commitment to democracy, and even what democracy entails in these countries, are contested issues).

Clearly, Goodale’s is an important book for Legal Anthropologists – especially [*102] those interested in the role and impact of Western notions of modernity and liberalism in contemporary Latin America. In this sense, the book joins other recent works about indigenous politics and social transformations in the region, such as Speed (2007). Moreover, this book is also provocative and essential for those who work in other subfields, and who are also seeking to understand the role of the law and human rights vis-à-vis local practices, within and beyond the understudied Andean context. DILEMMAS OF MODERNITY sheds additional light on the relationship between the rise of a transnational human rights discourse, inspired in liberal values and with universalist aspirations vis-à-vis both the longstanding existence of prior liberal projects carried out by state elites in search of modernity, and the existence (and persistence) of local cultures and their localized claims. Goodale’s effort to advocate for a nuanced understanding of this process offers valuable lessons for judicial and legal reform practitioners or policy advisors crafting democratization agendas. In this sense, the book adds to works from scholars in other connected disciplines, such as Sieder’s edited volume, MULTICULTURALISM IN LATIN AMERICA (2002). Well researched and clearly written, the book is a welcomed addition that will be especially useful for graduate education and research across several subfields.

REFERENCES:
REPÚBLICA DE BOLIVIA: CONSTITUCIÓN POLÍTICA DEL ESTADO DE 2009. Revised at: http://pdba.georgetown.edu/Constitutions/Bolivia/bolivia09.html, on January 30, 2010.

Postero, Nancy. 2006. NOW WE ARE CITIZENS: INDIGENOUS POLITICS IN POSTMULTICULTURAL BOLIVIA. Stanford, CA: Stanford University Press.

Sieder, Rachel (ed). 2002. MULTICULTURALISM IN LATIN AMERICA: INDIGENOUS RIGHTS, DIVERSITY AND DEMOCRACY. London, UK: Palgrave Macmillan.

Speed, Shannon. 2007. RIGHTS IN REBELLION: INDIGENOUS STRUGGLE AND HUMAN RIGHTS IN CHIAPAS. Stanford, CA: Stanford University Press.

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© Copyright 2010 by the author, Raul A. Sanchez Urribarri.

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THE WOMEN’S MOVEMENT AGAINST SEXUAL HARASSMENT

by Carrie N. Baker. New York: Cambridge University Press, 2008. 286pp. Hardcover. $83.99/£47.00. ISBN: 9780521879354. Paper. $25.99/£17.99. ISBN: 9780521704946.

Reviewed by Lori A. Johnson, Department of Political Science, Mercer University. Email: Johnson_la [at] mercer.edu.

pp.96-99

Catherine MacKinnon has described the development of sexual harassment law as “legally led social change” through which “anti-sexual harassment law impelled social awareness of those issues rather than the reverse.” Though not necessarily intended as such, Carrie N. Baker’s book, THE WOMEN’S MOVEMENT AGAINST SEXUAL HARASSMENT, offers a carefully researched and well-written empirical test of MacKinnon’s assertion. Specifically, Baker uses social movement theory to explore how women from varying racial, economic, educational, and geographic backgrounds used diverse resources and strategies to shape public policies against sexual harassment.

THE WOMEN’S MOVEMENT AGAINST SEXUAL HARASSMENT is an important contribution to the scholarly literature on sexual harassment. It belongs in the same category of original and creative explorations of this topic like Kathrin Zippel’s THE POLITICS OF SEXUAL HARASSMENT: A COMPARATIVE STUDY OF THE UNITED STATES, THE EUROPEAN UNION AND GERMANY; Theresa Beiner’s GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW; Anna-Maria Marshall’s CONFRONTING SEXUAL HARASSMENT: THE LAW AND POLITICS OF EVERYDAY LIFE; and Mia Cahill’s THE SOCIAL CONSTRUCTION OF SEXUAL HARASSMENT LAW. While there is some overlap with these academic works, especially in chronicling the historical origins and development of sexual harassment law, Baker’s use of social movement theory is an important distinction.

Upon first reading Baker’s book, I thought it would be an interesting addition to my Women, Law & Politics course. One of the themes of this course is the comparison of women’s political efforts to obtain equality (through grassroots action, legislation and electing women to office) with their legal efforts (individual and class action litigation and the development of common law). My intention with this theme was to explore questions involving the politics of law and social change that I had encountered as a graduate student through books like Gerald Rosenberg’s THE HOLLOW HOPE and Michael McCann’s RIGHTS AT WORK. One good thing about how long it has taken me to submit this review is that I have now had a chance to teach the book in my course and can add some reflections about that experience as well. [*97]

As Baker points out in the Introduction, women in America have been “fend[ing] off the sexual demands of those wielding economic power over their lives” since colonial times (p.1). It was not until the mid-1970s, however, that they began calling it “sexual harassment.” Part I of the book, which is arranged chronologically, explores how activists first articulated sexual harassment as a form of sex discrimination. Part II examines the growth of a social movement against sexual harassment in the late 1970s. Part III traces the impact of the growing movement on public policy, including the first Supreme Court case in 1986, as well as the backlash against sexual harassment that followed in the late 1980s and early 1990s.

The first chapter chronicles six legal cases alleging sexual harassment filed under Title VII between 1971 and 1975. In only one of these cases, brought by Diane Williams and decided in the D.C. District Court by Judge Charles Richey, did the plaintiff prevail. Baker offers details about the circumstances of both the winning and losing cases, and the reasoning used by the judges to decide the claims. She also connects the beginning of the movement against sexual harassment to the civil rights movement by showing how several of these early African American women plaintiffs relied on networks of civil rights organizations for support and legal representation. Especially interesting in this chapter was her inclusion of media reaction to the WILLIAMS case, much of which mocked Judge Richey and trivialized the decision (p.22).

The next chapter offers a detailed account of the grassroots collective action of Working Women United (WWU) and the Alliance Against Sexual Coercion (AASC), which raised awareness among women, assisted women who had experienced sexual harassment and conducted empirical research on the phenomenon. WWU organized in Ithaca, New York, in response to the denial of unemployment benefits to Carmita Wood, an administrative assistant at Cornell University. Women who had been working in rape crisis centers organized AASC in Cambridge Massachusetts. Through in-depth interviews with many of the participants, Baker is able to give the reader a real sense of the personalities of those involved and the ebb and flow of each organization over time.

After discussing subsequent legal developments around sexual harassment in the workplace and in education, the book details the role blue-collar women and union workers in non-traditional occupations played in the growing movement. This group of women succeeded in getting regulations against sexual harassment from the Department of Labor and broadening the legal definition of sexual harassment to include “hostile environment” claims. These chapters offered a fascinating case study for my students in the contrast between political and legal strategies, as well as liberal and radical feminism. As we were discussing Baker’s description of AASC members who “placed sexual harassment within a broader critique of capitalism, patriarchy and racism,” one student raised his hand to ask a question. “I don’t understand,” he said, “why would anyone criticize capitalism?” It was certainly a “teachable moment.” [*98]

While later chapters presented important evidence documenting how the growth in the importance of women’s rights, the development of feminist theory and coverage in the popular media shaped the progression of the movement against sexual harassment, my students tended to react to these chapters as a series of “this happened, then that happened, then something else happened.” These chapters would have perhaps been more accessible if they had been organized differently, or connected more effectively to the general points about social movements that Baker discusses in the Introduction and Conclusion.

One of the more interesting class discussions from these chapters focused on the Equal Employment Opportunity Commission (EEOC). We compared the role that Eleanor Holmes Norton played as head of the EEOC during the Carter administration, especially how she pushed for the development of the influential EEOC guidelines on sexual harassment, and the impact of Ronald Reagan’s appointment of Clarence Thomas as her successor at the EEOC. Students recognized this as a noteworthy example of the importance of not ignoring the work of administrative agencies, whether in the context of political or legal activism, in achieving social change.

Subsequent chapters offered an engaging and detailed account of the political, social and legal backlash against the emerging concept of sexual harassment from both the right and the left in the 1980s. Despite this backlash, Baker concludes that “the history of the movement against sexual harassment is in many ways an incredible success story” (p.177). Yet women continue to report high rates of sexual harassment in education and in the workplace. This reality offered another opportunity for students to think about what it might take, in terms of political and legal strategies, for women to achieve equality.

Perhaps because of my previous work as an employment lawyer, I have looked for books in my courses that would help students appreciate the personal stories behind legal cases. SEXUAL HARASSMENT AND THE LAW: THE MECHELLE VINSON CASE, by Augustus B. Cochran, worked well for that purpose in this course, although students found it singularly dissatisfying that after the Supreme Court’s decision, the case settled on secret terms, without ever having a trial. Never mind the empirical reality that the vast majority of civil cases do, in fact, settle. CLASS ACTION: THE STORY OF LOIS JENSON AND THE LANDMARK CASE THAT CHANGED SEXUAL HARASSMENT LAW, by Clara Bingham and Laura Leedy Gansler, chronicles the 23-year saga, involving three trials and multiple appeals, of the first successful sexual harassment class action case, brought by a group of women miners in Minnesota. What I considered a great book for helping students understand some of the real costs of a litigation strategy, was for my students simply “too much reading.” So I have had to content myself with viewing “North Country,” the movie starring Charlize Theron which is based on the book, and then discussing how the Hollywood treatment changed the story of the case.

Using THE MOVEMENT AGAINST SEXUAL HARASSMENT in my [*99] Women, Law & Politics course provided a great opportunity for students to not only be exposed to the individual experiences of women who stood up against sexual harassment but also to recognize that real change is often, if not always, the product of the efforts and sacrifices of many different people over sometimes long periods of time. I can definitely recommend it for use in upper level college courses, whether in women’s studies, sociology, legal studies or political science, if you have similar learning objectives.

REFERENCES:
Beiner, Theresa M. 2005. GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW. New York: New York University Press.

Bingham, Clara and Gansler, Laura Leedy. 2002. CLASS ACTION: THE STORY OF LOIS JENSON AND THE LANDMARK CASE THAT CHANGED SEXUAL HARASSMENT LAW. New York: Doubleday.

Cahill, Mia L. 2001. THE SOCIAL CONSTRUCTION OF SEXUAL HARASSMENT LAW. Burlington, VT: Ashgate Publishing.

Cochran, Augustus B. 2004. SEXUAL HARASSMENT AND THE LAW: THE MECHELLE VINSON CASE. Lawrence, KS: Kansas University Press.

MacKinnon, Catherine A. 2005. “The Logic of Experience: The Development of Sexual Harassment Law” in WOMEN’S LIVES, MEN’S LAWS. Cambridge, MA: Harvard University Press.

Marshall, Anna Maria. 2005. CONFRONTING SEXUAL HARASSMENT: THE LAW AND POLITICS OF EVERYDAY LIFE. Burlington, VT: Ashgate Publishing.

McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.

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

Zippel, Kathrin S. 2006. THE POLITICS OF SEXUAL HARASSMENT: A COMPARATIVE STUDY OF THE UNITED STATES, THE EUROPEAN UNION AND GERMANY. New York: Cambridge University Press.

CASE REFERNCES:
WILLIAMS v. BELL, 587 F.2d 1240 (DC Cir. 1978).

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© Copyright 2010 by the author, Lori A. Johnson.

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